The Cost of Certainty in Natural Resource Damage Assessment Under the Oil Pollution Act of 19901

2001 ◽  
Vol 2001 (1) ◽  
pp. 231-234 ◽  
Author(s):  
James Robert Greene
Keyword(s):  
Natural Resources ◽  
Natural Resource ◽  
Oil Pollution ◽  
Hedonic Price ◽  
The Public ◽  
Hedonic Price Models ◽  
Habitat Equivalency Analysis ◽  
Natural Resource Damage Assessment ◽  
Scaling Methods ◽  
The Cost

ABSTRACT Pursuant to the Oil Pollution Act of 1990 (OPA 90), natural resource trustees are empowered to seek recovery for damages to natural resources caused by discharges of oil and/or certain threats of discharges of oil. To determine the proper amount of damages, trustees undertake the process of “scaling,” which is an attempt to calculate the size of restoration actions that would be required to expedite recovery of injured natural resources to baseline and compensate the public for interim lost resources and services. Trustees utilize various scaling methods, including service-to-service methods, such as habitat equivalency analysis, and value-to-value methods, such as hedonic price models and contingent valuation. Regardless of the method chosen, however, the scaling is directly dependent on the level of injury caused by a spill. Disputes between trustees and those parties designated as responsible for the spill (responsible parties or RPs) often occur in determining the level of injury. In many cases, as a result of either these disputes or the trustees' desire to determine the precise level of injury, trustees undertake costly and time-consuming injury studies. These studies oftentimes are inefficient because the resulting gains in certainty often are achieved through disproportionately expensive studies relative to the resulting gains in restoration. In certain instances, attempts to achieve greater certainty can destroy an otherwise efficient and cooperative restoration effort and run contrary to the OPA 90 regulations. Such attempts also can lead to costly litigation for both the public and the RP involved. Lastly, attempts to achieve greater certainty during injury assessment can unnecessarily increase the scale of compensatory restoration because of delays in implementing restoration actions. Both trustees and RPs must recognize those instances in which achieving greater certainty leads to increased costs to both the public and the RP. In such situations, stipulating to certain injury assumptions can lead to overall net gains for both the public and the RP. These stipulations can be used to induce RPs to increase other aspects of the restoration, thereby increasing overall gains for the public at less cost to the RP.

scholarly journals Habitat and Resource Equivalency Analysis: 30 Years of Lessons Learned and a Look to the Future

2021 ◽  
Vol 2021 (1) ◽  
Author(s):  
Jeffrey Wakefield ◽  
Theodore Tomasi ◽  
Angeline Morrow ◽  
Christopher Pfeifer ◽  
Heath Byrd
Keyword(s):  
Natural Resource ◽  
Oil Spills ◽  
Oil Pollution ◽  
Lessons Learned ◽  
The Public ◽  
Habitat Equivalency Analysis ◽  
Natural Resource Damage Assessment ◽  
Creative Solutions ◽  
The Future ◽  
Technical Basis

ABSTRACT Natural Resource Damage Assessment (NRDA) under the Oil Pollution Act of 1990 (OPA) is a process used to determine the amount of compensation due to the public for natural resource injuries arising from oil spills. Two models, Resource Equivalency Analysis (REA) and Habitat Equivalency Analysis (HEA), are used in essentially all OPA NRDAs to compute compensatory restoration requirements. REA is applied when members of wildlife populations are injured: usually mortality or a loss of reproduction among a species of bird, turtle, marine mammal, or fish. HEA is used when habitats are injured: usually oiling of beaches, wetlands, or sediments. The models are often implemented in a cooperative setting with input from both the Responsible Party and the Trustees. In this setting the models provide a structure for organizing negotiations and identifying the types of agreements that need to be reached before restoration can be identified and “right sized.” The models also have a technical basis in economic theory that is fully justified, but only in particular, limited circumstances. This technical basis is the only means of assuring the Trustees, RPs, and stakeholders that the NRDA process has identified an appropriate level of compensation. When the circumstances of a spill do not approximate those in which HEA and REA are defensible, creative solutions are needed to adjust the models to the circumstances of the case if they are to provide a convincing basis for scaling restoration and reaching resolution. This paper identifies the circumstances under which REA and HEA are fully defensible as well as 35 years of evolving adjustments designed to make them “work” when applied to real-world cases they do not quite fit. We also look to the future and how climate change may alter restoration scaling.

WHERE RESPONSE MEETS NATURAL RESOURCE DAMAGE ASSESSMENT (NRDA)

2008 ◽  
Vol 2008 (1) ◽  
pp. 1153-1155 ◽  
Author(s):  
Jason Lehto
Keyword(s):  
Data Collection ◽  
Natural Resources ◽  
Natural Resource ◽  
Damage Assessment ◽  
Oil Pollution ◽  
Liaison Officer ◽  
Incident Command System ◽  
Incident Command ◽  
Natural Resource Damage Assessment ◽  
The Impact

ABSTRACT During oil spill incidents, NRDA and response activities may co-occur. This paper discusses those occurrences, focusing on ephemeral data collection and emergency restoration. Current laws provide some guidance for how these activities may be coordinated. The Field Operations Guide (FOG) and the National Contingency Plan (NCP) state that it is the responsibility of the Incident Commander (IC) to notify natural resource trustees of the incident and to coordinate NRDA representative's activities through the Liaison Officer. The FOG and NCP also state that it is the responsibility of the trustees to conduct their NRDA preassessment activities without hindering the response. The overlap between NRDA and response may be further complicated because many trustees may work within the environmental unit or the wildlife recovery unit for the response and also have the responsibility to work on NRDA. They may work in the Incident Command System advising the IC on response issues while also trying to initiate a damage assessment. Data collection during a response is critical for managing the incident as well as performing a thorough damage assessment. Although the types of data collected to aid the response may be similar to those used in damage assessment, often the scale and level of detail may be quite different. Even with these differences, synergies in ephemeral data collection may exist. Emergency restoration activities do sometimes occur before the response has concluded. The Oil Pollution Act regulations state that emergency restoration may occur if the action is needed to avoid the loss of natural resources, or to prevent any continuing danger to natural resources. If the trustees determine that emergency restoration is needed, they are required to consult with the IC prior to taking any such action. As an example, this paper will discuss emergency restoration actions undertaken during the Whatcom creek, WA gasoline spill to reduce the impact to migrating salmon.

scholarly journals THE SECOND GENERATION OF NATURAL RESOURCE DAMAGE ASSESSMENTS: LESSONS LEARNED?1

1993 ◽  
Vol 1993 (1) ◽  
pp. 727-731
Author(s):  
Randall B. Luthi ◽  
Linda B. Burlington ◽  
Eli Reinharz ◽  
Sharon K. Shutler
Keyword(s):  
Natural Resources ◽  
Oil Spill ◽  
Natural Resource ◽  
Damage Assessment ◽  
Oil Spills ◽  
Oil Pollution ◽  
Economic Valuation ◽  
Lessons Learned ◽  
General Counsel ◽  
Natural Resource Damage Assessment

ABSTRACT The Damage Assessment Regulations Team (DART), under the Office of General Counsel of the National Oceanic and Atmospheric Administration (NOAA), has centered its efforts on developing natural resource damage assessment regulations for oil pollution in navigable waters. These procedures will likely lower the costs associated with damage assessments, encourage joint cooperative assessments and simplify most assessments. The DART team of NOAA is developing new regulations for the assessment of damages due to injuries related to oil spills under the Oil Pollution Act of 1990. These regulations will involve coordination, restoration, and economic valuation. Various methods are currently being developed to assess damages for injuries to natural resources. The proposed means include: compensation tables for spills under 50,000 gallons, Type A model, expedited damage assessment (EDA) procedures, and comprehensive procedures. They are being developed to provide trustees with a choice for assessing natural resource damages for each oil spill.

Quantifying the Scale of Restoration Required to Compensate for the Impacts of the North Cape Oil Spill on Fish and Invertebrates

2001 ◽  
Vol 2001 (1) ◽  
pp. 661-665
Author(s):  
Deborah P. French McCay ◽  
Carol-Ann Manen ◽  
Mark Gibson ◽  
John Catena
Keyword(s):  
Natural Resources ◽  
Oil Spill ◽  
Natural Resource ◽  
Damage Assessment ◽  
Oil Pollution ◽  
The North ◽  
Natural Resource Damage Assessment ◽  
Baseline Conditions ◽  
The Impact

ABSTRACT The Oil Pollution Act of 1990 (OPA) seeks to make the environment and public whole for injury to or loss of natural resources and services as a result of a discharge of oil. This means that restoration projects implemented as part of a natural resource damage assessment (NRDA) must be of a sufficient scale to produce resources and services of the same type and quality and of comparable value to those that were lost. Services, for an NRDA, include both the ecological and human uses of the resources. Also, the loss must be quantified from the time of impact until the resource returns to baseline conditions—the level in the absence of the impact. This paper details a series of methods that may be used for scaling NRDA restoration projects and describes how these methods were used in the restoring the injuries incurred as a result of the North Cape oil spill.

THE INTRUSION OF CRIMINAL LAW ON THE NRDA PROCESS

2001 ◽  
Vol 2001 (2) ◽  
pp. 1143-1146
Author(s):  
Don A. Kane ◽  
Francis J. Gonynor
Keyword(s):  
Natural Resources ◽  
Oil Spill ◽  
Natural Resource ◽  
Damage Assessment ◽  
Oil Pollution ◽  
Criminal Investigation ◽  
Natural Resource Damage Assessment ◽  
Protective Orders ◽  
The Common ◽  
Responsible Party

ABSTRACT A primary goal of the Oil Pollution Act of 1990 (OPA 90) is to make the environment and public whole for injuries to natural resources that result from the discharge of oil. OPA 90 authorizes state and federal natural resource agencies to serve as trustees for natural resources and provides them with the responsibility, through a natural resource damage assessment (NRDA) process, to ensure that injured natural resources are restored. The National Oceanic and Atmospheric Administration (NOAA) promulgated damage assessment regulations, and in an attempt to correct deficiencies and meet OPA 90 mandates, developed a framework intended to promote expeditious restoration. To lessen the common litigious nature of the NRDA process, the regulations encourage active participation by a responsible party in a cooperative assessment of damages. Natural resource trustee agencies also have authority to enforce criminal aspects of other statutes for impacts resulting from an oil spill. However, when agencies initiate a criminal investigation under these statutes for an oil spill, the goals mandated in OPA 90 and set forth in the NOAA regulations can be substantially undermined. There are potential solutions that could, at least partially, resolve this dilemma for the responsible party to a point where participation in the NRDA process would not unduly prejudice its position in a criminal investigation. Such solutions might include written agreements as to communications and transactional use of immunity agreements, stay of proceedings, and protective orders, which singly, or in combination, could prove invaluable in preserving a progressive NRDA process, fully inclusive of the responsible party.

scholarly journals Linkages between Oil Spill Removal Activities and Natural Resource Damages

1991 ◽  
Vol 1991 (1) ◽  
pp. 377-383
Author(s):  
Richard W. Dunford ◽  
Sara P. Hudson ◽  
William H. Desvousges
Keyword(s):  
Natural Resources ◽  
Oil Spill ◽  
Natural Resource ◽  
Damage Assessment ◽  
Oil Spills ◽  
Oil Pollution ◽  
Open Water ◽  
Total Cost ◽  
The Cost

ABSTRACT The new Oil Pollution Act of 1990 defines natural resource damages from oil spills as the sum of the cost to restore foregone natural resource services, the diminution of value of natural resource services prior to restoration, and damage assessment costs. Natural resource damages are usually determined once removal activities (containment, protection, and cleanup) are completed. Nevertheless, removal activities affect the magnitude of all three natural resource damage components. Consequently, to minimize the total cost of oil spills, decisions on removal activities should consider the linkages between removal activities and natural resource damages. Successful containment results in minimal natural resource damages, because oil generally does far less damage to natural resources in open water than on shore. If oil cannot be contained, the potential natural resource damages from oil coming ashore in certain areas can help determine priorities for protection activities. In particular, oil may harm natural resource services much more in some areas than in others. Furthermore, some natural resource services are more costly to restore and assess than others. Finally, some cleanup activities do more harm than good to natural resource services. If the effects of cleanup activities on natural resource damages are ignored, “excessive” cleanup activities are likely.

scholarly journals Restoration Scaling Approaches to Addressing Ecological Injury: The Habitat-Based Resource Equivalency Method

2020 ◽  
Vol 65 (2) ◽  
pp. 161-177 ◽  
Author(s):  
Mary Baker ◽  
Adam Domanski ◽  
Terill Hollweg ◽  
Jason Murray ◽  
Diana Lane ◽  
...  
Keyword(s):  
Natural Resource ◽  
Oil Spills ◽  
Error Rates ◽  
Hazardous Substances ◽  
Habitat Equivalency Analysis ◽  
Natural Resource Damage Assessment ◽  
As Species ◽  
Ecological Habitat ◽  
Multiple Species ◽  
Species Specific

AbstractNatural resource trustee agencies must determine how much, and what type of environmental restoration will compensate for injuries to natural resources that result from releases of hazardous substances or oil spills. To fulfill this need, trustees, and other natural resource damage assessment (NRDA) practitioners have relied on a variety of approaches, including habitat equivalency analysis (HEA) and resource equivalency analysis (REA). The purpose of this paper is to introduce the Habitat-Based Resource Equivalency Method (HaBREM), which integrates REA’s reproducible injury metrics and population modeling with HEA’s comprehensive habitat approach to restoration. HaBREM is intended to evaluate injury and restoration using organisms that use the habitat to represent ecological habitat functions. This paper seeks to expand and refine the use of organism-based metrics (biomass-based REA), providing an opportunity to integrate sublethal injuries to multiple species, as well as the potential to include error rates for injury and restoration parameters. Applied by NRDA practitioners in the appropriate context, this methodology can establish the relationship between benefits of compensatory restoration projects and injuries to plant or animal species within an affected habitat. HaBREM may be most effective where there are appropriate data supporting the linkage between habitat and species gains (particularly regionally specific habitat information), as well as species-specific monitoring data and predictions on the growth, density, productivity (i.e., rate of generation of biomass or individuals), and age distributions of indicator species.

COMPARISON OF FEDERAL GUIDELINES FOR NATURAL RESOURCE DAMAGE ASSESSMENT OF A MAJOR OIL SPILL, ISLAND PARK, NEW YORK1

1987 ◽  
Vol 1987 (1) ◽  
pp. 533-540
Author(s):  
Gary L. Ott
Keyword(s):  
New York ◽  
Natural Resources ◽  
Oil Spill ◽  
Natural Resource ◽  
Computer Model ◽  
Damage Assessment ◽  
Type A ◽  
Natural Resource Damage Assessment ◽  
Chemical Spills ◽  
Federal Guidelines

ABSTRACT Federal guidelines that outline a process for natural resource damage assessment have recently been published. The guidelines provide two types of assessment procedures that are referred to as Type A assessments and Type B assessments. The Type A procedures are for simplified assessments and use a computer model to measure in monetary terms compensation for injury to marine and coastal natural resources through the use of average values and approximations. The proposed Type A computer model was used to analyze a major oil spill that occurred in Island Park, New York, where the federal on-scene coordinator had attempted to evaluate the magnitude and severity of the spill. In this one instance, both field observations and the proposed Type A computer model characterized this major oil spill as having a limited impact on the environment. Oil and chemical spills are generally characterized only by the size of the release. Conceivably, the proposed Type A model could be used as a tool for characterizing a spill by its potential to injure natural resources. The ability to focus on the environmental impacts of a spill may help analyze response actions that reduce natural resource damages.

Scaling Compensatory Restoration Under the 1990 Oil Pollution Act

1999 ◽  
Vol 1999 (1) ◽  
pp. 245-250 ◽  
Author(s):  
Theodore Tomasi ◽  
Mary Jo Kealy ◽  
Mark Rockel
Keyword(s):  
Cost Effectiveness ◽  
Oil Pollution ◽  
Cost Effective ◽  
Effective Solution ◽  
Scaling Technique ◽  
Restoration Project ◽  
Scaling Methods ◽  
The Cost ◽  
The Continuum ◽  
Compensatory Restoration

ABSTRACT A major feature of the Oil Pollution Act of 1990 (OPA 90) is a requirement that compensation be resource-based. This paper discusses the implications of resource-based compensation and the OPA 90 preference for narrowly-defined in-kind compensation. A framework is developed for evaluating compensatory scaling methods on the basis of the applicability of the method to the restoration project and the cost-effectiveness of the solution. The framework places potential compensation projects along a continuum, which ranges from strict in-kind compensation applied to small injuries to full out-of-kind compensation applied to large injuries. This conceptual framework is used to augment the existing techniques for scaling compensatory restoration, which otherwise appear to us to be limited to addressing only projects at the two ends of the continuum. The advantages of this framework are that it (1) avoids the either/or nature of the scaling choices in the current situation by offering techniques to scale compensation projects that fall in between the two ends of the continuum, (2) protects both Responsible Parties (RPs) and trustees against charges that scaling has taken place in an arbitrary manner, and (3) provides some guidance and criteria to determine when a particular scaling technique and related studies may be appropriate and lead to the most cost-effective solution.

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