BILL ANALYSIS
SB 407
Page 1
Date of Hearing: June 30, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 407 (Padilla) - As Amended: May 20, 2009
As Proposed to Be Amended
SENATE VOTE : 22-15
SUBJECT : WATER CONSERVATION: PLUMBING FIXTURES REPLACEMENT
KEY ISSUE : IN RESPONSE TO CALIFORNIA'S URGENT NEED TO MAXIMIZE
WATER EFFICIENCY AND CONSERVE ITS WATER RESOURCES, SHOULD ALL
PLUMBING FIXTURES IN RESIDENTIAL AND COMMERCIAL PROPERTIES BUILT
PRIOR TO 1994 THAT DO NOT MEET SPECIFIED STANDARDS OF WATER
CONSERVATION BE REPLACED WITH WATER-CONSERVING FIXTURES, BY
EITHER 2017 OR 2019, AS PROVIDED?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill seeks to require the replacement ("retrofit") of all
non-water conserving plumbing fixtures with water-conserving
fixtures, as defined, in every single-family residential,
multi-family residential, and commercial property built prior to
1994. For single family residential properties, the bill
requires the retrofit of all non-compliant fixtures by 2017,
while for multifamily residential real properties (i.e. having
more than one unit) and commercial properties, this deadline for
compliance is extended until 2019. In addition, beginning in
2014, the bill will also require retrofit of non-compliant
plumbing fixtures as a condition of receiving a building permit
for major improvements or renovations. In cases where property
is being sold or transferred, this bill seeks to require
property owners to disclose the requirements for replacement of
non-compliant plumbing fixtures and whether non-water conserving
fixtures have been replaced prior to the sale or transfer. The
bill does not preempt local retrofit ordinances adopted by a
city or county prior to July 1, 2009. The bill is sponsored by
the Association of California Water Agencies (ACWA), the
Metropolitan Water District of Southern California (MWD), and
the San Francisco Public Utilities Commission (SF-PUC). The
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author's proposed amendments, the result of extensive
negotiations, are expected to remove opposition to the bill from
realtors and business property owners because the amendments
unlink retrofit requirements from the sale or transfer of
property. The bill as proposed to be amended is quite different
from the version of the bill that passed off the Senate Floor by
a 22-15 vote. Although the bill retains the same objectives of
increasing water conservation through retrofit of plumbing
fixtures, this Committee is the first to evaluate the bill's
mechanism for accomplishing these goals by targeting the
approval process for building permits.
SUMMARY : Seeks to require the replacement of all non-water
conserving plumbing fixtures, as defined, in commercial and
residential properties built prior to 1994 with water-conserving
fixtures by either 2017 or 2019, depending on the type of
property. Specifically, among other things, this bill :
1)Makes legislative findings and declarations, including that
economic analysis has identified urban water conservation as a
cost-effective approach to addressing water supply needs.
2)Proposes requirements that will apply to residential and
commercial real property built and available for use on or
before January 1, 1994, with the exception of: a) registered
historical sites; b) real property for which a licensed
plumber certifies that, due to the age or configuration of the
property or its plumbing, installation of water-conserving
plumbing fixtures is not technically feasible; c) a building
that has had its water service permanently disconnected.
3)With respect to single family residential real property:
a) Requires the property owner to replace all noncompliant
plumbing fixtures in the property with water-conserving
plumbing fixtures on or before January 1, 2017.
b) Requires a building permit applicant to replace all
noncompliant plumbing fixtures in the property with
water-conserving plumbing fixtures as a condition for (i)
issuance of a certificate of final completion and
occupancy, or (ii) approval of a final building permit by
the local building department, for all building alterations
or improvements on or after January 1, 2014.
c) Requires a seller or transferor of the property, in
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providing the Real Estate Transfer Disclosure Statement
("TDS") required by Insurance Code Section 1102.6, to
disclose in writing to the prospective purchaser or
transferee the following information:
i) The requirement that the property owner must replace
all noncompliant plumbing fixtures in the property with
water-conserving plumbing fixtures on or before January
1, 2017.
ii) Whether the real property includes any noncompliant
plumbing fixtures.
4)With respect to multifamily residential or commercial real
property:
a) Requires that all noncompliant plumbing fixtures in the
property be replaced with water-conserving plumbing
fixtures on or before January 1, 2019.
b) Requires a building permit applicant to replace all
noncompliant plumbing fixtures in the property with
water-conserving plumbing fixtures, as a condition for (i)
issuance of a certificate of final completion and
occupancy, or (ii) approval of a final building permit by
the local building department, for all building alterations
or improvements on or after January 1, 2014, subject to the
following provisions:
i) For building additions in which the sum of
concurrent building permits by the same building permit
applicant would increase the floor area of the space in a
building by more than 10 percent, the building permit
applicant shall replace all non-compliant plumbing
fixtures in the building.
ii) For building alteration or improvements in which the
total construction cost estimated in the building permit
is greater than one hundred fifty thousand dollars
($150,000), the building permit applicant shall replace
all noncompliant plumbing fixtures that serve the
specific area of alteration or improvement.
iii) For any alterations or improvements to that room in
a building that contains any noncompliant plumbing
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fixtures and that requires a building permit, the
building permit applicant shall replace all noncompliant
plumbing fixtures in that room, notwithstanding i) and
ii) above.
c) Requires a seller or transferor of the property to
disclose in writing to the prospective purchaser or
transferee the following information:
i) The requirement that all noncompliant plumbing
fixtures in the property be replaced with
water-conserving plumbing fixtures on or before January
1, 2019.
ii) Whether the real property includes any noncompliant
plumbing fixtures.
5)Permits a city or county to enact local ordinances or
established policies that promote compliance with this
article, or to enact local ordinances that will result in a
greater amount of water savings than those provided for in
this bill.
6)Does not preempt local ordinances requiring retrofit of
noncompliant plumbing fixtures adopted prior to July 1, 2009
by a city or county.
EXISTING LAW :
1)Requires all water closets sold or installed in the state to
use no more than an average of 1.6 gallons per flush. Further
requires that on and after January 1, 2014, all water closets,
other than institutional water closets, sold or installed in
this state must be high-efficiency water closets. (Health &
Safety Code Section 17921.3(b)(1).)
2)Requires all urinals sold or installed in the state to use no
more than an average of one gallon per flush. Further
requires that on and after January 1, 2014, all urinals sold
or installed in this state, other than blow-out urinals, must
be high-efficiency urinals. (Health & Safety Code Section
17921.3(b)(2).)
3)Declares that it is the policy of the state that the
management of urban water demands and efficient use of water
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shall be actively pursued to protect both the people of the
state and their water resources. (Water Code Section
10610.4.)
4)Requires the seller or transferor of any residential real
property consisting of one to four dwelling units to deliver
to the prospective transferee, as soon as practicable before
transfer or execution of the sales contract, the Real Estate
Transfer Disclosure Statement ("TDS") specified by Section
1102.6 of the Civil Code. (Civil Code Section 1102.3.)
COMMENTS : This bill seeks to require the replacement of all
non-water conserving plumbing fixtures ("retrofit") in
commercial and residential properties built prior to 1994 with
water-conserving fixtures by either 2017 or 2019, depending on
the type of property. The bill now imposes date-certain
deadlines by which all non-water conserving plumbing fixtures
should be replaced, regardless of whether the property has been
sold, transferred, renovated, or otherwise improved in that
time. In addition, beginning in 2014, the bill will also
require retrofits of the plumbing fixtures as a condition of
receiving building permits for major improvements or
renovations. In cases where property is being sold or
transferred, this bill seeks to require property owners to
disclose the requirements for plumbing fixtures and whether
non-water conserving fixtures have been replaced prior to the
sale or transfer.
Statutes to Reform Plumbing Laws Are Effective in Increasing
Water Efficiency . According to the author, reforms through
legislation or plumbing code changes have encouraged the
installation of new, more water-conserving devices and led to
significant water savings statewide. As the author explains:
[E]xisting reforms-most notably the plumbing code
changes that have led to the sale of highly efficient
toilets throughout California-are the primary reasons
why conservation activities have lowered water use in
Southern California by an estimated 1 million acre
feet-per-year. This is more water, as an important
comparison, than Southern California will receive this
year from the Sacramento- San Joaquin Delta.
Although reforms to date on water use efficiency have
been significant, much more must be done. While
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California retailers are now required to sell
low-flush toilets, literally millions of inefficient
toilets still exist in homes and businesses throughout
the state. Replacing an old, inefficient toilet with
a new one can save 31 gallons per day, every day, for
years. Low-flow showerheads and faucets will save
additional water. . . SB 407 is an essential tool to
help the state conserve water as part of our ongoing
water supply efforts.
The bill is sponsored by the Association of California Water
Agencies (ACWA), the Metropolitan Water District of Southern
California (MWD), and the San Francisco Public Utilities
Commission (SF-PUC). ACWA has written in support:
Currently many water agencies have been implementing
voluntary incentive based programs which provide
consumers with rebates, vouchers, or in some cases the
fixtures themselves to promote water conservation and
efficiency. SB 407 would be the next step in the
process to take such local efforts to a larger scale
and implement a [similar] program statewide.
The Proposed Amendments Move Away From a Retrofit-At-Resale
Approach . The author has significantly rewritten the bill to
shift away from a strategy of requiring the owner of a property
to replace non-compliant plumbing fixtures prior to any sale or
transfer, where compliance would have been a condition of
escrow. Instead, the author has proposed major amendments that
simply require the replacement of all non-compliant plumbing
fixtures by a specified date, as provided, without inextricably
linking that requirement to the sale or transfer of the
property.
Whereas the event that previously triggered the requirement to
replace the plumbing fixtures was the sale or transfer of the
property, the author has proposed to amend the bill so that any
major alteration or improvement to the property that requires a
local building permit will trigger the requirement to retrofit
with compliant water-conserving plumbing fixtures. Generally
speaking, as proposed to be amended, the applicant must replace
all noncompliant plumbing fixtures with water-conserving models
as a condition for approval of a building permit or issuance of
a certificate of occupancy. Additional limitations, related to
the size and cost of the improvement, modify this requirement
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for multifamily residential and commercial properties.
Because the mechanism employed to facilitate retrofit of
inefficient plumbing fixtures now only minimally impacts the
sale or transfer process of real property, it is believed that
these proposed amendments, developed after extensive negotiation
with major stakeholders, will remove opposition from groups
including realtors and business property owners.
The Bill Targets Properties Built Before Statewide Efficiency
Requirements for Toilets and Urinals Became Effective in 1994 .
In 1992, the Legislature passed SB 1224, Chapter 1347, that
required all water closets (toilets) sold or installed on or
after January 1, 1994 to use no more than an average of 1.6
gallons per flush, and likewise for urinals, to use no more than
an average of one gallon per flush. As a result, any new
buildings or structures built after 1994 have presumably
included the installation of toilets and urinals that meet these
water efficiency standards, which mirror those specified in this
bill for toilets and urinals. The same is true of older homes
where remodeling plans include replacement of the plumbing
fixtures. For these properties, existing law is sufficient to
ensure eventual, but not necessarily swift, compliance with
prescribed conservation standards for plumbing fixtures.
Given these facts, this bill appropriately targets the
cross-section of older properties in California that are not yet
equipped with water-conserving plumbing fixtures that are now
found in more recently built structures. For these reasons, the
retrofit requirements under the bill as proposed to be amended
would not apply to any properties built after January 1, 1994.
Nevertheless, even though this bill does not reach properties
built during or after 1994, existing law prohibiting the sale or
installation of inefficient toilets and urinals will force these
properties to eventually come into compliance when those
fixtures need to be replaced, either due to normal wear and tear
or because of remodeling. In any case, the bill sets a certain
deadline of 2017 for compliant fixtures in single family
residences, and a deadline of 2019 for compliance in multifamily
residential and commercial real property. This has the added
benefit of enabling policymakers to know with more certainty by
what date statewide compliance should be achieved, without
having to rely on estimated rates of real estate sales and other
factors to make that determination.
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Written Disclosure Requirements. When residential real property
is to be sold or transferred, existing law requires the seller
or transferor to make certain written disclosures, including the
broad Transfer Disclosure Statement (TDS) (specified in Civil
Code Section 1102.6), as well as other information relating to
Mello-Roos liens, property taxes, former use of the property as
a federal or state military training location that could
possibly contain explosive munitions, and a natural hazard
disclosure statement (NHDS), disclosing risks of flooding, fire,
and other natural hazards to the property. (Civil Code Section
1102 et seq.) Failure to provide the statutory disclosures does
not, by itself, invalidate a transfer, but any negligent or
willful violation subjects the seller to liability for damages
as a result of that failure. (Civil Code Sections 1102.13 &
1103.12.)
This bill would augment those existing disclosures for
single-family residential real property sales by including
written disclosure of: (1) the date by which the property owner
must ensure that all noncompliant plumbing fixtures in the
property have been replaced with water-conserving plumbing
fixtures; and (2) whether the property includes any noncompliant
plumbing fixtures. It is envisioned that this disclosure will
be invariably made by adding a few lines of text to the Transfer
Disclosure Statement that sellers must already provide to
purchasers of single-family residential real property. However,
the bill also permits the disclosure to be included in other
transactional documents, if not included in the TDS.
With respect to multifamily residential and commercial real
property, the bill also requires the seller to make written
disclosure of the same two items of information to the
purchaser. However, in those types of transactions, the parties
to the sale, typically two businesses, are not required to and
do not use the TDS common to single-family residential sales
because they generally are experienced enough or employ
attorneys to ensure that necessary disclosures are included in
the contract or other transactional documents used to complete
the sale. This bill authorizes the sellers of these properties
to include the required disclosures in the other transactional
documents they already use.
Reasonable Exceptions for Buildings Pending Demolition and Other
Properties. As proposed to be amended, the bill provides that
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the duty of an owner or building permit applicant to comply with
retrofit requirements shall be postponed for one year from the
date of issuance of a demolition permit for the building. This
means that, on or after January 1, 2014, the owner of a building
for which a demolition permit has been issued has no duty for
the next year to retrofit that building with water-conserving
plumbing fixtures. This makes sense because a building pending
demolition should be unoccupied during that time, thus almost no
water use by way of its interior plumbing fixtures. If the
building is actually demolished during that year, then these
provisions would no longer apply. In that case, any replacement
building would assuredly incorporate the use of water-conserving
plumbing fixtures as all new buildings do, thus would
appropriately fall outside the scope of this bill.
In addition, the bill makes reasonable exemptions for registered
historical sites, buildings that have had water service
permanently disconnected, and real property where a licensed
plumber certifies that installation of compliant plumbing
fixtures is not technically feasible because of the age or
configuration of the property.
Existing Retrofit Ordinances in 11 Local Jurisdictions Will Be
Grandfathered. At least 11 cities or local water district
authorities, including the cities of Los Angeles, San Francisco,
and San Diego, have already enacted retrofit ordinances that
implement similar requirements and water conservation standards
as this bill. This bill would not preempt any local ordinance
requiring retrofit of noncompliant plumbing fixtures adopted
prior to July 1, 2009, but instead grandfather them into law.
Furthermore, this bill permits a city or county to enact local
ordinances that promote compliance with this legislation or that
will result in an equivalent or greater amount of water savings.
Prior Legislation : SB 1224 (Killea), Chapter 1347 of the 1992
Statutes, requires all water closets (toilets) sold or installed
on or after January 1, 1994 to use no more than an average of
1.6 gallons per flush, and requires all urinals sold or
installed on or after January 1, 1994 to use no more than an
average of one gallon per flush.
AB 715 (Laird), Chapter 499 of the 2007 Statutes, prohibits the
sale, after January 1, 2014, of toilets that exceed 1.28 gallons
per flush and urinals that exceed 0.5 gallon per flush.
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Pending Legislation : AB 49 (Feuer) of 2008, requires the state
to achieve a 20% reduction in urban per capita water use in
California on or before December 31, 2020, with incremental
progress of at least 10% by 2015. AB 49 also requires urban
retail water suppliers to develop urban water use targets and
interim water use targets by December 31, 2010. This bill
passed the Assembly by a 43-30 vote and has been referred to the
Senate Committee on Natural Resources and Wildlife.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California Water Agencies (co-sponsor)
Metropolitan Water District of Southern California (co-sponsor)
San Francisco Public Utilities Commission (co-sponsor)
California Municipal Utilities Association
Green Plumbers
East Bay Municipal Utility District (EBMUD)
Plumbing, Heating, Cooling Contractors of California
San Diego County Water Authority
U.S. Green Building Council, Northern California Chapter
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334