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 SB 407 Page 2 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 SB 407 Page 3 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 SB 407 Page 4 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 SB 407 Page 5 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 SB 407 Page 6 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 SB 407 Page 7 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. SB 407 Page 8 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 SB 407 Page 9 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. SB 407 Page 10 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