Factors to Evaluate Proposed Restoration Projects under the Oil

Pollution Act

Patuxent River Oil Spill

On April 7, 2000 at 1800 hours, a leak from a pipeline which supplies fuel for the Chalk 

Point Generating Station was detected. The pipeline is owned by PEPCO and operated by ST 

Services. Approximately 126,000 gallons of a mixture of #2 and #6 oil were released into 

Swansons Creek, a tributary of the Patuxent River. Ultimately, approximately 17 linear miles of 

the Patuxent River and 40 miles of shoreline including the mainstem of the Patuxent and tributaries 

(Swanson, Indian, and Trent Hall creeks) were oiled. Initial assessment activities indicate that 

injuries appear to be centered on tidal wetlands, certain birds (ruddy ducks) and furbearing animals 

(muskrats). Other areas of potential injury currently under evaluation include benthic organisms, 

other birds (including waterfowl, herons, ospreys, and eagles), wildlife (including terrapins), as well 

as finfish and shellfish (including crabs, oysters, clams and fish ). Lost recreational use of the river 

(including shoreline use, recreational fishing, boating, swimming, and shell fishing) is also being 

evaluated. 

Under the Natural Resource Damage (NRD) Regulations implementing the Oil Pollution 

Act (OPA), 15 C.F.R. Part 990, is to make the environment and public whole for injuries to 

natural resources and natural resource services resulting from a discharge of oil. This goal is 

achieved through the restoration, rehabilitation, replacement or acquisition of equivalent natural 

resources and/or services. Restoration is comprised of primary and compensatory restoration 

activities. Primary restoration activities are designed to restore an injured resource to its 

baseline condition; that is its condition but for the injury from the oil release. Compensatory 

restoration focuses on activities which compensate the public for the loss of those resources and 

their services from the time of injury until such time as the injured resources are fully restored to 

their baseline condition. Further, these regulations require the Trustees to identify a reasonable 

range of restoration alternatives, evaluate and select the preferred alternative(s), and develop a 

Draft and Final Restoration Plan. 

The OPA regulations identify six “factors” which, at minimum, the Natural Resource 

Trustees (Trustees)1 should consider when evaluating restoration options.2 The Trustees have 

 

1The Trustees are the Maryland Department of the Environment, the Maryland Department of 

Natural Resources, the National Oceanic and Atmospheric Administration, and the U.S. Fish 

and Wildlife Service

2Under the regulations, the Trustees are to evaluate restoration alternatives based “at minimum” 

upon the following: (1) the costs to carry out the alternative; (2) the extent to which each 

alternative is expected to meet the trustees’ goals and objectives in returning the injured natural 

resources and services to baseline and /or compensating for interim losses; (3) the likelihood of 

success of each alternative; (4) the extent to which each alternative will prevent future injury or 
supplemented these factors with additional ones to further aid in evaluating restoration. The 

factors have been divided into primary and secondary categories with the greatest weight 

assigned to those in the primary category. Each of these factors is discussed below (OPA 

factors are identified with an asterisk (*)). 

 

PRIMARY FACTORS

1. Return Injured Natural Resources to Baseline and/or Compensate for Interim 

Losses.* The alternative must demonstrate a rational relationship to the injuries 

giving rise to the claim for natural resource damages.

The OPA regulations require that the Trustees’ “goals and objectives” for restoration be 

considered. To ensure that the injured resources are returned to baseline and that interim losses 

are properly compensated for, the restoration projects must demonstrate a rational relationship 

to the injuries giving rise to the claim for natural resource damages. There are three main 

components to evaluating the relationship: similarity in attributes to the injured habitat; proximity 

to the affected area; and the projects must be of the appropriate scale . Determining whether a 

rational relationship exists will depend on the site and case-specific facts.

a) Similarity in Attributes to the Injured Habitat

The NRD regulations implementing OPA require that “When identifying the 

compensatory restoration components of the restoration alternatives, Trustees must first 

consider compensatory restoration actions that provide services of the same type and quantity, 

and of comparable values as those lost.” 

Restoration options are evaluated to determine how well the restoration alternative 

would address the injuries to natural resources that occurred as result of the incident. Screening 

questions include: Does the option provide the same type of natural resources and services, 

both on site and off-site, that are lost due to the injury? If not, will the proposed option result in 

resources and services that are similar or complimentary to the injured natural resources and 

services? Alternatives that come closest to restoring the same type of organisms and habitats as 

those injured by the incident are more likely to be selected than those projects where the nexus 

is not so close.3

 

avoid collateral injury as a result of implementation; (5) the extent to which each alternative 

benefits more than one natural resource or service; and, (6) the effect of each alternative on 

public health and safety. 15 C.F.R. § 990.54(a).

3

 In general, the natural resource trustees prefer restoration projects over land acquisition 

projects.

Examples of restoration projects that would provide similar attributes to injured 

resources would include, but are not limited to: fish passageway construction or oyster bed 

creation projects to compensate for fish or shellfish injuries (so long as the damage assesment 

concludes that there is finfish or shellfish injury), marsh enhancement/ restoration to compensate 

for marsh injury (so long as the damage assesment concludes that there is a marsh injury), nest 

boxes for birds to compensatefor bird injury (so long as the damage assesment concludes that 
there is a bird injury), and fish stocking to compensate for lost human use such as fishing (so 

long as the damage assesment concludes that there is lost human use associated with the 

incident).

b) Proximity to Affected Area

Proximity addresses whether the restoration alternative is located within the area 

injured or is within a reasonable distance of the affected area (e.g., same watershed, ecosystem, 

and/or political boundary). It also considers the extent to which the option directly or indirectly 

benefits injured habitats or compensates for lost use within the affected area. For example, a 

habitat restoration project located some distance from the habitat injured may be sufficiently 

related to the injured resources, based on species migratory patterns, patterns of habitat use, 

affected life stages, or predator/prey relationships to warrant consideration. Similarly, a project 

in one location which is intended to restore human uses lost in another location may be

reasonably related to the lost uses if there is evidence indicating that the affected user groups 

would likely benefit from the project.

For the Patuxent River Oil Spill of April 7, 2000, the affected area may be defined as the 

lower Patuxent River Basin including upstream of the spill site. However, projects located in other 

areas of Chesapeake Bay may also be considered if a relationship to the injured resource can be 

demonstrated.

c) Compensatory Restoration Must Be Scalable

The compensatory restoration projects selected must be scaled in order to compensate for 

the injury. Accordingly, the gains in resources and/or services provided by the compensatory 

projects must be equal to the resources and/or services lost as a result of the injury. 

2. Likelihood of Success and Technical Feasibility of Each Alternative* 

This factor considers whether a restoration project can be successfully implemented in a 

reasonable amount of time given available technology and expertise. Generally, the likelihood of a 

project’s success is evaluated based on whether the methods: (1) are proven; (2) have a high rate 

of success as documented in the literature; (3) are capable of being implemented in a cost effective 

manner; and, (4) characterize the natural resource service gains stemming from the project. This 

does not preclude the use of existing technology in new and creative ways so long as there is a 

significant likelihood of successful implementation. Nevertheless, for new or unproven technologies, 

the Trustees should provide technical justification demonstrating that there is a reasonable basis to 

believe that the project will be successful.

This factor also considers project and site-specific considerations that may influence project 

success. For example, for an oyster bed project, project attributes that may affect technical 

feasibility include sediment type, adjacent sources of pollution, salinities, and navigation needs. For 

a marsh creation project, project attributes that may affect technical feasibility include the availability 

of a suitable sediment source, and the potential for wave or storm stress.

3. Regulatory Considerations

Restoration projects must comply with applicable federal, state, and local laws and 

regulations.

SECONDARY FACTORS

4. Cost to Carry Out the Restoration Alternative* (Cost Effectiveness)
This factor considers the relationship of restoration project costs to natural resource 

benefits. Favored projects are those that provide the most benefit for the least cost expended. 

However, the Department of Interior (DOI) in its preamble to the 1991 and 1993 proposed natural 

resource damage regulations implementing the Comprehensive Environmental Response

Compensation and Liability Act (CERCLA) explicitly stated that the relationship of costs to benefits 

was not to result in a “straight cost/benefit analysis.” Rather, DOI directed Trustees to examine 

both the circumstances unique to each assessment and the expected alternative costs.4 DOI was 

clear that any discussion of the costs and benefits of a given project had to be considered in light of 

a number of restoration factors that were contained in the regulations.

Factors that may influence project costs include methods and procedures for project 

implementation, materials, equipment, project design, permitting, oversight, maintenance (including 

contingency funds), and monitoring.

5. Consistency with Local, Regional, and National Restoration Goals and Initiatives

This factor considers the extent to which a restoration project supports or is consistent with 

national, regional, and local restoration initiatives and mandates, local resource management plans, 

town ordinances, and the goals of various community groups. Applicable objectives and initiatives 

for this case may be identified by the Chesapeake Bay National Estuary Program, Chesapeake Bay 

2000, etc. 

6. Alternative Prevents Future Injury as a Result of the Incident and Avoids Collateral 

Injury as a Result of Implementing the Alternative* (Avoids Additional Injury)

This factor considers the potential for a restoration project to aggravate or cause additional 

natural resource or habitat injuries. 

 

456 Fed. Reg. At 19,758 (1991).

7. Alternative Benefits More than One Natural Resource and/or Service* (Multiple 

Benefits)

A restoration project that not only restores an injured resource but provides incidental 

benefits to other resources whether injured or not is generally preferable. For example, the 

placement of beacons as navigational aids in the Florida Keys to prevent large vessel groundings on 

coral reefs also had the incidental benefit of preventing injury to seagrass beds. Similarly, salt marsh 

habitat could be created to compensate not only for injured salt marsh but also through a service 

linkage, for bird injuries or aquatic injuries as well. However, the Trustees must balance this 

preference for benefitting multiple resources with the statutory goal of restoring the injured resource 

giving rise to the claim for natural resource damages. 

8. Longevity of the Restoration Project
This factor considers the expected lifespan of the project. Projects that are permanent or 

have long expected lifespans are generally favored over projects with temporary, short-term 

lifespans/benefits. Where possible, projects involving land acquisition, or other constraints on title 

(e.g., riparian buffers) should be in perpetuity.5 Since many types of projects can take several 

years to reach maturity, longevity is important in order to increase the likelihood of success. 

Additionally, temporary projects may require termination activities thereby increasing administrative 

costs. However, projects that are not considered permanent can be acceptable if the Trustees 

determine that the scale of the project is such that it fully compensates for the injuries that gave rise 

to the claim.

9. Integration With Existing Management Programs/Duplication or Substitution for other 

Authorities

This factor considers if the project can "stand-alone" or could be integrated into an existing 

resource management program or larger project. Projects that can be integrated may leverage the 

environmental benefits of the existing program and realize significant administrative cost savings. For 

example, the channel marking projects referenced in 7. above can be integrated into existing Coast 

Guard marking programs avoid future injury to resources in a National Marine Sanctuary. 

Supplemental planting of marsh vegetation on an existing marsh platform which was created as part 

of another project can provide additional environmental benefits by stabilizing the platform and 

providing water quality benefits and wildlife habitat.

However, although integration with other programmatic efforts may be beneficial, the 

Trustees need to ensure that constraints that may be imposed by those programs do not conflict 

with the Trustees’ restoration goals under OPA. For example, mitigation of the effects of dredge 

and fill activities required as part of the issueance of a permit for filling of wetlands under 404 of the 

Clean Water Act may not be used to fulfill the separate and independent natural resource 

restoration requirements under OPA.

 

5Property interests should be transferred to a permanent entity capable of continuously 

enforcing the property interests.

10. Adjacent or Nearby Affecting Land Uses

This factor considers the impact of adjacent or nearby land uses on the functional value of 

the restoration project. Industrial, residential, or agricultural land use may negatively or positively 

impact the functionality of a project. For example, noise, lights, non-point runoff, and vessel traffic 

associated with an adjacent industrial site may limit the use of a riparian buffer or wetland habitat by 

wildlife. Conversely, non-point runoff from an adjacent agricultural site may increase the 

opportunity for a riparian buffer or wetland project to provide improvements in water quality. 

Likewise, acquisition of adjacent or nearby land that is pristine or protected (e.g., conservation 

areas) may provide greater and longer-term benefit for wildlife use.

11. Site Ownership

This factor considers whether potential terrestrial or sub-tidal sites (e.g., sites for riparian 

buffers, oyster leases) are publicly or privately held and for private property, whether landowner 

permission (easement) has been granted for the project. 

12. Logistical Considerations
This factor considers issues directly related to project coordination, oversight, and 

implementation such as site access, availability of equipment and materials, the ability to move 

crews and equipment, seasonal timing constraints (planting windows, nesting/breeding times), 

special status species or historical property consultations, and permitting complexity. It also 

considers whether a proposed project type (e.g., dam removal or riparian buffer creation) is linked 

to a specific project location. Projects where a specific site has been identified and where the 

logistical complexity is minimal are favored.

13. Long Term Operation and Maintenance.

Where possible, the trustees should choose projects that minimize operation and 

maintenance (O&M) requirements for several reasons. First, such projects avoid long term 

commitment of personnel or fiscal resources. Second, such projects tend provide a more 

permanent restoration solution. Third, even where the RP agrees to undertake the O&M, the 

trustees must nevertheless dedicate personnel for oversight and review. 

14. Public Health, Safety, and Welfare*

This factor evaluates the potential for a given restoration project to negatively impact public 

health, safety, and welfare.