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: 703-872-6054 

E-mail: fredy.e.hernandez@uscg.mil 

16480 

April 16, 2013 

CERTIFIED MAIL Number: 7011 1570 0001 2445 2866

Thomas O. Melius 

Regional Director, USFWS Midwest Region 

5600 American Boulevard West, Suite 990 

Bloomington, Minnesota 55437-1458 

Re: Claim Number: E10527-OI03 - Enbridge Oil Spill Vegetation Assessment Survey 

Dear Mr. Melius: 

The National Pollution Funds Center (NPFC) has completed its review of the Department 

of the Interior’s (DOI) claim for costs to implement its vegetation survey to assess 

damages resulting from the Enbridge oil spill (Claim Number E10527-OI03). We have 

determined that $167,067 of the $167,100 amount claimed is compensable under the Oil 

Pollution Act (OPA, 33 U.S.C. 2701 et seq.) and the OPA regulations (33 C.F.R. §136 and 

15 C.F.R. 990 et seq.). The basis of our decision follows. 

 

Summary of the Incident and Claim 

On or about July 26, 2010, a 30-inch diameter pipeline owned by Enbridge Energy, 

Limited Partnership (Enbridge) ruptured near Marshall, Michigan, discharging over 

840,0001

 gallons of crude oil into Talmadge Creek, which flows into the Kalmazoo River. 

Approximately 40 creek and river miles2

 were exposed to oil, with high water levels 

carrying oil beyond the river banks and into adjacent floodplains3

. On July 27, 2010, the 

Environmental Protection Agency identified Enbridge as the owner and/or operator of the 

facility from which the discharge took place4. 

Following the spill, DOI, along with the National Oceanic Atmospheric Administration 

(NOAA), state of Michigan, and tribal representatives5 began collecting data to assess the 

spill’s impact on natural resources and recreational use of those resources in and near the 

 

1

 http://www.fws.gov/midwest/es/ec/nrda/MichiganEnbridge/ 2

 2 miles of the Talmadge Creek and 38 miles of the Kalamazoo River 

3

 Over 4,400 acres of the surrounding land were flooded at the time of the discharge,(DOI claim letter to 

NPFC dated February 11, 2013), exposing emergent, scrub-shrub, forested wetland, and forested upland 

vegetative communities to oil. 4

 http://www.epa.gov/enbridgespill/ar/enbridge-AR-0004.pdf 

Claim Number: E10527-OI03 

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5

 Nottawaseppi Huron Band of the Potawatomi and Match-E-Be-Nash-She-Wish Band of the Pottawatomi 
creek and river. Specific efforts conducted jointly with Enbridge in August 20106

 and 

September 20117

 assessed the plant communities that were potentially affected by the 

discharged oil and associated response activities8. 

 

Based on information from the initial August 2010 and September 2011 assessments 

showing injury, or potential injury, to shoreline habitats and river resources from exposure 

to oil and continuing response efforts9, as well as lost human use of those resources from 

river closures imposed following the spill, the trustees initiated restoration planning under 

OPA to assess and restore damages resulting from this incident10. As part of this overall 

effort, DOI developed a Vegetation Assessment Survey Work Plan focused on assessing 

plant communities that were adversely affected by oiling and response activities. 

Enbridge declined to participate in or fund this effort. 

On February 12, 2013, DOI presented a claim to the NPFC for $167,100 to implement its 

Vegetation Assessment Survey Work Plan. The NPFC notified Enbridge on February 15, 

201311 that this claim was received, and the NPFC would proceed to adjudicate it based 

on OPA and the OPA claims regulations. Enbridge acknowledged receipt of the NPFC’s 

letter on March 15, 201312. The remainder of this determination presents the NPFC’s 

analysis and findings with respect to this claim and the OPA claims requirements. 

Jurisdictional Information 

The NPFC 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 of oil 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 the information 

submitted by DOI with the claim record, as summarized above, the NPFC finds that this 

claim is 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 natural resource damages for natural 

resources under their trusteeship and shall develop and implement a plan for the 

restoration, rehabilitation, replacement, or acquision of the equivalent of the natural 

resources under their trusteeship. 33 U.S.C. §§ 2706(c)(1)(A) and (C). Natural resource 

 

6

 DOI Final 2012 Vegetation Assessment Survey Work Plan, Section 1 

7

 The September 2011 vegetative assessment survey included a more intensive characterization of the plant 

communities present, used multiple assessment methods, and included study sites that were selected to 

address the different types of response actions. 8

 Response actions identified by DOI with potential adverse impacts to natural resources include: removal 

of vegetation, disturbance (i.e., trampling, compacting, and/or scraping and/or removing soil and organic 

matter) 9

 http://www.epa.gov/enbridgespill/ar/enbridge-AR-1152.pdf 10 http://www.fws.gov/midwest/es/ec/nrda/MichiganEnbridge/pdf/EnbridgeNOIMarch2012.pdf 11 Letter from NPFC to Enbridge dated February 15, 2013 

Claim Number: E10527-OI03 

2 of 11 

12 Letter from Enbridge to NPFC dated March 15, 2013 
damages include the reasonable cost of assessing the damages. 33 U.S.C. § 2706(d)(1)(C). 

Pursuant to 33 C.F.R. §136.207, natural resource trustees may present claims to the Oil 

Spill Liability Trust Fund (OSLTF) for uncompensated natural resource damages, which 

include the reasonable cost of assessing those damages. 

This claim for natural resource damage assessment costs was submitted by DOI on behalf 

of themselves and NOAA. DOI, under the authority of the Secretary of the Interior, and 

NOAA, under the authority of the Secretary of Commerce, are appropriate federal natural 

resource trustees 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). 

Claimant's Burden of Proof and Adherence to NRDA Regulations 

Under OPA, trustees bear the burden of proving their entitlement to the amount claimed 

for compensation of natural resource damages. 33 C.F.R. §136.105. Any determination or 

assessment of damages to natural resources for the purposes of OPA by a trustee in 

accordance with the regulations at 15 C.F.R. Part 990 shall have the force and effect of a 

rebuttable presumption on behalf of the trustee in any administrative or judicial 

proceeding under this Act. 33 U.S.C. §2706 (e)(2) and 15 C.F.R. §990.13. 

After reviewing the claim and supporting documents, the NPFC finds that DOI followed 

15 C.F.R. 990 et seq. Specifically, they coordinated actions with other trustees to ensure 

no double recovery of damages, issued a notice of intent to conduct restoration planning, 

invited Enbridge to participate in the natural resource damage assessment, prepared a plan 

that was reviewed by the public, and are maintaining an administrative record that is 

available for public review13. 

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 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). This 

claim is for costs to implement DOI’s plan to assess potential injuries to vegetative 

communities resulting from the incident and response to the incident. The assessment was 

not complete when the claim was received on February 13, 2013; therefore, the claim was 

received within the period of limitations for claims. 

Natural resource damage claims presented to the NPFC must be based on a plan that the 

public has had an opportunity to review. 33 U.S.C. §2706(c)(5). On January 7, 2013, DOI 

 

Claim Number: E10527-OI03 

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13 http://www.fws.gov/midwest/es/ec/nrda/MichiganEnbridge/adminrecord.html 
published its plan on the U.S. Fish and Wildlife Service’s Enbridge Oil Spill Natural 

Resource Damage and Restoration webpage14,15, thereby meeting this requirement. 

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 the claim is not settled by any person by payment 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). 

On July 26, 2012, DOI presented their Vegetation Assessment Survey Work Plan and 

claim for implementation costs to Enbridge16. The plan identified survey objectives, the 

potential types of vegetation injuries and injury pathways resulting from oil exposure and 

response actions, survey sites, methods, and costs totaling $167,100. On October 10, 

2012, Enbridge declined to pay, stating that “further collection of data was unnecessary 

because sufficient data already existed that would allow the trustees to establish a recovery 

timeline, quantify lost services, and evaluate a compensation plan”17. 

On February 12, 2013, more than 90 days after presenting Enbridge with its assessment 

plan and claim for implementation costs, and after Enbridge declined payment, DOI 

presented a claim to the NPFC for funds to implement its plan. Based on the above facts, 

the NPFC finds that the claim before the Fund was presented to Enbridge in accordance 

with OPA prior to presentment to the Fund. 

NPFC Review of Claim and Associated Costs 

Costs shall be determined under 33 U.S.C. § 2706(d)(1) with respect to plans adopted 

under 33 U.S.C. § 2706(c)(5). 33 U.S.C. § 2706(d)(2). DOI claims $167,100 to implement 

its Vegetation Assessment Survey Work Plan. The objective is to assess plant 

communities along the Kalamazoo River and Talmadge Creek that were adversely 

affected by oiling and response activities. Specific habitats include a mixture of emergent, 

scrub-shrub, and forested wetland vegetative communities, where exposure to oil and 

impacts of response actions have the potential to reduce ecological services that vegetative 

communities provide (e.g., habitat for birds and mammals), decrease biodiversity (e.g., 

number of different plant species found in the impacted area), and/or increase the risk of 

colonization by non-native plants. 

 

14 Email from Kim Mitchell (DOI) to Stephanie Millsap (DOI) on January 7, 2013 confirming plan was 

posted on the webpage. This correspondence was provided to the NPFC via email from DOI to NPFC on 

February 27, 2013. 15 http://www.fws.gov/midwest/es/ec/nrda/MichiganEnbridge/pdf/VegAssessSurveyWorkPlan23July2012.pdf 16 Letter dated July 26, 2012 from DOI to Enbridge transmitting their Final 2012 Vegetation Assessment 

Survey Work Plan 

Claim Number: E10527-OI03 

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17 Letter from Enbridge to DOI dated October 10, 2012 
The proposed survey will be conducted in 201318. Consistent with the 2011 survey, four 

methods will be employed at specific impact and reference sites: (1) direct measurements 

of percent plant cover, stem height, and stem density; (2) visual assessment of wetlands 

function based on hydrologic conditions, presence of invasive species, and habitat and soil 

alterations (using Michigan Rapid Assessment Method (MiRAD)); (3) visual assessment 

of native plants to assess plant diversity (using modified Floristic Quality Assessment 

(FQA) procedures); and (4) visual assessment of the presence of invasive species (using 

the protocols developed for the initial 2010 assessment), as a means of identifying 

potential sites for compensatory restoration. 

Information from the four methods will be compiled in a draft report, allowing future 

efforts to measure the physical characteristics19 and plant diversity20 of injured habitats as 

compared to non impact, or reference sites21. This information will then be used in a 

Habitat Equivalency Analysis (HEA) model22,23 to quantify injury and determine the 

amount of restoration necessary to compensate for the loss of habitat and habitat services 

due to the spill. Information from assessment of invasive species will be used to identify 

potential areas that could be targeted for restoration to compensate for the lost habitat and 

habitat services. 

DOI claims $167,100 to implement the four assessment methods described in their 

Vegetative Assessment Survey. Claimed costs are $136,807 for contractor labor, travel, 

and supplies, and $30,26024 for agency25 labor26and travel. Contract labor costs are to 

prepare for and conduct field work, develop datasheets and maps, travel to the sites, 

compile and summarize field data, prepare a summary report, and project oversight for a 

total of 1,161 hours27. 

The NPFC finds that the sum of costs presented in DOI’s claim budget for contractors and 

agencies totals $167,067 (i.e., $136,807 for contractor labor, travel, and supplies, and 

$30,260 for agency28 labor and travel), an amount that is $33 less than the claimed amount 

of $167,100. Thus, $33 is not supported by claim documentation or OPA-compensable. 

 

18 The plan presented to the NPFC indicates that work would take place in 2012. As a result of delays 

caused, in part, by Enbridge’s decision to not continue to fund DOI’s vegetation assessment efforts, 

implementation will begin in early 2013. 

19 This includes (1) measurements of percent plant cover, stem height, and stem density; (2) assessment of 

wetlands functional value based on hydrologic conditions, surrounding land use, presence of invasive 

species, and habitat and soil alterations 20 Phone conversation with Stephanie Millsap on April 5, 2013 where she explained the importance of the 

FQA study. 21 Where baseline data does not exist DOI will use conditions within reference areas as surrogates to 

represent baseline conditions. 22 Habitat Equivalency Analysis is a means to determine the amount of compensatory restoration required 

to provide services that are equivalent to the interim loss of natural resource services following an injury. 23 Phone conversation with Stephanie Millsap on March 27, 2013 

24 DOI ($19,900) and NOAA ($10,360) 

25 DOI and NOAA 

26 One field expert (NOAA) and two field technicians (DOI) 

27 Contract staff includes two experts with a PhD in botany or ecology, three intermediate experts with an 

MS in botany or ecology, and one field technician with a bachelor’s degree. 

Claim Number: E10527-OI03 

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28 DOI and NOAA 
During adjudication of this claim, the NPFC reviewed the response that Enbridge provided 

to DOI, declining to pay the cost to implement DOI’s Vegetative Assessment Survey, 

specifically that implementation of the vegetation study as presented is not reasonable or 

necessary because sufficient data has already been collected 29. DOI addresses this 

concern in their claim to the NPFC. Specifically, DOI states that additional data is needed 

because: (1) Several of the study sites had response actions taken after the 2011 vegetation 

assessment was conducted and that may have resulted in additional impacts to vegetation. 

Additional sampling will allow Trustees to evaluate the extent of losses and recovery 

subsequent to new disturbances; (2) Many of the study sites had less than a year of 

recovery time after response actions were taken because the data was collected in 2011. 

Further recovery is likely to take longer than two years in areas where woody vegetation 

(including shrubs) was cut. Additional sampling will allow Trustees to develop recovery 

rate trajectories, rather than projections based on only a few months of recovery time; and 

(3) The Enbridge 2011 Shoreline and Floodplain Assessment Study relied on cited 

literature to draw comparisons between vegetation recovery from natural disturbances and 

vegetation resilience to impacts of response actions and concluded that surveyed habitat 

types are recovering in a manner consistent with trends in the literature. Trustees believe 

these conclusions are inappropriate because it is unclear that the cited literature reflects the 

conditions, habitat types and impacts that occurred in the assessment area; therefore, these 

values may not be relevant. Further, even if the cited literature were appropriate for the 

assessment area, the cited literature indicates that multiple growing seasons are required 

for habitat recovery. Based on the above, the Trustees believe that additional sampling 

will allow DOI to develop a more reliable estimate of the duration of injury and rate of 

recovery and the evaluate the extent of the damages. 

After reviewing the claimed activities and costs, the NPFC finds that: (1) DOI’s 

assessment approach to determine injuries to vegetative communities is capable of 

providing assessment information of use in determining the type and scale of restoration 

appropriate for this incident and are reliable and valid for the particular incident (therefore, 

meeting the standards for assessment procedures under 15 C.F.R. §990.27, and (2) it is not 

unreasonable to conduct additional assessment efforts in 2013 given continuing response 

actions that have the potential to cause additional natural resource injuries, and (3) 

claimed costs of $167,067 are reasonable and appropriate, given the scale of the incident, 

need for assessment, and work proposed. 33 U.S.C. §2706 (d)(1)(C), 33 C.F.R. §136.211. 

Revolving Trust Fund and Return of Unused Funds to the OSLTF 

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

sums recovered by trustees for natural resource damages must be retained by the trustees 

in a revolving trust account. The compensation for this claim will be placed in DOI’s 

trustee restoration account: the Natural Resource Damage Assessment and Restoration 

Fund (NRDAR Fund). All sums must be used to implement the approved Assessment 

Plan, as approved by this determination. All unused funds shall be returned to the OSLTF 

in a timely basis and no later than six months from the completion of the proposed work as 

 

Claim Number: E10527-OI03 

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29 Letter from Enbridge to DOI dated October 10, 2012 
described in this determination in accordance with 15 C.F.R. §990.65 and 33 U.S.C. § 

2706(f). 

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 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 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. 

In addition to annual reports DOI shall submit a final progress report within 120 days of 

the date that plan implementation is complete. This 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 and/or studies; 

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

including account balance and interest earned; 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; 

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. 

Claim Number: E10527-OI03 

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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 by DOI. 

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

annual progress and final cost reporting. These templates are provided on the compact 

disc included with this determination. 

Conclusion 

The NPFC has reviewed the claim submitted by DOI for costs to assess damages to 

vegetative communities resulting from the Enbridge oil spill in accordance with OPA (33 

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

§136). We have determined that $167,067 is compensable to fund activities in the plan. 

This offer constitutes full and final payment for costs associated with this damage 

assessment plan. 

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 

If we do not receive the signed original Acceptance/Release Form within 60 days of the 

date of this letter, the offer is void. If the settlement is accepted, your payment will be 

mailed within 30 days of receipt of the Release Form. Please provide account information 

and instruction for the transfer of funds to your trustee account when you submit the 

Release Form. 

If you have any questions regarding this determination, please feel free to contact me at 

703-872-6055. 

 Sincerely, 

 

 Fredy Hernandez 

 Claims Manager 

Natural Resource Damage Claims Division 

 

Claim Number: E10527-OI03 

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Claim Number: E10527-OI03 

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Encl: (1) Acceptance/Release Form 

(2) Compact Disc with standardize template and instructions to facilitate annual 

progress and final cost reporting 

 
U.S. Department 

of Homeland Security

United States 

Coast Guard

Director 

United States Coast Guard 

National Pollution Funds Center 

U.S. Coast Guard Stop 7100 

National Pollution Funds Center 

4200 Wilson Boulevard, Suite 1000 

Arlington, VA 20598-7100 

Phone: 703-872-6054 

E-mail: Fredy.e.Hernandez@uscg.mil 

Claim Number: E10527-OI03 Claimant Name: Department of the Interior 

 

 

 

On February 12, 2012, DOI presented a claim to the Oil Spill Liability Trust Fund (OSLTF or 

the Fund) in the total amount of $167,100 for upfront costs to implement their vegetation 

assessment survey plan to assess potential damages to vegetation communities resulting from the 

discharge of oil on or about July 26, 2010, from a pipeline owned by Enbridge Energy (the 

Enbridge oil spill). 

DOI accepts the settlement offer of $167,067 as full compensation for the cost to assess damages 

to vegetation communities as described in the April 16, 2013 determination (E10527-OI03). 

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 April 16, 2013 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 that may be liable 

for the loss. 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 

April 16, 2013 determination. 

DOI acknowledges that the United States anticipates the pursuit of legal actions associated with 

the Enbridge incident but warrants that no settlement will be made by any person on behalf of 

DOI with any other party for costs that are the subject of the claim against the OSLTF and 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. 

Claim Number: E10527-OI03 

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Claim Number: E10527-OI03 

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FOR THE DEPARTMENT OF THE INTERIOR 

_________________________________________ _______________________ 

 Thomas Melius Date 

 Regional Director, USFWS Midwest Region