Amended in Senate June 2, 2015

Amended in Senate May 5, 2015

Amended in Senate April 22, 2015

Senate Bill No. 637

Introduced by Senator Allen

February 27, 2015

An act to amend Section 5653 of the Fish and Game Code, and to add Section 13172.5 to the Water Code, relating to dredging.

LEGISLATIVE COUNSEL’S DIGEST

SB 637, as amended, Allen. Suction dredge mining: permits.

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 begin delete on end delete begin insert to end insert 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 begin delete require, by July 1, 2017 end delete begin insert authorize, after the director has made the prescribed certification to the Secretary of State end insert , the state board begin insert or a regional board end insert to begin delete 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. end delete begin insert 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. end insert

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 begin delete permitting end delete begin insert regulatory end insert process established by the state board begin insert or a regional board end insert .

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert The Legislature finds and declares all of the
following: end insert

begin insert

(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.

end insert begin insert

(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.

end insert begin insert

(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.

end insert begin insert

(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 department’s costs of administering
the program.

end insert begin insert

(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.

end insert begin insert

(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 state’s refusal or inability to issue the permits creates
an obstacle to conforming with federal law.

end insert begin insert

(g) Given the importance of protecting the water supply for all
Californian’s from degradation, the need to protect what is left of
California native cultural sites, and the value of protecting the
state’s 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 state’s
streams and waterways.

end insert

begin delete SECTION 1. end delete
begin insert SEC. 2. end insert   

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.

begin delete SEC. 2. end delete
begin insert SEC. 3. end insert   

Section 13172.5 is added to the Water Code, to read:

begin delete

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:

end delete

begin insert

begin insert 13172.5. end insert   

end insert begin insert

(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:

end insert begin insert

(1) Adopt waste discharge requirements that, at a minimum,
address the water quality impacts of each of the following:

end insert begin delete

(1)

end delete

begin insert (A) end insert  Mercury loading to downstream reaches of begin delete rivers and
streams affected by suction dredge mining. end delete begin insert surface water bodies
affected by suction dredge mining. end insert

begin delete

(2)

end delete

begin insert (B) end insert  Methylmercury formation in water bodies.

begin delete

(3)

end delete

begin insert (C) end insert  Bioaccumulation of mercury in aquatic organisms.

begin delete

(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 Wildlife’s streambed alteration
requirements described in Chapter 6 (commencing with Section
1600) of the Fish and Game Code.

end delete begin insert

(D) Resuspension of metals.

end insert begin insert

(2) Specify certain conditions or areas where the discharge of
waste from suction dredge mining is prohibited, consistent with
Section 13243.

end insert begin insert

(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.

end insert begin delete

(e)

end delete

begin insert (b) end insert  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.