BILL ANALYSIS
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
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BILL NO: SB 670 HEARING DATE: April 28, 2009
AUTHOR: Wiggins URGENCY: Yes
VERSION: As Introduced CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Vacuum or suction dredge equipment.
BACKGROUND AND EXISTING LAW
The Fish and Game Code prohibits suction dredging except when
permitted by the Department of Fish and Game (DFG) and when
consistent with regulations adopted by the department. The
statute requires the regulations to designate streams where
dredges may be operated pursuant to a permit, streams where
dredging is not allowed, and the time or times of year when
dredging is allowed.
Permit fees for residents are established at $25 unless a site
inspection is necessary in which the fee is $130. The respective
non-resident fees are $100 and $220. Approximately 3000 permits
are issued annually.
It is illegal to use a suction dredge within 100 feet of a
closed area.
DFG regulations were last updated in 1994. In 2005, the Karuk
Indian tribe sued DFG over the adequacy of the regulations and
the department essentially did not contest the lawsuit. In a
negotiated settlement, DFG agreed to conduct an environmental
review of its regulations by July, 2008, provided that funds for
this review were provided in the 2007-08 budget. Funds were made
available only last year.
In the last several years, the practice of suction dredging for
gold in California's rivers has become increasingly
controversial. It has been the topic of lawsuits, legislation,
and was discussed in the Rules Committee in the recent
confirmation of Don Koch as the new director of the department.
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In 2007, the Governor vetoed AB 1032 (Wolk) which would have
imposed seasonal limits on suction dredging in streams in
northern California and the Sierra that have been identified as
habitat for salmon, steelhead, and native trout.
Legal Issues. The current regulations of the DFG were issued in
1994, prior to the listings of the coho salmon as a federally
listed endangered species in 1996 and as a state listed
endangered species in 2004. In the past the department has found
that suction dredging has had adverse environmental effects and
deleterious effects on fish.
However, the department does not believe existing law allows it
to stop granting dredging permits while the new EIR is being
developed. It considers dredging permits to be essentially a
ministerial act, much like buying a fishing license.
On the other hand, opponents of dredging believe that in the
absence of a valid environmental document, DFG should not grant
any new permits, which they believe to be discretionary permits.
They contend that the development of suction dredging
regulations is a project subject to CEQA and that no permits
should be issued until a valid EIR has been certified and new
regulations are in place.
The delay in getting the EIR started prompted opponents of
suction dredging including the Karuk Tribe, CalTrout, Friends of
the North Fork (American River), and the Sierra Fund to petition
DFG to issue emergency regulations to limit dredging on the
Klamath and five other streams in the Sierra. As indicated, DFG
declined to do so, stating that it does not believe it has the
authority to do so.
DFG has selected a firm for the environmental review, and the
contract is being finished. The ongoing environmental review is
supposed to be finished by the end of 2010, according to DFG.
Water quality issues.
According to a recent report by the Sierra Fund, an estimated 26
million pounds of mercury were used to extract gold from ore in
California. Half of this mercury was lost in the environment in
placer and hard rock mining operations where it remains in
watersheds where it is commonly encountered. Mercury runoff from
these watersheds is a source of mercury contamination of the
California Bay-Delta.
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Suction dredgers remove gravel from riverbeds with a hose
powered by an engine. The water quality controversy involves
what opponents characterize as the tendency of dredging
operations to "flour" mercury in the water, making it more
readily available for bacteria to methylate, a process that
converts base mercury into a developmental neurotoxin that
accumulates in the food chain and that humans ingest through
fish that they consume.
Dredgers may try to separate mercury from any amalgamated gold,
and the recovered mercury is then either stored or disposed of
in an unauthorized manner. Storage of mercury is subject to
regulation also, but there is no available information from
state agencies that mercury obtained by dredgers is regulated.
Dredging permits issued by DFG state that the applicant will
comply with all appropriate water quality regulations. However,
the State Water Resources Control Board does not have a program
to regulate suction dredging.
The board found, however, in a 2003 study, that dredging
exacerbates mercury contamination of rivers and streams.
Fisheries Issues.
Opponents of suction dredging have offered peer-reviewed
scientific studies concluding that suction dredge mining can
degrade fish habitat and water quality, and harm native species.
These studies are referenced in the committee analyses of AB
1032. One study found that suction dredging can adversely affect
Chinook salmon by destabilizing spawning areas. Other studies
warn of adverse affects to habitat of native trout and amphibian
species, such as the yellow-legged frog.
Declarations submitted by DFG's chief fisheries biologist in the
Karuk lawsuit acknowledged that DFG's existing suction dredge
regulations are inadequate and that harm is occurring to listed
species including Coho salmon, which, unless things change, is
on the brink of extinction. The declaration cites numerous
scientific peer-reviewed studies on the effects of suction
dredging that have been issued since the existing regulations
were last updated in 1994.
According to respected fishery biologist Dr. Peter Moyle of the
University of California at Davis, "suction dredging should be
banned in tributaries of the Klamath River, 500 meters above and
below cool-water refuge areas (stream mouths) on the mainstream
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of the Klamath River, the Klamath River from the Trinity River
confluence to Green Riffle, Canyon Creek and all other Scott
River tributaries, and the Salmon River including the north and
south forks and all tributaries." Dr. Moyle explains that
"suction dredging represents a chronic unnatural disturbance of
natural habitats that are already likely to be stressed by other
factors and can therefore have a negative impact on fishes that
use the reach being dredged?All anadromous fishes in the Klamath
basin should be considered to be in decline and ultimately
threatened with extirpation?suction dredging through a
combination of disturbance of resident fish, alteration of
substrates, and indirect effects on heavy human use of small
areas, especially thermal refugia (side creeks), will further
contribute to the decline of the fishes."
Proponents of dredging have referenced statements in the earlier
EIR to the effect that dredging may improve spawning grounds.
They also believe that 3000 dredgers could not kill more salmon
than the commercial fishing industry.
Fiscal Issues.
In previous years, DFG has acknowledged that the dredging
program's fees are inadequate to cover the cost of the program.
It has previously estimated that the permits cost an average of
$450 to process and to cover the costs of the program, which if
extrapolated to the approximate 3000 permits would result in an
expenditure of about $1.3 million. The author believes it would
be more appropriate to use that money to invest in the EIR or to
develop the new regulations that are required by the court
order.
PROPOSED LAW
This urgency measure would impose a temporary moratorium on the
granting of new suction dredging permits until the ongoing
environmental review is certified. It provides that the issuance
of permits is not a ministerial act, and that, therefore, such
permits may not be issued until a valid underlying environmental
document is in place.
ARGUMENTS IN SUPPORT
Friends of the River supports the bill but believes the
temporary moratorium should be expanded to include more than
salmon streams. It believes that suction dredging affects wild
and scenic rivers, wild trout populations, other wildlife, and
river-based recreational opportunities.
Many supporters categorize suction dredging as a rather crude
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technology by which miners "literally vacuum up our river beds
and spawning grounds, and disturb and mobilize the mercury left
behind by gold mining operations" as was stated in several
letters. All of the supporters agree that the rules governing
this practice are outdated.
Sierra Club California and Pacific Coast Federation of
Fishermen's Associations point to the ban on commercial salmon
fishing and argue that the salmon crisis threatens thousands of
jobs. Sierra Club California concludes that "It simply does not
make sense to jeopardize an entire fishery, and to ask
commercial fishermen to sit idle, while allowing ongoing
environmental harm for a recreational hobby."
Tribal organizations in support of the bill-the Karuk Tribe, and
the California Tribal Business Alliance-point to the cultural
and traditional religious practices that revolve around the
annual returns of salmon, steelhead, and other species. Many
tribal members rely on subsistence fishing to provide food for
their families.
ARGUMENTS IN OPPOSITION
The Regional Council of Rural Counties argues that the existing
regulations are sufficiently restrictive and protective and
allow individuals to legally mine their claims of precious
minerals. It points to parts of rural California where mining
remains an important port of the culture, history, and economy
of some local communities. Siskyou County separately asserted
these same concerns.
The New 49'ers, a mining advocacy group, argues that no
scientific information points to suction dredging as a cause in
the collapse of salmon, that the collapse is due to ocean
conditions and an over-reliance on hatchery fish, and that a
moratorium would violate the private property rights of those
who have federal mining claims and create "takings" liability on
the part of the state.
SUPPORT
Cal Trout
California Coastkeeper Alliance
California Tribal Business Alliance
Clean Water Action
Friends of the River
Karuk Tribe
Pacific Coast Federation of Fishermen's Associations
Planning and Conservation League
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Sierra Club California
Sierra Fund
Sierra Nevada Alliance
OPPOSITION
County of Siskyou
Hundreds of individuals in California participating in dredge
gold mining.
Hundreds of individuals living out of state coming to California
for suction dredging
New 49'ers
Regional Council of Rural Counties
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