On August 27, 2020, the California Supreme Court issued a decision that likely means that water well permits in the state will cost more and contractors will have to wait longer for the permit. In Protecting Our Water and Environmental Resources (POWER) v. County of Stanislaus, POWER filed suit, claiming that the county’s issuance of water well construction permits involved discretion on the part of the county, and therefore a review under the California Environmental Quality Act (CEQA) was required before the review of each permit.
Under CEQA, any government action that may directly or indirectly cause a physical change in the environment may be subject to environmental review. The issuance of a permit generally falls under the purview of CEQA. If the issuance of the permit involves any discretion on the part of the issuing government, some level of environmental review is necessary unless an exemption applies. No exemption applies to water well construction permits.
Like many local governments, Stanislaus County had determined that water well permits did not involve discretion and therefore were “ministerial”, not requiring CEQA review. The county ordinance incorporates the well standards contained in State Department of Water Resources Bulletin No. 74. Particularly, Standard 8.A in that bulletin provides specific standard setback distances for proposed wells located near sources of potential contamination. The trial court found that applying the standard involved no discretion on the part of the county, but the Fifth District Court of Appeals disagreed, finding that application of the standard involved subjective judgment. The Second District Court of Appeals had earlier found the opposite, that the decision to issue a well permit was ministerial.
The California Supreme Court rejected both positions and found that the reliance on Standard 8.A will sometimes involve discretion, and sometimes not involve discretion. Therefore, local governments cannot automatically put all water well permitting decisions in one category or the other. Each permit application will have to be examined to determine whether CEQA review is required or not. The court rejected the county’s argument that subjecting some or all well permit decisions to CEQA review would result in increased costs and delays.
Local governments in California may be able to develop a review process that makes the determination of whether a permit requires CEQA review or not relatively straightforward. Until that time, however, the permit process will have to consist of an initial determination of whether CEQA review is necessary. If CEQA review is necessary, increased costs and delays will result. If CEQA review is not necessary, fewer increased costs and delays are likely. In any case, water well construction permits in California are now subject to increased uncertainty.
Water Systems Council will continue to monitor this development and will keep you informed of any additional challenges this may present.