Call to Action: Final public hearing on Proposed Suction Dredge Mining Regulations
Tuesday May 10 9am at the Resources Agency in Sacramento
Next Tuesday, May 10 at 5:00 pm is the deadline for public comment on the Environmental Impact Review of proposed suction dredge mining regulations. The last public hearing on this topic begins at 9:00 a.m. in the Resources Agency hearing room located at 1416 Ninth Street in downtown Sacramento that same day. People concerned about the impact of these regulations are urged to send in their comments and attend this public hearing.
The California Department of Fish & Game began a court-ordered review of suction dredge mining regulations more than a year ago. Their draft Supplemental Environmental Impact Review and proposed new regulations were released earlier this year. Hundreds of people have been attending the hearings held around the state to receive public comment on the proposed regulations.
Included in this article are a sample comment letter, and analysis of flaws in the draft EIR.
“Most of the speakers at the public hearings on this topic have been suction dredge miners who do not want more public scrutiny or regulation of their activities,” notes Elizabeth “Izzy” Martin, CEO of The Sierra Fund. “People with concerns about the environmental, cultural and health impacts of suction dredge mining need to come and speak out at the hearings to express their support for tighter regulation of suction dredge mining.”
People interested in speaking at the public hearing next week are urged to get to the hearing early as speakers will be invited to the microphone in order of their arrival and registration as a speaker. For those who want to submit comments in writing, a sample letter and contact information follows this action alert.
Following the letter is an analysis of flaws in the report identified by The Sierra Fund and a coalition of partners.
May 10, 2011
CA Department of Fish & Game
601 Locust Street
Redding, CA 96001
Re: Comments on Draft Suction Dredge Mining EIR
Dear Mr. Stopher,
I am(/We are) writing to express concern about the draft Supplemental Environmental Impact Review (EIR) of suction dredge mining that is currently being circulated for comment by your Department (DFG). (One sentence here on your organization or interest in the issue). I/we believe that the current EIR proposes draft regulations for mining that are seriously flawed.
The document proposes as its “preferred alternative” draft regulations for suction dredge gold mining that will cause significant and unavoidable impacts on water quality, historical and archaeological resources, noise, wildlife, turbidity and mercury discharge. The new rules open new river and stream segments to dredging where it has already been outlawed by tribal, federal, state or local law, and allows “mega-dredges” to be used.
The program costs much more money to administer than it brings in to the state. The proposed regulations lack clarity and cohesion, and for many rivers and streams in California are vague, confusing, inconsistent, and contradictory. Finally, the document relies on a definition of “deleterious to fish” that is not consistent with California law or legislative intent in directing funds for development of the EIR.
This EIR needs to be redrafted with an eye toward protecting all of California’s fish and wildlife and other natural resources. It is not acceptable for the DFG to spend $1.5 million on this document and then fail to issue protective regulations that are appropriate and consistent with California’s state laws. At a minimum the Department should adopt the most environmentally protective alternatives – either the “no project” or “water quality” alternatives outlined in the document.
Thank you for this opportunity to comment on the suction dredge EIR.
Organization Affiliation (if any)
Analysis of Flaws in the SEIR
The Sierra Fund and coalition partners have completed a review of the SEIR and are preparing detailed technical comments on the document. This review has revealed ten significant flaws in the document:
1. Scope of Regulatory Authority: DFG asserts that its authority to regulate suction dredging is limited entirely to its mandate under Fish and Game Code Section 5653 – that is, DFG must allow the activity if it determines that suction dredging is not “deleterious to fish,” even if it causes significant and unmitigable impacts other than to fish.
The following impacts have been identified in the SEIR as significant and unavoidable:
- Effects of Mercury Resuspension and Discharge from Suction Dredging
- Effects of Resuspension and Discharge of Other Trace Metals from Suction Dredging
- Effects on Special‐Status Passerines Associated with Riparian Habitat**
- Substantial Adverse Changes, When Considered Statewide, in the Significance of Historical Resources
- Substantial Adverse Changes, When Considered Statewide, in the Significance of Unique Archaeological Resources
- Exposure of the Public To Noise Levels in Excess of City of County Standards
- Effects on Wildlife Species and their Habitats**
- Cumulative Impacts of Turbidity/TSS Discharges from Suction Dredging
- Cumulative Impacts of Mercury Resuspension and Discharge from Suction Dredging
** Note that these impacts are already within DFG’s jurisdictional authority.
It is our understanding that DFG intends to invoke the CEQA override provision that there are other agencies with jurisdiction that could and should make changes to the regulations that would reduce these impacts to less than significant.
2. Opening of previously closed waters: The DFG proposes to issue dredge permits for streams within national parks, state parks, Indian reservations (where they have no regulatory jurisdiction), state and nationally designated wild and scenic rivers, state wild trout streams, state wildlife areas and counties where dredging is not permitted by local ordinance. They would tell dredgers that the issuance of a permit does not relieve them of the obligation to abide by the regulations of other agencies, but we know from experience that those agencies do not have the enforcement capability to stop dredging activity. In addition, it is not clear how the suction dredge miner is to learn about these previously closed waters short of doing legal research prior to entering any area for mining.
3. Throwing water quality under the bus: The SWRCB paid $500,000 of the $1,500,000 cost of the EIR with the intent that the new regulations would incorporate Porter Cologne and Clean Water Act requirements. It doesn’t. Four of the nine significant and unmitigable impacts are to water quality. If the DFG regulations go forward, the Water Board would have to develop a second permitting system for dredgers, at some expense to the agency and for which it has no enforcement capability. Streams that have gold also are impacted by the historic use of mercury to isolate gold particles, and the EIR includes studies showing that dredging picks up, breaks down and mobilizes mercury in its most toxic form. In fact, the USGS study cited in the document demonstrates that one suction dredge over one summer of mining in the Yuba River mobilized more mercury than the entire season of winter storms in a normal rain year in that watershed. The general rule in California is that if there is gold in the riverbed, there is mercury too. You can suck mercury out of the creek with a turkey baster throughout the Gold Country.
4. The EIR is not consistent with Legislative Intent to protect fish: The document relies on a definition of “deleterious to fish” that is not consistent with California law or legislative intent in directing funds for development of the EIR. The Department asserts its authority to regulate suction dredging is limited entirely to its mandate under Fish and Game Code Section 5653 and that DFG must allow the activity if it determines that suction dredging is not “deleterious to fish,” even if it causes significant and unmitigable impacts to vital California resources other than fish.
DFG defines an impact deleterious to Fish, for purposes of section 5653, is “one which manifests at the community or population level and persists for longer than one reproductive or migration cycle.” This assertion is in direct contradiction to both the common dictionary use of the word “deleterious” and the legal definition used by the legislature in 1961 when the first California statute regulating suction dredge mining, Fish and Game Code Section 5653, AB 1459 (Arnold) was enacted.
In his letter to the governor requesting a signature on the bill, Assemblyman Arnold stated that dredging should be done so to cause only “minimal damage” to fish, from which he specifically excluded disturbing eggs, disturbing fish food organisms and stirring up silt to cause an “aesthetic problem” and cover eggs. The Legislative Analyst’s Office analysis of AB 1459 in 1961 noted, “the department must then determine whether the operation will be safe for fish life and if so it will issue a permit to the applicant.” In a letter to the Governor requesting his signature on AB 1459 DFG stated, “The department shall issue a permit if it is judged that no damage will occur to fish, aquatic life, and the aquatic environment.” So in information on which the Governor based his decision to sign AB 1459 into law, “not deleterious to fish” meant “no damage” to “fish, aquatic life and the aquatic environment.” In the handful of bills since 1961 affecting this section, no legislation has ever used a term other than “deleterious to fish” nor offered any other interpretation of its meaning.
5. Significant and unmitigable impacts to historic and archaeological resources: DFG’s intention is to allow their permitting program to go forward even with these impacts. However, in California, there is no other agency with the authority to impose limitations on dredging activity to reduce these impacts to a less than significant level. As the draft EIR notes, many Indian village sites are along California’s streams and rivers.
6. Failure to study specific stream segments: DFG did not study specific stream segments, and so only vague conclusions concerning impacts can be reached. Without specific information on stream segments, DFG cannot conclude that the activity won’t be “deleterious to fish” in stream segments that it proposes to open to suction gold dredge mining. This problem is especially serious in that many of the streams open to suction dredge mining are severely impacted by legacy mercury contamination. In many cases the streams have been tested and listed on the 303 (d) water quality impaired list – but in others the streams have not been tested.
7. Relies on impact reduction through voluntary Best Management Practices: DFG intends to give miners a brochure with a list of Best Management Practices (BMPs) intended to reduce significant impacts. But voluntary guidelines are not acceptable mitigation, particularly with a user group that has testified at recent public hearings that they fully intend to ignore new restrictions on their hobby. For example, by their own response to the survey conducted as part of the EIR, 56% of suction dredge miners encounter mercury as a part of their operation – but the DFG regulations are entirely silent on procedures for recovering, storing, transporting or disposing of this Prop 65 listed highly toxic material.
8. Still allows mega-dredges: The EIR concludes that dredge hose size should be limited to four inches, but then would still permit hose size of up to eight inches (five times the capacity of a four-inch hose) if a miner files a request pursuant to the streambed alteration section. The department estimates that they would receive 500 such requests, which require an onsite inspection and a response within 60 days. The department already has an Attorney General’s opinion that Section 5653 does not authorize the department to issue permits that do not comply with the generally applicable regulations specifying equipment and methods of operation.
9. Program is a costly money loser for California: In previous years, DFG has estimated that the permits cost an average of $450 to process and to cover the costs of the program. In its new estimate of revenue from 4,000 permits and onsite inspection fees, the DFG says it will receive $373,000 per year. If the department’s previous cost estimates are accurate, the program will cost $1.8 million, plus the unknown new cost of 500 site inspections for miners requesting to use oversize equipment. The department has used 27 DFG employees in the development of the proposed regulations so far. DFG wardens would be required to enforce regulations that dredgers have vowed to ignore. The department will have to defend likely lawsuits over the new regulations. In addition, the SWRCB will have to develop a second permitting program, with another CEQA required environmental impact review, at an unknown cost to that agency.
10. Proposed regulations lack clarity and cohesion: For many rivers and streams in California, DFG’s proposed regulations are vague, confusing, inconsistent, and contradictory. Some rivers that follow county boundaries have two different regulations depending on which side of the river you may be on. Regulations based on county boundaries and/or obscure geographical features may be difficult for the public to interpret. Typographical errors and obvious mistakes in the 1994 regulations have been carried through to the proposed regulations. Some streams with special values (critical habitat for threatened and endangered species, state Wild Trout Stream status, etc) are closed to dredging but other streams with identical values are not.