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 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. 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. Existing law authorizes the State Water Resources Control Board or a California regional water quality control board to adopt waste discharge requirements or a waiver of waste discharge requirements that address certain water quality impacts, specify 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, 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. Existing law provides that for the purpose of these provisions that 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 bill would instead provide for the purpose of these provisions that the use of vacuum or suction dredge equipment means the use of any equipment that removes minerals and water in conjunction to process and recover minerals.

Existing law provides that the prohibitions and requirements relating to suction dredging do not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.

This bill would instead provide that the above-described prohibitions and requirements do not apply to, prohibit, or otherwise restrict any equipment that does not transport mineral bearing material through a suction or nozzle.

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Robert Hertzberg, Chair

2017 - 2018 Regular

Bill No: SB Hearing Date: April 16, 2018

Subject: Use of vacuum or suction dredge equipment

BACKGROUND AND EXISTING LAW

Suction dredging is a technique used by miners to remove matter from the bottom of waterways, extract minerals, and return the residue to the water. A high-powered suction hose vacuums loose material from the bottom of a streambed. Heavier matter, including gold, is separated at the surface by passage through a floating sluice box, and the excess water, sand, and gravel is discharged back into the waterway.

California has regulated suction dredging for the last half-century. As originally enacted, Fish and Game Code Section 5653 authorized the Department of Fish and Game, now known as the Department of Fish and Wildlife (DFW), to issue permits for suction dredging, so long as it determined the dredging would not harm fish. Operation of a suction dredge without, or in violation of the terms of, a permit was a misdemeanor. Later amendments gave DFW authority to designate particular waterways off-limits to suction dredging and made possession of a suction dredge near such waters unlawful.

In 2009, the Legislature enacted SB 670 (Wiggins), an urgency measure which imposed a temporary moratorium on issuing dredging permits pending further environmental review by DFW, the adoption of new regulations governing suction dredging, and the new regulations became operative. The bill was introduced in response to concerns that suction dredging disturbed endangered salmon habitats and contributed to mercury contamination of both fish and humans.

Two years later, the Legislature placed a June 30, 2016, sunset on the moratorium on issuing new permits in the event environmental review and new regulations were not complete by that date. The following year, 2012, DFW finished its environmental review but concluded it lacked regulatory authority to address fully the environmental impacts of suction dredging. DFW identified the following significant and unavoidable effects that could result from the use of vacuum or suction dredge equipment:

• The resuspension and discharge of mercury and trace metals.
• Increased turbidity and total suspended sediment.
• Substantial adverse changes, when considered statewide, in the significance of historical and unique archaeological resources.
• Effects on riparian habitat of special status passerines.
• Effects on nonfish wildlife species and their habitat.
• Exposure of the public to noise levels in excess of city or county standards.

With the completion of the environmental review in 2012, the Legislature:

• Removed the 2016 sunset on the moratorium;
• Left in place the other conditions for issuing new permits (the adoption of new regulations governing suction dredging, and the new regulations became operative); and
• Added additional conditions for the issuing of new permits, such as the new regulations would have to fully mitigate all identified significant environmental impacts, and the imposition of a fee structure that would fully cover all costs to DFW related to the administration of the program.

In 2015, the Legislature enacted SB 637 (Allen). That bill, among other things, authorized 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 prohibited DFW from issuing a permit for suction dredge mining until the application is complete and includes all required permits.

In addition, SB 637 established a statutory definition of suction dredging in both FGC §5653 and CWC §13172.5, which state, in relevant part:

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.

PROPOSED LAW

This bill would redefine suction dredging in both the Fish and Game Code and the California Water Code to read:

the use of any vacuum or suction dredge equipment means the use of any equipment that removes minerals and water in conjunction to process and recover minerals. This section does not apply to, prohibit, or otherwise restrict any equipment that does not transport mineral bearing material through a suction or nozzle.

ARGUMENTS IN SUPPORT

Supporters assert that “SB 637 was never intended to restrict all forms of mechanized mining. It pertained to the practice of suction dredge mining only.”

According to the author, “The unforeseen repercussions of this miss-definition has caused a tremendous burden and outright halt on other low impact methods of mining that have nothing to do with suction dredging. These miners who are directly affected by the lack of clarity have been forced to either relinquish their claims, their livelihoods, or face fines and penalties for trying to work and provide for their families. These miners contribute over $64,000 each to the local economies where they work, through their mere presence and contribute more through their successful findings of valuable minerals. SB 1222 protects the low impact methods of gold mining, while still enforcing the permits and restrictions on the high impact methods, such as suction dredging.”

ARGUMENTS IN OPPOSITION

Opponents contend “The language of SB 637 was very deliberately crafted in cooperation with [DFW] to define suction dredging as any ‘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 materials.’”

“The forms of small-scale mining covered under SB 637’s definition of suction dredging have well documented deleterious effects to water quality, wildlife and cultural resources, including:

• Altering fish habitat by changing the river bottom
• Reintroducing mercury that is left over from historic mining operation
• Exacerbating erosion and sediment problems, and
• Damaging Native American cultural sites.”

COMMENTS

What’s Changed? As noted in the arguments in opposition, the current definition established under SB 637 was designed to prohibit high banking and other mechanized mining techniques the supporters refer to as “low impact methods.” The statute appears to be working as the author and supporters of SB 637 intended.

Current definition appears to include a loop-hole. The current definition of “suction dredging” does ban mechanized suction dredged operations. However, it appears to allow non-mechanized vacuum systems known as “gravity mining,” “gravity dredging,” or “syphon dredging.” In such systems, 100+ feet of hose is laid out with one end upstream where the dredging is to take place and the other end downstream emptying into a sluice box or similar device to separate the gold from the other materials. With a drop of 10 feet or so, the suction from the syphon is usually more than sufficient to dredge the materials.

This bill proposes to close the loophole by eliminating non-vacuum systems from the definition and clarify that “suction dredging equipment” refers to any equipment that “removes minerals and water in conjunction to process and recover minerals.” Another option would be to have a two part definition that includes both mechanized systems and any suction or vacuum system. This would preserve the current definition and clearly ban non-motorized syphon dredges as well.

Double-referral The Rules Committee referred this bill to both the Committee on Natural Resources and Water and to the Committee on Environmental Quality. Therefore, if this bill passes this committee, it will be referred to the Committee on Environmental Quality, which will consider the issues within their jurisdiction.

SUGGESTED AMENDMENTS: None

SUPPORT

American Mining Rights Association

Delta Gold Diggers

Gold Prospectors Association of America

Keene Engineering Company Inc.

Mariposa County Sheriff

Pacific Crest Alliance

Proline Mining Equipment, Inc.

Riverside County Board of Supervisors

Rural County Representatives of California

Sierra County Board of Supervisors

Individuals (199)

OPPOSITION

California Sportfishing Protection Alliance

Center for Biological Diversity

Clean Water Action

Defenders of Wildlife

Environmental Law Foundation

Friends of the river

Karuk Tribe

Pacific Coast Federation of Fishermen’s Associations

Sierra Fund

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