Amended in Assembly September 10, 2015

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. 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.

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, after prescribed public hearings and workshops, as specified, authorize the state board or a regional board to adopt waste discharge requirements or a waiver of waste discharge requirements that address water quality impacts of specified issues, specify certain 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 anybegin delete protionend deletebegin insert portionend insert thereof, for the extraction of minerals, as specified.

The bill would specify that 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.

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) In August 2009, Governor Arnold Schwarzenegger signed
4Senate Bill 670 (Chapter 62 of the Statutes of 2009) which
5established a temporary ban on the use of vacuum or suction dredge
6equipment until after the Department of Fish and Wildlife
7completed a court-ordered environmental review of its related
8permitting program and existing regulations.

9(b) In July 2011, Governor Schwarzenegger signed Assembly
10Bill 120 (Chapter 133 of the Statutes of 2011), extending the
11prohibition on the use of vacuum or suction dredge equipment to
12June 2016 or, if earlier, until the Director of Fish and Wildlife
13certified five conditions to the Secretary of State, including
14completion of the court-ordered environmental review, the adoption
15of and operation of any updated regulations implementing Section
165653 of the Fish and Game Code, full mitigation of all identified
17significant environmental effects, and the existence of a permit
18fee structure that would fully cover all costs incurred by the
19department to administer its permitting program.

20(c) In March 2012, the Department of Fish and Wildlife
21completed the court-ordered environmental review and rulemaking
22effort, certifying the environmental impact report and adopting
23updated regulations to implement and administer its related
24permitting program pursuant to Section 5653 of the Fish and Game
P4    1Code. In certifying the environmental impact report and adopting
2the regulations, the department found, for purposes of the
3California Environmental Quality Act (CEQA), that, among other
4things, significant effects on the environment had to be mitigated
5to the extent feasible consistent with enabling statutory authority
6directing the department to promulgate the updated regulations,
7but the use of vacuum or suction dredging equipment to extract
8minerals would result in various significant and unavoidable
9environmental effects beyond the substantive reach of the
10department in promulgating the regulations. The department
11considers the environmental impact report it certified in March
122012 to be the most comprehensive, technical review of suction
13dredge mining ever prepared in California.

14(d) As to significant and unavoidable effects, in March 2012,
15the Department of Fish and Wildlife determined, for purposes of
16CEQA, that the use of vacuum or suction dredge equipment,
17consistent with the updated regulations implementing Section 5653
18of the Fish and Game Code, could result in effects associated with
19the following:

20(1) The resuspension and discharge of mercury and trace metals.

21(2) Turbidity and total suspended sediment.

22(3) Substantial adverse changes, when considered statewide, in
23the significance of historical and unique archaeological resources.

24(4) Riparian habitat of special status passerines.

25(5) Effects on nonfish wildlife species and their habitat.

26(6) Exposure of the public to noise levels in excess of city or
27county standards.

28(e) In June 2012, Governor Brown signed Senate Bill 1018
29(Chapter 39 of the Statutes of 2012), which eliminated the sunset
30provision from Assembly Bill 120. Senate Bill 1018 also directed
31the department to consult with various agencies and to provide
32recommendations to the Legislature by April 1, 2013, regarding
33statutory changes or authorizations necessary for the department
34to promulgate suction dredge regulations. Those recommendations
35were to include ways to fully mitigate all identified significant
36environmental impacts and a fee structure to cover the department’s
37costs of administering the program.

38(f) On April 1, 2013, the department submitted the required
39report to the Legislature. The report provides specific
40recommendations for statutory amendments necessary to modernize
P5    1the regulation of suction dredge mining under the Fish and Game
2Code, and reflects the department’s efforts to consult with, and
3includes related additional recommendations from, various other
4state agencies, including the State Water Resources Control Board.
5The State Water Resources Control Board in its related letter
6appended to the department’s report emphasized that the State
7Water Resources Control Board and its sister agencies, the regional
8water quality control boards, are tasked with the protection, control,
9and utilization of all waters of the state and may regulate any
10activity or factor that may affect water quality.

11(g) In January 2015, the California Supreme Court granted a
12petition for review to consider whether the federal Mining Act of
131872 (30 U.S.C. Sec. 22 et seq.) preempts Sections 5653 and
145653.1 of the Fish and Game Code with respect to the use of
15vacuum and suction dredging equipment (People v. Rinehart, Case
16No. S222620).

17(h) Given the importance of protecting the water supply for all
18Californians from degradation, the need to protect what is left of
19California native cultural sites, and the value of protecting the
20state’s wildlife, it is urgent that the Legislature act immediately to
21clarify the laws regulating suction dredge mining and other related
22forms of small scale motorized gold mining in the state’s streams
23and waterways.

24

SEC. 2.  

Section 5653 of the Fish and Game Code is amended
25to read:

26

5653.  

(a) The use of vacuum or suction dredge equipment by
27a person in a river, stream, or lake of this state is prohibited, except
28as authorized under a permit issued to that person by the
29department in compliance with the regulations adopted pursuant
30to Section 5653.9. Before a person uses vacuum or suction dredge
31equipment in a river, stream, or lake of this state, that person shall
32submit an application to the department for a permit to use the
33vacuum or suction dredge equipment, specifying the type and size
34of equipment to be used and other information as the department
35may require pursuant to regulations adopted by the department to
36implement this section.

37(b) (1) The department shall not issue a permit for the use of
38 vacuum or suction dredge equipment until the permit application
39is deemed complete. A complete permit application shall include
P6    1 any other permit required by the department and one of the
2following, as applicable:

3(A) A copy of waste discharge requirements or a waiver of
4waste discharge 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.

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,
13respectively) to use vacuum or suction dredge equipment.

14(C) If the State Water Resources Control Board or the
15appropriate regional water quality control board determines that
16waste discharge requirements, a waiver of waste discharge
17requirements, or a certification in accordance with Section 1341
18of Title 33 of the United States Code is not necessary for the
19applicant to use of vacuum or suction dredge equipment, a letter
20stating this determination signed by the Executive Director of the
21State Water Resources Control Board, the executive officer of the
22appropriate regional water quality control board, or their designee.

23(c) Under the regulations adopted pursuant to Section 5653.9,
24the department shall designate waters or areas wherein vacuum or
25suction dredge equipment may be used pursuant to a permit, waters
26or areas closed to the use of that equipment, the maximum size of
27the vacuum or suction dredge equipment that may be used, and
28the time of year when the equipment may be used. If the
29department determines, pursuant to the regulations adopted
30pursuant to Section 5653.9, that the use of vacuum or suction
31dredge equipment does not cause any significant effects to fish
32and wildlife, it shall issue a permit to the applicant. If a person
33uses vacuum or suction dredge equipment other than as authorized
34by a permit issued by the department consistent with regulations
35implementing this section, that person is guilty of a misdemeanor.

36(d) (1) Except as provided in paragraph (2), the department
37shall issue a permit upon the payment, in the case of a resident, of
38a base fee of twenty-five dollars ($25), as adjusted under Section
39713, when an onsite investigation of the project size is not deemed
40necessary by the department, and a base fee of one hundred thirty
P7    1 dollars ($130), as adjusted under Section 713, when the department
2deems that an onsite investigation is necessary. Except as provided
3in paragraph (2), in the case of a nonresident, the base fee shall be
4one hundred dollars ($100), as adjusted under Section 713, when
5an onsite investigation is not deemed necessary, and a base fee of
6two hundred twenty dollars ($220), as adjusted under Section 713,
7when an onsite investigation is deemed necessary.

8(2) The department may adjust the base fees for a permit
9described in this subdivision to an amount sufficient to cover all
10reasonable costs of the department in regulating suction dredging
11activities.

12(e) It is unlawful to possess a vacuum or suction dredge in areas,
13or in or within 100 yards of waters, that are closed to the use of
14vacuum or suction dredges.

15(f) A permit issued by the department under this section shall
16not authorize an activity in violation of other applicable
17requirements, conditions, or prohibitions governing the use of
18vacuum or suction dredge equipment, including those adopted by
19the State Water Resources Control Board or a regional water
20quality control board. The department, the State Water Resources
21Control Board, and the regional water quality control boards shall
22make reasonable efforts to share information among the agencies
23regarding potential violations of requirements, conditions, or
24prohibitions governing the use of vacuum or suction dredge
25equipment.

26(g) For purposes of this section and Section 5653.1, the use of
27vacuum or suction dredge equipment, also known as suction
28dredging, is the use of a mechanized or motorized system for
29removing or assisting in the removal of, or the processing of,
30material from the bed, bank, or channel of a river, stream, or lake
31in order to recover minerals. This section and Section 5653.1 do
32not apply to, prohibit, or otherwise restrict nonmotorized
33recreational mining activities, including panning for gold.

34

SEC. 3.  

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

35

13172.5.  

(a) For purposes of this section, the use of any
36vacuum or suction dredge equipment, also known as suction
37dredging, is the use of a mechanized or motorized system for
38removing or assisting in the removal of, or the processing of,
39material from the bed, bank, or channel of a river, stream, or lake
40in order to recover minerals. This section does not apply to,
P8    1prohibit, or otherwise restrict nonmotorized recreational mining
2activities, including panning for gold.

3(b) In order to protect water quality, the state board or a regional
4board may take one or more of the following actions:

5(1) Adopt waste discharge requirements or a waiver of waste
6discharge requirements that, at a minimum, address the water
7quality impacts of each of the following:

8(A) Mercury loading to downstream reaches of surface water
9bodies affected by the use of vacuum or suction dredge equipment.

10(B) Methylmercury formation in water bodies.

11(C) Bioaccumulation of mercury in aquatic organisms.

12(D) Resuspension of metals.

13(2) Specify certain conditions or areas where the discharge of
14waste or other adverse impacts on beneficial uses of the waters of
15the state from the use of vacuum or suction dredge equipment is
16 prohibited, consistent with Section 13243.

17(3) Prohibit any particular use of, or methods of using, vacuum
18or suction dredge equipment, or any portion thereof, for the
19extraction of minerals that the state board or a regional board
20determines generally cause or contribute to an exceedance of
21applicable water quality objectives or unreasonably impact
22beneficial uses.

23(c) (1) Before determining what action to take pursuant to
24subdivision (b), the state board shall solicit stakeholder input by
25conducting public workshops in the vicinity of the cities of San
26Bernardino, Fresno, Sacramento, and Redding. A regional board
27considering independent action pursuant to subdivision (b) shall
28solicit stakeholder input by conducting at least one public workshop
29in that board’s region. To promote participation in the public
30workshops, the state board or regional board shall proactively
31reach out to mining groups, environmental organizations, and
32California Native American tribes, as defined in Section 21073 of
33the Public Resources Code.

34(2) Before taking a proposed action pursuant to subdivision (b),
35the state board or regional board shall conduct at least one public
36hearing regarding that proposed action pursuant to the
37Bagley-Keene Open Meeting Act (Article 9 (commencing with
38Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of
39the Government Code).

P9    1(3) To avoid duplication of efforts between the state board and
2a regional board of a public workshop or public hearing that covers
3the same regional area, the state board and a regional board may
4work in collaboration to share information obtained through the
5public workshops or public hearing.

begin delete
6

SEC. 4.  

(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).

16(b) 

end delete
17begin insert

begin insertSEC. 4.end insert  

end insert

The Legislature also finds and declares that, except
18for water quality, after complying with the Governor’s Executive
19Order B-10-11 regarding tribal consultation and additional
20consultation requirements pursuant to Chapter 532 of the Statutes
21of 2014, also known as Assembly Bill 52 (Gatto), the Department
22of Fish and Wildlife may determine, for purposes of Section 5653.1
23of the Fish and Game Code, that significant environmental impacts
24to resources other than fish and wildlife resources caused by the
25use of vacuum or suction dredge equipment for the extraction of
26minerals are fully mitigated if a regulation adopted by the
27department to implement and interpret Section 5653 of the Fish
28and Game Code requires compliance with other laws and provides,
29in part, that nothing in a permit or amended permit issued by the
30department relieves the permittee of responsibility to comply with
31all applicable federal, state, or local laws or ordinances.



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