BILL ANALYSIS Ó
SB 637
Page 1
(Without Reference to File)
SENATE THIRD READING
SB
637 (Allen)
As Amended September 10, 2015
Majority vote
SENATE VOTE: 22-15
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Water |10-4 |Levine, Dababneh, |Dahle, Beth Gaines, |
| | |Dodd, Cristina |Harper, Mathis |
| | |Garcia, Gomez, Lopez, | |
| | |Medina, Rendon, | |
| | |Salas, Williams | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |12-5 |Gomez, Bloom, Bonta, |Bigelow, Chang, |
| | |Calderon, Nazarian, |Gallagher, Jones, |
| | |Eggman, Eduardo |Wagner |
| | |Garcia, Holden, | |
SB 637
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| | |Quirk, Rendon, Weber, | |
| | |Wood | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Natural |5-2 |Williams, Hadley, |Dahle, Harper |
|Resources | |McCarty, Rendon, Mark | |
| | |Stone | |
| | | | |
| | | | |
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SUMMARY: Authorizes the State Water Resources Control Board
(Water Board) 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. Specifically, this bill:
1)States findings and declarations regarding the legislative and
legal history of state regulation of suction dredge mining
activities, and the need to clarify laws regulating suction
dredge mining in order to protect California's water supply,
native cultural sites, and 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 any other permit
required by the DFW and one of the following:
a) A copy of waste discharge requirements or a waiver of
waste discharge requirements issued by the Water Board or a
regional board in accordance with Division 7 of the Water
Code,
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b) A copy of a certification issued by the Water Board or a
regional board and a permit issued by the United States
Army Corps of Engineers in accordance with Sections 401 and
404 of the Federal Water Pollution Control Act to use
vacuum or suction dredge equipment, or
c) If the Water Board 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 Water
Board or appropriate regional board.
3)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.
4)Authorizes DFW to adjust the base fees for a suction dredge
permit to cover all reasonable costs of DFW in regulating
suction dredging activities.
5)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 Water Board or a regional board.
6)Defines suction dredging to mean the use of a mechanized or
motorized system for removing or assisting in the removal of
or processing of material from the bed, bank, or channel of a
river, stream, or lake in order to recover minerals.
Clarifies that this bill does not apply to, prohibit, or
otherwise restrict non-motorized recreational mining
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activities, including panning for gold.
7)Authorizes the Water Board or a regional board, in order to
protect 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.
8)Requires the Water Board, before determining what action to
take on suction dredge regulation to conduct public workshops
in the vicinity of San Bernardino, Fresno, Sacramento or
Redding. Requires a regional board considering independent
action to solicit stakeholder input by conducting at least one
public workshop in that regional board's region. Requires the
Water Board or a regional board to conduct at least one
public hearing pursuant to the Bagley-Keene Open Meeting Act,
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.
9)States findings and declarations that, except for water
quality, and after complying with tribal consultation
requirements, DFW may determine for purposes of Fish and Game
Code Section 5653.1, that significant environmental impacts to
other than fish and wildlife resources caused by suction
dredge mining are fully mitigated if a regulation adopted by
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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.
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.
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
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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, a misdemeanor.
FISCAL EFFECT: According to the Assembly Appropriations
Committee:
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 Water Board to develop water quality permit
conditions for suction dredge mining (Waste Discharge Permit
Fund).
3)Absorbable costs for regional water boards to administer the
permits.
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 until a complete
application, including copies of any required Water Board
permits, has been received.
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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.
The author's stated purpose is to ensure that 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. 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. For
further discussion and background on such impacts see the
Assembly Water, Parks, and Wildlife Committee policy analysis of
this bill.
The 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, the DFW indicated that
it lacks the legal authority to address water quality impacts
which fall under the jurisdiction of the Water Board. Under
current law there is a moratorium on the issuance of suction
dredge permits until the DFW determines that all identified
significant environmental impacts have been fully mitigated. As
a result, the moratorium is still in effect, but is currently
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being challenged in court.
The Water Board 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 the Water Board to determine if a waste
discharge permit is required, and prohibits the DFW from issuing
a suction dredge permit until any permits required by the Water
Board have been obtained.
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. For a
detailed description of the litigation history and status please
see the Assembly Water, Parks, and Wildlife Committee policy
analysis of this bill. In summary, the initial lawsuit
challenged the DFW's regulations on suction 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.
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 of these 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. In January 2015 the trial court issued an
order on the preemption cause of action finding that the state's
moratorium on suction dredge mining was preempted on federal
lands based on a court of appeal decision in a separate action
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that is now on appeal before the California Supreme Court.
However, the moratorium is still in effect pending the outcome
of the litigation.
Supporters of this bill 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 salmon that are listed under the
Endangered Species Act. Supporters further emphasize that while
they do not 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
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.
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 de-compacting gravel beds and
creating depressions that act as cold water refugia for fish,
and that passage of this bill would have negative economic
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impacts, particularly on small scale suction dredge miners.
Analysis Prepared by:
Diane Colborn / W., P., & W. / (916) 319-2096
FN:
0002324