BILL ANALYSIS Ó
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: SB 637 Hearing Date: April 14,
2015
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|Author: |Allen | | |
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|Version: |February 27, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|William Craven |
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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
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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
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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.
PROPOSED 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:
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ÏMercury loading to downstream reaches of rivers affected by
suction mine dredging;
ÏMethylmercury formation in water bodies; and
ÏBioaccumulation 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
None received.
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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.
COMMENTS
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
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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:
Ï Clarify that DFW authority extends to fish and other wildlife;
Ï Clarify that DFW has authority to develop regulations to fully
recover all program costs as recommended in SB 1018.
Ï 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
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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
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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.
SUGGESTED AMENDMENTS
AMENDMENT 1
Amend FGC 5653 to delete the existing "deleterious to fish"
and add "does not cause any significant effects to fish and
wildlife."
AMENDMENT 2
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.
AMENDMENT 3
Amend FGC 5653(c) to provide DFW with explicit authority to
set suction dredge mining fees by regulation to fully cover
all program costs.
SUPPORT
Central Sierra Environmental Resource Center
Clean Water Action
Defenders of Wildlife
Karuk Tribe
Sierra Nevada Alliance
The Sierra Fund
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OPPOSITION
1 Individual
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