Suction Dredging In California, Permits And Politics
It has now been nearly 3 ½ years since the passage of Senate Bill 637 (SB637) which labeled anything mechanized or motorized as “a suction dredge” and therefore requires a permit from the California Water Board (CAWB) to operate it in the state. The CAWB was mandated in that law to evaluate whether or not the activity of small-scale suction dredging should be permitted based on the science and data on water quality during a dredging operation and other considerations. They have in fact decided the activity “should” be permitted, but where one can dredge is going to be the most significant obstacle.
On May 30, AMRA met with the California Water Board (CAWB) Executive Director, Eileen Sobeck, John Bishop, Chief Deputy Director, Karen Mogus, Deputy Director Water Quality and Phil Crader, Assistant Deputy Director to ask questions about the draft proposal, the current status and the details of the permitting scheme. The CAWB had stated last year they expected to go public with a draft proposal for the permitting in January of 2019, but we were told the department tasked with this project lost 4 of their 6 staff members causing yet another delay. They now assure us they are back on track, have staffing and do in fact plan on presenting a permitting program to the public. We know the frustration by the public over these delays, we feel the same frustration. It has now been almost 10 years since anyone other than the environmental group Sierra Fund can legally suction dredge in the state. This has cost the state of California hundreds of millions of dollars in lost revenue previously spent by the miners due to this continued prohibition.
We met with them for nearly an hour and while there was extensive, polite and professional debate, questions and dialogue back and forth, we will summarize the conversation and include many of the questions and answers, but not all as it would result in 20 pages of you to sift through.
Q) We asked Ms. Sobeck: Do you know what a high banker is and have you seen one?
A) Yes, I know what one is.
Q) Can you describe what one does?
A) No. This is not a quiz.
Q) Were there any timelines given to you for completing or introducing a draft proposal for suction dredging, or could this prohibition be extended indefinitely?
A) No, there was no timeline given.
Q) Where are you on the suction dredge draft proposal now?
A) We are moving forward and have the department now fully staffed. We expect the proposal to go to the public comment phase for everyone (hopefully) in September of this year.
We engaged in a discussion about the permitting and what areas were to be “prohibited”. John Bishop stated suction dredging would only be allowed in areas where there was no mercury. He went on to say that the miners would likely not be happy as MOST of the areas the dredgers want to work would be prohibited in the state. When asked why that is, he stated because suction dredging methylates mercury they will be prohibiting dredging in those locations. Methylation is the allegation of “flowering” mercury into micro-particles as they come off the back of the sluice box.
Q) Have you performed studies on every gully, gulch, river and stream to determine if there is mercury present?
He and Ms. Mogus stated if there was “historical mining”, those areas would be prohibited as they had an “assumption that mercury existed” and when we pointed out not all miners throughout history used mercury, they stuck firm to any areas with historical mining would be considered impaired and a prohibition enforced. If someone dug a hole in 1850, it would appear as though that qualifies for exclusion from suction dredge permits.
We had extensive debates on methylation and brought up the dozens of studies researched by their own staff which we and Western Mining Alliance (WMA) provided to their staff. We asked the CAWB staff to look at the raw data, not to take our word for it, but to look at the actual science behind these independent and accredited studies. The CAWB staff concluded the one study which showed methylation, the Humphrey’s report was flawed and not realistic. The other studies did not show methylation and in fact, showed “not deleterious” (meaning no harm) or “insignificant” (also no harm). The Humphry’s report was the study performed by Department of Fish and Wildlife in 2005 up on the Yuba. It was performed in a closed loop (recirculated system or tub) method with a high banker and was not representative of a real-life suction dredge operation. The people we were meeting with, and we are writing about stated their staff were low level and did not make the determinations, those were made by the board. The very scientists, researchers and educated people tasked with determining if the science is flawed or to be believed, who dissected the raw data are essentially being dismissed by these much higher positions as they know best, more than someone who actually studies the data. To quote, they stated “that’s just staff work and they don’t make the decisions”. We did add, “but their professional opinions should count”.
Due to the fact that suction dredging removes 98% of the mercury and nearly 99% of the lead from our drinking water, it should be encouraged. We used an analogy: if the activity removes 98% and 99% respectively, it is like saying you should never vacuum the carpet in this room for fear a few specs of dust might get on the table.
Q) Would you rather leave 98% of the mercury in the water, rather than remove it?
A) Yes (John Bishop)
This confounds logic. If methylation does not occur, they still do not want the mercury or lead removed. Not even, apparently, if it is done safely and effectively with net benefits to the environment. When pressed on this further, Mr. Bishop stated it is because it liberates the mercury into the bio mass of water. The data shows otherwise, but they refused to believe the science or their so-called low-level staffers. They stated it “makes it available to the food chain”.
Q) Do fish eat mercury?
A) No, but it is in the water column and can be consumed.
We pointed out that at no time, ever, with any study in the United States has there been a case where someone was poisoned by eating a fish contaminated with mercury.
As a part of a discussion last summer with the CAWB, (the so-called low level staffers) talked about water quality testing while a dredge is operating and who would perform this. Last summer, they believed the miners could perform this simple and inexpensive testing on their own. Izzy Martin (through public records requests) seems to believe the miners are not smart enough to perform the act of dipping a bottle into the water above, and below the dredge for water quality testing. She put quite a bit of pressure on the CAWB to not allow the miners to perform this simple testing. The water quality testing method and who performs it has not been determined yet and during todays meeting, they stated “will need revisions”. Because of Ms. Martin’s injecting herself into this decision making process, it would appear as though the CAWB agrees with Ms. Martin.
We discussed how during flood events like we’ve had in the past two years makes everything within a creek or river move. All the way to bedrock. It all moves and the mercury is naturally moved by Mother Nature. Yet their concern is still about a small, highly effective and environmentally friendly piece of equipment which generates millions in revenue to the state.
Q) Do you have a list of “impaired” areas which will be prohibited?
A) Not yet.
Q) On the places that have never been, or will be tested, is there going to be a prohibition on those areas as well?
A) Yes. If it’s in a watershed or sub-shed that had historical mining activity we will include that.
A) Ms. Mogus interjected that if there was evidence of historical mining activity, they assumed mercury was used and the areas would be prohibited.
This is what we have seen for years and years. Words like assume, maybe, might, could, possibly have had mercury used in the 1800’s will be prohibited areas. Without studies done on those areas, without proof of mercury present and without facts. These are arbitrary words and to enact a prohibition on this form of mining is very problematic for them.
We interjected that we have deep concerns that the CAWB is creating a prohibition off of what they are stating is an “assumption” and not fact, nor backed up by science or facts.
Mr. Bishop stated suction dredging is a “recreational act”. To which we immediately and vehemently disagreed. We stated this is not fishing for trout where you toss an 8” trout back. We own real property, pay property taxes on our claims and mine to make money. Gold is a tangible commodity and we do not know a single person who tosses their gold away at the end of the day. I make my living off of mining and I can assure you, it is not recreational. Mr. Bishop replied with we “should obtain permits from Cal-Recycle then”. The Cal-Recycle permit is a permit for discharging of mine waste water and not applicable for suction dredging. We brought up why this is not a simple process for the Army Corps and their permits. They stated they had the authority and jurisdiction over the water quality in the state of California.
Q) How much does politics play a role in all of this process and permitting?
A) Ms. Sobeck replied they have many people reply with concerns and everyone’s concerns come into play.
Q) Have you spoken to Elizabeth (Izzy) Martin with Sierra Fund?
Q) How many times have you met with her”
A) long pause, one.
We moved on to jurisdiction. And this is a very important area.
Q) Does the CAWB have jurisdiction over all waters in the state?
Q) Even on federally managed lands on mining claims? And if so, by what authority?
A) Yes. Porter Cologne Act and the Clean Water Act (CWA).
Q) Do any others have jurisdiction on customs or regulatory authority?
A) Yes. Department of Fish and Wildlife, Army Corps and State Lands.
Q) Why doesn’t the Army Corps have jurisdiction on this permitting process then?
A) Because they regulate dredge and fill and we implement the Clean Water Act.
The Army Corps regulate “dredge and fill”. Suction dredges dredge, then fill.
They went on to say they adopted mercury standards in 2017 and had preferred uses for the waters. These, in order of their priority, are the preferred priority uses for water under the plan:
1) Tribal tradition & culture
2) Tribal subsistence fishing
3) subsistence fishing
Do you see mining, Neither do we. If you refer to the original federal mining grants, mining is the number one preferred priority use of water. This is why many of these agencies are desperate to refer to suction dredging as “recreational”. They want to treat it as they do camping, fishing or hiking. This absolutely frustrates federal law. Miners have granted rights, where all others who use public lands have privileges and can be highly regulated and “prohibited”. If they can classify us as privileged users, we lose our granted rights.
Q) Do you recognize the federal mining districts and their authority to regulate the customs and practices on their mining claims on federal lands in federal waters?
A) An immediate………you have to speak with our attorneys about that.
We have, subsequent to our meeting on the 30th, spoken with the CAWB council Phil Wyels and he had never heard of the mining districts and therefore could not render an opinion on whether the CAWB recognizes this valid, legal and federally recognized authority on mining claims. We are sending Mr.Wyels as much objective information on the mining districts as we can to educate him and are involving Robert Guardiola, and Kevin Bell, two leading authorities on mining districts.
Q) Had it not been for SB637, would the CAWB have pursued a permitting process for suction dredging?
A) We will not speculate
Without the passage of Senate Bill 637 (SB637) we strongly believe that suction dredging would have been left alone. Due to the political pressure put on particular politicians like Ben Allen (D Hollywood) who introduced and passed SB637 by the likes of Izzy Martin and the Sierra Fund, we likely would not be having this discussion today. Sierra Fund and Izzy Martin take in millions of dollars in grant money to perform dredge schemes like on Lake Combie under the assertion they are removing mercury. Her dredge, a destructive cutter-head dredge removes approximately 84% of the mercury, rips and tears the bedrock up and is not even made in America.
Q) What is the pollutant a dredge discharges as defined by the CAWB?
A) I don’t have that. Sediment, pollutants like metals and mercury.
We responded with nothing is “added” during the activity. We discussed the L.A. County Supreme Court case and “the soup pot theory” coined by Justice Sandra Day-O’Connor where she stated if you dip a ladle into a pot of soup, lift it up and pour it back in, are you adding anything? The answer is no and this is precisely what a suction dredge does, it is called “incidental fallback” and no pollutants are added, only removed.
As you can all see, this was not surprising but for a few revelations. They are obviously conflicted on the mining districts authority and waterways with no proof of mercury present, but assumptions on their part because a miner dug a hole in 1850.
They are going to come out with a draft proposal in what looks like September, but most locations in the state will be off limits. They do not have a cost for the permits yet. We did not have time to discuss high bankers, dry washers and other potentially affected equipment, but that will be included in the draft proposal as well and we do not believe these types of equipment will be severely impacted like dredges from the numerous discussions we’ve had prior to this meeting.
One thing we do know and can opine on, we do not believe this is about fish, science or water quality. If it was, they would want the miners removing 98% of the mercury, creating fish habitat and cleaning our drinking water. Back in the 1990’s, the USFS used to call the gold clubs in areas which had forest fires and would beg them to come dredge…..so the fish would return. What has changed? Politics and agendas. California has become an over-regulation nightmare. Not just for small-scale suction dredgers and miners, but rural communities, small business owners, home builders, hikers, hunters, campers, farmers and ranchers. The state is out of control and the environmental groups have way to much power and control over our livelihoods. Rural communities are deeply feeling the impact of not having small-scale miners buying gas, equipment at hardware stores, eating in their cafe’s and staying in their motels. Hundreds of millions of dollars….gone.
When they do go public with the draft proposal, we either show up in numbers that make their heads spin, or we might as well start buying our gold in pawn shops instead of mining it.
We will continue to ask questions, perform records requests and keep pressure on the CAWB to do what they were mandated to do. We will continue to explore every avenue possible to keep our rights and liberties because we either completely unite against this, or we lose our rights and liberties.
Mr. Shannon Poe
President, American Mining Rights Association (AMRA)
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