FWS National Contingency Plan

9. NATURAL RESOURCE DAMAGE ASSESSMENT
(see Appendix W)

Preassessment Phase

The preassessment phase is the first part of a natural resource damage assessment (NRDA) process at an oil spill. The preassessment phase is described in the NRDA regulations pursuant to OPA, which are included in Appendix W. Discussion of the preassessment phase is included in FWSOSCP because the activities undertaken to conduct this procedure are closely related to the removal/response activities and, in most instances, conducted simultaneously. In many cases, many of the data needed by the trustees in the preassessment phase are also needed by the OSC for planning and implementing removal and response activities. Even though the removal/response activities are controlled by the OSC, while the damage assessment process is directed by the trustees, the trustees should closely coordinate preassessment activities with the Planning and Operations sections of the removal/response effort to avoid duplication of effort and costs. Costs for both preassessment and removal/response are processed by the Oil Spill Liability Trust Fund if a Responsible Party is not paying directly for the activities.

Since discharges of oil occur without warning, it is imperative that some forethought go into the potential activities that would be undertaken during an incident. These activities should include the process that will be used to evaluate the need to begin a damage assessment, the preassessment phase activities.

As discussed below, the reimbursement procedures for the initiation of damage assessment are different from those of the removal funding process. It is important that one be aware of the differences and familiarize themselves with the procedures (see Appendix F) before becoming involved in an oil discharge. In the event of a significant spill, IT IS RECOMMENDED TO SEPARATE FWS PERSONNEL INTO "RESPONSE" AND "NRDA INITIATE" FUNCTIONAL UNITS (this can easily be done under ICS). Separation into functional units will make planning and accounting of activities much easier.

Initiation of Funding for Preassessment Activities

"Initiation" is used to describe the fiscal process of providing conditional pre-approval for reimbursement to trustees for conducting preassessment activities. The initiation process is different from that used to access the Oil Spill Liability Trust Fund for reimbursement of costs related to response and/or removal costs (i.e. establishment of a PRFA). For initiation, the trustees involved in preassessment activities must jointly select a lead administrative trustee (LAT) and a Federal lead administrative trustee (FLAT), although they may be the same agency or person. Because only a Federal agency may access the Fund for preassessment activities, the FLAT submits a joint request directly to the U.S. Coast Guard National Pollution Fund Center (“Fund Center”), which manages the Oil Spill Liability Trust Fund, on behalf of all of the trustees. The OSC is not directly involved in this process (see Appendix F for detailed explanation of procedures). The intent of funding being extended to the trustees for preassessment activities is to allow for capture of ephemeral data and to expedite the process of conducting a natural resource damage assessment. The two key differences between this process and the previously described removal reimbursement process are that the NRDA funding initiation request:

1- is a joint request (by all trustees) for reimbursement, and
2 - is transmitted directly to the Fund Center rather than the OSC, although the OSC is kept abreast of the ongoing activities.

Documentation of Injuries

The maintenance of injury documentation is one of the most overlooked activities during the frenzied initial stages of a discharge. During spills, it is critical that comprehensive documentation of injuries is maintained (especially for those injuries that are obvious and presumably require no further evaluation of the cause, i.e., oiled marshes, oiled and dead wildlife, contamination of water bodies, etc.). From the initial notification of a spill or the threat of a spill, documentation of habitat conditions can be made along the spill trajectory. The easiest methods of documentation are those with a date/time 35 mm or digital camera and a date/time video camera. These preimpact photos can easily and quickly be made in advance of the oil along its trajectory. Follow-up photos and videos should be taken throughout the spill for purposes of comparison at a later time. In conjunction with the visual records, water and sediment samples allow for chemical evaluation and pathway linkage to injuries. In some instances it may be advantageous to collect wildlife specimens in advance of impact to establish baseline data. Remember, the entire documentation process, especially samples and specimens, MUST MAINTAIN A CHAIN-OF-CUSTODY for future legal considerations (see Best Practices for Migratory Bird Care During Oil Spill Response, in Appendix D and information on Law Enforcement role in documentation in Appendix J). All injured (dead or alive) wildlife shall be documented in the chain-of-custody process and samples should be sent to an appropriate laboratory for necropsies and oil fingerprinting (to match with the discharged oil). The usefulness of photos, carcasses, samples, and other evidence collected to document injuries is usually greatly enhanced when accompanied by location descriptions, preferably including GPS data. In some cases, Law Enforcement may also pursue criminal penalties under the Migratory Bird Treaty Act, Endangered Species Act, or other fish and wildlife laws. In these cases, at least some data and carcasses may not be available to those working on the NRDA because of the overriding concerns of the criminal case.

Restoration Planning Phase

This phase of the NRDA provides the connection between the injury and the restoration. Under the NRDA rule for discharges of oil, the goal is to make the public whole for any injuries to the natural resources resulting from oil contamination. This goal is achieved through restoration of the injured natural resource. During this phase of the NRDA, the trustees evaluate and quantify potential injuries and use that information to determine the appropriate type and scale of restoration actions. The trustees then develop restoration plans in coordination with the responsible party and the public.

Coordination Among Natural Resource Trustees

During both removal and preassessment activities, it is vital that all natural resource trustees coordinate with each other and share data to expedite the process and avoid duplication of effort. The Fund Center will not authorize payment for any activity that is duplicative. Therefore, planning and coordination is in the best interest of all participants and vital for these processes to flow smoothly. Trustee cooperation is also required for the selection of a lead administrative trustee (LAT) and/or a Federal lead administrative trustee (FLAT). Selection of the lead trustee can be based on various criteria, such as which trustee has the most resources affected, the most adequate administrative capability, or a mutual agreement. There can be both a LAT and a FLAT, but not just a LAT, unless the OSLTF will not be accessed for "initiation". A FLAT can act alone without a LAT. The responsibilities of the LAT and FLAT will differ depending on the capabilities and dynamics of the overall group. In either case, they are responsible for finding and
representing the views of all the trustees, not making decisions for them without consultation. The LAT/ FLAT could be responsible for the:

- scheduling of Meetings
- preparation of agendas
- acting as the central contact point
- coordinator of data collection
- contracting with outside help, if necessary
- accessing the Fund (FLAT only).

One of the more important activities the trustees must undertake during the damage assessment process is the formation of a trustee workgroup or council and the selection of a LAT. This LAT must be able to communicate and coordinate with the OSC, and the Fund Center, in addition to consolidating, preparing the necessary forms, and submitting the consolidated requests with the necessary documentation from all participating agencies. The ability to disperse funds when they are received from the Fund for preassessment activities is necessary. It is important that lines of communication stay open between all participating agencies and that the exchange of information flows freely through regularly scheduled meetings (e.g., a.m. and p.m.). Key personnel should be part of this workgroup or have direct access to representatives. (FWS personnel should represent the FWS.) In addition to personnel directly involved in field spill operations, the Regional Solicitor's Office should be included.

During the early stages of a spill, it is important to remember that information must be collected for preassessment of natural resource damages. There are many types of information that need to be collected, especially those that may be ephemeral in nature. In most instances, the FWS personnel that are participating in removal activities will also be conducting preassessment activities. The list(s) found in Appendix W offers guidance for consideration during the preassessment/NRDA activities. This list is intended only to provide guidance and a starting point for the process and activities. The list(s) should be modified and altered as needed per the site impacted by the spill.

Authorized Official for Department of the Interior

One of the first steps at an oil spill for DOI Bureaus is determination of the “Authorized Official”, who will take the lead in coordinating among Bureaus and speaking for them as needed. This individual may serve as the FLAT or LAT (see previous paragraph). Designation of an authorized official is carried out through procedures established by the Department, and is coordinated by the Regional Damage Assessment Coordinator in the Office of Environmental Policy and Compliance. (See Departmental manual chapters in Appendix W.)

Administrative Documentation

The amount of record keeping and involvement during a spill is dependent upon the size of the spill. A medium size spill or one that requires a lot of time and personnel can consume an entire Field Office, Regional staff, and more. In order to receive reimbursement for removal and preassessment activities, a thorough and inclusive record of all operations, personnel, expenditures, overhead, indirect costs, etc., shall be maintained. The guidance for meeting the requirements of the Denver Finance Center, and more importantly, those of the Fund Center are included in the previous section entitled "Funding" and the forms are in Appendix F.