Current through Register 2021 Notice Reg. No. 51, December 23, 2022
The Department has adopted this Section and Section 228.5
pursuant to Fish and Game Code Section
5653.9,
and to make specific and otherwise implement Fish and Game Code Section
5653,
specifically. Pursuant to that authority, the Department finds that suction
dredging subject to and consistent with the requirements of Sections 228 and
228.5 will not be deleterious to fish.
(a) Suction dredging. For purposes of this
Section and Section 228.5, 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. These
regulations do not apply to, prohibit or restrict nonmotorized recreational
mining activities, including panning for gold.
(b) Permit requirement. Every person who
operates the intake nozzle of any suction dredge shall have a suction dredge
permit in his/her immediate possession. Any amended permit shall also be in
his/her immediate possession. Suction dredge permits shall be valid from the
first day of the year for one calendar year or if issued after the first day of
the year, for the remainder of that year. The Department will charge a fee for
each suction dredge permit pursuant to Section 5653, subdivision (c), of the
Fish and Game Code. Permits may be obtained at any Department license sales
office. Any person with a qualifying disability under the Americans With
Disabilities Act, who presents a Disabled Person DMV registration or other
State, or Federal approved documentation of disability, and who requires
assistance in operating a suction dredge may also apply for an assistant
suction dredge permit. Any assistant suction dredge permit issued by the
Department to such disabled person shall be in the disabled applicant's name
and shall be issued at no charge. The disabled permittee must be present at the
dredge site while the assistant is operating the suction dredge. The assistant
shall have the assistant suction dredge permit in his/her immediate possession
while assisting the disabled permittee in suction dredging activities. Any
assistant may be prosecuted for a violation of the laws or regulations
pertaining to suction dredging. The disabled permittee may be prosecuted for a
violation of the laws or regulations pertaining to suction dredging committed
by his/her assistant.
(c) Permit
application. Suction dredge permit applications shall be made available at any
Department license sales office using the Department's Automated License Data
system. No suction dredge permit shall be issued by the Department unless an
application has been completed by the permit applicant. A completed application
shall contain all of the following information:
(1) Identification and contact information
for the permit applicant based on any of the following:
(A) Any license document or identification
number previously issued via the Department's Automated License Data
System,
(B) A valid driver's
license or identification card issued to him or her by the Department of Motor
Vehicles or by the entity issuing driver's licenses from the licensee's state
of domicile,
(C) U.S. Birth
Certificate,
(D) U.S. Certificate
or Report of Birth Abroad,
(E)
Immigration and Naturalization Service American Indian Card,
(F) Birth Certificate or passport issued from
a US Territory,
(G) U.S.
Passport,
(H) U.S. Military
Identification Cards (Active or reserve duty, dependent, retired member,
discharged from service, medical/religious personnel), or
(I) Certificate of Naturalization or
Citizenship.
(d) Permit Amendment. Applicants may amend
suction dredge permits at a Department license sales office, at no additional
cost, by submitting an amendment form providing the Department with their
permit number and modifications or additions to the information specified in
the original application.
(e)
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,
the inspection has been completed and the Department has provided written
approval of the proposed suction dredging.
(f) Permits Requiring Notification Pursuant
to Section
1602 of
the Fish and Game Code. Where a notification is required pursuant to these
regulations, a permit, or amended permit, is not valid until the permittee has
in their possession documentation of compliance with Fish and Game Code Section
1602,
subdivision (a), for the proposed suction dredging, including a copy of their
notification to the Department; any response to the notification by the
Department pursuant to Fish and Game Code Section
1602,
subdivision(a)(4)(A)(i); and a Lake or Streambed Alteration Agreement if
required.
(g) Number of Permits.
The Department shall issue a maximum of 1,500 permits annually, on a
first-come, first-served basis.
(h)
Suction Dredge Reporting. Each permittee shall possess, maintain and submit to
the Department a completed annual Report Card for each year that a suction
dredge permit is held. The Report Card shall be received by the Department no
later than the following January 15. The Department shall furnish the Report
Card to all permittees when a permit is sold. Failure to timely submit the
Report Card as required may result in revocation, suspension or non-issuance of
any subsequent suction dredge permit issued to the permittee by the Department.
The permittee shall be required to provide the following information on the
Report Card:
(1) The location of each site
where the permittee operated the nozzle of a suction dredge. Pertinent
information includes river, stream or lake name, county, nearest town or city,
latitude and longitude or topographic map name with township, range, section
and quarter section;
(2) The dates
of operation for suction dredging at each location;
(3) The beginning and end times for operation
each day, and
(4) The nozzle size
and horsepower for each suction dredge operated at each location.
The permittee shall have the Report Card in his/her
possession when suction dredging; the Report Card shall be up to date with
required information during suction dredging, including information regarding
prior and current suction dredging activity; and the permittee shall provide
the Report Card to any Department representative for inspection upon
request.
(i)
Permit Revocation or Suspension. Any suction dredge permit or amended suction
dredge permit may be revoked or suspended by the assistant chief of enforcement
for any violation of the laws or regulations pertaining to suction dredging.
The assistant chief of enforcement may, in his/her discretion, revoke or
suspend the permit or amended permit based on past citations or convictions of
such laws or regulations. Once a permit or amended permit has been revoked, no
new suction dredge permit may be obtained by that person in the current year or
for the calendar year subsequent to the revocation. An assistant chief of
enforcement's decision to revoke or suspend a permit or amended permit may be
appealed to the director. Any revocation or suspension of a permit or amended
permit shall be in accordance with the following provisions:
(1) Hearing When Permittee Convicted of
Violation. In the case where the permittee has already been convicted of a
violation of Section
5653 or
5653.3
of the Fish and Game Code or any regulation pertaining thereto permitted by
said code, the assistant chief of enforcement shall schedule a hearing to
consider the revocation or suspension of his/her permit:
(A) Notification. The assistant chief of
enforcement shall notify the permittee, by certified letter, of the intent to
consider the revocation or suspension of his/her permit or amended permit at
the hearing. The certified letter shall include the following information:
1.Name of permittee and last known
address.
2.Date, time and place of
scheduled hearing,
3.Reason for
impending action, including a statement as to date and fact of
conviction(s).
4.A copy of Section
228, Title 14, California Code of Regulations.
5.A statement that the permittee has the
right to appear and to be represented by legal counsel.
(B) Recording. The proceedings of the hearing
shall be recorded by an electronic recording system.
(C) Reading of Documents. At the hearing, the
assistant chief of enforcement shall read the conviction documents. The
Department shall provide the assistant chief of enforcement with the background
information regarding the violation(s) and conviction(s) and shall submit into
the record a copy of the document(s) which include(s) the facts of the
conviction(s) of a violation of the regulation(s) or statute.
(D) Statement by Permittee. The permittee
shall make his/her statement regarding the violation(s) and conviction(s), and
may argue that extenuating circumstances were such as to not warrant the loss
of his/her permit or amended permit.
(E) Questioning. The permittee or the
Department personnel may be questioned by the assistant chief of
enforcement.
(F) Findings. At the
conclusion of the hearing, the assistant chief of enforcement shall make a
decision which contains findings or reasons for the proposed action.
(G) Notification by Certified Mail. After the
hearing, the assistant chief of enforcement shall provide the permittee, by
certified mail, a copy of the final decision.
(H) Appeal. The permittee may request an
appeal in writing to the director within 30 days of the date of receipt of the
assistant chief of enforcement's decision. The director shall respond to an
appeal in writing within 45 days from receipt of notice of request to
appeal.
(I) Judicial Review. The
permittee may request judicial review by filing a petition for writ of mandate
in accordance with provisions of the Code of Civil Procedure within 30 days
from the date of the decision. The record of the proceedings shall be prepared
by the Department and delivered to the petitioner within 30 days after receipt
of petitioner's request and upon payment of the fee specified in Section
69950 of
the Government Code.
(2)
Hearing When Permittee Cited but Not Convicted. In the case where the permittee
has not been convicted of a violation of Section
5653 of
the Fish and Game Code or any regulation pertaining to suction dredging
permitted by said code, but has been cited by the Department, the assistant
chief of enforcement shall schedule a hearing to consider the revocation or
suspension of his/her permit or amended permit.
(A) Notification. The assistant chief of
enforcement shall notify the permittee, by certified letter, of the intent to
consider the revocation or suspension of his/her permit or amended permit at
the hearing. The certified letter shall include the following information:
1.Name of permittee and last known
address.
2.Date, time and place of
scheduled hearing.
3.Reason for
impending assistant chief of enforcement's action, including a concise
statement of the acts or nonactions of the permittee which constitutes a
violation of Section
5653 or
5653.3,
of the Fish and Game Code or regulations made pursuant thereto.
4.A copy of Section 228, Title 14, California
Code of Regulations.
5.A statement
that the permittee has the right to appear and to be represented by legal
counsel.
(B) Recording.
The proceedings of the hearing shall be recorded by an electronic recording
system.
(C) Presentation of
Evidence. The permittee and the Department have the right to present evidence
at the scheduled hearing as follows:
1.Oral
evidence shall be taken on oath or affirmation.
2.Each party may call and examine witnesses,
cross-examine opposing witnesses on any relevant matter, may rebut evidence
against him/her, and may orally argue the matter.
3.The hearing need not be conducted according
to the technical rules relating to evidence and witnesses. Any relevant
evidence shall be admitted if it is the sort of evidence on which responsible
persons would rely in the conduct of serious affairs.
4.The permittee or the Department may be
questioned by the assistant chief of enforcement.
(D) Findings. At the conclusion of the
hearing, the assistant chief of enforcement shall make a decision based on the
evidence presented at the hearing and shall issue written findings containing
reasons for the decision and the evidence relied upon.
(E) Notification by Certified Mail. After the
hearing the assistant chief of enforcement shall provide the permittee, by
certified mail, a copy of the final decision.
(F) Appeal. The permittee may request an
appeal in writing to the director within 30 days of the date of receipt of the
assistant chief of enforcement's decision. The director shall respond to an
appeal in writing within 45 days from receipt of notice of request to
appeal.
(G) Judicial Review. The
permittee may request judicial review by filing a petition of writ of mandate
in accordance with provisions of the Code of Civil Procedure within 30 days
from the date of the director's decision. The record of the administrative
proceedings shall be prepared by the Department and delivered to the petitioner
within 30 days after receipt of petitioner's request and upon payment of the
fee specified in Section
69950 of
the Government Code.
(j) Use of Suction Dredges in Lakes and
Reservoirs. No suction dredging is permitted within the current water level in
any lake or reservoir unless:
(1) The
Department has conducted an on-site inspection and approved the proposed
suction dredging operation in writing;
(2) The permittee has a valid suction dredge
permit; and
(3) The permittee has
in their possession documentation of compliance with Fish and Game Code Section
1602,
subdivision (a), for the proposed suction dredging operation, including a copy
of the permittee's notification to the Department; any response by the
Department pursuant to Fish and Game Code Section
1602,
subdivision (a)(4)(A)(i), and, in the event a Lake or Streambed Alteration
Agreement is required, authorization from the Department for the proposed
suction dredging operations at the location specified in the permit application
pursuant to subdivision (c).
For purposes of this subdivision, suction dredging in any
tributary river or stream in the exposed bed of any partially empty lake or
reservoir shall be governed by the requirements in Section228.5 for that tributary river or
stream.
(k)
Equipment Requirements.
(1) Nozzle
Restriction. No suction dredge having an intake nozzle with an inside diameter
larger than four inches may be used unless:
(A) The Department has conducted an on-site
inspection and approved a larger nozzle size in writing; the maximum inside
diameter of the intake nozzle is no larger than six inches, or eight inches
where allowable under subdivision (k)(1)(E); and
(B) The permittee has a valid suction dredge
permit; and
(C) The permittee has
in their possession documentation of compliance with Fish and Game Code Section
1602,
subdivision (a), for the proposed suction dredging operation, including a copy
of his/her notification to the Department; any response to the notification by
the Department pursuant to Fish and Game Code Section
1602,
subdivision (a)(4)(A)(i); and specific authorization from the Department for a
vacuum nozzle greater than four inches in diameter if a Lake or Streambed
Alteration Agreement is required; or
(D) Except as provided by subdivision
(k)(1)(A), a constricting ring with an inside diameter not larger than four
inches has been attached to the intake nozzle. This constricting ring must be
of solid, one-piece construction with no openings other than the intake and
openings not greater than one inch between the constricting ring and nozzle. It
must be welded or otherwise permanently attached over the end of the intake
nozzle. No quick-release devices are permitted.
(E) Suction dredge intake nozzles up to eight
inches in diameter may be permitted at the Department's discretion in
accordance with subdivision (k)(1)(A) only on the following rivers:
1.American (Placer and El Dorado
Counties);
2.Cosumnes (Sacramento,
Amador and El Dorado Counties);
3.Feather (Butte, Plumas and Yuba
Counties);
4.Klamath (Del Norte,
Humboldt and Siskiyou Counties);
5.Merced (Mariposa and Merced
Counties);
6.Mokelumne (Amador,
Calaveras and San Joaquin Counties);
7.Scott (Siskiyou County);
8.Trinity (Trinity and Humboldt Counties);
and
9.Yuba (Sierra, Nevada and Yuba
Counties).
(2)
Hose Restriction. The inside diameter of the intake hose may not be more than
two inches larger than the permitted intake nozzle size or constricting ring,
whichever is smaller.
(3) Pump
Intake Screening. The intake for the suction dredge pump shall be covered with
screening mesh. Screen mesh openings shall not exceed 3/32 inch (2.38 mm) for
woven wire or perforated plate screens, or 0.0689 inch (1.75 mm) for profile
wire screens, with a minimum 27% open area.
(4) Suction dredges must include a
containment system under the motor and fuel tanks. The containment system must
be sufficient in size to completely accommodate the full volume of all fuel,
lubricants and chemicals without overtopping or leaking.
(l) Restrictions on Methods of Operation.
(1) Motorized winching or the use of other
motorized equipment to move boulders, logs, or other objects is prohibited,
unless:
(A) The Department has conducted an
on-site inspection and approved the proposed suction dredging operations in
writing; and
(B) The permittee has
a valid suction dredge permit; and
(C) The permittee has in their possession
documentation of compliance with Fish and Game Code Section
1602,
subdivision (a), for the proposed suction dredging operations, including a copy
of their notification to the Department; any response to the notification by
the Department pursuant to Fish and Game Code Section
1602,
subdivision (a)(4)(A)(i); and specific authorization from the Department for
motorized winching if a Lake or Streambed Alteration Agreement is
required.
(2) Winching,
whether motorized or hand powered, shall be conducted under the following
provisions:
(A) Boulders and other material
may only be moved within the current water level. No boulders or other material
shall be moved outside the current water level.
(B) Winching of any material embedded on
banks of streams or rivers is prohibited.
(C) Winching of any material into a location
which deflects water into the bank is prohibited.
(D) Nets and other devices may be used to
collect cobbles and boulders by hand for removal from dredge holes providing
the materials are not removed from within the water level.
(E) No woody streamside vegetation shall be
removed or damaged. Trees of sufficient size and condition may be used as winch
and pulley anchor points provided that precautions are taken to ensure that
trunk surfaces are protected from cutting or abrasions and the tree is not
uprooted.
(3) No person
shall operate the nozzle of a suction dredge and remove material within three
feet of the lateral edge of the current water level, including at the edge of
instream gravel bars or under any overhanging banks.
(4) No person shall remove or damage
streamside vegetation during suction dredge operations.
(5) No person shall cut, move or destabilize
instream woody debris such as root wads, stumps or logs.
(6) No person shall divert the flow of a
river or stream into the bank.
(7)
For the purpose of suction dredge mining subject to this section, no person
shall construct a dam or weir, concentrate flow in a way that reduces the total
wetted area of a river or stream, or obstruct fish passage; unless:
(A) The Department has conducted an on-site
inspection and approved the proposed suction dredging operations in writing;
and
(B) The permittee has a valid
suction dredge permit; and
(C) The
permittee has in their possession, documentation of compliance with Fish and
Game Code Section
1602,
subdivision (a), for the proposed suction dredging operations, including a copy
of their notification to the Department; any response by the Department to the
notification pursuant to Fish and Game Code Section
1602,
subdivision (a)(4)(A)(i); and specific authorization for the proposed activity
if a Lake or Streambed Alteration Agreement is required.
(8) No person shall import any earthen
material into a stream, river or lake.
(9) All fueling and servicing of dredging
equipment must be done in a manner such that petroleum products and other
substances are not leaked, spilled or placed where they may pass into the
waters of the state.
(10) No fuel,
lubricants or chemicals may be stored within 100 feet of the current water
level. Where this is not feasible, a containment system must be in place
beneath the fuel, lubricants or chemicals. The containment system must be
sufficient in size to completely accommodate the full volume of all fuel,
lubricants and chemicals without overtopping or leaking.
(11) Stream substrate, including gravel,
cobble, boulders and other material may only be moved within the current water
level.
(12) No person shall
displace any material embedded on banks of rivers or streams.
(13) No person shall disturb any mussel bed.
A mussel bed is defined as an area of any size where the density of mussels is
10 or more/square yard. Suction dredging activities, including deposition of
tailings, shall not occur within 30 yards upstream of a mussel bed, nor within
10 yards laterally or downstream.
(14) Reasonable care shall be used to avoid
dredging silt and clay materials that would result in a significant increase in
turbidity.
(15) The permittee shall
level all tailing piles, returning the site to the pre-mining grade to the
greatest extent possible, prior to finishing use of the excavation site for the
suction dredging season, or working another excavation site.
(16) No person shall disturb any redds,
actively spawning fish, amphibian egg masses or tadpoles. If encountered while
operating a suction dredge, the permittee must cease operations and relocate
dredging activities.
(17) The
willful entrainment of finfish, mollusks or amphibians is prohibited.
(18) No person shall use wheeled or tracked
equipment instream as part of suction dredging.
(19) All suction dredge equipment shall be
cleaned of mud, oil, grease, debris, and plant and animal material before use
in a river, stream or lake.
(20)
Before relocating a suction dredge to another waterbody, water shall be drained
from all equipment for at least two weeks or the suction dredge and associated
equipment must be decontaminated. 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.
(21) No person shall
operate a suction dredge within 500 ' of another operating suction dredge. For
purposes of these regulations, "operating" shall mean that the motor on the
suction dredge is creating a vacuum through the vacuum hose and
nozzle.
(m) State
Wildlife Areas and Ecological Reserves. Consistent with Title 14, Sections 550,
subdivision (b)(10), and 630, subdivision (a)(1), of the California Code of
Regulations, suction dredging is prohibited in State Wildlife Areas and
Ecological Reserves.
(n) Compliance
with Other Laws. Nothing in any permit or amended permit issued pursuant to
these regulations authorizes the permittee to trespass on any land or property,
or relieves the permittee of the responsibility to comply with applicable
federal, State, or local laws or ordinances.
(o) Emergency Closure. The Department may
initiate emergency regulatory action pursuant to Government Code Section
11346.1 to
close any water to suction dredging.
(p) Timing of Activity. Active suction
dredging operations may only be conducted between 10:00 a.m. and 4:00
p.m.
Note: Authority cited: Sections
5653
and
5653.9,
Fish and Game Code. Reference: Sections 5653.1,5653.3, 5653.5, 5653.7, 5653.8
and 5653.9, Fish and Game Code.
1. New section filed
5-27-94; operative 5-27-94 (Register 94, No. 21). For prior history, see
Register 81, No. 41.
2. Amendment of subsection (b)(1), new
subsections (b)(2)-(3) and subsection renumbering filed 4-26-2001 as an
emergency; operative 4-26-2001 (Register 2003, No. 9). A Certificate of
Compliance must be transmitted to OAL by 8-24-2001 or emergency language will
be repealed by operation of law on the following day.
3. Editorial
correction adding History 2 (Register 2003, No. 9).
4. Reinstatement
of section as it existed prior to 4-26-2001 emergency amendment by operation of
Government Code section
11346.1(f)
(Register 2003, No. 9).
5. Change without regulatory effect amending
subsection (b)(1) filed 4-7-2008 pursuant to section 100, title 1, California
Code of Regulations (Register 2008, No. 15).
6. Amendment filed
4-27-2012; operative 4-27-2012 pursuant to Government Code section
11343.4
(Register 2012, No. 17).
7. Repealer of subsection (a),
redesignation and amendment of subsection (a)(1) as subsection (a) and repealer
of subsections (a)(1)(A)-(a)(2) filed 6-28-2013 as an emergency; operative
6-28-2013 (Register 2013, No. 26). A Certificate of Compliance must be
transmitted to OAL by 12-26-2013 or emergency language will be repealed by
operation of law on the following day.
8. Repealer of subsection
(a), redesignation and amendment of former (a)(1) as subsection (a) and
repealer of subsections (a)(1)(A)-(a)(2) refiled 12-26-2013 as an emergency;
operative 12-26-2013 (Register 2013, No. 52). A Certificate of Compliance must
be transmitted to OAL by 3-26-2014 or emergency language will be repealed by
operation of law on the following day.
9. Repealer of subsection
(a), redesignation and amendment of former subsection (a)(1) as subsection (a)
and repealer of subsections (a)(1)(A)-(a)(2) refiled 3-24-2014 as an emergency;
operative 3-27-2014 pursuant to Government Code section
11346.1(d)
(Register 2014, No. 13). A Certificate of Compliance must be transmitted to OAL
by 6-25-2014 or emergency language will be repealed by operation of law on the
following day.
10. Certificate of Compliance as to 3-24-2014 order,
including nonsubstantive amendment of Note, transmitted to OAL 6-20-2014 and
filed 8/4/2014(Register
2014, No. 32).
