Louisiana Administrative Code › Title 43 - NATURAL RESOURCES › Part XXIX - Oil Spill Prevention and Response › Chapter 1 - Natural Resource Damage Assessment › Subchapter C - Natural Resource Damage Assessments › Section XXIX-121 - Assessment Procedures and Protocols for Determining, Quantifying, and Valuing Natural Resource Injury and Loss of Services

Current through Register Vol. 50, No. 6, June 20, 2024
A. The coordinator, in consultation with the
				  trustees, shall determine within 60 days of the written notification by the
				  on-scene coordinator that the response is complete whether information gathered
				  during the field investigation(s) indicates that a natural resource damage
				  assessment is warranted.
B. The
				  state natural resource trustees may use any appropriate and accepted assessment
				  procedures and methods as long as they consider the unique characteristics and
				  the location of the natural resources affected by the unauthorized discharge or
				  substantial threat of unauthorized discharge of oil, including adverse impacts
				  caused by response activities, if any. The methods shall be designed to ensure
				  that the cost of any restoration, rehabilitation, replacement, or acquisition
				  project shall not be disproportionate to the value of the natural resource
				  before the injury.
C. Any
				  assessment generated by the state natural resource trustees must be reasonable
				  and the costs of conducting the assessment must have a rational and direct
				  connection to the value of and/or level of services provided by the injured
				  resources prior to the unauthorized discharge of oil.
D. In addition, the use of a more complex or
				  expensive method must be reasonably related to the expected increase in the
				  quantity and/or quality of relevant information provided by the more complex
				  procedure.
E. The procedures must
				  be capable of providing information of use in determining the type and scale of
				  restoration appropriate for the injury.
F. The state natural resource trustees may
				  petition the coordinator for a longer period of time to make the determination
				  by showing that the probability of impact from the unauthorized discharge on
				  the affected natural resources cannot be adequately estimated in 60
				  days.
G. Only after a field
				  investigation which may include sampling and data collection, the state natural
				  resource trustees shall determine the injury to natural resources as a result
				  of an unauthorized discharge of oil. The state natural resource trustees shall
				  utilize methods that provide appropriate, valid, and reliable measurements of
				  resource injuries associated with the unauthorized discharge of oil. In
				  performing an assessment, the state natural resource trustees shall, to the
				  extent possible, use generally accepted scientific and technical standards and
				  methodologies that have been demonstrated to produce valid and reliable
				  assessment results. Injury determination, restoration planning, and
				  quantification of restoration costs must be based on a site-specific assessment
				  of the unique characteristics and the location of the natural
				  resources.
H. The range of
				  assessment options includes:
1. Comprehensive
				  Assessment Procedures. A method including sampling, modeling, and other
				  appropriate scientific procedures to make a reasonable and rational
				  determination of injury and cost-effective restoration alternatives to natural
				  resources resulting from an unauthorized discharge of oil and will be used when
				  the coordinator, in consultation with the state natural resource trustees,
				  determines that an expedited or negotiated assessment procedure is not
				  appropriate.
2. Expedited
				  assessment procedures may be used:
a. when
				  the following circumstances exist:
i. the
				  unauthorized discharge of oil has caused limited observable mortality;
				  and
ii. the extent of injury can be
				  determined within 12 months following the completion of response actions;
				  and
iii. a restoration plan can be
				  initiated within 12 months of completion of the response actions; or
b. when the quantity of oil
				  discharged is less than 1,000 gallons; or
c. when the coordinator, in consultation with
				  the state natural resource trustees, determines that the expedited damage
				  assessment method is the most cost-effective, technically feasible method for
				  achieving timely restoration of injured natural resources.
3. Negotiated Assessment Procedures. Any
				  assessment method agreed to by the state trustees and the responsible
				  person.
4. When appropriate, the
				  coordinator and the state natural resource trustees may, at their sole
				  discretion, utilize the schedule below as an expedited assessment procedure to
				  assess natural resource injuries associated with an unauthorized discharge of
				  crude oil, or other oil that in the sole discretion of the coordinator and
				  state natural resource trustees interacts with the environment in a manner
				  similar to crude oil, in the Louisiana coastal area.
Injury Amount (DSAYS)
Habitat(s)
See RRP PEIS for
definitions of habitats
Oiling Conditions and/or Response
								Activities
Coastal Herbaceous Wetlands
15.08
Saline or Brackish marsh or Fresh marsh
Sediments are or have been saturated with oil; or
								excavation or other severe response actions have occurred.
1.81
Saline or Brackish marsh
								(Spartina-dominated)
Moderate to heavy oiling on a large portion of the
								plants; or heavy oiling in/on the sediments; or significant response activities
								have occurred.
Saline or Brackish marsh
								(Mangrove-dominated)
Moderate to heavy oiling on a medium to large
								portion of the plants; or heavy oiling in/on the sediments; or moderate
								response activities have occurred.
1.02
Fresh marsh (Phragmites-dominated)
Light to heavy oiling on a medium to large portion
								of the plants; or heavy oiling in/on the sediments; or the Phragmites is cut as
								a response measure.
0.75
Saline or Brackish marsh (Spartina-dominated) or
								Fresh marsh (excluding Phragmites-dominated)
Moderate oiling on a medium portion of the plants
								or light oiling on a medium portion of the plants and light to moderate oiling
								in/on the sediments; or moderate oiling in/on the sediments; or moderate
								response activities have occurred.
0.39
Saline or Brackish marsh (Spartina-dominated
								marsh)
Light to heavy oiling on the plants while plants
								are in senescence.
Mudflats
Light to heavy oiling on the mudflat.
0.13
Saline or Brackish marsh
								(Spartina-dominated)
Light oiling on the plants.
Fresh marsh (Phragmites-dominated)
Light to heavy oiling on a small portion of the
								plants; or the Phragmites is cut as a response measure while in
								senescence.
0.01
Saline or Brackish marsh or Fresh marsh
Presence of light sheen on water adjacent to or in
								the marsh.
Coastal Forested Wetlands
28.06
Cypress Forest
Sediments are or have been saturated with oil; or
								excavation or other severe response actions have occurred.
27.71
Bottomland Hardwood Forest
Sediments are or have been saturated with oil; or
								the majority of the tree canopy is oiled; or excavation or other severe
								response actions have occurred.
2.42
Cypress Forest or Bottomland Hardwood Forest
Light to heavy oiling on the bark of trees.
a. Trustees
				  may utilize the schedule as a basis for negotiated settlements in which the
				  responsible party pays the trustees a certain amount to resolve natural
				  resource damage claims. Trustees may utilize these funds to:
i. purchase restoration credits that are
				  consistent with the requirements of OPA and OSPRA from restoration banks
				  certified and established in accordance with LAC 43:XXXI.Chapter 1;
				  or
ii. if no appropriate
				  restoration bank credits become available within a reasonable time frame, fund
				  existing restoration strategies or plans.
b. The coordinator shall give public notice
				  of any updates to this schedule in accordance with §135. A of this
				  Chapter.