AMRA President Shannon Poe testified on behalf of suction dredgers April 14th. There were also approximately 40 miners in the room who were there in opposition to the bill.
According to the newly released documents outlining the progress of the bill………..nobody spoke in opposition and nobody appeared in opposition.
It is past time we have a show of force in Sacramento. The next committee meeting is April 29th.
Here is the text from the committee:
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.
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
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.
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.
Amend FGC 5653 to delete the existing “deleterious to fish” and add “does not cause any significant effects to fish and wildlife.”
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.
Amend FGC 5653(c) to provide DFW with explicit authority to set suction dredge mining fees by regulation to fully cover all program costs.
Central Sierra Environmental Resource Center
Clean Water Action
Defenders of Wildlife
Sierra Nevada Alliance
The Sierra Fund
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