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California Bowen Bill Analysis
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California Bowen Bill Analysis
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BILL ANALYSIS
AB 2439
Date of Hearing: April 28, 1998
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIAL
Howard Wayne, Chair
AB 2439 (Bowen) - As Amended: April 13, 1998
SUBJECT : Water supplies: discharges.
SUMMARY : This bill excludes, beginning June 1, 1999, the use of
watercraft propelled by a two-stroke engine with more than 10
horsepower from recreational uses in lakes or reservoirs serving
as sources of drinking water.
EXISTING LAW : Allows water agencies to construct and operate
recreational facilities appurtenant to any lands, dams,
reservoirs, facilities, or works owned or operated by the agency.
At an agency's discretion, recreational uses at these facilities
can include the use of watercraft propelled by two-stroke engines.
THIS BILL :
1) Excludes, beginning June 1, 1999, the use of watercraft
propelled by a two-stroke engine that discharges unburned fuel or
oil, with a power rating greater than 10 horsepower, from
recreational uses on a lake or reservoir that serves as a domestic
water supply or that is directly connected to a drinking water
supply distribution and treatment system.
2) Exempts from this exclusion two-stroke engines with a power
rating of 10 or fewer horsepower or those for use in certain
emergency response activities, such as search, rescue, and
lifesaving.
FISCAL EFFECT : Unknown
COMMENTS :
1) Background . According to the author, emissions from two-stroke
marine engines rank among California's largest sources of toxic
water pollution. The high emissions are due to the
inefficiency of the two-stroke engine, which requires fuel and
oil to be mixed prior to use, causing incomplete combustion. A
U.S. Environmental Protection Agency (U.S.EPA) study shows that
approximately 25% of the fuel/oil mixture from two-stroke
engines is emitted, unburned, in the exhaust.
2) Two-Stroke vs. Four-Stroke . U.S.EPA certification data
demonstrate that two-stroke engines produce over eight times
the hydrocarbon emissions produced by four-strokes, on average.
Discharges to water by these motors include known carcinogens
such as benzene and toluene. While approximately 10-15% more
expensive, four-stroke engines on the market today are more
efficient, contain internal oil systems not requiring
pre-mixing with (and thus discharge with) gasoline, and produce
fewer air and water emissions.
As two-strokes are one of the largest single sources of
unregulated toxic water pollution and a significant source of
air pollution, U.S.EPA, the Air Resources Board and other local
authorities are beginning to focus on
them for regulation. The author states that the primary goal of
the bill is to limit the discharge of unburned fuel and oil into
drinking water
supplies. Discharge from current technology two-strokes is the
primary cause of this form of pollution. A new generation of
direct fuel injection (DFI) two-strokes are now on the market
that, while not as clean as available four-strokes, produce
significantly lower hydrocarbon discharges than other two-strokes.
Suggested Amendment . The bill would prohibit the use of
two-strokes "that discharge unburned fuel or oil." Currently,
all motors discharge some quantity of unburned fuel or oil,
either directly or indirectly. It is apparently the author's
intent to address the high volume discharge of available
two-stroke motors. Language that would more specifically
address this issue is appropriate.
3) Protecting Domestic Water Supplies . This bill does not
constitute an outright ban on the use of two-stroke motors.
The author states that it is specifically designed to protect
domestic water supplies from the pollutants discharged from the
engines. With recent revelations about the harmful and
migratory nature of fuel additives such as MTBE and their
effects on water supplies, the author believes that protective
measures must be taken immediately.
However, the author states that this bill is designed to
address the pollution cause by two-stroke engines, generally,
and not the effects of MTBE, specifically. Opponents charge
that a ban on MTBE is a direct solution to the immediate
problems posed by it. However, the author states that a ban on
MTBE alone does not address the emissions problems caused by
two-strokes, including the discharge of chemicals known to
cause cancer or reproductive harm that are inherent in the
formulation of motor fuels. As 75% of California's reservoirs
allow motorized boating, harmful emissions will continue to be
released into the water supplies.
Opponents suggest that, as drafted, the bill serves as a
complete ban of two-strokes over 10 horsepower in all
freshwater areas. Since virtually all sources of freshwater
lead to a drinking source, the bill would have a profoundly
limiting impact on motorized uses of those areas. The author
states that the language is narrowly defined, specifically only
addressing enclosed bodies of water such as lakes and
reservoirs that either serve as drinking water supplies, or are
directly connected to drinking water supply systems. This is
not intended to cover the entire universe of freshwater areas
and would necessarily exclude rivers and the delta region, as
well as non-drinking water lakes and reservoirs.
Issues have also been raised that this bill does not
necessarily consider such factors as available scientific
research concerning health effects as well as site-specific
factors such as dilution, turbidity, wind and heat dispersion.
Arguably, not all lakes and reservoirs will be affected
equally. To the extent that the health and safety
considerations are of more concern on some, as opposed to other
bodies of water, these should be weighed accordingly, with
respect to regulation.
4) Regulation by Other Agencies . A ban on the use of powerboats
on enclosed bodies of water serving as drinking water supplies
is not unique. For many years, several water districts
throughout the state have passed ordinances either prohibiting
or heavily restricting the use of boats powered by internal
combustion engines. The districts state that due to their
relative size, lack of ability to dilute, and costs involved
with
treating the water to meet federal and state drinking water
standards, certain reservoirs and lakes are closed to all but
non-powered or electric-powered boats.
U.S.EPA has established specific air quality standards and
later this year the California Air Resources Board (ARB) will
be proposing emissions standards for personal water craft and
outboard motors, all primarily using two-stroke engines. These
regulations are aimed at new engines and do not address the
existing fleet. The author states that pollution from the
existing fleet will continue unabated.
Opponents argue that U.S.EPA and ARB efforts are sufficient and
that more expansive regulation would result in not only the
loss of recreational use of two-stroke powered vehicles to
their owners, but a significant loss in revenues generated from
permits, launch ramp fees, and the like, notwithstanding the
offsetting costs of maintaining mandated water quality
standards.
5) Federal Pre-emption Issues . The issue has been raised that the
provisions of this bill could affect two areas subject to
federal regulation that pre-empt the state's ability to
regulate. First, this bill will apply to federally-controlled
bodies of water that serve as a domestic water supply
(including Lake Shasta, Lake Berryessa and Folsom Lake, which
are operated by the Bureau of Reclamation as reservoirs for the
Central Valley Project). Opponents state that to the extent
that use limitations would apply to these facilities, with
accompanying revenue losses, federal pre-emption issues may
arise with respect to attempts by state law to regulate
interstate commerce.
Second, the bill will apply to non-federal facilities improved
by federal funds. Opponents cite a recent Federal Appellate
Court case that held that a ban on the use of personal water
craft in the Sacramento River by a City of Redding ordinance
violated federal law [ Buckley v. City of Redding , 66 F.3d 188,
Ninth Circuit (1995)]. The court held, in part, that to the
extent that federal funds were used to build and maintain a
boat launch facility, an outright prohibition on access to the
river via that facility violates federal law. However, the
court did state that it was within the city's power to place
horsepower limitations on boats using these facilities, so long
as it does not discriminate among those power boats with common
horsepower ratings.
A state may regulate interstate commerce if it demonstrates a
legitimate state interest in the regulation, such as unusual or
specific environmental health and safety concerns and the
regulations are not inconsistent with federal law. In this
case, a court considering the legitimate purpose would use a
balancing test, weighing the state's unique concerns against
the interest in maintaining exclusive federal pre-emption.
Issues are considered on a case-by-case basis, with courts
generally looking to the severity of the problem sought to be
addressed and the nexus between that and the proposed solution,
as well as other alternatives. The state regulation cannot
require something that is not possible, nor can it create an
obstacle to carrying out federal law. To the extent that the
bill does not affect a federally-funded facility, the
pre-emption or Federal funding issues do not appear to have any
bearing.
REGISTERED SUPPORT / OPPOSITION :
Support
American Canoe Association
American Oceans Campaign
American Whitewater
Animal Legal Defense Fund
Bluewater Network
California Communities Against Toxics
California League of Conservation Voters
California Public Interest Research Group
California Sportfishing Protection Alliance
California Trout
Center for Marine Conservation
Center for Safe Energy
Clean Water Action
Contra Costa Water District
Earth Island Institute
Earth Trust
East Bay Municipal Utilities District
Environmental Action Committee of West Marin
Environmental Working Group
Federation of Flyfishers
Friends of the Earth
Global Service Corps
Golden Gate Audobon Society
Greenpeace Foundation
Grand Canyon Private Boaters Association
International Marine Mammal Project
International Rivers Network
John Muir Project
League to Save Lake Tahoe
Mono Lake Committee
Mangrove Action Project
National Heritage Institute
Natural Resources Defense Council
New Jersey Environmental Lobby
Ocean Advocates
Planning and Conservation League
People for Healthy Forests
Regional Environmental Action League
Salmon Protection and Watershed Network
San Diego Baykeeper
San Francisco Baykeeper
Santa Monica Baykeeper
Save Our Seas
Save San Francisco Bay Association
Sierra Club
Sierra Nevada Alliance
Southern Utah Wilderness Alliance
South Yuba River Citizens League
Surfers Tired of Pollution
Wildlife Alive
Dr. Lester Rowntree, Chair, Environmental Studies Dept., San Jose
State Univ.
Dr. Richard Morrison, Dept. of Chemistry, West Virginia Univ.
Michael Moore, Biology Dept., Woods Hole Oceanographic Institution
Dr. Jim Hammitt, Harvard School of Public Health
Opposition
Black Bass Action Committee
California Motorcycle Dealers Association
International Jet Sports Boating Association
National Marine Manufacturers Association
Northern California Marine Association
Recreational Boaters of California
Southern California Marine Association
United Outdoorsmen
Western Boaters Safety Group
West Coast Correct Craft
Analysis prepared by : Scott H. Valor / aestm / (916) 319-3965
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