Thursday, July 27, 2023

Article provided by Craig Kessler, SCGA

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.”