While centralization and mandates delivered from one empowered source can sometimes make sense, it is equally true that on more than one occasion better results occur when local control takes precedence. A national standard can make sense out of chaos and create an equal playing field—it lets consumers, purveyors, and manufacturers know exactly where they stand. On the other hand, when it comes to water resource management, different regions are charged with managing supply and demand on their own individual terms, terms that are impacted by location, population, and a variety of environmental factors. In those situations, a national standard may not be the best solution. Based on a final rule—Energy Efficiency Program for Consumer Products—announced at the end of last year, it seems like the DOE has decided in favor of local, rather than national, control.
Subtitled “Waiver of Federal Preemption of State Regulations Concerning the Water Use or Water Efficiency of Showerheads, Faucets, Water Closets, and Urinals,” the new rule waives federal preemption of state laws and standards under 42 U.S.C. 6297(c). This new waiver applies to just about every aspect of low fixture standards, from showerheads to toilets to plumbing codes.
The feds had claimed control over plumbing fixtures and fittings based on the Energy Policy and Conservation Act (EPCA) program for ‘‘Consumer Products Other Than Automobiles.’’ The EPCA’s primary control over low-flow fixtures and their ilk involved the testing and labeling of these products based on Federal energy conservation standards and water conservation standards. These national standards were themselves determined by the American Society of Mechanical Engineers (ASME) and the American National Standards Institute (ANSI). The DOE determined federal preemption no longer applied based on the law, which allowed for the end of federal preemption only if no new standards had been developed within the last six months. (ANSI/ASME’s last update was codified in 1996 and incorporated into the Code of Federal Regulations in 1998.)
So what does this mean for us? It all depends on interpretation. On the one hand, it frees states to set their own plumbing standards. (California, Texas, and Georgia have already done so.) On the other hand, even with aspired to national standards in place, states have often held manufacturers to their own set of requirements since the mid 1990s—sometimes lower than the national numbers, but sometimes even stricter regulations have been imposed, like California’s 1.28-gpf efficiency toilet mandates. Ultimately, what it seems to mean is that water purveyors and their communities will have greater freedom when it comes to developing low-flow fixture centric water efficiency and conservation programs.
But what do you think? Some manufacturers have indicated that they preferred the ease of a national standard, even if that standard was not always enforced in practice. Does national standardization make sense in the narrow instance of low-flow fixtures and plumbing codes? Or does abandoning federal preemption remove potential barriers to increased water efficiency at the local level? Has the DOE simple abdicated responsibility, handing over the burden of maintaining standards to state and local entities and therefore eliminating any influence fixture standards may have had on consumers and product manufacturers?