Why should I care about zoning clearance appeals?

Today, as a result of supporters of CFROG and our partners, a bad proposal was pulled off the meeting agenda by the Ventura County Board of Supervisors. 

But what does it all mean? Ministerial, Discretionary, zoning Clearance, CEQA, legacy permits, Antiquated CUP...it can make your head hurt. 

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Land use permitting can be confusing to the general public, and the terms are wonky. Here is a "primer" of sorts about the issue as it relates to the work CFROG does in Ventura County. 


What is a Conditional Use Permit?

All oil and gas operations require the operator to have a land use permit - called a conditional use permit (CUP) - from the local land use agency. Most oil and gas operations in Ventura County are located within the unincorporated area, so Ventura County Planning is the land use agency that issues and oversees those oil and gas permits.

The are called "conditional" because they have "conditions of approval" that the operator must comply with and the county must enforce. These conditions include restrictions on truck trips, hours of operation, how many wells can be drilled (and where) etc. and are intended to mitigate impacts. 

When an operator wants to change their existing CUP, they must apply for a modification - that includes adding more wells.

Generally a CUP has an expiration date. For oil and gas, right now CUP's typically cover around 30 years. Usually an oil company will choose to modify a permit, if they want to add wells, at the same time they are asking to renew the CUP.

If operators fail to comply with the conditions of their CUP there are consequences, including revocation of the permit - although we have yet to see that occur with an oil and gas permit, even with violations.

 

What is a legacy or antiquated CUP? 

Some CUP's were granted decades ago - in the 50's and 60's - prior to the passage of California Environmental Quality Act (CEQA). Ventura County calls these permits "antiquated" or "legacy" CUP's. They have no expiration dates, and no limit to the number of wells that can be added. Some of them have very few conditions. 

Ventura County takes the position that oil companies operating under one of these legacy CUP's have "vested rights." Essentially, this becomes a right to pollute. Because even as new processes are used (like fracking, cyclic steam, water flooding) with current technology that did not exist when the permit was granted, and wells are added - the county says "our hands are tied" and no environmental review is conducted when new wells are added (see zoning clearances below). 

Wait, what is CEQA? This body of state laws governs how development projects are reviewed for environmental impacts. At the heart of CEQA is the public's right to know potential impacts of a proposed project, and be given an opportunity to weigh in.

Discretionary vs. Ministerial -

A discretionary project in land use is one that requires discretion. The planner must review the project and make a determination about whether that project should be allowed at that location. This review includes determining the level of environmental study required, identifying potential impacts to air, water, public health and the environment, and determining what if any appropriate mitigations (or conditions) should be part of the permit. 

Discretionary projects are subject to review under the California Environmental Quality Act (CEQA). 

Both the granting of a CUP and later modifications are automatically discretionary, and have a 10-day appeal period. State law requires the public be allowed to appeal discretionary projects. This gives the county two more chances (after initial approval) to get it right, prior to legal action being taken. 

In contrast, a ministerial project is something that requires no discretion, or really review of any kind. CEQA says a ministerial action requires no "wisdom" to determine if the project should be allowed and lists dog registrations and marriage licenses as ministerial actions. The form is filled out completely, the fee is paid, it is appropriately "rubber stamped" and thus approved. 

Other typically ministerial projects include backyard gazebos, and replacing a barn burned down in a wild fire. 

CEQA tells us that building permits are "presumed" to be ministerial (building a house on a residential zoned lot), but if the building is unique in size, scope, location etc. aspects may be found to be discretionary, and therefore the WHOLE project is discretionary. 

Ministerial projects/actions are not subject to review under CEQA.

What is important to understand is that Ventura County has the ability, and in deed the duty to put the appropriate type of project in the appropriate Discretionary or Ministerial "box" - oil and gas expansions MUST be in the discretionary box, according to state law.

Typically ministerial actions/projects once granted/approved cannot be appealed. The only recourse is 1. Complaint or 2. Legal Action.

What is a zoning clearance? 

A zoning clearance is a type of ministerial action that is appropriate when the land use has been properly reviewed for impacts already, and the zoning clearance it to "use inaugurate" - meaning the operator is saying: We have met all conditions of our permit and are now ready to drill. The county verifies all conditions are met, and the zoning clearance is approved. It is ministerial, because all the impact review is already done - in compliance with all applicable laws - and the "boxes are checked" so to speak. 

Zoning clearances have no public notice, no public hearing and currently a 10-day appeal window following approval when the public can object by appealing the approval. The $1000 appeal fee will deter most frivolous appeals. 

Is a zoning clearance ever appropriate for drilling oil and gas wells? YES - when the project has been reviewed as a discretionary project under CEQA. 

For example: The video below is about a project where this number of wells (79) has NEVER been subject to environmental review. How will those 79 wells and the oil tanker trucks, and pipelines and infrastructure impact the area? How will that many cyclic steam wells impact the aquifers and caprock? Is subsidence an issue? These are just a few of the questions that need to be considered during a DISCRETIONARY review of the project, and then IF it were approved after a full and proper CEQA compliant review, necessary mitigations are applied etc. then the county could process zoning clearances when the operator is ready to drill the wells. 

Here is a project the county is currently processing as a ministerial zoning clearance: 

RECAP:

  • CUP permits and modifications are discretionary actions that are subject to impact (health, environmental) review under CEQA - 
  • Zoning Clearances are ministerial - basically a rubber stamp approval. No public notice, no public hearing, no CEQA review.
  • Oil and gas expansions on old "legacy" permits are currently processed as a Zoning Clearance in Ventura County, and this violates CEQA. 
  • Oil and gas expansion projects are discretionary - every time. And should never be processed as a Zoning Clearance. 

 

What is happening now with two supervisors wanting to ban appeals of zoning clearances? 

Ventura County Supervisors Long & Foy proposed banning the public from appealing zoning clearances - all of them. 

CFROG pointed out that this would apply to a project for 79 new tar sands well on the Oxnard Plain (see video above) - and taking away the public's ability to appeal this project is an attack on public participation and flies in the face of CEQA. 

Oil and gas expansions should always be processed as a discretionary permit modification, subject to CEQA - rather than a ministerial zoning clearance - because the public has a #RightToKnow all impacts from a proposed project. Period. 

 


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