Filed 8/14/18
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION FIVE




CENTER FOR BIOLOGICAL
DIVERSITY,
        Plaintiff and Appellant,
                                                 A149896
   v.
DEPARTMENT OF CONSERVATION,                      (Alameda County
                                                 Super. Ct. No. RG15769302)
        Defendant and Respondent;
AERA ENERGY LLC et al.,
        Interveners and Respondents.


        The Center for Biological Diversity (Appellant) sought a writ of mandate directing
the California Department of Conservation, Division of Oil, Gas, and Geothermal
Resources (the Department) to order the immediate closure of oil and gas wells injecting
fluids into certain underground aquifers. Appellant argued the Department had a
mandatory duty to do so under the federal Safe Drinking Water Act (SDWA or the Act;
42 U.S.C. § 330f et seq.), federal regulations promulgated pursuant to the Act, and a
memorandum of agreement executed by the Department setting forth its responsibilities
under the Act. The trial court denied the petition, and we affirm.
                                    BACKGROUND
The Safe Drinking Water Act
        “The SDWA establishes a federally mandated, state-administered regulatory
scheme for the protection of drinking water.” (U.S. v. King (9th Cir. 2011) 660 F.3d


                                             1
1071, 1077 (King).) The Act includes provisions to protect current or potential
underground drinking water sources. (42 U.S.C. §§ 300h to 300h-8.) To this end, the
Act directs the establishment of statewide programs to control underground injections
(underground injection control programs, or UIC programs).1 (42 U.S.C. § 300h-1.) All
such programs “shall prohibit . . . any underground injection in such State which is not
authorized by a permit,” and “shall require” permit applicants to show “that the
underground injection will not endanger drinking water sources . . . .” (42 U.S.C.
§§ 300h, subd. (b)(1)(A)-(B), 300h-4, subd. (a).)2
       Regulations promulgated pursuant to the Act by the United States Environmental
Protection Agency (EPA) provide EPA “shall protect . . . all aquifers and parts of
aquifers[3] which meet the definition of ‘underground source of drinking water’ . . . ,
except to the extent there is an applicable aquifer exemption [and other exceptions not
relevant here].” (40 C.F.R. § 144.7(a).) The regulations define “underground source of
drinking water” broadly as an aquifer which either supplies a public water system or is
large enough and pure enough to potentially supply a public water system in the future,
and which has not been exempted by EPA. (40 C.F.R. § 144.3.)4 EPA may exempt an
aquifer that otherwise meets the definition of an underground source of drinking water if

1
  “ ‘Underground injection’ ” is defined as “the subsurface emplacement of fluids by well
injection.” (42 U.S.C. § 300h, subd. (d)(1).) As relevant here, such fluids include those
brought to the surface in connection with oil or gas production and those used for
enhanced oil or gas recovery. (40 C.F.R. § 146.5(b).)
2
 A state program may also “authorize underground injection by rule,” instead of by
permit. (42 U.S.C. § 300h, subd. (b)(1)(A).)
3
  “Aquifer means a geological ‘formation,’ group of formations, or part of a formation
that is capable of yielding a significant amount of water to a well or spring.” (40 C.F.R. §
144.3.)
4
  “Underground source of drinking water (USDW) means an aquifer or its portion: [¶]
(a)(1) Which supplies any public water system; or [¶] (2) Which contains a sufficient
quantity of ground water to supply a public water system; and [¶] (i) Currently supplies
drinking water for human consumption; or [¶] (ii) Contains fewer than 10,000 mg/l total
dissolved solids; and [¶] (b) Which is not an exempted aquifer.” (40 C.F.R. § 144.3.)


                                             2
it determines the aquifer “cannot now and will not in the future serve as a source of
drinking water,” for example, if its location or contamination makes such use impractical.
(40 C.F.R. § 146.4(b).)5 We will refer to aquifers which meet the definition of
underground source of drinking water and, in accordance with that definition, have not
been designated as exempt by EPA, as “nonexempt aquifers.”
       The underground injection control program in a given state may be administered
by EPA, or the state may apply to EPA for primary enforcement responsibility for the
program, referred to as primacy. (42 U.S.C. § 300h-1, subds. (b) & (c).) A state may
obtain primacy either by showing its underground injection control program meets
requirements set forth in EPA’s regulations (42 U.S.C. § 300h-1, subd. (b)(1)(A)(i)) or,
with respect to injections associated with oil and gas production, by demonstrating its
program meets certain statutory requirements and will be effective in “prevent[ing]
underground injection which endangers drinking water sources” (42 U.S.C. § 300h-4,
subd. (a)). If a state has been granted primacy, EPA retains the authority to revise the
program or revoke primacy. (40 C.F.R. §§ 145.32-145.34.) EPA also retains the sole
authority to approve aquifer exemptions. (40 C.F.R. § 144.7(b)(2)-(3).)
California’s Underground Injection Control Program
       In 1983, EPA granted California primacy over underground injections associated
with oil and gas production, pursuant to the primacy provision requiring the state to prove

5
  An aquifer may be exempted if “(a) It does not currently serve as a source of drinking
water; and [¶] (b) It cannot now and will not in the future serve as a source of drinking
water because: [¶] (1) It is mineral, hydrocarbon or geothermal energy producing, or can
be demonstrated by a permit applicant as part of a permit application for a Class II or III
operation to contain minerals or hydrocarbons that considering their quantity and location
are expected to be commercially producible. [¶] (2) It is situated at a depth or location
which makes recovery of water for drinking water purposes economically or
technologically impractical; [¶] (3) It is so contaminated that it would be economically or
technologically impractical to render that water fit for human consumption; or [¶] (4) It is
located over a Class III well mining area subject to subsidence or catastrophic collapse;
or [¶] (c) The total dissolved solids content of the ground water is more than 3,000 and
less than 10,000 mg/l and it is not reasonably expected to supply a public water system.”
(40 C.F.R. § 146.4.)


                                             3
its program will be effective in preventing injections endangering drinking water sources.
(48 Fed.Reg. 6336-01 (Feb. 11, 1983) [primacy approved pursuant to § 1425 of the Act];
Pub.L. No. 96-502, § 2(a) (Dec. 5, 1980) 94 Stat. 2737 [§ 1425 of the Act codified at 42
U.S.C. § 300h-4].) As part of this process, in 1982 EPA and the Department executed a
memorandum of agreement (MOA) establishing the respective responsibilities of the two
agencies in the administration of California’s underground injection control program.6
Under the MOA, it is the Department’s responsibility to approve or deny permits for
underground injections. The MOA also memorializes EPA’s exemption of multiple
California aquifers, and provides: “Aquifer exemptions made subsequent to the effective
date of this Agreement shall not be effective until approved by [EPA] in writing. [¶] After
the effective date of this Agreement, an aquifer exemption must be in effect prior to or
concurrent with the issuance of a Class II permit for injection wells into that aquifer.”7
       Between 2011 and 2014, the Department became aware that it had issued permits
for potentially thousands of oil and gas wells injecting into nonexempt aquifers or
nonexempt portions of aquifers. Two unrelated causes led to this massive error. First,
apparently due to poor oversight by the Department, regional offices failed to identify the
correct boundaries of exempt aquifers. For example, regional offices looked only at
contour maps without also considering depth, and therefore permitted injections above or
below an exempt aquifer; or issued permits based on a list of exempt aquifers without
realizing that only a portion of the relevant aquifer was exempt. Second, the Department
became aware that there were two nearly identical versions of the MOA: in one version,
the Department’s request for exemption of eleven aquifers (hereafter, the Eleven
Aquifers) was approved; in the other, it was denied. After the state was granted primacy,
EPA and the Department treated the former as the operative MOA and the Department
issued permits authorizing injections into the Eleven Aquifers. The latter version of the
6
 At the time, the Department was called the Division of Oil and Gas. (See Stats. 1992,
ch. 999, § 2 [changing name to Division of Oil, Gas, and Geothermal Resources].)
7
 The MOA incorporates the definition of Class II wells set forth in EPA’s regulations as
wells associated with oil and gas production. (See 40 C.F.R. § 146.5(b).)


                                              4
MOA was rediscovered by Department staff in 2011. Upon this discovery, the
Department determined there was little evidence justifying exemption of the Eleven
Aquifers, and any exemption may have been procedurally improper. Although the
exemption status of the Eleven Aquifers was ambiguous during the relevant time, for
convenience we will include them in the term “nonexempt aquifers.”
         The Department notified EPA and the two agencies worked together to develop a
plan to remedy the inappropriately-issued permits, as documented in correspondence
between the agencies.8 The basic structure of the plan, as finalized in March 2015, was
as follows. The Department would review the thousands of injection wells which
potentially injected into nonexempt aquifers, prioritizing those which posed the greatest
risk to drinking water sources. During the review process, if the Department determined
an injection well potentially impacted water supply wells, it would order that injection
well to immediately cease operation.9 For many of the remaining wells, there was reason
to think the aquifers met the criteria for exemption. The Department would allow
injections to continue for a limited time, during which time the operator could request an
exemption for that aquifer.10 If, by the expiration of the allotted time, EPA had not
granted an exemption, the injections must cease. The amount of time in which to obtain
an aquifer exemption varied depending on the type of aquifer. For injections into
aquifers with high quality water, the deadline was October 2015. For injections into the
Eleven Aquifers, the deadline was December 2016. For injections into aquifers with

8
  The State Water Resources Control Board (Water Board) worked in conjunction with
the Department on the development and implementation of this plan.
9
    The Department began issuing cessation orders in 2014.
10
  The exemption process begins when the operator submits a lengthy, technical
application to the Department. The Department and the Water Board determine whether
the application merits consideration by EPA; if so, a public comment period and hearing
must be provided. (Pub. Resources Code, § 3131, subd. (b).) After considering the
public comments, if the Department and Water Board still consider the application
meritorious, the Department submits it to EPA. (Id., subd. (c).) EPA then conducts its
own review. (40 C.F.R. § 144.7(b).)


                                             5
relatively poor quality water or with oil-containing water (which “could only be fit for
beneficial use following extensive and expensive purification”), the deadline was
February 2017.11 The Department could issue new permits for injections into the third
category of aquifer, under certain conditions, but any such permits would be subject to
the February 2017 deadline. In a March 2015 letter, EPA approved this approach,
referring to it as the “corrective action plan.” As the corrective action plan was
implemented, EPA occasionally approved modifications.
       In April 2015, the Department issued emergency regulations codifying the
corrective action plan’s schedule. The emergency regulations were replaced by
permanent regulations containing the same schedule. (Cal. Code Regs., tit. 14,
§§ 1760.1, 1779.1.)
Trial Court Proceedings
       In May 2015, Appellant filed the underlying action seeking a writ of mandate
(Code Civ. Proc., § 1085) and declaratory relief based on the Department’s failure to
order the immediate closure of wells injecting into nonexempt aquifers.12 The trial court
granted motions to intervene by certain energy companies and industry groups
(collectively, Intervenors).13 In September 2016, the trial court issued a statement of
decision denying Appellant’s claims and entered judgment accordingly.




11
   The Department subsequently determined approximately 175 wells were subject to the
first two deadlines and more than 5,500 were subject to the third deadline.
12
  Appellant also challenged the emergency regulations (which had not yet been replaced
by permanent regulations). Appellant does not pursue this challenge on appeal. The
Sierra Club was an additional plaintiff below but is not a party to this appeal.
13
  We refer to Intervenors and the Department collectively as Respondents. One of the
energy companies has been dismissed as a party to this appeal.


                                             6
                                        DISCUSSION
I. Mootness
       Under the corrective action plan, all injections into nonexempt aquifers were to
cease by February 2017. Such an event would render this appeal moot. (See City of
Cerritos v. State of California (2015) 239 Cal.App.4th 1020, 1031 [“An appeal from an
order denying an injunction may be dismissed as moot if the act sought to be enjoined is
performed while the appeal is pending.”].)14 Appellant and the Department filed motions
asking us to take additional documentary evidence of postjudgment correspondence
between the Department and EPA. (See Code Civ. Proc., § 909; Cal. Rules of Court, rule
8.252(c)(3).) This correspondence demonstrates that injections into nonexempt aquifers
have continued past the February 2017 deadline, if the Department had determined by
that date that the nonexempt aquifer met the criteria for exemption, but the exemption
process (see fn. 10, ante) was still ongoing.
       “It has long been the general rule and understanding that ‘an appeal reviews the
correctness of a judgment as of the time of its rendition, upon a record of matters which
were before the trial court for its consideration.’ [Citation.] This rule reflects an
‘essential distinction between the trial and the appellate court . . . that it is the province of
the trial court to decide questions of fact and of the appellate court to decide questions of
law . . . .’ [Citation.] . . . ‘Although appellate courts are authorized to make findings of
fact on appeal by Code of Civil Procedure section 909 and [former] rule 23 of the
California Rules of Court, the authority should be exercised sparingly. [Citation.]
Absent exceptional circumstances, no such findings should be made.” (In re Zeth S.
(2003) 31 Cal.4th 396, 405.) We conclude that resolving the mootness question
constitutes exceptional circumstances warranting our taking the additional documentary




14
  Although no party argues the appeal is moot, “the court may examine a suggestion of
mootness on its own motion.” (Building a Better Redondo, Inc. v. City of Redondo Beach
(2012) 203 Cal.App.4th 852, 865.)


                                                7
evidence for this limited purpose.15 (See Speirs v. Bluefire Ethanol Fuels, Inc. (2015)
243 Cal.App.4th 969, 980 [“We grant the parties’ respective motions to admit new
documentary evidence on appeal relevant to the issue of whether [the appellant]’s appeal
is moot.”].) Appellant also relies on this additional evidence in arguing the judgment
should be reversed. We find no extraordinary circumstances warranting our
consideration of the evidence for such purposes, and we thus do not consider it in
determining the merits of the appeal.
       Because the additional evidence demonstrates injections into nonexempt aquifers
continued past the February 2017 deadline, we conclude the appeal is not moot. We now
turn to the merits of Appellant’s claims.
II. Legal Standard
       A writ of mandate may issue “to compel the performance of an act which the law
specially enjoins, as a duty resulting from an office, trust, or station . . . .” (Code Civ.
Proc., § 1085, subd. (a).) “Generally, mandamus is available to compel a public agency’s
performance or to correct an agency’s abuse of discretion when the action being
compelled or corrected is ministerial. [Citation.] ‘A ministerial act is an act that a public
officer is required to perform in a prescribed manner in obedience to the mandate of legal
authority and without regard to his [or her] own judgment or opinion concerning such
act’s propriety or impropriety, when a given state of facts exists. Discretion . . . is the
power conferred on public functionaries to act officially according to the dictates of their
own judgment. [Citation.]’ [Citations.] Mandamus does not lie to compel a public
agency to exercise discretionary powers in a particular manner, only to compel it to
exercise its discretion in some manner.” (AIDS Healthcare Foundation v. Los Angeles

15
   The additional documentary evidence is a January 17, 2017 letter from the Department
and the Water Board to EPA; a January 25, 2017 letter from EPA to the Department and
the Water Board; a March 7, 2017 letter from the Department to EPA; a March 16, 2017
letter from the Department and the Water Board to EPA, and a May 10, 2017 letter from
the Department and the Water Board to EPA. We deny the parties’ alternative requests
that we take judicial notice of the same documents. We deny as irrelevant the parties’
requests that we take judicial notice of filings in a separate litigation.


                                               8
County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700–701 (AIDS
Healthcare).)
       “We independently review the petition to determine whether [Appellant] has
stated a viable cause of action for mandamus relief.” (AIDS Healthcare, supra, 197
Cal.App.4th at p. 700.)
III. The Safe Drinking Water Act
       Appellant contends the Act and its regulations impose a mandatory duty on the
Department to immediately cease the permitted injections into nonexempt aquifers. We
disagree.
       The Act provides that all state programs to administer its provisions “shall require
. . . that the applicant for the permit to inject must satisfy the State that the underground
injection will not endanger drinking water sources . . . .” (42 U.S.C. §§ 300h,
subd. (b)(1)(B), 300h-4, subd. (a).) The Act further provides: “Underground injection
endangers drinking water sources if such injection may result in the presence in
underground water which supplies or can reasonably be expected to supply any public
water system of any contaminant, and if the presence of such contaminant may result in
such system’s not complying with any national primary drinking water regulation or may
otherwise adversely affect the health of persons.” (42 U.S.C. § 300h, subd. (d)(2).)
Regulations promulgated pursuant to the Act provide EPA “shall protect” all nonexempt
aquifers. (40 C.F.R. 144.7(a).) The parties dispute whether these statutory and
regulatory provisions impose present duties on the Department to ensure permitted
injections “will not endanger drinking water sources” and to “protect” nonexempt
aquifers. We will assume, without deciding, that they do. The question is whether such
duties require the Department to order the immediate cessation of injections into
nonexempt aquifers.
       “While a writ of mandate may issue to compel compliance with a ministerial
duty—an act the law specifically requires—it may not issue to compel an agency to
perform that legal duty in a particular manner, or control its exercise of discretion by
forcing it to meet its legal obligations in a specific way.” (Marquez v. State Dept. of


                                               9
Health Care Services (2015) 240 Cal.App.4th 87, 118–119 (Marquez).) “ ‘Even if
mandatory language appears in [a] statute creating a duty, the duty is discretionary if the
[public entity] must exercise significant discretion to perform the duty.’ ” (AIDS
Healthcare, supra, 197 Cal.App.4th at p. 701; see also State Dept. of State Hospitals v.
Superior Court (2015) 61 Cal.4th 339, 348 [“[T]o establish a mandatory duty [for
purposes of Gov. Code, § 815.6] . . . ‘[i]t is not enough . . . that the public entity or officer
have been under an obligation to perform a function if the function itself involves the
exercise of discretion.’ ”].)
       AIDS Healthcare is instructive. The petitioners sought a writ of mandate directing
the Los Angeles health officer to require performers in adult films use condoms and
obtain hepatitis B vaccinations, to curb the spread of sexually transmitted diseases.
(AIDS Healthcare, supra, 197 Cal.App.4th at p. 696.) The petitioners relied on statutes
providing a health officer aware of communicable diseases “ ‘shall take measures as may
be necessary to prevent the spread of the disease or occurrence of additional cases’ ” and,
with respect to sexually transmitted diseases, shall take “ ‘all measures reasonably
necessary to prevent the transmission of infection.’ ” (Id. at p. 701.) The Court of
Appeal, considering the statutory language and statutory scheme, concluded these
provisions “impose a mandatory duty on a health officer to take measures to prevent the
spread of contagious and communicable diseases,” but “leav[e] the course of action to the
health officer’s discretion.” (Id. at p. 702.) Because “[t]he decision on what steps to take
to control the spread of sexually transmitted diseases is entrusted to the [public agency],”
the petitioners were not entitled to a writ mandating their preferred steps. (Id. at p. 704.)
       Similarly, in Marquez, the petitioners sought a writ of mandate to compel the state
agency administering California’s Medicaid program, Medi-Cal, to provide medical
services to beneficiaries who were mistakenly “coded” in the agency’s database as having
other health insurance coverage and denied Medi-Cal services on that ground. (Marquez,
supra, 240 Cal.App.4th at pp. 92, 117.) The petitioners relied in part on a statute
requiring “Medi–Cal’s ‘health care benefits and services’ ‘shall be provided’ to eligible
state residents to the extent those services and benefits are not ‘provided nor available


                                               10
under other contractual or legal entitlements of the person.’ ” (Id. at pp. 117–118.)
Marquez explained that the agency had existing procedures to correct code errors, after
which the beneficiary could receive Medi-Cal services. The petitioners’ “arguments,
therefore, do not show that [the agency] fails to comply with [the statute], but merely
debate how [the agency] should comply.” (Id. at p. 118.) Because mandamus “may not
issue to compel an agency to perform [a] legal duty in a particular manner, or control its
exercise of discretion by forcing it to meet its legal obligations in a specific way,” the
denial of the writ was proper. (Id. at pp. 118–119.)
       Like the statutes at issue in AIDS Healthcare and Marquez, the Act and
regulations oblige the Department to “protect” nonexempt aquifers and ensure injections
do “not endanger” drinking water sources, but do not mandate a specific course of action
to carry out these obligations. In contrast, for example, the Act flatly requires states to
“prohibit . . . any underground injection in such State which is not authorized by a permit
issued by the State . . . .” (42 U.S.C. § 300h, subd. (b)(1)(A).) The lack of any similar
specificity with respect to injections into nonexempt aquifers suggests an intent to
“leav[e] the course of action to the . . . discretion” of the Department. (AIDS Healthcare,
supra, 197 Cal.App.4th at p. 702.)16 We conclude that, while the Department must
exercise its discretion to protect nonexempt aquifers, it has the discretion to decide how
best to do so.
       It may be that, in the ordinary course of events, the only way to protect nonexempt
aquifers is to prohibit injections into them. (See AIDS Healthcare, supra, 197
Cal.App.4th at p. 703 [“there is a recognized exception where if the facts lead to only one


16
  The Act defines endangering drinking water sources as injections into “underground
water which supplies or can reasonably be expected to supply any public water system”
and which may “adversely affect the health of persons.” (42 U.S.C. § 300h, subd. (d)(2).)
As noted above, the Department concluded many of the nonexempt aquifers likely met
the criteria for exemption; they thus could not reasonably be expected to supply a public
water system. Although Appellant argues generally that injections caused harmful
contamination of nonexempt aquifers, Appellant does not contend any actual or
reasonably potential drinking water sources were harmed.


                                              11
choice, the court may compel the agency or official to make that choice”].) This case,
however, presents extraordinary facts—to wit, the belated discovery of thousands of
permitted wells potentially injecting into nonexempt aquifers.
       The Department’s determination of how to best protect nonexempt aquifers in this
extraordinary circumstance was a fact-based, risk-benefit analysis, requiring it to balance
competing interests, and conducted in consultation with EPA—in other words, a
quintessentially discretionary decision. The Department considered the option of
ordering the immediate cessation of all such injections, as explained in its response to
public comments urging it to do so, made in connection with the proposed (and
subsequently enacted) permanent regulations. The Department first noted this approach
“could only be effective if enforced in a vastly over-inclusive manner” because
“determining whether any given well is injecting into a [nonexempt aquifer] requires
substantial and careful analysis.” Further, immediately ceasing all injections into
potentially nonexempt aquifers would be “logistically difficult, as well as an inefficient
use of agency resources” and, because due process entitles affected companies the right
to appeal cessation orders, “would undoubtedly invite widespread, vigorous opposition,
thereby thwarting the intended immediacy and needlessly jeopardizing the entire
objective.”
       The Department further reasoned that, in contrast, the corrective action plan would
enable it “to focus its resources on identifying and halting those injection activities
posing the greatest risk to aquifers with the best potential to serve as sources of drinking
water, while also providing fair notice to the regulated industry so as to incentivize
cooperation and speed compliance.” The Department concluded: “the compliance
schedule set forth in the proposed regulations, operating in conjunction with ongoing
interagency review and targeted exercise of administrative enforcement tools, is the most
efficient, balanced, and demonstrably effective mechanism by which to achieve the
relevant federal and state objectives for protection of groundwater resources.” The
Department thus concluded the corrective action plan was the best means to protect
drinking water sources. Appellant’s disagreement with this assessment “do[es] not show


                                              12
that [the Department] fails to comply with [the Act and its regulations], but merely
debate[s] how [the Department] should comply.” (Marquez, supra, 240 Cal.App.4th at
p. 118.) The Act and regulations leave this determination to the Department.
         California Hospital Assn. v. Maxwell-Jolly (2010) 188 Cal.App.4th 559, relied on
by Appellant, is distinguishable. The relevant statute in that case required the state
agency to provide “ ‘ “such methods and procedures” ’ ” in setting Medi-Cal provider
reimbursement rates “ ‘ “to assure that payments are consistent with efficiency, economy,
and quality of care and are sufficient to enlist enough providers so that care and services
are available under the [Medi-Cal] plan at least to the extent that such care and services
are available to the general population in the geographic area . . . .” ’ ” (Id. at p. 565.)
After the state agency changed its reimbursement rate formula in order to reduce rates, it
“candidly admit[ted] that no . . . studies were performed” considering the impact of this
change “on the statutory factors of efficiency, economy, quality, and access to care . . . .”
(Id. at pp. 566, 573.) The Court of Appeal concluded that, while the agency “ ‘need not
follow a rigid formula’ . . . , it must rely on something other than purely budgetary
reasons.” (Id. at p. 577.) The agency thus had discretion in deciding how to fulfill its
statutory duty to consider certain factors, but it failed to do so in any fashion. Here, in
contrast, the Department took action to fulfill its duties to protect underground drinking
water, did exercise its discretion, and selected what it considered to be the best method to
do so.
         We do not dispute Appellant’s contention that the Act is preventative in nature,
and that injections may be prohibited under the Act absent proof that they will harmfully
contaminate the aquifer. (See King, supra, 660 F.3d at p. 1079 [“The injection provisions
of the SDWA are ‘preventive.’ [Citation.] Congress concluded that the most effective
way to ensure clean drinking water was to prevent pollution of underground aquifers in
the first place, rather than to clean up polluted aquifers after the fact. . . . [I]n the absence
of a showing by the applicant that a proposed injection is safe, the SDWA presumes that
the injection will endanger an [underground source of drinking water].”].) These
principles inform the Department’s performance of its duty to protect drinking water


                                               13
sources. But they do not, in this unusual case, impose a mandatory duty to immediately
cease all injections into nonexempt aquifers, nor do they render the Department’s
considered refusal to do so an abuse of discretion.
       We note that EPA approved the corrective action plan. Had EPA believed the Act
and its regulations required the Department to instead order the immediate cessation of
all injections into nonexempt aquifers, it presumably would have directed the Department
to do so. EPA’s construction of the Act and its regulations thus supports our conclusion.
(See Association of California Ins. v. Jones (2017) 2 Cal.5th 376, 390 [“In exercising our
ultimate responsibility to construe the statutory scheme, . . . we ‘ “ ‘accord[] great weight
and respect’ ” ’ to the administrative agency’s construction.”].)
       In sum, the Department did not ignore its duties to protect nonexempt aquifers and
to ensure that injections do not endanger sources of drinking water. (See AIDS
Healthcare, supra, 197 Cal.App.4th at p. 704 [“[m]andamus will lie to command the
exercise of discretion, that is, to compel some action” if the public agency “has failed to
act, and its failure to act is arbitrary”].) Instead, it exercised its discretion to conclude
that the corrective action plan was the best means to fulfill those duties. Because
“[m]andamus does not lie to compel a public agency to exercise discretionary powers in a
particular manner, only to compel it to exercise its discretion in some manner” (AIDS
Healthcare, supra, 197 Cal.App.4th at pp. 700–701), Appellant is not entitled to a writ of
mandate on this ground.
IV. Memorandum of Agreement
       Appellant argues, in the alternative, that the MOA imposes a mandatory duty on
the Department to immediately cease injections into nonexempt aquifers. The MOA
provides: “After the effective date of this Agreement, an aquifer exemption must be in
effect prior to or concurrent with the issuance of a [oil and gas production] permit for
injection wells into that aquifer.” As explained below, we conclude that the corrective




                                               14
action plan constituted a nonsubstantial revision to California’s underground injection
program authorizing a limited, temporary exception to this requirement in the MOA.17
         A. The MOA Is Part of California’s Underground Injection Control Program
         Intervenors contend the MOA is not formally part of California’s underground
injection control program. We disagree.
         The federal regulation approving California’s underground injection program
provides, in its entirety:
         “The UIC program for Class II wells in the State of California, except those on
Indian lands, is the program administered by the California Division of Oil and Gas,
approved by EPA pursuant to SDWA section 1425.
         “(a) Incorporation by reference. The requirements set forth in the State statutes
and regulations cited in this paragraph are hereby incorporated by reference and made a
part of the applicable UIC program under the SDWA for the State of California. This
incorporation by reference was approved by the Director of the Federal Register on June
25, 1984.
                “(1) California Laws for Conservation of Petroleum and Gas, California
Public Resources Code Div. 3, Chapt. 1, §§ 3000–3359 (1989);
                “(2) California Administrative Code, title 14, §§ 1710 to 1724.10 (May 28,
1988).
         “(b) The Memorandum of Agreement between EPA Region IX and the California
Division of Oil and Gas, signed by the EPA Regional Administrator on September 29,
1982 [the MOA].
         “(c) Statement of legal authority.
                “(1) Letter from California Deputy Attorney General to the Administrator
of EPA, ‘Re: Legal Authority of California Division of Oil and Gas to Carry Out Class II
Injection Well Program,’ April 1, 1981;

17
   This conclusion renders it unnecessary for us to decide whether, as Respondents
contend, Appellant lacks standing to enforce the MOA and/or lacks a beneficial interest
in the MOA.


                                              15
              “(2) Letter from California Deputy Attorney General to Chief of California
Branch, EPA Region IX, ‘Re: California Application for Primacy, Class II UIC
Program,’ December 3, 1982.
       “(d) The Program Description and any other materials submitted as part of the
application or as supplements thereto.” (40 C.F.R. § 147.250.)
       Intervenors contend that only the state statutes and regulations set forth in
paragraph (a) are part of the state’s underground injection program, because that
paragraph states they are incorporated and “made a part of the applicable UIC program.”
Under this interpretation, the materials listed in the remaining paragraphs—the MOA,
specified letters, program description, and other materials submitted with the state’s
application—are included in the regulation with no apparent legal effect or purpose. We
are not inclined to construe the regulation in such a nonsensical manner. (Carmack v.
Reynolds (2017) 2 Cal.5th 844, 850 [in interpreting statutes, “[a] construction making
some words surplusage is to be avoided”]; Hoitt v. Department of Rehabilitation (2012)
207 Cal.App.4th 513, 523 [“Rules of statutory construction govern our interpretation of
regulations promulgated by administrative agencies.”].)
       Moreover, as Appellant notes, the regulation as enacted includes the following
sentence at the beginning of the opening paragraph: “This program consists of the
following elements, as submitted to EPA in the State’s program application:” (49 Fed.
Reg. 20138-01, 20202 (May 11, 1984).) The enacted version thus makes clear that all the
materials listed in paragraphs (a) through (d) are part of the state program. Although the
regulation as codified omits this sentence, “numerous cases have stated that when there is
a conflict between a challenged law as enacted and as codified, the court must treat the
law as enacted as the relevant and controlling law.” (In re A.G. (2010) 186 Cal.App.4th
1454, 1460–1461.) Accordingly, we conclude the MOA is a component of the state’s
underground injection control program.
       B. The Corrective Action Plan Constituted a Nonsubstantial Revision of
          California’s Program




                                             16
       Federal regulations set forth the procedure to revise a state underground injection
control program: “The State shall submit a modified program description, Attorney
General’s statement, Memorandum of Agreement, or such other documents as EPA
determines to be necessary under the circumstances,” and EPA “shall approve or
disapprove program revisions based on the requirements of this part and of the Safe
Drinking Water Act.” (40 C.F.R. § 145.32(b)(1), (3).) The regulations contemplate two
types of program revision, substantial and nonsubstantial. (40 C.F.R. § 145.32(b)(2),
(4).) Public notice and comment are required for substantial revisions, but not for
nonsubstantial revisions. (40 C.F.R. § 145.32(b)(2).) Approval of substantial revisions
must be published in the Federal Register, but approval of nonsubstantial revisions may
be by letter from EPA “to the State Governor or his designee.” (40 C.F.R.
§ 145.32(b)(4).) “The decision of whether a proposed UIC program revision is
substantial or nonsubstantial lies with the [EPA].” (Western Nebraska Resources Council
v. E.P.A. (8th Cir. 1986) 793 F.2d 194, 199.)
       Respondents contend the corrective action plan constituted a nonsubstantial
program revision. There is support for this in the record. In a July 2014 letter to the
state, EPA requested information relating to the Department’s review of permitted
injection wells to determine whether they were injecting into nonexempt aquifers and
relating to the Eleven Aquifers.18 This letter requested the information pursuant to EPA’s
“authority under 40 C.F.R. § 145.32,” the regulation governing procedures for revisions
to state programs. A December 2014 letter from EPA “highlights the main areas of
recent discussion and provides direction for the State’s submittal of a program revision
plan by February 6, 2015.” (Italics added.) The letter addressed the Department’s
review of injection wells that may be injecting into nonexempt aquifers, directed all such
injections must cease by February 2017 unless EPA has approved an exemption, and
provided “[t]he State’s program revision plan” should ensure EPA has adequate time to


18
  The letter also requested information relating to a 2011 EPA audit of California’s
underground injection control program.


                                             17
review any requests for exemption of the Eleven Aquifers by December 2016. The letter
concluded: “We . . . anticipate receiving your program revision plan by February 6,
2015.”19
       On February 6, 2015—the designated date—the Department wrote EPA a letter
containing a detailed proposal, including a proposed compliance schedule for reviewing
and ceasing permitted injections into nonexempt aquifers. The letter concluded: “we are
committed to revising the UIC program efficiently, and with public safety as a first
priority.” (Italics added.) In March 2015, EPA wrote the Department, approving the
corrective action plan, which adopted the state’s proposed plan with several
modifications. The Department subsequently wrote EPA periodic updates on its progress
and refinements or modifications of the approved plan. EPA responded, at times
approving proposed changes.
       Appellant argues neither EPA nor the Department characterized the corrective
action plan as a program revision. We are not persuaded that such a formality is
necessary to effectuate a nonsubstantial plan revision. The federal regulations
contemplate that nonsubstantial revisions may be executed informally, without notice and
comment or publication in the Federal Register. (40 C.F.R. § 145.32(b).) The only
requirement for nonsubstantial revisions is the state submit “such . . . documents as EPA
determines to be necessary under the circumstances” and the revisions be approved by
letter from EPA to the state. (40 C.F.R. § 145.32(b)(1), (4).)20

19
   Appellant cursorily asserts this reference to a “ ‘program revision plan’ ” “was not to a
formal revision of California’s UIC program pursuant to the regulations, but instead only
to [the Department]’s plan to review and address the deficiencies uncovered by” a 2011
audit by EPA. Appellant provides no further analysis or argument on this contention,
which is not supported by the record.
20
   Although the regulations provide the letter be from “the [EPA] Administrator to the
State Governor or his designee” (40 C.F.R. § 145.32(b)(4)), Appellant does not argue the
correspondence from EPA’s regional office to the Department failed to constitute a
nonsubstantial program revision for that reason. We note that a 1984 EPA guidance
memorandum included in the record delegates to Regional Administrators the authority
to approve nonsubstantial revisions to underground injection control programs.


                                             18
       HRI, Inc. v. E.P.A. (10th Cir. 2000) 198 F.3d 1224 is instructive. EPA approved
New Mexico’s underground injection control program for all applicable wells, “ ‘except
for those on Indian lands.’ ” (Id. at p. 1232.) Initially, EPA treated an area known as
“Section 8” as covered by the state program, but the Navajo Nation subsequently
contended Section 8 was Indian land. (Id. at pp. 1234–1235.) Following two years of
communications between EPA, the relevant state agency, and the Navajo Nation, EPA
issued a letter to the state agency that “stated EPA’s position requiring federal permitting
for . . . Section 8.” (Id. at p. 1235.)21 The Tenth Circuit concluded that this
“determin[ation] that certain lands are outside the reach of New Mexico’s program as
previously approved” is appropriately “characterized as a state program revision” and,
moreover, “is reasonably construed as a ‘nonsubstantial program revision.’ ” (Id. at
pp. 1242–1243.) The court reached this conclusion without any apparent reference in
EPA’s letter or the preceding correspondence to such a revision.
       Here, EPA’s letters to the Department acknowledged that the Department was not
in compliance with its underground injection control program, directed the Department to
prepare a “program revision plan,” and eventually approved the corrective action plan
(and subsequent modifications). We conclude EPA approved a nonsubstantial revision to
California’s program—to wit, a limited, temporary exception to the prohibition of
permitted injections into nonexempt aquifers.22


21
  EPA concluded the status of Section 8 was in dispute, triggering an EPA policy
providing that disputed lands will be regulated by EPA-administered programs pending
the resolution of the dispute. (Id. at pp. 1233, 1235.)
22
  Appellant argues even if the state program was revised by the corrective action plan,
the Department is not in compliance with that plan because injections into nonexempt
aquifers continued past February 2017. As noted in part I of this opinion, we consider the
postjudgment evidence that injections continue past this date solely for mootness
purposes. Even if we were to consider the evidence in considering the merits, however,
we would reject Appellant’s contention. As we have noted, EPA occasionally approved
modifications to the original corrective action plan. In January 2017, the EPA approved
another such modification, allowing injections into nonexempt aquifers to continue after
February 2017 where the Department determined that the aquifer met the criteria for

                                             19
       The parties dispute whether the MOA was amended according to its terms. In
light of our conclusion that the corrective action plan constituted a revision of
California’s underground injection control program—of which the MOA is one
component—an additional amendment of the MOA was not necessary. In any event, we
agree with Respondents that the MOA was likely amended by the same correspondence
that effected the program revision. The MOA provides: “This Agreement may be
modified upon the initiative of either party in order to ensure consistency with State or
Federal statutory or regulatory modifications or supplements, or for any other purpose
mutually agreed upon. Any such modifications or supplements must be in writing and
must be signed by the Supervisor [of the Department] and Regional Administrator.”
Appellant argues no writing was signed by both the Department and EPA, but it is
unclear whether the MOA precludes amendment by separate signed writings. In any
event, “[a]s a general rule, if a contract provides that a writing is necessary to amend it,
the parties may, by their conduct, waive such a provision.” (Epic Medical Management,
LLC v. Paquette (2015) 244 Cal.App.4th 504, 512, fn. 5.)
       In sum, while the MOA prohibits the Department from permitting injections into
nonexempt aquifers, EPA approved a nonsubstantial program revision that temporarily
suspended this prohibition in limited, specified circumstances. The MOA thus does not
entitle Appellant to a writ of mandate directing the Department to order all injections into
nonexempt aquifers cease immediately.23


exemption but the exemption process was ongoing. This is reasonably construed as a
nonsubstantial program revision modifying the prior program revision.
23
  Because we have concluded Appellant is not entitled to a writ of mandate based on the
Act, its regulations, or the MOA, we need not decide additional arguments disputed by
the parties: the availability of an adequate legal remedy, the trial court’s jurisdiction to
void injection well permits, whether Appellant established prejudice, and whether EPA
and/or permit holders are indispensable parties to this litigation. In addition, for the same
reasons that we reject Appellant’s mandamus claim, we reject Appellant’s claim for
declaratory relief; we thus need not decide the Department’s contention that Appellant
waived this claim. Finally, Appellant contends some of the injection wells are operating
without permits (a contention the Department disputes) in support of its argument that, to

                                              20
                                      DISPOSITION
       The judgment is affirmed. Respondents shall recover their costs on appeal.




the extent the trial court concluded permits cured the lack of exemptions, it erred.
Because we reach no such conclusion, we need not resolve this issue.


                                             21
                            ____________________
                            Jones, P.J.




We concur:


____________________
Needham, J.


____________________
Bruiniers, J.




A149896


                       22
Trial court:                                    Alameda County Superior Court

Trial judge:                                    Hon. George C. Hernandez

Counsel:

Clare Lakewood, Hollin Kretzmann, Vera Pardee, for plaintiff and appellant Center for
Biological Diversity.

Xavier Becerra, Attorney General, John A. Saurenman, Senior Assistant Attorney
General, Jennifer W. Rosenfeld, Acting Supervising Deputy Attorney General, Baine P.
Kerr, Deputy Attorney General for defendant and respondent California Department of
Conservation, Division of Oil, Gas, and Geothermal Resources.

Gibson, Dunn & Crutcher LLP, Jeffrey D. Dintzer and Matthew C. Wickersham, for
intervener and respondent Aera Energy LLC.

Pillsbury Winthrop Shaw Pittmann LLP, Margaret Rosegay, Norman F. Carlin and
Blaine I. Green, for intervener and respondent Western States Petroleum Association et
al.




A149896


                                           23
