EUROPEAN COMMISSION
DIRECTORATE-GENERAL ENVIRONMENT
STUDY ON THE VALUATION AND RESTORATION OF
DAMAGE TO NATURAL RESOURCES FOR THE PURPOSE
OF ENVIRONMENTAL LIABILITY
B4-3040/2000/265781/MAR/B3
FINAL REPORT
BY
MACALISTER ELLIOTT AND PARTNERS LTD
AND THE
ECONOMICS FOR THE ENVIRONMENT CONSULTANCY LTD
MAY 2001
MacAlister Elliott and Partners Ltd
56 High Street
Lymington
Hampshire SO41 9AH
United Kingdom
Tel: +44 1590 679016
Fax: +44 1590 671573
E-mail: [email protected]
Website: http://www.macalister-elliott.com
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TABLE OF CONTENTS
EXECUTIVE SUMMARY
PART A: EVALUATION METHODOLOGIES
1
STUDY BACKGROUND AND OBJECTIVES ....................................................... 1
1.1 BACKGROUND ................................................................................................................ 1
1.2 AIMS AND OBJECTIVES ................................................................................................... 2
1.3 SCOPE............................................................................................................................. 2
2
OVERVIEW AND APPROACH TO THE ISSUES................................................ 3
2.1 MONETARY COMPENSATION BASED ON THE VALUE OF DAMAGE .................................. 3
2.2 RESOURCE COMPENSATION ............................................................................................ 4
2.3 STRUCTURE OF THE REPORT........................................................................................... 4
3
NATURAL RESOURCE DAMAGE ASSESSMENT AND RESTORATION..... 7
3.1 PRE-INCIDENT RESOURCE STATUS ................................................................................. 7
3.2 DETERMINING THE SCALE AND ‘SIGNIFICANCE’ OF DAMAGE ...................................... 10
3.2.1 Scale of Damage.................................................................................................. 10
3.2.2 Significance of Damage ...................................................................................... 11
3.2.3 Establishing Conservation Objectives ................................................................ 13
3.3 APPLYING NATURAL RESOURCE DAMAGE ASSESSMENT IN PRACTICE......................... 20
4
PRIMARY RESTORATION OPTIONS ................................................................ 23
4.1 SETTING PRIMARY RESTORATION TARGETS ................................................................. 24
4.2 IDENTIFICATION AND CATEGORISATION OF TECHNICAL OPTIONS FOR PRIMARY
RESTORATION............................................................................................................... 28
4.3 CATEGORISATION AND SELECTION OF RESTORATION OPTIONS.................................... 29
4.3.1 Categorisation of Restoration Options ............................................................... 30
4.3.2 Selection of Restoration Options......................................................................... 33
4.4 ESTIMATION OF INTERIM LOSSES ................................................................................. 36
4.5 ROLE OF COST-BENEFIT ANALYSIS .............................................................................. 36
5
COMPENSATORY RESTORATION OPTIONS................................................. 38
5.1 IDENTIFY THE OBJECTIVES OF COMPENSATORY MEASURES......................................... 38
5.2 RESOURCE COMPENSATION .......................................................................................... 41
5.2.1 Identifying Compensatory Restoration Projects ................................................. 41
5.2.2 Classifying and Selecting Compensatory Restoration Projects.......................... 42
5.2.3 Scaling Restoration Options ............................................................................... 43
5.2.4 Implications for Monetary Value of Liability...................................................... 47
5.3 MONETARY COMPENSATION ........................................................................................ 47
6
CONCLUSIONS AND RECOMMENDATIONS .................................................. 48
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PART B: THE CASE STUDIES
7
AZNALCÓLLAR MINE TOXIC SPILLAGE....................................................... 53
SITE DESCRIPTION ........................................................................................................ 53
SITE SERVICES.............................................................................................................. 54
INCIDENT DESCRIPTION ................................................................................................ 55
SCALE OF DAMAGE ...................................................................................................... 55
CASE STUDY ASSESSMENT OF DAMAGE TO THE DOÑANA NATIONAL PARK AND
CORRIDOR ECOLOGICA DE RIO GUADIAMAR NATURA 2000 SITES ............................... 56
7.5.1 Scope of Damage Assessment ............................................................................. 56
7.5.2 Establishing Conservation Objectives ................................................................ 56
7.5.3 Conclusion of Significance Assessment............................................................... 62
7.6 ACTUAL RESTORATION OF DOÑANA NATIONAL PARK AND ESTABLISHMENT OF THE
GREEN CORRIDOR ........................................................................................................ 62
7.7 COMPARISON OF ACTUAL AND POSSIBLE RESTORATION ACTIVITIES ........................... 63
7.8 OUTCOME OF SETTLEMENT .......................................................................................... 65
7.1
7.2
7.3
7.4
7.5
8
SEA EMPRESS OIL SPILL .................................................................................... 66
8.1
8.2
8.3
8.4
8.5
8.6
8.7
SITE DESCRIPTION ........................................................................................................ 66
SITE SERVICES.............................................................................................................. 67
INCIDENT DESCRIPTION ................................................................................................ 68
SCALE OF DAMAGE ...................................................................................................... 68
IMPACT ASSESSMENT ................................................................................................... 69
CONCLUSION OF DAMAGE ASSESSMENT ...................................................................... 71
ACTUAL RESTORATION OF PEMBROKESHIRE MARINE AND CARMARTHEN BAY AND
ESTUARIES NATURA 200 SITES .................................................................................... 72
8.8 COMPARISON OF ACTUAL AND POSSIBLE RESTORATION ACTIVITIES ........................... 72
8.9 OUTCOME OF SETTLEMENT .......................................................................................... 74
9
EXXON VALDEZ OIL SPILL................................................................................ 76
9.1 SITE DESCRIPTION ........................................................................................................ 76
9.2 SITE SERVICES.............................................................................................................. 76
9.3 INCIDENT DESCRIPTION ................................................................................................ 76
9.4 SCALE OF DAMAGE ...................................................................................................... 77
9.5 CLEAN-UP ACTIVITIES.................................................................................................. 77
9.6 IMPACT ASSESSMENT FOR NATURAL RESOURCES ........................................................ 77
9.7 RECOVERY OBJECTIVES FOR HUMAN SERVICES ........................................................... 78
9.8 OUTCOME OF SETTLEMENT .......................................................................................... 78
9.9 RISK AND UNCERTAINTY – IMPLICATIONS FOR LIABILITY ........................................... 79
9.10 COMPARISON OF EXXON VALDEZ AND SEA EMPRESS OIL SPILLS ................................ 79
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FIGURES, TABLES AND BOXES
Figures
FIGURE 2-1: DAMAGE ASSESSMENT AND CHOOSING THE RESTORATION OPTIONS..................................................5
FIGURE 3-1: WETLAND ECOSYSTEM SERVICES AND SOURCES OF VALUE .............................................................10
FIGURE 4-1: PRIMARY RESTORATION PROCESS PATHWAYS ..................................................................................23
FIGURE 5-1: CHOOSING COMPENSATORY RESTORATION OPTIONS ........................................................................39
FIGURE 5-2: DAMAGE, INTERIM LOSSES AND RESTORATION OPTIONS ..................................................................40
FIGURE 5-3: PRIMARY AND COMPENSATORY RESTORATION SCALING COMPONENTS OF PANTHER CREEK ...........46
FIGURE 7-1: LOCATION OF DOÑANA NATIONAL PARK ..........................................................................................53
FIGURE 8-1: PROTECTED AREAS OF SOUTH-WEST WALES......................................................................................66
Tables
TABLE 3-1: IMPACTS ON LAGOONS OF MINERAL EXTRACTION AGAINST CSAC CONSERVATION OBJECTIVES .....16
TABLE 3-2: MATRIX FOR ASSESSING SIGNIFICANCE OF IMPACTS ON NATURA 2000 SITES AGAINST
CONSERVATION OBJECTIVES .............................................................................................................17
TABLE 4-1: CONDITION TABLE FOR TILIO ACERION RAVINE WOODLAND IN THE UK...........................................25
TABLE 4-2: OPTIONS FOR PRIMARY RESTORATION OF NATURAL RESOURCE DAMAGE .........................................29
TABLE 7-1: ANNEX I HABITATS PRESENT WITHIN THE DOÑANA NATIONAL PARK PSCI.......................................57
TABLE 7-2: ANNEX I BIRD SPECIES PRESENT IN SIGNIFICANT NUMBERS (>P) WITHIN THE DOÑANA NATIONAL
PARK PSCI .........................................................................................................................................58
TABLE 7-3: CASE STUDY DAMAGE ASSESSMENT OF AZNALCOLLAR MINE SPILL ON ANNEX I HABITATS IN THE
DOÑANA NATIONAL PARK AND CORREDOR ECOLOGICO DE RIO GUADIAMAR NATURA 2000 SITES .59
TABLE 7-4: CASE STUDY DAMAGE ASSESSMENT OF AZNALCOLLAR MINE SPILL ON ANNEX II SPECIES IN THE
DOÑANA NATIONAL PARK AND CORREDOR ECOLOGICO DE RIO GUADIAMAR NATURA 2000 SITES .60
TABLE 7-5: CASE STUDY DAMAGE ASSESSMENT OF AZNALCOLLAR MINE SPILL ON ANNEX I BIRDS IN THE
DOÑANA NATIONAL PARK AND CORREDOR ECOLOGICO DE RIO GUADIAMAR NATURA 2000 SITES .61
TABLE 8-1: CASE STUDY DAMAGE ASSESSMENT OF SEA EMPRESS OIL SPILL ON ANNEX I HABITATS IN THE
PEMBROKESHIRE MARINE AND CARMARTHEN BAY AND ESTUARIES NATURA 2000 SITES ...............69
TABLE 8-2: CASE STUDY DAMAGE ASSESSMENT OF SEA EMPRESS OIL SPILL ON ANNEX II SPECIES, SPA AND
BIRD POPULATIONS IN THE PEMBROKESHIRE MARINE AND CARMARTHEN BAY AND ESTUARIES
NATURA 2000 SITES ..........................................................................................................................70
TABLE 8-3: SUMMARY OF TOTAL COSTS RESULTING FROM SEA EMPRESS OIL SPILL (£ MILLION) ..........................74
TABLE 9-1: USE OF PAYMENTS MADE BY EXXON AS PART OF CIVIL AND CRIMINAL SETTLEMENTS .....................79
Boxes
BOX 3-1: BLACKBIRD MINE CASE STUDY - SITE DESCRIPTION ...............................................................................9
BOX 3-2: BLACKBIRD MINE CASE STUDY - SCALE OF DAMAGE ...........................................................................11
BOX 3-3: BLACKBIRD MINE CASE STUDY - IMPACT ASSESSMENT ........................................................................15
BOX 4-1: THEORETICAL EXAMPLE OF SETTING PRIMARY RESTORATION OBJECTIVES FOLLOWING DAMAGE TO TILIO
ACERION RAVINE WOODLAND IN THE UK .............................................................................................27
BOX 4-2: BLACKBIRD MINE CASE STUDY - PRIMARY RESTORATION OBJECTIVES ................................................27
BOX 4-3: RATCLIFFE CRITERIA FOR NATURE CONSERVATION EVALUATION ........................................................30
BOX 4-4: BLACKBIRD MINE CASE STUDY - SELECTION OF PRIMARY RESTORATION PROJECTS ............................35
BOX 5-1: BLACKBIRD MINE CASE STUDY - IDENTIFYING COMPENSATORY RESTORATION PROJECTS ..................45
BOX 5-2: BLACKBIRD MINE CASE STUDY - OUTCOME OF THE SETTLEMENT ........................................................47
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Acronyms and Terms Used
BT
CBA
CEA
CERCLA
CM
CR
CV
DARP
DETR
EA
EC
EEPSEA
EIA
EU
EVRI
HP
IOSC
IPPC
NRDA
NOAA
OPA
pSCI
RC
RP
SAC
SEO
SP
SPA
SSSI
TC
TEV
USEPA
WTA
WTP
Benefits Transfer
Cost Benefit Analysis
Cost Effectiveness Analysis
Comprehensive Environmental Response, Compensation and Liability Act
Choice Modelling
Contingent Ranking
Contingent Valuation
Damage Assessment and Restoration Programme
Department of the Environment, Transport and the Regions (of the United
Kingdom)
Environment Agency (of England and Wales)
European Commission
Economy and Environment Program for South East Asia
Environmental Impact Assessment
European Union
Environmental Valuation Reference Inventory
Hedonic Pricing
International Oil Spill Conference (Seattle, March 8-11, 1999)
Integrated pollution prevention and control
Natural Resource Damage Assessment
National Oceanic and Atmospheric Administration
Oil Pollution Act
Proposed Site of Community Importance
Restoration Cost
Revealed Preference Techniques
Special Area of Conservation
Sociedad Española de Ornitología
Stated Preference Techniques
Special Protection Area
Site of Special Scientific Interest
Travel Cost Method
Total Economic Value
United States Environmental Protection Agency
Willingness to Accept Compensation
Willingness to Pay
Report contributors
Ece Ozdemiroglu
Tannis Hett
Jonathan Cox
Diana Tingley
Donald Reid
Tim Huntington
Nick Hanley
Alan Randall
Edward Brans
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Economics for the Environment Consultancy Ltd, United Kingdom
Economics for the Environment Consultancy Ltd, United Kingdom
MacAlister Elliott and Partners Ltd, United Kingdom
MacAlister Elliott and Partners Ltd, United Kingdom
MacAlister Elliott and Partners Ltd, United Kingdom
MacAlister Elliott and Partners Ltd, United Kingdom
The University of Glasgow, United Kingdom
The Ohio State University, USA
Vrije University Amsterdam, The Netherlands
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EXECUTIVE SUMMARY
I.
Study Background and Objectives
Various options of developing a liability regime for damage to biodiversity or natural
resources were explored in a White Paper (EC, 2000). This study is one of those that are
commissioned to provide further information on different aspects of such a liability scheme
and aims to answer three inter-related questions:
•
How to define ‘significant’ damage to natural resources and decide on the ‘minimum
level of restoration’;
•
How, and to what extent, monetary valuation techniques can be used to estimate the
economic value of damage to natural resources; and
•
How, and to what extent, cost-benefit analysis can be used to choose between restoration
options.
Although initially the scope of the study was limited to the damage to Natura 2000 sites, the
methodology presented in the study is in principle applicable to other sites of nature
conservation value. It is not clear whether the term ‘biodiversity’ or ‘natural resources’ will
be used as the scope of a potential Directive on environmental liability. The term
‘biodiversity’ refers to “the variability among living organisms from all sources including,
inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of
which they are part” (Convention of Biological Diversity, Article 2). On the other hand, the
term ‘natural resources’ refer to “land, fish, wildlife, biota, air, water, groundwater, and
drinking water supplies” (Oil Pollution Act of the USA). The wider-concept of natural
resources is used in this study provided that it does not refer to the privately owned resources,
which are covered in the current liability regime.
In trying to answer these questions, the study reviews the relevant literature in Europe and the
USA and the relevant aspects of the litigation experience in the USA, namely the Natural
Resource Damage Assessment (NRDA) guidance. It also provides three case studies (based
on the Sea Empress oil spill off the coast of Wales in 1996, the Aznalcóllar mine toxic
spillage affecting the Doñana National Park in 1998 and the Exxon Valdez oil spill in Alaska
in 1989) to illustrate the framework recommended in the study and the issues raised. A fourth
case study is used throughout Chapters 3 to 5 focusing on the Blackbird Mine pollution
incident in Idaho, USA.
The framework used in this study for assessing the damage to natural resources and choosing
between different restoration options would be familiar to those using tools for environmental
impact assessment and/or cost benefit analysis. It is also based on the guidance for NRDA in
the USA (NOAA, 1997). This framework consists of three main steps:
•
Damage assessment and significance;
•
Primary restoration options, and
•
Compensatory restoration options.
The rest of this executive summary outlines the main points of importance in each step, and
the role of economic valuation and cost-benefit analysis within the overall framework.
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II.
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Damage Assessment and Significance
This stage of the framework is concerned with the following:
•
Definition of the status of the resource prior to the incident causing damage;
•
Assessment of the scale of damage;
•
Impact assessment; and
•
Determining whether damage is ‘significant’.
Chapter 3 of the main report provides further details on this stage of the framework.
The status of the resource prior to the incident of concern is also known as the ‘baseline’
condition of the resource. The baseline is defined not only in terms of the type and quantity
of the resource, but also the services the resource provides. These services could be related to
the ecological functions or the various uses made of the resource. The focus of this
framework is on the uses that are not under private ownership or commercial, since these are
already covered by the existing liability regime.
The inclusion of the concept of ‘services’ in the definition of baseline prepares the ground for
economic analysis later on, should this be desired, since economic values, or in other words,
people’s preferences1 for natural resources are affected by the services provided by these
resources. In this context, economic value can also arise from people’s preferences for the
conservation of natural resources that are not related to the use they make of the services but
from the knowledge that such services exist. This type of value is referred to as passive or
non-use value.
Natural resource services cannot be clearly identified without reference to the population
benefiting from these services and, hence, impacted by the damage to the natural resources.
This population could be the residents in and around the damaged area, visitors to the area, or
a group which holds non-use values and which is not necessarily restricted by geographical
boundaries.
Assessment of the scale of damage is another aspect of this step of the framework. This
assessment identifies and quantifies the damage in terms of: its geographical scale; whether
or not it leads to the damage/loss of habitats and/or species; and whether it is acute (such as
an oil spill) or chronic (such as a long-term leakage from a hazardous waste facility).
Impact assessment is concerned with the identification and quantification of the impacts of
the damage on the affected habitat and species population in terms of its geographical scale,
and whether or not the impact is temporary (reversible) or permanent (irreversible). This
stage is crucial both for identifying the restoration options and estimating the economic value
of damage if this is required.
The final step of this stage is determining whether the damage exceeds a significance
threshold, the guidance for which can be found in the EU Habitats Directive. Given the sitespecific characteristics of natural resources and damage, it is not possible to be prescriptive.
1
Preferences are expressed as willingness to pay (WTP) to secure an improvement or to avoid a degradation as
well as a willingness to accept compensation (WTA) to forgo an improvement or to suffer a degradation.
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For Natura 2000 sites, significance can be judged by assessing whether the damage has had
an adverse effect upon the integrity of the site, where integrity can be defined as:
‘The coherence of the site’s ecological structure and function, across its whole area, or the
habitats, complexes of habitats and/or populations of species for which the site is or will be
classified.’
A similar approach could be adopted for other sites of national or even regional importance,
provided that conservation objectives and attributes that define these have been developed for
each of these sites.
III.
Primary Restoration Options
This stage of the framework addresses primary restoration, that is, actions that aim to restore
the damaged resource and, if possible, return the resource to baseline (pre-incident)
conditions. It is concerned with the following:
• Setting restoration targets;
• Identifying primary restoration options;
• Selecting primary restoration options; and
• Estimating interim losses.
Chapter 4 of the main report provides further details on this stage of the framework.
The guidance on NRDA in the USA sets the target for the primary restoration options as
restoring the resource to its pre-damage status, in other words, the baseline. Guidance for this
can also be found for Natura 2000 sites. For example, in the UK ‘favourable (conservation)
status’ tables are used to determine the characteristics of the Natura 2000 sites.
Although technical options for primary restoration are numerous, it is possible to group them
in four categories:
•
No intervention: Where possible, restoration should seek to assist natural processes to
restore the damage inflicted on habitats or species populations. A non-intervention
approach might be appropriate where sites are particularly sensitive to machinery and
further physical disturbance or are otherwise inaccessible. This can happen, for example,
with oil pollution damage to salt marshes, where the soft nature of the substrate and
sensitivity of the vegetation to oil-dispersing chemicals makes it difficult or impossible to
remove oil from such habitats. The best option in such circumstances is, therefore, to
leave the oil to degrade naturally.
•
Limited level of intervention: In other instances, limited intervention will be appropriate
to restore ecological relationships. This might, for example, involve planting grasses,
trees or shrubs that provide an improved structure to allow for the natural re-colonisation
of other elements of the habitat that have been lost.
•
Full-scale reconstruction: This might include intensive removal of contaminants,
replacement of soils, replanting of habitats and re-introduction of species populations.
Such full-scale restoration projects are uncommon and there is always a danger of trying
to re-create a facsimile of the lost habitat that will be false.
•
Monitoring and surveillance: coupled with all restoration strategies is a need to monitor
habitats and species populations to ensure that restoration targets are met. Techniques for
monitoring will vary from site to site and may include remote sensing from satellite
imagery or air photography through to detailed vegetation and species surveys using
standard ecological monitoring techniques.
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Selection of primary restoration options should be the result of an evaluation process based
on, but not limited to, the following criteria:
•
The cost to carry out the option;
•
The length of time it will it take for the restoration to be effective;
•
The extent to which each option is expected to return the damaged resource to its
baseline;
•
The likelihood of success of each option;
•
The extent to which each option will prevent future damage (flowing from the initial
incident), and avoid collateral damage as a result of implementing the option;
•
The extent to which each option generates benefits for the damaged and/or other natural
resources beyond returning the damaged resource to its baseline; and
•
The effect of each alternative on public health and safety.
If there is more than one primary restoration option that can achieve the restoration target,
and they are equally preferable according to ecological criteria, the option with the least cost
should be chosen. The process of choosing the least cost option is known as costeffectiveness analysis (CEA) and involves the comparison of the present value (discounted)
of the costs of the options, where costs include those for undertaking damage assessment and
implementing restoration (such as cleaning, and species and habitat restoration).
In some cases, the cost of the chosen primary restoration option may be deemed to be
“excessive”. Without a benchmark against which the costs can be compared, it is not possible
to decide whether the costs are indeed excessive or not. This benchmark is the benefits of
primary restoration. The benefits of restoration can be defined as the restored ability of the
damaged resource to provide the services mentioned above (see Section V below for an
overview). The process of measuring and discounting the costs and benefits of an option and
comparing costs and benefits of an action is referred to as the cost-benefit analysis (CBA). If
the option passes the cost-benefit test (i.e. the benefits of the option exceed the costs), then it
should be implemented.
Finally for this step, interim losses refer to the reduction in natural resources and the services
they provide, relative to baseline, which occur from the onset of an incident until complete
recovery of the injured resources. Even where full recovery is possible, interim losses of
natural resources and the services they provide will occur, for the simple reason that recovery
cannot happen instantaneously. Note that interim losses occur over an infinite time period if
primary restoration is not possible, or the damage is irreversible. The objective of
compensatory restoration (Section IV below) is to compensate the public for these interim
losses. Therefore, the identification and quantification of these interim losses, which are
inextricably linked to the primary restoration option chosen, are fundamental to the selection
of compensatory measures.
IV.
Compensatory Restoration Options
This stage of the framework is concerned with the following:
• Setting the objectives for compensatory restoration options;
• Monetary compensation and/or resource compensation;
• Identifying the compensatory options; and
• Selecting the compensatory options.
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Chapter 5 of the main report provides further details on this stage of the framework.
The objective of compensatory restoration is to compensate the public for the loss of
resources and services (interim losses) which are incurred during the recovery period as
defined above. Compensatory restoration may take place at the damaged site or off-site.
Together, primary and compensatory measures aim to fully compensate the public for the
damage incurred. Providing compensation, whether it be in monetary or resource terms,
involves some degree of substitution between resources. Compensatory restoration projects
will, at the very least, involve trade-offs over time, i.e. resources or services are provided in
the future to compensate for resources or services which are lost today. However, other types
of substitutions may well also be involved: in space (projects may take place in a different
geographical location); in the types of services provided (e.g. ecological functions or
recreational opportunities); in the populations who gain services from restoration projects
compared to those who lose from the damage.
Considering that technical options for resource compensation can be numerous, the NRDA
guidance in the USA (NOAA, 1997) develops four classes of technical options for
consideration:
Class I:
Same type, same quality and comparable value;
Class II:
Same type, same or different quality and not of comparable value;
Class III:
Comparable type and quality; and
Class IV: Not of comparable type and quality.
Type, in this context refers to the type of the damaged resources or services. Consideration
should also be given to the capacity of the resource to generate the compensatory services
and the opportunity to provide these services. For example, compensation for the damaged
services of a beach should be by enhancing or creating another beach rather than creating,
say, an inland lake. This is where identifying the population affected by the initial damage is
also crucial.
The most desirable category of compensatory restoration options is class I, while class IV is
not recommended for implementation. A number of different approaches can be used to
design, select and determine the scale compensatory restoration options, which are
discussed below:
•
Service-to-service approach: This approach is only suitable for Class I options, as it
assumes that the public would be willing to accept a one-to-one trade-off between the
services that are lost due to damage and the services that are created through
compensatory restoration. It only seems reasonable to make this assumption if the
replacement resources are of the same type, quality and of comparable value. The
approach requires the identification of the services lost in the interim and then designs the
compensatory restoration option accordingly. Parameters to take into account include the
time when the restoration project begins, the time until the project provides full services,
the productivity of the project through time, the relative productivity of the created or
enhanced resources and services compared to the damaged resources and services, and
the population affected by resource losses compared to the population that gains from
compensatory restoration. The size of the appropriate compensatory option is determined
by equating the present discounted value of services gained from restoration to the
present discounted value of interim losses. If there are more than one option that can
provide the service-to-service match, the one with the least cost should be chosen (CEA).
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•
Value-to-value approach: This approach can be used for scaling of Class II and II
options, i.e. when the assumption of a one-to-one match between lost services and
compensatory services is not necessarily valid. The approach estimates the economic
value of interim losses and the economic value of the services generated by the
compensatory restoration option. The scale of the restoration option is then determined
such that the compensatory services provided are of equal economic value to the interim
losses. This approach requires the use of economic valuation techniques to express the
losses and gains in either resource or monetary terms. If there is more than one option that
can provide the value-to-value match, the one with the least cost should be chosen (CEA).
•
Value-to-cost approach: Within this approach, restoration is scaled by equating the cost
of the restoration plan to the value (in monetary terms) of losses due to the injury. This
approach is only appropriate when the valuation of lost services is practicable, but the
valuation of the replacement natural resources and services cannot be performed within a
reasonable time frame or at a reasonable cost. In general, this approach is only suitable
when damage is relatively minor.
The experience in the USA shows that typically service-to-service approach is implemented
wherever possible, i.e. whenever Class I restoration options are available. When this is not
possible, the damaged and compensatory resources and services are measured and compared
in monetary or resource terms, but it may be possible to implement the value-to-value
approach with a single survey instrument that elicits economic values for both interim losses
and compensatory services at the same time. When this is not possible due to time and
resource restrictions, value-to-cost approach is used.
V.
The Role of Economic Valuation and Cost-Benefit Analysis
The main focus of this study is to discuss the potential role of economic valuation methods
and the potential role of CBA within a liability regime. It is important to note that the two
have related but separate roles. The principles of economic valuation are used to define the
baseline (the resource-service-value link mentioned above) and to estimate the value of the
interim losses, even if a CBA framework is not used for choosing between (primary or
compensatory) restoration options. On the other hand, if CBA is used, economic valuation
methods need to be implemented to estimate the benefits of restoration unless there is a good
justification for using non-monetary expressions of benefits.
The economic valuation techniques include: (i) stated preference techniques which rely on
carefully structured surveys to elicit people’s preferences about natural resources; and (ii)
revealed preference techniques which use data from selected actual markets (in this context
especially recreational behaviour) to extrapolate people’s preferences for natural resources
which are assumed to be reflected in these actual markets. When it is not possible to
implement an original valuation study, estimates from the relevant literature can be borrowed
to use in the context of the damage assessment in hand. This process is referred to as benefits
transfer and is another way to derive monetary expressions of damage to natural resources in
the current context. Finally, if it is not possible to estimate monetary expressions of natural
damage, scoring and weighting techniques can be used.
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The following criteria can be taken into account when deciding whether or not, and if so how,
to use different types of valuation techniques (see Chapter 6 and Annex A for details):
• Likely magnitude of the damage: The more severe the magnitude of the damage to a
natural resource, the more important it is that the valuation of damage is carried out
thoroughly to ensure full compensation. Moreover, in the case of severe damage the
required assessment is likely to be more complex, and it may well be the case that nonuse values are affected. Original studies, in particular stated preference techniques, are
therefore likely to be the most appropriate techniques for use in this context.
• Critical importance of the environmental resource impacted, the significance of the
impact and the type of value to be measured: the more important the resource and the
more significant the impact, the greater the need for as comprehensive an analysis as
possible. For example, if non-use values need to be estimated, the only techniques of
relevance are the stated preference techniques.
• Feasibility of compensatory restoration with resources of the same type, same quality and
of comparable value: the less similar and the more distant the resources identified for
compensatory restoration, the harder it will be to be reasonably sure that restoration really
does provide an appropriate level of compensation without conducting valuation. Where
damage is relatively severe and the resource concerned is unique or of critical importance,
there may be a strong case for a thorough investigation of preferences to provide some
assurance that the scale of restoration is appropriate to provide full compensation. Stated
preference techniques such as contingent valuation or choice modelling are likely to
provide the most accurate information for this purpose.
• Applicability: the purposes for which the valuation techniques are implemented determine
which technique should be chosen. For example, if the purpose is to have ballpark figures
about use values, benefits transfer could be sufficient.
• Time and data available for analysis: availability of data about the physical measure of
environmental impacts is a concern for all valuation techniques. The availability of
economic valuation data is typically not a concern for stated preference techniques which
collect their own data.
• The cost of the valuation exercise depends on the complexity of the damage and
restoration options which affect the data requirements, the complexity of the
questionnaire design, the size of the sample and the complexity of the data analysis.
However, the crucial issue here is not the absolute cost of a valuation exercise but its
incremental cost in terms of additional information it provides and the increased accuracy
and reliability of the results produced at the end of the assessment process.
• Whether the results of a valuation exercise are legally defensible depends on how
strongly a valuation technique is grounded in theory and how well it is implemented in
the particular study of concern. In general, the fewer assumptions required for the
exercise, the more likely the results are to stand up to challenge.
• The fact that the valuation exercise is likely to take place after the incident causing
damage, complex designs would be necessary to account for possible strategic and protest
behaviour of the affected population.
• Differences in the estimates of people’s preferences (WTP and/or WTA) estimates
obtained by different studies have been cause for concern for some. However, in most
cases, such differences are to be expected as they result from different aspects of
economic value being estimated or different populations (such as users versus non-users)
being covered by the studies. Although some of these differences could be symptomatic
of inconsistencies with a study, there are guidelines to ensure that such inconsistencies are
minimised (see, for example, NOAA, 1993 and EFTEC, 2001).
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A similar list of considerations can also be presented for the choice between different levels
of analysis used to choose primary and/or compensatory restoration options (see Annex B for
details):
• The choice between CEA and CBA is largely affected by whether the cost of the
restoration option identified by CEA is deemed to be ‘excessive’. If the cost is not
deemed excessive, then CEA is sufficient. Otherwise, CBA needs to be implemented.
• CEA does not require the measurement of the benefits of restoration so long as the
restoration target is identified and agreed. On the other hand, CBA requires the benefits of
restoration to be expressed in monetary units for direct comparison with the costs of
restoration.
• Acknowledgement and incorporation of risk and uncertainty attached to different
restoration options are necessary regardless of whether CEA or CBA is implemented.
Some ways in which risk and uncertainty can be dealt with are complex and possibly not
feasible given their information requirements. However, others such as sensitivity
analysis have relatively less information requirements but can add significantly to
explaining the uncertainties and hence improve the quality of the resulting decision.
•
The discount rate used for CEA and CBA has been the subject of ongoing debate.
Currently, the European Member States use a range of discount rates, ranging from 3% to
8%, while the European Commission employs a rate of 4%. There is some evidence that
the ‘social rate of discount’ is towards the lower end of this range, while the opportunity
cost of capital is somewhat higher. While choice of the discount rate to be used in
analysis is ultimately a political decision, for consistency in the implementation of the
legislation across the EU it may be desirable to ensure the rate chosen is consistent across
Member States. The effect of the chosen rate on the final results may be tested through
sensitivity analysis.
In short, the choice about different levels of analysis is site and event specific and depends on
factors such as the scale of the damage, importance of the damaged resource, the scale of the
affected population and so on. Such factors affect the desired level of accuracy and
robustness, and information, time and resource requirements. It is not possible at this stage to
make recommendations that would apply to every possible case in the future.
Finally, the level of difficulty with any analysis depends on the analysts. As with any other
interdisciplinary work, assessment of damage, choice of restoration options and assessment
of costs and benefits require experts from different disciplines to be involved in the process.
A minimum requirement would be ecologists, economists and legal professionals.
VI.
Report Structure
This report consists of nine chapters and seven annexes:
Chapter 1 outlines the study background and objectives;
Chapter 2 presents an overview and approach to the relevant issues;
Chapter 3 discusses the steps involved in damage assessment and determination of
significance of damage;
Chapter 4 discusses the design and selection of primary restoration options;
Chapter 5 discusses the design and selection of compensatory restoration options;
Chapter 6 summarises the conclusions and recommendations of the study; and
Chapters 7, 8 and 9 present the case studies of the 1996 Sea Empress oil spill off the coast
of Wales, the 1988 Aznalcóllar mine toxic spillage affecting the Doñana National Park and
the 1989 Exxon Valdez oil spill in Alaska, respectively.
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Annex A outlines the concept of economic value of damage and presents the various
economic valuation techniques;
Annex B provides details about cost-benefit analysis, cost effectiveness, and multi-criteria
analysis, and how they may be used in practice to decide between compensatory options;
Annex C discusses the differences between economic valuation techniques and expectations
of the differences in monetary estimates obtained using different techniques;
Annex D outlines the guidelines for and experience with NRDA in the USA;
Annex E provides copies of the Standard Data Form used for Natura 2000 sites; and
Annex F presents the references used in the report and annexes.
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STUDY BACKGROUND AND OBJECTIVES
BACKGROUND
The European Commission is seeking to establish an environmental liability regime in order
to implement the key environmental principles set out in the EC Treaty and boost the
implementation of EC environmental law. The approach taken, that of ensuring the adequate
restoration of damaged environments, enshrines the basic principle that the polluter should
pay for remedying the damage that he may have caused, providing that (i) the polluter can be
identified, (ii) the damage quantified and (iii) a causal link established. Various options for
developing such a regime were explored in a White Paper2 adopted by the Commission in
February 2000. A number of the key elements of the proposed regime are as follows:
• No retroactivity.
• Damage covered – The regime is intended to apply to “environmental damage” (i.e.
damage to natural resources and damage in the form of contaminated sites) and to
“traditional damage” (i.e. injury to health and damage to property).
• Activities covered – It is proposed to link liability to existing EC environmental
legislation, or EC legislation having an environmental objective among others (such as
the IPPC and the revised Seveso II Directives), thus ensuring better implementation of the
existing legislation and acting as a disincentive for poor environmental management.
• Types of liability – Strict liability is intended to apply to damage caused by inherently
dangerous activities and fault-based liability to damage to natural resources caused by a
non-dangerous activity. In the case of natural resource damage caused by non-dangerous
activities, if the fault of the causer cannot be established, the State may be responsible for
the restoration costs.
• Liable parties – This is intended to be those legally recognised persons controlling the
activities by which the damage is caused.
• Criteria for natural resource damage – This is the key subject of this study. It is proposed
to limit liability for natural resource damage to the Natura 2000 network (i.e. those sites
protected under the Habitats and the Wild Birds Directives3) where there is significant
damage (to be defined in the study) and where restoration can be undertaken at a
reasonable cost (also to be defined in the study). The White Paper allows for alternative
measures to be taken if restoration is not possible. Flexible cost-effective mechanisms for
the valuation of natural resources are required, with ‘benefits transfer’ techniques a
possible candidate for investigation.
• Other relevant aspects – (i) where compensation is paid for environmental damage, there
is to be an obligation to spend the money on restoration; (ii) in cases of environmental
damage, the State should have primary responsibility for acting; (iii) public interest
groups should be entitled to act on a subsidiary basis if the State fails to act, or fails to act
properly; (iv) in urgent cases, public interest groups should be entitled to seek an
injunction against the polluter and carry out preventive measures; and (v) the Commission
intends to clarify whether the proposed regime could apply to areas which are already
covered by international law (such as in the case of liability and compensation for damage
caused by oil spills at sea).
2
White Paper on environmental liability COM (2000) 66, dated 9 February 2000. Directorate General for the
Environment, Legal Affairs Unit (DG Environment B3)
3
EU Directive on the Conservation of Wild Birds (Council Directive 79/409/EEC) and the EU Directive on the
Conservation of Natural Habitats and of Wild Fauna and Flora (Council Directive 92/43/EEC)
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AIMS AND OBJECTIVES
The objectives of the study are to give guidance to the European Commission on:
(i)
how to define ‘significant damage’ to natural resources and a ‘minimum level of
restoration’ in such a directive;
(ii)
how, or to what extent, monetary valuation techniques can be used to estimate the
economic value of biodiversity damage; and
(iii) how, or to what extent, the valuation of damages to natural resources should be
included in a future directive on liability.
The potential role of economic valuation in this context is twofold. First, it may be used to
determine the total value of environmental damage incurred in a given incident, for the
purposes of determining the maximum amount of financial liability of the responsible party.
Second, economic valuation may allow for comparison and evaluation of restoration options.
This allows the environmental benefits of different restoration options to be evaluated in the
same terms as the financial costs, thereby facilitating a decision about whether any restoration
is desirable and, if so, which restoration option is most desirable.
This study aims to assess the applicability and adequacy of economic valuation techniques
for use in these contexts. It also aims to assess the process of ‘benefits transfer’, i.e. using the
results of an existing study to estimate the economic value in a different context.
Valuation of damage for the purposes of application of the liability regime becomes relevant
above a minimum threshold, as only ‘significant’ damage is intended to be covered by the
legislation. This study therefore aims to develop criteria to define significant damage.
Definition of a minimum level of restoration is also a priority. While the White Paper states
that ‘restoration should aim at the return of the natural resource to its state before the damage
occurred’, this may often be impossible, or possible only at extreme cost. Considerations such
as ecosystems functions and presumed future use of the resource will therefore play a role in
this process.
The analysis of the aspects detailed above forms the primary goals of this study, and form the
subject of Chapters 2 to 6. The concepts and issues are illustrated through three case studies,
in Chapters 7 to 9. Throughout, the report aims to highlight and discuss relevant experience
from the USA, in particular with regards to their legislation on liability for and restoration of
damages to natural resources, and the costs associated with the implementation of this
particular aspect of their liability regime.
1.3
SCOPE
The purpose of this study is to provide the European Commission with guidance on how, and
to what extent, valuation methods capable of estimating damage to natural resources could be
included in a future directive on liability. It is proposed in the White Paper that the regime be
linked to existing and future relevant legislation on the protection of the environment. The
methodology used has therefore been designed to reflect the likely scope of such a regime,
such as the confinement to areas already covered under Community legislation to conserve
biodiversity, namely the Wild Birds and Habitats Directives.
Whilst it is recognised that some activities, for example natural resource damage resulting
from the use of genetically modified organisms (GMOs) may need to be covered by the
proposed liability regime, these are not covered in this report. For further information on the
likely scope of the regime, the reader is directed to Chapter 4 of the White Paper.
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OVERVIEW AND APPROACH TO THE ISSUES
At present, liability regimes for damage to nature or natural resources do not exist in the
European Community to any meaningful extent. The aim of this report is to advise on
possible structures of a liability regime that ensures appropriate compensation for any
damage caused, but which avoids disproportionate costs of natural resource restoration. In
particular, this report focuses on the potential role for cost-benefit analysis and economic
valuation in this process.
The ideal outcome of a liability regime would be a solution that provides full compensation to
the public for damages to natural resources, at the least cost to the liable party. In principle,
there are three possible options to provide compensation for damages to natural resources:
(i)
monetary compensation: compensation according to the ‘value of damage’ caused to
natural resources;
(ii)
resource (‘in-kind’) compensation: investment in resource restoration projects, which
could be on-site and/or off-site; and
(iii)
mixture of in-kind compensation (partial restoration) and a monetary payment.
The liability regime covering damage to natural resources could be framed either as an
obligation to pay for the damage incurred in order to compensate injured parties (monetary
compensation), or as an obligation to compensate these parties ‘in kind’ through restoration
and investment in natural resources, both on and off-site (resource compensation). This
distinction is important for the remainder of this report, and some implications and further
concepts are therefore worth explaining in more detail here.
2.1
MONETARY COMPENSATION BASED ON THE VALUE OF DAMAGE
Estimation of the ‘value of damage’ to natural resources for liability purposes can in principle
be made in monetary terms, using economic valuation techniques. This involves identifying
the injured parties who suffer from the damage, and by how much. Injured parties in this
context might include people who ‘use’ the resource directly, for example, for recreational
purposes. They could also include those who use the resource indirectly: for example, a
forest might be used as a source of watershed protection. Finally, and very importantly in
this context, injured parties also include those people who care about the continued existence
of the resource, without actually using it: for example, people who want to preserve a
resource for future generations. Economic techniques may be used to estimate the ‘value’ of
these damages in money terms, as explained in other sections of this report.
The important point to note is that the value of damage, as defined in this sense, is
independent of the costs of cleaning up or restoration after an incident. While the value of
damage is based on public preferences for an environmental state, costs of clean-up and
restoration are based on the technical options available. It is therefore possible that the value
of damage may be greater than or less than the costs of restoration. One objective of the
proposed legislation is to avoid spending on restoration that is disproportionate to the value of
damage: estimating the economic value of damage may therefore be useful in this context.
If liability is defined to be the value of damage caused and monetary compensation is sought,
economic techniques will be needed to estimate this value in monetary terms. Defining
liability as an obligation to provide resource compensation may or may not require the use of
economic valuation techniques as discussed in the next section.
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RESOURCE COMPENSATION
Compensation for damages to natural resources can also, in principle, be provided ‘in-kind’
through restoration of the damaged resource (primary restoration) and other compensatory
restoration projects on- or off-site (compensatory restoration). An important aspect of the
proposed legislation is the intention to use recovered funds for the purpose of restoration
and/or investment in other sites for the conservation of natural resources. If this is how funds
are to be spent – not as direct money compensation – then the problem of ‘compensating the
public’ becomes one of finding the appropriate level, or scale, of restoration action. Liability
in this case would be the cost of the appropriate compensatory restoration action, or actions,
after the scale of action has been determined.
In determining the appropriate scale of restoration actions, there are several issues to
consider. Liability cannot be framed simply in terms of an obligation to pay for restoration of
the damaged resource. This is true for several reasons. First, restoration to original
conditions may or may not be possible, even allowing for time and natural recovery. If it is
not possible, the costs of resource restoration to original conditions would be infinite.
Therefore, some scope for trade-offs between resources must be taken into account with any
in-kind compensation regime. In other words, both on-site and off-site restoration projects
may need to be considered.
Second, even where full restoration on-site is possible, this will not fully compensate the
public for losses due to damage for the simple reason that restoration cannot happen
instantaneously. There will be losses during the recovery period, termed interim losses,
which also need to be considered in the required amount of compensation. The concept of
interim losses also applies where damage is irreparable, the only difference being that, in this
case, the time period over which losses are incurred is infinite. Where compensation is inkind, measures over and above restoration to original conditions on-site must be implemented
to offset these interim losses. Such restoration measures are termed compensatory
restoration. Much of the challenge in designing appropriate in-kind compensation packages
is in the estimation of these interim losses and the identification of relevant compensatory
projects at the appropriate scale. Welfare economic techniques, including monetary valuation
techniques, remain relevant in this process as public preferences for ‘trade-offs’ between
injured and restored resources need to be assessed.
2.3
STRUCTURE OF THE REPORT
The structure of this report follows, as far as possible, the ‘time line’ of actions and decisions
which must be taken after an incident occurs. Possible legal structures and implications and
roles for cost-benefit analysis are discussed throughout. Note that this report does not deal
with remedial actions such as immediate clean-up of contaminants and other emergency
measures take prior to restoration options. Figure 2.1 overleaf outlines the framework for
assessing damage and choosing restoration options. It also refers to the chapters and annexes
of the report that are relevant for parts of the framework. In addition to these chapters and
annexes, the report presents three case studies to illustrate the concepts being presented. The
case studies presented in Chapters 7 to 9, focus on: the 1996 Sea Empress oil spill off the
coast of Wales; the 1988 Aznalcóllar mine toxic spillage affecting the Doñana National Park;
and the 1989 Exxon Valdez oil spill in Alaska. A fourth case study (Blackbird Mine
pollution) is interspersed throughout Chapters 3 to 6. An Annex is also included summarising
the USA experience of the liability system (Annex D.3).
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Figure 2-1: Damage Assessment and Choosing the Restoration Options
●
Damage Assessment
and Significance
●
●
●
●
Primary Restoration
Options
●
(to restore the initial
damage)
●
Compensatory
Restoration Options
●
(to supplement primary
restoration options when
these are not sufficient and
to compensate for interim
losses)
●
●
●
●
●
●
●
Pre-incident resource status
Scale of damage
Impact assessment
'Significance' of damage
See Chapter 3
Setting primary restoration targets
Identification and categorisation of technical options
Selection of restoration options
Estimation of interim losses
Cost-effectiveness and cost-benefit analyses
See Chapter 4, Annex A, Annex B and Annex C
Objectives of compensatory measures
Monetary compensation and the value of damage
Resource compensation measures
Classification and selection of compensatory measures
Assessing the scale of compensatory measures
Cost-effectiveness and cost-benefit analyses
See Chapter 5, Annex A, Annex B and Annex C
Chapter 3 is concerned with assessment of damage due to an incident, and criteria to
establish whether damage is ‘significant’. The status of the resource prior to the incident of
concern is defined in terms of its ecological importance, condition, status, and usage. This is
important in establishing the ‘baseline’ for the analysis as well as identifying what kind of
use and/or non-use values may be attached to the resource.
Assessment of the scale of damage identifies and assesses the damage in terms of its
geographical scale, whether or not it leads to the damage/loss of habitats and/or species and
whether or not it is acute (such as an oil spill accidents) or chronic (such as a long-term
leakage from a hazardous waste facility). Impact assessment is concerned with the
identification and assessment of the ‘impacts’ of damage on the affected habitat and the
species population in terms of its geographical scale, and whether or not the impact is
temporary (reversible) or permanent (irreversible). This is crucial for the identification of the
restoration options as well as measuring the economic value of the impacts. This is followed
by a discussion of relevant criteria for a defining a significance threshold.
Chapter 4 is concerned with primary restoration options, that is, actions which aim to
restore the damaged resource and, if possible, return the resource to baseline (pre-incident)
conditions. This chapter outlines how to construct an inventory of possible restoration
options, and analysis in terms of expected environmental changes and the times at which they
are expected to occur.
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Once an inventory of possible options is complete, selecting a course of action may be done
using various different scientific and/or economic criteria. Possible ways of selecting
primary restoration options, and their advantages and disadvantages are discussed here. This
section will also focus on the categorisation and estimation of restoration costs, including:
the cost of assessing the significance of the damage; the cost of intervention; and the costs of
future monitoring and surveillance against restoration targets.
Different restoration options are likely to have different impacts over time, which will have
implications for the desirability of each option and also for the size of interim losses
associated with any given option. Interim losses are likely to be specific to options for other
reasons (e.g. different chemicals used in the clean-up of an oil spill may lead to
environmental damages themselves, thus affecting interim values). Quantification of interim
losses is discussed here, as this is important for selection of compensatory options (in Chapter
5).
Finally, Chapter 4 addresses the potential role of economic criteria in the selection of
primary restoration options. This includes cost-benefit analysis, cost-effectiveness analysis
and scoring techniques.
Compensatory restoration options are the subject of Chapter 5. This chapter looks in detail
at possible ways of estimating and rectifying damage, through monetary or resource
compensation, and the advantages and disadvantages of the different methods available. The
objectives of compensation are discussed. The chapter is divided into two broad sections.
The first section examines resource compensation options: identification of suitable options,
methods of comparing the magnitude of the benefits of options with the magnitude of interim
losses, estimation of compensatory restoration costs, selection and scaling of compensatory
restoration options. The second section deals with estimating the monetary value of damage,
the methods available, and the uses of these estimates in terms of option selection or
determination of compensation.
Chapter 6, the last of Part A of the Report provides our recommendations and conclusions.
Part B of the report presents three case studies: the Aznalcollar Mine Toxic Waste Spill in
Spain, the MV Sea Empress Oil Spill off the coast of Wales and the MV Exxon Valdez Oil
Spill in Alaska. The case studies follow the structure of the damage assessment and
restoration presented in Figure 2.1.
In addition to the main body of the report, several annexes are dedicated to the discussion of
some technical issues and supplementary material:
• Annex A outlines the concept of economic value of damage in more detail, and presents
the various economic valuation techniques available to estimate this value.
• Annex B provides details about various economic decision-making tools, and how they
may be used in practice to decide between compensatory options. These include costbenefit analysis, cost effectiveness, and multi-criteria analysis.
• Annex C is a technical annex dedicated to a discussion of the differences between
economic valuation techniques and expectations of the differences in monetary values
estimated using different techniques.
• Annex D outlines the experience with Natural Resource Damage Assessment for the
purposes of liability, the techniques used and insights from the experience in the USA
over the past ten years.
• Annex E provides copies of the Standard Data Form for the two European case studies
• Annex F presents the references used in the report and annexes.
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NATURAL RESOURCE DAMAGE ASSESSMENT AND
RESTORATION
This chapter presents the first step of a damage assessment, namely, the assessment of preincident resource status (Section 3.1), and determination of the scale and significance of
damage (Section 3.2). Section 3.3 discusses some issues regarding the application of natural
resource damage assessments in practice.
The case study of the Blackbird Mine Hazardous Waste Site in the USA is used through the
next three chapters to highlight the points raised and guidance provided. Summaries of the
case study are presented in boxes under the relevant section headings but for a full review of
the case study, please see Chapman et al, 1998. This study is available from the NOAA
website (http://www.darp.noaa.gov/).
3.1
PRE-INCIDENT RESOURCE STATUS
The need to restore natural resource damage defined by this project is limited to damage
incurred to sites of European importance to nature conservation. These have been defined by
reference to sites identified by Member States for inclusion in the European network of sites
termed Natura 2000. Selection of Natura 2000 sites is undertaken by Member States in
consultation with the Commission. They contain examples of habitats or populations of
species that meet criteria identified in that appropriate legislation. Although Natura 2000
sites are the ‘jewels’ of nature conservation, the conservation of these most important sites
cannot hope to achieve biodiversity conservation as this will rely upon wider measures and
the protection of other sites at a national level. The application of a liability regime for
natural resource damage to Natura 2000 sites is, therefore, a first step in ensuring the
conservation and protection of the most important centres for natural resources, but is not a
panacea. As a next step Member States may wish to consider how examples of habitats and
species populations that are of European significance but not included in the Natura 2000 site
network should be considered by a liability regime, or if it should be extended to nationally
important sites.
The need to extend the scope of the liability regime can be justified, as there are many
instances where habitats and species populations are listed as being of European Importance
in the Habitats Directive and Birds Directive, but are not included in the Natura 2000
network. This can be illustrated by reference to the oak woodlands in the west of the UK.
Considerable areas of oak woodland occur on the Atlantic western coastline of the UK that
conform to the Annex I habitat ‘old oak woodland with Ilex and Belchnum of the British
Isles’. Only the best examples of this woodland type have been selected for inclusion within
the Natura 2000 network. As a consequence, there are large areas of this internationally
important habitat that are outside of the designated area and, hence, would not be protected
by the liability regime as currently envisaged.
EU Directive on the Conservation of Wild Birds (Council Directive 79/409/EEC)
The Birds Directive (Article 4 onwards) requires Member States to take special conservation
measures to conserve the habitat of two specific groups of birds;
1. Species listed in Annex 1 of the Directive; and
2. Populations of regularly occurring migratory birds.
Member States are required to:
‘classify in particular the most suitable territories in number and size as special protection
areas’ (SPA).
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EU Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora
(Council Directive 92/43/EEC)
This Directive, commonly referred to as the Habitats Directive, is closely related to the Birds
Directive, and aims to harmonise the conservation measures for birds with all other species of
wild fauna and flora and natural habitats.
Article 2 of the Directive states:
‘the aim of this Directive shall be to contribute towards ensuring bio-diversity through the
conservation of natural habitats and of wild fauna and flora within the European territory of
Member States’.
Article 3 of the Directive introduces the concept of a network of special areas of
conservation to be termed Natura 2000. This network is to be composed of sites hosting the
natural habitat types listed in Annex I of the Directive and habitats of species listed in Annex
II that are considered of European Importance.
Article 3 also states that the Natura 2000 network will include special protection areas (SPA)
classified by Member States under the Birds Directive, so harmonising the protection to birds
and other species with that of natural habitats with the intention to:‘enable natural habitats and species habitats concerned to be maintained or, where
appropriate, restored to a favourable conservation status’.
This latter clause is important as it places an obligation on Member States not only to
maintain Natura 2000 sites but also, where appropriate, to restore them to favourable status.
Article 4 introduces the concept of Priority Habitats and Priority Species. These are habitats
or species listed in Annex I or II of the Directive that are especially endangered and
consequently demand special conservation measures, additional to those adopted for other
habitats and species listed on Annex I or II.
Information Provided by Member States Relating to Natura 2000 Sites
Article 4 of the Habitats Directive requires Member States to submit a list of proposed Natura
2000 sites to the European Commission. For each site, Member States must indicate which
natural habitat types in Annex I and which species in Annex II the site hosts. This
information is provided on a Standard Data Form (97/266/EC). In addition to the basic lists
of habitats and species, the Standard Data Form also provides information on:
• the area of habitat within the site and an estimate of the proportion of the national
resource of that habitat the site contains;
• the size of the species population within the site and the proportion of the national
population the site contains; and
• an assessment of the quality of the habitat and species populations concerned in terms of
their conservation of ecological structure and function and restoration possibilities.
The information contained in the Standard Data Form, therefore, provides a minimum level
of ecological data for all Natura 2000 sites within the Community. Examples are provided in
Annex D of this report. In most instances, this will be supported by much more detailed
information at a national level, contained in management plans and other monitoring reports.
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The consistency of information provided in the Standard Data Form is, however, of vital
importance in assessing the significance of an impact on a Natura 2000 site, as:
1
it provides the basis for the establishment of ‘conservation objectives’ for each Natura
2000 site; and
2
it provides a minimum level of information on the relative importance of the habitats
and species populations of European importance that are present, both within the site
and in the national context.
Box 3.1 below describes the Blackbird Mine site and the incident that took place there. The
case study is particularly interesting in the context of this stage of the assessment since there
was little historical data about the damaged resources prior to the incident.
Box 3-1: Blackbird Mine Case Study - Site Description
Blackbird Mine is an inactive mine site located in east-central Idaho. It is situated in the
Panther Creek drainage, a major tributary of the Salmon River, which is a principal sub-basin of
the Snake River, which flows into the Columbia River. The mine is situated between two
drainage basins, Big Deer Creek and Blackbird Creek, both of which flow into Panther Creek.
Big Deer
Creek
Blackbird Mine
Blackbird
Creek
Panther
Creek
Salmon
River
Snake
River
Colombia
River
State of Idaho
The mine site consists of approximately 360 hectares (ha.) of private land, and about 4 000 ha.
of unpatented mine claims held by private corporations on National Forest System lands.
Ninety-nine percent of the Panther Creek basin is National Forest, and less than 1% is privately
owned.
Blackbird Mine Case Study: Incident Description
Mining of cobalt and copper began at the site in the 1890s and continued until the 1960s.
Several studies over the past 25 years document the release of hazardous substances including
cobalt, copper, nickel and zinc, from the mine site, and identify actual or potential sources of
those releases into Panther Creek and its tributaries.
Sources of hazardous substances: include waste rock and tailings piles, the open pit, road fill
containing waste rock, dredge spoils, and the underground mine workings.
Releases of substances: occur through erosion and leaching from waste rock and tailings piles;
discharges from mine openings, and; discharges of contaminated ground water from seeps and
springs.
In 1992, the State of Idaho initiated a Natural Resource Damage Assessment for the Blackbird
Mine, and filed a natural resource damage claim pursuant to CERCLA. Subsequently, the
United States on behalf of NOAA and the USFS joined suit.
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DETERMINING THE SCALE AND ‘SIGNIFICANCE’ OF DAMAGE
Scale of Damage
Assessing the ‘scale’ of damage in a natural resource damage assessment is primarily
concerned with identifying the impacts to resources, and to the services they provide. This
assessment needs to take into account the effect on both ecological services provided by the
resource, and the human-related services. Examples of the former include, for example, geohydrological functions, production/habitat, end ecosystem integrity; examples of the latter
could include recreation, commercial activities, and health-related services. Figure 3.1
provides a summary example of the types of ecological and human services provided by a
wetland.
Figure 3-1: Wetland Ecosystem Services and Sources of Value
Ecological Services
Human Services
Geo-hydrological:
• Floodwater storage and conveyance
• groundwater recharge and discharge
• pollution assimilation
• sediment trapping and control
• nutrient cycling
• shoreline stabilisation
Recreational:
• beach use / swimming
• fishing, boating
• wildlife viewing
• hunting
Production/Habitat:
• fish and shellfish habitats
• habitat for fur-bearers, waterfowl & other wildlife
• food production
• oxygen production
• organic material
• timber production
• pollination
• maintenance of gene pools
• maintenance of plant populations
Commercial / public or private:
• drinking water
• waterway navigation
• hydropower generation
• irrigation / commercial process water
• property protection
• agriculture, timber
• fishing, trapping, fur-bearers
Ecosystem Integrity:
• natural open space
• climate regulation
• biodiversity storehouse
• carbon cycling
• resistance and resilience
Cultural / historical:
• religious / spiritual uses
• cultural uses
• historical
Scientific:
• pharmaceutical (health)
• increase productivity
Health:
• morbidity / mortality reductions due to provision
of clean air, water and food
Non-use value:
• Species, habitats, ecosystems
• Genetic, species diversity and resilience
• Life support: carbon/nutrient cycles.
Preliminary assessment of the scale of damages is a necessary step towards determining
whether damage may be regarded as ‘significant’, and therefore whether a full resource
damage assessment is required.
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Box 3.2 presents the scale of damage in the case of the Blackbird Mine incident.
Box 3-2: Blackbird Mine Case Study - Scale of Damage
The Panther Creek Drainage contains approximately 400 miles of perennial streams and
includes nearly 100 miles of streams suitable for anadramous fish. Highly contaminated
discharge from the mine affects habitat in the lower 25 miles of Panther Creek, and presents a
passage barrier that blocks access to remaining upstream habitat.
Surface water resources downstream of the mine were found to suffer injury from copper and
cobalt releases. The injured resources included surface water, streambed fauna, resident and
anadramous fish, ecosystem services and human services. Damage occurred over a number
of years, while mining activities were taking place and after they ceased. For the purposes of
liability, only those losses occurring after 1980, the year that CERCLA was enacted, were
considered. Damage to the ecosystem was deemed to be reversible, but only through active
intervention: natural recovery would not be sufficient to return ecosystem services to baseline
level.
3.2.2
Significance of Damage
Fundamental to the determination of liability for damage to natural resources is the need to
ascertain the significance of the damage. This is reflected in the White Paper, which states:
‘There should be a minimum threshold for triggering the regime: only significant damage
should be covered. Criteria for this should be derived, in the first place from the
interpretation of this notion in the context of the Habitats Directive.’
Tests of Significance
The significance of impacts is a concept widely used in environmental assessment. For
example, EU Directive 85/337/EEC on environmental assessment states in Article 1 that ‘this
Directive shall apply to the assessment of the environmental effects of those public and
private projects which are likely to have significant effects on the environment’. There has
been much debate as to how to determine when an predicted environmental impact is
considered likely to be ‘significant’. In some instances, existing environmental quality
standards may provide a framework for evaluation of acceptable and unacceptable limits of
polluting substances in air or water. The application of existing standards for determining
significance is, however, not commonly applicable to ecosystem, habitat or species
population impacts, especially as many such standards are determined on the basis of public
health rather than ecological requirements. Other methods of testing significance may be
more subjective and include considerations of:
• the extent and magnitude of the impact;
• the duration of the impact, i.e. whether it is short term or long term;
• whether impacts are reversible or irreversible;
• the sensitivity and rarity of the resources impacted; and
• compatibility with environmental policies.
In some instances it can be helpful to attach scores to these criteria to indicate levels of
significance. Scaling and weighting can be useful in distinguishing between the relative
impacts of alternative development proposals, for example, the effect three different pipeline
routes would have on ecology. Some examples of scoring techniques, including the Hessian
and Andalusian approaches, are presented in Annex B.
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A test of significance can also used to determine the value of a site or region for a particular
population of a species or for its representation of a certain habitat. For example, the
assessment of bird populations is undertaken using the 1% criterion. This assumes that a site
supporting more than 1% of an international population of a bird species is of international
importance for that species. While there is no fundamental biological reason to take 1% of a
population as the threshold level, long experience and evaluation have found this percentage
to be useful in giving an appropriate degree of protection to populations, and in definition of
ecologically sensible sites. The 1% criterion has therefore gained wide acceptance throughout
the world, as well as with the Contracting Parties of the Ramsar Convention on the
Conservation of Wetlands of International Importance.
Tests of significance also run through into the identification of sites as candidates for
inclusion in the EU Natura 2000 network. For example, populations of species listed in
Annex II of the EU Habitats Directive occurring within a candidate Natura 2000 site are
evaluated according to the ratio of the population in the site to that within the national
territory. Populations are graded A – D according to the progressive model as defined in the
Standard Data Form (97/266/EC):
A: 100% ≥ p > 15%
B: 15% ≥ p > 2%
C: 2% ≥ p > 0%
D: non-significant population
where p = the population and the percentage intervals equate to ratio of the population in the
site to that within the national territory.
The concept of ‘significance’ is, therefore, widely used both in assessing environmental
impact and the valuation of a species populations and representation of habitats within a site.
Significance Tests in the Habitats Directive
Article 6 of the Habitats Directive gives guidance on the approach Member States should take
to development proposals affecting a Natura 2000 site. This requires ‘competent national
authorities’ to agree to a plan or project that is likely to have a significant effect upon a
Natura 2000 site only after having ascertained that it will not adversely affect the integrity of
the site concerned. Only in exceptional circumstances can such a plan or project be
implemented following a negative assessment of the effects of a proposal. Assessments
undertaken in this way are termed ‘Appropriate Assessments’ and are becoming an
increasingly important procedure in the development of plans or projects affecting Natura
2000 sites. As with environmental impact assessments, appropriate assessments seek to
predict the impacts of a proposed development (plan or project) on a known natural resource.
This may be a habitat or habitat complex (ecosystem), a population of a certain species or an
assemblage of species. In circumstances where insufficient information is available to
conduct such an assessment, it is a requirement of the proponent of the plan or project to
provide sufficient information to the competent authority to undertake the appropriate
assessment.
Article 6 of the Habitats Directive provides a framework for predicting impacts resulting
from a proposed plan or project. This same framework could be used to assess the
significance of environmental damage, for example following a catastrophic pollution
incident, upon a Natura 2000 site. In this situation there it may not, however, be possible to
gather information on the pre-incident state of the environment. If such an assessment is to
be undertaken it will therefore be necessary to ensure there is a standard level of information
on the size and distribution of species populations and habitats within the Nature 2000 site
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concerned. This can often be obtained from Management Plans developed for the
conservation of individual Natura 2000 sites. However, in the absence of such plans it should
be possible to obtain sufficient information on any Natura 2000 sites within the European
Union by reference to the information each Member State is required to forward to the
European Commission on the Standard Data Form (97/266/EC). A copy of such a form for
the Carmarthen Bay and Estuaries candidate SAC is included in Annex E.
The proposed test to determine if environmental damage is considered significant is,
therefore, based upon an assessment to determine if the damage has had an adverse effect
upon the integrity of the Natura 2000 site concerned. As with assessments made under
Article 6 of the Habitats Directive, it is proposed that the natural resource damage assessment
would be undertaken in light of the site’s nature conservation objectives.
3.2.3
Establishing Conservation Objectives
Recently published guidance from the European Commission (EC, 2000) suggests that
conservation objectives for a Natura 2000 site can be determined by reference to the
information provided on the Standard Data Form (see Annex E). In some instances, Member
States have published such conservation objectives for Natura 2000 sites. In other instances,
it may be necessary to agree these with the national nature conservation agencies prior to
undertaking the assessment.
Information in the Standard Data Form will, however, only identify the habitats and species
populations which need to be assessed. The test of significant damage also needs to relate to
the effects the damage has on the integrity of the site.
Definitions of Natura 2000 Site Integrity
The integrity of a Natura 2000 site has been defined in the UK (UK DoE, 1994) as:
‘The coherence of the site’s ecological structure and function, across its whole area, or the
habitats, complexes of habitats and/or populations of species for which the site is or will be
classified.’
This definition is useful in that it refers to the site’s ecological structure and function and the
need to conserve these across the whole area of the site. This echoes the information on the
structure and function, and extent of habitats and species populations, provided in the
Standard Data Form. It does not, however, provide us with sufficient detail to determine if
this integrity has been adversely affected.
More detailed information on the assessment of site integrity can be provided by reference to
the definitions of favourable conservation status given in Article 1 of the Habitats Directive.
The definitions given in the Directive relate to the status of habitats and species populations
at a national and Community level but can equally be applied to a site. In summary, this
article states that the conservation status of a species population can be considered favourable
if:
• population dynamics data on the species concerned indicate that it is maintaining itself on
a long-term basis as a viable component of its natural habitats;
• the natural range of the species is neither being reduced nor is likely to be reduced for the
foreseeable future; and
• there is, and will probably continue to be, a sufficiently large habitat for the species to
maintain its populations on a long term basis.
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Conservation status of a habitat can equally be considered favourable if:
• its natural range, and the areas it covers within that range, are stable or increasing;
• the species structure and functions which are necessary for its long term maintenance exist
and are likely to continue to exist; and
• the conservation status of its typical species is favourable, as defined above.
These definitions can be used at a site level to enable an assessment to be made of the
significance of the impact from a damaging incident.
Assessing the Significance of Natural Resource Damage
The assessment of significance can be made by following a set of simple steps.
1 Identify habitats and species populations that contribute to a site’s nature conservation
objectives by reference to the Standard Data Form for Natura 2000 sites. Habitats and
species populations that occur in non-significant levels (graded D) will not form part of
the conservation objectives. The standard data form used for the collection of
information under the Habitats directive may be found in Annex E.
2
Identify the impacts to habitats and species populations resulting from the damage
incident. These might include direct or indirect impacts as well as short and long term
impacts. An example of this is the context of the Blackbird Mine case study is given in
Box 3.3.
3
Assess the impacts against the conservation objectives of the site to determine if these
have an adverse affect on the site’s integrity, using the definitions of site integrity given
above. Ecological features of constituent habitats and species populations that contribute
to site integrity can be defined by reference to the definitions of favourable conservation
status given in Article 1 of the Habitats Directive. The most convenient method for
making such an assessment is through the use of a matrix in which impacts are assessed
against the features that define favourable conservation status. A real example of such a
matrix used in an Appropriate Assessment is reproduced in Table 3-1. This example
concerns a mineral extraction and associated waste disposal operation adjacent to a series
of saline lagoons within a candidate SAC (pSCI) on the south coast of England. The
‘conservation objectives’ for the lagoon habitat have been defined by a series of
attributes. These equate to the features that define ‘favourable conservation status’
described above and relate to one of three categories:a) The size or extent of the habitat;
b) The ecological structure of the habitat (in terms of species populations and
dynamics); or
c) The ecological function of the habitat.
A theoretical example using a more objective use of impact assessment is produced in
Table 3-2 (follows Table 3-1). In this example, impacts can be assessed as being Major or
Minor, Short term or Long term, Reversible or Irreversible. They may also be direct or
indirect, and cumulative or non-cumulative. The final significance of the impact is
determined from a consideration of all these elements.
It would be appropriate also to consider if any of the species or habitats affected are
Priority habitats or species as defined by the Habitats Directive.
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Box 3-3: Blackbird Mine Case Study - Impact Assessment
Injury assessment was quantified by comparing the quality and quantity of resources
compared to baseline. In this case, some historical data did exist, but was lacking for many
variables of interest. Baseline conditions were established using both existing historical data
and ‘control areas’, which were unaffected by the discharge but otherwise similar to the
assessment areas or resources. Major impacts to resources included injuries to:
Water quality: Exceedence of federal water quality criteria for both copper and cobalt.
Streambed fauna: Streambed fauna downstream of the Blackbird Mine releases contained
concentrations of arsenic, cobalt and copper up to twice the levels of upstream references
areas. Dramatic reductions in biomass and species composition occurred, indicative of
effects of impacts due to metals exposure. Injury to streambed components resulted in the
loss of food for resident trout, anadramous species and other aquatic animals.
Fish: Fish injury occurred for both resident and anadramous species. Densities of trout
upstream from Blackbird Creek (and mining influences) were found to be 35-50 times higher
than densities immediately below, and seven times higher than densities 20 miles below.
Laboratory studies determined that copper and cobalt are lethal to trout at concentrations less
than those measured in the Panther Creek drainage. Furthermore, most Salmon River basin
streams support populations of the anadramous steelhead, and it is likely that Panther Creek
also had a substantial run that was eliminated due to the release of hazardous substances. The
Snake River basin steelhead was listed as a threatened species under the ESA in 1997.
Releases from the mine also contributed to the decline, and ultimately the elimination, of
chinook salmon runs in Panther Creek. Historically, Panther Creek supported approximately
2,000 spawners annually. Downstream impacts, such as habitat loss, contributed to some of
the decline. However, it was estimated that, in the absence of impaired water quality, Panther
Creek and its tributaries could support runs of 200 adult salmon annually.
Ecosystem services: The loss of chinook salmon in Palmer Creek also represents a loss in
ecosystem services. Most Salmon River basin streams are relatively nutrient-poor, dependent
on the return of salmon and their death after spawning to return nutrients from the ocean into
the headwaters of streams. Salmon carcasses support populations of a variety of mammals
and birds. In addition, as the carcasses decompose, they provide a nutrient base for the
stream, stimulating primary production, promoting growth of aquatic plants,
macroinvertebrates, small fish, etc., and providing energy for the stream to support another
generation of salmon.
Human services: Panther Creek is one of the more accessible streams in the county, and once
provided recreational opportunities including fishing, birding and picnicking. Salmon fishing
was closed in 1957 to preserve the remaining run. Furthermore, Panther Creek is a stream
that has provided subsistence fishing for Native American Tribes. The Native Americans of
the region depended on the fish resource as a food, barter and religious base for their culture.
4 A conclusion as to the impact of the damage on the integrity of the Natura 2000 site can be
made by considering the overall outcome of the matrix. As with assessments made under
Article 6 to predict likely impacts of a proposed plan or project, an assessment of damage
significance using this method will be reliant upon the expertise and impartiality of the
authority undertaking the assessment. Such an assessment will have significant legal
implications and may be open to challenge. It must therefore be robust to external
examination. To provide the necessary level of transparency, clear guidance as to the
structure and content of such an assessment will be required, and each stage in the
assessment process must be documented to provide a clear ‘audit trail’.
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Table 3-1: Impacts on Lagoons of Mineral Extraction Against cSAC Conservation Objectives
Site attributes which contribute
Impact
to favourable condition of SAC
Extent of habitat
Extent of habitat is currently unchanged although predicted
draw-down of ground water may reduce extent of
Pennington and Oxey Lagoons during summer.
Inflow and mix of water from fresh
and saltwater sources
Current and predicted draw-down of saline ground water
levels are likely to reduce saline inputs, resulting in
increased surface water drainage into all three lagoons
(both from dewatering and natural surface water drainage)
with greatest impact upon those nearest to the mineral
workings.
Stability and variation in the extent
of lagoonal wetland (water level
variation)
Water levels are likely to be reduced during the summer
months as reduced ground water levels and minimal
freshwater inputs lead to drying, particularly of Pennington
and Oxey Lagoons.
Salinity variation across the SAC
and within each lagoon
In winter, reduced ground water levels will lead to reduced
salinity in all three lagoons, with lagoons nearest to the
mineral workings being most affected. Reduced lagoon
levels in summer may lead to hypersalinity, particularly in
Pennington and Oxey Lagoon.
Water quality
Unlikely to be impact although as mineral extraction
approaches ‘dilute and disperse’ waste disposal sites,
possibility of contamination of dewatering discharge with
pollutants.
Presence and population levels of
highly specialised or scarce
invertebrate species
Populations of specialised saline lagoon species have
already been lost from Pennington-Keyhaven Lagoon at
least partially as a consequence of mineral working. Other
populations within Pennington and Oxey Lagoons are also
threatened. Populations of aquatic insect species of
brackish water may increase but will not be of equivalent
value as lost species.
Presence and population levels of
highly specialised or scarce plant
species
Populations of scarce plant species within the cSAC, such
as Ruppia cirrhosa, would be threatened by markedly
reduced salinity in Pennington-Keyhaven Lagoon.
Conclusion of Assessment: Given the significant contribution these lagoons make to the
overall nature conservation value of the Solent and Isle of Wight Lagoons cSAC, it is
considered that these impacts constitute an adverse impact to the integrity of the site.
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Table 3-2: Matrix for Assessing Significance of Impacts on Natura 2000 Sites against Conservation Objectives
Its species structure and functions
Conservation
Its natural range and areas it
The conservation status of its
exist and are likely to continue to
Objective
covers is stable or increasing
typical species is favourable
exist
Habitats
(Annex I)
Impact
Nature
Significance
Impact
Nature
Significance
Impact
Nature
Significance
Sand dunes
Adverse
St, R
Minor
Adverse
St, R
Minor
Adverse
St, R
Minor
Marine reefs
Adverse
St, R
Minor
Adverse
St, R
Minor
Adverse
St, R
Minor
Intertidal sandflats
Adverse
St, R
Minor
Adverse
St, R
Minor
Adverse
St, R
Minor
Mudflats
Adverse
Lt, R
Major
Adverse
Lt, R
Major
Adverse
Lt, R
Major
Saline lagoons*
Adverse
Lt, IR
Major
Adverse
Lt, Ir.
Major
Adverse
Lt, Ir.
Major
Species
(Annex II & SPA)
Population is maintaining itself on
a long-term viable basis
Otter
Adverse
St, R
Minor
None
-
-
Adverse
St, R
Minor
Atlantic salmon
Beneficial
St, R
None
None
-
-
None
-
-
Populations of
regularly occurring
migratory birds
Adverse
St, R
Minor
None
-
-
Adverse
St, R
Minor
Natural range of the species is
neither being reduced nor is likely
to be reduced
Sufficiently large habitat remains
to maintain populations on a long
term basis
Key: St = Short term, Lt = Long term, R = Reversible, IR = Irreversible, * = Priority habitats
Definitions of significance used
Minor significance: the impact would have a significant adverse effect on the ecology of the feature, but the level of the effect is such that the resource would be capable of
absorbing this impact.
Major significance: the impact would have a significant adverse effect on the ecology of the feature. Such an impact would present a measurable long term and permanent
threat to the viability of the resource within the Natura 2000 site.
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Weaknesses of the Approach
The method of assessing significance of damage has deliberately avoided heavy reliance on
scoring or ranking of impacts to provide a quasi-objective assessment. Such assessments
may appear to be more scientific and hence defensible but, in practice, ranking or scoring
systems are rarely applicable across a range of different sites or circumstances. Although the
proposed assessment methodology is heavily reliant upon a more subjective approach, this is
clearly founded within a rigorous framework that relates to the ecological integrity of the site
concerned. To this extent the proposed assessment of damage significance the ‘damage
assessment’ is no different from an assessment of a proposed plan or project undertaken as
part of an Environmental Impact Assessment under Directive 85/337/EEC, or an Appropriate
Assessment undertaken in accordance with Article 6 of the Habitats Directive. In all these
instances, the findings of the assessment must be based upon a clear structure and their
conclusions must be sufficiently robust to withstand a legal challenge.
Information Required to Make an Assessment of Damage to Natural Resources
In assessing the impact of a proposed development, it is possible to undertake surveys of
habitats and species populations to determine exactly what areas of habitat are likely to be
affected or what populations of a species using a particular part of a site are likely to be
impacted by a proposed development. In such assessments, the likely impacts on these
features have to be predicted. By contrast, when assessing the impacts of damage to a site,
the impacts are mostly evident, although some long-term or cumulative impacts might not be
immediately obvious. Equally, there is much less scope for surveys of habitat and species
that have been damaged. To assess the damage, there is therefore a need to have good
baseline information on the extent and distribution or population size of habitats and species
for each Natura 2000 site. Such information is invariably incomplete and will vary between
sites, habitats and species concerned. Reference to management plans and other monitoring
and surveillance information may assist in reconstructing the ‘before’ situation. The
information and supporting maps that accompany the Standard Data Form provide at least a
minimum level of consistent information that can be used to form the basis of such an
assessment. There is also likely to be a need to undertake additional field surveys to identify
the former extent of habitat and, where possible, to reconstruct the distribution of habitats and
species populations that have been impacted.
Setting Restoration Targets
The assessment of natural resource damage may conclude that the ecological integrity of the
Natura 2000 site has been adversely affected. Under an environmental liability regime,
targets will need to be set for the restoration of damaged habitats and species populations.
Given that Member States are required to maintain or, where appropriate, restore Natura 2000
sites to favourable conservation status, this must be a fundamental objective for restoration of
the damaged ecosystem. Specific restoration targets, and the methods by which these can be
achieved, will have to be developed for each individual damage incident or event. It is
possible, however, to determine a process by which such targets can be defined.
Article 3 of the Habitats Directive sets an objective for the Natura 2000 network of
maintaining and, where appropriate, restoring habitats and species populations of European
importance to achieve favourable conservation status in their natural range. Decisions on
when to restore habitats and species populations must be based upon an assessment of their
current condition against predetermined targets. In the UK this has been done through the
development of ‘favourable condition’ tables for each habitat and species population within
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each Natura 2000 site. The ‘favourable condition’ used is equivalent to the favourable
conservation status referred to in the Habitats Directive and, hence, there is a direct link
between the concept of favourable condition and site integrity as defined above. The tables
establish attributes of the habitat or species population concerned. These correspond to the
features by which favourable conservation status and site integrity are defined (extent,
ecological structure and function and status of typical species). For each attribute, measures
by which these can be assessed are provided, and specific targets defined. An example of
such a condition table is reproduced in Table 3-2.
It must be emphasised that such condition tables have been developed initially to assess the
condition of Natura 2000 sites under current management to form the basis of monitoring
programmes. In many instances, the result of such monitoring will be a requirement to
change or alter the management of the site to restore favourable conservation status. The
specific targets provided in the ‘favourable condition’ tables are however equally useful in
defining restoration targets for Natura 2000 sites following a damage incident.
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1488-REG/R/03/B
APPLYING NATURAL RESOURCE DAMAGE ASSESSMENT IN PRACTICE
The Habitats Directive and, more specifically, recent practice in its implementation, provide a
useful basis for developing a methodology for assessing the significance of natural resource
damage where it affects a Natura 2000 site. This is an essential pre-requisite towards
determining whether the environmental liability regime will be triggered, making the
perpetrator of the natural resource damage liable to pay for its restoration. A similar process
could be used at the national level to assess damage to other sites, habitats or species
populations of nature conservation value, providing sufficient baseline ecological data is
available to undertake a natural resource damage assessment.
Preliminary Assessment of the Likelihood of Significant Damage
This study focuses on the assessment of significant natural resource damage to Natura 2000
sites. These are sites which have been submitted by Member States to the European
Commission as proposed Sites of Community Importance (pSCI) or sites that have been fully
designated as Special Areas of Conservation (SAC) in accordance with Habitats Directive.
Sites classified by Member States as Special Protection Areas (SPA) under the Wild Birds
Directive are also included within this definition of Natura 2000 sites.
For all sites within the Natura 2000 network, a baseline of ecological information is available
in the Standard Data Form.
Damage to such sites needs to be ‘significant’ before a liability regime is triggered. To
determine if damage is significant an assessment needs to be made, but this will only be
appropriate in certain instances. It would be impractical to undertake such an assessment for
minor damage incidents that affect small parts of a site, or whose impact is likely to be of
short duration. There are, however, instances where small scale damage might be part of a
cumulative process, in which case a threshold needs to be determined when a series of small
scale impacts constitute sufficient damage to require a full damage assessment.
The first stage in considering when to trigger the natural resource damage assessment could
therefore be some consideration of likely significant effect. This will be based on best expert
judgement related to a number of key variables. These might include the following:
• The magnitude of the damage inflicted on the site in terms of the area of habitat or
proportion of a species population impacted;
• The relative importance of the habitat or species population at a site, national and
international levels including reference to priority habitats and species;
• The likely duration of the damage (short or long-term);
• The likely response of the habitat or species population to the damage (is it likely to
recover quickly without significant intervention?); and
• Whether the damage is part of an ongoing process of cumulative damage to the site or a
one-off event.
The consideration of these aspects of likely significance need to be recorded by the State
authorities to demonstrate why a decision to undertake a full natural resource damage
assessment was taken or not.
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Who Would be Most Appropriate to Undertake the Natural Resource Damage Assessment?
Having determined that a full assessment of the damage to natural resources is needed, it may
be reasonable for the appropriate ‘competent authority’ to undertake the assessment. This
would provide a degree of impartiality in the assessment and would mirror arrangements for
making an appropriate assessment of proposed plans and projects required under Article 6 of
the Habitats Directive. The appropriate competent authority may be the state environment
agency or nature conservation department. Funding arrangements will need to be decided, by
which the cost of obtaining the necessary information to make the assessment can be
reclaimed by the competent authority. For instance, this might include the cost of survey to
record the impacts of a damage incident on habitats and species populations of European
importance and the staff time and resources needed to undertake the assessment.
Developing Conservation Objectives for an Assessment of Natural Resource Damage
The assessment of natural resource damage proposed in this regime could be made against
the site’s nature conservation objectives. These can be developed by:
1
reference to the habitats and species populations evaluated as having more than ‘nonsignificant’ presence within the Natura 2000 site;
2
the application of the definitions of favourable conservation status given in Article 1
of the Habitats Directive; and
3
reference to any pre-existing conservation objectives and targets published by national
authorities such as the ‘favourable condition’ tables in the UK.
Information Needed to Undertake a Natural Resource Damage Assessment
When assessing the impact of proposed plans or projects, it is possible to undertake detailed
ecological surveys of a threatened site to determine its value for different habitats and species
populations. An assessment is then made of the likely or potential impact of the
development. In assessing a damage incident, the magnitude of the damage may be more
obviously apparent, for example in terms of length of coastline impacted by and oil spill or
numbers of fish or birds killed. Other impacts may be less easily recorded, for example, sublethal effects of pollutants on species populations. Assessing the importance of such impacts
is, however, dependent upon the availability of pre-existing ecological survey data. Examples
include the spatial distribution of Annex 1 habitats within the damaged area, or the
populations of Annex 1 species using this area for all or part of their life-cycle. If this
information has not been gathered in a systematic way then it will be difficult or impossible
to undertake a sound assessment of the significance of the damage. For an environmental
liability regime to be applicable, it will therefore be imperative that Member States undertake
regular surveillance of the conservation status of the habitats and species populations of
European importance within the Natura 2000 network. Undertaking this level of surveillance
is already a requirement of Article 11 of the Habitats Directive. The creation of a liability
regime further increases the importance of fully implementing this article.
The Process of Making an Assessment of Natural Resource Damage
Prior to undertaking a full assessment of natural resource damage, a competent national
authority should take a view as to the likely significance of the impact. If it is concluded that
the impact is likely to be significant, then a full assessment could be undertaken. This test of
likely significant effect should therefore be seen as a ‘coarse filter’ by which obviously
minimal and insignificant levels of damage are ruled out of the liability regime, unless an
accumulation of small scale damage incidents would satisfy the test of significance.
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If it is concluded that the damage is likely to be significant, a full assessment is triggered. If
the conclusion is that there has been significant damage that requires restoration, this could
have important legal and financial consequences for those responsible for causing the
damage. It will therefore be imperative that such an assessment is seen to be both impartial
and scientifically rigorous in its approach. Consideration will need to be given to
mechanisms by which the impartiality, transparency and scientific integrity of the assessment
can be assured.
The mechanism by which the assessment is made could follow the established structure of an
Environmental Impact Assessment (EIA) as outlined in Directive 85/337/EEC (as amended).
For its application to assessing natural resource damage the assessment could therefore
contain the following elements:
1
A description of the damage incident in terms of the type and extent of damage, the
location of the damage, the area of land or water affected, and the duration of the
damage. As any subsequent liability will fall on the operator of the activity causing the
damage, dates for the commencement and termination of the damage should be given as
precisely as possible. This will assist in determining which of a possible series of
operators will attract liability;
2
A description of the features of the Natura 2000 site or sites impacted upon, with special
emphasis on those features of European importance as defined by Article 2 of the
Habitats Directive; and
3
An assessment of the impact of the damage on the features of European importance
within the affected site, with special reference to the conservation objectives for these
habitats and species populations. In certain circumstances, this assessment might also
include an assessment of cumulative damage to a site where small incremental amounts
of damage of similar nature have been inflicted to a site over a period of time.
The final stage of an EIA is generally to consider measures which might be implemented to
reduce or off-set the impacts of the proposed development. Such mitigation proposals are
clearly not applicable in assessing the impact of natural resource damage. However, this
element of the assessment might be adapted to consider restoration options and methods
needed to restore the Natura 2000 network to favourable conservation status. This is
considered in more detail in Chapter 4.
Conclusions of the Natural Resource Damage Assessment
The conclusion of such an assessment must be to determine if significant damage has been
caused to natural resources in terms of habitats and species populations of European
importance.
Although many impacts may be reversible in the long-term, for example following an oil spill
incident, the short term impacts may be severe. Given the wide public concern for the need
to ensure proper and relatively rapid action to restore damage to ecosystems, it is likely that
even though damage may be reversible in the long-term, the overall impact is likely to be
assessed as being significant.
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4
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PRIMARY RESTORATION OPTIONS
This chapter presents the second step of a damage assessment, namely, the identification of
primary restoration options and how to choose between them. Figure 4.1 below shows a
flow-chart outlining the actions need to be taken within this step of the assessment, and refers
to the sections of this chapter that provide more discussion about each action.
Figure 4-1: Primary Restoration Process Pathways
Identify Primary Restoration Targets
Section 4.1
Identify and Categorise Primary
Restoration Options
Section 4.2
Primary
Restoration IS
Possible
Primary
Restoration IS
NOT Possible
Select Primary Restoration Option
Using Cost-Effectiveness Analysis
Section 4.3
Estimate Interim Losses
Section 4.4
Cost of the
chosen
restoration
option is not
"excessive"
Cost of the
chosen primary
restoration
option is
"excessive"
Assessment of
Primary Restoration
Options Stops Here
Cost-Benefit
Analysis
Section 4.5
Identify Compensatory Restoration
Options
Chapter 5
Only necessary if restoration targets are not mandatory
and / or there is an opportunity for cost discussions
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4.1
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SETTING PRIMARY RESTORATION TARGETS
The assessment of natural resource damage may conclude that the ecological integrity of the
Natura 2000 site has been adversely affected. Under an environmental liability regime,
targets will need to be set for the restoration of damaged habitats and species populations.
Given that Member States are required to maintain or, where appropriate, restore Natura 2000
sites to favourable conservation status, restoration of the damaged habitat or species
population must be the fundamental objective for restoration of the damaged ecosystem. This
is termed primary restoration. However, in some instances it will not be possible to restore
the damaged habitat. For example, some habitats such as ancient woodland have evolved
over many thousands of years and have developed a complex relationship between soil types,
hydrology, micro-climate and other environmental variables, and the distribution of plant and
animals species. It is technically impossible to recreate such a complex habitat once it has
been destroyed. Specific restoration targets and the methods by which these can be achieved
will have to be developed for each individual damage incident or event. It is possible,
however, to determine a process by which such targets can be defined.
Article 3 of the Habitats Directive sets an objective for the Natura 2000 network of
maintaining and where appropriate restoring habitats and species populations of European
importance to achieve favourable conservation status in their natural range. Decisions on
when to restore habitats and species populations must be based upon an assessment of their
current condition made against predetermined targets. In the UK this has been done through
the development of ‘favourable condition’ tables for each habitat and species population
within each Natura 2000 site. The term ‘favourable condition’ used in this example is
equivalent to ‘favourable conservation status’ referred to in the Habitats Directive and hence
there is a direct link between the concept of favourable condition and site integrity as defined
above.
The favourable condition tables establish attributes of the habitat or species population
concerned. These correspond to the features by which favourable conservation status and site
integrity are defined (extent, ecological structure and function and status of typical species).
For each attribute, measures by which these can be assessed are provided and specific targets
defined. An example of such a condition table is reproduced in Table 4-1 overleaf.
It must be emphasised that such condition tables should be developed initially to assess the
condition of Natura 2000 sites under current management to form the basis of monitoring
programmes. These should be prepared for all Natura 2000 sites by Member States as part of
their monitoring and surveillance requirements under the Habitats Directive. In many
instances, the result of such monitoring will be a requirement to change or alter the
management of the site to restore favourable conservation status. The specific targets
provided in the ‘favourable condition’ tables are however equally useful in defining
restoration targets for Natura 2000 sites following a damage incident. See Box 4-1 for an
example using targets taken from the condition table in Table 3-2. Box 4.2 presents a
summary of the primary restoration objectives for the Blackbird Mine case.
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Table 4-1: Condition Table for Tilio Acerion Ravine Woodland in the UK
(NVC W8, W9 part, Annex I habitat)
Attributes
Measures
Targets
Comments
1. Area
Extent/location of
stands
•
•
•
•
2. Natural
processes and
structural
development
Age/size class
variation within
and between
stands; presence
of open space and
old trees; dead
wood lying on the
ground; standing
dead trees
•
•
•
•
•
•
3.
Regeneration
potential
Successful
establishment of
young stems in
gaps or on the
edge of a stand
•
•
•
•
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No loss of ancient semi-natural stands
At least current area of recent seminatural stands maintained, although their
location may alter.
At least the area of ancient woodland
retained.
At least the current level of structural
diversity maintained.
Understorey (2-5m) present over at least
20% of total stand area (except in
parkland).
Ground flora present over at least 50% of
area
Canopy cover present over 30-90 % of
stand area (except in parkland stands).
Age class structure appropriate to the site,
its history and management.
A minimum of 3 fallen lying trees >20
cm diameter per ha and 4 trees per ha
allowed to die standing.
Signs of seedlings growing through to
saplings to young trees at sufficient
density to maintain canopy density over a
10 yr period (or equivalent regrowth from
coppice stumps).
No more than 20% of areas regenerated
by planting.
All planting material of locally native
stock
No planting in sites where it has not
occurred in the last 15 years.
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Stand loss due to natural processes e.g. in minimum intervention stands may be
acceptable.
Stand destruction may occur if the understorey and ground flora are irretrievably
damaged even if the canopy remains intact.
Loss = 0.5 ha or 0.5% of the stand area, whichever is the smaller.
20% canopy cover is conventionally taken as the lower limit for an area to be
considered as woodland.
Area and location of stands may be assessed remotely or by site visit.
Any changes leading to exceedance of these limits due to natural processes are likely
to be acceptable.
There is generally a good structural variety in these stands although veteran trees may
be under-represented because of past treatment and the unstable nature of some sites.
The ground flora may appear sparse in places late in the season where colonies of
Allium have died back. Its composition may be variable ( see attribute 5).
In coppiced stands a lower canopy cover (of standards) can be accepted, as will also
be the case in parkland.
See JNCC guidance note for the sorts of age structure likely to be appropriate for
different types of management regime.
Assess this attribute by field survey.
A proportion of gaps at any one time may develop into permanent open space; equally
some current permanent open space/glades may in time regenerate to closed canopy.
Regeneration may often occur on the edges of woods rather then in gaps within it.
The density of regeneration considered sufficient is clearly less in parkland sites than
in high forest; in coppice most of the regeneration will be as stump regrowth. See
JNCC Guidance Note on likely desirable levels of regeneration.
The minimum level of regeneration to be acceptable from a nature conservation
viewpoint is likely to be much less than that needed where wood production is also an
objective.
Assess this attribute by walking through the wood in spring/summer.
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Attributes
Measures
4.
Composition
Cover of native
versus non-native
species (all
layers)
Death,
destruction or
replacement of
native woodland
species through
effects of nonnative fauna or
external unnatural
factors
5. Species,
habitats,
structures
characteristic
of the site.
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Ground flora type
Distinctive and
desirable
elements for a
given site e.g..
lime, locally
uncommon
species such as
Convallaria
majalis; veteran
trees or rich
lichen,
invertebrate
assemblages.
Patches of
associated
habitats and
transitions e.g. to
alder wood, yew
groves, speciesrich grassland
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Targets
Comments
•
•
•
•
At least the current level of site-native
species maintained.
At least 90% of cover in any one layer of
site-native or acceptable naturalised
species.
Death, destruction or replacement of
native woodland species through effects
of introduced fauna or other external
unnatural factors not more than 10% by
number or area in a five year period.
•
•
•
•
•
•
•
80% of ground flora cover referable to
relevant NVC community (usually W8,
W9)
Distinctive elements maintained at
current levels and in current locations
(where appropriate).
•
•
•
•
In sites where there might be uncertainty as to what counts as site-native or as an
acceptable naturalised species this must be made clear (e.g. the position of sycamore).
Where cover in any one layer is less than 100% then the 90% target applies to the
area actually covered by that layer.
Factors leading to the death or replacement of woodland species could include
pollution, including eutrophication from adjacent farmland; new diseases (Dutch elm
disease where it has not already struck).
Damage to species by non-native species that does not lead to their death or
replacement by non woodland species (e.g. damage from squirrels to trees that nonthe -less survive) is not necessarily unacceptable in nature conservation terms.
Excessive browsing/grazing by even native ungulates may be considered an unnatural
external factor where it leads to undesirable shifts in the composition/structure of the
stand, although this may be picked up by attributes 2 or 5 anyway.
Assess this attribute by a walk through the site.
Changes leading to these targets not being met may be acceptable where this is due to
natural processes.
Distinctive elements and patches should be marked on maps for ease of checking in
the field wherever possible.
If there are species groups/assemblages that cannot be assessed directly on a general
site visit then surrogate features should be given where possible, e.g. dead wood
concentrations for associated invertebrates.
Patches and transitions maintained in
extent and where appropriate location.
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Box 4-1: Theoretical example of setting primary restoration objectives following damage to
Tilio Acerion Ravine woodland in the UK
Incident: Lorry carrying toxic chemicals crashes on mountain road, causing damage to 6ha of Tilio
Acerion Ravine woodland on steep slopes below the road.
Damage: Many trees and shrubs physically damaged by impact with lorry. Large area of woodland
soil saturated in toxic chemicals, destroying woodland ground flora and associated fauna. Major
disruption to woodland structure through loss of canopy. Potentially long term impact to woodland
soils due to contamination with toxic chemicals.
Primary Restoration Targets:
•
Restore structural diversity to woodland. Targets to include:
i. Maintenance of at least the current level of structural diversity;
ii. Canopy cover presence over 30-90 % of stand area, understorey (2-5m) presence over at
least 20% of total stand area; and
iii. Signs of seedlings growing through to saplings to young trees at sufficient density to
maintain canopy density over a 10 yr period (or equivalent regrowth from coppice stumps).
•
Restore chemical and physical properties of woodland soils. Targets to include:
•
i. 80% of ground flora cover referable to relevant NVC community (usually W8, W9);
ii. Maintenance of distinctive elements at current levels and in current locations; and
iii. Maintenance of patches and transitions in extent and, where appropriate, location.
Prevent invasion with in-appropriate plant species and soil erosion. Targets to include:
i. Maintenance of at least the current level of site-native species; and
ii. At least 90% of cover in any one layer of site-native or acceptable naturalised species.
Box 4-2: Blackbird Mine Case Study - Primary Restoration Objectives
The objective of primary restoration is to restore injured resources to their baseline levels. In this
case it was determined that primary restoration of Panther Creek would be possible, in other words,
with the implementation of appropriate restoration activities the damage would be reversible.
However, restoration would only be possible over a lengthy time scale.
The trustees selected naturally spawning chinook salmon as the metric for measuring restoration
success. This was on the assumption of a high degree of correlation between salmon vitality and
overall ecosystem health, so that as the salmon population is restored, other resources would be
restored as well. In fact, other resources would recover on their own shortly after water quality
restoration, while salmon would not.
Primary restoration options were identified in order to achieve two objectives:
•
restoration of water quality: This was the first requirement for restoration, and was necessary
before any biological restoration could take place; and
•
restoration of chinook salmon populations: Following restoration of water quality, options
aimed at restoring chinook salmon populations to baseline levels could be implemented.
Restoration of water quality is classified as a clean-up activity, and therefore not included in the
primary restoration options, but as a pre-requisite to primary restoration. The EPA is overseeing
clean-up at the site, and remedial action is expected to restore water quality by the year 2005.
Selection of primary restoration options therefore focused on measures to restore salmon
populations, to be implemented after this time.
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IDENTIFICATION AND CATEGORISATION OF TECHNICAL OPTIONS
FOR PRIMARY RESTORATION
Should the assessment of damage to natural resources conclude that the impact has been
significant, the first priority is to seek to achieve primary restoration i.e. restoration of the
damaged habitat.
Decisions must be made regarding the method used to restore the
ecological integrity of the Natura 2000 site. Specific targets and methods employed will vary
depending on the nature of the habitats and species populations affected, the nature of the
damage inflicted upon them and the technical options available for restoration. It will
therefore be necessary to design a restoration programme for each significant damage
incident. Although the restoration programme must be tailor-made, it is possible to define a
range of options that might be applicable.
Where possible, restoration should seek to assist natural processes to restore the damage
inflicted to habitats or species populations. At one extreme, this might lead to a decision to
leave the damaged habitats completely alone to allow natural processes to restore the damage.
This non-intervention approach might be appropriate where sites are particularly sensitive to
machinery and further physical disturbance or are otherwise inaccessible. Attempts to cleanup and restore such habitats might therefore result in greater damage than if they had been
left alone. This can happen, for example, with oil pollution damage to saltmarshes where the
soft nature of the substrate and sensitivity of the vegetation to oil-dispersing chemicals makes
it difficult or impossible to remove oil from such habitats. The best option in such
circumstances is, therefore, to leave the oil to degrade naturally. However, due to the often
anoxic conditions found within a short distance from the surface of such soft sediment coastal
habitats, oil can remain trapped within the substrate for a very long time and can become
environmentally ‘active’ again following erosion or other disturbance. In other instances, for
example damage to woodland or forest areas, physical damage resulting in the loss of tree
and shrub cover might also be best left to recover naturally. Woodlands are often adapted to
such periodic catastrophic events and will restore themselves through natural regeneration if
left alone. There are many examples of damaged woodlands being further damaged by misguided restoration projects that have resulted in soil compaction and introduction of
inappropriate species and genetic types.
In other instances, a limited level of intervention will be appropriate to restore ecological
relationships. This might involve, for example, the planting of grasses, trees or shrubs that
provide an improved structure to allow for the natural re-colonisation of other elements of the
habitat that have been lost. The restoration intervention in these circumstances will be the
minimum needed to allow natural processes to restore the ecosystem. The planting is
therefore intended to provide an ecological framework within which natural process can
operate. This might be appropriate, for example, in the restoration of damage to coastal sand
dunes, where some level of ecological stability is required to prevent wind-erosion to the
dunes, which might best be provided by planting of marram grass Ammophila arenaria.
In some cases, a much more interventionist strategy will be required where ecological
function has been so disrupted that full-scale reconstruction is needed. This might include
intensive removal of contaminants, replacement of soils, replanting of habitats and reintroduction of species populations. Such full-scale restoration projects are uncommon and
there is always a danger of trying to re-create a facsimile of the lost habitat that will always
be false. Despite this, there are certain habitats that lend themselves to this approach more
than others. For example, damaged river sections can often be fully restored by
reconstructing the correct mix of profile, water quality and flow regime. Other relatively
simple habitats can also be fully restored, for example reed bed habitats formed by monospecific stands of species such as common reed Phragmites communis.
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In all the above scenarios it will be vital to develop and implement a properly planned and
resourced monitoring and surveillance strategy to ensure restoration targets are met.
The various options for restoration are summarised in Table 4-2 below:
Table 4-2: Options for Primary Restoration of Natural resource Damage
Non-intervention
•
Do nothing and leave
natural process to restore
habitat and species
populations
Limited-intervention
•
Habitat management to
encourage natural process
to restore habitat (e.g.
limited planting, control
invasive species, remove
contaminants, nutrient
stripping from soil or
water)
Full-intervention
•
Full clean up
•
Habitat recreation (e.g.
full planting, soil
restoration/ replacement,
reintroduction of species)
Monitoring and surveillance
4.3
CATEGORISATION AND SELECTION OF RESTORATION OPTIONS
The likely effect on restoration strategies of the attribution of liability to the person or
persons responsible for significant natural resource damage must be borne in mind in
determining the appropriate strategy. For example, the legal systems of some Member States
include the principle that loss should be minimised. Accordingly competent authorities may
have to bear in mind that they may have to justify the strategy pursued on economic as well
as ecological grounds. There will also be a justifiable wish on the part of the party or parties
causing the damage to have their liability quantified definitively at as early a date as possible.
Periods of post-restoration monitoring, giving rise to additional ‘long tail’ costs, may meet
resistance.
Measures of nature conservation value
In deciding upon restoration options, it is worth considering the fundamental aspects of a site
that are considered important to nature and natural resource conservation. One method of
evaluating sites, including habitats and species populations, was developed in the UK by
Derek Ratcliffe (1977) in a Nature Conservation Review. This provided an initial assessment
and identification of all the most important wildlife sites in the UK. The criteria used for the
selection of these was based upon a set of 10 criteria listed in Box 4.3. These ‘Ratcliffe’
criteria have subsequently been adopted by a wide range of organisations and used in a
number of applications, including management planning and site evaluation. When
considering restoration options it is important to take account of these fundamental aspects of
nature conservation evaluation. These are touched upon in greater detail in the following
review of restoration options.
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Box 4-3: Ratcliffe Criteria for Nature Conservation Evaluation
1. Size: In general, larger sites are more highly valued than smaller ones, all else being
equal. Amongst aspects of size to be considered are the relative size of the site compared
with sites of similar type, the extent of individual components of the site, and whether the
site is of sufficient size that small changes within will not lead to the loss of the site's
value.
2. Diversity: One of the most important site attributes is variety in numbers of both
communities and species, which are usually closely related, and in turn depend largely on
a diversity of habitat.
3. Naturalness: Ecosystems least modified by man tend to be rated more highly. However,
the vast majority of sites of conservation value have been influenced by man's activities
to some extent. The degree and nature of this influence should be noted.
4. Rarity: Rarity is concerned with communities and habitats as well as individual species.
The presence of one or more rare components on a site, gives it higher value than another
comparable site with no rarities.
5. Fragility: This reflects the degree of sensitivity of habitats, communities and species to
environmental change. Fragile sites often represent ecosystems which are highly
fragmented, dwindling or difficult to re-create.
6. Typicalness: The typical and commonplace within a field of ecological variation are also
of value.
7. Recorded history: The existence of a scientific record of long-standing adds
considerably to the value of a site. Note should also be made of recorded land-use
practices.
8. Position in an ecological unit: In the event of two sites representing a certain formation
being of equivalent intrinsic value, the close proximity of one site to a highly rated
example of another type increases the value of that site.
9. Potential value: Certain sites could, through appropriate management or even natural
change, eventually develop a nature conservation interest substantially greater than that
existing at present. Note may also be made of those factors which would limit such
potential being achieved.
10. Intrinsic appeal: While science may view all creatures as equal, pragmatism dictates that
in nature conservation it is realistic to give more weight to the more popular appeal of
some species or groups than others.
4.3.1
Categorisation of Restoration Options
Full Intervention
Full restoration intervention of a badly damaged site is likely to be highly expensive. The
resultant habitat may never fully recover although much of its ecological function can be
restored. Conservation of genetic diversity is considered fundamental to natural resource
conservation. As many Natura 2000 sites support habitats and ecosystems that have evolved
over many thousands of years, the genetic integrity of these sites is of vital importance.
Where full intervention is needed, great care will be needed therefore to conserve the genetic
integrity of the damaged site. This might require the development of specific plant and
animal propagation projects in preparation for re-introduction.
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Damage to a habitat can also create temporary new habitats that might be exploited by
species that are of high nature conservation value in their own right. For instance, where
forest cover is damage as a result of ‘acid rain’ the resultant forest clearings may be colonised
by birds associated with such clearings such as the black grouse Tetrao tetrix, a species listed
on Annex I of the EU Birds Directive. Restoration of former forest cover might restore the
habitat to a pre-damage state but would result in the loss of the black grouse habitat. In other
cases, the cessation of hunting or fishing activity post-damage may also allow species
populations to recover. In such circumstances, it will be important to restore the habitat to
pre-damage condition even if this means some loss of populations that have taken advantage
of the damage or management intervention following the damage.
The cost of full intervention options will need to include:
• cost of undertaking the damage assessment and preparing restoration and monitoring
strategy;
• cleaning: the cost of cleaning in full intervention options can be considerable, for example
removal of oil from contaminated beaches. The ecological advantage of cleaning will
vary immensely between sites, but a full cleaning option might be appropriate on coast
sediment shores composed of sand or shingle, where habitats are adapted to a high degree
of habitat mobility and are liable to re-establish rapidly after cleaning. On soft sediment
coasts, including mudflats and saltmarshes, cleaning is both more difficult and can lead to
reduced levels of natural restoration;
• costs of species population restoration: this might include captive breeding and reintroduction programmes or simply appropriate habitat restoration, such as creation of
woodland glade micro-habitats for woodland butterflies or re-introduction of appropriate
stock grazing to create specific grassland sward height and structure;
• habitat restoration: this may require propagation of appropriate trees, shrubs, grasses and
other plants from locally derived genetic stock, growth of these plants in a suitable
nursery environment and replanting. This may need to be combined with appropriate soil
restoration, restoration of hydrology and water quality and, in certain circumstances, may
require the re-formation of geomorphological features, such as riverine structures
(meanders, pools); and
• cost of implementing the monitoring and surveillance strategy.
Limited Intervention
Limited intervention is probably the preferable option following most damage incidents. It
relies on providing sufficient ecological amelioration to enable natural processes to restore
the damaged habitat or species population. As with full intervention, it will be important to
ensure the genetic integrity of the site is maintained when resorting to planting or reintroduction of species and might therefore require the development of specific propagation
or breeding programmes. Also in common with the full intervention option, there may be
some species that benefit from the damaged ecosystem that will decline in population size or
distribution following restoration. Decisions on restoration techniques should however focus
on restoring the overall ecosystem balance to pre-damage levels even if this disadvantages to
opportunist species. Costs involved will need to be calculated along similar lines to those for
full intervention but are likely to be smaller in magnitude.
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This option may be cheaper, but this is not the reason why such a limited intervention is
preferable to a full intervention option. The most ecologically sustainable and valuable
habitats and species populations are often those that have a high degree of naturalness (see
Box 4-3). By allowing natural processes to restore a habitat around the basic framework
provided by limited intervention, the resultant habitat or ecosystem (complex of habitats) will
be of greater nature conservation value than one that has simply a facsimile of the original.
Taking the limited intervention option will probably take a longer time to achieve restoration
and hence there will be greater interim losses. This would increase the necessary scale of
compensatory restoration options.
Cost items for limited intervention are likely to be similar to those for full intervention.
However, the magnitude of the costs involved is likely to be much reduced. For example,
there is unlikely to be a need to undertake captive breeding programmes for species
restoration and the amount of plant propagation needed will also be much reduced or even
absent. Cleaning costs may, however, be as significant or even more significant than in total
restoration, as in this option the objective is to restore the physical structure of the damaged
habitat to allow natural processes to restore the biological diversity. Clean-up and some
physical habitat manipulation may, therefore, be all that is required, but this will need to be
done to a very high standard. The time needed for natural processes to restore a habitat
following limited intervention will, however, be much greater and hence interim losses will
increase. Despite this, limited intervention options have ecological advantages over full
intervention in that the final habitat will be far more natural and hence of higher nature
conservation value.
Non Intervention
Non-intervention is unlikely to be politically acceptable in some instances, as there will be a
need to show that some action is being undertaken to restore damage to a site. Despite this it
may be that non-intervention is the best long-term restoration option, especially where sites
are inaccessible or fragile. Non-intervention costs are likely to be the least expensive but will
include:
•
•
cost of undertaking damage assessment and preparing a restoration / monitoring strategy;
and
cost of implementing the monitoring and surveillance strategy.
Although the cost items may be limited, the length of post damage monitoring and
surveillance may be longer than in other options and hence more expensive. The rate at
which such habitats recover is also likely to be slow and, hence, interim losses and the scale
of compensatory habitat restoration may be greater.
The nature conservation value of habitats that have recovered through natural processes is
likely to be higher since planting or importation genetic material, soil or other material can be
avoided.
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Monitoring and Surveillance
Coupled with all restoration strategies is a need to ensure that habitats and species
populations are properly monitored to ensure restoration targets are being met. This will
form a fundamental feature of any restoration plan or strategy following a damage incident.
Techniques for monitoring will vary from site to site, and may include remote sensing from
satellite imagery or air photography through to detailed vegetation and species surveys using
standard ecological monitoring techniques. Such monitoring strategies need to be of
sufficient duration to ensure restoration targets are achieved. There may, however, be
justifiable resistance (from the damaging party) to monitoring that is not well targeted at the
dmamged habitats and species populations of European importance. Monitoring techniques
must also be cost effective. A balance will need to be reached between the value of the
information obtained and the cost of obtaining it.
To achieve the necessary level of monitoring it is likely that some agreed ecological
monitoring protocol will need to be developed. This could provide a structured framework
within which monitoring objectives can be defined, methods of monitoring agreed and
systems for storage and retrieval can be developed – including the need for database design
and data ownership.
4.3.2
Selection of Restoration Options
The cost of achieving primary restoration will obviously vary immensely depending upon the
magnitude of the damage, the complexity of restoration and the restoration option adopted.
There are however some fundamental costs that will be common to each of the restoration
options.
To summarise, the selection of primary restoration options should be the result of an
evaluation process based on, but not limited to, the following criteria:
• The cost to carry out the option as detailed above for different types of restoration
options;
• The extent to which each option is expected to return the damaged resource to its
baseline;
• The likelihood of success of each option;
• The extent to which each option will prevent future damage (flowing from the initial
incident), and avoid collateral damage as a result of implementing the option;
• The extent to which each option benefits more than one natural resource and/or service;
and
• The effect of each alternative on public health and safety.
These criteria are based on the current experience with damage assessment in Europe and the
relevant discussions in the USA Oil Pollution Act of 1990 (Part 990 - Natural Resource
Damage Assessments) but are also typical of standard project appraisal guidance. It is not
possible to have a general rule that says one criterion is more or less important than another,
since this is likely to depend on the type and scale of damage and the resource and the
relative performance of restoration options against the restoration target.
Some combination of the above criteria can be sufficient to select the preferred primary
restoration option. If the selection procedure concludes that there is more than one option that
meets the restoration target, and that the options are similar in terms of other selection
criteria, the final decision could be based on the cost of the option, i.e. selecting the most
cost-effective alternative.
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The relevant economic appraisal technique for choosing the best primary restoration option at
this stage is cost-effectiveness analysis (CEA). CEA can be used for two purposes: (1)
minimising the cost of primary restoration and (2) maximising the benefit of primary
restoration. The first purpose implies that the target for primary restoration is predetermined
and that there is more than one option available to achieve this target. In this case, the option
that achieves the restoration target at the least cost is the best option according to CEA. The
second purpose implies that the budget for primary restoration is predetermined and that
different options achieve different levels of restoration. In this case, the option that achieves
the greatest scale of restoration for the given budget is the best option according to CEA.
Formally, the two purposes serve the same economic principle: whether the restoration target
is the constraint or whether, instead, the constraint is the restoration budget, we are to
combine the different options so as to get the most for our money, or spending the least to
achieve the restoration target.
In the context of natural resource damage, however, the first purpose of using CEA
(minimising the costs) seems to be the most relevant since the restoration target is usually
predetermined based on ecological requirements.
Further details on how to implement CEA are provided in Annex B. Here it suffices to
outline the process. The costs of each such restoration option are estimated over time and the
discounted costs are aggregated. The restoration option that achieves the restoration target at
the lowest cost is chosen.
As Figure 4.1 shows, the assessment of primary restoration options stops here unless the costs
are deemed to be "excessive". If this is the case, further analysis is required, which is
discussed in Section 4.5. Note that the USA legislation for damage assessment makes
meeting the primary restoration target a legal obligation, and hence does not allow a
discussion of the excessiveness of costs. Such discussion is possible for compensatory
restoration only (see Chapter 5). However, depending on the structure of a liability regime,
this procedure may be applicable to primary restoration options as well. Therefore, it is
discussed in this report for completeness.
Box 4.4 overleaf summarises the selection of primary restoration options for the Blackbird
Mine case.
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Box 4-4: Blackbird Mine Case Study - Selection of Primary Restoration Projects
Restoration options aimed at restoring chinook salmon populations fall into two categories:
re-introduction of naturally spawning salmon into Panther Creek; and smolt survival
activities to increase the survival rate of smolts (young salmon) within the creek. The two
activities are interrelated: either action (or set of actions) would not be as successful
performed independently of the other. In other words, in-stream work to improve smolt
survival increases the effectiveness of the hatchery, and vice versa. In-stream smolt survival
activities alone would not be expected to restore baseline until 2150, due to the small stray
rate of salmon into Panther Creek. Salmon, by instinct, return to the stream where they were
reared to spawn. Salmon re-introduction alone could restore populations to their baseline
levels, but not within any reasonable time frame, and not as cost-effectively as when
combined with smolt survival activities. Thus, it was decided to combine actions from both
categories, on both cost-effectiveness grounds, and the expected size of interim losses from
implementation of one activity in isolation. Restoration actions selected were as follows:
1. Salmon re-introduction: Artificial propagation strategies were selected over natural reintroduction strategies in order to achieve a return to baseline within an acceptable time
frame. The plan to restore naturally spawning salmon included:
• trapping adults from selected donor drainage systems: for the first few years, natural
migrating adults from a selected donor drainage would be trapped;
• an expansion of an existing hatchery: trapped adults would be transported to a hatchery
for spawning, egg incubation, hatching and rearing to the pre-smolt life stage;
• construction of acclimation ponds on Panther Creek: pre-smolts would be transported to
the Panther Creek system and places in the acclimation pond for grow-out and smolting.
Adult salmon are expected to return to Panther Creek 2 to 3 years after smolts are
released; and
• construction of an adult fish trap on Panther Creek: after 2-3 years, half of the returning
adult fish would be trapped in the Panther Creek fish weir and transported to the hatchery
for spawning, egg incubation, hatching and rearing. The remaining half would be
allowed to migrate upstream to spawn naturally.
• The process of trapping and transporting 50% of the adults would continue until the
number of returning adults reaches baseline conditions, which is projected to occur in
2021.
2. Smolt survival activities: This category of restoration entailed increasing the number of
healthy smolts leaving Panther Creek. Final measures included:
• channel meander reconstruction: to increase available spawning and rearing habitat by
decreasing channel gradients and velocities, and increasing the length of the channel;
• riparian corridor fencing: to restore stream bank stability, riparian vegetation and fish
habitat in areas that are affected by livestock grazing; and
• construction of off-channel rearing habitat: these are designed to protect juveniles and
may be screened to keep out larger fish.
These measures represented those judged most biologically beneficial and cost-effective for
restoration.
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4.4
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ESTIMATION OF INTERIM LOSSES
Interim losses refer to the reduction in resources and the services they provide, relative to
baseline levels, which occur from the onset of an incident until complete recovery of the
injured resources. Note that if primary restoration is not possible, interim losses occur over an
infinite time period.
The magnitude of interim losses experienced depends on the primary restoration option
selected, and the time required for recovery to take place. Further discussion about interim
losses and restoration actions that need to be taken to compensate for them (compensatory
restoration) can be found in Chapter 5 and Annex D.
4.5
ROLE OF COST-BENEFIT ANALYSIS
The use of CBA is discussed here in the context of primary restoration options. However, it
should be noted that it is equally relevant to the selection of compensatory restoration
options.
In some cases, the cost of the chosen primary restoration option may be deemed to be
“excessive”. Without a benchmark against which the costs can be compared, it is not possible
to decide whether the costs are indeed excessive or not. This benchmark is the benefits of
primary restoration.
The comparison of costs and benefits of a primary restoration option is referred to as costbenefit analysis (CBA). CBA is a framework for measuring and discounting the costs and
benefits of an option and comparing the two. Strictly, if the (discounted) benefits of the
option are equal to or greater than its (discounted) costs, the option should be implemented.
The opposite is also valid: if the (discounted) costs of the option exceed its (discounted)
benefits, the option should not be implemented4. Explicit cost-benefit analysis is not
necessarily a requirement in project selection. However, it should be noted that in choosing
to proceed with a given restoration option, one is making the implicit assumption that the
benefits of restoration exceed or equal the costs. For further details on how to undertake a
CBA, see Annex B. However, CBA is only one input to the decision-making process. There
may be other considerations, such as social or political imperatives that result in an option
being implemented even if the conclusion from CBA is to the contrary, or vice versa.
But what are the benefits of primary restoration? In short, the benefits are the restored ability
of the damaged resource to provide the services that benefit the public. These services could
be related to the way the resource was used, such as sale in actual markets (e.g. commercial
fisheries), recreation (e.g. angling), or for ecological services (e.g. watershed protection of a
forest). The services that are related to the uses of the resource are said to generate use
values. These ‘uses’ can be on-site as well as off-site (e.g. angling can take place in a wetland
but also downstream in a river which is regulated by the wetland). The services could also
come about independent of the way the resource was used, if used at all, since there could be
people who do not use the resource but who nevertheless would benefit from knowing that it
is restored. Such services that are not related to the uses of the resource are said to generate
non-use values. Further discussion on these values, how to identify them is presented in
Annex A.
4
In the language of the economics, the comparison of discounted benefits and costs generate, net discounted
benefits or what is referred to as the Net Present Value (NPV). If benefits are equal to costs, NPV is zero. If the
benefits are greater than costs, NPV is positive. And, if costs are greater than benefits, NPV is negative.
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The fact that CBA compares costs and benefits requires both to be expressed in the same unit.
Since costs are already expressed in monetary units, benefits must also be expressed in
monetary terms. If there is suitable existing economic valuation literature, benefits transfer5
can be implemented to express natural resource damage (or benefit of restoration) in
monetary units. Although the applicability of benefits transfer is likely to be limited to cases
of minor damage and interim losses, it is practical and useful in providing ‘ball park’ figures
depending on the availability of literature. In the absence of literature suitable for benefits
transfer, an original valuation study may need to be implemented. The choice of possible
methods is between revealed preference or stated preference techniques. The former can only
estimate use values and relies on data about consumer behaviour in actual markets. The latter
can estimate both use and non-use values through analysis of data generated by carefullystructured surveys. As Annex A points out, it may not always be possible to express benefits
in monetary units, in which case scoring systems like the ones referred to in Section 4.3
above can be used (see Annex B). Annex B also discusses ways to implement CBA when
some benefits are expressed in monetary units and others in non-monetary units.
5
Benefits transfer is the process of borrowing monetary valuation results from existing studies and using them
for the valuation exercise in hand. Some adjustments to the original estimates may be required but not always
applied.
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5
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COMPENSATORY RESTORATION OPTIONS
This chapter presents the third step of a damage assessment, namely, the selection of
compensatory measures. Figure 5.1 overleaf shows a flow-chart outlining the actions need to
be taken within this step of the assessment and refers to the sections of this chapter that
provide more discussion about each action.
5.1
IDENTIFY THE OBJECTIVES OF COMPENSATORY MEASURES
The objective of compensatory measures is to compensate the public for interim losses,
which are incurred during the recovery period. These losses occur for the simple reason that
even if full restoration of resources on-site is possible, restoration cannot happen
instantaneously. The concept of interim losses also applies where damage is irreparable, the
only difference being that in this case the time period over which losses are incurred is
infinite.
Figure 5.2 illustrates the concepts of damage and interim losses. Each graph in the figure
plots the value of resource losses or gains on the vertical axis, and time on the horizontal axis.
The baseline value of the resource is given by the horizontal line in each figure.
Panel 1 illustrates the case where full recovery of the resource is possible, and primary
restoration options are available to accelerate recovery to the baseline. By contrast, Panel 2
illustrates the case where full recovery is not possible, but primary restoration options are
available to encourage recovery of the resource to a level above natural recovery. In each
case, the total damage is given by the present value of areas A plus B in the relevant panel.
In the case where primary restoration takes place to accelerate recovery, interim losses are
given by area A. If, by contrast, primary restoration measures are not implemented, then
interim losses are equal to the total value of damage, i.e. the sum of areas A plus B.
The value of compensation must ideally equal the value of these interim losses. Area C in
Panel 3 illustrates the magnitude of gains from a compensatory resource option. The
magnitude, or scale, of compensatory actions should be such that area C is equal to the sum
of areas A+B if no primary restoration takes place, or area A if primary restoration does take
place.
In order to determine the magnitude of compensation that must take place, these interim
losses must be estimated in terms of resource services or money. The benefits of
compensation, whether compensation is made in monetary or resource terms, should be equal
to the magnitude of interim losses. The following sections discuss resource and monetary
compensation, and estimation of trade-offs between resources lost and resources or monies
gained in compensation.
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Figure 5-1: Choosing Compensatory Restoration Options
Estimate Interim Losses
Section 4.4
Identify Compensatory Restoration
Objectives
Section 5.1
Resource
Compensation
Section 5.2
Monetary
Compensation
Section 5.3
Select and Scale
Restoration Option
Mixed Resource
and Monetary
Compensation
Sections 5.2 & 5.3
Estimate the Value
of Damage
Cost of Chosen
Compensatory
Option is not
"Excessive"
Cost of Chosen
Compensatory
Option is
"Excessive"
Assessment of
Compensatory
Restoration Options
Stops Here
Cost-Benefit
Analysis
Section 4.5
Only necessary if restoration targets are not mandatory and / or
there is an opportunity for cost discussions
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Figure 5-2: Damage, Interim Losses and Restoration Options
value of resource
Panel 1: Primary restoration option where full recovery is possible
A
B
time
value of resource
Panel 2: Primary restoration option where full recovery is not possible
A
B
time
value of resource
Panel 3: Compensatory restoration option
C
time
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5.2
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RESOURCE COMPENSATION
If the money gained from liability is to be spent on restoration, then gains from restoration
should ideally be equal to losses from injury. The challenge in providing compensation ‘in
kind’ through restoration projects is therefore to identify projects which fully compensate for
lost resources and services.
Providing compensation, whether it be in monetary or resource terms, involves some degree
of substitution between resources. Compensatory restoration projects will, at the very least,
involve trade-offs over time, i.e. resources are provided in the future to compensate for
resources which are lost today. However, other types of substitutions may well also be
involved: in space (projects may take place in a different geographical location); in the types
of services provided (e.g. ecological functions or recreational opportunities); in the
populations who gain services from restoration projects compared to those who lose from the
damage. In practice it may be desirable to try to minimise these trade-offs, and to provide
services which closely match those which were lost, wherever possible. This has the
advantage of ensuring that those people who suffer from the damage to resources also gain
from restoration projects, thereby minimising political and distributional issues. However, it
also reduces the difficulties of estimating the trade-offs, and ensuring that the scale of
restoration is appropriate.
The natural resource damage assessment process in the USA has a pronounced emphasis on
providing compensation ‘in kind’ through compensatory resource restoration projects, and on
minimising the sorts of trade-offs outlined above as much as possible (NOAA, 1997). This
section is based largely on the US guidance for selection of compensatory restoration
projects.
5.2.1
Identifying Compensatory Restoration Projects
Incident-specific restoration targets may be developed by identifying the key characteristics
and quality attributes of the natural resources and services lost due to the incident. This
information is generated in the damage assessment process. Providing compensation for
these lost resources and services is the prime consideration in identifying suitable restoration
projects. The projects may take place on-site or off-site, depending on the opportunities
available and site-specific considerations. Other factors which may be considered include:
• the cost of the option;
• the extent to which each option is expected to compensate for interim losses;
• the likelihood of success of each option;
• the extent to which each option will prevent future injury as a result of the incident, and
avoid collateral injury as a result of implementing the option;
• the extent to which each option benefits more than one natural resource and/or service;
and
• the effect of each option on public health and safety.
Longer term compensatory projects might involve more complex restoration of habitats and
species populations of European importance (listed on appropriate annexes of Habitats and
Birds Directives) but which have not been selected for inclusion within the Natura 2000
network. This should be considered the least favourable option in most circumstances, as
restoration of such habitat should be undertaken in any event and not be dependent upon the
need to compensate for the loss of the original site.
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5.2.2
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Classifying and Selecting Compensatory Restoration Projects
Once suitable, feasible restoration projects are identified, the next step in the restoration
process is project classification and selection. Classification of compensatory restoration
projects involves an assessment of whether they provide services comparable to those lost
due to the injury, in order to minimise the trade-offs incurred. This assessment should
consider whether restoration options provide resources and services of the same type and
quality and of comparable value to the services lost due to the injury. The classification
criteria are useful in determining which restoration options are most suitable for
implementation.
The USA NRDA process classifies projects into four possible classes. Starting with the most
desirable category, they are:
Class I: Same type, same quality and comparable value;
Class II: Same type, same or different quality and not of comparable value;
Class III: Comparable type and quality; and
Class IV: Not of comparable type and quality.
The aim of the classification process is to evaluate how well the damaged natural resources
and services match the replacement natural resources and services on key characteristics and
quality attributes. Even when a proposed action provides the same type of natural resources
and services, a variety of substitutions (in time, space, species, etc) may be unavoidable. The
result will be differences – in quality, economic value, and in populations who experience the
service losses and those who experience the gains provided by the restoration options.
Considerations in making these judgements include:
Types of resources and services: This involves making a judgement about the comparability
of resources or services lost and restored. Both ecological services (e.g. hydrological, habitat,
nutrient cycling, primary and secondary productivity) and human services (such as recreation,
commercial opportunities, cultural/historic use and non-use services) should be considered.
In determining whether resources and services are of the same type, consideration should be
given not only to the site capacity to provide these resources, but also whether the
opportunity to provide the same type of services exists. For example, will the action increase
economic value by either increasing the quantity of uses (services) or enhancing the quality
(or reducing the cost of access) of current uses?
If this is the case, then resources may be classified as of the same type. Where restoration
would not provide services of the same type but, for example, complementary to services,
they might be considered of comparable type. An example might be restoration options to
expand the range of recreational activities available at the damaged site.
Quality of resources and services: Comparison of the quality of resources and services
provided by a restoration option may be done by direct comparison of each attribute or
service. However, in practice, it may be more practical to select a metric, or an index of
metrics, to quantify services. For example, salmon populations may reflect the health of many
other aspects of an ecosystem. If the metric selected is judged to adequately reflect quality
differences, and restoration can be conducted such that quality of resources and services are
the same, then this can be used in the scaling process (see Section 5.2.3) to determine the
necessary amount of restoration which must take place. If, however, the metric does not fully
reflect the quality of resources at the sites, it may be possible to adjust it to reflect
differences. For example, economic valuation methods may be used to calculate an
adjustment factor to capture the greater relative value of the different services provided.
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Value of resources and services: One final consideration, for resources/services of the same
type and quality, is whether they are of comparable value. This involves an assessment of
two potential causes for non-comparable values: differences in the aggregate supply or
demand conditions. Evaluating the possible differences requires the judgement of the
competent public authority, because the restored services and the future aggregate supply and
demand conditions are not observable when compensatory restoration actions are being
classified. The smaller the damage and restoration action(s), the less likely it is that the
change in aggregate supply of natural resources is significant, and consequently the less
likely that the value of the last available unit of natural resources and services will change.
Classification of projects is useful in ranking restoration options in order of desirability, i.e.
potential to provide appropriate compensation. Projects of Class I are the most desirable, and
should be considered first, followed by Class II and III. Re-consideration of options may be
desirable if no options of Classes I-III are available. If several options of one class are
available, then cost criteria may be used to select the most desirable project. A discussion of
cost-effectiveness is given in Section 4.3, with more details provided in Annex B.
5.2.3
Scaling Restoration Options
The classification of projects as Class I to IV above is useful in prioritising options in terms
of which might be best-suited to providing compensating services of the same type and to the
same populations who incurred losses due to damage. ‘Scaling’ of restoration projects
simply refers to the determination of the appropriate ‘size’ of restoration activities. The
present value of benefits gained through restoration should be equal to the present value of
losses due to damage.
This process involves welfare economic considerations, and may or may not involve the use
of economic valuation techniques. If restoration projects of Class I are available, then it may
be reasonable to assume that the public is willing to accept a one-to-one trade-off between a
unit of lost services and a unit of services provided by the relevant restoration project.
Scaling may then be implemented useing the ‘service-to-service’ approach, i.e. determining
the size of the appropriate restoration actions such that the present discounted value of
services gained from restoration is equal to the present discounted value of interim service
losses. Note that this approach is only justifiable for restoration projects of Class I. If no
Class I projects are available, then the service-to-service approach may not be used for
scaling. Box 5.1 overleaf gives an example of scaling in the context of the Blackbird Mine
case study.
Where no restoration projects of Class I are available, then more serious consideration of the
trade-offs between the value of services gained versus the value of services lost is merited.
This may be the case where, for example, damage is significant, or where the environmental
resource impacted is of critical importance. The less similar and the more distant the
resources identified for compensatory restoration, the harder it will be to be reasonably sure
that restoration really does provide an appropriate level of compensation without conducting
valuation. Economic valuation techniques may be very useful for assessing acceptable tradeoffs in this context. These techniques may be used to quantify the trade-offs, using either
money or resource trade-offs as a metric, to determine the appropriate scale of restoration
actions. Details on the full range of techniques available, including their advantages and
disadvantages, are given in Annexes A and C.
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One final approach is the value-to-cost approach, where the restoration actions are scaled by
equating the cost of restoration to the value (in monetary terms) of losses due to the injury.
This approach is used in the USA where valuation is possible, but would impose
unreasonable time or cost requirements. This may occur, for example, where literature values
from previous research are available to value lost services but are not available to value the
gains from restoration actions. Where damages and the scale of restoration required are
relatively minor, this may be a reasonable approach, as it minimises estimation and
assessment costs.
Further information, and practical experience in the USA with the use of these techniques is
given in Annex D. The choice between the three different scaling approaches depends on,
among other considerations, the magnitude of the likely damage to the resource, the critical
importance of the resource impacted, and the range of restoration projects available. Where
damage is relatively severe, then there is a strong case for a thorough investigation of
preferences through implementation of either the service-to-service or value-to-value
approach. If the resource concerned is of unique or critical importance, or if it is not possible
to identify compensatory restoration projects of the same type, quality and value, then the
assumptions required to implement the service-to-service approach are not valid. In this case,
preferences for trade-offs between damaged and replacement resources may only be
conducted through the use of the value-to-value approach.
Other practical considerations, such as the time and cost of implementing each of these
approaches, are discussed in Chapter 6.
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Box 5-1: Blackbird Mine Case Study - Identifying Compensatory Restoration Projects
When identifying possible compensatory restoration projects, in the USA guidelines require
trustees to first consider restoration actions that would provide services of the same type and
quality, and of comparable value, to those lost. Compensatory restoration projects may be
implemented either on- or off-site.
While the trustees preferred restoration within the Panther Creek drainage system as a closer
replacement to the lost resources and services, a lack of available land limited the options
available. Full compensation for interim losses through resource restoration options therefore
required the trustees to consider projects outside the drainage system. Off-site options were
available to enhance the productivity of Panther Creek beyond the baseline level of services,
to accelerate the rate of recovery to baseline, and to increase salmon populations in the rest of
the basin system.
The trustees determined that such restoration projects would provide the same type of
resources and services as those lost. The occurrence of salmon captures the level of service
restoration since the conditions necessary for salmon vitality (good water quality, adequate
migration, spawning and rearing habitat) are also necessary to support steelhead, resident
fishes, streambed fauna and other services lost in the Panther Creek drainage. Therefore,
spawning chinook salmon was identified as an appropriate metric to scale compensatory
restoration projects.
The trustees also identified differences in the quality of services provided by the injury and
replacement resources. Qualitative research was undertaken, to gain information on the
public’s preferences for wild relative to hatchery chinook salmon. The participants preferred
wild salmon to hatchery reared salmon, given the viability and genetic diversity of wild
stocks. However, faced with a reduction in wild stocks, participants considered a run
restoration scenario of the type proposed by the trustees, using a hatchery-assisted
programme to rear wild donor stocks from an adjacent drainage, to be a close substitute to
wild stocks. As a result, the trustees determined the salmon to be restored by the selected
restoration methods and wild salmon to be of comparable value.
Given comparability in type, quality and value of the lost and replacement resources, the
proposed off-site compensatory restoration project was classified as a ‘Class I’ action. In this
case use of the ‘service-to-service’ approach for scaling compensatory actions may be
justified.
Measuring Interim Losses / Scaling Restoration Projects
The appropriate mix and scale of restoration actions was estimated through a salmon life
cycle model that projects adult returns and smolt outward migrations in Panther Creek as a
function of the restoration actions (R2 Resource Consultants, 1995). The model tracks adult
returns to baseline and the cumulative losses from 1980 in order to estimate interim losses. A
discount factor of 3% was applied to the calculation of interim losses and restoration gains.
The trustees identified the most feasible and cost-effective restoration actions to return the
salmon population to baseline and to equate the present discounted value of restored salmon
with the present discounted value of salmon lost due to the injury. Figure 5-3 overleaf
illustrates the scaling concept based on the final settlement between trustees and the
responsible parties.
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Figure 5-3: Primary and Compensatory Restoration Scaling Components of Panther Creek
250
Baseline
2151
2141
2131
2121
2111
2101
2091
2081
2021
2011
2001
1991
1981
0
2071
50
Natural Level of Services
2061
100
2051
Interim
Loss
2041
150
Compensatory Restoration
Primary Restoration
200
2031
Adult Chinook Salmon
300
Year
The metric for injured resources and services is the number of adult chinook salmon returning to
spawn annually. Baseline is the level of salmon population given the current downstream
impediments and current on-site conditions but for the discharge. It is assumed to be constant
and equal to 200 adult spawners. Prior to the restoration, the level of services is zero. Services
begin to recover with the biological restoration activities, and the life cycle model predicts the
recovery trajectory. Initiation of salmon recovery and return to baseline are expected to occur in
2005 and 2021 respectively.
With restoration targeted for Panther Creek, compensatory actions were designed to enhance the
productivity of the site beyond the baseline level of services. These compensatory actions were
also intended to accelerate the rate of recovery to baseline. Thus, the compensatory services
begin to accumulate in 2021, the same time as baseline is restored.
The major components of the final salmon restoration plan included:
• restoration of chinook salmon through rearing the progeny of a suitable donor stock in an
existing Idaho hatchery for release into Panther Creek;
• construction of a fish barrier/trap and acclimation ponds to capture returning adults and to
imprint juveniles;
• creation of 2 acres of off-channel habitat in Panther Creek to improve juvenile rearing
conditions (100 year project life);
• realignment of 1.2 miles of Panther Creek that has been channelised and straightened to
conform to its natural meander pattern; and construction of riparian corridor fencing to
exclude livestock (50 year project life);
• fencing 2 miles of private land along Panther Creek to exclude livestock and allow
regeneration of riparian habitat, improving spawning and rearing conditions for anadramous
salmonids (50 year project life);
• fencing 8 miles of private lands along other Salmon River basin tributaries to exclude
livestock and allow regeneration of riparian habitat, improving spawning and rearing
conditions for anadramous salmonids.
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5.2.4
1488-REG/R/03/B
Implications for Monetary Value of Liability
Once appropriate restoration actions have been selected and scaled, liability for compensatory
restoration is simply the cost of implementing these actions, plus the cost of the assessment
process. This should be added to the cost of primary restoration and assessment, and any
other relevant items (such as fines) which may be included in the regime.
Box 5-2 below presents the outcome of the settlement in the case of the Blackbird Mine.
Box 5-2: Blackbird Mine Case Study - Outcome of the Settlement
The Consent Decree requires the responsible parties to remediate the mine site and water
quality in accordance with the clean-up programme to be selected by the EPA, and to
implement a Biological Restoration and Compensation Plan (BRCP). The BRCP is designed
to restore, enhance and create anadramous salmonid habitat on site-impacted and out-of-basin
streams; fund trustee supervision of the BRCP implementation, and; make cash payments for
trustees’ past damage assessment and response costs.
Under the terms of the settlement, the responsible party agreed to carry out the salmon
restoration plan with trustee oversight. Implementation will proceed over a period of years,
with measures in Panther Creek timed to coincide with water quality remediation, which is
expected in 2005. It is estimated that the total cost will be $9 million, excluding damage
assessment costs.
5.3
MONETARY COMPENSATION
Estimation of the ‘value of damage’ to natural resources for liability purposes can, in
principle, be done in money terms, using economic valuation techniques. This process
involves the estimation of trade-offs between resources lost and resources gained, however in
this case money is the metric used for both measurement and compensation.
An important point to note is that the value of damage, in monetary terms, is independent of
the costs of cleaning up and restoration after an incident. While the value of damage is
based on public preferences for an environmental state, costs of clean-up and restoration are
based on the technical options available. It is therefore possible that the value of damage may
be greater or less than the costs of restoration. The term ‘value of damage’ here refers to the
monetary value which would be estimated using economic valuation techniques (‘value-tovalue’ techniques mentioned in Section 5.2). These are further elaborated in Annex A and
Annex C.
If the liable party has the option of either paying the monetary amount of damage or
providing restoration in kind, as outlined in Section 5.2, then the restoration costs will be the
upper bound on the value of liability: if the value of damage exceeds primary and
compensatory restoration costs, then the polluter can opt to implement restoration.
In this same context, where restoration costs are considered ‘excessive’ compared to the
expected benefits, estimating the economic value of damages and benefits or of restoration
may be useful. This applies equally to primary and compensatory restoration options. This is
important, since one objective of the proposed legislation is to avoid spending on restoration
that is disproportionate to the value of damage. Assessment of the costs and benefits of
restoration options, as outlined in Section 4.5 and detailed in Annex B, may be used in this
case.
Details on the full range of economic valuation techniques available, including their
advantages and disadvantages, are given in Annexes A and C.
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6
1488-REG/R/03/B
CONCLUSIONS AND RECOMMENDATIONS
The framework recommended in Part A of this report has seven main steps:
1. Assessment of pre-incident resource status (physical quantities of the resource, its
services, what use is made of these services and by whom);
2. Assessment of damage (determining the damage and its significance and scaling of
damage);
3. Design of primary restoration options (based on the assumption that primary restoration is
undertaken to help the damaged resource return to its pre-incident status)
4. Selection of primary restoration option initially using cost-effectiveness analysis (or the
least cost analysis). Since the USA guidance leaves no room for negotiation about the
target of the primary restoration, cost-effectiveness is the only analysis used for the
selection of primary restoration options. However, in order to explore all possible options
for the design of a liability scheme in Europe, we also need to consider situations in
which primary restoration costs are found to be ‘excessive’. If this is the case, costs need
to be compared with the benefits of restoration, where benefits are defined as the avoided
damages. This is where cost-benefit analysis and economic valuation techniques can be
used.
5. Estimation of interim losses that occur during the time period between the initial incident
and the recovery to pre-incident resource status (or baseline). Note that if the damage is
irreversible, the interim losses occur over an infinite time period. Just as with the preincident resource status – but possibly to a more detailed extent – interim losses should be
estimated not only in terms of the quantity and type of resource damaged, but also in
terms of what kind of services these resources were providing and to whom. The
experience in the USA shows that this component requires the most economic input, in
terms of estimating the interim losses in monetary terms.
6. Design of compensatory restoration options in order to compensate for interim losses
taking into account the quantity and type of the damaged resource and the services it
provides.
7. Selection of the compensatory restoration option in the same way as that for primary
restoration option: first by applying cost-effectiveness analysis (if interim losses are not
estimated in monetary terms), and if costs are deemed excessive, by applying cost-benefit
analysis.
The case studies presented in Part B of this report serve to highlight these steps as much as
possible, given the background information available about them. The distinction is made in
each case study between what action, restoration and compensation was actually made and
that which could be made if the liability regime detailed in this report had been implemented
instead.
The main focus of this study is to discuss the potential role of economic valuation methods
and the potential role of CBA within a liability regime. It is important to note that the two
have related but separate roles. The principles of economic valuation are used to define the
baseline (the resource-service-value link mentioned above) and to estimate the value of the
interim losses, even if a CBA framework is not used for choosing between (primary or
compensatory) restoration options. On the other hand, if CBA is used, economic valuation
methods need to be implemented to estimate the benefits of restoration unless there is a good
justification for using non-monetary expressions of benefits.
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The economic valuation techniques include: (i) stated preference techniques which rely on
carefully structured surveys to elicit people’s preferences about natural resources; and (ii)
revealed preference techniques which use data from selected actual markets (in this context
especially recreational behaviour) to extrapolate people’s preferences for natural resources
which are assumed to be reflected in these actual markets. When it is not possible to
implement an original valuation study, estimates from the relevant literature can be borrowed
to use in the context of the damage assessment in hand. This process is referred to as benefits
transfer and is another way to derive monetary expressions of damage to natural resources in
the current context. Finally, if it is not possible to estimate monetary expressions of natural
damage, scoring and weighting techniques can be used.
The following criteria can be taken into account when deciding whether or not, and if so how,
to use different types of valuation techniques, i.e. revealed preference, stated preference,
benefits transfer and scoring/weighting techniques (see Annex A for further details):
• Likely magnitude of the damage: The more severe the magnitude of the damage to a
natural resource, the more important it is that the valuation of damage is carried out
thoroughly to ensure full compensation. Moreover, in the case of severe damage the
required assessment is likely to be more complex, and it may well be the case that nonuse values are affected. Original studies, in particular stated preference techniques, are
therefore likely to be the most appropriate techniques for use in this context.
•
•
•
•
•
Critical importance of the environmental resource impacted, the significance of the
impact and the type of value to be measured: the more important the resource and the
more significant the impact, the greater the need for as comprehensive an analysis as
possible. For example, if non-use values need to be estimated, the only techniques of
relevance are the stated preference techniques.
Feasibility of compensatory restoration with resources of the same type, same quality and
of comparable value: The less similar and the more distant the resources identified for
compensatory restoration, the harder it will be to be reasonably sure that restoration really
does provide an appropriate level of compensation without conducting valuation. Where
damage is relatively severe and the resource concerned is unique or of critical importance,
there may be a strong case for a thorough investigation of preferences to provide some
assurance that the scale of restoration is appropriate to provide full compensation. Stated
preference techniques such as contingent valuation or choice modelling are likely to
provide the most accurate information for this purpose.
Applicability: the purposes for which the above options are implemented for determine
which option should be chosen.
Time and data available for analysis: availability of data about the physical measure of
environmental impacts is a concern for all valuation options. The availability of economic
valuation data is typically not a concern for techniques that collect their own data.
The cost of the scaling exercise (whether service-to-service or value-to-value) depends on
the complexity of the damage and restoration options which affect the complexity of the
study design, the size of the sample and the complexity of the data analysis. However, the
crucial issue here is not the absolute cost of the exercise but its incremental cost in terms
of additional information it provides and the increased accuracy and reliability of the
results produced at the end of the assessment process.
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•
•
•
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Whether the results of a valuation exercise are legally defensible depends on how
strongly a valuation approach is grounded in theory and how well it is implemented in the
particular study of concern. In general, the fewer assumptions required for the exercise,
the more likely the results are to stand up to challenge.
The fact that the valuation exercise is likely to take place after the incident causing
damage, complex designs would be necessary to account for possible strategic and protest
behaviour of the affected population.
Differences in the estimates of people’s preferences (WTP and/or WTA) estimates
obtained by different studies have been cause for concern for some. However, in most
cases, such differences are to be expected as they result from different aspects of
economic value being estimated or different populations (such as users versus non-users)
being covered by the studies. Although some of these differences could be symptomatic
of inconsistencies with a study, there are guidelines to ensure that such inconsistencies are
minimised (see, for example, NOAA, 1993 and EFTEC, 2001).
A similar list of considerations can also be presented for the choice between different levels
of analysis used to choose primary and/or compensatory restoration options (see Annex B for
further details):
• The choice between CEA and CBA is largely affected by whether the cost of the
restoration option identified by CEA is deemed to be ‘excessive’. If the cost is not
deemed excessive, then CEA is sufficient. If the cost is deemed excessive, however, then
CBA needs to be implemented.
• CEA does not require the measurement of the benefits of restoration so long as restoration
target is identified and agreed.
• Strictly, CBA requires the benefits of restoration to be expressed in monetary units for
direct comparison with the costs of restoration. In the event, that monetary expression of
benefits is not possible, CBA can include both monetary and non-monetary expressions
as discussed above. However, this should only be undertaken if it is proved that monetary
assessment is either not possible or feasible.
• Acknowledgement and incorporation of risk and uncertainty attached to different
restoration options are necessary regardless of whether CEA or CBA is implemented.
Some ways in which risk and uncertainty can be dealt with are complex and possibly not
feasible given their information requirements. However, others such as sensitivity
analysis have relatively less information requirements but can add significantly to
explaining the uncertainties and hence improving the quality of the resulting decision.
•
The discount rate used for CEA and CBA has been the subject of ongoing debate.
Currently, the European Member States use a range of discount rates, ranging from 3% to
8%, while the European Commission employs a rate of 4%. There is some evidence that
the ‘social rate of discount’ is towards the lower end of this range, while the opportunity
cost of capital is somewhat higher. While choice of the discount rate to be used in
analysis is ultimately a political decision, for consistency in the implementation of the
legislation across the EU it may be desirable to ensure the rate chosen is consistent across
Member States. The effect of the chosen rate on the final results may be tested through
sensitivity analysis.
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As can be seen from the above discussion, the choice about different levels of analysis is site
and event specific and depends on factors such as the scale of the damage, importance of the
damaged resource, the scale of the affected population and so on. Such factors affect the
desired level of accuracy and robustness, and information, time and resource requirements. It
is not possible at this stage to make recommendations that would apply to every possible case
in the future.
Finally, the level of difficulty with any analysis depends on the analysts undertaking the
analysis. As with any other interdisciplinary work, assessment of damage, choice of
restoration options and assessment of costs and benefits require experts from different
disciplines to be involved in the process. A minimum requirement would be ecologists,
economists and lawyers.
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PART B
CASE STUDIES
1. Aznalcóllar Mine Toxic Spill
2. Sea Empress Oil Spill
3. Exxon Valdez Oil Spill
The following Chapters 7, 8 and 9 present case studies focusing on the above incidents. They
are intended to outline the site, incident and scale of damage using factual information
available from current literature. They are then developed, using the liability regime set out in
previous Chapters, to illustrate how the regime could be practically implemented: damage
assessments are drawn up on the basis of the limited information available to illustrate how
that process could work and the need for Primary and Compensatory Restoration activities is
also outlined. A comparison is made throughout between events and actions which did
actually take place following the incidents; a distinction should therefore be made between the
theoretical application of the liability regime for the benefit of the case studies and events
which actually occurred.
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7
7.1
1488-REG/R/03/B
AZNALCÓLLAR MINE TOXIC SPILLAGE
SITE DESCRIPTION
The Aznalcóllar mine, owned by Boliden Apirsa SL, is one of four operating in the Iberian
pyrite (FeS2) belt and extracts zinc, silver, lead and copper from the pyrites. It is located in
Andalusia, 35km to the north-west of the city of Seville and 45km north of the Doñana
National Park.
The Doñana National Park, located between the right bank of the Guadalquivir River and the
Atlantic Ocean in the provinces of Huelva and Sevilla, is noted by UNESCO for its great
diversity of biotopes, particularly lagoons, marshlands, fixed and mobile dunes and scrub
woodland. The National Park and Ramsar site (designated wetland area of international
importance) cover an area of 50 720ha6. A peripheral buffer zone covering 26 540ha
combines with the National Park to form the declared Biosphere Reserve (77 260ha). The site
has also been designated as a zone for special protection of birds under EC legislation. The
location of the park is shown in Figure 7-1.
Figure 7-1: Location of Doñana National Park
The National Park is one of the biggest heronries in the Mediterranean region and is the
wintering site for more than 0.5 million water fowl each year7. The area is home to a number
of important and varied species: 361 bird species recorded with 119 nesting regularly, 29
mammals, 19 reptiles, 12 amphibians and 7 fish species, with a further 30 species recorded for
the Guadalquivir estuary. Endangered species include the Mediterranean lynx (Lynx
pardelus), the Spanish imperial eagle (Aquila adalberti) and the spoon-bill (Platalea
leucorodia). The National Park is managed by the State.
The Doñana Natural Park (112,000ha in total) surrounds the National Park and is managed by
the Junta de Andalucia. It also supports the migrant bird population and other important lifeforms and habitats prevalent in the National Park.
6
Protected Areas Program. UNEP World Conservation Monitoring Centre. Doñana National Park.
(www.wcmc.org.uk:80/protected_areas/data/wh/Doñana.html)
7
Doñana National Park. Spain. Brief description. (www.unesco.org/whc/sites/685.htm)
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7.2
1488-REG/R/03/B
SITE SERVICES
The following services are provided by the Doñana National Park:
ECOLOGICAL SERVICES:
Geo-hydrological:
• floodwater storage and conveyance
• groundwater recharge and discharge
• pollution assimilation
• sediment trapping and control
• nutrient cycling
• shoreline stabilisation.
Production/Habitat:
• fish and shellfish habitats
• habitat for furbearers, waterfowl and other wildlife
• food production
• oxygen production
• organic material
• pollination
• maintenance of gene pools
• maintenance of plant populations
Ecosystem Integrity:
• natural open space
• climate regulation
• biodiversity storehouse
• carbon cycling
• resistance and resilience
‘HUMAN’ RELATED SERVICES:
Recreational:
• wildlife viewing
Entrance to the Doñana National Park is strictly controlled and zoned (special use, moderate use, restricted use
and reserve zones). The Park is protected under law from hunting, drainage, forestry plantation and excessive
tourist exploitation.
Commercial / public or private:
• none
Cultural / historical:
• historical
Health:
• morbidity / mortality reductions due to provision of clean air, water and food
Scientific:
• none
Non-use value:
• Species, habitats, ecosystems
• Genetic, species diversity and resilience
• Life support: carbon/nutrient cycles.
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7.3
1488-REG/R/03/B
INCIDENT DESCRIPTION
During the early morning of the 25 April 1998, the contention wall of the storage reservoir for
mining residues of the Aznalcóllar pyrite mines burst. The contents behind the dam comprised
pyritic sludge and water with metallic compounds (including arsenic, cadmium, zinc, iron,
manganese and nickel) in solution and suspension.
As a result of the breach of the dam wall, both sludge and waters spilled into the River Agrio.
These passed rapidly into the River Guadiamar, a tributary of the River Guadalquivir. The
avalanche of waste products overflowed the river channels of the Agrio and Guadiamar,
spreading over adjacent land and affecting crops and marginal vegetation8. The quantity of
sludge deposited is estimated as 1.98 million m3.
The spill was diverted away from the National Park by a series of hastily-constructed barriers
towards the River Guadalquivir via the Canal de Aguas Mínimas and Brazo de la Torre. This
escape route was closed five days later9. The contaminated waters remained in the Entremuros
area (a canalised zone of the River Guadiamar, 20km in length and 1km wide) within the
Doñana Natural Park), which is one of the most important areas for aquatic birds in the whole
area. Between May and October 1998, quantities of toxic sludge were removed, and the
remaining contaminated sediments neutralised by the addition of calcium carbonate and
calcium hydroxide.
7.4
SCALE OF DAMAGE
No human lives were lost. The rivers suffered a great reduction in pH and an increase in
dissolved metals. Apart from wells which were covered by the spill, it seems that ground
waters were not affected10.
The surface area affected by the spill has been estimated at 4,286 ha, of which 1,054 ha are
forest, grasslands and saltmarshes. The breakdown is as follows:
Cultivated herbaceous crops
Cultivated herbaceous crops under plastic
Cultivated fruit trees and olive groves
Rice paddies
Brackish marsh grazing
Pastures
Uncultivated arable land
Other
999 ha
172 ha
261 ha
491 ha
315 ha
176 ha
154 ha
1,729 ha
Total
4,286 ha
Of the 4,286 ha affected, 98 ha lie within the Doñana National Park (affecting 0.19% of the
National Park area) and in total 3.8% of the Doñana Natural and National Parks combined
area was affected.
8
Informes de Coopers y Lybrand sobre el Seguimento del Accidente de Aznalcóllar. 1 Informe de la descripción
del Accidente de Aznacóllar y Opinión sobre las Actuaciones y Medidas adoptas para paliar sus efectos: 30 June
1998.
9
10
La Garcilla (1998) Sociedad Española de Ornitología (SEO) www.seo.org/es/capanias/doniana.html
Coopers & Lybrand (1998)
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The fauna of Rivers Agrio and Guadiamar was significantly affected by the spill, particularly
the toxic sludge, which killed all aquatic life it came directly into contact with, owing to
mechanical rather than toxic causes, i.e. being smothered or crushed.
Until 27 May 1998, when intensive retrieval of carcasses was halted, some 37.4 tonnes of
dead fish were collected (75-80% carp Cyprinus carpio, 10-16% thin-lipped grey mullet Liza
ramada, 6-8% Barbus sclateri, 4% European eel Anguilla anguilla and other 5%). Also
collected were 96 terrestrial vertebrates; one white stork, 40 marsh frogs (Rana perezi), 11
mallards, 8 coot and 8 rabbits, though it is not clear that all these deaths directly related to the
incident. Also 890 birds’ eggs were collected, plus 14 chicks and 9 live birds which were all
sent to the recuperation centre of El Acebuche.
Direct losses to local economy in region of 40,000 million pesetas (€0.24 million) were
estimated after one year. Exports of Doñana strawberries were banned; cotton, cereals and
peaches were prohibited from being collected in the area; 4,700ha of arable, rice and pastures
were affected there was a prohibition on harvesting of seven species of mollusc from
Guadalquivir estuary; and hunting was banned in the three provinces with territory in Doñana
- Cádiz, Sevilla and Huelva 11.
7.5
7.5.1
CASE STUDY ASSESSMENT OF DAMAGE TO THE DOÑANA NATIONAL PARK
AND CORRIDOR ECOLOGICA DE RIO GUADIAMAR NATURA 2000 SITES
Scope of Damage Assessment
At the time of the spill it is understood that the only Natura 2000 site to have been identified
was the Cotto Doñana National Park. The impact of the mine spill on the National Park was
limited by the swift intervention of the State authorities. This largely prevented pollution from
entering the National Park and Natura 2000 site. Despite this, a significant area of wetland
known as the Entremuros, which lies adjacent to the Doñana National Park, was affected by
the spill. The Entremuros, a 20 km long canalised section of the Rio Guadiamar, covers an
area of 2,656ha. At the time of the spill, this extensive wetland was not part of a Natura 2000
site, but has subsequently been classified as a Special Protection Area (SPA) in accordance
with the EU Birds Directive (Corredor Ecologico de Rio Guadiamar, 13,470 ha, ES6180005).
For the purposes of this case study the Corredor Ecologico de Rio Guadiamar is considered
as if it were included in the Natura 2000 site series at the time of the accident.
7.5.2
Establishing Conservation Objectives
Conservation objectives for the National Park and the Corredor Ecologico de Rio Guadiamar
have been developed as if they were a single Natura 2000 site. In terms of administration this
is not the case. However in ecological terms the two sites are so closely related that there is
unlikely to be any distortion of the assessment by making this assumption.
A total of 25 habitats listed on Annex I of the EU Habitats Directive are recorded as occurring
within the Doñana National Park Natura 2000 site. These are listed in Table 7-1. In addition, a
total of 44 bird species listed on Annex I of the EU Birds Directive also occur in significant
numbers (recorded as more than present (p) on the Standard Data Form). These are listed in
Table 7-2. A further 11 species of mammals, reptile,s amphibians and invertebrates have also
been recorded from the Natura 2000 site12.
11
SEO website (Spanish Ornithological Society: www.seo.org/es/campanias/doniana.html)
12
Garcia Novo, F. “The Ecosystems of Doñana National Park”. Department of Ecology, University of Sevilla.
http://www.enveng.ufl.edu/wetlands/Doñana.html
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Table 7-1: Annex I Habitats Present within the Doñana National Park pSCI
Habitats
(Annex I of Habitats Directive)
Wooded dunes with Pinus pinea and/or Pinus pinaster*
Dune scleorophyllous scrubs (Cisto-Lavenduletalia)
Dune Juniper thickets (Juniperous spp.)*
Eu-Atlantic decalcified fixed dunes (Calluno-Ulecetea)*
Salicorinia and other annuals colonising mud and sand
Spartina swards
Mediterranean and thermo-Atlantic halophilous scrubs (Arthrocnemetalia fruticosae)
Mediterranean salt-meadows (Juncetalia maritimi)
Shifting dunes along the shoreline with Ammophila arenaria (white dunes)
Fixed dunes with herbaceous vegetation (grey dunes)*
Malcolmietalia dune grasslands
Oligotrophic waters containing very few minerals of West Mediterranean sandy plains with Isoetes
Salix alba and Populus alba galleries
Thermo-Mediterranean riparian galleries (Nerio-Tamariceteae) and south-west Iberian Peninsula riparian
galleries (Securinegion tinctoriae)
Quercus suber forests
Hard oligo-mesotrophic waters with benthic vegetation of chara formations
Natural eutrophic lakes with Manopotamion or Hydrocharition-type vegetation
Dystrophic lakes
Mediterranean temporary ponds*
Southern Atlantic wet heaths with Erica ciliaris and Erica tetralix*
Thermo-Mediterranean and Pre-Steppe brush
Sclerophilous grazed forests (Dehesas) with Quercus suber and/or Quercus ilex
Mediterranean tall herb and rush meadows
Calcareous fens with Cladium mariscus and Carex davalliana*
Lagoons*
* = Priority habitats
SEO/Birdlife (Birdlife Partner in Spain) “Doñana disaster. Doñana: Preliminary Environmental Assessment”
(1998) http://www.mme.hu/madar/Doñana2.htm
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Table 7-2: Annex I Bird Species Present in Significant Numbers (>p) Within the Doñana
National Park pSCI
Species
(Annex I of Birds Directive)
Bar-tailed godwit Limosa lapponica
Collard pratincole Glariola pratincola
Black-winged stilt Himantopus himantopus
Slender-billed gull Larus genei
Wood sandpiper Tringa glareola
Gull-billed tern Gelochelidon nilotica
Golden plover Pluvialis apricaria
Stone curlew Burhinus oedicnemus
Avocet Recurvirostra avocetta
Crested coot Fulica cristata
Purple galinule Porphyrio porphyrio
Ruff Philomachus pugnax
Audouin’s gull Larus audouinii
Cormorant Phalacrocorax carbo sinensis
Pin-tailed sand grouse Pterocles alchata
Black tern Chlidonias niger
Little tern Sterna albifrons
Common tern Sterna hirundo
Sandwich tern Sterna sandvicensis
Kingfisher Alcedo atthis
Black stork Ciconia nigra
White stork Ciconia ciconia
Spoonbill Platalea leucorodia
Purple heron Ardea purpurea
Little egret Egretta garzetta
Squacco heron Ardeolla ralloides
Night heron Nycticorax nycticorax
Little bittern Ixobrychus minutus
Bittern Botaurus stellaris
Glossy ibis Plegadis falcinellus
Greater flamingo Phoenicopterus ruber
Marbled duck Marmaronetta angustirostris
White-headed duck Oxyura leucocephala
Black-shouldered kite Elanus caeruleus
Montagu’s harrier Circus pygargus
Peregrine falcon Falco peregrinus
Spanish imperial eagle Aquila heliaca adalberti
Hen harrier Circus cyaneus
Marsh harrier Circus aeruginosus
Red kite Milvus milvus
Black kite Milvus mirgans
Egyptian vulture Neophren peronopterus
Griffon vulture Gyps fulvus
Black vulture Aegypius monachus
Many of the habitats and their associated fauna and flora are confined to the drier parts of the
National Park, including a number of sand dune habitats. A review of the reported damage
from the spill suggests that only a small number of these habitats were actually affected.
In addition to the large number of Annex I bird species recorded from the Natura 2000 site,
many migrant birds also use the area. These are not recorded on the Standard Data Form for
the Doñana National Park Natura 2000 site. For the purposes of this assessment it has been
assumed that regularly occurring populations of migrant birds form an important conservation
objective for both the National Park and the Corredor Ecologico de Rio Guadiamar.
The case study damage assessment of the Aznalcollar Mine Spill on Annex I Habitats in the
Doñana National Park and Corredor Ecologico de Rio Guadiamar Natura 2000 Sites is
presented in Table 7-3. The case study damage assessment of the accident on Annex II
Species is presented in Table 7-4.
The impact of the spill on bird health and populations is difficult to determine from the
evidence, however, there was clearly a significant impact on the habitat of a number of
wetland birds, resulting in elevated levels of metal contaminants in many species. Although it
is difficult to make firm predictions of the effect of the spill on individual species, there is
some information on a few species, whilst for others a prediction can be made on the basis of
their habitat preferences. The likely impact on species for which some ecological impact
information exists, or can be reasonably predicted, is assessed in Table 7-5.
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Table 7-3: Case Study Damage Assessment of Aznalcollar Mine Spill on Annex I Habitats in the Doñana National Park and Corredor Ecologico
de Rio Guadiamar Natura 2000 Sites
Conservation Objective
Its natural range and areas it
Its species structure and
The conservation status of its
covers is stable or increasing
functions exist and are likely to
typical species is favourable
continue to exist
Habitats
(Annex I of Habitats
Directive)
Impact
Nature
Significance
Impact
Nature
Significance
Impact
Nature
Significance
Mediterranean saltmeadows
(Juncetalia maritimi)
Adverse
St, R
Major
Adverse
St, R1
Major
Adverse
St, R1
Major
Salix alba and Populus alba
galleries
?
?
?
Adverse
St, R1
Major
Adverse
St, R1
Major
Thermo-Mediterranean riparian
galleries (Nerio-Tamariceteae) and
south-west Iberian Peninsula
riparian galleries (Securinegion
tinctoriae)
?
?
?
Adverse
St, R1
Major
Adverse
St, R1
Major
Sclerophilous grazed forests
(Dehesas) with Quercus suber
and/or Quercus ilex
?
?
?
Adverse
St, R1
Major
Adverse
St, R1
Major
Mediterranean tall herb and rush
meadows
Adverse
St, R
Major
Adverse
St, R1
Major
Adverse
St, R1
Major
Key: St = Short term, Lt = Long term, R = Reversible, IR = Irreversible, * = Priority habitats
1
= Presumes clean up limits duration of impact to Short Term
? = Information on changes in the extent of woodland habitat due to impact not available. Extent of other habitats (marshes and saltmarshes) clearly adversely affected as much was
ploughed and replanted following the removal of contaminated material.
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Table 7-4: Case Study Damage Assessment of Aznalcollar Mine Spill on Annex II Species in the Doñana National Park and Corredor Ecologico
de Rio Guadiamar Natura 2000 Sites
Conservation Objective
Its natural range and areas it
Its species structure and
The conservation status of its
covers is stable or increasing
functions exist and are likely to
typical species is favourable
continue to exist
Species
(Annex II of Habitats
Directive)
Population is maintaining itself
on a long-term viable basis
Natural range of the species is
neither being reduced nor is
likely to be reduced
Otter Lutra lutra
Adverse
St, R
Minor
Adverse
St, R
Minor
Mauremys leprosa
?
?
?
?
?
?
Emys orbicularis
?
?
?
?
?
?
Testudo graeca
?
?
?
?
?
2
Adverse
St, R
Minor
Adverse
St, R
Major
?
2
Cobitis taenia
Adverse
St, R
Major
Adverse
St, R
Major
Barbus comiza
Adverse
St, R2
Major
Adverse
St, R2
Major
Chondrostoma polylepis
Adverse
2
St, R
Major
Adverse
2
St, R
Major
Acipenser sturio
Adverse
St, R2
Major
Adverse
St, R2
Major
Adverse
2
St, R
Major
Adverse
2
St, R
Major
Adverse
St, R
Major
None
-
-
Aphanius iberus
Sufficiently large habitat remains
to maintain populations on a long
term basis
Coenagrion mercuriale
Populations of regularly occurring
migratory birds
Key: St = Short term, Lt = Long term, R = Reversible, IR = Irreversible, * = Priority habitats
2
= Assumed that all fish species were adversely affected due to catastrophic impact of the spill on fish (37.4 tonnes killed). Further information on the distribution of Annex I fish in
the Rio Guadiamar is required to confirm this assumption.
? = Information on effects on reptiles and amphibians not available.
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Table 7-5: Case Study Damage Assessment of Aznalcollar Mine Spill on Annex I Birds in the Doñana National Park and Corredor Ecologico de
Rio Guadiamar Natura 2000 Sites
Conservation Objective
Its natural range and areas it
Its species structure and
The conservation status of its
covers is stable or increasing
functions exist and are likely to
typical species is favourable
continue to exist
Species
(Annex I of Birds Directive)
Population is maintaining itself
on a long-term viable basis
Black-winged stilt Himantopus himantopus
?
?
?
?
?
?
?
?
?
?
?
?
?
?
Avocet Recurvirostra avocetta
Crested coot Fulica cristata
Purple galinule Porphyrio porphyrio
Ruff Philomachus pugnax
Kingfisher Alcedo atthis
White stork Ciconia ciconia
Spoonbill Platalea leucorodia
Purple heron Ardea purpurea
Little egret Egretta garzetta
Squacco heron Ardeolla ralloides
Night heron Nycticorax nycticorax
Little bittern Ixobrychus minutus
Bittern Botaurus stellaris
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
Natural range of the species is
neither being reduced nor is
likely to be reduced
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
Sufficiently large habitat remains
to maintain populations on a long
term basis
Adverse
Adverse
Adverse
Adverse
Adverse
Adverse
Adverse
Adverse
Benefit?
Benefit?
Benefit?
Benefit?
Adverse
Adverse
St, R
St, R
St, R
St, R
St, R
St, R
St, R
St, R
St, R
St, R
St, R
St, R
St, R
St, R
Minor
Minor
Minor
Minor
Minor
Minor
Minor
Minor
Minor
Minor
Minor
Minor
Minor
Minor
Key: St = Short term, Lt = Long term, R = Reversible, IR = Irreversible, * = Priority habitats
Definitions of significance used:
• Minor significance: the impact would have a significant adverse effect on the ecology of the feature, but the level of the effect is such that the resource would be capable of
absorbing this impact
• Major significance: the impact would have a significant adverse effect on the ecology of the feature. Such an impact would present a measurable long term and permanent threat to
the viability of the resource within the Natura 2000 site
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Conclusion of Significance Assessment
A considerably greater level of research and more detailed assessment of the impact of the
spill is required before any firm conclusion can be drawn. However for the purposes of the
case study the above assessment tables do clearly demonstrate the method by which such an
assessment can be undertaken.
In this example available information suggests that:
•
Immediately following the accident there was a significant impact upon the woodland,
saltmarsh and grazing land within the Entremuros region of the Rio Gaudiamar. This
included at least three habitats listed on Annex I of the EU Habitats Directive.
•
In addition, water from the river was prevented from entering the National Park, causing
drying of this area and creating a movement of birds from the National Park to the
contaminated wetland created by the retained polluted water within the Entremuros. This
action therefore resulted in a temporary loss of bird habitat from within the National Park
and the contamination of birds drawn to feed within Entremuros.
•
Many fish were killed by the spill, and this is likely to have included ecologically
important species listed on Annex II of the Habitats Directive. For some species of bird,
the abundance of dead fish provided a positive benefit, although clearly this was only
short term.
The result of this assessment is that there was short-term significant damage to the Natura
2000 site (Doñana National Park and Corridor Ecologica de Rio Guadiamar).
Restoration of the site was undertaken and continues today. This restoration is likely to result
in no long-term impact on the conservation status of the Natura 2000 sites affected. While the
target of achieving baseline conditions may therefore be met, interim losses of resources and
services nevertheless exist.
7.6
ACTUAL RESTORATION OF DOÑANA NATIONAL PARK AND
ESTABLISHMENT OF THE GREEN CORRIDOR
The main feature of primary restoration actually undertaken was the initial damming of
waterways into the Doñana National Park to prevent contamination of the park with polluted
water and sludge. After the spill the following actions were taken.
• The removal of polluted sludge (5 – 7 million m3);
• Removal of upper soil horizons and all organic material down to gravel in places;
• Neutralisation of contaminated sediments with addition of calcium carbonate and calcium
hydroxide;
• Removal of reed (Typha domingensis and Scirpus maritimus) from contaminated area of
Entremuros that grew following flooding within acid waters;
• Replanting of contaminated soils with 18 species of plant to stop soil erosion (selected to
be un-palatable to herbivores and humans). These to be replaced later with more natural
vegetation; and
• Construction of small sediment traps at 400m intervals along the R. Guadiamar to prevent
movement of contaminated sediment downstream. These will also be removed in time to
restore natural river profile.
This appears to have been a relatively successful primary restoration programme.
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Compensatory restoration work has been undertaken for the whole green corridor to link
Sierra de Aracena with Doñana. This was formerly much degraded with only fragments of
Populus alba (white popular) gallery woodland remaining (this is an Annex I habitat type).
Much of the area seems to have been planted with Eucalyptus (non-native and of little
ecological value apart from providing nest sites for herons) or to have been converted for
agricultural use. The entire green corridor has also been declared a Special Protection Area
(SPA) in accordance with the EU Birds Directive.
The need for these compensatory restoration projects was based upon the following interim
losses:
• Loss of wetland habitat within the Doñana National Park during the time that polluted
water was retained in the Entremuros;
• Loss of habitat within the remainder of the green corridor whilst it was smothered in
contaminated sludge – although it appears that this habitat was already significantly
degraded;
• Loss of habitat within the green corridor during and immediately after the removal of
contaminated sludge;
• Damage to trees and woodland from machinery used in the sludge removal;
• Loss of habitat whilst planted unpalatable species were used to remove contaminants from
the sediments; and
• Impacts on herbivorous birds whilst eating contaminated vegetation within the
Entremuros in the 4 months after the spill. The long-term effects of this seem difficult to
gauge but appear to have caused deformity in white stork chicks (a species listed on
Annex I of the EU Birds Directive) and probably much reduced breeding success. Other
Annex I species reported to have been directly effected by the spill include black kite,
black-winged stilt and purple galinule.
7.7
COMPARISON OF ACTUAL AND POSSIBLE RESTORATION ACTIVITIES
Decisions actually made
Decisions that could be made
Damage assessment was carried out by the
Park authorities and scientific community
for individual species and habitats but no
formal overall assessment appears to have
been made.
The result of the case study assessment is that
there was short-term significant damage to the
Natura 2000 site (Doñana National Park and
Corridor Ecologica de Rio Guadiamar).
Is Primary Restoration
deemed possible?
Yes
Yes
What was its objective?
It appears to have been to restore the
injured resource to its baseline levels,
though it is not stated formally or
elaborated upon.
This is a satisfactory objective. In the context
of this study the objective should be to restore
the habitats and species populations of
importance (as defined by their Natura 2000
status) to levels achieving favourable
conservation status within their natural range.
Chosen option
Why was it chosen?
Primary restoration, following the initial
damning of the waterways into the
National Park, included significant cleanup activities, including elements of limited
intervention and full-scale reconstruction
in the severely affected canalised toxic
water retention zone known as
Entremuros.
The primary restoration method chosen
appears to be realistic in that it is possible to
restore the environmental damage caused in
the Entremuros area using the methodology
employed. Non-intervention or limited-level
intervention on its own would not be sufficient
to restore the damage in a reasonable amount
of time.
Good choice? Alternatives?
No alternatives appear to have been
suggested
Damage significance
Was damage significant?
Primary Restoration
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Decisions actually made
Decisions that could be made
How was it implemented?
Toxic sludge was removed along with upper soil horizons and all organic material down to
gravel in places. Neutralisation of remaining contaminated sediments was undertaken.
Removal of reed that grew following flooding within acid waters. Replanting of
contaminated soils with plant species to stop soil erosion to be replaced later with more
natural vegetation. Construction of small sediment traps along the R. Guadiamar which will
be removed in time to restore natural river profile.
Were costs of this option
calculated?
No information is available; it is assumed
that the costs were not formally calculated.
An assessment of the discounted costs of the
proposed primary restoration option should be
made, particularly where a mixture of
intervention options could be suitable; the cost
of each option should be estimated. The use of
planting and importation of genetic material,
soil etc. reduces the overall nature
conservation value of the option. Costs of
monitoring and surveillance should be
included along with costs of: damage
assessment, legal costs, cleaning, habitat
restoration, and loss of income to those
dependent on the damaged site (probably not
applicable in this case)
Were costs considered to
be ‘excessive’ initially?
Presumably a subjective assessment was
made that they were not ‘excessive’.
An objective assessment of option costs should
be made using CEA given that the costs are
probably not deemed excessive.
Interim losses
Where there any?
Yes, there were interim losses whilst the primary restoration activity was being undertaken
and whilst the regeneration process was occurring.
Further losses were incurred as a direct result of the immediate post-spill and primary
restoration activities.
These losses included:
•
Loss of wetland habitat within the Doñana National Park during the time that polluted
water was retained in the Entremuros;
•
Loss of habitat within the remainder of the green corridor whilst it was smothered in
contaminated sludge;
•
Loss of habitat within the green corridor during and immediately after the removal of
contaminated sludge;
•
Damage to trees and woodland from machinery used in the sludge removal;
•
Loss of habitat whilst planted unpalatable species were used to remove contaminants
from the sediments;
•
Impacts on herbivorous birds whilst eating contaminated vegetation within the
Entremuros, long-term effects possibly including deformity in white stork chicks and
probably much reduced breeding success.
Was their value calculated?
A value does not appear to have been calculated
Compensatory Restoration Option
Chosen option
Compensatory restoration work has been
undertaken for the whole green corridor to
link Sierra de Aracena with Doñana. This
was formerly much degraded with only
fragments of Populus alba (white popular)
gallery woodland remaining.
Why was it chosen?
Detailed information as to why this option
was chosen is not available.
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The chosen option could be defined as a Class
III option, i.e. its outcome will have a
comparable type and quality as the damaged
resource. Primary restoration of canalised zone
will actually be exceeded as Compensatory
Restoration will improve the habitat of the
damaged area beyond its pre-spill condition
and also extend restoration of less affected
areas of the corridor beyond their pre-spill
condition as well.
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Decisions actually made
Decisions that could be made
Good choice? Alternatives?
No alternatives appear to have been
suggested
If the full objectives of the intended
Compensatory Restoration are met then this
option appears satisfactory as it is likely to
generate greater long-term benefits than the
current interim losses. However this is an
opinion, not based on an objective assessment.
Information is not available to determine the
process by which it was decided to initiate this
Compensatory Restoration project. There does
not appear to have been any assessment of
alternative options and so it is presumed that
CEA was not undertaken.
Cost of option
The total cost of establishing the Corredor
Verde is estimated as 3,746 million
pesetas (approx. €22,500)13.
No information is available as to how this
value was derived, and indeed reliability
of the estimated figure appears
questionable.
Were costs considered to
be ‘excessive’ initially?
Unknown, presumably not.
N/a – not applicable
7.8
OUTCOME OF SETTLEMENT
For years previous to the spill, NGOs have been filing charges against Boliden-Apirsa SL for
continuing filtration of contaminants from the container dam, but these cases have been
successively dismissed14. On 25 March 1998 (a month before the accident) another complaint
to the EU by the regional NGO CEPA was dismissed15.
It was reported16 that following the accident Boliden-Apirsa SL said it would pay clean-up
costs, make an advance payment of around €6.5 million to reimburse local farmers for their
losses and buy their poisoned harvest. Another estimate of the economic impact on
agricultural property values the damage at only €0.14 million17. However the company
appears to have since decided not to accept responsibility for the accident18.
Legal action for criminal negligence was taken against 25 people19 considered responsible for
the Aznalcóllar mine spill20 however the case was dismissed by the judge of Sanlúcar la
Mayor as it was ruled that no-one was to blame. The Junta and MMA therefore paid for the
costs associated with the spillage, although an appeal against the decision is to be made.
13
‘Medio Ambiente 1 1998 Corredor Verde del Río Guadiamar.’ published by Consejería de Medio Ambiente of
the Junta de Andalucía)
14
Greenpeace website (www.greenpeace.es/toxicos/Doñana/sevilla0.htm)
15
SEO website (Spanish Ornithological Society: www.seo.org/es/campanias/doniana.html)
16
Environmental News Network ‘Spain says toxic cleanup to cost $105 million’ (www.enn.com/enn-subscribernews-archive/1998/05/052698/costs_22039.asp) (26th May 1998)
17
ASAJA –in Rodriguez, J. C., ‘Technological hazards: The case of the Aznalcóllar mining incident and its
impact on coastal activities’. Proceedings of the first workshop of the INDICCO project, Seville, Spain, 17th20th Nov. 1999. EU FAIR Concerted Action: The INDICCO project: A European Database of Indicator Coastal
Communities (FAIR CT98-4399). Eds Diana Tingley, MacAlister Elliott & Partners & Dr. Ian Goulding,
Megapesca Lda.
18
SEO website (Spanish Ornithological Society: www.seo.org/es/campanias/doniana.html)
19
13 worked for Geocisa who constructed the dam and 7 for Boliden-Apirsa; also 2 civil servants in Junta de
Andalucía, 1 from Instituto Geominero Español and 3 from Intecsa, the associate of Dragados who prepared the
construction project in 1978.
20
Natuweb: news about dismissal of legal action against Boliden-Apirsa SL (www.natuweb.com/) (28.12.00)
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8
8.1
1488-REG/R/03/B
SEA EMPRESS OIL SPILL
SITE DESCRIPTION
The Sea Empress oil spill occurred at the mouth of the Milford Haven waterway, located in
south-west Wales, UK in the region known as Pembrokeshire. The Sea Empress oil tanker
became grounded on rocks whilst attempting to enter the Milford Haven waterway; it was
about to offload its cargo of 130,000 metric tonnes of crude oil to the Texaco refinery. The
waterway is home to several oil refineries and tanker movements are common in the area.
South-west Wales is an area of great natural beauty and ecological interest. It is home to the
Pembrokeshire Coast National Park which is the only UK National Park primarily designated
for its coastal and estuarine features21. The coast is highly indented and there are many small
islands. Marine plants and animals characteristic of both the relatively warm Atlantic and
colder Arctic waters are found in the area; important bird populations exist of Manx
sheerwater (Puffinus puffinus), gannets (Morus bassanus) and common scoter (Melanitta
nigra). The Milford Haven is a drowned valley with approximately 110km of coastline and
Carmarthen Bay has extensive sandflats, dunes and four important estuaries (see Figure 8-1).
The affected area includes two proposed22 SACs (‘Pembrokeshire Marine’ and ‘Carmarthen
Bay and Estuaries’), 35 Sites of Special Scientific Interest (SSSIs), two National Nature
Reserves, one of the UK’s three Marine Nature Reserves, and much of the coastline itself has
been designated as Heritage Coast in recognition of its historical interest and importance.
Figure 8-1: Protected areas of south-west Wales
Source: SEEEC (1998), pg. Inside front cover
Tourism plays a key role in the local economy, and is centred on the coastal environments and
heritage. A small fishing industry operates in the coastal waters and provides an attraction for
the tourism sector. Other sectors of importance are agriculture and the oil industry.
21
Sea Empress Environmental Evaluation Committee. ‘The Environmental Impact of the Sea Empress Oil Spill;
Final report of the Sea Empress Environmental Evaluation Committee.’ The Stationary Office (1998)
22
At the time of the spill there were three proposed SAC’s however following the moderation process in 2000
these sites were merged and there are now two proposed SAC’s.
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8.2
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SITE SERVICES
The following services are provided in the area affected by the Sea Empress oil spill:
ECOLOGICAL SERVICES:
Geo-hydrological:
• pollution assimilation
• sediment trapping and control
• nutrient cycling
• shoreline stabilisation.
Production/Habitat:
• fish and shellfish habitats
• habitat for furbearers, waterfowl and other wildlife
• food production
• organic material
• maintenance of gene pools
• maintenance of plant populations
Ecosystem Integrity:
• natural open space
• climate regulation
• biodiversity storehouse
• carbon cycling
• resistance and resilience
‘HUMAN’ RELATED SERVICES:
Recreational:
• beach use/swimming
• fishing, boating
• wildlife viewing
• coastal path walking
Commercial / public or private:
• fishing
• waterway navigation
• property protection
Cultural / historical:
• historical
Non-use value:
• Species, habitats, ecosystems
• Genetic, species diversity and resilience
• Life support: carbon/nutrient cycles.
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8.3
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INCIDENT DESCRIPTION
The “Sea Empress” oil spill occurred 15th February 1996, at St. Anns Head, at the mouth of
the Milford Haven waterway. Over a period of seven days, whilst rescue efforts exacerbated
the situation, 72,000 tonnes of crude oil and 480 tonnes of heavy fuel oil were released into
the sea. This oil seriously affected 100 km of coastline. A Marine Exclusion Zone was put in
place along the affected coastline, extending out to sea and up inland waterways.
The worst affected areas were West Angle Bay to Linney Head, western Carmarthen Bay and
the southern shore of the Milford Haven waterway. The major clean-up operation lasted for
several months, though the majority of main tourist beaches were open by the Easter holidays
(5-8th April, 1996). Many shores continued to be affected by residual oil throughout the
summer of 1996 and autumnal storms caused previously-sunk oil to resurface. By the spring
of 1997 there was little visible evidence of oiling23.
Commercial and recreational fishing was banned in the area and restrictions lifted for
particular species as their tissue became free of contamination. Restrictions on the majority of
commercial stocks were lifted at the end of August 1996. The tourism industry, dependent on
the natural beauty (particularly beaches and coast-line), heritage and coastal-related activities
in the area, was also affected.
8.4
SCALE OF DAMAGE
The main reported environmental impacts of the spill24 were that:
• large numbers of marine organisms were killed;
• populations of amphipods (small crustaceans) either disappeared or were severely
depleted;
• several thousand sea birds were killed, particularly common scoter, diver species,
guillemots, razorbills and divers, with significant impact on breeding guillemots; and
• significant decrease in the population of rare cushion starfish Asterina phylactica
There was also temporary damage to some algae, lichens and saltmarsh vegetation.
It is further concluded25 that there were:
• no impacts on marine mammals;
• whilst oil concentrations were found in some fish species, there was little lasting damage;
• several important sea bird populations were not affected and there was no effect on
breeding success; and
• rare plants in the area were not significantly affected.
23
Sea Empress Oil Spill. Overview of the Environmental Effects. (www.swan.ac.uk/biosci/empress/
overview.htm/)
24
Sea Empress Environmental Evaluation Committee. ‘The Environmental Impact of the Sea Empress Oil Spill;
Final report of the Sea Empress Environmental Evaluation Committee.’ The Stationary Office (1998)
25
Sea Empress Environmental Evaluation Committee. ‘The Environmental Impact of the Sea Empress Oil Spill;
Final report of the Sea Empress Environmental Evaluation Committee.’ The Stationary Office (1998)
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8.5
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IMPACT ASSESSMENT
Table 8-1: Case Study Damage Assessment of Sea Empress Oil Spill on Annex I Habitats in the Pembrokeshire Marine and Carmarthen
Bay and Estuaries Natura 2000 Sites
Conservation
Its natural range and areas it covers
Its species structure and functions
The conservation status of its
Objective
is stable or increasing
exist and are likely to continue to
typical species is favourable
exist
Impact
Nature
Impact
Nature
Significance
Impact
Nature
Significance
Sandbanks which are
slightly covered by sea
water all the time
-
-
-
Adverse
St, R
Minor
Adverse
St, R
Minor
Estuaries
-
-
-
Adverse
Lt, R
Minor
Adverse
St, R
Minor
Mudflats and sandflats not
covered by sea water at low
tide
-
-
-
Adverse
St, R
Minor
Adverse
St, R
Minor
Large shallow inlets and
bays
-
-
-
Adverse
St, R
Minor
Adverse
St, R
Minor
Submerged or partially
submerged sea caves
-
-
-
Adverse
St, R
Minor
-
-
-
Reefs
-
-
-
Adverse
St, R
Minor
Adverse
St, R
Minor
Lagoons*
-
-
-
Salicornia and other annuals
colonising mud and sand
-
-
-
Spartina swards
-
-
-
?
?
?
?
?
?
Atlantic saltmeadows
-
-
-
?
?
?
?
?
?
-
-
-
-
-
Habitats
(Annex I)
Significance
Adverse
St, R
Dunes with Hippophae
rhamnoides
Key: St = Short term, Lt = Long term, R = Reversible, IR = Irreversible, * = Priority habitats
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Minor
Adverse
St, R
Minor
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Table 8-2: Case Study Damage Assessment of Sea Empress Oil Spill on Annex II Species, SPA and Bird Populations in the Pembrokeshire
Marine and Carmarthen Bay and Estuaries Natura 2000 Sites
Conservation Objective
Species
(Annex II and SPA)
Otter Lutra lutra
Grey seal Halichoerus grypus
Sea lamprey Pteromyzon marinus
River lamprey Lamperta
fluviatilis
Allis shad Alosa alosa
Twaite shad Alosa fallax
Species
(Birds populations)
Common scoter Melanita nigra
Its natural range and areas it
covers is stable or increasing
Population is maintaining itself on
a long-term viable basis
?
-
?
-
?
-
?
?
?
?
?
?
Population is maintaining itself on
a long-term viable basis
Adverse
Adverse
Lt. R
Lt, R
Minor
Minor
Its species structure and functions
exist and are likely to continue to
exist
Natural range of the species is
neither being reduced nor is likely
to be reduced
-
Sufficiently large habitat remains
to maintain populations on a long
term basis
-
Natural range of the species is
neither being reduced nor is likely
to be reduced
-
Sufficiently large habitat remains
to maintain populations on a long
term basis
Adverse
St, R
Minor
Adverse
St, R
Minor
Populations of regularly
occurring migratory birds
Key: St = Short term, Lt = Long term, R = Reversible, IR = Irreversible, * = Priority habitats
The conservation status of its
typical species is favourable
Definitions of significance used
•
Minor significance: the impact would have a significant adverse effect on the ecology of the feature, but the level of the effect is such that the resource would be capable of
absorbing this impact
•
Major significance: the impact would have a significant adverse effect on the ecology of the feature. Such an impact would present a measurable long term and permanent
threat to the viability of the resource within the Natura 2000 site.
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8.6
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CONCLUSION OF DAMAGE ASSESSMENT
It is difficult to make anything but a tentative assessment of the significance of the damage to
the Pembrokeshire coast from the Sea Empress oil spill. It is clear that a number of Annex I
habitats were affected by the spill and that there was temporary damage to species
populations associated with many such habitats. However, official reports suggest that marine
invertebrate populations rapidly recovered following the spill and that there were few
detectable effects within a year of the spill. The estuary habitat with softer sediments and
reduced wave energy is likely to have suffered longer than the more exposed shores. This has
therefore been graded as a long term impact although in fact this is only relative when
compared with the other habitat impacts.
Information is not available to assess impacts on other Annex II species, in particular effects
on migratory fish species such as the Allis and Twait Shad and Sea lamprey.
The grey seal population appeared little affected. To date, there appears to have been no
evidence of pollution-related seal mortality. It is, however, quite possible that seals may have
experienced short-term pollution symptoms such as eye and respiratory tract irritation.
Longer-term health problems may manifest themselves in due course. One possibility may
involve effects arising from the concentration of toxins through the food chain - grey seals
consume a variety of prey including crabs and fish.
The most significant impact of the spill appears to have been on populations of sea ducks and
divers. Large numbers of these were killed by the spill and there is some evidence of a
suppressed population of common scoter in the winter following the spill. Again, this impact
has been graded long-term, but this is only relative to the shorter-term impacts on other
habitats.
By the spring of 1999, the common scoter population within Carmarthen Bay appeared to
have recovered well.
In a press release from the Countryside Council for Wales on 23rd February 1999, Dr Bill
Sanderson, CCW marine biologist said: "Little was known about the common scoter’s
behaviour in Carmarthen Bay, particularly its preferred food. There was a large drop in the
number of these ducks spending the winter in Carmarthen Bay after the oil spill; this was
probably due to the effects of the oil on the birds but may also have been due to effects on the
sea bed creatures which are the scoter’s food source. Now, this survey indicates that the
health of the environment in Carmarthen Bay has greatly improved.”
Although the impacts of the spill appear to have been short to medium-term in duration, they
affected a wide range of habitats and species populations of European importance. For this
reason the damage caused by the spill would have been assessed as being significant in terms
of the proposed liability regime.
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8.7
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ACTUAL RESTORATION OF PEMBROKESHIRE MARINE AND
CARMARTHEN BAY AND ESTUARIES NATURA 200 SITES
Primary restoration was confined to clean up and reliance on natural processes. This would
be termed limited intervention (although in practice it is really a combination of nonintervention and limited intervention depending on the substrate type and location of the
contamination).
This strategy seems to have been relatively successful but, as the Swansea University web
site states, there was some damage to beaches caused by the clean up, and in the inner parts
of the estuary oil is likely to be trapped for a considerable time. There is therefore a case for
some compensatory restoration although this does not seem to have occurred. In addition
there are the interim losses due to loss of habitat whilst natural processes restored them. This
clearly had an impact on sea ducks most notably the common scoter.
Quite what compensatory restoration options might be appropriate or available is difficult to
predict. Fishing activity is cited as a threat to the area in the Standard Data Form and so
some further control of fishing activity within the area to ensure favourable condition of the
marine habitats might be an appropriate strategy – although clearly this would be unpopular
with the fishermen and economically costly.
In sum, the primary restoration strategy seems to have been soundly based using a
combination of non-intervention and limited intervention strategies. Despite this interim
losses have been incurred and there may be a need for further compensatory restoration
projects. Quite what these should be is difficult to define; perhaps some future control on
fishing activity in the area might be ecologically appropriate, though economically costly and
unpopular.
8.8
COMPARISON OF ACTUAL AND POSSIBLE RESTORATION ACTIVITIES
Decisions actually made
Decisions that could be made
Damage assessment was carried out
through the Sea Empress Environmental
Evaluation Committee and local scientific
community for individual species and
habitats but no formal overall assessment
appears to have been made.
Although the impacts of the spill appear to
have been short to medium-term in duration
they affected a wide range of habitats and
species populations of European importance.
For this reason the damage caused by the spill
would have been assessed as being significant
in terms of the proposed liability regime.
Is Primary Restoration
deemed possible?
Yes
Yes
What was its objective?
It appears to have been to restore the
injured resource to it baseline levels
though it is not formally stated or
elaborated upon.
This is a satisfactory objective. In the context
of this study the objective should be to restore
the habitats and species populations of
importance (as defined by their Natura 2000
status) to levels achieving favourable
conservation status within their natural range.
In the UK ‘favourable condition’ tables are
usually generated to provide the Primary
Restoration objective for each habitat and
species population within a Natural 2000 site.
Chosen option
Why was it chosen?
Primary restoration was confined to clean
up and reliance on natural processes. This
would be termed limited intervention.
Due to the inaccessible and delicate nature of
marine and shoreline habitats affected,
expected resilience of the larger species
affected and potential for natural regeneration
of smaller organisms affected the reliance on
natural processes of regeneration through the
natural degradation of oil spilt seems a
reasonable option to take.
Damage significance
Was damage significant?
Primary Restoration
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Decisions actually made
Decisions that could be made
Good choice?
Alternatives?
No alternatives appear to have been
suggested.
How was it implemented
In practice it was a combination of non-intervention and limited intervention depending on
the substrate type and location of the contamination. The clean-up process improved the
speed with which natural regeneration (non-intervention) could occur.
Were costs of this option
calculated?
Some information is available in a
piecemeal fashion; it is assumed that the
costs were not specifically calculated for
this purpose.
The budget of the Sea Empress
Environmental Evaluation Committee
(SEEEC) is estimated as being between £2
million and £4 million and mainly devoted
to research costs (the SEEEC was set up to
monitor and evaluate the environmental
impact of the spill.)
Compensation payments were made to
fishermen for lost income following a ban
on fishing; their livelihood is dependent
on a fully functioning marine ecosystem.
Figures are similarly available for losses
to the tourist industry who livelihood is in
part dependent on the same.
An assessment of costs of the proposed
primary restoration option should be made. In
this case, non-intervention includes costs of:
damage assessment studies, legal costs,
implementing monitoring and surveillance,
loss of income to those dependent on the
damaged site of ecosystem.
Were they found to be
‘excessive’ initially?
Presumably a subjective assessment was
made that they were not ‘excessive’.
An objective assessment of the options should
be made using CEA.
Interim losses
Where there any?
Yes, whilst natural regeneration process
was progressing.
Was their value
calculated?
Not directly
Value of conservation/
non-use costs
A value for conservation/non-use
economic costs was calculated providing
an assessment of the cost of the overall
economic loss suffered as a result of the
damaged resource/service (in other words
the benefit that would be gained by
restoring the site to its pre-spill status).
How was it calculated?
The conservation/non-use costs were
estimated by applying a replacement cost
to numbers of observed strandings of each
marine mammal species. Non-use values
were calculated using a benefits transfer
methodology whereby a range of WTP
values per household were extracted from
three ‘appropriate’ studies and applied to
all households in the Welsh Water region
to give the range of estimated non-use
values.
What was the value of
interim losses?
Economic conservation/non-use costs for
the spill were estimated to be between
£22.5 million and 35.4 million.
Estimates of use value should have been based
on the uses of the area as defined in Section
8.2. Benefits transfer could then be used.
Such estimates would cover support species
implicitly, but would not provide a value per
amphipod, etc.
Compensatory Restoration Option
Chosen option
Compensatory restoration did not occur.
Expected lack of funding may have been a
limiting factor in developing such options.
Compensatory restoration options could be
developed to compensate for the interim losses
suffered. Such options could be on-site or offsite depending on opportunities available and
site-specific considerations.
Options should be judged based on the: type,
quality and value of resources and services to
be provided.
N/a – not applicable
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8.9 OUTCOME OF SETTLEMENT
The onus for providing compensation for clean-up activities and losses to the tourism and
fishing sectors, and other local economy impacts, lay in the first instance with Skuld P&I
Club, insurers of the “Sea Empress” and in the second instance with the International Oil
Pollution Compensation (IOPC) Fund which becomes activated when an oil spill occurs in a
member country’s waters. This onus to provide compensation in the first instance does not
mean the organisations admit liability for the incident; rather they are acting as a result of an
international protocol established to ensure that those impacted by a spill receive
compensation as soon as possible, before liability has even been established which can take
years. Liability for the Sea Empress incident was found to rest with the Milford Haven Port
Authority which was legally prosecuted in 1999.
The IOPC Fund 1971 Convention compensates for clean-up operations, property damage,
consequential loss and pure economic loss. Environmental damage can be compensated for
but only where the economic loss can be quantified in monetary terms and further to this,
claims can be submitted for reasonable costs for measures taken to reinstate the marine
environment after an oil spill. Funds can also be provided for post-spill environmental studies
carried out to determine the precise nature and extent of the pollution damage and/or need for
reinstatement measures. In the case of the Sea Empress incident no claims were made or
accepted for environmental damage.
Financial costs relate to the change in revenues to an operator resulting from the incident
whilst economic costs relate to the lost returns, or profits, from an activity and thus presents
their value from a national, as opposed to local or regional, perspective. All costs are valued
at their opportunity costs to the nation and hence transfer payments, such as taxes and
subsidies are removed as they represent neither a gain nor a loss to the nation as a whole.
Table 8-3 summarises the findings of the Environment Agency ‘Sea Empress Cost-Benefit
Project’26 which estimated the financial and economic losses associated with the spill at the
end 1997.
Table 8-3: Summary of total costs resulting from Sea Empress oil spill (£ million)
Financial costs
Economic costs
Category
Lower bound
Upper bound
Lower bound
Upper bound
Direct costs
49.1
58.1
49.1
58.1
Tourism
4.0
46.0
0.0
2.9
Recreation
1.0
2.8
Commercial fisheries
6.8
10.0
0.8
1.2
Recreational fisheries
0.1
0.1
0.8
2.7
Local industry
0.0
0.0
0.0
0.0
Conservation/non-use
22.5
35.4
Human health
1.2
3.0
Total
60.0
114.3
75.3
106.1
Source: reproduced from the Environment Agency ‘Sea Empress Cost-Benefit Project’ (pg. xix)
The conservation/non-use costs were estimated by applying a replacement cost to numbers of
observed strandings of each marine mammal species. This method was not extended to
amphipods losses. Non-use values were calculated using a benefits transfer methodology
whereby a range of WTP values per household were extracted from three ‘appropriate’
studies and applied to all households in the Welsh Water region to give the range of estimated
non-use values.
26
Environment Agency. ‘Sea Empress Cost-Benefit Project. Final Report. Research and Development Technical
Report. P119’ (1998)
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The Environment Agency prosecuted the Milford Haven Port Authority which pleaded guilty
to “causing polluting matter to enter controlled waters contrary to section 85(1) of the UK
Water Resources Act 1991”27. On the 15th Jan 1999 the Port Authority was fined a total of £4
million plus costs – the largest fine handed out for a pollution case in the UK at that time27.
However an appeal was launched by the Milford Haven Port Authority and the Court of
Appeals reduced the fine to $0.75 million on 17th Mar 200028. It is not known to what
purpose this money will be put. The Skuld P&I Club and IOPC Fund may also prosecute the
Milford Haven Port Authority to recover compensation monies paid out before liability for
the incident had been established.
27
Environment Agency ‘Record fine over Sea Empress pollution’ 15th Jan 99 (http://www.environment-agency.
gov.uk//modules/MOD44.506.html)
28
Environment Agency ‘Agency disappointed at Sea Empress fine reduction’ 20th Mar 00 (http://www.
environment-agency.gov.uk//modules/MOD44.1867.html)
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9
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EXXON VALDEZ OIL SPILL
9.1 SITE DESCRIPTION
The Prince William Sound and Gulf of Alaska are remote and spectacular areas of pristine
marine and coastal environment. There is an abundance of wildlife and encompasses
thousands of miles of indented, rugged coastline and natural marine environment.
The northern Gulf of Alaska is known for its rich marine life: millions of seabirds; abundant
marine mammals, including sea otters Enhydra luttis, killer whales Orcinus orca, humpback
whales Megaptera novaeangliae, northern sea lions Eumetopias jubatus, harbour seals Phoca
vitulina, and porpoises; five species of Pacific salmon Oncorhynchus spp., Pacific herring
Clupea pallasi, and groundfish that support multimillion-dollar fisheries; and the intertidal
and subtidal communities along its coasts that provide subsistence for coastal villages of
Alaskan natives. The nearly pristine conditions and the abundant wildlife in the Gulf of
Alaska are a magnet for tourism. Tourism and fisheries are key components of the Alaskan
cash economy, especially in coastal areas.
9.2 SITE SERVICES
The following services are provided in the area affected by the Exxon Valdez oil spill:
ECOLOGICAL SERVICES:
Geo-hydrological:
• pollution assimilation
• sediment trapping and control
• nutrient cycling
• shoreline stabilisation
Production/Habitat:
• fish and shellfish habitats
• habitat for fur-bearers, waterfowl and
other wildlife
• food production
• organic material
• maintenance of gene pools
• maintenance of plant populations
Ecosystem Integrity:
• natural open space
• climate regulation
• biodiversity storehouse
• resistance and resilience
9.3
‘HUMAN’ RELATED SERVICES:
Recreational:
• beach use/swimming
• fishing, boating
• wildlife viewing
Commercial / public or private:
• fishing
• waterway navigation
Cultural / historical:
• historical
• spiritual
• subsistence
Non-use value:
• Species, habitats, ecosystems
• Genetic, species diversity and resilience
• Life support: carbon/nutrient cycles.
INCIDENT DESCRIPTION
The Exxon Valdez spill occurred on 23rd March 1989. Around 39,000 metric tonnes of crude
oil was released into the Prince William Sound, before spreading to the Gulf of Alaska,
following the grounding of the Exxon Valdez on Bligh Reef in Prince William Sound.
Approximately 1,300 miles of coastline were oiled, with 200 miles being heavily or
moderately oiled and 1,100 miles being lightly oiled. There is more than 9,000 miles of
shoreline in total in the spill region.
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The spill occurred in early spring just before the annual spawning by Pacific herring in Prince
William Sound. Millions of salmon fry were also about to emerge from their gravel spawning
beds to be washed into the nearshore waters and sustained by the spring plankton bloom.
Young seals and sea otter pups were still experiencing an unusually cold winter; sea ice had
not melted in the backs of many bays. Thousands of wintering sea ducks remained along the
crenulated coasts of Prince William Sound and the outer Kenai Peninsula. Other seabirds
were converging on their breeding colonies in the Gulf of Alaska.
9.4
SCALE OF DAMAGE
The environmental effects of this spill are well documented and report an acute impact on
seabirds, bald eagles Haliaeetus leucocephalus, marine mammals and intertidal communities
in the Prince William Sound and parts of the northern Gulf of Alaska. Longer-term impacts
were suffered by Pacific herring Clupea pallasi and pink salmon Oncorhynchus gorbuscha
and the inter-tidal and sub-tidal environments. It is estimated that 250,000 sea birds, 2,800
sea otters, 300 harbour seals, 250 bald eagles, up to 22 killer whales and billions of salmon
and herring eggs were killed.
9.5
CLEAN-UP ACTIVITIES
The clean-up took four summers, though not all beaches were clean even after that length of
time and activity. It is estimated that wave action from winter storms did more to clean up the
beaches than all the human effort employed (at its peak there were 10,000 workers, 1,000
boats and around 100 aeroplanes involved).
9.6
IMPACT ASSESSMENT FOR NATURAL RESOURCES
Ten years after the Exxon Valdez oil spill, assessments of its impact still vary.
Environmental scientists with much experience of assessing the impacts of oil spills and who
have followed the process of recovery in the Prince William Sound and other impacted areas
have concluded initial expectations of long-term damage do not concur with the reality ten
years on29. This conclusion is in part based on the assumption that the damaged environment
was naturally in a changing state at the time of the spill and has continued to evolve over
time, partly as a result of the spill but also due to natural environmental changes and shock,
e.g. the El Niño effect. They go on to report that over the last 10 years the natural process of
wave action and weathering has recovered the originally affected shoreline. Initial
expectations about the impact of the spill on long-term damage to harbour seal populations
may have been unfounded, there have been no long-term detrimental effects on pink salmon
population runs, population density or habitat occupancy of half of the 23 seabird species
examined. Sea otter populations and the other seabird species appear to have recovered.
However the 2000 Status Report of the Exxon Valdez Oil Spill Trustee Council concludes
that eight species have not recovered (common loon, cormorant, harbour seal, harlequin duck,
killer whale, and pigeon guillemot). Recovered species are bald eagles and river otters.
Recovering resources, which have not yet met specific recovery objectives, are reported as
black oystercatchers, common murres, marbled murrelets, mussels, Pacific herring, pink
salmon, sea otters, sockeye salmon, clams and inter-tidal and sub-tidal communities.
Recovery is unknown for cutthroat trout, Dolly Varden, Kittlitz’s murrelet and rockfish.
29
Wiens J, Brannon J, Burns J, Day R, Garshelis D, Hoover-Miller A, Johnson C, Murphy S. “10 Years after
the Valdez Oil Spill: Fish and Wildlife Recovery. Following the Exxon Valdez Oil Spill.” Discussion and
Conclusions. Papers presented at the International Oil Spill Conference (IOSC) in Seattle, March 8-11, 1999.
http://www.valdezscience.com/wiens/conclusion.html”
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9.7
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RECOVERY OBJECTIVES FOR HUMAN SERVICES
Recovery objectives set following the oil spill are stated as follows:
• Passive Use: Passive uses will have recovered when people perceive that aesthetic and
intrinsic values associated with the spill area are no longer diminished by the oil spill.
• Commercial Fishing: Commercial fishing will have recovered when the commercially
important fish species have recovered and opportunities to catch these species are not lost
of reduced because of the effects of the oil spill.
• Recreation and Tourism: Recreation and tourism will have recovered, in large part, when
the fish and wildlife resources on which they depend have recovered and recreation use of
oiled beaches is no longer impaired.
• Subsistence: Subsistence activity recovery objectives were also set relating to the services
provided to communities, predominantly of Alaskan Natives, such as their reliance on
harvests of subsistence resources, e.g. fish, shellfish, seals, deer and waterfowl, as part of
their traditional lifestyle
The 2000 Status Report of the Exxon Valdez Oil Spill Trustee Council concludes that none of
these levels of recovery has been achieved, and hence are classified as still recovering.
9.8
OUTCOME OF SETTLEMENT
The settlement between the State of Alaska, US government and Exxon was reached in 1991.
The US is not a signatory to the IOPC Fund and therefore this fund was not activated
following the incident. A mixture of large range Primary Restoration and Compensatory
Restoration projects was initiated after the spill, greatly aided by the quantum of the
settlement reached with Exxon.
The settlement following the spill included a number of elements:
•
Criminal Plea Agreement. Exxon was fined US$ 150 million for the environmental crime.
The court forgave $125 million of this fine in recognition of Exxon’s co-operation in
cleaning up and paying some private claims.
•
Of the remaining $25 million of the Criminal Plea Agreement, $12 million went to the
North American Wetlands Conservation Fund and $13 million to the national Victims of
Crime Fund.
•
Criminal Restitution: As a result of injuries caused to the fish, wildlife and lands of the
spill region $100 million was divided evenly between the federal and state government.
•
Civil Settlement: US$ 900 million to be paid annually over a ten-year period for
restoration of resources (with provision for allowing a further claim to be made for $100
million in the future if necessary). Of this amount, $213 million went towards
reimbursement of the federal and state governments for damage assessment and spill
response, whilst the remaining $687 million went to the Exxon Valdez Oil Spill Trust
Council.
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A breakdown of the use of payments from the Settlements is shown in Table 9-1 below.
Table 9-1: Use of Payments made by Exxon as part of Civil and Criminal Settlements
US $ million
Civil Settlement*
Reimbursements for Damage Assessment and Response
Damage assessment, litigation and clean-up
Exxon Valdez Oil Spill Trust Council
Research, Monitoring and General Restoration
213
180
Surveys and monitoring, general restoration included funding projects to protect archaeological resources, enhance
salmon streams, reduce marine pollution and restore damaged habitats
Habitat Protection
395
Large Parcel and Small Parcel habitat protection programs
108
Restoration Reserve
Savings account established to support long-term restoration activities beyond last payment from Exxon in
September 2001.
Science Management, Public Information and Administration
31
Management of annual work plan and habitat programmes, scientific oversight of research, monitoring and restoration
projects, agency co-ordination and overall administrative costs, costs of public meetings, newsletters and other means
of disseminating information to the public.
Criminal Settlement
Federal government used most of its portion to help the Trustee Council with:
50
Habitat Protection, Shoreline Monitoring, Oil Spill Research and General Restoration
State of Alaska divided its money between:
50
Capital improvements benefiting fisheries and research, habitat improvements, subsistence and new recreational
facilities.
* Note: the Civil Settlement totalled $927 million including interest payments
9.9
RISK AND UNCERTAINTY – IMPLICATIONS FOR LIABILITY
The Civil Settlement included a provision for allowing a further claim to be made for $100
million in the future if necessary. It is not clear whether this claim has been made, however
the original 1994 Restoration Plan created a reserve account to fund restoration into the future
by setting aside money annually to ensure creation of a $140 million reserve. An additional
$30 million of unspent funds was added to this reserve. Two funds were set up to fund a
long-term habitat restoration program and a multi-decadal research and community-based
restoration program and their continuation was approved in 1999.
9.10 COMPARISON OF EXXON VALDEZ AND SEA EMPRESS OIL SPILLS
Soon after the Exxon Valdez oil spill the United States and State of Alaska commissioned
scientific studies to determine the significance of damage to the marine environment, affected
coastline and habitats and species they support. Economic valuation studies were also
commissioned to quantify various impacts and losses including a contingent valuation study
to determine the loss of passive use values30.
These assessments helped secure the Criminal and Civil Settlements with Exxon which were
made in 1991 and it was with money from the Civil Settlement that the Exxon Valdez Oil
Spill Trust Council was set up. This Council has undertaken the vast majority of Primary and
Compensatory Restoration activities designed to restore the damaged natural resource and the
related-services it provides.
30
Carson, R. et. Al. ‘A Contingent Valuation Study of Lost Passive Use Values Resulting from the Exxon
Valdez Oil Spill. A report to the Attorney General of the State of Alaska.’ 10th November 1992.
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Information is not available as to how the decision making process actually functioned, i.e.
how choices were made between different Restoration activities, beyond the initial clean-up
phase, and how their costs and benefits were assessed. However it could be assumed that
such a process was defined, or became more defined, with the establishment of the Exxon
Valdez Oil Spill Trust Council, not before, and therefore with the introduction of funds with
which to pay for activities once the best course of action was been determined.
In the case of the Sea Empress oil spill, the Environment Agency, Countryside Commission
for Wales and other local NGOs, Agencies and local government bodies were involved in the
initial clean-up stages following the spill. The Sea Empress Environmental Evaluation
Committee (SEEEC) was established 27th March 1996 by the UK government and its Terms
of Reference included:
•
Co-ordinate monitoring work carried out by government departments and other public
bodies to assess the environmental impact of the spill and subsequent clean-up activities;
•
Ensure a comprehensive set of monitoring data on environmental distributions and
impacts is obtained;
•
Assess the overall impact of the incident on environment resources in the area affected
(including fisheries, agriculture, amenity and wildlife conservation) and assess
subsequent recovery of these resources;
•
Publish principle findings and conclusions of these studies
Economic impact assessments were commissioned separately by the local authority,
Environment Agency and other public bodies.
Information is not available to describe the process by which Primary or Compensatory
Restoration options were defined and decided upon; decisions were probably taken internally
at local and national government and government body level. However no clearly defined
procedure currently exists in the UK to assess whether such actions may be required and it is
arguable that without the existence of a defined liability system, such a system will not be
developed. Claims to the IOPC Fund for environmental damage can theoretically be made,
but were not in the case of the Sea Empress. It is unclear as to what type of body, i.e.
government or NGO would be accepted as a suitable claimant.
Litigation for the costs of damage to the environment or natural resources are not common in
the UK although the situation is slowly changing. The Environment Agency did successfully
prosecute the Milford Haven Port Authority for causing polluted matter from the Sea
Empress to enter controlled waters and the initial fine handed down by the Courts was the
largest recorded at its time for a pollution related case, though its quantum was significantly
reduced on appeal by the defendant. If successful pollution-related litigation was more
common in the UK, as it is in the US, then perhaps the UK government would have
established a more transparent system of damage assessment and an appropriate restorationdecision making structure.
The impact of the Exxon Valdez oil spill was much greater in magnitude than the Sea
Empress spill however it seems that early assessments of each spill were probably
overestimated, partly as a result of media attention and an emotional response to the
tragedies. The main difference in post-spill activities restoration and compensatory activities
appears to result from the fact that the US government secured a hefty financial settlement
from Exxon with which it was able to plan restoration activities through setting up the Exxon
Valdez Oil Spill Trust Council. SEEEC on the other hand was limited to mainly monitoring
research and determining the impact of the Sea Empress spill.
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Given its lower impact on the marine environment, the scale of restoration activities
experienced in the Alaska would not have been at all appropriate, but a level of
Compensatory Restoration to compensate for Interim Losses may have been appropriate.
However, this was probably not explored in the detail set out by this study of a suitable
Liability Regime arguably because funds were unlikely, or perceived to be unlikely, to be
available.
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