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Natural Resource Damages is an environmental liability issue of rapidly growing significance to industrial firms nationwide. Natural resource damage claims may be filed against industrial parties by federal, state, local, and tribal officials acting as public trustees of natural resources ("trustees") to recover damages for the injury, destruction, or loss of natural resources (land, fish, wildlife, biota, air, water, groundwater, drinking water supplies, etc.). The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or "Superfund") and its Amendments, the Clean Water Act (CWA), and the Oil Pollution Act of 1990 (OPA) all contain liability provisions for natural resource damages. In addition, more than 40 states have laws that relate to the recovery of natural resource damages.
Companies that are or have been owners or operators of vessels or facilities disposing or transporting hazardous waste or whose operations have, or may in the future, result in a release of oil, should be concerned about potential liability for natural resource damages. Businesses are liable for NRD in addition to cleanup costs. Trustees claim damages that include the costs of restoring the resource, any interim or long-term diminution in the value/use of the resource, as well as the costs involved in trustee assessment of damages. When the NRD provisions were first enacted, allegations of liability were typically argued and resolved via litigation between government and industrial parties only. More recently, at many sites (notably those that do not involve large sites with highly complicated and long-standing fact patterns of contamination), there have been opportunities for cooperative or coordinated natural resource damage assessments and linkages to ongoing site remediation and risk assessment investigations. Restoration opportunities may also more readily identifiable and be better linked to sustainability and cooperative conservation initiatives. After all these years, the NRDAR practice field is still evolving in many respects and some key technical issues, especially the linkages between natural resource injuries and the significance of related effects on resources and the services provided by resources to the public, are still subject to spirited debate among the parties.
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