Bill Text: CA SB637 | 2015-2016 | Regular Session | Chaptered
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-Chaptered.html
BILL NUMBER: SB 637 CHAPTERED
BILL TEXT
CHAPTER 680
FILED WITH SECRETARY OF STATE OCTOBER 9, 2015
APPROVED BY GOVERNOR OCTOBER 9, 2015
PASSED THE SENATE SEPTEMBER 11, 2015
PASSED THE ASSEMBLY SEPTEMBER 11, 2015
AMENDED IN ASSEMBLY SEPTEMBER 10, 2015
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, 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 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 or
other adverse impacts on beneficial uses of the waters of the state
from the use of vacuum or suction dredge equipment is prohibited, or
prohibit particular use of, or methods of using, vacuum or suction
dredge equipment, or any portion thereof, for the extraction of
minerals, as specified.
The bill would specify that 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.
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 equipment until
after the Department of Fish and Wildlife completed a court-ordered
environmental review of its related permitting program and existing
regulations.
(b) In July 2011, Governor Schwarzenegger signed Assembly Bill 120
(Chapter 133 of the Statutes of 2011), extending the prohibition on
the use of vacuum or suction dredge 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 implementing 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 costs 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.
(e) In June 2012, 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.
(f) On April 1, 2013, the department submitted the required report
to the Legislature. The 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.
(g) In January 2015, the 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).
(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 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 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 to use the
vacuum or suction dredge equipment, specifying the type and size of
equipment to be used and other information as the department may
require pursuant to regulations adopted by the department to
implement this section.
(b) (1) The department shall not issue a permit for the use of
vacuum or suction dredge equipment until the permit application is
deemed complete. A complete permit application shall include 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.
(C) If the State Water Resources Control Board or the appropriate
regional water quality control board determines that 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
vacuum or suction 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.
(c) Under the regulations adopted pursuant to Section 5653.9, the
department shall designate waters or areas wherein vacuum or suction
dredge equipment may be used pursuant to a permit, waters or areas
closed to the use of that equipment, the maximum size of the vacuum
or suction dredge equipment that may be used, and the time of year
when the equipment may be used. If the department determines,
pursuant to the regulations adopted pursuant to Section 5653.9, that
the use of 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 uses vacuum or suction dredge equipment
other than as authorized by a 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.
(g) For purposes of this section and Section 5653.1, 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.
SEC. 3. Section 13172.5 is added to the Water Code, to read:
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 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 equipment is
prohibited, consistent with Section 13243.
(3) Prohibit any particular 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.
(c) (1) Before determining what action to take pursuant to
subdivision (b), the state board shall solicit stakeholder input by
conducting public 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 (b),
the state board or regional board shall conduct at least one public
hearing regarding that proposed 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
workshops or public hearing.
SEC. 4. 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.
