LOS ANGELES—California has adopted a new way to measure water supply, and it is more focused on sustainability than ever before. The Sustainable Groundwater Management Act or SGMA focuses not only on proving that developers have an adequate water supply for a project, but that the project does not significantly reduce the water supply. Currently, there is not a lot of information about how this legislation will be enforced, but Scott Birkey, a partner at Cox, Castle & Nicholson, says that this ideology could spill over into CEQA, and therefore is something that developers should follow. We sat down with Birkey for an exclusive interview to get the details on this new legislation, how it is different from past water supply analysis and why it should be on developers' radars.

GlobeSt.com: California recently adopted the Sustainable Groundwater Management Act. Tell me about this legislation.

Birkey: It is still a little bit of an open book. No one is quite sure how SGMA is going to be implemented exactly and how it will work. In a lot of ways, SGMA is going to be more of a public agency issue, I think, than one that private developers and real estate interests are going to have to deal with. That said, because anything that affects public agencies obviously will affect us in the industry, one of the things that I think that you will see as a result of SGMA is a shift in focus of our CEQA analysis for water supply.

GlobeSt.com: How is this different than the current analysis for water supply?

Birkey: To me, this seems like a shift away from water supply to water sustainability, and what does sustainability mean. I think that when you look through the statute and you look at the way that sustainability is described, sustainability is really about managing or using ground water in as way that doesn't “cause undesirable results.” That is defined as anything that causes a significant and unreasonable reduction in groundwater usage or storage. So, now, it isn't just about showing how much water that you have but it is also about making sure that the water supply isn't being used in a way that is leading to undesirable results. For me, that is a step further than where we have been before.

GlobeSt.com: Were there any precursors to SGMA that developers can look to for guidance?

Birkey: Before SGMA, which was pretty recent, there had been a push at various local levels as well as the state level to try to make it so that as projects were built, the developer paid more attention to water supply and how much water supply was needed to serve a project. Over time, we have had the evolution of a lot of different pieces of legislation to make that happen. SB-610 and SB-221 are major pieces of this legislation, and were passed right around 2000 to require developers to prove their water usage. We sometimes call them “show me the water statutes” and there has been CEQA case law on this issue. SGMA is interesting because we have now entered a chapter in the governing of water law in the state where it is not just about supply but it is also about sustainability.

GlobeSt.com: How might SGMA affect developers?

Birkey: I can't help but think that that concept enshrined in SGMA is going to find a way into our CEQA documents. Now, a CEQA water supply analysis is going to be a water sustainability analysis. It is not just going to be about numbers, but it is going to question if the project is going to cause undesirable results to groundwater regardless of if there is enough water supply to serve a project. I see it as ratcheting up the game on water supply analysis for CEQA purposes. I don't think that I am alone in thinking this, but it is the kind of thing that I don't hear people talking about, and I think that they should be because I do think that there will be a spillover effect.

GlobeSt.com: What about in the short term? Will there be any immediate impacts that developers need to know about?

Birkey: I don't want to say that it doesn't affect developers at all in the shorter term, but some of the time horizons for when it will actually kick in are not for a while. I think the immediate effect won't be a critical issue. It is, however, the sort of thing that I think private side developers and real estate folks need to be paying attention to because of these ripple effects that it will have and ways that it will creep into our planning documents and our CEQA documents. That isn't an immediate impact; that is going to be something that happens over time.

Cox, Castle & Nicholson

GlobeSt.com: California recently adopted the Sustainable Groundwater Management Act. Tell me about this legislation.

GlobeSt.com: How is this different than the current analysis for water supply?

GlobeSt.com: Were there any precursors to SGMA that developers can look to for guidance?

GlobeSt.com: How might SGMA affect developers?

GlobeSt.com: What about in the short term? Will there be any immediate impacts that developers need to know about?

Instant Insights /

New Legislation That Will Affect Your Development

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