1

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

MISSION PEAK CONSERVANCY et 

al.,

Plaintiffs and Appellants,

v.

STATE WATER RESOURCES 

CONTROL BOARD,

Defendant and Respondent;

CHRISTOPHER GEORGE et al., 

Real Parties in Interest and 

Respondents. 

 A162564

(Alameda County Super. Ct. No. 

RG19037369)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

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 
2

SIMONS, J.

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_____ _______________, Acting P.J.
3

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. 
1

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,

v.

STATE WATER RESOURCES 

CONTROL BOARD,

Defendant and Respondent;

CHRISTOPHER GEORGE et al.,

Real Parties in Interest and 

Respondents.

 A162564

 (Alameda County

 Super. Ct. No. RG19037369)

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.
2

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, §§ 1228-1229.11) 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. 
3

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 
4

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.
5

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
6

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 
7

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].) 
8

§ 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. 
9

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.
10

_______________________

BURNS, J. 

We concur:

____________________________

SIMONS, ACTING P.J.

____________________________

NEEDHAM, J.

A162564
11

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.