Volume III, Appendices EM - National Marine Fisheries Service ...

Federal, State, or local governmental officials, during their official duties, provided the take is for
the welfare and protection of the animal or public health. Accordingly, the FOSC/UC is
authorized to take marine mammals during an oil-spill response if to protect the welfare of the
animal. Section 12(c) of the MMPA allows NMFS to enter into cooperative agreements (e.g.
Stranding Agreements) that allow stranding network participants marine mammal take in order to
carry out the purposes of the MMPA. The ESA and its implementing regulations provide special
provisions for consultations during emergencies (such as oil spills) with FWS and/or NMFS for
making recommendations to the FOSC to avoid the taking of listed species or to otherwise
reduce response-related impacts. In some State statutes, management and protection of wildlife
resources are joint responsibilities between NMFS, FWS and the State. Because of these shared
trust responsibilities, both federal and state agencies are required to respond to spills, or potential
spills, that may impact marine mammals. To facilitate efficient and effective coordination during
an oil spill response, federal and state agencies may consider developing Memorandums of
Agreement (MOA’s) or Memorandums of Understanding (MOU’s) that pre-designate regional
primary points of contact, establish lead representatives, and define roles for natural resource
emergency situations.
In the wake of the Exxon Valdez spill, Congress passed the Oil Pollution Act of 1990 (OPA 90).
OPA 90 sets forth an extensive liability scheme that is designed to ensure that, in the event of a
spill or release of oil or other hazardous substance, the responsible parties are liable for the
removal costs and damages that result from the incident. A responsible party may be liable for
removal costs and damages to natural resources, real or personal property, subsistence use,
revenues, profits and earning capacity, and public services. OPA 90 also set aside a significant
trust fund that can be utilized quickly to implement a spill response prior to establishment of
liability.
OPA 90 directs the appointed trustees to conduct natural resource damage assessments (NRDAs)
and develop and implement plans to restore, rehabilitate, or replace damaged natural resources.
Authority to claim damages to natural resources also stems from Clean Water Act (CWA) and
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Under
the CWA, federal and state agencies with diverse jurisdictions and missions are directed to
combine their response and planning efforts in the event of an oil spill or release of another
hazardous substance under the aegis of a National Contingency Plan (NPC) or an Area
Contingency Plan (ACP). An Area Contingency Plan must provide for efficient, coordinated, and
effective action to minimize damage from oil and hazardous substance discharges. In so doing, an
ACP assigns duties and responsibilities to various federal and state agencies, provides for
maintenance of necessary equipment and supplies, and establishes Coast Guard strike teams with
specialized training in oil and hazardous substance control. In addition, an ACP is designed to
provide for surveillance and notification systems to detect oil spills as early as possible. Further, an
Area Contingency Plan is to provide for a specific fish and wildlife response plan, developed with
the advice of expert agencies, to minimize disruptions to fish and wildlife and their habitat.
Regional and Area Contingency Plans can be located at the U.S. National Response Team website
(www.nrt.org) and the USCG website: (http://www.uscg.mil/vrp/acp/acp.shtml).
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