La. Admin. Code tit. 43 § XXIX-121

Current through Register Vol. 50, No. 11, November 20, 2024

Section XXIX-121 - Assessment Procedures and Protocols for Determining, Quantifying, and Valuing Natural Resource Injury and Loss of Services

A. The coordinator, in consultation with the trustees, shall determine within 60 days of the written notification by the on-scene coordinator that the response is complete whether information gathered during the field investigation(s) indicates that a natural resource damage assessment is warranted.

B. The state natural resource trustees may use any appropriate and accepted assessment procedures and methods as long as they consider the unique characteristics and the location of the natural resources affected by the unauthorized discharge or substantial threat of unauthorized discharge of oil, including adverse impacts caused by response activities, if any. The methods shall be designed to ensure that the cost of any restoration, rehabilitation, replacement, or acquisition project shall not be disproportionate to the value of the natural resource before the injury.

C. Any assessment generated by the state natural resource trustees must be reasonable and the costs of conducting the assessment must have a rational and direct connection to the value of and/or level of services provided by the injured resources prior to the unauthorized discharge of oil.

D. In addition, the use of a more complex or expensive method must be reasonably related to the expected increase in the quantity and/or quality of relevant information provided by the more complex procedure.

E. The procedures must be capable of providing information of use in determining the type and scale of restoration appropriate for the injury.

F. The state natural resource trustees may petition the coordinator for a longer period of time to make the determination by showing that the probability of impact from the unauthorized discharge on the affected natural resources cannot be adequately estimated in 60 days.

G. Only after a field investigation which may include sampling and data collection, the state natural resource trustees shall determine the injury to natural resources as a result of an unauthorized discharge of oil. The state natural resource trustees shall utilize methods that provide appropriate, valid, and reliable measurements of resource injuries associated with the unauthorized discharge of oil. In performing an assessment, the state natural resource trustees shall, to the extent possible, use generally accepted scientific and technical standards and methodologies that have been demonstrated to produce valid and reliable assessment results. Injury determination, restoration planning, and quantification of restoration costs must be based on a site-specific assessment of the unique characteristics and the location of the natural resources.

H. The range of assessment options includes:

1. Comprehensive Assessment Procedures. A method including sampling, modeling, and other appropriate scientific procedures to make a reasonable and rational determination of injury and cost-effective restoration alternatives to natural resources resulting from an unauthorized discharge of oil and will be used when the coordinator, in consultation with the state natural resource trustees, determines that an expedited or negotiated assessment procedure is not appropriate.

2. Expedited assessment procedures may be used:

a. when the following circumstances exist:

i. the unauthorized discharge of oil has caused limited observable mortality; and

ii. the extent of injury can be determined within 12 months following the completion of response actions; and

iii. a restoration plan can be initiated within 12 months of completion of the response actions; or

b. when the quantity of oil discharged is less than 1,000 gallons; or

c. when the coordinator, in consultation with the state natural resource trustees, determines that the expedited damage assessment method is the most cost-effective, technically feasible method for achieving timely restoration of injured natural resources.

3. Negotiated Assessment Procedures. Any assessment method agreed to by the state trustees and the responsible person.

4. When appropriate, the coordinator and the state natural resource trustees may, at their sole discretion, utilize the schedule below as an expedited assessment procedure to assess natural resource injuries associated with an unauthorized discharge of crude oil, or other oil that in the sole discretion of the coordinator and state natural resource trustees interacts with the environment in a manner similar to crude oil, in the Louisiana coastal area.

Injury Amount (DSAYS)	Habitat(s) See RRP PEIS for definitions of habitats	Oiling Conditions and/or Response Activities
Coastal Herbaceous Wetlands
15.08	Saline or Brackish marsh or Fresh marsh	Sediments are or have been saturated with oil; or excavation or other severe response actions have occurred.
1.81	Saline or Brackish marsh (Spartina-dominated)	Moderate to heavy oiling on a large portion of the plants; or heavy oiling in/on the sediments; or significant response activities have occurred.
	Saline or Brackish marsh (Mangrove-dominated)	Moderate to heavy oiling on a medium to large portion of the plants; or heavy oiling in/on the sediments; or moderate response activities have occurred.
1.02	Fresh marsh (Phragmites-dominated)	Light to heavy oiling on a medium to large portion of the plants; or heavy oiling in/on the sediments; or the Phragmites is cut as a response measure.
0.75	Saline or Brackish marsh (Spartina-dominated) or Fresh marsh (excluding Phragmites-dominated)	Moderate oiling on a medium portion of the plants or light oiling on a medium portion of the plants and light to moderate oiling in/on the sediments; or moderate oiling in/on the sediments; or moderate response activities have occurred.
0.39	Saline or Brackish marsh (Spartina-dominated marsh)	Light to heavy oiling on the plants while plants are in senescence.
	Mudflats	Light to heavy oiling on the mudflat.
0.13	Saline or Brackish marsh (Spartina-dominated)	Light oiling on the plants.
	Fresh marsh (Phragmites-dominated)	Light to heavy oiling on a small portion of the plants; or the Phragmites is cut as a response measure while in senescence.
0.01	Saline or Brackish marsh or Fresh marsh	Presence of light sheen on water adjacent to or in the marsh.
Coastal Forested Wetlands
28.06	Cypress Forest	Sediments are or have been saturated with oil; or excavation or other severe response actions have occurred.
27.71	Bottomland Hardwood Forest	Sediments are or have been saturated with oil; or the majority of the tree canopy is oiled; or excavation or other severe response actions have occurred.
2.42	Cypress Forest or Bottomland Hardwood Forest	Light to heavy oiling on the bark of trees.

a. Trustees may utilize the schedule as a basis for negotiated settlements in which the responsible party pays the trustees a certain amount to resolve natural resource damage claims. Trustees may utilize these funds to:

i. purchase restoration credits that are consistent with the requirements of OPA and OSPRA from restoration banks certified and established in accordance with LAC 43:XXXI.Chapter 1; or

ii. if no appropriate restoration bank credits become available within a reasonable time frame, fund existing restoration strategies or plans.

b. The coordinator shall give public notice of any updates to this schedule in accordance with §135. A of this Chapter.

I. If more than one procedure for providing the same type and quality of information is available, the most cost-effective procedure must be used.

J. The coordinator and the state natural resource trustees shall complete the comprehensive assessment procedure within 20 months of the date of written notification by the SOSC that response is complete. The state natural resource trustees may petition the coordinator for a longer period of time to make the determination by showing that the full impact of the unauthorized discharge on the affected natural resources cannot be determined in 20 months.

La. Admin. Code tit. 43, § XXIX-121

Promulgated by the Office of the Governor, Oil Spill Coordinator's Office, LR 25:504 (March 1999), Amended by the Office of the Governor, Coastal Protection and Restoration Authority, LR 431534 (8/1/2017).

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2451 et seq.