BILL ANALYSIS
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: sb 407
SENATOR ALAN LOWENTHAL, CHAIRMAN AUTHOR: padilla
VERSION: 4/13/09
Analysis by: Mark Stivers FISCAL: Yes
Hearing date: April 21, 2009
SUBJECT:
Replacement of high-water-using plumbing fixtures
DESCRIPTION:
This bill requires the owner of a property to replace
high-water-using plumbing fixtures prior to any sale or transfer
of the property that occurs on or after January 1, 2014.
ANALYSIS:
The California Building Standards Law establishes the California
Building Standards Commission (BSC) and the process for adopting
state building standards. Under this process, relevant state
agencies propose amendments to model building codes, which the
BSC must then adopt, modify, or reject. The Department of
Housing and Community Development (HCD) is the relevant state
agency for residential building standards. The Office of
Statewide Health Planning and Development is responsible for
hospitals and clinics, and Division of the State Architect is
the relevant agencies for schools and emergency service
buildings. Not all buildings fall under the jurisdiction of a
relevant state agency. Most commercial, industrial, and
manufacturing structures are considered "local buildings," over
which local governments may determine applicable building
standards.
Building standards are prospective in that they only to apply to
new construction or to existing buildings that undergo
alteration or rehabilitation. In a few instances, however, the
Legislature has applied building standard-like requirements to
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existing buildings. For example, existing law requires that all
water heaters in existing residential structures be braced,
anchored, or strapped to resist falling or horizontal
displacement due to earthquake motion. Existing law also
requires that smoke detectors be installed in all existing
multifamily residential dwellings and in single family dwellings
that are sold.
This bill :
Requires the owner of a residential or commercial property to
replace the following high-water-using plumbing fixtures with
fixtures that use less water prior to any sale or transfer of
the property that occurs on or after January 1, 2014:
? Toilets manufactured to use more than 1.6 gallons of
water per flush.
? Urinals manufactured to use more than one gallon per
flush.
? Showerheads manufactured to have a flow capacity of more
than 2.5 gallons per minute.
? Interior faucets manufactured to have a flow capacity of
more than 2.2 gallons per minute.
Provides that compliance with this requirement shall be a
condition of escrow.
Requires that the seller both disclose the existence of the
replacement requirement and certify, under penalty of perjury,
to the prospective purchaser that the requirement has been
met. The bill provides that the disclosure of the replacement
requirement is a material term of the sale or transfer.
Exempts the following types of transfers from the requirement:
? Sale or transfer of a partial interest, including a
leasehold.
? Sale or transfer of a registered historical site.
? Sale or transfer of a property for which a licensed
plumber certifies that installation of water-conserving
fixtures is not technically feasible due to the age or
configuration of the property or its plumbing.
? Sale or transfer of a unit on a newly subdivided
property. (These units are covered by building standards
for new construction.)
? Transfers related to the administration of an estate,
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guardianship, conservatorship, or trust.
? Transfers from one co-owner to one or more other
co-owners.
? Transfers made to fund an intervivos trust.
? Transfers to a spouse or person "in the lineal line of
consanguinity."
? Transfers between spouses or domestic partners resulting
from divorce or separation.
Requires a real estate agent or broker, whether representing a
buyers or seller, to give written notice of this requirement
to the client prior to sale, provides that this disclosure is
the sole responsibility of the agent or broker, and absolves
the agent or broker of liability for a seller's failure to
disclose whether or not the requirement has been met.
States that the bill does not preempt replacement requirements
adopted by local governments that result in equal or greater
water savings.
States the intent of the Legislature that retail water
suppliers are encouraged to provide incentives, financing
mechanisms, and funding to assist property owners with these
retrofit obligations.
COMMENTS:
1.Purpose of the bill . According to the author, California is
currently confronted with water supply challenges that require
the exploration and realization of all available water-saving
options. While many cities, including Los Angeles, San Diego,
San Francisco and Santa Monica, have ordinances that require
the replacement of older toilets, showerheads, and faucet
fixtures with more efficient fixtures, many existing buildings
in other parts of the state have not been upgraded to meet
current water use efficiency standards. The author believes
that California needs a comprehensive approach to increase
water use efficiency in homes and commercial properties that
reflects the urgency of the state's water supply reliability
concerns. Increasing the efficiency of water fixtures is a
reliable and cost-effective manner to help California meet its
water needs and Governor Schwarzenegger's target of reducing
per capita water use by 20% by the year 2020.
2.Wringing water savings from existing buildings . AB 715
(Laird), Chapter 499, Statutes of 2007, prohibits the sale,
SB 407 (PADILLA) Page 4
after January 1, 2014, of toilets that exceed 1.28 gallons per
flush and urinals that exceed 0.5 gallon per flush. Toilets
and urinals, however, have a relatively long life span. As a
result, it may take decades to achieve water savings in
existing structures, because high-water-using fixtures will
only be replaced when they cease to function or when an owner
decides to upgrade. This bill seeks to speed up the
achievement of these water savings by requiring the pro-active
replacement of high-water-using toilets, urinals, and other
plumbing fixtures when a property is sold.
3.Keeping up with the times . The bill requires owners to
replace high-water-using fixtures with fixtures that use less
water. This could mean installing new fixtures that save a
single drop. With respect to toilets and urinals, the BSC has
already adopted more stringent standards that apply to new
construction. After July 1, 2011, toilets in new construction
may not have an effective flush rate of more than 1.28 gallons
per flush, and urinals may not more than 0.5 gallons per
flush. With respect to showerheads and faucets, the building
codes require a 20% water-use reduction from the levels cited
in this bill. These reductions can be achieved at each
individual fixture or in aggregate throughout the building.
In order to maximize water savings, the committee may wish to
consider setting a standard for replacement fixtures that is
at least as stringent as the standards for new construction.
4.Combining disclosures . This bill requires a seller to certify
that he or she has replaced any high-water-using fixtures. It
allows a seller to include this certification in existing
disclosure documents. Given that the current transfer
disclosure forms for one- and two-unit homes and for
manufactured homes are written into statute, it is not really
possible for a seller to modify these forms. The committee
may wish to consider consolidating this disclosure with others
by amending the transfer disclosure forms in statute.
5.Arguments in opposition . The California Association of
Realtors believes that this bill will add time and cost to the
already sensitive escrow process, which may endanger some
property sales. The Association further believes that by
relying on sales, it will take a long time to reduce water
usage. A quicker and more direct approach is to mandate the
retrofit of high-water-using fixtures by a date certain,
regardless of whether the owner sells or holds onto the
property.
SB 407 (PADILLA) Page 5
The California Business Properties Association argues that
requiring retrofit prior to sale of a building may actually
delay implementation of water saving fixtures. When a
building is sold, the new owners often spend significant
amount of money to upgrade the building, including its
plumbing fixtures. By placing the burden of retrofit on the
sellers, this bill may actually discourage sellers from
marketing properties that would be upgraded by new owners.
The Association also believes that the escrow process is too
quick to allow for significant water efficiency improvements
to a property.
6.Technical amendments .
On page 3, strike lines 34-37.
On page 3, line 34 strike "(d)" and insert "(c)"
On page 4, line 1 after "certification" insert "is a
material term of any sale or transfer and"
On page 5, line 20 strike "any retrofit requirement" and
insert "a city, county, or city and county from adopting or
enforcing any retrofit requirements relating to existing
plumbing fixtures"
7. Double Referral . The Senate Rules Committee has referred
this bill both to this committee and back to the Rules
Committee for possible re-referral.
POSITIONS: (Communicated to the Committee before noon on
Wednesday,
April 15, 2009)
SUPPORT: Association of California Water Agencies
(co-sponsor)
Metropolitan Water District (co-sponsor)
San Francisco Public Utilities Commission
(co-sponsor)
OPPOSED: California Association of Realtors
California Business Properties Association