Legal Alerts Aug 06, 2018

Groundwater Extraction Permits Not Subject to CEQA in San Luis Obispo County

Approval is a Ministerial Action, not subject to CEQA, Appellate Court Finds

Groundwater Extraction Permits Not Subject to CEQA in San Luis Obispo County

While California’s drought state-of-emergency has been lifted, legal battles aimed at limiting groundwater extractions linger. This can be seen in the recently decided California Water Impact Network v. County of San Luis Obispo et al., where the Second District Court of Appeal took on the issue of whether groundwater well drilling permit approvals are exempt from the California Environmental Quality Act. As drought-like conditions persist in agriculturally dependent portions of the State, such as portions of the Central Coast region, this opinion clears the waters on why CEQA does not apply to the issuance of well permits under certain conditions.
 
The action filed by C-WIN stemmed from the County’s approval of well drilling permits in 2016 to construct wells on land belonging to local agricultural operators, without completing environmental review under CEQA. C-WIN argued, among other things, that the County could potentially impose conditions related to pumping limits or subsidence monitoring, such that the County’s well drilling permits are discretionary under CEQA. Further, C-WIN argued that the County’s approval of the permit applications without analyzing environmental impacts that well drilling could have on groundwater resources violated CEQA. The court disagreed.
 
In the June 28 opinion, certified for publication last week, the court affirmed the trial court’s decision to reject C-WIN’s lawsuit against the County. C-WIN petitioned the court to order the County to conduct CEQA review before issuing well permits. Instead, the appellate court ruled that CEQA did not apply to the issuance of the well permits. In reaching its conclusion, the court reasoned that the County’s processing and approval of well drilling permits is a “ministerial” action under a County well ordinance that gave the County little to no discretion regarding whether to issue the permit. The court explained that the well drilling permit approvals are exempt from CEQA because the County ordinance does not provide the County with the ability or authority to meaningfully shape the well construction to “mitigate . . . environmental damage” or to address environmental concerns, which is a prerequisite for triggering CEQA review. The court compared the well drilling permit application process to a building permit application process, where the public entity exercises little or no personal discretion and must approve the permit when the applicant has met basic design and construction specifications.
 
Further, the court emphasized that the County ordinance incorporates the State Department of Water Resources’ construction standards related to wells, which lays out fixed technical specifications aimed at preventing water contamination. The court concluded the ordinance and DWR provisions related to well drilling are aimed at regulating water quality, not quantity. It would therefore be improper to read beyond the plain language of the documents and infer a legislative intent that the County had discretion to deny permits based on potential depletion of the quantity of groundwater. The court pointed out that the Legislature addressed groundwater depletion through enacting the Sustainable Groundwater Management Act in 2014, which is not part of the County ordinance and is beyond the issue at hand.
 
The court’s swift disposition of this CEQA challenge provides crucial clarifications for those pursuing well drilling permits in counties that utilize well drilling permit schemes like that in San Luis Obispo County, and may help to resolve ongoing disputes regarding whether substantive environmental review under CEQA is required prior to the issuance of such permits.
 
If you have any questions about this decision or how it may impact your agency, please contact the authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.
 
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.
 

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