State Use of NRDA (why Florida is pretty awesome)

One of the oddities of state and federal government is the sheer number of regulatory authorities that go unused. For example, the Clean Water Act grants the EPA broad authority to protect the nation's waters. The EPA then actually delegates permitting for the CWA to the Corps of Engineers and state agencies (in many cases). As far as I can tell, many of the authorities embedded in the Clean Water Act are rarely or never invoked. As a result, a lot of bad stuff happens that would have been prevented if a more strict interpretation of the CWA were followed.

An even better example of this is the National Resource Damage Assessment (NRDA) process. This is a program to force those who pollute to pay the costs necessary to restore what they have damaged by polluting. I'm actually completely clueless on what law this stems from, but it looks as if the federal efforts are lead by the Department of the Interior (or maybe the EPA?). However, in some capacity, states are able to use this legal structure to recoup the costs of restoring habitats from polluters.

Except they aren't doing that. At least, that's according to a paper I stumbled upon recently by J. Faass (2010; full cite below). In this report, Faass surveyed a bunch of state agencies and found that most (25 of 42 surveyed) rarely or never pursued NRDA compensation for impacts to natural resources. Why?

"When asked why they routinely forgo NRDA, some survey takers cited as major obstacles the cost, time, and resources needed...as well as the potential liability. Others cited a lack of manpower or political will." (Faass, pg 34)

This is fairly crazy (after all, this legal structure was important enough for elected officials to put into place, why would we assume it would be ignored). However, it isn't completely unexpected. There is a decreasing amount of resources devoted to state agencies and increasing number of responsibilities. In most state and federal cases, NRDA is a complicated, site-specific process (involving a lot of research and investigation and court appearances). According to conventional wisdom, it is a real pain.

However, what's interesting is just how easy this problem is to solve, and the fact that Florida has basically done it. Unlike every other state, Florida uses NRDA for every oil spill (or other spill) that occurs in coastal areas. Basically, they have a simple formula (and I do mean simple) that any of their field personnel can use in response to a reported spill. Plug in number, draw a polygon on a map, and bang dollar value is spit out. Hand the bill to the polluter and move on.

There are some problems (e.g., costs are fixed by law and have remained unchanged since 1993), however, the use of a known scheme and set of criteria circumvent a number of tricky legal and ethical problems, and make it a routine process.

The biggest criticism I see of the program from this article is that they haven't actually spent the money exclusively on restoration, and they haven't spent any at all since 2001. With federal NRDA cases that's a huge no-no (you must spend only on restoration in federal cases). The reason they haven't spent any of the money since 2001 is purely political:

"...interviewees noted that a legislative appropriation would be necessary to access the money...reluctance [to solict such an appropriation] is due in part to the fact that the balance of the fund has remained below $1 million...and to fears that once awareness of the money has been raised, it could conceivably by diverted to cover non-restoration-related expenditures." (Faass p 37)

Man, that totally sucks, but it is a problem seen in lots of agencies. Once it is realized this source of money exists, it will be exploited for something completely unrelated to its intended purpose.

Summary:

Florida uses a simple formula to assess NRDA damages, making them capable of recovering restoration money from a far greater proportion of the damaging spills that occur in coastal areas.

Faass, J. (2010). Florida's Approach to Natural Resource Damage Assessment: A Short, Sweet Model for States Seeking Compensation Ecological Restoration, 28 (1), 32-39 DOI: 10.3368/er.28.1.32