Natural Resources Damages under the Oil Pollution Act Opportunities for Creative Restoration

OPA Intent and Goal 1 Make the public whole: – for natural resources (e.g., fish, wildlife, biota, air, water, land) that are injured and for the public’s loss of the use of those resources – by returning injured natural resources to their pre-spill condition and compensating for the interim loss – through the restoration, rehabilitation, or replacement of the damaged resources or acquisition of equivalent resources and/or services.

NRD Costs 1 Based on: – cost of restoring injured natural resources (not punitive) – loss in value or use of those natural resources pending restoration – reasonable costs of assessing those damages

Restoration Types & Examples 1 Primary – restore, rehabilitate, or replace – direct, on-site, same kind Clean, reseed oyster bed on site Build new oyster reef nearby Compensatory – replace or acquire the equivalent – Indirect, off-site, may or may not be same kind Protect estuarine habitat elsewhere

Creative Approaches 1 Exxon Valdez, Alaska – Otolith marking of hatchery salmon allowed near real-time management of mixed wild/hatchery pink salmon fishery in Prince William Sound – Rapid genetic analyses of sockeye salmon allowed near real- time management of mixed stocks destined for different rivers North Cape, Rhode Island – Lobstermen paid to clip female lobster tails – No harvest until molting completed – Molted lobsters meant they reproduced

Compensatory Restoration 1 Compensation for lost use can be significant Goal is to compensate public, not individuals Individuals are compensated for lost income through the courts or other means (not NRDA) Acquisition of equivalent resources is typical approach to compensatory restoration What does this mean in a marine context?