After a long drought, the California Supreme Court at its November 14, 2018 conference voted unanimously to grant review of three decisions involving the question of whether well permits issued pursuant to county ordinances and incorporating state groundwater well-drilling standards are ministerial and thus not subject to review under the California Environmental Quality Act (“CEQA”).  Although interpreting different county well ordinances enacted by San Luis Obispo and Stanislaus Counties, the ordinances each incorporated state well-drilling standards (Bulletin 74).  Yet, the Second and Fifth Districts reached diametrically opposing conclusions regarding whether those ordinances require the exercise of discretion.

In two unpublished decisions decided by the same panel and authored by acting Presiding Justice Poochigian, Protecting Our Water & Environmental Resources v. Stanislaus County, No. F073634 (“Protecting Our Water”) and Coston v. Stanislaus County, No. F074209 (“Coston”), the Fifth Appellate District found that Stanislaus County’s issuance of well permits under its groundwater ordinance was discretionary and subject to CEQA.  The decisions found that the County retained the discretion to determine whether a well would be placed an “adequate” distance from a contamination source, because the County’s ordinance incorporated state well-drilling standards in Bulletin No. 74.  Significantly, in Protecting Our Water, the court stated that it was “troublesome” that costly, time-consuming environmental review of most well-construction permits would generally have little or no value, while the resulting delay in addressing the problem of residential or agricultural wells going dry could cause harm.  In light of this, the court commented that, “[i]f we were legislators, we might seek a way to provide relief from the potentially high burdens imposed by CEQA in this context.”

In contrast, in California Water Impact Network v. County of San Luis Obispo (2018) 25 Cal.App.5th 666 (“CWIN”), the Second Appellate District found that the County of San Luis Obispo’s issuance of permits under its well-construction ordinance was ministerial and thus not subject to CEQA.  Unlike the court in the Stanislaus County cases, the Second District found that the ordinance and the state standards it incorporates (Bulletin No. 74) impose only fixed technical requirements and did not allow discretion to mitigate potential environmental impacts.

Interestingly, the Supreme Court granted review of the Protecting Our Water decision, one of the unpublished decisions, but deferred further action on the Coston and CWIN decisions pending resolution of Protecting Our Water.  The Protecting Our Water decision may have been chosen for initial review because it highlights a number of potential issues that the Court may want to address, including: (1) the extent and type of discretion required to trigger CEQA review; and (2) whether the discretion accorded by Bulletin No. 74 is sufficient to trigger CEQA review.  Regardless, the Supreme Court appears poised to address when permitting decisions should be subject to CEQA review, which has arisen in a rash of recent cases, with disparate results.  (See, e.g., Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11 (“Sierra Club”) (issuance of permit allowing the establishment of a vineyard was ministerial because the applicable ordinance provisions did not allow any meaningful mitigation for environmental impacts); Watertrough Children’s Alliance v. County of Sonoma, 2017 WL 3259680 (July 31, 2017) (issuance of permit for establishing a vineyard was ministerial); Communities for a Better Env’t v. San Joaquin Valley Unified Air Pollution Control Dist., 2017 WL 2705633 (June 23, 2017) (issuance of authority-to-construct air permit for oil/water sewer system at a rail-to-pipeline crude oil terminal was discretionary and subject to CEQA).)

It is important to note that, under relatively recent changes to California Rule of Court 8.1115(e), published appellate decisions such as CWIN that have been granted review by the Supreme Court have no binding or precedential effect but may be cited as persuasive authority if the party notes the grant of review and any subsequent action by the Supreme Court.  The previous rule automatically rendered such decisions non-citable upon a grant of review.