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Natural Resource Damage Claim Services

de maximis has provided leadership to its clients in the area of identifying, negotiating and/or defending natural resource damage claims. Natural resource damages (NRD) may be claimed under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Oil Petroleum Act, the Clean Water Act and various state laws. The responsibility or trusteeship for various natural resources has been established by regulations; however, trusteeship is very flexible and resource responsibility among trustees often overlaps (i.e. responsibility for various species of fish or birds).
   
 
In general, the National Oceanic and Atmospheric Administration (NOAA) of the Department of Commerce has responsibility for marine resources and habitats, including anadromous fish - fish that migrate up rivers from the sea. The US Fish and Wildlife Service (USFWS) of the Department of Interior is responsible for migratory birds, threatened and endangered species and other federally regulated wildlife.
State natural resource agencies have trusteeship for a variety of resources within their state,including groundwater, surface water - and sediment - and state-regulated fish Other trustees may include Native American Tribes

de maximis has provided leadership to its clients in the area of identifying, negotiating and/or defending natural resource damage claims. Natural resource damages (NRD) may be claimed under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Oil Petroleum Act, the Clean Water Act and various state laws. The responsibility or trusteeship for various natural resources has been established by regulations; however, trusteeship is very flexible and resource responsibility among trustees often overlaps (i.e. responsibility for various species of fish or birds). In general, the National Oceanic and Atmospheric Administration (NOAA) of the Department of Commerce has responsibility for marine resources and habitats, including anadromous fish - fish that migrate up rivers from the sea. The US Fish and Wildlife Service (USFWS) of the Department of Interior is responsible for migratory birds, threatened and endangered species and other federally regulated wildlife. State natural resource agencies have trusteeship for a variety of resources within their state, including groundwater, surface water - and sediment - and state-regulated fish and game. Other trustees may include Native American Tribes.

In general, an NRD claim requires a trustee(s) to establish: (1) the release of chemicals, (2) the injuries to natural resources due to the release and (3) the damages to the resources that result from the injuries. Injuries are the effects of chemicals on the resource. Examples of injuries may include deformed bills on waterfowl, tumors in fish or thinned eggshells in birds. For an NRD claim, injuries must be quantified, in other words, the nature and extent of the injuries must be established and the resulting damages calculated. Damages are the losses of natural resource services attributable to the injuries. For example, a low incidence of bill deformity in an otherwise increasing population of birds - such as the Cormorant - is an injury, but with no damage - there is no loss of service. On the other hand, the decrease of populations by reproduction failure due to the "chemical" is a potential claim because it is the population that provides the ecological services that flow from the species. Under NRD Assessment (NRDA) regulations, service losses to the ecosystem and to humans who use the ecosystem may be claimed. Claims including human non-use services (e.g. the "pleasure" people take in knowing that uncontaminated wildlife exist, even if they never visit a wildlife area) are controversial and difficult to justify technically. If non-use services are included in a claim, it can be expected that the claim will be largely inflated.

A significant factor in quantitative damage assessment is the level of baseline natural resource conditions. Damages are assessed as incremental effects of chemicals to the level of natural resource services that would be present absent the release. This means that such conditions as urbanization, historical dredging, shoreline disturbance, water level changes and other stresses on the ecosystem - other than "chemistry" - must be used to characterize or establish the baseline. Damages can only be claimed for natural resource service losses if they can be quantified after accounting for all the "non-chemistry" factors that have impacted the resources. NRDA regulations published by NOAA and USFWS present formal procedures for establishing and pursuing a claim.

de maximis has/is involved in several natural resource damage claims of note:

  • Fields Brook Superfund Site - de maximis had a lead role in the negotiation of a natural resource damage settlement. The "cash-out" settlement was accomplished without the expense of a formalized natural resource damage assessment.
  • Fox River - de maximis managed the performance of a Type B Natural Resource Damage Assessment. This assessment was performed in cooperation with the State Trustee and subsequently has led to negotiated settlements.
  • Ashtabula River - de maximis is managing the "shadowing" of the Trustees' Type B Natural Resource Damage Assessment and working with common counsel in the defense of the eventual natural resource damage claim.
  • Bennington Landfill Superfund Site - de maximis was the Project Coordinator for the RI/FS/RD/RA and O&M at this Site. Leachate discharges from the landfill underdrain had impacted surface water, sediments and wetlands adjacent to the landfill. As part of resolving natural resource damages under the trusteeship of the US Department of Interior, de maximis worked with the Group (including the Town), EPA, VTDEC and DOI to identify and develop off-site property where wetlands were enhanced. An area that included the Town's historic water supply source was chosen. As part of the wetland enhancement, the area was equipped with trails, signs and pavilions as part of the Town's public educational program and parks/recreation.

Through its involvement in its clients' exposure to natural resource damage claims, de maximis has remained skilled at managing the technical and policy tasks associated with this often complex process.


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