U.S. Department

of Homeland Security

United States

Coast Guard

Director

National Pollution Funds Center

U.S. Coast Guard Stop 7100

4200 Wilson Blvd, Suite 1000

Arlington, VA 20598-7100 

Staff Symbol: (CN)

Phone:

E-mail: @uscg.mil 

16480 

28 May 2014 

MEMORANDUM

From: Fredy Hernandez

CLAIMS MANAG

To: Cynthia Dohner

Authorized Official, Department of the Interior

Subj: Claim: N10036-OI19 – Deepwater Horizon Oil Spill Assessment 

1. On December 31, 2013, the National Pollution Funds Center (NPFC) received a claim from the 

Department of the Interior for costs to assess potential natural resource injuries resulting from the Deepwater 

Horizon oil spill (N10036-OI19). The claim totals $5,161,519 to implement a Background Carcass Deposition 

Study Plan ($4,488,277 to implement the study and $673,242 as contingency funding). 

2. The NPFC is issuing the enclosed determination and offer to pay $4,488,277 to implement the Background 

Carcass Deposition Study Plan. This determination was made in accordance with the Oil Pollution Act (OPA, 

33 U.S.C. §2701 et seq.), the OPA claims regulations (33 C.F.R. Part 136), and the Natural Resource Damage 

Assessments regulations (15 C.F.R. Part 990). A copy of the determination and offer to pay the amount of 

$4,488,277 is enclosed.

3. If you accept this offer, please complete the enclosed Acceptance/Release Form and return to:

Director (cn)

National Pollution Funds Center 

U.S. Coast Guard Stop 7100

4200 Wilson Boulevard, Suite 1000

Arlington, VA 20598-7100

4. If we do not receive the signed Acceptance/Release Form within 60 days of the date of this memo, the offer 

is void. If the settlement is accepted, your payment will be mailed within 30 days of receipt of the 

Acceptance/Release Form. Please provide account information and instruction for the transfer of funds to your 

Damage Assessment Restoration and Revolving Fund Account with the signed Form.

 

5. If you have any questions about this determination, please feel free to contact me at 703-872-6054.

# 

Enclosures: (1) NPFC determination 

 (2) Acceptance/Release Form
NPFC DETERMINATION

 Claim Number and Name: N10036-OI19, Deepwater Horizon Oil Spill Assessment

 Claimant: Department of the Interior

 Type of Claim: Natural Resource Damage Assessment, Upfront Assessment Costs

 Claim Amount: $5,161,519

 Offer Amount: $4,488,277

 Determination Date: 28 May 2014

 NPFC Claim Manager: Fredy Hernandez

Summary of the Incident and Claim

On April 20, 2010, the Deepwater Horizon mobile offshore drilling unit exploded and sank, 

discharging an estimated 2101 million gallons of oil into the Gulf of Mexico until the well was 

capped on July 15, 2010. Responders to the discharge dispensed approximately 1.84 million 

gallons of dispersants2 to keep, or delay, the oil from reaching sensitive shorelines. The U.S. Coast 

Guard designated the source of the spill as an offshore facility located on an area leased by BP 

Exploration & Production, Inc. (BP). BP accepted the designation and advertised its claims process

pursuant to the Oil Pollution Act (OPA). 

Upon notification of the spill, the Department of the Interior (DOI), along with the Department of 

Commerce represented by National Oceanic and Atmospheric Administration, and five Gulf Coast 

states3, acting as natural resource trustees designated under OPA and appropriate state laws, 

initiated an assessment of natural resource damages resulting from the discharges and response to 

discharges of oil. By the August-September 2010 period, the trustees observed over 950 miles of 

oiled shoreline habitat, 400 oiled sea turtles, 1,500 oiled birds4, and identified numerous other 

natural resources at risk to include fish, marine mammals, oysters, and associated habitats. The 

trustees have continued to work together to develop and implement assessment plans to determine 

the nature and extent of these losses. 

On December 31, 2013, DOI presented a claim to the Oil Spill Liability Trust Fund (OSLTF or the 

Fund) to implement their Background Carcass Deposition Study Plan. The claim totaled 

$5,161,519, which includes $4,488,277 to implement the study and $673,242 as contingency 

funding. This determination presents the NPFC’s findings with respect to these claimed costs. 

Jurisdictional Information

The NPFC, which administers the Fund, first considered whether the claimed damages arose 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 

1 "Deepwater Horizon Oil Spill Early Restoration Plan." Gulf Spill Restoration Publications. National Oceanic and

Atmospheric Administration 2

 1.07 million gallons on the surface and 771,000 gallons sub-sea. “The Ongoing Administration-Wide Response to 

the Deepwater BP Oil Spill.” Deepwater Horizon Incident Joint Information Center 3 The state trustees participating in the assessment are Louisiana, Mississippi, Alabama, Florida, and Texas. 4

 Federal Register, Vol. 75, No. 190, Pgs. 60800-60802

 
of the United States after August 18, 1990. Based on the information summarized above, the NPFC 

has determined that the activities included and approved in this determination are for natural 

resource damages resulting from an OPA incident.

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)-(C). Pursuant to 33 U.S.C. §2706(d)(1)(C) and 

33 C.F.R. §136.207(a) and (b), natural resource trustees may present claims to the OSLTF for 

uncompensated natural resource damages, which include the reasonable cost of assessing those 

damages. 

This claim for natural resource damage assessment (NRDA) costs was submitted by DOI. DOI, 

under the authority of the Secretary of the Interior, is an appropriate 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).

General Claim Presentment Requirements

Claims to the Fund must be presented in writing to the Director, 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 in the case of natural resource damages under OPA 

section 2702(b)(2)(A), if later, the date of completion of natural resource damage assessment under 

OPA section 2706(e). 33 U.S.C. §2712(h)(2), 33 C.F.R. §136.101(a)(1)(ii). This claim is for costs 

associated with implementing a damage assessment Plan in accordance with the damage assessment 

regulations promulgated pursuant to section 2706(e) of OPA. The assessment was not complete 

when the claim was received on December 31, 2013; therefore, the claim was received within the 

period of limitations for claims.

In accordance with OPA, the OSLTF is available to pay claims for uncompensated natural resource 

damages. 33 USC §2712(a)(4). Damages include natural resource damages, which are damages for 

injury to, destruction of, loss of, or loss of use of natural resources, including the reasonable costs 

of assessing those damages. 33 U.S.C. §2702(b)(2)(A). 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 comment. 33 U.S.C. §2706(c)(5). 

DOI states that the Background Carcass Deposition Study Plan that forms the basis of this claim 

was published on the DOI gulf spill restoration website on October 17, 2013, thereby meeting this 

requirement5

. DOI states that they have not received any comments on their Plan6. 

5

 March 6, 2014 email from DOI to NPFC 6

 April 1, 2014, email from DOI to NPFC

Claim N10036-OI19

Page 2 of 7

 
Claim Presentment to the Responsible Party

With certain exceptions, claims to the NPFC for damages must be presented first to the responsible 

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

U.S.C. §2713(c)(2).

DOI presented its Background Carcass Deposition Study Plan and claim for implementation costs 

to BP on December 17, 20127. The Plan identifies potential injuries to natural resources resulting 

from the incident, and describes the assessment approach, need for the Activity and how it connects 

to the NRDA process, data collection and deliverables to be produced, level of effort, timeline, and 

cost estimates for contractors. The Plan presented to BP on December 17, 2012, did not identify the 

need for contingency funding; therefore, the NPFC does not consider the $673,242 requested for 

contingency funding properly presented to BP.

BP responded to DOI by letter on August 6, 2013, denying funding for the Background Carcass 

Deposition Study based on their opinion that the study would not provide accurate or reliable data 

to establish the background rate of carcass deposited in 2010-11. 

On December 31, 2013, more than 90 days after presenting its claim to BP for $4,488,277 to 

implement its Background Carcass Deposition Study, DOI presented this claim to the NPFC8

. The 

NPFC notified BP on April 18, 2014 that this claim was received9

. 

Based on the above facts, the NPFC finds that DOI’s claim to the NPFC for costs to implement the 

Background Carcass Deposition Study was presented to the RP in accordance with OPA.

Claimant's Burden of Proof and Adherence to the OPA Claims and NRDA Regulations

Under OPA, the claimant (in this case the trustees) bears the burden of providing all evidence, 

information and documentation deemed necessary to support the claim. 33 C.F.R. §136.105. 

After reviewing the claim and supporting documents, the NPFC finds that DOI is following 15 

C.F.R. Part 990 in carrying out the work subject to this claim. Specifically, they are coordinating

actions with other trustees to ensure no double recovery of damages, issued a notice of intent to 

conduct restoration planning10, invited BP to participate in the NRDA11, prepared a Plan that the 

7

 December 30, 2013 letter from DOI to NPFC 8

 December 31, 2013 email from DOI to NPFC 9

 April 18, 2014 RP notification letter from NPFC to BP 10 “Notice of Intent to Conduct Restoration Planning” Gulf Spill Restoration Publications. National Oceanic 

Atmospheric Administration. 11 “Invitation to Participate in Natural Resource Damage Assessment” Deepwater Horizon Administrative Record. 

Department of the Interior, September 27, 2012.

Claim N10036-OI19

Page 3 of 7

 
public was given an opportunity to review12, and are maintaining an administrative record that is 

available for public review13.

NPFC Review of Claim Activities and Associated Costs

Under this Activity, DOI plans to collect data on the number of bird carcasses typically found on 

beach and marsh shorelines in the northern Gulf of Mexico (i.e., the background bird carcass 

deposition rate). Field teams will walk or ride14 along beach or marsh shorelines and count the 

number of bird carcasses15 observed in the study area16. Bird carcasses observed will be marked 

and left in place to distinguish from newly deposited carcasses. Field teams will return to the study 

area every three to five days and repeat the process to determine the deposition rate of new bird 

carcasses under normal circumstances17. This background deposition rate will then be used by the 

trustees to distinguish the number of birds killed or injured due to the Deepwater Horizon oil spill 

and birds killed by other factors. 

DOI and the co-trustees have collected a large amount of data from the spill, including the species 

composition and abundance of avian resources and counts of dead birds found in the spill area. 

DOI plans to incorporate these data into models18,19 that will assist the trustees in estimating total 

avian mortality20. The models will account for several variables such as searcher efficiency21, 

carcass persistence22, and background carcass deposition rate23 (as determined by this Activity) to 

estimate total avian mortality. DOI states that they are not aware of any existing data in the 

scientific literature that can provide avian carcass deposition rates for the northern Gulf of Mexico. 

Further, previous bird surveys conducted are of limited use because they are not in the same 

geographical area or time period when the majority of carcasses were collected. DOI states that 

implementing this study will provide data relevant to the geographic area and time period when the 

majority of carcasses were collected24. 

12 March 6, 2014, email from DOI to NPFC 13 December 30, 2013, claim letter to NPFC 14 Field teams may use all terrain vehicles for some beach shoreline and will use boats for all marsh shoreline. 15 At a minimum, a bird carcass could consist of solitary body parts (e.g., single wing) or only a few feathers 

attached to skin fragments. 16 The study area is defined as beach and marsh shorelines from Galveston Bay inlet, Texas, to Apalachicola, 

Florida. Shorelines are divided into 14 regions with each region containing 12-15 different; 2 kilometer 

transects. 17 Normal circumstances are defined by the trustees as times where birds are not experiencing an unusual mortality 

event due to an oil spill, avian disease, hurricane, other unusual weather event, etc. (see Trustee Responses to BP 

Comments on the “Assessment Plan: Background Deposition of Bird Carcasses on Walkable Beaches and in 

Marshes (Bird Study #24)” submitted with the claim) 18 Beach Bird Model (BBM) and Live Oiled Bird Model (LOBM) 

19 The NPFC approved funding for the development of the BBM and LOBM under claim number N10036-OI03 on 

December 5, 2011 20 Background Carcass Deposition study Plan, page 2 21 The probability that searchers walking shoreline will locate a dead bird, when one exists 22 The likelihood that bird carcasses will persist on shorelines long enough for searchers to find them 23 The rate at which bird carcasses are deposited on beaches or marsh environments under “normal” circumstances. 24 DOI responses to BP letter dated August 6, 2013 provided to the NPFC with the claim. 

Claim N10036-OI19

Page 4 of 7

 
The NPFC reviewed the record in the context of implementing the proposed study four years after 

the spill. DOI has stated that “Background carcass deposition rates are meant to estimate the rate at 

which carcasses deposit on beaches under “normal” circumstances. In order to simulate “normal” 

circumstances, deposition rates for the geographic area of the spill would need to be collected 

outside the spill time period25.” DOI further states that this type of study has been used by trustees 

for the New Carissa and Luckenbach claims; where the study was implemented several years after 

the oil spill occurred26.

DOI claims $4,488,277 in contract costs for coordination with trustees and drafting reports 

($55,163); field work and data management activities ($3,939,757); and equipment and supplies 

($493,358)27. The bulk of the costs are for fieldwork and data management, which involves 

logistical planning, data management, and end of study report. The marsh area proposed28 in the 

Plan will require the field teams to rent boats to access the sites and in some cases may also need to 

rent an ATV. Given the size of the study area and potentially challenging terrain29, the study will 

require 14 field teams for a duration of 14 weeks. 

After reviewing DOI’s claim and Background Carcass Deposition Study Plan, the NPFC finds that 

the (1) Activity described above is an appropriate procedure under 15 C.F.R. §990.27(b)(iii) and is

capable of providing valid and reliable information to quantify injury and (2) costs claimed for this 

Activity are reasonable for the proposed level of effort given the complexity of the incident relating 

the nature and extent of oiling, geographic extent of exposure of natural resources to oil and study 

area, and magnitude of potential injury. Therefore, claimed costs of $4,488,277 for this Activity are

compensable from the Fund. 33 U.S.C. §2706 (d)(1)(C), 33 C.F.R. §136.211. As noted above the 

requested $673,242 in contingency funding is denied because it was not properly presented to the 

responsible party prior to submitting the claim to the Fund.

Summary

The NPFC has reviewed the claim submitted by DOI for costs to implement its Background 

Carcass Deposition Study Plan for the Deepwater Horizon incident in accordance with OPA (33 

U.S.C. §2701 et seq.) and its implementing regulations (15 C.F.R. Part 990 and 33 C.F.R. Part 136). 

Through this determination, the NPFC offers $4,488,277 to implement the Background Carcass 

Deposition Study Plan. This offer, if accepted, constitutes full and final payment for this claim.

Revolving Trust Fund and Return of Unused Funds to the OSLTF 

As established by OPA (33 U.S.C. §2706(f)) and the NRDA regulations (15 C.F.R. §990.65), sums 

recovered by trustees for natural resource damages must be retained in a non-appropriated revolving 

trust account for use only to implement the Background Carcass Deposition Study Plan addressed 

in this determination. For this claim, the NPFC will deposit $4,488,277 into DOI’s Natural 

Resource Damage Assessment and Restoration Fund (NRDAR Fund). DOI has demonstrated that 

25 DOI responses to BP letter dated August 6, 2013 provided to the NPFC with the claim. 26 DOI responses to BP letter dated August 6, 2013 provided to the NPFC with the claim. 27 Equipment and supply costs include: boat rental, cameras, GPS, laptops, etc. 28 Marsh from Galveston Bay, TX to Apalachicola, FL

29 Marsh from Galveston Bay, TX to Apalachicola, FL

Claim N10036-OI19

Page 5 of 7

 
the NRDAR Fund is a non-appropriated account that meets these requirements30. Any amounts in 

excess of those required for these reimbursements and costs shall be deposited in the Fund. 33 

U.S.C. §2706(f) and 33 C.F.R. §136.211(b).

Cost Documentation. Progress Reporting, and Final Report

As the claimant, DOI shall ensure that all expenditures of OSLTF funds are documented 

appropriately and spent according to the Background Carcass Deposition Study Plan as approved in 

this determination. Any funds not spent or appropriately documented shall be returned to the Fund. 

One year from the date of this determination, and annually thereafter, DOI shall provide the NPFC 

with a report on the status of implementation and expenditures. These annual progress reports 

should include:

1. Certification by DOI that all assessment activities have been conducted in accordance with the 

Background Carcass Deposition Study Plan as approved in this determination;

2. A progress report that includes a description of work accomplished, timeline for future 

activities, and any unexpected problems incurred during implementation; 

3. A summary of expenditures by category (i.e., labor, consultant/contractors, and travel); and

4. A narrative description of the work accomplished by each individual and how that work fits into 

the overall progress for the year. Enough detail should be included to determine reasonableness 

of costs for each employee when cost documentation is received with the final report.

DOI shall provide the NPFC with a final report 120 days after completion of these activities. The 

report should include:

1. Certification by DOI that all expenditures of OSLTF funds were in accordance with the Plan as 

approved by the NPFC; 

2. A summary of findings;

3. Copies of final reports;

4. Documentation of OSLTF funds remaining in the Revolving Trust Fund for this claim including 

account balance; and

5. Documentation of all expenditures as follows:

a. Labor: For each employee –

i. A narrative description of the work accomplished by each individual and how that work 

fit into the Plan. Enough detail should be included to determine reasonableness of costs; 

and

ii. The number of hours worked, labor rate, and indirect rate. An explanation of indirect rate 

expenditures, if any, will be necessary; 

30 The Department of the Interior and Related Agencies Appropriation Act, 1992 (H.R. 2686/P.L. 102-154) 

permanently authorized receipts for damage assessment and restoration activities to be available without further 

appropriation until expended. The Dire Emergency Supplemental Appropriations for Fiscal Year 1992 

<http://www.doi.gov/restoration/hjres157.cfm> (H.J.RES. 157/P.L. 102-229) provides that the fund's receipts are 

authorized to be invested and available until expended. Additionally, the Department of the Interior and Related 

Agencies Appropriation Act, 1996 <http://www.doi.gov/restoration/upload/pl104-134.pdf> (P.L. 104-134) provides 

authority to make transfers of settlement funds to other Federal trustees and payments to non-Federal trustees.

Claim N10036-OI19

Page 6 of 7

 
b. Travel: Paid travel reimbursement vouchers and receipts;

c. Contract: Activities undertaken, lists of deliverables, and contract invoices and receipts;

d. Purchases/Expendables: Invoices and receipts, along with an explanation of costs; and 

e. Government Equipment: Documentation of costs, including the rate (i.e., hourly, weekly) 

and time for all equipment used for which costs were incurred. 

With the final report(s), the NPFC will reconcile costs and all remaining funds and/or inadequately 

documented costs will be returned to the OSLTF.

The NPFC has prepared a standardized template with detailed instructions to facilitate annual 

progress and final cost reporting.

If you have any questions or would like to discuss this determination, please contact me by phone 

(703-872-6054) or email at Fredy.e.hernandez@uscg.mil.

Claim N10036-OI19

Page 7 of 7
U.S. Department of 

Homeland Security

United States

Coast Guard

Director

National Pollution Funds Center

US COAST GUARD MS 7100

4200 Wilson Blvd. Suite 1000

Arlington, VA 20598-7100 

Staff Symbol: (CN)

Phone:

E-mail: @uscg.mil

16480 

Claim Number: N10036-OI19 Claimant Name: The U.S. Department of the Interior

 

On December 31, 2014, the U.S. Department of the Interior (DOI) presented a claim to the Oil 

Spill Liability Trust Fund (OSLTF or the Fund) in the total amount of $5,161,519 for upfront 

costs to assess bird injuries resulting from the discharge of oil on or about April 20, 2010, from 

an area of land leased by BP (the Deepwater Horizon incident). 

The Department of the Interior accepts the settlement offer of $4,488,277 as full compensation 

for the Background Carcass Deposition Study Plan as described in the May 28, 2014 

determination (N10036-OI19). The settlement does not include any additional funding for 

contingency. 

This settlement represents full and final release and satisfaction of all damage assessment costs 

described in the May 28, 2014 determination, Claim Number N10036-OI19. 

DOI agrees to provide annual and final reports to the NPFC as directed in the determination. 

DOI agrees to comply with 33 U.S.C. §2706(f) and 33 C.F.R. §136.211 by depositing into a 

revolving trust account the amounts awarded in the May 28, 2014 determination and any 

amounts in excess of those required for these reimbursements to accomplish the assessment 

studies approved in the determination shall be deposited to the OSLTF. 

DOI hereby assigns, transfers, and subrogates to the United States all rights, claims, interest and 

rights of action, that it may have against any party, person, firm or corporation for compensation 

paid from the Fund for this claim. DOI authorizes the United States to sue, compromise or settle 

in the name of DOI and that the NPFC be fully substituted for DOI and subrogated to all DOI 

rights arising from the May 28, 2012 determination. 

DOI acknowledges that the United States has pending legal actions associated with the 

Deepwater Horizon incident in federal district court but warrants that no settlement will be made 

by any person on behalf of the DOI with any other party for costs that are the subject of the claim 

against the OSLTF without consultation with the NPFC. DOI will cooperate fully with the 

NPFC in any claim and/or action by the United States against any person or party to recover the 

compensation paid by the OSLTF. The cooperation shall include but not be limited to, 

immediately reimbursing the OSLTF any compensation received from any other source for the 

same claim, and providing any documentation, evidence, testimony, and other support, as may be 

necessary for the NPFC to recover from any other party or person. 
DOI certifies that to the best of its knowledge and belief the information contained in this claim 

represents all material facts and is true, and understands that misrepresentation of facts is subject 

to prosecution under federal law, including but not limited to 18 U.S.C. §§287 and 1001. 

Title of Person Signing Date of Signature

Typed or Printed Name of Claimant or Name of Signature

Authorized Representative

Title of Witness Date of Signature

Typed or Printed Name of Witness Signature

ALC Required for Payment Bank Routing Number Bank Account Number