[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: 43CFR11.72]

[Page 279-284]
 
                    TITLE 43--PUBLIC LANDS: INTERIOR
 
PART 11--NATURAL RESOURCE DAMAGE ASSESSMENTS--Table of Contents
 
                      Subpart E--Type B Procedures
 
Sec. 11.72  Quantification phase--baseline services determination.

    (a) Requirements. The authorized official shall determine the 
physical, chemical, and biological baseline conditions and the 
associated baseline services for injured resources at the assessment 
area to compare that baseline with conditions found in Sec. 11.71 of 
this part.
    (b) General guidelines. Baseline data shall be selected according to 
the following general guidelines:
    (1) Baseline data should reflect conditions that would have been 
expected at the assessment area had the discharge of oil or release of 
hazardous substances not occurred, taking into account both natural 
processes and those that are the result of human activities.
    (2) Baseline data should include the normal range of physical, 
chemical, or biological conditions for the assessment area or injured 
resource, as appropriate for use in the analysis in Sec. 11.71 of this 
part, with statistical descriptions of that variability. Causes of 
extreme or unusual value in baseline data should be identified and 
described.
    (3) Baseline data should be as accurate, precise, complete, and 
representative of the resource as the data used or obtained in 
Sec. 11.71 of this part. Data used for both the baseline and services 
reduction determinations must be collected by comparable methods. When 
the same method is not used, comparability of the data collection 
methods must be demonstrated.
    (4) Baseline data collection shall be restricted to those data 
necessary for conducting the assessment at a reasonable cost. In 
particular, data collected should focus on parameters that are directly 
related to the injuries quantified in Sec. 11.71 of this part and to 
data appropriate and necessary for the Damage Determination phase.
    (5) The authorized official may use or authorize for use baseline 
data that are not expected to represent fully the baseline conditions, 
subject to the following requirements:
    (i) The authorized official shall document how the requirements of 
this paragraph are met:
    (ii) These substitute baseline data shall not cause the difference 
between baseline and the conditions in the assessment area to exceed the 
difference that would be expected if the baseline were completely 
measured; and
    (iii) The authorized official has determined that it is either not 
technically feasible or not cost-effective, as those phrases are used in 
this part, to measure the baseline conditions fully and that these 
baseline data are as close to the actual baseline conditions as can be 
obtained subject to these limitations.
    (c) Historical data. If available and applicable, historical data 
for the assessment area or injured resource should be used to establish 
the baseline. If a significant length of time has elapsed since the 
discharge or release first occurred, adjustments should be made to 
historical data to account for changes that have occurred as a result of 
causes other than the discharge or release. In addition to specialized 
sources identified in paragraphs (g) through (k) of this section, one or 
more of the following general sources of historical baseline data may be 
used:
    (1) Environmental Impact Statements or Environmental Assessments 
previously prepared for purposes of the National Environmental Policy 
Act (NEPA), 42 U.S.C. 4321-4361, similar documents prepared under other 
Federal and State laws, and background studies done for any of these 
documents;
    (2) Standard scientific and management literature sources 
appropriate to the resource;
    (3) Computerized data bases for the resource in question;
    (4) Public or private landholders in the assessment area or in 
neighboring areas;
    (5) Studies conducted or sponsored by natural resource trustees for 
the resource in question;
    (6) Federally sponsored research identified by the National 
Technical Information Service;

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    (7) Studies carried out by educational institutions; and
    (8) Other similar sources of data.
    (d) Control areas. Where historical data are not available for the 
assessment area or injured resource, or do not meet the requirements of 
this section, baseline data should be collected from control areas. 
Historical data for a control area should be used if available and if 
they meet the guidelines of this section. Otherwise, the baseline shall 
be defined by field data from the control area. Control areas shall be 
selected according to the following guidelines, and both field and 
historical data for those areas should also conform to these guidelines:
    (1) One or more control areas shall be selected based upon their 
similarity to the assessment area and lack of exposure to the discharge 
or release;
    (2) Where the discharge or release occurs in a medium flowing in a 
single direction, such as a river or stream, at least one control area 
upstream or upcurrent of the assessment area shall be included, unless 
local conditions indicate such an area is inapplicable as a control 
area;
    (3) The comparability of each control area to the assessment area 
shall be demonstrated, to the extent technically feasible, as that 
phrase is used in this part;
    (4) Data shall be collected from the control area over a period 
sufficient to estimate normal variability in the characteristics being 
measured and should represent at least one full cycle normally expected 
in that resource;
    (5) Methods used to collect data at the control area shall be 
comparable to those used at the assessment area, and shall be subject to 
the quality assurance provisions of the Assessment Plan;
    (6) Data collected at the control area should be compared to values 
reported in the scientific or management literature for similar 
resources to demonstrate that the data represent a normal range of 
conditions; and
    (7) A control area may be used for determining the baseline for more 
than one kind of resource, if sampling and data collection for each 
resource do not interfere with sampling and data collection for the 
other resources.
    (e) Baseline services. The baseline services associated with the 
physical, chemical, or biological baseline data shall be determined.
    (f) Other requirements. The methodologies in paragraphs (g) through 
(k) of this section shall be used for determining baseline conditions 
for specific resources in addition to following the general guidelines 
identified in paragraphs (a) through (e) of this section. If a 
particular resource is not being assessed for the purpose of the Damage 
Determination phase, and data on that resource are not needed for the 
assessment of other resources, baseline data for the resource shall not 
be collected.
    (g) Surface water resources. (1) This paragraph provides additional 
guidance on determining baseline services for surface water resources. 
The general guidance provided in paragraphs (a) through (f) of this 
section should be followed before beginning any work described in this 
paragraph.
    (2) Applicable and available historical data shall be gathered to 
determine baseline conditions for the surface water resource at the 
assessment area. If deemed inadequate for determining baseline 
conditions, such data shall be used to the extent technically feasible, 
as that phrase is used in this part, in designating the control areas 
described in paragraph (g)(3) of this section for the surface water 
resource determined to be injured.
    (3) Control areas shall be selected for the surface water resource 
subject to the general criteria in paragraph (d) of this section and 
additional criteria as follows:
    (i) For each injured stream or river reach, a control area shall be 
designated consisting of a stream or river reach of similar size, that 
is as near to the assessment area as practical and, if practical, that 
is upstream or upcurrent from the injured resource, such that the 
channel characteristics, sediment characteristics, and streamflow 
characteristics are similar to the injured resource and the water and 
sediments of the control area, because of location, have not been 
exposed to the discharge or release.
    (ii) For each injured standing water body, such as a marsh, pond, 
lake, bay,

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or estuary, a control area shall be designated consisting of a standing 
water body of similar size that is as near to the assessment area as 
practical, such that the sediment characteristics and inflow-outflow 
characteristics of the control area are similar to the injured resource 
and the water and sediments of the control area, because of location, 
have not been exposed to the discharge or release.
    (4)(i) Within the control area locations shall be designated for 
obtaining samples of water and sediments.
    (ii) The water discharge, stage, or tidal flux shall be measured and 
representative water and sediments collected as follows:
    (A) Measure stage, water discharge, and tidal flux as appropriate at 
the same time that water and sediment samples are collected; and
    (B) Obtain comparable samples and measurements at both the control 
and assessment areas under similar hydraulic conditions.
    (iii) Measurement and samples shall be obtained as described in this 
paragraph in numbers sufficient to determine:
    (A) The approximate range of concentration of the substances in 
water and sediments;
    (B) The variability of concentration of the substances in water and 
sediments during different conditions of stage, water discharge, or 
tidal flux; and
    (C) The variability of physical and chemical conditions during 
different conditions of stage, water discharge, or tidal flux relating 
to the transport or storage of the substances in water and sediments.
    (5) Samples should be analyzed from the control area to determine 
the physical properties of the water and sediments, suspended sediment 
concentrations in the water, and concentrations of oil or hazardous 
substances in water or in the sediments. Additional chemical, physical, 
or biological tests may be made, if necessary, to obtain otherwise 
unavailable data for the characteristics of the resource and comparison 
with the injured resource at the assessment area.
    (6) In order to establish that differences between surface water 
conditions of the control and assessment areas are statistically 
significant, the median and interquartile range of the available data or 
the test results should be compared using the Mann-Whitney and ranked 
squares tests, respectively.
    (7) Additional tests may be made of samples from the control area, 
if necessary, to provide otherwise unavailable information about 
physical, chemical, or biochemical processes occurring in the water or 
sediments relating to the ability of the injured surface water resource 
to recover naturally.
    (h) Ground water resources. (1) This paragraph provides additional 
guidance on determining baseline services for ground water resources. 
The general guidance provided in paragraphs (a) through (f) of this 
section should be followed before beginning any work described in this 
paragraph.
    (2) Applicable and available historical data shall be gathered to 
determine baseline conditions for the ground water resource at the 
assessment area. If deemed inadequate for determining baseline 
conditions, such data shall be used to the extent technically feasible, 
as that phrase is used in this part, in designating the control areas 
described in paragraph (h)(3) of this section for the ground water 
resource determined to be injured.
    (3) A control area shall be designated subject to the general 
criteria in paragraph (d) of this section and as near to the assessment 
area as practical, such that, within the control area, geological 
materials, geohydrological units, and hydrologic conditions are similar 
to the assessment area, and ground water resources are not exposed to 
substances from the discharge or release.
    (4) Within the control area, wells shall be identified or drilled, 
designated as control wells, to obtain representative ground water 
samples for analysis. The location, depth, and number of control wells 
and the number of ground water samples collected should be sufficient to 
estimate the vertical and lateral variation in concentration of the 
substances in both the unsaturated zone and in ground water from 
geohydrologic units similar to units tested in the assessment area.

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    (i) Representative water samples from each control well shall be 
collected and analyzed. The analyses should determine the physical and 
chemical properties of the ground water relating to the occurrence of 
oil or hazardous substances.
    (ii) If the oil or hazardous substances are commonly more 
concentrated on geologic materials than in ground water, representative 
samples of geologic materials from aquifers and the unsaturated zone as 
appropriate should be obtained and chemically analyzed. The location, 
depth, and number of these samples should be sufficient to determine the 
vertical and lateral variation in concentration of the oil or hazardous 
substances absorbing or otherwise coating geologic materials in the 
control area. These samples may also be analyzed to determine porosity, 
mineralogy, and lithology of geologic materials if these tests will 
provide otherwise unavailable information on storage or mobility of the 
oil or hazardous substances in the ground water resource.
    (5) In order to establish that differences between ground water 
conditions of the control and assessment areas are statistically 
significant, the median and interquartile range of available data or the 
test results from similar geohydrologic units should be compared using 
the Mann-Whitney and ranked squares test, respectively.
    (6) Additional tests may be made of samples from the control area, 
if necessary, to provide otherwise unavailable information about 
chemical, geochemical, or biological processes occurring in the ground 
relating to the ability of the injured ground water resource to recover 
naturally.
    (i) Air resources. (1) This paragraph provides additional guidance 
on determining baseline services for air resources. The general guidance 
provided in paragraphs (a) through (f) of this section should be 
followed before beginning any work described in this paragraph.
    (2) Applicable and available historical data shall be gathered on 
ambient air quality and source emissions to determine baseline 
conditions for the air resource. These historical data may be used to 
determine baseline conditions if the data satisfy the general guidelines 
in paragraph (d) of this section and if all the following criteria are 
met:
    (i) The methodology used to obtain these historical data would 
detect the oil or hazardous substance at levels appropriate for 
comparison to the concentrations measured in Sec. 11.71 of this part;
    (ii) The effect of known or likely emission sources near the 
assessment area other than the source of the discharge or release can be 
identified or accounted for in the historical data; and
    (iii) The historical data show that normal concentrations of the oil 
or hazardous substance are sufficiently predictable that changes as a 
result of the discharge or release are likely to be detectable.
    (3) If historical data appropriate to determine baseline conditions 
at the assessment area are lacking, one or more control areas, as 
needed, shall be designated subject to the general criteria of paragraph 
(d) of this section and the following additional factors, which shall 
also be considered in establishing a monitoring schedule;
    (i) Applicable and available historical data shall be used to the 
extent technically feasible, as that phrase is used in this part, in 
designating control areas or, lacking historical data, the factors in 
paragraph (i)(3)(iii) of this section shall be considered;
    (ii) Control areas shall be spatially representative of the range of 
air quality and meteorological conditions likely to have occurred at the 
assessment area during the discharge or release into the atmosphere; and
    (iii) The following additional factors shall be considered:
    (A) The nature of the discharge or release and of potential 
alternative sources of the oil or hazardous substance, including such 
factors as existing sources, new sources, intermittent sources, mobile 
sources, exceptional events, trends, cycles, and the nature of the 
material discharged or released;
    (B) Environmental conditions affecting transport, such as wind speed 
and direction, atmospheric stability, temperature, humidity, solar 
radiation intensity, and cloud cover; and

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    (C) Other factors, such as timing of the discharge or release, use 
patterns of the affected area, and the nature of the injury resulting 
from the discharge or release.
    (4)(i) The preferred measurement method is to measure air 
concentrations of the oil or hazardous substance directly using the same 
methodology employed in Sec. 11.71 of this part.
    (ii) Nonspecific or chemical compound class methodologies may be 
used to determine baseline generically only in situations where it can 
be demonstrated that measuring indicator substances will adequately 
represent air concentrations of other components in a complex mixture.
    (j) Geologic resources. (1) This paragraph provides additional 
guidance on determining baseline services for geologic resources. The 
general guidance provided in paragraphs (a) through (f) of this section 
should be followed before beginning any work described in this 
paragraph.
    (2) Applicable and available historical data shall be gathered to 
determine baseline conditions for the geologic resource at the 
assessment area. If deemed inadequate for determining baseline 
conditions, such data shall be used to the extent technically feasible, 
as that phrase is used in this part, in designating the control areas 
described in paragraph (j)(3) of this section for the geologic resource 
determined to be injured.
    (3) Control areas shall be selected for geologic resources subject 
to the general criteria in paragraph (d) of this section and additional 
criteria as follows:
    (i) Similarity of exposed soil or geologic material in the 
assessment area with the geologic resource in the control area should be 
the primary factor in selecting the control area. Other factors, 
including climate, depth of ground water, vegetation type and area 
covered, land slope and land area, and hydraulic gradients and spatial 
relation to source should be comparable to the assessment area.
    (ii) The control area shall be selected such that the geologic 
resource in the control area is not exposed to the discharge or release.
    (4)(i) A sufficient number of samples from unbiased, randomly 
selected locations in the control area shall be obtained in order to 
characterize the areal variability of the parameters measured. Each 
sample should be analyzed to determine the physical and chemical 
properties of the geologic materials relating to the occurrence of the 
oil or hazardous substance. Additional chemical, physical, or biological 
tests may be made, if necessary, to obtain otherwise unavailable data 
for the characterization and comparison with the injured resource at the 
assessment area.
    (ii) The mean and standard deviation of each parameter measured 
shall be used as the basis of comparison between the assessment and 
control areas.
    (k) Biological resources. (1) This paragraph provides additional 
guidance on determining baseline services for biological resources. The 
general guidance provided in paragraphs (a) through (f) of this section 
should be followed before beginning any work described in this 
paragraph.
    (2) Applicable and available historical data shall be gathered to 
determine baseline conditions for the biological resource at the 
assessment area and should include both population and habitat data if 
available. These data may be derived from the data sources identified in 
paragraph (c) of this section, as well as from the following:
    (i) Aerial photographs or maps showing distribution and extent of 
habitat types or other biological resources before the discharge or 
release;
    (ii) Biological specimens in systematic museum or herbarium 
collections and associated records, including labels and collectors' 
field notes; and
    (iii) Photographs showing the nature of the habitat before the 
discharge or release when the location and date are well documented.
    (3)(i) Control areas shall be selected for biological resources 
subject to the general criteria in paragraph (d) of this section and 
additional criteria as follows:
    (A) The control area shall be comparable to the habitat or ecosystem 
at the assessment area in terms of distribution, type, species 
composition,

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plant cover, vegetative types, quantity, and relationship to other 
habitats;
    (B) Physical characteristics of the control and assessment areas 
shall be similar; and
    (C) If more than one habitat or ecosystem type is to be assessed, 
comparable control areas should be established for each, or a control 
area should be selected containing those habitat types in a comparable 
distribution.
    (ii) To the extent they are available, historical data should be 
gathered and used for the control area. Lacking adequate historical data 
for both the control and assessment areas, the control areas shall be 
used for the following purposes, as appropriate to the quantification:
    (A) To measure baseline biota population levels or habitat or 
ecosystem quality, as discussed in Sec. 11.71(l) of this part; and
    (B) To measure the natural frequency, if any, of the injury being 
assessed in unaffected populations or to demonstrate the lack of that 
injury in unaffected populations if these have not been done for 
purposes of the Injury Determination, and if needed for purposes of the 
Quantification.
    (4) In addition, a control area should be used to collect control 
specimens, as needed, for the Injury Determination procedures.
    (5) The identity of species for which Damage Determinations will be 
made or that play an important role in the assessment shall be confirmed 
except in the case where collecting the specimens of a species is likely 
to compromise the restoration of the species. One or more of the 
following methods shall be used:
    (i) Specimens of the species shall be provided to an independent 
taxonomist or systematic biologist, who has access to a major systematic 
biology collection for that taxon, and who shall provide written 
confirmation of their identity to the species level;
    (ii) A reference collection of specimens of the species, prepared 
and preserved in a way standard for systematic collections for that 
taxon, shall be maintained at least through final resolution of the 
damage action at which time it should be transferred to a major 
systematic biology collection; or
    (iii) In the case of a species where collecting specimens is likely 
to compromise the recovery or restoration of that species population, 
the authorized official shall determine and use an alternative method 
for confirming species identity that will be consistent with established 
management goals for that species.

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