Magazine

Legislation & Regulation

Legislative and Regulatory Update

August 2012 by Scott Harn

• National Strategic and Critical Minerals Production Act
Republicans in the House, with the support of twenty-two Democrats, passed the National Strategic and Critical Minerals Production Act on July 12, which would allow the government to exempt some gold, copper, uranium and silver mining on federal lands from formal environmental reviews and would streamline permitting.

The bill would give the federal government discretion to eliminate its environmental reviews of mining projects and accept state reviews instead. It would curtail the time for environmental reviews by limiting the review period to 30 months unless mining companies and the government agreed to an extension.

It would also set a 60-day time limit to file a legal challenge to a mining project, limit injunctions to what is necessary to correct legal requirements and prohibit payment of attorneys’ fees, expenses and other costs billed to taxpayers.

Both parties agreed that the US should be allowed to compete with China to mine rare earth metals.

Representative Doc Hastings (R-Washington), chairman of the Natural Resources Committee, said the bill would create jobs, end duplicative reviews, stop frivolous lawsuits and prevent regulations that hold up new mining projects for more than a decade.

“First and foremost, this is a jobs bill, and the positive economic impact of this bill’s intent will extend beyond the mining industry,” said Hastings.

The bill faces an uphill battle in the Senate, where Democrats maintain a slim majority.

• CA suction dredging update
Following is the latest news release sent out by Mark Stopher of the California Department of Fish & Game:

Interested Parties
The legislature and Governor have enacted SB 1018. A part of this legislation applies to suction dredge mining, and that excerpt is attached.

The law now requires the Department of Fish and Game to report to the legislature on or before April 1, 2013 on suggested legislative changes and a fee structure. The previously established date of June 30, 2016 for the end of the current moratorium on suction dredge mining has been removed.

The Department has not yet determined the exact steps or time-frame for meeting the requirements of this legislation. Further, you may already know there are also several existing lawsuits which are likely to affect the future of suction dredge gold mining. For these reasons, the Department cannot predict when, or if, suction dredging will be lawful in California or when permits may be available to interested miners.

Many miners have inquired about other methods of mining including, though not limited to, highbanking, power sluicing and gravity dredging. We have advised them on a case by case basis of potentially applicable sections of the Fish and Game Code, particularly sections 1602 and 5650.

You should also know that these activities may be subject to the authority of the appropriate Regional Water Quality Control Board. Information on this topic is available at www.swrcb.ca.gov/water_issues/programs/cwa401/suction_dredge.shtml

If you have questions about the authority of the Regional Water Quality Control Board I suggest you contact them directly. You can determine the appropriate office at the following website http://www.waterboards.ca.gov/waterboards_map.shtml

The text of SB 1018, Section 5653 reads as follows:

Section 5653.1 of the Fish and Game Code is amended to read:
5653.1. (a) The issuance of permits to operate vacuum or suction dredge equipment is a project pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) and permits may only be issued, and vacuum or suction dredge mining may only occur as authorized by any existing permit, if the department has caused to be prepared, and certified the completion of, an environmental impact report for the project pursuant to the court order and consent judgment entered in the case of Karuk Tribe of California et al. v. California Department of Fish and Game et al., Alameda County Superior Court Case No. RG 05211597.

(b) Notwithstanding Section 5653, the use of any vacuum or suction dredge equipment in any river, stream, or lake of this state is prohibited until the director certifies to the Secretary of State that all of the following have occurred:

(1) The department 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 et al. v. California Department of Fish and Game et al., Alameda County Superior Court Case No. RG 05211597.

(2) The department has transmitted for filing with the Secretary of State pursuant to Section 11343 of the Government Code, a certified copy of new regulations adopted, as necessary, pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

(3) The new regulations described in paragraph (2) are operative.

(4) The new regulations described in paragraph (2) fully mitigate all identified significant environmental impacts.

(5) A fee structure is in place that will fully cover all costs to the department related to the administration of the program.

(c) (1) To facilitate its compliance with subdivision (b), the department shall consult with other agencies as it determines to be necessary, including, but not limited to, the State Water Resources Control Board, the State Department of Public Health, and the Native American Heritage Commission, and, on or before April 1, 2013, shall prepare and submit to the Legislature a report with recommendations on statutory changes or authorizations that, in the determination of the department, are necessary to develop the suction dredge regulations required by paragraph (2) of subdivision (b), including, but not limited to, recommendations relating to the mitigation of all identified significant environmental impacts and a fee structure that will fully cover all program costs.

(2) The requirement for submitting a report imposed under this subdivision is inoperative on January 1, 2017, pursuant to Section 10231.5 of the Government Code.

(3) The report submitted to the Legislature pursuant to this subdivision shall be submitted in accordance with Section 9795 of the Government Code.

(d) The Legislature finds and declares that this section, as added during the 2009-10 Regular Session, applies solely to vacuum and suction dredging activities conducted for instream mining purposes. This section does not expand or provide new authority for the department to close or regulate suction dredging conducted for regular maintenance of energy or water supply management infrastructure, flood control, or navigational purposes governed by other state or federal law.

(e) This section does not prohibit or restrict nonmotorized recreational mining activities, including panning for gold.

Public Lands for the People was successful in getting Judge Roesch (Alameda County Superior Court) recused from handling the suction dredging lawsuits. PLP is preparing an amendment to their complaint to address the language in SB 1018. This recently passed bill does not substantially change the premise that the current suction dredge ban and new regulations are illegal.

The consolidated cases are currently before Judge Alvarez in San Bernardino County Superior Court, and he will make a determination in a few weeks as to who will hear the cases. It’s expected that he will retain the cases in his court as he has more experience dealing with the issues than any other judge at this point.

Judge Alvarez has been somewhat sympathetic to miners in the past, refusing to go along with lengthy delays requested by the Department of Fish & Game.

We’ll keep you posted when new developments arise.

• Appropriations Bill addresses problems at EPA
The House Appropriations Subcommittee on Interior, Environment, and Related Agencies released their fiscal bill for 2013. The bill provides $1.7 billion less for the EPA, reducing their funding to $7 billion.

The bill includes language and policy riders to prevent the EPA from spending funds to expand their jurisdiction to all waterways and to prevent the agency from imposing additional financial assurance (bonding) requirements on hardrock miners.

• Bad science, worse policy
The Obama Administration’s 20-year ban on uranium mining around Grand Canyon National Park “...was based on politics rather than sound science” said House Resource Committee Chairman Doc Hastings.

And he has good reason to make that statement. Several emails have been made public in which National Park Service scientists declare that the Draft Environmental Impact Statement was way off base.

“It is my opinion that the DEIS grossly overestimates the potential for impacts to water resources of Grand Canyon National Park and the Colorado River from uranium mining and exploration on lands adjacent to the park,” said Larry Martin, a hydrogeologist for the Park Service.

Bill Jackson, Division Chief, National Park Service Water Resources Division, responded, “There exists no information we could find that would contradict his conclusion, nor any hypotheses suggested as to how contamination of park waters might physically occur.”

“This is obviously a touchy case where the hard science doesn’t strongly support a policy position,” he added.

The Northwest Mining Association has filed a lawsuit in federal court to overturn the withdrawal.

Chairman Hastings has requested all notes, emails and related correspondence concerning the withdrawal, including nearly 400 pages of documents that were withheld by the Administration following a 2009 request.

A copy of the emails mentioned above is available online here.