The Intersection of Emergency Spill Response,Natural Resource Restoration,

and Endangered Species Protectionat Midwest Spill Sites

Facilitated by:Jim Mitchell, USEPA Region 5Mike Coffey, USFWS Region 3

Including case examples from:Lockport, Illinois Pipeline SpillMt. Erie, Illinois Pipeline Spill

Guttenberg, Iowa Trainwreck & Spill

Background• Lockport, IL pipeline spill

Dec. 14, 2010500 barrels crude oilDitch to wetlands3.5 acres of oiled marshTrenches, vac trucks, soil removalHine’s emerald dragonfly

Background• Mt. Erie, IL pipeline spill

Aug. 10, 20085,000 barrels crude oilSlope to bottomland forest7.1 acres of oiled sloughsVac trucks, soil removalIndiana bat

Background• Guttenberg, IA spill

Jul. 9, 20083,800 gallons diesel fuelRailroad grade to riverAbsorbent booms & padsMussel bed

Emergency Spill Response(OPA & CWA)

Migratory BirdTreat Act (MBTA)

Natural Resource Damage Assessment and Restoration

(NRDAR)

Endangered Species Act Consultation (ESA)

Protection of downstream resources = Resources at Risk (RAR)

Rescue of oiled wildlifeRehab of oiled wildlife

Release of clean wildlife

Not a PRFA activityDirected by TrusteesNot Incident Commanders

Minimize response impacts =Resource Advisors (RE-AD)

Pollution Response Fund AgreementsPRFA

Shoreline Clean Up and Assessment Teams (SCAT)

The remaining parts of this presentation will be aboutthe interplay between emergency spill response, ESAand NRDAR.

http://restoration.doi.gov/Default.aspx

http://www.fws.gov/endangered/

U.S. Fish and Wildlife ServiceRegion 3

Ecological Services:Endangered Species Program

Environmental Contaminants Program

Incident Command System

Endangered Species Act (ESA)• 16 U.S.C. 1531 et seq.• Section 9 prohibitions and use of term “take”• Section 7 Federal agency coordination• Section 10 non-Federal agency coordination• Section 7 regulations are in 50 C.F.R. 402• Includes provisions for emergency consultations• In 2001, Memorandum of Agreement signed for

emergency coordination on spills sites and for contingency planning

http://www.epa.gov/Region7/cleanup/superfund/pdf/ricpannex_5.pdf

Endangered Species Act (ESA)Section 7 Process for the response not for the oiling

– Analysis to determine whether the response activities will cause take of federally listed species

– Develop measures to avoid take during the response– If take will still occur, develop measures to minimize the

number of organisms affected– After the emergency response, action agency completes

a biological assessment with estimate of numbers– USFWS will then reply with a biological opinion that

includes an incidental take statement which documents the performance of the measures used to minimize take

– Lessons learned and incorporate avoidance measures into Regional, Area, and SubArea contingency plans

Endangered Species Act (ESA)• federally listed Critical Habitat:

– Like for species, pieces of the landscape are afforded legal protection

– Primary constituent elements (PCE) are described– Analysis to determine whether the PCEs are

adversely modified– Incorporate into the Section 7 process if adverse

modification is likely to occur

Endangered Species Act (ESA)• Section 10 non-Federal agency process

– Analysis to determine whether the response activities will cause take

– Develop measures to avoid take during the action– If take will still occur, develop measures to minimize

the number of organisms affected– Complete a Habitat Conservation Plan, NEPA, and

then a permit is issued– No provisions for emergency consultation– Federal agency discretion over State or RP led

responses

Triggers for Concern• Extirpation from part of the species range• Large numbers of organisms loss by a single action• Other large scale naturally occurring problems or human

activities that affect the whole species population• Use of terms “Jeopardy” or Extinction

Primer on Populations• Federally listed endangered species are on the

edge of extinction, reduction in scale and fragmentation of species range

• Some species hyper-vulnerable to spills or other perturbations because they exist in only one or several places and their numbers are now extremely low

• Once too the population size is too low (functionally extinct), there is the option to bring in for captive breeding at zoos and aquariums

Hine’s emeralddragonfly

Genetics:InterbreedingDrift

Disease:White nose syndrome

Indiana bat

Primer on Species Biology• Species range, use county distribution• Suitable habitat present, occupied or not• Pathway from the action to the organisms• Is the magnitude of the stress along the pathway

sufficient to rise above the thresholds of harm or harassment

• Life history traits help mitigate the stressor– Breeding season: finding nests, mates– Reproduction: when, where, how many– Winter season: migration, hibernation– Foraging habits– Habitat use

Indiana Bat Summer Habitat

Maternity coloniesmay be under loose bark or in snag cavities

up to end of August

Protectdownstreamresources bypreventing flowinto species habitats (and the river)

Minimize summer use by adultsforaging over oiled habitats

Lockport Spill SiteHine’s emerald dragonfly

white: pumped none foundGreen: pumped foundblue: not pumped yet

Quick Summary of ResponsibilitiesUSEPANotify Trustees of spill incident including USFWS & NOAA for listed species.

Answer question whether listed species or critical habitat affected by response ops.

Inform response of measures to minimize take.

FOSC signs initiation package & requests consultation

Lessons learned used to revise response plans.

USFWSRespond or otherwise make staff available to spill incident.

Answer question whether listed species or critical habitat affected by response ops.

Develop measures to minimize take.

Biologist replies with consultation document and incidental take statement

Lessons learned used to revise response plans.

http://www.fws.gov/contaminants/FWS_OSCP_05/fwscontingencyappendices/O-EndangeredSpecies/MOATrainingManualVersion02.pdf

Natural Resource Damages• 42 U.S.C. 9601 et seq. for CERCLA• 33 U.S.C. 2791 et seq. for OPA• 33 U.S.C. 1251 et seq. for CWA• authorizes recovery of damages for injuries

• 43 C.F.R. 11 for CERCLA• 15 C.F.R. 990 for OPA• describes the assessment and restoration

processes

Natural Resource Damages - Goals• Goal: Make the public whole• Objective #1: Rehabilitation the natural resources

affected by exposure to the oil or hazardous substance and from impacts related to the response or remediation back to the condition that existed prior to the incident = primary restoration

• Objective #2: Replace the interim or permanent loss of human uses and ecological services = compensatory restoration

• Objective #3: Recover past assessment costs and future administrative costs

The Natural Resource Damage Assessment (NRDA) is directed by the Natural Resource Trustees not by the FOSC, but there is the need to coordinate safety and access. The Trustees have the option to collect field data for ephemeral conditions in advance of an assessment plan. The response data collection plans may provide the needed data and information on the ephemeral conditions and the vice versa may occur.

Natural Resource Damages - Terms• Trustees: Federal agencies, States, Tribes• Baseline: Pre-incident condition• Natural resources: Water (sediment), Geologic (soil),

Biologic• Injury: health affects, mortality• Damages: value of injury, or cost to restore• Restoration: rehabilitation, replacement, habitat

enhancement, population augmentation• Human use of natural resources• Ecological services flow from the natural resources• Valuation: willingness to pay, monetary value• In kind: similar natural resource

% S

ervi

ces

Time

Baseline

Event

Graphical Representation

% S

ervi

ces

Time

Baseline

EventNatural Recovery

Graphical Representation

% S

ervi

ces

Time

Baseline

Event

Primary Restoration

Graphical Representation

% S

ervi

ces

Time

Baseline

Event

CompensatoryRestoration

Graphical Representation

Lost Ecological Servicesand Human Uses

% S

ervi

ces

Time

Baseline

EventNatural Recovery

Lost Services

CompensatoryRestoration

PrimaryRestoration

Graphical Representation

Natural Resource Damage Assessment• PreAssessment Screen• Assessment

– Injury determination– Injury quantification (Habitat Equivalency Analysis-HEA)– Damage quantification

• Report of Assessment or• Damage Assessment and Restoration Plan

Habitat Equivalency Analysis(HEA)

http://www.nova.edu/ocean/visual_hea/

Natural Resource Damage Settlement• Cooperative assessments and/or negotiations using

results of damage assessments or evaluations• Interesting use of Admin Order for Lockport spill• Consent decree for natural resource damages

In kind action by the Responsible PartyCash equivalent for action by the Trustees

• Department of the Interior Revolving Fund• Prepare a Restoration Plan and NEPA• Implement the Plan• Monitor performance of restoration actions• Certify as complete

Mt. Erie, ILRestoration

Not actual site photosExamples of proposed activities

Guttenberg, IARestoration

Not actual site photosExamples of proposed activities

Lockport, ILRestoration Challenges

& Discussions

QuestionsThank you for your participation in the discussions

Jim Mitchell Mike CoffeyHealth Physicist/On-Scene Coordinator Contaminants BiologistUSEPA Region 5 USFWS Region 3Emergency Response Branch Greater Illinois and Iowa Ecological77 W. Jackson Blvd Services Field OfficeChicago IL 60604 1511 47th AvenueOffice (312) 353-9537 Moline, IL 61265

Office (309) 757-5800 x206