Article provided by Craig Kessler, SCGA
June 6, 2023
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).
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.
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.
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.