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.


                                           
                                      -- END --