California Bowen Bill Analysis
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 :
SupportAmerican 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
OppositionBlack 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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