In 2029, a new law will ban watering of “nonfunctional turf” with potable water. What is nonfunctional turf, and must your HOA prepare to remove it?
In 2023, the Legislature passed Assembly Bill 1572 and created Water Code Section 10608.14, applicable to properties including common interest developments. This new statute requires various property owners, including HOAs, to either remove nonfunctional turf or begin irrigating it with reclaimed water. HOAs must comply before 2029. Since most HOAs do not have reclaimed water readily available to them without great expense, many HOAs are erroneously assuming they must remove grass areas not regularly used by residents.
However, a careful review of the statutes and connected regulations reveals that probably very few — if any — California common interest developments will be affected by this law.
What is turf? Under the regulations, turn means a “ground cover surface of mowed grass.” (Title 23 California Code of Regulations Section 491(zzz)). Therefore, grass that is not mowed is not turf. So, which mowed grass areas would be considered nonfunctional turf under the statute?
What is nonfunctional turf? Nonfunctional turf is defined by Water Code Section 10608.12(u) as “turf that is not functional turf.” OK, that doesn’t seem terribly helpful.
What is functional turf? It is defined by Water Code Section 10608.12(m) as “a ground cover surface of turf located in a recreational use area or community space. Turf enclosed by fencing or other barriers to permanently preclude human access for recreation or assembly is not functional turf.” This means that the triggering issue that causes an area of turf to be classified as nonfunctional is that the mowed grass area is inaccessible to residents walking, sitting or otherwise enjoying the location.
HOAs must achieve compliance with this new law and cease use of potable water on nonfunctional turf by Jan. 1, 2029. (Water Code Section 10608.14(a)(4)). However, under the aforementioned definitions, only mowed grass areas that are enclosed and inaccessible to residents appear to be nonfunctional turf. Therefore, most HOAs probably will not be affected, since they have little or no nonfunctional turf. Any HOAs that have purely decorative mowed grass common areas inaccessible to residents should plan on either supplying those areas with reclaimed water or removing mowed turf from such inaccessible locations before 2029.
One problematic issue of this new law is Water Code Section 10608(e)(2), which requires HOAs with over 5,000 square feet of irrigated common area (not only turf) to certify compliance to the State Water Board every three years. Thousands of HOAs have that much irrigated common area and will have to certify compliance, which seems silly since nonfunctional turf is not likely to reappear in HOAs. The first certification is due June 30, 2031, but the Water Resources Control Board has not yet provided a method to provide this self-certification. If your HOA has more than 5,000 square feet of irrigated common area landscaping, the reporting deadline of June 30, 2031, should be calendared to avoid late filing. By then hopefully someone will realize the futility of requiring this repeated certification and the requirement will be eliminated.
Richardson, Esq. is a fellow of the College of Community Association Lawyers and partner of Richardson Ober LLP, a California law firm known for community association advice. Submit column questions to kelly@roattorneys.com. Past columns at www.HOAHomefront.com.