PEOPLE v. RINEHARTAppellant’s Request for Judicial NoticeCal.September 28, 2015 No. 8222620 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA Plaintiff and Respondent, FILED WITH PERMISSION " SUPREME COURT BRANDON LANCERINEHART, FILED Defendant and Appellant. SEP 28 2015 Frank A. McGuire Clerk Third Appellate District, Case No. C074662 Plumas County Superior Court, Case No. M1200659 Deputy Honorable Ira Kaufman, Judge DEFENDANT AND APPELLANT’S SECOND CONDITIONAL SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE James L. Buchal, SBN 258128 Murphy & Buchal LLP 3425 SE Yamhill Street, Ste. 100 Portland, OR 97214 Tel: 503-227-1011 Fax: 503-573-1939 Attorneyfor Defendant andAppellant September 25, 2015 Appellant hereby moves, pursuant to Evidence Code §§ 452 & 459, and California Rules of Court 8.252(a) and 8.520(g), for judicial notice of the following attached documents: Exhibit 13 are true copies of excerpts from the certified Administrative Record for the Suction Dredge Permitting Program Final Subsequent Environmental Impact Report issued by the California Department of Fish and Gamein March 2012 (FSEIR),filed in the Suction Dredge Mining Cases, No. JCCP4720 (San Bernardino). Exhibit 14 is a true copy ofthe Brief for the United States as Amicus Curiae Supporting Appellee in California Coast Commission v. Granite Rock Co., 480 U.S. 572 (1987), filed by the Solicitor General of the United States, now Harvard Law Professor Charles Fried. Exhibit 15 is a true copy of materials generated by the U.S. Forest Service in the course ofreviewing suction dredging operations on the Oro Grande Placer Mining Claim in the Klamath National Forest. Asto Exhibits 13 & 15, this Second Conditional Supplemental Request for Judicial Notice is conditioned upon the Court’s determination to permit the parties amicus curiae (or indeed any party) to make a recordin this Court concerning environmental impacts of suction dredging andthe feasibility of alternative mining techniques—which the Court should not do. Exhibit 14 is presented to provide a complete version ofthe Attachment to Defendant and Appellant’s Answerto the BriefAmicus Curiae Filed by the United States. Dated: September 25, 2015. Igthes’L. Buchal, SBN 258128 urphy & Buchal LLP 3425 SE Yamhill Street, Ste. 100 Portland, OR 97214 Tel: 503-227-1011 Fax: 503-573-1939 - Attorneyfor Defendant andAppellant California Departmentof Fish and Game 4. Responses to Comments MR-GEN-12: Comments that Disagree with the DSEIR Determination that a Limited Numberofimpacts are Significant and Unavoidable The Department received several comments disagreeing with its determination in the DSEIR that suction dredging under the Proposed Program would havesignificant and unavoidable impacts, specifically related to water quality, cultural resources, noise, and a single biological resource issue. Comments critical of the Department’s determination are based generally on one of two assertions: (1) the Department should have mitigated these significant impacts to below levelof significance, and (2) the Department’s determination are overly conservative, erring ontheside offinding related impacts significant. As to the first assertion, please see MR-GEN-6 for a discussion of the Department's legal obligation and authority to mitigate significant environmental impacts in the present context. Against this backdrop, the Department properly concluded in the DSEIR that certain impacts would remain significant and unavoidable. As to whether the Department made overly conservative significance determinations, several points bear emphasis. First, the Department’s conclusions are based on a combination of the probability of an impact occurring and the consequence should the impact occur. For instance, an impact with a low probability of occurring, but a high consequenceif it were to occur, was characterized as significant in the DSEIR. This was the case in the DSEIR for Impact BIO-WILD-2, which concerns potential disturbance by suction dredgers of special-status passerines associated with riparian habitat. While the likelihood of disturbanceis considered relatively low, several of these species (e.g., Least Bell’s Vireo) are sufficiently rare that even a small disturbance would be substantial considering the restricted population and/or range of the species. The Department employed similar rationale for ImpactsCUL-1 and CUL-2, where damage to any significant cultural resource would be considered significant, even though that the Department expects the frequency and magnitudeof anyrelated disturbance to be low.In other cases, the Department found impacts to be significant because related activities under the Proposed Program have the clear potential to exceed the identified threshold ofsignificance on a regular basis (Impacts WQ-4, WQ-5, and NZ-1). Whetherthe Department’s significance determinations are overly conservative depends to some degree on the eye of the beholder. In the present context, however, the Department itself as lead agency is charged by law to determine whether suction dredging impacts authorized under the Proposed Program will be significant. (Pub. Resources Code, §§ 21082.2, subd. (a), 21100, subd. (b)(1)}; CEQA Guidelines, § 15064, subds. (c), (f).) In exercising its discretion in that regard, the Department recognizes significance determinations required by CEQA call for careful judgment based to the extent possible on scientific and factual information. The sameis true of the thresholdsofsignificance that the Department used in the DSEIR to gauge the significance of project-related changes to the existing environmental baseline. (Citizens for Responsible and Equitable Environmental Developmentv. City of Chula Vista (2011) 197 Cal.App.4th 327, 334 [upholding agency’s discretion to set its own thresholds of significance, supported by substantial evidence].) Consistent with these principles, the analysis in the DSEIR and related significance determinations reflect the Department’s independent review and judgmentof relevant Suction Dredge Permitting Program 4-35 March 2012 Final Subsequent Environmental Impact Report Project No. 09.005 A000295 California Depariment of Fish and Game 4, Responses to Comments proposed regulations would not result in any significant impacts relative to geomorphic effects, Water Quality MR-WOQ-1: Suction Dredgers Remove More Mercury than They Discharge. See MR-WQ-10 for comments regarding removalof mercury in a suction dredge. The Department agrees that suction dredgers do remove some elemental mercury and mercury combined with gold (amalgam) from the sediment and the stream. That said, no studies were found to document how suction dredge miners handle, store, and dispose of mercury recovered. Similarly, no studies were found that document the extent to which elemental mercury is available for transport by winter storms or other natural processes; consequently, it remains unclear whether elemental mercury removal by suction dredgers reducesits potential for methylation. However, at least some ofthe mercury that dredgers encounter and dredge is unavailable for transport by winter storms and other natural processes (see also MR-WQ-6) because it is deeply buried by stream sediment. While extremely high-flow/flooding events may scourall sediment within specific reaches of a channel, these events are rare and certainly do not occur on an annual basis. Removal of such mercury by suction dredgeswill likely be site-specific and, regardless of how muchis removed, the amount of mereury discharged remains the most relevant factor when conducting the water-quality impact assessment. This is because some of the mercury would nothave beenavailable for transport by winter storms or othernatural processes, at least during many years in which significant flooding events do not occur. Moreover, comments by suction dredge miners and analysis by USGS indicate thatit is easy to find elemental mercury in watersheds affected by gold mining. This indicates that all the large storms that have occurred since 1910 (by then, discharging both hydraulic mining debris and hard-rock mill tailing was prohibited) did not scour all the elemental mercury from those watersheds. . Finally, the total mass of elemental mercury removedfrom the stream by dredge operators is likely insignificant relative to the total amount of mercury remaining in watersheds affected by gold mining. Results of the Suction Dredger Survey (DSEIR, Appendix F) suggest that total annual removal of mercury by suction dredge miners is approximately 50 kilograms(kg). It is estimated that 2.3-2.6 million kg of mercury werelost to watersheds of the Sierra Nevada Geomorphic Province during the Gold Rush era (Churchill 2000). It is not clear how much remainsin foothill streams, butit is unlikely that the mass recovered per year substantially reduces the amount remaining. MR-WOQ-2: Fish Tissue Mercury Levels Are Low in California Compared with the U.S. asa Whole. Available literature suggests that fish-tissue mercury levels in California are within the range oflevels seen in other parts of the United States, Comparisons between Table 4.2-3 in the DSEIR and values in Scudder et al. 2009 (which represents the most recent and comprehensive nationwide survey of mercury levels in fish) indicate levels similar to the nation as a whole. Regardless of the specific levels in Californiarelative to elsewhere,levels Suction Dredge Permitting Program 4-41 March 2012 Final Subsequent Environmental Impact Report Project No. 09.005 A000301 California Departmentof Fish and Game 4. Responses to Comments containedhigh levels of elemental mercury, which dominated concentration measurements. Elemental mercury is expected to be more effectively removed in a suction dredge sluice box becauseit is heavy and thussettles effectively. At other sites, mercury contained in the sediment is mostly attached to fine particles (e.g. Pit #2:BC), and thus would not be expectedto be removedeffectively in a suction dredge sluice box. MR-WQ-11; Assumed Sediment Movementand Discharge Rates of Suction Dredges Are Unrealistically High. It is acknowledged that uncertainty exists regarding the sediment movementand discharge rates of a suction dredge. Theoriginal estimates were based on performancespecifications provided in a suction dredge manufacturer’s catalog (Keene Engineering 2008). The manufacturer provided revised estimates during the public commentperiod, but did not provide a description of how the data were derived. Keene’s revised numbers were within 50-150% of what was assumedinitially on an hourly basis. Revision of the estimates to these updated rates would notresult in substantially different conclusions. Results of the Suction Dredger Survey (Appendix F) generally corroborated estimates provided by the suction dredge manufacturer. Using the average numberof hours dredged per dredger per year and the total volume of material moved, approximately 0.70 cubic yards of material (about 1 ton) were dredged per hour, on average. This falls between estimates used in the assessmentfor 4-inch and 5-inch dredges, the 4-inch dredge being the most commonly used in California. ~ Furthermore, the Department acknowledges that someofthe time spent operating a dredge is spent moving large rocks, refueling, ensuring safety, and doing other things besides actually dredging. This time could have been included in survey responsesto the question— “On average, how many hoursper day were you in the water operating your suction dredge on yourtypical trip in California in 2008?"—which wasthe basis of estimates used for the assessment. The quantitative extent to which operating time estimates should be reduced to account for these typesofactivities is unknown. However, assuming one-half or even one- tenth the material movementrate estimates (or, equivalently, the numberofhours dredged per dredger per year estimates) would not have substantially affected the results of the assessment. Under assumptionsof one-half and one-tenthofthe previously used rates, the assessment would find that within areas of highly elevated sediment mercury concentrations, two and 11 suction dredge operators, respectively, using an average size (4- inch) dredge, could discharge approximately 10% of the entire South Yuba River watershed’s mercury loading in a dry year, during an average suction-dredging time of 160 hours. This numberof suction dredgersis still within an amountthat could reasonably be expected to dredge in mercury-enriched sediment in a dry year. Therefore, it is not expected that any reasonable reduction of the sediment discharge rate used in the assessment would have reached a different conclusion regarding the potential impacts on mercury of suction dredging. Suction Dredge Permitting Program 4-46 March 2012Final Subsequent Environmental Impact Report Project No. 09.005 A000306 mention suction dredgesin the publication yet somehowthis is cited as an "expert source" as required by CEQA? DSEIR, page 4.2-36 lines 26-27, "Furthermoreit is not clear from the study whether Hg droplets were floured prior to being dredged or were floured as a result of dredging." See above comments on the Humphreyreport that states nearly all the mercury in the sample prior to dredging passed through a 30 mesh screen and the sameforafter. It certainly appears to me it was both floured before AND after. DSEIR, page 4.2-36,lines 28-32, “Consequently, it is unlikely that suction dredges would recovereither floured mercury in sediment dredged, or mercury floured by the suction and turbulence of the dredge." This is an extreme leap of logic. This conclusion can't be based on fact. Clearly the ONLY report to have studied this determined that ALL mercury in the incoming gravel WAS floured, the dredge recovered 98% of the floured mercury. This is completely unsupported by fact and the facts show exactly the opposite. What is the definition of flouring — wouldn't passing through a 30 mesh screen achieve that threshold? Neither the Humphreys report nor the Fleck report which the DSEIR mercury discussion is based on evaluated the particle dimensionsof the existing mercury prior to being dredgedto after being dredged. Flouring by a suction dredgeis conjecture and should be discarded lacking proof, Re-circulating Tank Experiment [Fleck page 56] The re-circulating tank experiment conducted by Dr. Alpers is key to the later assumptions and analysis used in developing mercury emissions and THg for TSS in the DSEIR. If the data the results were derived from are flawed then all of the resulting analysis must be discarded. An analysis of the Alpers study showsclearflawsin using this data as any kind of an estimation of the amountof particulated mercury that would be emitted from a dredge — theseflawsinclude: e Using a dredge suction system without a sluice box which captures heavy material Recycling suspended mercury through the impeller of the pump (not how a dredge operates) Re-circulating the contaminated water back onto the bedrock ensured the mercury was fragmented and the source material was equally contaminated (normalized the material) e Using a calm, still water collection device (no current) to simulate a river, then repeatedly re- fragmenting the mercury into smaller and smaller particles by running it through the pump impeller, then testing the tank sediments as if they were common dredge tailings and concluding this would simulate a running river with a flow of 2,000 cfs in this experiment (Fleck et al) Dr. Alpers used concentrated material from the bedrock that was collected using a suction dredge pump and hose — not a dredge. Figure 4 below shows the setup used to collect the sample: Page 10 Mercury Response 2 May 2011 Maksymyk A002261 Graphically this is shownin Figure 10. Hours Spent Moving Pit #2 By Layer Using a 4" Suction Dredge 18 16 14 12 10 i BCLg BSL6 4 @ FCL 2 @ OBL 0 BCL Figure 10. Time Spent Dredging Pit #2 Thebasis for the follow ondiscussionin this paperis provided in Figures 9-10 the time required to move the material. The DSEIR assumes that all material moved is <.063 but does not accountfor the total material or time required to reach thatlayer. Asis clearly shown from the data provided from Fleck, and using the Keene provided dredge material movementrates (unmodified) the time spent moving material on the bedrock would be approximately 20 minutes out of 16 total hours spent dredging. A second factor that any experienced dredger would confirm is the high percentage of holes that you just quit on before ever reaching the bedrock layer. Dave McCracken reports that the maximum depth reach of a 4" dredgeis 4’, the maximum of a 5"is 5' and so forth {Dave McCracken written comments to CDFG dated 10 April 2011}. | have found through experiencethis to be the case. Often you begin a hole without knowledgeof the level of overburden on thebedrock (sample pit). | would assumethat at least 30% of the holes | begin on —! abandon because they exceed the depth reach of my 4" dredge. In other words the time consumedto reach the pay layer exceeds the potential payoff because as shown above the amount of material is exponential, not linear. This quirk of gold dredging isn't accounted for in the Page 22 Mercury Response2 May 2011 Maksymyk A002273 o o N N N S P W D N S 3) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 California Departmentof Fish and 2. Program Description Game m= Processing of materials collected using a suction dredge, in upland areas outside the current waterlevel ofa river, stream orlake; m Panningfor gold; mw Use of a suction dredge equipment(e.g. pontoons, water pumporsluice box) on a river, stream, or lake where the vacuum hose and nozzle have been removed; @ Sluicing or power sluicing for gold when no vacuum hoseor nozzle is used to remove aggregate from theriver, stream or lake; and m Useof vacuums(i.e. shop vacs) and handtools abovethe current waterlevel. There may be other methodsofplacer mining,or other activities related to suction dredging that are not captured by the above list, but are nevertheless not considered suction dredging by CDFG. In addition, the use of a suction dredge for the purposes of infrastructure maintenance, flood control, or navigational purposes (e.g., a cutterhead dredge) is not considered suction dredging for the purposesof this Program,sinceit is not used for mineral extraction. Activities Requiring Additional Notification under Fish and Game Code Section 1602 Some methodsof suction dredging, or activities performedto facilitate suction dredging, require notification to CDFG as specified in Fish and Game Codesection 1602, subdivision (a)(1). Note that in these cases, both a valid suction dredge permit and notification and compliance with Fish and Game Code section 1602, subdivision (a) are required. These activities include anyofthe following: m™ Use of motorized winches or other motorized equipmentfor the movementof instream boulders or woodto facilitate suction dredgeactivities; m Temporary or permanentflow diversions, impoundments, or dams constructed for the purposesoffacilitating suction dredgeactivities; m Suction dredging within lakes or reservoirs; and m Use of adredge with an intake nozzle greater than 4 inches in diameter. 2.2.2 Definition of “Deleterious to Fish” In developing the proposed amendmentsto the previous regulations CDFG considered what types and under whatcircumstances suction dredging activities may be deleteriousto fish, as that term is used in the authorizing statute. This is guided by, amongotherthings, the definition of “fish” set forth in the Fish and Game Code. Section 45 of the Code definesfish to mean wild fish, mollusks, crustaceans, invertebrates, or amphibians, including anypart, spawn, or ova thereof. For the purposesof this chapter, the word “fish” when written as Fish refers to the definition set forth in the Fish and Game Code. Referencestofin fish are written withoutitalics and in appropriate grammatical context. Against this backdrop and as highlighted below, CDFG believes section 5653 is intended to assure that the individual and cumulative impacts of permitted suction dredge operations do not substantially affect any species of fish as defined by Fish and Game Codesection 45. Suction Dredge Permitting Programm February 2011 Draft Subsequent Environmental Impact Report 2-4 Project No. 09.005 A005543 B S I A A S P W H = 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 3] 32 33 California Department of Fish and 2. Program Description Game This approachis consistent with existing State policy to maintain sustainable populations of fish and wildlife resources. (See, e.g., Fish & G. Code, §§ 1700, subd.(a), 1801, subd.(a).) Generally, CDFG concludesthat an effect which is deleteriousto Fish, for purposesof section 5653, is one which manifests at the community or population level and persists for longer than one reproductive or migration cycle. The approach is also consistent with the legislative history of section 5653. The history establishes that, in enacting section 5653, the Legislature was focused principally on protecting specific fish species from suction dredging duringparticularly vulnerabletimesofthose species’ spawninglife cycle. 2.2.3 Developmentof Regulations CDFG developed the draft proposed amendmentsto the existing regulations to ensure that suction dredging would not result in deleterious effects to Fish. The developmentofthe draft proposed amendments included analysis of life history, habitat requirements and distribution ofthe all Fish species in the state. Temporaland spatial restrictions on suction dredging were developed to protect select Fish species. These species are hereafter are referred to as Fish “action” species, andare listed in Chapter 4.3, Table 4.3-1. Other Fish species were determined to be adequately protected by the general (non-spatial or temporal) suction dredging requirements, or to receive adequate surrogate protection as a result of temporaland spatial restrictions developed for Fish action species. CDFG developed a series of “use classifications” that were assigned to each Fish action species based onthe species population viability, abundance and/or reproductive biology. Each useclassification stipulates the period of time in the year that streams are proposed to be open to dredging. Theuseclassifications are as shown on Table 2-1. TABLE 2-1. SUCTION DREDGE USE CLASSIFICATIONS ASSIGNED TO FISH ACTION SPECIES Use Classification Open Dates A No dredging permitted at any time B Opento dredging from July 1 through August 31 C Open to dredging from June 1 through September 30 D Opento dredging from July 1 through January 31 E Open to dredging from September1 through January 31 In general, useclassifications were assigned to each species to protect critical life stages (e.g., spawning, incubation, early emergence/development) (See Chapter 4.3, Table 4.3-1). For certain species, CDFG determined that any level of dredging activity in suitable or occupied habitat would havethe potential to result in a deleterious effect to the species. For these species, occupied or suitable habitat is proposed to beclosed to dredging(i.e., Class A). The use classes assigned to each of the Fish action species were then applied to streams within the species range or knowndistribution. There is a broad range ofdata that provide information on species distribution in the state. The quality and accuracy of these data resources vary. In all cases, CDFG has attempted to use the best available data on species Suction Dredge Permitting Program February 2011 Draft Subsequent Environmental Impact Report 2-5 Project No. 09.005 A005544 B W P o n A 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 California Departmentof Fish and 4.2, Water Quality and ToxicologyGame Literature Review of Water Quality Effects of Suction Dredging The major findings of the Literature Review (Appendix D) related to water quality and toxicology that were used,in part, to inform and direct the focus of the water quality impact assessments areas follows, m There is little information available regarding the environmental effects of dredge site development such as site access, land-side encampments, and fuel/chemical spills. There remains a lack of any rigorous studies on this subject. m All scientific studies to date suggest that the effects of suction dredging on turbidity and suspended sediment concentrationsas it relates to water clarity are limited to the area immediately downstream ofthe dredging for the duration ofactive dredging, m The effects of Hg contamination from historic activities in California are being extensively studied and there is substantial literature regarding Hg fate and transport. However, there are very few published studies specifically addressing the effects of suction dredging on Hgfate and transport processes. Since the time the Literature Review (Appendix D) was prepared, USGS scientists and Hg experts provided CDFG with preliminary results of their recent research in the Yuba River which is specifically focused on assessing the potential discharge ef elemental Hg and Hg enriched suspended sediment from suction dredging activities. This new information and data from USGS was used in formulating the approach to this assessmentofthe Program. Ongoingstudies are evaluating the relative magnitude of dredging-related effects on Hg discharges compared to other causes. ™ The human and aquatic toxicity of Hg discharged from suction dredging operations has not been studied. Studies have shown that remobilized Hg can be converted to MeHg, which can bioaccumulate up the food chain, and is therefore of concern to biota and human health through fish and shellfish consumption. Mercury hotspots (i.e. places where large amounts of Hg are concentrated) are known to exist but there has been no concerted effort to locate them. Fine particles (<63 ym) in sedimentin historic gold mining regions have been shownto containat least an orderof magnitude higher concentration of Hg thanlarger size fractions. The suspended particle size fractions that are enriched in Hg and discharged from suction dredges is under investigation by USGSin the Yuba River system described above. The reactivity and speciation of mercury-enriched sediment resuspended by dredging operationsis also under investigation. The transport, reactivity, and speciation of “floured” Hg (ie. microscopic-size particles of elemental Hg created by the physical agitation and fractionation of larger particles) has not been studied. Dissolved Hg, elemental Hg, andfine particle/colloid bound Hg may be of concern for methylation (i.e., conversion to methyl mercury, which is a bioavailable form that can result in toxic effects and bioaccumulation up the food chain) in the vicinity of dredge sites if conditions are favorable or transported long distances to downstream environments (e.g., reservoirs, wetlands) favorable to methylation. Therefore, potential impacts may occur both near and away from the actual dredging locations, Suction Dredge Permitting Program February 2011Draft Subsequent Environmental Impact Report 4.2-19 Project No. 09.005 ANNKRRR — _ S C O O ~ I N D N A B W t O P e p e t e e e t pe s O O n A A U N B W b Y e H 20 21 22 23 24 25 26 27 28 29 30 31 California Department of Fish and 4.2. Water Quality and ToxicalogyGame the time ofthis writing, these data were not available for analysis. Little data exists in the rest of the Klamath-Trinity and San Gabriel mountains, For the purposes of the detailed quantitative assessment, the focus will be on the Sierra Nevada, and the South Yuba River will be used as a representative of Sierra Nevada streams andrivers due to the relatively large numberof studies and amountof data available for this river. Assessments were ‘accomplished for the following locations: 1) in-stream, 2) Englebright Lake, the first reservoir downstream, and 3) the San Francisco-San Joaquin River Delta. There are several reasons why such an assessmentprovides a good surrogate for all Sierra Nevada streams. MostSierra Nevada streamspossesssimilar geology, experience similar climate and rainfall, were located near extensive gold-mining operations, have at least one reservoir before joining the Sacramento or San Joaquin Rivers (with the exception of the Cosumnes River), and eventually drain into the Delta. The South Yuba River watershed experienced the most intensive level of hydraulic mining, in which mercury-contaminated hydraulic mining debris was produced and discharged into the watershed. When normalized by watershed area,it still received the greatest volume of hydraulic mining sediment production, but was only slightly above its smaller neighbors DeerCreek, the Bear River, and the similarly sized North Fork of the American River (James, 1999). Methodology for translating results of the assessment to other water-bodies and geographical regions is discussed in the section “Geographic Translation.” Conceptual Model and Quantitative AssessmentApproach The assessment of suction dredging-related effects on the potential for Hg discharge, transport, and contribution to fish uptake and bioaccumulation involved conducting quantitative discharge, transport, and fate calculations based primarily on recent field sediment and special study data collected by the USGS. A conceptual model was developed to frame the assessment. The model consists of four elements: 1) discharge of Hg to the stream from suction dredging; 2) discharge of Hg from background watershed sources; 3) transport ofdischarged Hg; and,4) transformation/bioaccumulation of Hg. The elements of the conceptual model are shown in Figure 4.2-3, The elements of the model do not necessarilyoccur sequentially or at the same time. Transformation and bioaccumulation can occur simultaneously with transport and discharge. The specific assessment approach for each elementis detailed in the impact assessmentdiscussion. Discharge of Mercury from Suction Dredging Transport Transformation and BioaccumulationDischarge of Mercury from Background Watershed FIGURE 4.2-3. CONCEPTUAL MODEL FOR THE MERCURY IMPACT ASSESSMENT Suction Dredge Permitting Program February 2011Draft Subsequent Environmental Impact Report 4,2-23 Project No, 09.005 ANN5&93 O a A A U S W b e — _ o S R a o R e R e e t o e e e e e S O e G O A N A U B W D H e H 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 California Departmentof Fish and 4.2. Water Quality and Toxicology Game Briefly, discharge ofHg from suction dredging was based primarily onfield characterization of Hg contaminated sediments (Fleck et al., 2011). Background watershed Hg loading estimates were utilized to compare to suction dredge discharge estimates (Alpersetal., in prep). Transport of Hg associated with sediments was based on particle size distribution characterization of suspended sediments (Curtis et al, 2006) and assessment of net deposition in Englebright Lake (Alperset al., in prep; Alpers et al., 2006). Transformation and bioaccumulation characteristics were derived from a variety of literature sources. Additional information characterizing potential impacts of elemental Hg wasalso usedin the assessment. Trace As noted in the Literature Review (Appendix D), there are very little data regarding the effects of suction dredging on trace metals mobilization. Due to the limited quantitative information, the water quality impact assessmentfor trace metals is largely qualitative and- based on the anticipated level and nature of dredging activity that is projected to occur. Results of the Literature Review were used to characterize existing measurements of trace metals in suction dredge plumes. Measured sediment concentrations of arsenic, copper, silver, zinc, lead, chromium, nickel, and cadmium were combined with different TSS levels to characterize the potential to increase receiving water metals concentrations above aquatic life criteria. The frequency, magnitude, andsize of discharge plumes were assessed relative to dilution and near field settling. 0 ic Chemical .. As noted in the Literature Review (Appendix D), there is very little data regarding the effects of suction dredging on synthetic organic compounds mobilization. Moreover, there is no comprehensive information regarding presence of organic compounds in aquatic sedimentsin the areas of California where suction dredgingis likely to occur. Unlike Hg or any other metals present as a result of natural ore, there is little reason to suspect that significant numbersofhot-spots exist containing synthetic organic compounds,orthat their magnitude relative to average backgroundlevels is very great. Due to thelack of specific and quantitative information, the water quality impact assessmentfor organic compounds is necessarily qualitative to characterize the potential to cause receiving water concentrations to exceed applicable criteria. Criteria for Determining Significance For the purposesofthis analysis, the Proposed Program would resultin a significant impact if it would: m Increase levels of any priority pollutant or other regulated water quality parameter in a water body such that the water body would be expected to exceed state or federal numeric or narrative water quality criteria, or other relevant effect thresholds identified for this assessment, by frequency, magnitude, and geographic extent that would result in adverse effects on one or more beneficial uses. m Result in substantial, long-term degradation of existing water quality that would cause substantial adverse effects to one or more beneficial uses of a water body. Suction Dredge Permitting Program February 2011 Draft Subsequent Environmental impact Report 4.2-24 Project No. 09.005 A0N05694 S H O P W D — 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 4] 42 43 44 Califomia Departmentof Fish and 4.2. Water Quality and Toxicology Game excessively high turbidity/TSS levels from dredgingactivities. Because dredgingactivities are largely conducted on a seasonal, temporary, and intermittent basis in California, water quality degradation is expected to be infrequent and dispersed and thus not cause substantial, long-term degradation of water quality. Turbidity and TSS are not bioaccumulative constituents and thus are not a concern for uptake in the food chain or health risk to wildlife or humans. Therefore, this impact is considered to be less than significant. . Impact WQ-4. Effects of Mercury Resuspension and Discharge from Suction Dredging (Significant and Unavoidable} The following sections describe the results of the assessment of Hg discharge, transport, transformation and bioaccumulation projected to occur through the implementation of the Proposed Program. The assessment follows the conceptual model elements presented previously in Figure 4.2-3, which include: (1) the discharge of Hg from suction dredging whichareusually seasonally out of phase with background Hgreleases; (2) dischargeof Hg from background watershed sources; (3) transport; and (4) transformation and bioaccumulation. r fi Suction Dredgi Characterization ofSedimentAvailable to Dischargefrom Suction Dredging Recent field and laboratory studies were conducted by the USGS near the confluence of Humbug Creek and the South Yuba River. The objectives of the studies were to: 1) characterize Hg concentration and speciation in sediment of various size fractions (Lab), 2) characterize Hg and MeHgconcentrationsin localbiota (field), and 3) assess the practicality and potential impacts of using suction dredging for removing Hg from an area contaminated with Hg (field). The laboratory study determined levels of total Hg (THg) and reactive mercury (Hg(II)x) in sediments collected from a mid channel bar (Pit #1), and bank sediments collected near the confluence of the South Yuba River and HumbugCreek(Pit #2). The Pit #2 location was chosen by an experienced dredger as a promisinglocation for gold. Humbug Creek was used as a conduit for hydraulic mining debris from Malakoff Diggins and hydraulic mining debris continues to slough into the river from bench deposits at the confluence, Figure 4.2-4 showstheparticle size distribution of the sediment from the two sites. Figure 4.2-5 shows the concentration of THg associated with different size fractions that could be mobilized by suction dredging. Figure 4.2-6 showstotal mass of THg found in bulk sedimentby particle size. Particles with diameter of < 63 micrometers (um) are classified as silt and clay, those with diameter between 63 ym and 2 millimeters (mm) are classified as sand, and those greater than 2 mm asgravel, pebble, cobble, or boulder. The figuresindicate that Pit #2 Bedrock Contact (Pit #2:BC) has a higher percentageoffine particles and higher concentrations of mercury associated with each size fraction. Fine particles contained more mercury on a per-mass basis than coarser particles. In the bulk sediment, Pit #2:BC contains 2-3 orders of magnitude more mercury mass with each size fraction. It should also be noted that Pit #2:BC contained elevated levels of Hg(II)x, which will be discussed in moredetail later. Levels from the bedrock contact layer of Pit #2 (Pit #2:BC) are assumed to be worst-case from a mercury release standpoint because they are from a location knownto be contaminated with historic gold-mining Hg and because they are amongthe highest levels measuredin California. Suction Dredge Permitting Program February 2014 Draft Subsequent Environmental Impact Report 4,2-33 Project No. 09.005 A005703 C I A A S P W h b e 10 11 12 13 14 15 16 17 18 19 20 al 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 4] 42 43 44 45 Californla Departmentof Fish and 4.2. Water Quallty and ToxicologyGame watershed,it is possible that Hg contaminated sediment layers are present throughout the lowerregion of the watershed (Fleck et al., 2011). The deeper sediments at these sites did not appearto be available to mobilization by storms. Indeed, Pit #2:BC sediment appearsto be undisturbedsincehydraulic mining days, over 100 years ago, but no attempt was made to quantitatively date the sediment. Although the extent to which these deep sediments that contain high concentrations of legacy mercury are targeted by suction dredgers is unknown, becausethey also contain high concentrations of legacy gold, it is reasonable to assumethat these areas would beattractive to and targeted by suction dredgers. Elemental mercury(i.e, liquid Hg(0)) has been visually documentedat many locations throughoutthe Sierra Nevada, but generally has not been quantified. On the South Fork of the American River, near Lotus, Humphreys (2005) describes a location where elemental Hg waspresent and whose sediment Hg concentration (particle bound plus liquid Hg) was 1,170 mg/kg. In the Greenhorn Creek watershed,tributary to the Bear River, concentrations of elemental Hg were estimated via a field panning methodat 14 locations and varied from 100 mg/kg (the estimated detection limit of the test) to 45,000 mg/kg, equivalent to 4.5% (Alpers et al., 2005). It is probable that elemental Hgis present at many additional locations throughoutthe California gold-country, but no systematic efforts have been madeto locate these so-called “hotspots.” Where elemental Hg is present, suction dredging has been observed to result in the “flouring” of Hg droplets—thatis, the breakingup oflarger liquid droplets into many very. small droplets (Humphreys, 2005; Silva, 1986). Flouring results in increased surface area contact with water of Hg droplets, which mayaffect transformation as described in the transformation section below, However, some have noted that the equipmentused in this study is no longer in production, and suggested that modern equipment mayresult in less flouring (McCracken, 2007), although this has not been scientifically evaluated, Furthermore,it is not clear from the study whether Hg droplets were flouredprior to being dredged or were floured asa result of the dredging. Nevertheless, floured Hg was present in the discharge from the suction dredge. Consequently, it unlikely that suction dredges would recover either floured mercury in sediment dredged, or mercury floured by the suction and turbulence of the dredge. Transport and transformation of elemental Hgis addressed below, but due to significant data gaps in our understanding of both, it is excludedfrom theinitial quantitative assessment. Impact ofDredging Operations Variables on Quantity ofMercury Discharged Sediment characteristics discussed above were combined with estimates of sediment moved per hour for various nozzle sizes provided by a suction dredge manufacturer to estimate the quantity of Hg discharged per hour (See Table 3-2 in the Activity Description chapter). A 4 inch diameter nozzle size is the most typical size used by suction dredgers, based onthe results of the Suction Dredger Survey. An 8 inch nozzle was chosenasit is the largest allowable nozzle in California (although analysis for a 10 inch nozzle was also conducted). This exercise was conducted for both the more typical background average Hg level sediment (Pit #1} and the worst-case hot-spot sediment (Pit #2:BC), Figure 4.2-7 shows the rate of discharge of THg in the <63 um portion from different size suction dredges in the two sediments. Because Pit #2:BC has both a greater percentage of <63 um particles and a much greater concentration of mercury associated with those particles, dischargerates from Pit #2:BC are morethan 3 orders of magnitudegreater than for Pit #1. Suction Dredge Permitting Program February 2011Draft Subsequent Environmental Impact Report 42-36 Project No. 08.005 A005706 — _ C w e o w m r ~ A A U N P W b e e t e e C O n I D W A W N California Departmentof Fish and 4.2. Water Quality and ToxicologyGame 10000.0 m@ Pit #1 m@ Pit #2 Bedrock ContactT H g Di sc ha rg ed , m g / h r 2-inch §2.5-inch 3-iInch 4-inch = 5-inch G-inch &inch_ 10-inch FIGURE 4.2-7, MERCURY DISCHARGE RATE FROM SUCTION DREDGING FOR DIFFERENT SUCTION DREDGENOZZLE SIZES AND LOCATIONS WITHIN THE SOUTH YUBA RIVER Existing Data of Total Recoverable Mercury in Suction Dredge Discharge Verylittle direct data exists on the levels of THgfound in suction dredge discharge. Existing data on TSSin suction dredge discharge or immediately downstream of the discharge was combined with sediment Hg levels to estimate total recoverable Hg in the discharge. Suspended sediment downstream of suction dredges has been reported as high as 340 mg/L (Thomas, 1985), but can also be as low as 1-2 mg/L (Stern, 1988). Based on the THg concentrations measured in Pit #1 and Pit #2:BC sediments, Table 4.2-4 shows estimated THg discharge that could occur from a suction dredging operation discharging suspended sediment at the 340 mg/L rate. The table shows that using a worst-case scenario of 340 mg/L TSS, total recoverable Hg is estimated to be 0,094 microgramsperliter (ug/L) with Pit #1 sediments. The same calculation at Pit #2:BC yields a total recoverable Hg concentration of 3.77 g/L. Using a TSS of 3 mg/L, both locations yield total recoverable Hg levels below the CTR humanhealth criterion of 0.05 ug/L. Humphreys (2005) measured suspended sediment THg concentration at 298 mg/kg but did not report the TSS concentrationitself. In order for the THg concentration in this discharge to have been below 0.05 ug/L, TSS would have had to be < 1 mg/L, which is possible, but unlikely. Therefore, this discharge likely contained total recoverable Hg concentrations greater than the CTRcriterion. Suction Dredge Permitting Program February 2011 Draft Subsequent Environmental impact Report 4.2-37 Project No. 09.005 A005707 California Department of Fish and 4.2. Water Quality and ToxicologyGame 1 TABLE 4.2-4, ESTIMATED TOTAL RECOVERABLE MERCURYIN SUCTION DREDGE DISCHARGEAT Pit #1 2 AND P!T#2:BC SITES IN THE SOUTH YUBA RIVER TSS(mg/l)PiaGug/ysPitzBCGug/L)> 1 0,000276 0.0111 3 0.000828 0.0333 5 0,00138 0.0555 10 0.00276 0.111 50. 9.0138 coveneee eeOS 100 0.0276 1.11 200 0.0552 _ 2.22 340° 0.0938 3.78 Boldvalues indicate exceedances of CTR humanhealth criterion of 0.05 pg/L total recoverable cadssumed only < 63 ym particles dischargedfrom suction dredge; Pit #1 < 63 jm sedimentconcentration = 0.276 mg/kg. » =Assumedonly < 63 um particles dischargedfrom suction dredge; Pit #2:BC < 63 um sediment concentration = 11.1 mg/kg. ‘= Highest reported suction dredge discharge/plume TSS concentrationfound tntheliterature. 4 In contrast to Hg discharged from suction dredging, which occurs primarily during the 5 summer, the majority of Hg from background watershed sourcesis discharged during the 6 winter wet season, when runoff conditions contribute to high flows that scour sediments 7 laden with Hg. Figure 4.2-8 shows measured Hg and discharge on the South Yuba Riverat 8 Jones Bar for water years 2001-2004. This data was usedto estimate annual Hg load of 9 inflows to Englebright Lake for water years 2001-2004, which ranged from 3.4 to 7.2 10 kilograms peryear (kg/yr) (Alperset al., in prep). These years, overall, had below average il rainfall and runoff. Water year 2001 loads were used as representative dry year loads, 12 while water year 2003 loads were used as normal water year loads. Conditions for these 13 years are shownin Table 4.2-5. Loads calculated for water year 2003 were based on 14 measurements taken during the wet season only, a period whensuction dredgestypically 15 are not operated. Therefore, values for water year 2003 are an estimated minimum overall 16 load for that year. However, because the majority of background Hgtransport occurs 17 during the wet season,this is a good estimateofthe true rainfall-induced watershed load 18 for this water year. Loads calculated for water year 2001 were based on measurements 19 during both the wetanddry season. It should be notedthat these studies were not 20 designedto detect suspended sediment pulses from operating dredges. Sampling frequency 21 was biased towards winter when both flows and suspended sedimentloads are high but 22 variable. Less sampling was performed during the summer when flowsare low and stable 23 and ambientturbidity/TSS loads are low. 24 25 Sampling frequency for both cited studies was no more than once a month during the 26 summer, almostalways occurred on weekday mornings, and took about an hourto perform. 27 Such sampling would notbe expectedto detectpulse flows from dredgesthatare frequently 28 operated on weekends, However, given this, it is possible that suction dredges were 29 contributing to the annual Hg load calculated, but Hg levels do not appear to reflect Suction Dredge Permitting Program February 2011Draft Subsequent Environmental Impact Report 4.2-38 Project No. 09.005 A005708 — O o o n N Callfornia Department of Fish and 4.2. Water Quality and Toxicology Game . unusually high concentrations during the dry season. Given this, there are inherent uncertainties to the Hg loading estimates. — )South Yuba RiveratJones B @ Untiktersd 0 filtered 8 To ta l me rc ur y, in na no gr am sp e r li te r 3S ~ r T 3,000 | 2,000 + 1,000 Da il y av er ag e di sc ha rg e, in cu bi e fe et pe r se co nd Pou. . de, 1 1, zece | 2001 Fo aoe =F apg a FIGURE 4.2-8. MEASURED MERCURY AND DISCHARGEIN THE SOUTH YUBA RIVER AT JONES BAR DURING WATER YEARS 2001-2004 (Alperset al, in prep) TABLE 4.2-5. BACKGROUND WATERSHED SEDIMENT CONTRIBUTION AND MERCURY DISCHARGEIN SOUTH YUBA RIVER AT JONES BaR - Water “| Water Year Percent ofAverage _ Sediment Discharge | . THg Transported. Year __Type ___. Precipitation 7 {tons) kg) 2001 Dry 73% 730 0.53 2003 Normal 112% 7600 3.1 From Curtis et al, 2006; Alpers etal, in prep Considering the background watershedloading of Hg to the Delta, the average annual input of total Hg ranges between 220 and 403 kg/yr, and the average annual input of MeHgto the Delta is approximately 5.2 kg/yr (Wood et al., 2008). Measurements of Hg and TSSthat form the basis of these estimates may have beeninfluenced by suction dredge discharge, so February 2011 Project No. 09.005 A005709 Suction Dredge Permitting Program Draft Subsequent Environmental Impact Report 4$.2-39 N e & W w _ — S O O e ~ I N D w n 1 12 13 14 15 16 17 California Department of Fish and 4.2. Water Quality and Toxicology Game there is uncertainty over whether these are truly background measurements or a combination of background andsuction dredge Hg loadings. Figure 4,2-9 and Figure 4.2-10 showthe total amount of Hg discharged with selected nozzle sizes as a function of hours dredged and a comparisonto watershed loads. When sedimentis discharged from suction dredging, coarser particles will settle out at a lesser distance downstream than fine particles (see also Chapter 4.1, Hydrology and Geomorphology). Flow velocity (which is correlated to discharge for a given river) affects both whatsize particles are carried by the current and how far the particles travel before they settle out ofthe water column. For the South Yuba River, data from bed and suspended sediments under different flow regimes indicate that fine particles <63 ym remain mostly suspended, andthusare transportedatleast as far as Englebright Lake (Curtis etal., 2006). Particles >63 ym do not remain suspended during summer low flows, and are thus deposited back into the river. However, these particles may betransported downstream to Englebright Lake during higher winter flows, depending on their size, the flows, and the distanceto the reservoir. ‘ep 100,000,000 grrr eeETO=A = Englebright Lake long-term annual Hg accumulation (1943-2002 5 10,000,000 ¢ 3 = 7 =rg 1,000,000 rSouth uba River Hg load WY¥2003nom > FSouth Yuba River Hg load - W¥200 3 ° 100,000 3 3B 7 < 10,000 z 3 3: q N 1,000 7 2 j3 J = 100 ’ = 3 8 10 3 = F 3 = ‘FE ?° “dredge nozzle size 5 - 04 deal Safed bE LE SmahaadntataliAl, Sell lita. Da rnhrabdelntdth barre badeSL, he —slleralhaalleads 07 1 10 100 1,000 10,000 100,000 7,000,000 Time of dredging, in hours FIGURE 4.2-9. TOTAL MERCURY DISCHARGEDIN <63 pM SIZE FRACTION VS. HOURS DREDGEDIN PIT#2:BC SEDIMENT AND COMPARISON TO WATERSHED LOADS(Fleck et al, 2011) Suction Dredge Permitting Program Draft Subsequent Environmental impact Report February 2011 4.2-40 Project No. 09,005 A005710 M m A m w h e O O o ~ I D 1] 12 13 14 15 16 17 18 19 20 21 22 23 California Departmentof Fish and 4.2. Water Quality and Toxicology Game I £ + Englebright Lake long-term annual Hg accumulation (1941-2002) 7= 1000000, 9° 9 § § ( 1 3 - — 4r ; i3 4,000,000 South YubaRiver Hg load WY2009 (normal) pew F South Yuba River Hg load - WY2001 (dry) a ° 100,000 J s 10,000 r 3 F 2 1,000 & 2 E = 100 z= c 5 o : £ tf ] 5 F "dredge nozzle size 4 °o -~ 0.1 . As LAL 4 2 fl J Renbbahaltdle det tetah Ade ebb tl Iolo date Atel Jeebendntelad1d. 0.1 1 10 100 1,000 10,000 100,000 1,000,0c0 Time of dredging, in hours FIGURE 4.2-10, TOTAL MERCURY DISCHARGEDIN <63 pM SIZE FRACTION VS, HOURS DREDGEDIN PIT #4AND COMPARISON TO WATERSHED LOADS(Fleck et al, 2011) x. For the purposesofthis assessment,it is assumed that >63 ym particles are transported to other partsof the river, while <63 ym particles are delivered downstream to Englebright Lake or beyond, eventually being deposited in the Delta, During water years 2001-2004,it is estimated that only 40% oftotal Hg inputs to Englebright Lake were deposited, while the remaining 60% was transported downstream of Englebright Dam (Alpersetal., in prep). Transport of elemental Hgthatis floured and discharged from suction dredgingis largely unknown. Floured Hg has been observed to float initially (Humphreys, 2005). Subsequently, these Hg droplets may sink (for example, after coagulating with other particles downstream), or maycontinuetofloat until they dissolve or volatilize. The amounts of THg discharge shown in Figure 4.2-7 were used to estimate the numberof dredgers required to discharge 10% of background watershed loads. The value 10% was selected based on a professional judgment of what would be a measurable increase in background loading. The analysis does not assumethat this is a threshold of significance below whicheffects are insubstantial, but is used as a reasonable point of reference. The average numberof hours dredged per year was basedonthe results of a survey of suction dredgers and was 160 hours (Suction Dredger Survey results, Appendix F). Results are shownin Figures 4.2-11 and 4.2-12. Due to the lowerrate of Hg discharge from Pit #1 (see Figures 4,2-7 through 4.2-9), many more dredgers would be required to reach 10% of background watershedloading than for Pit #2:BC. However, experienced suction dredgers would likely not target Pit 1 type sediment becauseit containedlittle gold, or would only dredge the material as overburden—material that must be removed to get to more prospective layers below. During a dry year, a single dredger with a 4 inch dredgein Pit #2:BC or similar sediments (e.g., the layer of sedimentoverlying Pit #2:BC, referred to as Suction Dredge Permitting Program February 2011 Draft Subsequent Environmenta! Impact Report 42-41 Project No. 09.005 A005711 O G T I A t a f & W b = 11 12 13 14 15 16 Callfornta Department of Fish and 4.2. Water Quality and Toxicology Game the Compact Sedimentlayer in Fleck, 2011, which also had elevated THg) would contribute almost 10% of the background watershed loading. More than the entire permitted population of suction dredgers (almost 4,400, versus the permitted population of approximately 3,650) would need to be operating within sediments with concentrations similar to Pit #1 to discharge 10% of the background Hg loadingin a dry year using average size (4 inch) dredges. The results of the survey indicated that approximately 260 dredgers operated in the South Yuba watershed in 2008, resulting in approximately 25,000 dredging hours (Suction Dredger Survey results, Appendix F). However, there are concerns that suction dredgerselfsurvey data have been skewedby the survey respondents. Assuming 50% of transported sediment is deposited in a reservoir between where suction dredging is occurring and downstream reaches where particle bound Hg may reach the Delta, the same calculations were conducted to determine the number of dredgers necessary to equal 10% of the existing Hg loading to the Delta, with results shown in Figures 4.2-13 and 4.2-14. Figure 4.2-13 indicates that no practical numberof dredgers in Pit #1 could approach 10% of Delta Hg loading in a year, but that a realistic number of dredgersin Pit #2:BC could reachthis level. 20000 m@ Dry = Normal N u m b e r o f D r e d g e r s a d 8 oO oS 2-inch 2.5-Inch 3-inch 4-Inch S-inch 6-Inch 8-inch 10-inch FIGURE 4.2-11. NUMBER OF DREDGERS REQUIRED TO DISCHARGE 10% OF ANNUAL BACKGROUNDWATERSHED THg LOAD DURING DRY AND NORMAL WATER YEARS BASEDONPIT #1SEDIMENTIN THE SOUTH YUBA RIVER. Suction Dredge Permitting Program February 2041 Draft Subsequent Environmental Impact Report 4.2-42 Project No. 09.005 A005712 W M m R r W N m s O O C O “ I O V — — _ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Al 42 43 44 ~ 45 California Departmentof Fish and 4.2. Water Quality and Toxicology Game 2011). The authors of the study attributed decreasing THg concentrations to loss offine particles in the supernatantfollowing centrifugation. Because this is an artifact of the laboratory methodology, THg would not be expected to decrease after resuspension in the environment. Also possible, but deemed unlikely by the authors, wasloss to volatilization and issues related to samplingbias. Experiments at Camp Far West Reservoir, found that upstream sources of MeHg may be moresignificant under high-flow conditions, while sources internal to the reservoir may be more important during low-flow conditions (Kuwabara et al., 2003). Benthic fluxes of dissolved MeHg were generally negligible or positive, that is, from the sediment to the water-column, and weregreater during April (when water was oxic) than November (when water wassuboxic). A fundamentaldifference between Hg discharged by suction dredging and that discharged from background watershed sourcesis that the majority of suction dredging discharge and transport occurs during the summer, while the majority of background Hgtransport occurs during high winter flows. The impact of this difference is not obvious, and will likely vary from watershed to watershed. One importantdistinction is that higher temperaturesin the summercontribute to higher methylation rates, assuming that the mercury is transported to a region where methylation could occur. However, California’s water system is highly managed—factors such as increased reservoir storage during the winter have been correlated with increased food-web MeHglevels in Camp Far West Reservoir, (Stewart et al., 2008). “ In-stream: As discussed above, coarse-particle (i, >63 jm) bound Hg in elevated concentrations discharged from suction dredging in the South YubaRiveris transported to nearby other parts of the stream whereit settles out and rests on the surface. Becauase concentrations and loads of Hg within the stream are not altered, assessment of the transformation and bioaccumulation of this Hg examines the impact of resuspension and movementof Hg at depth to Hg in the top-sediment. Recent studies indicate that following resuspension of South Yuba River sediments, both from Pit #1 and Pit #2:BC, increased methylation was not observed after deposition into South Yuba River receiving sediments, which wererelatively low in organic content (Marvin-DiPasquale, 2011). Nevertheless, invertebrate Hg data from the South Yuba River indicate that. suction dredging may have been contributing to elevated tissue concentrations. Suction dredging on the South Yuba wasprohibited by the Bureau of Land Managementduring 2008, but had been allowed in all years prior. Figures 4.2-16 through 4.2-18 show invertebrate MeHg levels analyzedat one site in Humbug Creek andseveral sites downstream ofits confluence with the South Yuba River in 2007 and 2008. All taxa collected in 2007 had higher concentrations of MeHg than the same taxa from the same sites in 2008, with few exceptions for which concentrations were similar. Overall, levels in 2008 werestatistically significantly higher than levels in 2007. Documented inter-annual variation in other watershedsis typically less than differences observed in the South Yuba River. Hydrologic conditions were very similar between these water years, and were not atypical for this region, except in April through June, when conditions were drier than normal for both years (Fleck et al. 2011}, Although caution should be used in interpreting these results because only year of data is available for the no dredging condition, these arelikely the only data available at this time that can be used to compare tissue Hg levels with and without the Suction Dredge Permitting Program February 2011 Draft Subsequent Environmental Impact Report 4.2-46 Project No. 09.005 A005717 n A B W b e 4,2. Water Quality and ToxicologyCalifomia Department of Fish and Game Suction Dredge Permltting Program Draft Subsequent Environmental !mpact Report is about 0.11 ppm). 0.65 ——— w2007 1 @ 2008 0.04 z @ 0.03 2 20.02 Q = 0.01 0.00 SYR-1 SYR-a SYR4 SYR-5 SYRS SYR7 Site FIGURE 4.2-16. METHYLMERCURY (MeHg, Hg/g, WW [WET WEIGHT]) CONCENTRATIONSIN INDIVIDUAL COMPOSITE SAMPLES OF LARVAL CADDISFLIES (ORDER TRICHOPTERA, FAMILY HYDROPSYCHIDAE) COLLECTED FROM THE HumBuG CREEK/SOUTH YuBA STUDY AREA IN SEPTEMBER 2007 AND SEPTEMBER 2008 (Fleck et al, 2011) 0.30 0.25 o iy o M e H g (u g/ g w w ) HUM-1 SYR-1 SYR-ta SYR4 SYR-5 SYRS SYR-7 Site FIGURE4.2-17. METHYLMERCURY (MeHg, Lg/g, WW) IN COMPOSITE SAMPLES OF WATER STRIDERS (ORDER HEMIPTERA, FAMILY GERRIDAE) (N = 1-2) COLLECTED FROM THE HUMBUG CREEK/SOUTH YUBA STUDY AREA IN SEPTEMBER 2007 AND SEPTEMBER 2008 (Fleck et al, 2011) influence of suction dredging. Fish tissue levels of Hg in the South YubaRiverarerelatively low (0.17 parts per million [ppm] average), owing in part to thefact that the figure is from rainbowtrout, which tend to accumulate MeHgto a muchlesser extent than piscivorousfish such as largemouth bass (the average Hg concentrationin trout tissue from aroundthe U.S. February 2011 4,2-47 Project No. 09.005 A005718 a e n ~ I N r A W P 10 1 12 13 14 15 16 17 18 California Department of Fish and 4.2. Water Quality and Toxicology Game Me Hg ( n g / g d r y wt .) control BRC-P2 BRC-P2 HMD-CF HMD-CF SYR-P1 SYR-P1 oxic anoxic oxic anoxic oxic anoxic “FIGURE 4.2-20. IMPACT OF PREVIOUSLY SUSPENDED SOUTH YUBA RIVER SEDIMENTS ON METHYLMERCURY PRODUCTIONIN RECEIVING SEDIMENTS OF DELTA MEADOWS Day 0 indicates the sediment was non-suspendedprior to spiking into the receiving sediment. Day 6 indicates thé’sediment was suspendedfor 6 daysprior to spiking into the receiving sediment. “BRC-P2”refers to Pit #2:BC. Error bars represent + 1 standard deviation (n=4). Significant differences (P <0.05) are indicated by the following: Day 0 treatmentvs Day 0 control (®), Day 6 treatmentvs Day 6 control (7), Day 0 vs Day 6 for a single grouping (*). (Marvin-DiPasquale et al, 2011) Evidence from laboratory experiments has shown that selenium maybe able to moderate the toxic effects of Hg when present at a molar ratio greater than around 1:1 (Ganther, 1972), and that most fish in the United States contain high enoughlevels of selenium to makethis a possibility (Peterson et al., 2009). However, epidemiological support for this phenomenonis lacking, and the limited evidence gives mixed results (Watanabe, 2002). It is, therefore, unclear how experimental evidence translates into low dose, chronic risk assessments which are conducted to derive criteria. Consequently, derived criteria do not incorporate the possibility of toxicity moderation via selenium. Fish and other aquatic life may themselves be affected by Hg. The known acute and chronic LC50s for Hg exposure (inorganic or methyl) in water are much higher than environmental concentrations. Criteria have not been developed for the protection of aquatic life in the United States. The Canadian Water Quality Guideline (CWQG) to protectfreshwaterlife is 26 nanogramsperliter (ng/L) inorganic Hg. For MeHg, the interim CWQG is 4 ng/L (Environment Canada, 2005). Effects on fish that may occur at environmentally relevant concentrations include adverse effects on feeding behavior (0.27 mg/kg in tissue as eggs) (Fjeld et al. 1998), reduced egg survival/hatching success (exposure to 100 ng/L and 1.05 mg/kg sediment THg) (USFWS 2003), male mortality (dietary source resulting in 0.5 mg/kg MeHgin tissue) (Matta et al, 2001), impaired sexual development or immune function Suction Dredge Permitting Program February 2011 Draft Subsequent Environmental impact Report 42-50 Project No. 09.005 A005721 N e A t a B p W w 10 11 12 13 14 15 16 17 18 19 20 21 22 “23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 ‘4 California Departmentof Fish and 4.2. Water Quality and ToxicologyGame producing substantial discharges primarily of cadmium, copper, and zinc. At suchsites, metals levels tend to be elevated in sediments, sediment pore water, and the water column. Aquatic life beneficial uses are the most sensitive beneficial uses to ambient water body concentrations of most trace metals. However, as evidenced by primary or secondary drinking water MCLs, the municipal and domestic water supply beneficial use may be more sensitive to someconstituents(e.g., arsenic, iron, and manganese). As noted in the discussion above for Impact WQ-3 (Turbidity/TSS), suction dredging: (a) is intermittent in nature, (b) is generally widely dispersed geographically across thestate, typically occurs in undeveloped upper watershed areas, and (c) generally produces small discharge volumes,relative to the total discharge of the water body in which dredging occurs and relative to downstream larger order streams and rivers.where drinking water diversions exist. Consequently, dissolved trace metals or thatfraction of the total metal mobilized that is adsorbed to sediment particles <63 ym that Stay suspended for long periods of time tend to berapidly diluted, both within the immediate water body and are further diluted in downstream waters bodies. Moreover, the remainder of the total recoverable trace metal fraction that is mobilized by suction dredging (ie., fraction adsorbedto larger sedimentparticles) generally settles out within a few hundred meters of the dredging site. The result is that trace metals concentrationsthat maybe elevated in the dredging discharge tend to return to background levels within close proximity to the dredge. Although relatively little study of trace metal (other than mercury) mobilization and transport related to suction dredging has occurred, a few studies have been identified, Johnson and Peterschmidt (2005) identified a maximum copper concentration of 9.3 pg/L in suction dredge effluent in a study on the Similkameen Riverin Washington State. Zinc and lead were both significantly below their respective acute criteria. Ina study of dredging in the Fortymile River of Alaska, the maximum near-field copper concentration was 20 pg/L, and the maximum zinc concentration was 43 ug/L (Royer et al., 1999). In both studies, concentrations returned to ambient backgroundlevels within a short distance from the dredgingsite. Based on the above discussion and studies cited, it is not expected that suction dredging under the Program would cause more frequent exceedance of CTR criteria for the protection of the municipal and domestic water supply useor state drinking water MCLs at frequency, magnitude, or geographic extent that would result in adverse effects on the municipal and domestic supply beneficial use, or any of the other non aquatic life beneficial uses. Therefore, the remainder of this assessment will focus on determining whether suction dredging underthe Program would adversely affect aquaticlife beneficial uses. The bioavailability (ie. the ability for a metal to be taken into the body of an aquatic organism) and thus toxicity of arsenic, cadmium, chromium, copper,lead,nickel, silver, and zinc are affected by the total hardness of the water and concentrations of other water quality parameters, such as dissolved organic carbon, specific cations and anions, and pH where exposure occurs. Consequently, the CTR criteria for these metals include either includes a “water-effect ratio,” that is hardness based, or both. The water-effect ratio component of the CTRcriteria equations for these metals accounts for the effect of all water quality characteristics other than hardness on the metal’s bioavailability and thustoxicity. Suction Dredge Permitting Program February 2011 Draft Subsequent Environmental impact Report 42-55 Project No. 09.005 A005726 Califomia Departmentof Fish and Game TABLE 4.7-3. RECOMMENDED AMBIENT ALLOWABLE NOISE LEVEL OBJECTIVES 4.7. Noise Low-density residential 50 50 Multi-family residential 55 50 Schools 45 45 Retail/commercial 60 55 Passive recreation 45 45 Active recreation 70 70 Hospitals/mental health facilities 45 40 Agriculture 50 50 Neighborhood commercial 55 55 Professional office 55 55 Light manufacturing 70 65 Heavy manufacturing 75 70 Source: Yuba County, 1994 3. TABLE 4.7-4. YUBA COUNTY NOIse REGULATIONS 10 /11 Single-family residential 7 p.m.- 10 p.m 50 60 7am. 7 p.m 55 65 Multi-family residential nai10oe es os Commercial- Business and 10 p.m. ~7 a.m. 55 65 Professional 7 a.m.- 10 p.m. 60 70 General Industrial (M-1) anytime 65 75 Extractive Industrial (M-2) anytime 70 80 Yuba County Ordinance 820.140 - Ambient Base Noise Level 4.7.3 Environmental Setting This section discusses the existing noise conditions in the Program Area. Noise Sensitive Land Uses Sensitive receptors in the Program Area include areas where people reside and/or participate in recreational activities which can be disrupted by unwantednoise. Areas that are adjacent to rivers and waterways where suction dredging activities take place may contain potential sensitive receptors to noise generation. Suction Dradge Permitting Program Draft Subsequent Environmental tmpact Report 4.7-5 February 2011 Project No. 09.005 A006176 Califomia Dapartment of Fish and 8. References Game . Watanabe, C. 2002. Modification ofmercury toxicity by selenium: practical importance? _ TohokuJ. Exp. Med. 196:71-77. [[Ref#:828]] Wetzel, R.G. 1983, Limnology. 2nd Ed. (pp.45-59).Saunders College Publishing. New York, N.Y.[[Ref#: 829] Wood, M.L,; C.F. Foe;J. Cooke; S.J. Louie; and D.H. Bosworth. 2008. Sacramento - San Joaquin Delta estuary TMDLfor methylmercury ~ draft report. CVRWQCBStaff Report. [[Ref#: 195]] Yeardley,R.B.; J.M. Lazorchak; S.G. Paulsen. 1998. Elementalfish tissue contamination in northeastern U.S. lakes: evaluation ofan approach to regional assessment. Environmental Toxicology and Chemistry. 17(9):1875-1884.[[Ref#:830]] 4.3 Biological Resources Anderson,N.H., J. R. Sedell & F. J. Triska, 1978. Therole ofaquatic invertebrates in processing ofwood in coniferous forest streams. Am.Mid]. Nat. 100: 64-82. [[Ref#: 691)] Barbour, M.T. 1991. Stream Surveys — The Importance Of The Relation Between Habitat Quality And Biological Condition. Sediment and Stream Water Quality in a Changing Environment: Trends and Explanation (Proceedings of the Vienna Symposium,August | 1991) IAHS Publ. no. 203 [[Ref#: 831]] Beebee,T., andR, Griffiths. 2005. The amphibian declinecrisis: A watershed for conservation biology? Biological Conservation, Volume 125 (3): 271-285. [[Ref#: 832}] Bell M. 1990. Fisheries Handbook of Engineering Requirements and Biological Criteria. Third. US Army Corps of Engineers, North Pacific Division. Portland, Oregon. pp.1~1- 35~7, [[Ref#:833]] Bell, M. G, (1986). Fisheries handbook of engineering requirements andbiological criteria. U.S. Army Corpsof Engineers, North Pacific Division, Fish Passage Development and Evaluation Program Report [[Ref#: 1059]} Benke,A. C., T. C. VanArsdallJr. D. M. Gillespie, and F K. Parrish. 1984, Invertebrate productivity in a subtropical black-waterriver: the importanceofhabitat and life history. Monogr, 54:25-63. [[Ref#: 834]] BergerudA. T., R.D. Jakimchuk, D.R. Carruthers. 1984. The buffalo of the north: caribou (Rangifer tarandus) andhuman developments. Arctic. 37: 7-22.[[Ref#:835] Bernell, D, et al. 2003, Recreational Placer Mining in the Oregon Scenic Waterway System. Oregon Parks and Recreation Department[[Ref#:101]] Suction Dredge Permitting Program February 2011 Draft Subsequent Environmental Impact Report 8-12 Project No.'09.005 A006277 N O — o N A H R B W w 11 12 13 14 15 16 © 17 18 19 ~ 20 21 22 23 24 25 26 27 28 29 30 31 _* 32 California Department of Fish and 4.7, Noise to noise mayresult for thase suction dredge activities requiring notification under Fish and GameCodesection 1602. Notification is required for the following activities: Use of gas or electric powered winches for the movementofinstream boulders or woodto facilitate suction dredge activities; = Temporary or permanentflow diversions, impoundments,or dams constructed for the purposesoffacilitating suction dredge activities; m= Suction dredging within lakes; and m Use ofa dredge with an intake nozzle greater than 4 inches in diameter. A general description of how such activities requiring Fish and Game Codesection 1602 notification would deviate from the impact findings are described at the end of the impact section below. Findings of 1994 Environmental Impact Report The 1994 EIR did not makespecific findings in this environmental resource area. Instead, noise-related effects were generally discussed as a component of “Impacts on Recreational Opportunities.” Noise associated with suction dredge activities were generally found to detract from the enjoyment of other recreational users in the vicinity. Such conflicts between recreational users were cited as being outsideofthe jurisdiction of CDFG and were only discussedin the report forinformational purposes. Furthermore, the report concluded that suction dredging is a legitimate recreational activity and is afforded equal rights to use public landsto participate in the activity, so long as it is done in a legal manner. Methodology To assess potential noise effects, activities associated with the Program that have a potential to generate noise have been identified as shown below. oi e Noise associated with Program activities is primarily associated with the use of engines to power the dredge equipment. Noise levels generated by individual suction dredging operations would be dependenton the size and powerof the engine and equipment being used.Little information is available on the noise emissions from suction dredge equipment; however the U.S. EPA (1971) identified the following noise levels associated with the operation of small horsepower engines: TABLE 4,7-5. GENERAL NOISE LEVELS OF SMALL HP ENGINES U.S. EPA, 1971 Suction Dredge Permitting Program February 2011 Draft Subsequent Environmental Impact Report 4.7-8 Project No, 09.005 A006179 California Departmentof Fish and 8. References _ Game 7 Holtby, L.B., and M.C. Healey. 1986, Selection for adult size in female coho salmon (Oncorhynchus kisutch). Can.J. Fish. Aquat. Sci. 43: 1946.1959, [[Ref#: 715]] Hose, G.C,, P. Jones, and R.P. Lim. 2005. Hyporheic macroinvertebratesin riffle and pool areas oftemporary streamsin south eastern Australia, Hydrobiologia 532: 81-90. [[Ref#: 874]] House, R. and P, Boehne, 1985. Evaluation of instream enhancementstructures for salmonid spawningandrearing in a coastal Oregon stream. North American Journal of Fisheries Management 5:283-295. [[Ref#: 875]] llarri, M.L; Allan Taina de Souza; Paulo Roberto de Medeiros; Renato Grotta Grempel; lerecé Maria de Lucena Rosa, 2008, Effects of tourist visitation and supplementary feeding on fish assemblage composition on a tropical reef in the Southwestern Atlantic. Neotropical Ichthyology 6(4). [[Ref#: 876]] Ingélfsson, 0. A., Soldal, A. V., Huse,I., and Breen, M. 2007. Escape mortality ofcod, saithe, and haddockin a Barents Sea trawl fishery. - ICES Journal of Marine Science, 64: 000-~ 000.[[Ref#: 1074]] JamesA. R. C, A.K. Stuart-Smith. 2000, Distribution of caribou and wolvesin relation to linearcorridors. JournalofWildlife Management. 64: 154-159, [[Ref#: 877]] Johnson, CJ., M.S, Boyce, R.L. Case, H. D.Cluff, R. J. Gau, A. Gunn, and R, Mulders. 2005. Cumulative Effects of Human Developmentson Arctic Wildlife. Wildlife Monographs - 160:1-36. [[Ref#: 880]] Johnson,D. R. 1985, Man-caused deaths of mountain caribou in southeastern British Columbia. Canadian Field-Naturalist. 99: 542-544, [[Ref#: 878] Johnson, D.R. and M.C. Todd. 1977. Summeruseofa highwaycrossing by mountain caribou. Can Field Nat 91:312-314 [[Ref#:879]] Kasahara,T., and S. M. Wondzell. 2003, Geomorphic controls on hyporheic exchangeflow in mountain streams. Water Resour. Res. 39: 1005, doi: 10.1029/2002WR001386. [[Ref#: 881]] Kaufmann,P.R., and R.M. Hughes. 2006. Geomorphic and Anthropogenic Influences on Fish and Amphibians in Pacific Northwest Coastal Streams. American Fisheries Society Symposium 48:429-455. [[Ref#: 882]] Keller, E. A, and Melhorn,W.N,, 1978, Rhythmic spacingandorigin of pools andriffles: Geological Society ofAmerica Bulletin, v. 89, p. 723-730. [[Ref#: 883]] Keller, E.A, F]. Swanson. 1979,Effects of Large Organic Material on Channel Form and Fluvial Processes. Earth Surface Processes, 4 (4): 361-380. [[Ref#: 512]] Kerley L.L., j. M. Goodrich, D. G. Miquelle, E, N. Smirnov,H, B, Quigley, M. G. Hornocker. 2002.Effects of roads and human disturbance on Amurtigers. Conservation Biology. 97-108. [[Ref#: 884}] Suction Dredge Permitting Program February 2011 Draft Subsequent Environmental impact Report 8-18 Project No. 09.005 A006283 T a b l e J- 1. Li st of A n i m a l S p e c i e s C o n s i d e r e d In th is S E I R fe t m e a d o w s ne ar s a a le ve l in a f e w re st ri ct ed lo ca le s in S a n t a fa rv ae pr ef ar sh al lo w ( < 1 2 In ch es ) wa te r, us in g c l u m p s of Sa nt a C a z -t oe d s a l a m a n d e r E n d a n g e r e d {E nd an ge re d D F G- Fu ll y Pr ot ec te d C r u z a n d M o n t e r e y co un ti es , ve ge ta ti on or de br is fo r co ve r. Ad ul ts u s e m a m m a l bu rr ow s, BC -W ai ch Li st of Bi nd s of Co ns er va ti on C o n c e m ; C O F - f e e {U CN -C ri ti ca ll y (R eq ui re va st e x p a n s e s of o p e n Sa va nn ah , gr as sl an ds , a n d fo at ha t D e e p c a n y o n s co nt ai ni ng cl ef ts in th e ro ck y wa ll s pr ov id e ne st in g si te s. Ca li fo mi a c o n d o r E n d a n g e r e d jE nd an ge re d |E nd an ge re d |C ha pa rr al in mo un ta in r a n g e s of mo de ra te al ti tu de . fo ra ge s u p to 1 0 0 mi te s fr om ro os ti ne st . Li st of Bi rd s of Co ns er va ti on C o n c e m ; D F G - F o u n d in se it m a r s h e s tr av er se d b y ud al sl ou gh s, w h e r e co rd gr as s (R eq ui re s d e n s e gr ow th of ei th er pi ck le we ed or co rd gr as s fo r ne st in g or fo ot ed r Ta il { E n d a n g e r e d Fully Pr ot ec te d la nd pi ck te we ed ar e th e d o m i n a n t ve ge ta ti on . e s c a p e co ve r, fe ed s o n mo ll us cs a n d cr us ta ce an s. or Co ns er va ti on C o n c e m ; D F G - Sa tt -w at er & br ac ki sh m a r s h e s tr av er se d b y ti da l sl ou gh s in th e A ia te d wi th ab un da nt gr ow th s of pi ck i d, bu t fe ed s a w a y f r o m Ca li fo mi a ci a; ra il E n d a n g e r e d Fu ll y Pr ot ec te d icin ity of S a n Fr an ci sc o Ba y. iS oF Co ns er va ti on C o n c a m ; D F G - Ne st s al on g th e co as t fr om S a n F r a n c s c o B a y so ut h to n o r t h e m Co lo ni al br ee de r o n ba re or sp ar se ly ve ge ta te d, fl at su bs tr at es : s a n d Ca li fo rn ia le as t t e m Fu ll y Pr ot ec te d Ba ja Ca li fo rn ia . be ac he s, at ka li fl at s, a n d fi ll s, or p a v e d ar ea s. AB C- Wa tc h Li st of Bi rd s of s o u t h w e s t e m wi ll ow fl yc at ch er E n d a n g e r e d {E nd an ge re d Co ns er va ti on C o n c e m Ri pa rl an wo od la nd si n So ut he rn Ca fi fo mi a. ‘C on se rv at io n C o n c e m : 1 U C N - [ S u m m e r re si de nt of S o u t h e m Ca li fo mi a in lo w ri pa ri an in vi ci ni ty of [N es ts pl ac ed al on g ma rg in s of b u s h e s or o n tw ig s pr oj ec ti ng In to le as t Be l’ s vi re o E n d a n g e r e d {Es N e a r T h r e a t e n e d wa te ro r i n dr y ri ve r bo tt om s; b e l o w 2 0 0 0 ft. S, us ua ll y wi ll ow , Ba cc ha ri s, me sq ui te . c o h o s a i m o n - ce nt ra l Ca li fo mi a co as t E S U E n @ listing = so ut h of P u n t a Go rd a. f, co ol wa te r & su ff ic ie nt di ss ol ve d ox yg en , ick D a m . Se in th e S. W O Re qu ir es cl ea n, co ld wa te r ov er gr av el b e d s wi th w a t e r te mp er at ur es ch in oo k s a l m o n - S a c r a m e n t o Ri ve r wi nt er -r un re d er ed J A F S - E n d a n g e r e d Ri ve r bu t no t in tr ib ut ar y st re am s, b e t w e e n 6 & 1 4 C fo r sp aw ni ng . A F S - E n d a n g e r e d ; DF G- Fu ll y f e n c e M o j a v e Ri ve r ba si n, ad ap te d to al ka fi ne , mi ne ra li ze d N e e d s d e e p po ol s, po nd s, or sl ou gh -l ik e ar ea s. N e e d s ve ge ta ti on fo r M o h a v e tu i c h u b E n d a n g e r e d E n d a n g e r e d |P ro te ci ed fe rs . sp aw ni ng . O w e n s tu i c h u b id er ed JA F: L e t i n c u r s t e v e n a s n e n e e N e e d s cl ea r, cl ea n wa te r, a d e q u a t e co ve r, a n d aq ua ti c ve ge ta ti on . A r s e n d a n g e r e d _ _ _ _ | E n d e m i c t o h O w e n s R i v e r b a s i n iav r e A F S - E n d a n g e r e d : I C N - é A d a p t e d fo r s w i m m i n g in sw if t wa te r, bu t bo th ad ul ts & y o u n g n e e d it di _ fE nd an ge re d F o u n d in th e Co lo ra do Ri ve r be rd er in g Ca li fo ml a. [b ac kw at er s & ed di es . N e a d s gr av el ri ff ie s fo r s p a w n i n g JA FS -E nd an ge re d; DF G- Fu ll y F o u n d in la rg e, sh al lo w, m u d d y - b o t t o m e d po ol s. T h e y ar e e v e n fo un d in M o d o c s u c k e r E n d a n g e r e d [E nd an ge re d Pr ot ec te d. 1 U C N - E n d a n g e r e d F o u n d in tr ib ut ar y st re am s of th e u p p e r Pi t Ri ve r. in te rm it te nt st re am s, S p a w n jn ii ff le ar ea s. | A F S - E n d a n g e r e d , DF G- Fu il y Na ti ve to th e K l a m a t h a n d Lo st Ri ve r sy st am si n Ca li fo mi a & [S pe nd m o s t of ye ar in o p e n wa te rs of la rg e la ke s. T h e y fe ed o n pl an kt on , sh or in os a su ck er E n d a E n d a n g e r e d [P ro te ct ed - I U C N - E n d a n g e r e d Or eg on . | | JA FS -E nd an ge re d; OF G- Fu ll y A d a p t e d fo r s w i m m i n g in sw if t cu rr en ts bu t ai so n e a d qu ie t wa te rs . S p a w n ra zo rb ac k s u c k e r E n d a n g e r e d [E nd an ge re d [P ro t } W U C N - E n d a n g F o u n d in th e Co lo ra do Ri ve r bo rd er in g Ca li fo mi a. | A F S - E n d a n g e r e d , DF G- Fu ll y Pr im ar il y a la ke sp ec ie s fo un d in fa ir ly d e e p wa le r. Ad ul ts nu n u p tr ib ut ar y Lo st Ri ve r su ck er E n d a n g e r e d {E nd an ge re d {P ro te ct ad : t U C N - E n d a n g e r e d Na ti ve fo th e Lo st Ri ve r s y s t e m in Ca li fo rn ia & Or eg on . st re am s to s p a w n in th a sp ri ng . | C a n li ve in sa ti ni ti es fr om fr es h wa te rt o 6 8 pp t, c a n wi th st an d te mp sf r o m 9 de se rt E n d a n g e r e d lE nd an ge re d JA FS -E nd an ge re d De se rt po nd s, sp ri ng s, m a r s h e s a n d st re am s I n S o u t h e r Ca fi fo mi a. - 4 5 C & di ss oi va d o x y g e n te ve ls d o w n to 0. 1 p p m . ‘ | AF S- En da ng er ed ; DF G- Fu ll y Pr ef er s wa rm , cl ea r, sh al fo w wa te r fr ee of ex ol ic fi sh es , Ne ed s ar ea s of O w e n s pup fis h E n d a n g e r e d [E nd en ge re d Pr ot ec te d: I U C N - E n d a n g e r e d ha ll ow wa te r ha bi ta ts in th e O w e n s Va ll ey , fi rm su bs tr at e fo r sp aw ni ng . | A F S - E n d a n g e r e d : D F G F u l l y W e e d y po ol s, ba ck wa te rs , a n d a m o n g e m e r g e n t ve ga ia li on at th e lu na nm or ed th ra es : St ic kl eb ac k re d re d {P ro te ci ed {s tr ea m e d g e in sm al l S o u t h e m Ca li fo mi a st re am s. Co ol (< 24 C) , cl ea r wa te r wi th a b u n d a n t ve ge ta ti on . - | Ri pa ri an ar ea s o n th e S a n Jo aq ui n Ri ve r in n o r t h e m St an is ia us Mp at ia n br us h ra bb it E n d a n g e r e d jE nd en ge re d Co un ty . Pa ge 4 of 32 ) a A n n 2 7 7 Ta bl e J- 1. Li st of An im ai Sp ec ie s Co ns id er ed in th is SE IR | i, so ar ne , Sp ec ia l Co no em , IU CN -N ea r in cr ea se s no rt hw ar d of Po in t Co nc ep ti on . S p a w n s in th e Sp aw ns at te mp s be tw ee n 8- 14 C, Pr ef er re d sp aw ni ng su bs tr at e is la rg e st ur ge on T h r e a t e n e d [N on e Th re at en ed ; N M F S - S p e c i e s of S a c r a m e n t o , Kl am at h, & Tr in it y Ri ve rs . : Fe de ra l li st in g re fe rs to wi ld s p a w n e d , co as ta l, sp ri ng & fa ll ru ns ch in oo k s a l m o n - Ca li fo rn ia co as ta l E S U T h r e a t e n e d {N on e A F S - T h r e a t e n e d b e t w e e n Ri Cr , H u m b o i d t C o & Ru ss ia n Ri ve r, S C o e i m n o o k s i m o n - C a l i f o m i a c o a s t a l E S U _ : Hi st or ic al ly in af t ac ce ss ib le ca ld wa te rs of th e L a h o n t o n Ba si n i n a C a n n o t to le ra te pr es en ce of ot he r sa mo ni ds . Re qu ir es gr ay al ri ff ie s In a h o n t a n cu tt hr oa t tr ou t Th re at en ed [N on e IA FS -T hr ea te ne d w i d e va ri et y of wa te r t a m p s & co nd it io ns . st re am s fo r sp aw ni ng , — — e e T h r e a t e n e d _| : C a n n o t to le ra te pr es en ce of ot he r sa lm on id s, re qu ir es cl ea n gr av el fo r Pa tu te cu tt hr oa tt r o u t T h r e a t e n e d [N on e A F S - E n d e n g e r e d Co ol , we ll -o xy go na te d wa te rs sp aw ni ng , . Na ti ve to th e Li tt le K e m Ri ve r in Tu la re Co un ty . F o u n d in cl ea r, co ld Li tt le K e m go ld en tr ou t —- T h r e a t e n e d {N on e A F S - E n d a n g e r e d {m ou nt ai n st re am s & la ke s at 5, 00 0 to 9, 00 0 ft . N e a d we ll -o xy ge na te d, gr av el -b ot to me d sh al lo ws fo r sp aw ni ng . F r o m Ru ss ia n Ri ve r, so ut h to So qu el C r & to , bu t na t in cl ud in g, st es th ea d - ce nt ra l Ca ti fo ri a co as t E S U T h r e a t e n e d {N on e A F S - T h r e a t e n e d Pa ja ro Ri ve r. Al so S a n Fr an ci sc o & S a n Pa bl o B a y ba si ns . AF S- Th re at en ed , D F G - S p e c i e s [F ed li st in g re fe rs to ni ns in co as ta l ba si ns fr om th e Pa ja ro Ri ve r St ee lh ea d - so ut h/ ce nt ra l Ca li fo mi a co as t E S U Th re at en ed [N on e lo f Sp ec ia l C o n c e m ‘s au th to , bu t no t I n c l u d i n g ; t h e S a n t a Ma ri a Ri ve r. Po pu la ti on s in th e S a c r a m e n t o a n d S a n Jo aq ui n ri ve rs a n d th ei r st ee lh ea d - Ce nt ra t Va ll ey E S U Th re at en ed {N on e IA FS -T hr ea te ne d tr ib ut ar ie s. AF S- Th re at en ed ; D F G - S p e c i e s |C oe st at ba si ns fr om R e d w o o d C r e e k so ut h to th e Gu al al a Ri ve r, [s te el he ad - no rt he rn Ca li fo mi a E S U T h r e a t e n e d {N on e _j ot Sp ec ia l C o n c e m in cl us iv e. D o e s no ti n c l u d e -s um me r- ru n st ee th ea d, S T O O F o u n d in K l a m a t h Ri ve r, M a d Ri ve r, R e d w o o d C r e e k & in sm ai t S p a w n in [o we r re ac he s of co as ta l fi ve rs w / m o d e r a t e wa te r ve lo ci ti es & e u l a c h o n T h r e a t e n e d [N on e ID F es of Sp ec ia l C o n c e r {n um be rs in Sm it h Ri ve r & H u m b o l d t B a y ti bu ta ri es . lb at io m of pe a- si ze d gr av el , s a n d & w o o d y de br is ; as lo f Sp ec ia l Co nc em :; J U G N - Ha bi ta t ge ne ra li st s, bu t pr ef er sa nd -n ub bl e- bo ul de r bo tt om s, co ol , cl ea r S a n t a A n e su ck er ‘T hr ea te ne d [N on e Vu tn er ab le { E n d e m i c to L o s A n g e l e s Ba si n so ut h co as ta l st re am s. wa te r, & al ga e. | E n d e m i c to th e gr as sl an ds of t h e Ce nt ra l Va ll ey , Ce nt ra l C o a s t ‘I nh ab it sm al l, cl ea r- wa te r sa nd st on é- te pr es si on po ol s a n d g r a s s e d Sw ai s, ve rn al po ol fa lr y sh ri mp T h r e a t e n e d [N on e HU CN -V ul ne ra bl e in s, a n d S o u t h Co as t mi ns , In as ta ti c ra in -f it le d po ol s. Re st ri ct ed to th e ma rg in s of v e m a l Po ol s in th e gr as sl an d ar ea Pr ef er s th e s a n d y m u d su bs tr at e w h e r e it sl op es ge nt ly in to th e wa te r, wi th De lt a g r a e n g r o u n d be et fe Th re at en ed [N on e WW CN -C ri ti ca ll y E n d a n g e r e d b e t w e e n J e p s o n Pr ai ri e a n d Tr av is A F G . low -gr awi ngv e g e t a t i o n , 2 5 - 1 0 0 % co ve r. O c c u r s on ly in th e ce nt ra l va ll ey of Ca kf om ia , in as so ci at io n wi th Pr ef er s to la y e g g s in el de rb en ri es 2- 8 in ch es in di am et er , s o m e va ll ey ef de rb en y J o n g h o m be at ie T h r e a t e n e d [N on e bt ue el de rb er ry ( S a m b u c u s me xi ca na ). pr ef er en ce s h o w n fo r "s tr es se d el de rb er ri es . ‘T ha la rv ae fe ed on ly o n th e fo li ag e of th e we st er n d o g vi ol et (V io la H i p p o l y t a f r i t t i l a r y Th re at en ed {N on e XE RC ES -C ri ti ca ll y im pe ri le d Co as ta l m e a d o w s in De l No rt e Co un ty . ja du nc a) . Re st ri ct ed to na ti ve gr as sl an ds o n ou tc ro ps of se rp en ti ne so il In th e Pi an ta go er ec ta fs th e pr im ar y ho st pl an t: Or th oc ar pu s de ns if io ru s & O. Bi bu tt e: T h r e a t e n e d {N on e XE RC ES -C ri ti ca ll y im pe ri te d vi ci ni ty of S a n Fr an ci sc o Ba y. 1p 15 ar e th e s e c o n d a r y ho st pl an ts . F o u n d in th e W a l k e r Ba si n, K e m Co ., a n d se ve ra l ot he r sc at te re d ; K e r pr im ro se sp hi nx m o m T h r e a t e n e d [N on e IX ER CE S- Cr it ic al ly Im lo ca ti on s (C ar ri zo Pi ai n, Pi nn ac le s N M ) . Ho st pt an t is C a m i s s o n i a co nt or ta ap ll ob io id es (a ve ni ng p1 P r o p o s a d er va ti on C o n c a m ; B L M - [ s t o t gr as sl an ds , fr es hl y p l o w e d fi el ds , ne wl y sp ro ut in g gr ai nf ie ld s, (S ho rt ve ge ta ti on , ba re g r o u n d & fl at to po gr ap hy . Pr ef er s g r a z e d a r e a s & m o u n t a i n ir T h r e a t e n e d _j No rn e Se ns it iv e: O F G - S p e c i e so f & s o m e t i m e s s a d fa rm s US FS -S en si ti ve ; U S F W S - B i r d s o f Ri pa ri an fo re st na st er , al on g th e br oa d, lo we r fl oo d- bo tt om s of la rg er } Ne st s in ri pa ri an ju ng le s of wi ll ow , of fe n m i x e d wi th co tt on wo ad s, w / lo we r Bl lo w- bi ll ed cu ck oo Ca nd id at e Co ns er va ti on C o n c e m [ r i v e r s y s t e m s . St or y of bl ac kb er ry , ne tt le s, or wi ld gr ap e. D F t - S p e c i e s o f S p e a a l — — - — Ca nd id at e {N on e Co nc er n, ( U C N - E n d a n g e r e d : n o e of w e t m e a d o w s in ce nt ra l Hi gh Sl er ra , 6 4 0 0 to 11 ,3 00 fe et t e a g a n m o n t a n e w e t m e a d o w s ; al so in se as on al p o n d s as so ci at ed wi th Y o s a m i t e to ad US FS -S en si ti ve in el ev at io n. lo dg ep ol e pi ne a n d Su ba lp in e co ni fe r fo re st . / P a g e * af 32 ( ( A N N R A R A T a b l e J- 1. Li st o f A n i m a l S p e c i e s C o n s i d e r e d i n th is S E I R US FS -S en si ti v BL M- Se ns it iv e; |U CN -V ui ne ra bt e: |C oo l, w e t ra vi ne s a n d va ll ey s, d o m i n a n t ve ge ta ti on is o a k w o o d l a n d lo r ch ap ar ra l, al so pi ne a n d fir , 1 00 t o 2 5 5 0 ft el ev at io n. S e e k s co ve r u n d e r su rf ac e ob je ct s s u c h as lo gs , ro ck s, a n d li me st on e sl ab s or ta lu s, n e a r li me st on e fi ss ur es or ca ve s. I U C N - E n d a n g e r e d ; U S F S - Th re at en ed {S en si ti ve M i x e d co ni fe r ha bi ta t of de ns a, po le -t o- ma tu re si ze , fr ee s. Ac ti ve a b o v e g r o u n d on ly d u r i n g s p r i n g & fa ll i n s , F o u n d un de r to os e ro ck ru bb le at th e b a s e of ta lu s sl op es or u n d e r su rf ac e ob je ct s. Th re at en ad l i c k a m o n n e Fo un d on ly in th e vi ci ni ty of th a Sc ot t Ri ve r in Si sk ty ou Co un ty |O FG -F ui ly Pr ot ec te d; l U C N - Th re at en ed —[ Vu in er ab le a Qi Co ns er va ti on Co nc em , IU IC N- (T hr ea te ne d [L ea st Co nc em ;, US FS -S en si ti ve ; [F ou nd on ly in D e e p Sp ri ng s Va ll ey , b e t w e e n th e Wh it e a n d n y o mo un ta in s, Ci , § 00 0- 52 00 fe st in el ev at io n. } & b e t w e e n c l u m p s of ve ge ta ti on or su rf ac e ob je ct s. N e a r sp ri ng s, wa te rc ou rs es , ma rs he s, & w e t m e a d o w s . Se ei cs co ve r u n d e r q , ju Tp er -s ag e flats, p a r i a n ar ea s, sa va nn ah s, & ag ri cu lt ur al or r a n c h la nd s wi th gr ov es jo rf in es of tr ee s. R e q u i r e s ad ja ce nt su it ab le fo ra gi ng ar ea s s u c h a s gr as sl an ds , or al fa if a or in fi el ds su pp or ti ng ro de nt po pu la ti on s. ‘C on se rv at io n C o n c e m ; D F G - Th re at an ed in ha bi ts fr es hw at er ma rt sh as , we t m a a d e w s & sh al lo w ma rg in s of sa lt wa te r hes bo rd er in g la rg er ba ys . N e e d s wa te r da pt hs of a b o u t 4 in ch th at d o e s no t fl uc tu at e du ri ng th a y e a r '& d a n s e ve ge ta ti on fo r ne st in g h a b i t a t , fe 8 S| Bl Oe OS Fu ll y Pr ot ec te d, ' U C N - N e a r I D F G - F u l l y P r o t e c t e d ; U S F S - f o r o s Th re at en ed Ne st s in we tf an d ha bi ta ts in no rt he as te rm Ca ll fo mt a; wi nt er s In th e Ce nt ra l Va ti ay . [P re fe rs gr ai n fi el ds wi th in 4 mi of a sh ai to w bo dy o f wa te r u s e d a s a 2 2 [M re at sn ed |I UC N- Le as t C o n c e m Co lo ni al na st er , ne st s pr im an ly in ri pa ri en a n d ot he r lo wl an d ha bi ta ts hw es t of th e de se rt . i c o m m u n a l ro os t si te : ir ri ga te d pa st ur e u s e d as lo af in g si te s Re qu ir es ve rt ic al ba nk s/ cl if fs wi th fi ne -t ex t. y sa il s n e a r st i JA FS -V ul ne ra bt e; DF G- Fu ll y Pr ot ec ia d; IU GN -V ui ne ra bl e Re st ri ct ed to th e Pi t Ri ve r ab ov e a n d b e l o w th e fa il s at B u m e y , & th e H a tC r e e k & Fa il Ri ve r su bd re na ge s. ri ve rs , la ke s, o c e a n to di g ne st in g ho ls . F o u n d mo st ly o n th e m u d d y b o t t o m s of ia rg e st re am s. D F G - S p e c i e s of Sp ec ia l C o n c e m | e u y n a i n e , he kt on ic & a n a d r o m o u s . F o u n d in o p e n wa te rs of es tu ar ie s, mo st ly In mi dd ie or bo tt or n of wa te r co lu mn , Pr ef er sa li ni ti es of 15 -3 0 pp t, bu t c a n b e fo un d in co mp le te ly fr es hw at er t o |A FS -T hr ea te ne d T w o jo in ed m a r s h y ar ea s in h e no rt hw es t po rt io n of D e a t h Va ll ey Na ti on al Pa rk . ja im os t p u r e se aw at er . [Shallow p oo ls wi th sa li ni ti es fr om 14 to 1 6 0 pp t. Th re at en ed —| fU CN -E nd an ge re d iv eg et at ed l o a m so il s. W e s t e m S a n Jo aq ui n Va ll ay fr om 2 0 0 - 1 2 0 0 ft el ev . O n dr y, sp ar se ly [Di bu rr ow s or u s e k- ra t bu rr ow s. N e e d wi de ly sc at te re d sh ru bs ,f o r b s & Th re at en ed | s c n n u o r n e In annual g r a s s l a n d s . Re st ri ct ed to Mo ja ve D e s e r t O p e n de se rt sc nu b, al ka li sc ru b & J o s h u a tr ae wo od ia nd . Al so fe ed s Pr ef er s s a n d y to gr av el ly so il s, av ai ds ro ck y ar ea s. U s e s bu rr ow s at b a s e in b r o k e n te rr ai n wi th gu il ie s & w a s h e s sh ru bs fo r co ve r, Ne st s ar e in bu rr ow s, Th re at en ed _{ US FS -S en si ti va F o u n d fr om th e C a s c a d e s d o w n to th e Si er ra Na va da . F o u n d in a va ri et y of ha bi ta ts fr om w e t m e a d o w s to fo re st ed ar ea s. U s e d e n s e ve ge ta ti on & ro ck y ar ea s fo r co ve r & d e n si te s. Pr ef er f o r e s t s im er sp er se d wi m e a d o w s or al pi ne fe ll -f el ds , . \ Ca il lf om ia wo lv er in e OF G- Fu ll y Pr ot ec te d; 1\ UC N- Ne ar Th re at en ed | Th re at en ed ; US FS -S en si ti va F o u n d in th e no rt h co as t m o u n t a i n s a n d th e Si er ra Ne va da . F o u n d in a w i d e va ri et y of hi gh el ev at io n ha bi ta ts . N e e d s wa le r so ur ce . u s a s ca ve s, lo gs , bu rr ow sf o r co ve r & d e n ar ea . Hu nt s in m o r e o p e n ar ea s. C a n tr av el l o n g di st an ce s L e v e r n n o e r s o x Th re at en ed [U SF S- Se ns it iv e Re st ri ct ed to th e S a n B e m a r d i n o e n d S a n Ja ci nt o mi ns ; fo un d i n a va ri et y of m o n t a n e fo re st ha bi ta ts , F o u n d in vi ci ni ty of s t r e a m s or w e t m e a d o w s ; re qu ir es {o as e, mo is t sa il fo r jb ur ro wi ng , se ek s co ve r in ro tt in g lo gs . Tr in it y dr is tl e sn ai l Th re at en ed _| IU CN -V ul ne ra bi e [i ny o M o u n t a i n s sl en de r s a l e m a n d e r , pe ce s Sp ec ia l Co nc er n; I U C N - re ti ct ua l si en de r s a l a m a n d e r - K n o w n on ly fr om @ f e w st re am s in th e Tr in it y Ri ve r dr at | {J uv en il es ar e fo un d u n d e r ba rk of st an di ng d e a d br oa dl ea ft re es , a n d th e ci es m a y re qu ir e th is ha bi ta t. Mo is t c a n y o n s o n th e w e s t & ea st sl op es of th e n y o Mo un ta in s, w h e r e su rf ac e wa te ri s pr es en t. T a k e s co ve r un de r ro ck s o n mo is t S a n d y f o a m in st ea p- wa ll ed c a n y o n s wi th p e r m a n e n t sp ri ng s. Al so in un de rg ro un d cr ev ic es . Co nc em , IU CN -D at a De fi ci en t: US FS -S en si ti ve Mi xa d co ni fe ro us fo ra st on th e we st em sl op e of so ut he rn Si er ra Isan Gabriel slender sataman d e r IUCN-Data De fi ci en t, U S F S - S e n s i t i v e i N e v a d a betw eenK i n g s Ri ve r dr ai na ge & K e r n Ri ve r C a n y o n , Us ua ll y fo un d u n d e r bo ar ds ,r ot ti ng lo gs , ro ck s & su rf ac e li tt er . Su rf ac e ac ti vi ty li mi te d to ra in y wi nt er mo nt hs . |Known only from the San Gabriel Mins. F o u n d u n d e r ro ck s, w o o d , f e m fr on ds & o n so il at th e b a s e of ta lu s sl op es . Mos! active o n th e su rf ac e in wi nt er a n d ea rl y sp ri ng . Pa p- ™ ) A N N R A R A specific direct impact”. (NOP at 7.) Here, however,it is important to recognize that the project involves nospecific direct impact on any fish species of any practical importance, with direct impacts only upon benthic invertebrates. The Department should reject the notion that a “deleterious impact” might involve any impact whatsoever upon species listed under the state or federal Endangered Species Act, insofar as those statutes merely imposea duty upon the State to avoid jeopardizing the continued existence ofthe listed species. Rather, the Department should require, consistent with regulatory guidance issued under those statutes,that “deleterious effects” mean an appreciable and negative impact on populationsoflisted species, similar to the language proposed for non-listed fish species: “a substantial reduction in the range of any species, and/orextirpation of a population”. In focusing upon population-level effects, the Department should not addresseffects on units of protected species which are any smaller than the management units defined for purposesofthe state or federal Endangered Species Act. Issues Concerning LandUse and Planning Other commentators have provided the Department with substantial information concerning the federal regulatory scheme for mining on federal land, which describes most suction dredge mining in California. The Appendix G Guidelines ask, among other things, whether the project would “conflict with any applicable land useplan, policy, or regulation of an agency with jurisdiction over the project .. .”. The present claim of no conflict with such regulations (NOP at 76) does not appear to take accountof federal land managementagencies and their mining regulations. Scope of Literature Reviewed We understand that the CEQA documentsatthis stage might necessarily contain more speculative, subjective and qualitative information, to be refined in the courseofthe study. However, in assessing the significance of asserted impacts,it will be important to have a quantitative sense of whether or not suction dredge mining has appreciable impacts on fish populations. The U.S. Forest Service commissioned such as study, engaging Professor Peter B. Bayley, of the Department of Fish & Wildlife at Oregon State University, to conduct a comprehensive study to assess asserted cumulative impacts on fish populationsin the Siskiyou National Forest. His Final Report was issued in April 2003, and represents the only scientific study of which weare presently aware that has attempted to measure the asserted cumulative impacts of suction dredge mining (as opposed to merely speculating aboutpossible effects in a qualitative manner). He concluded: “Localized, short-term effects of suction dredge mining have been documented in a qualitative sense. However, on the scales occupiedby fish populations such local disturbances would need a strong cumulative intensity of many operations to have a measurable effect. Local information reveals that most suction dredge miners adhere more orless to guidelines that have recently been formalized by the Forest Service and generally in... Oregon,but there are A025664 individual cases where egregious mismanagementof the immediate environment has occurred,particularly with respect to damaging river banks in various ways. This analysis cannot account for individual transgressions, and a study to do so at the appropriate scale would be very expensiveif feasible. “Giventhatthis analysis could notdetect an effect averaged over good and bad miners and that a more powerful study would be very expensive, it would seem thatpublic money would be better spent on encouraging compliance with current guidelines than onfurther study”. This study corroborated the findings of numerous prior cumulative impact studies, all of which have previously been submitted to the Departmentin responseto its October 2007 request for information. Wetrust that by the time the draft SEIR is issued, the Bayley study and other submitted materials will find their place above the more speculative references presently cited by the Department. Cf, e.g., NOP at 95 (referencing “invertebrate productivity in subtropical black-waterrivers”), 101 (fish behavior on “tropical reef”). A025665 Table 2. Summary of Suction Dredge Mining Effort MINERS DREDGE HOURS SURVEYED SIZE EFFORT RECREATIONAL 154 (49%) 74% <¢ 4" 14,734 (20%) PROFESSIONAL 163 (51%) 80% > 4" 59,882 (80%) TOTAL 317 74,616 Subjective aquatic and riparian assessments revealed that relatively few suction dredge miners are causing negative imracts. The majority of the miners (88%) were dredging zccording to DFG regulations. However, due to the large amount c= dredging effort occurring in California streams annually -2b5le 3), there is the potential for significant environmental -=Fects that were not measured or quantified in this subjective 2-225 limited study. The dredging violations noted in this study reveaied that 7% of the dredges were observed to have undercut e t 12 stream bank, 6% had channelized the stream to some degree, “2 4% were responsible for riparian damage. These statistics Ls reflect the physical characteristics of the streams z_rveyed, Streams receiving the most dredging pressure, the -irtn forks of the Yuba and American rivers for example, had s.itively little riparian along the streambank. These rivers, | B001778—s, _ Heavy Metals For the unfiltered samples, two metals, copper and zinc, showed distinct increases downstream ofthe dredge (Fig. 8). Total copper increased approximately 5-fold and zinc approximately 9-fold at the transect immediately downstream ofthe dredge, relative to the concentrations measured upstream ofthe dredge. For both metals, the concentrations declined to near upstream values by 80 m downstream ofthe dredge. The pattern observed for total copper and zinc concentrationis similar to that for turbidity and TFS (see Fig. 4), suggesting that the metals were in particulate form, or associated with other sedimentparticles. Theresults of sampling for dissolved heavy metals area are shown in Table 1. Zinc, arsenic, and copper displayed an average value downstream of the dredge that was greater than the average value measured upstream ofthe dredge (note that samples sizes are low,particularly upstreamof the dredge). Copper displayed the greatest change, increasing by approximately 3-fold downstream of the dredge. Dissolved lead concentrations did not appear to be affected by operation ofthe dredge. Values of dissolved mercury actually were greater upstream of the dredge, suggesting that any effect of the dredge was likely within the range ofnatural variation. (The operator reported observing deposits of liquid mercury within the sediments he was working.) For both dissulved and total concentrations, budgetary limitations precluded multiple sampling across either space or time, thus the results of heavy metal sampling are only indicativeof likely conditions, Due to the low densities of macroinvertebrates in the dredge plume(andin the Fortymile in general) and the short exposure times, no macroinvertebrates were collected for heavy metal tissue analysis downstream ofthe suction dredge. However, results from the 1998 analysis of lacruinvertebrate Ussues suggest that these organisms are capable of concentrating heavy metals at least under conditions of chronic exposure. Although the data are preliminaryin nature, several metals showed substantially greater concentration in the invertebrates from Polly Creek (mined) than trom Alder Cresk (reference), including mercury, zine, molybdenum, and arsenic Peybyte Ty . ops te . tye npat . “ ; . fit thm. 1 et {.ee sepbabhe Sj ther metals, suet as copper and micke!, did nor exhibit substanual differences The : rated ds wees aed an ‘ se cee FSR PDA eo oe + mands _~Phe upwelling “ea identitied by the USGS asa pefential saure2 af metalsBh Bed seeTRteseey tt faa MeteaePSSGe WW CES an fae Sh bortyinidle did not appear te be influencing metal coneentrations in mecroimertebrates. B008182 ie The Chattenge: Lookingfor geld m Californie streams and rivers is-2 recreational activity for ihousarah ofslate residents, Manygold enthusiasts simply pan gravels and sediments, More seriqas recreational minersmay have small. sluice boxes or suction dredges io recover gold beating sediments. As these mingremove ‘seiainents, sandd, anidgravel finn stressand former mine sites to separate ot thegold, theyure also removing micrcury- This mercury isthe remmant ofmillions ofpounds ofparemercury that was added toslice boxes used by hintori¢ mining operations berwoen 1550 and . 1890. Mercuryis a toxic, perststent, andbicaccunvelativepofhutaat thataffects the mervous eystemandhasjong boen kaawaio be toxicto Immans, fish, and wildlife. The Seletion: Takiog mercury out of streams benefits the environment. Efforts to collect mercury from rterestional gold mincre in the pasthewever, have been stymied due tp perceived regulatory barriers. Disposal ofmercuryis normally subject to adi sequltions applicablew hazardous wists. . - jn 2000, EPAand Califomis’s Division ofToxic Substance¢ Control worked in concert with other Sunte and local ageacies 0find the reguistory flexibility needed tocullect mercury in a simple and effective manner. Onc appmack was, to wii mercury to thetis of materials chet are collected at regularly scheduled orperiodic household bazandonss weste collection events sponsoredby local county agencies. Anothermereury collection approach was fo setup collisionHationsin areas Where mencury is being Foundby recreational miners. The Resslts: InAinguat and September, 2000the first mercury “milk nine” collected 230 pounds ofmercury. Not onlywas mercury received fromrecreational guid — miners. but olbers such a3 retired dentists. Tietotal amount ofmercury collected wasequivalent. te the ptrcury load in47years worth ofwantewasier discharge fren thecity ofSacramento's sewage treatment phini of the mercury ina millionmescury thermometers. This successfulpilot program demonstrates how receeationsl goldminers and govermentagenciescan work together wm onsese verdes the envitnnment Murphy & Buchal LLP 2000 $.W.First Avenue, Suite 320 Portland, Oregon 97201 James L, Buchal telephone: 503-227-1011 fax: 503-227-1034 e-mail: jbuchal@mbllp.com December 17, 2007 BY EXPRESS MAIL AND E-MAIL California DepartmentofFish and Game Attn: Suction Dredge Mining Program 1416 Ninth Street. 12" Floor Sacramento, CA 95814 Re: October 19, 2007, Public Notice Soliciting Information Regarding Suction Dredge Mining Dear Sir or Madam: Pursuantto the California Regulatory Notice Register 2007, Volume No. 42-Z at 1783, I am enclosing a set ofpertinent studies and other materials on CD for your consideration in connection with issues pertaining to suction dredge mining. Also enclosed is a hard copyofthe index to the materials on the CD. Sincerely, James L. Buchal B026635 Pasa Deaeed Open-File Report 2010-1325A U.S. Department ofthe interior US. Geological Survey B042319 In 1884, the Sawyer Decision halted most major hydraulic mining operations in the Sierra Nevada (Sawyer, 1884). However, additional mining took placeafter that time. After the Caminetti Act of 1893, hydraulic mining was allowed in the Sierra Nevada, provided that HMD waskept out of navigable waterways and off other people’s property by containingit behind debris dams. In the SYR-HCconfluencearea, at the height of hydraulic mining activity, there was up to 30 vertical! meters ofHMD filling the original steep-walled canyonsofthe South Yuba River and Humbug Creek. Since 1884, much of the HMD hasbeen eroded awayin the river channel, leavingrelic cliffs composed ofHMD exposed along the canyonwalls. Conditionsat the confluencesite are currently still subject to erosion becauseofthe instability ofHMD that makesup a large portion ofthe canyon walls in this reach of the South Yuba River. The bed ofHumbug Creek is predominantly bedrock, whereasthe bed of the South Yuba Riveris largely armored with cobbles and boulders, with finer sediment in the deeper pools. According to somesuction-dredge miners, the cobble layer overlays deeper,relic fine-grained “slickens” layers from the hydraulic mining era thatare rich in Au, amalgam, and Hg. The extent anddistribution ofthe historical “slickens” layer are unknown,butthis layer has been the focus of previous suction dredge operations and continuesto be sought out because it often contains substantial Au and Hg-Au amalgam. Field Methods: Sample Collection and Processing Thebreadth offield methodology usedin this studyis in part because ofthe change in the project scope brought about by concern from the CRWQCB-CVR that the plannedfull-scale dredge test would negatively affect water quality and violate regulatory statutes. The resulting complex set of study elements refocused the study efforts toward a multidisciplinary characterization of the SYR-HC confluencearea. Because the resulting study contains a diverse range of methods,specific methodsandresults for each study element are presented in separate, parallel subsections ofthe report. Preliminary Dredge Test Sample collection methods and experimentlogistics were tested in a preliminary test on October 11, 2007, prior to a larger suction-dredge test scheduled for 2008. A standard 3-in. (7.6-cm) diameter suction dredge operated for a total of 3 hours in the South Yuba River about 500 m downstream from the SYR-HCconfluence(fig. 2). Twotransects acrossthe South Yuba River were established approximately 30 and 60 m downstream from thefirst dredging location, by using taglines (fig. 2, table 1). These transects were used as the locations for sampling of water quality and suspended sediment throughoutthe test. During thefirst 2 hours ofthe test, the riverbed was dredged at a location at the upstream end of a pool, just below riffle zone. During the third hourofthe test, the dredge was movedto a secondlocation approximately 10 m downstream from thefirst location to increase the amountofsuspended sediment at the sampling transects. B042340 instruments in similar environments (mid-channel, near the bed), some ofthe spatial differences in TSS concentration observed during non-dredging periods may reflect hydrologic variability within the cross section and along the stream reach studied. The proportion of suspended sedimentin the clay-size fraction (<0.002 mm) measured in-situ by the LISST increased dramatically during the dredge test at both the mid-pool and end-pooltagline locations(fig. 16). The proportion of suspended sedimentin the clay-sized fraction (<0.002 mm) reached maxima around 27% at the mid-poollocation and 47% at the end-poollocation(fig. 16), It should be noted that the LISST measuresany particle in suspension that diffracts light, including microbubbles that may have been introduced during the dredging activities. Thus, while it is likely that the reported spikes represent suspendedparticles because they were measured by both instruments, the composition of these very fine particles is unknown, Concentrations ofpTHg increased in a similar manner as TSS, with concentrations during the suction dredging two times the pre-dredging concentration and three to four times the concentration ofthe samples collected the following day " (fig. 17). The consistencyofthe relation is because ofthe similar Hg concentration in the suspended sediment across samples. The dry-mass-normalized Hg content ofthe suspended material (Hgss) remained at approximately 300 ng/g throughoutthetest (fig. 18). This concentration is similar to that measured in sediment from the San Francisco Bay estuary (Bouse and others, 2010) and the fine-grained (<0,063 mm fraction) sediment excavated from Pit 1, a gravel-cobble bar on the South Yuba River, during September 2008 (discussed in a Jater section ofthis report). Concentrations of f{THg in the South Yuba River during the dredge test were similar to those in the field blanks (table 4). The elevatedconcentration ofthe field blank compared to the laboratory blank water may have been caused by multiple sources of background contamination affecting field equipmentand thefiltration process. Efforts were made to keep equipment and blank water clean by using multiple layers ofplastic bags, but the difficulty of site access and exposure to the weather increased the potential for equipment and blank-water contamination. Dredging appeared to have no majoreffect on pMeHgconcentrations in the South Yuba River during the dredge operations. Concentrations ofpMeHg in environmental samples were approximately twice thosein the field blanks (table 4) but did not change over timeat the end-poolsite (approximately 0.006 ng/L). Only one sample collected at the mid-poolsite was analyzed for pMeHgas part of this methods-testing exercise, so no trend could be evaluated at that site. Concentrations of{MeHgwereall below the method detection limit (MDL) of 0.040 ng/L except for one sample that was just above the MDLat 0.041 ng/L; however,this variation may not have been directly attributable to the dredge operations. Similarly,all samples for pHg(II)p analysis were below the MDL(table 4). 36 B042368 10 | EXPLANATION * mid-pool ® end-pool = > = > 1 x ~ Qa. 0.1 0.1 1.0 10.0 TSS (mg/L) Figure 18. Log-log plot showingthe relation between concentrationsoftotal suspended sediment (TSS) and particulate total mercury (pTHg) at the mid- poo!(blue symbols) and end-pool (pink symbols) sites during the October 2007 dredge test on the South Yuba River, California. Lines represent mass- based pTHg concentration. ~ Table 4. Mercury concentrationsin water samples collected during the October 2007 dredge test, South Yuba River, Califomia. [MP, mid-pool, EP, ertd-pool; hrs, hours; 4m, micrometer; THg, total mercury, MeHg, methylmercury, Hg(IDp, reactive mercury (11); Hg(Mpss, reactive mercury concentration ofsuspended sediment, TSS,total suspended sediment, p, particulate; £ filtered; ng/g, nanogram per gram (orpart per billion); %, percentage, ng/L, nanogram per liter, mg/L, milligram perliter, MeHgss, methylmercury concentration ofsuspended sediment; MDL, method detectionlimit; <, Jess than; nd, not determined] Timerelative Site Collection tostarttof THgss pTHg fTHg MeHgss pMeHg fMelHg Hg(ess % % TSS Date dredging = (ng/g) (ng) (mgt) (ng/g) (ngik) {ngit) (ngig) MeHgss Hglless (mail) (hours) reid 11-Oct-07 +1, ] EXPLANATION 80 ™ <0.063 mm s 60 . O 0.063 to 0.25 mm e 4 o | © 0.25to 1.0mma 40 ~ M 6.3 to 1.0mm 20 = >6.3mm 0 Pi t 1 P 2 O B L P 2 F C L P 2 C S L P 2 B R C H M D - C F Figure 22. Stacked bar graphs showing the particle-size distribution for excavated sedimentcollected during September 2008in the South Yuba River, California, for the followinginitial size ranges of material: (A) Fult size range (non-sieved), (B) material less than 6.3 miltimeters (1/4 inch}, and (C) material less than 1 millimeter. Sample information is provided in table 2. Site names are abbreviatedasfollows: P2,pit 2; OBL, overburdenlayer; FCZ, first contact zone; CSL, compact sedimentlayer; BRC, bedrock contact; and HMD-CF, hydraulic mining debris cliff face. 47 B042379 Additional information onparticle-size distribution for excavated samples was providedby the laser-scattering analytical approach. Results indicate that Pit 1 sediment was coarser than that from the Pit 2 bedrock contact layer and from the eroding cliffHMD for material < 1.0 mm (fig. 23A), The laser-scattering approach further showed that the three samples analyzed had similar size distributions, althougha slightly higher proportion ofvery fine-grained material was present in the HMD material for material <0.063 mm. For example, about20% ofthe HMD sediment <0.063 mm was in the clay-size range (<0.002 mm) compared with about 14 to 18% ofthe material from Pit 1 and the Pit 2 bedrock contact, respectively (fig. 23B). Concentrations ofTHg, Hg(I)p, and organic content (loss on ignition) all increased with decreasing particle size (fig. 24, table 6). The concentration ofTHg in the coarsest size fraction (0.25 to 1.0 mm) ranged from 16 to 515 ng/g forPit 1 and Pit 2-BRC,respectively. The concentration ofTHgin the intermediate size fraction (0.063 to 0.25 mm) ranged from 41 to 1,630 ng/g for Pit 1 and Pit 2 CSL,respectively. The THg concentration in samples from the finest size fraction(silt-clay, | <0.063 mm) ranged from 147 ng/g in the Pit 2 OBL to 11,100 ng/g in the Pit 2 BRC, The percentage ofHg(Il), as a function ofTHg was somewhatvariable across the sedimentfractions. The highest values of%Hg(ID)p (17 to 27%) were observed in samples from the 0.063 to 0.25 mm size fraction ofthe Pit 2 CSL and BRC andin the <0.063 mm size fraction ofthe Pit 2 BRC(fig. 24D). A)<4 mm , B)< 0.063 mm 90 biz eRe | : 00 | g+HMD-CF ! ag3 70 |: J ! 2 70 | eG . a i & 60 (8 60} a : s i = 50 / 50: = 40 = 40} @ Py 3 = 30 = 30 | # 20 * 20 | 10 10 | 9.001 0.010 0.100 1.000 0.000 0.004 0.010 0.100 Grain size (mm) Grain size (mm) Figure 23. Cumulative particle-size-distridution plotsof fine-grained material from three excavated sediment samples(Pit 1, Pit 2 bedrock contact, andcliff face of hydraulic mining debris) collected during September 2008in the South Yuba River-Humbug Creek, California, confluence area, based on laser scattering. (A) Sand-silt-clay fraction (< 1.0 mm), and (B) silt-clay fraction (< 0.063 mm). 48 B042380 100,000 8 A) THg B) Organic content7: 10,000 ,6 - S 4,000 | 5 | £. .3 4 2 10 - i: : 0.25 to 1.0 0.063 to 0.25 <0.063 0.25 to 1.0 0.063 to 0.25 © <0.063 sediment grain size (mm) sedimentgrain size (mm) 10,000 30 . C)Hg(i), D) Percent H(i}, 1,000 ° 25 Ss ~ 20 ® 100 ze = = 15 S 10 z xr 10 Ve 5 oO: — 0. 0.25 to 1.0 0.063 to 0.25 <0.063 0.25 to 1.0 0.063 to 0.25 <0.063_ sediment grain size (mm) sediment grain size (mm) EXPLANATION MPiti Ei Pit 2 OBL OPit2 FCZ WPit2 CSL @Pit2 BRC @ HMD-CF Figure 24. Bar graphs showing sediment concentrations of mercury species and organic contentin three size fractions of excavated sediment collected during September 2008 in the South Yuba River-Humbug Creek, California, confluence area: (A) Total mercury (THg), (B) loss on ignition (LON),(C) reactive mercury (Hg(II)r), and (D) the percentage of THg as Ha(ti)r. 49 B042381 environments, particularly if material similar to the compact sediment (slickens) layer and bedrock contact zones are dredged. Ifthe dredging activity is located in river-bar materials, the enhanced loads are based solely on the increase in fine-grained sediment mobilized. Underthe latter scenario, approximately 100,000 to 1,000,000 hours ofdredging with an 8-in.-diameter (20-cm) nozzle would be required to equal the THg load associated with natural particulate transport processes during an average dry year in the South Yuba River(figs. 38A and 38B,table 10). However, if material similar to the compact sediment and bedrock contact materials are dredged, sediment with much higher THg content would be mobilized, and only approximately 100 to 1,000 hours of dredging would be required to exceed an average dry year’s natural watershed THg load (figs. 38C and 38D,table 10), These buried layers also correspond to the zones specifically targeted by the suction-dredging community because they are the zones most likely to contain recoverable grains ofAu and Hg-Au amalgam. Suction-dredging activity would haveto increase to 10,000 to 100,000 hours to equalthe long-term Hg accumulation rate in Englebright Lake (North, Middle, and South Yuba River watersheds combined with multiple large storm events). Although this represents a large amountoftime, records from the California DepartmentofFish and Gameindicate approximately 3,650 suction-dredge permits (3,200 resident and 447 non-resident) were issued statewide per year on average over the past 15 years (Horizon Water and Environment, 2009), implying only about 270 hoursofdredging per permit per year are required to reach the 1,000,000 hour mark. This estimate of dredge timeis reasonable for a statewide assessment but would be unlikely for only the South Yuba River. Furthermore,this estimate accounts for the dredging ofthe Hg-rich layers exclusively,a situationthat is unlikely given the variable spatial distribution ofthese Hg-rich layers. After the extensive characterization ofthesediment and Hg contamination associated with the SYR-HC confluence area, the largest source of uncertainty in the calculated Hg mobilization rates are the actual dredgingrates. Initial estimates (figs. 38A and 38B) were performed with published dredge rates (Keene Engineering, Inc., 2008). Revised calculations (figs. 38C and 38D) were based on dredge performance rates updated by Keene(P. Keene, Keene Engineering, Inc., written commun,, 2010). Unfortunately, the rate at which sediment was moved during the dredge test was not quantified during this study, therefore this evaluation is based on qualitative observation only. However, actual dredge mobilization rates likely fall between the wide rangeofcalculated rates. Future efforts to quantify sediment mobilization caused by recreational suction dredging should include the quantification ofthe dredge rate so that a more accurate assessment ofHg mobilization through dredging can be determined. Another approach to comparing suction dredging to natural loading rates on a greater watershed scale can be derived from previous estimatesofthe contribution of suction dredging to natural suspended-sediment loads. The USFS estimated the contribution ofsuction dredging in the Siskiyou National Forest at 0.7% ofthe overall sediment load (Cooley, 1995), On the basis of the elevated concentrations ofTHg and Hg(II)z in the contaminated layers ofthe SYR-HC confluence area, the contribution ofTHg and Hg(II)z from dredging in hydraulic-mining affected sites increases approximately 100- to 500-fold, respectively. This amounts to a 70% contribution ofTHg and 350% ofHg(i) from dredging relative to natural loads. However, this assumesthat all the sediments mobilized in the watershed are contaminated to the same degree as therelic sedimentlayers at the SYR-HCconfluence(Pit 2, CSL and BRC). A more conservative estimateofthe proportion ofrelic sedimentlayers at a hydraulic-mining affected site (10%)still yields a 7% contribution ofTHg and 35% contribution of Hg(I])p relative to natural loads in watersheds where relic layers persist. These estimates are, like the previous analysis, dependent on numerousassumptions and estimates and thus possess a high degree of uncertainty. 80 B042412 Conclusions Concentrations ofHgin surficial riverbed sediment, suspended sediment during storm events and a dredge test were in the range ofconcentrations observed in sediment elsewhere in the Yuba River watershed and in other Sierra Nevada watersheds affected by historical Au mining. However, buried sediment deposits had more elevated concentrations ofHg, especially in fine-grained fraction (<0.063 mm). The highest concentrations ofHgin sediment were in the bottom of a pit excavated near the mouth ofHumbug Creek (Pit 2 compact sediment and bedrock contact zones), an area that appeared to have remained undisturbed for many decades, perhaps since the days ofactive hydraulic mining that ended in the late 1800s, These sediment layers were apparently protected from erosion during stormflows by boulders and the geometry oftheir location. A closed-circuit tank experiment with a venturi pumpat the base of a hand-excavatedpit (Pit 1) in a gravel bar within the South Yuba Riverresulted in fine-grained suspended sediment remaining in suspension more than 40 hours following the disturbance simulation. Although the concentration ofHg in the water column declined overtimeas particles settled out, the concentration ofTHg and Hg(II)z on the suspendedparticles increased over timeas coarser particles lowerin Hgsettled. Concentrations ofMeHgin invertebrates collected from Humbug Creek andthe reach ofthe South Yuba River studied in this project were elevated compared with a controlsite (on the nearby Bear River) that was relatively unaffected by historical mining. Invertebrate MeHg concentrations were lowerin 2008 than in 2007 in at least two ofthree sampled taxa at each ofthe five sites with comparable data in the South Yuba River and in HumbugCreek. One factorin the reduction in MeHig bioaccumulation in this area may have been a local moratorium on suction dredging that started in 2008. However, the data contained in this report are insufficient to determine the causeforthis inter-annual variation. Further monitoring of MeHg in biota where previous data exist during the statewide suction-dredging moratorium that began in 2009 would be helpful in evaluating this possibility. The removalofthe protected, Hg-rich sedimentlayers by activities such as suction dredging or high-banking would likely result in increased loads ofTHg and Hg(I)z mobilized downstream in the fine-sedimentfraction, which would likely not be caught with standard recovery equipment (such as the sluice box on a standard suction dredge). Mobilizing this Hg- rich sediment would increase downstream loads for long distances; fine particles would notsettle until they reach quiescent environments such as Englebright Lake or downstream wetlands of the Sacramento River and San Francisco Estuary where the Hg-rich particlesofsilt and clay size maybe deposited. Developmentand testing ofenhanced recovery technologies for fine-grained sediment and Hg may beofinterest for developing moreeffective Hg-removaltechniques in remote locations such as the SYR-HCconfluence area. In addition to the disturbance ofburied sediment, an eroding cliff face composed of hydraulic mining debris may also be contributing a substantial load ofTHg and Hg(II)rto the South Yuba River though stream bank erosion. 87 B042419 as hosts,it is not possible to evaluate the risk that non-native fish pose. Based on an extensive survey of thousandsofsites in the Intermountain west, Hovingh (2004) notes that A. californiensis now occupies streams andsprings that are not actively managed for introduced sport fish. CONSERVATION STATUS A. californiensis /A. nuttalliana are highly vulnerable, and this clade has been extirpated from muchoftheir historic range in Arizona, southern California, and Utah. This clade is probably also imperiled in Nevada, and populations sampled from multiple U.S. states in its historic range show evidence of inbreeding (Mockef al. 2010). Under the U.S. Endangered Species Act, distinct population segments of invertebrates cannot be listed as threatened or endangered. Thus, because A. californiensis /A. nuttalliana are a widespread clade and populationsin Pacific Northwest states appearto be relatively stable, these animals are unlikely to receive protection underthe U.S. Endangered Species Act until their taxonomyis resolved and new species names are given to genetically distinct populations. A. californiensis was petitioned to be listed as threatened or endangered underthe U.S. Endangered Species Act (ESA) in 1989 by Thomas Hulen of the Pueblo Grande Museum in Phoenix, AZ (Hulen 1989). In 1990, the U.S. Fish and Wildlife Service (FWS) determined that the petition did not present substantial information to indicate that listing A. californiensis as endangered or threatened was warranted,as it focused on the species status in Arizona, and did not include any information on status in the majority of the range ofA. californiensis (USDI Fish and Wildlife Service 1990, Federal Register 55(209):43389). In this samefinding, the Service addedA. californiensis to theirlist of candidates for federal listing as a Category 2 candidate species (Federal Register 55(209):43389). In 1993, A. californiensis was again petitioned for listing under the ESA by the Oregon Natural Resources Council as part of a petition to list 83 mollusc species as endangered. In 1994, the FWS madea positive 90-day finding, but made a not-warranted 12 month finding in response to the petition to list A. californiensis as endangered (USDIFish and Wildlife Service 1994, Federal Register 59(131):35305-35307). In that same Federal Register notice, the FWSstated that they lacked evidenceof specific threats throughout the rangesofall 83 petitioned taxa, especially any threat associated with a population decline. They also noted that the taxonomic distinctiveness or validity of many ofthe 83 species had not yet been determined. A. californiensis was dropped as a candidate species when the FWS eliminatedall Category 2 candidate species in 1996 (USDI Fish and Wildlife Service 1996, 59 FR 58982, 61 FR 7595-7613). A. californiensis remains a Federal Species of Concern (U.S. EPA 2002), although that designation provides no formal protection. In 2006, NatureServe assigned A. californiensis a global status of G3Q, meaningthat this species is vulnerable andits taxonomyis in question (NatureServe 2010). In 2009 NatureServe assigned A. nuttalliana a global status of G4Q, meaningthatit is apparently secure and its taxonomyis in question (NatureServe 2010). Tothe bestofthe authors’ knowledge, the winged floater (Anodonta nuttalliana) has never been petitioned for listing under the U.S. Endangered Species Act. The conservation status ofA. californiensis /A. nuttalliana in each U.S. and Mexicanstate and Canadian province where oneor both species is knownto occuris detailed below. Profile: California floater (Anodonta californiensis) / Winged floater (Anodonta nuttalliana) 14 B043388 United States Arizona Arizona ranks A. californiensis as S1 or Critically Imperiled within the state (NatureServe explorer 2010). Freshwater mussels that occur in Arizonaareall considered to be Anodonta californiensis (Culveret al. 2007). Historically, A. californiensis occurred in most of the major drainages of Arizona, including the Colorado River Basin (Black, Colorado, Gila, Little Colorado, Salt, San Pedro, Santa Cruz and Verde Rivers) and the Rio Yaqui Basin (San Bernadino River) (Culver et al. 2007). Currently, A. californiensis is only known from a few miles of perennially flowing waters in the Upper Black River of the Colorado River system (Culveret al. 2007, Myers 2005 unpublished) and Chevelon Creek in the Little Colorado River system (J. Sorensen, pers. comm. 2009). In an unpublished document, T. Myers (2005) documents numerous Anodonta records from Arizonain recent and archeological history. From these records and his experiencein the field (although he did not conduct systematic surveys), T. Myers suggests that Anodontahavelikely been extirpated from the following places in Arizona: the lower mainstem of the Colorado River, the lower Gila River watershed, the Arizona portion of the Santa Cruz River watershed, the Tonto Basin, Phoenix Basin and New Riverin the Salt River watershed, the Verde River watershed, the west fork of the Black Riverin the Black River watershed, and the San Pedro River system in the San Pedro watershed. Bequart and Miller (1973) documentthe extirpation ofA. californiensis from numerouslocations with historical records in Arizona: the Colorado River, the Little Santa Cruz River outside of Tucson, San Bernardino Ranch (Cochise County), Oak Creek Canyon (Cococino County), and the Little Colorado River near Springerville (Apache County). They note the considerable alterations that the Colorado River has undergone and doubtthat A. californiensis still exists in the Colorado River. A. californiensis was apparently commonand abundantin the Little Santa Cruz Riveroutside Tucson, AZ in the late 1800’s; but had been extirpated by the early 1900s (Bequart and Miller 1973). Bequart and Miller (1973) note that A. californiensis was widespread in Arizona a century ago and nowis nearextinction and suggest that the changeis likely due to loss of host fish. Although Bequart and Miller (1973) suggestedthat 4. californiensis were extirpated from the entire Little Colorado River system, Anodonta valves were collected from Chevelon Creekin the Little Colorado River watershed and photographed by T. Myersin June of 2007(J. Sorensen, pers. comm., 2009). T. Myers (2005) notes that in the Black River watershed, Anodonta are extant in the North Fork and East Fork of the Black River and Boneyard Creek. T. Myers (2005) suggests that Anodonta are ‘apparently extant’ in the uppertributaries of the Upper Rio Yaqui Watershed (which spans the Arizona, Sonora and Chihuahuain the U.S. and Mexico),at least in Rio Papigochic, Chihuahua(based on reports of local individuals in Chihuahua). T. Myers notes that the status ofAnodonta in Cibecue Creek, Canyon Creek and other drainages on Ft. Apache Indian reservation in the Salt River watershed and in the mainstem of the Black Riverin the Black River watershed is unknown (T. Myers 2005). Profile: California floater (Anodonta californiensis) / Winged floater (Anodonta nuttalliana) 15 B043389 Preliminary genetic studies indicate that Anodonta collected from Arizona and Chihuahua, Mexicoare different than the Anodonta collected from Jalisco, Mexico (Culveret al. 2007). California A. californiensis is ranked as S2 or Imperiled in California, whereas A. nuttalliana has not been ranked in the state (NatureServe 2010). Southern California Jeanette Howard conducted surveysat 42 historic (pre-1995) Anodontasites in northern and southern California, and did not find Anodonta at any of the southern California sites searched. She found Anodontaat only nineof historic sites searched, all of which are in northern California, and concludes that A. californiensis has been extirpated from southern California. (Howard 2010). In a 1981 publication, D. Taylor stated that A. californiensis is “probably extinct in most ofthe Central Valley and southern California. [...] Probably most natural populations in the state have been eradicated.” A decadelater, in a California Department of Fish and Gamereport, Coney compared specimensfrom the Los Angeles County Museumthat were collected between 1912 and 1945 to his own collections made between 1984 and 1992, and concluded that A. californiensis had been extirpated from “all of southern California” (Coney 1993, C-7). He documentedhistorical recordsofA. californiensis from the Los Angeles River, Arroyo Seco, East Park/Lincoln Park Lake, Silver Lake and Hollenbeck Park, and noted that in eight years of active searching,he has not turned up any A. californiensis (Coney 1993). Coneystates that “Anodonta californiensis Lea, 1852, should be investigated for qualification of endangered species status” (Coney 1993, C-8). Bequart and Miller (1973) note the considerablealterations that the Colorado River has undergone and doubtthat A. californiensis still exists in the Colorado River. Northern California In 1981, D.W. Taylor published a distributional checklist of freshwater mollusks in California. He speculated that A. californiensis, Gonidea angulata and Margaritiferafalcata had been extirpated from most oftheir original rangesin the state (Taylor 1981). Frest (1999) suggested that A. californiensis is apparently extinct in the upper Sacramento River. Morerecently, Jeanette Howard conducted a systematic survey of 42 historic (pre-1995) Anodontasites in California and found Anodonta at only nineofthose sites searched, all of whichare in northern California (Howard 2010). In 2008, J. Howard surveyed 115 sites in northern California, in the following National Forests: Plumas, Tahoe, El Dorado and Lake Tahoe Basin Management Unit. Nolive Anodonta were found duringthat survey, although Anodonta shells were found in Donner Lake. Howard notes that the Feather, Yuba, American, Truckee and ConsumnesRivers, and Lake Tahoe are impacted by someorall of the samefactors that are implicated in the decline of freshwater mussels in eastern North America: damming, channel modification, agriculture and forestry (Western Mollusk Sciences 2008). Profile: California floater (Anodonta californiensis) / Winged floater (Anodonta nuttalliana) 16 B043390 » ‘PeterB.Bayley PrisiReport Response offish to ciimulative effectsof suction dredge and diydraulic mining in the [linoissubbasin, Siskiyou. NationalForest, Oregon* Peter B.Bayley Dept.Fisheries&Wildlife. __,_Okegon:StateUniversign y {04.NashHall, CorvallisOR-97330 peter.bayley@orstedu: April, 2003 *Pinal iepert fim4study,Cumilativeufkers.ofminkigactivities oxtie SiskiyouNationalForest, basedon.«GostRolegbirsable agreenigntbetweentheUSDAForest Service,Siskiyou National. Frwoxt atid OresteStateUniversisgsindértheprovisionsofthirNational AgrieuttiralResearch, ExtensionandTeachingPotieyActof 1977(Pub.L..95~113),ae amended bytheFoodSecurityAct. OfVBS ITUSE,3319ePubLh. 99-798}, C123019 Peter: Bayley FindRepatt Contents Absttse ‘tdnpeadaction BR ea eee ates hApprmdh. %Methods:Response.variabite Ree ewe Neee yaw ogee VON we wee e Maw RA oe eee eh ew he, i,LAdkniradedgemtetits bees, 1.2Background ‘w AH Ee LO POR eee a es soa dow eee ee eo ete + nee ere 2ODEW-Spawainganadromous.Salmond surveys .: 3:2Summer.puorkeling counts bySMART§ 3.8Pistehabitat. oe ace 4, Methodsein fistpopulatio“is oases ee. 3:Analysis idHSUEE es 5,1Rating poteritialinfluence S.2Datiy 5.3. Linwar statisticalanalyses $4Replys aie ewee Se 6: DiscussionandConclusions FReferencs4. HAL NAR ee ‘Appeniiix't_Esthnationofpool:dimegsinasfomSMARTtaliiratidns, Appendix2. Radionileiorrepicsuntingtheefletofa land-use:oni ¥stscatnreach: % tetas ee yee ans eva: Fignies i BecaghAl oes cccoe ae CMa Nee Sav aw aD ee program oa. wee eee if exjlaniatory:variables. Ang4.setofindependent explanatory:yarinbles tate AMA YR ee wee Pm ey, Ch rue Wie ema Aree ake Dw Aa ee ae eae ed ee elle ase . ¥ Seay ey Aye $f A ee vk wes x f e A eee ee ne ek Aue cee eee ee Sg Abaca nare as Av adh ge hianwe Pr a ee a Aue a ba be es ae tae ye ew awa be anv adn te ws Be eee oeee tt » dor eae rote eo Tee eS ERY ae AN Ue ee yp we ae tore wea SH Law ve ute fae oe se WIN 8 BR ee ew a baw awe s ses ek Sty 22. ¥ a p e o e ’ Be Be ta s C123020 VeterB. Hayley Final Report P=0.03) anmagthe maineffects, It's sign was negative, indicatingthat the greatertheseverity of this activily had been, the greater the reduction insalmonicis over { year old. Model diagnosticsarecritical ip asveas the appropriatenessofthe clatistical procedureand assunintions. Theoretically, deviance residuals. are expevied io be appredmately normal (Pierce and Schwier 1986), 50 sindels producing large departures should be viewed with suapicion. A nomial prohebiliry plot ofthe deviance residuals suggestedreasonable cunforniity (Fig. 201.4 seound Wene ik the independents afthe data used. Aliboaghthe inverse distanve weighting effect gave more eorphasts to lend-oses occurring clasesto the samplesite, drainage ateas af several sample paints overlapped to varying degrees. Alsothelongitudinal movementof fish populations among adjaconl: sampled in the sane year maybe suflicient ty render thesamples nui-indepeniant statistically, Therefiare. spatial antocorrelation amiomg samples couid occur tc a devasthat the key asnunption of independence afsamples would bequestioned. To this end, the SMARTsamples were ardered secerdingto proximity ‘ax thefish swing’ and the corresponding devianwe residuals rons the model (Fig.Crested for spatial autecawrelation, ‘The mean. correlation among the comsccutively Alaced sanypleswas 0.14 with 4 standard error ofG15, so autocorrelation was notclose. to being significant. Asamatter ofhyterest, Fig 21 indicates throagh examples the predicted increase in sdlmonid densityin. swamerpools thal would beupected to occur ifthe prevailing negative effvets ont habktat of hydraalic migina: did not exist, Testing the Salmonid young-ofthe year (YOY) response withsimilar miadels did not prndddeanysignificant confficientsaf explanatory variables or their interactions. Similarly the survani width-todepth rutin responee usingsiniple linear madelsproduced no significanteffets, In both cases SOMcoetficionts sere in fact positive but not remotely significant at P05. §. Biseussion and Canclasions ghenrvativaal Getd data sets can never be expecied.ta prodace string resulteAnalyse.af catapared with laboratoryof fiekd experiments(Diamond 1986; Rose 1000). Thisis particularly wae when the sampliig study has not beendesignedto testthe. specific variable ofinterest, ‘However, there are ont realistic akernatives hecanac this varlable, suctiondredge: mining, cannot be costietied or sasily meusured overa sufficiently larger nuraber ofdiamagesta providea desigs: robust enengh igocount for confoursling factors and provide enough statistical power. ‘The seatistical analyses did notindicate that suction dredge miningbasao effect omthe three ja PN ge C123032 Berar B. Baviey Pinal Roprwt responses measunsl, juteather any effentthatmay exist could not bedetected at the commenly used Type } errarsaie of6.05. The fact thar the analysis was-able io detect a negative effect of another reining process, HM, an natee salmonids,is an indication ofthe jong-lasting eflect thar hydraulicodninghashad onthe environment, particularly on riparian zones andHoodplain sebtions in geomuorphically unconstrained reaches (Fig, 3}. ‘The readeris reminded ofthe effect ofsoule, Localized, shortereficets ofsuction dredge auninghave heen documented in a qualitative sense, However, on the scales ocoapied by Jishpopalatigns such ioeat disturbances would seeda strong cumulativeintensity ofmany amerations t0 have 4 mimasrable efter, Lewal information reveals chat moat section dradyeaniners more ar less short to guiielines tut have recently been formalizedbythe Forest Serview (Revit 1. Johnson and Jobs Nolan,pers, comms.) and generallyin the Gregan(Bernellef al. 2003), bar there art individual cases where egregious mismanagementofthe inmiediateenvironmenthas occurred, pardcolarty with respect io damaging river hanks in variaus ways, This analysiscanmat goncunt for individas! trausgressions, and ashulyta do oo al an appropriaie seale would be very espoasbes if feathde, Given that this analysis coukl aot detect an effect averaged over gece! andbad miners and that a morepowerfid atadywouldbe. very expensive,# woald seemthat public money wouldbe boltes spent cy gnnouraging compliance with current guidelines than.on fiether shudy. 7}. References Bayley, Po. J. Bolte, and 1. Rehmeier. 2001, Effeats of agricultural land-use on mativefish in theWillameltx basin. Final Report for NREUP-CSREESAward No. 97-35AOLA519 OREGUIO4. Febrasry 2001, Heheries& Wildlife Dept, Oregon State University, Corvallis, CHL Bernell, 0.7], Behan. acd B. Shetby. 2003. Recreational placer miningin the Gregon Srenic Waterway: ivsiem. Avassessment for the OyveonParksand Retreats Department, INR Potiey Paper 300301. fiatinde for Natural Rexeartred,“Oregon Staite University. Corvallis, OR. verview: laboratory experiments, field experiments, and natural experiments.Cleon, 3. 986 3-22, de J. Dhaenond and T. Case, editors, Community Ecelogy. Vol 14 RarperChapter 1. Pages & Row, hiew York. ba eS". Booking, and JR. irvine. 1992. Arobust arocedure fer estimaling asimon capeinen hased on the aronander-the-carve method, CanadianJoumal ofFisheriesandAquatic Ridenees 49; 10824080, Harvey, 2.07 and POE. Lasle. 1098, EAectsofsuction dredging am streams: « reviewand evaluation siategy. Fisheries (Bethesda) 23: 8-17. w e L y s i C123033 FROM THN UNITED STATES PRALS'FOR THENINTHCIROUIT UNITED staves AS SUPPORTING APPELLEE QUESTION PRESENTED Whether the California Coastal Commi ion can re.quire « quarry operator that conducts federally authorizedmining activities on federal land to obtain a State coastaldevelopment permit under California's coastal zone man-agement plan. am TABLE OF CONTENTS Interest of the United States Statement .. Introduction and summary of argument Argument: ‘The California Coastal Commission cannot impose state land use requirements upon s quarry operator thet conducts mining operations on federal land... A. The Coastal Zone Management Act’a federal lands exclusion exempts federal mining claims from regulation under etate coasta) management programs ........... B. Even in the absence of the CZMA’s foderal lands exclusion, the California Coastal Commission could not aoply its coastal management permit- ting requirementa to federally authorized activi- tiea conducted on federal] lands Conclusion... TABLE OF AUTHORITIES Cases: Amador Queen Mining Co. v. Dewitt, 78 Cal. 482.... American Petroleum Inatitute v. Knecht, 456 F. Supp. 889, aff'd, 609 F.2d 1866 .. Andrus Vv. Charlectons Stons Products Co., 436 U.S. 604 .. ~ Baillie v. Laracn, 138. F. i77 Bel Mar Eotates ¥. Caiifornta Coastal Comm'n, 115 Cal. App. 34 $86, 171 Cal. Rptr. 773 Black v. Elkhorn Mining Co., 168 U.S. Brubaker v. Board of County Commiasionera, 652 P.2d 1080 .. Butte City Water Ca. v. Baker, 196 Us. lis. Calhoun Gold Mining Co. v. Ajax Gold Mining C 182 US, 499... ~ California v. Secretary 812 ... w e n d »w 10 31 ~ 8 - S 8 2 8 8 8 wv ‘Cases—Continued: Camfteld v. United States, 167 U.S. 518 . . Chemica! Manufacturers Ass'n v. NRDC, No, 83- 1018 (Feb. 27, 1985) 15 | Chevron U.S.A.Ine. ¥. ; .S. 15, 4 ! Creede & Cripple Creek Mining and Milling Co. v. ' Uinta Tunna! Mining and Transportation Co.. | 196 U.S. 387 . : 25 i Eliott v, Oregon International Mining Co., 654 | P.2d 663 ....... 28 | FDIC ¥. Philadelphia Gear Corp., No. 84-1972 ' (May 27, 1986). 16 Hancock ¥. Train, 426 US.167 . 19, 21, 28 : Hillaborough County v, Automated Medical Labs, 1 Ine., No. 88-1926 (June 3, 1985) 2h i Hines v. Davidownts, 312 U.S. 52 ... aa 26 ! Holland Livestock Ranch v. United States, 655 F.2d 1002 ... 18 Japan Wheling Ass'n v. AmericanCetacean So- ciety, No. 86-954 (June $0, 1988) . 1 Kleppe ¥. New Mezico, 426 U.S. 529 9,11, 14,20, 24 Liberty ¥. California Coastal Comm'n, 118 Cal. App. 3d 49i, 170 Cal. Rptr. 247 19 Mayo ¥. United States, 310 U.S. 441 21 Minnesota v. Alezender, 430 U.S. 977 7 Mc. Kmmons Mining Co. v. Town of Create 690 P.2d 233. 28 North Bloomfield Gravel Mining Co. v. United States, 88 F. 664. 27 Omaccheverria v. Idako, 246 U.S. 34° 21 | Pacific Gar & Electric Co. v. State Energy Re- t sources Conservation and Development Comm'n, 461 U.S, 190... a Patterson ¥. Central Coasi Regional Coastal Zone Conservation Comm'n, 58 Cal. App. 34 833, 130 i Cat. Retr. 169 19 People v. Gold Run Ditch &@ Mining Co., 66 Cal. 138. 27 L Rea Enterprises ¥. Cakfornia Coastal Zone Con- servation Comm'n, 52 Cal. App. 3d 696, 125 Cal. Rptr. 201 ... 19 Ricev, Santa ¥¢ Elevator Corp., $81 U.S. 218. 25 Sitkwood v. Kerr-MeGee Corp. 464 U.S. 238. 7 v Cases—Continved : Page State ex rel. Andrus v. Click, 654 P.2d 969 ... 28 State ex rel. Cox v. Huard, 570 P.2d 1190 . . 28 Steel v. Smelting Co., 106 U.S. 447 25 Teller v. United Stetes, 118 F. 278 . 5 j Union Oil Co. v. 3h rton, 612 F.24 748. Ww United States v. ity of San Fraacisco, $10 U. 16 11, 20 United States v. oeman, $90 U.S. 599 16 United States v. Curtis-Neveda Mines, Inc. 611 F.2d 1277. 5,17 { United States y. Fickett, 205 F. 17 | United Statss v. Fuller, 409 U.S. 488 Bt) United States v. Gates of the Mountains Lakeshore Homes, inc., 732 F.2d 1411...... 6 Ww United States v. Goldfield Deep “Mines F 23 1307 5 United States v. Locke, No. 88-1894 (Apr. 1 1985) United States v. North BloomfeldGravel Mi Co., 5S F. 625 .. S 27 United States v. Nogueira, 408 F2a 816 ... 5 United States v. Riverside Bayview Homes, “Ine. No. 84-701 (Dee. 4, 1985) . we United States v. Weiss, 642 Fad 296 5 Utah Power & Light Co. ¥, United States, 248 US. 389 se @, 12, 14, 20, 21, 25 Ventura County ve Gulf Ow Corp. 601 F.2d 1080, aff'd, 445 U.S. 947 |... - 17,28Wilderness Socisty 7. Morton, 479 F: Renee vAilson V. Block, 108 F.2d 735...... sae.Woodruff v. North Bloom; ‘ld Gravel Mining Co., 38 F. 763 QTYoung v. Community Nutrition Inatitute, No. 85.664 (June 17, 1986) ..... a 14 ! Constitution,statutes, and reg-lationa: U.S. Const. : Art 1, §8 18Art. IV, $8, Cl. 2 (Property Clause) 8.20, 21, 25Ajaska National Interest Lands Conservation Act$102(2), 16 U.S.C. $102(2)... 12Caminetti Act, 83 U.S.C. 661 et seg. ar vt Constitution, statutes, and regulations—Coutinued: Page Coastal Zone Management Act of 1972, 16 U.S.C. (& Supp. Ti) 1451 etseg. 1 $803, 16 U.S.C. (& Supp.II) 1452 2 § $04, 16 U.S.C. 1468.(1). 16 $304 (a), 16 U.S.C. 1458(1) . passim $305, 16 U.S.C. 1456 _ 2 $305 (bh), 16 U.S.C. 1454 (h) 2 § 208(c), 16 U.S.C. 1465(c) 2 $306 (c} (1), 16 U.S.C. 1455 (c) (1) 215, 16 § 306(g), 16 U.B.C. 1455 (g) 15 § 307 (b), 16 U.S. 1456 (b).. 2 § 807 {c), 16 UBC. 1456(c) .. 3,9 § 207 (c) (3), 16 U.B.C. 1486 (c) (3) 6 § 807 (c) (1), 16 U.S.C. 1486 (c) (1) 8 § 307 (e)} (8) (A), 16 U.S.C. 1456 (c) (8) (A) 23 Federal Land Policy and Management Act of 1976, 43 U.S.C. (& Supp. I1) 1701 et 1,14, 22 43 U.S.C.1701 (m) (12) . 18,25 49 U.S.C. 1702(b) 22 48 U.S.C. 1712 (a) 22 48 U.3.C. 1712(c}(8) .. 23 45 UBC. 1712(€) (9) 9,22 43 USO. 1714. 23 43 U.8.C. 1744(a) 16 43 U.S.C. 1765(a) . 8 Forest and Rangeland Renewable Resources Plan- ning Act of 1974, 16 U.S.C. 1600 et seq. . 14, 22 16 U.S.C. 1604 _ 28 16 U.S.C. 1604 (a) 9,24 18 U.S.C, 1606 . 24 Minera! Leasing Act, 30 U.S.C. 181 efse: w 30 U.S.C. 22 ef seq. vw Constitution, statutes, and regulations—Continued : Page Multiple-Use Sustained-Yield Act of 11966, 16 U.S.C. 528 et seg. ro neeeenacne tsb 23Nationa’ Environ: Policy Act. # U.S.C.4321 et a2. ... BEEBE ane ba)National Forest Management Act of 1976, 16 U.S.C.1600 et reg. etl von4, 28 National Materials and Minerals Policy, Research, and Development Act, 80 U.S.C. 1601 et seg. 18Organic Administration Act of 1897, 16 USC. 471et req: 16 U.S.C. 4728. 1818 US.C, 478... 516 USC. 481... 2216 11.8.C. 487... 17 46 U.S.C. 551 ee 5Surface Mining Centeat and Reclamation Act, | U.S.C. 1201 ef aey.. $801, 38 USC. 1281 a 10$61 (a), 30 USC, 1281 (2) 28$ 601 (bi, 30 U.S.C.1281 (b) . 28§ 601 (c), 30U.S.C. 1281 (ce) ¥ — 28§ 603 (dj, 30 U.S.C 1981 (4) ve 29§ 601 (f), 30 U.S.C. 1980¢f) secre,§ 79114), 30 U.S.C, 1291 (4) 32 SUSC 558(0) — 1B28 U.S.C. 512. i828 U.S.C. 125402) 728 U.S.C. 2108 7$0 U.S.C. 21 2530 U.S.C.612 : - 5Catifornin Coastal Act of 1976, Cal Pub, Res. Code§§ 80000 e seq. (West 1977 & Supp. 1986). 1$880001-90002 3§ 30008 (Supp. 1986) 14,7§ 80106 .. 6§ 80108.6 (Supp.1986) . 4§§ 80200-S0005 g$§ 80510-30625 8§ 30600 (Supp. 1986). 3,19$§806C0{a) .. 30§80600(d) (Supp. 4 via Section 228.18 40 C.F.R. 1508.1 (a)(2) ... 4S CER.: Pt. 1600... Section 3809.0-2(¢).. Section 3809.8-1 (¢) Constitution,statutes, and regulations—Continued: Page § 30604 (b) (Supp. 1986) 4,19 § 30604 (d) (Supp. 1986) 4 Surface Mining and Reclamation Act of 1975. Put. Res. Code § 2710 et seq. (‘West 1984) 80 Cal. Health & Safety Code (West) : §$ 25168 (a) (1977) 30 § 40100 (1979) 80 $.42800 (1979) 30 Cal. Water Code (West 1871 & Supp. 1986 § 13200 . 30 30 30 30 coe 18, 16 2,9, 10 16 8 Section 930.51 .... 19 28 C.F.R. 0.25 13 36 C.F.R.: Pt 219. 24 Section 219.22 Pt 228... Section 2281 .... Sections 228.4-228.5 6 Sections 228.8-228.18 . Section 228.8 ( I|i || | 1 i Miscellaneous: Page Babbitt, Federaliem and the Environment: An Intergovernmental Perspective of the Sagebrush Rebellion, 12 Envtl. L, 847 (1982) Big Sur Coast, Land Use Pian, Local Coastal gram, Monetary County, Califorris (Apr. 10, 1986) .. 1 €, Lindley, ¢ 1914 118 Cong. Rec. 88548 (1972)... 122 Cong. Rec, 23448-23450 (1976) 42 Fed. Reg. 60586 (1977) ... HR. Conf. Rep. 92-1544, 92d Cong., (1972) .. LR. Rep, 94-1163, 4 2S HLR. Rep. 94-1078, 84th Cong., 2d Seas. (1978)HLR, Rep. 94-1724, 94th Cong., 2d Sens. (1976) HLR. Rep, 94-1735, 94th Coug., 2d Sess. (1976)Rocky Mountain Mineral Law Foundation, American Law of Mining (2d ed. 1985) : Vol. 1 .. Volo S. 3854, Stat Cong., 2d Sess. (970) 18. 3507, 92d Cong., 2d Seas, (1972) iW©. Rep. 91-1485, 91st Cong., 2d Seas. 13-14S. Rep. 92-788, 92d Cong, 2d Sees. (1972) 1,12S. Rep.98-686, 98d Cong., 2d Soes. (1974) 28, 24& Rep. 94-898, 94th Cong., 2d Sees. (1976 48. Rep. 84.683, 94¢h Cong., Ist Seas. (1976) - &U.S. Dep't of the Interior Bureau of Land Man. agement, Public Land Statistics 1985 - 3n the Supreme Court of the Anited States Ocrosrr Tex, 1986 No, 85-2200 CALIFORNIA COASTAL COMMISSION, ET AL., APPELLANTS v. GRaNITS Rock COMPANY ON APPEAL FROM TER UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FGR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLEE INTEREST OF THE UNITED STATES The United: States encourages state development of coasta) sone Management programs through the Coastal Zone Management Act of 1972, 16 U.S.C. (@ Supp. II) 1451 et seg. In addition, the United States manages fed- oral lands through various statutes, including the Federal Land Policy and Management Act of 1976, 43 U.S.C. (& Supp. II) 1701 ct seq., the Nationel Forest Management Act of 1976, 16 U.S.C. 1900 et seg., and the Forest and Rangeland Renewable Resources Planning Act of 1974, 16 U.S.C. 1600 wt seg. It specifically encourages hardrock mining on federal lands through the Mining Act of 1872, 30 U.S.C.22 et seq, STATEMENT Congress enacted the Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. (& Supp. IT) 1451 et seg, to encourage state development of coastal zone management programs. California later enacted the California Coastal Act of 1976 (Coastal Act), Cal. Pub. Res. Code $$ 30000 et seq. (West 1977 & Supp. 1986), which “shall constitute California's coastal sme management program within the coastal zone for purposes of the [CZMA]” (4 80008 (Supp. 1986)). The issue in this case is whether Granite Reck Company, a quarry operator that conducts limestone mining operations within the Los Padres National Forest i ay es in accordance with the Mining Aci of 1872, $0 U.S.C. 22 et seq., and Forest Service regulations, 36 C.F.R. Pt. 228, is subject to the California Coastal Act’s perm ing re- quirements, The district court concluded that it is. The court of appeals reversed, holding that federal law pre- cludes the application of state permitting requirements. la CZMA was enacted to encourage prudent resources through the development and im- plementation of state Mahagement programs for the 808, 16 U.S.C. 1452). Section 304 (a) “coastal sone” to include coasta? nda extending “seaward to the vuter limit af the United States territorial sea” and Department of Commerce regulations interpreting Section 804(a) require the states to xclude all federally-owned land from their coastal management programs.’ The CZMA authorizes tne Secretary of Commerce to provide financial assistance to the states for development of their coastal sone management Programs (§ 305, 16 U.S.C. 1454). The state program must be submitted for approval to the Secretary of Commerce. (4 806 (h}, 806(¢),16 U.S.C. 1464 (h), 1455 (c)), who assures that the views of the federal agencies principally affected have been adequately considered (§307(b), 16 U.S.C. 1456(b)), ‘Once the state management program is approved, federal activities “affecting” the coastal zone are subject to vari- ‘The pertinent regulation provides (15 CFR. $23.83 (2)}): Requirement. States must exclude from their coastal man-agement sone those lands owned, leased, held in trust or whoseuse is otherwise by law subject solely to the discretion of theFederal Government, its officers or agents, ous CZMA consistency requirements (1307(c), 16 U.S.C.1456(e)).* response to the CZMA’s coastal management incentives.‘The Coestal Act is intended to protect, : sure orderly development of Calitornis’s coastal sone re-sources (Coastal Act §§ 30001-20008). It epocifically re-quires that, “(1)n addition to obtaining any other permit required by law * * *, any peraon wishing to perform or must prepare a “local coastal program” (§ 80510-80525)which consista af the “local guvernment’s (a) landuse plans, (b) noning ordinances, {e) soning districtmaps, and (d) within smsitive coastal resources areas,other implementing actions, which, when taken together, wees ‘SOT(c) (2) of the CEMA apectiicalls provides that fed-agencte, *: or supporting activities tirectiy effectingthe coastal some shall conduct or support thoee activities fa aman.ner which ia, ty the maximum exteut practicable, consietent withapproved stats managument programs” (16 U.20. 1656(c)(1)).Department of Coamerce reguistions implementing this provision 4 i | | | 4 meet the requirements of” the Coastal Act at the local level (§30198.6 (Supp. 1986)). Once the California Coastal Commission certifies the local coastal program, the local government is responsible for issuing (or de- clining to insue) coasta! developmen’. permits (§ 80600 (d) (Supp. 1986)). The locai government may bran per- mit oaly if “the propcued development is in conformity Fe: certified cal coastal program” (§ 30604 (b) (Supp. 1986). 4 permit is not required for developments that He outside the coastal sone (§ 30604 (d) (Supp. 1986)). The California legislature specified that the Coastal Act “shall constitute California's cosstal zone manage Ment program within the coastal tone for Purposes of the (CZMAj" (Coastal Act § 30008 (Supp. 1986) ). California submitted the Coastal Act, together with other state lawe and programs, to the Secretary af Commerce for CZMA review Jn November 7, 1977, the Secretary of Commerce approved California’s coastal cone Management program. 42 Fed. Reg. 60585. See Amerioun Petroleum Institute v. Knecht, 456 F. Supp. 889, 915 (C.D. Cal. 1978), aff'd,€09 F.2d 1806 (9th Cir. 1979). 2 Granite Rock is 2 California corporation engaged inthe business of mining chemical grade white limestone.It presently holds unpatented federal mining claima underthe Mining Act of 1872, 30 U.S.C. 22 et 90q., on federallyowned lands within the Los Padres National Corest. JS.App. AZ! citizens of the United States” (90 U.S.C. 22). Persons who locatevaluable mineral iateresta und Properiy stake their claims “shel! 8 Granite Rock first proposed to develop its mining claims in 1980. The company submitted « five-year plan of op- erations to the Forest Service in accordance with federal Teguiations, set forth at 86 CFR. Pt. 228, governing ducted an environmental asscsament, and appreved a modified plan of operations in 1981 (id. at 35-57).Granite Rock initiated its open pit mining operationsshortly thereafter, The California Coastal Commission received notice of Granite Rock’s proposed plan of opera- tiona, but did not raise timely consister.cy objections, un- der Section 307 (c) (8) (A) of the CZMA,to Granite Rock's Proposal, Appelianta’ Br. 14, n.21; J.A. 17. 8. On October 17, 198%, the California Coastal Com: mission advised Granite Rock that the company’s mining activities oceur within California's coastal zene boundary * [Coatinmed} ‘The federal government retains broad powsr over lands wubjectto mining claims, See United States ¥. Locke, No. 83-1984 (Apr. 1.1986 °, alip op. ¥0. For example, the United Staten retains the rightte protect the land from trespass or waste. United States v.Nogusire, 108 Fd 016, 824 (Mh Cir. 1968); Teller ¥. United‘Stotes, 118 F. 378, 296-281 (8th Cir. 1901). The United States alooretaina rxtenaive authority to requlate the activity of the miningchaimant on ite unpatented claims United States v. Goldfield DeepMines Co.. 644 F.24 1907 (Sth Cir. 1961); United States v. Weiss,G42 F.2d 206 (9th Cir. 1981), Finally, lade eobject to an ompat.ented mining claim “remain open for pubiic wee except for therestrictions imposed where actual wising of prospecting operationsare taking place.” United States v. Curtis-Neveds Mines, Inc., 611F.2d 1277,1285 (9th Ciz, 1980) (footmote omitted). PAGE‘OF Environmental Assessment Proposed Plan of Operation for Oro Grande Mining Claim by Ken and Debbie McMaster USDA Forest Service Klamath National Forest Salmon River Ranger District Siskiyou County, Californi a Purpose and Need for Action Ken and Debbie McMaster submi tted a proposed plan of opera tion for the Oro Grande mining claim to the Sa lmon River Ranger District whi chwas received June 6, 1991. The plan states that they want to mine gold from gr avels in the South Fork of the Salmon River with a motorized suction dredge dur ing the normal dredging season. The normal o perating season runs from the last Saturday before Memorial day to Septemb er 15. During the operating p eriod, they plan to occupy and use a cabin, worksho p, and outhouse that are locate d on the mining claim. During the remainde r of the year, they plan on using the main cabin and workshop for storing mining equ ipment and supplies. The claim is located on the South Fork of the Salmon Rive r in the SW 1/4 of Section 13 and the SE 1/4 of S ection 14, T.37 N., R.10 W.,; MD M. It is approximately 1 1/2 miles west of Mountain Meadows Ranch. Th e Oro Grande mining claim is on public land which is part of the National Forest System and within the Trinity Alps Wilde rness. The oldest record of location for the mining claim was filed in 1934. The Oro Grande mining claim was relocat ed in 1953 and since then, has had annual proof of labor affidavits filed with Siskiyou County as required. T he location and proofs of labor have been d ocumented with the Bureau of Land Management. As required, there was a mineral e xamination of the elaim in 1990 which determined that the claim has a valid disco very. ‘ This Environmental Assessment will review the need for the disturbance to the surface resource caused by th e continued,occupancy and use of structures on the Oro Grande unpatented mining claim . Issues revealed by scoping whi ch are addressed by this docum ent are the following: , 1. the authorization to occupy and use existing permanent stru ctures during the active period of a part time mining operation. EXHIBIT {9 PAGE%OFGe __ 2. the authorization to use existing permanent structures t hroughout the year for storage of mining equipment and supplies for a part time mining operation. 3. the authorization to use existing permanent structures for occupancy and/or ‘storage for a part time mining operation that is within a one hour walk of a road. 4. the preservation of structures that may be t he last examples of a unique construction method. 5. the occupancy and/or use of structures retained f or their historical features. 6. meeting sanitation requirments of Siskiyou County. Issues which were considered and removed from this analysis: Authorization to use motorized equipment to mine withi n a wilderness. Policy found in the Forest Service Manual 232 3.72 directs that the Forest Service will ensure that mineral development ope rations will be conducted in accordance with valid existing rights for loca table minerals while preserving the wilderness resource to the extent possible. The Wilderness Act of 1964 authorized essential mechanized equip ment for mining within wilderness areas. Mr. McMaster has used a mo torized suction dredge on the claim since 1979. This:use predates the inc lusionof the area into a ‘wilderness. The use of the motorized suction d redge is an economical and effective method for the extraction of mineral va lues from underwater gravels for the small operation miner. Non-moto rized alternatives would require the stream to be dewatered by runnin g the water through some form ‘of flume system. The stream gravels would then be processed through a sluice box to recover the mineral values. This would be a return to more primitive methods found in early day mining acti vities. This would also be much more destructive to the stream environment than the suction dredging. Motorized suction dredging is a more reasonable method to recover mineral values from the under water gravels than to use m ore primitive mining methods. There is a short term disturbance to th e peace and solitude caused by the dredge engine. However, this is off set by the lack of major disturbance and long lasting impact to the ripar ian environment. Affected Environment The claim is about 1 1/2 miles west of Mounta in Meadow Ranch, which is on the Big Flat Road from Coffee Creek. Access to the claim is by foot trail along the South Fork of the Salmon River. It takes a bout one hour to walk from the trailhead to the claim. On that area of the Sou th Fork, there has been periodic mining for the last 140 years. Gold w as first discovered in the Salmon River in the 1850’s. During the late 1800’ s, the trail system along the South Fork was a major access into the. Salmon Riv er mines. The present mining claim was first located by Roy Latta and others in 1934. It was relocated in 1950 and renamed the Oro Grande by Roy Latta. It w as again relocated by Roy and Dorothy Latta on June 23, 1953. Since that time it hae had the proof of labor affadavits filed with the Siskiyou Count y as required, and proper documentation has been filed with the Bureau of Land Management which follows requirements of Section 314.(a)(1) and (2) of t he Federal Land Management Policy act of 1976. The Oro Grande claim is now owned by Marion Fawl who is the daughter of Roy and Dorothy Latta and is th e aunt of Ken McMaster. The , EXHIBIT __{5 PAGE OF to BLM Fonn 3060-) Lely 1984) MINERAL REPORT VALIDITY AND MINERAL CHARA FOR MINERAL PATENT OF THEORO GRANDE PLACER M UNITED STATES DEPARTMENTOFAGRICULTUREFOREST SERVICEKLAMATH NATIONAL FOREST BLM Case No.CACA 30673 CTER DETERMINATION INING CLAIM (CAMC 29103) LANDS INVOLVED: T.37N.,R. 10 W. Siskiyou County, California (cancelled 6/6/1 996), Mount Diablo MeridianSections 13 and 14; MS 6982 (Approximately 20 acres (8.1 ha)) *reparedby: MeKlD Dea Michael D. Dunn Regional Mineral Examiner Team USFSCertified Mineral Examiner #49 ZL- 16-06 Date 2A aA . ¢l wv. ey ke. fe ) 20 seLM Technical Approval: gt Y —J.R. Evans Senior Technical Minerals Specialist Certified Review Mineral Examiner #007 5-36-66 Date USFS Technical Approval: Richard W. Teifeira Regional Mineral Examiner Team Leader USFSCertified Review Examiner #023 2LEY,LOOL Date Management Acknowledgement: FiequskFie 4/70M6 ae Date ECONOMIC EVALUATION Mining Scenario I believe that the only viable methodfor mining the auriferous gravel in the active channel of the South Fork Salmon River is by suction dredging. The claimants may have prospected and explored adjacent bench gravel deposits but their primary activity ofrecent years has been in the active stream channel. Bench gravel/terrace deposits noted during the exam are quite large and would easily exceed yardages found in the active channel. Miningofthis -material would be considered ifmining ofthe active stream gravel did not support a discovery at the critical dates. Claimant Ken McMasterutilizes the samebasic suction dredge methods as mostother dredgers do. I find no reason to significantly modify his methods as described in the mining methodssection ofthis report for the purposeofthis evaluation except that I will add a low cost . _ “Blue Bow!”for recovery ofvery fine gold that maybe lost in the spoils from the claimant’s 4 spiral concentrator. This eliminates the need to pack out concentrates or to recover gold through 8 on site mercury amalgamation. Through information provided in the patent application and through personaldiscussions with claimants Ken McMaster and Steven Fawl, I learned that Ken McMasteris the primary i operator ofdredges on the claim. He almost always has a helper assisting him by tending the . dredge to clearjams, movespoils, reposition the dredge, and keep thesluice free ofrocks that hang up in the sluice. This assistant also helps with movingboulders in the river and as a “runner” for equipmentand supplies. In my opinion and from my-observations, mostfull-time oy dredging operations are at least two-person operations. The evidence suggests thata full-time # dredging operation on the Oro Grande PMC has been and would continue to be a two-person operation. I consider the Oro Grandeoperation to consist ofone experienced dredge operator and one helper rather than two experienced dredge operators because Ken McMasterdoesall of the nozzle operation himself. oe It is not uncommonfor an operator to develop several holes during the course ofa single season depending ontherecovery at a particular site. This could be a factorin estimating how much production time occurs during a 40-hour work weekifit takes a long time to develop a hole down to bedrock. Based on myobservations during samplingfor this evaluation, I found that the false bedrock can be reached in Jess than 15 minutes ofdredging. For this reason I feel confidentto assumethat all dredge operation time can be considered production time. Underthis scenario, I have found through my own experience, through observationsofthis and other operators, and through discussions with these and other dredge operators, that over a typical work week an efficient two-person crew would conduct an average ofat least 15 hours per week (3 hours per day) of non-production work. This non-production work includes time to transport supplies to the dredgesite, moving equipmentfrom sitetosite,site preparation including moving boulders, clearing rock plugs, sluice clean-up, processing concentrates, and repairs and maintenance. For an 8 hour work day, this leaves a maximum average of 5 hours per day for 4] EXHIBIT 15_ PAGE Cp_ OF be Lynne Saxton Saxton & Associates 912 Cole Street, Suite 140 San Francisco, CA 94117 Michael Lauffer State Water Resources Control Board P.O. Box 100 Sacramento, CA 95812-0100 Nathaniel H. Kane Environmental Law Foundation 1736 Franklin St., 9® FI, Oakland, CA 94612 Aaron Avila — Lane McFadden United States Department of Justice P.O. Box 7415, Ben Franklin Station Washington, DC 20044 Steven J. Lechner © Jeffrey W. McCoy Mountain States Legal Foundation 2596 South Lewis Way Lakewood, CO 80227 John Leshy | U.C. Hastings College ofLaw 200 McAllister Street San Francisco, CA 94102 Sean B. Hecht UCLASchool ofLaw 405 Hilgard Avenue Los Angeles, CA 90095 Mark Nechodom Department of Conservation 801 K. St., MS 24-01 Sacramento, CA 95814 John Mattox Department ofFish & Wildlife 1416 Ninth St., 12FI, Sacramento, CA 95814 Brook B. Bond L. Michael Bogert Parsons Behle & Latimer 800 W. Main Street, Suite 1300 Boise, ID 83702 Eric Biber U.C. Berkeley School ofLaw 689 SimonHall Berkeley, CA 94720 Carole A. Caldwell ~ Declarant