California Bowen Bill Analysis
Assembly Committee on Environmental Safety and Toxic Materials

            BILL ANALYSIS

                                                          AB 2439 

Date of Hearing: April 28, 1998

                        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.


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

 FISCAL EFFECT  :  Unknown


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

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

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



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


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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