BILL ANALYSIS �
-----------------------------------------------------------------
| |
| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
| |
-----------------------------------------------------------------
BILL NO: SB 657 HEARING DATE: April 12, 2011
AUTHOR: Gaines URGENCY: Yes
VERSION: As Introduced CONSULTANT: Katharine Moore
DUAL REFERRAL: Environmental QualityFISCAL: Yes
SUBJECT: Vacuum or suction dredge equipment.
BACKGROUND AND EXISTING LAW
Suction dredge mining is an instream technique that uses a
vacuum system to pull gravel and other materials up from a
river, stream or lake bed. On-board equipment is used to process
the collected matter and remove any trace amounts of gold before
exhausting the remainder ("tailings") back into the water.
Suction dredge miners search for gold not collected by previous
large-scale mining operations. They target sub-surface
"slickens" layers, often buried under gravel, which are
relatively enriched in gold as well as mercury used in and lost
from traditional mining practices. A permit issued by the
California Department of Fish and Game (DFG) is required to
operate suction dredge mining equipment in California. Suction
dredge mining for gold is also subject to other laws, including,
but not limited to, provisions of the Clean Water Act
administered by the Corps of Engineers and the State Water
Resources Control Board. From 1999 - 2009, DFG sold
approximately 3,200 resident and an additional 450 non-resident
suction dredge mining permits annually. In 2009, 3,643 total
permits were sold and the permit fees for residents and
non-residents were $47 and $185.25, respectively. Suction dredge
permit fees are deposited in the Fish and Game Preservation Fund
where they are used to support DFG functions.
DFG's existing regulations governing suction dredge mining were
promulgated after preparing and certifying an environmental
impact report (EIR) under the California Environmental Quality
Act (CEQA) in 1994. These regulations were legally challenged in
Karuk Tribe of California et al., v. California Department of
Fish and Game et al., (Alameda County Superior Court Case No.
1
RG05-211597). In 2006 the court ordered DFG to conduct further
environmental review of its suction dredge mining regulations
under CEQA and to implement, if necessary, mitigation measures
to protect coho salmon and other fish species in the watershed
of the Klamath, Scott, and Salmon Rivers that were listed as
threatened or endangered since the completion of the 1994 EIR.
Despite the court's ruling, DFG did not start the EIR process
and continued to issue suction dredge permits. Another lawsuit
was filed (Leeon Hillman et al. v. California Dept. of Fish and
Game et al., Alameda County Superior Court Case No. RG09-43444),
and in July 2009 the court specifically prohibited DFG from
issuing any suction dredge mining permits as long as the related
litigation was pending. At the same time, the Legislature
passed and the Governor signed SB 670 (Wiggins, c. 62, Statutes
of 2009) on August 6, 2009. SB 670 imposed an immediate
temporary moratorium on suction dredge mining until three
specified actions occur: 1. DFG completes the court-ordered
environmental review of its permitting program; 2. DFG updates
the existing regulations governing the program as necessary; and
3. The updated regulations take effect.
The draft subsequent EIR (DSEIR) for suction dredge mining and
its accompanying proposed revised regulations were released for
public comment in February 2011 and are described below. DFG
expects to complete the effort, including any updates to the
existing regulations, by late summer 2011. The public comment
period is open until April 29, 2011.
Neither SB 670 nor any other provision of law authorizes DFG to
issue refunds to permit holders. Last year, SB 889 (Aanestad)
proposed refunding permit fees to those holding 2009 permits
when the ban went into effect. It passed this committee by a
vote of 7-1 and the Senate Floor by a vote of 28-1. It
subsequently failed in Assembly Water Parks and Wildlife.
PROPOSED LAW
This bill would:
o Delete the legislative prohibition and all restrictions
on suction dredge mining imposed by SB 670.
o Exempt suction dredge mining from CEQA until January 1,
2014.
o Require DFG to refund pro-rated fees to 2009 permit
holders.
o Require DFG to prepare a report containing an economic
analysis of the prohibition on suction dredge mining by
January 1, 2014.
2
ARGUMENTS IN SUPPORT
According to the author, "SB 657 would ensure that all
industries are given the same treatment when a potential cause
for concern arises?The suction dredging industry should not be
shut down on a hunch that there are problems or dangers in its
operation. The early EIR was not conclusive in its findings
that this industry was so detrimental that it needed to be shut
down entirely, and until there is a final EIR with findings to
the contrary, the miners should be allowed to continue in their
business. If the state puts procedures and safeguards in place
for a reason, those procedures should be followed. This bill
will allow the industry to continue until there is conclusive
evidence that the economic benefits to the entire industry are
less than the detriment to the environment through suction
dredging."
The Regional Council of Rural Counties (RCRC) believes that the
2009 legislative ban occurred with "minimal scientific
background" and that the "existing regulatory permitting process
was adequate to ensure the protection of our aquatic species and
natural resources while allowing individuals to mine their legal
claim ?" RCRC further states that "mining remains an important
part of �rural] culture and history. Mining is an equally
important aspect of these communities' economy both as a result
of the mining itself and also as an attraction for tourism" and
appears to argue for the fairness of returning at least a
portion of the permit fees for 2009.
Additional letters from individuals make similar arguments that
the current ban on suction dredge mining is not supported by
science; the DSEIR fails to show harm to fish or the
environment; fish populations have been depleted by other causes
(including fishing); and the ban has had severe financial
impacts at the individual, local and state level.
ARGUMENTS IN OPPOSITION
The Sierra Fund, among others, argues that suction dredge mining
was only banned in California "after DFG acknowledged numerous
environmental impacts from the activity. The bill was adopted
with more than �a] 2/3 vote in both houses. The prohibition must
stay in place until the completion of a court-ordered
environmental review by DFG. �Their] draft document, now being
circulated for public comment, documents numerous significant
and unmitigatable impacts of suction dredge mining on everything
from fish and water quality to environmental health. There will
continue to be numerous environmental impacts, even under the
3
department's proposed new regulations. Their review provides
rigorous scientific data about the role of suction dredge mining
in releasing and mobilizing the highly toxic mercury found
alongside the gold in California's rivers and streams left over
from mining that ended more than 100 years ago. DFG has
acknowledged that the suction dredge program costs the state
hundreds of thousands of dollars more than it collects in permit
fees. The Sierra Fund believes that the court-ordered
environmental review process should be completed before any new
suction dredge permits are issued."
Clean Water Action adds that, "it is inappropriate to allow
permits which may not coincide with these upcoming regulations,"
and further raises environmental justice, water quality and
related issues.
COMMENTS
Author's intention : According to the author's office, this bill
is intended to lead to the reinstatement of suction dredge
mining in California under existing regulations, regardless of
the regulations' inadequacy (see comment below), while the DSEIR
process is completed, and revised regulations are approved and
implemented. Put plainly, the idea appears to be to remove the
legislative ban on suction dredge mining, undercut the basis of
the court orders suspending suction dredge mining (by suspending
CEQA) while still forcing a CEQA process (the development of the
DSEIR) to continue. In its current form, SB 657 does not do
that: apparently a drafting error substituted "economic" for
"environmental" in the provision referring to completion of a
study.
This bill is double-referred . Should this bill pass this
committee, it will be heard by the Senate Committee on
Environmental Quality (EQ). EQ's jurisdiction includes CEQA and
its provisions, as well as water quality, hazardous materials
and other issues relevant to suction dredge mining. Therefore
these issues will only be briefly described here in so far as
they provide background to and illuminate matters pertinent to
this committee.
The court orders are still in effect . Further court action
would be required in addition to the passage of this bill in
order to allow suction dredge mining again in California,
barring other regulatory action.
Existing (1994) suction dredge mining regulations are
insufficiently protective of fish and other wildlife. DFG staff
4
and independent academic experts testified unequivocally during
the original court case that the 1994 suction dredge mining
regulations are insufficiently protective of special status fish
due to both improved technical understanding and changes in
endangered species listings that occurred after the mining
regulations were developed. The 1994 regulations, for example,
permit suction dredge mining during time periods and on rivers
where special status species, such as coho salmon, pink salmon,
chum salmon, green sturgeon, pacific lamprey, Klamath river
lamprey and river lamprey are present. The DSEIR and draft
regulations (described below) propose additional restrictions on
water bodies and time periods where suction dredge mining is
allowed in order to protect fish (as broadly defined by DFG to
include wild fish, mollusks, crustaceans, invertebrates, or
amphibians, including any part, spawn, or ova thereof). SB 657
contains no provision to update the 1994 regulations, although
DFG's regulations must certify that suction dredge mining will
not be deleterious to fish.
Additionally, impacts on "non-fish" wildlife are only indirectly
mitigated under the proposed stricter regulations accompanying
the recently-released DSEIR. For example, nesting birds may be
less likely to be disturbed on a particular reach where suction
dredge mining is limited. However, the cumulative impacts to
wildlife are still identified as significant and unavoidable
(see below). Therefore, the less-restrictive 1994 regulations
are also unlikely to fully mitigate these impacts.
Mercury and fish . Suction dredge mining has been shown to
result in the suspension/resuspension of mercury-containing fine
particles through the water column. Due to the size of the
particles involved, they may remain suspended for considerable
periods (hours-to-days) and, following oxidation and
methylation, the mercury may become more biologically available
to fish downstream. In many locations, fish higher in the food
chain are already considerably stressed by mercury loadings due
to historic mining and/or other sources. Methylmercury
advisories are in place for numerous California water bodies
including lakes and river stretches in the Sierra Nevada
foothills in Nevada, Placer, and Yuba counties and the San
Francisco Bay Delta. Concentrations of mercury in fish tissue
in these areas are also above criteria developed for the
protection of mammalian and avian wildlife, and occasionally
exceed levels that have been found to adversely affect fish
health or reproduction.
It is too soon to assess the role of the ban on suction dredge
5
mining on the recovery of populations of fish and other species .
The temporary moratorium has not been in place long enough to
impact species whose lifetimes are longer than approximately 6 -
12 months (e.g. salmon). Instream suction dredge mining is not
the root cause of the fisheries' many problems. It can, however,
be a contributing factor: the impacts of suction dredging vary
according to size of the waterbody, fish species present,
season, frequency and intensity of dredging and cumulative
impacts can occur. Suction dredge mining can have a negative
impact on local fish, particularly, for example, when dredging
coincides with the incubation of embryos in stream gravels.
Status of the DSEIR and accompanying revised proposed
regulations. The DSEIR includes a set of updated suction dredge
regulations that would avoid deleterious effects to fish and
analyzes the potential environmental impacts of suction dredging
under these updated regulations. The DSEIR evaluates four
program alternatives: a no program alternative (continuation of
the existing moratorium); a 1994 regulations alternative
(continuation of previous regulations); a water quality
alternative (including additional program restrictions for water
bodies listed as impaired pursuant to the Clean Water Act
�303(d) for sediment and mercury); and a reduced intensity
alternative (limiting permit issuance and methods of operation
to reduce the intensity of environmental effects).
The significant and unavoidable impacts of suction dredge mining
identified in the DSEIR from continued mining include:
o The effects of mercury resuspension and discharge from
mining
o The effects of resuspension and discharge from mining of
other trace metals
o The effects on special status passerines (e.g. birds)
associated with riparian habitats
o Substantial adverse changes in the significance of
historical resources
o Substantial adverse changes in the significance of
unique archaeological resources
o Exposure of the public to noise levels in excess of city
or county standards
o Cumulative impacts on wildlife species and their
habitats, turbidity and related discharges, and mercury
resuspension and discharge.
The strength of these identified impacts depends critically upon
implementation of the revised proposed regulations accompanying
the DSEIR: the new regulations are essential to mitigation.
6
DFG asserts that these issues are outside its jurisdiction and
thus beyond its control, although the proposed regulations
include distribution of a "Best Management Practices" pamphlet
providing information to miners on how to mitigate these impacts
on their own.
In addition to distribution of pamphlets, the draft proposed
regulations include updated application requirements;
limitations on the number of permits issued annually; equipment
restrictions (e.g. smaller nozzle size), requirements regarding
the methods of operation and guidance regarding the location of
activities, including locations which are seasonally or
permanently closed to suction dredge mining. More specific
restrictions on the movement of material (e.g. tailings must be
stabilized) and the preservation of channels, sites, vegetation
and riparian habitats are required.
One beneficial impact identified by the DSEIR is on the
availability of, or access to placer gold deposits.
Has the state refunded license fees in the past? In general,
permit and license fees paid to DFG are not refundable.
Then-Governor Schwarzenegger, however, ordered DFG to refund
permit fees paid to the commercial salmon fishery following the
closure of the 2008 - 2009 and 2009 - 2010 seasons. It is not
clear that the governor had or has the emergency authority to
order theses license refunds, but the order was not challenged.
According to DFG, pro-rated refunds to 2009 permit holders would
be $121,000 ($267,000 for a full refund). The required economic
analysis would cost $100,000 - $200,000
A recent economic analysis is available . As part of the DSEIR
process, a representative survey of 2008 resident and
non-resident permit holders was conducted. Residents
participated in about 83,900 days (15 trips of about 2 days
each) of suction dredging, and nonresidents accounted for an
additional 17,350 days (4.5 trips of about 7 days each). The
most popular watersheds for residents were the Yuba River,
Feather River and the American River, while the Klamath River
was most popular with non-residents. Income from gold recovery
was, on average, about 6% of a miner's income, although 69%
reported that suction dredging represented one percent or less
of their total income. This aligns with the survey results that
indicate that 82% of resident dredgers considered their activity
to be recreational (slightly fewer non-resident dredgers do).
The survey results estimate that approximately $4.6 million in
7
trip-related spending was attributed to suction dredge mining in
2008 across California which created an estimated 50 jobs
resulting in increases of $2.5 million in personal income and
$123,000 in sales taxes. It is unclear what fraction of an
additional $7.4 million in equipment and maintenance was spent
in California.
SUPPORT
Regional Council of Rural Counties
L & M Timber Company
3 Individuals
OPPOSITION
California Sportfishing Protection Alliance
California Trout
Center for Biological Diversity
Central Sierra Environmental Resource Center
Clean Water Action
Coastal Environmental Rights Foundation
Defenders of Wildlife
Environmental Law Foundation
Environmental Protection Information Center
Foothill Conservancy
Friends of the River
Friends of the Trinity River
Northern California Council, Federation of Fly Fishers
Pacific Coast Federation of Fishermen's Associations
Planning and Conservation League
Sacramento River Preservation Trust
Sierra Club
South Yuba River Citizen's League
The Karuk Tribe
The Sierra Fund
Trout Unlimited
8
1 Individual
9