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Natural Resource Damage Assessment (NRDA) Regulations

Section 301(c) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) (42 U.S.C. 9601 et seq.), modified by the 1986 Superfund Amendments and Reauthorization Act (SARA) and Section 1006 of the Oil Pollution Act of 1990 (OPA), requires the promulgation of regulations for the assessment of natural resource damages from oil spills and hazardous substances. These acts provide for the designation of trustees who determine resource injuries, assess natural resource damages (including the costs of assessing damages), present claims, recover damages, and develop and implement plans for the restoration, rehabilitation, replacement, or acquisition of the equivalent of the injured natural resources under the trusteeship.

The USDOI was given the authority under CERCLA to develop regulations and procedures for the assessment of damages for natural resource injuries resulting from the release of a hazardous substance or oil-spills (NRDA regulations). CERCLA specified two types of procedures to be developed: type "A" procedures for simplified, standard assessments requiring minimal field observations in cases of minor discharges or releases in certain environments; and type "B" site-specific procedures for detailed assessments for individual cases. The Department has issued various rules for the assessment of natural resource damages since it began its process of developing the regulations in 1983. These rulemakings are all codified at 43 CFR 11. On March 25, 1994 (59 FR 14262), the USDOI published a final rule amending the type "B" rule to comply with all but one aspect of a court order. The new rule establishes a procedure for calculating natural resource damages based on the costs of restoring, rehabilitating, replacing, and/or acquiring the equivalent of injured resources. The rule also allows for the assessment of all use values of injured resources that are lost to the public pending completion of restoration, rehabilitation, replacement, and/or acquisition of equivalent resources. On May 4, 1994 (59 FR23098), the USDOI published a proposed rule revising the type "B" rule to address the last aspect of the court requirement; the guidelines for the use of an economic methodology, known as contingent valuation, to assess lost values of injured natural resources; comments were due by July 7, 1994. Finally, on October 19, 1994 (59 FR 52749), the USDOI published an advanced notice of proposed rulemaking to initiate the USDOI's biennial review of its NRDA regulations; comments are due by January 17, 1995.

Section 1006(e) of OPA, signed into law in 1990, gave NOAA the responsibility of promulgating new regulations for the assessment of natural resource damages resulting from oil discharges into or upon the navigable waters of the United States, adjoining shorelines, or the Exclusive Economic Zone. The USDOI regulations applicable to oil spills are in effect until the NOAA regulations are finalized, and USDOI regulations would continue to be used when the oil spill damage does not affect navigable waters or adjoining shorelines. On January 7, 1994, NOAA published a notice of proposed rulemaking (59 FR 1062) outlining its proposed NRDA process. The damage assessment process described in the proposed rule has three major phases: (1) The Preassessment Phase; (2) the Assessment Phase; and (3) the Post-Assessment Phase. The comment period was extended twice and comments were due to NOAA by October 7, 1994.