United States: Court Of Appeal Upholds Issuance Of Erosion-Control Permit As Ministerial And Exempt From CEQA

Paula Kirlin is a Partner for Holland & Knight's San Francisco office


  • California's First District Court of Appeal has held that the issuance of an erosion-control permit by the Agricultural Commissioner of Sonoma County was a ministerial act not subject to review under the California Environmental Quality Act (CEQA).
  • The opinion in Sierra Club et al. v. County of Sonoma et al. provides helpful guidance on the distinction between ministerial acts exempt from CEQA and discretionary acts subject to CEQA.
  • The court used the "functional test" to determine whether ordinance provisions applicable to the permit were ministerial or discretionary. Under the "functional test," CEQA compliance is required where discretion provides a local agency with the ability and authority to mitigate environmental damage.

In Sierra Club et al. v. County of Sonoma et al. (2017 WL 1422533), the California First District Court of Appeal held that the issuance of an erosion-control permit by the Agricultural Commissioner of Sonoma County (Commissioner) was a ministerial act not subject to review under the California Environmental Quality Act (CEQA). The opinion provides helpful guidance on the distinction between ministerial acts exempt from CEQA and discretionary acts subject to CEQA. The case highlights that the distinction between "ministerial" and "discretionary" actions under CEQA depends on: 1) whether the decision-maker has authority to mitigate environmental impacts (the "functional test") and 2) whether applicable regulatory provisions confer discretion.

Case Background

The case involved issuance of an erosion-control permit under Sonoma County's Grading, Drainage, and Vineyard and Orchard Site Development Ordinance (VESCO Ordinance) to convert 108 acres of rangeland into a vineyard. Under the VESCO Ordinance, growers planting or replanting vineyards and orchards must meet certain standards and comply with best management practices (BMPs). In this case, the County's review of the permit application involved a 69-item checklist, where the reviewer indicated whether the project "met standards" or noted that the item did not apply. After issuing the permit, the Commissioner issued a notice that the permit was ministerial and exempt from CEQA, and the challengers filed a CEQA lawsuit. The court rejected the challengers' argument that issuance of the permit was discretionary because many provisions of the ordinance are broad and vague, therefore allowing the Commissioner to exercise discretion in granting the permit in this case. The Court of Appeal upheld the trial court's decision that the Commissioner's issuance of the permit was ministerial and exempt from CEQA.

Functional Test for Ministerial vs. Discretionary Action

The decision considered a long line of cases holding that a local agency's action is discretionary when it requires exercise of subjective judgment and is ministerial when it is taken under regulations that allow for little or no exercise of such judgment. The court emphasized the "functional test" for determining whether an action is ministerial or discretionary. Specifically, CEQA compliance is required where discretion provides a local agency with the ability and authority to mitigate environmental damage.

Ordinance Provisions Applicable to This Permit Did Not Confer Discretion

The court then applied the "functional test" to the County's VESCO Ordinance. Although the VESCO Ordinance states that issuance of erosion-control permits is a ministerial action, the court did not rely on this categorical declaration. Rather, the court applied the functional test to determine whether the VESCO Ordinance provisions applicable to the erosion-control permit at issue granted discretion. Provisions of the VESCO Ordinance that did not apply to this permit, either because they were facially inapplicable or because they were expressly excluded from consideration, were irrelevant to the court's decision.

Applying the "functional test" for whether the Commissioner had authority to mitigate environmental impacts, the court concluded that three key provisions of the VESCO Ordinance applicable to the project did not confer discretion.

  • The first provision required a 50-foot setback for wetlands unless a wetlands biologist recommended a different setback. The court reasoned that the provision did not confer discretion because the Commissioner was required to allow the 35-foot setback recommended by the project biologist, absent some reason to reject the biologist's report.
  • The second provision required diversion of storm water to the nearest practicable disposal location. The court concluded that challengers failed to demonstrate that other means of diversion were available and, moreover, failed to show that the provision allowed the Commissioner to mitigate potential environmental impacts.
  • The third provision included BMPs requiring incorporation of natural drainage features "whenever possible." Again, the court concluded that challengers failed to demonstrate that alternative drainage features were available and, moreover, failed to show that the provision allowed the Commissioner to mitigate potential environmental impacts.

The court also evaluated other aspects of the permit process and concluded they did not confer discretion on the Commissioner.

  • Although the Commissioner required several mitigation measures that were voluntarily incorporated into the project, the VESCO Ordinance did not require these measures and the Commissioner had no authority to require them. The court held that voluntary acceptance of these mitigation measures did not establish that the Commissioner's action was discretionary.
  • While the Commissioner requested corrections and clarifications of the permit application, the court held that an agency's request for more information does not establish that the applicant must provide that information before it can compel issuance of the permit.
  • In a footnote, the court noted that VESCO ordinance provisions permitting the Commissioner to conduct post-application inspections and to require professional certifications to ensure that work is performed in accordance with approved plans have nothing to do with whether the issuance of the permit is a discretionary action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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