BILL ANALYSIS
SB 670
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Date of Hearing: June 16, 2009
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared William Huffman, Chair
SB 670 (Wiggins) - As Amended: May 19, 2009
SENATE VOTE : 31-8
SUBJECT : Vacuum or Suction Dredging
SUMMARY : Places a statewide temporary moratorium on the use of
any vacuum or suction dredge equipment in any river, stream or
lake until the director of the Department of Fish and Game (DFG)
completes a court ordered environmental review of its existing
suction dredge regulations and updates the regulations.
Specifically, this bill :
1)Prohibits the use of any vacuum or suction dredge equipment in
any river, stream or lake of this state until the director of
DFG certifies to the Secretary of State that all of the
following have occurred:
a) DFG has completed the environmental review of its
existing suction dredge mining regulations as ordered by
the court in the case of Karuk Tribe of California v.
DFG.
b) DFG has transmitted for filing to the Secretary of
State new regulations, as necessary, pursuant to the
Administrative Procedures Act.
c) The new regulations are operative.
2)Declares that the issuance of permits to operate vacuum or
suction dredge equipment is a project pursuant to the
California Environmental Quality Act (CEQA), and permits may
be issued and vacuum or suction dredge mining may only occur
as authorized by any existing permit if DFG has caused to be
prepared and certified completion of an EIR for the project
as ordered by the court.
3)Includes an urgency clause stating that it is necessary for
this bill to take immediate effect for the reason that suction
or vacuum dredge mining results in adverse environmental
impacts to protected fish species, the water quality of the
state, and the health of the people of the state.
EXISTING LAW :
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1)Prohibits the use of vacuum or suction dredges in any river,
stream or lake except as authorized under a permit issued to
that person by DFG in compliance with regulations adopted by
DFG.
2)Requires DFG to adopt regulations governing use of vacuum and
suction dredge equipment, including the maximum size of
dredges and time of year when dredges may be used. Authorizes
DFG to close streams otherwise open to dredging if there is an
unanticipated water level change and DFG determines that
closure is necessary to protect fish and wildlife.
3)Requires DFG to issue a suction dredge permit to an applicant
if DFG determines, pursuant to the regulations, that the
operation will not be deleterious to fish. Operation of a
suction
dredge without a permit, or in any waters or at any times not
authorized by the permit, is a misdemeanor.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS :
Background : Vacuum and suction gold dredging 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. DFG issues permits for use of motorized vacuum or suction
dredge equipment for recreational gold mining in California
rivers and streams. The base fee for a permit is $25, unless a
site inspection is necessary in which case the fee is $130. DFG
issues approximately 3,000 suction dredge permits per year.
DFG's existing regulations governing use of suction dredge
equipment for instream gold mining were last updated in 1994.
In 2005 the Karuk Indian Tribe sued DFG over the adequacy of the
regulations in protecting instream fish and wildlife resources.
DFG filed declarations with the court stating that in the
opinion of DFG and other fish biology experts, suction dredge
mining is resulting in deleterious effects on Coho salmon, a
species listed under the Endangered Species Act. The case was
subsequently settled and a court order entered in December 2006
ordered DFG to complete an environmental review of its existing
permitting program and to promulgate new regulations, as
necessary, to protect Coho salmon and other species listed as
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threatened or endangered, or as special status species. The
court order stated that new information regarding the effects of
suction dredge mining provides evidence that the issuance of
suction dredge mining permits under the current regulations
could result in environmental effects different and more severe
than considered when the regulations were adopted in 1994, on
Coho salmon and other species listed as threatened or endangered
since that time. The court required DFG to complete the new
environmental review and regulatory update by July of 2008. DFG
has yet to comply with the order, citing a lack of funding,
which was not provided until this year. DFG has now selected a
consultant and indicates it will take until the end of 2010 for
the environmental review to be completed.
The delay in conducting the environmental review prompted the
Karuk Tribe, Caltrout, Friends of the North Fork, and the Sierra
Fund in January of this year to petition the DFG to adopt
emergency regulations to limit dredging in certain key salmon
spawning streams while the new EIR is being developed. However,
DFG denied the petition, indicating that while they agreed that
deleterious harm was occurring to listed species, they do not
believe they have authority to stop issuing the permits, which
they interpret as a ministerial act, much like issuing fishing
licenses. The petitioners, on the other hand, believe that
issuance of the permits is a discretionary act, and development
of the regulations a project under CEQA, and that therefore no
permits should be issued until the new regulations are in place.
On this point, it should be noted that the existing statute
provides that DFG is required to issue the permits only if DFG
determines, pursuant to the regulations, that the operation will
not be deleterious to fish.
Author's Statement : The author has introduced this bill to
prohibit suction dredge mining in rivers and streams that
provide critical habitat to spawning salmon until DFG completes
its court-ordered overhaul of regulations governing this
recreational activity, which according to the author disturbs
streambeds, kills fish eggs and immature eels, and churns up
mercury left over from the gold mining era. The author notes
that our salmon fisheries in particular are in crisis, with
salmon fishing banned along the California coast for the second
year in a row, affecting the livelihoods of thousands of
commercial fishermen and others, while allowing status quo for
recreational gold mining. The author asserts these conditions
warrant use of the precautionary principle to protect endangered
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fish.
Fishery Concerns : Studies conducted by DFG, the U.S. Forest
Service and others indicate that suction dredging can degrade
fish habitat and water quality, 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
reproductive success of fall-spawning fish such as Chinook
salmon, and a study conducted by DFG found that suction dredging
may adversely affect yellow-legged frogs and native trout.
Declarations filed by DFG's chief fisheries biologist and Dr.
Peter Moyle of the University of California at Davis in the 2005
Karuk lawsuit cite to numerous other scientific peer-reviewed
studies on the effects of suction dredging issued since the DFG
regulations were last amended in 1994. The declaration of DFG's
chief fisheries biologist acknowledged that DFG's existing
regulations are inadequate and that harm is occurring to listed
species including Coho salmon. Dr. Moyle in his declaration
also explains 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."
Water Quality Concerns : According to a report by the Division
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, and 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. A 2003 pilot study conducted by
the State Water Resources Control Board found that motorized
suction dredging exacerbates rather than alleviates mercury
contamination of rivers and streams. The study found 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
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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.
Arguments in Support : Fishery groups such as Caltrout,
California Sportfishing Protection Alliance, and the Pacific
Coast Federation of Fishermen's Associations note the affect the
closure of the salmon fishery is having on thousands of
commercial, recreational and tribal fishermen and other
businesses, and the further risk these fish face from the
effects of suction dredging. Caltrout and others also point to
the fact that DFG has acknowledged in sworn statements that
suction dredge mining is harming fish, including Coho salmon
which is on the brink of extinction. Friends of the River notes
that many other endangered fish and amphibian species are also
in decline, and urges that until DFG adopts new regulations it
is critical that a moratorium be implemented. The California
Tribal Business Alliance, the California Association of Tribal
Governments, the Karuk Tribe, and several other tribal
organizations point to the tribal cultural and traditional
religious practices that revolve around the annual returns of
salmon, steelhead and other species. They also note that many
tribal members rely on subsistence fishing to provide food for
their families, and emphasize this bill will protect habitat,
water quality, and tribal cultural, religious and subsistence
practices. Other supporters also emphasize concerns over water
quality impacts, particularly mercury.
Arguments in Opposition : Opponents reject claims that suction
dredging is harmful to fish or has contributed to the decline of
salmon fisheries. The New 49'ers also note the prior EIR found
that suction dredging had positive impacts, creating additional
salmon spawning habitat by loosening concretized river gravels,
and that further restrictions on suction dredge mining will
violate property rights of those with mining claims. Siskiyou
County and the Regional Council of Rural Counties also cite
concerns regarding the economic impact of the proposed
restrictions on local communities, assert that the existing
regulatory permitting process is adequate, and argue that this
bill would circumvent the CEQA process.
Prior Related Legislation : AB 1032 (Wolk) of 2007, which was
vetoed by the Governor, would have imposed seasonal limits on
suction dredging in streams in Northern California and the
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Sierra that have been identified as habitat for salmon,
steelhead and wild trout, pending completion of the EIR, and
also increased the fees for suction dredge permits.
REGISTERED SUPPORT / OPPOSITION :
Support
California Assoc. of Tribal Governments
California Coastkeeper Alliance
California Sportfishing Protection Alliance
California Tribal Business Alliance
California Trout
Clean Water Action
Defenders of Wildlife
Environmental Justice Coalition for Water
Friends of the North Fork
Friends of the River
Karuk Tribe
Klamath Riverkeeper
Pacific Coast Fed. of Fishermen's Assoc.
Planning and Conservation League
Ramona Band of Cahuilla Indians
Resighini Rancheria
Rogue Riverkeeper
San Manuel Band of Mission Indians
Sierra Club California
Sierra Nevada Alliance
Sycuan Band of the Kumeyaay Nation
The Sierra Fund
Over two hundred individuals
Opposition
County of Siskiyou
Karuk Tribe Members for Reform
New 49'ers
Regional Council of Rural Counties
Several hundred individuals from various states
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
SB 670
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319-2096