Bill Text: CA SB637 | 2015-2016 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Suction dredge mining: permits.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2015-10-09 - Chaptered by Secretary of State. Chapter 680, Statutes of 2015. [SB637 Detail]

Download: California-2015-SB637-Amended.html

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BILL NUMBER: SB 637	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  SEPTEMBER 4, 2015
	AMENDED IN ASSEMBLY  JULY 7, 2015
	AMENDED IN SENATE  JUNE 2, 2015
	AMENDED IN SENATE  MAY 5, 2015
	AMENDED IN SENATE  APRIL 22, 2015

INTRODUCED BY   Senator Allen

                        FEBRUARY 27, 2015

   An act to amend Section 5653 of the Fish and Game Code, and to add
Section 13172.5 to the Water Code, relating to dredging.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 637, as amended, Allen. Suction dredge mining: permits.
   Existing law prohibits the use of any vacuum or suction dredge
equipment by any person in any river, stream, or lake of this state
without a permit issued by the Department of Fish and Wildlife.
Existing law requires, before any person uses any vacuum or suction
dredge equipment in any river, stream, or lake of this state, that
person to submit an application for a permit for a vacuum or suction
dredge to the department specifying certain information. Existing law
requires the department to issue a permit, if the department
determines that the use of a vacuum or suction dredge will not be
deleterious to fish, upon the payment of a specified fee. Existing
law designates the issuance of permits to operate vacuum or suction
dredge equipment to be a project under the California Environmental
Quality Act and suspends the issuance of permits and mining pursuant
to a permit until the department has completed an environmental
impact report for the project as ordered by the court in a specified
court action. Existing law prohibits the use of any vacuum or suction
dredge equipment in any river, stream, or lake of this state until
the Director of Fish and Wildlife makes a prescribed certification to
the Secretary of State, including certifying that new regulations
fully mitigate all identified significant environmental impacts and
that a fee structure is in place that will fully cover all costs to
the department related to the administration of the program.
   This bill would require the department to issue a permit if the
department determines that the use does not cause any significant
effects to fish and wildlife and would authorize the department to
adjust the specified fee to an amount sufficient to cover all
reasonable costs of the department in regulating suction dredging
activities. This bill would prohibit the department from issuing a
permit until the permit application is deemed complete, as
prescribed.  The bill would prohibit the permit from authorizing
any activity in violation of other applicable requirements,
conditions, or prohibitions governing the use of vacuum or suction
dredge equipment, and would require the department, the State Water
Resources Control Board, and the regional water quality control
boards to make reasonable efforts to share information among the
agencies regarding potential violations of requirements, conditions,
or prohibitions. 
   Under existing law, the State Water Resources Control Board and
the California regional water quality control boards prescribe waste
discharge requirements in accordance with the Federal Water Pollution
Control Act and the Porter-Cologne Water Quality Control Act (state
act). The state act, with certain exceptions, requires a waste
discharger to file certain information with the appropriate regional
board and to pay an annual fee. The state act additionally requires a
person, before discharging mining waste, to submit to the regional
board a report on the physical and chemical characteristics of the
waste that could affect its potential to cause pollution or
contamination and a report that evaluates the potential of the mining
waste discharge to produce acid mine drainage, the discharge or
leaching of heavy metals, or the release of other hazardous
substances.
   This bill would, after  the director has made the
prescribed certification to the Secretary of State and after
 prescribed public hearings and workshops,  as
specified,  authorize the state board or a regional board to
adopt waste discharge requirements  or a waiver of waste
discharge requirements  that address water quality impacts of
specified issues, specify certain conditions or areas where the
discharge of  waste   waste or other adverse
impacts on beneficial uses of the waters of the state  from
 a   the use of vacuum or  suction dredge
 equipment  is prohibited, or prohibit particular  use
of, or  methods of  using, vacuum or  suction dredge
 mining if the state board or regional board makes a certain
determination.   equipment, or any protion thereof, for
the extraction of minerals   , as specified. 
   The bill would specify that  a suction dredge is equipment
used for mining operations that contains any of specified components
for purposes of permits issued by the department and for purposes of
the regulatory process established by the state board or a regional
board.   the use of vacuum or suction dredge equipment
is defined as the use of a mechanized or motorized system for
removing or assisting in the removal of, or the processing of,
material from the bed, bank, or channel of a river, stream, or lake
in order to recover minerals. 
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature finds and declares all of the
following:
   (a) In  August  2009, Governor Arnold Schwarzenegger
signed Senate Bill 670 (Chapter 62 of the Statutes of 2009) which
established a temporary ban on  the use of vacuum or 
suction dredge  mining   equipment  until
after  the Department of Fish and Wildlife completed  a
court-ordered environmental review was completed. 
 of its related permitting program and existing regulat 
 ions.  
   (b) The Department of Fish and Wildlife draft regulations and
draft environmental impact report were issued in February 2011. The
draft environmental impact report identified nine significant and
unmitigable impacts from suction dredge mining. The report concluded
that suction dredge mining for gold mobilizes and discharges toxic
levels of mercury, harming drinking water quality and potentially
poisoning fish and wildlife, harms fish, amphibians, and songbirds by
disrupting habitat, and causes substantial adverse changes statewide
in American Indian cultural and historical resources. 

   (c) 
    (b)  In July 2011,  the Legislature enacted
  Governor Schwarzenegger signed  Assembly Bill 120
(Chapter 133 of the Statutes of 2011), extending the prohibition on
 the use of vacuum or  suction dredge  mining until
2016, and requiring the department to create a  
equipment to June 2016 or, if earlier, until the Director of Fish and
Wildlife certified five conditions to the Secretary of State,
including completion of the court-ordered environmental review, the
adoption of and operation of any updated regulations impleme 
 nting Section 5653 of the Fish and Game Code, full mitigation of
all identified significant environmental effects, and the existence
of a permit  fee structure that would  fully  cover all
 of its administrative  costs  relating to
suction dredge mining.   incurred by the department to
administer its permitting program.  
   (c) In March 2012, the Department of Fish and Wildlife completed
the court-ordered environmental review and rulemaking effort,
certifying the environmental impact report and adopting updated
regulations to implement and administer its related permitting
program pursuant to Section 5653 of the Fish and Game Code. In
certifying the environmental impact report and adopting the
regulations, the department found, for purposes of the California
Environmental Quality Act (CEQA), that, among other things,
significant effects on the environment had to be mitigated to the
extent feasible consistent with enabling statutory authority
directing the department to promulgate the updated regulations, but
the use of vacuum or suction dredging equipment to extract minerals
would result in various significant and unavoidable environmental
effects beyond the substantive reach of the department in
promulgating the regulations. The department considers the
environmental impact report it certified in March 2012 to be the most
comprehensive, technical review of suction dredge mining ever
prepared in California.  
   (d) As to significant and unavoidable effects, in March 2012, the
Department of Fish and Wildlife determined, for purposes of CEQA,
that the use of vacuum or suction dredge equipment, consistent with
the updated regulations implementing Section 5653 of the Fish and
Game Code, could result in effects associated with the following:
 
   (1) The resuspension and discharge of mercury and trace metals.
 
   (2) Turbidity and total suspended sediment.  
   (3) Substantial adverse changes, when considered statewide, in the
significance of historical and unique archaeological resources.
 
   (4) Riparian habitat of special status passerines.  
   (5) Effects on nonfish wildlife species and their habitat. 

   (6) Exposure of the public to noise levels in excess of city or
county standards.  
   (d) 
    (e)  In  June  2012,  the Legislature
acted again on suction dredge mining by enacting  
Governor Brown signed  Senate Bill 1018 (Chapter 39 of the
Statutes of 2012), which eliminated the sunset provision from
Assembly Bill 120. Senate Bill 1018 also directed the department to
consult with various agencies and to provide recommendations to the
Legislature by April 1, 2013, regarding statutory changes or
authorizations necessary for the department to promulgate suction
dredge regulations. Those recommendations were to include ways to
fully mitigate all identified significant environmental impacts and a
fee structure to cover the department's costs of administering the
program. 
   (e) 
    (f)  On April 1, 2013, the department submitted the
required report to the Legislature. The  department considers
the environmental impact report on its proposed suction dredge
mining regulatory permit program to be the most comprehensive review
of suction dredge mining ever compiled in California. The report
identified impacts that the department said could not be mitigated
within its legal authorities.   report provides specific
recommendations for statutory amendments necessary to modernize the
regulation of suction dredge mining under the Fish and Game Code, and
reflects the department's efforts to consult with, and includes
related additional recommendations from, various other state
agencies, including the State Water Resources Control Board. The
State Water Resources Control Board in its related letter appended to
the department's report emphasized that the State Water Resources
Control Board and its sister agencies, the regional water quality
control boards, are tasked with the protection, control, and
utilization of all waters of the state and may regulate any activity
or factor that may affect water quality.  
   (f) 
    (g)  In January 2015, the  San Bernardino
Superior Court issued a tentative ruling that state-issued suction
dredge mining permits could not be required on federal land. The
court noted that, while the state clearly has the power to issue
suction dredge mining permits, the state's refusal or inability to
issue the permits creates an obstacle to conforming with federal law.
  California Supreme Court granted a petition for
review to consider whether the federal Mining Act of 1872 (30 U.S.C.
Sec. 22 et seq.) preempts Sections 5653 and 5653.1 of the Fish and
Game Code with respect to the use of vacuum and suction  
dredging equipment (People v. Rinehart, Case No. S222620). 

   (g) 
    (h)  Given the importance of protecting the water supply
for all Californians from degradation, the need to protect what is
left of California native cultural sites, and the value of protecting
the state's wildlife, it is urgent that the Legislature act
immediately to clarify the laws regulating suction dredge mining and
other related forms of small scale motorized gold mining in the state'
s streams and waterways.
  SEC. 2.  Section 5653 of the Fish and Game Code is amended to read:

   5653.  (a) The use of  a vacuum or suction dredge
equipment by a person in a river, stream, or lake of this state is
prohibited, except as authorized under a permit issued to that person
by the department in compliance with the regulations adopted
pursuant to Section 5653.9. Before a person uses  a 
vacuum or suction dredge equipment in a river, stream, or lake of
this state, that person shall submit an application  to the
department  for a permit  for a   to use
the  vacuum or suction dredge  to the department,
  equipment,  specifying the type and size of
equipment to be used and other information as the department may
 require.   require pursuant to regulations
adopted by the department to implement this section. 
   (b) (1) The department shall not issue a permit for  a
  the use of  vacuum or suction dredge 
equipment  until the permit application is deemed complete. A
complete permit application shall include  copies of all
required permits, including permits required under the Federal Water
Pollution Control Act (33 U.S.C. Sec. 1251 et seq.) and the Water
Code, and any other applicable permit required to fully mitigate all
identified significant environmental impacts pursuant to regulations
adopted under subdivision (b) of Section 5653.1.   any
other permit required by the department and one of the following, as
applicable:  
   (A) A copy of waste discharge requirements or a waiver of waste
discharge requirements issued by the State Water Resources Control
Board or a regional water quality control board in accordance with
Division 7 (commencing with Section 13000) of the Water Code. 

   (B) A copy of a certification issued by the State Water Resources
Control Board or a regional water quality control 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
(33 U.S.C. Secs. 1341 and 1344, respectively) to use vacuum or
suction dredge equipment.  
   (2) 
    (C)  If the State Water Resources Control Board or the
appropriate regional water quality control board determines that
 no water quality or water rights permit   waste
discharge requirements, a waiver of waste discharge requirements, or
a certification in accordance with Section 1341 of Title 33 of the
United States Code  is  not  necessary for the 
applicant to  use of  a  vacuum or suction
 dredge,   dredge equipment, a letter
stating this determination signed by the Executive Director of the
State Water Resources Control Board, the executive officer of the
appropriate regional water quality control board, or their 
designee shall be part of the permit application.  
designee.  
   (3) For the purpose of the Permit Streamlining Act (Chapter 4.5
(commencing with Section 65920) of Division 1 of Title 7 of the
Government Code), the department shall not deem the permit
application complete until the applicant submits all necessary
permits and any required letters to the department as part of the
permit application. 
   (c) Under the regulations adopted pursuant to Section 5653.9, the
department shall designate waters or areas wherein vacuum or suction
 dredges   dredge equipment  may be used
pursuant to a permit, waters or areas closed to  those
dredges,   the use of that equipment,  the maximum
size of  those dredges   the vacuum or suction
dredge equipment  that may be used, and the time of year when
 those dredges   the equipment may be used.
If the department determines, pursuant to the regulations adopted
pursuant to Section 5653.9, that the use of  a 
vacuum or suction dredge  equipment  does not cause any
significant effects to fish and wildlife, it shall issue a permit to
the applicant. If a person  operates   uses
vacuum or suction dredge  equipment other than  that
  as  authorized by  the   a
 permit  or conducts the operation in any waters or area
or at any time that is not authorized by the permit, or if any
person conducts the operation without securing the permit, 
 issued by the department consistent with regulations
implementing this section,  that person is guilty of a
misdemeanor.
   (d) (1) Except as provided in paragraph (2), the department shall
issue a permit upon the payment, in the case of a resident, of a base
fee of twenty-five dollars ($25), as adjusted under Section 713,
when an onsite investigation of the project size is not deemed
necessary by the department, and a base fee of one hundred thirty
dollars ($130), as adjusted under Section 713, when the department
deems that an onsite investigation is necessary. Except as provided
in paragraph (2), in the case of a nonresident, the base fee shall be
one hundred dollars ($100), as adjusted under Section 713, when an
onsite investigation is not deemed necessary, and a base fee of two
hundred twenty dollars ($220), as adjusted under Section 713, when an
onsite investigation is deemed necessary.
   (2) The department may adjust the base fees for a permit described
in this subdivision to an amount sufficient to cover all reasonable
costs of the department in regulating suction dredging activities.
   (e) It is unlawful to possess a vacuum or suction dredge in areas,
or in or within 100 yards of waters, that are closed to the use of
vacuum or suction dredges. 
   (f) A permit issued by the department under this section shall not
authorize an activity in violation of other applicable requirements,
conditions, or prohibitions governing the use of vacuum or suction
dredge equipment, including those adopted by the State Water
Resources Control Board or a regional water quality control board.
The department, the State Water Resources Control Board, and the
regional water quality control boards shall make reasonable efforts
to share information among the agencies regarding potential
violations of requirements, conditions, or prohibitions governing the
use of vacuum or suction dredge equipment.  
   (f) 
    (g)  For purposes of this section and Section 5653.1,
 a suction dredge is equipment used for mining operations
that contains any of the following:   the use of 
 vacuum or suction dredge equipment, also known as suction
dredging, is the use of a mechanized or motorized system for removing
or assisting in the removal of, or the processing of, material from
the bed, bank, or channel of a river, stream, or lake in order to
recover minerals. This section and Section 5653.1 do not apply to,
prohibit, or otherwise restrict nonmotorized recreational mining
activities, including panning for gold.  
   (1) A hose that vacuums sediment from the bed or bank of a river,
stream, or lake.  
   (2) A motorized pump.  
   (3) A motorized sluice box.  
   (4) Related small-scale mechanized mining equipment. 
  SEC. 3.  Section 13172.5 is added to the Water Code, to read:

   13172.5.  (a) After the Director of Fish and Wildlife has
certified to the Secretary of State that all of the events described
in subdivision (b) of Section 5653.1 of the Fish and Game Code have
occurred, and after conducting appropriate workshops and hearings
pursuant to subdivision (b), 
    13172.5.    (a) For purposes of this section, the
use of any vacuum or suction dredge equipment, also known as suction
dredging, is the use of a mechanized or motorized system for removing
or assisting in the removal of, or the processing of, material from
the bed, bank, or channel of a river, stream, or lake in order to
recover minerals. This section does not apply to, prohibit, or
otherwise restrict nonmotorized recreational mining activities,
including panning for gold. 
    (b)     In order to protect water 
 quality,  the state board or a regional board may take one
or more of the following actions:
   (1) Adopt waste discharge requirements or a waiver of waste
discharge requirements  that, at a minimum, address the water
quality impacts of each of the following:
   (A) Mercury loading to downstream reaches of surface water bodies
affected by  the use of vacuum or  suction dredge 
mining.   equipment. 
   (B) Methylmercury formation in water bodies.
   (C) Bioaccumulation of mercury in aquatic organisms.
   (D) Resuspension of metals.
   (2) Specify certain conditions or areas where the discharge of
waste  or other adverse impacts on beneficial uses of the waters
of the state  from  the use of vacuum or  suction
dredge  mining   equipment  is prohibited,
consistent with Section 13243.
   (3) Prohibit any particular  methods of suction dredge
mining   use   of, or methods of using, vacuum
or suction dredge equipment, or any portion thereof, for the
extraction of minerals  that the state board or a regional board
determines generally cause or contribute to an exceedance of
applicable water quality objectives or unreasonably impact beneficial
uses. 
   (b) 
    (c)  (1) Before determining what action to take pursuant
to subdivision  (a),   (b),  the state
board  or regional board  shall solicit stakeholder
input by conducting  at least one  public 
workshop. If the state board is soliciting stakeholder input, the
state board shall conduct the public workshops in areas of the state
where, in 2009, a substantial number of residents held a suction
dredge mining permit issued by the Department of Fish and Wildlife.
  workshops in the vicinity of the cities of San
Bernardino, Fresno, Sacramento, and Redding. A regional board
considering independent action pursuant to subdivision (b) shall
solicit stakeholder input by   conducting at least one
public workshop in that board's region.  To promote
participation in the public workshops, the state board or regional
board shall proactively reach out to mining groups, environmental
organizations, and California Native American tribes, as defined in
Section 21073 of the Public Resources Code.
   (2) Before taking a proposed action pursuant to subdivision
 (a),   (b),  the state board  or
regional board  shall conduct at least  two 
 one  public  hearings, and the regional board at
least one public hearing,   hearing  regarding that
proposed  action.   action pursuant to the
Bagley-Keene Open Meeting Act (Article 9 (commencing with Section
11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the
Government Code). 
   (3) To avoid duplication of efforts between the state board and a
regional board of a public workshop or public hearing that covers the
same regional area, the state board and a regional board may work in
collaboration to share information obtained through the public
 workshop   workshops  or public hearing.

   (c) For purposes of this section, a suction dredge is equipment
used for mining operations that contains any of the following:
 
   (1) A hose that vacuums sediment from the bed or bank of a river,
stream, or lake.  
   (2) A motorized pump. 
   (3) A motorized sluice box.  
   (4) Related small-scale mechanized mining equipment. 
   SEC. 4.    (a) Except as provided by the changes made
by this act, the Legislature finds and declares that the regulations
promulgated by the Department of Fish and Wildlife in 2012 to
implement and interpret Sections 5653 and 5653.1 of the Fish and Game
Code were consistent and in compliance with the Fish and Game Code,
the California Environmental Quality Act (Division 13 (commencing
with Section 21000) of the Public Resources Code), and the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code).
 
   (b) The Legislature also finds and declares that, except for water
quality, after complying with the Governor's Executive Order B-10-11
regarding tribal consultation and additional consultation
requirements pursuant to Chapter 532 of the Statutes of 2014, also
known as Assembly Bill 52 (Gatto), the Department of Fish and
Wildlife may determine, for purposes of Section 5653.1 of the Fish
and Game Code, that significant environmental impacts to resources
other than fish and wildlife resources caused by the use of vacuum or
suction dredge equipment for the extraction of minerals are fully
mitigated if a regulation adopted by the department to implement and
interpret Section 5653 of the Fish and Game Code requires compliance
with other laws and provides, in part, that nothing in a permit or
amended permit issued by the department relieves the permittee of
responsibility to comply with all applicable federal, state, or local
laws or ordinances.