[h=1]Suction Dredge Permitting Program[/h]Page updated 4/25/2014
The use of any motorized vacuum or suction dredge equipment as part of a mining operation in any river, stream, or lake is currently prohibited in California.
[h=2]Fish and Game Code Statutes and Related Regulations[/h]In general, the California Department of Fish and Wildlife (CDFW) regulates suction dredging and the use of any related equipment in California pursuant to Fish and Game Code section 5653 specifically. Under that authority, the use of any vacuum or suction dredge equipment by any person in any river, stream or lake in California is prohibited, unless authorized under a permit issued by CDFW. (Fish & G. Code, § 5653, subd. (a).)
CDFW regulations governing its suction dredge permitting program are found in the California Code of Regulations, Title 14, sections 228 and 228.5. CDFW adopted a comprehensive update of its suction dredge regulations effective April 27, 2012. (Cal. Reg. Notice Register 2012, No. 19-Z, p. 641.) CDFW amended the regulatory definition of suction dredging as an emergency action effective June 28, 2013. (Cal. Reg. Notice Register 2013, No. 28-Z, pp. 1034-1035.) The emergency regulatory definition will remain in effect as extended with approval by the Office of Administrative Law (OAL) until June 26, 2014, at a minimum. (Cal. Reg. Notice Register 2014, No. 7-Z, pp. 639-640; OAL File No. 2014-0314-01 EE.)
Currently, the use of any motorized vacuum or suction dredge equipment in any river, stream, or lake in California is prohibited by statute, as it has been since August 6, 2009. (Fish & G. Code, § 5653.1, subd. (b).)
CDFW is also prohibited from issuing any suction dredge permits by the same statute.
[h=2]Prohibited Use of Any Motorized Vacuum or Suction Dredge Equipment[/h]Under CDFW regulations, the use of any vacuum or suction dredge equipment (i.e., suction dredging) is defined as the use of a suction system to vacuum material from a river, stream, or lake for the extraction of minerals. (Cal. Code Regs., tit. 14, § 228, subd. (a).)
However, CDFW’s suction dredging regulations do not apply to, prohibit, or restrict nonmotorized recreational mining activities, including panning for gold. (
Ibid.; see also Fish & G. Code, § 5653.1, subd. (e).)
Reading together Fish and Game Code sections 5653 and 5653.1, and CDFW’s definition, the use of any motorized device to directly vacuum or suction substrate, sediment, and gravel as part of a mining operation in any river, stream, or lake is currently prohibited in California. The use of any motorized vacuum or suction device to assist in the extraction of minerals as part of an instream mining operation is also prohibited. Likewise, it is unlawful to possess a vacuum or suction dredge in or within 100 yards of any river, stream, or lake. (See
Id., § 5653, subd. (d).)
Not prohibited are: (1) nonmotorized recreational mining activities, including panning for gold; and (2) the use of motorized vacuum or suction dredge equipment for regular maintenance of energy or water supply management infrastructure, flood control, or navigational purposes. (
Id., § 5653.1, subds. (d), (e).)
[h=2]Mining Activity Not Prohibited by the Moratorium[/h]The ongoing statutory moratorium established by Fish and Game Code section 5653.1 prohibits some, but not all forms of mining in and near California rivers, streams, and lakes.
Individuals engaged or interested in otherwise lawful instream mining should be aware that other environmental laws may apply to these various other mining practices. Fish and Game Code section 5650, for example, prohibits the placement of materials deleterious to fish, including sand and gravel from outside of the current water level, into the river or stream. Further, Fish and Game Code section 1602 requires that any person notify CDFW before substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel or bank of any river, stream or lake.
See additional related information.
You should also know that various
other mining practices may be subject to the authority of the appropriate Regional Water Quality Control Board. If you have questions about the authority of the Regional Water Quality Control Board, or how to comply with any permitting requirements,
please contact them directly.
[h=2]2014 Regular Noticed Rulemaking and 2013 Emergency Action[/h]As noted above, in March 2012 CDFW adopted a comprehensive set of regulations updating its suction dredge permitting program under the Fish and Game Code. (See generally Cal. Code Regs., tit. 14, §§ 228, 228.5.) Those regulations took effect with the approval of OAL on April 27, 2012. (Cal. Reg. Notice Register 2012, No. 19-Z, p. 641.) Subsequently in June 2013, CDFW took emergency action under the Administrative Procedure Act (APA) to amend the regulatory definition of suction dredging. That definition, with the approval of OAL, took effect on June 28, 2013. (Cal. Reg. Notice Register 2013, No. 28-Z, pp. 1034-1035; OAL File No. 2013-0618-02 E.) Extended twice by CDFW with the approval of OAL, the emergency regulatory definition of suction dredging is currently in effect statewide and will remain so until June 26, 2014, at a minimum. (Cal. Reg. Notice Register 2014, No. 2-Z, pp. 60-61; OAL File No. 2013-1216-01 EE; and Cal. Reg. Notice Register 2014, No. 14-Z, pp. 639-640; OAL File No. 2014-0314-01 EE.)
With the emergency definition set to expire in June 2014, on February 14, 2014, CDFW provided public notice and initiated action under the APA to adopt the existing emergency definition through regular noticed rulemaking. (See generally Gov. Code, § 11346 et seq.; Cal. Reg. Notice Register 2014, No. 7-Z, pp. 285-288; OAL Notice File No. Z-2014-0204-05.) Due to a notice oversight, however, CDFW has decided to renotice the action, beginning anew the APA effort to adopt the emergency definition of suction dredging through regular noticed rulemaking. That renoticed effort and a related 45-day public comment period began April 25, 2014. (Cal. Reg. Notice Register 2014, No. 17-Z, pp. 724-728; OAL Notice File No. Z-2014-0415-23.)
Documents prepared by CDFW as part of the April and February 2014 regular noticed rulemaking, along with documents prepared by CDFW for the June 2013 emergency action and two related readoptions in December 2013 and March 2014, respectively, follow below.
April 2014 Documents Prepared by CDFW as Part of the Regular Noticed Rulemaking Action to Adopt the Emergency Regulatory Definition of Suction Dredging
John
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