he Director penned an article in SCGA’s hard copy magazine FORE entitled, “The Era of Recycled Water May be Drawing to a Close.” The kind of recycled water used for outdoor irrigation, that is – nonpotable reuse.
The reason: The effluent used to produce that traditional form of recycled water was going to soon be routinely used to create drinking water – a process known as potable reuse. In addition, more of that effluent was going to be used to recharge aquifers. Indeed, both processes had already begun by October 2017. Orange County had already pioneered a potable reuse facility in Fountain Valley, and Los Angeles Water & Power had already begun dedicating effluent to the recharging of the large aquifer sitting beneath the Northeastern San Fernando Valley.
Fast forward to Fall 2023, and the Southern California Metropolitan Water District is on track to open the largest potable reuse facility in 2032 in the heart of the LA Harbor area, and the State Water Resources Control Board (SWRCB) has embarked upon the Rulemaking process necessary to amend Title 22 of the State Water Code to “adopt regulations governing the use of municipal wastewater to produce water that is used to augment a source of supply for a public water system’s drinking water treatment plant or placed into a public water system’s drinking water distribution system.” As SWRCB puts it in its “Initial Statement of Reasons” for the new Rules, the benefits include providing safe drinking water, a safe drinking water supply for Californians, a relatively reliable, drought-proof, and sustainable option for drinking water, and an additional means for increased beneficial use of recycled water.
The effluent to provide golf’s recycled water is going to be increasingly dedicated to potable reuse, making the admonition we issued in that 2017 FORE story more relevant than ever:
Now would be the time to consider the upshot of all of this — not just for those golf courses that had hoped to gain recycled access at some future time, but for those golf courses whose recycled contracts will be coming up for renewal. It behooves the former class of golf courses to begin contemplating what comes next in an environment sure to become increasingly hostile to “watering golf courses with drinking water.” It behooves the latter class to approach their water suppliers with entreaties to extend extant contracts before they come due.
And it behooves all of us to pay closer heed to those who preach the need to think in blocks of time longer than the next quarter.
Those with enormous appetites for detail can read the SWRCB’s entire “Initial Statement of Reasons” by clicking here. The only update to that October 2017 FORE story we would issue today would be to change the title ever so slightly to “The Era of Recycled Water is Fast Closing.”
There are still opportunities to secure access, but they won’t be there for long, and not just due to the expansion of direct potable reuse, but due also to the competition for limited resources posed by the myriad other ways of expanding local supplies such as stormwater capture, aquifer recharge, and desalination.
For those of you who want to see just how prescient that October 2017 FORE was, you can click here to read an archived version of it on the SCGA website
2023 LEGISLATIVE SESSION – FINAL WORD
Our last “Update” detailed the one piece of water legislation (AB 1572 – Proscription upon the use of potable water to irrigate nonfunctional turf) that we considered the most positively impactful to the statewide golf community to get signed into law in the 2023 legislative session – “positively impactful” because golf is specifically referenced as “recreational” and/or “functional” turf exempt from the proscription, language sure to be copied and pasted into all sorts of future bills and regulations, not just at the state level, but at the local and regional levels as well.
Previous updates detailed what we believe to be the opening of a long process to upend the senior water rights conferred in 1850, 1873, and 1913 to reflect the radically changed circumstances of modernity – that opening being SB 389, a new law that gives the state the data and reach it will need to determine whether a water right is valid, otherwise understood by many as the first step to enforcing or vitiating those rights. AB 460 and AB 1337 are parallels that didn’t quite make it through the 2023 session but are in process of being substantially amended to make credible 2-year bill runs in January 2024. We’ll be eagerly watching. Whether they make it through that tight window or not, we expect them and other similar bills to be filed and refiled in the 2024 session and beyond.
Another bright spot for golf was AB 363 – a bill signed into law that establishes neonicotinoids as substances banned unless applied by “licensed applicators.” The 2022 version of the bill, which was vetoed by Governor Newsom, allowed application only by agricultural licensed applicators. The signed 2023 version allows application by all licensed applicators, which allows the California golf community to continue their use, which though limited, can be important at certain times and in certain places. Kudos to the GCSAA, which lobbied hard for the 2023 version that Governor Newsom signed.
As we suggested in an earlier “Update” entitled, “Heeding Labor’s Roar,” California is in the throes of a massive recalibration of the rules governing worker’s wages, benefits, and rights in strong favor of labor. The “roar” didn’t extend all the way to SB 799 becoming law, because Governor Newsom vetoed the last-minute gut-and-amend bill that would have granted striking workers unemployment benefits. But here are the bills the Governor did sign in the 2023 session:
AB 1 – Collective bargaining: legislature. Enacted the Legislature Employer-Employee Relations Act, to provide employees of the Legislature, except certain specified categories of excluded employees, the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.
AB 621 – Workers’ compensation: special death benefit. Expands an exemption to include state safety members, peace officers, and firefighters for the Department of Forestry and Fire Protection who are members of Bargaining Unit 8 and would apply the exemption for these employees retroactively to January 1, 2019, for injuries not previously claimed or resolved.
AB 1228 – Gives raises to fast food workers – $20/hr.
SB 332 – Minor league baseball player bargaining agreement. Ensures a collective bargaining agreement for minor league baseball, guaranteeing better wages and benefits for more than 360 California minor league players, such as housing, health care, and compensation, including in the regular season, spring training, and the off-season.
SB 497 – Reduces retaliation against workers who have filed wage claim or unequal wage complaint.
SB 525 – $25/hr. Healthcare workers.
SB 616 – Add paid sick days. Amends California’s paid sick leave law to expand mandatory paid sick leave from three days or twenty-four hours to five days or forty hours.
Expect more of the same in 2024. While golf has punched way above its political weight on those matters directly related to the game, e.g., AB 672, AB 1910, and AB 2257 in previous legislative sessions and AB 1572 and AB 363 in the just concluded 2023 session, it isn’t a productive use of golf’s limited time and even more limited resources to engage as heavily on bills that affect all businesses in California. The game is irrelevant in a space dominated by the California Chamber of Commerce, various local/regional business chambers and roundtables, not to mention specific sectors that dwarf golf in economic reach and impact. However, it often makes sense to support the efforts of these larger entities through membership in their ranks or as part of large diverse coalitions, so long as the effort doesn’t otherwise detract from the game’s greater framing and positioning strategies.
SEPULVEDA BASIN “VISION PLAN”
A local example but an instructive one in a long string of examples of how a golf association can amass the facts of the matter as opposed to a version of them provided by those intent on repurposing golf course land for their preferred use, make those facts known to the decision-makers, and then rally its members and member clubs behind those “facts” to get a verdict in the public arena favorable to golf’s cause.
To the many SCGA members who responded to SCGA’s call to action about the “Sepulveda Basin Vision Plan” we are happy to inform you that the City of Los Angeles’ “Draft Plan” is now out for public comment and contains 54 holes of golf with a suggestion that 18 of them (Woodley Lakes) be upgraded and refreshed.
A ”Plan” that began with options to eliminate 9, 18, or 27 holes of municipal/public golf in the heart of Los Angeles’ San Fernando Valley has concluded with the maintenance of 54 holes that are to be improved in three (3) ways: 1) The “refresh/upgrade” of Woodley Lakes, 2) the re-routing of those holes on the Encino Golf Course that are the first to flood when the LA River’s waters are diverted during heavy rainfall events, and 3) the repurposing of the unused acreage surrounding much of the three Basin golf courses as natural habitat.
The ”Plan” is now so beneficial to this bulwark of San Fernando Valley public golf that the SCGA was able to issue a hearty endorsement of it in the Los Angeles Daily News.
The SCGA will issue a formal comment to that effect along with a suggestion that we believe will be well received to consider the construction of a junior golf/developmental golf similar to the Tregnan Golf Academy in Griffith Park within the footprint of the current Woodley Lakes Golf Course – a “comment” that we also believe will have the full support of the city’s Recreation and Park Department.
Those of you with appetite for reviewing the full 272-page “Draft Plan” thereon can click here to review the Homepage of the website the city has created for the project. The Homepage connects you both to the full “Plan” and a simple electronic form that allows you to seamlessly and very quickly issue your own comments upon it, something we highly encourage you to do. It’s important that golfers make clear the need to maintain 54 holes of desperately needed public golf in the heart of the San Fernando Valley. No doubt there will be those who issue comments about reducing that existing golf. And consider throwing in the need for a junior golf developmental facility while you’re at it.
Often attributed to Albert Einstein, who many say wrote it on a blackboard in his Princeton office, its origin is much older than that. However, in this exact form, it appeared in a seminal sociology textbook in 1963 and has been quoted repeatedly since to highlight the fact that certain important matters are simply not amenable to quantification.
And nothing could be truer of what we lump under the general term, “advocacy.” Advocacy operates in ALL the places where the game and public policy intersect. That’s a lot of places – legislatures, regulatory agencies, city councils, boards of supervisors, special districts, water wholesalers, water retailers, planning commissions, advisory commissions, chambers of commerce, allied advocacy organizations, non-governmental organizations of various stripes, and last but hardly least, all forms of media. Not just a lot of places, but a lot of broad issues – water, environment, taxes, land use, labor, etc. And the places and issues are less about transactions than relationships, which are less amenable to quantification than most other things. And not so much personal relationships as business/professional relationships predicated on respect, trust, and credibility. Those of you skeptical of anything having to do with government may find it hard to believe, but one’s word is indeed one’s bond in that realm.
There are no charts, graphs, lists, or sets of metrics capable of providing snapshots of the shape shifting and nuance represented by the sum total of this. There are broad themes, narratives, and overarching strategies, but they too are not amenable to simple quantification.
And there is no better example of the principle than Assembly Bill 1572 (Friedman; D-Burbank). Signed into law by Governor Newsom over the weekend, the bill proscribes the use of potable water to irrigate non-functional turf not directly attached to personal residences. The bill won the overt support of the California Alliance for Golf (CAG) based almost entirely on the appearance of two simple words in the section that defines the “recreational use areas” exempt from the proscription. We have highlighted those two words in the following AB 1572 excerpt:
“Recreational use area” means an area designated by a property owner or a governmental agency to accommodate human foot traffic for recreation, including, but not limited to, sports fields, golf courses, playgrounds, picnic grounds, or pet exercise areas. This recreation may be either formal or informal.”
To the degree to which there are likely to be those who may continue to argue that golf is a nonfunctional or non-recreational use of turf, the language embedded in this law argues very definitively otherwise. To the degree to which language like this is often cut and pasted in future legislation, this is the language that will function as the default position for that legislation, putting those arguing otherwise in the position of having the burden of proving why the language merits changing – always a tough hill to climb.
We hope you understand that things like this happen due ONLY to years of focused effort to position the game in a certain way in a public mind that is all inclusive, not specific – a long distance run characterized more by strategy than tactics, not a transaction characterized by simple notions of reduction, e.g., bullet points, talking points, and toolkits.
We hope you also understand that the degree to which we are so routinely able to report positive outcomes in the places where the game and public policy intersect is the degree to which we have been able to work with the game’s allied organizations and stakeholders to advance the game’s value proposition to the 90% of the population that does not play golf. Just as diplomacy is the art of bridging differences between adversaries, advocacy is the art of finding common ground among strangers.
One in a series of occasional looks at the backstory. Next up: A full look at the 2023 legislative session’s front story.
The State Water Resources Control Board (SWRCB) is set this Wednesday to open its first public hearing on the Proposed Rule it published August 18 to effectuate what the Governor and others have termed “Making Conservation a California Way of Life.” The Board will open that hearing with a 4-hour staff presentation, which should give you some idea of just how epochal the Rule purports to be. Those with enormous appetites for detail can click here to read it.
What is “Making Conservation a California Way of Life?” It is many things, but in simple terms it is a new regulatory framework that establishes individualized efficiency goals for each Urban Retail Water Supplier. These goals are based on the unique characteristics of the supplier’s service area and give suppliers the flexibility to implement locally appropriate solutions, a feature that makes this epochal moment an improvement over some of the State’s past one-size-fits-all moments. Once implemented, these goals are expected to reduce urban water use by more than 400-thousand-acre feet by 2030. Given that most of the state’s golf stock is served by Urban Water Districts, golf’s stake in all this is obvious if not always direct.
The proposed regulation would require suppliers to annually calculate their objective, which is the sum of efficiency budgets for a subset of urban water uses: residential indoor water use, residential outdoor water use, real water loss and commercial, industrial, and institutional landscapes with dedicated irrigation meters. Each efficiency budget will be calculated using a statewide efficiency standard and local service area characteristics such as population, climate, and landscape area. Where relevant, suppliers may also include in their objective “variances” for unique uses, or a bonus incentive for potable recycled water use. Suppliers would need to meet the overall objective, not each individual budget. It is only “Urban Retail Water Suppliers” – not individual households or businesses – that will be held to the annual “urban water use objectives” developed thereby.
Why is SWRCB adopting this epochal Rule? While the State did for the most part achieve most of the goals it set for itself in the 20% by 2020 Rule adopted in the 1st decade of this Century, continued drought, wide swings in Sierra snow deposition, and the rapid aridification of the Colorado Basin have made it necessary to adopt another set of long-term goals to ensure the State’s ability to deliver the water necessary to sustain life, health, business, agriculture, and recreation at levels consistent with the expectation of population growth.
The authority for SWRCB’s envisaged Rule comes from two (2) sources: 1) Legislation adopted in 2018 (AB 1668 and SB 606) directing the State Water Board to adopt efficiency standards and performance measures for commercial, industrial, and institutional water use; and 2) the Executive Branch’s August 2022 “Water Supply Strategy” summarizing the four (4) broad areas of state action comprising the State’s coordinated strategy for continued water resiliency:
1.Developing new water supplies.
2.Expanding water storage capacity above and below ground by four million acre-feet.
3.Reducing demand.
4.Improving forecasting, data, and management, including water rights modernization.
The last point is bolded to emphasize a point we’ve made repeatedly about what we find to be the most important takeaway from the just completed 2023 legislative session – that the unraveling of those water rights long-held (since 1850, 1873, and 1913 to be precise) and long considered sacred has only just begun. Again, while not always directly related to golf, particularly in the short term, this is all certainly impactful to the degree to which the final destination of that unraveling is sure to affect golf’s access to water – and to the price of that access.
The first two strategies – developing new water supplies and expanding storage capacity – are gravy for a water consumptive sector like golf. The last strategy with its ancillary goal of “modernizing” water rights is in its infancy but bears close scrutiny and no doubt at some point perhaps even some narrow intervention. It’s the third strategy – reducing demand – that demands golf’s attention in the SWRCB Rulemaking just now getting into high gear to ensure that golf continues to be categorized as a “special” or “large landscape” meriting biologically appropriate plant factors in state regulations (e.g., MWELO), a “functional” use of turf meriting the continued use of potable water where non-potable sources are unavailable, and a “recreational” use the same as parks and sports fields to keep it firmly in that class of public amenity that can only be provided on turf. Of course, to do that, golf will have to not only continue, but double down on, its commitment to reducing its water footprint. This demands investment in new technologies, new practices, and new grasses, as well as the research that is the sine qua non of all three.
THERE IS MORE AVAILABLE THAN THE STANDARD TURF REMOVAL REBATE AND WITH A LITTLE INGENUITY AND PATIENCE PERHAPS MORE ON THE WAY
“If you have a creative idea for saving water on your golf course, we have a rebate program for you,” announced the Metropolitan Water District’s (MWD) Gary Tilkian at last month’s golf and water networking session in downtown Los Angeles, where leaders of the golf community met with leaders of MWD, Los Angeles Water & Power, Long Beach Water, and other water providers to collaborate on ways to further reduce the game’s water footprint.
Formally called the “Water Savings Investment Program” (WISP), the MWD program differs from traditional rebate programs in that it is performance based. You don’t get paid up front. You get paid as you demonstrate that your “creative idea” saves water.
How the program works:The application must be approved before the project is deployed or installed to ensure funding eligibility.Projects must save at least 10 million gallons of water over ten years.Projects cannot be new construction.Customers require at least three years of water use history to establish a baseline before the project is deployed.Projects cannot replace potable water with another water source as a water-saving method.
Los Angeles Water & Power (LADWP) has a parallel program it calls its “Technical Assistance Program” or TAP for short. At the networking session LADWP Conservation Manager Mark Gentili explained the program the way his agency explains it on its website.
“Sometimes one size doesn’t fit all. Commercial, industrial, institutional, and multi-family customers may benefit from a customized approach to reducing their water use and costs. . . The program offers up to $2,000,000 in financial incentives for pre-approved equipment and products that demonstrate water savings.”
Once a golf course upgrades its irrigation system, removes turf, replaces nozzles, and pursues the investments for which traditional rebates and financial incentives are available, it runs out of cards to play in a game of water footprint reduction that golf has to keep playing if it hopes to thrive in an environment in which supplies from the Sierra Nevada are subject to wide swings and supplies from the Colorado River are guaranteed to be significantly curtailed.
SCGA helped organize this networking session to help spread the word; there are customized, golf specific programs that major water agencies are eager to work with golf to craft and then fund. To that end, the session was capped off by a presentation to Brentwood Country Club of a 1st installment of what is “on track” to eventually be a $67,000.00 rebate for a soil-based conservation program that is anything but “traditional” to the golf industry.
Many of MWD’s retailers – e.g., LADWP – offer parallel “performance based” incentives, which allows a golf course to receive additional monies for the same program – double dip as it were.
The session was sufficiently successful that MWD has decided to take the same show on the road to San Diego County to join forces with the San Diego County Water Authority, San Diego Public Utilities, and whatever other MWD member agencies care to participate to share the same good news about these programs. SCGA will certainly do what it can to help coordinate, facilitate, and advertise the event.
We can report that parallel thinking is going on right now in the Coachella Valley, where the CVWD Golf & Water Task Force is working to craft rebate programs that incentivize more than just turf removal.
For more information about the MWD program click here. For further information about the LADWP program click here. If you’re reading this from San Diego County, stay tuned. The SCGA will keep you informed. If you’re reading this from the Coachella Valley, follow the progress of the Golf & Water Task Force that meets regularly with the Coachella Valley Water District – that and the constant updating from the Hi-Lo Chapter GCSAA.
These more “creative” or “performance based” incentive programs may seem small, but today’s “small” often becomes tomorrow’s large. And they can never become large unless they start small. Everything golf does in terms of conservation is a long-distance run, not a sprint.
The 2023 session of the California Legislature closed in the waning hours of Thursday night. While some of 2023’s bills have already been passed on to the Governor and signed into law, many more are now on the Governor’s desk for signature or veto, among them AB 1572 (Friedman; D-Burbank), which proscribes the use of potable water to irrigate purely ornamental or non-functional turf. Not on the Governor’s desk is Friedman’s companion bill (AB 1573) that would have enshrined that proscription in the state’s Model Water Efficient Landscape Ordinance (MWELO). Friedman pulled the bill because the amendments necessary to cause the politically powerful Association of California Water Agencies (ACWA) to withdraw opposition rendered the bill meaningless in the opinion of the author.
Golf is very much “functional” and “non-ornamental” turf in extant California law, and because the final version of AB 1572 spelled that out in very direct language, the California Alliance for Golf (CAG) formally supported the bill when it came before Senate Appropriations. CAG supported AB 1573 as well.
The Governor has until October 14 to sign or veto AB 1572 and the hundreds of other bills that made it through both houses last Thursday night.
Three (3) bills were filed in the 2023 session that in the opinion of virtually everyone who tracks water issues in California represented the opening of an extended legislative conversation about unraveling long-held, almost sacred water rights in California law – “long-held” as in dating back to California’s entry into the Union (1850), California’s codification of certain “riparian” rights in 1872, and a recodification of both when the precursor to today’s State Water Resources Control Board (SWRCB) was created in 1913.
Two of those bills – AB 460 (Bauer-Kahan; D-Orinda) that would have authorized the State Water Board to issue “interim relief” orders to enforce the reasonable use doctrine and water rights and AB 1337 (Wicks; D-Oakland) that would have authorized the State Water Board to issue curtailment orders for any diversion, even pre-1914 appropriative rights – were pulled late in the session by their authors because there just wasn’t enough legislative bandwidth cum time to issue the amendments that would have enabled them to continue in the session; however, in both cases the authors made clear that both would be the subjects of very serious 2-year bill runs in January 2024.
However, one bill (SB 389; Allen – D-Redondo Beach) made it through the gauntlet and is now on the Governor’s desk. If Newsom signs it, and smart money would be on him doing that, it will tell us much about the prospects of the two bills trying to secure passage in January.
As originally introduced in February, SB 389 proposed the addition of a new article to the Water Code authorizing the State Water Board to:
Investigate a diversion and use of water from a stream system to determine whether the diversion and use are based upon a valid right;
Issue an information order to a water user to provide technical reports or other information related to the diversion;
Issue a decision or order that determines the water right, whether limited in scope or wholly invalid;
Find forfeiture even without a conflicting claim by another water user; and
Repose the burden of proof upon a water user to establish the validity of any claimed water right.
In short, SB 389 as initially introduced would have vitiated California’s longstanding riparian and pre-1914 water rights by placing the “determination” of those rights under the jurisdiction of the State Water Resources Control Board (SWRCB). Under existing law, often referred to as the “California Doctrine,” riparian and appropriative rights are recognized as determinative. Holders of them take precedence over all other claims.
Given its vitiation of 110 years of established California water law, SB 389 as first proposed incurred considerable opposition, most significantly from the politically influential Association of California WaterAgencies (ACWA). ACWA’s opposition usually spells a bill’s defeat, but unlike AB 460 and AB 1337, which ran out of time to incorporate the amendments necessary to obviate that opposition, SB 389 was amended significantly before heading to the floor of both legislative houses.
As SB 389 now reads on the Governor’s desk, it authorizes the State Water Board to merely “investigate and ascertain” the validity of surface water rights as opposed to “determine” the validity of those rights. In addition, the amended bill now merely obligates the State Water Board to burden a water user as is reasonably needed to ascertain the information required to sustain a right, and it deletes a provision that would have statutorily imposed the burden of proof on any water right claimant.
Opposition from ACWA, various agricultural interests, and municipalities certainly contributed to the watering down of SB 389; however, watered down or not, it represents what we should assume is the first shot fired in what promises to be a long legislative tug of war to undo rights, privileges, and priorities long ensconced in California law in favor of arrangements better suited to a polity of 40 million souls coping with a warming, drying climate.
Golf doesn’t have much at stake in terms of holding riparian or pre-1914 water rights; however, it has much at stake in terms of reliance upon other longstanding water rights, laws, and policies sure to come under scrutiny once the ice is broken on SB 389 these next 30 days and a clear path paved for AB 460 and AB 1337 in 2024. Beyond that? No doubt more of the same.
One of the bills we watched carefully in 2023 for what it too might tell us about the future thrust of California water law was AB 1563 (Bennett; D-Ventura), a reprise of a bill Bennett authored in 2022 that would have made permanent the “verification” protocol in the Governor’s emergency executive order regarding groundwater extraction by prohibiting a county, city, or any other well permitting agency from approving a permit for a new groundwater well or for alteration of an existing well in a critically over drafted basin subject to SGMA unless a number of conditions are met beforehand. This would have made the Groundwater Sustainability Agency (GSA) the de facto permit authority for the sinking of new wells. Under current law it is generally a city or county that has the permitting authority, which has led to GSA’s interpreting their respective permitting authorities very differently, which in one case in Southern California led to a county permitting a well expansion only to be contradicted by a GSA that moved to nix the project after it had begun. Because AB 1563 foundered in the Senate, we can expect such conflicts and the uncertainty they pose to continue. But as with other water bills that didn’t quite make it this year (e.g., AB 460, AB 1337, AB 1573), it strikes us that the legislature will ultimately resolve the conflict in favor of the Groundwater Sustainability Agencies.
WHAT ELSE THE 2023 SESSION TOLD US
In 2022 a bill that would have proscribed the non-agricultural use of neonicotinoids by a date certain failed. In response, Assembly Member Rebecca Bauer-Kahan (D-Orinda) filed AB 363 in 2023, a bill not to ban all such use by a date certain, but to ban the sale for certain proscribed purposes upon a formal evaluation commencing January 2024 – a distinction with some very real differences. Golf argued in 2022 and again in 2023 that its licensed applicators were no different from the agricultural licensed applicators exempted from the proscription in the 2022 version as well as the initial 2023 version. The GCSAA led this campaign and stuck to it doggedly throughout the session and through some amendments applied in the Senate and concurred in by the author, secured the following in the final version of the bill as it now sits on Governor Newsom’s desk:
Beginning January 1, 2025, a person shall not sell, possess, or use a pesticide containing one or more neonicotinoid pesticides for any use that is excluded from the definition of “agricultural use” in Section 11408 on nonproduction outdoor ornamental plants, trees, or turf, with the exception of use and possession by state certified applicators and sale by state licensed pest control dealers.
What we referred to a few weeks ago as “labor’s roar” and others have taken to calling the “hot laborsummer” only got louder and hotter as the legislative session closed. SB 799 (Portantino; D-Glendale), a “gut-and-amend” job that makes striking workers eligible to receive unemployment benefits after 14 days of striking, made it through both houses quickly and now sits on the desk of a Governor stuck between that rock and hard place known as visceral support from organized labor and visceral opposition from business organizations – all exacerbated by an EDD fund that is $18 billion in arrears.
Against a backdrop of an unprecedented United Auto Workers (UAW) strike of all three of the major American car manufacturers simultaneously, Kaiser Health workers authorizing a strike, and ongoing labor strife in the entertainment and other major industries, the legislature passed a bill to add to mandatory sick leave, a bill to raise to $20 the minimum wage of fast-food workers, a bill to raise to $25 the minimum wage for health care workers, and a bill to permit their own legislative staffers to unionize.
We’ll be watching to see which of these “hot labor” bills the Governor signs and which he vetoes. We’ll also be watching to see how new Assembly Speaker Rivas (D-Hollister) responds, given his past statements about wanting to seek a better balance between workers’ rights and job creation.
The Surplus Land Act continues to evolve in the direction of preferring affordable housing over open space/recreation when public agencies consider the disposition of their public lands. This year’s “evolution” was not as dramatic as previous years, but it’s just a matter of time before the preference becomes overwhelming. When added to increasingly onerous state mandated housing element protocols, it is fast becoming common to see cities and counties adding their municipally owned golf courses to the potentially developable properties within their limits listed therein. Laws that once golf and other park/recreation communities could reliably depend upon to ensure against development are fast weakening, making it just that much more important for golf and its leadership organizations to understand that it’s only to the degree to which residents of a community are prepared to see their local municipal golf courses as community assets that they are guaranteed to remain golf courses. Given that only 10% of the population plays golf, that is a heavy lift – not an insurmountable lift, but a heavy one requiring focused sustained effort. The SCGA understands this viscerally. We would love to be joined in that passion, particularly by some of the game’s national leadership organizations that seem to think the challenge to the municipal game can be met by the kindness of pro bono golf course architects and the generosity of country clubs on the Hill.
The success of Scott Wiener’s (D-San Francisco) SB 423 in the 2023 session over the opposition of numerous local governments and labor unions (Building Trades in particular) should tell golf just that much more about getting about making appeals to the 90% of the population that doesn’t play golf. SB 423 extends through 2036 the provisions of 2017’s SB 35 that enabled developments meeting certain affordable housing goals to secure the entitlements necessary to build by right as opposed to local discretion. It also reformed the aspect of SB 35 that most considered the greatest impediment to its success by changing a strict union labor requirement to a prevailing wage requirement; thus, some of the labor opposition.
From various directions the march toward obviating local control to build more housing, particularly housing in densely packed cities, poses obvious challenges to a recreational activity that requires significant acreage, which while it may in the aggregate not encumber more than other recreational activities, does indeed encumber it all in one place for the world to see, its detractors to highlight, and those bent on repurposing it to exploit for their own ends. An insurmountable challenge? Hardly, but one does have to make the effort to surmount it.
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Golf & Water Networking Event at Metropolitan Water District re New Rebate/Incentive Programs
There is still time to register and join the Metropolitan Water District (MWD) and Los Angeles Water & Power (LADWP) to learn about funding from Metropolitan’s Water Savings Incentive Program (a “performance based” rebate program that extends beyond traditional turf rebates) and LADWP’s TAP Program.
What we referred to a few weeks ago as “labor’s roar” and others have taken to calling the “hot laborsummer” only got louder and hotter as the legislative session closed. SB 799 (Portantino; D-Glendale), a “gut-and-amend” job that makes striking workers eligible to receive unemployment benefits after 14 days of striking, made it through both houses quickly and now sits on the desk of a Governor stuck between that rock and hard place known as visceral support from organized labor and visceral opposition from business organizations – all exacerbated by an EDD fund that is $18 billion in arrears.
Against a backdrop of an unprecedented United Auto Workers (UAW) strike of all three of the major American car manufacturers simultaneously, Kaiser Health workers authorizing a strike, and ongoing labor strife in the entertainment and other major industries, the legislature passed a bill to add to mandatory sick leave, a bill to raise to $20 the minimum wage of fast-food workers, a bill to raise to $25 the minimum wage for health care workers, and a bill to permit their own legislative staffers to unionize.
We’ll be watching to see which of these “hot labor” bills the Governor signs and which he vetoes. We’ll also be watching to see how new Assembly Speaker Rivas (D-Hollister) responds, given his past statements about wanting to seek a better balance between workers’ rights and job creation.
The Surplus Land Act continues to evolve in the direction of preferring affordable housing over open space/recreation when public agencies consider the disposition of their public lands. This year’s “evolution” was not as dramatic as previous years, but it’s just a matter of time before the preference becomes overwhelming. When added to increasingly onerous state mandated housing element protocols, it is fast becoming common to see cities and counties adding their municipally owned golf courses to the potentially developable properties within their limits listed therein. Laws that once golf and other park/recreation communities could reliably depend upon to ensure against development are fast weakening, making it just that much more important for golf and its leadership organizations to understand that it’s only to the degree to which residents of a community are prepared to see their local municipal golf courses as community assets that they are guaranteed to remain golf courses. Given that only 10% of the population plays golf, that is a heavy lift – not an insurmountable lift, but a heavy one requiring focused sustained effort. The SCGA understands this viscerally. We would love to be joined in that passion, particularly by some of the game’s national leadership organizations that seem to think the challenge to the municipal game can be met by the kindness of pro bono golf course architects and the generosity of country clubs on the Hill.
The success of Scott Wiener’s (D-San Francisco) SB 423 in the 2023 session over the opposition of numerous local governments and labor unions (Building Trades in particular) should tell golf just that much more about getting about making appeals to the 90% of the population that doesn’t play golf. SB 423 extends through 2036 the provisions of 2017’s SB 35 that enabled developments meeting certain affordable housing goals to secure the entitlements necessary to build by right as opposed to local discretion. It also reformed the aspect of SB 35 that most considered the greatest impediment to its success by changing a strict union labor requirement to a prevailing wage requirement; thus, some of the labor opposition.
From various directions the march toward obviating local control to build more housing, particularly housing in densely packed cities, poses obvious challenges to a recreational activity that requires significant acreage, which while it may in the aggregate not encumber more than other recreational activities, does indeed encumber it all in one place for the world to see, its detractors to highlight, and those bent on repurposing it to exploit for their own ends. An insurmountable challenge? Hardly, but one does have to make the effort to surmount it.
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Golf & Water Networking Event at Metropolitan Water District re New Rebate/Incentive Programs
There is still time to register and join the Metropolitan Water District (MWD) and Los Angeles Water & Power (LADWP) to learn about funding from Metropolitan’s Water Savings Incentive Program (a “performance based” rebate program that extends beyond traditional turf rebates) and LADWP’s TAP Program.
What we referred to a few weeks ago as “labor’s roar” and others have taken to calling the “hot laborsummer” only got louder and hotter as the legislative session closed. SB 799 (Portantino; D-Glendale), a “gut-and-amend” job that makes striking workers eligible to receive unemployment benefits after 14 days of striking, made it through both houses quickly and now sits on the desk of a Governor stuck between that rock and hard place known as visceral support from organized labor and visceral opposition from business organizations – all exacerbated by an EDD fund that is $18 billion in arrears.
Against a backdrop of an unprecedented United Auto Workers (UAW) strike of all three of the major American car manufacturers simultaneously, Kaiser Health workers authorizing a strike, and ongoing labor strife in the entertainment and other major industries, the legislature passed a bill to add to mandatory sick leave, a bill to raise to $20 the minimum wage of fast-food workers, a bill to raise to $25 the minimum wage for health care workers, and a bill to permit their own legislative staffers to unionize.
We’ll be watching to see which of these “hot labor” bills the Governor signs and which he vetoes. We’ll also be watching to see how new Assembly Speaker Rivas (D-Hollister) responds, given his past statements about wanting to seek a better balance between workers’ rights and job creation.
The Surplus Land Act continues to evolve in the direction of preferring affordable housing over open space/recreation when public agencies consider the disposition of their public lands. This year’s “evolution” was not as dramatic as previous years, but it’s just a matter of time before the preference becomes overwhelming. When added to increasingly onerous state mandated housing element protocols, it is fast becoming common to see cities and counties adding their municipally owned golf courses to the potentially developable properties within their limits listed therein. Laws that once golf and other park/recreation communities could reliably depend upon to ensure against development are fast weakening, making it just that much more important for golf and its leadership organizations to understand that it’s only to the degree to which residents of a community are prepared to see their local municipal golf courses as community assets that they are guaranteed to remain golf courses. Given that only 10% of the population plays golf, that is a heavy lift – not an insurmountable lift, but a heavy one requiring focused sustained effort. The SCGA understands this viscerally. We would love to be joined in that passion, particularly by some of the game’s national leadership organizations that seem to think the challenge to the municipal game can be met by the kindness of pro bono golf course architects and the generosity of country clubs on the Hill.
The success of Scott Wiener’s (D-San Francisco) SB 423 in the 2023 session over the opposition of numerous local governments and labor unions (Building Trades in particular) should tell golf just that much more about getting about making appeals to the 90% of the population that doesn’t play golf. SB 423 extends through 2036 the provisions of 2017’s SB 35 that enabled developments meeting certain affordable housing goals to secure the entitlements necessary to build by right as opposed to local discretion. It also reformed the aspect of SB 35 that most considered the greatest impediment to its success by changing a strict union labor requirement to a prevailing wage requirement; thus, some of the labor opposition.
From various directions the march toward obviating local control to build more housing, particularly housing in densely packed cities, poses obvious challenges to a recreational activity that requires significant acreage, which while it may in the aggregate not encumber more than other recreational activities, does indeed encumber it all in one place for the world to see, its detractors to highlight, and those bent on repurposing it to exploit for their own ends. An insurmountable challenge? Hardly, but one does have to make the effort to surmount it.
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Golf & Water Networking Event at Metropolitan Water District re New Rebate/Incentive Programs
There is still time to register and join the Metropolitan Water District (MWD) and Los Angeles Water & Power (LADWP) to learn about funding from Metropolitan’s Water Savings Incentive Program (a “performance based” rebate program that extends beyond traditional turf rebates) and LADWP’s TAP Program.
The golf community has been meeting with MWD and communicating with LADWP about working together to craft rebate and/or incentive programs tailored to the specific needs of the golf courses beyond traditional turf removal. This networking event is an introduction to what both golf and MWD hope will be an extended dialog about figuring out more innovative and creative ways to keep reducing golf’s water footprint while continuing to meet the expectations of golfers.
As the legislature races to the finish of a session complicated by a budget deficit that cannot be known until the Franchise Tax Board receives Californians’ tax returns in mid-October, here is what we can report now about those bills the golf community has supported in the session, the bills the community has been tracking carefully, and one gut-and-amend job we have brought to your attention for what its fate may be able to inform us about the decibel level of what we have termed “labor’s roar” and others have called “labor’s hot summer.”
First, the two (2) bills the allied California golf community formally supported – AB 1572 (Friedman; D-Burbank) and AB 1573 (Friedman; D-Burbank). Both are headed to the Senate floor where their passage is all but certain.
To refresh your memories.
AB 1572 prohibits the use of potable water to irrigate nonfunctional turf on commercial, municipal, and institutional properties beginning in 2026.
Even before AB 1572 made it through its Assembly house of origin, the following language identifying “recreational” areas as functional turf and thus exempt from the bill’s proscriptions was added: “Recreational use area” means an area designated by a property owner or a governmental agency to accommodate human foot traffic for recreation, including, but not limited to, sports fields, golf courses, playgrounds, picnic grounds, or pet exercise areas. This recreation may be either formal or informal.
In its travel through the Senate AB 1572 was further amended to buttress local over state control and to use the California Water Efficiency Partnerships definition of functional and nonfunctional turf, which rather than using two generic categories of turf, employs three categories, functional, recreational, and ornamental, reinforcing further golf’s longstanding status as “functional/recreational” turf for the purposes of this and other proscriptions under California law.
AB 1572 and its companion AB 1573 [prohibition of nonfunctional turf in new or renovated commercial/industrial areas] (Friedman; D-Burbank) contain language making clear that “golf” is part of the “functional” and “non-ornamental” classes of turf exempt from the proscription, and the second of the bills (AB 1573) specifically enshrines that language in a Model Water Landscape Ordinance (MWELO) with a 1.0 plant factor for turf that shall henceforth be the mandatory minimum default position of every planning agency in the state.
To the degree to which so much of the sausage making involved in crafting legislation is cutting and pasting extant language into future language, these categorizations become the default language, the starting point as it were. Anyone familiar with the damage done to the national golf community by language inserted in a 1977 IRS regulation placing golf on a “sin list” of businesses ineligible for federal disaster relief can understand the significance of this. And we trust you understand the importance of golf overtly supporting these two bills.
With respect to the most significant of the bills golf tracked closely in the session – SB 389 (Allen; D-Redondo Beach) and tracked for what it portends for what we anticipate are likely to be future erosions in longstanding water rights many have long considered sacred, here is where that bill stands.
But first, another refresher.
As originally introduced in February, SB 389 proposed the addition of a new article to the Water Code authorizing the State Water Board to:
Investigate a diversion and use of water from a stream system to determine whether the diversion and use are based upon a valid right;
Issue an information order to a water user to provide technical reports or other information related to the diversion;
Issue a decision or order that determines the water right, whether limited in scope or wholly invalid;
Find forfeiture even without a conflicting claim by another water user; and
Repose the burden of proof upon a water user to establish the validity of any claimed water right.
In short, SB 389 as initially introduced would have vitiated California’s longstanding Riparian and pre-1914 water rights by placing the “determination” of those rights under the jurisdiction of the State Water Resources Control Board (SWRCB). Under existing law, often referred to as the “California Doctrine,” riparian and appropriative rights are recognized as determinative. Holders thereof take precedence over all other claims.
A bit of background to place the significance of this legislation in context.
Riparian rights are attached to land that is contiguous to a river, stream, or other natural water course. They permit a landowner to put the water to beneficial use on their land. Riparian rights derive from English common law, which the California Legislature adopted upon becoming an American state in 1850.
The doctrine of prior appropriation (also known as “first in time, first in right”) applies to appropriative rights and is a seniority system that still applies today. Under prior appropriation, a junior water right holder (i.e., one that claimed a right at a date after a senior water right claimant) has his/her right curtailed, or cut back, in times of shortage before the next claimant has his/her right curtailed. Like riparian rights, appropriative rights were recognized in the 19th Century, albeit a few years after California entered the Union by virtue of an 1855 California Supreme Court decision that was codified by an act of the legislature in 1872.
It wasn’t until 1913 that California established a more comprehensive and trackable framework for managing water rights with the creation of a state Water Commission accorded sole jurisdiction to determine rights to unappropriated surface waters. The Act that created the Water Commission recognized that water rights obtained prior to its passage were still valid. The Water Commission later became the State Water Resources Control Board.
Given its vitiation of 110 years of established California water law, SB 389 as first proposed incurred considerable opposition, most significantly from the politically influential Association of California Water Agencies (ACWA), which likely explains that as it now stands, it has been amended to make it more about the acquisition of information than the enablement of state action.
The version passed by the Senate was significantly amended prior to passage, and the version that passed through Water, Parks and Wildlife in the Assembly was amended more so. As it now reads, SB 389 authorizes the State Water Board to merely “investigate and ascertain” the validity of surface water rights as opposed to “determine” the validity of those rights. In addition, the amended bill now merely obligates the State Water Board to burden a water user as is reasonably needed to ascertain the information required to sustain a right, and it deletes a provision that would have statutorily imposed the burden of proof on any water right claimant.
Opposition from ACWA, various agricultural interests, and municipalities certainly contributed to the watering down of SB 389; however, watered down or not, should it make through Appropriations and the floor and be signed by Governor Newsom, we believe it presages a cascade of rights-reversing water legislation in 2024 and beyond. And that is where it now stands – before Assembly Appropriations, where if it isn’t held in suspense, will likely pass a floor vote, be enrolled, and sent to the Governor for signature or veto. And unlike AB’s 1572 and 1573, which are highly unlikely to be vetoed, this one could be.
We’ll soon know. And with that knowledge we’ll have a greater sense of two other bills of similar consequence that are being carried forward by their authors to January as 2-year bills – AB 460 (Bauer-Kahan; D-Orinda) that would authorize the State Water Board to issue “interim relief” orders to enforce the reasonable use doctrine and water rights, and AB 1337 (Wicks; D-Oakland) that would authorize the State Water Board to issue curtailment orders for any diversion, even pre-1914 appropriative rights. If SB 389 becomes law, expect these two bills to follow suit, although both would likely be amended considerably before becoming so.
As for the “gut-and-amend” effort we predicted in an earlier Update, SB 799 (Portantino; D-Glendale) that would follow suit in part with New York and New Jersey in providing unemployment benefits to striking workers is in committee, suffice it say that this one is hotly contested. How that contest turns out by end of session at midnight September 14 should tell us just how loud what we earlier termed “labor’s roar” is this summer.
The formal arguments in both support and opposition are predictable. From the legislative analysis:
Arguments in Support. The California Labor Federation, the sponsor of this bill, writes in support on behalf of a coalition of labor groups: “As long as striking workers are ineligible for UI benefits (unemployment benefits), the State is giving employers a weapon against the interests of workers, their families, and communities. The prohibition on striking workers receiving UI enables employers to wait out a strike, hoping that the precarious financial situation of their workers, many of whom will face inability to stay in their homes, loss of health care, and strangling debt, will lead to a swifter end to the strike.”
Arguments in Opposition. The California Chamber of Commerce has labeled this bill a “job killer.” In opposition the Cal Chamber and other employer organizations write: “Striking workers have a job – they are just choosing not to work in order to create economic pressure and negotiate. That is not the same as having no idea where your next paycheck comes from. SB 799 is a profound departure from UI’s history, and a significant tax increase on California’s employers, including those who have no involvement in any labor disputes. Moreover, with a recession potentially in our future, SB 799 risks compounding UI’s insolvency – which will weigh heavily on the State, California’s employers, and California’s truly unemployed.”
Also from the legislative analysis is a “suggested amendment” that in our opinion opens a wide berth for predicating opposition on a factor outside the scope of both “arguments:”
Suggested Amendments. Should this measure move forward, the author may wish to consider a delayed implementation date until the UI Trust Fund is no longer suffering a deficit or, at the very least, until the new IT system EDD Next is complete in Fiscal Year 2026-27.
On the other hand, just last week the National Labor Relations Board (NLRB) issued a ruling that allows for the Board to bypass an election and go straight to bargaining in situations where employers are found to have committed serious labor law violations in combatting employees’ efforts to organize a bargaining unit. Previously, the only remedy was to require an election or a do-over election. The “roar” isn’t just a California thing.
For those with huge appetites for detail, here are links to AB 1572 & AB 1573 as they are headed to the Senate floor, SB 389 as it stands going to Assembly Appropriations, and SB 799 as it courses through committees.
As of today (September 6), there are 948 “active measures” before the Assembly and Senate. With only 8 days to go in the session, things promise to be fast and furious in the Capitol.
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There have been some recent developments of national impact of which many of you policy wonks may be aware – the posting of a Waters of the United States (WOTUS) Rule revised to reflect the US Supreme Court’s decision in Sackett, a revision that substantially reduces the scope of federal jurisdiction over certain kinds of waters, and the publication of an overtime threshold rule that would raise today’s national threshold from $35K per year to roughly $55K per year. The former only tangentially affects California. The latter does not affect California at all. Given that, we’ll report about both later, as much to again explain why so much of what affects most states when the federal government issues regulations and legislation does not affect California as to explain the tangential impact of the new WOTUS Rule.
Anyone over a certain age, and even those below a certain age, know something of Yogi Berra’s caveat about predictions – “predictions are a dangerous thing, particularly about the future.”
But if one accepts the wisdom contained in Edmund Burke’s dictum about “society being a partnership of the living, the dead, and the unborn,” predictions are less stabs in the dark than extrapolations drawn from the trajectory of current events.
If you are a regular reader of these “Updates,” you know that we have been doing a lot of the second variety of predicting in recent months – from what the aridification of the Colorado Basin portends, to the what changing weather patterns in the Sierra Nevada mean, to what bills floating in Sacramento vitiating long sacred water rights contemplate, to what the state’s acute housing shortage threatens for a game that requires large tracts of land, to what competition for precious park and green space means for a sector long characterized elite and aloof, all the way down to what a certain editorial in the Southern California News Group advocating for the resurrection of AB 1910 suggests in terms of financially interested parties taking another run at 22.3% of California’s golf stock.
To this lengthy list of challenges, allow us to “predict” one more. Labor – not so much in terms of cost, but in terms of political and social consequence.
Economists don’t agree on much, but they do agree that worker compensation as a percentage of economic productivity has declined since the federal minimum wage’s high-water mark in 1968. Some find the decline higher than others. Such is the nature of economic modeling. But assessing the validity of economic models is above our pay grade – way above. So, we’ll go with the common ground contained within them.
Wages represented a smaller share of the overall economy in 2008 than they did in 1968, although with wide variances. Such is the nature of averages. To throw in yet another aphorism (rule of three?), one must always remember that a 6-foot person can drown in a river the average depth of which is 4 feet, depending upon where he or she is standing in the river. Exactly where golf stands in that river is, again, above our pay grade, but we suspect that most reading this understand that golf was not an exception to the trends that animated the 1968-2008 aggregate decline, not in all job categories but more than enough of them to put golf operations firmly in the category of those sectors that benefitted from relatively stable labor costs.
We won’t regale you with the obvious. We’ll just note that coming out of COVID, wage floors of almost all kinds increased dramatically, whether the minimum wage that is the de jure bottom of every floor or the de facto floor represented by what it takes to fill a specific job. Golf jobs are for the most part well above such floors, but when the floor rises, everything above it goes up to some degree. Labor costs may not have gone up as dramatically as the water, compliance, material, and capital project costs endemic to the industry, but when all costs are ascendant in a sector dependent upon securing discretionary dollars from willing purchasers, there is downward pressure on the pool of purchasers. Of course, “downward pressure” isn’t a consignment to failure; it just makes success harder to achieve.
We will regale you with what you may not find obvious. Labor’s larger share of the economic pie isn’t just some COVID driven anomaly that may reverse course in much the same way golf expects some of golf’s incredible COVID bump to ease. It’s here to stay. We don’t draw that conclusion because we can predict the future. We draw it because we can predict the present.
And predicting the future requires nothing more than taking stock of a few “present” facts.
In May Senator Tom Umberg (D-Santa Ana) introduced an initiative that if it is able to secure two-thirds approval from both Senate and Assembly in the next 30 days would place on the November 2024 ballot an initiative that would enshrine in the state constitution the right to organize and negotiate with employers, including governmental employers, while invalidating laws and ordinances that violate those rights.
The Los Angeles County Board of Supervisors is poised to consider a motion by Janice Hahn (seconded by Supervisor Horvath) to direct County Staff to draft a “Tourism Worker Retention Minimum Wage Ordinance” that would require hotels that serve 60 or more guests and theme parks in unincorporated areas to be paid at least $25 an hour, rising to $30 an hour by 2028, when the Summer Olympics will be held in Los Angeles. The ordinance envisaged by Hahn’s motion parallels recent motions in Los Angeles City and Long Beach, confirming what we have come to understand about how what one large Southern California municipality does is soon echoed by others.
The Los Angeles Times attributed the following to Supervisor Hahn in last Thursday’s edition: “Too many employers are paying their workers low wages, which exacerbates poverty, homelessness, and housing insecurity. At the same time, hoteliers benefit from county investments in beaches and parks, attracting tourists to the region, and theme parks benefit from special zoning privileges, giving the county a vested interest in how their workers are paid.” The parallels to the 20 golf courses Los Angeles County leases to private operators are too close to ignore.
First reported by Politico and subsequently confirmed by multiple media outlets, a bill carried by Senate Appropriations Chair Anthony Portantino (D-Glendale) and co-authored by Assembly Member Laura Friedman (D-Burbank) and Assembly Appropriations Chair Chris Holden (D-Pasadena) will be drafted the last 30 days of the 2023 legislative session that would allow striking workers to receive unemployment benefits. Nothing of this sort has ever been part of California law, although New York and New Jersey do permit unemployment benefits for certain workers under certain circumstances. The details of the California version are not yet known, because nothing is yet in print. For those of you who may be asking, how can a bill that has never been in print, never been heard by a policy committee, and never been placed on the floor of either house of the legislature be drafted and rushed through to the Governor’s desk as this stage of the session, please now be viscerally educated as to what the “gut and amend” process is all about. A legislator need only strip all contents from a bill alive and well in the late stages of the process and replace those contents in whole with new and often completely unrelated language. No doubt, that final language will be the language the co-authors deem most likely to secure sufficient support within a Democratic Caucus that while always strongly pro-labor, was sufficiently attuned to business interests to nix an identical bill floated by AB 5 author Lorena Gonzalez (D-San Diego) in 2019. A failed 2019 effort that succeeds as a gut and amend job in 2023 would certainly tell us something significant about just how much things have changed post COVID.
These most recent “events” come on the heels of spikes in general minimum wages for all and differential minimum wages for specific sectors, e.g., hotels. Throw in a “great resignation,” record low unemployment rates, renewed inflation rates, and the fact that since the days of Miguel Contreras, Los Angeles has become the nation’s center of organizing activity, and the following “facts” shouldn’t surprise: 1) So far this year there have been 53 labor strikes in California involving 276,340 participants, 2) in 2022, there were 96 strikes with 92,527 participants, and 3) in 2021 there were 52 strikes with 64,849 participants [Source: Cornell University’s Labor Action Tracker, courtesy of the LA Times.]. All this, not to mention that 11,000 City of Los Angeles workers participated in a one-day work stoppage last week and Unite Here Local 11 continues to perform rolling strikes at the region’s hotels.
In past times these kinds of disruptions might have stimulated public antipathy. From what we know from all credible polling and reporting, the opposite is the case now. The last time Hollywood went on strike, the public had little sympathy. Today’s SAG/AFTRA and Writers Guild strike, the first time in 63 years that both have struck at the same time, has generated considerably more public support for the strikers than their studio employers. We are also informed by those same polls and media accounts that there is more coordination and cooperation than in past times among sectors like hotel workers and screenwriters that occupy vastly different economic niches.
Let’s not forget the populism that suffuses our current politics. Right leaning populism may be the much stronger of the two at the moment (it almost always has been in American history, and it is dominant right now in one of America’s political parties), but the left leaning version of it has a significant presence as well. Anything that smacks of elitism, exclusivity, dare we suggest “country club,” or the following caricature of golf we like to repeat to rattle golf’s all too often complacent cages carries the risk of running head on into both variants: Golf – too much land that uses too much water to serve the interests of the too few who have had too much for too long.
Those with great memories will remember that at the beginning of this essay we suggested that Labor’s roar, while certainly a business consideration of some consequence, was much more a consideration of political and social consequence. Golf has proven eminently capable of managing rising costs of all stripes, many of them more substantial than current labor accommodations. Golf will prove capable yet again; of this we have absolute confidence. What we do worry about, and you may have guessed by now why we penned this essay, is golf’s ability to frame everything it says and more importantly, does, in a way that aligns with the spirit of the times, or at least doesn’t overtly conflict with it and in the process, put golf squarely in the crosshairs of an irate public. An irate public gives birth to bad outcomes in the public arena.
To be fair, as well as fully accurate, golf has proven capable of crafting a fact-based narrative that places the game firmly in alignment with the environmental and conservation ethic that characterizes the spirit (and letter) of the times. And golf is proving increasingly capable of crafting a fact-based narrative that highlights the added social value/utility golf courses offer the communities in which they are located – a rapidly evolving work in progress. But the game also needs to begin working to come to terms and then align with a demonstrable tilt in favor of workers over their managers and labor over capital. Excuse the gross simplification, but we didn’t want to confuse what is really a quite simple point by cluttering it up with complication.
Securing best available outcomes in the public arena is an exercise in identifying one’s audience and speaking in a language best calculated to appeal to it.
The Legislature is on summer vacation. The members return August 14 and adjourn for the year 31 days later on September 14. Bills that pass through both houses by that date move to the Governor for signature or veto. Before they go to their respective floors for final votes, bills must first get through the two Appropriations Committees, the places where controversial bills often find their final resting places.
One very “controversial” bill, SB 389 (Allen; D-Redondo Beach), is one that we have been watching since it was filed early in the session, watching along with two companion bills, AB 460 (Bauer-Kahan; D-Orinda) and AB 1337 (Wicks; D-Oakland) that rise to the same level of “controversy” to the degree to which they too represent challenges to water rights that have been sacrosanct for more than a century.
As originally introduced in February, SB 389 proposed the addition of a new article to the Water Code authorizing the State Water Board to:Investigate a diversion and use of water from a stream system to determine whether the diversion and use are based upon a valid right;Issue an information order to a water user to provide technical reports or other information related to the diversion;Issue a decision or order that determines the water right, whether limited in scope or wholly invalid;Find forfeiture even without a conflicting claim by another water user; andRepose the burden of proof upon a water user to establish the validity of any claimed water right.
In short, SB 389 as initially introduced would have vitiated California’s longstanding Riparian and pre-1914 water rights by placing the “determination” of those rights under the jurisdiction of the State Water Resources Control Board (SWRCB). Under existing law, often referred to as the “California Doctrine,” riparian and appropriative rights are recognized as determinative. Holders thereof take precedence over all other claims.
A bit of background to place the significance of this legislation in context.
Riparian rights are attached to land that is contiguous to a river, stream, or other natural water course. They permit a landowner to put the water to beneficial use on their land. Riparian rights derive from English common law, which the California Legislature adopted upon becoming an American state in 1850.
The doctrine of prior appropriation (also known as “first in time, first in right”) applies to appropriative rights and is a seniority system that still applies today. Under prior appropriation, a junior water right holder (i.e., one that claimed a right at a date after a senior water right claimant) has his/her right curtailed, or cut back, in times of shortage before the next claimant has his/her right curtailed. Like riparian rights, appropriative rights were recognized in the 19th Century, albeit a few years after California entered the Union by virtue of an 1855 California Supreme Court decision that was codified by an act of the legislature in 1872.
It wasn’t until 1913 that California established a more comprehensive and trackable framework for managing water rights with the creation of a state Water Commission accorded sole jurisdiction to determine rights to unappropriated surface waters. The Act that created the Water Commission recognized that water rights obtained prior to its passage were still valid. The Water Commission later became the State Water Resources Control Board.
Given its vitiation of 110 years of established California water law, SB 389 as first proposed incurred considerable opposition, most significantly from the politically influential Association of California Water Agencies (ACWA). As we suggested earlier this year when we first brought this bill and AB 460 to your attention, ACWA’s opposition usually spells a bill’s defeat, and to the degree to which SB 389 and AB 460 might offer exceptions to that general rule would represent the degree to which we could be on the cusp of a protracted period of radical changes to California water law.
SB 389 is very much alive as we await the return of the legislators from their summer hiatuses. It has passed through the floor of the Senate and is now in the Assembly, where it has passed through the Committee on Water, Parks, and Wildlife and moved forward to Chris Holden’s (D-Pasadena) Appropriations Committee. Should it make it through Appropriations, it moves to the floor, where passage would then be all but guaranteed.
But there is a rub. The version passed by the Senate was significantly amended prior to passage, and the version that passed through Water, Parks and Wildlife in the Assembly was amended more so. As it now reads, SB 389 authorizes the State Water Board to merely “investigate and ascertain” the validity of surface water rights as opposed to “determine” the validity of those rights. In addition, the amended bill now merely obligates the State Water Board to burden a water user as is reasonably needed to ascertain the information required to sustain a right, and it deletes a provision that would have statutorily imposed the burden of proof on any water right claimant.
Opposition from ACWA, various agricultural interests, and municipalities certainly contributed to the watering down of SB 389; however, watered down or not, should it make through Appropriations and the floor and be signed by Governor Newsom, we believe it presages a cascade of rights-reversing water legislation in 2024 and beyond.
Those “companion” bills, AB 460 that would authorize the State Water Board to issue “interim relief” orders to enforce the reasonable use doctrine and water rights, and AB 1337 that would authorize the State Water Board to issue curtailment orders for any diversion, even pre-1914 appropriative rights, are dead for 2023, having been pulled from their committees of reference prior to the summer recess but remain alive as 2-year bills come January 2024. Getting even that far tells us something about where California is headed in terms of erosions in longstanding water rights and expectations.
There is one bill that we started the session “watching” and to a small degree worrying about – AB 1572 (Friedman; D-Burbank), a bill that prohibits the use of potable water to irrigate nonfunctional turf on commercial, municipal, institutional, and multifamily residential properties beginning in 2026. Watching and worrying not because of its plain language distinguishing functional from non-functional turf, but rather because of the propensity of certain environmental organizations and certain media outlets to identify the turf on golf courses as non-functional even though California law makes clear the opposite.
Even before AB 1572 made it through its Assembly house of origin, the following language identifying “recreational” areas as functional turf and thus exempt from the bill’s proscriptions was added:
“Recreational use area” means an area designated by a property owner or a governmental agency to accommodate human foot traffic for recreation, including, but not limited to, sports fields, golf courses, playgrounds, picnic grounds, or pet exercise areas. This recreation may be either formal or informal.
In its travel through the Senate AB 1572 was further amended to buttress local over state control and to use the California Water Efficiency Partnerships definition of functional and nonfunctional turf, which rather than using two generic categories of turf, employs three categories, functional, recreational, and ornamental, reinforcing further golf’s longstanding status as “functional/recreational” turf for the purposes of this and other proscriptions under California law.
AB 1572, along with its companion AB 1573 [prohibition of nonfunctional turf in new or renovated commercial/industrial areas] (Friedman; D-Burbank) that also contains the same “recreational use area” language that makes clear golf’s inclusion therein, are now so clear about golf’s place in the functional/recreational turf universe that the California Alliance for Golf (CAG) has filed formal letters of support for both bills with the Senate Appropriations Committee.
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We wish we had more to report regarding the appearance of that Southern California News Group July 5 editorial advocating the resurrection of AB 1910, but we know no more today than we did then other than the fact that its appearance should be construed by every golf organization, golf company, golf club, and golf interest in the state as presaging the return of something akin to 1910 in the next session. We have been forewarned.
There are two interregnums in play right now – the lull before the Legislature returns to finish its 2023 work and the lull before the 2024 session commences and with it perhaps another bout with a “Public Golf Endangerment Act.”
An op-ed in the Los Angeles Times during US Open week captured the attention of the golf and non-golf worlds. Its title: “The PGA Tour-LIV Golf merger isn’t the problem; Golf is.” Its author: A law professor from the Midwest whose magnum opus on golf is a law review article that posits the notion that mere reform of the game isn’t enough; only “abolition” will do. No doubt the good law professor understands what the term, “abolition,” conjures up in the American imagination.
If you missed it, you can access it by clicking here. If upon reading the rest of this Update you would like to discuss further, please reach out to either Craig Kessler or Kevin Fitzgerald. We would welcome the conversation.
Much of the anti-golf screed repeats conclusions about golf’s use of water and non-organics that are as false as they are incendiary. The same goes for repetition of the arguments that the backers of last year’s AB 1910 issued to single golf and only golf out for the receipt of public subsidies to repurpose courses as housing tracts. So too, the dredging up of some of golf’s exclusionary past, as if golf doesn’t have a lot of company in that respect and hasn’t spent the last 60 years remediating it.
But there was one aspect of the op-ed that may have caught you by surprise – the notion that private golf clubs get “special tax breaks” in the form of a tax valuation basis that insulates them from paying what in the author’s opinion is their “fair share,” with the gap between what they remit under settled California law and what the author believes they ought to remit representing a “subsidy.”
The law professor is certainly entitled to his opinion, and the Los Angeles Times is certainly entitled to run that opinion on its Opinion Page.
But there is more than mere “opinion” that one needs to know in order to gain a full understanding of the matter – things like the law on the subject, the history of that law, the sound public policies and public goods that support that law and history, and the undesirable consequences of jettisoning both to satisfy a populist rant.
What follows is some law, some history, some public policy, and some political/social reality to put last week’s op-ed in perspective. Okay – a little “opinion” too. We too are entitled to an opinion.
BACKGROUND
In 1960 California’s voters approved Proposition 6. Its title: “Assessment of Golf Courses.” The initiative set a basis for determining the taxes to be paid by private non-profit golf clubs [501 (c)(7) corporations] that remains in effect to this day and is enshrined in ARTICLE XIII, Section 10 of the California Constitution as follows:
Real property in a parcel of 10 or more acres which, on the lien date and for 2 or more years immediately preceding, has been used exclusively for nonprofit golf course purposes shall be assessed for taxation on the basis of such use, plus any value attributable to mines, quarries, hydrocarbon substances, or other minerals in the property or the right to extract hydrocarbons or other minerals from the property. [ARTICLE XIII, Section 10]
Over the course of 63 years of interpretation by county assessors and boards of equalization, the standard enunciated in this initiative has resulted in tax bills calculated to incent golf clubs to remain what the initiative’s proponents referred in their formal ballot argument as “privately paid-for parks.” Most of the state’s cities, including the City of Los Angeles, zone their private golf clubs “open space” in deference to the Constitutional provision, or as the ballot argument put forth by Proposition 6’s backers much more boldly stated the matter in their introductory remarks:
How would you like the golf courses nearest your home to be converted into noisy factory layouts, clamorous supermarkets, traffic jammed shopping centers or brick and mortar apartment units? Proposition 6 is designed to save these courses and their benefits to you and your family as wooded, planted open space areas giving green belt breathing space to California’s growing cities.
That ballot argument was co-authored by one of Proposition 6’s biggest political backers, Augustus Hawkins, who the historians and political junkies among you will remember as one of the 20th Century’s most prominent Democratic legislators (28 years in the California Assembly and 28 years in the U.S. House of Representatives). While a subject for another day, golf really does need to come to terms with its complete reversal of fortune in terms of the strong support it once had from the left side of the political aisle. Gus Hawkins, co-founder of the Congressional Black Caucus, represented inner city Los Angeles in the House from 1962-1990 and vigorously pushed this initiative to, as he wrote, prevent California’s “privately paid-for parks,” as he defined country clubs, from “being taxed out of existence and taxed into overbuilt industrial and commercial developments.”
The arguments in favor of 1960’s Proposition 6 are worth reexamining in light of last week’s screed in the Opinion Section of the Los Angeles Times, which was but the latest salvo from those who like this author are really about “abolishing” the game, something even Malcolm Gladwell in his rant “A Good Walk Spoiled” didn’t suggest, although he did subtitle his viral podcast, “why I hate golf and you should too.”
Anything worth reexamining is worth repeating. So, here are a few of Proposition 6’s pro arguments excerpted from that 1960 ballot:
TAX REVENUE LOSS DUE TO DEPRECIATING VALUE OF SURROUNDING LAND WILL BE AVOIDED
Residential areas surrounding courses pay higher taxes because of scenic charm and prestige. Unfair taxes on the courses, forcing them to sell out and convert into commercial use, drops the value of the residential areas surrounding, erodes the tax base and throws a heavier tax burden on remaining taxpayers.
PROPOSITION 6 WILL HELP PROTECT OUR TOURIST AND CONVENTION INDUSTRY
These courses are a leading tourist and convention attraction. Tourists bring more than $1 billion in new outside money yearly into California. This means jobs for thousands. Fair taxation under Proposition 6 will help protect a major facility sustaining this source of employment.
TAX PRESSURE HURTS THE THOUSANDS WHO SEEK RECREATION ON PUBLIC LINKS
Courses cut down by the “tax ax” throw their membership into the public links, adding to the already great pressure there. Thus, thousands who cannot afford to belong to private golf clubs will be victimized.
OUR CITIES NEED OPEN AREAS AND “GREEN BELTS”
Civilian defense authorities say golf courses are indispensable facilities for use as mobilization areas in case of emergency. Parks and planted areas operated at private cost contribute to the beauty, health, and appeal of our growing metropolitan areas. Planted areas help decontaminate the air because plants absorb carbon dioxide and give off oxygen; thus, combatting air pollution.
TAKEAWAYS
Sixty-three (63) years later the arguments remain valid, although in 2023 we would need to predicate the value of golf courses as mobilization areas not for “civilian defense,” but rather firefighting. If anything, the relationship between maintenance of private equity clubs and public links access, and its companion affordability, is a much more visceral relationship today than it was in 1960.
There are only two types of golf courses in the City of Los Angeles today – tony private clubs and municipal golf courses. The in-between – the daily fee course – which did exist in large numbers in 1960, are today gone, their once permeable surfaces that provided open spaces, heat sinks, and active recreation now covered in high rise buildings, shopping centers, hotels, and residential communities. It was not the result of some conspiracy or anti-golf animus, merely the workings of market capitalism.
Taken together, the public policy/public good arguments that sold Proposition 6 to California’s electorate in 1960 could have been summed up then as it can even much more so be summed up now – TAX SOMETHING AT HIGHEST AND BEST USE AND HIGHEST AND BEST USE IS WHAT YOU WILL GET – and that’s not what often makes for what those who live in Los Angeles and other urbanized California communities consider a high quality life. It’s why that city has used public funds to take 155,000 acres of land in its Santa Monica Mountains permanently out of circulation for anything other than open space. Dare we suggest that there are far more opportunity costs and tax losses involved in that act of market capitalism forbearance than the forbearance required to allow for not just private golf recreation, but privately held recreation of all types. Dare we also suggest to those enamored of using public subsidies to repurpose publicly held golf courses for commercial purposes that taken together all of California’s golf courses represent less acreage – 144,000 acres to be exact.
LOOKING FORWARD
There are two (2) sides to the story told in last week’s Los Angeles Times. If the only persons telling the story are those like the author of the hit op-ed piece who openly makes a case that golf just needs to be “abolished,” that will end up being the only side that the general public hears. And that will be the side that frames a debate thereon should 2/3 of each House of the California legislature find that the matter should be put to the voters again in the 2020’s.
What appeared in last week’s Los Angeles Times was not the least bit surprising. Indeed, we predicted such one year ago – not only that the issue would be joined when the US Open graced the fairways of Los Angeles for the 1st time in 75 years, but that the issue would be joined in the form of an op-ed in the LA Times. The stage was simply too well set for those who have long aimed at gaining support for singling golf out among other open/green space activities for conversion to commercial purposes.
Golf has a tough call to make. Was last week just a one-time blip in a longstanding crusade by a decidedly minority view that will escape back into silence now that the 2023 US Open is in the record books? Or does it portend more to come? More AB 1910’s, more municipal conversions, and more populist screeds against the very notion of private clubs in urban areas. Overreaction to a negligible threat can provide it with oxygen otherwise unattainable. On the other hand, underreaction to a real threat can put one too far behind to respond effectively. We did say this was a “tough call.”
Last Friday was the last day of the 2023 session for bills to pass their houses of origin and move to the other house for consideration. Those bills that did make it over now go through the same policy committee, appropriations, and floor vote processes that if similarly successful and subsequently passed in identical form, get moved to the Governor for signature or veto. That has to happen by midnight September 14, or those bills too are dead for 2023.
As we have been reporting since the beginning of the 2023 session, there are six (6) broad categories we have been tracking and in a few cases taking action upon: 1) Significant changes to the Surplus Land Act; 2) state usurpations of local land use control; 3) compression of CEQA (California Environmental Quality Act) and other permitting processes/protocols (e.g., zoning); 4) all things water; 5) additional regulatory controls on equipment and/or non-organic inputs; and 6) anything resembling the two municipal golf bills that dominated our attentions the previous two sessions (AB 672 & AB 1910). Tracking/Watching
With respect to that last broad category, we are happy to report that nothing approximating the two bills we tagged “Public Golf Endangerment Acts” the last two sessions has been on anybody’s radar screen in the Capitol, a testament in part to the way in which the California golf community was able during those two campaigns to trumpet the social/environmental value proposition represented by golf courses in the California communities in which they are located – a value for golfers and non-golfers alike.
With respect to the ongoing slide of open space/recreation’s priority over housing in the Surplus Land Act, this year was much less active than the last four sessions. With respect to further state usurpations of local land use control, the same – less activity than previous sessions. Both may have something to do with the fact that there was so much activity 2019-2022. We track these not so much because they directly affect golf, but because anything that affects the processes employed to determine the use and/or reuse of land can impinge upon a sector that encumbers the kind of acreage golf uses.
With respect to compression of CEQA and other permitting protocols, the action in this legislative session comes mostly from the Governor. Newsom has proposed that the legislature adopt compressed timeframes for the operation of CEQA (California Environmental Quality Act), particularly with respect to the time allowed for the disposition of lawsuits challenging the adequacy of the Environmental Impact Reports that are central thereto. The Governor has proposed that these regulatory shortcuts be adopted as budget trailer bills, which means that their particulars will not be vetted through the same dilatory processes that the bills that passed their houses Friday are having to endure. They’ll be hatched out of public sight, likely by each house’s respective leaderships. Because CEQA is so jealously protected by an environmental community that is a substantial component of this state’s Democratic majority, many believe the legislature just might be too busy with closing the $32 billion and growing budget deficit and those bills that did go through the normal legislative order to take up the Governor’s request.
Why do we “track/watch” CEQA and other land use permitting reforms? The same reason we track/watch housing’s ascendancy over open space/parks/recreation in the Surplus Land Act and fast tracking of zoning and other land use processes – because local communities are always the bulwark against the repurposing of golf courses for higher and better economic purposes or purposes that a distant central government finds a more important interest in the collective than a local community finds in the specific. It makes no sense for golf to get involved in these kinds of bills. It would cause more harm than good for a myriad of reasons that we’ll leave for another discussion another day. But getting a sense of where these trends are headed is of immense value to a sector that needs lead time to incorporate these trends into its long-term business and strategic planning.
While golf did take action on some water bills (see below), on others we tracked/watched and for the same reason we tracked the other bills in this opening discussion – golf has neither the visceral interest nor the bandwidth to affect their fate but does have a keen interest in learning where things might be headed with respect to longstanding water rights and arrangements that golf takes for granted at great peril.
Three (3) water bills fit that description. First, their particulars, followed by their much longer-term implications.
AB 1337 (Wicks; D-Oakland) – would give the State Water Control Board (SWRCB) definitive authority to issue curtailment orders for all water diverters, including holders of senior rights. Rationale for need to provide that definitive authority: An appellate decision that found that SWRCB did not have the authority to order holders of senior rights cuts.
SB 389 (Allen; D-Santa Monica) – would clarify the state’s authority to investigate and verify whether the claims of senior rights holders are valid and if valid, accurate.
AB 460 (Bauer-Kahan; D-Orinda) – would give SWRCB the authority to issue temporary orders to cease what it determines are “unlawful takings of water,” and would increase fines for violations up to $10K per day plus $2.5K per acre-foot of water diverted. Rationale: The existing fine schedule has not proven effective in disincentivizing unlawful diversions, and SWRCB’s authority to stop unlawful diversions and apply fines therefore has not proven effective in stopping certain recent massive diversions that ultimately proved unlawful.
While the bills’ proponents claim that these three (3) bills do nothing more than make the current legal/regulatory structure work more effectively, the Association of California Water Agencies (ACWA), which represents roughly 450 water agencies, claims that they radically transform the way the state’s water rights system is implemented, managed, and enforced. ACWA’s legislative advocate has gone as far as to suggest very publicly that these three bills taken together would lead to damaging unintended consequences for both senior water rights holders and communities and businesses that depend upon a reliable water supply.
Who’s right? Our take: Both, albeit it would seem that ACWA is a little more “right” than the bill proponents. On one hand much of what these bills aim to achieve amounts to giving the state the tools necessary to execute extant law. On the other hand, to the degree to which much of what these bills portend have been found by appellate courts to be beyond the law’s current authority, ACWA’s claims about transformation ring true. Whether it portends “radical” transformation cum damaging unintended consequences or whether that description is more hyperbole than reality is not clear to us, but it is certainly true that much about these bills is parallel to the situation in the Colorado Basin. Both open Pandora’s Box of senior rights, riparian rights, and pre-1914 rights in an effort to reconcile those rights with the water facts on the ground while vitiating them de facto without doing so de jure. ACWA’s reaction might be a bit over the top, but the consortium of 450 water agencies sees through the fog to what can only in the long run be the same reopening of old intra-California arrangements as the ongoing interstate recalibrations in the Colorado Basin.
As these bills move to their respective other houses for vetting, we’ll be watching to see whether they remain intact or are amended per language offered in their original houses of origin that conceded the need to restructure the way the state acquires and manages usage/diversion data as well as the need for much better monitoring. ACWA carries great weight in Sacramento. In previous years, these bills would have either died by now or moved forward with significant amendments.
What to make of all this? Sometimes slowly, sometimes quickly, sometimes painfully, sometimes litigiously, the laws and regulations regarding water are going to change. They will be brought into alignment with changed circumstances. Period; hard stop. Golf needs to plan accordingly. Acting
Whether “Public Golf Endangerment Acts,” independent contracting, gas powered equipment, glyphosate, or COVID, the California golf community has been highly active in recent legislative sessions.
This session gave us a much-needed break. We felt the need to weigh in on only four (4) bills, three of which we felt that with certain amendments we could support and only one which we thought merited opposition.
It gives us nothing but pleasure to report that the three (3) bills we felt merited support with amendments passed the Assembly with those amendments and the one bill we felt merited opposition didn’t make it out of its policy committee of reference.
AB 363 (Bauer-Kahan; D-Orinda) – proposes protocols for adopting controls on non-agricultural use of neonicotinoids by 2026. A bill that would have outright banned the non-agricultural use of neonicotinoids and provided no room for enabling licensed applicators in activities other than agriculture was vetoed by Governor Newsom last year. For those reasons, and not for reasons of opposing restrictions on the use of neonicotinoids, the California golf community opposed last year’s bill but with this year’s changes, which met all of golf’s objections to last year’s bill, golf has no problems with the study proposed therein, the restrictions proposed therein, or the window left open to enable very limited non-agricultural applications like those involved in golf.
AB 1572 & AB 1573 (Friedman; D-Burbank) – these companion bills cover slightly different territory in curtailing the use of potable water to irrigate “non-functional turf.” While golf courses are defined in California’s Codes, including the Model Water Efficient Landscape Ordinance (MWELO) as “Special Landscape Areas” and thus part of the category of turf designated as “functional” and thus exempt from the restrictions contained in these two bills, certain environmental organizations and media outlets frequently refer to golf courses as “non-functional” for the purposes of accommodating various drought protocols and emergency curtailment situations. We brought that to the attention of the author, who then amended both bills to specifically designate golf as part of the family of recreational activities exempt from the bill’s non-functional restrictions as follows: “Recreational use area” means an area designated by a property owner or a government agency to accommodate human foot traffic for recreation, such as sports fields, golf courses, playgrounds, picnic grounds, or pet exercise areas. Such recreation may be either formal or informal.
The inclusion of this language in AB 1572 and 1573 may strike some as much ado about little, but to those who labor in the fields of legislative advocacy and understand how legislative language easily becomes embedded in the codes and picked up in future pieces of legislation, it’s significant. Just ask the game’s national organizations how much damage golf’s categorization as an activity unworthy of emergency relief in some 1977 IRS language got picked up in subsequent legislation dealing with eligibility for federal disaster assistance. Call it what you will – incorporation by reference or copy and paste – damaging language and beneficial language once established in the codes can be hard to disestablish.
AB 1590, which we reported on earlier this year, was a bill that would have prohibited the use of all non-organic inputs on any golf resort containing a 300-room hotel in the California Coastal Zone. The bill was as bizarre as it was limited in scope – only 6 golf resorts in the state by our count; however, to the extent to which the rationale for the bill was the use of non-organics on golf courses in the coastal zone, the effect of passage could have provided a very slippery slope toward such prohibition on scores of golf courses in the state. The bill collapsed in the Assembly Natural Resources Committee once the legislators recognized what we came to understand only at that Committee’s hearing. It was not a serious piece of legislation, but rather another round in Unite Here Local 11’s ongoing battle with the Terrenea Golf Resort on the south side of the Palos Verdes Peninsula. Concluding
While the stakes were certainly much larger the last few years, particularly with respect to those municipal golf endangerment acts, the 2023 session is shaping up quite nicely. Golf continues to punch above its weight – way above its weight. And while we can take a measure of pride in that, what we should much more take away is the need to add some weight.
And let me share that at least in the Southern part of the state, golf’s advocacy functionality has added weight. The USGA has granted SCGA a Boatwright Intern dedicated exclusively to Public Affairs. His name is Kyle Newell. He is a 2nd year MBA student at USC. He started with us last week. The Southern California PGA Section has hired Matt Rogers to oversee Public Affairs as well as lend his skills to other Section duties. Matt collaborated with us last year on AB 1910 and some other initiatives. He had previously worked in the office of California Congressman Mike Garcia (R-Santa Clarita). With Kyle and Matt on board we’ll be able to “punch” even higher. It’s a good thing. Just as we know that this year’s rain and snow was but a temporary reprieve from what promises to be ongoing water problems, this year’s lighter legislative load was but a temporary break from increasing Sacramento challenges.
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After next week’s U.S. Open, we’ll return with updates on the Colorado River situation, what the U.S. Supreme Court’s decision in Sackett v. Environmental Protection Agency about “waters of the United States” means for us in California, and good news about efforts to stave off development of some municipal and daily fee facilities. And whatever else pops up in two weeks. Something always does. Multiple somethings usually.
In light of the Lower Basin states’ conservation proposal, the Biden Administration has announced that it is temporarily withdrawing the draft Supplemental Environmental Impact Statement (SEIS) published last month so that it can fully analyze the effects of the proposal under the National Environmental Policy Act (NEPA). The United States Bureau of Reclamation will then publish an updated draft SEIS for public comment with the consensus-based proposal as an action alternative. Accordingly, the original May 30, 2023, deadline for the submission of comments on the draft SEIS is no longer in effect. The Department plans to finalize the SEIS process later this year.
The Arizona/California/Nevada proposal commits the three states to conserve at least 3 million-acre-feet of system water through the end of 2026, when the current operating guidelines are set to expire. Of those system conservation savings, 2.3-million-acre feet will be compensated through funding from last December’s Inflation Reduction Act (IRA), which provided substantial monies to the three states to increase near-term water conservation, build long term system efficiency, and prevent the Colorado River System’s reservoirs from falling to critically low elevations that would threaten water deliveries and power production. Under this proposal, the remaining system conservation needed for sustainable operation will be achieved through voluntary, uncompensated reductions by the Lower Basin states.
Early next month, the federal government will formally advance the process for the development of new operating guidelines replacing the 2007 Colorado River Interim Guidelines for Lower Basin Shortages and the Coordinated Operations for Lake Powell and Lake Mead at the end of 2026. In the coming weeks, expect to see a Notice of Intent for the Environmental Impact Statement related to the post-2026 guidelines. With the three Lower Basin States having come to agreement on how to divvy up the savings necessary to protect the integrity of the Colorado Basin in the short run, both processes are going to proceed in tandem.
As we have been suggesting in all our reporting on this subject, the actions and statements of the three Reclamation States and the United States Government in recent months have all been about positioning themselves to come to precisely the consensus evidenced by today’s breakthrough. The precise details of that consensus – the amount of allocation ceded by each state and each agency within each state – remain to be worked out, but the outlines are clear for Southern California. The State Water Project allocation may be 100% for the first time in years, but we’ll be losing some of our Colorado River water between now and 2026, after which we may well lose even more. Given that golf’s portion of that loss will not be part of the “compensated” savings envisaged through federal largesse – you can fallow farmland; you can’t fallow golf courses – the need to keep reducing the game’s water footprint promises to become just that much more acute, as does the need for the game to make clear to policymakers that golf understands this fact to its very core.
Click here to read the joint letter filed today by the States of Arizona, California, and Nevada – a letter that was well enough received by the Biden Administration to cause the Bureau of Reclamation to withdraw the draconian SEIS it issued after January 31 came and went without agreement among the states on so much as a temporary salve to the Basin’s woes.
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