The opinion
Filed 12/20/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
A162564
MISSION PEAK CONSERVANCY et
al.,
Plaintiffs and Appellants, (Alameda County Super. Ct. No.
RG19037369)
v.
STATE WATER RESOURCES ORDER MODIFYING OPINION
CONTROL BOARD, [NO CHANGE IN JUDGMENT]
Defendant and Respondent;
CHRISTOPHER GEORGE et al.,
Real Parties in Interest and
Respondents.
THE COURT:
The opinion filed on December 15, 2021, shall be MODIFIED
as follows:
1. The last paragraph on page 8, in Discussion B.1., is
replaced in its entirety, as follows:
Third, and finally, Mission Peak offers a
somewhat confusing variation on its second
argument. Mission Peak contends that, even
assuming the board’s “approval of [the
Georges’] registration [w]as a ministerial
act,” the board’s action nonetheless violated
CEQA because the Georges’ project “did not
meet the requirements for a small domestic
1
use” and is “not supported by substantial
evidence.” Again, this is simply an argument
that the board made an erroneous ministerial
decision – which, as we have explained, is not
a basis for a CEQA claim. Mission Peak
mistakenly relies on Sierra Club, which
states that, to the extent a CEQA exemption
turns on an agency’s factual determinations,
courts review those determinations for
substantial evidence. (Sierra Club, 11
Cal.App.5th at p. 24; see, e.g., Apartment
Assn. of Greater Los Angeles v. City of Los
Angeles (2001) 90 Cal.App.4th 1162, 1173-
1174.) The exemption here does not turn on
factual determinations but, instead, on the
board’s lack of discretionary legal authority.
The modification effects no change in the judgment.
Date: ______12/20/2021_____ SIMONS, J.
_______________, Acting P.J.
2
Alameda County Superior Court Case No. RG19037369. The
Honorable Frank Roesch.
Law Offices of Paul B. Justi and Paul B. Justi for Petitioners and
Appellants.
Rob Bonta, Attorney General, Robert W. Byrne, Assistant
Attorney General, Myung J. Park and Kathryn M. Megli, Deputy
Attorneys General, for Respondent.
Colantuono, Highsmith & Whatley, Michael G. Colantuono; Levin
and Carmen A. Brock for Real Parties in Interest and
Respondents.
3
Filed 12/15/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
MISSION PEAK CONSERVANCY et
al.,
Plaintiffs and Appellants,
A162564
v.
STATE WATER RESOURCES
CONTROL BOARD, (Alameda County
Defendant and Respondent; Super. Ct. No. RG19037369)
CHRISTOPHER GEORGE et al.,
Real Parties in Interest and
Respondents.
Mission Peak Conservancy and Kelly Abreau (collectively
“Mission Peak”) sued the State Water Resources Control Board,
alleging that it violated the California Environmental Quality
Act (CEQA; Pub. Resources Code, § 21000 et seq.) by granting a
small domestic use registration to Christopher and Teresa
George without first conducting an environmental review. The
trial court sustained the board’s demurrer without leave to
amend, holding that the registration was exempt from CEQA as a
ministerial act (Pub. Resources Code, § 21080, subd. (b)(1)). We
affirm.
1
BACKGROUND
A.
The Water Rights Permitting Reform Act of 1988 provides
a streamlined process for acquiring a right to appropriate
relatively small amounts of water for domestic or other specified
uses. (Wat. Code, §§ 1228-1229.1 1) Under this right, a person
may divert up to 10 acre-feet of water per year from a stream into
a storage facility, such as a pond or tank. (§§ 1228.1, subd. (b)(1),
1228.2, subd. (a)(1).)
An eligible person obtains the right by (1) registering the
use with the board, (2) paying a fee, and (3) subsequently putting
the water to “reasonable and beneficial use.” (§§ 1228.2, subd.
(a)(1), 1228.3, subd. (b).) The registration form requires the
registrant’s contact information; details about the nature,
amount, and location of the proposed use, diversion, and storage;
a certification that the registrant has provided the registration
information to the Department of Fish and Wildlife and will
comply with any conditions that the department imposed; and a
copy of any conditions imposed by the department. 2 (§ 1228.3,
subd. (a).) The registration is deemed completed when the board
receives a substantially compliant form and the fee. (§ 1228.3,
subd. (b).)
A completed registration gives the registrant a “priority of
right as of the date of completed registration to take and use” the
amount of water shown on the registration form. (§ 1228.4, subd.
(a).) Once registered, the right remains in effect unless forfeited
or revoked under specified circumstances. (§ 1228.4, subd. (b).)
1 Undesignated statutory references are to the Water Code.
2 In practice, as the parties acknowledge, the registrant
may allow the board to submit the information to the department
on the registrant’s behalf, which was apparently the case here.
2
The board is authorized to set general terms and
conditions, applicable to all registrations. (Wat. Code, § 1228.6,
subd. (a); see State Water Resources Control Board Division of
Water Rights 2016 General Conditions To Be Applied To Small
Domestic Use and Livestock Stockpond Use Registrations
<https://www.waterboards.ca.gov/waterrights/publications_forms/
forms/docs/sdulsu_conditions.pdf> [as of Dec. 15, 2021.].) Given
its lack of discretion over individual permits, the board has
designated the registration process generally to be exempt from
CEQA as a ministerial decision. (Cal. Code Regs., tit. 23, § 3730,
subd. (e); Guidelines, Cal. Code Regs., tit. 14, § 15268, subd. (c)
[references to the “Guidelines” are to the CEQA Guidelines, Cal.
Code Regs., tit. 14, § 15000 et seq.].)
B.
Mission Peak’s second amended petition alleges that the
Georges registered a small domestic use on a property in
Alameda County. It is apparently undisputed that the Georges’
registration form, on its face, met the program requirements.
Mission Peak alleges, however, that the form was replete
with false information. The Georges allegedly claimed they had
drained and cleaned a pre-existing pond when, in reality, they
had “significantly altered and obstructed the course of a stream
and its bed by the massive expansion of the pond and damming of
the stream.” The Georges falsely stated that all construction was
complete when, in fact, they subsequently graded and excavated
a hillside, constructing a quarter-mile-long road with culverts to
channel stormwater runoff into the lake.
The petition further alleges that, during the registration
process, the board conducted a site inspection, took photographs,
prepared a report, and reviewed historical and contemporary
aerial photographs, as well as a map provided by the Georges
indicating that the lake had a capacity of 18 acre-feet. The board
forwarded the Georges’ (allegedly inaccurate) registration
3
information to the Department of Fish and Wildlife, which
declined to impose conditions. The board then “approved” the
registration even though it knew, or should have known, that the
project did not qualify for a small domestic use registration. 3
The petition alleges a single cause of action for CEQA
violations. Mission Peak contends the registration process is
discretionary, not ministerial, and therefore is not exempt from
CEQA. It seeks a writ of mandate revoking the Georges’ small
domestic use registration and mandating that the board conduct
an environmental review of the project.
DISCUSSION
A.
Where, as here, the trial court has sustained a demurrer,
“ ‘this court determines whether the [petition] states facts
sufficient to constitute a cause of action.’ ” (Save Berkeley’s
Neighborhoods v. Regents of University of California (2020) 51
Cal.App.5th 226, 235 (Save Berkeley’s Neighborhoods).) We
accept as true properly pleaded facts, “ ‘but not contentions,
deductions, or conclusions of fact or law.’ ” (Id. at pp. 234-235.)
We generally review the trial court’s interpretation of
CEQA de novo, keeping in mind the Legislature’s requirement
“ ‘to afford the fullest possible protection to the environment
within the reasonable scope of the statutory language.’ ” (Union
of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7
Cal.5th 1171, 1184 (Union of Medical Marijuana Patients).)
When interpreting a statutory exemption, however, we do not
balance the goal of environmental protection against the
legislative policies underlying the exemption. (Sunset Sky Ranch
Pilots Assn. v. County of Sacramento (2009) 47 Cal.4th 902, 907.)
3 In reciting Mission Peak’s allegations and contentions, we
do not suggest that they accurately describe the program
requirements.
4
The point of a statutory exemption is to avoid the burdens of
environmental review for a class of projects, regardless of
potential environmental damage. (Id. at p. 909.) Finally, we give
“ ‘great weight’ ” to the Secretary for Natural Resources’
interpretation of CEQA in the Guidelines. (Union of Medical
Marijuana Patients, supra, 7 Cal.5th at p. 1184.)
B.
1.
When CEQA applies to a project, it generally requires a
public agency to analyze the project’s environmental impacts and
to mitigate or avoid significant impacts when feasible. (See Save
Berkeley’s Neighborhoods, supra, 51 Cal.App.5th at p. 235;
Guidelines, § 15002.) The question here is whether the statute
applies at all.
CEQA applies only to “discretionary projects proposed to be
carried out or approved by public agencies.” (Pub. Resources
Code, § 21080, subd. (a).) “A project is discretionary when an
agency is required to exercise judgment or deliberation in
deciding whether to approve an activity.” (Protecting Our Water
& Environmental Resources v. County of Stanislaus (2020) 10
Cal.5th 479, 489 (POWER), citing Guidelines, § 15357; see also
Guidelines, § 15002, subd. (i).)
On the flip side, projects that do not require discretion—
ministerial projects—are exempt from CEQA. (See Pub.
Resources Code, § 21080, subd. (b)(1).) Ministerial projects
involve “little or no personal judgment by the public official as to
the wisdom or manner of carrying out the project.” (Guidelines, §
15369.) The public official simply applies statutes, regulations,
or other fixed standards to the facts as presented, like a checklist.
(Ibid.; POWER, supra, 10 Cal.5th at pp. 489, 493.) Conducting
an environmental review would be a meaningless exercise
because the agency has no discretion to reduce a project’s
5
environmental damage by requiring changes. (POWER, supra, at
p. 494; Guidelines, § 15040, subds. (b)-(c).)
2.
Mission Peak asserts that the board’s registration process,
as applied to the Georges’ registration, was discretionary rather
than ministerial. We disagree.
Whether an agency’s action is discretionary or ministerial
turns on the applicable substantive law. (See Guidelines, §
15002, subd. (i)(2); POWER, supra, 10 Cal.5th at p. 493.) The
test is whether the law governing the agency’s decision to
approve the project gives it authority to require changes that
would lessen the project’s environmental effects. (POWER,
supra, at p. 493.) If so, the project is discretionary; if not, the
project is ministerial.
Mission Peak points to no statute that grants the board
authority to place conditions on the Georges’ registration to
lessen its environmental effects. The only conditions the board
may impose are general conditions applicable to all registrations.
(§ 1228.6, subd. (a); see also § 1228.6, subd. (b) [“Immediately
upon registration,” the board “shall provide the registrant with a
written document setting forth the conditions required by this
section.”].) The registration is automatically deemed complete,
and the registrant obtains the right to take and use the specified
amount of water, when the board receives a substantially
compliant registration form along with the registration fee. (§§
1228.3, subd. (b), 1228.4, subd. (a).) The board determines
whether a registration is compliant essentially by applying a
checklist of fixed criteria, such as whether the registration form
contains the required information (§ 1228.3, subd. (a)); whether
the stream is fully appropriated (§ 1228.2, subd. (d)); whether the
Department of Fish and Wildlife has been notified and imposed
conditions (§ 1228.3, subd. (a)(7)); and whether the fee has been
paid. (§ 1228.3, subd. (b).) The registration is effective as of the
6
date of the form, and it remains effective until and unless the
water right is forfeited, abandoned, or revoked. (§§ 1228.3, subd.
(b), 1228.4, subd. (b).) The process is ministerial. 4
Mission Peak makes three arguments. Its primary
argument is that a different agency, the Department of Fish and
Wildlife, has discretion to impose conditions that could
ameliorate the project’s environmental impacts. (See Fish & G.
Code, § 1602.) But the board has no authority to modify or shape
those conditions. The department performs its review before the
board’s registration process is completed. (See Wat. Code, §
1228.3, subd. (a)(7).) It is simply an item on the board’s checklist.
(Ibid.) If the department has set any conditions, the board must
accept them. (Wat. Code, § 1228.6, subd. (a)(2); see Sierra Club v.
County of Sonoma (2017) 11 Cal.App.5th 11, 29-30 (Sierra Club)
[where an agency was required to impose a setback condition as
determined by a wetlands biologist, the agency’s issuance of a
permit was ministerial, even though the biologist had discretion,
because the agency was required to accept the biologist’s
determination].) The department’s discretion cannot be imputed
to the board.
Mission Peak mistakenly relies on POWER, supra, 10
Cal.5th 479. In POWER, our Supreme Court considered a county
ordinance classifying all well drilling permits as ministerial. (Id.,
at pp. 495-496.) The court found that, at least in some cases, the
ordinance gave the county discretion to require changes that
would mitigate environmental impacts; so a blanket classification
was inappropriate. (Id., at pp. 496-498, 500-501; see Guidelines,
4 If the Georges did misrepresent the project, the
Legislature has provided a remedy: the board may revoke a
registration if the registrant knowingly made false statements or
concealed material facts in the registration form. (§ 1228.4, subd.
(b)(2).) Mission Peak does not contest the board’s position that its
authority to pursue enforcement actions is discretionary. (See §
1228.6, subd. (c) [authorizing enforcement actions].)
7
§ 15268, subd. (d).) POWER examined the authority of one
agency and concluded that it had discretion over some projects.
The case does not remotely suggest that an agency lacking
discretionary authority is required to conduct CEQA review
because a different agency had such authority.
Mission Peak’s second argument fares no better. Mission
Peak contends that the project did not satisfy the requirements
for a small domestic use registration because the Georges
misrepresented facts about the size of the pond and other
features. Accordingly, it reasons, the board had discretion, in a
colloquial sense, to deny the project or to tell the Georges that
they must change the project to meet the program requirements.
Mission Peak misunderstands the test. The test is whether the
board had the legal authority to impose environmentally
beneficial changes as conditions on the project. (POWER, supra,
10 Cal.5th at pp. 493-494; Guidelines, § 15002, subd. (i)(2.)
Mission Peak points to no such authority. Instead, it argues the
board misapplied the fixed criteria to the facts and made an
erroneous ministerial decision. CEQA does not regulate
ministerial decisions—full stop. (Pub. Resources Code, § 21080,
subd. (b)(1).)
Third, and finally, Mission Peak offers a somewhat
confusing argument based on a statement in Sierra Club, supra,
11 Cal.App.5th at pp. 23-24. Mission Peak contends that,
assuming the process is ministerial, the question then becomes
whether substantial evidence supports the board’s allegedly
erroneous decision to approve the registration. Sierra Club does
not say that. It simply notes that when a CEQA exemption turns
on an agency’s factual findings, courts review those findings for
substantial evidence. (Ibid.; see, e.g., Apartment Assn. of Greater
Los Angeles v. City of Los Angeles (2001) 90 Cal.App.4th 1162,
1173-1174.) Mission Peak identifies no such findings.
8
Mission Peak does not explain how it could amend its
petition to state a viable cause of action. (See Reeder v.
Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 805;
Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 892.)
The trial court properly sustained the demurrer without leave to
amend.
DISPOSITION
The judgment is affirmed.
9
_______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
NEEDHAM, J.
A162564
10
Alameda County Superior Court Case No. RG19037369. The
Honorable Frank Roesch.
Law Offices of Paul B. Justi, Paul B. Justi, for Plaintiffs and
Appellants.
Rob Bonta, Attorney General, Robert W. Byrne, Senior Assistant
Attorney General, Myung J. Park, Supervising Deputy Attorney
General, and Kathryn M. Megli, Deputy Attorney General, for
Defendant and Respondent.
Colantuono, Highsmith & Whatley, PC, Michael G. Colantuono,
Levin and Carmen A. Brock, for Real Parties in Interest and
Respondents.
11