§ 2706. — Natural resources.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 33USC2706]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 40--OIL POLLUTION
SUBCHAPTER I--OIL POLLUTION LIABILITY AND COMPENSATION
Sec. 2706. Natural resources
(a) Liability
In the case of natural resource damages under section 2702(b)(2)(A)
of this title, liability shall be--
(1) to the United States Government for natural resources
belonging to, managed by, controlled by, or appertaining to the
United States;
(2) to any State for natural resources belonging to, managed by,
controlled by, or appertaining to such State or political
subdivision thereof;
(3) to any Indian tribe for natural resources belonging to,
managed by, controlled by, or appertaining to such Indian tribe; and
(4) in any case in which section 2707 of this title applies, to
the government of a foreign country for natural resources belonging
to, managed by, controlled by, or appertaining to such country.
(b) Designation of trustees
(1) In general
The President, or the authorized representative of any State,
Indian tribe, or foreign government, shall act on behalf of the
public, Indian tribe, or foreign country as trustee of natural
resources to present a claim for and to recover damages to the
natural resources.
(2) Federal trustees
The President shall designate the Federal officials who shall
act on behalf of the public as trustees for natural resources under
this Act.
(3) State trustees
The Governor of each State shall designate State and local
officials who may act on behalf of the public as trustee for natural
resources under this Act and shall notify the President of the
designation.
(4) Indian tribe trustees
The governing body of any Indian tribe shall designate tribal
officials who may act on behalf of the tribe or its members as
trustee for natural resources under this Act and shall notify the
President of the designation.
(5) Foreign trustees
The head of any foreign government may designate the trustee who
shall act on behalf of that government as trustee for natural
resources under this Act.
(c) Functions of trustees
(1) Federal trustees
The Federal officials designated under subsection (b)(2) of this
section--
(A) shall assess natural resource damages under section
2702(b)(2)(A) of this title for the natural resources under
their trusteeship;
(B) may, upon request of and reimbursement from a State or
Indian tribe and at the Federal officials' discretion, assess
damages for the natural resources under the State's or tribe's
trusteeship; and
(C) shall develop and implement a plan for the restoration,
rehabilitation, replacement, or acquisition of the equivalent,
of the natural resources under their trusteeship.
(2) State trustees
The State and local officials designated under subsection (b)(3)
of this section--
(A) shall assess natural resource damages under section
2702(b)(2)(A) of this title for the purposes of this Act for the
natural resources under their trusteeship; and
(B) shall develop and implement a plan for the restoration,
rehabilitation, replacement, or acquisition of the equivalent,
of the natural resources under their trusteeship.
(3) Indian tribe trustees
The tribal officials designated under subsection (b)(4) of this
section--
(A) shall assess natural resource damages under section
2702(b)(2)(A) of this title for the purposes of this Act for the
natural resources under their trusteeship; and
(B) shall develop and implement a plan for the restoration,
rehabilitation, replacement, or acquisition of the equivalent,
of the natural resources under their trusteeship.
(4) Foreign trustees
The trustees designated under subsection (b)(5) of this
section--
(A) shall assess natural resource damages under section
2702(b)(2)(A) of this title for the purposes of this Act for the
natural resources under their trusteeship; and
(B) shall develop and implement a plan for the restoration,
rehabilitation, replacement, or acquisition of the equivalent,
of the natural resources under their trusteeship.
(5) Notice and opportunity to be heard
Plans shall be developed and implemented under this section only
after adequate public notice, opportunity for a hearing, and
consideration of all public comment.
(d) Measure of damages
(1) In general
The measure of natural resource damages under section
2702(b)(2)(A) of this title is--
(A) the cost of restoring, rehabilitating, replacing, or
acquiring the equivalent of, the damaged natural resources;
(B) the diminution in value of those natural resources
pending restoration; plus
(C) the reasonable cost of assessing those damages.
(2) Determine costs with respect to plans
Costs shall be determined under paragraph (1) with respect to
plans adopted under subsection (c) of this section.
(3) No double recovery
There shall be no double recovery under this Act for natural
resource damages, including with respect to the costs of damage
assessment or restoration, rehabilitation, replacement, or
acquisition for the same incident and natural resource.
(e) Damage assessment regulations
(1) Regulations
The President, acting through the Under Secretary of Commerce
for Oceans and Atmosphere and in consultation with the Administrator
of the Environmental Protection Agency, the Director of the United
States Fish and Wildlife Service, and the heads of other affected
agencies, not later than 2 years after August 18, 1990, shall
promulgate regulations for the assessment of natural resource
damages under section 2702(b)(2)(A) of this title resulting from a
discharge of oil for the purpose of this Act.
(2) Rebuttable presumption
Any determination or assessment of damages to natural resources
for the purposes of this Act made under subsection (d) of this
section by a Federal, State, or Indian trustee in accordance with
the regulations promulgated under paragraph (1) shall have the force
and effect of a rebuttable presumption on behalf of the trustee in
any administrative or judicial proceeding under this Act.
(f) Use of recovered sums
Sums recovered under this Act by a Federal, State, Indian, or
foreign trustee for natural resource damages under section 2702(b)(2)(A)
of this title shall be retained by the trustee in a revolving trust
account, without further appropriation, for use only to reimburse or pay
costs incurred by the trustee under subsection (c) of this section with
respect to the damaged natural resources. Any amounts in excess of those
required for these reimbursements and costs shall be deposited in the
Fund.
(g) Compliance
Review of actions by any Federal official where there is alleged to
be a failure of that official to perform a duty under this section that
is not discretionary with that official may be had by any person in the
district court in which the person resides or in which the alleged
damage to natural resources occurred. The court may award costs of
litigation (including reasonable attorney and expert witness fees) to
any prevailing or substantially prevailing party. Nothing in this
subsection shall restrict any right which any person may have to seek
relief under any other provision of law.
(Pub. L. 101-380, title I, Sec. 1006, Aug. 18, 1990, 104 Stat. 494.)
References in Text
This Act, referred to in subsecs. (b)(2)-(5), (c)(2)(A), (3)(A),
(4)(A), (d)(3), (e), and (f), is Pub. L. 101-380, Aug. 18, 1990, 104
Stat. 484, as amended, known as the Oil Pollution Act of 1990, which is
classified principally to this chapter. For complete classification of
this Act to the Code, see Short Title note set out under section 2701 of
this title and Tables.
Delegation of Functions
Functions of President under subsec. (b)(3) and (4) of this section
delegated to Administrator of Environmental Protection Agency by section
8(c) of Ex. Ord. No. 12777, Oct. 18, 1991, 56 F.R. 54768, set out as a
note under section 1321 of this title.
NOAA Oil and Hazardous Substance Spill Cost Reimbursement
Pub. L. 102-567, title II, Sec. 205, Oct. 29, 1992, 106 Stat. 4282,
provided that:
``(a) Treatment of Amounts Received as Reimbursement of Expenses.--
Notwithstanding any other provision of law, amounts received by the
United States as reimbursement of expenses related to oil or hazardous
substance spill response activities, or natural resource damage
assessment, restoration, rehabilitation, replacement, or acquisition
activities, conducted (or to be conducted) by the National Oceanic and
Atmospheric Administration--
``(1) shall be deposited into the Fund;
``(2) shall be available, without fiscal year limitation and
without apportionment, for use in accordance with the law under
which the activities are conducted; and
``(3) shall not be considered to be an augmentation of
appropriations.
``(b) Application.--Subsection (a) shall apply to amounts described
in subsection (a) that are received--
``(1) after the date of the enactment of this Act [Oct. 29,
1992]; or
``(2) with respect to the oil spill associated with the
grounding of the EXXON VALDEZ.
``(c) Definitions.--For purposes of this section--
``(1) the term `Fund' means the Damage Assessment and
Restoration Revolving Fund of the National Oceanic and Atmospheric
Administration referred to in title I of Public Law 101-515 under
the heading `National Oceanic and Atmospheric Administration' (104
Stat. 2105) [set out as a note below]; and
``(2) the term `expenses' includes incremental and base
salaries, ships, aircraft, and associated indirect costs, except the
term does not include base salaries and benefits of National Oceanic
and Atmospheric Administration Support Coordinators.''
Damage Assessment and Restoration Revolving Fund; Deposits;
Availability; Transfer
Pub. L. 101-515, title I, Nov. 5, 1990, 104 Stat. 2105, provided
that: ``For contingency planning, response and natural resource damage
assessment and restoration activities, pursuant to the Comprehensive
Environmental Response, Compensation[,] and Liability Act [of 1980], as
amended [42 U.S.C. 9601 et seq.], the Federal Water Pollution Control
Act, as amended [33 U.S.C. 1251 et seq.], the Marine Protection,
Research[,] and Sanctuaries Act [of 1972], as amended [16 U.S.C. 1431et
seq., 1447 et seq.; 33 U.S.C. 1401 et seq., 2801 et seq.], and the Oil
Pollution Act of 1990 [33 U.S.C. 2701 et seq.], $5,000,000 to remain
available until expended: Provided, That notwithstanding any other
provision of law, in fiscal year 1991 and thereafter, sums provided by
any party or governmental entity for natural resource damage assessment,
response or restoration activities conducted or to be conducted by the
National Oceanic and Atmospheric Administration as a result of any
injury to the marine environment and/or resources for which the National
Oceanic and Atmospheric Administration acts as trustee of said marine
environment and/or resources, shall be deposited in the Damage
Assessment and Restoration Revolving Fund and said funds so deposited
shall remain available until expended: Provided further, That for
purposes of obligation and expenditure in fiscal year 1991 and
thereafter, sums available in the Damage Assessment and Restoration
Revolving Fund may be transferred, upon the approval of the Secretary of
Commerce or his delegate, to the Operations, Research, and Facilities
appropriation of the National Oceanic and Atmospheric Administration.''
Section Referred to in Other Sections
This section is referred to in sections 2711, 2712, 2717, 2752 of
this title; title 26 section 9509.
