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Uphill Battle Continues for California Dredgers

September 2018 by Scott

Is Suction Gold Dredging Really Returning to California in 2019?

California is a hostile state when it comes to suction gold dredging and other forms of mining. The state passed several bills disguised as temporary moratoriums on suction gold dredging while environmental studies were to be completed and a new permitting system put in place. As a result, suction gold dredgers have been out of the water and out of work for nearly ten years now while they wait for the new permitting system to be implemented and the state continues to drag their feet.

I began suction gold dredging back in the early 1980s, and was proud of the fact that I was cleaning up mercury, lead, and other heavy metals—along with trash from campers, rafters and other public land users—while recovering gold.

But we are talking about an ideology in this case; an ideology that puts plants and animals above the economic needs and well-being of mankind, even when our activity provides a net benefit to the environment.

The American Mining Rights Association (AMRA), the Western Mining Coalition, and Dave McCracken of The New 49er’s are currently negotiating with the State Water Resources Control Board in an attempt to get a permitting system re-established for suction gold dredging. I applaud their efforts. I think their hearts are in the right place, though I don’t believe the end result will be something that miners can live with. Let me explain in a little more detail:

In 1994, miners gave up some of their rights in negotiations with the State of California in order to keep dredgers in the water and working. Keep in mind that over 18,000 dredgers operated in California in the early 1980s, without one reported fish death, no mercury poisoning, no contaminated drinking water.

Some dredgers were forced to reduce the size of their dredges after the 1994 regulations came out, which negatively affected their income. Seasons were established that kept dredgers out of the water during spawning times, and I have no qualms about that particular requirement.

In 2012, as a result of a new Environmental Impact Statement issued by the state, numerous gold-bearing rivers and creeks were placed off-limits under the guise of protecting threatened or endangered species. Under the new EIS, the benefits of removing heavy metals, and creating deeper, cooler pools for spawning were ignored, and most of the major gold-bearing rivers were removed from the list of those approved for dredging.

There are currently three controlling agencies or entities over suction dredging in California—and you can make that four if the state legislature decides to further muddy the waters with additional legislation to block suction gold dredging in the state.

Environmental Protection Agency

First is the Environmental Protection Agency (EPA). The agency has not changed their stance regarding the requirement for a National Pollution Discharge Elimination System (NPDES) permit for suction dredging. The NPDES permit requirement is triggered by the Clean Water Act; however, the law states there must be the addition of pollutant. As we all know, in suction gold dredging, there is no addition of a pollutant. Material is sucked up, heavy metals and minerals are removed, and the remaining material is returned.

In 2013, the US Supreme Court affirmed this interpretation in Los Angeles County Flood Control District v. Natural Resources Defense Council, et al. [568 US 78 (2013)].

In writing for the majority, Justice Ginsburg stated, “...We held in Miccosukee that the transfer of polluted water between ‘two parts of the same water body’ does not constitute a discharge of pollutants under the CWA. [541 US, at 109-122.]

“We derived that determination from the CWA’s text, which defines the term ‘discharge of a pollutant’ to mean ‘any addition of any pollutant to navigable waters from any point source.’ [33 USC §1362(12)]. Under a common understanding of the meaning of the word ‘add,’ no pollutants are ‘added’ to a water body when water is merely transferred between different portions of that water body.

“As the Second Circuit [aptly] put it..., ‘[i]f one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not “added” soup or anything else to the pot.’ ” Miccosukee, 541 US, at 109–110 (quoting Catskill Mountains Chapter of Trout Unlimited, Inc. v. New York, 273 F. 3d 481, 492 (CA2 2001)).

Individual states, including California, Idaho, Oregon and Washington, rely on the EPA for funding for many different programs. Some states use NPDES because they do not want to risk losing that funding; others, like California, use the permit requirement to further frustrate suction gold dredgers. These agencies will continue to insist on a NPDES type of permit until the EPA clarifies that such a permit is not required in light of the US Supreme Court decision.

Back in March 2018, Clark Pearson (Public Lands for the People) and I met with a deputy director at the EPA in Washington, DC. We hand-delivered a letter written by a suction dredge miner in Idaho and signed by seven members of the Idaho legislature requesting they issue a memo to all state and federal agencies following the US Supreme Court ruling and clarify that no NPDES permit is required for suction gold dredging.

During a follow-up conversation with that EPA director in August, he told Pearson the matter is currently being reviewed and we will have a decision shortly from this administration.

Getting the NPDES requirement rescinded should provide immediate relief in Idaho. The State of Idaho currently issues suction dredge permits, but agencies like the US Forest Service still require the NPDES permit.

California Department of Fish and Wildlife

Second is the California Department of Fish and Wildlife. This agency has been doing their best to frustrate suction gold dredgers and other in-stream miners for decades. The agency was asked to review the environmental impact of suction dredging following a lawsuit by environmental groups. This was followed up with state legislation that placed a moratorium on dredging until a new Environmental Impact Statement could be produced.

Fish and Wildlife delayed the process for several years, then began by resetting the baseline of the study—they measured the impact of suction gold dredging versus having no dredges in streams and rivers rather than the 3,000 or so that were in operation when the moratorium began.

In 2012, the agency promulgated new regulations for suction gold dredging. The end result is a set of regulations that prohibit the use of suction gold dredging equipment on the majority of the best gold-bearing streams and rivers in California. Those that remain are limited to 4-inch nozzle sizes, restricted work windows, extensive reporting requirements, and the list goes on.

California State Water Resources Control Board

And lastly, miners now have to deal with the California State Water Resources Control Board (SWRCB).

The California legislature passed Senate Bill 637 in 2015, which required the SWRCB to establish waste discharge regulations for suction dredging. Again, note they called it “waste discharge” even though there is no addition of a pollutant under the Clean Water Act.

Back in 2016, I warned readers about the pitfalls of negotiating with the SWRCB over suction gold dredge permitting. The board is appointed by Governor Jerry Brown. He placed Felicia Marcus, former western director of the Natural Resources Defense Council (NRDC), as chair. You can bet she will do her best to ensure that no dredgers will be able to afford a dredge permit, as the NRDC has filed lawsuits to block miners and other public land users dozens of times and the NRDC were the losers in the US Supreme Court case I highlighted earlier.

In fact, the water board states that current negotiations include a permit that will cost around $6,000 for a dredger to run a 4-inch suction dredge, and the services of a water engineer will be required to do an initial study on the area to be dredged along with continual reporting requirements. (The services of a water engineer alone can be in excess of $20,000.)

At this point of the negotiations, the only ones who might see any benefit are large groups or clubs that may be able to pool resources to complete a study on a particular stretch of a stream or river that is not on the list of streams or rivers that have been placed off-limits by Fish and Wildlife. Independent suction dredge miners will be out of business. Those who remain will be forced to join groups and compete for the gold with other group or club members, all within the limited, defined area where a study has been completed.

The SWRCB says they anticipate releasing a draft permit for public comment by February 2019, and will hold a public meeting to consider adoption of the draft permit in the Spring of 2019.

The agency still refers to the proposed permit as the “draft NPDES permit,” and that is a problem. Any miner who applies for the NPDES permit will be, in effect, applying for a pollution permit, and should expect environmental groups like the Natural Resources Defense Council to file lawsuits to stop it. What the California legislature, Natural Resources Defense Council, SWRCB, and California Fish and Wildlife have created is another path to litigation, with no end in sight. And that is exactly what they want.

The Answer Is...

So, let’s answer the question: Will suction dredging return to California in 2019?

The answer is: Possibly, but it will be economically impossible under the proposed scheme for suction gold dredgers who mine for a living. At this juncture, it looks like those who might be dredging will compete with others for limited resources in a defined study area.

And keep in mind that if you apply for a NPDES permit you are, in effect, admitting you are a polluter, potentially opening yourself up to environmental lawsuits.

Now that I’ve made you totally depressed, go on and read the “PLP Update” later in this issue for a solution.

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