SMARA. Surface Mining & Reclamation Act Lawbook

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1 SMARA SurfaceMining& ReclamationAct Lawbook

2 Allrightsreserved. Harrison,Temblador,Hungerford&JohnsonLLP Thisbookmaybereproducedordistributedinwholeorpart,withcreditto BradJohnson,Harrison,Temblador,Hungerford&JohnsonLLP. 2801TSTREET,SACRAMENTO,CA95816 TEL(916) FAX(916)

3 SMARA SurfaceMining& ReclamationAct Lawbook

4 CONTENTS 2 About HTHJ LLP 3 Pending and Future Regulations 7 SMARA Processes 8 Reclamation Plan Review Process 9-10 Financial Assurances Review Process 11 Reclamation Plan Appeals Process 12 Financial Assurances Appeals Process 13 Annual Inspection Process 14 Enforcement Process 15 Financial Assurances Forfeiture Process 16 Lead Agency Takeover Process 17 SMARA Statutes 93 Annual Report and Fee Provision (PRC 2207) 100 Department of Conservation Organizing Provisions (PRC 600 et seq.) 105 State Mining and Geology Board Organizing Provisions (PRC 660 et seq.) 109 Public Resources Code General Definitions (PRC 2001 et seq.) 111 Mine Reclamation Account Report 113 SMARA Regulations 114 Article 1. Surface Mining and Reclamation Practice 120 Article 2. Areas Designated to be of Regional Significance 152 Article 4. Designation Appeal Procedures 155 Article 5. Reclamation Plan Appeals 160 Article 6. Mineral Resource Management Policies 161 Article 7. Financial Assurances Appeal Procedures 165 Article 8. Fees Schedule 170 Article 9. Reclamation Standards 179 Article 11. Financial Assurance Mechanisms 184 Article Forfeiture of Financial Assurances 187 Article 12. Administrative Penalty Petition Procedures 193 Article 13. Selection of Professional Service Firms 195 Article 14. Appeals of Orders to Comply with SMARA 198 Article 15. Vested Rights Determinations 198 Article 16. Mining Ordinances

5 ABOUT HTHJ LLP Harrison, Temblador, Hungerford & Johnson LLP ( HTHJ ) specializes in mining, land use, and natural resources law in California. HTHJ attorneys have helped shape mining law in California over the last 25 years, participating in leading and important cases concerning vested mining rights, environmental review of mining projects, and the scope and application of state and local mining regulations. Members of the firm have had the opportunity to work on mining projects across California, involving nearly every aspect of mine regulation under the State Surface Mining and Reclamation Act ( SMARA ) and other state and federal environmental laws. Harrison, Temblador, Hungerford & Johnson LLP is located in Sacramento, California.

6 PENDING AND FUTURE REGULATIONS

7 PENDING AND FUTURE REGULATIONS The changes to the Surface Mining and Reclamation Act (SMARA) enacted in Assembly Bill 1142 (Gray) and Senate Bill 209 (Pavley) require conforming changes to the SMARA regulations and other regulatory actions. The State Mining and Geology Board (SMGB) has been working on these regulations for the past year, and will continue that work through next year. Lead agencies, mine operators, consultants and other SMARA practitioners should watch for and participate in these rulemaking proceedings as they occur. SMGB Rulemaking Package No. 1. Fees Calculation and Schedule Code Section Affected Regulation , 3698, 3699 Explanation of Regulatory Action and Status As amended, Section 2207 increases maximum annual reporting fees from the statutory cap of $4,000 to a maximum $10,000 over a period of three years. The SMGB determined that the existing regulatory fee calculation formulas needed to be modified to provide for a more equitable fee schedule for relatively smaller operations. The SMGB has circulated draft regulatory changes for public review. The comment period closes November 13, The SMGB anticipates that the final changes will become effective April Financial Assurance Cost Estimate Form (a)(4) As amended, Section requires the DOC to adopt a standard FACE form for use by all mine operators when submitting a FACE for lead agency review. The SMGB adopted new section and a new FACE form (FACE-1) in April The new regulation and form became effective July 1, Inspections 2774(b), (c), (e) , New Inspection Training Program and Guidelines As amended, Section 2774 requires lead agencies to inspect each surface mining operation in intervals of no more than 12 months, specifies that annual inspections shall be conducted by certain registered professionals or qualified lead agency employees, and requires a lead agency to submit an inspection report to the DOC within 90 days after completing the inspection. As amended, Section 2774 also requires the DOC to establish a training program by December 31, 2017 for all surface mine inspectors. The training program must include a guidance document, to be developed by the DOC in consultation with the SMGB and stakeholders. 1 AllcodesectionreferencesaretothePublicResourcesCode,unlessotherwisenoted. 2 AllregulatorysectionreferencesaretoTitle14oftheCaliforniaCodeofRegulations,unlessotherwisenoted.

8 PENDING AND FUTURE REGULATIONS SMGB Rulemaking Package No. Code Section 1 Affected Regulation 2 Explanation of Regulatory Action and Status The SMGB has circulated draft regulatory changes for public review and submitted the final rulemaking package to OAL. The final changes will likely become effective January 1, Reclamation Plan and Financial Assurance Cost Estimate Appeals 2770(e) (g) Article 5. Reclamation Plan Appeals Article 7. Financial Assurances Appeal Procedures As amended, Section 2770 authorizes the DOC to appeal a lead agency s approval of a FACE. Amended Section 2770 also contains different time periods for the SMGB to provide notice of its decision on a reclamation plan or financial assurances appeal after hearing (10 days), and provides an operator a minimum 30 days to submit a revised FACE after an appeal hearing, rather than a maximum 30 days. The SMGB is working on draft regulatory changes. The SMGB has not provided a schedule for public review and adoption. 5. Financial Assurance Mechanisms (FAMs) (e)(3) FAM Bond Forms New Section directs the SMGB to adopt forms, as necessary, for operators use in submitting an FAM following lead agency approval of a FACE. The SMGB is required to adopt such forms by July 1, The SMGB has circulated draft forms for public review. The comment period closes on October 30, The SMGB anticipates that the final forms will become effective in early Vested Rights (a) Article 15. Vested Rights Determinations As amended, Section (a) removes the SMGB s authority to conducted vested rights determinations when the SMGB acts as a lead agency. The SMGB has circulated draft regulatory changes for public review and submitted the final rulemaking package to OAL. The final changes will likely become effective January 1, Revise Enforcement Process and Order to Comply (OTC) Appeals Process Article 14. Appeals of Orders to Comply with the Surface Mining and Reclamation Act of 1975 As amended, Section revises the SMARA enforcement process to include specific procedures and timelines. The SMGB is working on draft regulatory changes. The SMGB has not provided a schedule for public review and adoption.

9 PENDING AND FUTURE REGULATIONS SMGB Rulemaking Package No. 8. Revise Financial Assurance Forfeiture Process Code Section (b) Affected Regulation 2 Article 11. Forfeiture of Financial Assurance Explanation of Regulatory Action and Status As amended, Section specifies that a lead agency or the SMGB, when acting as lead agency, may initiate financial assurances forfeiture proceedings if either has evidence that an operator may be financially incapable of completing reclamation in accordance with its approved reclamation plan or that the operator may have abandoned the surface mining operation without completing reclamation. The SMGB will need to revise existing regulations to define the circumstances leading to a hearing and to address forfeiture in the context of reclamation versus remediation. The SMGB is working on draft regulatory changes. The SMGB has not provided a schedule for public review and adoption. 9. Corporate Bonding/Financial Tests New Regulations New Section authorizes mine operators to satisfy SMARA s financial assurance requirements in part through corporate self-bonding, but only after the SMGB adopts a regulation that establishes a comprehensive analysis and test of a corporation s financial status. The SMGB is working on draft regulatory changes. The SMGB has not provided a schedule for public review and adoption. 10. Financial Assurance Mechanisms (FAMs) (e)(3) FAM LOC, COD Forms As amended, Section requires the SMGB to formally adopt FAM forms. The SMGB anticipates that it will initiate the rulemaking process in November 2017, and anticipates final adoption of the revised forms in July Unassigned (f) Financial Assurances Guidelines As amended, Section directs the SMGB to revise its existing Financial Assurances Guidelines if necessary to conform with changes made to SMARA in Section and other sections. Note that the Financial Assurances Guidelines are exempt from the APA, which means that the SMGB is not required to follow formal rulemaking procedures if it chooses to revise the Financial Assurances Guidelines.

10 SMARA PROCESSES

11 RECLAMATION PLAN REVIEW PROCESS 1 Operator submits a complete reclamation plan application to the Lead Agency. PRC (a)(1) 2 The Lead Agency sends the complete reclamation plan application to the DOC as early as possible in its application review process, and certifies that the reclamation plan complies with: PRC (a)(1), (3) 3 DOC has 30 days incomplete. PRC (b)(1) 4A Application is Incomplete The operator must correct the deficiencies, and the Lead Agency must resubmit the application to the DOC. PRC (b)(3) 4B Application is Complete DOC has 30 days to prepare written comments, PRC (b)(2) Once a complete application is submitted to the DOC, the DOC has any time remaining in its initial completeness review period plus 30 days to prepare PRC (b)(3) 5 30 days prior to approving the reclamation plan. PRC (b)(5)(a) 6 Lead Agency must give the DOC at least 30 days intends to approve the reclamation plan. PRC (b)(6) 7 30 days PRC (b)(7)(A) 8 Within 60 days tion plan incorporating all modifications, and including binding mitigation measures necessary to meet approval or mitigation measures in an appendix to the reclamation plan. PRC (b)(7)(B)

12 FINANCIAL ASSURANCES REVIEW PROCESS 1 Operator must submit a FACE to Lead Agency for a new reclamation plan approval or approval of an amended reclamation plan. PRC (a) [new/amended reclamation plan FACE] For annual FACE updates, the operator must submit the FACE to the Lead Agency within 30 days after the Lead Agency conducts the annual inspection. PRC (d)(1)(A) [annual FACE] If the Lead Agency fails to conduct the inspection on the date requested by the operator or an alternate date set by the Lead Agency, the operator shall submit the annual FACE to the Lead Agency within 30 days after the applicable inspection date, unless the Lead Agency conducts the inspection within that time period, in which case the operator shall submit the FACE to the Lead Agency within 30 days after the inspection. PRC (d)(1)(B) [annual FACE] 2A Annual FACE If the submittal is the operator s annual financial assurance cost estimate, not in connection with a new reclamation plan or an amended reclamation plan, then within 60 days of receiving the FACE, the Lead Agency must: that it is adequate, complete, and consistent with Public Resources Code , Article 11 of the PRC (d)(2) [annual FACE] 2B New FACE The Lead Agency must review the financial assurance cost estimate and determine that it is adequate, complete, and consistent with: assurance guidelines. The Lead agency must submit the financial assurance cost estimate to the DOC after making the above determination. PRC (a) [new/amended reclamation plan FACE] 3 DOC has 15 days from the date of submission to notify the Lead Agency if the FACE is incomplete. PRC (b),(d)(4) 4A FACE is Incomplete The operator must correct the deficiencies, and the Lead Agency must resubmit the FACE to the DOC. The DOC s time to review and comment does not begin until it receives a complete FACE. PRC (b) [new/amended reclamation plan FACE] PRC (d)(4) [annual FACE] 4B FACE is Complete DOC has 45 days to prepare written comments, if it chooses to do so. PRC (c)(1) [new/amended reclamation plan FACE] PRC (d)(5)(A) [annual FACE] Once a complete application is submitted to the DOC, the DOC has 45 days to prepare written comments, if it chooses to do so. PRC (c)(1) [new/amended reclamation plan FACE] PRC (d)(5)(A) [annual FACE] 5 5

13 4A 4B 5 new or amended reclamation plan 30 days annual FACE 30 daysand30 days 6A Lead Agency Does Not Adopt DOC Comments 15 days 30 days 6B Lead Agency Adopts DOC Comments new or amended reclamation plan 30 days annual FACE 60 days 60 days 30 days new or amended reclamation plan 30 days annual FACE 60 days 30 days days 30 days 15 days -

14 RECLAMATION PLAN APPEALS PROCESS 1 Appeal filed with the State Mining and Geology Board (SMGB) by a person who can substantiate, based on evidence in the record, that a Lead Agency has: decision to deny approval of a reclamation plan; reliance on factors that are not applicable requirements under SMARA; a complete reclamation plan application; PRC 2770(e)(1) 2 The appeal must be filed within 15 days after exhausting Lead Agency administrative remedies. 14 CCR The SMGB can either hear the appeal or decide not to hear the appeal. PRC 2770(f)(1) 3A SMGB Declines Appeal No further administrative action. The appellant may pursue an action in the superior court. PRC 2770(f)(1) 3B SMGB Accepts Appeal The SMGB must hold a public hearing on the appeal within 45 days after filing, or longer period if agreed upon by the parties. PRC 2770(f)(2) 4A Reclamation Plan Adequate If the SMGB finds after hearing that the reclamation plan substantially meets the requirements of SMARA, the SMGB shall approve the reclamation plan. PRC 2770(g)(1)(A) 4B Reclamation Plan Not Adequate If the SMGB finds after hearing that the reclamation plan does not substantially meet the requirements of SMARA, the SMGB shall return the reclamation plan to the operator with a notice of deficiencies. PRC 2770(g)(2)(A) 5 The SMGB must provide notice to the Lead Agency, operator and Department of Conservation of its decision within 10 days after the hearing PRC 2770(g)(2)(B) 6 The SMGB must grant the operator, once only, a period of 30 days or longer period agreed upon by the operator and the SMGB to do both of the following: Agency for review and approval. PRC 2770(g)(2)(A)

15 FINANCIAL ASSURANCES APPEALS PROCESS 1A Appeal filed with the State Mining and Geology Board (SMGB) by a person who can substantiate, based on evidence in the record, that a Lead Agency has: decision to deny approval of financial assurances; reliance on factors that are not applicable requirements under SMARA; 1B Lead Agency s approval of financial assurances if the financial assurances are inadequate based on certain criteria. 2A The appeal must be filed within 15 days after exhausting Lead Agency administrative remedies. 2B The appeal must be filed within 15 days after exhausting Lead Agency administrative remedies. 3A The SMGB can either hear the appeal or decide not to hear the appeal. 3B The SMGB must hear 4A SMGB Declines Appeal No further administrative action. The appellant may pursue an action in the superior court. 4B SMGB Hears Appeal The SMGB must hold a public hearing on the appeal within 45 days after filing, or longer period if agreed upon by the parties. 5A Financial Assurances Adequate If the SMGB finds after hearing that the financial assurances substantially meet the requirements of SMARA, the SMGB shall uphold the financial assurances. 5B Financial Assurances Not Adequate If the SMGB finds after hearing that the reclamation plan does not substantially meets the requirements of SMARA, the SMGB shall note the deficiencies and include adequate cost estimates for each noted deficiency. 8 7 shall approve the 6 The SMGB must provide notice to the Lead Agency, within 10 days after the hearing, with instructions to the operator to submit a revised financial assurance cost estimate to the Lead Agency within a time period no less than 30 days after the hearing. The operator s failure to be grounds for issuance of an order to comply.

16 ANNUAL INSPECTION PROCESS 1 Inspections must occur in intervals of no more than 12 months. PRC 2774(b)(1) 2 The operator must request a date for the next annual inspection on the operator s annual report form. The requested date must be within 12 months of the prior inspection date. PRC 2207(a)(8) 3 operation on the date requested by the operator on the not able to conduct the inspection on that date, then operation on an alternative date set by the Lead provide the operator with a minimum of five days notice of the alternative inspection date. If the operator does not request an inspection date on inspection, and provide the operator with a minimum of five days notice of the inspection date. PRC 2774(c) 4 Annual inspections must be conducted by: PRC 2774(b)(1) 5 and a notice that the inspection has been completed within 90 days compliance with SMARA, but which were corrected before the submission of the inspection report to the compliance with SMARA, and which were not corrected response to any aspects of the operation found to be not in compliance with SMARA and that were not corrected before submission of the inspection report to PRC 2774(b)(1)

17 ENFORCEMENT PROCESS 1 If a Lead Agency or the Department of Conservation (DOC) determines, based on an annual inspection or after confirming by inspection, that a surface mining operation is not in compliance with SMARA, the Lead Agency or the DOC may issue a notice of violation (NOV) to the operator. PRC (a)(1) 2 If the Lead Agency or the DOC issues an NOV to the operator, the NOV must provide the following: the violation. The operator has 30 days after issuance of the NOV to complete the corrective actions. PRC (a)(1) Note: Issuance of an NOV does not disqualify an operator from eligibility for placement on the AB 3098 List. PRC (d)(4) 3 If the Lead Agency or the DOC determines that the time to correct the NOV will exceed 30 days, then the Lead Agency or DOC may enter into a stipulated order to comply (SOTC) with the operator. The SOTC must include a schedule and reasonable time for compliance. PRC (a)(2) Note: Issuance of an SOTC does not disqualify an operator from eligibility for placement on the AB 3098 list. PRC (d)(4) 5 unless the operator appeals the OTC within that time. If the Lead Agency issued the OTC, the operator must appeal operator must appeal the OTC to the State Mining and Geology Board (SMGB). PRC (a)(3)(B) 4 If the operator either does not correct the NOV within 30 days after issuance, or does not commit to enter into an SOTC within 30 days after issuance of the NOV, then the Lead Agency or the DOC may issue an order to comply (OTC) to the operator. PRC (a)(3)(A) Note: Issuance of an OTC does not disqualify an operator from eligibility for placement on the AB 3098 list. PRC (d)(4) 6 The Lead Agency or the SMGB shall hear the appeal within 45 days after filing, or a longer period if agreed upon by the operator and the Lead Agency, or the operator and the DOC, as the case may be. PRC (a)(3)(C) 7 If the Lead Agency or the SMGB denies the operator s appeal, then the surface mining operation shall be removed from the AB 3098 List within 10 working days thereafter, unless the operator agrees to enter into an SOTC that is consistent with the appealed OTC. PRC (d)(2), (3) 8 An operator that violates or fails to comply with an SOTC or an OTC shall be removed from the AB 3098 List. PRC (d)(1)

18 FINANCIAL ASSURANCES FORFEITURE PROCESS 1 If the Lead Agency, or State Mining and Geology Board when acting as lead agency, has evidence that an operator may be financially incapable of completing reclamation or may have abandoned the surface mining operation, the Lead Agency/SMGB shall conduct a public hearing to determine the same. PRC (b)(1) 2 Lead Agency/SMGB shall provide the operator and Department of Conservation (DOC) with notice at least 30 days prior to the public hearing. PRC (b)(1) 3 If, at the public hearing, the Lead Agency/SMGB determines that the operator is financially incapable of performing reclamation in accordance with its approved reclamation plan or has abandoned its surface mining operation, the Lead Agency or the DOC shall do all of the following: intends to take action to forfeit the financial assurances, and the reasons for doing so; assurances; and complete reclamation. PRC (b)(2) 4 If the forfeited financial assurances are insufficient to reclaim the surface mining operation in accordance with its approved reclamation plan, the Lead Agency or the DOC may use forfeited financial assurances to reclaim or remediate mining disturbances as appropriate for the site conditions as determined by both the Lead Agency and the DOC. The operator is responsible for the costs of completing reclamation in accordance with the reclamation plan or a remediation plan that are in excess of the forfeited financial assurances. PRC (b)(2)(C)

19 LEAD AGENCY TAKEOVER PROCESS 1 The State Mining and Geology Board (SMGB) shall commence takeover proceedings if a Lead Agency has: 2 The SMGB 45 days 3A Response Satisfactory 3B Response Not Satisfactory the SMGB 45 days notice of 4A No Deficiencies Identified At Hearing SMGB determines at the hearing that no 4B 5B 6B1 Deficiencies Identified At Hearing SMGB Remedial Plan Required The SMGB Remedial Plan Remedial Plan 6B2 Completed Not Completed SMGB SMGB that the Lead that the Lead Agency Agency has has not completed the completed the remedial plan, then it shall remedial plan, then take over the Lead 5A 6A 7A1 Immediate Takeover Action SMGB immediately takes over some or all of the The SMGB sooner than 3 years later to determine if the Lead Deficiencies Corrected SMGB that the Lead Agency has corrected the it shall restore some or all of the Lead 7A2 Deficiencies Not Corrected SMGB that the Lead Agency has not corrected the it shall not restore the Lead Agency s

20 SMARA STATUTES

21 SMARA STATUTES PUBLIC RESOURCES CODE ARTICLE 1. General Provisions [ ] (Article 1 added by Stats. 1975, Ch ) This chapter shall be known and may be cited as the Surface Mining and Reclamation Act of (Added by Stats. 1975, Ch ) (a) The Legislature hereby finds and declares that the extraction of minerals is essential to the continued economic well-being of the state and to the needs of the society, and that the reclamation of mined lands is necessary to prevent or minimize adverse effects on the environment and to protect the public health and safety. (b) The Legislature further finds that the reclamation of mined lands as provided in this chapter will permit the continued mining of minerals and will provide for the protection and subsequent beneficial use of the mined and reclaimed land. (c) The Legislature further finds that surface mining takes place in diverse areas where the geologic, topographic, climatic, biological, and social conditions are significantly different and that reclamation operations and the specifications therefor may vary accordingly. (d) The Legislature further finds that the production and development of local mineral resources that help maintain a strong economy and that are necessary to build the state s infrastructure are vital to reducing transportation emissions that result from the distribution of hundreds of millions of tons of construction aggregates that are used annually in building and maintaining the state. (e) The Legislature further finds and recognizes the need of the state to provide local governments, metropolitan planning organizations, and other relevant planning agencies with the information necessary to identify and protect mineral resources within general plans. (f) The Legislature further finds that the state s mineral resources are vital, finite, and important natural resources and the responsible protection and development of these mineral resources is vital to a sustainable California. (Amended by Stats. 2011, Ch. 218, Sec. 1. Effective January 1, 2012.) It is the intent of the Legislature to create and maintain an effective and comprehensive surface mining and reclamation policy with regulation of surface mining operations so as to assure that: (a) Adverse environmental effects are prevented or minimized and that mined lands are reclaimed to a usable condition which is readily adaptable for alternative land uses. (b) The production and conservation of minerals are encouraged, while giving consideration to values relating to recreation, watershed, wildlife, range and forage, and aesthetic enjoyment. (c) Residual hazards to the public health and safety are eliminated. (Added by Stats. 1975, Ch )

22 SMARA STATUTES It is not the intent of the Legislature by the enactment of this chapter to take private property for public use without payment of just compensation in violation of the California and United States Constitutions. (Added by Stats. 1975, Ch ) [Effective through Dec. 31, Amended S follows, effective January 1, 2018.] This chapter does not apply to any of the following activities: (a) Excavations or grading of lands conducted for farming. (b) Onsite excavation and onsite earthmoving activities that are integral and necessary for the construction of structures and that are undertaken to prepare a site for the construction of those structures, including landscaping or other land improvements associated with those structures, including the related excavation, grading, compaction, or the creation of fills, road cuts, and embankments, whether or not surplus materials are exported from the site, subject to all of the following conditions: (1) All required permits for the construction and any associated landscaping or related land improvements have been approved by a public agency in accordance with applicable provisions of state law and locally adopted plans and ordinances, including, but not limited to, the California Environmental Quality Act (Division 13 (commencing with Section 21000)). (2) The lead agency s approval of the construction project included consideration of the onsite excavation and onsite earthmoving activities pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000)). (3) The approved construction project is consistent with the general plan or zoning of the site. (4) Surplus materials shall not be exported from the site unless and until actual construction work has commenced and shall cease if it is determined that construction activities have terminated, have been indefinitely suspended, or are no longer being actively pursued. (c) Operation of a plant site used for mineral processing, including associated onsite structures, equipment, machines, tools, or other materials, including the onsite stockpiling and onsite recovery of mined materials, subject to all of the following conditions: (1) The plant site is located on lands designated for industrial or commercial uses in the applicable county or city general plan. (2) The plant site is located on lands zoned industrial or commercial or are contained within a zoning category intended exclusively for industrial activities by the applicable city or county. (3) None of the minerals being processed are being extracted onsite. (4) All reclamation work has been completed pursuant to the approved reclamation plan for any mineral extraction activities that occurred onsite after January 1, (d) Prospecting for or the extraction of minerals for commercial purposes where the removal of overburden or mineral product totals less than 1,000 cubic yards in any one location and the total surface area disturbed is less than one acre. (e) Surface mining operations that are required by federal law in order to protect a mining claim, if those operations are conducted solely for that purpose.

23 SMARA STATUTES (f) Any other surface mining operations that the board determines to be of an infrequent nature and that involve only minor surface disturbances. (g) The solar evaporation of sea water or bay water for the production of salt and related minerals. (h) Emergency excavations or grading conducted by the Department of Water Resources or the Central Valley Flood Protection Board for the purpose of averting, alleviating, repairing, or restoring damage to property due to imminent or recent floods, disasters, or other emergencies. (i) (1) Surface mining operations conducted on lands owned or leased, or upon which easements or rights-of-way have been obtained, by the Department of Water Resources for the purpose of the State Water Resources Development System or flood control, and surface mining operations on lands owned or leased, or upon which easements or rightsof-way have been obtained, by the Central Valley Flood Protection Board for the purpose of flood control, if the Department of Water Resources adopts, after submission to and consultation with, the department, a reclamation plan for lands affected by these activities, and those lands are reclaimed in conformance with the standards specified in regulations of the board adopted pursuant to this chapter. The Department of Water Resources shall provide an annual report to the department by the date specified by the department on these mining activities. (2) Nothing in this subdivision shall require the Department of Water Resources or the Central Valley Flood Protection Board to obtain a permit or secure approval of a reclamation plan from any city or county in order to conduct surface mining operations specified in paragraph (1). Nothing in this subdivision shall preclude the bringing of an enforcement action pursuant to Section , if it is determined that a surface mine operator, acting under contract with the Department of Water Resources or the Central Valley Flood Protection Board on lands other than those owned or leased, or upon which easements or rights-of-way have been obtained, by the Department of Water Resources or the Central Valley Flood Protection Board, is otherwise not in compliance with this chapter. (j) (1) Excavations or grading for the exclusive purpose of obtaining materials for roadbed construction and maintenance conducted in connection with timber operations or forest management on land owned by the same person or entity. This exemption is limited to excavation and grading that is conducted adjacent to timber operation or forest management roads and shall not apply to onsite excavation or grading that occurs within 100 feet of a Class One watercourse or 75 feet of a Class Two watercourse, or to excavation for materials that are, or have been, sold for commercial purposes. (2) This exemption shall be available only if slope stability and erosion are controlled in accordance with subdivision (f) of Section 3704 and subdivision (d) of Section 3706 of Title 14 of the California Code of Regulations and, upon closure of the site, the person closing the site implements, where necessary, revegetation measures and postclosure uses in consultation with the Department of Forestry and Fire Protection. (k) Excavations, grading, or other earthmoving activities in an oil or gas field that are integral to and necessary for ongoing operations for the extraction of oil or gas that comply with all of the following conditions: (1) The operations are being conducted in accordance with Division 3 (commencing with Section 3000). (2) The operations are consistent with any general plan or zoning applicable to the site.

24 SMARA STATUTES (3) The earthmoving activities are within oil or gas field properties under a common owner or operator. (4) No excavated materials are sold for commercial purposes. (l) (1) The immediate excavation or grading of lands affected by a natural disaster for the purpose of restoring those lands to their prior condition. (2) The immediate removal of material deposited by a flood onto lands being farmed for the purpose of restoring those lands to their prior condition. (Amended by Stats. 2016, Ch. 8 (SB 209). Effective January 1, 2017.) [Effective January 1, 2018.] This chapter does not apply to any of the following activities: (a) Excavations or grading of lands conducted for farming. (b) Onsite excavation and onsite earthmoving activities that are integral and necessary for the construction of structures and that are undertaken to prepare a site for the construction of those structures, including landscaping or other land improvements associated with those structures, including the related excavation, grading, compaction, or the creation of fills, road cuts, and embankments, whether or not surplus materials are exported from the site, subject to all of the following conditions: (1) All required permits for the construction and any associated landscaping or related land improvements have been approved by a public agency in accordance with applicable provisions of state law and locally adopted plans and ordinances, including, but not limited to, the California Environmental Quality Act (Division 13 (commencing with Section 21000)). (2) The lead agency s approval of the construction project included consideration of the onsite excavation and onsite earthmoving activities pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000)). (3) The approved construction project is consistent with the general plan or zoning of the site. (4) Surplus materials shall not be exported from the site unless and until actual construction work has commenced and shall cease if it is determined that construction activities have terminated, have been indefinitely suspended, or are no longer being actively pursued. (c) Operation of a plant site used for mineral processing, including associated onsite structures, equipment, machines, tools, or other materials, including the onsite stockpiling and onsite recovery of mined materials, subject to all of the following conditions: (1) The plant site is located on lands designated for industrial or commercial uses in the applicable county or city general plan. (2) The plant site is located on lands zoned as industrial or commercial or are contained within a zoning category intended exclusively for industrial activities by the applicable city or county. (3) None of the minerals being processed are being extracted onsite. (4) All reclamation work has been completed pursuant to the approved reclamation plan for any mineral extraction activities that occurred onsite after January 1, 1976.

25 SMARA STATUTES (d) Prospecting for or the extraction of minerals for commercial purposes where the removal of overburden or mineral product totals less than 1,000 cubic yards in any one location and the total surface area disturbed is less than one acre. (e) Surface mining operations that are required by federal law in order to protect a mining claim, if those operations are conducted solely for that purpose. (f) Any other surface mining operations that the board determines to be of an infrequent nature and that involve only minor surface disturbances. (g) The solar evaporation of sea water or bay water for the production of salt and related minerals. (h) Emergency excavations or grading conducted by the Department of Water Resources or the Central Valley Flood Protection Board for the purpose of averting, alleviating, repairing, or restoring damage to property due to imminent or recent floods, disasters, or other emergencies. (i) (1) Surface mining operations conducted on lands owned or leased, or upon which easements or rights-of-way have been obtained, by the Department of Water Resources for the purpose of the State Water Resources Development System or flood control, and surface mining operations on lands owned or leased, or upon which easements or rightsof-way have been obtained, by the Central Valley Flood Protection Board for the purpose of flood control, if the Department of Water Resources adopts, after submission to and consultation with, the Division of Mine Reclamation, a reclamation plan for lands affected by these activities, and those lands are reclaimed in conformance with the standards specified in regulations of the board adopted pursuant to this chapter. The Department of Water Resources shall provide an annual report to the department by the date specified by the department on these mining activities. (2) Nothing in this subdivision shall require the Department of Water Resources or the Central Valley Flood Protection Board to obtain a permit or secure approval of a reclamation plan from any city or county in order to conduct surface mining operations specified in paragraph (1). Nothing in this subdivision shall preclude the bringing of an enforcement action pursuant to Section , if it is determined that a surface mine operator, acting under contract with the Department of Water Resources or the Central Valley Flood Protection Board on lands other than those owned or leased, or upon which easements or rights-of-way have been obtained, by the Department of Water Resources or the Central Valley Flood Protection Board, is otherwise not in compliance with this chapter. (j) (1) Excavations or grading for the exclusive purpose of obtaining materials for roadbed construction and maintenance conducted in connection with timber operations or forest management on land owned by the same person or entity. This exemption is limited to excavation and grading that is conducted adjacent to timber operation or forest management roads and shall not apply to onsite excavation or grading that occurs within 100 feet of a Class One watercourse or 75 feet of a Class Two watercourse, or to excavation for materials that are, or have been, sold for commercial purposes. (2) This exemption shall be available only if slope stability and erosion are controlled in accordance with subdivision (f) of Section 3704 and subdivision (d) of Section 3706 of Title 14 of the California Code of Regulations and, upon closure of the site, the person closing the site implements, where necessary, revegetation measures and postclosure uses in consultation with the Department of Forestry and Fire Protection.

26 SMARA STATUTES (k) Excavations, grading, or other earthmoving activities in an oil or gas field that are integral to and necessary for ongoing operations for the extraction of oil or gas that comply with all of the following conditions: (1) The operations are being conducted in accordance with Division 3 (commencing with Section 3000). (2) The operations are consistent with any general plan or zoning applicable to the site. (3) The earthmoving activities are within oil or gas field properties under a common owner or operator. (4) No excavated materials are sold for commercial purposes. (l) (1) The immediate excavation or grading of lands affected by a natural disaster for the purpose of restoring those lands to their prior condition. (2) The immediate removal of material deposited by a flood onto lands being farmed for the purpose of restoring those lands to their prior condition. (Amended Stats. 2017, Ch. 521, Sec. 28 (SB 809). Effective January 1, 2018.) No provision of this chapter or any ruling, requirement, or policy of the board is a limitation on any of the following: (a) On the police power of any city or county or on the power of any city or county to declare, prohibit, and abate nuisances. (b) On the power of the Attorney General, at the request of the board, or upon his own motion, to bring an action in the name of the people of the State of California to enjoin any pollution or nuisance. (c) On the power of any state agency in the enforcement or administration of any provision of law which it is specifically authorized or required to enforce or administer. (d) On the right of any person to maintain at any time any appropriate action for relief against any private nuisance as defined in Part 3 (commencing with Section 3479) of Division 4 of the Civil Code or for any other private relief. (e) On the power of any lead agency to adopt policies, standards, or regulations imposing additional requirements on any person if the requirements do not prevent the person from complying with the provisions of this chapter. (f) On the power of any city or county to regulate the use of buildings, structures, and land as between industry, business, residences, open space (including agriculture, recreation, the enjoyment of scenic beauty, and the use of natural resources), and other purposes. (Amended by Stats. 1980, Ch. 800, Sec. 1. Effective July 28, 1980.) [Effective through Dec. 31, Amended S follows, effective Jan. 1, 2018.] (a) The Cache Creek Resource Management Plan, in conjunction with a site specific plan deemed consistent by the lead agency with the Cache Creek Resource Management Plan, shall be considered to be a functional equivalent of a reclamation plan for the purposes of this chapter. No other reclamation plan shall be required to be reviewed and approved for any excavation project subject to the Cache Creek Resource Management Plan that is conducted in conformance with an approved site specific plan that is consistent with the Cache Creek Resource Management Plan and the standards specified in that plan

27 SMARA STATUTES governing erosion control, channel stabilization, habitat restoration, flood control, or infrastructure maintenance, if that plan is reviewed and approved by a lead agency pursuant to this chapter. (b) For purposes of this section, the board of supervisors of the county in which the Cache Creek Resource Management Plan is to be implemented shall prepare and file an annual report required to be prepared pursuant to Section 2207, indicating the quantity of minerals produced. The board of supervisors of the county in which the Cache Creek Resource Management Plan is to be implemented shall be exempt from the payment of annual reporting fees imposed pursuant to paragraph (1) of subdivision (d) of Section A surface mining operator, acting under the authority of the Cache Creek Resource Management Plan, shall include in the operator s annual report required pursuant to Section 2207 the quantity of materials produced and shall be responsible for payment of annual fees associated with the quantity of minerals produced. (c) Nothing in this section precludes an enforcement action by the board or the department brought pursuant to this chapter or Section 2207 if the lead agency or the director determines that a surface mining operator, acting under the authority of the Cache Creek Resource Management Plan, is not in compliance with the requirements of this chapter or Section (d) For purposes of this section, site specific plan means an individual project plan approved by the lead agency that is consistent with the Cache Creek Resource Management Plan. Site specific plans prepared in conformance with the Cache Creek Resource Management Plan shall include, at a minimum, the information required pursuant to subdivision (c) of Section 2772, shall comply with the requirements of Article 9 (commencing with Section 3700) of Subchapter 1 of Chapter 8 of Division 2 of Title 14 of the California Code of Regulations, and shall be provided along with a financial assurance estimate to the department for review and comment pursuant to Section or , as applicable. Notwithstanding the number of days authorized by subdivision (b) of Section or subdivision (c) of Section , the department shall review the site specific plan and the financial assurance estimate and prepare any written comments within 15 days from the date of receipt of the plan and the estimate. (e) Prior to engaging in an excavation activity in conformance with the Cache Creek Resource Management Plan, a surface mining operation shall be required to obtain financial assurances that meet the requirements of Section Release of financial assurances shall comply with Section and the provisions of Article 11 (commencing with Section 3800) of Subchapter 1 of Chapter 8 of Division 2 of Title 14 of the California Code of Regulations. (Amended by Stats. 2016, Ch. 235 (SB1133). Effective January 1, 2017.) [Effective January 1, 2018.] (a) The Cache Creek Resource Management Plan, in conjunction with a site specific plan deemed consistent by the lead agency with the Cache Creek Resource Management Plan, shall be considered to be a functional equivalent of a reclamation plan for the purposes of this chapter. No other reclamation plan shall be required to be reviewed and approved for any excavation project subject to the Cache Creek Resource Management Plan that is conducted in conformance with an approved site specific plan that is consistent with the Cache Creek Resource Management Plan and the standards specified in that plan governing erosion control, channel stabilization, habitat restoration, flood control, or

28 SMARA STATUTES infrastructure maintenance, if that plan is reviewed and approved by a lead agency pursuant to this chapter. (b) For the purposes of this section, the board of supervisors of the county in which the Cache Creek Resource Management Plan is to be implemented shall prepare and file an annual report required to be prepared pursuant to Section 2207, indicating the quantity of minerals produced. The board of supervisors of the county in which the Cache Creek Resource Management Plan is to be implemented shall be exempt from the payment of annual reporting fees imposed pursuant to paragraph (1) of subdivision (d) of Section An operator, acting under the authority of the Cache Creek Resource Management Plan, shall include in the operator s annual report required pursuant to Section 2207 the quantity of materials produced and shall be responsible for payment of annual fees associated with the quantity of minerals produced. (c) Nothing in this section precludes an enforcement action by the board or the Division of Mine Reclamation brought pursuant to this chapter or Section 2207 if the lead agency or the supervisor determines that an operator, acting under the authority of the Cache Creek Resource Management Plan, is not in compliance with the requirements of this chapter or Section (d) For purposes of this section, site specific plan means an individual project plan approved by the lead agency that is consistent with the Cache Creek Resource Management Plan. Site specific plans prepared in conformance with the Cache Creek Resource Management Plan shall include, at a minimum, the information required pursuant to subdivision (c) of Section 2772, shall comply with the requirements of Article 9 (commencing with Section 3700) of Subchapter 1 of Chapter 8 of Division 2 of Title 14 of the California Code of Regulations, and shall be provided along with a financial assurance cost estimate to the Division of Mine Reclamation for review and comment pursuant to Section or , as applicable. Notwithstanding the number of days authorized by subdivision (b) of Section or subdivision (c) of Section , the Division of Mine Reclamation shall review the site specific plan and the financial assurance cost estimate and prepare any written comments within 15 days from the date of receipt of the plan and the estimate. (e) Prior to engaging in an excavation activity in conformance with the Cache Creek Resource Management Plan, a surface mining operation shall be required to obtain financial assurances that meet the requirements of Section Release of financial assurances shall comply with Section and the provisions of Article 11 (commencing with Section 3800) of Subchapter 1 of Chapter 8 of Division 2 of Title 14 of the California Code of Regulations. (Amended Stats. 2017, Ch. 521, Sec. 29 (SB 809). Effective January 1, 2018.) [Effective through Dec. 31, Amended S follows, effective Jan. 1, 2018.] (a) Any interested person may commence an action on his or her own behalf against the board, the lead agency, the State Geologist, or the director for a writ of mandate pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure to compel the board, the State Geologist, or the director to carry out any duty imposed upon them pursuant to this chapter. (b) For purposes of this section, person means an individual, firm, association, corporation, organization, or partnership, or a city, county, district, or the state or any department or agency of the state. (Amended by Stats. 2006, Ch. 869 (SB 668). Effective January 1, 2007.)

29 SMARA STATUTES [Effective January 1, 2018.] (a) Any interested person may commence an action on his or her own behalf against the board, the lead agency, the State Geologist, the supervisor, or the director for a writ of mandate pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure to compel the board, the State Geologist, the supervisor, or the director to carry out any duty imposed upon them pursuant to this chapter. (b) For purposes of this section, person means an individual, firm, association, corporation, organization, or partnership, or a city, county, district, or the state or any department or agency of the state. (Amended Stats. 2017, Ch. 521, Sec. 30 (SB 809). Effective January 1, 2018.) [Effective until January 1, 2019.] (a) Notwithstanding Section of the Government Code, the board shall submit to the Legislature on December 1 of each year a report on the actions taken pursuant to this chapter during the preceding fiscal year. The report shall include a statement of the actions, including legislative recommendations, that are necessary to carry out more completely the purposes and requirements of this chapter. (b) For purposes of ensuring compliance with Sections and of the Public Contract Code, the Division of Mine Reclamation shall, at a minimum, quarterly publish in the California Regulatory Notice Register, or otherwise make available upon request to the Department of General Services or any other state or local agency, a list identifying all of the following: (1) Surface mining operations for which a report is required and has been submitted pursuant to Section 2207 that indicates all of the following: (A) The reclamation plan and financial assurances have been approved pursuant to this chapter. (B) Compliance with state reclamation standards developed pursuant to Section (C) Compliance with the financial assurance guidelines developed pursuant to Section (D) The annual reporting fee has been submitted to the Division of Mine Reclamation. (2) Surface mining operations for which an appeal is pending before the board pursuant to subdivision (e) of Section 2770, if the appeal was not pending before the board for more than 180 days. (3) Surface mining operations for which an inspection is required and for which an inspection notice has been submitted by the lead agency pursuant to Section 2774 that indicates both compliance with the approved reclamation plan and that sufficient financial assurances, pursuant to Section , have been approved and secured. (4) Surface mining operations that meet all of the following: (A) The reclamation plan has been approved and is in compliance with this chapter. (B) The mining operation is in compliance with either of the following: (i) The approved reclamation plan.

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