Amended in Assembly September 4, 2015

Amended in Assembly July 7, 2015

Amended in Senate June 2, 2015

Amended in Senate May 5, 2015

Amended in Senate April 22, 2015

Senate BillNo. 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 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.begin insert 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.end insert

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, afterbegin delete the director has made the prescribed certification to the Secretary of State and afterend delete prescribed public hearings and workshops,begin insert as specified,end insert authorize the state board or a regional board to adopt waste discharge requirementsbegin insert or a waiver of waste discharge requirementsend insert that address water quality impacts of specified issues, specify certain conditions or areas where the discharge ofbegin delete wasteend deletebegin insert waste or other adverse impacts on beneficial uses of the waters of the stateend insert frombegin delete aend deletebegin insert the use of vacuum orend insert suction dredgebegin insert equipmentend insert is prohibited, or prohibit particularbegin insert use of, orend insert methods ofbegin insert using, vacuum orend insert suction dredgebegin delete mining if the state board or regional board makes a certain determination.end deletebegin insert equipment, or any protion thereof, for the extraction of mineralsend insertbegin insert, as specified.end insert

The bill would specify thatbegin delete 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.end deletebegin insert 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.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:

P3    1

SECTION 1.  

The Legislature finds and declares all of the
2following:

3(a) Inbegin insert Augustend insert 2009, Governor Arnold Schwarzenegger signed
4Senate Bill 670 (Chapter 62 of the Statutes of 2009) which
5established a temporary ban onbegin insert the use of vacuum orend insert suction dredge
6begin delete miningend deletebegin insert equipmentend insert until afterbegin insert the Department of Fish and Wildlife
7completedend insert
a court-ordered environmental reviewbegin delete was completed.end delete
8begin insert of its related permitting program and existing regulations.end insert

begin delete

9(b) The Department of Fish and Wildlife draft regulations and
10draft environmental impact report were issued in February 2011.
11The draft environmental impact report identified nine significant
12and unmitigable impacts from suction dredge mining. The report
13concluded that suction dredge mining for gold mobilizes and
14discharges toxic levels of mercury, harming drinking water quality
15and potentially poisoning fish and wildlife, harms fish, amphibians,
16and songbirds by disrupting habitat, and causes substantial adverse
17changes statewide in American Indian cultural and historical
18resources.

19(c)

end delete

P4    1begin insert(b)end insert In July 2011,begin delete the Legislature enactedend deletebegin insert Governor
2Schwarzenegger signedend insert
Assembly Bill 120 (Chapter 133 of the
3Statutes of 2011), extending the prohibition onbegin insert the use of vacuum
4orend insert
suction dredgebegin delete mining until 2016, and requiring the department
5to create aend delete
begin insert equipment to June 2016 or, if earlier, until the Director
6of Fish and Wildlife certified five conditions to the Secretary of
7State, including completion of the court-ordered environmental
8review, the adoption of and operation of any updated regulations
9implementing Section 5653 of the Fish and Game Code, full
10mitigation of all identified significant environmental effects, and
11the existence of a permitend insert
fee structure that wouldbegin insert fullyend insert cover allbegin delete of
12its administrativeend delete
costsbegin delete relating to suction dredge mining.end deletebegin insert incurred
13by the department to administer its permitting program.end insert

begin insert

14(c) In March 2012, the Department of Fish and Wildlife
15completed the court-ordered environmental review and rulemaking
16effort, certifying the environmental impact report and adopting
17updated regulations to implement and administer its related
18permitting program pursuant to Section 5653 of the Fish and Game
19Code. In certifying the environmental impact report and adopting
20the regulations, the department found, for purposes of the
21California Environmental Quality Act (CEQA), that, among other
22things, significant effects on the environment had to be mitigated
23to the extent feasible consistent with enabling statutory authority
24directing the department to promulgate the updated regulations,
25but the use of vacuum or suction dredging equipment to extract
26minerals would result in various significant and unavoidable
27environmental effects beyond the substantive reach of the
28department in promulgating the regulations. The department
29considers the environmental impact report it certified in March
302012 to be the most comprehensive, technical review of suction
31dredge mining ever prepared in California.

end insert
begin insert

32(d) As to significant and unavoidable effects, in March 2012,
33the Department of Fish and Wildlife determined, for purposes of
34CEQA, that the use of vacuum or suction dredge equipment,
35consistent with the updated regulations implementing Section 5653
36of the Fish and Game Code, could result in effects associated with
37the following:

end insert
begin insert

38(1) The resuspension and discharge of mercury and trace metals.

end insert
begin insert

39(2) Turbidity and total suspended sediment.

end insert
begin insert

P5    1(3) Substantial adverse changes, when considered statewide,
2in the significance of historical and unique archaeological
3resources.

end insert
begin insert

4(4) Riparian habitat of special status passerines.

end insert
begin insert

5(5) Effects on nonfish wildlife species and their habitat.

end insert
begin insert

6(6) Exposure of the public to noise levels in excess of city or
7county standards.

end insert
begin delete

8(d)

end delete

9begin insert(e)end insert Inbegin insert Juneend insert 2012,begin delete the Legislature acted again on suction dredge
10mining by enactingend delete
begin insert Governor Brown signedend insert Senate Bill 1018
11(Chapter 39 of the Statutes of 2012), which eliminated the sunset
12provision from Assembly Bill 120. Senate Bill 1018 also directed
13the department to consult with various agencies and to provide
14recommendations to the Legislature by April 1, 2013, regarding
15statutory changes or authorizations necessary for the department
16to promulgate suction dredge regulations. Those recommendations
17were to include ways to fully mitigate all identified significant
18environmental impacts and a fee structure to cover the department’s
19costs of administering the program.

begin delete

20(e)

end delete

21begin insert(f)end insert On April 1, 2013, the department submitted the required
22report to the Legislature. The begin delete department considers the
23environmental impact report on its proposed suction dredge mining
24regulatory permit program to be the most comprehensive review
25of suction dredge mining ever compiled in California. The report
26identified impacts that the department said could not be mitigated
27within its legal authorities.end delete
begin insert report provides specific
28recommendations for statutory amendments necessary to modernize
29the regulation of suction dredge mining under the Fish and Game
30Code, and reflects the department’s efforts to consult with, and
31includes related additional recommendations from, various other
32state agencies, including the State Water Resources Control Board.
33The State Water Resources Control Board in its related letter
34appended to the department’s report emphasized that the State
35Water Resources Control Board and its sister agencies, the
36regional water quality control boards, are tasked with the
37protection, control, and utilization of all waters of the state and
38may regulate any activity or factor that may affect water quality.end insert

begin delete

39(f)

end delete

P6    1begin insert(g)end insert In January 2015, thebegin delete San Bernardino Superior Court issued
2a tentative ruling that state-issued suction dredge mining permits
3could not be required on federal land. The court noted that, while
4the state clearly has the power to issue suction dredge mining
5permits, the state’s refusal or inability to issue the permits creates
6an obstacle to conforming with federal law.end delete
begin insert California Supreme
7Court granted a petition for review to consider whether the federal
8Mining Act of 1872 (30 U.S.C. Sec. 22 et seq.) preempts Sections
95653 and 5653.1 of the Fish and Game Code with respect to the
10use of vacuum and suction dredging equipment (People v. Rinehart,
11Case No. S222620).end insert

begin delete

9 12(g)

end delete

13begin insert(h)end insert Given the importance of protecting the water supply for all
14Californians from degradation, the need to protect what is left of
15California native cultural sites, and the value of protecting the
16state’s wildlife, it is urgent that the Legislature act immediately to
17clarify the laws regulating suction dredge mining and other related
18forms of small scale motorized gold mining in the state’s streams
19and waterways.

20

SEC. 2.  

Section 5653 of the Fish and Game Code is amended
21to read:

22

5653.  

(a) The use ofbegin delete aend delete vacuum or suction dredge equipment
23by a person in a river, stream, or lake of this state is prohibited,
24except as authorized under a permit issued to that person by the
25department in compliance with the regulations adopted pursuant
26to Section 5653.9. Before a person usesbegin delete aend delete vacuum or suction dredge
27equipment in a river, stream, or lake of this state, that person shall
28submit an applicationbegin insert to the departmentend insert for a permitbegin delete for aend deletebegin insert to use
29theend insert
vacuum or suction dredgebegin delete to the department,end deletebegin insert equipment,end insert
30 specifying the type and size of equipment to be used and other
31information as the department maybegin delete require.end deletebegin insert require pursuant to
32regulations adopted by the department to implement this section.end insert

33(b) (1) The department shall not issue a permit forbegin delete aend deletebegin insert the use ofend insert
34 vacuum or suction dredgebegin insert equipmentend insert until the permit application
35is deemed complete. A complete permit application shall include
36begin delete copies of all required permits, including permits required under
37the Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et
38seq.) and the Water Code, and any other applicable permit required
39to fully mitigate all identified significant environmental impacts
40pursuant to regulations adopted under subdivision (b) of Section
P7    15653.1.end delete
begin insert any other permit required by the department and one of
2the following, as applicable:end insert

begin insert

3(A) A copy of waste discharge requirements or a waiver of waste
4discharge requirements issued by the State Water Resources
5Control Board or a regional water quality control board in
6accordance with Division 7 (commencing with Section 13000) of
7the Water Code.

end insert
begin insert

8(B) A copy of a certification issued by the State Water Resources
9Control Board or a regional water quality control board and a
10permit issued by the United States Army Corps of Engineers in
11accordance with Sections 401 and 404 of the Federal Water
12Pollution Control Act (33 U.S.C. Secs. 1341 and 1344, respectively)
13to use vacuum or suction dredge equipment.

end insert
begin delete

14(2)

end delete

15begin insert(C)end insert If the State Water Resources Control Board or the
16appropriate regional water quality control board determines that
17begin delete no water quality or water rights permitend deletebegin insert waste discharge
18requirements, a waiver of waste discharge requirements, or a
19certification in accordance with Section 1341 of Title 33 of the
20United States Codeend insert
isbegin insert notend insert necessary for thebegin insert applicant toend insert use ofbegin delete aend delete
21 vacuum or suctionbegin delete dredge,end deletebegin insert dredge equipment,end insert a letter stating this
22determination signed by the Executive Director of the State Water
23Resources Control Board, the executive officer of the appropriate
24regional water quality control board, or theirbegin delete designee shall be part
25of the permit application.end delete
begin insert designee.end insert

begin delete

26(3) For the purpose of the Permit Streamlining Act (Chapter 4.5
27(commencing with Section 65920) of Division 1 of Title 7 of the
28Government Code), the department shall not deem the permit
29application complete until the applicant submits all necessary
30permits and any required letters to the department as part of the
31permit application.

end delete

32(c) Under the regulations adopted pursuant to Section 5653.9,
33the department shall designate waters or areas wherein vacuum or
34suctionbegin delete dredgesend deletebegin insert dredge equipmentend insert may be used pursuant to a
35permit, waters or areas closed tobegin delete those dredges,end deletebegin insert the use of that
36equipment,end insert
the maximum size ofbegin delete those dredgesend deletebegin insert the vacuum or
37suction dredge equipmentend insert
that may be used, and the time of year
38whenbegin delete those dredgesend deletebegin insert the equipmentend insert may be used. If the department
39determines, pursuant to the regulations adopted pursuant to Section
405653.9, that the use ofbegin delete aend delete vacuum or suction dredgebegin insert equipmentend insert does
P8    1not cause any significant effects to fish and wildlife, it shall issue
2a permit to the applicant. If a personbegin delete operatesend deletebegin insert uses vacuum or
3suction dredgeend insert
equipment other thanbegin delete thatend deletebegin insert asend insert authorized bybegin delete theend deletebegin insert aend insert
4 permitbegin delete or conducts the operation in any waters or area or at any
5time that is not authorized by the permit, or if any person conducts
6the operation without securing the permit,end delete
begin insert issued by the department
7consistent with regulations implementing this section,end insert
that person
8is guilty of a misdemeanor.

9(d) (1) Except as provided in paragraph (2), the department
10shall issue a permit upon the payment, in the case of a resident, of
11a base fee of twenty-five dollars ($25), as adjusted under Section
12713, when an onsite investigation of the project size is not deemed
13necessary by the department, and a base fee of one hundred thirty
14 dollars ($130), as adjusted under Section 713, when the department
15deems that an onsite investigation is necessary. Except as provided
16in paragraph (2), in the case of a nonresident, the base fee shall be
17one hundred dollars ($100), as adjusted under Section 713, when
18an onsite investigation is not deemed necessary, and a base fee of
19two hundred twenty dollars ($220), as adjusted under Section 713,
20when an onsite investigation is deemed necessary.

21(2) The department may adjust the base fees for a permit
22described in this subdivision to an amount sufficient to cover all
23reasonable costs of the department in regulating suction dredging
24activities.

25(e) It is unlawful to possess a vacuum or suction dredge in areas,
26or in or within 100 yards of waters, that are closed to the use of
27vacuum or suction dredges.

begin insert

28(f) A permit issued by the department under this section shall
29not authorize an activity in violation of other applicable
30requirements, conditions, or prohibitions governing the use of
31vacuum or suction dredge equipment, including those adopted by
32the State Water Resources Control Board or a regional water
33quality control board. The department, the State Water Resources
34Control Board, and the regional water quality control boards shall
35make reasonable efforts to share information among the agencies
36regarding potential violations of requirements, conditions, or
37prohibitions governing the use of vacuum or suction dredge
38equipment.

end insert
begin delete

39(f)

end delete

P9    1begin insert(g)end insert For purposes of this section and Section 5653.1,begin delete a suction
2dredge is equipment used for mining operations that contains any
3of the following:end delete
begin insert the use of vacuum or suction dredge equipment,
4also known as suction dredging, is the use of a mechanized or
5motorized system for removing or assisting in the removal of, or
6the processing of, material from the bed, bank, or channel of a
7river, stream, or lake in order to recover minerals. This section
8and Section 5653.1 do not apply to, prohibit, or otherwise restrict
9nonmotorized recreational mining activities, including panning
10for gold.end insert

begin delete

11(1) A hose that vacuums sediment from the bed or bank of a
12river, stream, or lake.

13(2) A motorized pump.

14(3) A motorized sluice box.

15(4) Related small-scale mechanized mining equipment.

end delete
16

SEC. 3.  

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

begin delete
17

13172.5.  

(a) After the Director of Fish and Wildlife has
18certified to the Secretary of State that all of the events described
19in subdivision (b) of Section 5653.1 of the Fish and Game Code
20have occurred, and after conducting appropriate workshops and
21hearings pursuant to subdivision (b),

end delete
22begin insert

begin insert13172.5.end insert  

end insert
begin insert

(a) For purposes of this section, the use of any
23vacuum or suction dredge equipment, also known as suction
24dredging, is the use of a mechanized or motorized system for
25removing or assisting in the removal of, or the processing of,
26material from the bed, bank, or channel of a river, stream, or lake
27in order to recover minerals. This section does not apply to,
28prohibit, or otherwise restrict nonmotorized recreational mining
29activities, including panning for gold.

end insert

30begin insert(b)end insertbegin insertend insertbegin insertIn order to protect water quality, end insertthe state board or a regional
31board may take one or more of the following actions:

32(1) Adopt waste discharge requirementsbegin insert or a waiver of waste
33discharge requirementsend insert
that, at a minimum, address the water
34quality impacts of each of the following:

35(A) Mercury loading to downstream reaches of surface water
36bodies affected bybegin insert the use of vacuum orend insert suction dredgebegin delete mining.end delete
37begin insert equipment.end insert

38(B) Methylmercury formation in water bodies.

39(C) Bioaccumulation of mercury in aquatic organisms.

40(D) Resuspension of metals.

P10   1(2) Specify certain conditions or areas where the discharge of
2wastebegin insert or other adverse impacts on beneficial uses of the waters of
3the stateend insert
frombegin insert the use of vacuum orend insert suction dredgebegin delete miningend delete
4begin insert equipmentend insert is prohibited, consistent with Section 13243.

5(3) Prohibit any particularbegin delete methods of suction dredge miningend delete
6begin insert use of, or methods of using, vacuum or suction dredge equipment,
7or any portion thereof, for the extraction of mineralsend insert
that the state
8board or a regional board determines generally cause or contribute
9to an exceedance of applicable water quality objectives or
10unreasonably impact beneficial uses.

begin delete

11(b)

end delete

12begin insert(c)end insert (1) Before determining what action to take pursuant to
13subdivisionbegin delete (a),end deletebegin insert (b),end insert the state boardbegin delete or regional boardend delete shall solicit
14stakeholder input by conductingbegin delete at least oneend delete publicbegin delete workshop. If
15the state board is soliciting stakeholder input, the state board shall
16conduct the public workshops in areas of the state where, in 2009,
17a substantial number of residents held a suction dredge mining
18permit issued by the Department of Fish and Wildlife.end delete
begin insert workshops
19in the vicinity of the cities of San Bernardino, Fresno, Sacramento,
20and Redding. A regional board considering independent action
21pursuant to subdivision (b) shall solicit stakeholder input by
22 conducting at least one public workshop in that board’s region.end insert

23 To promote participation in the public workshops, the state board
24or regional board shall proactively reach out to mining groups,
25environmental organizations, and California Native American
26tribes, as defined in Section 21073 of the Public Resources Code.

27(2) Before taking a proposed action pursuant to subdivisionbegin delete (a),end delete
28begin insert (b),end insert the state boardbegin insert or regional boardend insert shall conduct at leastbegin delete twoend delete
29begin insert oneend insert publicbegin delete hearings, and the regional board at least one public
30hearing,end delete
begin insert hearingend insert regarding that proposedbegin delete action.end deletebegin insert action pursuant
31to the Bagley-Keene Open Meeting Act (Article 9 (commencing
32with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title
332 of the Government Code).end insert

34(3) To avoid duplication of efforts between the state board and
35a regional board of a public workshop or public hearing that covers
36the same regional area, the state board and a regional board may
37work in collaboration to share information obtained through the
38publicbegin delete workshopend deletebegin insert workshopsend insert or public hearing.

begin delete

39(c) For purposes of this section, a suction dredge is equipment
40used for mining operations that contains any of the following:

P11   1(1) A hose that vacuums sediment from the bed or bank of a
2river, stream, or lake.

3(2) A motorized pump.

4(3) A motorized sluice box.

5(4) Related small-scale mechanized mining equipment.

end delete
6begin insert

begin insertSEC. 4.end insert  

end insert
begin insert

(a) Except as provided by the changes made by this
7act, the Legislature finds and declares that the regulations
8promulgated by the Department of Fish and Wildlife in 2012 to
9implement and interpret Sections 5653 and 5653.1 of the Fish and
10Game Code were consistent and in compliance with the Fish and
11Game Code, the California Environmental Quality Act (Division
1213 (commencing with Section 21000) of the Public Resources
13Code), and the Administrative Procedure Act (Chapter 3.5
14(commencing with Section 11340) of Part 1 of Division 3 of Title
152 of the Government Code).

end insert
begin insert

16(b) The Legislature also finds and declares that, except for water
17quality, after complying with the Governor’s Executive Order
18B-10-11 regarding tribal consultation and additional consultation
19requirements pursuant to Chapter 532 of the Statutes of 2014, also
20known as Assembly Bill 52 (Gatto), the Department of Fish and
21Wildlife may determine, for purposes of Section 5653.1 of the Fish
22and Game Code, that significant environmental impacts to
23resources other than fish and wildlife resources caused by the use
24of vacuum or suction dredge equipment for the extraction of
25minerals are fully mitigated if a regulation adopted by the
26department to implement and interpret Section 5653 of the Fish
27and Game Code requires compliance with other laws and provides,
28in part, that nothing in a permit or amended permit issued by the
29department relieves the permittee of responsibility to comply with
30all applicable federal, state, or local laws or ordinances.

end insert


O

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