Natural Resource Damage Assessment: Methods and Cases

egulations divide the assessment procedure for NRDs into three phases: a preassessment phase,
a restoration planning phase, and a restoration implementation phase. See 15 C.F.R. § 990.12.
During the preassessment phase, the trustee must determine whether there has been a discharge
to which OPA applies. In the restoration phase, the trustee determines the type and degree of
injury to the natural resources and evaluates the restoration alternatives. One unique feature of
the NOAA rules is that, rather than including the economic value of interim lost use and passive
use, the rules focus the entire damage claim on the costs of restoration projects. This then
consists of “primary restoration,” which includes the restoration needed to return the injured
resource to its baseline condition, as well as “compensatory restoration,” which refers to
enhancing or restoring resources to compensate for interim losses of resource services, including
both use and passive use losses.
Finally, in the restoration implementation phase, the trustee selects and implements a
restoration alternative. When the trustee selects a restoration method, it is to evaluate a range of
alternatives for primary and compensatory restoration, including natural recovery. See 15 C.F.R.
§ 990.53. The six criteria that must be included when evaluating the different alternatives are:
(1) the cost to carry out the alternative
(2) the extent to which each alternative is expected to meet the trustees' goals and
objectives in returning the injured natural resources and services to baseline
and/or compensating for interim losses
(3) the likelihood of success of each alternative;
(4) the extent to which each alternative will prevent future injury as a result of
the incident, and avoid collateral injury as a result of implementing the
alternative
(5) the extent to which each alternative benefits more than one natural resource
and/or service
(6) the effect of each alternative on public health and safety (15 C.F.R.
990.54(a)).
Under the OPA regulations, trustees have the authority to enter into settlement
agreements of claims. See 15 C.F.R. § 990.25. In addition, if a trustee follows NOAA’s
regulations for NRD assessment, its determination under those regulations has “the force and
effect of a rebuttable presumption.” OPA § 1006(e)(2). And, like the DOI regulations, use of
the NOAA regulations is optional. See 15 C.F.R. § 990.11.
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