BILL ANALYSIS Ó
SB 637
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Date of Hearing: September 9, 2015
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Das Williams, Chair
SB
637 (Allen) - As Amended September 4, 2015
SENATE VOTE: 22-15
SUBJECT: Suction dredge mining: permits.
SUMMARY: Authorizes the State Water Resources Control Board
(SWRCB) or regional water quality control board (regional board)
to adopt waste discharge requirements that address water quality
effects of suction dredge mining, and 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.
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:
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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.
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.
THIS BILL:
1)Prohibits DFW from issuing a permit for vacuum or suction
dredge mining until the permit application is complete.
Requires that the application include any other permit
required by the DFW and one of the following:
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a) A copy of waste discharge requirements or a waiver
of waste discharge requirements issued by the SWRCB or a
regional board,
b) A copy of a certification issued by SWRCB or a
regional board and a permit issued by the U.S. Army Corps
of Engineers to use vacuum or suction dredge equipment:
or,
c) If the SWRCB or a regional board determines that
waste discharge requirements, a waiver of waste discharge
requirements, or a certification as specified in a) or b)
above, are not necessary, a letter stating that
determination signed by the Executive Director of the
SWRCB or appropriate regional board.
2)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.
3)Authorizes DFW to adjust the base fees for a suction dredge
permit to cover all reasonable costs of DFW in regulating
suction dredging activities.
4)Provides that a permit issued by DFW for suction dredge mining
shall not authorize any activity in violation of any other
applicable requirements, conditions, or prohibitions governing
the use of suction dredge equipment, including those adopted
by the SWRCB or a regional board.
5)Authorizes the SWRCB or a regional board, in order to protect
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water quality, to do one or more of the following: a) Adopt
waste discharge requirements or a waiver of waste discharge
requirements that, at a minimum, address the water quality
impacts of mercury loading to downstream reaches of surface
water bodies affected by suction dredging, methylmercury
formation in water bodies, bioaccumulation of mercury in
aquatic organisms, and resuspension of metals; b) Specify
conditions or areas where the discharge of waste or other
adverse impacts on the beneficial uses of the waters of the
state from suction dredge mining is prohibited; and c)
Prohibit any particular methods of suction dredge mining that
exceed water quality objectives or unreasonably impact
beneficial uses.
6)States findings and declarations that, except as provided by
the changes made by this bill, regulations promulgated by the
DFW in 2012 regarding suction dredge mining are consistent and
in compliance with the Fish and Game Code, the California
Environmental Quality Act (CEQA), and the Administrative
Procedures Act.
7)State additional findings and declarations that, except for
water quality, and after complying with tribal consultation
requirements, DFW may determine that significant environmental
impacts to other than fish and wildlife resources caused by
suction dredge mining are fully mitigated if a regulation
adopted by DFW to implement Fish and Game Code Section 5653
requires compliance with other laws and provides that nothing
in any permit issued by DFW for suction dredge mining relieves
the permittee of responsibility to comply with all applicable
laws.
FISCAL EFFECT: According to the Assembly Appropriations
Committee analysis:
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1)Increased fee authority for DFW to cover all reasonable costs
of regulating suction dredge mining activities. Although DFW
is not presently issuing section dredging permits, the current
fee levels are as follows: Suction Dredge Permit - $50.75
(resident), $200 (nonresident); Suction Dredge Permit
Investigation - $260.50 (resident), $440.25 (nonresident).
Currently, DFW may adjust the fees based on changes in the
Implicit Price Deflator for State and Local Governments. This
bill, instead, allows DFW to adjust fees based on reasonable
costs.
2)Increased costs of approximately $420,000 annually for two
years for the SWRCB to develop water quality permit conditions
for suction dredge mining (Waste Discharge Permit Fund).
3)Absorbable costs for regional SWRCB to administer the permits.
COMMENTS:
1)Background. This bill seeks to ensure that suction dredge
mining does not adversely affect water quality by empowering
the SWRCB to regulate the activity. It also prohibits the DFW
from issuing a suction dredge mining permit until a complete
application, including copies of any required SWRCB permits,
has been received.
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 sediment from 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.
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Studies have found that suction dredge mining can exacerbate
mercury contamination in rivers and streams and also disturb
fish habitat, harming endangered fish species. 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.
DFW, in an environmental review conducted to update its
suction dredge mining regulations in 2012, found that suction
dredge mining caused significant environmental impacts,
including impacts to water quality, cultural resources,
endangered wildlife, and noise. However, DFW indicated that
it lacks the legal authority to address water quality impacts
that fall under the jurisdiction of SWRCB. Under current law
there is a moratorium on the issuance of suction dredge
permits until DFW determines that all identified significant
environmental impacts have been fully mitigated. As a result,
the moratorium is still in effect, but is currently being
challenged in court. The SWRCB has authority under the
federal Clean Water Act to require a waste discharge permit
from dischargers, as it is charged with regulating and
permitting discharges into waters of the state, but current
state law only expressly requires a permit from DFW for
suction dredge mining. This bill addresses this gap by
requiring SWRCB to determine if a waste discharge permit is
required, and prohibits DFW from issuing a suction dredge
permit until any permits required by SWRCB have been obtained.
2)Litigation. 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 and DFW has been named in no less
than 15 civil actions related to suction dredging since then.
The initial lawsuit challenged DFW's regulations on suction
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dredge mining that were in effect at that time, and led to a
court order requiring DFW to conduct an environmental review
and update their regulations, an action which was finally
completed in 2012.
Seven lawsuits have been coordinated into a single proceeding
in San Bernardino County Superior Court and there is a related
action dealing with preemption that is currently pending
before the California Supreme Court. Litigation challenging
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. The 7-case coordinated action before the San
Bernardino Superior Court deals with whether DFW's 2012
regulations comply with Fish and Game Code, CEQA, and the
Administrative Procedure Act. On May 5, 2015, the San
Bernardino Superior Court, following an earlier ruling in
January, issued an order finding the suction dredge moratorium
was preempted by federal mining law. This ruling has put on
hold resolving whether DFW's 2012 regulations comply with Fish
and Game Code, CEQA, and the Administrative Procedure Act
while the preemption issue is settled. The moratorium is
still in effect pending the outcome of the litigation.
The September 4th amendments to SB 637 declare that DFW's 2012
regulations are consistent with Fish and Game Code, CEQA, and
the Administrative Procedure Act, which would likely affect
pending litigation in the San Bernardino Superior Court. This
could be interpreted as the Legislature weighing in on pending
litigation, including whether environmental impacts where
properly identified and addressed through CEQA. This
legislative finding could set a bad precedent of parties going
to the Legislature to settle legal issues surrounding
regulations. The author and committee may wish to consider
amending the bill to strike the legislative finding declaring
that DFW's 2012 regulations are consistent with Fish and Game
Code, CEQA, and the Administrative Procedure Act.
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REGISTERED SUPPORT / OPPOSITION:
Support
None on file
Opposition
None on file
Analysis Prepared by:Michael Jarred / NAT. RES. / (916)
319-2092