California extends suction dredging ban for 5 more years
7/26/2011 3:17 PM
DFG interprets new anti-dredging law
The following email from the California Department of Fish and Game was issued today (July 26, 2011):
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 theadministration 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 relate approval by the Governor. Because of the legislative calendar for submittal of new legislation and the legislative process itself, it is very unlikely tha 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.
Environmental Program Manager
California Department of Fish and Game
601 Locust Street
Redding, CA 96001