[Code of Federal Regulations]

[Title 15, Volume 3]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 15CFR990.53]



[Page 391-393]

 

                  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]