NRDAR Practice Exchange

Background

Listed below is information on natural resource damage liability and natural resource damage assessment (NRDA), as well as federal statutes, regulations and available guidance.

Natural Resource Damages -- Liability, Assessment, Restoration

Liability for natural resource damages was first introduced in 1980 under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or “Superfund”). Under CERCLA and other federal laws and laws in more than 40 states, federal, state, local and tribal officials (natural resource “trustees”) may file claims on behalf of the public to recover damages from responsible parties to restore injured, destroyed or lost natural resources (land, fish, wildlife, biota, air, water, groundwater, drinking water supplies and resources).

Liability for NRDs is in addition to site remediation or “clean up” requirements and may include the costs to restore and/or replace the resource, compensation for lost uses (“services”) of the resource and trustee assessment costs.

Two sets of federal regulations (see below) provide the overall construct for performing natural resource damage assessments (NRDAs), both involving sequential phases of assessment and restoration. The overall goal of the NRDA process is to restore the services provided by injured natural resources to its baseline through restoration or replacement of the resource, or acquisition of an equivalent resource.

Federal Statutes

  • Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) as amended (42 U.S.C. §§ 9601, et seq.), including but not limited to sections 104, 107, 111(i), and 122
  • Oil Pollution Act (OPA) (33 U.S.C. §§ 2701, et seq.), including but not limited to sections 1006 and 1012
  • Clean Water Act (CWA) as amended (33 U.S.C. §§ 1251, et seq.), including but not limited to section 311(f)
  • Marine Protection, Research and Sanctuaries Act (MPRSA), 16 U.S.C. §§ 1431 et seq.
  • Park Systems Resource Act (PSRA)

Federal Regulations and Associated Guidance

  • U.S. DOI NRDA Regulations (CERCLA) "Type A" NRDA Regulations, 43 C.F.R. 11
  • U.S. DOI NRDA Regulations (CERCLA) "Type B" NRDA Regulations, 43 C.F.R. 11
  • U.S. DOI Guidance Documents
    • Bureau of Land Management, BLM Natural Resources Damage Assessment and Restoration Handbook, May 27, 2008
    • Documentation for Natural Resource Damage Assessment and Restoration Settlements and Covenants Not to Sue, May 7, 2004
    • Draft Type A Natural Resource Damage Assessment Model for the Great Lakes Environments, 1994
    • Guidance on Use of Habitat Evaluation Procedures and Suitability Index Models for CERCLA Application, 1986
    • Other Guidance and Department Policy Documents may be accessed at the US Department of Interior NRDA Restoration Program Website.
  • U.S. DOC/NOAA NRDA Regulations (OPA) NRDA Regulations 15 C.F.R. 990
  • U.S. DOC/NOAA Guidance Documents
    • Preassessment Phase: Guidance Document for Natural Resource Damage Assessment Under the Oil Pollution Act of 1990, the Damage Assessment Remediation and Restoration Program, NOAA, August 1996
    • Injury Assessment: Guidance Document for Natural Resource Damage Assessment Under the Oil Pollution Act of 1990, the Damage Assessment Remediation and Restoration Program, NOAA, August 1996
    • Specifications for Use of NRDAM/CME Version 2.4 to Generate Compensation Formulas: Guidance Document for Natural Resource Damage Assessment Under the Oil Pollution Act of 1990, the Damage Assessment Remediation and Restoration Program, NOAA, August 1996
    • Primary Restoration: Guidance Document for Natural Resource Damage Assessment Under the Oil Pollution Act of 1990, the Damage Assessment and Restoration Program, NOAA, August 1996
    • Restoration Planning: Guidance Document for Natural Resource Damage Assessment Under the Oil Pollution Act of 1990, the Damage Assessment and Restoration Program, NOAA, August 1996.
    • Other relevant Guidance Documents may be accessed at the NOAA DARRP Website.

Natural Resource Damage Assessment and Restoration (NRDAR) Federal Advisory Committee

The NRDAR FACA Committee, convened between 2005 and 2007, provided the Secretary of the US Department of the Interior (DOI) with recommendations regarding the Department's Natural Resource Damage Assessment and Restoration (NRDAR) activities, authorities, and responsibilities pursuant to the US DOI NRDA regulations. See Natural Resource Damage Assessment and Restoration Federal Advisory Committee Final Report (May 2007).

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