In California's latest attempt to work around the U.S. Constitution Governor Brown signed into law SB 637 which prohibits the use of any motorized mining equipment without multiple permits from various State agencies.
No surprise, but SB 637 was jammed through the legislature, despite the opposition of every representative of gold mining country, and all the representatives of the rural counties. A bill prepared by the Sierra Fund and handed off to a representative from Beverly Hills who has never seen a gold dredge, but did the Sierra Fund's bidding all the same.
It's not as if we didn't expect it, and we weren't surprised by it. Next we suppose they'll push a bill through to regulate walking off the pavement, or at least require a permit to walk on real dirt.
After a seven year legal battle in which we've put up a string of wins the State and their environmental group allies have chosen a new path. A path which they believe will protect them from courts finding they've violated the U.S. Constitution. Their new path is through administrative regulation. Regulation designed to separate you from your rights while providing a thin cover of maintaining the State's right to "regulate."
So now we turn our attention to the State Water Board, the California Porter Cologne Act, the Federal Clean Water Act, and of course the new anti-dredging law, SB 637.
The new law will impact small scale mining in significant ways. If left unchallenged this law effectively ends small scale mining and prospecting by requiring a Water Quality permit for virtually any type of activity which uses water, or is even located near the water.
However, SB 637 also ends the dredging ban; if you can obtain a permit. The new law allows suction dredging after receipt of a permit from the California Department of Fish and Wildlife (CDFW), but only upon a complete application. The complete application includes the submission of a Water Quality discharge permit.
It's yet another ban, but a ban which dangles the hope of obtaining a permit after spending thousands of dollars, enduring environmental impact reviews and listening to every environmentalist in the state whine about every conceivable impact from scaring beetles to stepping on grass.
The bill requires you to have a permit issued by the Water Board prior to applying for a permit from the California Department of Fish and Wildlife (CDFW). Just one problem: there is no process for obtaining that permit and recent discussions with the Water Board indicate they have no idea how to implement a process. But this is a trivial matter compared to the probability of you actually obtaining a Water Board permit.
The bill also reclassifies the decision making process CDFW will use in determining whether you will be issued a permit from a standard of "deleterious effects" to "no significant effects" on fish and wildlife.
So who decides what a significant effect is? CDFW. But what exactly could be considered a significant effect? Is causing a fish to swim away, or a frog to jump in the water a significant effect? If CDFW determines a level of significance similar to what they used in the environmental impact report then virtually any activity near the water, to include stepping on grass, could be considered a significant effect. The new law establishes no criteria for what constitutes a significant effect.
Above. Miner using a highbanker, which is now an illegal act in California.
Although the San Bernardino court invalidated the 2012 regulations, the new law also requires compliance with the regulations. Which established a prohibition on the use of a suction dredge in over 600 gold bearing rivers and streams in addition to setting a maximum number of permits at 1,500 and a maximum dredge size of 4".
In order to apply for a suction dredge permit you'll be required to obtain either a waiver of waste discharge requirements or a Federal Clean Water Act permit and State certification of the Federal permit. In accordance with the California Porter Cologne Act you'll also be required to pay significant application fees prior to applying for the CDFW permit, which may be disapproved even after receipt of the Water Board permit.
Before you run out and apply for your Water Quality permit keep in mind the new law requires the Water Board to study (at a minimum) the effects of suction dredging on methylmercury accumulation and trace metal discharges from suction dredges. The Water Board is provided the authority to close any river or stretch of river where they believe the use of a suction dredge may effect water quality. Which leaves just about zero areas open to suction dredging because the Water Board has already determined this prior to the study. In written statements by Water Board personnel have they assured the San Bernardino Court they intend to prohibit suction dredging, even with no evidence suction dredging impacts water quality.
Prior to the issuance of a suction dredge permit the Water Board is required to hold public hearings, and make special outreach to Indian tribes. The purpose of these public hearings is to allow public comment on your specific permit which will allow every environmental group in the country to protest against your dredging permit.
Of course all these new rules take time, lots of time. In fact, there is no timeline at all for the Water Board to conduct their mandated studies on mercury and trace metals. Nor is there a timeline for the CDFW to review and determine whether you permit application is complete.
Nor is there a process to challenge the State when they say your dredging may cause significant impacts on some type of fish or clam.
SB 637 intends to close the use of all motorized equipment used for prospecting and mining. Written by the Sierra Fund, a lobbying organization in Nevada City, and sponsored by Senator Ben Allen, who represents Beverly Hills in the legislature, this bill strips away mining rights and replaces them with lots of empty rivers.
It's interesting to note, by the letter of the law, this law would close all sand, gravel and aggregate operations across the State. It also changes the definition of a suction dredge to encompass anything with a motor, which includes boats.
The miners will once again challenge California's ill conceived laws as being an unconstitutional violation of our rights to mine.