Draft Sportfishing Restoration and Spending Plan for Lake Ontario System
Prepared by NYSDEC January 2007
Section I. Introduction
The purpose of this plan is to implement the Natural Resource Damage (NRD) restoration process for the New York waters of the Lower Niagara River, Lake Ontario, and the St. Lawrence River (hereafter referred to as the Lake Ontario system) developed by the Trustee, the New York State Department of Environmental Conservation (Department). The geographic scope of the area addressed extends from the base of Niagara Falls, through Lake Ontario and downstream to the Robert Moses Power Dam on the St. Lawrence River, and includes tributaries to these waters upstream to the first barrier impassable to fish. The Department intends to accomplish these goals by communicating with the public at each major step of the process, and to adapt our approach as informed by public comment.
Several federal statutes, as well as state law, authorize federal and state officials to act on behalf of the public to restore natural resources affected by releases of contaminants. Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, the Oil Pollution Act (OPA) of 1990, the Clean Water Act (CWA) of 1977, and state common law, parties responsible for contaminating the environment and causing injury to natural resources are also liable for natural resource damages (or compensation), which are to be used to restore the injured resources. Natural resource damages are compensation for the injury to, loss of, loss of the use of, or destruction of New York's natural resources, including land, biota, air, surface and ground waters.
The natural resource damages assessment process involves determining the nature and extent of injury to the public's natural resources, and restoring the use and enjoyment of either the injured or lost natural resources, or the services provided by these resources. The NRD process seeks to ensure that the public is compensated for the losses they suffer as a result of the damages.
In June of 2006, New York State announced that the Department and the Office of the Attorney General had reached a settlement of the State's NRD claim for the Lake Ontario system. Defendant Occidental Chemical Corporation (OCC) agreed to pay the State $12 million in five equal payments over four years. The first installment of $2.4 million was paid within 30 days of the June 21, 2006 court approval; each of four additional payments is due on the anniversary of the approval date.
The claim arose under the federal CERCLA ("Superfund") and New York State common law, and compensates the people of the State for injuries to natural resources caused by the release of harmful chemicals to the environment.
Section II. Description of Injury
The settlement was based on an assessment of the damages to the State's natural resources, in particular a loss of recreational fishing benefits resulting from the imposition of fish consumption advisories because of the presence of contaminants in the fish. The damages were calculated by measuring the difference between the value to anglers of fishing for the contaminated fish, and what the value would have been if the fish had not been contaminated.
This settlement represents the final claim in a lawsuit filed against OCC's predecessor, Hooker Chemical, in 1983. The $12 million settlement is one of the largest settlements in the nation of a NRD claim based on lost recreational fishing use. Funds recovered as a result of an NRD claim must be used to restore/enhance either the injured natural resources themselves or the services provided by the lost or injured natural resources. In this case, because recreational fishing was injured, the recovered damages will be used to restore/enhance the recreational use of the fish and to restore/enhance the fishery itself.
Section III. Restoration Alternatives
The general hierarchy for the use of NRD funds, in order of greatest to least preference, is restore, replace, and acquire. As stated previously, this settlement was based on the loss of recreational fishing benefits resulting from the imposition of fish consumption advisories. The option of restoring (reducing) contaminant levels in fish to those prior to the release of toxic chemicals into the system is technically infeasible and cost prohibitive. Chemical contamination of fish resulted in fish consumption advisories extending from the Lower Niagara River downstream through Lake Ontario and the St. Lawrence River. Migratory fishes have transferred contaminants into tributary systems as well. Using NRD funds to reduce contaminant levels in fish through toxic clean-up efforts in the Lake Ontario system would be ineffective, as these contaminants now reside in sediments and biota throughout the entire system. In addition, toxic "hot spots" within the Lake Ontario system have already been identified, and efforts to remediate contamination in these areas are being coordinated through individual Remedial Action Plans (RAPs). The Department has therefore chosen to use these NRD funds to restore/enhance recreational sportfisheries in the Lake Ontario system.
The Trustee's goal is to implement projects that best serve to restore/enhance recreational sportfisheries in the Lake Ontario system through four project categories:
- public fishing access projects; such as improvement to or creation of boat launch sites, fishing piers, access channel improvements and purchase of public fishing rights;
- habitat restoration projects: such as the creation/enhancement of habitats that support warmwater, coolwater and coldwater fishes and/or their prey, such as walleye spawning bed improvements, stream bank stabilization, fish passage, and lamprey barriers;
- angler outreach/education; including fishing hotlines, outreach addressing where and how to fish, instruction on reducing exposure to contaminants when eating Great Lakes fish, visitor center interpretive displays, sportfishing promotion etc., and
- fish population management/enhancement; such as improvements to existing NYS Great Lakes hatchery facilities that will improve the Department's ability to effectively manage fisheries. Proposed projects must result in a defensible benefit to sportfisheries in the Lake Ontario system.
Project Evaluation Process
Projects will be reviewed by a committee of Department personnel consisting of the following: Bureau of Fisheries Chief, Great Lakes Section Head, Regional Fisheries Managers from DEC Regions 6 through 9, Lake Ontario Unit Leader, Natural Resources Damage Unit Leader, and Lake Ontario Natural Resource Damages Coordinator.
Alternatives will be evaluated based on the following general criteria:
1. Technical feasibility- Is the proposed action possible given constraints such as availability of services, materials, equipment, expertise, construction and operational limitations, expected lifespan of benefits, maintenance considerations, and administrative, legal, or regulatory requirements? Projects that are technically and operationally feasible with measurable benefits, and those employing proven methods, will receive preference.
2. Effectiveness- Can the effectiveness of the project be measured, and will the action serve to restore/enhance sportfisheries and/or the injured natural resources, or the public's access to/enjoyment of sportfisheries in the Lake Ontario system? Effectiveness depends on the extent of the benefits to Lake Ontario sportfisheries or natural resources (local vs. system wide), extent to which the alternative might cause additional injury, and the extent to which the proposal improves the rate of recovery, as well as level of risk and expectations for success.
3. Relative Cost and Cost Effectiveness- Priority will be given to proposals that provide the greatest benefit for the least cost in comparison to other proposed projects. Projects with a matching fund source are encouraged. In general, priority will be given to projects that provide the greatest relative benefit to the sportfishing resources of the Lake Ontario system.
Section IV. Preferred Alternatives
Following public meetings and the public comment period, projects selected through the previously described evaluation process will appear in this portion of the Final Plan.
A 60-day notice period was offered following the release of the Plan to afford the public an opportunity to review the Plan prior to public meetings and to submit their thoughts subsequent to the meetings. The public meetings, one each in NYSDEC Regions 7, 8, and 9, and two in Region 6, were scheduled approximately half-way through the review period. Copies of the draft Plan were provided to the New York State Library Document Distribution Center, as well as NYSDEC Headquarters in Regions 6 (Watertown), 7 (Syracuse), 8 (Avon), and 9 (Allegany).
Notices of opportunities for review of the Plan were provided both formally and informally. Formal notice in the New York State Environmental Notice Bulletin (ENB) will be published weekly from 1-17-2007 to 3-20-2007. Additionally, notices were provided on the Department's website, through press releases, and by direct mailings (Appendix B, Public Participation Plan for the Development of the Sportfishing Restoration and Spending Plan for the Lake Ontario System [pdf, 107 kb] ). A constituent letter and fact sheet (pdf, 31 kb) summarizing the Plan and announcing public meetings and comment periods was posted on the Department website, and these documents were also mailed to interested constituents including non-governmental organizations, individuals, local government officials, elected state and federal officials, federally recognized native American tribal authorities, and N.Y.S. and federal natural resource agencies (U.S. Fish and Wildlife Service, U.S. Army Corp of Engineers, U.S. Geological Survey, Bureau of Indian Affairs, U.S. Environmental Protection Agency, National Oceanic and Atmospheric Administration).
Section VI. Approvals
After the close of the formal review period, a Final Sportfishing Restoration and Spending Plan for the Lake Ontario System will be developed to reflect public comments and will be issued once approved by the Commissioner of the Department of Environmental Conservation.