Natural Resource Damage Assessment: Methods and Cases

“Natural resources” are defined in OPA as they are in CERCLA to include “land, fish,
wildlife, biota, air, water, groundwater, drinking water supplies, and other such resources”
managed, owned, or otherwise controlled by any level of government or an Indian tribe. OPA §
1001(20). Once damages are recovered under OPA, they must be used only for costs incurred
with respect to NRDs; they may not be placed in the general revenues. OPA § 1006(f).
One is liable under OPA for NRDs if one discharges oil “into or upon the navigable
waters or adjoining shorelines or the exclusive economic zone” of deep ocean waters. OPA §
1002(a). Exempt discharges are those that are permitted under a permit issued under federal,
state, or local law, those from a public vessel, e.g., one owned by the federal or state
government, and those from an onshore facility subject to the Trans-Alaska Pipeline
Authorization Act. OPA § 1002(c). In addition, there are several defenses to liability such as if
the discharge was caused by an act of God or an act of war. See OPA § 1003.
Like CERCLA, OPA imposes strict as well as joint and several liability. Also like
CERCLA, OPA has a three-year statute of limitations that begins to run when “the loss or the
connection of the loss with the discharge in question are reasonably discoverable with the
exercise of due care” or when the natural resource damage assessment is completed. OPA §
1017(f). Finally, OPA caps total liability, not just that for NRDs, depending on the type of
facility or vessel discharging the oil. See OPA § 1004. For example, offshore facilities are liable
for up to $75 million; onshore facilities are liable for up to $350 million.
Because there can be some overlap in coverage between OPA and the CWA, 15 C.F.R. §
990.15 makes clear that for oil discharges that would be covered under OPA, damage
assessments that begin after February 5, 1996 must follow the OPA regulations, not those
promulgated for CERCLA and the CWA, in order to obtain the rebuttable presumption. For
discharges that include a mixture of oil and hazardous substances, trustees must use the
CERCLA and the CWA regulations in order to obtain the rebuttable presumption. See id. §
990.15(c).
The measure of NRDs under OPA is slightly different than that under CERCLA. Under
OPA, a trustee can recover “(A) the cost of restoring, rehabilitating, replacing, or acquiring the
equivalent of, the damaged natural resources; (B) the diminution in value of those natural
resources pending restoration; plus (C) the reasonable cost of assessing those damages.” OPA §
1006(d)(1).
The National Oceanic and Atmospheric Administration (NOAA) promulgated the NRD
regulations under OPA. Because the NOAA regulations were drafted after the DOI regulations
by a different agency and under a different statutory mandate, there are some differences. For
example, in a situation where there is more than one trustee with jurisdiction to seek recovery of
NRDs, the NOAA regulations call for the designation of one or more “Lead Administrative
Trustees.” See 15 C.F.R. § 990.14(a)(1).
The stated goal of the NOAA NRD regulations is “the return of the injured natural
resources and services to baseline and compensation for interim losses of such natural resources
and services from the date of the incident until recovery.” 15 C.F.R. § 990.10. The OPA
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