[Code of Federal Regulations]
[Title 15, Volume 3]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 15CFR990.53]

[Page 392-394]
 
                  TITLE 15--COMMERCE AND FOREIGN TRADE
 
CHAPTER IX--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT 
                               OF COMMERCE
 
PART 990_NATURAL RESOURCE DAMAGE ASSESSMENTS--Table of Contents
 
                  Subpart E_Restoration Planning Phase
 
Sec. 990.53  Restoration selection--developing restoration alternatives.

    (a) General. (1) If the information on injury determination and 
quantification under Sec. Sec. 990.51 and 990.52 of this part and its 
relevance to restoration justify restoration, trustees may proceed with 
the Restoration Planning Phase. Otherwise, trustees may not take 
additional action under this part. However, trustees may recover all 
reasonable assessment costs incurred up to this point.
    (2) Trustees must consider a reasonable range of restoration 
alternatives before selecting their preferred alternative(s). Each 
restoration alternative is comprised of primary and/or compensatory 
restoration components that address one or more specific injury(ies) 
associated with the incident. Each alternative must be designed so that, 
as a package of one or more actions, the

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alternative would make the environment and public whole. Only those 
alternatives considered technically feasible and in accordance with 
applicable laws, regulations, or permits may be considered further under 
this part.
    (b) Primary restoration-- (1) General. For each alternative, 
trustees must consider primary restoration actions, including a natural 
recovery alternative.
    (2) Natural recovery. Trustees must consider a natural recovery 
alternative in which no human intervention would be taken to directly 
restore injured natural resources and services to baseline.
    (3) Active primary restoration actions. Trustees must consider an 
alternative comprised of actions to directly restore the natural 
resources and services to baseline on an accelerated time frame. When 
identifying such active primary restoration actions, trustees may 
consider actions that:
    (i) Address conditions that would prevent or limit the effectiveness 
of any restoration action;
    (ii) May be necessary to return the physical, chemical, and/or 
biological conditions necessary to allow recovery or restoration of the 
injured natural resources (e.g., replacing substrate or vegetation, or 
modifying hydrologic conditions); or
    (iii) Return key natural resources and services, and would be an 
effective approach to achieving or accelerating a return to baseline 
(e.g., replacing essential species, habitats, or public services that 
would facilitate the replacement of other, dependent natural resource or 
service components).
    (c) Compensatory restoration-- (1) General. For each alternative, 
trustees must also consider compensatory restoration actions to 
compensate for the interim loss of natural resources and services 
pending recovery.
    (2) Compensatory restoration actions. To the extent practicable, 
when evaluating compensatory restoration actions, trustees must consider 
compensatory restoration actions that provide services of the same type 
and quality, and of comparable value as those injured. If, in the 
judgment of the trustees, compensatory actions of the same type and 
quality and comparable value cannot provide a reasonable range of 
alternatives, trustees should identify actions that provide natural 
resources and services of comparable type and quality as those provided 
by the injured natural resources. Where the injured and replacement 
natural resources and services are not of comparable value, the scaling 
process will involve valuation of lost and replacement services.
    (d) Scaling restoration actions-- (1) General. After trustees have 
identified the types of restoration actions that will be considered, 
they must determine the scale of those actions that will make the 
environment and public whole. For primary restoration actions, scaling 
generally applies to actions involving replacement and/or acquisition of 
equivalent of natural resources and/or services.
    (2) Resource-to-resource and service-to-service scaling approaches. 
When determining the scale of restoration actions that provide natural 
resources and/or services of the same type and quality, and of 
comparable value as those lost, trustees must consider the use of a 
resource-to-resource or service-to-service scaling approach. Under this 
approach, trustees determine the scale of restoration actions that will 
provide natural resources and/or services equal in quantity to those 
lost.
    (3) Valuation scaling approach. (i) Where trustees have determined 
that neither resource-to-resource nor service-to-service scaling is 
appropriate, trustees may use the valuation scaling approach. Under the 
valuation scaling approach, trustees determine the amount of natural 
resources and/or services that must be provided to produce the same 
value lost to the public. Trustees must explicitly measure the value of 
injured natural resources and/or services, and then determine the scale 
of the restoration action necessary to produce natural resources and/or 
services of equivalent value to the public.
    (ii) If, in the judgment of the trustees, valuation of the lost 
services is practicable, but valuation of the replacement natural 
resources and/or services cannot be performed within a reasonable time 
frame or at a reasonable cost, as determined by Sec. 990.27(a)(2)

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of this part, trustees may estimate the dollar value of the lost 
services and select the scale of the restoration action that has a cost 
equivalent to the lost value. The responsible parties may request that 
trustees value the natural resources and services provided by the 
restoration action following the process described in Sec. 990.14(c) of 
this part.
    (4) Discounting and uncertainty. When scaling a restoration action, 
trustees must evaluate the uncertainties associated with the projected 
consequences of the restoration action, and must discount all service 
quantities and/or values to the date the demand is presented to the 
responsible parties. Where feasible, trustees should use risk-adjusted 
measures of losses due to injury and of gains from the restoration 
action, in conjunction with a riskless discount rate representing the 
consumer rate of time preference. If the streams of losses and gains 
cannot be adequately adjusted for risks, then trustees may use a 
discount rate that incorporates a suitable risk adjustment to the 
riskless rate.

[61 FR 500, Jan. 5, 1996, as amended at 67 FR 61493, Oct. 1, 2002]