Fear the Water Board

Water Board Begins Hearings with Clear Bias

Don't Expect a Fair Review by the Water Board


When the regulators step in it's rarely a happy ending for those being regulated.

The California Regional Water Quality Control Board (RWQCB) announced a series of public hearings as required by Senate Bill 637 to receive input on the suction dredge permitting program, but they have a clear bias against suction dredging right from the start.

In a declaration filed in 2013 the deputy director Elizabeth Haven said "suction dredge mining has the significant unavoidable water quality impacts of resuspension of mercury an other trace metals, including copper, lead, zinc, cadmium, chromium and arsenic."

The Water Board's position was made clear in 2011 when the Executive Director wrote "...we recommend the existing moratorium be continued indefinitely, or that this activity be permanently prohibited."

For sixty years suction dredges had worked the bottom of California's rivers without a single water quality violation sometimes pulling out fabulous amounts of gold. Even the Water Board's own studies can find no evidence of water quality effects in the gold mining rivers.

In fact, there isn't a single Water Board study which evaluated trace metals. Not one. It is pure speculation. The only credible study in existence in the U.S. EPA 40 Mile River study which found virtually no impact from a 8" dredge on trace metal levels in the river. This study was ignored in the 2012 EIR as it didn't support their pre-determined conclusion.

In 1961 the California legislature passed the first bill regulating suction dredging. It was a common sense bill which essentially said keep the dredges off the spawning grounds at certain times of the year.

From 1962 to 1994 suction dredges operated under these very broad regulations which establish closed seasons to protect endangered fish. Somewhere during that time the definition of fish changed from things with fins that swim, to include every microscopic creature which lives in the water to include worms, clams, crawdads and water bugs. Last we checked the dictionary a water bug wasn't a fish, but the state of California calls it a fish, and therefore it must be protected from suction dredges. No kidding, they've done countless studies on the impact of sucking bugs through a suction dredge hose and they keep coming up with numbers like 99.5% of the bugs lived.

If you're an environmentalist those aren't good numbers, so naturally they then say although the bugs lived, they've been displaced which is a significant effect on the environment because displaced bugs can be eaten by the fish. Apparently this logic is somehow related to obese fish and the catastrophic environmental effects of fat fish. So they do more studies. If you don't believe people actually get paid to suck up bugs through a dredge hose, and then count them at the tail end here's a study you can read.

When the state steps in to regulate something, they never roll back those regulations. Regulations are an endless march to more and more severe restriction until you reach the point where the regulations smother and kill the activity being regulated.

We're at that point with suction dredging, and you can expect more of the same from the RWQCB.

First, it was the absurd California Department of Fish and Wildlife (CDFW) regulations which said you couldn't damage a piece of grass on the river bank to now where the requirements of SB 637, which went into effect January 2016, will likely impose huge permitting fees and impossible requirements for the individual dredger, while still allowing the large gravel companies and irrigation districts to run their industrial operations.

Regulations once imposed tend to end up being political weapons. The 2012 suction dredging environmental impact report (EIR) and the resultant regulations were politically motivated. They had little to do with science or protecting the environment. They were all about protecting the uber-environmentalists.

The water quality section of the EIR was funded by, written by, edited by the RWQCB. A staffer named Rick Humphries, who worked under Elizabeth Haven, was primarily responsible for the production of the water quality section. Humphries was an outspoken critic of suction dredging and in 2004 attempted to prove a suction dredge would blow mercury all over the river, in this study there was just one problem - the numbers showed a suction dredge captured 98% of the mercury. This was far more efficient than any other equipment in existence. Not good numbers for their side for sure.

Still, Humphries was undaunted and wrote despite the 98% recovery of mercury the 2% not recovered was far too severe of a hazard to leave in the hands of dredgers and recommended only a government program could solve the mercury problem. So for 12 years now the state has decided to leave 100% of the mercury in the rivers rather than remove 98%. The final Humphries recommendation was to establish a government run program whereby the gravel containing mercury would be sucked up to a processing plant on the shore where it could be treated and removed by government experts. Nice plan.

Well, apparently the environmental groups thought so and they found a 2 person company in Canada, with no experience in removing mercury or building suction dredges to build a million dollar dredge to do exactly that. This dredge had the amazing capacity to process a few yards of gravel a day but had the misfortune in testing to show only a 96% recovery rate of mercury, less than the gold suction dredge. One would think that would be good news for gold dredgers, but you have to remember we don't run environmental groups, nor are we government employees, so there is no profit in allowing dredgers to recover mercury despite the poor readings from the testing.

So, what do you do when your test results come out with a 4% loss rate? You have a PhD write a nice report which says the 4% is insignificant compared to the 96% recovery rate. Now, why didn't we think of that?

It turns out Rick Humphries retired the year after he got dredging banned, and seems to have found a friend with the very same environmental group which is running the million dollar dredge. Go figure. Humphries and Dr. Charles Alpers were recently seen in company with Izzy Martin of the Sierra Fund at a Water Board meeting on mercury we attended. That seems nice that Humphries and Alpers seem to have landed on their feet after the hard work they did on the suction dredging EIR.

You may recall Dr. Charles Alpers was the subject of a internal USGS investigation which concluded his cozy relationship with the Sierra Fund presented no conflict of interest, nor did the Water Board telling him how they wanted the study to turn out create a conflict of interest. The actual 3" dredge test showed some pretty good results for water quality so it was quietly deleted from the 2012 EIR. Instead data was collected about hand digging pits 10 feet above the water and sifting mercury laden sediment into a bucket. The study then concluded only two dredges could pollute the entire Yuba watershed. Of course this data assumed these two dredges were working ten feet above the bank in only the half inch layer on bedrock for all of their time. That sounds like how a dredge works doesn't it? Oh well, nobody bothered to ask any dredgers when the last time they used a dredge 10' above the water line. Last we checked CDFW had a regulation about that sort of stuff.

Well known to suction dredgers, but apparently less well known to those who study the environment in exchange for money, is the fact mountains are eroding and providing a constant supply of new rocks and material to the rivers. These rocks ultimately end up behind a dam some where and build up to the point they would fill the reservoir to capacity with just rocks.To the guys who maintain the reservoirs this is a real problem as the more rocks you have the less water you can hold, and the less money you can make selling water, so it's important to get rid of this excess gravel. Dredging reservoirs has been ongoing since, well, there were reservoirs. For over a hundred years the guys who supplied water to the valley would go clean out the reservoir to prepare for the spring floods. That is until the environmentalists discovered there was a business plan in it for them in the name of mercury remediation.

Now, the simple act of cleaning out a reservoir isn't so simple. Not since the environmentalists stepped in and said the mercury tainted sediments in the reservoir could present a health hazard and the only feasible solution was to use a million dollar dredge, pump the slurry to the bank, recover the mercury in a centrifuge and then sell off the gravel to recover your costs. That's a lot of gravel you'd have to sell off by the way. So, the Nevada Irrigation District went out and bought one of these dredges and then figured they really needed some environmental group consultants, which really add value to a project like this, and surprisingly hired the Sierra Fund. You may remember from a few paragraphs before this is the same group who proposed using the million dollar dredge, and also the same group Alpers and Humphries seem to be pretty tight with. Not that we're saying there is anything untowards about this, why if we had the money we'd like to hire some environmental consultants to do something, we're not sure what yet, but it just seems money seems to follow these guys for some reason.

Likely unknown to many dredgers is the California Water Board had permitted suction dredging for a long time. Beginning in 1988 the Army Corps of Engineers issued Clean Water Act Section 404 (dredge and fill) permits for suction dredging. These permits were then certified by the California Water Board under Section 401 of the CWA. This permitting continued through 2000 when our last general permit expired. At that time no one in the dredging community thought to request a new permit for dredging and consequently from 2000 to the dredging ban in 2009 we operated without a CWA permit leading up to the requirements of Senate Bill 637 which promises to go much further than had we just maintained our CWA permit in the first place. However, some smart guys in the dredging community decided suction dredges didn't really "discharge" and we exempted ourselves from permitting under what is known as the "Tulloch Rule."

Small problem with exempting yourself, sometimes the agency which issues the permits may disagree, which the Army Corps of Engineers did. They wrote a nice position paper on dredger's assertions we were exempt under the "incidental fallback" rule which applied to the spillover from buckets from excavators or bucket dredges. The Army Corps of Enginers tried to apply logic which said it can't be incidental if it's the whole purpose of your operation. Hmm, the gravel coming out the back of the sluice box was "incidental" to dredging. The Corps didn't buy it and we were essentially, as a group, in violation of the Clean Water Act for 9 years.

It's not like the environmentalists to miss something like this, and they didn't. In fact they issued a letter to the California Water Board and the California Department of Fish and Game saying they intended to sue for failing to enforce the Clean Water Act for suction dredging. Had the dredging issue not blown up on the Klamath, it was just a matter of time it was going to blow up for not having CWA permits.

The end result is we're heading into hearings with the California Water Board. An agency who is on the record as desiring suction dredging permanently banned. It's a bit like going into the wood chipper. There are still those who will argue violently suction dredges aren't subject to Clean Water Act permitting, but the fine for being wrong on this is $10,000 per day and those who argue we don't need the permit don't seem to be running their dredges on the river to back up their beliefs. It's one thing to say it - it's another to do it.

It's doubtful we'll get a fair shake with the Water Board. The conclusion of this "study" is pre-determined

We've provided a significant amount of mercury related information on our website, but to keep it simple the position of the dredgers should be a simple Section 401 certification of the General Army Corps Section 404 permit should be all that's required. Secondly, we must challenge the existing data provided by Dr. Alpers in the 2012 EIR as flawed and biased and not allow the Water Board to use this manipulated data. If the Water Board wants to determine whether there's a discharge from a suction dredge then we should absolutely support a new test but without the interference of Dr. Alpers, Rick Humphries or the Sierra Fund. We're confident any test of a suction dredge will come out in our favor. However, keep in mind, as we've seen, favorable results don't always favor us.