BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 637
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|Author: |Allen |
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|Version: |4/22/2015 |Hearing |4/29/2015 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Rachel Machi Wagoner |
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SUBJECT: Water quality: suction dredge mining: permits
ANALYSIS:
Existing law:
1. Authorizes the State Water Resources Control Board
(SWRCB) and the California regional water quality control
boards (regional board) to prescribe waste discharge
requirements in accordance with the federal Clean Water Act
and the Porter-Cologne Water Quality Control Act
(Porter-Cologne).
2. Under Porter-Cologne,
A. Requires a waste discharger to file certain
information with the appropriate regional board and to
pay an annual fee.
B. 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.
3. Prohibits the use of any vacuum or suction dredge
equipment by any person in any river, stream, or lake of
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this state without a permit issued by the Department of Fish
and Wildlife (DFW).
4. Requires the DFW 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.
This bill:
1. Requires by July 1, 2017, SWRCB to establish a permitting
process for suction dredge mining and related mining
activities in rivers and streams in the state, consistent
with requirements of Porter-Cologne.
2. Requires 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.
3. Provides that SWRCB 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.
4. Prohibits these provisions from affecting any other law,
including the California Environmental Quality Act (CEQA)
and specified provisions relating to streambed alteration
requirements.
5. Requires DFW to issue a permit if the department
determines that the use does not cause any significant
effects on fish and wildlife (rather than deleterious to
just fish)
6. Authorize DFW to adjust the specified fee to an amount
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sufficient to cover all reasonable costs of the department
in regulating suction dredging activities.
7. Specifies that a suction dredge contains any of the
following:
a. A hose that vacuums sediment from a river,
stream, or lake
b. A motorized pump
c. A motorized sluice box
Background
1. Suction Dredging in California.
According to the 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 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.
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.
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.
In 2009, the Governor signed SB 670 (Wiggins), Chapter 62,
Statutes of 2009, which established a temporary ban on
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suction mining until after the DFG environmental review was
completed.
The DFG draft regulations and a draft environmental impact
report were issued in February, 2011.
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.
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 DFW to consult with various agencies,
and to provide recommendations to the Legislature by April
1, 2013, regarding statutory changes or authorizations
necessary for DFW to promulgate regulations to implement
Fish and Game Code §5653. Those regulations were intended
to fully mitigate all identified significant environmental
effects and include a fee structure that will fully cover
DFW costs to administer its related permitting program.
(Fish & Game Code §5653.1 (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.
2. Actions in the Courts. Two Cases Deserve Mention:
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A. 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?
B. 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.
3. Suction Dredging and Water Quality.
The water quality effects of suction mining were identified
by SWRCB in its 3/11/13 letter to DFW.
SWRCB 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
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as copper, lead, zinc, cadmium, chromium, and arsenic.
The SWRCB 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."
The letter states that, "based on the water quality impacts
of recreational
suction dredging, we recommend that the existing moratorium
be continued
indefinitely, or that this activity be permanently
prohibited. Given the
current scientific understanding of this activity's impacts,
this is the only and the most cost-effective method to fully
mitigate all significant water quality impacts?.The
resuspension and discharge of mercury is a potent neurotoxin
that is harmful to both humans and wildlife. Mercury builds
up in the bodies of fish that live in waters with even small
amounts of mercury; and in the bodies of humans who eat
contaminated fish. Because much of our state's in-stream
mercury is a result of historic gold mining activities,
recreational suction dredging activities specifically target
these locations and resuspend mercury from many known and
unknown 'hotspots'."
Comments
1. Purpose of Bill.
According to the author, in January of 2015, the San
Bernardino Superior Court ruled that federal law preempted
the State's regulations of suction dredge mining on federal
land. The court also commented that the State's laws related
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to suction dredge mining needed clarification. Budget
language in 2011 and 2012 extended the 2009 moratorium on
suction dredging until the Department of Fish and Wildlife
established new regulation that "fully mitigate all
identified significant environmental impacts." However,
California law currently only requires suction dredge miners
to get a permit from the Department of Fish and Wildlife.
Yet, it is SWRCB who administers the Federal Clean Water Act
and is charged with regulating and permitting dischargers of
pollutants into California's waterways. SB 637 closes this
loophole; ensuring suction dredge mining activity conforms
to state and federal protections.
The author states that SB 637 requires SWRCB to regulate
suction dredge mining activities to ensure that if suction
dredging is permitted, it complies with water protection
standards. The regulatory process would address mercury
loading in rivers and streams, methyl mercury formations in
water bodies, and bioaccumulation of mercury in aquatic
organisms. The Board could also adopt regulations that
prohibit suction dredge mining if it finds that prohibition
is necessary to protect water quality. The bill will also
set a fine amount for violations of the adopted regulation.
The author states that a 2003 study conducted by the State
Water Resources Control Board found that, in an effort to
extract gold, suction dredge mining exacerbates mercury
contamination of rivers and streams because the power
equipment used to vacuum gravel from the streambeds results
in plumes of mercury-laden sediments downstream. According
to the United States Geological Survey, suction dredge
miners mobilize and change toxic metals such as mercury that
are currently buried under rocks and mud in our rivers.
This action makes mercury more available for transformation
into toxic methyl mercury. The Department of Fish and
Wildlife, while charged with addressing all the impacts of
suction dredge mining, does not have the authority or
expertise to deal with these water quality issues.
The SWRCB has authority under the Federal Clean Water Act to
permit the discharge from suction dredge miners, but lacking
clear statutory direction, it is unclear whether or not DFW
can issue a permit before SWRCB has acted. Once they issue
their permit, the author is concerned that SWRCB would be
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left trying to enforce the Clean Water Act in the dark.
2. Amendments needed.
A. As this bill intends to provide clear statutory
direction requiring an SWRCB permit be obtained prior
to a DFW permit, an amendment should be made to tie the
two statutes together and add language to the Fish and
Game Code requiring an SWRCB permit as a criteria of
obtaining a DFW permit.
B. The bill requires SWRCB to draft regulations to
establish a permitting process for suction dredge
mining and related mining activities in rivers and
streams in the state, consistent with requirements of
Porter-Cologne. As SWRCB already has authority to
regulate discharges under both federal and state law an
additional regulatory process is unnecessary to
establish the permitting process as specified in this
bill. The bill should be amended to utilize SWRCB
existing processes and by doing so utilize SWRCB's
existing enforcement and penalty authority.
SOURCE: The Sierra Fund
SUPPORT:
Clean Water Action
California Wilderness Coalition
Center for Biological Diversity
Defenders of Wildlife
Friends of the River
Karuk Tribe
Sierra Club California
Sierra Nevada Alliance
South Yuba River Citizens League
The Sierra Fund
OPPOSITION:
American Mining Rights Association
East Bay Prospectors
Gemstone Equipment Co., Inc.
Western Mining Alliance
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75 Individuals
ARGUMENTS IN
SUPPORT:
Clean Water Action supports the bill in order to enable SWRCB 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:
The Western Mining Alliance asserts that while they are in favor
of water quality, the bill as written "has the potential to
regulate out of existence the very activities which remove toxic
metals from the waterways."
The alliance's letter goes on to request that the bill be amended
"to encourage the removal of pollutants by suction dredgers while
still maintaining water quality."
According to the Western Mining Alliance, "the issue of mercury
in the alpine streams has been well studied and the conclusions
don't support a linkage between suction dredges and increased
pollutant levels."
The letter states that "based upon data received from the US
Geological Survey, methyl mercury level in biota have increased
in gold mining rivers since the suction dredging ban. Gold
dredges were removing mercury, not adding it."
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DOUBLE REFERRAL:
This measure was heard in Senate Natural Resources and Water
Committee on April 14, 2015, and passed out of committee with a
vote of 6-1.
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