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California Governor signs AB 120 -- Bill places additional moratorium on suction gold dredging and untenable requirements for permitting

July 26, 2011

California Governor Jerry Brown signed Assembly Bill 120 (AB 120) this afternoon, which spells out additional requirements that must be met before the Department of Fish & Game can resume issuing permits for suction gold dredging in the state.

The bill requires "the director to certify that the new regulations fully mitigate all identified significant environmental impacts" and "a fee structure... that will fully cover all costs to the department related to the administration of the program."

The bill also places a moratorium on suction dredging until June 30, 2016, which will remain in effect unless the director of Fish & Game certifies to the Secretary of State that the following conditions have been met:
  • the department has completed the environmental review of its existing vacuum or suction dredge equipment regulations as ordered by the court
  • the department has transmitted for filing with the Secretary of State a certified copy of new regulations, as necessary, and
  • the new regulations are operative.
As you already know, the California DFG was working on a Supplemental Environmental Impact Report (SEIR) for suction gold dredging that had been ordered by the legislature and Alameda Superior Court. In the SEIR, DFG claims there will be “significant and unavoidable environmental impacts” related to mercury, trace metals, riparian habitat, historical resources, archaeological resources, aesthetics, noise, wildlife and turbidity.

There is no possible way to "fully mitigate" some of these items, which is the untenable standard set out in AB 120. This will have to be addressed in court.

Miners sent hundreds of letters to Governor Brown, urging him to veto Section 12 of AB 120, to no avail. In the end, Brown placed the wishes of environmental extremists over the need for jobs and the economic prosperity generated by suction gold dredgers. Suction gold dredgers contribute millions of dollars to the California economy, which has been thoroughly documented, and the state is still billions in debt.

Brown signed another controversial bill on the previous day that allows illegal immigrants to compete with legal residents for scholarships. State law already allows illegal immigrants to pay in-state tuition rates for state universities.

Following is the complete text of Section 12 of AB 120, signed by Governor Brown on July 26, 2011:

(12) Existing law designates the issuance by the Department of Fish  and Game of permits to operate vacuum or suction dredge equipment to be a project under the California Environmental Quality Act (CEQA), 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, for instream mining purposes, until the Director of Fish and Game certifies to the Secretary of State that (a) the department has completed the environmental review of its existing vacuum or suction dredge equipment regulations as ordered by the court, (b) the department has transmitted for filing with the Secretary of State a certified copy of new regulations, as necessary, and (c) the new regulations are operative.
   This bill would modify that moratorium to prohibit the use of vacuum or suction dredge equipment until June 30, 2016, or until the director's certification to the secretary as described above, whichever is earlier. The bill would additionally require the director to certify that the 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.


Mark Stopher of DFG sent out the following email outlining his department's view of the current situation:

Interested Parties
 
Today, July 26, 2011, Assembly Bill 120 was approved by Governor Brown.

This legislation amends seven different codes within California State law including the Fish and Game Code. Two paragraphs in this bill refer to suction dredge mining and have substantial impacts on the process to conduct environmental review and adopt amended regulations guiding suction dredge mining in California.
 
The Department of Fish and Game released draft regulations and a related Draft Subsequent Environmental Impact Report (SEIR) for public review on February 28, 2011. We held six public meetings and accepted public comments through May 10, 2011. At that time we projected that we would be adopting new regulations and certifying the Final SEIR by the end of 2011. This would then have permitted the sale of suction dredge permits under newly adopted regulations.
 
Assembly Bill 120 affects this effort in four important ways.
 
First, it establishes an end date for the current moratorium of June 30, 2016. The current moratorium was established by SB 670, and took effect on August 9, 2009, without any specific end date. The new law specifies that the moratorium will end on June 30, 2016, regardless of whether DFG completes court-ordered environmental review of its existing permitting program or adopts new regulations. Of course, further legislation or action by the courts could modify that circumstance.
 
Second, AB 120 requires that any “new regulations fully mitigate all identified significant environmental impacts.” As directed by the Alameda County Superior Court and SB 670, DFG prepared the Draft SEIR to meet requirements of the California Environmental Quality Act (CEQA). In addition to CEQA, AB 120 now requires DFG to meet a “fully mitigate” standard for any adopted suction dredge mining regulations in order for the new moratorium to end any earlier than June 30, 2016. “Fully mitigate” is not defined in statute or regulation, however, and previously the term has only been used in the Fish and Game Code in section 2081, subdivision (b), of the California Endangered Species Act.
 
Third, a new condition, required by AB 120 is “a fee structure is in place that will fully recover all costs to the department related to the administration of the program.” DFG takes the view that the current fee structure is not sufficient to support the level of effort which should be devoted to implementing our authority to regulate suction dredge gold mining. In addition to the administrative costs of selling permits, DFG believes we should have environmental scientists funded through suction dredge permit fees to conduct on-site inspections as needed prior to issuing permits and also to monitor suction dredge mining to collect data on effects on aquatic and terrestrial organisms and habitat. Further, suction dredge permit fees should provide funding for game wardens to inspect, monitor and enforce compliance with any new regulations. Under current law, however, the fee structure for DFG’s permitting program is prescribed by statute.  Any change to that structure is beyond the authority of DFG and any such change will require action by the California Legislature and related approval by the Governor.  Because of the legislative calendar for submittal of new legislation and the legislative process itself, it is very unlikely that any change to the existing fee structure will occur within the 2011 calendar year.
 
Finally, the previous moratorium established by SB 670 was clear that DFG needed to take several actions (i.e. comply with CEQA and adopt amended regulations) which would then allow suction dredge mining to resume, under the new regulations. Said another way, DFG had the final State approval to complete the process, subject only to the Alameda County Superior Court’s concurrence. AB 120 adds a legislative step, described in the previous paragraph. Simply put, the legislature will need to affirmatively approve a new fee structure, before suction dredge mining can resume under new regulations. The perspectives of legislators about sufficiency of a fee structure and suction dredge mining generally will affect the probability of such legislation being approved.
 
With this set of new facts in front of DFG, we are evaluating the extent to which the work we have already done can be used under the requirements of AB 120, and how we might proceed. We do not yet have a revised workplan or schedule. However, our previous projection that this process would be complete by the end of 2011 is no longer viable. It will likely be several weeks from now before we have determined what we will need to proceed and how we can do so. I will provide additional information to the recipients of this message when there is something new to report.
 
Mark Stopher
Environmental Program Manager
California Department of Fish and Game
601 Locust Street
Redding, CA 96001
 
voice 530.225.2275
fax 530.225.2391
cell 530.945.1344
mstopher@dfg.ca.gov

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