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CP-44 / Natural Resource Damages Policy

New York State Department of Environmental Conservation

DEC Policy

Issuing Authority: Alexander B. Grannis, Commissioner

Date Issued: January 21, 2010

I. Summary:

This policy identifies the commitment by the Department of Environmental Conservation (Department) to the operation of a comprehensive Natural Resources Damages (NRD) Program to enable the Commissioner, as the designated Trustee for State natural resources, to fulfill his/her legal obligation to act on behalf of the public to recover damages for injuries to natural resources and to use any recovered damages to restore or replace those injured resources.

II. Policy:

It is the policy of the Department of Environmental Conservation to ensure that the State's natural resources are protected, and wehre damaged, such resources are restored or replaced in accordance with the law. To ensure the success of this policy, an efficient and effective NRD Program is needed. Therefore, through this policy, the Commissioner reaffirms this commitment and designates the Division of Fish, Wildlife and Marine Resources (DFWMR) in conjunction with the Office of General Counsel (OGC) to jointly fulfill the Commissioner's obligations as the natural resource Trustee for the State. Other Divisions within the Department with responsibility for regulation, investigation and/or cleanup of contaminants including but not limited to the Divisons of Environmental Remediation (DER), Solid and Hazardous Materials (DSHM), and Water (DOW) are also charged with supporting and furthering the NRD Program.

III. Purpose and Background:

On November 30, 1987, Governor Cuomo appointed the Commissioner of Environmental Conservation to be the Trustee for New York State's natural resources under applicable federal law, including the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, and the Oil Pollution Act, complementing the Department's responsibilities under the New York Environmental Conservation Law, Article 12 of the New York Navigation Law, and other applicable law, to conserve, improve and protect New York's natural resources. The purpose of this policy is to reaffirm the Department's commitment to a comprehensive program to pursue natural resource damage claims and to use damage recoveries to restore injured resources to the maximum extent possible.

This Policy supersedes O&D Memoranda #88-13, #93-10, and #94-28.

IV. Responsibility:

The DFWMR and the OGC shall work jointly to evaluate, develop and pursue potential cases involving NRD. The DFWMR conducts or coordinates NRD assessments and implements or directs the implementation of restoration projects. OGC advises the DFWMR on legal matters, negotiates the terms of agreements and settlements, and pursues cases as needed. Economic expertise and support for the NRD Program is provided by the OGC Economics Unit, which is responsible for conducting or coordinating the economic analysis needed to support the settlement or prosecution of cases and for managing the NRD accounts. As appropriate, staff in other programs and Divisions of the Department (e.g. DER, DSHM, DOW) will coordinate and cooperate with DFWMR and OGC to identify potential NRD claims and to pursue those claims. When restoration projects involve the conveyance of an interest in land or planning for open space, OGC and DFWMR shall coordinate and cooperate with the Division of Lands and Forests as early as possible to consider all options before a final determination is made regarding the conveyance and to ensure that the ultimate conveyance is fully approved as required by law. Finally, the participation of Regional staff in investigating and evaluating cases is essential to an effective NRD program.
The responsibility for implementing, maintaining, interpreting and updating this policy lies with DFWMR, in conjunction with the OGC.

V. Related References:

  • Organization and Delegation Memoranda #88-13 dated April 15, 1988, #93-10 dated April 29, 1993, and #94-28 dated August 8, 1994 (all hereby superseded).
  • New York State Department of Environmental Conservation Civil Penalty Policy dated 6/20/90, Section IV(D)(2)(a)
  • Final Report of the Quality Project Team for Natural Resource Damages dated 3/31/97

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