1

National Pollution Funds Center Final Decision

This determination reconsiders the determination issued by the National Pollution Funds Center 

on June 2, 2020 for Claim N06008-OC01 DBL 152 Assessment and Compensatory Restoration 

Costs. This determination represents final agency action.

Summary of the Incident and Claim

On November 11, 2005, while transiting from Houston, Texas, to Tampa, Florida, the doublehulled Tank Barge DBL 1521

struck the submerged remains of a pipeline service platform2,3

approximately 32 miles south of Calcasieu Pass, Louisiana.

4 The cargo and ballast tanks of the 

barge, which carried approximately 119,000 barrels of #6 fuel oil, were punctured by the allision,

and the barge began taking on water and discharging oil. Under direction of the Federal OnScene Coordinator (FOSC), the barge was towed towards shore, where it grounded 

approximately 13 nautical miles northwest of the original allision in waters around 50 feet deep. 

After grounding, the barge continued to discharge oil and take on additional water and ultimately 

capsized on November 14, 2005. Most of the estimated 45,846 barrels of oil that discharged 

during the incident sank5to the bottom of the seafloor where it collected in pools and mats. 

Response personnel used diver-directed pumps to recover submerged oil until January 12, 2006. 

An estimated 2,355 barrels of oil were recovered by the divers, leaving approximately 43,491 

barrels of oil in the environment unrecovered along the seafloor. K-Sea Operating Partnership 

LP was the owner and operator of DBL 152 and acknowledged that they were the Responsible 

Party (RP) for the oil spill.

6

 

 

1

 At the time of the incident, DBL 152 was under tow by the tugboat Rebel as an integrated tug-barge unit

2

 The platform collapsed during Hurricane Rita 

3

 The submerged platform was owned by Targa Midstream Limited Partnership. On December 10, 2007, the 

United States District Court for the Southern District of Texas found that Targa’s negligence proximately caused 

40% of the damages resulting from the oil spill. 

4

 SITREP 1, MSO Port Arthur, 13011Z NOV 05 

5

 The released oil had a low American Petroleum Institute gravity, which is a measure of how heavy or light a 

petroleum liquid is compared to water, and thus was classified as a “heavy” oil 

6

 January 26, 2006 claim from K-Sea Operating Partnership LP to the National Pollution Funds Center for thirdparty defense and entitlement to limit of liability. 

Claim Number and Name: N06008-OC01 – DBL 152 Assessment and Compensatory 

Restoration Costs

Claimant: National Oceanic and Atmospheric Administration (NOAA)

 Claim Type: NRDA, Upfront Restoration and Past Assessment Costs

Amount Requested: $13,471,035.46

Offer Amount: $4,839,407.50

Denied Amount: $8,631,627.96

Determination Date: February 8, 2021

NPFC Claims Manager: 
2

The National Oceanic and Atmospheric Administration (NOAA), the sole natural resource 

Trustee for this claim, conducted a natural resource damage assessment (NRDA) to determine 

the nature and extent of injuries resulting from the spill and the type and scale of restoration 

necessary to compensate for the injuries to natural resources. NOAA invited the RP to

participate in a cooperative NRDA,

7

the RP accepted,

8

and the two parties developed a set of 

mutually agreeable guiding principles for conducting the NRDA.

9

 The RP participated 

cooperatively in the NRDA throughout the response and preassessment.

10

 Ultimately, the 

National Pollution Funds Center (NPFC) determined that the RP was entitled to a limitation of 

liability11 prior to NOAA moving forward with restoration planning,

12 which ended the RP’s 

interest and participation in the NRDA.

13

 Through their assessment efforts, NOAA estimated 

that the equivalent of 450 acres of offshore benthic habitat suffered 100% service loss for two 

years before onset of recovery as a result of oil discharged from the incident. After evaluating a 

number of alternatives, NOAA selected a compensatory restoration project to compensate the 

public for the interim loss of the benthic habitat. 

On June 26, 2017,

14 NOAA presented the NPFC with a claim that totaled $13,471,035.46. The 

claimed costs included $306,465.91 for past assessment costs and $13,164,569.55 to implement 

the compensatory restoration project detailed in the “Final Damage Assessment and Restoration 

Plan/Environmental Assessment for the Tank Barge DBL 152 Oil Spill” (the Plan). NOAA 

withdrew their claim on September 5, 2018 to further evaluate parameter estimates in the 

assessment.

15

The NOAA resubmitted its claim for the same sum certain value on June 24, 2019 (the Claim). 

In this Claim, NOAA adjusted the geographic and temporal extent of the injury (the equivalent 

of 705 acres suffering 100% service loss with onset of recovery in eight months), but ultimately 

determined the same level of restoration to compensate for the injury. 

The NPFC reviewed the Claim submitted by NOAA for past assessment costs and future costs to 

implement its compensatory restoration project for the DBL 152 incident in accordance with 

OPA (33 U.S.C. §2701 et seq.) and associated OSLTF Claims Regulations (33 C.F.R. Part 136). 

The NPFC reviewed the data submitted by NOAA, an independent report submitted by David 

Evans and Associates, and considered various conversations between NOAA and NPFC staff. 

Through its determination,16 the NPFC approved past assessment costs of $306,465.91 incurred 

by NOAA and denied claimed costs in the amount of $13,164,569.56 for future restoration 

 

7

 Letter from NOAA to RP, dated December 7, 2006

8

 Letter from RP to NOAA, dated January 22, 2007

9

 Formalized in a letter from RP to NOAA, dated May 10, 2007

10 Plan, page 7 

11 See February 12, 2009, determination by the NPFC stating that K-Sea Operating Partnership LP is entitled to limit 

their liability to the amount provided under 33 U.S.C. § 2704(a).

12 Notice of Intent to Conduct Restoration Planning was published on April 8, 2009. 

13 Memo from Cardno ENTRIX to West of England Ship Owners Mutual Insurance Association, dated April 15, 

2013, “Comments on the Draft Damage Assessment and Restoration Plan/Environmental Assessment for the Tank 

Barge DBL 152 Oil Spill”

14 Email from NOAA to NPFC, dated June 26, 2017

15 Email letter from NOAA to NPFC, dated September 5, 2018

16 NPFC Determination for Claim N06008-OC01 – DBL 152 Assessment and Compenstory Restoration Costs. June 

2, 12020
3

implementation on the grounds that 100% loss for eight months for all heavily and moderately 

oiled areas and the scaling metric were not supported by evidence, and the monitoring costs were 

not clearly clarified. 

On July 1, 2020 NOAA submitted a Request for Reconsideration of the Claim, providing their 

legal grounds for the relief requested.17 On July 29, 2020 NOAA requested a copy of technical 

report prepared for NPFC by David Evans and Associates,

18 and requested an opportunity to 

review the report and submit additional support for the relief requested. On September 25, 2020 

NOAA submitted an amended request, clarifying their intention that the amended request serve 

as the basis for NPFC’s reconsideration of the claim, leaving aspects of the previously submitted 

basis for future discussion outside the context of this Claim. In its amended request, NOAA 

presents a general argument regarding the NRDA process and the deference that should be 

afforded the trustees, along with specific technical arguments, and finally, a request for the 

NPFC pay the claim in full or provide equitable compensation. 

Claimant Eligibility

Federal natural resource trustees are designated by the President, pursuant to OPA (33 U.S.C. 

§2706 (b)(2)), with responsibility to assess damages to natural resources under their trusteeship 

and develop and implement plans to restore, rehabilitate, replace, or acquire the equivalent of 

those injured natural resources. 33 U.S.C. §§2706(c)(1)(A) and (C). Pursuant to 33 C.F.R. 

§136.207, natural resource trustees may present claims to the Oil Spill Liability Trust Fund 

(OSLTF or the Fund) for uncompensated natural resource damages (NRD). 33 U.S.C. 

§2712(a)(4). The measure of damages included the cost of restoring, rehabilitating, replacing or 

acquiring the equivalent of the damages natural resources, the diminution in value of those 

resources pending restoration, and the reasonable cost of assessing those damages. 33 U.S.C. 

2706 (d)(1). 

The Claim was submitted by NOAA. NOAA, under the authority of the Secretary of Commerce, 

is the federal natural resource trustee pursuant to the President’s designation of federal trustees 

under OPA, Executive Order 12777 (56 Fed. Reg. 54757, October 22, 1991), and Subpart G of 

the National Oil and Hazardous Substances Pollution Contingency Plan (40 C.F.R. §300.600) 

and Section 1006(b)(2) of OPA. 33 U.S.C. §2706(b)(2) who shall act on behalf of the public as 

trustees for natural resources under this Act. 

Jurisdictional Information

Claims to the NPFC must arise from an incident as defined by OPA. 33 U.S.C. §2701 et seq. To 

be covered, the incident must involve a discharge, or a substantial threat of discharge, of oil from 

a vessel or facility into navigable waters of the United States after August 18, 1990. Based on

information provided by NOAA and the response documentation19,20 summarized above, this 

incident resulted from the discharge of oil from a vessel into the federal waters of the Gulf of 

 

17 Letter from NOAA to NPFC Re: Request for Reconsideration of Claim N06008-OC01 Oil Spill Assesment and 

Restoration Costs, July 1, 2020

18 David Evans and Associates. 2020. DBL 152 Incident: Analysis of the Trustee, Technical Review (DEA Report)

19 SITREP 1, MSO Port Arthur, 13011Z NOV 05

20 In total, there were seventy-two SITREPS issued for the incident. 
4

Mexico that began on or about November 11, 2005. The NPFC therefore finds that this oil spill 

is an incident as defined by OPA. 

General Claim Requirements

Pursuant to 33 U.S.C. § 2713(e), the President promulgated regulations for the presentation, 

filing, processing, settlement, and adjudication of claims against the Fund. The Claims 

Regulations are found at 33 C.F.R. Part 136. 

The NPFC received NOAA’s NRD claim on June 24, 2019. NOAA presented a sum certain 

claim in writing to the Director, NPFC, and the claim included: an assessment and restoration 

plan21 and other claim materials22 that describe: the injuries to natural resources observed by the 

Trustee; assessment and restoration planning activities conducted by the Trustee; restoration 

project methods and project milestones; and level of effort, timeframe, and cost estimates for 

contractors and agency personnel. 

Claims to the Fund must be presented to the NPFC within three years after the date on which the 

injury and its connection with the incident in question were reasonably discoverable with the 

exercise of due care, or within three years from the date of completion of the natural resource 

damage assessment under OPA (33 U.S.C. §2706(e)), whichever is later. 33 U.S.C. §2712(h)(2), 

33 C.F.R. §136.101(a)(1)(ii). The Plan was finalized in June 2016, with official notice of its 

completion made public on July 11, 2016.23 The Trustees submitted this claim within the period 

of limitations.

As noted above, the OSLTF is available to pay claims for uncompensated removal costs and 

damages. 33 U.S.C. §2712(a)(4). Covered damages include NRD, 33 U.S.C. §2702(b)(2)(A), 

which are for injury to, destruction of, loss of, or loss of use of natural resources, including the 

reasonable costs to assess those damages. 33 U.S.C. §2706(d)(1)(C). Costs are determined with 

respect to plans adopted under 33 U.S.C. §2706(d)(2) that are developed and implemented after 

adequate public notice, opportunity for a hearing, and consideration of all public comments. 33

U.S.C. §2706(c)(5). NOAA stated that the Plan that forms the basis of this claim was made 

available for public review on their website from March 18, 2013 through April 15, 2013. 

NOAA provided copies of the comments received in Appendix C of the Plan and NOAA’s 

responses to those comments in Appendix B of the Plan.

Claim Presentment to the Responsible Party

With certain exceptions, claims to the NPFC for damages must be presented first to the RP. 33 

U.S.C. §2713(a). If a claim is presented in accordance with §2713(a) and is not settled by 

payment by any person within 90 days after the date upon which the claim was presented, the 

 

21 The plan relies on literature and results from other incidents to support their injury assessment and restoration 

planning determinations. 

22 Additional material included, but were not limited to, revised assessment methodology from the Plan and 

justification, cost documentation to support past costs, detailed budgets to support future costs, and past RP 

communications. 

23 https://www.federalregister.gov/documents/2016/07/11/2016-16357/final-damage-assessment-and-restorationplan-and-environmental-assessment-for-the-tb-DBL 152-oil
5

claimant may elect to commence an action in court or present the claim to the OSLTF. 33 

U.S.C. §2713(c)(2). 

In this case the NPFC determined that the RP24 and their guarantor were entitled to DBL 152’s 

statutory limitation of liability of $11,689,200 and had no further liability for removal costs and 

damages. 33 U.S.C. 2704(a)(1). As a result, NOAA was not required to present this claim to the 

RP prior to presenting it to the Fund.

Time Limitations for Requests for Reconsideration

The Director, NPFC, upon written request of the claimant will reconsider a denied claim if 

presented with the request within 60 days after the date the denial was mailed to the claimant or 

within 30 days after receipt of the denial by the claimant, whichever date is earlier.25 The 

determination was electronically mailed on June 2, 2020. The written request for reconsideration

was received on July 1, 2020 within the time limitations for a request for reconsideration.26

Claimant's Burden of Proof 

Trustees bear the burden of providing all evidence, information and documentation deemed 

necessary by the Director, NPFC, to support the claim. 33 C.F.R. §136.105(a). To satisfy this 

requirement, the Trustee claimant must submit the plan which forms the basis of the claim, along 

with sufficient supporting information, including documented costs and cost estimates, so the 

NPFC can determine that the activities and associated costs are reasonable and appropriate. 33 

C.F.R. §136.209(a) and (b). NOAA provided supporting information, as described, along with 

additional information per six specific requests from NPFC.27 NOAA also provided support for 

the technical arguments included in their request for reconsideration.28

The NPFC acts as the fact-finder during the adjudication of claims. In this role, the NPFC 

considers all relevant evidence and weighs its probative value when adjudicating a claim. The 

NPFC is not bound by the findings or conclusions reached by other entities. If there is 

conflicting evidence in the record, the NPFC makes a determination as to what evidence is 

more credible or deserves greater weight, and finds facts based on the preponderance of the 

credible evidence. In its adjudication, the NPFC considered all of the documentation provided 

by NOAA, an NPFC contracted third party analysis of certain aspects of the Claim, 29 and 

independently conducted fact finding. 

In NOAA’s September 25, 2020, submittal of additional technical information supporting its 

request for reconsideration, NOAA reiterated the challenges associated with ephemeral data 

 

24 While the NPFC recognizes that the United States District Court for the Southern District of Texas found that 

Targa’s negligence proximately caused 40% of the damages resulting from incident, under OPA the owner and/or 

operator of the vessel of the discharged oil is the Responsible Party. 

25 33 C.F.R. §136.115(d)

26 NOAA also provided their revised basis for request within the agreed time period.

27 NPFC requested additional information on various aspects of the Claim on: August 24, 2017; May 11, 2018; June 

20, 2018; September 6, 2019; November 6, 2019; November 29, 2019; and via teleconference December 13, 2019 

and February 7, 2020

28 Request for Reconsideration. September 25, 2020. 6 pp.

29 DEA Report
6

collection and assessment design in the context of marine spills generally and specifically in 

regard to this incident and the additional challenges associated with a non-floating oil. NOAA 

also discussed the decision-making involved toward conducting a cost effective cooperative 

assessment and the resulting restoration plan. Accordingly, NOAA appealed to the NPFC to 

consider the Damage Assessment and Restoration Plan with some degree of deference and 

understanding of the challenges and limitations faced by trustees and the complexities of actually 

working in the real world circumstances of marine oil spills. The NPFC considers all information 

submitted by trustees and weighs evidence and estimates calculated by the trustees based on the 

available data and circumstances in each case. The NPFC bases its decisions on the 

preponderance of evidence provided by data submitted by the trustees, other available data, and 

data collected by the NPFC.

In this case NOAA relied on, and the NPFC considered, data collected during the response and 

long term monitoring activities and the body of available literature. This is discussed further 

below. 

Injury Determination and Quantification

Following the incident, response personnel conducted extensive operations to locate, track, 

characterize, and recover the discharged oil. Because the oil sank to the seafloor at depths of 50 

feet, the response relied on a combination of human divers, V-SORS,30 stationary vertical snares, 

acoustic remote sensing, and remotely operated vehicles to locate and characterize movement of 

the oil. Long-term monitoring of oil on the seafloor continued through January of 2007, or 14 

months from the date of the spill.31 Due to the logistical and safety concerns, and the costs 

associated with the depth of the seafloor and the distance offshore, NOAA limited the amount of 

additional data collection and observation efforts for NRDA-specific purposes.32 Further, 

NOAA states that the large overall area of the oil field and mobile nature of the oil pools 

provided a significant obstacle to comprehensive site-specific assessment activities.33 

Based on the evidence of persistent thick oil34 on the seafloor, NOAA determined that there was 

injury to benthic resources resulting from the DBL 152 incident and further described that “injury 

to benthic invertebrates and potential injuries to demersal fishes, pelagic fishes, and marine 

mammals resulted from the released oil from smothering and coating of benthic resources and 

ingestion by animals that feed on benthic resources and demersal fishes in the affected area.”35 

 

30 V-SORS are chain weighted snares that are dragged along the seafloor by a vessel. The vessel navigates via GPS 

under prescribed transects to capture location information. 

31 The response conducted 8 surveys from January through June 2006, which assessed the entire oil field. From 

September 2006 through January 2007, the response conducted 5 additional surveys that focused on one patch of 

heavy oil. 

32 Plan, Page 8. 

33 Plan, Page 28. 

34 The USCG Marine Safety Lab (MSL) fingerprinted weathered oil samples from VSORS-Light snare and 

“confirmed that oil in the vicinity of the bolus originated from the DBL 152.” (8 Feb 07 Meeting MinutesFINAL).

35 Plan, page 24-25 
7

NOAA utilized some of the available data about oil distribution, thickness, fate and transport, 

and chemical composition to estimate injuries to benthic resources resulting from the incident. 

NOAA employed the Habitat Equivalency Analysis (HEA), to quantify the injury and scale of 

restoration needed to compensate for the injury. The injury quantification relied on incidentspecific observations of the oil behavior and literature to quantify the amount of lost benthic 

services resulting from the incident.36 Injury parameters incorporated in the HEA include: the 

geographic extent of habitat service loss (area), the degree of habitat service loss (percent), and 

the rate of recovery (time).

HEA is a commonly used and reliable technique to quantify injuries and scale restoration for 

comparable habitats.37 HEA has been routinely used to quantify habitat level injuries, and 

sufficient data exists to provide the HEA with inputs that could result in a reasonably supported 

injury determination for the DBL 152 incident. While the NPFC generally approves of the use of 

the HEA methodology to quantify the injury for the incident, the NPFC raised concerns 

regarding the inputs NOAA used in their 2012 HEA to calculate 1,475 Discounted Service Acre 

Years (DSAYs) of injury included in their Plan.38 NOAA subsequently withdrew their claim to 

allow for further review and consideration of the model inputs.39 The resubmitted claim is 

predicated on a 2019 HEA which employs a modified discounting methodology and incorporates 

revised area of injury and rate of recovery inputs. 

The NPFC evaluated the evidence supporting the inputs for the 2012 HEA as presented in the 

Plan and the revised 2019 HEA which forms the basis for the Claim to determine whether the 

calculated DSAYs of injury are supported. 

2012 HEA 2019 HEA

Degree of Injury 100% service loss associated with 

oiling ≥ 1⁄2 inch thick

100% service loss associated with 

moderate/heavy oiling, > 1⁄8 inch 

thick

Area of Injury 450 acres 705 acres

Time to Onset of 

Recovery 2 years 8 months

Rate of Recovery 

upon Onset 3 year linear 3 year linear

Injury in DSAYs 1,475 1,436

SERVICE LOSS OF 100% TO THE IMPACTED BENTHIC AREAS

NOAA explained that “oil on the seafloor in sufficient quantities to form a film or layer of oil 

across the surface severely affects, amongst other things, animals on and beneath the surface, 

fishes and other animals that may feed on seafloor organisms or occupy areas on or near the 

 

36 Plan, page 26 

37 NOAA.1995. Habitat Equivalency Analysis: An overview, Damage Assessment and Restoration Program, March 

21, 1995 (revised October 4, 2000)

38 NPFC requests for Additional Information August 24, 2017; May 11, 2018; and June 20, 2018

39 Claim. Page 5
8

bottom, and movement of benthic organisms.”40 Considering the heavy viscous nature of the 

discharged oil, NOAA estimated that the oil rendered the benthic habitat effectively unusable 

and determined benthic habitat service loss of 100%. Though NOAA never defined a specific 

thickness of oil associated with 100% service loss, the 2012 HEA is predicated on a thickness of 

1⁄2 inch41 and the 2019 HEA is predicated on areas defined as having heavy or moderate oiling, 

estimated as oiling greater than 1⁄8 inch (3mm).42 Given the lack of onsite ecological studies to 

support their determination of 100% service loss, the NPFC requested additional information 

from previous incidents and/or literature to support applying 100% service loss to the oiled 

areas.43 

NOAA first responded that previous information from literature and/or incidents was minimal 

because “The DBL 152 oil spill was characterized by unique facts and circumstances, in which 

oil was released into a relatively shallow offshore, open water environment, and the majority of 

discharged oil was denser than seawater and sank to the seafloor upon release. As a result, there 

are few examples of similar pathways, exposure, and injuries to those described in the 

DARP/EA”.44 NOAA did provide several literature references that documented significant 

injuries to benthic resources from submerged oil resulting from spills similar to the DBL 152

incident, including the Amoco Cadiz,

45 Exxon Valdez,46 North Cape,47 and Florida48 incidents. 

NOAA provided summaries of these literature references and highlighted that significant, or in 

some cases, complete impairment of all or a portion of the benthic community occurred 

following these incidents.49 Furthermore, NOAA described how their assessment of benthic 

injury was conservatively approached compared to the injuries detailed in the literature, which 

documented longer-term impacts to benthic resources, such as benthic community shifts, that 

could last for decades.50,51 

Additionally, while NOAA did not have site specific observations of ecological service injuries, 

they did make use of site specific data to support the pathway of exposure – smothering. 

Specifically, NOAA reviewed videos of oil on the seafloor and observed its behavior and 

composition and how it covered the seafloor and benthic biota in the videos. NOAA also 

reviewed the results of sediment sampling conducted by the RP in unoiled areas near the 

incident. From this sampling, NOAA was able to identify benthic species present in the area. 

 

40 Plan, page 28

41 Plan, page 27

42 Claim, page 8

43 NPFC requests for Additional Information on August 24, 2017; May 11, 2018; and June 20, 2018.

44 Email from NOAA to NPFC, dated December 5, 2017

45 Dauvin, J. C. 1998. The fine sand Abra alba community of the Bay of Morlaix twenty years after the Amoco 

Cadiz oil spill. Marine Pollution Bulletin 36: 669-676. 

46 Jewett, S. C., T. A. Dean, R. O. Smith, and A. L. Blanchard. 1999. Exxon Valdez oil spill: Impacts and recovery in 

the soft-bottom benthic community in and adjacent to eelgrass beds. Marine Ecology Progress Series 185: 59-83.

47 National Research Council. 2003. Oil in the sea III: Inputs, Fates, and Effects. Prepared for the Ocean Studies 

Board and Marine Board Divisions of Earth and Life Studies and Transportation Research Board. The National 

Academies Press, Washington, D.C. 265 pp.

48 Sanders, H. L., J. F. Grassle, G. R. Hampson, L. S. Morse, S. Garner- Price, and C. C. Jones. 1980. Anatomy of an 

oil spill: long-term effects from the grounding of the barge Florida off West Falmouth, Massachusetts. Journal of 

Marine Research 38:265-380.

49 Email from NOAA to NPFC, dated May 29, 2018 

50 AI from NOAA dated August 16, 2018

51 As opposed to the 5 years to reach full recovery in 2012 HEA and 3 years to reach full recovery in 2019 HEA
9

NOAA conducted literature reviews to evaluate the feeding/movement strategies and life 

histories of the fauna identified. Based on their review of faunal behavior of species present in 

the impacted areas, combined with their observations of oil in the impacted area, NOAA 

determined all benthic fauna exposed to a film or layer of oil on the seafloor would have been 

directly affected by physical fouling or ingestion.52

An extensive literature review, which included the studies referenced by NOAA along with 

numerous other studies, paints a less consistent picture of the effects of oiling on benthic 

resources, but generally supports a decline in the abundance, diversity, and/or health of benthic 

macro and meiofauna associated with benthic oiling.53 In the absence of site specific evidence to 

the contrary, and in light of the variable results reflected in the literature, the NPFC accepts 

NOAA’s assessment that 100% service loss occurred over some area of oiling. The relationship 

of 100% service loss to the defined area of oiling is considered later in the determination.

AREA OF INJURY/SEAFLOOR COVERAGE OF OIL 

NOAA used different methods to estimate the geographic area associated with 100% service 

loss. In its Plan and initial claim, NOAA used the information gathered during the response 

operations to construct an outer perimeter where oil was located and utilized mapping software 

to calculate a total area of 45,000 acres of potentially impacted area. Considering that lingering 

oil was dispersed by ocean movement across a large area, only a small portion of the total 45,000 

acres was actually oiled at any given time. To determine the area of oiling, NOAA estimated 

how many acres that the 1,826,622 gallons of unrecovered oil would cover, given a 1⁄2 inch 

thick54 layer of oil, which resulted in an estimate of 0.3% of the 45,000 acres (135 oiled acres). 

NOAA then adjusted the 0.3% estimate of oiled area up to 1% (450 oiled acres) because oiled 

areas usually had estimated covers higher than 1%55 and was consistent with observations from 

video imagery that indicated percent coverage across the oil field was approximately 1%.56

The NPFC requested NOAA provide the reasonableness of “rounding” from 0.3% to 1% given 

that: (1) Since the average was being applied to the entire 45,000 acres, not just the oiled areas, 

the oiled areas would be naturally expected to have higher than 1% coverage57 to balance out the 

vast majority of the area58 that was unoiled; and (2) When determining average oil thickness, 

NOAA chose the lowest observed oil thickness59 to account for bias associated with response 

operations occurring in the most heavily oiled areas60– in effect, NOAA used response data as 

support to lower one variable (oil thickness of 1⁄2 inches) because the response data was biased 

 

52 Claim, pages 9-10

53 DEA Report, page 10, discusses the results of 16 studies including those referenced by NOAA along with benthic 

impact studies following the Tsesis spill, the Deepwater Horizon spill, the Haven spill and the Braer spill.

54 NOAA adopted the lowest observed oil thickness from divers because response operations were focused on 

heavily oiled areas. 

55 Based on review of video imagery from the response 

56 Plan, page 28 

57 Especially, because, as stated by NOAA in the Plan, the response observations were biased towards heavily oiled 

areas 

58 Even using NOAA’s 1% oiling coverage determination, that leaves 99% of the 45,000 acres unoiled. 

59 According to the Plan, observations of oil thickness ranged from .5 to 2 inches, with most observations between 1 

and 1.5 inches. 

60 Plan, page 28
10

towards heavily oiled areas, but then used the same “biased” response data to support increasing 

another variable (oil coverage from 0.3% to 1%).61 Though NOAA provided a variety of 

explanations for adjusting the values,62 NOAA ultimately withdrew the claim to further review 

and consider model inputs. 

In NOAA’s resubmitted claim, NOAA evaluated and presented several additional analytical 

methods to determine the area of injury before settling on kriging, a geostatistical interpolation 

procedure, to derive a revised area of 705 acres of moderate and heavy oiling (areas for which 

NOAA associated with 100% service loss).63 To apply the new methods, NOAA combined the 

response and long-term monitoring (LTM) observational data64 into a single data set consisting 

of 904 points, then standardized the observations into five oiling categories (no oiling, very light 

oiling, light oiling, moderate oiling, heavy oiling), including the transect-based VSORS 

observations which were converted from lines to points with the same categories applied.65

While the standardization of the data facilitated comparisons between all response and LTM 

observations, aggregating all the observations into a single data set removed the valuable 

temporal component of the observational data.

NOAA did not address why the methodology in the Plan and original claim was insufficient and 

warranted a completely new and much more rigorous method for estimating area of injury 

applied in the resubmitted claim. The original methodology matched the precision of the data, 

but suffered from the application of “rounding” that was inconsistent with the mass-balance 

approach. The kriging method in the Claim, by contrast, is a rigorous, geostatistical analysis 

which is an imperfect fit for the generalized and spatially biased data set.66 The NPFC 

acceptsNOAA’s application of the results of the kriging with regard to the calculated areas of the 

different categories of oiling, but not length of time of oiling over those same areas or 

“thickness” of oil represented by those areas67 as the methodology precludes those 

determinations.

 

61 Email from NPFC to NOAA, date June, 2018 

62 Email from NOAA to NPFC, dated August 16, 2018

63 Claim, pages 5-8

64 NOAA clarified in the February 7, 2020 teleconference that the data used was a subset of the total data and 

reflected that data which had undergone Quality Assurance/Quality Control

65 NOAA Internal Memorandum, Deliverable from the Spatial Data Branch to the DBL 152 Case Team, June 12, 

2019 

66 From DEA Report, pages 6-9. Kriging is a geostatistical interpolation method that was originally used in mining 

geology and is now commonly used for specific geodetic, topographic, and environmental mapping applications. 

The kriging procedure requires the construction of a mathematical model (the variogram) to describe the spatial 

correlation among data points. Kriging uses this variogram to predict values for unsampled locations. Kriging is a 

very robust method, however the interpolation results and the underlying variogram are highly dependent on 

adequate, unbiased sampling efforts with suitable spatial configurations and supports. In contrast, the results of an 

exploratory spatial data analysis (ESDA) of the standardized data set reveal a severe spatiotemporal clustering of 

the data points. This is consistent with the known sampling bias during response and LTM operations, with 

preferential sampling and tracking of locations with a higher degree of oiling. The kriging process also requires a 

fundamental assumption that the input data are normally distributed, however the ESDA results show a 

pronounced positive skew in the standardized data set. This sampling bias, in addition to the aggregation of 

response and LTM time steps, renders kriging an unsuitable interpolation method and results in a fundamentally 

flawed interpolation of the oiling contour.

67 Though NOAA applied a mass-balance equation to estimate the thickness of oil associated with moderate and 

heavily oiled areas in the interpolated map, the presence of multiple time series data prevents the application of a 

mass-balance equation as the same oil is measured multiple times.
11

It is reasonable to conclude that some number of acres of seafloor experienced oiling “in 

sufficient quantities to form a film or layer of oil across the surface.” The “bolus”,68 for example, 

persisted as heavy and very heavy oiling69 at least until September 2006 (10 months), though it 

must be acknowledged that even areas characterized by “very heavy oiling” do not have uniform 

or continuous coverage of oil. Visual inspection of areas classified as having heavy and very 

heavy oiling during long-term monitoring operations were observed to have only 5-60% 

coverage.70 Surveys throughout the response period describe similar discontinuity of the oil. 

NOAA applies 100% service loss to this discontinuity which overestimates the injury. However, 

given the challenges of monitoring71 and the elimination of certain monitoring data72 used by 

NOAA to generate the interpolated area of oiling, it is also reasonable to conclude that although 

the 705 acres includes areas which did not experience 100% service loss, the 705 acres also 

excludes areas that experienced service losses. As such, the NPFC finds that 705 acres of 100% 

service loss is a supported input to the HEA. 

PERIOD OF INJURY AND TIME TO RECOVERY

NOAA also applied different periods of injury depending on the method used to estimate area of 

injury. In the Plan and initial claim, NOAA determined that the 100% loss of ecological services 

of the oiled benthic areas lasted for two years because “discharged oil persisted and was 

observed on the bottom of the ocean for about two years after the Incident.”73 

The NPFC requested NOAA provide their basis for determining that oil persisted for two years 

in quantities sufficient to cause 100% service loss, especially considering that long-term 

monitoring by the response indicated that even the heaviest oiling had dissipated to “light” or 

“very-light” by January 2007.74 Though NOAA provided various rationale for the two years of 

service loss before initiation of recovery in support of the Plan, NOAA adjusted the period of 

injury and time to recovery in the Claim to reflect “a three-year linear recovery based on oil 

weathering in the environment beginning on the date of the incident,” explaining that though oil 

discharged during the incident was present on the seafloor of the Gulf of Mexico for more than a 

year, response and LTM data showed oil weathered to some degree during the first year 

following the release.75 NOAA specifically cited chemical analysis of weathered oil collected 

 

68 The bolus was a discrete pocket of oil, the movement and dissipation of which was tracked during the Long Term 

Monitoring period.

69 Characterization of degree of oil is relative to degree of oil coverage of the snares.

70 Section 4.4 Long-Term Monitoring Phase III of the Environmental Unit Report, estimates of percent cover 

associated with the two “very heavy” V-SORS Light transects in mid-September range from 23-60%70 with no 

significant amounts of oil observed in the vicinity of “heavy” or “moderate” V-SORS Light transects. The same 

report described V-SORS Light surveys in late-September which delineated a 20 acre area of “heavy and very 

heavy oil” as containing a cumulative area of only 1.02-1.21 acres of seafloor covered by oil (or ~5%).

71

 Environmental Unit Report Appendices K, L, and M discuss some of the challenges (such as equipment theft and 

weather) weather impacting data collection and describe the general goal of focusing efforts on the leading of 

oiling and bolus tracking.

72 In NOAA’s request for reconsideration, NOAA describes having used “validated response data” and that they did 

not use any data from repeated sampling locations

73 Plan, page 29

74 Email from NPFC to NOAA, dated June 20, 2018

75 Claim, page 8
12

during LTM in July 2006 which suggested that the “bolus” was likely a fractionated part of the 

original mixed heavy oil load. 

The NPFC requested clarification regarding the timing of the onset of recovery described in the 

Claim, interpreting that NOAA intended that recovery began immediately in contrast to the 2019 

HEA calculations76 which incorporate recovery beginning in July 2006, eight months following 

the incident.77 NOAA clarified that the narrative asserts weathering beginning at the time of the 

incident, not recovery.

78 NOAA cited communications with the NPFC in which the parties 

agreed that long-term monitoring results supported the presence of thick oil (that associated with 

the 100% injury metric) until July 2006 – the time of onset of recovery used in the 2019 HEA 

and described in the Claim. NOAA further clarified that the geospatial data set used did not 

include repeat sampling sites, therefore they applied the full time period over which the data 

were collected as representative of the time period for which oil was present.79

As previously described, the data set used for the kriging interpolation included in the 

resubmitted claim was a combination of time series data (e.g., the temporal dimension was 

“flattened” to produce a map of the total area of oiling over the fourteen month monitoring 

period). Because the time series data were collapsed in this way, an eight month injury period 

applied to the total acreage represents oil persisting for eight months across the entirety of the 

705 acres in thicknesses sufficient to cause 100% service loss.

80

 This is an appropriate 

calculation if, once a location was oiled, oil persisted in that location for eight months in a 

sufficiently thick layer to delay the onset of recovery.81

The NPFC reviewed the response and LTM data82 and found that the monitoring data do not 

support eight months of persistence in locations that were sampled repeatedly. As early as 

December 1, 2005, Situation Reports describe divers not finding oil in previously oiled areas, 

and that snare sampling indicated the oil was moving along the bottom.83 Long term monitoring 

results similarly support movement of the oil field rather than simply an expansion of the oil 

field. By example, a regularly monitored location (represented by grid coordinates K59-K63) 

first showed oiling as heavy in mid-February 2006, continued to have heavy oiling in midMarch, declined to very light by the end of March, and was still at very light in mid-April. 

Similarly, and likely representing movement of the same patch of oil, an area to the northwest 

(coordinates J64-J68) first showed oiling as moderate to heavy at the end of March, moderate in 

mid-April, and light to very light in mid-June. Even EE2a (a Long-Term Oil Mat Monitoring 

Location just one mile west from the capsize location) declined to lightly oiled by mid-May 

2006, just six months post incident.

 

76 Claim, Appendix 3

77 Email from NPFC to NOAA, dated November 6, 2019

78 AI from NOAA, received November 25, 2019

79 Teleconference between NOAA and NPFC February 6, 2020

80 As opposed to a quantity of oil moving across the sea bottom impacting a total of 705 acres during the eight 

months prior to dissipation

81 The 705 acres do not need to experience eight months of persistent oiling simultaneously, but each acre must 

experience eight months of oiling for this metric to reasonably represent the actual injury. 

82 Environmental Unit Monitoring Report, Appendix M

83 Situation Report #32, December 1, 2005
13

Given that the data for locations that were resampled support oil moving across the sea bottom 

rather than persistence in place, the NPFC finds NOAA’s application of 100% service loss for 

eight months applied to the 705 acres described as moderately to heavily oiled is not supported 

and magnifies the injury by as much as 37% depending on oil mobility. Essentially, NOAA 

acknowledges and accounts for the mobile nature of the oil in calculating the area of oiling but 

then ignores the mobile nature of the oil in calculating the period of injury before onset of 

recovery. As discussed above, those areas repeatedly sampled support that oil persisted for 

around two months at levels of oiling sufficient to cause 100% injury. The NPFC finds that two 

months of 100% service loss is a supportable input to the HEA in lieu of the eight months 

applied in the Claim.

With regard to the rate of recovery once recovery begins – a literature review of benthic recovery 

rates post-oiling for other incidents supports NOAA’s assertion of a three-year linear recovery 

upon initiation of recovery as reasonably conservative and compatible with available 

information.84

Restoration Selection, Scaling, and Implementation

RESTORATION SELECTION

NOAA determined that the impacted area likely recovered to baseline conditions naturally and 

primary restoration would not contribute significantly to recovery of the injured area.85 NOAA 

therefore focused restoration planning on compensatory restoration projects only. NOAA 

identified and evaluated a range of project alternatives capable of restoring ecological services 

comparable to those lost.86 The selected restoration alternative is an estuarine shoreline 

protection and salt marsh restoration project at the Moody Unit of the Texas Chenier Plain 

National Wildlife Refuge Complex (TCPNWRC). The project is designed to: protect shoreline 

with a protective breakwater structure consisting of rip-rap, create salt marsh behind the 

breakwater, and protect existing marsh from erosion.87 Similar projects in the vicinity have 

successfully protected previously eroding shorelines and contributed to marsh protection, 

rehabilitation, and/or creation. The design will place the breakwater structures in depths no 

greater than -1 foot elevation and will provide for relief from the bay bottom of at least 3 feet, 

allowing for a substantial structure that will be capable of withstanding storm events and 

continue to provide shoreline protection over the 20-year breakwater design life given the 

anticipated effects of sea level rise throughout the region. Spartina alterniflora will be planted 

within the protected area landward of the breakwater to accelerate marsh creation by trapping 

and stabilizing sediments.88

 

84 DEA Report, pages 10-11

85 Claim, page 11

86 Plan, pages 41-45

87 Plan, pages 46-55

88 Plan, page 50
14

The total protected marsh area89 is based on the assumed protection against 2.5 feet/year of 

erosion (a cumulative 67 feet over the life of the project or 8.1 acres/mile).90 The NPFC 

requested additional information regarding NOAA’s assumption of a 2.5 feet/year erosion rate

given NOAA’s reference of erosion rates within the TCPNWRC from 9 to over 50 feet/year.91

On October 28, 2019 NOAA replied that the 2.5 feet/year of erosion was determined in 

consultation with the FWS managers for the target restoration area and was verified through an 

ArcGIS comparative analysis of orthorectified historic aerial photography.92 The NPFC 

determined that the erosion rate is further supported by a 2001 study conducted by the FWS to 

predict the effects of sea-level rise to Moody NWR.93

NOAA provided sufficient evidence for the likelihood of success of the project, referencing 

several other successful similar projects in the vicinity and promoting excess design 

specifications to address increasing storm and sea level rise considerations. 

RESTORATION SCALING

The selected project produces or protects habitat (rocky shoreline and estuarine marsh) different 

than the habitat injured (offshore subtidal sandy benthic). As such NOAA scaled the relative 

services provided by the divergent ecosystems. NOAA determined that based on the productivity 

services and shoreline protection benefits, 4.23 miles of rip rap and the associated created and 

protected marsh would compensate the public for the losses from the DBL 152 oil spill.94 The 

NPFC evaluated several aspects of the restoration scaling: (1) the productivity ratios used, (2) 

productivity as a scaler for the total ecological services lost and the ecological services gained 

through restoration, and (3) the HEA calculations.

Comparison of productivity between habitats: NOAA used habitat productivity as the scaling 

metric to determine the equivalent discounted service acre years (DSAYs) of restoration to 

compensate for the interim loss of ecological services as a result of the spill. Productivity is a 

composite measure of an animal’s population, biomass, and growth over time, converting animal 

abundance and biomass data into a functional measure of energy flow through an ecosystem.95

Productivity of an ecosystem is well correlated to the food web services provided by that 

ecosystem, as such, it is an appropriate metric when comparing food web services across 

differing ecosystems.96 For both the 2012 HEA and the 2019 HEA, NOAA used a 4.5:1 

 

89 NOAA’s statement that 8.5 acres of existing marsh would be protected from erosion appears to be a misstatement 

of 8.5 acres per mile of project (or 36 acres over the 27 year life of the project), however the calculations in the 

HEA and the associated DSAYs compensated are consistent with the 8.5 acres/mile figure. 

90 2019 HEA, Claim Appendix 3, Restoration 3

91 Plan, page 46

92 Additional Information received by NPFC, October 28, 2019

93 Application of the Sea-level Affecting Marshes Model (SLAMM 6) to Moody NWR. 2001. Prepared for USFWS 

by Warren Pinnacle Consulting, Inc., cites erosion rates of 0.77-1m/yr applied based on erosion rates observed 

from 1931-2000 data in the Texas Hazard Mitigation Package, Texas Geographic Society.

94 4.23 miles of riprap would roughly result in 9 acres of riprap habitat, 11.5 acres of created marsh, and protect 36 

acres of existing marsh (8.5 acres/mi).

95 Valentine-Rose, Rypel, and Layman. Community Secondary Production as a Measure of Ecosystem Function: A 

Case Study with Aquatic Ecosystem Fragmentation. Bulletin of Marine Science. 87(4): 913-937. 2011.

96 Wong, Melisa C., C.H. Peterson, and M.F. Piehler. 2011. Evaluating estuarine habitats using secondary 

production as a proxy for food web support. Marine Ecology Progress Services. 440: 11-25.
15

conversion factor for productivity of subtidal benthic to estuarine marsh habitat, referencing a 

study by Peterson et al. (2007) comparing productivity of estuarine habitats,97 and supported by 

an assessment by Baker and Arismendez of Gulf of Mexico specific literature comparing 

productivity ratios of offshore habitats to estuary and marsh habitats along the Texas coast.98

NOAA further cited ratios used in the Lavaca Bay NPL Site settlement99 and benthic surveys by 

Parker et al. (1980) of proposed disposal sites off Louisiana100 as further supporting the 

appropriateness of the 4.5:1 applied ratio. NOAA used a 0.45:1 conversion factor for 

productivity of subtidal benthic to riprap, predicated on a 10:1 ratio of riprap to estuarine marsh 

productivity.101 The NPFC requested additional information regarding NOAA’s specific 

consideration of the injury occurring within the seasonal hypoxic zone of the Gulf of Mexico102

and productivity associated with benthic areas experiencing seasonal hypoxia.103 NOAA 

responded that the Baker and Arismendez literature assessment references studies in the hypoxic 

zone and the range of results from their assessment included the 4.5:1 ratio developed by 

Peterson, therefore NOAA determined the ratios derived from Peterson (which is based on a 

greater volume of literature) were reasonable.104 NOAA further reiterated the Lavaca Bay and 

Parker et al. references as corroborating evidence.105

The NPFC reviewed the literature referenced in the Baker and Arismendez memorandum, the 

Lavaca Bay NPL assessment, and the Parker et al. (1980) references. The Lavaca Bay NPL 

Settlement used a ratio of 5:1 benthic subtidal to estuarine marsh, based on the injured habitat 

being subtidal flats in Lavaca Bay at a depth of 2-8 feet (<1-2.5 meters) below mean sea level.106

NOAA did not provide converted comparable metrics for the Parker et al. (1980) data. However, 

Entrix converted the data to a comparable metric used by Peterson et al. (2017) to arrive at a 

17.2-21.5:1 ratio of off shore benthic to salt marsh. 107 Of the references in the Baker and 

Arismendez memorandum, the NPFC found the Rowe et al. 2002108 study to include habitat most 

similar (depth, distance from shore, similarity of seasonal hypoxia) to that impacted by the spill. 

 

97 Peterson et al. 2007. Estuarine habitat productivity ratios at multiple trophic levels.

98 Baker, Troy and Sandra Arismendez. 2011. Conversion factor between offshore benthic habitat and marsh habitat 

in the DBL 152 Oil spill. Memorandum for Record.

99 Texas Natural Resource Trustees. 2001. Final Damage Assessment and Restoration Plan and Environmental 

Assessment for the Point Comfort/Lavaca Bay NPL Site.

100 Parker, R.H., A.L. Crowe and L.S.Bohme. 1980. Biological/chemical survey of Texoma and Capline sector salt 

dome brine disposal sites off Louisiana, 1978-79. NOAA Technical Memorandum NMFS-SEFC-25, 103 p. In: 

Jackson, W.B. and G.M. Faw (Eds). 

101 Plan, page 30. If the ratio of subtidal benthic to marsh is 4.5:1 and the ratio of riprap to marsh is 10:1, then the 

ratio of subtidal benthic to riprap is 0.45:1

102 Annual maps of the hypoxia zone are available through NOAA’s HypoxiaWatch program, 

https://www.ncddc noaa.gov/interactive-maps/environmental-monitoring/hypoxia/

103 Levin, L.A. et al. 2009. Effects of natural and human-induced hypoxia on coastal benthos. Biogeosciences, 6, 

2063-2098.

104 AI received by NPFC, October 28, 2019

105 NOAA reiterated the corroborating nature of both references during teleconferences between NOAA and NPFC 

on December 13, 2019 and February 7, 2020

106 NOAA did not provide the memorandum, Relative Habitat Service Provision Exercise and the memorandum, 

Expert Scores for Relative Habitat Service Provision which served as the basis for the ratio

107 Entrix. 2009 Technical memorandum assessing NOAA’s proposed compensatory restoration project and scaling 

methodology for the T/B DBL 152 incident. Included as an enclosure to the Dewey and LeBoeuf LLP letter to the 

NOAA Office of General Counsel dated June 5, 2009. Note: Entrix was a consultant hired by the RP.

108 Rowe, G.T., M.E. Cruz Kaegi, J.W. Morse, G.S. Boland, and E.G. Escobar Briones. 2002. Sediment community 

metabolism associated with continental shelf hypoxia, northern Gulf of Mexico. Estuaries 25:1097-1106
16

Given the availability of information for like habitat, the NPFC determines that the ratios 

associated with the Rowe 2002 study (9.82-11.86:1 productivity of subtidal benthic habitat to 

estuarine marsh)109 are more persuasive among the studies evaluated by Baker and Arismendez 

and that the Parker et al (2017) study should likewise have been considered. Similarly, an 

external review110 of the references within the Peterson paper, the Baker and Arismendez

assessment, and of the literature review conducted by Entrix resulted in a similar finding that the 

4.5:1 ratio overvalues the productivity of the injured habitat and supports ratios ≥ 10:1 and 1:1 

for marsh and riprap productivity compared to the injured habitat, respectively.

In NOAA’s request for reconsideration, NOAA provided additional details and explanation 

regarding how NOAA determined 4.5:1 as the scaling ratio for offshore benthic productivity to 

estuarine marsh productivity. Largely, NOAA takes issue with NPFC highlighting the Rowe 

2002 reference as more representative of the benthic productivity in the spill site than other 

studies cited. The NPFC acknowledges that the Rowe 2002 reference is not a perfect match for 

the spill site, but the NPFC reaffirms its finding that in NOAA’s “weight of evidence approach,” 

certain references, like Rowe 2002, should have been weighted more heavily and not simply 

averaged with other available references. NOAA’s own assessment of Gulf of Mexico studies 

(equally weighting relevant studies) resulted in an average ratio of 4.9:1 yet NOAA still 

determined to use the more generous 4.5:1 ratio in the Peterson study. NOAA elected not to 

include the Lavaca Bay NPL site settlement ratios (5:1 for shallow offshore to estuarine marsh) 

or the Parker et al. (1980) ratios (17+:1) toward producing the calculated ratios though cited both 

several times in discussions as supporting the 4.5:1 ratio used. Additionally, NOAA elected not 

to use benthic sampling data to that was conducted by the RP’s consultant during the response 

because NOAA was not party to the sampling effort and NOAA determined the “opportunistic” 

sampling to not be reliably extrapolated to the oiled zone in general.111 It is interesting that 

NOAA would cite the seasonality of sampling in the Rowe 2002 study as inconsistent with the 

incident when NOAA also asserts 100% benthic productivity loss for 2 years or 8 months 

depending on methodology employed. NOAA provided no new evidence that alters the NPFC’s 

determination with regard to productivity ratio and restoration scaling. The NPFC finds that a 

productivity ratio of 10:1 injured habitat acres to restored or protected marsh habitat acres and a 

productivity ratio of 1:1 injured habitat acres to riprap acres are supported inputs to the HEA.

Comparison of total ecologic services between habitats: Selecting out-of-kind compensatory 

restoration creates additional scaling challenges given the difficulty in choosing a common 

metric that scales reliably to the level of services provided by the habitats and any significant 

differences in the quantities and qualities of services.

112,113 NOAA described the impacted 

ecological services as including, but not necessarily limited to: chemical exchange across the 

 

109 Baker, Troy and Sandra Arismendez. 2011. Conversion factor between offshore benthic habitat and marsh habitat 

in the DBL 152 Oil spill. Memorandum for Record. Table 2

110 DEA Report, pages 11-14

111 Plan, p 18

112 Habitat Equivalency Analysis: An Overview. 1995 (Revised 2000). Damage Assessment and Restoration 

Program, NOAA

113 Scaling Compensatory Restoration Actions: Guidance Document for Natural Resource Damage Assessment 

under the Oil Pollution Act of 1990. 1997. Damage Assessment and Restoration Program. NOAA
17

interface between the sea floor and the water column, decomposition of and use of organic 

matter by benthic microalgae and other fauna, primary production, and habitat utilization by 

benthic and demersal fauna.

114

The compensatory restoration provides the same type or comparable food web/habitat services 

but also includes an abundance of ecological services associated with shoreline structure and 

estuarine marsh that are not comparable to those impacted - services such as shoreline 

stabilization and erosion control; filtering sediment, nutrients, and pollutants; increasing flood 

storage capacity; slowing stormwater runoff; and maintaining connections between land and 

water ecosystems to enhance resilience.

115 NOAA acknowledged these benefits in the Plan along 

with enhanced recreational benefits, infrastructure benefits, and other public use.116 Although 

various papers support productivity as a proxy for comparing food web support services across 

various habitats117,118- the types of services NOAA largely described as impacted by the spill –

they generally do not go as far as to suggest productivity as a proxy for comparing the total value 

of ecological services between widely divergent ecosystems. Peterson et al. (2007) - the paper 

from which NOAA draws its conversion ratio - specifically states that “[their] comparisons 

provide the basis for constructing alternative metrics for the food web support services of 

estuarine habitats.” Peterson et al. do not suggest the ratios apply to total ecological services. In 

response to a request for additional information regarding the validity of the metric for scaling 

total ecological services,119 NOAA reiterated the common practice of using a single common, 

comparable metric in HEA and provided several resources as examples of use of a similar metric 

in the context of NRDA.120 NOAA reaffirmed their position in the request for reconsideration. 

The NPFC recognizes the difficulty in scaling out of kind restoration but disagrees that ignoring 

the differences in total ecological services lost and gained is justified. NOAA clearly stated in the 

DARP that the services impacted by the spill are those related to benthic productivity and those 

enhanced by the restoration include both productivity and non-productivity related ecosystem 

services. These increased benefits of the restoration further support the NPFC’s determination 

that more conservative scaling ratios, as described above, are supported as an input to the HEA.

 

114 Plan, page 25

115 NOAA Guidance for Considering the Use of Living Shorelines. 2015

116 Plan, pages 52-53

117 Wong, Melisa C., C.H. Peterson, and M.F. Piehler. 2011. Evaluating estuarine habitats using secondary 

production as a proxy for food web support. Marine Ecology Progress Services. 440: 11-25

118 Peterson et al. 2007. Estuarine habitat productivity ratios at multiple trophic levels

119 Email Request for Additional Information from NPFC to NOAA, November 6, 2019

120 NOAA November 25, 2019 response to request for Additional Information cited:

 French McCay, D., P. Peterson, and M. Donlan. 2002. Restoration scaling of benthic, aquatic, and bird injuries to 

oyster reef and marsh restoration projects. ASA, Inc., UNC – Chapel Hill, and IEc, Inc. https://pubdata.diver.orr noaa.gov/admin-record/6404/French%20McCay%20et%20al%202002.pdf - this incident scaled 

restoration of like habitat

 French McCay, D., and J. J. Rowe. 2003. Habitat restoration as mitigation for lost production at multiple trophic 

levels. Marine Ecology Progress Series 264:233-247. – this incident scaled restoration equivalent to higher order 

trophic level injuries

 Unsworth, R. E., and R. C. Bishop. 1994. Assessing natural resource damages using environmental annuities. 

Ecological Economics 11:35-41. – this incident scaled restoration of like habitat
18

HEA calculations: As previously described, NOAA used a HEA model to calculate the DSAYs 

of injury and DSAYs per mile of restoration for the three restoration components to generate a 

total number of miles of restoration to compensate for the injury. NOAA modified the 2012 

HEA121 methodology and two of the HEA inputs (area of injury and time to onset of recovery) 

for the 2019 HEA used to support the Claim.

Both the 2012 HEA and the 2019 HEA utilize a discounting rate of 3% per year. This is a 

standard economic discounting rate historically accepted by the NPFC. However, NOAA 

changed its methodology related to partial year discounting. NOAA explains the change as 

necessary to “account more accurately for annual discounted service-acre year values in the HEA 

over time than the continuous ‘decimal years’ time format used in the 2012 HEA. Specifically, 

the 2019 HEA discounts losses and gains based on the calendar year that they were incurred.”122

NOAA further explained that utilizing monthly units provided a method for accommodating the 

8-month period of injury before onset of recovery.123 The NPFC finds that NOAA’s explanation 

adequately supports adjusting the methodology to account for the less-than-full-year of injury at 

100% loss.

Finally, NOAA estimates the riprap will reach its fullest service level (95% of the services of a 

typical rip-rap structure) in 3 years, remain at that level for 5 years (2021 for purposes of the 

HEA) and then decline in function linearly to Year 20 (2033).124 NOAA estimates the restored 

marsh will yield 71.3% of the services of a fully functioning marsh in 15 years (2028), plateau at 

that level for four years (2032), then degrade linearly through Year 27 (2040) once the shoreline 

protection benefits of the rip rap cease. The existing marsh is protected through Year 26 (2039) 

at the 100% service level and then declines in relation to the lost restored marsh (losing all 

protected service value in Year 27 (2040). The NPFC requested NOAA provide the basis for 

these estimates125 for which NOAA provided additional reference materials and discussion that 

include various studies supporting the 71.3% service level of created marsh and explanation of 

the 95% service level of the riprap sill structure relative to a typical riprap structure.126 The 

NPFC acceptsNOAA’s assessment of the 20-year estimated design life as few references could 

be found regarding expected design life for similar riprap sill construction.127 

The NPFC finds that the estimated service level of the created marsh and riprap and expected 

lifecycle of the project are supported inputs to the HEA.

RESTORATION COSTS

 

121 The 2012 HEA is incorporated into and supports restoration scaling in the Plan

122 Additional Information received by NPFC, October 28, 2019

123 Teleconference between NOAA and NPFC February 6, 2020

124 Years are measured from the HEA base year of 2013. The associated calendar year will shift to reflect years from 

implementation of the project.

125 Email from NPFC to NOAA requesting additional information, dates November 29, 2019

126 Additional information received December 19, 2019

127 By comparison, the design life for a similar project at Moses Lake (a more protected bay within Galveston Bay) 

is 25 years, though it is unclear whether the design specifications are comparable. Coastal Erosion Planning and 

Response Act (CEPRA) Economic and Natural Resource Benefits Study, Texas, April 2013
19

NOAA’s estimated restoration costs include $895,021.82 for Planning, $11,433,904.75 for 

Construction, $208,758.72 for Monitoring, and $626,884.26 for Administration and Oversight. 

Planning costs are largely based on an American Society of Civil Engineers (ASCE) fee curve 

formula applied to estimated construction costs and consistent with estimates commonly used by 

NOAA.128 The Administration and Oversight estimate is similarly scaled to other costs reflecting 

5% of the sum of the planning, construction, and monitoring components (a NOAA standard 

estimate for restoration activities). Monitoring costs are associated with six days annually of 

structural and functional assessment of the restoration project and 30 hours annually for report 

generation. Monitoring costs are predominated by personnel, travel and equipment use with a 

minimum of laboratory services and a post monitoring aerial survey. Construction costs are 

based on an estimated 1000 feet/day of limestone placement over 22 days and 1.5 acres/day of 

marsh grass planting over 8 days. The vast majority of the construction costs are associated with 

the installation of the limestone breakwaters which is estimated at $500/linear foot.

The NPFC finds the costs are supported for the activities identified. The standard rates related to 

design and administration/oversight are commonly accepted and within range of completed 

restoration activities previously approved by NPFC.129 Although NPFC did not find 

corroborating references for NOAA’s estimate of $500/linear foot for installed 

limestone,130,131,132 the total project cost per linear foot ($580/foot) is average for similar projects 

in southeast Texas: Virginia Point Project at $380/foot,

133 Galveston State Park Project at 

$599/foot,

134 and Indian Point Project at $785/foot.135

 

MONITORING

As described, the project activities include installation of breakwaters of limestone or concrete 

riprap and the planting of spartina alternaflora within the protected area landward of the 

breakwater.136 Project performance will be assessed by comparing quantitative monitoring 

results to predetermined performance standards that define the minimum physical or structural 

conditions deemed to represent normal and acceptable development of a marsh in order to 

 

128 Appendix 19, Planning Tab, Notes

129 By comparison NPFC approved costs for Administration/Oversight for the Florida Mystery Spill NRD 

Restoration Claim, M00098-OC1 were 13%; for the T/V Margara Primary Restoration Claim, M06017-OC01 

were 5.9%; the M/V Jireh emergency restoration Claim, M12037-OC02 were 16.5%, and the Athos I 

Assessment and Restoration Claim, P05005-OC1 were 3.9%

130 Claim Appendix 19, Tab Construction Costs

131 Galveston Bay Foundation. Living Shorelines: A natural approach to erosion control, Table 3 includes estimates 

for installed cost of limestone rock ranging from $125-$200/linear foot for offshore/nearshore breakwaters

132 DEA Report, page 15 estimated cost of limestone material at ~$1M but did not include delivery/installation and 

made no guarantees with regard to cost estimates for the described project

133 National Fish and Wildlife Foundation. Gulf Environmental Benefit Fund: Virginia Point Shoreline Protection

and Estuarine Restoration Announcement identifies a 10,000 ft rock breakwater and marsh planting at cost of 

$3,800,000 or $380/ft total cost

134 National Fish and Wildlife Foundation. Gulf Environmental Benefit Fund: Galveston Island State Park Marsh 

Restoration and Protection in Carancahua Cove identifies a 5,400 ft rock breakwater and dredge and fill activities 

at cost of $3,234,500 or $599/ft total cost

135 Texas Trustee Implementation Group Final 2017 Restoration Plan/Environmental Assessment: Restoration of 

Wetlands, Coastal, and Nearshore Habitats; and Oysters. 2017, page 40-41 identifies a 2,800 linear foot 

breakwater project for $2,199,000, or $785/ft

136 Plan, pages 49-50
20

determine whether the project goals and objectives are achieved or whether corrective actions are 

required to meet the goals and objectives.137 NOAA will develop the specific performance 

measures and the monitoring program prior to implementation of the project. Although NOAA 

defers design of the monitoring program, the budget included with the Claim provides greater 

detail regarding the scope of intended monitoring. 138 The monitoring budget anticipates annual 

surveys of both structural and functional restoration components for five years following the “as 

built” post construction survey. Survey parameters include topobathy slope profile and 

breakwater elevation; vegetation survival, percent cover, and biomass; and oyster spat 

settlement, abundance, and survival. NOAA states that the construction bid package will be 

developed such that the contractor is required to perform corrective actions as indicated by the 

performance reports reflected in the monitoring budget.139

The NPFC will pay monitoring costs necessary to accomplish the activities for which a claim is 

paid140,141- monitoring which informs the installation of stable breakwaters and the planting of 

marsh grasses (i.e., the activities identified by NOAA in their Claim). Structural and functional 

performance monitoring for the purpose of documenting service values generated are not 

compensable from the Fund except as such data would inform the cessation of a restoration 

activity. NOAA provided additional information

142 explaining the relationship between, and the 

purposes of, the “As Built” survey and the five years of structural and functional monitoring. 

NOAA clarified that a portion of the construction budget will be retained over the course of the 

monitoring period to ensure performance of corrective actions relevant for structural/functional 

project performance. However, NOAA also states in their budget that, “Structural and functional 

monitoring parameters identified in the budget relate directly to and allow NOAA to document 

compensation through restoration of the benthic production ecosystem service lost as a result of 

the DBL 152 oil spill.”143 NOAA does not distinguish between monitoring activities that inform 

anticipated corrective actions vice monitoring activities for documenting service values 

generated. Similarly, though NOAA cites the 5-year monitoring horizon as an industry standard, 

it is unclear whether that standard is based on the historical time period associated with 

necessary adaptive maintenance/corrective actions, the time period associated with evaluating 

project success to release an RP or permittee from additional liability, or for providing longterm 

performance data to inform future restoration opportunities. Given the number of similar projects

conducted in the area, there are ample reference projects to inform a successful design. The 

NPFC finds five years of annual monitoring excessive for evaluating whether the restoration 

activities (installation of riprap sill and vegetation plantings) are complete, however the NPFC 

recognizes that there is some risk involved with vegetation planting therefore the NPFC approves 

two monitoring events to evaluate whether the riprap structure is stable and the vegetation 

survives the planting process.

 

137 Plan, page 50

138 Claim, Appendix 19, Monitoring Tab

139 Claim, Appendix 19, Planning Tab, notes

140 33 CFR §136.211(b)

141 Monitoring which NPFC will approve generally includes monitoring to meet regulatory permitting requirements, 

performance standards to release a construction contractor from additional liability, and monitoring to inform 

anticipated corrective actions or management activities that are included as a component of the restoration 

activity and are based on specified performance metrics

142 Additional information received November 25, 2019

143 Claim, Appendix 19 Projected Restoration Costs, Monitoring Tab
21

Past Assessment Costs 

NOAA claimed $306,465.91 in past costs for labor and indirect costs ($302,010.04), travel 

($4,397.38), and purchases ($58.49) that were incurred by NOAA from January 7, 2007 through 

July 23, 2016 for the purpose of assessing natural resource damages. Labor costs were supported 

by agency timesheets and descriptions of labor for each employee, indirect costs were supported 

by documentation of indirect cost calculation methods, purchases were supported by receipts, 

and travel was supported by signed travel vouchers. 

The Plan and associated claim materials document that NOAA’s past costs were incurred for: (1) 

legal support for assessment and restoration planning activities, review of the Plan, NEPA 

compliance, and issuing of the Federal Register Notice of Final Plan (2) compilation and 

evaluation of assessment information, (3) development of HEA and restoration scaling, (4) 

response to public comments, (5) development and evaluation of restoration options, and (6) 

compilation of cost documentation. 

The NPFC determines that NOAA provided sufficient evidence to warrant proceeding with a 

natural resource damage assessment.144 The NPFC further finds that the associated costs are for 

appropriate assessment activities,145 the associated costs were reasonable, and that NOAA’s costs 

were properly documented. 

Final Analysis and Determination

Based on the above, the NPFC determines that the $306,465.91 in past assessment costs are 

compensable in accordance with 33 C.F.R. §136.211(a).

With regard to Damages, in its request for reconsideration, NOAA specifically requests payment 

of the full value of the presented claim, or, in the alternative, payment of equitable compensation 

to fund natural resource restoration. The NPFC acknowledges that data collected during the 

response and long term monitoring, support some level of injury. Similarly, the NPFC 

acknowledges that NOAA’s shoreline protection and salt marsh project has a high certainty of 

success based on long-term documented use of the technique146 and that the project has the 

potential to compensate for ecosystem services lost from the DBL 152 incident. As described 

above, the NPFC finds that the information available supports certain inputs to the HEA that 

alter the scale of the project. NOAA did not provide any specific information regarding the 

scalability of the project and associated costs, however many of the component costs are scaled 

to distance or area and similarly scaled projects exist in the geographic area.

Based on data submitted by NOAA and information independently reviewed by the NPFC, the 

NPFC offers $4,532,941.59 in restoration costs. This offer is outlined below.

ADJUSTED HEA INPUTS RELATIVE TO THOSE IN THE 2019 HEA

 

144 15 C.F.R. §990.44

145 15 C.F.R. 990 Subpart E

146 Plan, page 51
22

The NPFC dtetermines that the data support injury quantification and restoration scaling metrics 

as follows: 

Length of Time of 100% Injury - 2 months in lieu of 8 months

Scaling offshore benthic to marsh habitat - 10:1 in lieu of 4.51:1

Scaling offshore benthic to protecte marsh habitat - 10:1 in lieu of 4.51:1

Scaling offshore benthic to constructed riprap - 1:1 in lieu of 0.45:1

These adjustments reduce the calculated discounted service acre years (DSAYs) of injured 

benthic offshore habitat from 1436 DSAYs to 1106 DSAYs and reduce the project distance that 

produces the equivalent DSAYs from 4.23 miles to 1.47 miles (34.8% of NOAA’s assessed 

project).

REVISED DAMAGES CALCULATION

The project involves placement of riprap along a shoreline and planting Spartina at a particular 

density. As such much of the cost, and certainly the most expensive components associated with 

the restoration, are scaled to the size of the project.147 Though the NPFC recognizes that some 

costs may not be directly scalable, the NPFC applied the 34.8% project size uniformly to the 

budget, while accounting for certain denied monitoring and associated administrative costs.

Request Total following 

certain denied costs

Total applying

34.8% scaling 

Planning 895,021.82 895,021.82 311,467.60

Construction 11,433,904.75 11,433,904.75 3,978,998.85

Monitoring 208,758.72 76,496.49148 26,620.78

Admin and Oversight 626,884.26 620,271.15149 215,854.36

Total $ 13,164,569.56 $ 13,025,694.22 $ 4,532,941.59

TIMING OF NPFC INPUT

NOAA asserts that “even if NOAA agreed with the NPFC’s suggested productivity ratio, we 

could not have made a change in our claim.”150 The NPFC issued its determination in June 2020 

only after multiple requests and discussions related to scaling. There is sufficient precedent in 

NPFC claims adjudication to support that the NPFC accommodates adjustments to claimed 

damages in light of new information or revised interpretation of information discovered during 

the adjudication process. Similarly, as provided in the Claims Regulations, 33 C.F.R. Part 136, 

NOAA was provided an opportunity to request reconsideration of the claim for the relief 

requested providing any additional support. NOAA was not prevented from, or advised against, 

adjusting the total of the relief requested. The NPFC finds that the NPFC provided ample notice 

and opportunity for NOAA to adjust their claim. 

 

147 The primary expense, limestone delivery, is budgeted at $500/ft, engineering and design is a formula dependent 

on the construction cost (though not quite linear), and Admin and Oversight is a straight 5% of Planning, 

Construction, and Monitoring

148 Costs associated with the first two proposed monitoring events

149 5% of the total of Planning, Construction, and Monitoring

150 Request for Reconsideration. September 25, 2020. 6 pp.
23

Summary and Final Decision

The NPFC has reviewed the Claim submitted by NOAA for past assessment costs and future 

costs to implement its compensatory restoration project for the DBL 152 incident in the context 

of NOAA’s request for reconsideration and in accordance with OPA (33 U.S.C. §2701 et seq.) 

and associated OSLTF Claims Regulations (33 C.F.R. Part 136). Through this determination, 

the NPFC approves past assessment costs of $306,465.91 incurred by NOAA and $4,532,941.59 

in damages for future restoration, for a total of $4,839,407.50. The NPFC denies claimed 

damages of $8,631,627.96. This written decision is final. By accepting the NPFC’s settlement 

offer of $4,839,407.50, NOAA affirms that restoration of the type and scale associated with the offer

is reasonably viable. The Trustees should refer to the included transmission memorandum

regarding requirements associated with acceptance terms and conditions.