ASSESSING NATURAL RESOURCE DAMAGES FOR COMMERCIALLY AND RECREATIONALLY HARVESTED POPULATIONS

Resource Equivalency Analysis (“REA”) is often used to “right-size” (scale) or calibrate compensatory restoration projects implemented as part of Natural Resource Damage Assessments (“NRDAs”) conducted pursuant to the Oil Pollution Act of 1990 (“OPA”). The basic premise underlying REA is that, if a spill results in the loss of individual members of a population, the public can be compensated via a restoration project which creates individuals that otherwise would not exist. This is because the ecological services provided by a population are proportional to the number of individuals in the population. For example, one could compensate the public for spill-related mortality among shrimp by creating wetland terraces which, the literature suggests, would increase the number of shrimp in the population. REA answers the question, “How many wetland terraces need to be created?” Implicit in the REA construct is the dynamic nature of the population projections. Even with density dependence, population levels fluctuate according to both biological and anthropogenic factors that combine to influence survival, reproductive and growth rates. Thus, if NRDA practitioners are to reliably identify compensatory restoration requirements using REA, it is necessary to: characterize baseline demographic rates; develop a model that uses those baseline demographic rates to project future population levels; and identify the mechanisms that cause post-spill rates to change relative to baseline expectations. One factor that can cause post-spill demographic rates to vary is a spill-related change in human behavior. For example, if a spill-related fishing closure results in the cancelation of 15,000 recreational shrimping trips, shrimp mortality due to fishing will decrease. In this paper we use prior OPA NRDA cases to: review the historical treatment of spill-related closures in REA models used by both DOI/USFWS and NOAA; and illustrate that the REA practitioners’ approach to these spill-related changes in human behavior can (and should) change the NRDA liability construct, particularly with respect to species which are commercially and recreationally harvested.

INTEGRATING PRIMARY AND COMPENSATORY RESTORATION FOR AN OIL SPILL THROUGH USE OF HABITAT ENHANCEMENT

ABSTRACT Natural resources along the shoreline of a tidal estuary were injured by oiling and physical disturbance following the accidental release of No. 6 fuel oil from a power plant in New Jersey, USA. Operation of heavy equipment on the shoreline during the emergency response entrained oil into sediments and physically damaged shoreline vegetation dominated by the low-value specie Phragmites australis. In response to this incident, the New Jersey Department of Environmental Protection (NJDEP) and the responsible party (RP) conducted a cooperative natural resource damage assessment (NRDA). During NRDA discussions, the NJDEP proposed that compensatory restoration for injured natural resources be provided at a ratio of 3:1 (restored-to-injured) based on the acreage of physically impacted vegetation. Since in-kind restoration of Phragmites was undesirable, native salt marsh vegetation was planted instead, resulting in enhancement of the injured habitat. Since the primary restoration actions yielded improvements beyond the baseline condition, the RP successfully negotiated a 1:1 replacement ratio for components involving habitat enhancement. By incorporating habitat enhancement into the design of primary restoration, the amount of the compensatory restoration was reduced. By expanding the primary restoration to include enhancement of adjoining degraded habitat that was not impacted by the incident, the RP was able to satisfy both primary and compensatory restoration obligations simultaneously by integrating these components into a single restoration project. The combined primary and compensatory restoration project was then implemented as emergency restoration 4–5 months after the incident. This integrated restoration approach enabled the RP to: (1) decrease compensatory restoration requirements by incorporating habitat enhancement into primary restoration; (2) reduce restoration costs by avoiding separate primary and compensatory restoration projects; and (3) expedite restoration by performing actions under the scope of emergency restoration. This strategy benefited the trustees by simplifying the assessment and reducing oversight burdens. The public and the environment benefited by receiving restoration on an accelerated timeframe.