SB 838 and the Future of Mining in Oregon
February 2014 by Walt EvensThe verbiage in SB 838 is vague and ambiguous to say the least. As a result, there is quite a bit of misinformation floating around the rumor mills.
With this article, I hope to bring some clarity and everyday language to the situation.
I have been in touch with both Anita Huffman, Staff Leader for Suction Dredging Rulemaking with the Oregon Department of State Lands (DSL) in Salem, and James Billings, Compliance Specialist with the Oregon Department of Environmental Quality (DEQ) in Portland.
The DSL is focused on Fish Habitat, and the DEQ on the clarity of the water.
Here’s what I got from the DSL:
According to Ms. Huffman, Oregon DSL will only be issuing 850 permits. The recipients of said permits will be determined by a point system based on how many permits an applicant had from 2006 to 2013. Points will be awarded for both DSL permits and DEQ 700 permits. One point will be awarded for each permit an applicant possessed during that time up to a total of 8. Those with the most points will be put on the top of the list, and those with the fewest will be on the bottom. The deadline to apply is February 28, 2014.
A DSL permit is not needed if you are panning or sluicing and move less than a cubic yard of material at one location, or 5 yards collectively within an Essential Salmon Habitat (ESH) per annum. The same holds true for Scenic Waterways where motorized equipment is not allowed.
If you are not in an ESH, the limit is 50 cubic yards per year—a cubic yard equals 40.392 five-gallon buckets. Although you do not need to apply for a DEQ 700 permit to sluice, you must have a copy of the general permit in your possession and adhere to what is stated therein.
You can download a copy here: www.deq.state.or.us/wq/wqpermit/docs/General/npdes700pm/permit.pdf
You will need both a DSL permit and a DEQ 700 permit to dredge in an ESH. If you are dredging in non-ESH waters, a DSL permit is not required unless your nozzle is larger than 4 inches. As mentioned, the DSL is only issuing 850 permits. The DEQ will issue permits beyond the 850 limit for dredgers who will be dredging in non-ESH areas. The caveat to that is eighty-five percent of the streams in Oregon are in ESH.
You can find the ESH Waters Map online here: www.oregon.gov/dsl/PERMITS/Pages/counties_ess.aspx
The DSL permit will not be good statewide—you will be limited to selecting three locations. Should you decide to go elsewhere, you must contact the DSL directly. So far they have not decided how location changes will be handled. According to Anita Huffman, they could either add it to your list or replace one of the three on a case-by-case basis. Under no circumstances can you dredge locations other than those on your permit. However, the locations are listed by Township, Range and Section, so you have a little room to move about. A Section is 640 acres, so if you have a couple places open to the public or claims in the same section, you’re in the clear.
From both agencies: You do not need a DSL permit for anything that occurs out of the water and away from the stream. I know SB 838 indicates that we must be at least 100 yards (300 feet) above the “high water mark.” James Billings states, “That is for heavy equipment such as backhoes.” You can “high bank” or “power sluice” the same as before. 12-volt equipment is considered “motorized,” so you will still need a DEQ WPCF 600 permit and to abide by those rules. The permit is free as long as you process less than 1,500 cubic yards per year, otherwise it costs $213 to be able to process 1,500 to 10,000 cubic yards. No water is allowed to run back into the stream, so a “settling pond” may be required. Destruction of any vegetation is not allowed and you must reclaim the land as in “filling the holes.” If it’s a one-day outing, filling should be done that day. If you’re on your own claim, then you should fill on an ongoing basis.
You can download the WPCF 600 application here: www.deq.state.or.us/wq/wqpermit/docs/general/wpcf600/application1.pdf
From DEQ: Dredging will require a DEQ 700 permit. The cost will be $25 with a new $150 annual surcharge tacked on. Those funds will be put into a separate account in the State Treasury to pay for the DEQ “Field Force,” which will study suction dredging operations. They will be taking notes while observing and interviewing suction dredgers in the field. The findings will be used to determine whether there will be a moratorium on motorized mining in 2016.
You can download a copy of the surcharge payment form here: www.deq.state.or.us/wq/wqpermit/docs/general/npdes700pm/SurPayment700.pdf
If you plan on dredging, you need to first apply for a permit from the Oregon Department of State Lands.
You can download a copy here: www.oregon.gov/dsl/PERMITS/docs/FINAL%20GA_Placer_App_2013.pdf
Once you have your DSL permit, you can then fill out your DEQ 700 application as well as the surcharge payment form and submit $25 for the permit and the $150 surcharge to DEQ. If you currently hold a 5-year permit, all you have to do is send in the surcharge form and $150.
Oregon DEQ permits are good for 5 years, and 2014 is the final year for the 2000 to 2014 period; a new permit will be established for 2015 to 2020. You either paid $100 for five or are paying $25 for this year’s. With a moratorium looming in the future, I doubt if most people will pay for the full five years in 2015.
I was told by Jim Billings that there are currently 890 five-year permit holders. Some of them may not like the new fee and won’t apply for a DSL permit. I’m hoping that some won’t apply to the DSL or not pay the fee or use their DEQ 700 permit.
DEQ will be sending letters out to everyone who has held a DEQ 700 permit since 2013. They will explain the process and advise the previous holders to wait until they hear from DSL before applying for the permit or sending in monies. In fact, the person in charge of processing those applications will be out of the office until April and the paperwork will not be processed until then.
Sluicing is allowed all year long and does not have the same hours or season limitations as dredging. You do not need to keep a log book for turbidity (clouding or dirtying the water), but the same representative I spoke to stated that it wouldn’t be a bad idea, as mandatory record keeping for dredging will begin next year with individuals needing to turn a report in to the DSL and/or DEQ. It could be two individual reports or they may come up with one consolidated report—they haven’t decided yet. Currently, you only have to file with the DSL by the end of the year.
You can download the current log here: www.deq.state.or.us/wq/wqpermit/docs/general/npdes700pm/700PMMonitorRecord.pdf
The biggest concern with sluicing after the end of dredge season is setting the sluice box on fish eggs; most of the time you can’t see them. Billings suggested that you call the Fish Biologist at your local Oregon Department of Fish and Wildlife and talk to them to see if it’s safe to put one in the water.
SB 838 will be revisited here in the near future; maybe as early as February, but no later than March. Some of the provisions that may change are clarification of the 100 yard rule for motorized equipment and leaving your dredge in the water next to the bank (as opposed to taking it out completely).
In ESH waters you can use up to a 6-inch hose necked down to a 4-inch nozzle (16 HP engine limit) but it would require some sort of a solid adapter rather than just welding a 4-inch limiter ring on the 6-inch nozzle.
You can use up to a 6-inch nozzle in non-ESH; however, you would also need a DSL permit. For those wishing to use an 8-inch dredge, it would require an “Individual Permit” rather than a “General” one. The application fee is $300 and there may be land use fees as well. I was told by Billings of one incident where Jackson County wanted to assess a $3,500 land use fee. The miner withdrew his application. It also takes from 6 to 9 months to process and involves public reviews and comments. In any event, the discharge would flow beyond the 300 foot legal limit!
The same would be true for anyone wanting to mine on a larger scale like they do in Alaska on some of those reality TV shows. There most likely would be some pretty hefty reclamation bonds involved as well.
SB 838 has scared and angered most of the mining population and vendors alike. There were 2,409 suction dredge permits issued in 2012, so the reduction in the number of permits issued will result in many frustrated miners.
You can view the new SB 838 webpage: www.oregon.gov/dsl/PERMITS/pages/ga_placerinfo.aspx
On that page you will also find a link to their frequently asked questions.
A two-pronged approach is necessary to restore suction dredging; federal preemption needs to be established as addressed above via petition; and clarification from the EPA is needed to establish that no Section 402 permit is necessary when there is no “addition” of a pollutant.
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