Character of the Event and Coverage of Federal Authorities

• Author: Valerie Ann Lee/P.J. Bridgen
• Pages: 13-18

Page 13

Chapter 3

Character of the Event and

Coverage of Federal Authorities

Injuries to natural resources are of myriad types a nd places and are caused by a host of agents—most

commonly by oil, hazardous substances, pollutants, and physical trauma. Even substances that are not

generally considered injurious can be toxic or hazardous in c ertain contexts, causing injury to natura l

resources. For exa mple, bentonite, an inert drilling mud (and sometimes a ller in certain fast-food milk

shakes), arguably becomes a pollutant regulated under the Clean Water Act (CWA)1 when spilled into

tropical reef environments, killing light-sensitive corals. Injuries also happen over d ierent time frames.

Dramatic injuries to natural resources ca n take years or can happen in minutes. Injuries occur in dierent

physical locations and to a panoply of natural resources—birds, sh, wetlands, mammalian habitat, and

groundwater, to mention a few.

Whether you are a lawyer or an environmental manager struggling with an event potentially causing

injury to natural resources, it is helpful to rst consider characteristics of the event prompting the response

that may trigger a natural resource damage assessment (NRDA). An understanding of the geographic loca-

tion of the event and the agent potentially causing injury helps identify which federal statutes a re brought

into play. A consideration of the character of the event helps you understand the time frame for initial

response a nd NRDA ac tivities. Additionally, consideration of the type of resources potentially aected

provides information about what government agencies will be involved in natural resource d amage claims

and with whom you will be coordinating.

is chapter presents a series of ba sic questions to consider upon discovery of a n incident to determine

what statute might be triggered and what federal agency will assert trusteeship in the incident. Some of the

questions are simi lar but are informative in dierent ways about statutory coverage and trusteeship. Two

tables are presented that summarize the consequences of various answers. Table 3-1 displays the federal

NRDA authorities implicated by various types of events. Table 3-2 outlines some important types of natu-

ral resources that can be adversely aected by an incident, whether the event involved is acute or long-term,

and the federal, tribal, and types of state trustees implicated with respect to such resources. Currently, more

than one-half of t he states have state statutes t hat authorize response actions a nd NRDA recovery claims,

and nearly all states have designated a specic agency or oce to act as a trustee. It is beyond the scope of

this deskbook, however, to outline the agencies and trustee designees within each of the recognized tribes

and states, as these roles vary by tribe and state. A table of information related to state trustees is located

in Appendix 1.

3.1 Agent Causing Injury

It is important to consider the agent causing the injury. e type of release or injury helps in identifying

which of the ve federal statutory authorities may be implicated by an incident and may become a trustee.

e Oil Pollution Act (OPA) of 1990 only covers injuries caused by discharges of oil.2 e CWA addresses

1. 33 U.S.C. §§1251-1387, ELR S. FWPCA §502(19) (denition of “pollutant”).

2. Oil Pollution Act of 1990, Pub. L. No. 101-380, 104 Stat. 484 (1990) (codied as amended in various sections of 23, 26, 33, 43, and 46

U.S.C.); see §1002(a) of OPA, 33 U.S.C. §2702(a).