Restoration Planning and Implementation
| Author | Valerie Ann Lee/P.J. Bridgen |
| Pages | 199-240 |
Page 199
Chapter 14
Restoration Planning and Implementation
14.1 Introduction
During a raging winter storm in 1986, a mystery oil spill fouled hundreds of miles of the central Califor-
nia coa st and killed more than 10,000 seabirds. Dead and dying birds washed ashore from the Golden
Gate Bridge to Monterey. A fragile colony of seabirds on Devil’s Slide Rock near San Francisco was wiped
out. After an intense investigation, it was discovered that the incident occurred when the oil barge Apex
Houston crashed a shore during the storm and discharged some 26,000 gallons of oil while en route from
San Francisco to Long Beach Harbor. Nine years later, after hard-fought litigation was resolved, biologists
scaled rocks to recreate a mock seabird colony and entice birds that sur vived the spill back to the colony.
e project was developed as a part of the natural resource damage assessment (NR DA) and, at the time
of its conceptualization, was one of only ve in the world of its kind. What the biologists saw in telescopes
less than six months later was a scientic marvel: they saw an egg. So began one of the most successful and
innovative restoration projects developed as part of an NRDA. It has been the focus of media attention,
children’s activities, and scientic study.
As the foregoing example illustrates, NRDA often follows headlines of environmental disaster and
nancial loss. e irony is that out of these beginnings, bad for the environment and bad for responsible
parties, springs success. is chapter focuses on the success in NRDA—restoration.
e goal of restoration is to make the public whole for injuries to natura l resources by returning the
injured resources to their baseline1 conditions and compensating for interim losses of resources and ser-
vices. Apa rt from general guidelines, there is no specic formula for restoration. Restoration plan devel-
opment is driven by the injuries specic to each case and the opportunities for restoration in a particular
locale. Legal requirements triggered by restoration selection a nd project implementation depend on the
statutory authority for restoration, the entity undertaking restoration, the locale, and the design of the proj-
ect. e community context drives approaches to public outreach; community support is a valuable asset
to be fostered rather than squandered. us, a balanced team of technical, legal, and community outreach
specialists in restoration planning and implementation helps ensure success.
Section 14.2 describes restoration objectives, concepts, and the players involved in restoration planning
and implementation. Section 14.3 outlines the steps in restoration plan development and selection. Section
14.4 considers issues involved in the resolution of NRDA liability and implementation of restoration plans.
Section 14.5 provides a practical understanding of the type of projects that result from restoration planning
to address injuries to habitats, resources, and human services. Section 14.6 presents legal considerations in
the selection of a restoration plan. Section 14.7 identies federal, state, loca l, and tribal laws that may be
triggered by specic projects and may impose procedura l or permit requirements on those implementing
restoration projects.
1. Baseline is the condition of the natural resources and services that would have existed had the incident or release not occurred. See 15 C.F.R.
§990.30 and 43 C.F.R. §11.14(e).
Page 200 Natural Resource Damage Assessment Deskbook
14.2 Restoration Objectives and Players
14.2.1 Objectives
he compensatory nature of the statutes drives restoration planning and implementation. e goal of all
the federal statutes discussed in this book is to make the public and the environment whole rather than to
punish responsible parties. As we describe in Chapter 13, under all of the statutes discussed in t his desk-
book, restoration cost or restoration is the primary measure of damages. e purpose of restoration under
all the federal statutes introduced in this deskbook is to
• Return resources and services to baseline; and
• Compensate for interim losses for the period it takes to achieve full recovery of resources and services.
As we discuss in Chapters 10 and 13, these restoration elements have dierent names under the NRDA
regulations adopted pursuant to the Comprehensive Environmental Response, Compensation, and Liabil-
ity Act (CERCLA)2 and the Oil Pollution Act (OPA) of 1990.3 e rst element of restoration under the
CERCLA regulations is referred to descriptively as the cost of restoration, rehabilitation, replacement, and/
or acquisition of equivalent of natural resources, referred to as the damage determination pha se.4 Under
the OPA regu lations, this element is referenced simply as “primary restoration.”5 e second element of
restoration, compensation for interim losses, is referenced as “compensable value”6 under the CERCL A
regulations and “compensatory restoration”7 under the OPA regulations. is subtle dierence reects the
emphasis that the OPA regulations place on restoration as the primary methodology to “value” interim
losses.
In addition to the two categories of restoration above, a third type sometimes is referenced—“emergency
restoration.” is concept derives from the CERCLA and OPA regulations that provide explicit author-
ity to trustees to take actions in the face of emergencies.8 e term emergency restoration is something
of a misnomer. Such actions are designed to stop continuing injuries and mitigate t he eects of spills and
releases; under CERCLA and the OPA, they are not designed to restore injured resources or services to
2. 43 C.F.R. Part 11 (referenced as the “CERCLA regulations” throughout this deskbook). Chapter 10 discusses the CERCLA regulations in
detail. Chapter 13 discusses the regulations in the context of assigning damages.
3. 15 C.F.R. Part 990 (referenced as the “OPA regulations” throughout this deskbook). Chapter 10 discusses the OPA regulations in detail.
Chapter 13 discusses the regulations in the context of assigning damages.
4. 43 C.F.R. §11.80(b). e purpose of the damage determination phase is
to establish the amount of money to be sought in compensation for injuries to natural resources resulting from a discharge of oil
or release of a hazardous substance. e measure of damages is the cost of (i) restoration or rehabilitation of the injured natural
resources to a condition where they can provide the level of services available at baseline, or (ii) the replacement and/or acquisition
of equivalent natural resources capable of providing such services. Damages may also include, at the discretion of the authorized
ocial, the compensable value of all or a portion of the services lost to the public for the time period from the discharge or release
until the attainment of the restoration, rehabilitation, replacement, and/or acquisition of equivalent of baseline.
73 Fed. Reg. 57259, 57266 (2008).
5. 15 C.F.R. §990.30 (restoration denition).
6. 43 C.F.R. §11.80.
8. Id. §990.26; 43 C.F.R. §11.21(a)(2). NOAA amended the provisions of §990.26(a) to clarify that the purpose of trustees conducting emergency
restoration is to reduce the ultimate damages resulting from the incident. If emergency restoration is considered while response actions are still
underway, §990.26(b) requires that the trustee coordinate with the lead response agency’s On Scene Coordinator (OSC) before taking any
emergency restoration action and demonstrate that the emergency restoration action will not duplicate or interfere with any ongoing response
actions. See 67 Fed. Reg. 61483, 61486 (2002).
Restoration Planning and Implementation Page 201
baseline or to compensate for interim losses.9 Because such actions occur in the context of emergencies,
extensive planning before implementation does not occur.10
is chapter focuses on restoration activities most frequently encountered in NRDA matters—that
is, restoration planning and implementation eorts with objectives of returning resources and services to
baseline and compensating for interim losses. e ability to return natural resources to a baseline may be
impacted by factors unrelated to the incident, such as climate changes, sea level rise, and regional degrada-
tion of environmental quality. See Chapter 13, for further discussion of baseline determination.
14.2.2 Restoration Concepts and Approaches
Identication of t he total restoration to which the public is entitled ows from an understanding of the
nature, extent, and scope of injury caused by an incident. Restoration must be properly sized, including
taking into account the spatial and temporal extent, to ensure that restoration activities return resources
to baseline and compensate the public for interim losses without overcompensating. is process of deter-
mining the appropriate size a nd extent of projects is often referred to as “scaling.”11 Scaling methods are
discussed in detail in Chapter 13.
e statutes in this book contemplate four dierent approaches to repair injury or achieve compensa-
tion for natural resource injuries—restoration, rehabilitation, replacement, and/or acquisition of equiva-
lent resources.12 All four approaches can fall within the ambit of “restoration.” e statutes do not dene
these terms and the key agencies tasked with developing NRDA regulations, e National Oceanic and
Atmospheric Administration (NOAA) and the U.S. Department of the Interior (DOI) view the meaning
of the terms somewhat dierently. An understanding of the range of project options falling within these
approaches authorized by Congress is helpful when developing a restoration plan.13
DOI denes the four terms in the CERCLA regulations. Under these regulations, DOI denes “resto-
ration” and “rehabilitation” as one and the same—“actions undertaken to return an injured resource to its
baseline condition, as measured in terms of the injured resource’s physical, chemical, or biological proper-
ties or the services it previously provided. . . .”14 (For a detailed discussion of baseline, see Chapter 13.)
Restoration, as dened in the NRDA restoration statutes and regulations, encompasses activities to restore,
replace, or acquire the equivalent of the injured natural resources. Because of the breadth of this deni-
tion and the variety of natural resources mana ged by the DOI bureaus and co-trustees, restoration can
9. Under the CERCLA regulations, the trustee may undertake emergency restoration in “any situation related to a discharge or release requiring
immediate action to avoid an irreversible loss of natural resources or to prevent or reduce any continuing danger to natural resources, or a
situation in which there is a similar need for emergency action.” 43 C.F.R. §11.21(a)(2). e CERCLA regulations provide that trustees may
“undertake only those actions necessary to abate the emergency situation, consistent with its existing authority.” 43 C.F.R. §11.21(c). ere are
no provisions in the regulations requiring notice to PRPs and the public before selection or implementation of emergency restoration actions.
Under the CERCLA regulations, it is the trustees’ responsibility to prove that emergency restoration was required and that restoration costs
were reasonable and necessary. See 43 C.F.R. §11.21(c).
Under the OPA regulations, trustees may take an emergency restoration provided that “(1) e action is needed to minimize continuing
or prevent additional injury; (2) e action is feasible and likely to minimize continuing or prevent additional injury; and (3) e costs of
the action are not unreasonable.” 15 C.F.R. §990.26(a)(1)-(3). Trustees are required to “provide notice to identied responsible parties of any
emergency actions and, to the extent time permits, invite their par ticipation in the conduct of those actions . . .” 15 C.F.R. §990.26(c) (em-
phasis added). “To the extent practicable” trustees must also provide notice to the public of planned emergency actions. 15 C.F.R. §990.26(d).
Emergency restoration activities must be coordinated with and not interfere with ongoing response actions being undertaken by the on scene
coordinator, the ocial in charge of spill response under the OPA. 15 C.F.R. §990.26(b).
10. See id. and accompanying text. To the extent that there is planning, it usually is in the nature of pre-incident planning rather than planning
in the midst of a given emergency.
11. See Damage Assessment and Restoration Program, National Oceanic and Atmospheric Administration, Scaling Compensatory Restoration Ac-
tions: Guidance Document for Natural Resource Damage Assessment Under the Oil Pollution Act of 1990, December 1997, p. vii and 15 C.F.R.
§990.53(d).
12. See CERCLA, 42 U.S.C. §9607(f )(1); OPA, 33 U.S.C. §2706(c); Clean Water Act, 33 U.S.C. §1321(f)(4) and (5); Marine Protection,
Research, and Sanctuaries Act, 16 U.S.C. §1432(6); and National Park System Resources Protection Act, 16 U.S.C. §19jj (2001).
13. A repository of case studies can be found at the Global Restoration Network (GRN), available at http://www.globalrestorationnetwork.org/.
NRDA case studies currently in the GRN include Common Murre Restoration (CA), Maumee River Riparian Restoration (IN), North Cape
American Lobster Restoration (RI), North Cape Shellsh Restoration (RI), North Cape Bird Restoration (RI), and Lavaca Bay Restoration
(TX).
14. 43 C.F.R. §11.14(ll) (emphasis added).
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