SB 637: Suction dredge mining: permits.
- Session Year: 2015-2016
- House: Senate
- Latest Version Date: 2015-10-09
Existing law prohibits the use of any vacuum or suction dredge equipment by any person in any river, stream, or lake of this state without a permit issued by the Department of Fish and Wildlife. Existing law requires, before any person uses any vacuum or suction dredge equipment in any river, stream, or lake of this state, that person to submit an application for a permit for a vacuum or suction dredge to the department specifying certain information. Existing law requires the department to issue a permit, if the department determines that the use of a vacuum or suction dredge will not be deleterious to fish, upon the payment of a specified fee. Existing law designates the issuance of permits to operate vacuum or suction dredge equipment to be a project under the California Environmental Quality Act and suspends the issuance of permits and mining pursuant to a permit until the department has completed an environmental impact report for the project as ordered by the court in a specified court action. Existing law prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake of this state until the Director of Fish and Wildlife makes a prescribed certification to the Secretary of State, including certifying that new regulations fully mitigate all identified significant environmental impacts and that a fee structure is in place that will fully cover all costs to the department related to the administration of the program.
This bill would require the department to issue a permit if the department determines that the use does not cause any significant effects to fish and wildlife and would authorize the department to adjust the specified fee to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities. This bill would prohibit the department from issuing a permit until the permit application is deemed complete, as prescribed. The bill would prohibit the permit from authorizing any activity in violation of other applicable requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment, and would require the department, the State Water Resources Control Board, and the regional water quality control boards to make reasonable efforts to share information among the agencies regarding potential violations of requirements, conditions, or prohibitions.
Under existing law, the State Water Resources Control Board and the California regional water quality control boards prescribe waste discharge requirements in accordance with the Federal Water Pollution Control Act and the Porter-Cologne Water Quality Control Act (state act). The state act, with certain exceptions, requires a waste discharger to file certain information with the appropriate regional board and to pay an annual fee. The state act additionally requires a person, before discharging mining waste, to submit to the regional board a report on the physical and chemical characteristics of the waste that could affect its potential to cause pollution or contamination and a report that evaluates the potential of the mining waste discharge to produce acid mine drainage, the discharge or leaching of heavy metals, or the release of other hazardous substances.
This bill would, after prescribed public hearings and workshops, as specified, authorize the state board or a regional board to adopt waste discharge requirements or a waiver of waste discharge requirements that address water quality impacts of specified issues, specify certain conditions or areas where the discharge of waste or other adverse impacts on beneficial uses of the waters of the state from the use of vacuum or suction dredge equipment is prohibited, or prohibit particular use of, or methods of using, vacuum or suction dredge equipment, or any portion thereof, for the extraction of minerals, as specified.
The bill would specify that the use of vacuum or suction dredge equipment is defined as the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals.
Existing law prohibits the use of any vacuum or suction dredge equipment by any person in any river, stream, or lake of this state without a permit issued by the Department of Fish and Wildlife. Existing law requires, before any person uses any vacuum or suction dredge equipment in any river, stream, or lake of this state, that person to submit an application for a permit for a vacuum or suction dredge to the department specifying certain information. Existing law requires the department to issue a permit, if the department determines that the use of a vacuum or suction dredge will not be deleterious to fish, upon the payment of a specified fee. Existing law designates the issuance of permits to operate vacuum or suction dredge equipment to be a project under the California Environmental Quality Act and suspends the issuance of permits and mining pursuant to a permit until the department has completed an environmental impact report for the project as ordered by the court in a specified court action. Existing law prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake of this state until the Director of Fish and Wildlife makes a prescribed certification to the Secretary of State, including certifying that new regulations fully mitigate all identified significant environmental impacts and that a fee structure is in place that will fully cover all costs to the department related to the administration of the program.
This bill would require the department to issue a permit if the department determines that the use does not cause any significant effects to fish and wildlife and would authorize the department to adjust the specified fee to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities. This bill would prohibit the department from issuing a permit until the permit application is deemed complete, as prescribed. The bill would prohibit the permit from authorizing any activity in violation of other applicable requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment, and would require the department, the State Water Resources Control Board, and the regional water quality control boards to make reasonable efforts to share information among the agencies regarding potential violations of requirements, conditions, or prohibitions.
Under existing law, the State Water Resources Control Board and the California regional water quality control boards prescribe waste discharge requirements in accordance with the Federal Water Pollution Control Act and the Porter-Cologne Water Quality Control Act (state act). The state act, with certain exceptions, requires a waste discharger to file certain information with the appropriate regional board and to pay an annual fee. The state act additionally requires a person, before discharging mining waste, to submit to the regional board a report on the physical and chemical characteristics of the waste that could affect its potential to cause pollution or contamination and a report that evaluates the potential of the mining waste discharge to produce acid mine drainage, the discharge or leaching of heavy metals, or the release of other hazardous substances.
This bill would, after prescribed public hearings and workshops, as specified, authorize the state board or a regional board to adopt waste discharge requirements or a waiver of waste discharge requirements that address water quality impacts of specified issues, specify certain conditions or areas where the discharge of waste or other adverse impacts on beneficial uses of the waters of the state from the use of vacuum or suction dredge equipment is prohibited, or prohibit particular use of, or methods of using, vacuum or suction dredge equipment, or any portion thereof, for the extraction of minerals, as specified.
The bill would specify that the use of vacuum or suction dredge equipment is defined as the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals.
Existing law prohibits the use of any vacuum or suction dredge equipment by any person in any river, stream, or lake of this state without a permit issued by the Department of Fish and Wildlife. Existing law requires, before any person uses any vacuum or suction dredge equipment in any river, stream, or lake of this state, that person to submit an application for a permit for a vacuum or suction dredge to the department specifying certain information. Existing law requires the department to issue a permit, if the department determines that the use of a vacuum or suction dredge will not be deleterious to fish, upon the payment of a specified fee. Existing law designates the issuance of permits to operate vacuum or suction dredge equipment to be a project under the California Environmental Quality Act and suspends the issuance of permits and mining pursuant to a permit until the department has completed an environmental impact report for the project as ordered by the court in a specified court action. Existing law prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake of this state until the Director of Fish and Wildlife makes a prescribed certification to the Secretary of State, including certifying that new regulations fully mitigate all identified significant environmental impacts and that a fee structure is in place that will fully cover all costs to the department related to the administration of the program.
This bill would require the department to issue a permit if the department determines that the use does not cause any significant effects to fish and wildlife and would authorize the department to adjust the specified fee to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities. This bill would prohibit the department from issuing a permit until the permit application is deemed complete, as prescribed. The bill would prohibit the permit from authorizing any activity in violation of other applicable requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment, and would require the department, the State Water Resources Control Board, and the regional water quality control boards to make reasonable efforts to share information among the agencies regarding potential violations of requirements, conditions, or prohibitions.
Under existing law, the State Water Resources Control Board and the California regional water quality control boards prescribe waste discharge requirements in accordance with the Federal Water Pollution Control Act and the Porter-Cologne Water Quality Control Act (state act). The state act, with certain exceptions, requires a waste discharger to file certain information with the appropriate regional board and to pay an annual fee. The state act additionally requires a person, before discharging mining waste, to submit to the regional board a report on the physical and chemical characteristics of the waste that could affect its potential to cause pollution or contamination and a report that evaluates the potential of the mining waste discharge to produce acid mine drainage, the discharge or leaching of heavy metals, or the release of other hazardous substances.
This bill would, after prescribed public hearings and workshops, as specified, authorize the state board or a regional board to adopt waste discharge requirements or a waiver of waste discharge requirements that address water quality impacts of specified issues, specify certain conditions or areas where the discharge of waste or other adverse impacts on beneficial uses of the waters of the state from the use of vacuum or suction dredge equipment is prohibited, or prohibit particular use of, or methods of using, vacuum or suction dredge equipment, or any protion portion thereof, for the extraction of minerals, as specified.
The bill would specify that the use of vacuum or suction dredge equipment is defined as the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals.
Existing law prohibits the use of any vacuum or suction dredge equipment by any person in any river, stream, or lake of this state without a permit issued by the Department of Fish and Wildlife. Existing law requires, before any person uses any vacuum or suction dredge equipment in any river, stream, or lake of this state, that person to submit an application for a permit for a vacuum or suction dredge to the department specifying certain information. Existing law requires the department to issue a permit, if the department determines that the use of a vacuum or suction dredge will not be deleterious to fish, upon the payment of a specified fee. Existing law designates the issuance of permits to operate vacuum or suction dredge equipment to be a project under the California Environmental Quality Act and suspends the issuance of permits and mining pursuant to a permit until the department has completed an environmental impact report for the project as ordered by the court in a specified court action. Existing law prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake of this state until the Director of Fish and Wildlife makes a prescribed certification to the Secretary of State, including certifying that new regulations fully mitigate all identified significant environmental impacts and that a fee structure is in place that will fully cover all costs to the department related to the administration of the program.
This bill would require the department to issue a permit if the department determines that the use does not cause any significant effects to fish and wildlife and would authorize the department to adjust the specified fee to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities. This bill would prohibit the department from issuing a permit until the permit application is deemed complete, as prescribed. The bill would prohibit the permit from authorizing any activity in violation of other applicable requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment, and would require the department, the State Water Resources Control Board, and the regional water quality control boards to make reasonable efforts to share information among the agencies regarding potential violations of requirements, conditions, or prohibitions.
Under existing law, the State Water Resources Control Board and the California regional water quality control boards prescribe waste discharge requirements in accordance with the Federal Water Pollution Control Act and the Porter-Cologne Water Quality Control Act (state act). The state act, with certain exceptions, requires a waste discharger to file certain information with the appropriate regional board and to pay an annual fee. The state act additionally requires a person, before discharging mining waste, to submit to the regional board a report on the physical and chemical characteristics of the waste that could affect its potential to cause pollution or contamination and a report that evaluates the potential of the mining waste discharge to produce acid mine drainage, the discharge or leaching of heavy metals, or the release of other hazardous substances.
This bill would, after the director has made the prescribed certification to the Secretary of State and after prescribed public hearings and workshops, as specified, authorize the state board or a regional board to adopt waste discharge requirements or a waiver of waste discharge requirements that address water quality impacts of specified issues, specify certain conditions or areas where the discharge of waste waste or other adverse impacts on beneficial uses of the waters of the state from a the use of vacuum or suction dredge equipment is prohibited, or prohibit particular use of, or methods of using, vacuum or suction dredge mining if the state board or regional board makes a certain determination. equipment, or any protion thereof, for the extraction of minerals, as specified.
The bill would specify that a suction dredge is equipment used for mining operations that contains any of specified components for purposes of permits issued by the department and for purposes of the regulatory process established by the state board or a regional board. the use of vacuum or suction dredge equipment is defined as the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals.
Existing law prohibits the use of any vacuum or suction dredge equipment by any person in any river, stream, or lake of this state without a permit issued by the Department of Fish and Wildlife. Existing law requires, before any person uses any vacuum or suction dredge equipment in any river, stream, or lake of this state, that person to submit an application for a permit for a vacuum or suction dredge to the department specifying certain information. Existing law requires the department to issue a permit, if the department determines that the use of a vacuum or suction dredge will not be deleterious to fish, upon the payment of a specified fee. Existing law designates the issuance of permits to operate vacuum or suction dredge equipment to be a project under the California Environmental Quality Act and suspends the issuance of permits and mining pursuant to a permit until the department has completed an environmental impact report for the project as ordered by the court in a specified court action. Existing law prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake of this state until the Director of Fish and Wildlife makes a prescribed certification to the Secretary of State, including certifying that new regulations fully mitigate all identified significant environmental impacts and that a fee structure is in place that will fully cover all costs to the department related to the administration of the program.
This bill would require the department to issue a permit if the department determines that the use does not cause any significant effects to fish and wildlife and would authorize the department to adjust the specified fee to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities. This bill would prohibit the department from issuing a permit until the permit application is deemed complete, as prescribed.
Under existing law, the State Water Resources Control Board and the California regional water quality control boards prescribe waste discharge requirements in accordance with the Federal Water Pollution Control Act and the Porter-Cologne Water Quality Control Act (state act). The state act, with certain exceptions, requires a waste discharger to file certain information with the appropriate regional board and to pay an annual fee. The state act additionally requires a person, before discharging mining waste, to submit to the regional board a report on the physical and chemical characteristics of the waste that could affect its potential to cause pollution or contamination and a report that evaluates the potential of the mining waste discharge to produce acid mine drainage, the discharge or leaching of heavy metals, or the release of other hazardous substances.
This bill would authorize, would, after the director has made the prescribed certification to the Secretary of State, State and after prescribed public hearings and workshops, authorize the state board or a regional board to adopt waste discharge requirements that address water quality impacts of specified issues, specify certain conditions or areas where the discharge of waste from a suction dredge is prohibited, or prohibit particular methods of suction dredge mining if the state board or regional board makes a certain determination.
The bill would specify that a suction dredge is equipment used for mining operations that contains any of specified components for purposes of permits issued by the department and for purposes of the regulatory process established by the state board or a regional board.
Existing law prohibits the use of any vacuum or suction dredge equipment by any person in any river, stream, or lake of this state without a permit issued by the Department of Fish and Wildlife. Existing law requires, before any person uses any vacuum or suction dredge equipment in any river, stream, or lake of this state, that person to submit an application for a permit for a vacuum or suction dredge to the department specifying certain information. Existing law requires the department to issue a permit, if the department determines that the use of a vacuum or suction dredge will not be deleterious to fish, upon the payment of a specified fee. Existing law designates the issuance of permits to operate vacuum or suction dredge equipment to be a project under the California Environmental Quality Act and suspends the issuance of permits and mining pursuant to a permit until the department has completed an environmental impact report for the project as ordered by the court in a specified court action. Existing law prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake of this state until the Director of Fish and Wildlife makes a prescribed certification to the Secretary of State, including certifying that new regulations fully mitigate all identified significant environmental impacts and that a fee structure is in place that will fully cover all costs to the department related to the administration of the program.
This bill would require the department to issue a permit if the department determines that the use does not cause any significant effects on to fish and wildlife and would authorize the department to adjust the specified fee to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities. This bill would prohibit the department from issuing a permit until the permit application is deemed complete, as prescribed.
Under existing law, the State Water Resources Control Board and the California regional water quality control boards prescribe waste discharge requirements in accordance with the Federal Water Pollution Control Act and the Porter-Cologne Water Quality Control Act (state act). The state act, with certain exceptions, requires a waste discharger to file certain information with the appropriate regional board and to pay an annual fee. The state act additionally requires a person, before discharging mining waste, to submit to the regional board a report on the physical and chemical characteristics of the waste that could affect its potential to cause pollution or contamination and a report that evaluates the potential of the mining waste discharge to produce acid mine drainage, the discharge or leaching of heavy metals, or the release of other hazardous substances.This bill would require, by July 1, 2017 authorize, after the director has made the prescribed certification to the Secretary of State, the state board or a regional board to establish a permitting process for suction dredge mining and related mining activities in rivers and streams in the state, consistent with requirements of the state act. The bill would require that the regulations, at a minimum, address cumulative and water quality impacts of specified issues. A person who violates these regulations would be liable for an unspecified penalty. The bill would provide that the state board is not prohibited from adopting regulations that would prohibit suction dredge mining, if the state board makes a certain finding relating to water quality objectives, to the extent consistent with federal law. The bill would prohibit these provisions from affecting any other law, including the California Environmental Quality Act and specified provisions relating to streambed alteration requirements. adopt waste discharge requirements that address water quality impacts of specified issues, specify certain conditions or areas where the discharge of waste from a suction dredge is prohibited, or prohibit particular methods of suction dredge mining if the state board or regional board makes a certain determination.
The bill would specify that a suction dredge contains any of specified components for purposes of permits issued by the department and for purposes of the permitting regulatory process established by the state board or a regional board.
Existing law prohibits the use of any vacuum or suction dredge equipment by any person in any river, stream, or lake of this state without a permit issued by the Department of Fish and Wildlife. Existing law requires, before any person uses any vacuum or suction dredge equipment in any river, stream, or lake of this state, that person to submit an application for a permit for a vacuum or suction dredge to the department specifying certain information. Existing law requires the department to issue a permit, if the department determines that the use of a vacuum or suction dredge will not be deleterious to fish, upon the payment of a specified fee. Existing law designates the issuance of permits to operate vacuum or suction dredge equipment to be a project under the California Environmental Quality Act and suspends the issuance of permits and mining pursuant to a permit until the department has completed an environmental impact report for the project as ordered by the court in a specified court action. Existing law prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake of this state until the Director of Fish and Wildlife makes a prescribed certification to the Secretary of State, including certifying that new regulations fully mitigate all identified significant environmental impacts and that a fee structure is in place that will fully cover all costs to the department related to the administration of the program.
This bill would instead require the department to issue a permit if the department determines that the use does not cause any significant effects on fish and wildlife and would authorize the department to adjust the specified fee to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities. This bill would prohibit the department from issuing a permit until the permit application is deemed complete, as prescribed.
Under existing law, the State Water Resources Control Board and the California regional water quality control boards prescribe waste discharge requirements in accordance with the federal Clean Federal Water Pollution Control Act and the Porter-Cologne Water Quality Control Act (state act). The state act, with certain exceptions, requires a waste discharger to file certain information with the appropriate regional board and to pay an annual fee. The state act additionally requires a person, before discharging mining waste, to submit to the regional board a report on the physical and chemical characteristics of the waste that could affect its potential to cause pollution or contamination and a report that evaluates the potential of the mining waste discharge to produce acid mine drainage, the discharge or leaching of heavy metals, or the release of other hazardous substances.
This bill would require, by July 1, 2017, the State Water Resources Control state board to establish a permitting process for suction dredge mining and related mining activities in rivers and streams in the state, consistent with requirements of the state act. The bill would require that the regulations, at a minimum, address cumulative and water quality impacts of specified issues. A person who violates these regulations would be liable for an unspecified penalty. The bill would provide that the state board is not prohibited from adopting regulations that would prohibit suction dredge mining, if the state board makes a certain finding relating to water quality objectives, to the extent consistent with federal law. The bill would prohibit these provisions from affecting any other law, including the California Environmental Quality Act and specified provisions relating to streambed alteration requirements.
The bill would specify that a suction dredge contains any of specified components for purposes of permits issued by the Department of Fish and Wildlife department and for purposes of the permitting process established by the state board.
Existing law prohibits the use of any vacuum or suction dredge equipment by any person in any river, stream, or lake of this state without a permit issued by the Department of Fish and Wildlife. Existing law requires the department to issue a permit, if the department determines that the use of a vacuum or suction dredge will not be deleterious to fish, upon the payment of a specified fee.
This bill would instead require the department to issue a permit if the department determines that the use does not cause any significant effects on fish and wildlife and would authorize the department to adjust the specified fee to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities.
Under existing law, the State Water Resources Control Board and the California regional water quality control boards prescribe waste discharge requirements in accordance with the federal Clean Water Act and the Porter-Cologne Water Quality Control Act (state act). The state act, with certain exceptions, requires a waste discharger to file certain information with the appropriate regional board and to pay an annual fee. The state act additionally requires a person, before discharging mining waste, to submit to the regional board a report on the physical and chemical characteristics of the waste that could affect its potential to cause pollution or contamination and a report that evaluates the potential of the mining waste discharge to produce acid mine drainage, the discharge or leaching of heavy metals, or the release of other hazardous substances.
This bill would require, by July 1, 2017, the State Water Resources Control board to establish a permitting process for suction dredge mining and related mining activities in rivers and streams in the state, consistent with requirements of the state act. The bill would require that the regulations, at a minimum, address cumulative and water quality impacts of specified issues. A person who violates these regulations would be liable for an unspecified penalty. The bill would provide that the state board is not prohibited from adopting regulations that would prohibit suction dredge mining, if the state board makes a certain finding relating to water quality objectives, to the extent consistent with federal law. The bill would prohibit these provisions from affecting any other law, including the California Environmental Quality Act and specified provisions relating to streambed alteration requirements.
The bill would specify that a suction dredge contains any of specified components for purposes of permits issued by the Department of Fish and Wildlife and for purposes of the permitting process established by the state board.
Existing law prohibits the use of any vacuum or suction dredge equipment by any person in any river, stream, or lake of this state without a permit issued by the Department of Fish and Wildlife.
Under existing law, the State Water Resources Control Board and the California regional water quality control boards prescribe waste discharge requirements in accordance with the federal Clean Water Act and the Porter-Cologne Water Quality Control Act (state act). The state act, with certain exceptions, requires a waste discharger to file certain information with the appropriate regional board and to pay an annual fee. The state act additionally requires a person, before discharging mining waste, to submit to the regional board a report on the physical and chemical characteristics of the waste that could affect its potential to cause pollution or contamination and a report that evaluates the potential of the mining waste discharge to produce acid mine drainage, the discharge or leaching of heavy metals, or the release of other hazardous substances.
This bill would require, by July 1, 2017, the State Water Resources Control board to establish a permitting process for suction dredge mining and related mining activities in rivers and streams in the state, consistent with requirements of the state act. The bill would require that the regulations, at a minimum, address cumulative and water quality impacts of specified issues. A person who violates these regulations would be liable for an unspecified penalty. The bill would provide that the state board is not prohibited from adopting regulations that would prohibit suction dredge mining, if the state board makes a certain finding relating to water quality objectives, to the extent consistent with federal law. The bill would prohibit these provisions from affecting any other law, including the California Environmental Quality Act and specified provisions relating to streambed alteration requirements.
The Legislature finds and declares all of the following:
(a)In August 2009, Governor Arnold Schwarzenegger signed Senate Bill 670 (Chapter 62 of the Statutes of 2009) which established a temporary ban on the use of vacuum or suction dredge equipment until after the Department of Fish and Wildlife completed a court-ordered environmental review of its related permitting program and existing regulations.
(b)In July 2011, Governor Schwarzenegger signed Assembly Bill 120 (Chapter 133 of the Statutes of 2011), extending the prohibition on the use of vacuum or suction dredge equipment to June 2016 or, if earlier, until the Director of Fish and Wildlife certified five conditions to the Secretary of State, including completion of the court-ordered environmental review, the adoption of and operation of any updated regulations implementing Section 5653 of the Fish and Game Code, full mitigation of all identified significant environmental effects, and the existence of a permit fee structure that would fully cover all costs incurred by the department to administer its permitting program.
(c)In March 2012, the Department of Fish and Wildlife completed the court-ordered environmental review and rulemaking effort, certifying the environmental impact report and adopting updated regulations to implement and administer its related permitting program pursuant to Section 5653 of the Fish and Game Code. In certifying the environmental impact report and adopting the regulations, the department found, for purposes of the California Environmental Quality Act (CEQA), that, among other things, significant effects on the environment had to be mitigated to the extent feasible consistent with enabling statutory authority directing the department to promulgate the updated regulations, but the use of vacuum or suction dredging equipment to extract minerals would result in various significant and unavoidable environmental effects beyond the substantive reach of the department in promulgating the regulations. The department considers the environmental impact report it certified in March 2012 to be the most comprehensive, technical review of suction dredge mining ever prepared in California.
(d)As to significant and unavoidable effects, in March 2012, the Department of Fish and Wildlife determined, for purposes of CEQA, that the use of vacuum or suction dredge equipment, consistent with the updated regulations implementing Section 5653 of the Fish and Game Code, could result in effects associated with the following:
(1)The resuspension and discharge of mercury and trace metals.
(2)Turbidity and total suspended sediment.
(3)Substantial adverse changes, when considered statewide, in the significance of historical and unique archaeological resources.
(4)Riparian habitat of special status passerines.
(5)Effects on nonfish wildlife species and their habitat.
(6)Exposure of the public to noise levels in excess of city or county standards.
(e)In June 2012, Governor Brown signed Senate Bill 1018 (Chapter 39 of the Statutes of 2012), which eliminated the sunset provision from Assembly Bill 120. Senate Bill 1018 also directed the department to consult with various agencies and to provide recommendations to the Legislature by April 1, 2013, regarding statutory changes or authorizations necessary for the department to promulgate suction dredge regulations. Those recommendations were to include ways to fully mitigate all identified significant environmental impacts and a fee structure to cover the departments costs of administering the program.
(f)On April 1, 2013, the department submitted the required report to the Legislature. The report provides specific recommendations for statutory amendments necessary to modernize the regulation of suction dredge mining under the Fish and Game Code, and reflects the departments efforts to consult with, and includes related additional recommendations from, various other state agencies, including the State Water Resources Control Board. The State Water Resources Control Board in its related letter appended to the departments report emphasized that the State Water Resources Control Board and its sister agencies, the regional water quality control boards, are tasked with the protection, control, and utilization of all waters of the state and may regulate any activity or factor that may affect water quality.
(g)In January 2015, the California Supreme Court granted a petition for review to consider whether the federal Mining Act of 1872 (30 U.S.C. Sec. 22 et seq.) preempts Sections 5653 and 5653.1 of the Fish and Game Code with respect to the use of vacuum and suction dredging equipment (People v. Rinehart, Case No. S222620).
(h)Given the importance of protecting the water supply for all Californians from degradation, the need to protect what is left of California native cultural sites, and the value of protecting the states wildlife, it is urgent that the Legislature act immediately to clarify the laws regulating suction dredge mining and other related forms of small scale motorized gold mining in the states streams and waterways.
SEC. 2.Section 5653 of the Fish and Game Code is amended to read:5653.(a)The use of vacuum or suction dredge equipment by a person in a river, stream, or lake of this state is prohibited, except as authorized under a permit issued to that person by the department in compliance with the regulations adopted pursuant to Section 5653.9. Before a person uses vacuum or suction dredge equipment in a river, stream, or lake of this state, that person shall submit an application to the department for a permit to use the vacuum or suction dredge equipment, specifying the type and size of equipment to be used and other information as the department may require pursuant to regulations adopted by the department to implement this section.
(b)(1)The department shall not issue a permit for the use of vacuum or suction dredge equipment until the permit application is deemed complete. A complete permit application shall include any other permit required by the department and one of the following, as applicable:
(A)A copy of waste discharge requirements or a waiver of waste discharge requirements issued by the State Water Resources Control Board or a regional water quality control board in accordance with Division 7 (commencing with Section 13000) of the Water Code.
(B)A copy of a certification issued by the State Water Resources Control Board or a regional water quality control board and a permit issued by the United States Army Corps of Engineers in accordance with Sections 401 and 404 of the Federal Water Pollution Control Act (33 U.S.C. Secs. 1341 and 1344, respectively) to use vacuum or suction dredge equipment.
(C)If the State Water Resources Control Board or the appropriate regional water quality control board determines that waste discharge requirements, a waiver of waste discharge requirements, or a certification in accordance with Section 1341 of Title 33 of the United States Code is not necessary for the applicant to use of vacuum or suction dredge equipment, a letter stating this determination signed by the Executive Director of the State Water Resources Control Board, the executive officer of the appropriate regional water quality control board, or their designee.
(c)Under the regulations adopted pursuant to Section 5653.9, the department shall designate waters or areas wherein vacuum or suction dredge equipment may be used pursuant to a permit, waters or areas closed to the use of that equipment, the maximum size of the vacuum or suction dredge equipment that may be used, and the time of year when the equipment may be used. If the department determines, pursuant to the regulations adopted pursuant to Section 5653.9, that the use of vacuum or suction dredge equipment does not cause any significant effects to fish and wildlife, it shall issue a permit to the applicant. If a person uses vacuum or suction dredge equipment other than as authorized by a permit issued by the department consistent with regulations implementing this section, that person is guilty of a misdemeanor.
(d)(1)Except as provided in paragraph (2), the department shall issue a permit upon the payment, in the case of a resident, of a base fee of twenty-five dollars ($25), as adjusted under Section 713, when an onsite investigation of the project size is not deemed necessary by the department, and a base fee of one hundred thirty dollars ($130), as adjusted under Section 713, when the department deems that an onsite investigation is necessary. Except as provided in paragraph (2), in the case of a nonresident, the base fee shall be one hundred dollars ($100), as adjusted under Section 713, when an onsite investigation is not deemed necessary, and a base fee of two hundred twenty dollars ($220), as adjusted under Section 713, when an onsite investigation is deemed necessary.
(2)The department may adjust the base fees for a permit described in this subdivision to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities.
(e)It is unlawful to possess a vacuum or suction dredge in areas, or in or within 100 yards of waters, that are closed to the use of vacuum or suction dredges.
(f)A permit issued by the department under this section shall not authorize an activity in violation of other applicable requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment, including those adopted by the State Water Resources Control Board or a regional water quality control board. The department, the State Water Resources Control Board, and the regional water quality control boards shall make reasonable efforts to share information among the agencies regarding potential violations of requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment.
(g)For purposes of this section and Section 5653.1, the use of vacuum or suction dredge equipment, also known as suction dredging, is the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. This section and Section 5653.1 do not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.
SEC. 3.Section 13172.5 is added to the Water Code, to read:13172.5.(a)For purposes of this section, the use of any vacuum or suction dredge equipment, also known as suction dredging, is the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. This section does not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.
(b)In order to protect water quality, the state board or a regional board may take one or more of the following actions:
(1)Adopt waste discharge requirements or a waiver of waste discharge requirements that, at a minimum, address the water quality impacts of each of the following:
(A)Mercury loading to downstream reaches of surface water bodies affected by the use of vacuum or suction dredge equipment.
(B)Methylmercury formation in water bodies.
(C)Bioaccumulation of mercury in aquatic organisms.
(D)Resuspension of metals.
(2)Specify certain conditions or areas where the discharge of waste or other adverse impacts on beneficial uses of the waters of the state from the use of vacuum or suction dredge equipment is prohibited, consistent with Section 13243.
(3)Prohibit any particular use of, or methods of using, vacuum or suction dredge equipment, or any portion thereof, for the extraction of minerals that the state board or a regional board determines generally cause or contribute to an exceedance of applicable water quality objectives or unreasonably impact beneficial uses.
(c)(1)Before determining what action to take pursuant to subdivision (b), the state board shall solicit stakeholder input by conducting public workshops in the vicinity of the cities of San Bernardino, Fresno, Sacramento, and Redding. A regional board considering independent action pursuant to subdivision (b) shall solicit stakeholder input by conducting at least one public workshop in that boards region. To promote participation in the public workshops, the state board or regional board shall proactively reach out to mining groups, environmental organizations, and California Native American tribes, as defined in Section 21073 of the Public Resources Code.
(2)Before taking a proposed action pursuant to subdivision (b), the state board or regional board shall conduct at least one public hearing regarding that proposed action pursuant to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(3)To avoid duplication of efforts between the state board and a regional board of a public workshop or public hearing that covers the same regional area, the state board and a regional board may work in collaboration to share information obtained through the public workshops or public hearing.
SEC. 4.The Legislature also finds and declares that, except for water quality, after complying with the Governors Executive Order B-10-11 regarding tribal consultation and additional consultation requirements pursuant to Chapter 532 of the Statutes of 2014, also known as Assembly Bill 52 (Gatto), the Department of Fish and Wildlife may determine, for purposes of Section 5653.1 of the Fish and Game Code, that significant environmental impacts to resources other than fish and wildlife resources caused by the use of vacuum or suction dredge equipment for the extraction of minerals are fully mitigated if a regulation adopted by the department to implement and interpret Section 5653 of the Fish and Game Code requires compliance with other laws and provides, in part, that nothing in a permit or amended permit issued by the department relieves the permittee of responsibility to comply with all applicable federal, state, or local laws or ordinances.
The Legislature finds and declares all of the following:
(a)In August 2009, Governor Arnold Schwarzenegger signed Senate Bill 670 (Chapter 62 of the Statutes of 2009) which established a temporary ban on the use of vacuum or suction dredge equipment until after the Department of Fish and Wildlife completed a court-ordered environmental review of its related permitting program and existing regulations.
(b)In July 2011, Governor Schwarzenegger signed Assembly Bill 120 (Chapter 133 of the Statutes of 2011), extending the prohibition on the use of vacuum or suction dredge equipment to June 2016 or, if earlier, until the Director of Fish and Wildlife certified five conditions to the Secretary of State, including completion of the court-ordered environmental review, the adoption of and operation of any updated regulations implementing Section 5653 of the Fish and Game Code, full mitigation of all identified significant environmental effects, and the existence of a permit fee structure that would fully cover all costs incurred by the department to administer its permitting program.
(c)In March 2012, the Department of Fish and Wildlife completed the court-ordered environmental review and rulemaking effort, certifying the environmental impact report and adopting updated regulations to implement and administer its related permitting program pursuant to Section 5653 of the Fish and Game Code. In certifying the environmental impact report and adopting the regulations, the department found, for purposes of the California Environmental Quality Act (CEQA), that, among other things, significant effects on the environment had to be mitigated to the extent feasible consistent with enabling statutory authority directing the department to promulgate the updated regulations, but the use of vacuum or suction dredging equipment to extract minerals would result in various significant and unavoidable environmental effects beyond the substantive reach of the department in promulgating the regulations. The department considers the environmental impact report it certified in March 2012 to be the most comprehensive, technical review of suction dredge mining ever prepared in California.
(d)As to significant and unavoidable effects, in March 2012, the Department of Fish and Wildlife determined, for purposes of CEQA, that the use of vacuum or suction dredge equipment, consistent with the updated regulations implementing Section 5653 of the Fish and Game Code, could result in effects associated with the following:
(1)The resuspension and discharge of mercury and trace metals.
(2)Turbidity and total suspended sediment.
(3)Substantial adverse changes, when considered statewide, in the significance of historical and unique archaeological resources.
(4)Riparian habitat of special status passerines.
(5)Effects on nonfish wildlife species and their habitat.
(6)Exposure of the public to noise levels in excess of city or county standards.
(e)In June 2012, Governor Brown signed Senate Bill 1018 (Chapter 39 of the Statutes of 2012), which eliminated the sunset provision from Assembly Bill 120. Senate Bill 1018 also directed the department to consult with various agencies and to provide recommendations to the Legislature by April 1, 2013, regarding statutory changes or authorizations necessary for the department to promulgate suction dredge regulations. Those recommendations were to include ways to fully mitigate all identified significant environmental impacts and a fee structure to cover the departments costs of administering the program.
(f)On April 1, 2013, the department submitted the required report to the Legislature. The report provides specific recommendations for statutory amendments necessary to modernize the regulation of suction dredge mining under the Fish and Game Code, and reflects the departments efforts to consult with, and includes related additional recommendations from, various other state agencies, including the State Water Resources Control Board. The State Water Resources Control Board in its related letter appended to the departments report emphasized that the State Water Resources Control Board and its sister agencies, the regional water quality control boards, are tasked with the protection, control, and utilization of all waters of the state and may regulate any activity or factor that may affect water quality.
(g)In January 2015, the California Supreme Court granted a petition for review to consider whether the federal Mining Act of 1872 (30 U.S.C. Sec. 22 et seq.) preempts Sections 5653 and 5653.1 of the Fish and Game Code with respect to the use of vacuum and suction dredging equipment (People v. Rinehart, Case No. S222620).
(h)Given the importance of protecting the water supply for all Californians from degradation, the need to protect what is left of California native cultural sites, and the value of protecting the states wildlife, it is urgent that the Legislature act immediately to clarify the laws regulating suction dredge mining and other related forms of small scale motorized gold mining in the states streams and waterways.
SEC. 2.Section 5653 of the Fish and Game Code is amended to read:5653.(a)The use of vacuum or suction dredge equipment by a person in a river, stream, or lake of this state is prohibited, except as authorized under a permit issued to that person by the department in compliance with the regulations adopted pursuant to Section 5653.9. Before a person uses vacuum or suction dredge equipment in a river, stream, or lake of this state, that person shall submit an application to the department for a permit to use the vacuum or suction dredge equipment, specifying the type and size of equipment to be used and other information as the department may require pursuant to regulations adopted by the department to implement this section.
(b)(1)The department shall not issue a permit for the use of vacuum or suction dredge equipment until the permit application is deemed complete. A complete permit application shall include any other permit required by the department and one of the following, as applicable:
(A)A copy of waste discharge requirements or a waiver of waste discharge requirements issued by the State Water Resources Control Board or a regional water quality control board in accordance with Division 7 (commencing with Section 13000) of the Water Code.
(B)A copy of a certification issued by the State Water Resources Control Board or a regional water quality control board and a permit issued by the United States Army Corps of Engineers in accordance with Sections 401 and 404 of the Federal Water Pollution Control Act (33 U.S.C. Secs. 1341 and 1344, respectively) to use vacuum or suction dredge equipment.
(C)If the State Water Resources Control Board or the appropriate regional water quality control board determines that waste discharge requirements, a waiver of waste discharge requirements, or a certification in accordance with Section 1341 of Title 33 of the United States Code is not necessary for the applicant to use of vacuum or suction dredge equipment, a letter stating this determination signed by the Executive Director of the State Water Resources Control Board, the executive officer of the appropriate regional water quality control board, or their designee.
(c)Under the regulations adopted pursuant to Section 5653.9, the department shall designate waters or areas wherein vacuum or suction dredge equipment may be used pursuant to a permit, waters or areas closed to the use of that equipment, the maximum size of the vacuum or suction dredge equipment that may be used, and the time of year when the equipment may be used. If the department determines, pursuant to the regulations adopted pursuant to Section 5653.9, that the use of vacuum or suction dredge equipment does not cause any significant effects to fish and wildlife, it shall issue a permit to the applicant. If a person uses vacuum or suction dredge equipment other than as authorized by a permit issued by the department consistent with regulations implementing this section, that person is guilty of a misdemeanor.
(d)(1)Except as provided in paragraph (2), the department shall issue a permit upon the payment, in the case of a resident, of a base fee of twenty-five dollars ($25), as adjusted under Section 713, when an onsite investigation of the project size is not deemed necessary by the department, and a base fee of one hundred thirty dollars ($130), as adjusted under Section 713, when the department deems that an onsite investigation is necessary. Except as provided in paragraph (2), in the case of a nonresident, the base fee shall be one hundred dollars ($100), as adjusted under Section 713, when an onsite investigation is not deemed necessary, and a base fee of two hundred twenty dollars ($220), as adjusted under Section 713, when an onsite investigation is deemed necessary.
(2)The department may adjust the base fees for a permit described in this subdivision to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities.
(e)It is unlawful to possess a vacuum or suction dredge in areas, or in or within 100 yards of waters, that are closed to the use of vacuum or suction dredges.
(f)A permit issued by the department under this section shall not authorize an activity in violation of other applicable requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment, including those adopted by the State Water Resources Control Board or a regional water quality control board. The department, the State Water Resources Control Board, and the regional water quality control boards shall make reasonable efforts to share information among the agencies regarding potential violations of requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment.
(g)For purposes of this section and Section 5653.1, the use of vacuum or suction dredge equipment, also known as suction dredging, is the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. This section and Section 5653.1 do not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.
SEC. 3.Section 13172.5 is added to the Water Code, to read:13172.5.(a)For purposes of this section, the use of any vacuum or suction dredge equipment, also known as suction dredging, is the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. This section does not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.
(b)In order to protect water quality, the state board or a regional board may take one or more of the following actions:
(1)Adopt waste discharge requirements or a waiver of waste discharge requirements that, at a minimum, address the water quality impacts of each of the following:
(A)Mercury loading to downstream reaches of surface water bodies affected by the use of vacuum or suction dredge equipment.
(B)Methylmercury formation in water bodies.
(C)Bioaccumulation of mercury in aquatic organisms.
(D)Resuspension of metals.
(2)Specify certain conditions or areas where the discharge of waste or other adverse impacts on beneficial uses of the waters of the state from the use of vacuum or suction dredge equipment is prohibited, consistent with Section 13243.
(3)Prohibit any particular use of, or methods of using, vacuum or suction dredge equipment, or any portion thereof, for the extraction of minerals that the state board or a regional board determines generally cause or contribute to an exceedance of applicable water quality objectives or unreasonably impact beneficial uses.
(c)(1)Before determining what action to take pursuant to subdivision (b), the state board shall solicit stakeholder input by conducting public workshops in the vicinity of the cities of San Bernardino, Fresno, Sacramento, and Redding. A regional board considering independent action pursuant to subdivision (b) shall solicit stakeholder input by conducting at least one public workshop in that boards region. To promote participation in the public workshops, the state board or regional board shall proactively reach out to mining groups, environmental organizations, and California Native American tribes, as defined in Section 21073 of the Public Resources Code.
(2)Before taking a proposed action pursuant to subdivision (b), the state board or regional board shall conduct at least one public hearing regarding that proposed action pursuant to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(3)To avoid duplication of efforts between the state board and a regional board of a public workshop or public hearing that covers the same regional area, the state board and a regional board may work in collaboration to share information obtained through the public workshops or public hearing.
SEC. 4.The Legislature also finds and declares that, except for water quality, after complying with the Governors Executive Order B-10-11 regarding tribal consultation and additional consultation requirements pursuant to Chapter 532 of the Statutes of 2014, also known as Assembly Bill 52 (Gatto), the Department of Fish and Wildlife may determine, for purposes of Section 5653.1 of the Fish and Game Code, that significant environmental impacts to resources other than fish and wildlife resources caused by the use of vacuum or suction dredge equipment for the extraction of minerals are fully mitigated if a regulation adopted by the department to implement and interpret Section 5653 of the Fish and Game Code requires compliance with other laws and provides, in part, that nothing in a permit or amended permit issued by the department relieves the permittee of responsibility to comply with all applicable federal, state, or local laws or ordinances.
The Legislature finds and declares all of the following:
(a)In August 2009, Governor Arnold Schwarzenegger signed Senate Bill 670 (Chapter 62 of the Statutes of 2009) which established a temporary ban on the use of vacuum or suction dredge equipment until after the Department of Fish and Wildlife completed a court-ordered environmental review of its related permitting program and existing regulations.
(b)In July 2011, Governor Schwarzenegger signed Assembly Bill 120 (Chapter 133 of the Statutes of 2011), extending the prohibition on the use of vacuum or suction dredge equipment to June 2016 or, if earlier, until the Director of Fish and Wildlife certified five conditions to the Secretary of State, including completion of the court-ordered environmental review, the adoption of and operation of any updated regulations implementing Section 5653 of the Fish and Game Code, full mitigation of all identified significant environmental effects, and the existence of a permit fee structure that would fully cover all costs incurred by the department to administer its permitting program.
(c)In March 2012, the Department of Fish and Wildlife completed the court-ordered environmental review and rulemaking effort, certifying the environmental impact report and adopting updated regulations to implement and administer its related permitting program pursuant to Section 5653 of the Fish and Game Code. In certifying the environmental impact report and adopting the regulations, the department found, for purposes of the California Environmental Quality Act (CEQA), that, among other things, significant effects on the environment had to be mitigated to the extent feasible consistent with enabling statutory authority directing the department to promulgate the updated regulations, but the use of vacuum or suction dredging equipment to extract minerals would result in various significant and unavoidable environmental effects beyond the substantive reach of the department in promulgating the regulations. The department considers the environmental impact report it certified in March 2012 to be the most comprehensive, technical review of suction dredge mining ever prepared in California.
(d)As to significant and unavoidable effects, in March 2012, the Department of Fish and Wildlife determined, for purposes of CEQA, that the use of vacuum or suction dredge equipment, consistent with the updated regulations implementing Section 5653 of the Fish and Game Code, could result in effects associated with the following:
(1)The resuspension and discharge of mercury and trace metals.
(2)Turbidity and total suspended sediment.
(3)Substantial adverse changes, when considered statewide, in the significance of historical and unique archaeological resources.
(4)Riparian habitat of special status passerines.
(5)Effects on nonfish wildlife species and their habitat.
(6)Exposure of the public to noise levels in excess of city or county standards.
(e)In June 2012, Governor Brown signed Senate Bill 1018 (Chapter 39 of the Statutes of 2012), which eliminated the sunset provision from Assembly Bill 120. Senate Bill 1018 also directed the department to consult with various agencies and to provide recommendations to the Legislature by April 1, 2013, regarding statutory changes or authorizations necessary for the department to promulgate suction dredge regulations. Those recommendations were to include ways to fully mitigate all identified significant environmental impacts and a fee structure to cover the departments costs of administering the program.
(f)On April 1, 2013, the department submitted the required report to the Legislature. The report provides specific recommendations for statutory amendments necessary to modernize the regulation of suction dredge mining under the Fish and Game Code, and reflects the departments efforts to consult with, and includes related additional recommendations from, various other state agencies, including the State Water Resources Control Board. The State Water Resources Control Board in its related letter appended to the departments report emphasized that the State Water Resources Control Board and its sister agencies, the regional water quality control boards, are tasked with the protection, control, and utilization of all waters of the state and may regulate any activity or factor that may affect water quality.
(g)In January 2015, the California Supreme Court granted a petition for review to consider whether the federal Mining Act of 1872 (30 U.S.C. Sec. 22 et seq.) preempts Sections 5653 and 5653.1 of the Fish and Game Code with respect to the use of vacuum and suction dredging equipment (People v. Rinehart, Case No. S222620).
(h)Given the importance of protecting the water supply for all Californians from degradation, the need to protect what is left of California native cultural sites, and the value of protecting the states wildlife, it is urgent that the Legislature act immediately to clarify the laws regulating suction dredge mining and other related forms of small scale motorized gold mining in the states streams and waterways.
SEC. 2.Section 5653 of the Fish and Game Code is amended to read:5653.(a)The use of vacuum or suction dredge equipment by a person in a river, stream, or lake of this state is prohibited, except as authorized under a permit issued to that person by the department in compliance with the regulations adopted pursuant to Section 5653.9. Before a person uses vacuum or suction dredge equipment in a river, stream, or lake of this state, that person shall submit an application to the department for a permit to use the vacuum or suction dredge equipment, specifying the type and size of equipment to be used and other information as the department may require pursuant to regulations adopted by the department to implement this section.
(b)(1)The department shall not issue a permit for the use of vacuum or suction dredge equipment until the permit application is deemed complete. A complete permit application shall include any other permit required by the department and one of the following, as applicable:
(A)A copy of waste discharge requirements or a waiver of waste discharge requirements issued by the State Water Resources Control Board or a regional water quality control board in accordance with Division 7 (commencing with Section 13000) of the Water Code.
(B)A copy of a certification issued by the State Water Resources Control Board or a regional water quality control board and a permit issued by the United States Army Corps of Engineers in accordance with Sections 401 and 404 of the Federal Water Pollution Control Act (33 U.S.C. Secs. 1341 and 1344, respectively) to use vacuum or suction dredge equipment.
(C)If the State Water Resources Control Board or the appropriate regional water quality control board determines that waste discharge requirements, a waiver of waste discharge requirements, or a certification in accordance with Section 1341 of Title 33 of the United States Code is not necessary for the applicant to use of vacuum or suction dredge equipment, a letter stating this determination signed by the Executive Director of the State Water Resources Control Board, the executive officer of the appropriate regional water quality control board, or their designee.
(c)Under the regulations adopted pursuant to Section 5653.9, the department shall designate waters or areas wherein vacuum or suction dredge equipment may be used pursuant to a permit, waters or areas closed to the use of that equipment, the maximum size of the vacuum or suction dredge equipment that may be used, and the time of year when the equipment may be used. If the department determines, pursuant to the regulations adopted pursuant to Section 5653.9, that the use of vacuum or suction dredge equipment does not cause any significant effects to fish and wildlife, it shall issue a permit to the applicant. If a person uses vacuum or suction dredge equipment other than as authorized by a permit issued by the department consistent with regulations implementing this section, that person is guilty of a misdemeanor.
(d)(1)Except as provided in paragraph (2), the department shall issue a permit upon the payment, in the case of a resident, of a base fee of twenty-five dollars ($25), as adjusted under Section 713, when an onsite investigation of the project size is not deemed necessary by the department, and a base fee of one hundred thirty dollars ($130), as adjusted under Section 713, when the department deems that an onsite investigation is necessary. Except as provided in paragraph (2), in the case of a nonresident, the base fee shall be one hundred dollars ($100), as adjusted under Section 713, when an onsite investigation is not deemed necessary, and a base fee of two hundred twenty dollars ($220), as adjusted under Section 713, when an onsite investigation is deemed necessary.
(2)The department may adjust the base fees for a permit described in this subdivision to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities.
(e)It is unlawful to possess a vacuum or suction dredge in areas, or in or within 100 yards of waters, that are closed to the use of vacuum or suction dredges.
(f)A permit issued by the department under this section shall not authorize an activity in violation of other applicable requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment, including those adopted by the State Water Resources Control Board or a regional water quality control board. The department, the State Water Resources Control Board, and the regional water quality control boards shall make reasonable efforts to share information among the agencies regarding potential violations of requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment.
(g)For purposes of this section and Section 5653.1, the use of vacuum or suction dredge equipment, also known as suction dredging, is the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. This section and Section 5653.1 do not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.
SEC. 3.Section 13172.5 is added to the Water Code, to read:13172.5.(a)For purposes of this section, the use of any vacuum or suction dredge equipment, also known as suction dredging, is the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. This section does not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.
(b)In order to protect water quality, the state board or a regional board may take one or more of the following actions:
(1)Adopt waste discharge requirements or a waiver of waste discharge requirements that, at a minimum, address the water quality impacts of each of the following:
(A)Mercury loading to downstream reaches of surface water bodies affected by the use of vacuum or suction dredge equipment.
(B)Methylmercury formation in water bodies.
(C)Bioaccumulation of mercury in aquatic organisms.
(D)Resuspension of metals.
(2)Specify certain conditions or areas where the discharge of waste or other adverse impacts on beneficial uses of the waters of the state from the use of vacuum or suction dredge equipment is prohibited, consistent with Section 13243.
(3)Prohibit any particular use of, or methods of using, vacuum or suction dredge equipment, or any portion thereof, for the extraction of minerals that the state board or a regional board determines generally cause or contribute to an exceedance of applicable water quality objectives or unreasonably impact beneficial uses.
(c)(1)Before determining what action to take pursuant to subdivision (b), the state board shall solicit stakeholder input by conducting public workshops in the vicinity of the cities of San Bernardino, Fresno, Sacramento, and Redding. A regional board considering independent action pursuant to subdivision (b) shall solicit stakeholder input by conducting at least one public workshop in that boards region. To promote participation in the public workshops, the state board or regional board shall proactively reach out to mining groups, environmental organizations, and California Native American tribes, as defined in Section 21073 of the Public Resources Code.
(2)Before taking a proposed action pursuant to subdivision (b), the state board or regional board shall conduct at least one public hearing regarding that proposed action pursuant to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(3)To avoid duplication of efforts between the state board and a regional board of a public workshop or public hearing that covers the same regional area, the state board and a regional board may work in collaboration to share information obtained through the public workshops or public hearing.
SEC. 4.(a)Except as provided by the changes made by this act, the Legislature finds and declares that the regulations promulgated by the Department of Fish and Wildlife in 2012 to implement and interpret Sections 5653 and 5653.1 of the Fish and Game Code were consistent and in compliance with the Fish and Game Code, the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code), and the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).
(b)
SEC. 4.The Legislature also finds and declares that, except for water quality, after complying with the Governors Executive Order B-10-11 regarding tribal consultation and additional consultation requirements pursuant to Chapter 532 of the Statutes of 2014, also known as Assembly Bill 52 (Gatto), the Department of Fish and Wildlife may determine, for purposes of Section 5653.1 of the Fish and Game Code, that significant environmental impacts to resources other than fish and wildlife resources caused by the use of vacuum or suction dredge equipment for the extraction of minerals are fully mitigated if a regulation adopted by the department to implement and interpret Section 5653 of the Fish and Game Code requires compliance with other laws and provides, in part, that nothing in a permit or amended permit issued by the department relieves the permittee of responsibility to comply with all applicable federal, state, or local laws or ordinances.
The Legislature finds and declares all of the following:
(a)In August 2009, Governor Arnold Schwarzenegger signed Senate Bill 670 (Chapter 62 of the Statutes of 2009) which established a temporary ban on the use of vacuum or suction dredge mining equipment until after the Department of Fish and Wildlife completed a court-ordered environmental review was completed. of its related permitting program and existing regulations.
(b)The Department of Fish and Wildlife draft regulations and draft environmental impact report were issued in February 2011. The draft environmental impact report identified nine significant and unmitigable impacts from suction dredge mining. The report concluded that suction dredge mining for gold mobilizes and discharges toxic levels of mercury, harming drinking water quality and potentially poisoning fish and wildlife, harms fish, amphibians, and songbirds by disrupting habitat, and causes substantial adverse changes statewide in American Indian cultural and historical resources.
(c)
(b)In July 2011, the Legislature enacted Governor Schwarzenegger signed Assembly Bill 120 (Chapter 133 of the Statutes of 2011), extending the prohibition on the use of vacuum or suction dredge mining until 2016, and requiring the department to create a equipment to June 2016 or, if earlier, until the Director of Fish and Wildlife certified five conditions to the Secretary of State, including completion of the court-ordered environmental review, the adoption of and operation of any updated regulations implementing Section 5653 of the Fish and Game Code, full mitigation of all identified significant environmental effects, and the existence of a permit fee structure that would fully cover all of its administrative costs relating to suction dredge mining. incurred by the department to administer its permitting program.
(c)In March 2012, the Department of Fish and Wildlife completed the court-ordered environmental review and rulemaking effort, certifying the environmental impact report and adopting updated regulations to implement and administer its related permitting program pursuant to Section 5653 of the Fish and Game Code. In certifying the environmental impact report and adopting the regulations, the department found, for purposes of the California Environmental Quality Act (CEQA), that, among other things, significant effects on the environment had to be mitigated to the extent feasible consistent with enabling statutory authority directing the department to promulgate the updated regulations, but the use of vacuum or suction dredging equipment to extract minerals would result in various significant and unavoidable environmental effects beyond the substantive reach of the department in promulgating the regulations. The department considers the environmental impact report it certified in March 2012 to be the most comprehensive, technical review of suction dredge mining ever prepared in California.
(d)As to significant and unavoidable effects, in March 2012, the Department of Fish and Wildlife determined, for purposes of CEQA, that the use of vacuum or suction dredge equipment, consistent with the updated regulations implementing Section 5653 of the Fish and Game Code, could result in effects associated with the following:
(1)The resuspension and discharge of mercury and trace metals.
(2)Turbidity and total suspended sediment.
(3)Substantial adverse changes, when considered statewide, in the significance of historical and unique archaeological resources.
(4)Riparian habitat of special status passerines.
(5)Effects on nonfish wildlife species and their habitat.
(6)Exposure of the public to noise levels in excess of city or county standards.
(d)
(e)In June 2012, the Legislature acted again on suction dredge mining by enacting Governor Brown signed Senate Bill 1018 (Chapter 39 of the Statutes of 2012), which eliminated the sunset provision from Assembly Bill 120. Senate Bill 1018 also directed the department to consult with various agencies and to provide recommendations to the Legislature by April 1, 2013, regarding statutory changes or authorizations necessary for the department to promulgate suction dredge regulations. Those recommendations were to include ways to fully mitigate all identified significant environmental impacts and a fee structure to cover the departments costs of administering the program.
(e)
(f)On April 1, 2013, the department submitted the required report to the Legislature. The department considers the environmental impact report on its proposed suction dredge mining regulatory permit program to be the most comprehensive review of suction dredge mining ever compiled in California. The report identified impacts that the department said could not be mitigated within its legal authorities. report provides specific recommendations for statutory amendments necessary to modernize the regulation of suction dredge mining under the Fish and Game Code, and reflects the departments efforts to consult with, and includes related additional recommendations from, various other state agencies, including the State Water Resources Control Board. The State Water Resources Control Board in its related letter appended to the departments report emphasized that the State Water Resources Control Board and its sister agencies, the regional water quality control boards, are tasked with the protection, control, and utilization of all waters of the state and may regulate any activity or factor that may affect water quality.
(f)
(g)In January 2015, the San Bernardino Superior Court issued a tentative ruling that state-issued suction dredge mining permits could not be required on federal land. The court noted that, while the state clearly has the power to issue suction dredge mining permits, the states refusal or inability to issue the permits creates an obstacle to conforming with federal law. California Supreme Court granted a petition for review to consider whether the federal Mining Act of 1872 (30 U.S.C. Sec. 22 et seq.) preempts Sections 5653 and 5653.1 of the Fish and Game Code with respect to the use of vacuum and suction dredging equipment (People v. Rinehart, Case No. S222620).
(g)
(h)Given the importance of protecting the water supply for all Californians from degradation, the need to protect what is left of California native cultural sites, and the value of protecting the states wildlife, it is urgent that the Legislature act immediately to clarify the laws regulating suction dredge mining and other related forms of small scale motorized gold mining in the states streams and waterways.
SEC. 2.Section 5653 of the Fish and Game Code is amended to read:5653.(a)The use of a vacuum or suction dredge equipment by a person in a river, stream, or lake of this state is prohibited, except as authorized under a permit issued to that person by the department in compliance with the regulations adopted pursuant to Section 5653.9. Before a person uses a vacuum or suction dredge equipment in a river, stream, or lake of this state, that person shall submit an application to the department for a permit for a to use the vacuum or suction dredge to the department, equipment, specifying the type and size of equipment to be used and other information as the department may require. require pursuant to regulations adopted by the department to implement this section.
(b)(1)The department shall not issue a permit for a the use of vacuum or suction dredge equipment until the permit application is deemed complete. A complete permit application shall include copies of all required permits, including permits required under the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.) and the Water Code, and any other applicable permit required to fully mitigate all identified significant environmental impacts pursuant to regulations adopted under subdivision (b) of Section 5653.1. any other permit required by the department and one of the following, as applicable:
(A)A copy of waste discharge requirements or a waiver of waste discharge requirements issued by the State Water Resources Control Board or a regional water quality control board in accordance with Division 7 (commencing with Section 13000) of the Water Code.
(B)A copy of a certification issued by the State Water Resources Control Board or a regional water quality control board and a permit issued by the United States Army Corps of Engineers in accordance with Sections 401 and 404 of the Federal Water Pollution Control Act (33 U.S.C. Secs. 1341 and 1344, respectively) to use vacuum or suction dredge equipment.
(2)
(C)If the State Water Resources Control Board or the appropriate regional water quality control board determines that no water quality or water rights permit waste discharge requirements, a waiver of waste discharge requirements, or a certification in accordance with Section 1341 of Title 33 of the United States Code is not necessary for the applicant to use of a vacuum or suction dredge, dredge equipment, a letter stating this determination signed by the Executive Director of the State Water Resources Control Board, the executive officer of the appropriate regional water quality control board, or their designee shall be part of the permit application. designee.
(3)For the purpose of the Permit Streamlining Act (Chapter 4.5 (commencing with Section 65920) of Division 1 of Title 7 of the Government Code), the department shall not deem the permit application complete until the applicant submits all necessary permits and any required letters to the department as part of the permit application.
(c)Under the regulations adopted pursuant to Section 5653.9, the department shall designate waters or areas wherein vacuum or suction dredges dredge equipment may be used pursuant to a permit, waters or areas closed to those dredges, the use of that equipment, the maximum size of those dredges the vacuum or suction dredge equipment that may be used, and the time of year when those dredges the equipment may be used. If the department determines, pursuant to the regulations adopted pursuant to Section 5653.9, that the use of a vacuum or suction dredge equipment does not cause any significant effects to fish and wildlife, it shall issue a permit to the applicant. If a person operates uses vacuum or suction dredge equipment other than that as authorized by the a permit or conducts the operation in any waters or area or at any time that is not authorized by the permit, or if any person conducts the operation without securing the permit, issued by the department consistent with regulations implementing this section, that person is guilty of a misdemeanor.
(d)(1)Except as provided in paragraph (2), the department shall issue a permit upon the payment, in the case of a resident, of a base fee of twenty-five dollars ($25), as adjusted under Section 713, when an onsite investigation of the project size is not deemed necessary by the department, and a base fee of one hundred thirty dollars ($130), as adjusted under Section 713, when the department deems that an onsite investigation is necessary. Except as provided in paragraph (2), in the case of a nonresident, the base fee shall be one hundred dollars ($100), as adjusted under Section 713, when an onsite investigation is not deemed necessary, and a base fee of two hundred twenty dollars ($220), as adjusted under Section 713, when an onsite investigation is deemed necessary.
(2)The department may adjust the base fees for a permit described in this subdivision to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities.
(e)It is unlawful to possess a vacuum or suction dredge in areas, or in or within 100 yards of waters, that are closed to the use of vacuum or suction dredges.
(f)A permit issued by the department under this section shall not authorize an activity in violation of other applicable requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment, including those adopted by the State Water Resources Control Board or a regional water quality control board. The department, the State Water Resources Control Board, and the regional water quality control boards shall make reasonable efforts to share information among the agencies regarding potential violations of requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment.
(f)
(g)For purposes of this section and Section 5653.1, a suction dredge is equipment used for mining operations that contains any of the following: the use of vacuum or suction dredge equipment, also known as suction dredging, is the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. This section and Section 5653.1 do not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.
(1)A hose that vacuums sediment from the bed or bank of a river, stream, or lake.
(2)A motorized pump.
(3)A motorized sluice box.
(4)Related small-scale mechanized mining equipment.
SEC. 3.Section 13172.5 is added to the Water Code, to read:13172.5.(a)After the Director of Fish and Wildlife has certified to the Secretary of State that all of the events described in subdivision (b) of Section 5653.1 of the Fish and Game Code have occurred, and after conducting appropriate workshops and hearings pursuant to subdivision (b),
13172.5.(a)For purposes of this section, the use of any vacuum or suction dredge equipment, also known as suction dredging, is the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. This section does not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.
(b)In order to protect water quality, the state board or a regional board may take one or more of the following actions:
(1)Adopt waste discharge requirements or a waiver of waste discharge requirements that, at a minimum, address the water quality impacts of each of the following:
(A)Mercury loading to downstream reaches of surface water bodies affected by the use of vacuum or suction dredge mining. equipment.
(B)Methylmercury formation in water bodies.
(C)Bioaccumulation of mercury in aquatic organisms.
(D)Resuspension of metals.
(2)Specify certain conditions or areas where the discharge of waste or other adverse impacts on beneficial uses of the waters of the state from the use of vacuum or suction dredge mining equipment is prohibited, consistent with Section 13243.
(3)Prohibit any particular methods of suction dredge mining use of, or methods of using, vacuum or suction dredge equipment, or any portion thereof, for the extraction of minerals that the state board or a regional board determines generally cause or contribute to an exceedance of applicable water quality objectives or unreasonably impact beneficial uses.
(b)
(c)(1)Before determining what action to take pursuant to subdivision (a), (b), the state board or regional board shall solicit stakeholder input by conducting at least one public workshop. If the state board is soliciting stakeholder input, the state board shall conduct the public workshops in areas of the state where, in 2009, a substantial number of residents held a suction dredge mining permit issued by the Department of Fish and Wildlife. workshops in the vicinity of the cities of San Bernardino, Fresno, Sacramento, and Redding. A regional board considering independent action pursuant to subdivision (b) shall solicit stakeholder input by conducting at least one public workshop in that boards region. To promote participation in the public workshops, the state board or regional board shall proactively reach out to mining groups, environmental organizations, and California Native American tribes, as defined in Section 21073 of the Public Resources Code.
(2)Before taking a proposed action pursuant to subdivision (a), (b), the state board or regional board shall conduct at least two one public hearings, and the regional board at least one public hearing, hearing regarding that proposed action. action pursuant to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(3)To avoid duplication of efforts between the state board and a regional board of a public workshop or public hearing that covers the same regional area, the state board and a regional board may work in collaboration to share information obtained through the public workshop workshops or public hearing.
(c)For purposes of this section, a suction dredge is equipment used for mining operations that contains any of the following:
(1)A hose that vacuums sediment from the bed or bank of a river, stream, or lake.
(2)A motorized pump.
(3)A motorized sluice box.
(4)Related small-scale mechanized mining equipment.
SEC. 4.(a)Except as provided by the changes made by this act, the Legislature finds and declares that the regulations promulgated by the Department of Fish and Wildlife in 2012 to implement and interpret Sections 5653 and 5653.1 of the Fish and Game Code were consistent and in compliance with the Fish and Game Code, the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code), and the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).
(b)The Legislature also finds and declares that, except for water quality, after complying with the Governors Executive Order B-10-11 regarding tribal consultation and additional consultation requirements pursuant to Chapter 532 of the Statutes of 2014, also known as Assembly Bill 52 (Gatto), the Department of Fish and Wildlife may determine, for purposes of Section 5653.1 of the Fish and Game Code, that significant environmental impacts to resources other than fish and wildlife resources caused by the use of vacuum or suction dredge equipment for the extraction of minerals are fully mitigated if a regulation adopted by the department to implement and interpret Section 5653 of the Fish and Game Code requires compliance with other laws and provides, in part, that nothing in a permit or amended permit issued by the department relieves the permittee of responsibility to comply with all applicable federal, state, or local laws or ordinances.
The Legislature finds and declares all of the following:
(a)In 2009, Governor Arnold Schwarzenegger signed Senate Bill 670 (Chapter 62 of the Statutes of 2009) which established a temporary ban on suction dredge mining until after a court-ordered environmental review was completed.
(b)The Department of Fish and Wildlife draft regulations and draft environmental impact report were issued in February 2011. The draft environmental impact report identified nine significant and unmitigable impacts from suction dredge mining. The report concluded that suction dredge mining for gold mobilizes and discharges toxic levels of mercury, harming drinking water quality and potentially poisoning fish and wildlife, harms fish, amphibians, and songbirds by disrupting habitat, and causes substantial adverse changes statewide in American Indian cultural and historical resources.
(c)In July 2011, the Legislature enacted Assembly Bill 120 (Chapter 133 of the Statutes of 2011), extending the prohibition on suction dredge mining until 2016, and requiring the department to create a fee structure that would cover all of its administrative costs relating to suction dredge mining.
(d)In 2012, the Legislature acted again on suction dredge mining by enacting Senate Bill 1018 (Chapter 39 of the Statutes of 2012), which eliminated the sunset provision from Assembly Bill 120. Senate Bill 1018 also directed the department to consult with various agencies and to provide recommendations to the Legislature by April 1, 2013, regarding statutory changes or authorizations necessary for the department to promulgate suction dredge regulations. Those recommendations were to include ways to fully mitigate all identified significant environmental impacts and a fee structure to cover the departments costs of administering the program.
(e)On April 1, 2013, the department submitted the required report to the Legislature. The department considers the environmental impact report on its proposed suction dredge mining regulatory permit program to be the most comprehensive review of suction dredge mining ever compiled in California. The report identified impacts that the department said could not be mitigated within its legal authorities.
(f)In January 2015, the San Bernardino Superior Court issued a tentative ruling that state-issued suction dredge mining permits could not be required on federal land. The court noted that, while the state clearly has the power to issue suction dredge mining permits, the states refusal or inability to issue the permits creates an obstacle to conforming with federal law.
(g)Given the importance of protecting the water supply for all Californians Californians from degradation, the need to protect what is left of California native cultural sites, and the value of protecting the states wildlife, it is urgent that the Legislature act immediately to clarify the laws regulating suction dredge mining and other related forms of small scale motorized gold mining in the states streams and waterways.
SEC. 2.Section 5653 of the Fish and Game Code is amended to read:5653.(a)The use of a vacuum or suction dredge equipment by a person in a river, stream, or lake of this state is prohibited, except as authorized under a permit issued to that person by the department in compliance with the regulations adopted pursuant to Section 5653.9. Before a person uses a vacuum or suction dredge equipment in a river, stream, or lake of this state, that person shall submit an application for a permit for a vacuum or suction dredge to the department, specifying the type and size of equipment to be used and other information as the department may require.
(b)(1)The department shall not issue a permit for a vacuum or suction dredge until the permit application is deemed complete. A complete permit application shall include copies of all required permits, including permits required under the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.) and the Water Code, and any other applicable permit required to fully mitigate all identified significant environmental impacts pursuant to regulations adopted under subdivision (b) of Section 5653.1.
(2)If the State Water Resources Control Board or the appropriate regional water quality control board determines that no water quality or water rights permit is necessary for the use of a vacuum or suction dredge, a letter stating this determination signed by the Executive Director of the State Water Resources Control Board, the executive officer of the appropriate regional water quality control board, or their designee shall be part of the permit application.
(3)For the purpose of the Permit Streamlining Act (Chapter 4.5 (commencing with Section 65920) of Division 1 of Title 7 of the Government Code), the department shall not deem the permit application complete until the applicant submits all necessary permits and any required letters to the department as part of the permit application.
(c)Under the regulations adopted pursuant to Section 5653.9, the department shall designate waters or areas wherein vacuum or suction dredges may be used pursuant to a permit, waters or areas closed to those dredges, the maximum size of those dredges that may be used, and the time of year when those dredges may be used. If the department determines, pursuant to the regulations adopted pursuant to Section 5653.9, that the use of a vacuum or suction dredge does not cause any significant effects to fish and wildlife, it shall issue a permit to the applicant. If a person operates equipment other than that authorized by the permit or conducts the operation in any waters or area or at any time that is not authorized by the permit, or if any person conducts the operation without securing the permit, that person is guilty of a misdemeanor.
(d)(1)Except as provided in paragraph (2), the department shall issue a permit upon the payment, in the case of a resident, of a base fee of twenty-five dollars ($25), as adjusted under Section 713, when an onsite investigation of the project size is not deemed necessary by the department, and a base fee of one hundred thirty dollars ($130), as adjusted under Section 713, when the department deems that an onsite investigation is necessary. Except as provided in paragraph (2), in the case of a nonresident, the base fee shall be one hundred dollars ($100), as adjusted under Section 713, when an onsite investigation is not deemed necessary, and a base fee of two hundred twenty dollars ($220), as adjusted under Section 713, when an onsite investigation is deemed necessary.
(2)The department may adjust the base fees for a permit described in this subdivision to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities.
(e)It is unlawful to possess a vacuum or suction dredge in areas, or in or within 100 yards of waters, that are closed to the use of vacuum or suction dredges.
(f)For purposes of this section and Section 5653.1, a suction dredge is equipment used for mining operations that contains any of the following:
(1)A hose that vacuums sediment from the bed or bank of a river, stream, or lake.
(2)A motorized pump.
(3)A motorized sluice box.
(4)Related small-scale mechanized mining equipment.
SEC. 3.Section 13172.5 is added to the Water Code, to read:13172.5.(a)After the Director of Fish and Wildlife has certified to the Secretary of State that all of the events described in subdivision (b) of Section 5653.1 of the Fish and Game Code have occurred, and after conducting appropriate workshops and hearings pursuant to subdivision (b), the state board or a regional board may take one or more of the following actions:
(1)Adopt waste discharge requirements that, at a minimum, address the water quality impacts of each of the following:
(A)Mercury loading to downstream reaches of surface water bodies affected by suction dredge mining.
(B)Methylmercury formation in water bodies.
(C)Bioaccumulation of mercury in aquatic organisms.
(D)Resuspension of metals.
(2)Specify certain conditions or areas where the discharge of waste from suction dredge mining is prohibited, consistent with Section 13243.
(3)Prohibit any particular methods of suction dredge mining that the state board or a regional board determines generally cause or contribute to an exceedance of applicable water quality objectives or unreasonably impact beneficial uses.
(b)(1)Before determining what action to take pursuant to subdivision (a), the state board or regional board shall solicit stakeholder input by conducting at least one public workshop. If the state board is soliciting stakeholder input, the state board shall conduct the public workshops in areas of the state where, in 2009, a substantial number of residents held a suction dredge mining permit issued by the Department of Fish and Wildlife. To promote participation in the public workshops, the state board or regional board shall proactively reach out to mining groups, environmental organizations, and California Native American tribes, as defined in Section 21073 of the Public Resources Code.
(2)Before taking a proposed action pursuant to subdivision (a), the state board shall conduct at least two public hearings, and the regional board at least one public hearing, regarding that proposed action.
(3)To avoid duplication of efforts between the state board and a regional board of a public workshop or public hearing that covers the same regional area, the state board and a regional board may work in collaboration to share information obtained through the public workshop or public hearing.
(b)
(c)For purposes of this section, a suction dredge is equipment used for mining operations that contains any of the following:
(1)A hose that vacuums sediment from the bed or bank of a river, stream, or lake.
(2)A motorized pump.
(3)A motorized sluice box.
(4)Related small-scale mechanized mining equipment.
The Legislature finds and declares all of the following:
(a)In 2009, Governor Schwarzenegger signed Senate Bill 670 (Chapter 62 of the Statutes of 2009) which established a temporary ban on suction dredge mining until after a court-ordered environmental review was completed.
(b)The Department of Fish and Wildlife draft regulations and draft environmental impact report were issued in February 2011. The draft environmental impact report identified nine significant and unmitigable impacts from suction dredge mining. The report concluded that suction dredge mining for gold mobilizes and discharges toxic levels of mercury, harming drinking water quality and potentially poisoning fish and wildlife, harms fish, amphibians, and songbirds by disrupting habitat, and causes substantial adverse changes statewide in American Indian cultural and historical resources.
(c)In July 2011, the Legislature enacted Assembly Bill 120 (Chapter 133 of the Statutes of 2011), extending the prohibition on suction dredge mining until 2016, and requiring the department to create a fee structure that would cover all of its administrative costs relating to suction dredge mining.
(d)In 2012, the Legislature acted again on suction dredge mining by enacting Senate Bill 1018 (Chapter 39 of the Statutes of 2012), which eliminated the sunset provision from Assembly Bill 120. Senate Bill 1018 also directed the department to consult with various agencies and to provide recommendations to the Legislature by April 1, 2013, regarding statutory changes or authorizations necessary for the department to promulgate suction dredge regulations. Those recommendations were to include ways to fully mitigate all identified significant environmental impacts and a fee structure to cover the departments costs of administering the program.
(e)On April 1, 2013, the department submitted the required report to the Legislature. The department considers the environmental impact report on its proposed suction dredge mining regulatory permit program to be the most comprehensive review of suction dredge mining ever compiled in California. The report identified impacts that the department said could not be mitigated within its legal authorities.
(f)In January 2015, the San Bernardino Superior Court issued a tentative ruling that state-issued suction dredge mining permits could not be required on federal land. The court noted that, while the state clearly has the power to issue suction dredge mining permits, the states refusal or inability to issue the permits creates an obstacle to conforming with federal law.
(g)Given the importance of protecting the water supply for all Californians from degradation, the need to protect what is left of California native cultural sites, and the value of protecting the states wildlife, it is urgent that the Legislature act immediately to clarify the laws regulating suction dredge mining and other related forms of small scale motorized gold mining in the states streams and waterways.
SECTION 1.SEC. 2.Section 5653 of the Fish and Game Code is amended to read:5653.(a)The use of a vacuum or suction dredge equipment by a person in a river, stream, or lake of this state is prohibited, except as authorized under a permit issued to that person by the department in compliance with the regulations adopted pursuant to Section 5653.9. Before a person uses a vacuum or suction dredge equipment in a river, stream, or lake of this state, that person shall submit an application for a permit for a vacuum or suction dredge to the department, specifying the type and size of equipment to be used and other information as the department may require.
(b)(1)The department shall not issue a permit for a vacuum or suction dredge until the permit application is deemed complete. A complete permit application shall include copies of all required permits, including permits required under the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.) and the Water Code, and any other applicable permit required to fully mitigate all identified significant environmental impacts pursuant to regulations adopted under subdivision (b) of Section 5653.1.
(2)If the State Water Resources Control Board or the appropriate regional water quality control board determines that no water quality or water rights permit is necessary for the use of a vacuum or suction dredge, a letter stating this determination signed by the Executive Director of the State Water Resources Control Board, the executive officer of the appropriate regional water quality control board, or their designee shall be part of the permit application.
(3)For the purpose of the Permit Streamlining Act (Chapter 4.5 (commencing with Section 65920) of Division 1 of Title 7 of the Government Code), the department shall not deem the permit application complete until the applicant submits all necessary permits and any required letters to the department as part of the permit application.
(c)Under the regulations adopted pursuant to Section 5653.9, the department shall designate waters or areas wherein vacuum or suction dredges may be used pursuant to a permit, waters or areas closed to those dredges, the maximum size of those dredges that may be used, and the time of year when those dredges may be used. If the department determines, pursuant to the regulations adopted pursuant to Section 5653.9, that the use of a vacuum or suction dredge does not cause any significant effects to fish and wildlife, it shall issue a permit to the applicant. If a person operates equipment other than that authorized by the permit or conducts the operation in any waters or area or at any time that is not authorized by the permit, or if any person conducts the operation without securing the permit, that person is guilty of a misdemeanor.
(d)(1)Except as provided in paragraph (2), the department shall issue a permit upon the payment, in the case of a resident, of a base fee of twenty-five dollars ($25), as adjusted under Section 713, when an onsite investigation of the project size is not deemed necessary by the department, and a base fee of one hundred thirty dollars ($130), as adjusted under Section 713, when the department deems that an onsite investigation is necessary. Except as provided in paragraph (2), in the case of a nonresident, the base fee shall be one hundred dollars ($100), as adjusted under Section 713, when an onsite investigation is not deemed necessary, and a base fee of two hundred twenty dollars ($220), as adjusted under Section 713, when an onsite investigation is deemed necessary.
(2)The department may adjust the base fees for a permit described in this subdivision to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities.
(e)It is unlawful to possess a vacuum or suction dredge in areas, or in or within 100 yards of waters, that are closed to the use of vacuum or suction dredges.
(f)For purposes of this section and Section 5653.1, a suction dredge contains any of the following:
(1)A hose that vacuums sediment from a river, stream, or lake.
(2)A motorized pump.
(3)A motorized sluice box.
SEC. 2.SEC. 3.Section 13172.5 is added to the Water Code, to read:13172.5.(a)On or before July 1, 2017, the state board shall establish by regulation a permitting process for suction dredge mining and related mining activities in rivers and streams in the state. The regulations shall be consistent with the requirements of this division and, at a minimum, address cumulative and water quality impacts of each of the following:
13172.5.(a)After the Director of Fish and Wildlife has certified to the Secretary of State that all of the events described in subdivision (b) of Section 5653.1 of the Fish and Game Code have occurred, the state board or a regional board may take one or more of the following actions:
(1)Adopt waste discharge requirements that, at a minimum, address the water quality impacts of each of the following:
(1)
(A)Mercury loading to downstream reaches of rivers and streams affected by suction dredge mining. surface water bodies affected by suction dredge mining.
(2)
(B)Methylmercury formation in water bodies.
(3)
(C)Bioaccumulation of mercury in aquatic organisms.
(b)A person who violates a regulation adopted pursuant to this section shall be liable in the amount of ____ ($____).
(c)Nothing in subdivision (a) shall prohibit the state board from adopting regulations that prohibit suction dredge mining if the state board finds that prohibition is necessary to regulate waste discharges that violate or impair water quality objectives or other criteria under this division, to the extent consistent with federal law. In making this determination, the state board may consider, but is not limited to, soil types, fueling and refueling activities, and horsepower limitations.
(d)This section does not affect any other law, including the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) and the Department of Fish and Wildlifes streambed alteration requirements described in Chapter 6 (commencing with Section 1600) of the Fish and Game Code.
(D)Resuspension of metals.
(2)Specify certain conditions or areas where the discharge of waste from suction dredge mining is prohibited, consistent with Section 13243.
(3)Prohibit any particular methods of suction dredge mining that the state board or a regional board determines generally cause or contribute to an exceedance of applicable water quality objectives or unreasonably impact beneficial uses.
(e)
(b)For purposes of this section, a suction dredge contains any of the following:
(1)A hose that vacuums sediment from a river, stream, or lake.
(2)A motorized pump.
(3)A motorized sluice box.
(a)The use of a vacuum or suction dredge equipment by a person in a river, stream, or lake of this state is prohibited, except as authorized under a permit issued to that person by the department in compliance with the regulations adopted pursuant to Section 5653.9. Before a person uses a vacuum or suction dredge equipment in a river, stream, or lake of this state, that person shall submit an application for a permit for a vacuum or suction dredge to the department, specifying the type and size of equipment to be used and other information as the department may require.
(b)(1)The department shall not issue a permit for a vacuum or suction dredge until the permit application is deemed complete. A complete permit application shall include copies of all required permits, including permits required under the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.) and the Water Code, and any other applicable permit required to fully mitigate all identified significant environmental impacts pursuant to regulations adopted under subdivision (b) of Section 5653.1.
(2)If the State Water Resources Control Board or the appropriate regional water quality control board determines that no water quality or water rights permit is necessary for the use of a vacuum or suction dredge, a letter stating this determination signed by the Executive Director of the State Water Resources Control Board, the executive officer of the appropriate regional water quality control board, or their designee shall be part of the permit application.
(3)For the purpose of the Permit Streamlining Act (Chapter 4.5 (commencing with Section 65920) of Division 1 of Title 7 of the Government Code), the department shall not deem the permit application complete until the applicant submits all necessary permits and any required letters to the department as part of the permit application.
(b)
(c)Under the regulations adopted pursuant to Section 5653.9, the department shall designate waters or areas wherein vacuum or suction dredges may be used pursuant to a permit, waters or areas closed to those dredges, the maximum size of those dredges that may be used, and the time of year when those dredges may be used. If the department determines, pursuant to the regulations adopted pursuant to Section 5653.9, that the use of a vacuum or suction dredge does not cause any significant effects to fish and wildlife, it shall issue a permit to the applicant. If a person operates equipment other than that authorized by the permit or conducts the operation in any waters or area or at any time that is not authorized by the permit, or if any person conducts the operation without securing the permit, that person is guilty of a misdemeanor.
(c)
(d)(1)Except as provided in paragraph (2), the department shall issue a permit upon the payment, in the case of a resident, of a base fee of twenty-five dollars ($25), as adjusted under Section 713, when an onsite investigation of the project size is not deemed necessary by the department, and a base fee of one hundred thirty dollars ($130), as adjusted under Section 713, when the department deems that an onsite investigation is necessary. Except as provided in paragraph (2), in the case of a nonresident, the base fee shall be one hundred dollars ($100), as adjusted under Section 713, when an onsite investigation is not deemed necessary, and a base fee of two hundred twenty dollars ($220), as adjusted under Section 713, when an onsite investigation is deemed necessary.
(2)The department may adjust the base fees for a permit described in this subdivision to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities.
(d)
(e)It is unlawful to possess a vacuum or suction dredge in areas, or in or within 100 yards of waters, that are closed to the use of vacuum or suction dredges.
(e)
(f)For purposes of this section and Section 5653.1, a suction dredge contains any of the following:
(1)A hose that vacuums sediment from a river, stream, or lake.
(2)A motorized pump.
(3)A motorized sluice box.
SEC. 2.Section 13172.5 is added to the Water Code, to read:13172.5.(a)On or before July 1, 2017, the state board shall establish by regulation a permitting process for suction dredge mining and related mining activities in rivers and streams in the state. The regulations shall be consistent with the requirements of this division and, at a minimum, address cumulative and water quality impacts of each of the following:
(1)Mercury loading to downstream reaches of rivers and streams affected by suction dredge mining.
(2)Methylmercury formation in water bodies.
(3)Bioaccumulation of mercury in aquatic organisms.
(b)A person who violates a regulation adopted pursuant to this section shall be liable in the amount of ____ ($____).
(c)Nothing in subdivision (a) shall prohibit the state board from adopting regulations that prohibit suction dredge mining if the state board finds that prohibition is necessary to regulate waste discharges that violate or impair water quality objectives or other criteria under this division, to the extent consistent with federal law. In making this determination, the state board may consider, but is not limited to, soil types, fueling and refueling activities, and horsepower limitations.
(d)This section does not affect any other law, including the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) and the Department of Fish and Wildlifes streambed alteration requirements described in Chapter 6 (commencing with Section 1600) of the Fish and Game Code.
(e)For purposes of this section, a suction dredge contains any of the following:
(1)A hose that vacuums sediment from a river, stream, or lake.
(2)A motorized pump.
(3)A motorized sluice box.
(a)The use of any a vacuum or suction dredge equipment by any a person in any a river, stream, or lake of this state is prohibited, except as authorized under a permit issued to that person by the department in compliance with the regulations adopted pursuant to Section 5653.9. Before any a person uses any a vacuum or suction dredge equipment in any a river, stream, or lake of this state, that person shall submit an application for a permit for a vacuum or suction dredge to the department, specifying the type and size of equipment to be used and other information as the department may require.
(b)Under the regulations adopted pursuant to Section 5653.9, the department shall designate waters or areas wherein vacuum or suction dredges may be used pursuant to a permit, waters or areas closed to those dredges, the maximum size of those dredges that may be used, and the time of year when those dredges may be used. If the department determines, pursuant to the regulations adopted pursuant to Section 5653.9, that the operation will not be deleterious to fish use of a vacuum or suction dredge does not cause any significant effects to fish and wildlife, it shall issue a permit to the applicant. If any a person operates any equipment other than that authorized by the permit or conducts the operation in any waters or area or at any time that is not authorized by the permit, or if any person conducts the operation without securing the permit, that person is guilty of a misdemeanor.
(c)The (1)Except as provided in paragraph (2), the department shall issue a permit upon the payment, in the case of a resident, of a base fee of twenty-five dollars ($25), as adjusted under Section 713, when an onsite investigation of the project size is not deemed necessary by the department, and a base fee of one hundred thirty dollars ($130), as adjusted under Section 713, when the department deems that an onsite investigation is necessary. In Except as provided in paragraph (2), in the case of a nonresident, the base fee shall be one hundred dollars ($100), as adjusted under Section 713, when an onsite investigation is not deemed necessary, and a base fee of two hundred twenty dollars ($220), as adjusted under Section 713, when an onsite investigation is deemed necessary.
(2)The department may adjust the base fees for a permit described in this subdivision to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities.
(d)It is unlawful to possess a vacuum or suction dredge in areas, or in or within 100 yards of waters, that are closed to the use of vacuum or suction dredges.
(e)For purposes of this section and Section 5653.1, a suction dredge contains any of the following:
(1)A hose that vacuums sediment from a river, stream, or lake.
(2)A motorized pump.
(3)A motorized sluice box.
SECTION 1.SEC. 2.Section 13172.5 is added to the Water Code, to read:13172.5.(a)On or before July 1, 2017, the state board shall establish by regulation a permitting process for suction dredge mining and related mining activities in rivers and streams in the state. The regulations shall be consistent with the requirements of this division and, at a minimum, address cumulative and water quality impacts of each of the following:
(1)Mercury loading to downstream reaches of rivers and streams affected by suction dredge mining.
(2)Methylmercury formation in water bodies.
(3)Bioaccumulation of mercury in aquatic organisms.
(b)A person who violates a regulation adopted pursuant to this section shall be liable in the amount of ____ ($____).
(c)Nothing in subdivision (a) shall prohibit the state board from adopting regulations that prohibit suction dredge mining if the state board finds that prohibition is necessary to regulate waste discharges that violate or impair water quality objectives or other criteria under this division, to the extent consistent with federal law. In making this determination, the state board may consider, but is not limited to, soil types, fueling and refueling activities, and horsepower limitations.
(d)This section does not affect any other law, including the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) and the Department of Fish and Wildlifes streambed alteration requirements described in Chapter 6 (commencing with Section 1600) of the Fish and Game Code.
(e)For purposes of this section, a suction dredge contains any of the following:
(1)A hose that vacuums sediment from a river, stream, or lake.
(2)A motorized pump.
(3)A motorized sluice box.
(a)On or before July 1, 2017, the state board shall establish by regulation a permitting process for suction dredge mining and related mining activities in rivers and streams in the state. The regulations shall be consistent with the requirements of this division and, at a minimum, address cumulative and water quality impacts of each of the following:
(1)Mercury loading to downstream reaches of rivers and streams affected by suction dredge mining.
(2)Methylmercury formation in water bodies.
(3)Bioaccumulation of mercury in aquatic organisms.
(b)A person who violates a regulation adopted pursuant to this section shall be liable in the amount of ____ ($____).
(c)Nothing in subdivision (a) shall prohibit the state board from adopting regulations that prohibit suction dredge mining if the state board finds that prohibition is necessary to regulate waste discharges that violate or impair water quality objectives or other criteria under this division, to the extent consistent with federal law. In making this determination, the state board may consider, but is not limited to, soil types, fueling and re-fueling activities, and horsepower limitations.
(d)This section does not affect any other law, including the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) and the Department of Fish and Wildlifes streambed alteration requirements described in Chapter 6 (commencing with Section 1600) of the Fish and Game Code.
|
Date
|
Status
|
|---|---|
| Sep 11, 2015 | Assembly amendments concurred in. (Ayes 23. Noes 14.) Ordered to engrossing and enrolling. |
| Aug 19, 2015 | August 19 set for first hearing. Placed on APPR. suspense file. |
| Aug 28, 2015 | From committee: Do pass. (Ayes 12. Noes 5.) (August 27). |
| Aug 31, 2015 | Read second time. Ordered to third reading. |
| Sep 4, 2015 | Ordered to third reading. |
| Sep 4, 2015 | Read third time and amended. |
| Sep 4, 2015 | Read third time and amended. (Ayes 51. Noes 27. Page 2894.) |
| Sep 8, 2015 | Joint Rule 62(a) suspended. |
| Sep 8, 2015 | Re-referred to Com. on NAT. RES. pursuant to Assembly Rule 77.2. |
| Sep 9, 2015 | From committee: Do pass as amended. (Ayes 5. Noes 2.) (September 9). |
| Sep 10, 2015 | Read second time and amended. Ordered to second reading. |
| Jul 14, 2015 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 10. Noes 4.) (July 14). Re-referred to Com. on APPR. |
| Sep 11, 2015 | Assembly amendments concurred in. (Ayes 24. Noes 14. Page 2776.) Ordered to engrossing and enrolling. |
| Sep 11, 2015 | Assembly amendments concurred in. (Ayes 24. Noes 14.) Ordered to engrossing and enrolling. |
| Sep 11, 2015 | Assembly Rule 63 suspended. |
| Sep 11, 2015 | In Senate. Concurrence in Assembly amendments pending. |
| Sep 11, 2015 | Read second time. Ordered to third reading. |
| Sep 11, 2015 | Read third time. Passed. Ordered to the Senate. |
| Sep 11, 2015 | Read third time. Passed. (Ayes 52. Noes 26. Page 3184.) Ordered to the Senate. |
| Sep 17, 2015 | Enrolled and presented to the Governor at 4:45 p.m. |
| Oct 9, 2015 | Approved by the Governor. |
| Oct 9, 2015 | Chaptered by Secretary of State. Chapter 680, Statutes of 2015. |
| May 8, 2015 | Set for hearing May 18. |
| Mar 2, 2015 | From printer. May be acted upon on or after April 1. |
| Mar 2, 2015 | Read first time. |
| Mar 12, 2015 | Referred to Coms. on N.R. & W. and E.Q. |
| Mar 18, 2015 | Set for hearing April 14. |
| Apr 21, 2015 | From committee: Do pass as amended and re-refer to Com. on E.Q. (Ayes 6. Noes 1. Page 593.) (April 14). |
| Apr 22, 2015 | Read second time and amended. Re-referred to Com. on E.Q. |
| Apr 24, 2015 | Set for hearing April 29. |
| May 4, 2015 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 5. Noes 2. Page 858.) (April 29). |
| May 4, 2015 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 5. Noes 2.) (April 29). |
| May 5, 2015 | Read second time and amended. Re-referred to Com. on APPR. |
| Feb 27, 2015 | Introduced. To Com. on RLS. for assignment. To print. |
| May 18, 2015 | May 18 hearing: Placed on APPR. suspense file. |
| May 23, 2015 | Set for hearing May 28. |
| Jun 1, 2015 | From committee: Do pass as amended. (Ayes 5. Noes 2. Page 1157.) (May 28). |
| Jun 1, 2015 | From committee: Do pass as amended. (Ayes 5. Noes 2.) (May 28). |
| Jun 2, 2015 | Read second time and amended. Ordered to third reading. |
| Jun 3, 2015 | Read third time. Passed. (Ayes 22. Noes 15. Page 1304.) Ordered to the Assembly. |
| Jun 3, 2015 | Read third time. Passed. (Ayes 22. Noes 15.) Ordered to the Assembly. |
| Jun 4, 2015 | In Assembly. Read first time. Held at Desk. |
| Jun 18, 2015 | Referred to Com. on W., P., & W. |
| Jul 7, 2015 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on W., P., & W. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 11, 2015 | Unfinished Business (Supplemental File 5) SB637 Allen Concurrence | Senate Floor |
Passed |
|
| Sep 11, 2015 | SB 637 Allen Senate Third Reading By DODD | Assembly Floor |
Passed |
|
| Sep 9, 2015 | Do pass as amended. | Assembly Standing Committee on Natural Resources |
Passed |
|
| Sep 4, 2015 | SB 637 Allen Senate Third Reading By DODD Amend By DODD Set #1 | Assembly Floor |
Passed |
|
| Aug 27, 2015 | Do pass. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jul 14, 2015 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Water, Parks, and Wildlife |
Passed |
|
| Jun 3, 2015 | Senate 3rd Reading SB637 Allen | Senate Floor |
Passed |
|
| May 28, 2015 | Do pass as amended | Senate Standing Committee on Appropriations |
Passed |
|
| May 18, 2015 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 29, 2015 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Environmental Quality |
Passed |
|
| Apr 14, 2015 | Do pass as amended, but first amend, and re-refer to the Committee on [Environmental Quality] | Senate Standing Committee on Natural Resources and Water |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| American Mining Rights Association | * Against | Apr 29, 2015 |
| California Coastkeeper Alliance | ** Support | Aug 19, 2015 |
| California Nations Indian Gaming Association | ** Support | Aug 19, 2015 |
| California Trout | ** Support | Aug 19, 2015 |
| California Wilderness Coalition | ** Support | Aug 19, 2015 |
| Center For Biological Diversity, Inc. | ** Support | Aug 19, 2015 |
| Central Sierra Environmental Resource Center | ** Support | Jun 3, 2015 |
| Clean Water Action | ** Support | Aug 19, 2015 |
| Defenders Of Wildlife | ** Support | Jun 3, 2015 |
| East Bay Municipal Utility District | ** Support | Aug 19, 2015 |
| Easy Bay Prospectors | * Indeterminate | May 18, 2015 |
| Environmental Protection Information Center | ** Support | Aug 19, 2015 |
| Friends of the Eel River | ** Support | Aug 19, 2015 |
| Friends of the River | ** Support | Aug 19, 2015 |
| Gemstone Equipment Co., Inc. | ** Against | Apr 29, 2015 |
| Karuk Tribe | * Support | Aug 19, 2015 |
| Klamath Forest Alliance | ** Support | Jun 3, 2015 |
| Klamath Riverkeeper | ** Support | Aug 19, 2015 |
| Klamoth River Keeper | * Support | Aug 19, 2015 |
| Mother Lode Gold House | * Against | Apr 29, 2015 |
| North Fork American River Alliance | ** Support | Aug 19, 2015 |
| Pacific Coast Federation Of Fishermen'S Associations | ** Support | Aug 19, 2015 |
| Sierra Club | * Support | Aug 19, 2015 |
| Sierra Club California | * Support | Aug 19, 2015 |
| Sierra Nevada Alliance | ** Support | Aug 19, 2015 |
| South Yuba River Citizens League | ** Support | Aug 19, 2015 |
| Suction Dredger | * Against | Apr 29, 2015 |
| The Metropolitan Water District Of Southern California | * Support | Aug 19, 2015 |
| The Sierra Fund | ** Support | Aug 19, 2015 |
| Trout Unlimited | ** Support | Aug 19, 2015 |
| Tule River Indian Tribe of California | ** Support | Aug 19, 2015 |
| u American Mining Rights Association | ** Against | Apr 29, 2015 |
| Western Mining Alliance | ** Against | Aug 19, 2015 |
| Yurok Tribe | ** Support | Aug 19, 2015 |
SB 637
Page 5
(Without Reference to File)
SENATE THIRD READING
SB 637
(Allen)
As Amended September 10, 2015
Majority vote
SENATE VOTE: 22-15
Committee |
Votes |
Ayes |
Noes |
Water |
10-4 |
Levine, Dababneh, Dodd, Cristina Garcia, Gomez, Lopez, Medina, Rendon, Salas, Williams |
Dahle, Beth Gaines, Harper, Mathis |
Appropriations |
12-5 |
Gomez, Bloom, Bonta, Calderon, Nazarian, Eggman, Eduardo Garcia, Holden, Quirk, Rendon, Weber, Wood |
Bigelow, Chang, Gallagher, Jones, Wagner |
Natural Resources |
5-2 |
Williams, Hadley, McCarty, Rendon, Mark Stone |
Dahle, Harper |
SUMMARY: Authorizes the State Water Resources Control Board (Water Board) or regional water quality control board (regional board) to adopt waste discharge requirements that address water quality effects of suction dredge mining, and prohibits the Department of Fish and Wildlife (DFW) from issuing a permit for suction dredge mining until the application is complete and includes all required permits. Specifically, this bill:
States findings and declarations regarding the legislative and legal history of state regulation of suction dredge mining activities, and the need to clarify laws regulating suction dredge mining in order to protect California's water supply, native cultural sites, and wildlife.
Prohibits DFW from issuing a permit for vacuum or suction dredge mining until the permit application is complete. Requires that the application include any other permit required by the DFW and one of the following:
A copy of waste discharge requirements or a waiver of waste discharge requirements issued by the Water Board or a regional board in accordance with Division 7 of the Water Code,
A copy of a certification issued by the Water Board or a regional board and a permit issued by the United States Army Corps of Engineers in accordance with Sections 401 and 404 of the Federal Water Pollution Control Act to use vacuum or suction dredge equipment, or
If the Water Board or a regional board determines that waste discharge requirements, a waiver of waste discharge requirements, or a certification as specified in a) or b) above, are not necessary, a letter stating that determination signed by the Executive Director of the Water Board or appropriate regional board.
Requires DFW to issue the permit if it determines that use of a vacuum or suction dredge does not cause any significant effects to fish and wildlife.
Authorizes DFW to adjust the base fees for a suction dredge permit to cover all reasonable costs of DFW in regulating suction dredging activities.
Provides that a permit issued by DFW for suction dredge mining shall not authorize any activity in violation of any other applicable requirements, conditions, or prohibitions governing the use of suction dredge equipment, including those adopted by the Water Board or a regional board.
Defines suction dredging to mean the use of a mechanized or motorized system for removing or assisting in the removal of or processing of material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. Clarifies that this bill does not apply to, prohibit, or otherwise restrict non-motorized recreational mining activities, including panning for gold.
Authorizes the Water Board or a regional board, in order to protect water quality, to do one or more of the following: a) Adopt waste discharge requirements or a waiver of waste discharge requirements that, at a minimum, address the water quality impacts of mercury loading to downstream reaches of surface water bodies affected by suction dredging, methylmercury formation in water bodies, bioaccumulation of mercury in aquatic organisms, and resuspension of metals; b) Specify conditions or areas where the discharge of waste or other adverse impacts on the beneficial uses of the waters of the state from suction dredge mining is prohibited; and c) Prohibit any particular methods of suction dredge mining that exceed water quality objectives or unreasonably impact beneficial uses.
Requires the Water Board, before determining what action to take on suction dredge regulation to conduct public workshops in the vicinity of San Bernardino, Fresno, Sacramento or Redding. Requires a regional board considering independent action to solicit stakeholder input by conducting at least one public workshop in that regional board's region. Requires the Water Board or a regional board to conduct at least one public hearing pursuant to the Bagley-Keene Open Meeting Act, before taking a proposed action. Authorizes the Water Board and a regional board to work in collaboration to share information obtained through public workshops or public hearings, in order to avoid duplication of efforts.
States findings and declarations that, except for water quality, and after complying with tribal consultation requirements, DFW may determine for purposes of Fish and Game Code Section 5653.1, that significant environmental impacts to other than fish and wildlife resources caused by suction dredge mining are fully mitigated if a regulation adopted by DFW to implement Fish and Game Code Section 5653 requires compliance with other laws and provides that nothing in any permit issued by DFW for suction dredge mining relieves the permittee of responsibility to comply with all applicable laws.
EXISTING LAW:
Prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake in the state until the director of the DFW certifies to the Secretary of State that all of the following have occurred:
DFW has completed a court ordered environmental review of suction dredge mining;
New regulations have been adopted by DFW that have been filed with the Secretary of State, are operative, and fully mitigate all identified significant environmental impacts; and
A fee structure is in place that fully covers all costs to DFW related to the administration of permits for suction dredge mining.
Prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake except as authorized under a permit issued by DFW. Requires the submittal of a permit application, as specified.
Subject to the moratorium preconditions described in 1) above, requires DFW to designate waters or areas where suction dredges may be used pursuant to a permit, areas where such use is prohibited, the maximum size of the equipment, and the time of year that it may be used. Requires DFW, if it determines that the operation will not be deleterious to fish, to issue a permit. Makes operation of a suction dredge without a permit or in ways other than authorized in a permit, a misdemeanor.
FISCAL EFFECT: According to the Assembly Appropriations Committee:
Increased fee authority for DFW to cover all reasonable costs of regulating suction dredge mining activities. Although DFW is not presently issuing section dredging permits, the current fee levels are as follows: Suction Dredge Permit – $50.75 (resident), 200 (nonresident); Suction Dredge Permit Investigation – $260.50 (resident), $440.25 (nonresident). Currently, DFW may adjust the fees based on changes in the Implicit Price Deflator for State and Local Governments. This bill, instead, allows DFW to adjust fees based on reasonable costs.
Increased costs of approximately $420,000 annually for two years for the Water Board to develop water quality permit conditions for suction dredge mining (Waste Discharge Permit Fund).
Absorbable costs for regional water boards to administer the permits.
COMMENTS: This bill seeks to ensure that suction dredge mining does not adversely affect water quality by empowering the Water Board to regulate the activity. It also prohibits the DFW from issuing a suction dredge mining permit until a complete application, including copies of any required Water Board permits, has been received.
Suction dredge mining is a process by which power equipment is used to vacuum up sediment from the streambeds of rivers, creeks or other water bodies to search for gold. It is a form of recreational instream gold mining in which a gasoline powered motor sits atop a pontoon while the miner dives to the bottom of the river and vacuums up sediment from the riverbed. The material passes through a sluice box where heavier material such as gold is captured and the remaining material is discharged back into the river as debris.
The author's stated purpose is to ensure that suction dredge mining does not adversely affect water quality by closing a loophole in current law and empowering the Water Board to regulate the activity. Studies have found that suction dredge mining can exacerbate mercury contamination in rivers and streams and also disturb fish habitat, harming endangered fish species. The power equipment used to vacuum gravel from streambeds results in plumes of mercury-laden sediments downstream. This mobilizes the mercury and makes it more available for transformation into toxic methyl mercury. For further discussion and background on such impacts see the Assembly Water, Parks, and Wildlife Committee policy analysis of this bill.
The DFW, in an environmental review conducted to update its suction dredge mining regulations in 2012, found that suction dredge mining caused significant environmental impacts, including impacts to water quality, cultural resources, endangered wildlife, and noise. However, the DFW indicated that it lacks the legal authority to address water quality impacts which fall under the jurisdiction of the Water Board. Under current law there is a moratorium on the issuance of suction dredge permits until the DFW determines that all identified significant environmental impacts have been fully mitigated. As a result, the moratorium is still in effect, but is currently being challenged in court.
The Water Board has authority under the federal Clean Water Act to require a waste discharge permit from dischargers, as it is charged with regulating and permitting discharges into waters of the state, but current state law only expressly requires a permit from DFW for suction dredge mining. This bill addresses this gap by requiring the Water Board to determine if a waste discharge permit is required, and prohibits the DFW from issuing a suction dredge permit until any permits required by the Water Board have been obtained.
The issue of suction dredge mining and its impacts has been the subject of legislative, regulatory and legal actions in California since 2005. In 2005, the Karuk tribe filed the initial lawsuit that is now part of an 8-case coordinated action in San Bernardino County Superior Court, with a related action currently pending before the California Supreme Court. For a detailed description of the litigation history and status please see the Assembly Water, Parks, and Wildlife Committee policy analysis of this bill. In summary, the initial lawsuit challenged the DFW's regulations on suction dredge mining that were in effect at that time, and led to a court order requiring DFW to conduct an environmental review and update their regulations, an action which was finally completed in 2012.
Litigation challenging the DFW's 2012 regulations was filed by suction dredge miners, and a separate lawsuit challenging the regulations was also filed by a coalition of tribal, environmental and fishing interests. Both of these actions, as well as six other cases, are now coordinated before the San Bernardino Superior Court under a single case titled: In Re Suction Dredge Cases. In January 2015 the trial court issued an order on the preemption cause of action finding that the state's moratorium on suction dredge mining was preempted on federal lands based on a court of appeal decision in a separate action that is now on appeal before the California Supreme Court. However, the moratorium is still in effect pending the outcome of the litigation.
Supporters of this bill note that the permit program developed by DFW, and the associated environmental analysis, found that suction dredge mining activities create significant and unavoidable impacts to water quality and cultural resources that DFW lacks the authority to mitigate. Current law places a moratorium on the issuance of permits unless and until DFW is able to fully mitigate all significant environmental impacts, something they are not able to do today. However, the moratorium may be lifted as a result of pending litigation. Supporters note that suction dredge mining has been shown to increase levels of highly toxic methyl mercury in California waters, and to negatively affect fish species such as commercially valuable runs of salmon that are listed under the Endangered Species Act. Supporters further emphasize that while they do not oppose responsible mining, suction dredge mining should not be allowed to occur at the expense of clean water, cultural resources, and fisheries. Some supporters also note that the impacts to water quality caused by suction dredge mining are especially alarming in light of the ongoing drought and efforts to conserve ever depleting water sources.
Opponents assert that the activities of suction dredge mining do not result in a waste discharge to waters of the state and therefore are not activities that should be subject to waste discharge permit requirements under the Clean Water Act. They further assert that suction dredge miners help to improve water quality by removing mercury, lead, and other waste and trash from streambeds. Some opponents also assert that suction dredge mining is beneficial to fish, by de-compacting gravel beds and creating depressions that act as cold water refugia for fish, and that passage of this bill would have negative economic impacts, particularly on small scale suction dredge miners.
Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096 FN: 0002324
SB 637
Page 6
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
UNFINISHED BUSINESS
Bill No: SB 637
Amended: 9/10/15
SENATE NATURAL RES. & WATER COMMITTEE: 6-1, 4/14/15
AYES: Pavley, Allen, Hueso, Jackson, Monning, Wolk
NOES: Stone
NO VOTE RECORDED: Fuller, Hertzberg
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-2, 4/29/15
AYES: Wieckowski, Hill, Jackson, Leno, Pavley
NOES: Gaines, Bates
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/28/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
SENATE FLOOR: 22-15, 6/3/15
AYES: Allen, Beall, Block, De León, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Wieckowski, Wolk
NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Galgiani, Huff, Moorlach, Morrell, Nguyen, Nielsen, Runner, Stone, Vidak
NO VOTE RECORDED: Glazer, Lara, Roth
ASSEMBLY FLOOR: Not available
SUBJECT: Suction dredge mining: permits
DIGEST: This bill authorizes the State Water Resources Control Board (SWRCB) or regional water quality control board (regional board) to adopt waste discharge requirements that address water quality effects of suction dredge mining, and prohibits the Department of Fish and Wildlife (DFW) from issuing a permit for suction dredge mining until the application is complete and includes all required permits.
Assembly Amendments clarify declarations and findings, narrow the definition of a complete application for suction dredging by specifying that the department would only require water quality and endangered species permits, add new public participation criteria for the water board, and add a provision regarding tribal consultation.
Existing law:
Prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake in the state until the Director of the DFW certifies to the Secretary of State that all of the following have occurred:
DFW has completed a court ordered environmental review of suction dredge mining;
New regulations have been adopted by DFW that have been filed with the Secretary of State, are operative, and fully mitigate all identified significant environmental impacts; and
A fee structure is in place that fully covers all costs to DFW related to the administration of permits for suction dredge mining.
Prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake except as authorized under a permit issued by DFW and requires the submittal of a permit application.
Subject to the moratorium preconditions described in 1) above, requires DFW to designate waters or areas where suction dredges may be used pursuant to a permit, areas where such use is prohibited, the maximum size of the equipment, and the time of year that it may be used.
Requires DFW, if it determines that the operation will not be deleterious to fish, to issue a permit. Makes operation of a suction dredge without a permit, or in ways other than authorized in a permit, guilty of a misdemeanor.
This bill:
Prohibits DFW from issuing a permit for vacuum or suction dredge mining until the permit application is complete.
Requires that the application include any other permit required by the DFW and one of the following:
A copy of waste discharge requirements or a waiver of waste discharge requirements issued by the SWRCB or a regional board,
A copy of a certification issued by SWRCB or a regional board and a permit issued by the U.S. Army Corps of Engineers to use vacuum or suction dredge equipment: or,
If the SWRCB or a regional board determines that waste discharge requirements, a waiver of waste discharge requirements, or a certification as specified in a) or b) above, are not necessary, a letter stating that determination signed by the Executive Director of the SWRCB or appropriate regional board.
Requires DFW to issue the permit if it determines that use of a vacuum or suction dredge does not cause any significant effects to fish and wildlife.
Authorizes DFW to adjust the base fees for a suction dredge permit to cover all reasonable costs of DFW in regulating suction dredging activities.
Provides that a permit issued by DFW for suction dredge mining shall not authorize any activity in violation of any other applicable requirements, conditions, or prohibitions governing the use of suction dredge equipment, including those adopted by the SWRCB or a regional board.
Authorizes the SWRCB or a regional board, in order to protect water quality, to do one or more of the following:
Adopt waste discharge requirements or a waiver of waste discharge requirements that, at a minimum, address the water quality impacts of mercury loading to downstream reaches of surface water bodies affected by suction dredging, methylmercury formation in water bodies, bioaccumulation of mercury in aquatic organisms, and resuspension of metals;
Specify conditions or areas where the discharge of waste or other adverse impacts on the beneficial uses of the waters of the state from suction dredge mining is prohibited; and
Prohibit any particular methods of suction dredge mining that exceed water quality objectives or unreasonably impact beneficial uses.
States additional findings and declarations that, except for water quality, and after complying with tribal consultation requirements, DFW may determine that significant environmental impacts to resources other than fish and wildlife resources caused by suction dredge mining are fully mitigated if a regulation adopted by DFW to implement Fish and Game Code Section 5653 requires compliance with other laws and provides that nothing in any permit issued by DFW for suction dredge mining relieves the permittee of responsibility to comply with all applicable laws.
FISCAL EFFECT: Appropriation: No Fiscal
Com.: Yes Local: No
According to the Assembly Appropriations Committee:
Increased fee authority for DFW to cover all reasonable costs of regulating suction dredge mining activities.
Although DFW is not presently issuing section dredging permits, the current fee levels are as follows: Suction Dredge Permit – $50.75 (resident), $200 (nonresident); Suction Dredge Permit Investigation – $260.50 (resident), $440.25 (nonresident). Currently, DFW may adjust the fees based on changes in the Implicit Price Deflator for State and Local Governments. This bill, instead, allows DFW to adjust fees based on reasonable costs.
Increased costs of approximately $420,000 annually for two years for the SWRCB to develop water quality permit conditions for suction dredge mining (Waste Discharge Permit Fund).
Absorbable costs for regional SWRCB to administer the permits.
Sierra Fund (source)
California Trout California
Coastkeeper Alliance
California Nations Indian Gaming Association
California Wilderness Coalition
Center for Biological Diversity
Clean Water Action
East Bay Municipal Utility District
Environmental Protection Information Center
Friends of the Eel River Friends of the River
Karuk Tribe
Klamath Riverkeeper
North Fork American River Alliance
Pacific Coast Federation of Fishermen's Associations
Sierra Club California
Sierra Nevada Alliance
South Yuba River Citizens League
Trout Unlimited
Tule River Indian Tribe of California
Yurok Tribe
OPPOSITION: (Verified 9/11/15)
Miners Assembled
Western Mining Alliance
Several individuals
ARGUMENTS IN SUPPORT: Supporters note that the permit program developed by DFW, and the associated environmental analysis, found that suction dredge mining activities create significant and unavoidable impacts to water quality and cultural resources that DFW lacks the authority to mitigate. Current law places a moratorium on the issuance of permits unless and until DFW is able to fully mitigate all significant environmental impacts, something they are not able to do today. However, the moratorium may be lifted as a result of pending litigation. Supporters note that suction dredge mining has been shown to increase levels of highly toxic methyl mercury in California waters, and to negatively affect fish species such as commercially valuable runs of Chinook salmon and Coho salmon that are listed under the Endangered Species Act. Supporters further emphasize that while they don't oppose responsible mining, suction dredge mining should not be allowed to occur at the expense of clean water, cultural resources, and fisheries. Some supporters also note that the impacts to water quality caused by suction dredge mining are especially alarming in light of the ongoing drought and efforts to conserve ever depleting water sources.
ARGUMENTS IN OPPOSITION: Opponents assert that the activities of suction dredge mining do not result in a waste discharge to waters of the state and therefore are not activities that should be subject to waste discharge permit requirements under the Clean Water Act. They further assert that suction dredge miners help to improve water quality by removing mercury, lead, and other waste and trash from streambeds. Some opponents also assert that suction dredge mining is beneficial to fish, by decompacting gravel beds and creating depressions that act as cold water refugia for fish, and that passage of this bill would have negative economic impacts, particularly on small scale suction dredge miners.
Prepared by: William Craven / N.R. & W. / (916) 651-4116
9/11/15 21:00:50
**** END ****
SB 637
Page 4
Date of Hearing: September 9, 2015
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
SB 637
(Allen) – As Amended September 4, 2015
SENATE VOTE: 22-15
SUBJECT: Suction dredge mining: permits.
SUMMARY: Authorizes the State Water Resources Control Board (SWRCB) or regional water quality control board (regional board) to adopt waste discharge requirements that address water quality effects of suction dredge mining, and prohibits the Department of Fish and Wildlife (DFW) from issuing a permit for suction dredge mining until the application is complete and includes all required permits.
EXISTING LAW:
Prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake in the state until the director of the DFW certifies to the Secretary of State that all of the following have occurred:
DFW has completed a court ordered environmental review of suction dredge mining;
New regulations have been adopted by DFW that have been filed with the Secretary of State, are operative, and fully mitigate all identified significant environmental impacts; and
A fee structure is in place that fully covers all costs to DFW related to the administration of permits for suction dredge mining.
Prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake except as authorized under a permit issued by DFW. Requires the submittal of a permit application, as specified.
Subject to the moratorium preconditions described in 1) above, requires DFW to designate waters or areas where suction dredges may be used pursuant to a permit, areas where such use is prohibited, the maximum size of the equipment, and the time of year that it may be used. Requires DFW, if it determines that the operation will not be deleterious to fish, to issue a permit. Makes operation of a suction dredge without a permit, or in ways other than authorized in a permit, guilty of a misdemeanor.
THIS BILL:
Prohibits DFW from issuing a permit for vacuum or suction dredge mining until the permit application is complete. Requires that the application include any other permit required by the DFW and one of the following:
A copy of waste discharge requirements or a waiver of waste discharge requirements issued by the SWRCB or a regional board,
A copy of a certification issued by SWRCB or a regional board and a permit issued by the U.S. Army Corps of Engineers to use vacuum or suction dredge equipment: or,
If the SWRCB or a regional board determines that waste discharge requirements, a waiver of waste discharge requirements, or a certification as specified in a) or b) above, are not necessary, a letter stating that determination signed by the Executive Director of the SWRCB or appropriate regional board.
Requires DFW to issue the permit if it determines that use of a vacuum or suction dredge does not cause any significant effects to fish and wildlife.
Authorizes DFW to adjust the base fees for a suction dredge permit to cover all reasonable costs of DFW in regulating suction dredging activities.
Provides that a permit issued by DFW for suction dredge mining shall not authorize any activity in violation of any other applicable requirements, conditions, or prohibitions governing the use of suction dredge equipment, including those adopted by the SWRCB or a regional board.
Authorizes the SWRCB or a regional board, in order to protect water quality, to do one or more of the following: a) Adopt waste discharge requirements or a waiver of waste discharge requirements that, at a minimum, address the water quality impacts of mercury loading to downstream reaches of surface water bodies affected by suction dredging, methylmercury formation in water bodies, bioaccumulation of mercury in aquatic organisms, and resuspension of metals; b) Specify conditions or areas where the discharge of waste or other adverse impacts on the beneficial uses of the waters of the state from suction dredge mining is prohibited; and c) Prohibit any particular methods of suction dredge mining that exceed water quality objectives or unreasonably impact beneficial uses.
States findings and declarations that, except as provided by the changes made by this bill, regulations promulgated by the DFW in 2012 regarding suction dredge mining are consistent and in compliance with the Fish and Game Code, the California Environmental Quality Act (CEQA), and the Administrative Procedures Act.
State additional findings and declarations that, except for water quality, and after complying with tribal consultation requirements, DFW may determine that significant environmental impacts to other than fish and wildlife resources caused by suction dredge mining are fully mitigated if a regulation adopted by DFW to implement Fish and Game Code Section 5653 requires compliance with other laws and provides that nothing in any permit issued by DFW for suction dredge mining relieves the permittee of responsibility to comply with all applicable laws.
FISCAL EFFECT: According to the Assembly Appropriations Committee analysis:
Increased fee authority for DFW to cover all reasonable costs of regulating suction dredge mining activities. Although DFW is not presently issuing section dredging permits, the current fee levels are as follows: Suction Dredge Permit – $50.75 (resident), $200 (nonresident); Suction Dredge Permit Investigation – $260.50 (resident), $440.25 (nonresident). Currently, DFW may adjust the fees based on changes in the Implicit Price Deflator for State and Local Governments. This bill, instead, allows DFW to adjust fees based on reasonable costs.
Increased costs of approximately $420,000 annually for two years for the SWRCB to develop water quality permit conditions for suction dredge mining (Waste Discharge Permit Fund).
Absorbable costs for regional SWRCB to administer the permits.
COMMENTS:
Background. This bill seeks to ensure that suction dredge mining does not adversely affect water quality by empowering the SWRCB to regulate the activity. It also prohibits the DFW from issuing a suction dredge mining permit until a complete application, including copies of any required SWRCB permits, has been received.
Suction dredge mining is a process by which power equipment is used to vacuum up sediment from the streambeds of rivers, creeks or other water bodies to search for gold. It is a form of recreational instream gold mining in which a gasoline powered motor sits atop a pontoon while the miner dives to the bottom of the river and vacuums up sediment from the riverbed. The material passes through a sluice box where heavier material such as gold is captured and the remaining material is discharged back into the river as debris.
Studies have found that suction dredge mining can exacerbate mercury contamination in rivers and streams and also disturb fish habitat, harming endangered fish species. The power equipment used to vacuum gravel from streambeds results in plumes of mercury-laden sediments downstream. This mobilizes the mercury and makes it more available for transformation into toxic methyl mercury.
DFW, in an environmental review conducted to update its suction dredge mining regulations in 2012, found that suction dredge mining caused significant environmental impacts, including impacts to water quality, cultural resources, endangered wildlife, and noise. However, DFW indicated that it lacks the legal authority to address water quality impacts that fall under the jurisdiction of SWRCB. Under current law there is a moratorium on the issuance of suction dredge permits until DFW determines that all identified significant environmental impacts have been fully mitigated. As a result, the moratorium is still in effect, but is currently being challenged in court. The SWRCB has authority under the federal Clean Water Act to require a waste discharge permit from dischargers, as it is charged with regulating and permitting discharges into waters of the state, but current state law only expressly requires a permit from DFW for suction dredge mining. This bill addresses this gap by requiring SWRCB to determine if a waste discharge permit is required, and prohibits DFW from issuing a suction dredge permit until any permits required by SWRCB have been obtained.
Litigation. The issue of suction dredge mining and its impacts has been the subject of legislative, regulatory, and legal actions in California since 2005. In 2005, the Karuk tribe filed the initial lawsuit and DFW has been named in no less than 15 civil actions related to suction dredging since then. The initial lawsuit challenged DFW's regulations on suction dredge mining that were in effect at that time, and led to a court order requiring DFW to conduct an environmental review and update their regulations, an action which was finally completed in 2012.
Seven lawsuits have been coordinated into a single proceeding in San Bernardino County Superior Court and there is a related action dealing with preemption that is currently pending before the California Supreme Court. Litigation challenging DFW's 2012 regulations was filed by suction dredge miners, and a separate lawsuit challenging the regulations was also filed by a coalition of tribal, environmental, and fishing interests. The 7-case coordinated action before the San Bernardino Superior Court deals with whether DFW's 2012 regulations comply with Fish and Game Code, CEQA, and the Administrative Procedure Act. On May 5, 2015, the San Bernardino Superior Court, following an earlier ruling in January, issued an order finding the suction dredge moratorium was preempted by federal mining law. This ruling has put on hold resolving whether DFW's 2012 regulations comply with Fish and Game Code, CEQA, and the Administrative Procedure Act while the preemption issue is settled. The moratorium is still in effect pending the outcome of the litigation.
The September 4th amendments to SB 637 declare that DFW’s 2012 regulations are consistent with Fish and Game Code, CEQA, and the Administrative Procedure Act, which would likely affect pending litigation in the San Bernardino Superior Court. This could be interpreted as the Legislature weighing in on pending litigation, including whether environmental impacts where properly identified and addressed through CEQA. This legislative finding could set a bad precedent of parties going to the Legislature to settle legal issues surrounding regulations. The author and committee may wish to consider amending the bill to strike the legislative finding declaring that DFW’s 2012 regulations are consistent with Fish and Game Code, CEQA, and the Administrative Procedure Act.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file
Opposition
None on file
Analysis Prepared by: Michael Jarred / NAT. RES. / (916) 319-2092
SB 637
Page 5
SENATE THIRD READING
SB 637
(Allen)
As Amended September 4, 2015
Majority vote
SENATE VOTE: 22-15
Committee |
Votes |
Ayes |
Noes |
Water |
10-4 |
Levine, Dababneh, Dodd, Cristina Garcia, Gomez, Lopez, Medina, Rendon, Salas, Williams |
Dahle, Beth Gaines, Harper, Mathis |
Appropriations |
12-5 |
Gomez, Bloom, Bonta, Calderon, Nazarian, Eggman, Eduardo Garcia, Holden, Quirk, Rendon, Weber, Wood |
Bigelow, Chang, Gallagher, Jones, Wagner |
SUMMARY: Authorizes the State Water Resources Control Board (Water Board) or regional water quality control board (regional board) to adopt waste discharge requirements that address water quality effects of suction dredge mining, and prohibits the Department of Fish and Wildlife (DFW) from issuing a permit for suction dredge mining until the application is complete and includes all required permits. Specifically, this bill:
States findings and declarations regarding the legislative and legal history of state regulation of suction dredge mining activities, and the need to clarify laws regulating suction dredge mining in order to protect California's water supply, native cultural sites, and wildlife.
Prohibits DFW from issuing a permit for vacuum or suction dredge mining until the permit application is complete. Requires that the application include any other permit required by the DFW and one of the following:
A copy of waste discharge requirements or a waiver of waste discharge requirements issued by the Water Board or a regional board in accordance with Division 7 of the Water Code,
A copy of a certification issued by the Water Board or a regional board and a permit issued by the U.S. Army Corps of Engineers in accordance with Sections 401 and 404 of the Federal Water Pollution Control Act to use vacuum or suction dredge equipment, or
If the Water Board or a regional board determines that waste discharge requirements, a waiver of waste discharge requirements, or a certification as specified in a) or b) above, are not necessary, a letter stating that determination signed by the Executive Director of the Water Board or appropriate regional board.
Requires DFW to issue the permit if it determines that use of a vacuum or suction dredge does not cause any significant effects to fish and wildlife.
Authorizes DFW to adjust the base fees for a suction dredge permit to cover all reasonable costs of DFW in regulating suction dredging activities.
Provides that a permit issued by DFW for suction dredge mining shall not authorize any activity in violation of any other applicable requirements, conditions, or prohibitions governing the use of suction dredge equipment, including those adopted by the Water Board or a regional board.
Defines suction dredging to mean the use of a mechanized or motorized system for removing or assisting in the removal of or processing of material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. Clarifies that this bill does not apply to, prohibit, or otherwise restrict non-motorized recreational mining activities, including panning for gold.
Authorizes the Water Board or a regional board, in order to protect water quality, to do one or more of the following: a) Adopt waste discharge requirements or a waiver of waste discharge requirements that, at a minimum, address the water quality impacts of mercury loading to downstream reaches of surface water bodies affected by suction dredging, methylmercury formation in water bodies, bioaccumulation of mercury in aquatic organisms, and resuspension of metals; b) Specify conditions or areas where the discharge of waste or other adverse impacts on the beneficial uses of the waters of the state from suction dredge mining is prohibited; and c) Prohibit any particular methods of suction dredge mining that exceed water quality objectives or unreasonably impact beneficial uses.
Requires the Water Board, before determining what action to take on suction dredge regulation to conduct public workshops in the vicinity of San Bernardino, Fresno, Sacramento or Redding. Requires a regional board considering independent action to solicit stakeholder input by conducting at least one public workshop in that regional board's region. Requires the Water Board or a regional board to conduct at least one public hearing pursuant to the Bagley-Keene Open Meeting Act, before taking a proposed action. Authorizes the Water Board and a regional board to work in collaboration to share information obtained through public workshops or public hearings, in order to avoid duplication of efforts.
States findings and declarations that, except as provided by the changes made by this bill, regulations promulgated by the DFW in 2012 regarding suction dredge mining were consistent and in compliance with the Fish and Game Code, the California Environmental Quality Act, and the Administrative Procedures Act.
State additional findings and declarations that, except for water quality, and after complying with tribal consultation requirements, DFW may determine for purposes of Fish and Game Code Section 5653.1, that significant environmental impacts to other than fish and wildlife resources caused by suction dredge mining are fully mitigated if a regulation adopted by DFW to implement Fish and Game Code Section 5653 requires compliance with other laws and provides that nothing in any permit issued by DFW for suction dredge mining relieves the permittee of responsibility to comply with all applicable laws.
EXISTING LAW:
Prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake in the state until the director of the DFW certifies to the Secretary of State that all of the following have occurred:
DFW has completed a court ordered environmental review of suction dredge mining;
New regulations have been adopted by DFW that have been filed with the Secretary of State, are operative, and fully mitigate all identified significant environmental impacts; and
A fee structure is in place that fully covers all costs to DFW related to the administration of permits for suction dredge mining.
Prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake except as authorized under a permit issued by DFW. Requires the submittal of a permit application, as specified.
Subject to the moratorium preconditions described in 1) above, requires DFW to designate waters or areas where suction dredges may be used pursuant to a permit, areas where such use is prohibited, the maximum size of the equipment, and the time of year that it may be used. Requires DFW, if it determines that the operation will not be deleterious to fish, to issue a permit. Makes operation of a suction dredge without a permit or in ways other than authorized in a permit, a misdemeanor.
FISCAL EFFECT: According to the Assembly Appropriations Committee analysis:
Increased fee authority for DFW to cover all reasonable costs of regulating suction dredge mining activities. Although DFW is not presently issuing section dredging permits, the current fee levels are as follows: Suction Dredge Permit – $50.75 (resident), 200 (nonresident); Suction Dredge Permit Investigation – $260.50 (resident), $440.25 (nonresident). Currently, DFW may adjust the fees based on changes in the Implicit Price Deflator for State and Local Governments. This bill, instead, allows DFW to adjust fees based on reasonable costs.
Increased costs of approximately $420,000 annually for two years for the Water Board to develop water quality permit conditions for suction dredge mining (Waste Discharge Permit Fund).
Absorbable costs for regional water boards to administer the permits.
COMMENTS: This bill seeks to ensure that suction dredge mining does not adversely affect water quality by empowering the Water Board to regulate the activity. It also prohibits the DFW from issuing a suction dredge mining permit until a complete application, including copies of any required Water Board permits, has been received.
Suction dredge mining is a process by which power equipment is used to vacuum up sediment from the streambeds of rivers, creeks or other water bodies to search for gold. It is a form of recreational instream gold mining in which a gasoline powered motor sits atop a pontoon while the miner dives to the bottom of the river and vacuums up sediment from the riverbed. The material passes through a sluice box where heavier material such as gold is captured and the remaining material is discharged back into the river as debris.
The author's stated purpose is to ensure that suction dredge mining does not adversely affect water quality by closing a loophole in current law and empowering the Water Board to regulate the activity. Studies have found that suction dredge mining can exacerbate mercury contamination in rivers and streams and also disturb fish habitat, harming endangered fish species. The power equipment used to vacuum gravel from streambeds results in plumes of mercury-laden sediments downstream. This mobilizes the mercury and makes it more available for transformation into toxic methyl mercury. For further discussion and background on such impacts see the Assembly Water, Parks & Wildlife Committee policy analysis of this bill.
The DFW, in an environmental review conducted to update its suction dredge mining regulations in 2012, found that suction dredge mining caused significant environmental impacts, including impacts to water quality, cultural resources, endangered wildlife, and noise. However, the DFW indicated that it lacks the legal authority to address water quality impacts which fall under the jurisdiction of the Water Board. Under current law there is a moratorium on the issuance of suction dredge permits until the DFW determines that all identified significant environmental impacts have been fully mitigated. As a result, the moratorium is still in effect, but is currently being challenged in court.
The Water Board has authority under the federal Clean Water Act to require a waste discharge permit from dischargers, as it is charged with regulating and permitting discharges into waters of the state, but current state law only expressly requires a permit from DFW for suction dredge mining. This bill addresses this gap by requiring the Water Board to determine if a waste discharge permit is required, and prohibits the DFW from issuing a suction dredge permit until any permits required by the Water Board have been obtained.
The issue of suction dredge mining and its impacts has been the subject of legislative, regulatory and legal actions in California since 2005. In 2005, the Karuk tribe filed the initial lawsuit that is now part of an 8-case coordinated action in San Bernardino County Superior Court, with a related action currently pending before the California Supreme Court. For a detailed description of the litigation history and status please see the Assembly Water, Parks & Wildlife Committee policy analysis of this bill. In summary, the initial lawsuit challenged the DFW's regulations on suction dredge mining that were in effect at that time, and led to a court order requiring DFW to conduct an environmental review and update their regulations, an action which was finally completed in 2012.
Litigation challenging the DFW's 2012 regulations was filed by suction dredge miners, and a separate lawsuit challenging the regulations was also filed by a coalition of tribal, environmental and fishing interests. Both of these actions, as well as six other cases, are now coordinated before the San Bernardino Superior Court under a single case titled: In Re Suction Dredge Cases. In January 2015 the trial court issued an order on the preemption cause of action finding that the state's moratorium on suction dredge mining was preempted on federal lands based on a court of appeal decision in a separate action that is now on appeal before the California Supreme Court. However, the moratorium is still in effect pending the outcome of the litigation.
Supporters of this bill note that the permit program developed by DFW, and the associated environmental analysis, found that suction dredge mining activities create significant and unavoidable impacts to water quality and cultural resources that DFW lacks the authority to mitigate. Current law places a moratorium on the issuance of permits unless and until DFW is able to fully mitigate all significant environmental impacts, something they are not able to do today. However, the moratorium may be lifted as a result of pending litigation. Supporters note that suction dredge mining has been shown to increase levels of highly toxic methyl mercury in California waters, and to negatively affect fish species such as commercially valuable runs of salmon that are listed under the Endangered Species Act. Supporters further emphasize that while they do not oppose responsible mining, suction dredge mining should not be allowed to occur at the expense of clean water, cultural resources, and fisheries. Some supporters also note that the impacts to water quality caused by suction dredge mining are especially alarming in light of the ongoing drought and efforts to conserve ever depleting water sources.
Opponents assert that the activities of suction dredge mining do not result in a waste discharge to waters of the state and therefore are not activities that should be subject to waste discharge permit requirements under the Clean Water Act. They further assert that suction dredge miners help to improve water quality by removing mercury, lead, and other waste and trash from streambeds. Some opponents also assert that suction dredge mining is beneficial to fish, by de-compacting gravel beds and creating depressions that act as cold water refugia for fish, and that passage of this bill would have negative economic impacts, particularly on small scale suction dredge miners.
Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096 FN: 0002069
SB 637
Page 4
SENATE THIRD READING
SB 637
(Allen)
As Amended July 7, 2015
Majority vote
SENATE VOTE: 22-15
Committee |
Votes |
Ayes |
Noes |
Water |
10-4 |
Levine, Dababneh, Dodd, Cristina Garcia, Gomez, Lopez, Medina, Rendon, Salas, Williams |
Dahle, Beth Gaines, Harper, Mathis |
Appropriations |
12-5 |
Gomez, Bloom, Bonta, Calderon, Nazarian, Eggman, Eduardo Garcia, Holden, Quirk, Rendon, Weber, Wood |
Bigelow, Chang, Gallagher, Jones, Wagner |
SUMMARY: Authorizes the State Water Resources Control Board (Water Board) or regional water quality control board (regional board) to adopt waste discharge requirements that address water quality effects of suction dredge mining, and prohibits the Department of Fish and Wildlife (DFW) from issuing a permit for suction dredge mining until the application is complete and includes all required permits. Specifically, this bill:
States findings and declarations regarding the legislative and legal history of state regulation of suction dredge mining activities, and the need to clarify laws regulating suction dredge mining in order to protect California's water supply, native cultural sites, and wildlife.
Prohibits DFW from issuing a permit for vacuum or suction dredge mining until the permit application is complete. Requires that the application include copies of all required permits, including permits required under the Federal Water Pollution Control Act, the Water Code, and any other permit required to fully mitigate all significant environmental impacts.
Requires, if the Water Board or regional board determines that no water quality or water rights permit is necessary, that the application include a letter stating that determination signed by the Executive Director of the Water Board or regional board.
Requires DFW to issue the permit if it determines that use of a vacuum or suction dredge does not cause any significant effects to fish and wildlife.
Authorizes DFW to adjust the base fees for a suction dredge permit to cover all reasonable costs of DFW in regulating suction dredging activities.
Defines a suction dredge for these purposes as equipment used for mining operations that includes any of the following: a hose that vacuums sediment from the bed or bank of a river, stream or lake; a motorized pump; a motorized sluice box; or, related small-scale mechanized mining equipment.
Authorizes the Water Board or a regional board, after DFW has certified to the Secretary of State that specified events have occurred, and after conducting workshops and hearings, to do one or more of the following: a) Adopt waste discharge requirements that, at a minimum, address mercury-related water quality impacts of suction dredge mining; b) Specify conditions or areas where the discharge of waste from suction dredge mining is prohibited; and c) Prohibit any particular methods of suction dredge mining that exceed water quality objectives or unreasonably impact beneficial uses.
Requires the Water Board or regional board, before determining what action to take to solicit stakeholder input by conducting at least one public workshop, and to proactively reach out to mining groups, environmental organizations, and California Native American tribes. Requires the Water Board to conduct at least two public hearings, and a regional board at least one public hearing, before taking a proposed action. Authorizes the Water Board and a regional board to work in collaboration to share information obtained through public workshops or public hearings, in order to avoid duplication of efforts.
EXISTING LAW:
Prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake in the state until the director of the DFW certifies to the Secretary of State that all of the following have occurred:
DFW has completed a court ordered environmental review of suction dredge mining;
New regulations have been adopted by DFW that have been filed with the Secretary of State, are operative, and fully mitigate all identified significant environmental impacts; and
A fee structure is in place that fully covers all costs to DFW related to the administration of permits for suction dredge mining.
Prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake except as authorized under a permit issued by DFW. Requires the submittal of a permit application, as specified.
Subject to the moratorium preconditions described in 1) above, requires DFW to designate waters or areas where suction dredges may be used pursuant to a permit, areas where such use is prohibited, the maximum size of the equipment, and the time of year that it may be used. Requires DFW, if it determines that the operation will not be deleterious to fish, to issue a permit. Makes operation of a suction dredge without a permit or in ways other than authorized in a permit, a misdemeanor.
FISCAL EFFECT: According to the Assembly Appropriations Committee:
Increased fee authority for DFW to cover all reasonable costs of regulating suction dredge mining activities. Although DFW is not presently issuing section dredging permits, the current fee levels are as follows: Suction Dredge Permit - $50.75 (resident), 200 (nonresident); Suction Dredge Permit Investigation – $260.50 (resident), $440.25 (nonresident). Currently, DFW may adjust the fees based on changes in the Implicit Price Deflator for State and Local Governments. This bill, instead, allows DFW to adjust fees based on reasonable costs.
Increased costs of approximately $420,000 annually for two years for the Water Board to develop water quality permit conditions for suction dredge mining (Waste Discharge Permit Fund).
Absorbable costs for regional water boards to administer the permits.
COMMENTS: This bill seeks to ensure that suction dredge mining does not adversely affect water quality by empowering the Water Board to regulate the activity. It also prohibits the DFW from issuing a suction dredge mining permit until a complete application, including copies of any required Water Board permits, has been received.
Suction dredge mining is a process by which power equipment is used to vacuum up sediment from the streambeds of rivers, creeks or other water bodies to search for gold. It is a form of recreational instream gold mining in which a gasoline powered motor sits atop a pontoon while the miner dives to the bottom of the river and vacuums up sediment from the riverbed. The material passes through a sluice box where heavier material such as gold is captured and the remaining material is discharged back into the river as debris.
The author's stated purpose is to ensure that suction dredge mining does not adversely affect water quality by closing a loophole in current law and empowering the Water Board to regulate the activity. Studies have found that suction dredge mining can exacerbate mercury contamination in rivers and streams and also disturb fish habitat, harming endangered fish species. The power equipment used to vacuum gravel from streambeds results in plumes of mercury-laden sediments downstream. This mobilizes the mercury and makes it more available for transformation into toxic methyl mercury. For further discussion and background on such impacts see the Assembly Water, Parks & Wildlife Committee policy analysis of this bill.
The DFW, in an environmental review conducted to update its suction dredge mining regulations in 2012, found that suction dredge mining caused significant environmental impacts, including impacts to water quality, cultural resources, endangered wildlife, and noise. However, the DFW indicated that it lacks the legal authority to address water quality impacts which fall under the jurisdiction of the Water Board. Under current law there is a moratorium on the issuance of suction dredge permits until the DFW determines that all identified significant environmental impacts have been fully mitigated. As a result, the moratorium is still in effect, but is currently being challenged in court.
The Water Board has authority under the federal Clean Water Act to require a waste discharge permit from dischargers, as it is charged with regulating and permitting discharges into waters of the state, but current state law only expressly requires a permit from DFW for suction dredge mining. This bill addresses this gap by requiring the Water Board to determine if a waste discharge permit is required, and prohibits the DFW from issuing a suction dredge permit until any permits required by the Water Board have been obtained.
The issue of suction dredge mining and its impacts has been the subject of legislative, regulatory and legal actions in California since 2005. In 2005, the Karuk tribe filed the initial lawsuit that is now part of an eight-case coordinated action in San Bernardino County Superior Court, with a related action currently pending before the California Supreme Court. For a detailed description of the litigation history and status please see the Assembly Water, Parks and Wildlife Committee policy analysis of this bill. In summary, the initial lawsuit challenged the DFW's regulations on suction dredge mining that were in effect at that time, and led to a court order requiring DFW to conduct an environmental review and update their regulations, an action which was finally completed in 2012.
Litigation challenging the DFW's 2012 regulations was filed by suction dredge miners, and a separate lawsuit challenging the regulations was also filed by a coalition of tribal, environmental and fishing interests. Both of these actions, as well as six other cases, are now coordinated before the San Bernardino Superior Court under a single case titled: In Re Suction Dredge Cases. In January 2015 the trial court issued an order on the preemption cause of action finding that the state's moratorium on suction dredge mining was preempted on federal lands based on a court of appeal decision in a separate action that is now on appeal before the California Supreme Court. However, the moratorium is still in effect pending the outcome of the litigation.
Supporters of this bill note that the permit program developed by DFW, and the associated environmental analysis, found that suction dredge mining activities create significant and unavoidable impacts to water quality and cultural resources that DFW lacks the authority to mitigate. Current law places a moratorium on the issuance of permits unless and until DFW is able to fully mitigate all significant environmental impacts, something they are not able to do today. However, the moratorium may be lifted as a result of pending litigation. Supporters note that suction dredge mining has been shown to increase levels of highly toxic methyl mercury in California waters, and to negatively affect fish species such as commercially valuable runs of salmon that are listed under the Endangered Species Act. Supporters further emphasize that while they do not oppose responsible mining, suction dredge mining should not be allowed to occur at the expense of clean water, cultural resources, and fisheries. Some supporters also note that the impacts to water quality caused by suction dredge mining are especially alarming in light of the ongoing drought and efforts to conserve ever depleting water sources.
Opponents assert that the activities of suction dredge mining do not result in a waste discharge to waters of the state and therefore are not activities that should be subject to waste discharge permit requirements under the Clean Water Act. They further assert that suction dredge miners help to improve water quality by removing mercury, lead, and other waste and trash from streambeds. Some opponents also assert that suction dredge mining is beneficial to fish, by de-compacting gravel beds and creating depressions that act as cold water refugia for fish, and that passage of this bill would have negative economic impacts, particularly on small scale suction dredge miners.
Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096 FN: 0001665
Date of Hearing: August 19, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
SB 637
(Allen) – As Amended July 7, 2015
Policy Committee: |
Water, Parks and Wildlife |
Vote: |
10 - 4 |
|
|
|
|
|
|
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill prohibits the Department of Fish and Wildlife (DFW) from issuing a permit for suction dredge mining until the application is complete as specified. Specifically, this bill:
Requires any application to include copies of all required permits including those required under the Federal Water Pollution Control Act, the Water Code, and any other permit required to fully mitigate significant environmental impacts. If the State Water Resources Control Board (SWRCB) or regional water quality control board determines a permit is not required, the application must include a letter of determination from the executive director as specified.
Requires DFW to issue the permit if it determines the use of a vacuum or suction dredge does not cause any significant effects to fish and wildlife.
Authorizes DFW to increase suction dredge permit fees to cover all reasonable regulatory costs.
Additionally, this bill authorizes SWRCB or regional board, after conducting public hearings and workshops, to:
Adopt waste discharge requirements to address the water quality impacts of mercury and metals as specified.
Specify conditions or areas in which the discharge of waste from section dredge mining is prohibited.
Prohibit methods of section dredge mining determined to contribute to an exceedance of applicable water quality standards or unreasonably impact beneficial water uses.
FISCAL EFFECT:
Increased fee authority for DFW to cover all reasonable costs of regulating suction dredge mining activities. Although DFW is not issuing section dredging permits, the current fee levels are as follows:
Suction Dredge Permit - $50.75 (resident); 200 (nonresident)
Suction Dredge Permit Investigation - $260.50 (resident); $440.25 (nonresident ).
Currently, DFW may adjust the fees based on changes in the Implicit Price Deflator for State and Local Government Purchases of Goods and Services, as published by the United States Department of Commerce. This bill, instead, allows DFW to adjust fees based on reasonable costs.
Increased costs of approximately $420,000 annually for two years for SWRCB to develop water quality permit conditions for suction dredge mining (Waste Discharge Permit Fund).
Absorbable costs for regional water boards to administer the permits.
COMMENTS:
Purpose. According to the author, this bill will ensure the activity of suction dredge mining does not adversely affect water quality by closing a loophole in current law and empowering SWRCB to regulate the activity.
The author cites to a 2003 pilot study conducted by SWRCB that found suction dredge mining exacerbates mercury contamination in rivers and streams and disturbs fish habitat, harming endangered fish species.
According to the author, the mercury levels in fish taken from California streams where gold mining occurred are generally above critical toxicity threshold levels and pose human health risks. Existing law requires the DFW to issue permits for suction dredge mining if certain conditions are met, including that new regulations adopted by DFW fully mitigate all identified significant environmental impacts. However, DFW does not have authority to mitigate water quality impacts, which fall under the jurisdiction of the SWRCB.
This bill will ensure suction dredge mining does not adversely affect water quality.
Background. Suction dredge mining is a process by which power equipment is used to vacuum up sediment from the streambeds of rivers, creeks or other water bodies in search of gold. It is a form of recreational instream gold mining in which a gasoline-powered motor sits on a pontoon while the miner dives to the bottom of the river and vacuums up the riverbed. The material passes through a sluice box where heavier material such as gold is captured and the remaining material is discharged back into the river.
Suction dredge mining was initially regulated in California because of its impacts on fish and aquatic life. To date, because of this history, DFW is the only state agency with explicit authority over this activity.
Existing law currently places a moratorium on the issuance of suction dredge permits by DFW. The conditions of this moratorium have evolved over the years. In 2009, the moratorium was first established as a temporary measure until DFW (then Department of Fish and Game) conducted an environmental review of suction dredge mining, which was consistent with a court injunction order.
In February 2011, DFW released draft regulations and a draft EIR. In that same year, the Legislature, through a budget trailer bill, extended the moratorium until 2016 to provide DFW with time to establish a fee structure to cover all of its administrative costs.
In 2012, the Legislature hinged the end of the moratorium on the development of the fee and required DFW to report to the Legislature on required statutory changes or authorizations necessary to implement suction dredge mining permits. That report was submitted to the Legislature on April 1, 2013.
SWRCB's comments to DFW’s suction dredge mining EIR identified two significant and unavoidable water quality impacts of suction dredge mining: (1) mercury re-suspension and discharge, and (2) the effects from re-suspension and the discharge of other trace metals, such as copper, lead, zinc, cadmium, chromium, and arsenic.
Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081
SB 637
Page 5
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: SB 637
Amended: 6/2/15
SENATE NATURAL RES. & WATER COMMITTEE: 6-1, 4/14/15
AYES: Pavley, Allen, Hueso, Jackson, Monning, Wolk
NOES: Stone
NO VOTE RECORDED: Fuller, Hertzberg
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-2, 4/29/15
AYES: Wieckowski, Hill, Jackson, Leno, Pavley
NOES: Gaines, Bates
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/28/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
SUBJECT: Suction dredge mining: permits
DIGEST: This bill establishes criteria for permits for suction dredge mining by the Department of Fish and Wildlife (department) and the State Water Resources Control Board (SWRCB).
Existing law:
Requires the department to issue a permit, if the department determines that the use of a vacuum or suction dredge will not be deleterious to fish, upon the payment of a specified fee.
Designates the issuance of permits to operate vacuum or suction dredge equipment to be a project under the California Environmental Quality Act and suspends the issuance of permits and mining pursuant to a permit until the department has completed an environmental impact report for the project as ordered by the court in a specified court action.
Existing law prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake of this state until the Director of Fish and Wildlife makes a prescribed certification to the Secretary of State, including certifying that new regulations fully mitigate all identified significant environmental impacts and that a fee structure is in place that will fully cover all costs to the department related to the administration of the program.
Provides that the SWRCB and the California regional water quality control boards prescribe waste discharge requirements in accordance with the Federal Water Pollution Control Act and the Porter-Cologne Water Quality Control Act (state act). The state act, with certain exceptions, requires a waste discharger to file certain information with the appropriate regional board and to pay an annual fee. The state act additionally requires a person, before discharging mining waste, to submit to the regional board a report on the physical and chemical characteristics of the waste that could affect its potential to cause pollution or contamination and a report that evaluates the potential of the mining waste discharge to produce acid mine drainage, the discharge or leaching of heavy metals, or the release of other hazardous substances.
This bill:
Prohibits the department from issuing permits for suction dredge mining.
Authorizes the department, after the certification pursuant to Section 5653.1 is made, to issue permits when an application is deemed complete, a determination that includes any permit required under the federal Clean Water Act and California water law.
Provides that if the state or regional water board determines that no water quality or water rights permit is needed, such determination would become a part of the permit determination made by the department.
Provides that if the state or regional water board determines that a waste discharge report (permit) is authorized, but not required, to address water quality impacts of:
Mercury loading to downstream reaches of surface water bodies;
Methylmercury formation in water bodies;
Bioaccumulation of mercury in aquatic organisms; and
Resuspension of metals.
The appropriate water board will also have authority to specify conditions or areas where the discharge of waste from suction dredge mining is prohibited, consistent with existing law, and to prohibit any particular methods of suction dredge mining that it determines would cause or contribute to violations of water quality objectives or unreasonably effect beneficial uses of water.
Defines suction dredges as equipment that contains any of the following:
A hose that vacuums sediment from a waterway;
A motorized pump;
A motorized sluice box.
Background
The moratorium on permits was caused, in part, by litigation and subsequent legislation that required an environmental impact report and regulations that would fully mitigate all identified significant environmental effects as well as a fee structure that would fully cover the department’s costs to administer this program. This history is recounted in the findings in Section 1 of this bill. The moratorium would remain in effect until the director certifies to the Secretary of State that the conditions in Section 5653.1 of the Fish and Game Code have been satisfied.
The department’s environmental review concluded, in part, that it did not have regulatory authority to address the impacts of suction mining that were instead within the jurisdiction of the SWRCB.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Senate Appropriations Committee:
A minimum of $450,000 to $600,000 annually for the first two years from Waste Discharge Permit Fund (special fund) to the SWRCB to develop the permit.
Unknown ongoing costs to the Waste Discharge Permit Fund (special fund) to the SWRCB to administer the permit.
Unknown one-time costs likely in the hundreds of thousands of dollars from the Safe Drinking Water Account to the SWRCB to update other related regulations to allow the discharge of mercury.
The Sierra Fund (source)
Central Sierra Environmental Resource Center
Clean Water Action
Defenders of Wildlife
Karuk Tribe
Klamath Forest Alliance
Klamath Riverkeeper
Sierra Nevada Alliance
South Yuba River Citizens League
Yurok Tribe
OPPOSITION: (Verified 5/29/15)
Western Mining Alliance
ARGUMENTS IN SUPPORT: Clean Water Action supports this bill in order to enable the SWRCB to use its existing regulatory authority under the federal Clean Water Act to permit suction dredge mining activities in order to ensure that the discharge from those operations does not degrade the water quality of California surface water.
The Sierra Nevada Alliance, a coalition of 85 groups in the Sierra, points out that research commissioned by the SWRCB shows that the plume of water that comes from suction dredges does not meet state water quality standards.
The Sierra Fund states that the legislative moratorium was based on a rigorous, scientific evaluation of the impacts of suction dredge mining. It states that the SWRCB can use its existing regulatory structure to ensure mitigation of impacts prior to the issuance of a permit by the department.
ARGUMENTS IN OPPOSITION: The Western Mining Alliance conveyed the following major points:
The vast majority of suction dredge miners are not wealthy and that a new permitting process may be too expensive and price these individuals out of this activity.
Miners disagree with the assertion that their activity transforms elemental mercury into methyl mercury or that mercury levels in California rivers are unsafe.
Miners in fact remove mercury (and lead from ammunition and fishing weights) from streams. As for mercury, miners would welcome a way to lawfully transfer the mercury to an authorized recipient.
Prepared by: William Craven / N.R. & W. / (916) 651-4116
6/2/15 21:19:20
**** END ****
SB 637 (Allen) Page 2 of 2
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 637 (Allen) - Suction dredge mining: permits.
|
|
Version: May 5, 2015 |
Policy Vote: N.R. & W. 6 - 1, E.Q. 5 - 2 |
Urgency: No |
Mandate: No |
Hearing Date: May 28, 2015 |
Consultant: Marie Liu |
SUSPENSE FILE. AS AMENDED.
Bill Summary:
SB 637 would require the State Water Resources Control Board (board) to establish a permitting process by July 1, 2017 for suction dredge mining and relating mining activities in the rivers and streams of the state. The Department of Fish and Wildlife (DFW) would be prohibited from issuing a permit for a vacuum or suction dredge unless the application is complete, which would include any necessary permits from the board.
Fiscal Impact (as approved on May 28, 2015):
A minimum of $450,000 to $600,000 annually for the first two years from Waste Discharge Permit Fund (special) to the board to develop permit.
Unknown ongoing costs to the Waste Discharge Permit Fund (special) to the board to administer the permit.
Unknown one-time costs likely in the hundreds of thousands of dollars from the Safe Drinking Water Account to the board to update other related regulations to allow the discharge of mercury.
Background:
Suction dredge mining was initially regulated in California because of its impacts on fish and aquatic life. To date, because of this history, DFW is the only state agency with explicit authority over this activity.
Existing law currently places a moratorium on the issuance of suction dredge permits by DFW. The conditions of this moratorium have evolved over the years. In 2009, the moratorium was first establishes as a temporary measure until DFW (then Department of Fish and Game) conducted an environmental review of suction dredge mining, which was consistent with a court injunction order. In February 2011, DFW released draft regulations and a draft EIR. In that same year, the Legislature, through a budget trailer bill (AB 120), extended the moratorium until 2016 to give DFW time to establish a fee structure to cover all of its administrative costs. In 2012, the Legislature hinged the end of the moratorium on the development of the fee and required DFW to report to the Legislature on required statutory changes or authorizations necessary to implement suction dredge mining permits. That report was submitted to the Legislature on April 1, 2013.
The board’s comments to DFW’s suction dredge mining EIR identify two significant and unavoidable water quality impacts of suction dredge mining: (1) mercury resuspension and discharge, and (2) the effects from resuspension and the discharge of other trace metals, such as copper, lead, zinc, cadmium, chromium, and arsenic.
Proposed Law:
This bill would require the board to establish a permitting process by July 1, 2017 for suction dredge mining and relating mining activities in the rivers and streams of the state. The regulations would be required to address, at a minimum, cumulative and water quality impacts of mercury loading in downstream affected by suction dredge mining, methylmercury formation, and bioaccumulation of mercury in aquatic environments.
DFW would be prohibited from issuing a permit for a vacuum or suction dredge unless the application is complete, which would include any necessary permits from the board.
Staff Comments:
The board estimates preliminarily that it would require at least three to four positions and two years to draft the permit, which would including workshops, meetings with stakeholders, and responding to comments. This is a preliminary estimate because the board is still trying to establish the parameters of the likely permit.
Once the permit is developed, the board will likely have costs to administer and enforce the permit. However, these costs are unknown as it will depend on the terms of the permit. For example if the permit is discretionary, and therefore subject to CEQA, ongoing costs are likely to be significant, though CEQA costs should be recoverable from the applicant. Staff notes that the bill does not give the board the ability to charge a permit fee to cover its administrative costs.
The board notes that it has existing regulations that prohibit the discharge of mercury, which would conflict with the proposed suction dredge mining permit. To the extent that the permit would allow some, presumably limited and mitigated, amount of mercury to be discharged by a suction dredge miner, the board would need to update its existing regulations and thereby incurring regulatory costs. At this time, the board is still reviewing the regulations that may need to be revised and therefore the costs to update regulations as needed are unknown. However, these costs are potentially in the hundreds of thousands of dollars.
The Department of Fish and Wildlife estimates that it has no costs associated with the changes proposed by this bill.
Author amendments (as adopted on May 28, 2015): Amend to make development of the board’s permit contingent upon DFW’s completion of required activities.
-- END --
SB 637 (Allen) Page 2 of 2
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 637 (Allen) - Suction dredge mining: permits.
|
|
Version: May 5, 2015 |
Policy Vote: N.R. & W. 6 - 1, E.Q. 5 - 2 |
Urgency: No |
Mandate: No |
Hearing Date: May 18, 2015 |
Consultant: Marie Liu |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
SB 637 would require the State Water Resources Control Board (board) to establish a permitting process by July 1, 2017 for suction dredge mining and relating mining activities in the rivers and streams of the state. The Department of Fish and Wildlife (DFW) would be prohibited from issuing a permit for a vacuum or suction dredge unless the application is complete, which would include any necessary permits from the board.
Fiscal Impact:
A minimum of $450,000 to $600,000 annually for the first two years from Waste Discharge Permit Fund (special) to the board to develop permit.
Unknown ongoing costs to the Waste Discharge Permit Fund (special) to the board to administer the permit.
Unknown one-time costs likely in the hundreds of thousands of dollars from the Safe Drinking Water Account to the board to update other related regulations to allow the discharge of mercury.
Background:
Suction dredge mining was initially regulated in California because of its impacts on fish and aquatic life. To date, because of this history, DFW is the only state agency with explicit authority over this activity.
Existing law currently places a moratorium on the issuance of suction dredge permits by DFW. The conditions of this moratorium have evolved over the years. In 2009, the moratorium was first establishes as a temporary measure until DFW (then Department of Fish and Game) conducted an environmental review of suction dredge mining, which was consistent with a court injunction order. In February 2011, DFW released draft regulations and a draft EIR. In that same year, the Legislature, through a budget trailer bill (AB 120), extended the moratorium until 2016 to give DFW time to establish a fee structure to cover all of its administrative costs. In 2012, the Legislature hinged the end of the moratorium on the development of the fee and required DFW to report to the Legislature on required statutory changes or authorizations necessary to implement suction dredge mining permits. That report was submitted to the Legislature on April 1, 2013.
The board’s comments to DFW’s suction dredge mining EIR identify two significant and unavoidable water quality impacts of suction dredge mining: (1) mercury resuspension and discharge, and (2) the effects from resuspension and the discharge of other trace metals, such as copper, lead, zinc, cadmium, chromium, and arsenic.
Proposed Law:
This bill would require the board to establish a permitting process by July 1, 2017 for suction dredge mining and relating mining activities in the rivers and streams of the state. The regulations would be required to address, at a minimum, cumulative and water quality impacts of mercury loading in downstream affected by suction dredge mining, methylmercury formation, and bioaccumulation of mercury in aquatic environments.
DFW would be prohibited from issuing a permit for a vacuum or suction dredge unless the application is complete, which would include any necessary permits from the board.
Staff Comments:
The board estimates preliminarily that it would require at least three to four positions and two years to draft the permit, which would including workshops, meetings with stakeholders, and responding to comments. This is a preliminary estimate because the board is still trying to establish the parameters of the likely permit.
Once the permit is developed, the board will likely have costs to administer and enforce the permit. However, these costs are unknown as it will depend on the terms of the permit. For example if the permit is discretionary, and therefore subject to CEQA, ongoing costs are likely to be significant, though CEQA costs should be recoverable from the applicant. Staff notes that the bill does not give the board the ability to charge a permit fee to cover its administrative costs.
The board notes that it has existing regulations that prohibit the discharge of mercury, which would conflict with the proposed suction dredge mining permit. To the extent that the permit would allow some, presumably limited and mitigated, amount of mercury to be discharged by a suction dredge miner, the board would need to update its existing regulations and thereby incurring regulatory costs. At this time, the board is still reviewing the regulations that may need to be revised and therefore the costs to update regulations as needed are unknown. However, these costs are potentially in the hundreds of thousands of dollars.
The Department of Fish and Wildlife estimates that it has no costs associated with the changes proposed by this bill.
-- END --
SB 637 (Allen) Page 8 of 8
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 637
Author: |
Allen |
||
Version: |
4/22/2015 |
Hearing Date: |
4/29/2015 |
Urgency: |
No |
Fiscal: |
Yes |
Consultant: |
Rachel Machi Wagoner |
||
SUBJECT: Water quality: suction dredge mining: permits
ANALYSIS:
Existing law:
Authorizes the State Water Resources Control Board (SWRCB) and the California regional water quality control boards (regional board) to prescribe waste discharge requirements in accordance with the federal Clean Water Act and the Porter-Cologne Water Quality Control Act (Porter-Cologne).
Under Porter-Cologne,
Requires a waste discharger to file certain information with the appropriate regional board and to pay an annual fee.
Requires a person, before discharging mining waste, to submit to the regional board a report on the physical and chemical characteristics of the waste that could affect its potential to cause pollution or contamination and a report that evaluates the potential of the mining waste discharge to produce acid mine drainage, the discharge or leaching of heavy metals, or the release of other hazardous substances.
Prohibits the use of any vacuum or suction dredge equipment by any person in any river, stream, or lake of this state without a permit issued by the Department of Fish and Wildlife (DFW).
Requires the DFW to issue a permit, if the department determines that the use of a vacuum or suction dredge will not be deleterious to fish, upon the payment of a specified fee.
This bill:
Requires by July 1, 2017, SWRCB to establish a permitting process for suction dredge mining and related mining activities in rivers and streams in the state, consistent with requirements of Porter-Cologne.
Requires that the regulations, at a minimum, address cumulative and water quality impacts of specified issues. A person who violates these regulations would be liable for an unspecified penalty.
Provides that SWRCB is not prohibited from adopting regulations that would prohibit suction dredge mining, if the state board makes a certain finding relating to water quality objectives, to the extent consistent with federal law.
Prohibits these provisions from affecting any other law, including the California Environmental Quality Act (CEQA) and specified provisions relating to streambed alteration requirements.
Requires DFW to issue a permit if the department determines that the use does not cause any significant effects on fish and wildlife (rather than deleterious to just fish)
Authorize DFW to adjust the specified fee to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities.
Specifies that a suction dredge contains any of the following:
A hose that vacuums sediment from a river, stream, or lake
A motorized pump
A motorized sluice box
Background
Suction Dredging in California.
According to the DFW, “The use of any motorized vacuum or suction dredge equipment as part of a mining operation in any river, stream, or lake is currently prohibited in California and any such activity would be unlawful. The California Department of Fish and Wildlife is also currently prohibited from issuing suction dredge permits under the Fish and Game Code.”
This moratorium was created by the Legislature and has been in effect since 2009, but some background is necessary to understand the current situation.
In 2005, the Karuk tribe sued the then-Department of Fish and Game’s (DFG) over its environmental review of the proposed suction dredge program. In 2006, a consent decree required an updated environmental review and rulemaking by 2008. That deadline was not met, and the Karuk sued again, this time winning a preliminary injunction prohibiting new suction dredge permits until after the CEQA review was completed.
In 2007, AB 1032 (Wolk) was vetoed by the Governor and would have imposed seasonal limits on suction dredging in streams in Northern California and the Sierra that had been identified as habitat for salmon, steelhead, and wild trout, pending completion of the state environmental impact report.
In 2009, the Governor signed SB 670 (Wiggins), Chapter 62, Statutes of 2009, which established a temporary ban on suction mining until after the DFG environmental review was completed.
The DFG draft regulations and a draft environmental impact report were issued in February, 2011.
In July, 2011, AB 120, a budget trailer bill, became effective. This law extended the prohibition on suction dredging until 2016 and further required the department to create a fee structure that covered all of its administrative costs.
Most recently, in 2012, California again acted on suction dredge mining with SB 1018, which eliminated the June 30, 2016 sunset provision in AB 120.
SB 1018 also directed DFW to consult with various agencies, and to provide recommendations to the Legislature by April 1, 2013, regarding statutory changes or authorizations necessary for DFW to promulgate regulations to implement Fish and Game Code §5653. Those regulations were intended to fully mitigate all identified significant environmental effects and include a fee structure that will fully cover DFW costs to administer its related permitting program. (Fish & Game Code §5653.1 (c)(1))
After extensive inter-agency and public comments, DFW prepared and submitted the required report to the California Legislature on April 1, 2013. The department considers the report the most comprehensive review of suction mine dredging ever compiled in California. It also identified impacts that it said could not be mitigated within its legal authorities.
Actions in the Courts. Two Cases Deserve Mention:
The California Supreme Court has granted review in People v. Rinehart, (2014) 230 Cal.App. 4th 419. In this case, Rinehart was criminally prosecuted for dredging while the moratorium was in effect. His mining claim was on federal lands and his defense was that California law violated his rights under the 1872 Mining Act. The Court of Appeal agreed with the defense argument (and that of numerous amici representing industry and property rights groups) that the state moratorium violates this federal law that generally allows and encourages mining on federal lands. A key issue that the Supreme Court may address is this: Are the California statutes on suction dredge mining reasonable environmental regulations? Or are those statutes preempted by the federal law because state law forces miners to use commercially impracticable techniques (such as gold panning) that constitute an impermissible land use decision that essentially bans a practice that is not banned by the 1872 Mining Act?
Related litigation is also pending in six consolidated cases denominated as Suction Dredge Mining Cases, Super. Ct. San Bernardino County, Judicial Council Proceeding No. JCPDS4720. As this analysis goes to print, the Committee has been told that a final order is imminent. Various press reports indicate that the court will hold that the California moratorium on suction dredge permits is preempted by federal law.
Suction Dredging and Water Quality.
The water quality effects of suction mining were identified by SWRCB in its 3/11/13 letter to DFW.
SWRCB pointed out that in the final EIR, two significant and unavoidable water quality impacts were identified: (1) mercury resuspension and discharge, and (2) the effects from resuspension and the discharge of other trace metals, such as copper, lead, zinc, cadmium, chromium, and arsenic.
The SWRCB letter noted that “recreational suction dredging has a disproportionately greater effect on mercury resuspension when compared to other natural events or human activities.” It observed that “the peer-reviewed findings in the final EIR stated that a single four-inch dredge could discharge up to 10 percent of an entire watershed’s mercury loading during a dry year. Additionally, recreational suction dredging occurs in the summer months when water temperatures are higher and oxygen levels are lower. These conditions are conducive to increased rates of methylation of mercury: the process by which elemental mercury binds with organic molecules and becomes more readily absorbed by living tissue and significantly more toxic to humans and wildlife.”
The letter states that, “based on the water quality impacts of recreational
suction dredging, we recommend that the existing moratorium be continued
indefinitely, or that this activity be permanently prohibited. Given the
current scientific understanding of this activity’s impacts, this is the only and the most cost-effective method to fully mitigate all significant water quality impacts….The resuspension and discharge of mercury is a potent neurotoxin that is harmful to both humans and wildlife. Mercury builds up in the bodies of fish that live in waters with even small amounts of mercury; and in the bodies of humans who eat contaminated fish. Because much of our state’s in-stream mercury is a result of historic gold mining activities, recreational suction dredging activities specifically target these locations and resuspend mercury from many known and unknown ‘hotspots’.”
Comments
Purpose of Bill.
According to the author, in January of 2015, the San Bernardino Superior Court ruled that federal law preempted the State’s regulations of suction dredge mining on federal land. The court also commented that the State’s laws related to suction dredge mining needed clarification. Budget language in 2011 and 2012 extended the 2009 moratorium on suction dredging until the Department of Fish and Wildlife established new regulation that “fully mitigate all identified significant environmental impacts.” However, California law currently only requires suction dredge miners to get a permit from the Department of Fish and Wildlife. Yet, it is SWRCB who administers the Federal Clean Water Act and is charged with regulating and permitting dischargers of pollutants into California’s waterways. SB 637 closes this loophole; ensuring suction dredge mining activity conforms to state and federal protections.
The author states that SB 637 requires SWRCB to regulate suction dredge mining activities to ensure that if suction dredging is permitted, it complies with water protection standards. The regulatory process would address mercury loading in rivers and streams, methyl mercury formations in water bodies, and bioaccumulation of mercury in aquatic organisms. The Board could also adopt regulations that prohibit suction dredge mining if it finds that prohibition is necessary to protect water quality. The bill will also set a fine amount for violations of the adopted regulation.
The author states that a 2003 study conducted by the State Water Resources Control Board found that, in an effort to extract gold, suction dredge mining exacerbates mercury contamination of rivers and streams because the power equipment used to vacuum gravel from the streambeds results in plumes of mercury-laden sediments downstream. According to the United States Geological Survey, suction dredge miners mobilize and change toxic metals such as mercury that are currently buried under rocks and mud in our rivers. This action makes mercury more available for transformation into toxic methyl mercury. The Department of Fish and Wildlife, while charged with addressing all the impacts of suction dredge mining, does not have the authority or expertise to deal with these water quality issues.
The SWRCB has authority under the Federal Clean Water Act to permit the discharge from suction dredge miners, but lacking clear statutory direction, it is unclear whether or not DFW can issue a permit before SWRCB has acted. Once they issue their permit, the author is concerned that SWRCB would be left trying to enforce the Clean Water Act in the dark.
Amendments needed.
As this bill intends to provide clear statutory direction requiring an SWRCB permit be obtained prior to a DFW permit, an amendment should be made to tie the two statutes together and add language to the Fish and Game Code requiring an SWRCB permit as a criteria of obtaining a DFW permit.
The bill requires SWRCB to draft regulations to establish a permitting process for suction dredge mining and related mining activities in rivers and streams in the state, consistent with requirements of Porter-Cologne. As SWRCB already has authority to regulate discharges under both federal and state law an additional regulatory process is unnecessary to establish the permitting process as specified in this bill. The bill should be amended to utilize SWRCB existing processes and by doing so utilize SWRCB’s existing enforcement and penalty authority.
SOURCE:
The Sierra Fund
SUPPORT:
Clean Water Action
California Wilderness Coalition
Center for Biological Diversity
Defenders of Wildlife
Friends of the River
Karuk Tribe
Sierra Club California
Sierra Nevada Alliance
South Yuba River Citizens League
The Sierra Fund
OPPOSITION:
American Mining Rights Association
East Bay Prospectors
Gemstone Equipment Co., Inc.
Western Mining Alliance
75 Individuals
ARGUMENTS IN SUPPORT:
Clean Water Action supports the bill in order to enable SWRCB to use its existing regulatory authority under the federal Clean Water Act to permit suction dredge mining activities in order to ensure that the discharge from those operations does not degrade the water quality of California surface water.
The Sierra Nevada Alliance, a coalition of 85 groups in the Sierra, points out that research commissioned by the state water board shows that the plume of water that comes from suction dredges does not meet state water quality standards.
The Sierra Fund states that the legislative moratorium was based on a rigorous, scientific evaluation of the impacts of suction dredge mining. It states that the water board can use its existing regulatory structure to ensure mitigation of impacts prior to the issuance of a permit by DFW.
ARGUMENTS IN OPPOSITION:
The Western Mining Alliance asserts that while they are in favor of water quality, the bill as written “has the potential to regulate out of existence the very activities which remove toxic metals from the waterways.”
The alliance’s letter goes on to request that the bill be amended “to encourage the removal of pollutants by suction dredgers while still maintaining water quality.”
According to the Western Mining Alliance, “the issue of mercury in the alpine streams has been well studied and the conclusions don’t support a linkage between suction dredges and increased pollutant levels.”
The letter states that “based upon data received from the US Geological Survey, methyl mercury level in biota have increased in gold mining rivers since the suction dredging ban. Gold dredges were removing mercury, not adding it.”
DOUBLE REFERRAL:
This
measure was heard in Senate Natural Resources and Water Committee on
April 14, 2015, and passed out of committee with a vote of 6-1.
-- END --
SB 637 (Allen) Page 6 of 6
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: SB 637 Hearing Date: April 14, 2015
Author: |
Allen |
|
|
Version: |
February 27, 2015 |
||
Urgency: |
No |
Fiscal: |
Yes |
Consultant: |
William Craven |
||
Subject: Water quality: suction dredge mining: permits
BACKGROUND AND EXISTING LAW
According to the oversized, bright red statement on the website of the Department of Fish and Wildlife (DFW), “The use of any motorized vacuum or suction dredge equipment as part of a mining operation in any river, stream, or lake is currently prohibited in California and any such activity would be unlawful.”
The next sentence is that, “The California Department of Fish and Wildlife is also currently prohibited from issuing suction dredge permits under the Fish and Game Code.”
This moratorium was created by the Legislature and has been in effect since 2009, but some background is necessary to understand the current situation.
1. In 2005, the Karuk tribe sued the then-Department of Fish and Game’s (DFG) over its environmental review of the proposed suction dredge program. In 2006, a consent decree required an updated environmental review and rulemaking by 2008. That deadline was not met, and the Karuk sued again, this time winning a preliminary injunction prohibiting new suction dredge permits until after the CEQA review was completed.
2. In 2007, AB 1032 (Wolk) was vetoed by the Governor and would have imposed seasonal limits on suction dredging in streams in Northern California and the Sierra that had been identified as habitat for salmon, steelhead, and wild trout, pending completion of the state environmental impact report.
3. In 2009, the Governor signed SB 670 (Wiggins) which established a temporary ban on suction mining until after the DFG environmental review was completed.
4. The DFG draft regulations and a draft environmental impact report were issued in February, 2011.
5. In July, 2011, AB 120, a budget trailer bill, became effective. This law extended the prohibition on suction dredging until 2016 and further required the department to create a fee structure that covered all of its administrative costs.
6. Most recently, in 2012, California again acted on suction dredge mining with SB 1018, which eliminated the June 30, 2016 sunset provision in AB 120.
SB 1018 also directed CDFW to consult with various agencies, and to provide recommendations to the Legislature by April 1, 2013 regarding statutory changes or authorizations necessary for CDFW to promulgate regulations to implement Fish and Game Code section 5653. Those regulations were intended to fully mitigate all identified significant environmental effects and include a fee structure that will fully cover CDFW costs to administer its related permitting program. (Fish & G. Code, § 5653.1, subd. (c)(1).)
After extensive inter-agency and public comments, DFW prepared and submitted the required report to the California Legislature on April 1, 2013. The department considers the report the most comprehensive review of suction mine dredging ever compiled in California. It also identified impacts that it said could not be mitigated within its legal authorities.
More information from the report is contained in the Comments section of this analysis.
Actions in the courts. Two cases deserve mention:
1. The California Supreme Court has granted review in People v. Rinehart, (2014) 230 Cal.App. 4th 419. In this case, Rinehart was criminally prosecuted for dredging while the moratorium was in effect. His mining claim was on federal lands and his defense was that California law violated his rights under the 1872 Mining Act. The Court of Appeal agreed with the defense argument (and that of numerous amici representing industry and property rights groups) that the state moratorium violates this federal law that generally allows and encourages mining on federal lands. A key issue that the Supreme Court may address is this: Are the California statutes on suction dredge mining reasonable environmental regulations? Or are those statutes preempted by the federal law because state law forces miners to use commercially impracticable techniques (such as gold panning) that constitute an impermissible land use decision that essentially bans a practice that is not banned by the 1872 Mining Act?
2. Related litigation is also pending in six consolidated cases denominated as Suction Dredge Mining Cases, Super. Ct. San Bernardino County, Judicial Council Proceeding No. JCPDS4720.) As this analysis goes to print, the Committee has been told that a final order is imminent. Various press reports indicate that the court will hold that the California moratorium on suction dredge permits is preempted by federal law.
PROPOSED LAW
This bill, although not finalized, would establish a permitting process for suction dredge mining at the State Water Resources Control Board that would meet the requirements of the Porter-Cologne Water Quality Act and, at a minimum, address the cumulative and water quality effects of all of the following:
●Mercury loading to downstream reaches of rivers affected by suction mine dredging;
●Methylmercury formation in water bodies; and
●Bioaccumulation of mercury in aquatic organisms.
The bill proposes that violations would be subject to a penalty, although that penalty amount is not yet specified.
The bill also provides that permits may not be granted by the board if it finds that a prohibition is necessary to regulate waste discharges that violate water quality objectives or other criteria set forth in Porter-Cologne, to the extent consistent with federal law. In making this determination, the bill provides that the board may consider such things as soil types, fueling and re-fueling activities, and horsepower limitations, among other things.
There is also a provision that says the bill does not affect any other law, including CEQA or the streambed alteration requirements in the Fish and Game Code.
ARGUMENTS IN SUPPORT
Clean Water Action supports the bill in order to enable the state water board to use its existing regulatory authority under the federal Clean Water Act to permit suction dredge mining activities in order to ensure that the discharge from those operations does not degrade the water quality of California surface water.
The Sierra Nevada Alliance, a coalition of 85 groups in the Sierra, points out that research commissioned by the state water board shows that the plume of water that comes from suction dredges does not meet state water quality standards.
The Sierra Fund states that the legislative moratorium was based on a rigorous, scientific evaluation of the impacts of suction dredge mining. It states that the water board can use its existing regulatory structure to ensure mitigation of impacts prior to the issuance of a permit by DFW.
ARGUMENTS IN OPPOSITION
None received.
Two individuals associated with the Western Mining Alliance talked with staff and conveyed the following major points:
1. The vast majority of suction dredge miners are not wealthy and that a new permitting process may be too expensive and price these individuals out of this activity.
2. Miners disagree with the assertion that their activity transforms elemental mercury into methyl mercury.
3. Miners in fact remove mercury (and lead from ammunition and fishing weights) from streams. As for mercury, miners would welcome a way to lawfully transfer the mercury to an authorized recipient.
4. A new permitting process at the water board may run into the same legal issues as does the existing permitting process at DFW.
COMMENTS
1. This bill is double-referred to Senate Environmental Quality where several of the water quality issues posed by this bill can be considered. It is important to realize that the State Lands Commission and the State Water Resources Control Board, in their comments to DFW in 2013 pointed out that the provisions in the Fish and Game Code could not address all of the environmental effects of suction dredge mining. This point was validated by the DFW itself which also observed that its mandate to protect fish and wildlife does not extend to water quality impacts. All three agencies further agree that DFW should not contort itself into an agency that attempts to deal with all the effects of suction dredge mining. Not only does the expertise of DFW not extend to these other non-fish and wildlife effects, but the statutes themselves should not be stretched so that water quality or other non-fish and wildlife impacts are bootstrapped into the Fish and Game Code.
The pending litigation may have the unintended consequence of re-focusing the attention of the Legislature on other aspects of suction dredge mining that have not been a part of previous legislation. The Legislature clearly knew, however, that suction mining has effects other than those on fish and wildlife. This is self-evident because DFW was directed in SB 1018 to include in its report recommendations “relating to the mitigation of all identified significant environmental impacts.” This bill takes the next step by assigning the regulation of water quality impacts to the state water board.
2. Suction dredge mining was initially regulated in California because of its impacts on fish and aquatic life. To date, because of this history, DFW is the only state agency with explicit authority over this activity. This history is fully recounted in the DFW report which recommends a series of amendments to the Fish and Game Code to clarify its responsibilities with respect to suction dredge mining. These amendments are reflected below, in the Suggested Amendments, but are summarized here:
● Clarify that DFW authority extends to fish and other wildlife;
● Clarify that DFW has authority to develop regulations to “fully recover all program costs” as recommended in SB 1018.
● As recommended both by the DFW and the state water board, ensure that the definition of suction dredging reflects changes in the machinery used by suction dredge miners. For example, the water board noted that the regulatory definition adopted by DFW in 2012 assumes that the dredges have an attached sluice box. That is no longer the case, but the water board observed that mining with machines that do not have an attached sluice box are not within the current definition.
3. Despite being ratified at least three times by the Legislature, it is conceivable that the ongoing litigation could result in the DFW regulatory provisions (minus the moratorium) applying only on non-federal lands in California. It is also conceivable that the DFW regulations could remain in effect on all lands in California (also without the moratorium), although either result at this point is speculative. The Legislature, at a minimum, should be prepared to take action if the final judicial decision is that the moratorium (and possibly other DFW regulations) is pre-empted by the federal law. This bill can be seen both as fulfilling many of the recommendations in the 2013 report, and as legislative action that anticipates the result in the pending litigation by creating a regulatory program at the state water board.
4. Depending on the outcome of the litigation, it could be important to build into this bill a mandatory consultation role that would require the state water board to consult with DFW and other agencies as necessary. The Committee will work with Environmental Quality if such a provision is necessary.
5. The water quality effects of suction mining were identified by the state water board in its 3/11/13 letter to DFW. It pointed out that in the final EIR, two significant and unavoidable water quality impacts were identified: (1) mercury resuspension and discharge, and (2) the effects from resuspension and the discharge of other trace metals, such as copper, lead, zinc, cadmium, chromium, and arsenic.
The water board letter noted that “recreational suction dredging “has a disproportionately greater effect on mercury resuspension when compared to other natural events or human activities.” It observed that “the peer-reviewed findings in the final EIR stated that a single four-inch dredge could discharge up to 10 percent of an entire watershed’s mercury loading during a dry year. Additionally, recreational suction dredging occurs in the summer months when water temperatures are higher and oxygen levels are lower. These conditions are conducive to increased rates of methylation of mercury: the process by which elemental mercury binds with organic molecules and becomes more readily absorbed by living tissue and significantly more toxic to humans and wildlife.”
6. The water board letter posed several questions that will likely be considered in Environmental Quality, including the various details of a regulatory program at the water board, and such items are not within the jurisdiction of this committee. One suggestion from the Sierra Fund is that the water board could make its decision regarding mitigation of water quality impacts prior to issuance of a permit by DFW.
7. The Native American Heritage Commission, in its letter to DFW of March 12, 2013, reiterated its comments to the environmental impact report of 2011. The NAHC believes that historic and cultural artifacts are often located just below the surface of riverbeds or along a stream bank. It believes that suction dredge mining can destroy these artifacts and that such impacts are significant and unavoidable. DFW agreed in the final environmental impact report and its 2012 regulations that it did not have statutory authority to enforce mitigation for impacts archeological resources.
8. Given the uncertain legal environment attached to the DFW regulations and the acknowledged inability of DFW to address many issues raised by the Native American Heritage Commission and the state water board, the Committee may determine that this bill presents a water-quality based rationale for regulation of suction dredge mining. It may be the case that this approach could also apply on federal lands, as well as state or private lands. Many legal commentators agree that federal laws, including the 1872 Mining Act, allow states to regulate mining activities even on federal lands where such state laws are not in conflict with federal laws.
SUGGESTED AMENDMENTS
AMENDMENT 1
Amend FGC 5653 to delete the existing “deleterious to fish” and add “does not cause any significant effects to fish and wildlife.”
AMENDMENT 2
Notwithstanding 14 CCR 228(a), a suction dredge contains any of the following: (a) a hose which vacuums sediment from a river, stream, or lake;
(b) a motorized pump;
(c) a sluice box.
AMENDMENT 3
Amend FGC 5653(c) to provide DFW with explicit authority to set suction dredge mining fees by regulation to fully cover all program costs.
SUPPORT
Central Sierra Environmental Resource Center
Clean Water Action
Defenders of Wildlife
Karuk Tribe
Sierra Nevada Alliance
The Sierra Fund
OPPOSITION
1 Individual
-- END --
Discussed in Hearing
9MIN
Assembly Floor
3MIN
Senate Floor
1MIN
Assembly Floor
11MIN
Assembly Standing Committee on Appropriations
11MIN
Senate Floor
20MIN
Senate Standing Committee on Appropriations
1H
Senate Standing Committee on Environmental Quality
34MIN
Senate Standing Committee on Natural Resources and Water
Bill Author
Bill Co-Author(s):