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 _ ----------------------------------------------------------------- |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 | | | |-----+--------------------------+-----+--------------------------| | | | | | ----------------------------------------------------------------- _ 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 _ SB 670 _ Page 2 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 _ SB 670 _ Page 3 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. _ SB 670 _ Page 4 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, _ SB 670 _ Page 5 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