Deepwater Horizon: Claims for Impacts to Oyster Industry/Resources under the Oil Pollution Act of 1990 Oyster Advisory Committee Meeting October 15, 2010

Oil Pollution Act of 1990   The Oil Pollution Act of 1990 (OPA)   Makes Responsible Parties liable for damages caused by oil spills – whether caused by direct oiling or response activities   Claims for damages for oyster resources include both private and public claims   Private Claims   May be settled through the BP Escrow Fund   Public Claims   Public Claims for natural resources damages done through Natural Resources Damages Assessment (NRDA) – process results in restoration of environment to pre-spill conditions   Public Claims for lost revenues and increased public services pursued through settlement or litigation – results in financial compensation

Private Claims under OPA   Damages to Real or Personal Property 1 Oyster farmers leasing Public Waterbottoms have exclusive use of leased areas and oysters therein. Damages claim against any person damaging the leased bed or ground Claim for diminution in leasehold value Claim for loss of seed oysters Potential claim for restoration of improvements installed by leaseholder 1 33 U.S.C. § 2702(b)(2)(B).

Private Claims under OPA   Profits and Lost Earning Capacity 1 Claim under OPA for lost profits and impairment of earning capacity Can be claimed by both oyster farmers and fishers Claim may overlap with claim for real or personal property damage 1 33 U.S.C. § 2702(b)(2)(D).

Private Claims under OPA   Subsistence Use 1 Person may claim loss of subsistence use of natural resources without regard to ownership Recreational fishermen can take up to two sacks per day from public grounds, and may claim that some or all of this allotment is used for subsistence 1 33 U.S.C. § 2702(b)(2)(C).

Public Claims under OPA   Claims Under NRDA 1 Primary Restoration- restoring the resource and ecosystem functions to pre-spill levels Compensatory Restoration- restoration compensating for temporal loss of resource Assessment Costs- cost of assessing injury to natural resources 1 Compensation under NRDA comes in the form of the funding of a restoration plan as opposed to monetary damages.

Other Public Claims under OPA   Lost Revenue Taxes paid for oyster sales, Rents/leasehold payments, Severance taxes, Other fees   Increased Public Services Costs Net costs of providing increased or additional public services caused by the discharge of oil during or after removal activities Ex: Non-NRDA monitoring for purposes of public safety or fishery management