SCGA Public Affairs

THE USUAL SUSPECTS LEGISLATION, REGULATION, AND WEATHER

Monday, October 3, 2022

THE USUAL SUSPECTS

LEGISLATION, REGULATION, AND WEATHER

The first Monday in October is a phrase synonymous with the beginning of the next session of the United States Supreme Court, which much like the last session, promises to be a substantive one. But for golf in Southern California the phrase means two things of more specific interest: 1) The date by which we know which among the bills passed by the legislature in 2022 were signed by the Governor into law and which were vetoed; and 2) the beginning of the next official precipitation year.

Here is what we know about the 2022 bills directly affecting golf and what we can only predict about the rain and snow counts for the coming season.

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Given the success enjoyed by the proponents of outright bans on the use of neonicotinoids in other states the last couple of years, we thought it much more likely than not that Governor Newsom would sign AB 2146, even though agriculture opposed it and many legislators who voted for it expressed concern about its details. Agriculture’s opposition was curious, given that licensed agricultural applicators were exempted; however, based on intelligence we received from the GCSAA’s Jeff Jensen, we understand that opposition to have been based upon agriculture’s belief that the bill was a stalking horse for making the ban universal in a future session.

While the California golf community makes use of neonicotinoids, that use is not critical. There are alternatives, which may explain why the California Alliance for Golf (CAG) “watched” the bill rather than take a position, albeit the GCSAA, which has a focused interest in these kinds of matters, did take an “oppose unless amended” position that made the only condition to removing that opposition the inclusion of golf’s licensed applicators in the exemption and limiting that exemption to turf applications. GCSAA understands the California formula for legislative/regulatory success well – never go against the grain of the target audience by challenging its universally accepted aims and premises; distill your ask into something consistent with them. Our strong guess is that if the state golf Alliance had not been consumed with AB 1910 in the 2022 session, it would have taken the identical stance.

In the final analysis neither House of the Legislature was moved by the opposition, but Governor Newsom was. Last Thursday he vetoed AB 2146, and his veto message echoed the concerns raised by Jeff Jensen and GCSAA. Among those concerns: Circumvention of the Department of Pesticide Regulation’s (DPR) regulatory authority; failure to comprehensively evaluate non-agricultural uses, and regulation of an integrated activity through ad hoc means. DPR will continue its Rulemaking re agricultural and non-agricultural uses of neonicotinoids and given the much more dilatory nature of that process compared to the rushed processes of legislating, golf will have an ample opportunity in 2023 to receive the same licensed applicator exemption as agriculture without having to in any way challenge the utility of restricting neonicotinoid use.

If you’re wondering why we went into such excruciating detail about a simple gubernatorial veto of a bill dealing with subject matter sure to be enshrined in a regulation, it’s because in those details we just referred to as the “California formula” are many of the reasons why golf in California has been more successful than its counterparts in other states regarding such matters as neonicotinoids, glyphosate, independent contractors, taxes, municipal golf, and whole host of other issues that many think ought to be harder for the California golf community to handle with any measure of success. We could write a book on the subject, but for today’s much briefer “update,” suffice it to say know your audience.

As expected, the Governor signed AB 2142, a bill that extends income tax exemptions for conservation rebates, the most notable and consequential of which for golf are turf rebates, but we’re working with public agencies to add more variety to that mix for the golf community.

As previously mentioned, AB 2201, a bill that would have mandated additional layers of approval regarding the sinking of new wells – e.g., findings by licensed registered engineers of no connection to subsidence and other matters – was withdrawn at the last minute by author Steve Bennett (D-Ventura). We believe it was withdrawn to avoid the governor’s veto pen for much the same reason that AB 2146 was the recipient of that pen – a confusing duplication of an extant regulatory process, in this case the groundwater sustainability agencies created by the 2014 Groundwater Sustainability Act. To the degree to which Bennett remains committed to adding more teeth to groundwater regulation – as a member of the Ventura County Board of Supervisors a few years ago he sponsored a successful motion to ban the sinking of new wells in that county – we may well see a version of AB 2201 that satisfies some of the governor’s objections in 2023. We’ll be watching.

One last comment about the 2022 legislative session before we get to everybody’s favorite subject, weather. AB 1910 is in the rearview mirror. But the reasons that animated it are not. Housing continues to be the number one concern of every California demographic. It was the subject of two of the most epochal pieces of legislation passed in the 2022 session and signed by Governor Newsom – companion Assembly and Senate bills (AB 2011 and SB 6) that managed to assuage the concerns of all the interests that have nixed these bills in past sessions by managing to bring labor and environmental groups together to expedite CEQA, override local zoning prerogative, and otherwise shorten permitting processes to allow for the rapid conversion of shopping malls and other idle commercial properties into housing. It was the subject of 2021’s SB 9 and 10, which together created expedited processes and lessened parking requirements for housing built in proximity to transit stops and single-family housing upgraded to multiple housing units on the same single-family lot. It is sure to continue to bring changes to the Surplus Land Act, which is the bulwark golf, parks, sports fields, and other green/open spaces depend upon for continued priority in a state consumed with building housing atop everything.

As much as golf did in 2022 to make the case that municipal golf courses provide much more community, environmental, and social benefit as golf courses than housing complexes, those who don’t think municipal golf courses are parks in the same way that all other active recreational activities routinely are; they are still prevalent among us, and they have in YIMBY (Yes in My Backyard) a well-funded and very professional advocacy organization to keep pressing their case for conversion. Golf relaxes at great peril.

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We all engage in the great sport of criticizing the weathercaster. We know that it’s hard to predict weather in a place where the weather comes off the largest ocean in the world, but we can’t help it. They get it wrong; we make fun.

But we can only hope that they’ve got it wrong this time, because the meteorologists are predicting a 4th year like the last three – another La Niña pattern set to bring the American Southwest another dry year and another dry year in a climate sufficiently warmer and drier to produce less runoff from whatever meager snowpack we do get in the Sierra Nevada and Rocky Mountain Ranges. An 80% chance of persisting through January for the 3rd year in a row say the meteorologists.

A “three-peat” La Niña is rare. It has happened only twice before since record-keeping began. Of course, “record-keeping” encompasses only a 140-year data base, less than a nanosecond in geologic time. La Niña occurs when ocean temperatures in the Eastern Tropical Pacific are below normal, which shifts the storm track that California depends on northward.

Add to the dismal predictions about the precipitation year that began Saturday a few more disquieting realities, and the picture is not pretty. The Colorado River, which during the 2012-2016 drought was sufficiently robust to provide relief, is in critical condition today. It is highly likely that California is going to be reducing much of its Colorado River allocation when the seven states in the Colorado Compact meet in Las Vegas in December.

A feature of both traditional La Niña’s and even more so the conditions that prevail under warmer, drier conditions is the “atmospheric river” – deluges that drop inordinate amounts of rain in quick bursts on an infrequent basis, providing most of a year’s precipitation in two or three storms. The problem: The infrastructure required to capture that rain and store it does not yet exist. Less snow that yields less water per snowflake in conjunction with less rain that falls less frequently that cannot be captured before running out to sea; that’s what the weathercasters are telling us to expect. We can only hope that they have it dead wrong. Our laugh will be one of relief, not derision. Golf can deal with the first four levels of drought declaration. It can probably manage the 5th level for a time. Beyond that, golf and much else are in deep trouble.

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One last matter, a regulatory one directly related to today’s weather report. California’s Department of Water Resources (DWR) released a document Friday that gives us our first indication that the 1.0 plant factor for turf the allied California golf community advocated so strongly to keep in the state’s Model Water Efficient Landscape Ordinance (MWELO) is on track to be retained. MWELO governs the plant palettes of new constructions and is generally incorporated by reference in the local ordinances that guide local planning agencies and commissions. It doesn’t take much to qualify as a “new construction,” particularly for golf courses, where the mere rebuild of a few greens qualifies.

But there is a wrinkle in that retention. DWR plans to allow local jurisdictions to adopt the stricter 0.8 plant factor for special landscapes in residential parcels. We can’t figure out what the “residential parcel” qualifier means. Within HOA’s? Within traditional parks surrounded by unaffiliated residences? More than that? At minimum, it’s wiggle room that has just made its first appearance, and first appearances often presage expansion. The Natural Resources Defense Council (NDRC) came within a whisker in 2015 of making that 0.8 plant factor the default standard for all special landscapes. We doubt they’ve given up on that, and we will certainly track this closely to determine whether it is a small carve out for a specific narrow purpose or a stalking horse for reducing turf’s plant factor in California’s Codes.

The sharper irrigation minds among you can click here to read the DWR document and perhaps let us know.

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