EPAct Pre-emption Removed
As everyone in the profession knows, EPAct 1992 imposed the mandate of 1.6-gpf water closets, as well as water conservation requirements for lavatories, kitchen sinks and urinals. One of the important aspects of EPAct 1992 was the pre-emption the federal government mandated. This pre-emption means no state or local jurisdiction can lower or raise the water conservation requirements listed in the federal legislation.
You may recall I wrote a few months ago about the state of California enacting legislation that would lower the water conservation measures in violation of the federal pre-emption. I also indicated no one seemed to care.
Apparently, someone cared because effective Dec. 22, 2010, the pre-emption rule no longer applies. The removal of the pre-emption rule can be found in the Federal Register at www.federalregister.gov.
The ruling grants any state the authority to enact separate water conservation measures provided they are more stringent than the federal regulations. That means the water closet flush volume can be lowered below 1.6 gpf. The same applies to other plumbing fixtures.
It is interesting that the ruling only applies to state governments, not local jurisdictions. For example, the city of Chicago cannot enact changes to the water conservation measures. They must be enacted by the state of Illinois.
Removal of the pre-emption is clearly responding to the legislation in California and the “green” movement. While it sounds good, we may see everything revert back to pre-1992 days. For those of you too young to remember, prior to the federal regulations, the water conservation requirements were insane. Each state had different requirements. One state enacted requirements for 1.6-gpf water closets, while the neighboring state enacted a 1.5-gpf mandate. A typical case of states trying to outdo each other.
The same thing happened with shower flow rates. There were numbers ranging from 3.0 gpm to 0.8 gpm and everything in between. Of course, sometimes the flow rates changed from city to city. That can no longer happen since the regulation requires states to rule.
California has imposed reasonable low water-use requirements. What happens when a state goes further than California? I can envision proposals where the maximum flush for a water closet is 1.0 gpf and the maximum flush for a urinal is 0 gpf. After all, we have products that meet these requirements. Why not go down to these levels? As for showers, lavatories and kitchen sinks, all sorts of flow rates are available. So what level should a state select?
Green RamificationsThis could also impact the green rating systems used by various organizations. If a state imposed lower requirements, do all the buildings constructed in the state then get a green rating? Or, do the rating methods lower the flow rates and require even further savings?
The Department of Energy sort of places the blame on the American Society of Mechanical Engineers for not lowering the water conservation requirements in the consensus standards. This is a lame excuse used by the feds and shows a disconnect between reality and the land by the Potomac.
As a member of the ASME A112 Committee, I can say we have changed the requirements to allow for testing of lower flow rates. Lower flow rates have not been imposed because the federal government has a pre-emption. The feds chose not to be involved with any change to flow rates in ASME standards.
What About The Code Bodies?Of course, with the pre-emption gone, ASME is free to do anything in its standards. The same would be true for the plumbing codes.
There were a number of changes proposed to the IAPMO Uniform Plumbing Code to lower the flow rates or water use to various fixtures. The Technical Committee’s response was to dispense with the code changes immediately by stating such a change would violate the federal pre-emption.
The reasoning provided during the first code hearing is no longer applicable. The second hearing of the Plumbing Technical Committee will take place the first week of May in St. Louis. At that hearing the committee will not have to discuss in detail the changes to the water-use requirements.
The initial changes sought to lower the water closet flush volume to 1.28 gpf. Also included were changes to lower the urinal flush volume and the flow rates to various fixtures.
For these changes to be considered at the second hearing, a public comment must be submitted. But the public comment period was two weeks after the removal of the pre-emption in the Federal Register.
As I write this column, it is too early to know if any public comments were submitted on these changes. However, I would be surprised if my colleagues who are very involved in the green movement did not submit public comments.
If these changes are accepted, there would then be a significant difference between the Uniform Plumbing Code and the International Plumbing Code regarding water use. The 2012 International Plumbing Code is already at the printer. ICC did not have the privilege of knowing the federal pre-emption would be removed. That occurred after the completion of the 2012 code.
IAPMO, by virtue of its code cycle, can change the water conservation requirements.
However, if the Uniform Plumbing Code does adopt the lower water conservation requirements, the code will only be allowed to be adopted by states, not local jurisdictions. State governments can only impose lower requirements.
This shouldn’t stop the IAPMO Plumbing Technical Committee from considering the changes to lower the water conservation measures. I can foresee the federal government changing its opinion to allow local jurisdictions to enact lower water conservation requirements.
So far, only California has officially ruled. It should be interesting to see what will occur in other states regarding water conservation.
The end result will likely be different states requiring different water conservation standards for the various plumbing fixtures.