Natural Resources Damages Assessments and Claims in the Great Lakes Basin

• Published in: Soil & sediment contamination 2003-03, Vol.12 (2), p.253-304
• Main Authors: Denton, Charles M., Hupp, R. Craig
• Format: Article
• Language: English
• ISSN: 1532-0383; 1549-7887
• DOI: 10.1080/713610972

Claims for Natural Resources Damages ('NRD') were created by Federal legislation in the late 1970s and early 1980s. The typical NRD claims appear to arise from discrete oil and chemical spills to surface water, sediment contamination from past industrial and municipal discharges, and pollution from historical mining operations, all of which are relevant within the Great Lakes Basin. NRD Assessments and settlements did not become common in the Great Lakes Basin until the latter half of the 1990s, although there were earlier settlements under the Michigan sport fishing statute that recovered what were essentially natural resources damages. Considering the number of 'Superfund' sites (Federal and State) and International Joint Commission designated Areas of Concern in the Great Lakes Basin, NRD claims could reasonably be expected to be more prevalent than they have been. Why have there not been more NRD claims in the Great Lakes? To gain perspective and possible explanations for why there have not been more NRD claims, this article describes how NRD claims have developed under Federal law (as applied in U.S. Environmental Protection Agency ('EPA') Region V), including statutory, regulatory, and case law developments. While the scientific and economic issues of how to assess injuries to natural resources and calculate NRD damages is beyond the scope of this article, a brief discussion of some of the valuation issues is provided. This article reviews and comments on a number of the NRD settlements that have occurred in the Great Lakes Basin, and provides a digest of NRD settlements identified by the authors. The article closes with a practical commentary on negotiating and resolving NRD disputes based on past settlements and the authors' experiences in negotiating NRD settlements.