The Need for Fair, Transparent Compensatory Restoration Based on Natural

Resource Damage Assessments As described in Chapter 6, the Deepwater Horizon spill caused substantial damage to natural resources and habitats across the Gulf coast and in the deepwater offshore environment. Damages to natural resources are formally assessed subject to regulations established under the Natural Resource Damage Assessment provisions of the Oil Pollution Act. The Act requires that the public be compensated for injury to and lost use of public resources. The regulation provides that compensation should be "in-place" and "in-kind" wherever possible, thereby favoring restoration measures with a connection to oil spill impacts. The Deepwater Horizon spill is unprecedented in that five Gulf States were affected, each with its own restoration agenda, even though most of the damage occurred in Louisiana. The damage offshore is unprecedented and unknown. The Trustees* responsible for the damage assessment are under pressure to approve projects with an "equitable" (i.e., each state * The Natural Resource Damage Assessment regulation provides for the designation of affected state, federal, and tribal Trustees to conduct the damage assessment of natural resources, achieve agreement on restoration goals, and design and implement restoration projects to meet those goals. In this case, the Trustees comprise designated federal and state officials who are encouraged to work together and achieve consensus on restoration goals and projects though a Trustee Council. While the regulation supports cooperation, it does not explicitly require consensus by the Trustees. If certain Trustees disagree with the direction of the Natural Resource Damage Assessment process, they are free to break away from the Council and seek reimbursement for natural resource damages on their own.

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¶receives an equal portion) allocation of resources that may not be entirely consonant with the "in-place, in-kind" requirement.

¶Another challenge for the Trustees is assessing and providing compensatory restoration for the potentially significant marine and deepwater impacts associated with this spill. Historically, most applications of the Natural Resource Damage Assessment process have focused on coastal restoration, but the Macondo well, which spilled oil 5,000 feet below the surface, may have damaged organisms in the water column or on the sea floor for which there should be compensation as well.

¶Recommendation E2: The Trustees for Natural Resources should ensure that compensatory restoration under the Natural Resource Damage Assessment process is transparent and appropriate.

¶Restoration decisions must be transparent, appropriate, and apolitical. The Trustees should appoint an independent scientific auditor to ensure that projects are authorized on the basis of their ability to mitigate actual damages caused by the spill, with special care taken to assess and compensate poorly understood marine impacts. Further, any potential settlement agreement between the responsible party and the Trustees should provide for long-term monitoring of affected resources for a period of at least three to five years, as well as "enhancement"* beyond the baseline. By hewing closely to the "in-place" and "in-kind" principles that underpin Natural Resource Damage Assessment regulations, Trustees will help ensure that injured public resources, and the communities that rely on them, are made whole to the fullest extent possible, regardless of state and federal boundaries. A focus on ocean impacts will provide an invaluable opportunity—missed during the Ixtoc spill of 1979—to assess and remediate damage to marine ecosystems after an oil spill.