[Federal Register Volume 75, Number 190 (Friday, October 1, 2010)]
[Notices]
[Pages 60800-60802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24706]


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DEPARTMENT OF THE INTERIOR

[FWS-R9-FHC-2010-N212; 94400-1130-0000]


Discharge of Oil From Deepwater Horizon/Macondo Well, Gulf of 
Mexico; Intent To Conduct Restoration Planning

ACTION: Notice of intent.

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[[Page 60801]]

SUMMARY: Under the Oil Pollution Act (OPA), Federal and State trustees 
for natural resources are authorized to assess natural resource 
injuries resulting from an oil discharge or the substantial threat of 
discharge, as well as response activities, and develop and implement a 
plan for restoration. This notice announces the intent of Federal and 
State trustees to conduct restoration planning regarding the discharge 
of oil from the Deepwater Horizon Mobile Offshore Drilling Unit and the 
Subsea Macondo Well into the Gulf of Mexico, an incident that occurred 
on or about April 20, 2010.

FOR FURTHER INFORMATION CONTACT: Cynthia Dohner, Regional Director, 
Southeastern Region, U.S. Fish and Wildlife Service, (404) 679-4000.

SUPPLEMENTARY INFORMATION: On or about April 20, 2010, the mobile 
offshore drilling unit Deepwater Horizon experienced a significant 
explosion, fire, and subsequent sinking in the Gulf of Mexico, 
resulting in discharges of oil and other substances from the rig and 
from the wellhead on the seabed into the Gulf of Mexico (referred to as 
the ``Deepwater Horizon Incident or Incidents''). These discharges are 
estimated to have been in excess of thousands of barrels of oil per day 
and continue, along with associated removal activities, to adversely 
affect and threaten natural resources within the jurisdictions of the 
United States and the States of Louisiana, Mississippi, Alabama, 
Florida, and Texas.
    Pursuant to section 1006 of the Oil Pollution Act (``OPA''), 33 
U.S.C. 2701 et seq., Federal and State trustees for natural resources 
are authorized to (1) assess natural resource injuries resulting from a 
discharge of oil or the substantial threat of a discharge and response 
activities, and (2) develop and implement a plan for restoration of 
such injured resources. The Federal trustees are designated pursuant to 
the National Contingency Plan, 40 CFR 300.600 and Executive Order 
12777. State trustees are designated by the Governors of each State 
pursuant to the National Contingency Plan, 40 CFR 300.605.
    The following agencies are designated natural resources trustees 
under OPA and are currently acting as trustees for this Incident(s): 
The U.S. Department of the Interior (``DOI''), as represented by the 
National Park Service, U.S. Fish and Wildlife Service, Bureau of Indian 
Affairs, and Bureau of Land Management; the National Oceanic and 
Atmospheric Administration (``NOAA''), on behalf of the U.S. Department 
of Commerce; the U.S. Department of Defense (``DOD''); the State of 
Louisiana's Coastal Protection and Restoration Authority, Oil Spill 
Coordinator's Office, Department of Environmental Quality, Department 
of Wildlife and Fisheries and Department of Natural Resources; the 
State of Mississippi's Department of Environmental Quality; the State 
of Alabama's Department of Conservation and Natural Resources and 
Geological Survey of Alabama; the State of Florida's Department of 
Environmental Protection; and the State of Texas' Parks and Wildlife 
Department, General Land Office and Commission on Environmental Quality 
(collectively, the ``Trustees''). In addition to acting as trustees for 
this Incident(s) under OPA, the States of Louisiana, Mississippi, 
Alabama, Florida, and Texas are also acting pursuant to their 
applicable State laws and authorities, including the Louisiana Oil 
Spill Prevention and Response Act of 1991, La. R.S. 30:2451 et seq., 
and accompanying regulations, La. Admin. Code 43:101 et seq.; the Texas 
Oil Spill Prevention and Response Act, Tex. Nat. Res. Code, Chapter 40, 
Section 376.011 et seq., Fla. Statutes, and Section 403.161, Fla. 
Statutes; the Mississippi Air and Water Pollution Control Law, Miss. 
Code Ann. Sec. Sec.  49-17-1 through 49-17-43; and Alabama Code 
Sec. Sec.  9-2-1 et seq. and 9-4-1 et seq.
    The Responsible Parties (``RPs'') identified for this Incident(s) 
thus far are BP Exploration and Production, Inc. (``BP''); Transocean 
Holdings Inc. (``Transocean''); Triton Asset Leasing GmbH (``Triton''); 
Transocean Offshore Deepwater Drilling Inc. (``Transocean Offshore''); 
Transocean Deepwater Inc. (``Transocean Deepwater''); Anadarko 
Petroleum (``Anadarko''); Anadarko E&P Company LP (``Anadarko E&P''); 
and MOEX Offshore 2007 LLC (``MOEX'').
    Pursuant to 15 CFR 990.14(c), concurrent with the publication of 
this notice, the Trustees are inviting the RPs identified above to 
participate in a Natural Resource Damage Assessment (``NRDA''). The 
Trustees have coordinated with BP representatives on activities 
undertaken to date as part of the NRDA process.
    The Trustees began the Preassessment Phase of the NRDA in 
accordance with 15 CFR 990.40, to determine if they had jurisdiction to 
pursue restoration under OPA, and, if so, whether it was appropriate to 
do so. During the Preassessment Phase, the Trustees collected and 
analyzed and are continuing to collect and analyze the following: (1) 
Data reasonably expected to be necessary to make a determination of 
jurisdiction or a determination to conduct restoration planning, (2) 
ephemeral data, and (3) information needed to design or implement 
anticipated emergency restoration and assessment activities as part of 
the Restoration Planning Phase.
    Under the NRDA regulations applicable to OPA, 15 CFR part 990 
(``NRDA regulations''), the Trustees prepare and issue a Notice of 
Intent to Conduct Restoration Planning (``Notice'') if they determine 
conditions that confirm the jurisdiction of the Trustees and the 
appropriateness of pursuing restoration of natural resources have been 
met.
    Pursuant to 15 CFR 990.44, this Notice announces that the Trustees 
have determined to proceed with restoration planning to fully evaluate, 
assess, quantify, and develop plans for restoring, replacing, or 
acquiring the equivalent of natural resources injured and losses 
resulting from the Deepwater Horizon Incident or Incidents. The 
restoration planning process will include collection of information 
that the Trustees determine is appropriate for identifying and 
quantifying the injuries and losses of natural resources, including 
resource services, and to determine the need for, and type and scale 
of, restoration actions.

Determination of Jurisdiction

    The Trustees have made the following findings pursuant to 15 CFR 
990.41:
    1. The explosion on the mobile offshore drilling unit Deepwater 
Horizon on April 20, 2010, and other associated occurrences resulted in 
discharges of oil into and upon navigable waters of the United States, 
including the Gulf of Mexico, as well as adjoining shorelines, all of 
which constitute an ``Incident'' or ``Incidents'' within the meaning of 
15 CFR 990.30.
    2. The discharges are not permitted pursuant to Federal, State, or 
local law; are not from a public vessel; and are not from an onshore 
facility subject to the Trans-Alaska Pipeline Authority Act, 43 U.S.C. 
1651 et seq.
    3. Natural resources under the trusteeship of the Trustees have 
been and continue to be injured and/or threatened as a result of 
discharged oil and associated removal efforts. The discharged oil is 
harmful to natural resources exposed to the oil, including aquatic 
organisms, birds, wildlife, vegetation, and habitats. Discharged oil 
and the response activities to address the discharges of oil have 
resulted in adverse effects on natural resources in and around the Gulf 
of Mexico and along its adjoining shorelines, and impaired services 
that those resources provide. The full extent of potential injuries is 
currently unknown, and may

[[Page 60802]]

not be known for many years; however, current natural resources and 
resource services that have been impacted due to the discharged oil 
include but are not limited to the following (as of August 19, 2010):
    <bullet> Over 950 miles of shoreline habitats, including salt 
marshes, sandy beaches, and mangroves.
    <bullet> A variety of wildlife, including birds, sea turtles, and 
marine mammals. As of June 29, 2010:
    [cir] Over 1,900 oiled birds captured and over 1,850 visibly oiled 
dead birds collected.
    [cir] Over 400 oiled sea turtles captured and 17 visibly oiled dead 
sea turtles collected.
    [cir] 5 visibly oiled dead marine mammals collected.
    <bullet> Lost human use opportunities associated with various 
natural resources in the Gulf region, including fishing, swimming, 
beach-going and viewing of birds and wildlife.
    <bullet> Waters of the Gulf of Mexico and adjoining coastal States.
    <bullet> Various other biota, including benthic communities and 
fish.
    <bullet> Water column habitat.
    Accordingly, the Trustees have determined they have jurisdiction to 
pursue restoration under the OPA.

Determination To Conduct Restoration Planning

    Pursuant to 15 CFR 990.42(a), the Trustees determined that:
    1. Observations and data collected pursuant to 15 CFR 990.43 
demonstrate that injuries to natural resources and the services they 
provide have resulted from the Incident or Incidents; however, the 
nature and extent of such injuries have not been fully determined at 
this time. The Trustees have identified numerous categories of impacted 
and potentially impacted resources, including fish, shellfish, marine 
mammals, turtles, birds, and other sensitive resources, as well as 
their habitats, such as wetlands, marshes, beaches, mudflats, bottom 
sediments, corals, and the water column, as well as effects to human 
use resulting from the impacts on the resources. The Trustees have been 
conducting, and continue to conduct, activities to evaluate injuries 
and potential injuries within these categories. More information on 
these resource categories will be available in the Administrative 
Record (``AR,'' as defined below), including assessment work plans 
developed jointly by the Trustees and BP and information gathered 
during the preassessment. The full nature and extent of injuries will 
be determined during the injury assessment phase of restoration 
planning.
    2. Response actions employed for this spill include in situ 
burning, dispersant applications, containment and skimming of oil, and 
removal operations. These response actions have not addressed and are 
not expected to address all injuries resulting from the discharges of 
oil. Although response actions were initiated soon after the explosion 
and continue to date, they have been unable to prevent injuries to many 
natural resources, and the size, nature, and location of the discharges 
have prevented recovery of most of the oil. In addition, some of these 
response actions have caused or are likely to cause injuries to natural 
resources and the services they provide, including destruction of 
sensitive marshes, beaches, and other habitats, and impacts to human 
uses of resources. While injured natural resources may eventually 
recover naturally to the condition they would have been in had the 
discharges not occurred, interim losses have occurred, or are likely to 
occur in the future, and these will continue until baseline conditions 
are achieved. In addition, there have been and will continue to be 
losses of and diminution of human uses of the resources resulting from 
the impacts to the natural resources and from the response actions 
themselves.
    3. Feasible restoration actions exist to address the natural 
resource injuries and losses, including lost human uses, resulting from 
the discharges of oil. Assessment procedures are available to scale the 
appropriate amount of restoration required to offset these ecological 
and human use service losses. During the restoration planning phase, 
the Trustees will evaluate potential projects, determine the scale of 
restoration actions needed to make the environment and the public 
whole, and release a draft Restoration Plan for public review and 
comment.
    Based upon these determinations, the Trustees intend to proceed 
with restoration planning for the Incident or Incidents.

Administrative Record

    The U.S. Department of the Interior, acting on behalf of the 
Trustees, is in the process of establishing and opening an 
Administrative Record (``AR'') in compliance with 15 CFR 990.45 and 
applicable State authorities. The AR will be publicly accessible and 
include documents considered by the Trustees during the preassessment, 
assessment, and restoration planning phases of the NRDA performed in 
connection with the Incident or Incidents. The AR will be augmented 
with additional information over the course of the NRDA process. The 
availability of the AR will be addressed in one or more future notices 
and announcements. State-specific ARs may also be kept and will be made 
available by State trustees in their normal course of business.

Opportunity To Comment

    The Trustees invite the public to participate in restoration 
planning for this Incident or Incidents in accordance with 15 CFR 
990.14(d) and State authorities. The Trustees will be providing 
substantial opportunities for public involvement in the restoration 
planning for this Incident or Incidents. The opportunities for public 
involvement will be addressed in future notices and announcements.

    Dated: September 2, 2010.
Cindy Dohner,
DOI Authorized Official, U.S. Department of the Interior.
[FR Doc. 2010-24706 Filed 9-29-10; 11:15 am]
BILLING CODE 4310-55-P