BILL ANALYSIS
SB 670
Page 1
SENATE THIRD READING
SB 670 (Wiggins)
As Amended June 26, 2009
2/3 vote. Urgency
SENATE VOTE :31-8
WATER, PARKS & WILDLIFE 11-0
APPROPRIATIONS 12-0
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|Ayes:|Huffman, Fuller, |Ayes:|De Leon, Ammiano, Coto, |
| |Arambula, | |Davis, Fuentes, Hall, |
| |Tom Berryhill, | |Harkey, John A. Perez, |
| |Blumenfield, Caballero, | |Skinner, Solorio, Audra |
| |Fletcher, | |Strickland, Torlakson |
| |Bonnie Lowenthal, John A. | | |
| |Perez, Salas, Yamada | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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 (SOS) 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 SOS new
regulations, as necessary, pursuant to the Administrative
Procedures Act, and 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
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California Environmental Quality Act (CEQA), and permits may
only 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 environmental
impact report (EIR) for the project as ordered by the court.
3)Provides that this bill applies solely to vacuum and suction
dredging activities conducted for instream mining purposes,
and does not expand or provide new authority for DFG to close
or regulate suction dredging conducted for regular maintenance
of energy or water supply management infrastructure, flood
control, or navigational purposes.
4)States that this section does not prohibit or restrict
nonmotorized recreational mining activities, including panning
for gold.
5)States 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 :
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 waters or at times not
authorized by permit, is a misdemeanor.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, loss of approximately $175,000 in annual revenue each
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year the moratorium is in effect, resulting from loss of suction
dredge permit fees (Fish and Game Preservation Fund).
Currently, fee revenue pays for suction dredge permit
enforcement at the cost of approximately $50,000 per year,
activity which will presumably continue during the moratorium.
COMMENTS : Vacuum and 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. DFG issues permits for use of motorized suction dredge
equipment for recreational gold mining in California streams.
Existing regulations governing the use of suction dredges 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 fish and wildlife. DFG filed declarations with
the court stating that in the opinion of DFG and other fishery
biologists, suction dredge mining is resulting in deleterious
effects on Coho salmon, a species listed under the Endangered
Species Act. A court order entered in December 2006 as part of
a settlement agreement 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
listed species. The court required DFG to complete the
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 now 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 DFG to adopt emergency
regulations to limit dredging in certain salmon spawning streams
while the new EIR is developed. DFG denied the petition,
indicating that while they agree that deleterious harm is
occurring to listed species, they do not believe they have
authority to stop issuing the permits, which they interpret as a
ministerial act. The petitioners, on the other hand, believe
issuance of the permits is a discretionary act, that development
of the regulations is a project under CEQA, and that no permits
should be issued until the new regulations are in place. The
existing statute requires DFG to issue the permits only if DFG
determines, pursuant to the regulations, that the operation will
not be deleterious to fish.
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This bill seeks to prohibit suction dredge mining in streams
that provide critical habitat to spawning salmon until DFG
completes its court-ordered review and update of regulations.
The author notes the state's salmon fisheries 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 status quo has been
allowed for recreational gold mining. The author asserts these
conditions warrant use of the precautionary principle to protect
endangered fish.
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. 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 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 filed in the case 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 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."
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 releasing it back into the stream,
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dredging may also distribute the mercury more broadly and
contribute to methylation of mercury and bioaccumulation in fish
making it toxic for human consumption.
Supporters of this bill note the affect of the salmon fishery
closure on thousands of commercial, recreational and tribal
fishermen and businesses, and the risk salmon face from the
effects of suction dredging. Supporters note DFG's
acknowledgement in court in sworn statements that suction dredge
mining is harming fish, including Coho salmon which is on the
brink of extinction, and also note many other endangered fish
and amphibian species are also in decline. Several tribal
organizations point to the cultural, traditional, and religious
tribal practices that revolve around the annual returns of
salmon, steelhead and other species, and note many tribal
members rely on subsistence fishing to provide food for their
families. Other supporters also emphasize concerns over water
quality impacts, particularly mercury.
Opponents reject claims that suction dredging is harmful to fish
or has contributed to the decline of salmon fisheries, note the
prior EIR found that suction dredging can have positive impacts,
creating additional salmon spawning habitat by loosening
concretized river gravels, and assert further restrictions on
suction dredge mining will violate the property rights of those
with mining claims. Rural counties also cite concerns regarding
the economic impact of the proposed restrictions on local
communities, believe the existing regulatory permitting process
is adequate, and argue this bill circumvents the CEQA process.
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096 FN:
0001749