Mr. Mark Stopher
California Department of Fish and Game
Suction dredge permitting program
601 locust street
Redding, California 96001
I am responding to the regulations on suction dredging released on 2-17-2012.I attended scoping meetings and gave comments in the draft EIR. I must say I was shockedafter comparing the proposed regulations in 2011, and those released on 2-17-2012. I’ m recentlyretired from one of your sister agencies, a Department under the California Natural Resources Agency. I have a keen insight into state government and CEQA that others might not. These regulations are clearly a overstep and over regulation by a California state agency.Furthermore, since my response becomes public record, I consider myself an expert on suction dredging, having obtained permits and having dredged since 1974, a period of 37 + years.It is my opinion that a negative declaration should have been declared on this project, knowingthat suction dredging has NO significant effects on the environment. However a court orderprevented this. Over 50 years of suction dredging has shown this mining practice to be thesafest, most economic, environmentally friendly way to extract gold. Over the past 40 years there are dozens of government sponsored studies which have proven that gold suction dredging is not deleterious to fish. I am frankly surprised that not one of those studies was referenced in the crafting of your SEIR.
Had any single one of these studies been included within the SEIR the presumption for the need of these draconian regulations would have been moot. Your organization had the opportunity to review and discuss with two seasoned EPA scientists who were pro dredging, and had their information and expertise been even considered the outcome of your investigation would have been much different. It is readily apparent that your “scientists” were cherry picking the studies, and adding lots of opinion to the DSEIR in order to craft a desired outcome of your report.
It is obvious environmental groups are reaching out to find a way to shut suction dredging down by using the scare of mercury. Yes, there probably are some mercury “hot spots”, but in my experience of dredging over 37 years, in many of the primary watercourses of the Sierra, the amount of mercury I found wouldn’t even fill ½ a thimble. And your EIR assesses three locations, including one location on the South Fork of the Yuba river which in all instances should be noted as a superfund site due to very high concentrations of mercury- and curiously, this site was chosen to represent a area representative of all other watersheds in the State. Why wasn’t the study conducted in a location that rather represented the mean of contamination, rather than the extreme- especially when the regulations for the whole state would be contingent upon the results? Moreover, the studies conducted on Humbug creek on the South Yuba River did NOT even include an actual dredge. Then this erroneous information is projected to the creeks, streams and rivers statewide with NO EVIDENCE that mercury even exists in those locations. This is a travesty of justice. Look it up in the dictionary, “Travesty” defined as “an absurd or grotesque misrepresentation”. And a misrepresentation this most certainly is.
While we are talking about your shoddy work on crafting the SEIR, I would like to bring up the usage of over 1500 instances of conditional verbs within your document. There is no room in CEQA for “may, could, might occur, or might be present. Under CEQA section 21080 # E it states…….
(e) (1) “For the purposes of this section and this division, substantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.”
(2) “Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment.”
In your literature review dated September 2009, section 1.3 objectives, it states………“build a basis of “substantial evidence” for use in the CEQA process; and support preparation of an Initial Study and SEIR.” Once again, substantial evidence must be based on facts!
Had the EIR been based on facts, not speculation, and not may, could, might, etc, the outcome would surely show no significant impacts to the “environment”.
I will address the revised regulations to the suction permitting program released 2-17-2012.
Section 228 item G)
First, the regulations restrict the issue of dredging permits to 1500, a drastic reduction of the 4000 in the draft EIR. This is from your power point presentation November, 2009 at the scoping meetings for the suction dredge permitting program. Under the section “Need for the program”, which references Fish and Game code 5653, item B states “(b) …If the department determines…that the operation will not be deleterious to fish, it shall issue a permit to the applicant.” The restriction of permits is in direct violation of your own Fish and Game code, the restriction is discriminatory, it is arbitrary and capricious.
The California Department of Fish and Game issues fishing permits without restrictions on the number issued. The permit is for the “taking” and in some cases killing of fish. Yet you find dredging is not deleterious to fish, and you then restrict the number issued. Once again, If the department determines…that the operation will not be deleterious to fish, it shall issue a permit to the applicant.” Shall defined ” used in laws, regulations, or directives to express what is mandatory” “Mandatory” Law permitting no option; not to be disregarded or modified: a mandatory clause. If I apply for a permit under CDFG code 5653, you must issue me a permit or be in violation of said code 5653. I am opposed to this restriction on permits.
In regards to 228 item E & G)
Furthermore, if I need an inspection to use a winch or a dredge larger than 4”, the regulations say I need an inspection. I can NOT dredge until the inspection is done, and notice given that it is approved, and I obtain a permit. Great, now my inspection is completed, I will now go get a permit. By this time, what if the 1500 permits are all issued. Your rules to “get an inspection” could very well cost me the opportunity to get a permit.
In regards to 228 item E & F)
“Permits Requiring an On-site Inspection. Where an on-site inspection is required, a permit, or amended permit, is not valid until the permittee has contacted the appropriate Department Regional Office to arrange an inspection”. So if I obtain a permit (purchase one to make sure I get it) and then apply for an inspection to use my larger dredge over 4”, and I am denied, are you then going to refund my money. Apparently not, as you did not refund my money when permits were suspended under SB670 in August 2008.
Furthermore, you list no time considerations as to when you must respond to my request for an inspection. You list no time considerations as to when you must complete this inspection. You list no time considerations as when you must respond (approve or disapprove) my application for inspection. Therefore you can delay, stop or prevent me from dredging by this section. This section is arbitrary and capricious.
“Arbitrary and Capricious means doing something according to one’s will or caprice and therefore conveying a notion of a tendency to abuse the possession of power. “ I am opposed to this section.
In regards to section 228 Item # H – Suction dredge reporting
First you claim there have been changes since the 1994 EIR, and this subsequent EIR. Nothing has changed since the 2008 regulations when I wasn’t required to fill out a “report card”.Filling out a report card has no impact on the environment. The permit process tells you what size dredge I am permitted to use. The last permit I had in 2008 also asked for the engine size,name and model number,nozzle size, my CDL#, name and address, telephone number, date of birth, height and weight, color of eyes, color of hair,and size of area to be dredged. If you put the legal location on the permit, you will then have the information you are looking for. It can include the pertinent information you refer to such as river name, county and nearest town. You have already set the seasons by zone, so the dates of operation are known. The beginning times and end times for operations each day is ridiculous. This report card does nothing more than single out dredgers and is therefore discriminatory. Do rafters have to fill out a report card each day and turn it in at the end of the year? Do licensed fisherman and women fill out a report card on location and times they catch and kill fish, or catch and release them. The hours they fished, how many they caught and killed, or released ? The type of rod and reel they used. The times they start and stop fishing? How much lead they lost in the river? Do they send in a annual report card ?
This section says the report card shall be up do date with required information during suction dredging, including information regarding prior and current suction dredging activity. Prior meaning what ? Yesterday, last week, month, year ? Where are my safe guards against a citation. If a game warden comes to my claim, and it is late in the day, for example 6:00 pm. I haven’t left for the day, yet my card hasn’t been filled out yet, he can legally cite me. I have no problems filling out and sending in a annual report card. But a daily reporting system serves no useful purpose except give your department a reason to cite someone for simply not filling out a card. I am opposed to this regulation.
In regards section 228 item K
Nozzle size restricted to 4”. For the past 20 + years I have used a 6” dredge on my claim on the North Yuba. This is a large river, 150′ across in some areas and with pools as deep as 20/30 feet and more. The river or stream dictates the size of the dredge. On some small streams, a 3” or 4” dredge is the only size feasible. On larger rivers, a 4” is nothing more than a sample dredge, and one can’t economically work their claim. I stated in the draft EIR that the regulations should allow 6” and smaller, and a special permit for above this size. This would help CDFG as it would reduce the number of inspections needed, saving tax payer dollars. The other part of this regulation deals with the inspection process. Once again, no time considerations for CDFG to respond, to do the inspection, and approve the request. This could take weeks, or months. This regulation should have something (a clause) that a special permit will not reasonably be denied. Why ? Because there is no criteria on what an inspector is going to inspect. The river? The equipment? Proximity to other dredges? As of now it is up to the discretion of the inspecting officer.
Item # 4 – requirement for containment system
If you are going to require this, then require every power ski boat, aluminum fishing boat, jet ski, and house boat to have a containment system. Also every reclamation dredge used in the state. This is discriminatory toward gold dredgers. There historically not been a problem with fuel spills from dredging activities. In the draft EIR, section 4.4.4 (Impact HAZ-1) the use,handling,storage,transport, disposal and/or accidental release of oil or gasoline in suction dredges was found to be less than significant. Then what are you trying to mitigate ? This has not been a problem. Require spill proof gas containers,. Require a dredge to be pulled to shore to change oil. In all honesty, myself and most dredgers care about our environment. We take care not to spill fuel, and most of us do use spill proof containers. This is a unnecessary requirement.
In regards to section 228 item #L – Winching
Some dredgers use a winch, many do not. Once again, no time considerations on inspections. Weeks ? Months? I have no problems with the conditions on moving boulders within the high water mark. Or the conditions listed in item L-2 (B,C,D & E), these are reasonable. These regulations are for hand as well as motorized winching. Why does motorized winching require a permit, and hand winching does not ? They both accomplish the same thing. (to move or turn over a large rock) Once again, there should be a clause that no application shall reasonably be denied. Why ? Once again you fail to list any criteria on which you would approve or deny a permit.
L-3 No dredging of in stream gravel bars. Here is the definition of gravel bar……..“A bar in a river is an elevated region of sediment (such as sand or gravel) that has been deposited by the flow.” Now let me get this straight. It is an elevated region in the river.. So it is ok to dredge this area early in the season while it is under water. But as the water drops, and this area becomes dry, I am now in violation ? And what protects me when I say to the game warden “ I stopped dredging here last week as he cites me for dredging into a gravel bar.” His answer will probably be tell it to the judge. This is a ridiculous regulation. Gravel bars are formed , and gravel bars are moved by mother nature and the flow of the river. They change year to year. I have dredged 37+ years on the same claim and I have watched the river course change yearly. Also , what does CDFG define as a gravel bar. I have many areas on my claim that have a small group of boulders part out of the water. Maybe 4 feet by 4 feet. Since they are part dry, are they a gravel bar. And if they are elevated out of the water, but are wet, are they gravel bars ? Who will decide. Is it up to the game warden? I see lots of problems with this regulation. It is bad and is unnecessary !
L- 10 Fuel storage
The only problem I see here is for steep claims, and claims in a tight canyon. 100′ from the current water level is impossible. The regulations then require a containment system under the fuel storage. How about require a spill proof gas container which IS A CONTAINMENT SYSTEM. This is another ridiculous regulation. Think about it. The fuel is in a spill proof container, sitting on the bank.When is a spill most likely to happen? Not when it is sitting there with a containment vessel under another containment vessel. It is most likely to occur during refueling, and that was shown not to be a problem in the draft EIR. This regulation is unnecessary if you require a spill proof container on all dredging operations.
L – 15 tailing Piles
Just as mother nature and the river flow builds up gravel bars, she takes them down each year.Tailing piles are no different. Most tailing piles are not piles, as the tailings are usually at water level. From your literature review in September 2009…………………
Geomorphic recovery is the concept that, following disturbance, a landform will return to its general form or trend through moderating physical and biological processes. Both the 1994 EIR on suction dredging, and the subsequent draft EIR found this to be Less Than Significant. Thomas (1985) found that deposited sediment piles downstream of a 2.5?inch suction dredge nozzle were barely distinguishable one year after suction dredging activities. Similarly, Prussian, et al. (1999) observed that tailing piles generated by 8 and 10?inch suction dredge nozzles were barely visible a year following the dredging activities. The tailings which remained visible had moved from the sides of the channel towards the thalweg of the river during the winter flow events.
Harvey, et al. (1982) monitored conditions a year following suction dredge activities on the American River and Butte Creek and observed that scour holes and downstream sand deposits observed the previous years were not present the following year.
Harvey (1986) observed that dredging activities on large streams, like the main stem Feather and Yuba Rivers in California resulted in localized disturbances, whereas dredging activities on smaller tributaries had a proportionally larger and more significant area of disturbance. For example, dredging activities conducted by a single dredge on a smaller tributary of Butte Creek resulted in flow diversions that transformed riffles into exposed gravel bars within 10 days of operation. These substrate changes were not observed in Butte Creek the following year.
I’m not sure what you are trying to mitigate here. Tailings are usually not as high as gravel bars, and are leveled and filled in by higher winter river flows. After dredging has cleaned the gravels of heavy metals, iron and rust, old square nails,fishing lures, hooks and lead, the tailings are left clean. It is less than significant, and this regulation is not needed now as it was not needed in the past.
L-20 decontamination of equipment
This doesn’t effect me, but I will comment as it may some time in the future. This regulation states in part, “Before relocating a suction dredge to another water body, water shall be drained from all equipment for at least two weeks”. Another water body means just that…..another river or stream. Is someone going to follow me home and watch me for two weeks? I’m trying to show how ridiculous this is.
I’m not so sure that Horizon water who did the EIR understands a suction gold dredge. The only part of the equipment that may have water is the centrifugal pump. Depending on the size, it probably only holds ½ to 1 gallon of water. This can be emptied in a matter of seconds. The floats are just that, air tight floats or the dredge would be a submarine and not a dredge. The dredge may have a wet suit heater for cold water. This holds maybe a pint of water. Draining equipment is NOT an issue.
Water shall be drained from all equipment for at least two weeks OR the suction dredge and associated equipment must be decontaminated. So the ½ gallon of water from the pump is drained and then the whole dredge must sit for two weeks ? Why are we decontaminating associated equipment when it holds no water?
“Decontamination must include pressure washing with water > 120 degrees Fahrenheit and/or chemical decontamination of all surfaces using bleach, vinegar, ammonia or potassium permanganate solution.”
So how are you going to enforce this ? I could take out a dredge, drain the pump, wash with vinegar as this meets your criteria. Then take it to another “water body” and get cited by a game warden for
1) not decontaminating it (but I did) or for
2) not waiting two weeks.
How will he or she know?What protects me in this situation? Perhaps I need not worry as I’m sure the fisherman and women must decontaminate fishing waiters, fishing poles and lures. And I will feel better when the rafters also decontaminate oars,the rafts and associated equipment. I know that boaters will be required to do the same before going to another lake or “water body”. Since swimmers go home to take a hot shower this will not be an issue. (but I think we need to address kids urinating in the river). This is an environmental issue. If all users of the streams, lakes and rivers were treated the same, I would not worry, but since they are not, I object to this regulation, it is not fair or necessary.
L-21 no dredge with in 500′ of another
I only use one dredge. I can’t multi task and use two. Wish I could because then I could get 40,000.00 per season instead of the usual 20,000.00 ! But what concerns me is what if I am on my claim, and the dredge above me (on another claim) is closer than 500′. Who gets to dredge ? Me because I was dredging first before he put his in. Him, because he is a senior citizen on social security and needs the money more than me. Me because I have owned my claim longer ? Him because he threatened to kick my butt if I didn’t shut mine down ? Or is the game warden going to cite us both, flip a coin, draw straws, or tell us to take turns? Do you see any problems? One dredge operating per claim might work
In regards to section 228 # P……….Active suction dredging operations may only be conducted between 10:00 a.m. and 4:00 p.m. The old regulations restricted dredging to ½ hour after sunrise to ½ hour after sunset. Very reasonable. If I could dredge at night with lights I would. But what are you mitigating? Not disturbing bears, fish, salamanders? It would be ok to dredge at 10:00 am, but not 09:54 am based on what? It is ok to dredge until 4:00 pm, but at 4:15 it is illegal because of ? What has changed ? I’ll tell you. Nothing ! What are “active” dredging operations ? Just running the pump and motor? Moving gold bearing gravel? OR…………..
Could it be that the rafting concessions on the S. Fork of the American got their way. I found out through research that from day break to 10 am the river is low enough to dredge, but after 10 am the river rises and rafters float down river (with tourists who spend allot of money) until ( guess) – the answer is 4 :00 pm…. Then the river goes down again and the dredgers could go out into the river again. If that time line sticks, then it runs the dredgers off the S. Fork of the American River and the rafters have it all to themselves.
This is from the Sacramento Bee, May 3, 2007……………….. Here is parts of the article…… “For the first time ever, dams and hydroelectric plants along the south fork of the river must balance energy and recreation needs in regulating river flows, which will ensure more consistent water flows and stretch rafting seasons into fall, rafting outfitters say. The American River’s south fork is one of the nation’s most popular whitewater attractions, McGinnis said, because its Class III rapids are relatively safe for novices but challenging enough for veterans. Regulating flows more in line with recreation needs also smooths out water too wild for the majority of river rafters, said Betty Lopez, a vice president of W.E.T. River Trips in Sacramento. It would normally be June before it was safe for children, she said.
The new agreement, which took several years to hammer out, signals a rising recognition of the importance of recreation on rivers, McGinnis said. “It’s part of the quality of life in our country, not just for the outfitters, but for thousands of people.” This regulation is completely out of line and is unnecessary.
In closing, my comments become public record in this process. Having worked in state government, I know that money and votes influence the legislature. They in turn set policy. Many of these regulations are to please environmental groups who have lots of money, some provided by federal grants and tax payer money. ( from you, me and other taxpayers) I use to believe in Honesty and Integrity in state government, as I worked as a firefighter for 35 + years. I was taught it and I practiced it in dealing with the public. I was naive to think that the rest of the government functions that way also. There is very little Honesty, Integrity and Ethics left anymore. I don’t know how this process will play out, but this EIR was not predicated on facts as required by CEQA. This is a travesty, and it makes me sick and at times ashamed to say I was a California State Employee. I only hope justice will prevail.
For public record, respectfully submitted,