Views
5 years ago

Natural Resource Damage Assessment: Methods and Cases

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 89

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. 90

Natural Resource Damage Assessment
Overview of Natural Resources Damage Assessment and Restoration
Natural Resource Damage Assessment Plan for the Tittabawassee ...
Natural Resource Damage Assessment: An Economic Perspective
Natural Resource Inventory and Assessment - Town of Guilford
Resource Assessment Methods for Sustainable ... - FloraWeb
Natural Resources Damages: - American Association of Port ...
DIAMOND ALKALI SUPERFUND SITE NATURAL RESOURCE ...
Disaster Damage Assessments
New Tools, Methods, and Approaches in Natural Resource ... - Icrisat
Natural Resources
Assessment of Agricultural Flood Damages Along the James River ...
Colorado Wildlife Habitat Assessment Project - Natural Resource ...
Restoration as a Means of Compensating for Damages to Natural ...
Arkansas Natural Resources Commission
Iowa Fishing Regulations - Iowa Department of Natural Resources
Module 2 - Research Methods - Natural Resources Institute
Seychelles Damage, Loss, and Needs Assessment (DaLA ... - GFDRR
South Fork, Iowa - Natural Resources Conservation Service
Research to impact case studies for natural resource ... - IRRI books
CAREER OPPORTUNITIES - College of Natural Resources ...
Assessing Damage, Urging Action - Eminent Jurists Panel ...
Resource assessment methods for sustainable ... - FloraWeb
V - Missouri Department of Natural Resources
Largemouth Bass - Department of Natural Resources
meet business – natural resources - Incight
Assessing Damage, Urging Action, 2009 Report of
Guide to Freshwater Fishes - Department of Natural Resources ...