Deepwater Horizon:Claims for Impacts to Oyster Industry/Resources under the Oil Pollution Act of 1990 Oyster Advisory Committee Meeting October 15, 2010
Oil Pollution Act of 1990 • The Oil Pollution Act of 1990 (OPA) • Makes Responsible Parties liable for damages caused by oil spills – whether caused by direct oiling or response activities • Claims for damages for oyster resources include both private and public claims • Private Claims • May be settled through the BP Escrow Fund • Public Claims • Public Claims for natural resources damages done through Natural Resources Damages Assessment (NRDA) – process results in restoration of environment to pre-spill conditions • Public Claims for lost revenues and increased public services pursued through settlement or litigation – results in financial compensation
Private Claims under OPA • Damages to Real or Personal Property1 • Oyster farmers leasing Public Waterbottoms have exclusive use of leased areas and oysters therein. • Damages claim against any person damaging the leased bed or ground • Claim for diminution in leasehold value • Claim for loss of seed oysters • Potential claim for restoration of improvements installed by leaseholder 1 33 U.S.C. § 2702(b)(2)(B).
Private Claims under OPA • Profits and Lost Earning Capacity1 • Claim under OPA for lost profits and impairment of earning capacity • Can be claimed by both oyster farmers and fishers • Claim may overlap with claim for real or personal property damage 1 33 U.S.C. § 2702(b)(2)(D).
Private Claims under OPA • Subsistence Use1 • Person may claim loss of subsistence use of natural resources without regard to ownership • Recreational fishermen can take up to two sacks per day from public grounds, and may claim that some or all of this allotment is used for subsistence 1 33 U.S.C. § 2702(b)(2)(C).
Public Claims under OPA • Claims Under NRDA1 • Primary Restoration- restoring the resource and ecosystem functions to pre-spill levels • Compensatory Restoration- restoration compensating for temporal loss of resource • Assessment Costs- cost of assessing injury to natural resources 1 Compensation under NRDA comes in the form of the funding of a restoration plan as opposed to monetary damages.
Other Public Claims under OPA • Lost Revenue • Taxes paid for oyster sales, Rents/leasehold payments, Severance taxes, Other fees • Increased Public Services Costs • Net costs of providing increased or additional public services caused by the discharge of oil during or after removal activities • Ex: Non-NRDA monitoring for purposes of public safety or fishery management