PO Box 33218 Reno, NV 89532
California Department of Fish and Game Northern Region
Suction Dredge Program
601 Locust Street
Redding, CA 96001 20 February 2012
Dear Mr. Stopher;
The Western Mining Alliance, which represents the rights of over 9,000 Federal Mining Claim holders in California, opposes the Final regulations as written. We provide our specific comments in Appendix A, and in Appendix B we provide a short list of organizations, businesses and individuals who are opposed to the regulations. It is clear that the regulations and the SEIR they are derived from are opposed by nearly everyone who has an interest in the rights of miners, the cause of freedom and the economic ability of Americans to earn a living.
We are disappointed that the California Department of Fish and Game refused to consider the significant, substantial and overwhelming evidence of recognized experts in preparation of these regulations. These regulations violate the CEQA process by not considering the whole record. It is clear that the Agency considered only those portions of reports that were both theoretical and negative to dredging while ignoring in the same reports substantial evidence which, if considered, would have changed the outcome.
These regulations are unfortunate for the people of California and in particular the over 9,000 claim holders who are impacted by this.
We understand the necessity for reasonable regulations based on sound science and we are prepared to support your efforts to achieve this, but the Final Regulations, as written are unacceptable to the mining community and will cause significant economic harm to legal claim holders.
We request that in light of information presented during the public comment period, that you rescind these regulations in total. Revert immediately to the 1994 regulations and consider the overwhelming evidence presented during the CEQA process that refutes the limited information that was negative to dredging. The refusal to consider the information that indicated suction dredging has minimal impact on the environment will only lead to continued lawsuits.
Section 228.5 of the suction dredging regulations is an incredible piece of work. While we appreciate the time that went into this section we can only wonder where the actual research and findings are that support the closure of over 615 rivers across the state in whole or in part. It does not appear that CDFG would have the staff to do that nor does it appear that Horizon Air and Water is staffed or funded to do that. It would appear from the vast number of rivers closed that this would be in violation of the Endangered Species Act.
We look forward to discussing this matter with you again, in the near future.
We have provided our specific comments in Appendix A which are attached to this letter.
The Western Mining Alliance
The proposed final regulations will cause substantial and irreversible harm to mining claim holders in the State of California. Specific sections the Western Mining Alliance is in disagreement with include:
California Fish & Game Code:
Section 228 (g) Maximum permits of 1,500. There is no basis for this restriction and it discriminates against legal claim holders by allowing a first come, first served issuance. There should be no maximum number of permits. In forty years of suction dredging there is no evidence that any number of dredgers in the State creates significant harm. There are over 24,000 placer claims in the State, the amount of permits considered for issuance will not allow one permit for every ten claim holders.
Section 228 (h) Reporting. There is no basis for reporting. Suction dredging is an activity that is not harmful to the environment and the reporting requirement is an unnecessary and burdensome regulation intended to simply gather information on the legal activities of Americans.
Section 228 (k) Maximum nozzle size of 4”. There is no requirement for this restriction and further there is no requirement for an onsite inspection. The Agency is well aware they do not have the staff to implement this requirement in a timely manner at a cost that would be reasonable.
Section 228 (k)(4) Containment System. This is an unnecessary regulation as a suction dredge engine does not spill fuel unless the dredge is flipped. In the case of flipping the containment system would also be submerged. Further, this requirement demonstrates a lack of knowledge on how a suction dredge operates. Any containment system placed under an engine could eventually fill with water as a suction dredge when operating creates significant splashing of water.
Section 228 (l) (1) and (2) Motorized Winching. This requirement is not necessary. The spring floods move more boulders than a suction dredge ever could and the percentage of dredgers that winch boulders is very small. Moving a boulder creates no substantial harm to the environment and there are no credible scientific studies that would agree with the Agency’s position.
Section 228 (l) (3) Restriction on working within 3’ from the bank. This requirement is not based on any scientific study or evidence and is not warranted. This requirement causes a claim holder significant economic harm and renders mining claims worthless. There is no scientific evidence in the whole record that supports this regulation.
Section 228 (l) (8) No person shall import any earthen material into the stream. This requirement is not necessary and is not supported by scientific evidence. While the regulations are specifically written for suction dredging this section appears to address high banking. The process of high banking has not undergone an EIR and attempts to regulate this mining activity under an EIR that only covered dredging would appear to violate the CEQA process and are an over reach of regulatory authority.
Section 228 (l) (10) No fuel within 100’ of the river. This requirement displays a lack of knowledge of the outdoors and in particular the constitution of Mountain Rivers. This requirement actually increases the probability of a fuel spill daily by increasing the traveled distance from 20’ to 200’ on each refueling. To exacerbate the problem the uneven, rocky ground traversed on the side of rivers ensures that Fish and Game has increased the risk of a spill. The spill capture system ignores the fact that rocky streams do not afford convenient flat ground for placing objects with wide flat bottoms. Again, Fish and Game has increased the probability of a spill. A sufficient system is to merely store fuel with the cap closed – at the risk of sounding obvious a fuel container is a fuel containment system and it has proven to be very effective and in fact all modern fuel containers are spill proof when the lid is closed.
Section 228 (l)(13) Mussel Beds. The SEIR should provide some foundation for whether these mussels are somehow endangered or threatened and what the sustainable population is. There is no evidence that suction dredging has in the past forty years, or will in the future impact the sustainable population of mussels whether or not tailings are dumped on them.
Section 228 (l)(14) Care to avoid dredging silt. The SEIR clearly states that no level of turbidity is harmful to fish and further states that turbidity returns to background levels within 100 meters of the activity and rapidly dissipates after cessation of dredging. There is no requirement for this regulation.
Section 228 (l)(18) Use of wheeled equipment. Why? What evidence is there that the use of a hand pulled wheeled device is in any way harmful to fish? What specific portion of the SEIR are you trying to mitigate with this regulation?
Section 228 (l)(19) and (20) Cleaning and disinfecting of suction dredges. What is the specific SEIR significant effect you are trying to mitigate? Are rafters required to disinfect their rafts after each trip? This is simple discrimination against suction dredgers in an attempt to make the regulations so onerous that no one could possibly meet all the requirements.
Section 228 (l)(21) No use of a suction dredge within 500’ of another dredge. This section is clearly based on the SEIR comment that turbidity dissipates within 100 meters of the operation which equals 300’ not 500’. Even allowing for a buffer between turbidity areas this requirement ignores the findings in the SEIR that no level of turbidity is harmful to fish. Secondly this requirement ignores that a 4” dredge, which is the maximum size now allowed will not produce a 100 meter turbidity plume. This finding is not based on science, it is based on the desire of extreme environmental groups to have an aesthetically pleasing experience in the outdoors and not be traumatized by the site of someone at work.
Section 228 (p). Suction dredging may only be conducted between 10:00 a.m. and 4 p.m. This rule is in conjunction with the limit of permits to limit the total number of hours across the state spent suction dredging. There is no credible basis for this restriction in the SEIR. Studies in the
SEIR alleging that a set number of hours could create significant impact on the environment are not based on fact or sound scientific methods.
The Western Mining Alliance is in disagreement with Section 228.5 in total.
Section 228.5 is based on the SEIR Appendix L “Biological Action Species” , which is not based on sound science, population surveys and does not comply with the Endangered Species Act.
By restricting broad areas of the State where a species may, or may not be present CDFG is not compliant with the ESA which requires that specific areas be established, based on science, necessary to ensure the species survival.
The record presented in the EIR is not complete enough on species population distributions to support these unwarranted closures.