BILL ANALYSIS Ó
SB 637
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Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
SB
637 (Allen) - As Amended July 7, 2015
SENATE VOTE: 22-15
SUBJECT: Suction dredge mining: permits.
SUMMARY: Prohibits the Department of Fish and Wildlife (DFW)
from issuing a permit for suction dredge mining until the
application is complete and includes all required permits;
requires DFW, if the application is complete and includes all
required water quality permits, to issue a suction dredge mining
permit if it determines the use of the suction dredge will not
cause significant effects to fish and wildlife; and, authorizes
the State Water Resources Control Board (Water Board) or
regional water quality control board to adopt waste discharge
requirements that address mercury effects of suction dredge
mining. Specifically, this bill:
1)States legislative findings and declarations regarding the
legislative and legal history of state regulation of suction
dredge mining activities in California, and the need to
clarify laws regulating suction dredge mining in order to
protect California's water supply, native cultural sites, and
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wildlife.
2)Prohibits DFW from issuing a permit for vacuum or suction
dredge mining until the permit application is complete.
Requires that the application include copies of all required
permits, including permits required under the Federal Water
Pollution Control Act, the Water Code, and any other permit
required to fully mitigate all identified significant
environmental impacts.
3)Requires, if the Water Board or regional water quality control
board determines that no water quality or water rights permit
is necessary, that the application include a letter stating
that determination signed by the Executive Director of the
Water Board or regional board.
4)Requires DFW to issue the permit if it determines that use of
a vacuum or suction dredge does not cause any significant
effects to fish and wildlife.
5)Authorizes DFW to adjust the base fees for a suction dredge
permit to cover all reasonable costs of DFW in regulating
suction dredging activities.
6)Defines a suction dredge for these purposes as equipment used
for mining operations that includes any of the following: a
hose that vacuums sediment from the bed or bank of a river,
stream or lake; a motorized pump; a motorized sluice box; or,
related small-scale mechanized mining equipment.
7)Authorizes the Water Board or a regional board, after DFW has
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certified to the Secretary of State that specified events have
occurred, and after conducting workshops and hearings, to take
one or more of the following actions:
a) Adopt waste discharge requirements that, at a
minimum, address the water quality impacts of each of the
following:
i. Mercury loading to downstream reaches of
surface water bodies affected by suction dredge
mining;
ii. Methylmercury formation in water bodies;
iii. Bioaccumulation of mercury in aquatic
organisms;
iv. Resuspension of metals.
b) Specify conditions or areas where the discharge of
waste from suction dredge mining is prohibited;
c) Prohibit any particular methods of suction dredge
mining that the Water Board or regional board determines
cause or contribute to exceeding water quality objectives
or unreasonably impact beneficial uses.
8)Requires the Water Board or regional board, before determining
what action to take under 7) a) above, to solicit stakeholder
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input by conducting at least one public workshop. Requires
the Water Board, if it is soliciting stakeholder input, to
conduct the public workshops in areas of the state where a
substantial number of residents held a suction dredge mining
permit issued by DFW in 2009. Requires the Water Board or
regional board to proactively reach out to mining groups,
environmental organizations, and California Native American
tribes. Requires the Water Board to conduct at least two
public hearings, and the regional board at least one public
hearing, before taking a proposed action. Authorizes the
Water Board and a regional board to work in collaboration to
share information obtained through public workshops or public
hearings, in order to avoid duplication of efforts.
EXISTING LAW:
1)Prohibits the use of any vacuum or suction dredge equipment in
any river, stream, or lake in the state until the director of
the DFW certifies to the Secretary of State that all of the
following have occurred:
a) DFW has completed a court ordered environmental
review of suction dredge mining;
b) New regulations have been adopted by DFW that have
been filed with the Secretary of State, are operative,
and fully mitigate all identified significant
environmental impacts; and
c) A fee structure is in place that fully covers all
costs to DFW related to the administration of permits for
suction dredge mining.
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2)Prohibits the use of any vacuum or suction dredge equipment in
any river, stream, or lake except as authorized under a permit
issued by DFW. Requires the submittal of a permit
application, as specified.
3)Subject to the moratorium preconditions described in 1) above,
requires DFW to designate waters or areas where suction
dredges may be used pursuant to a permit, areas where such use
is prohibited, the maximum size of the equipment, and the time
of year that it may be used. Requires DFW, if it determines
that the operation will not be deleterious to fish, to issue a
permit. Makes operation of a suction dredge without a permit
or in ways other than authorized in a permit, guilty of a
misdemeanor.
FISCAL EFFECT: According to the Senate Appropriations Committee
analysis,
1)A minimum of $450,000 to $600,000 annually for the first two
years from the Waste Discharge Permit Fund (special fund) to
the Water Board to develop the permit.
2)Unknown ongoing costs to the Waste Discharge Permit Fund
(special fund) to the Water Board to administer the permit.
3)Unknown one-time costs likely in the hundreds of thousands of
dollars from the Safe Drinking Water Account to the Water
Board to update other related regulations to allow the
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discharge of mercury.
COMMENTS: This bill seeks to ensure that suction dredge mining
does not adversely affect water quality by empowering the Water
Board to regulate the activity. It also prohibits the DFW from
issuing a suction dredge mining permit to a permit applicant
until a complete application, including copies of any required
Water Board permits, has been received.
1)Author's Statement: The author states that SB 637 seeks to
ensure that the activity of suction dredge mining does not
adversely affect water quality by closing a loophole in
current law and empowering the Water Board to regulate the
activity. The author cites to a 2003 pilot study conducted by
the Water Board which found that suction dredge mining
exacerbates mercury contamination in rivers and streams and
disturbs fish habitat, harming endangered fish species.
According to the author, the mercury levels in fish taken from
California streams where gold mining occurred are generally
above critical toxicity threshold levels and pose human health
risks. Existing law requires the DFW to issue permits for
suction dredge mining if certain conditions are met, including
that new regulations adopted by DFW fully mitigate all
identified significant environmental impacts. However, DFW
does not have authority to mitigate water quality impacts,
which fall under the jurisdiction of the Water Board. In
addition, in January 2015, the San Bernardino Superior Court
ruled that federal law preempts the state's regulation of
suction dredge mining (which includes a current moratorium on
the issuance of permits) on federal land. The court also
commented that the state's laws related to suction dredge
mining needed clarification. SB 637 seeks to address these
issues, including the lack of authority and federal
preemption. By specifying that the Water Board has to
determine if an NPDES permit is required, water quality
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impacts can be addressed, and the authority for such action
stems from the federal Clean Water Act.
The author further notes that the 2003 Water Board study found
that suction dredge mining exacerbates mercury contamination
because the power equipment used to vacuum gravel from
streambeds results in plumes of mercury-laden sediments
downstream. This mobilizes the mercury and makes it more
available for transformation into toxic methyl mercury.
Current law only requires suction dredge miners to get a
permit from the DFW. The DFW, while charged with addressing
all impacts of suction dredge mining, does not have the
authority to address water quality issues. The Water Board
has authority under the federal Clean Water Act to require a
water discharge permit from suction dredge miners, as it is
charged with regulating and permitting discharges into waters
of the state. However, lacking clear statutory language, it
is unclear whether or not the DFW can issue a permit before
the Water Board has acted. SB 637 would close this loophole
by requiring the Water Board to determine if a waste discharge
permit is required, and prohibit the DFW from issuing a
suction dredge permit until any permits required by the Water
Board have been obtained.
2)Background: Suction dredge mining is a process by which power
equipment is used to vacuum up sediment from the streambeds of
rivers, creeks or other water bodies to search for gold. It
is a form of recreational instream gold mining in which a
gasoline powered motor sits atop a pontoon while the miner
dives to the bottom of the river and vacuums up the riverbed.
The material passes through a sluice box where heavier
material such as gold is captured and the remaining material
is discharged back into the river as debris.
Water Quality Concerns : According to a report by the Division
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of Mines and Geology, during the California gold rush gold
miners used about 6.6 thousand tons of mercury to extract over
3.6 thousand tons of gold. About half of the mercury was lost
to the environment in the Sierras, where much of it still
remains. Mercury runoff from these watersheds has also been a
source of mercury contamination in the Delta. Some proponents
of suction dredging have asserted that suction dredgers help
recover mercury from hot spots, however, as discussed above, a
2003 pilot study conducted by the Water Board found that
motorized suction dredging exacerbates rather than alleviates
mercury contamination of rivers and streams. The study
concluded that instream suction dredge mining is an
unacceptable means of recovering mercury lost to the
environment from gold mining because the dredges release too
much mercury back into the environment. Mercury
concentrations in the sediment released by the dredges were
more than ten times higher than that needed to classify it as
a hazardous waste. By "flouring" the mercury and releasing it
back into the stream, dredging may also distribute the mercury
more broadly and contribute to methylation of mercury and
bioaccumulation in fish making it toxic for human consumption.
The DFW in an environmental review conducted to update its
suction dredge mining regulations in 2012 also found that
suction dredge mining caused significant environmental
impacts, including impacts to water quality, cultural
resources, endangered wildlife, and noise. However, the DFW
has indicated that it lacks the legal authority to address
water quality impacts which fall under the jurisdiction of the
Water Board.
Fishery Concerns : Studies conducted by the DFW, the U.S.
Forest Service and others indicate that suction dredging can
also degrade fish habitat, and have a deleterious impact on
native aquatic species. For example, two studies conducted by
the U.S. Forest Service found that dredging may affect the
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reproductive success of fall-spawning fish such as Chinook
salmon, and a study conducted by the DFW found that suction
dredging may adversely affect yellow-legged frogs and native
trout. Declarations filed by the DFW's chief fisheries
biologist and Dr. Peter Moyle of the University of California
at Davis in the 2005 Karuk lawsuit cited to numerous other
scientific peer-reviewed studies on the effects of suction
dredging on native aquatic species. Dr. Moyle in his
declaration also explained that "suction dredging represents a
chronic disturbance of natural habitats that are already
likely to be stressed by other factors and can therefore have
a negative impact on fish?suction dredging through a
combination of disturbance of resident fishes, alteration of
substrates, and indirect effects of heavy human use of small
areas, especially thermal refugia, will further contribute to
the decline of the fishes."
Legislative, regulatory and legal history : The issue of
suction dredge mining and its impacts has been the subject of
legislative, regulatory and legal actions in California since
2005. In 2005, the Karuk tribe filed the initial lawsuit that
is now part of an 8-case coordinated action in San Bernardino
County Superior Court, with a related action currently pending
before the California Supreme Court. The 2005 law suit
brought by the Karuk tribe challenged the DFW's suction dredge
mining regulations which were in effect at the time on the
grounds that they did not protect endangered fish species. A
court order was entered ordering DFW to conduct a new
environmental review and update its regulations. The DFW did
not complete the review and regulatory update within the time
frame required by the court, and in 2009 another court order
was entered prohibiting the DFW from issuing suction dredge
mining permits until the environmental review and updated
rulemaking were completed. Also in 2009, the Legislature
passed and the Governor signed into law legislation placing a
statewide moratorium on suction dredge mining until all of the
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following occurs:
a) DFW completes a court ordered environmental review of
suction dredge mining;
b) New regulations have been adopted by DFW that have been
filed with the Secretary of State, are operative, and fully
mitigate all identified significant environmental impacts; and
c) A fee structure is in place that fully covers all costs
to DFW related to the administration of permits for suction
dredge mining.
The environmental review and rulemaking were finalized by DFW
in 2012. The DFW found that suction dredge mining was causing
significant environmental impacts to water quality, cultural
resources, endangered wildlife, and noise, but that it lacked
authority to mitigate for all the harms, particularly with
regard to water quality. Therefore, the moratorium remained
in effect.
Litigation challenging the DFW's 2012 regulations was filed by
suction dredge miners, and a separate lawsuit challenging the
regulations was also filed by a coalition of tribal,
environmental and fishing interests. Both actions, as well as
six other cases, are now coordinated before the San Bernardino
Superior Court under a single case titled: In Re Suction
Dredge Cases. A trial date is set for January 20, 2016. In
the interim, the trial court issued an order granting summary
adjudication on the preemption cause of action, finding that
the moratorium was preempted by the 1874 federal Surface
Mining Act, based on the appellate court's decision in People
v. Rinehart (2014) 230 Cal.App.4th 419, a separate but related
action brought by an individual miner who was cited for
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suction dredge mining in violation of the moratorium. The
miner's sole defense was that the moratorium is preempted by
federal mining laws. The appellate court in People v.
Rinehart held that the moratorium is preempted, however, that
decision was appealed and is currently pending before the
California Supreme Court, where briefing has concluded but
oral argument is not yet scheduled.
Meanwhile, the San Bernardino trial court in the coordinated
In Re Suction Dredge Cases declined to issue an injunction
sought by the miners that would have allowed them to resume
mining while that litigation proceeds, due to the pending
review of the preemption issue by the California Supreme
Court. Thus, the suction dredge mining moratorium is
currently still in effect pending the outcome of the
litigation.
3)Prior and related legislation: The issue of state regulation
of suction dredge mining has a fairly extensive history that
includes the following bills:
AB 1032 (Wolk) of 2007 proposed seasonal limits on suction
dredge mining in streams in northern California and the Sierra
identified as habitat for salmon, steelhead and trout, pending
completion of a state environmental impact report. AB 1032
also proposed a fee schedule for suction dredge permits. AB
1032 was vetoed by Governor Schwarzenneger, who cited the
partial nature of the restrictions and the importance of
environmental review to inform such decisions.
The following session, Governor Schwarzenegger signed SB 670
(Wiggins), Chapter 62, Statutes of 2009, which placed a
temporary moratorium on suction dredge mining until after
completion of a court ordered environmental review by the DFW.
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AB 120 (Budget Committee), Chapter 133, Statutes of 2011, a
resources budget trailer bill, extended the prohibition on
suction dredge mining until 2016 and required DFW to create a
fee structure to cover all administrative costs of the permit
program.
SB 1018 (Committee on Budget and Fiscal Review), Chapter 39,
Statutes of 2012, also a budget trailer bill, eliminated the
2016 sunset on the moratorium on issuance of suction dredge
permits. SB 1018 also directed DFW to consult with various
agencies and 1) make recommendations to the Legislature by
2013 regarding statutory changes or authorizations necessary
for DFW to promulgate regulations that would fully mitigate
all identified significant environmental impacts from section
dredge mining, and 2) create a fee structure that would fully
cover DFW's costs to administer a suction dredge mining permit
program.
4)Supporting Arguments: Supporters note that the permit program
developed by DFW, and the associated environmental analysis,
found that suction dredge mining activities create significant
and unavoidable impacts to water quality and cultural
resources that DFW lacks the authority to mitigate. Current
law places a moratorium on the issuance of permits unless and
until DFW is able to fully mitigate all significant
environmental impacts, something they are not able to do
today. However, the moratorium may be lifted as a result of
pending litigation. Supporters note that suction dredge
mining has been shown to increase levels of highly toxic
methyl mercury in California waters, and to negatively affect
fish species such as commercially valuable runs of Chinook
salmon and Coho salmon that are listed under the Endangered
Species Act. Supporters further emphasize that while they
don't oppose responsible mining, suction dredge mining should
not be allowed to occur at the expense of clean water,
cultural resources, and fisheries. Some supporters also note
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that the impacts to water quality caused by suction dredge
mining are especially alarming in light of the ongoing drought
and efforts to conserve ever depleting water sources.
5)Opposition Arguments: Opponents assert that the activities
of suction dredge mining do not result in a waste discharge to
waters of the state and therefore are not activities that
should be subject to waste discharge permit requirements under
the Clean Water Act. They further assert that suction dredge
miners help to improve water quality by removing mercury,
lead, and other waste and trash from streambeds. Some
opponents also assert that suction dredge mining is beneficial
to fish, by decompacting gravel beds and creating depressions
that act as cold water refugia for fish, and that passage of
this bill would have negative economic impacts, particularly
on small scale suction dredge miners.
REGISTERED SUPPORT / OPPOSITION:
Support
Sierra Fund (sponsor)
California Trout
California Coastkeeper Alliance
California Nations Indian Gaming Association
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California Wilderness Coalition
Center for Biological Diversity
Clean Water Action
East Bay Municipal Utility District
Environmental Protection Information Center (EPIC)
Friends of the Eel River
Friends of the River
Karuk Tribe
Klamath Riverkeeper
North Fork American River Alliance
Pacific Coast Federation of Fishermen's Associations
Sierra Club California
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Sierra Nevada Alliance
South Yuba River Citizens League
Trout Unlimited
Tule River Indian Tribe of California
Yurok Tribe
Opposition
Miners Assembled
Western Mining Alliance
Several individuals
Analysis Prepared by:Diane Colborn / W., P., & W. / (916)
319-2096
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