The use of vacuum or suction dredge equipment, otherwise known as suction dredging, is currently prohibited and unlawful throughout California.
Under new state law effective January 1, 2016, the use of vacuum or suction dredge equipment is defined to mean the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals.
Under existing state law the California Department of Fish and Wildlife is also currently prohibited from issuing any permits for suction dredging in California under the Fish and Game Code.
With state law in effect, the use of vacuum or suction dredge equipment, otherwise known as suction dredging, is unlawful in California rivers, streams, and lakes, and any such activity is subject to enforcement and prosecution as a criminal misdemeanor.
(See generally Fish & G. Code, §§ 5653, 5653.1, 12000, subd. (a).)
New State Law Governing Suction Dredging in California Effective January 1, 2016
New state law governing the use of vacuum or suction dredge equipment, otherwise known as suction dredging, is now in effect, as of January 1, 2016. (Stats. 2015, ch. 680, §§ 2-3.) The new law, commonly referred to as Senate Bill or “SB” 637 (Allen), amends Fish and Game Code section 5653 and adds section 13172.5 to the Water Code.
In general, SB 637 amends Fish and Game Code section 5653 as follows:
- Prohibits the Department from issuing any suction dredging permits absent a complete application which must include, among other things, a copy of any water quality permit or other authorization required by the State Water Resources Control Board or the relevant Regional Water Quality Control Board, or the U.S. Army Corps of Engineers, or a written determination by such agency that no water quality permit or other such authorization is necessary;
- Conditions Department issuance of permits on regulations implementing the section that must ensure the use of vacuum or suction dredge equipment will not cause any significant effects to fish and wildlife, as opposed to prior law which conditioned the issuance of permits on regulations ensuring suction dredging would not be deleterious to fish;
- Provides the Department with authority to adjust permit fees to an amount sufficient to cover all reasonable costs incurred by the Department to regulate suction dredging as provided by the Fish and Game Code;
- Directs the Department to work with the State Water Resources Control Board and the Regional Water Quality Control Boards regarding potential violations of requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment; and
- Defines for the first time by statute what it means to use vacuum or suction dredge equipment, otherwise known as suction dredging, as the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals; but also clarifying the definition does not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.
In general, Water Code section 13172.5, added by SB 637:
- Defines the use of vacuum or suction dredge equipment, otherwise known as suction dredging, in the same terms as described above and now provided in Fish and Game Code section 5653;
- Provides the State Water Resources Control Board or the appropriate Regional Water Quality Control Board may take one or more of three specified actions related to suction dredging to protect water quality, including (1) the adoption of waste discharge requirements or a waiver of such requirements; (2) specifying certain conditions or areas where the discharge of waste or other adverse impacts on beneficial uses of the waters of the state from the use of vacuum or suction dredge equipment is prohibited; or (3) prohibit any particular use of, or methods of using, vacuum or suction dredge equipment, or any portion thereof, to extract minerals based on a determination generally that doing so will cause or contribute to an exceedance of applicable water quality objectives or unreasonably impact beneficial uses; and
- Directs the State Water Resources Control Board or the appropriate Regional Water Quality Control Board to solicit public input as detailed and to hold at least one noticed public hearing before taking any action as provided.
Information regarding state and federal water quality permitting requirements, and related action by the State Water Resources Control Board, the Regional Water Quality Control Boards, and the U.S. Army Corps of Engineers is available at the following links:
USACE San Francisco District
USACE Sacramento District
USACE Los Angeles District
The California Department of Fish and Wildlife, formerly the Department of Fish and Game, has been a named defendant or respondent in various lawsuits related to suction dredging in California since 2005. By order of the Judicial Council of California, various ongoing civil proceedings are coordinated in San Bernardino County Superior Court. (Suction Dredge Mining Cases, Super. Ct. San Bernardino County, Judicial Council Proceeding No. JCPDS4720.) An appeal stemming from those proceedings is pending in Division Two of the Fourth Appellate District. (In re Suction Dredge Mining Cases, No. E064087.)
Related litigation is also pending before the California Supreme Court. (People v. Rinehart, No. S222620.) The Rinehart litigation stems from a criminal prosecution for unlawful suction dredging in 2012. According to the web page of the California Supreme Court, the case presents the following issue: Does the Mining Act of 1872 (30 U.S.C. § 22 et seq.) preempt California Fish and Game Code sections 5653 and 5653.1 with respect to the use of vacuum and suction dredging equipment? The matter is fully briefed and the parties, including the People of the State of California represented by the California Attorney General, await further notice from the Court.
General information regarding the ongoing litigation concerning suction dredging in California is available by case number at: www.courts.ca.gov.
This web page will be updated, resources permitting, should there be any significant developments in the ongoing litigation regarding suction dredging that affects the current status quo.
Mining Activity Not Currently Prohibited by the Moratorium
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 the Department 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.
2013 CDFW Report to the California Legislature
On June 27, 2012, the State of California enacted Senate Bill 1018 (SB 1018), amending Fish and Game Code section 5653.1. (Stats. 2012, ch. 39, § 7.)
SB 1018, among other things, directed the Department to consult with various agencies, and to provide recommendations to the Legislature by April 1, 2013 regarding statutory changes or authorizations necessary for the Department to promulgate regulations to implement Fish and Game Code section 5653 which will, among other things, fully mitigate all identified significant environmental effects and include a fee structure that will fully cover Department costs to administer its related permitting program. (Fish & G. Code, § 5653.1, subd. (c)(1).)
The Department prepared and submitted the required report to the California Legislature (PDF) on April 1, 2013.
General Background Information Regarding CDFW and Suction Dredging
Fish and Game Code Statutes and Related Regulations
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).) Notwithstanding that authority, the use of any motorized vacuum or suction dredge equipment is prohibited in California, and CDFW is prohibited from issuing any related permits under the Fish and Game Code. (Id., § 5653.1.)
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.) CDFW adopted the amended regulatory definition of suction dredging through a regular noticed rulemaking action under the Administrative Procedure Act (Gov. Code, § 11340 et seq.), effective August 4, 2014. (Cal. Reg. Notice Register 2014, No. 33-Z, p. 1461.)
Key documents from CDFW’s 2012 and 2014 environmental review and rulemaking efforts are available below, scrolling further down this webpage.
To access the Fish and Game Code and CDFW’s suction dredge regulations, please click on the following link:
Key Documents from the 2014 Environmental Review and Rulemaking Effort
Key Documents from the 2012 Environmental Review and Rulemaking Effort
On March 16, 2012 CDFW completed a multi-year environmental review and rulemaking effort to update its suction dredge regulations implementing Fish and Game Code section 5653. The regulations as approved by the Office of Administrative Law (OAL) and filed with the Secretary of State took effect consistent with the Administrative Procedure Act (APA) on April 27, 2012. (Cal. Code Regs., tit. 14, §§ 228, 228.5; Cal. Reg. Notice Register 2012, No. 19-Z, p. 641.) The updated regulations are the first comprehensive update of CDFW’s suction dredging regulations since 1994.
As part of the effort, CDFW also prepared and certified a Subsequent Environmental Impact Report (SEIR) consistent with the California Environmental Quality Act (CEQA).
Key documents prepared by CDFW as part of its final action under CEQA and the APA are available here:
The Draft and Final SEIR prepared and certified by CDFW for its Suction Dredge Permitting Program are available here:
Final Subsequent Environmental Impact Report (FSEIR)
Draft Subsequent Environmental Impact Report (DSEIR)