Natural Resources Damage: A Primer

No one has the right to use or exploit our commonly held natural resources at the expense of anyone else.

What are natural resources damages?

Natural Resources Damages (NRD) are what a polluter owes to the public for harming the estuaries, wetlands, waterways, and watersheds; groundwater, drinking water supplies, and air; and the fisheries and wildlife.  Federal and state NRD law demands polluters pay for the injury to or loss of natural resources – including the reasonable cost of assessing the damage and replacement or restoration of the natural resources, as compared to their baseline condition.

What is the history of natural resources damages?

You can trace NRD back to Rome, the Magna Carta, and the Public Trust Doctrine: “By the law of nature these things are common to all mankind: the air, running water, the sea, and consequently the shores of the sea.” In modern America, the NRD process is governed by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, better known as Superfund) and the Oil Pollution Act (OPA), as well as state NRD laws.

Who are natural resource trustees?

In the United States, our natural resources are held in trust for us by the state and federal natural resources agencies, such as a state environmental agency director or the Secretary of the U.S. Department of the Interior. The Army Corps of Engineers and the EPA are not Trustees, and under CERCLA and OPA Waterkeepers cannot be Trustees. Trustees are tasked with assessing the injury to natural resources and restoration of natural resources injured or services lost. They achieve this through the court system, filing claims for reimbursement from the OPA Trust Fund, or through negotiations with the “potentially responsible parties.”

What are natural resource damage assessments?

A natural resource damage assessment (NRDA) is the process of collecting, compiling, and analyzing data to determine appropriate compensation for loss of natural resources and restoration. Trustees may use the NRDA methodologies as set out by the Department of the Interior, or the National Oceanic and Atmospheric Administration (NOAA).

What are natural resource damage restorations?

Under CERCLA, monies recovered from a NRD claim may only be used for restoration or replacement of the injured natural resource or for acquisition of an equivalent resource. Under OPA, recovered sums may be used only to reimburse or pay costs incurred by the Trustee while conducting NRDAs; and developing and implementing plans for the restoration, rehabilitation, replacement, or acquisition of the equivalent or the natural resources. Restoration actions are designed to return injured resources to baseline conditions, but may also compensate the public for the interim loss of injured resources from the onset of the injury until the baseline conditions are re-established.

What is a Waterkeeper’s role?

While Waterkeepers cannot be Trustees or sue for compensation, you can suggest and persuade Trustees to submit a claim. You and your members may also conduct assessments, may conduct restoration activities, help make sure funds are distributed equitably to the correct parties, and participate in negotiations with the potentially responsible parties. Using your local knowledge of the natural and cultural resources, you should document both pre-impact and impact conditions through time-stamped photographs and videos and person observations and share the documentation with Incident Command, trustees, and maintain archives.

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