United States: State-By-State Guide To NRD Programs In All 50 States And Puerto Rico


States may pursue natural resource damage (NRD) claims pursuant to the key federal statutes or, in some cases, pursuant to independent state authority. Over the years, many states have played a critical role in the prosecution of NRD claims. Furthermore, as can be seen below, it is fair to say that state programs are evolving rapidly. Several state programs are fairly robust and many other states are currently considering increased NRD activity.

This guide provides an overview of the NRD programs in all 50 states plus Puerto Rico. The overview of each respective program includes a discussion of applicable statutory authority, principal state trustee(s), major matters and settlements where that information is available, contact information, and important reference material.

The information in this guide was generally derived from self-reporting by the state trustees. In 2006, Arnold & Porter contacted every state trustee and solicited information regarding the trustee's NRD program. Specifically, we requested information regarding the following: (i) the nature and history of the trustee's efforts, (ii) the number of employees involved and their roles, (iii) the state's NRD budget, (iv) the damage assessment methodologies used, (v) authority to employ private counsel, (vi) the types of injuries frequently seen, (vii) the amounts recovered in past actions, (viii) the major pending matters, (ix) whether the state was currently pursuing groundwater claims, and (x) the applicable state statutes, if any.

In general, the state trustees were very responsive and willing to provide information. Many state trustees responded in writing, although in some cases information was gathered by telephone. To the extent the trustee responded in writing, these responses are on file with the author. Additional information was obtained from the internet.

This 50-state guide was comprehensively updated in 2008, 2012, 2013, 2015, 2016, and most recently in July 2017. Arnold & Porter requested from each state information regarding recent developments and major matters. In addition, where possible, we updated contact information, delegation authority, staffing/budget data, and other aspects of the guide.

Brian Israel is Chair of Arnold & Porter's Environmental Practice Group. The author would like to thank Leigh Logan of Arnold & Porter for her assistance in updating this guide. Please contact the author if you would like to receive an update of this guide to NRD programs.

[1] Alabama

[a] Overview

The natural resource trustees in Alabama are the Commissioner of the Department of Conservation and Natural Resources (ADCNR) and the State Geologist of the Geological Survey of Alabama (GSA), with the Commissioner of ADCNR serving as the lead trustee. The State Lands Division serves as the state lead in developing and implementing Alabama's Natural Resource Damages Assessment program. The trustees do not have dedicated NRD staff but use staff members from within their departments as necessary. The state does not use private attorneys to bring NRD claims. Alabama's trustees prefer to use habitat based assessment methods, although other methods are employed as necessary. The state is considering implementing a groundwater program.

[b] Major Matters

Shelby County Train Derailment — In May 2006, a CSX train derailed in Shelby County, Alabama, resulting in a soybean spill into Little Creek, which flows into Yellow Leaf Creek. According to the state, this led to the damage of aquatic life, including fish, mussels, and snails. A cooperative settlement resulted in payment of $491,976 by CSX to the Fish and Wildlife Division of ADCNR, which will be used to compensate for the investigation and value of the aquatic loss. Additionally, a portion of the settlement will support propagation and stocking efforts of freshwater species such as mussels and snails.

Anniston PCB Site — The Anniston plant, located in and around Anniston, Alabama, allegedly produced PCBs from approximately 1929 to 1971. PCBs were allegedly disposed into landfills adjacent to the site and a nearby creek. The Anniston PCB Site is in the process of being remediated. NRD is currently being assessed as well. NRD trustees include ADCNR, GSA, and the U.S. Department of the Interior (DOI), as represented by the U.S. Fish and Wildlife Service (USFWS). A Stage I Assessment Plan was released in March 2010 and assessed the following resources for potential injury: surface water, groundwater, geological resources such as floodplain soils, and biological resources such as fish and birds.

Ciba-Geigy McIntosh Plant NPL Site — According to trustees—USFWS, the National Oceanic and Atmospheric Administration (NOAA), ADCNR, and GSA—historic disposal practices at the 1,500-acre Ciba-Geigy McIntosh Plant, located in McIntosh, Alabama, released hazardous substances—including DDT, DDE, and DDD—that contaminated soils, surface water, groundwater, and sediments in the Tombigbee River floodplain and Mobile Bay watershed. The site was listed on the National Priorities List in 1984. On October 2, 2013, a consent decree between the trustees and defendant BASF Corporation was entered, whereby BASF Corporation agreed to pay $5 million in total settlement costs, broken down as follows: $3.2 million to plan, implement, and oversee natural resource restoration projects in the Mobile Bay watershed; $500,000 to ADCNR for ecosystem restoration in the Mobile Bay watershed through support of the Alabama Aquatic Biodiversity Center; and $1.3 million to the federal trustees for past assessment costs.

Deepwater Horizon — On April 20, 2010, an explosion on the offshore drilling rig, Deepwater Horizon, caused a fire and led to the subsequent sinking of the rig into the Gulf of Mexico, resulting in the release of oil into the Gulf. The wellhead was capped in mid-July 2010. The natural resource trustees that are engaged in this matter include NOAA, DOI, U.S. Environmental Protection Agency, U.S. Department of Agriculture, ADCNR, GSA, Florida Department of Environmental Protection, Louisiana Coastal Protection and Restoration Authority, Louisiana Oil Spill Coordinator's Office, Louisiana Department of Environmental Quality, Louisiana Department of Wildlife and Fisheries, Louisiana Department of Natural Resources, Mississippi Department of Environmental Quality, Texas General Land Office, Texas Parks and Wildlife Department, and Texas Commission on Environmental Quality. Very shortly after the incident occurred, one of the responsible parties, BP Exploration & Production Inc. (BPXP), began engaging in cooperative studies with the trustees to assess NRD caused by the oil release. Technical Working Groups were created for potentially impacted natural resources, and over 160 cooperative studies were undertaken including for birds, marine mammals (e.g., dolphins), sea turtles, marshes, oysters, offshore water column, offshore benthic habitats, and human use. In April 2011, BPXP and the trustees entered into a Framework Agreement whereby BPXP committed to provide up to $1 billion toward early restoration projects to address NRD caused by the incident. Between 2012 and 2016, five phases of early restoration projects were approved by the trustees and BPXP, encompassing 65 projects at an estimated $866 million.

On April 4, 2016, a consent decree, which resolves the United States' Clean Water Act penalty claim against BPXP, all NRD claims of the United States and the five Gulf States, as well as certain other federal and state claims, was approved by the court in MDL 2179. Pursuant to the consent decree, BPXP will pay $8.1 billion over 15 years for NRD (which includes the $1 billion previously committed for early restoration), up to $700 million for adaptive management and to address natural resource conditions that are presently unknown, and $350 million for NRD assessment costs incurred by the trustees. The consent decree can be found here: https://www.justice.gov/enrd/file/838066/download.

In February 2016, the trustees released their Final Programmatic Damage Assessment and Restoration Plan and Final Programmatic Environmental Impact Statement. The plan allocates settlement funds to address habitat, water quality, living coastal and marine resources, recreational opportunities, and monitoring, adaptive management, and administrative oversight to support restoration implementation. For more information about this matter, see http://www.gulfspillrestoration.noaa.gov/ or http://www.gulfspillrestoration.noaa.gov/ or http://www.bp.com/en/global/corporate/press/pressreleases/bp-to-settle-federal-state-local-deepwater-horizon-claims.html.

To view the full article, please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions