BILL ANALYSIS Ó SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: SB 637 ----------------------------------------------------------------- |Author: |Allen | ----------------------------------------------------------------- |-----------+-----------------------+-------------+----------------| |Version: |4/22/2015 |Hearing |4/29/2015 | | | |Date: | | |-----------+-----------------------+-------------+----------------| |Urgency: |No |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Rachel Machi Wagoner | | | | ----------------------------------------------------------------- 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 SB 637 (Allen) Page 2 of ? 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 SB 637 (Allen) Page 3 of ? 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 SB 637 (Allen) Page 4 of ? 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: SB 637 (Allen) Page 5 of ? 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 SB 637 (Allen) Page 6 of ? 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 SB 637 (Allen) Page 7 of ? 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 SB 637 (Allen) Page 8 of ? 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 SB 637 (Allen) Page 9 of ? 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." SB 637 (Allen) Page 10 of ? 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. -- END --