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Superfund

Natural Resource Damages: Trustees

Notification and coordination with natural resource trustees

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Introduction

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Oil Pollution Act (OPA) authorize the United States, States, and Indian Tribes to act on behalf of the public as Natural Resource Trustees for natural resources under their respective trusteeship [CERCLA §107(f)(1); OPA §1006(c)]. OPA also authorizes foreign governments to act as Trustees [OPA §1006(b)(5)].

Trustees often have information and technical expertise about the biological effects of hazardous substances, as well as the location of sensitive species and habitats that can assist EPA in characterizing the nature and extent of site-related contamination and impacts. Coordination at the investigation and planning stages provides the Trustees early access to information they need to assess injury to natural resources. This assists Trustees in making early decisions about whether restoration is needed in light of the response actions, and should generally result in more efficient settlement negotiations and an opportunity to address all liabilities at the site simultaneously (OSWER Directive 9200-4.22A; CERCLA Coordination with Natural Resource Trustees, 1997 (PDF)).


Federal Natural Resource Trustees

CERCLA §107(f)(2)(A) requires the President to designate in the National Contingency Plan (NCP) Federal officials who are to act on behalf of the public as Trustees for natural resources under Federal trusteeship. Section 300.600 of the NCP designates the Secretaries of the following Cabinet Departments to act as Trustees for the natural resources, subject to their respective management or control:

  • Department of Agriculture (USDA)

    Examples of resources under the trusteeship of the Secretary of the Department of Agriculture (USDA) include:

    • Federal rangeland
    • Federally-managed fisheries
    • Federally-owned or managed farmland
    • Land enrolled in the Wetlands Reserve Program
    • National forest land
  • Department of Commerce (DOC)

    Examples of resources under the trusteeship of the Secretary of the Department of Commerce (DOC) include:

    • Coastal environments, including salt marshes, tidal flats, estuaries, or other tidal wetlands
    • Designated Estuarine Research Reserves or Marine Sanctuaries
    • Endangered marine species
    • Marine mammals
    • Rivers or tributaries to rivers which historically support or presently support anadromous fish (fish that spend a portion of their lifetime in both fresh and salt water; e.g., salmon)

    The DOC Secretary delegated Trustee responsibility to the Administrator of the National Oceanic and Atmospheric Administration (NOAA). The following offices or groups within NOAA have responsibilities which include the protection and management of natural resources: National Marine Fisheries Service; Office of Ocean and Coastal Resource Management; Office of Oceanography and Marine Services; and the General Counsel. For cases involving resources in coastal waters and anadromous fish streams, DOC acts as a co-Trustee with the Department of the Interior.

  • Department of Defense (DOD)

    The Secretary of the Department of Defense (DOD) has trusteeship over the Natural Resources on all lands owned by DOD or the Army, Navy, Air Force, and Defense Logistics Agency. These lands include military bases and training facilities, research and development facilities, and munitions plants.

  • Department of Energy (DOE)

    The Secretary of the Department of Energy (DOE) has trusteeship over natural resources under its jurisdiction, custody, or control. DOE's land-holdings include national research and development laboratories, facilities, and offices.

  • Department of the Interior (DOI)

    Examples of resources under the trusteeship of the Secretary of the Department of the Interior (DOI) include:

    • Certain anadromous fish
    • Certain endangered species
    • Certain marine mammals
    • Federally-owned minerals
    • Migratory birds
    • National Wildlife Refuges and Fish Hatcheries
    • National Parks and Monuments
    • Tribal resources, in cases where the U.S. acts on behalf of the Indian Tribe

    The following offices within DOI are responsible for the management and protection of the resources listed above: Bureau of Indian Affairs; Bureau of Land Management; Bureau of Mines; Bureau of Reclamation; Fish & Wildlife Service; Minerals Management Service; National Park Service; and U.S. Geological Survey.

Specific information about each of the Secretary's responsibilities can be found in the NCP at 40 CFR §300.600 or in the links supplied for each Cabinet Department above.

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State Natural Resource Trustees

State Trustees shall act on behalf of the public as Trustees for the natural resources within a State's boundaries or for resources belonging to, controlled by, or appertaining to the State [40 CFR §300.605]. State official(s) are designated by the Governor of each State to act as Trustee for the State's Trust Resources, which include surface water and ground water. The designated official is normally the head of an agency responsible for environmental protection or fish and wildlife management, although the Governor can delegate responsibility to any entity [OPA §1006(b)(3)]. States may designate more than one Trustee agency.

State Trustees act on behalf of the public for natural resources, including ground and surface water, and the resources' supporting ecosystems, that are:

  • Within the boundary of the State; or
  • Belonging to, managed by, controlled by, or appertaining to the State.

Examples of resources under the trusteeship of individual State officials include:

  • State forest lands;
  • State-owned minerals;
  • State parks and monuments;
  • State rare, threatened, and endangered species; and
  • State wildlife refuges and fish hatcheries.

The office and/or group responsible for each of these resources varies between States.

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Tribal Natural Resource Trustees

Tribal Chairmen (or heads of the governing bodies of Indian Tribes), or persons designated by Tribal officials, shall act as Tribal Trustees for natural resources belonging to, managed by, controlled by, or appertaining to the Indian Tribe, or held in trust for the benefit of such Indian Tribe, or belonging to a member of an Indian Tribe, if such resources are subject to a trust restriction on alienation [40 CFR §300.610]. The Secretary of the Interior may act as Trustee on behalf of a Tribe at the Tribe's request.

Indian Tribe Trustees act on behalf of the Indian Tribe for natural resources, including their supporting ecosystems, that are:

  • Belonging to, managed by, controlled by, or appertaining to such Tribe;
  • Held in trust for the benefit of the Tribe; or
  • Belonging to a member of the Tribe, if such resources are subject to a trust restriction on alienation.

Examples of resources under the trusteeship of Tribal groups include:

  • Tribal-owned minerals;
  • Ground and surface water resources on Tribal lands; and
  • Any other natural resources found on Tribal land.

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Other Natural Resource Trustees

Under OPA, foreign officials can also act as Natural Resource Trustees. The head of a foreign nation must pick the official to act as Trustee [OPA §1006(b)]. The foreign Trustee can act on behalf of the foreign government only for natural resources "belonging to, managed by, controlled by, or appertaining to such foreign government" [OPA §§1006(a)(4), (b)(5)].

There are a number of conditions that must be fulfilled before a foreign claimant can bring an action in a Federal court under OPA. These conditions essentially require that the origin of the spill had a strong connection with the U.S. The foreign claimant must demonstrate that it has not received compensation for removal costs or NRD and, except for Trans-Alaska Pipeline Oil spilled in Canada, that recovery under OPA is provided for in a treaty or executive agreement or by reciprocal right [OPA §1007].

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