[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR11.71]

[Page 275-279]
 
                    TITLE 43--PUBLIC LANDS: INTERIOR
 
PART 11--NATURAL RESOURCE DAMAGE ASSESSMENTS--Table of Contents
 
                      Subpart E--Type B Procedures
 
Sec. 11.71  Quantification phase--service reduction quantification.

    (a) Requirements. (1) The authorized official shall quantify the 
effects of a discharge of oil or release of a hazardous substance by 
determining the extent to which natural resource services have been 
reduced as a result of the injuries determined in the Injury 
Determination phase of the assessment.
    (2) This determination of the reduction in services will be used in 
the Damage Determination phase of the assessment.
    (3) Quantification will be done only for resources for which damages 
will be sought.
    (b) Steps. Except as provided in Sec. 11.71(f) of this part, the 
following steps are necessary to quantify the effects:
    (1) Measure the extent to which the injury demonstrated in the 
Injury Determination phase has occurred in the assessment area;
    (2) Measure the extent to which the injured resource differs from 
baseline conditions, as described in Sec. 11.72 of this part, to 
determine the change attributable to the discharge or release;
    (3) Determine the services normally produced by the injured 
resource, which are considered the baseline services or the without-a-
discharge-or-release condition as described in Sec. 11.72 of this part;
    (4) Identify interdependent services to avoid double counting in the 
Damage Determination phase and to discover significant secondary 
services that may have been disrupted by the injury; and
    (5) Measure the disruption of services resulting from the discharge 
or release, which is considered the change in services or the with-a-
discharge-or-release condition.
    (c) Contents of the quantification. The following factors should be 
included in the quantification of the effects of the discharge or 
release on the injured resource:
    (1) Total area, volume, or numbers affected of the resource in 
question;
    (2) Degree to which the resource is affected, including 
consideration of subunits or subareas of the resource, as appropriate;
    (3) Ability of the resource to recover, expressed as the time 
required for restoration of baseline services as described in Sec. 11.73 
of this part;
    (4) Proportion of the available resource affected in the area;
    (5) Services normally provided by the resource that have been 
reduced as a result of the discharge or release; and
    (6) Factors identified in the specific guidance in paragraphs (h), 
(i), (j), (k), and (l) of this section dealing with the different kinds 
of natural resources.
    (d) Selection of resources, services, and methodologies. Specific 
resources or services to quantify and the methodology for doing so 
should be selected based upon the following factors:
    (1) Degree to which a particular resource or service is affected by 
the discharge or release;
    (2) Degree to which a given resource or service can be used to 
represent a broad range of related resources or services;
    (3) Consistency of the measurement with the requirements of the 
economic methodology to be used;
    (4) Technical feasibility, as that phrase is used in this part, of 
quantifying changes in a given resource or service at reasonable cost; 
and
    (5) Preliminary estimates of services at the assessment area and 
control area based on resource inventory techniques.
    (e) Services. In quantifying changes in natural resource services, 
the functions provided in the cases of both with- and without-a-
discharge-or-release shall be compared. For the purposes of this part, 
services include provision of habitat, food and other needs of 
biological resources, recreation, other products or services used by 
humans, flood control, ground water recharge, waste assimilation, and 
other such functions that may be provided by natural resources.
    (f) Direct quantification of services. The effects of a discharge or 
release on a resource may be quantified by directly measuring changes in 
services provided by vhe resource, instead of quantifying the changes in 
the resource itself, when

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it is determined that all of the following conditions are met:
    (1) The change in the services from baseline can be demonstrated to 
have resulted from the injury to the natural resource;
    (2) The extent of change in the services resulting from the injury 
can be measured without also calculating the extent of change in the 
resource; and
    (3) The services to be measured are anticipated to provide a better 
indication of damages caused by the injury than would direct 
quantification of the injury itself.
    (g) Statutory exclusions. In quantifying the effects of the injury, 
the following statutory exclusions shall be considered, as provided in 
sections 107 (f), (i), and (j) and 114(c) of CERCLA, that exclude 
compensation for damages to natural resources that were a result of:
    (1) An irreversible and irretrievable commitment of natural 
resources identified in an environmental impact statement or other 
comparable environmental analysis, and the decision to grant the permit 
or license authorizes such a commitment, and the facility was otherwise 
operating within the terms of its permit or license, so long as, in the 
case of damages to an Indian tribe occurring pursuant to a Federal 
permit or license, the issuance of that license or permit was not 
inconsistent with the fiduciary duty of the United States with respect 
to such Indian tribe; or
    (2) The damages and the release of a hazardous substance from which 
such damages resulted have occurred wholly before the enactment of 
CERCLA; or
    (3) The application of a pesticide product registered under the 
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 135-135k; 
or
    (4) Any other federally permitted release, as defined in secton 
101(10) of CERCLA; or
    (5) Resulting from the release or threatened release of recycled oil 
from a service station dealer as described in section 107(a) (3) or (4) 
of CERCLA if such recycled oil is not mixed with any other hazardous 
substance and is stored, treated, transported or otherwise managed in 
compliance with regulations or standards promulgated pursuant to section 
3014 of the Solid Waste Disposal Act and other applicable authorities.
    (h) Surface water resources. (1) The area where the injured surface 
water resource differs from baseline shall be determined by determining 
the areal extent of oil or hazardous substances in the water or on the 
sediments.
    (2)(i) Areal variation in concentrations of the discharged or 
released substances dissolved in or floating on water, adhering to 
suspended sediments, or adhering to bed, bank, or shoreline sediments 
from exposed areas should be determined in sufficient detail to 
approximately map the boundary separating areas with concentrations 
above baseline from areas with concentrations equal to or less than 
baseline.
    (ii) The size, shape, and location of the plume may be estimated 
using time of travel and dispersion data obtained under Sec. 11.63 of 
this part, since plumes of dissolved or floating substances may be 
rapidly transported and dispersed in surface water.
    (3) Water and sediment samples may be collected and chemically 
analyzed and stage, water discharge, or tidal flux measurements made, as 
appropriate, to collect new data required by this section.
    (4)(i) Within the area determined in paragraph (h)(2) of this 
section to be above baseline, the services provided by the surface water 
or sediments that are affected should be determined. This determination 
may include computation of volumes of water or sediments affected, total 
areas of water or sediment affected, volume of water used from the 
affected surface water resource, or other appropriate measures.
    (ii) The services should be determined with consideration of 
potential effects on downstream or downcurrent resources during the 
recovery period, as determined in Sec. 11.73 of this part, resulting 
from transport of dissolved substances and of substances adhering to 
sediments.
    (i) Ground water resources. (1) The area where the injured ground 
water resource differs from baseline should be determined by determining 
the areal extent of oil or hazardous substances in

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water or geologic materials in the unsaturated zone and identified 
geohydrological units, which are aquifers or confining layers, within 
the assessment area.
    (2)(i) The lateral and vertical extent of discharged or released 
substances in the unsaturated zone, if it is known to be exposed, should 
be determined.
    (ii) The lateral and vertical extent of plumes within geohydrologic 
units known to be exposed should be determined. Concentrations of 
substances within and adjacent to each plume should be determined in 
sufficient detail to approximately locate the boundary separating areas 
with concentrations above baseline from areas with concentrations equal 
to or less than baseline.
    (3) Water or geologic materials may be sampled and chemically 
analyzed, or surface-geophysical techniques may be used for collecting 
new data required by this section. General verification of the plume 
boundaries by chemical analysis of selected water samples should be done 
if boundary locations are initially determined by surface-geophysical 
measurements.
    (4)(i) Within the area determined in paragraph (i)(2)(ii) of this 
section to be above baseline, the services provided by the ground water 
that is affected should be determined. This determination may include 
computation of the volume of water affected, volume of affected ground 
water pumped from wells, volume of affected ground water discharged to 
streams or lakes, or other appropriate measures.
    (ii) The services should be determined with consideration of 
potential enlargement of the plume during the recovery period, as 
determined in Sec. 11.73 of this part, resulting from ground water 
transport of the substances.
    (iii) The effects on the ground water resource during the recovery 
period resulting from potential remobilization of discharged or released 
substances that may be adhering, coating, or otherwise bonding to 
geologic materials should be considered.
    (j) Air resources. The area where the injured air resource differs 
from baseline should be determined by determining the geographical area 
affected, the degree of impairment of services, and the period of time 
impairment occurred.
    (k) Geologic resources. The area where the injured geologic resource 
differs from baseline should be determined by determining:
    (1) The surface area of soil with reduced ability to sustain the 
growth of vegetation from the baseline level;
    (2) The surface area or volume of soil with reduced suitability as 
habitat for biota from the baseline level;
    (3) The volume of geologic resources that may act as a source of 
toxic leachate;
    (4) The tonnage of mineral resources whose access, development, or 
use is restricted as a result of the discharge or release.
    (l) Biological resources. (1) The extent to which the injured 
biological resource differs from baseline should be determined by 
analysis of the population or the habitat or ecosystem levels. Although 
it may be necessary to measure populations to determine changes in the 
habitats or ecosystems, and vice versa, the final result should be 
expressed as either a population change or a habitat or ecosystem change 
in order to prevent double counting in the economic analysis. This 
separation may be ignored only for resources that do not interact 
significantly and where it can be demonstrated that double counting is 
being avoided.
    (2) Analysis of population changes or habitat or ecosystem changes 
should be based upon species, habitats, or ecosystems that have been 
selected from one or more of the following categories:
    (i) Species or habitats that can represent broad components of the 
ecosystem, either as representatives of a particular ecological type, of 
a particular food chain, or of a particular service;
    (ii) Species, habitats, or ecosystems that are especially sensitive 
to the oil or hazardous substance and the recovery of which will provide 
a useful indicator of successful restoration; or
    (iii) Species, habitats, or ecosystems that provide especially 
significant services.
    (3) Analysis of populations, habitats, or ecosystems shall be 
limited to those

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populations, habitats, or ecosystems for which injury has been 
determined in the Injury Determination phase or those that can be linked 
directly through services to resources for which injury has been so 
determined. Documentation of the service link to the injured resource 
must be provided in the latter case.
    (4) Population, habitat, or ecosystem measurement methods that 
provide data that can be interpreted in terms of services must be 
selected. To meet this requirement, a method should:
    (i) Provide numerical data that will allow comparison between the 
assessment area data and the control area or baseline data;
    (ii) Provide data that will be useful in planning efforts for 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources, and in later measuring the success of those 
efforts, and, where relevant, will allow calculation of compensable 
value; and
    (iii) Allow correction, as applicable, for factors such as dispersal 
of organisms in or out of the assessment area, differential 
susceptibility of different age classes of organisms to the analysis 
methods and other potential systematic biases in the data collection.
    (5) When estimating population differences of animals, standard and 
widely accepted techniques, such as census, mark-recapture, density, and 
index methods, and other estimation techniques appropriate to the 
species and habitat shall be used. Frequencies of injury observed in the 
population shall be measured as applicable.
    (i) In general, methods used for estimates of wildlife populations 
should follow standard and widely accepted techniques such as those 
recommendations provided in the ``Wildlife Management Techniques 
Manual'' (4th edition, Wildlife Society, 1980, available from the 
Wildlife Society, 5410 Grosvenor Lane, Bethesda, MD 20814), including 
references cited and recommended in that manual. The specific technique 
used need not be cited in that manual, but should meet its 
recommendations for producing reliable estimates or indices.
    (ii) Measurement of age structures, life table statistics, or age 
structure models generally will not provide satisfactory measurement of 
changes due to a discharge of oil or release of a hazardous substance 
unless there is clear evidence that the oil or hazardous substance has 
differentially affected different age classes and there are reliable 
baseline age structure data available for the population being assessed.
    (iii) Mortality from single incidents may be used to estimate 
changes in populations only when there are available baseline population 
data for the area, so that the proportion lost can be estimated, and 
when corrections can be made for potential sampling biases, such as 
natural mortality and factors influencing distribution of carcasses and 
ability of investigators to find them. Specific techniques for measuring 
mortality include the following:
    (A) Fish mortality in freshwater areas may be estimated from counts 
of carcasses, using methods and guidelines for estimating numbers of 
fish killed contained in Part II (Fish-Kill Counting Guidelines) of the 
``Monetary Values of Freshwater Fish and Fish-Kill Counting Guidlines,'' 
American Fisheries Society Special Publication Number 13, 1982 
(incorporation by reference, see Sec. 11.18), including use of 
appropriate random sampling methods and tagged carcasses as identified 
and discussed in Part II of that publication.
    (B) The authorized official may adapt the techniques discussed in 
paragraph (l) (5) (iii) (A) of this section for counting dead aquatic 
birds or for counting marine or estuarine fish or birds. Such adaptation 
will require the documentation of the methods used to avoid sampling 
biases.
    (C) Fish mortality may also be estimated by use of an in situ 
bioassay technique that is similar to that identified in 
Sec. 11.62(f)(4)(i)(C) of this part, if the oil or hazardous substance 
is still present at levels that resulted in injury and if appropriate 
instream controls can be maintained at control areas.
    (6) Plant populations may be measured using standard techniques, 
such as population density, species composition, diversity, dispersion, 
and cover,
    (7) Forest and range resources may be estimated by standard forestry 
and range management evaluation techniques.

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    (8) Habitat quality may be measured using techniques such as the 
Habitat Evaluation Procedures (HEP) developed and used by the U.S. Fish 
and Wildlife Service.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5175, Feb. 22, 1988; 59 
FR 14283, Mar. 25, 1994]