SCGA Public Affairs

2023 LEGISLATIVE SESSION TELLS US MUCH ABOUT DIRECTION OF CALIFORNIA WATER LAW

Monday, September 18, 2023

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 Water Agencies (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 labor summer” 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.


# # # # # # # # # # #

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 labor summer” 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.


# # # # # # # # # # #

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 labor summer” 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.


# # # # # # # # # # #

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.

When: Wednesday, September 20 @ 9:00 AM

Where: Metropolitan Water District at Union Station
Register: Networking Event at MWD - New Rebate/Incentive Programs

No fee Lunch provided Parking validated

When: Wednesday, September 20 @ 9:00 AM
Where: Metropolitan Water District at Union Station
Register: Networking Event at MWD - New Rebate/Incentive Programs

No fee Lunch provided Parking validated

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.

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