Section 228 - Suction DredgingThe Department has adopted this Section and Section 228.5 pursuant to Fish and Game Code Section 5653.9, and to make specific and otherwise implement Fish and Game Code Section 5653, specifically. Pursuant to that authority, the Department finds that suction dredging subject to and consistent with the requirements of Sections 228 and 228.5 will not be deleterious to fish.
(a) Suction dredging. For purposes of this Section and Section 228.5, the use of any vacuum or suction dredge equipment (i.e. suction dredging) is defined as the use of a suction system to vacuum material from a river, stream or lake for the extraction of minerals. These regulations do not apply to, prohibit or restrict nonmotorized recreational mining activities, including panning for gold.(b) Permit requirement. Every person who operates the intake nozzle of any suction dredge shall have a suction dredge permit in his/her immediate possession. Any amended permit shall also be in his/her immediate possession. Suction dredge permits shall be valid from the first day of the year for one calendar year or if issued after the first day of the year, for the remainder of that year. The Department will charge a fee for each suction dredge permit pursuant to Section 5653, subdivision (c), of the Fish and Game Code. Permits may be obtained at any Department license sales office. Any person with a qualifying disability under the Americans With Disabilities Act, who presents a Disabled Person DMV registration or other State, or Federal approved documentation of disability, and who requires assistance in operating a suction dredge may also apply for an assistant suction dredge permit. Any assistant suction dredge permit issued by the Department to such disabled person shall be in the disabled applicant's name and shall be issued at no charge. The disabled permittee must be present at the dredge site while the assistant is operating the suction dredge. The assistant shall have the assistant suction dredge permit in his/her immediate possession while assisting the disabled permittee in suction dredging activities. Any assistant may be prosecuted for a violation of the laws or regulations pertaining to suction dredging. The disabled permittee may be prosecuted for a violation of the laws or regulations pertaining to suction dredging committed by his/her assistant.
(c) Permit application. Suction dredge permit applications shall be made available at any Department license sales office using the Department's Automated License Data system. No suction dredge permit shall be issued by the Department unless an application has been completed by the permit applicant. A completed application shall contain all of the following information: (1) Identification and contact information for the permit applicant based on any of the following: (A) Any license document or identification number previously issued via the Department's Automated License Data System,(B) A valid driver's license or identification card issued to him or her by the Department of Motor Vehicles or by the entity issuing driver's licenses from the licensee's state of domicile,(C) U.S. Birth Certificate,(D) U.S. Certificate or Report of Birth Abroad,(E) Immigration and Naturalization Service American Indian Card,(F) Birth Certificate or passport issued from a US Territory,(H) U.S. Military Identification Cards (Active or reserve duty, dependent, retired member, discharged from service, medical/religious personnel), or(I) Certificate of Naturalization or Citizenship.(d) Permit Amendment. Applicants may amend suction dredge permits at a Department license sales office, at no additional cost, by submitting an amendment form providing the Department with their permit number and modifications or additions to the information specified in the original application.(e) Permits Requiring an On-site Inspection. Where an on-site inspection is required, a permit, or amended permit, is not valid until the permittee has contacted the appropriate Department Regional Office to arrange an inspection, the inspection has been completed and the Department has provided written approval of the proposed suction dredging.(f) Permits Requiring Notification Pursuant to Section 1602 of the Fish and Game Code. Where a notification is required pursuant to these regulations, a permit, or amended permit, is not valid until the permittee has in their possession documentation of compliance with Fish and Game Code Section 1602, subdivision (a), for the proposed suction dredging, including a copy of their notification to the Department; any response to the notification by the Department pursuant to Fish and Game Code Section 1602, subdivision(a)(4)(A)(i); and a Lake or Streambed Alteration Agreement if required.(g) Number of Permits. The Department shall issue a maximum of 1,500 permits annually, on a first-come, first-served basis.(h) Suction Dredge Reporting. Each permittee shall possess, maintain and submit to the Department a completed annual Report Card for each year that a suction dredge permit is held. The Report Card shall be received by the Department no later than the following January 15. The Department shall furnish the Report Card to all permittees when a permit is sold. Failure to timely submit the Report Card as required may result in revocation, suspension or non-issuance of any subsequent suction dredge permit issued to the permittee by the Department. The permittee shall be required to provide the following information on the Report Card:(1) The location of each site where the permittee operated the nozzle of a suction dredge. Pertinent information includes river, stream or lake name, county, nearest town or city, latitude and longitude or topographic map name with township, range, section and quarter section;(2) The dates of operation for suction dredging at each location;(3) The beginning and end times for operation each day, and(4) The nozzle size and horsepower for each suction dredge operated at each location. The permittee shall have the Report Card in his/her possession when suction dredging; the Report Card shall be up to date with required information during suction dredging, including information regarding prior and current suction dredging activity; and the permittee shall provide the Report Card to any Department representative for inspection upon request.
(i) Permit Revocation or Suspension. Any suction dredge permit or amended suction dredge permit may be revoked or suspended by the assistant chief of enforcement for any violation of the laws or regulations pertaining to suction dredging. The assistant chief of enforcement may, in his/her discretion, revoke or suspend the permit or amended permit based on past citations or convictions of such laws or regulations. Once a permit or amended permit has been revoked, no new suction dredge permit may be obtained by that person in the current year or for the calendar year subsequent to the revocation. An assistant chief of enforcement's decision to revoke or suspend a permit or amended permit may be appealed to the director. Any revocation or suspension of a permit or amended permit shall be in accordance with the following provisions: (1) Hearing When Permittee Convicted of Violation. In the case where the permittee has already been convicted of a violation of Section 5653 or 5653.3 of the Fish and Game Code or any regulation pertaining thereto permitted by said code, the assistant chief of enforcement shall schedule a hearing to consider the revocation or suspension of his/her permit: (A) Notification. The assistant chief of enforcement shall notify the permittee, by certified letter, of the intent to consider the revocation or suspension of his/her permit or amended permit at the hearing. The certified letter shall include the following information: 1. Name of permittee and last known address.2. Date, time and place of scheduled hearing,3. Reason for impending action, including a statement as to date and fact of conviction(s).4. A copy of Section 228, Title 14, California Code of Regulations.5. A statement that the permittee has the right to appear and to be represented by legal counsel.(B) Recording. The proceedings of the hearing shall be recorded by an electronic recording system.(C) Reading of Documents. At the hearing, the assistant chief of enforcement shall read the conviction documents. The Department shall provide the assistant chief of enforcement with the background information regarding the violation(s) and conviction(s) and shall submit into the record a copy of the document(s) which include(s) the facts of the conviction(s) of a violation of the regulation(s) or statute.(D) Statement by Permittee. The permittee shall make his/her statement regarding the violation(s) and conviction(s), and may argue that extenuating circumstances were such as to not warrant the loss of his/her permit or amended permit.(E) Questioning. The permittee or the Department personnel may be questioned by the assistant chief of enforcement.(F) Findings. At the conclusion of the hearing, the assistant chief of enforcement shall make a decision which contains findings or reasons for the proposed action.(G) Notification by Certified Mail. After the hearing, the assistant chief of enforcement shall provide the permittee, by certified mail, a copy of the final decision.(H) Appeal. The permittee may request an appeal in writing to the director within 30 days of the date of receipt of the assistant chief of enforcement's decision. The director shall respond to an appeal in writing within 45 days from receipt of notice of request to appeal.(I) Judicial Review. The permittee may request judicial review by filing a petition for writ of mandate in accordance with provisions of the Code of Civil Procedure within 30 days from the date of the decision. The record of the proceedings shall be prepared by the Department and delivered to the petitioner within 30 days after receipt of petitioner's request and upon payment of the fee specified in Section 69950 of the Government Code.(2) Hearing When Permittee Cited but Not Convicted. In the case where the permittee has not been convicted of a violation of Section 5653 of the Fish and Game Code or any regulation pertaining to suction dredging permitted by said code, but has been cited by the Department, the assistant chief of enforcement shall schedule a hearing to consider the revocation or suspension of his/her permit or amended permit. (A) Notification. The assistant chief of enforcement shall notify the permittee, by certified letter, of the intent to consider the revocation or suspension of his/her permit or amended permit at the hearing. The certified letter shall include the following information: 1. Name of permittee and last known address.2. Date, time and place of scheduled hearing.3. Reason for impending assistant chief of enforcement's action, including a concise statement of the acts or nonactions of the permittee which constitutes a violation of Section 5653 or 5653.3, of the Fish and Game Code or regulations made pursuant thereto.4. A copy of Section 228, Title 14, California Code of Regulations.5. A statement that the permittee has the right to appear and to be represented by legal counsel.(B) Recording. The proceedings of the hearing shall be recorded by an electronic recording system.(C) Presentation of Evidence. The permittee and the Department have the right to present evidence at the scheduled hearing as follows:1. Oral evidence shall be taken on oath or affirmation.2. Each party may call and examine witnesses, cross-examine opposing witnesses on any relevant matter, may rebut evidence against him/her, and may orally argue the matter.3. The hearing need not be conducted according to the technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons would rely in the conduct of serious affairs.4. The permittee or the Department may be questioned by the assistant chief of enforcement.(D) Findings. At the conclusion of the hearing, the assistant chief of enforcement shall make a decision based on the evidence presented at the hearing and shall issue written findings containing reasons for the decision and the evidence relied upon.(E) Notification by Certified Mail. After the hearing the assistant chief of enforcement shall provide the permittee, by certified mail, a copy of the final decision.(F) Appeal. The permittee may request an appeal in writing to the director within 30 days of the date of receipt of the assistant chief of enforcement's decision. The director shall respond to an appeal in writing within 45 days from receipt of notice of request to appeal.(G) Judicial Review. The permittee may request judicial review by filing a petition of writ of mandate in accordance with provisions of the Code of Civil Procedure within 30 days from the date of the director's decision. The record of the administrative proceedings shall be prepared by the Department and delivered to the petitioner within 30 days after receipt of petitioner's request and upon payment of the fee specified in Section 69950 of the Government Code.(j) Use of Suction Dredges in Lakes and Reservoirs. No suction dredging is permitted within the current water level in any lake or reservoir unless: (1) The Department has conducted an on-site inspection and approved the proposed suction dredging operation in writing;(2) The permittee has a valid suction dredge permit; and(3) The permittee has in their possession documentation of compliance with Fish and Game Code Section 1602, subdivision (a), for the proposed suction dredging operation, including a copy of the permittee's notification to the Department; any response by the Department pursuant to Fish and Game Code Section 1602, subdivision (a)(4)(A)(i), and, in the event a Lake or Streambed Alteration Agreement is required, authorization from the Department for the proposed suction dredging operations at the location specified in the permit application pursuant to subdivision (c). For purposes of this subdivision, suction dredging in any tributary river or stream in the exposed bed of any partially empty lake or reservoir shall be governed by the requirements in Section 228.5 for that tributary river or stream.
(k) Equipment Requirements. (1) Nozzle Restriction. No suction dredge having an intake nozzle with an inside diameter larger than four inches may be used unless: (A) The Department has conducted an on-site inspection and approved a larger nozzle size in writing; the maximum inside diameter of the intake nozzle is no larger than six inches, or eight inches where allowable under subdivision (k)(1)(E); and(B) The permittee has a valid suction dredge permit; and(C) The permittee has in their possession documentation of compliance with Fish and Game Code Section 1602, subdivision (a), for the proposed suction dredging operation, including a copy of his/her notification to the Department; any response to the notification by the Department pursuant to Fish and Game Code Section 1602, subdivision (a)(4)(A)(i); and specific authorization from the Department for a vacuum nozzle greater than four inches in diameter if a Lake or Streambed Alteration Agreement is required; or(D) Except as provided by subdivision (k)(1)(A), a constricting ring with an inside diameter not larger than four inches has been attached to the intake nozzle. This constricting ring must be of solid, one-piece construction with no openings other than the intake and openings not greater than one inch between the constricting ring and nozzle. It must be welded or otherwise permanently attached over the end of the intake nozzle. No quick-release devices are permitted.(E) Suction dredge intake nozzles up to eight inches in diameter may be permitted at the Department's discretion in accordance with subdivision (k)(1)(A) only on the following rivers: 1. American (Placer and El Dorado Counties);2. Cosumnes (Sacramento, Amador and El Dorado Counties);3. Feather (Butte, Plumas and Yuba Counties);4. Klamath (Del Norte, Humboldt and Siskiyou Counties);5. Merced (Mariposa and Merced Counties);6. Mokelumne (Amador, Calaveras and San Joaquin Counties);7. Scott (Siskiyou County);8. Trinity (Trinity and Humboldt Counties); and9. Yuba (Sierra, Nevada and Yuba Counties).(2) Hose Restriction. The inside diameter of the intake hose may not be more than two inches larger than the permitted intake nozzle size or constricting ring, whichever is smaller.(3) Pump Intake Screening. The intake for the suction dredge pump shall be covered with screening mesh. Screen mesh openings shall not exceed 3/32 inch (2.38 mm) for woven wire or perforated plate screens, or 0.0689 inch (1.75 mm) for profile wire screens, with a minimum 27% open area.(4) Suction dredges must include a containment system under the motor and fuel tanks. The containment system must be sufficient in size to completely accommodate the full volume of all fuel, lubricants and chemicals without overtopping or leaking.(l) Restrictions on Methods of Operation. (1) Motorized winching or the use of other motorized equipment to move boulders, logs, or other objects is prohibited, unless: (A) The Department has conducted an on-site inspection and approved the proposed suction dredging operations in writing; and(B) The permittee has a valid suction dredge permit; and(C) The permittee has in their possession documentation of compliance with Fish and Game Code Section 1602, subdivision (a), for the proposed suction dredging operations, including a copy of their notification to the Department; any response to the notification by the Department pursuant to Fish and Game Code Section 1602, subdivision (a)(4)(A)(i); and specific authorization from the Department for motorized winching if a Lake or Streambed Alteration Agreement is required.(2) Winching, whether motorized or hand powered, shall be conducted under the following provisions: (A) Boulders and other material may only be moved within the current water level. No boulders or other material shall be moved outside the current water level.(B) Winching of any material embedded on banks of streams or rivers is prohibited.(C) Winching of any material into a location which deflects water into the bank is prohibited.(D) Nets and other devices may be used to collect cobbles and boulders by hand for removal from dredge holes providing the materials are not removed from within the water level.(E) No woody streamside vegetation shall be removed or damaged. Trees of sufficient size and condition may be used as winch and pulley anchor points provided that precautions are taken to ensure that trunk surfaces are protected from cutting or abrasions and the tree is not uprooted.(3) No person shall operate the nozzle of a suction dredge and remove material within three feet of the lateral edge of the current water level, including at the edge of instream gravel bars or under any overhanging banks.(4) No person shall remove or damage streamside vegetation during suction dredge operations.(5) No person shall cut, move or destabilize instream woody debris such as root wads, stumps or logs.(6) No person shall divert the flow of a river or stream into the bank.(7) For the purpose of suction dredge mining subject to this section, no person shall construct a dam or weir, concentrate flow in a way that reduces the total wetted area of a river or stream, or obstruct fish passage; unless: (A) The Department has conducted an on-site inspection and approved the proposed suction dredging operations in writing; and(B) The permittee has a valid suction dredge permit; and(C) The permittee has in their possession, documentation of compliance with Fish and Game Code Section 1602, subdivision (a), for the proposed suction dredging operations, including a copy of their notification to the Department; any response by the Department to the notification pursuant to Fish and Game Code Section 1602, subdivision (a)(4)(A)(i); and specific authorization for the proposed activity if a Lake or Streambed Alteration Agreement is required.(8) No person shall import any earthen material into a stream, river or lake.(9) All fueling and servicing of dredging equipment must be done in a manner such that petroleum products and other substances are not leaked, spilled or placed where they may pass into the waters of the state.(10) No fuel, lubricants or chemicals may be stored within 100 feet of the current water level. Where this is not feasible, a containment system must be in place beneath the fuel, lubricants or chemicals. The containment system must be sufficient in size to completely accommodate the full volume of all fuel, lubricants and chemicals without overtopping or leaking.(11) Stream substrate, including gravel, cobble, boulders and other material may only be moved within the current water level.(12) No person shall displace any material embedded on banks of rivers or streams.(13) No person shall disturb any mussel bed. A mussel bed is defined as an area of any size where the density of mussels is 10 or more/square yard. Suction dredging activities, including deposition of tailings, shall not occur within 30 yards upstream of a mussel bed, nor within 10 yards laterally or downstream.(14) Reasonable care shall be used to avoid dredging silt and clay materials that would result in a significant increase in turbidity.(15) The permittee shall level all tailing piles, returning the site to the pre-mining grade to the greatest extent possible, prior to finishing use of the excavation site for the suction dredging season, or working another excavation site.(16) No person shall disturb any redds, actively spawning fish, amphibian egg masses or tadpoles. If encountered while operating a suction dredge, the permittee must cease operations and relocate dredging activities.(17) The willful entrainment of finfish, mollusks or amphibians is prohibited.(18) No person shall use wheeled or tracked equipment instream as part of suction dredging.(19) All suction dredge equipment shall be cleaned of mud, oil, grease, debris, and plant and animal material before use in a river, stream or lake.(20) Before relocating a suction dredge to another waterbody, water shall be drained from all equipment for at least two weeks or the suction dredge and associated equipment must be decontaminated. Decontamination must include pressure washing with water > 120 degrees Fahrenheit and/or chemical decontamination of all surfaces using bleach, vinegar, ammonia or potassium permanganate solution.(21) No person shall operate a suction dredge within 500' of another operating suction dredge. For purposes of these regulations, "operating" shall mean that the motor on the suction dredge is creating a vacuum through the vacuum hose and nozzle.(m) State Wildlife Areas and Ecological Reserves. Consistent with Title 14, Sections 550, subdivision (b)(10), and 630, subdivision (a)(1), of the California Code of Regulations, suction dredging is prohibited in State Wildlife Areas and Ecological Reserves.(n) Compliance with Other Laws. Nothing in any permit or amended permit issued pursuant to these regulations authorizes the permittee to trespass on any land or property, or relieves the permittee of the responsibility to comply with applicable federal, State, or local laws or ordinances.(o) Emergency Closure. The Department may initiate emergency regulatory action pursuant to Government Code Section 11346.1 to close any water to suction dredging.(p) Timing of Activity. Active suction dredging operations may only be conducted between 10:00 a.m. and 4:00 p.m.Cal. Code Regs. Tit. 14, § 228
1. New section filed 5-27-94; operative 5-27-94 (Register 94, No. 21). For prior history, see Register 81, No. 41.
2. Amendment of subsection (b)(1), new subsections (b)(2)-(3) and subsection renumbering filed 4-26-2001 as an emergency; operative 4-26-2001 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 8-24-2001 or emergency language will be repealed by operation of law on the following day.
3. Editorial correction adding HISTORY 2 (Register 2003, No. 9).
4. Reinstatement of section as it existed prior to 4-26-2001 emergency amendment by operation of Government Code section 11346.1(f) (Register 2003, No. 9).
5. Change without regulatory effect amending subsection (b)(1) filed 4-7-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 15).
6. Amendment filed 4-27-2012; operative 4-27-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 17).
7. Repealer of subsection (a), redesignation and amendment of subsection (a)(1) as subsection (a) and repealer of subsections (a)(1)(A)-(a)(2) filed 6-28-2013 as an emergency; operative 6-28-2013 (Register 2013, No. 26). A Certificate of Compliance must be transmitted to OAL by 12-26-2013 or emergency language will be repealed by operation of law on the following day.
8. Repealer of subsection (a), redesignation and amendment of former (a)(1) as subsection (a) and repealer of subsections (a)(1)(A)-(a)(2) refiled 12-26-2013 as an emergency; operative 12-26-2013 (Register 2013, No. 52). A Certificate of Compliance must be transmitted to OAL by 3-26-2014 or emergency language will be repealed by operation of law on the following day.
9. Repealer of subsection (a), redesignation and amendment of former subsection (a)(1) as subsection (a) and repealer of subsections (a)(1)(A)-(a)(2) refiled 3-24-2014 as an emergency; operative 3-27-2014 pursuant to Government Code section 11346.1(d) (Register 2014, No. 13). A Certificate of Compliance must be transmitted to OAL by 6-25-2014 or emergency language will be repealed by operation of law on the following day.
10. Certificate of Compliance as to 3-24-2014 order, including nonsubstantive amendment of NOTE, transmitted to OAL 6-20-2014 and filed 8-4-2014 (Register 2014, No. 32). Note: Authority cited: Sections 5653 and 5653.9, Fish and Game Code. Reference: Sections 5653.1, 5653.3, 5653.5, 5653.7, 5653.8 and 5653.9, Fish and Game Code.
1. New section filed 5-27-94; operative 5-27-94 (Register 94, No. 21). For prior history, see Register 81, No. 41.
2. Amendment of subsection (b)(1), new subsections (b)(2)-(3) and subsection renumbering filed 4-26-2001 as an emergency; operative 4-26-2001 (Register 2003, No. 9). A Certificate of Compliance must be transmitted to OAL by 8-24-2001 or emergency language will be repealed by operation of law on the following day.
3. Editorial correction adding History 2 (Register 2003, No. 9).
4. Reinstatement of section as it existed prior to 4-26-2001 emergency amendment by operation of Government Code section 11346.1(f) (Register 2003, No. 9).
5. Change without regulatory effect amending subsection (b)(1) filed 4-7-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 15).
6. Amendment filed 4-27-2012; operative 4-27-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 17).
7. Repealer of subsection (a), redesignation and amendment of subsection (a)(1) as subsection (a) and repealer of subsections (a)(1)(A)-(a)(2) filed 6-28-2013 as an emergency; operative 6-28-2013 (Register 2013, No. 26). A Certificate of Compliance must be transmitted to OAL by 12-26-2013 or emergency language will be repealed by operation of law on the following day.
8. Repealer of subsection (a), redesignation and amendment of former (a)(1) as subsection (a) and repealer of subsections (a)(1)(A)-(a)(2) refiled 12-26-2013 as an emergency; operative 12-26-2013 (Register 2013, No. 52). A Certificate of Compliance must be transmitted to OAL by 3-26-2014 or emergency language will be repealed by operation of law on the following day.
9. Repealer of subsection (a), redesignation and amendment of former subsection (a)(1) as subsection (a) and repealer of subsections (a)(1)(A)-(a)(2) refiled 3-24-2014 as an emergency; operative 3-27-2014 pursuant to Government Code section 11346.1(d) (Register 2014, No. 13). A Certificate of Compliance must be transmitted to OAL by 6-25-2014 or emergency language will be repealed by operation of law on the following day.
10. Certificate of Compliance as to 3-24-2014 order, including nonsubstantive amendment of Note, transmitted to OAL 6-20-2014 and filed 8/4/2014(Register 2014, No. 32).