Comments Regarding: Suction Dredge Permitting Program

March 24, 2011

California Department of Fish and Game

1416 Ninth Street

Sacramento, CA 95814

Comments Regarding: Suction Dredge Permitting Program

Draft Subsequent Environmental Impact Report

California Department of Fish and Game

February 2011

To Whom It May Concern:

Having reviewed all 897 pages of the above Report and countless other related documents, a lot of time and taxpayer money was spent trying to educate the public and DFG personnel about mining and more specifically about “suction dredging.” Education is never a waste but in this case it may have been. It is apparent from the conclusions cited as “Significant and Unavoidable Environmental Impacts” that analysis of the collected data has been twisted in places into what appears to be self-serving and bias findings. Throughout the Report, there were premature assumptions and faulty analysis of alleged problems because the real answer was not known or the available data would not support the desired conclusion. In such instances, the problem was simply declared “significant and unavoidable.” Despite all these pitfalls, surprisingly, there were parts of the Report itself that make a good argument for why more restrictive dredging regulations were NOT justified. Beginning with the very first paragraph of Section 228 of the DFG proposed regulations related to suction dredging, it states in part, “…the Department finds that suction dredging…will not be deleterious to fish.” Notwithstanding that published conclusion, the DFG proceeds to propose implementation of a prolonged and tedious number of changes affecting the manner in which suction dredging is performed. Even more disconcerting to the financial interest of claims owners, the proposed restrictions on dredging contained in the DSEIR take away “property rights” granted by the Mineral Estate Trust Act of 1866 and the Mining Law of 1872. The taking of such rights is a blatant violation of due process guaranteed by the 5^th amendment as it applies to the Federal Government and to the 14^th amendment as it applies to states. The taking of “property” without just cause or compensation is illegal and will continue to be pursued in lawsuits filed by the Public Lands for the Public and this litigation will continue to be pressed forward regardless of the outcome of these proposed new regulations. Notwithstanding the violations and legal entanglements referenced above, let us address the alleged “Significant and Unavoidable Impacts” referenced in Chapter 6.2.3 of the DSEIR:

Impact WQ-4: Effects of Mercury Resuspension and Discharge from Suction Dredging: This impact details analysis of Hg (Mercury) discharge and transport resulting from both dredging operations and watershed sources such as rainfall and runoff. Nobody disputes that there is mercury present in historic gold mining areas as a result of earlier gold mining efforts. But, as the report indicates, this mercury continues to slough into the river without regard to dredging activity. The report clearly points out on Page 4.2-38 that, “…In contrast to Hg discharged from suction dredging; the majority of HG is from background watershed sources during the winter wet season, when runoff conditions contribute to high flows that scour sediments laden with Hg.” Yes, every winter Mother Nature creates a “significant disturbance” and dredges without a permit. The report further cites a series of mercury samples that were taken once a month in the summer while preparing this Report. The conclusion at the bottom of Page 4.2-38 was that, “…it is possible that suction dredges were contributing to the annual HG load calculated, but Hg levels do not appear to reflect unusually high concentrations during the dry season. Given this, there are inherent uncertainties to the Hg loading estimates.” The Report itself stipulates that there are uncertainties as to the cause of HG loading that is present. So, the conclusion stated clearly in the report is that nobody knows anything for sure about movement of HG in streambeds. Even more indicative of this conclusion, on Page 4.2-40 it is reported that HG particles less than 63 um, “…do not remain suspended during summer low flows and are thus deposited back into the river.” This conclusion is no surprise to dredgers. Even further, on Page 4.2-41 it is finally concluded that, “Transport of elemental Hg that is floured and discharged from suction dredging is largely unknown as floured HG has been observed to float initially but subsequently sink or float until they are dissolved.” Yes, what goes up must come down and nobody knows how much mercury is discharged by suction dredging but the report makes clear that Mother Nature is the biggest contributor. The report also defines the low flow, summer months of dredging as between March and October. Therefore, the question presents itself as to why the proposed regulations are striving to cut short the dredging season for most dredgers to three months between July and September? WQ-4 is unfounded and should be corrected to read a finding of “less than significant.”

Impact WQ-5: Effects of Resuspension and Discharge of Other Trace Minerals from Suction Dredging: This area details results to determine the impact of other sediments encountered when dredging such as copper, lead, zinc, etc. Again, the conclusions on Page 4.2-58/59 are that dredging has a “negative impact.” It is reported that suction dredging would not be expected to increase levels of trace minerals nor result in substantial, long-term degradation of trace metal conditions that would cause adverse effects. Finally, it is further reported that the potential to mobilize the trace metals would not substantially increase health risks to wildlife. Everything sounds good for dredgers so far. However, then the report begins to speculate. It reaches out in desperation to suggest that, “If” dredging at known metal hot spots actually contained acid mine issues, low pH levels, high sediment, and pore metal concentrations, there “may be” a potentially significant impact. There are too many “ifs” and “maybes” in that assumption. Yet, despite the lack of data or knowledge to accurately identify where such conditions might exist, the report suggests that the “unknown” itself presents a significant and unavoidable impact. This is pointless analysis at its worst. The conclusion imagines that the perfect storm of conditions might exist out there somewhere to affect trace mineral conditions. That’s like saying, “Somewhere in those mountains, there is gold.” Impact WQ-5 is unfounded and should be corrected to read a finding of “less than significant.”

Impact BIO-WILD-2: Effects on Special-Status Passerines Associated with Riparian Habitat: This impact details the results to determine whether dredging impacts special-status passerine species by altering behavior, movements, and distributions. Passerines were defined as birds that are adapted for perching. This means that they primarily live in the trees. The specific disturbance of reported concern is noise from dredge equipment or encampment activities. This whole discussion is prejudicial against miners without a scintilla of scientific proof to back it up. Further, the report totally ignored any discussion or consideration for the level of noise generated by hunters, fishermen, campers, hikers, recreational vehicles, and other outdoor activities. On a scale of noise makers, suction dredgers have to be far and away the minority in number and create the least impact on the environment. This whole argument is a stretch and complete over-reaching by the Report writers. The report attempts to support its weak position by stating that, “even a small disturbance could be substantial.” Where is the scientific data for that conclusion? These are passerine creatures that live in the outdoors and expect noise as well as other disturbances all the time and on a wide range of levels. In addition, on Page 4.3-49 of the report, it suggests an accurate determination of any potential impacts to these special-status passerines must be studied using field surveys by qualified biologist to determine their location using the California Natural Diversity Database (CNDDB) and other such sources. So, the report is really stating that nobody knows where these alleged passerines live. Well, if the locations of these passerines are important, DFG needs to submit a proposal for funding of research by qualified biologists to pinpoint locations and see what kind of funding support is present. Impact BIO-WILD-2 is unfounded and should be corrected to read a finding of “less than significant.”

Impact CUL-1: Substantial Adverse Changes, When Considered Statewide, in the Significance of Historical Resources: This impact was to consider how dredging might affect historical and cultural resources. This is yet another example of when we don’t really know anything, let’s just assert that dredging is the cause. How do we know this to be true? On Page 4.5-12, it discusses the potential impact of dredging on historical resources. The Report states, “…Whether this impact would have a substantial adverse change in the significance of a resource when considered statewide is a function of the likelihood of disturbance of these resources and their individual and/or collective significance. It is unknown whether suction dredge mining would affect significant historical resources to a level that would be considered significant statewide.” In other words, such impact cannot be attributed to dredging. Yet nonetheless, again, the writers of this Report use the same old crutch as used previously and conclude that since an impact cannot supported by scientific data, it will simply be labeled a “potentially significant impact” attributable to dredging. But, further on Page 4.5-13, the report also confesses that the only way to know for sure about the location of any historical resources would be to conduct archival research using the California Historical Resources Information System (CHRIS). Well, by all means, let the DFG propose a research team be assembled to conduct this perceived vital research and send it along the aforementioned study on passerines. Clearly, this whole issue is again over zealous staffers trying to make reach a preconceived conclusion when no data exists to support it. Impact CUL-1 is unfounded and should be corrected to read a finding of “less than significant.”

Impact CUL-2: Substantial Adverse Changes, When Considered Statewide, in the Significance of Unique Archaeological Resources: This impact was to consider how dredging might affect archaeological resources listed in the California Register of Historical Resources (CRHR). This is another case as detailed previously where CFG has put the “cart in front of the horse.” What impact and where are these archaeological resource sites? Well, again, the report clearly describes that nobody knows. Beginning on Page 4.5-14, the Report states, “…Whether this impact would have a substantial adverse change in the significance of a unique archaeological resource when considered statewide is a function of the likelihood of disturbance to such a resource and its individual and/or collective significance. It is unknown whether suction dredge mining would affect unique archaeological resources to a level that would be considered significant statewide.” The report goes on further to suggest that the only way to know if there are unique archaeological sites, one would need to perform archival research using the California Historical Resources Information System (CHRIS). Well, this sounds like another budget proposal that DFG would need to submit for fundins. The fact is that if this allegation were true and verifiable, the DFG or some environmental group would have already performed this research and published the information. Impact CUL-2 is unfounded and should be corrected to read a finding of “less than significant.”

Impact NZ-1: Exposure of the Public to Noise Levels in Excess of City or County Standards: This impact considers whether operating dredge equipment exceeds noise standards. If this entire study were not so serious in its potential impact to miners, this particular impact would be laughable for lack of support and scientific merit. First of all, where are the noise level standards that apply to conditions, equipment, and animals found in Mother Nature? Does a mountain lion, wolf, or moose violate this unknown standard when they sound a mating call? The fact is that this particular impact is another “pie in the sky” effort to dream up problems and blame the problem on dredging. However, again, the Report tells us what we need to know. The report states that while dredging has the potential to generate excess noise, the existing regulations do not authorize permit holders to use their equipment in a manner that violates existing noise standards. Further, on Page 4.7-9, the Report states, “…all recreationist…are equally required to abide by local noise ordinances. Violations can be reported at any time to local authorities who have the jurisdiction to enforce applicable regulations as appropriate.” Nonetheless, absent any concrete data to support that dredgers violate recognized noise standards, the writers of this report use the same approach as in other situations where they lack scientific data. The Report writers declare the impact to be “significant and unavoidable” out of nothingness. This is a outrageous conclusion and unfounded. Consequently, Impact NZ-1 should be corrected to read a finding of “less than significant.”

Impact CUM-2: Effects on Wildlife Species and Their Habitats: This impact considers the extent dredging operations could have on non-riverine aquatic invertebrates, reptiles, birds, and mammals. Amazingly, the Report finds that dredging does not have any considerable cumulative impact on any of these creatures and declares a finding of “less than significant” in these cases. However, in the case of several bird species, the report expresses a concern with the so called “incremental effects” of the proposed program. This is puzzling since on Page 5-23 of the report, it states that, “Similar to fish species, declines in non-Fish species populations are largely due to long-term degradation of environmental conditions. With few exceptions, the declines in the population of a non-fish species are the result of the synergistic effects of anthropogenic activities, and not a single causative agent or project.” The word “anthropogenic” means “caused by humans.” So the Report is already saying that it’s not “dredging” per se that impacts non-fish or bird species but a lot of “unknown” human factors. The Report acknowledges that there are other influencing factors besides dredgers affecting the environment. And, let’s not forget that “dredgers” are in the water and birds are in the trees. Yet, this report contends that out of all the other thousands of bird, plant, and non-fish species discussed in the report, the eight non-fish species listed on Table 4.3-3 are in danger to dredging operations. This is like pulling out the mythical “needle from the haystack.” It is the position of miners that these eight species are no less impacted or at risk than the hundreds of other species determined in the Report to be “less than significant.” This impact is not based upon any scientific proof but mere conjecture. Consequently, impact CUM-2 is unfounded and should be corrected to read “less than significant.”

Impact CUM-6: Turbidity/TSS Discharge from Suction Dredging: This impact considers alleged turbidity impairments from dredge discharges impacting fish. It is a shame that the writers of this report have not actually dredged themselves or they would know firsthand the ridiculous nature of this argument. Fish surround dredgers when they are dredging because they know that food is on the menu again. Yet the false premise that turbidity from dredge discharges hurt fish has spawned into an argument for closing or restricting dredging operations. Reference is made again to the Report itself in Section 228 of the DFG Proposed Amendments to the Regulations related to suction dredging where it makes the bold statement that, “…the Department finds that suction dredging…will not be deleterious to fish.” Further on Page 5-28, the Report references past, present, and future turbidity sources of turbidity which include: agriculture, aquaculture, effluent pollution, recreation, urbanization, timber harvest, and wildfire, fire suppression, and fuels management. In essence, the Total Maximum Daily Load (TMDL) of turbidity touted in the Report has many causes and the least of which is from dredging. This impact is overstated and embellished to serve its masters rather than speak the truth. Impact CUM-3 is unfounded and should be corrected to read “less than significant.”

Impact CUM-7: Cumulative Impacts of Mercury Resuspension and Discharge from Suction Dredging: This impact considers how dredging affects existing concentrations of Mercury present in the sediments of historic gold-mining and gold bearing regions. There is no getting around that Mercury was left behind by historic miners and mining operations. However, as previously discussed under in Impact WQ-4 and detailed on Page 4.2-8 of this Report, “the transport of elemental Hg that is floured and discharged from suction dredging is largely unknown but floured HG floats initially and will subsequently sink or float until they are dissolved.” Now the Report suddenly mentions a new mysterious field study conducted by USGS scientists in the Yuba River system. First, who are these alleged “scientists and Hg experts” and what are their qualifications? Quite candidly, this new field study just seems too obvious and convenient. It is also too premature to be accepted as reliable data. On Page 4.2-19 of this Report, it clearly states that the information provided by these unknown experts was “preliminary results.” In other words, this study (if it is one) has not undergone any peer review or been validated. And validation is necessary since the USGS chose a location where Humbug Creek meets the confluence of the South Yuba River. This is a prejudicial site for any representative field test since this is the location of the Malakoff Diggins where heavy hydraulic mining occurred and is not likely to result in data that can be repeated in other field research. Point in fact, on Page 4.2-23 of the Report, it states, “…The South Yuba river watershed experienced the most intensive level of hydraulic mining, in which mercury-contaminated hydraulic mining debris was produced, and discharged in the watershed. Reasonably, this is not a scientifically representative location from which to extrapolate a conclusion about effects of mercury Resuspension. This explains why on Page 4.2-54 of the Report, it concludes, “…because not all locations of elemental mercury deposits are known, the feasibility with which sites containing mercury could be identified at a level of certainty that is sufficient to develop appropriate closure areas or other restrictions for allowable dredging activities, is uncertain at this time.” Further on the same page, the Report states, “…a comprehensive set of actions to mitigate the potential impact through avoidance or minimization of mercury discharges has not been determined at this time, nor is its likely effectiveness known.” So, we don’t know exactly where all this mercury resides and, even if we did, the effectiveness of trying to mitigate impact is unlikely. And finally, on Page 4.2-36 of the Report, it states, “…modern equipment may result in less flouring” when discussing the impact of mercury. So, the data used to support this impact is based upon inconclusive field results and the whole problem itself may be admittedly an insolvable one. But we do know that material disturbed in any waterway will find its way to the bottom and Mother Nature does more to disrupt Mercury sediments that any dredger ever could. Impact CUM-7 is unfounded and should be corrected to read “less than significant.”

Somewhere between the “1994 Regulations Alternative” and the “Reduced Intensity Alternative” there exists an alternative that would allow CFG to continue to do its job as well as allow miners greater access their claims. But, only data that can be scientifically supported should be considered. Meanwhile, dredging should not be restricted or prohibited in those areas and during those times of the year when dredging would not pose problem to the environment. All miners are open to some better dredging practices but dredgers should not be scapegoats.