Facilitated by: Jim Mitchell, USEPA Region 5 Mike Coffey, USFWS Region 3

1. The Intersection of Emergency Spill Response,Natural Resource Restoration,and Endangered Species Protectionat Midwest Spill Sites Including case examples from:Lockport, Illinois Pipeline SpillMt. Erie, Illinois Pipeline SpillGuttenberg, Iowa Trainwreck & Spill Facilitated by:Jim Mitchell, USEPA Region 5Mike Coffey, USFWS Region 3

2. Background • Lockport, IL pipeline spill Dec. 14, 2010500 barrels crude oil Ditch to wetlands 3.5 acres of oiled marsh Trenches, vac trucks, soil removal Hine’s emerald dragonfly

4. Background • Mt. Erie, IL pipeline spill Aug. 10, 20085,000 barrels crude oil Slope to bottomland forest 7.1 acres of oiled sloughsVac trucks, soil removal Indiana bat

6. Background • Guttenberg, IA spill Jul. 9, 2008 3,800 gallons diesel fuel Railroad grade to river Absorbent booms & pads Mussel bed

8. Emergency Spill Response (OPA & CWA) Migratory Bird Treat Act (MBTA) Pollution Response Fund AgreementsPRFA Rescue of oiled wildlife Rehab of oiled wildlifeRelease of clean wildlife Shoreline Clean Up and Assessment Teams (SCAT) Minimize response impacts =Resource Advisors (RE-AD) Protection of downstream resources = Resources at Risk (RAR) Not a PRFA activityDirected by Trustees Not Incident Commanders Natural Resource Damage Assessment and Restoration (NRDAR) Endangered Species Act Consultation (ESA)

9. The remaining parts of this presentation will be aboutthe interplay between emergency spill response, ESAand NRDAR. http://www.fws.gov/endangered/ http://restoration.doi.gov/Default.aspx

10. U.S. Fish and Wildlife ServiceRegion 3Ecological Services:Endangered Species ProgramEnvironmental Contaminants Program

11. Incident Command System

12. Endangered Species Act (ESA) • 16 U.S.C. 1531 et seq. • Section 9 prohibitions and use of term “take” • Section 7 Federal agency coordination • Section 10 non-Federal agency coordination • Section 7 regulations are in 50 C.F.R. 402 • Includes provisions for emergency consultations • In 2001, Memorandum of Agreement signed for emergency coordination on spills sites and for contingency planning http://www.epa.gov/Region7/cleanup/superfund/pdf/ricpannex_5.pdf

13. Endangered Species Act (ESA) Section 7 Process for the response not for the oiling • Analysis to determine whether the response activities will cause take of federally listed species • Develop measures to avoid take during the response • If take will still occur, develop measures to minimize the number of organisms affected • After the emergency response, action agency completes a biological assessment with estimate of numbers • USFWS will then reply with a biological opinion that includes an incidental take statement which documents the performance of the measures used to minimize take • Lessons learned and incorporate avoidance measures into Regional, Area, and SubArea contingency plans

14. Endangered Species Act (ESA) • federally listed Critical Habitat: • Like for species, pieces of the landscape are afforded legal protection • Primary constituent elements (PCE) are described • Analysis to determine whether the PCEs are adversely modified • Incorporate into the Section 7 process if adverse modification is likely to occur

15. Endangered Species Act (ESA) • Section 10 non-Federal agency process • Analysis to determine whether the response activities will cause take • Develop measures to avoid take during the action • If take will still occur, develop measures to minimize the number of organisms affected • Complete a Habitat Conservation Plan, NEPA, and then a permit is issued • No provisions for emergency consultation • Federal agency discretion over State or RP led responses

16. Triggers for Concern • Extirpation from part of the species range • Large numbers of organisms loss by a single action • Other large scale naturally occurring problems or human activities that affect the whole species population • Use of terms “Jeopardy” or Extinction

17. Primer on Populations • Federally listed endangered species are on the edge of extinction, reduction in scale and fragmentation of species range • Some species hyper-vulnerable to spills or other perturbations because they exist in only one or several places and their numbers are now extremely low • Once too the population size is too low (functionally extinct), there is the option to bring in for captive breeding at zoos and aquariums

18. Genetics: Interbreeding Drift Hine’s emerald dragonfly

19. Indiana bat Disease:White nose syndrome

20. Primer on Species Biology • Species range, use county distribution • Suitable habitat present, occupied or not • Pathway from the action to the organisms • Is the magnitude of the stress along the pathway sufficient to rise above the thresholds of harm or harassment • Life history traits help mitigate the stressor • Breeding season: finding nests, mates • Reproduction: when, where, how many • Winter season: migration, hibernation • Foraging habits • Habitat use

22. Indiana Bat Summer Habitat Maternity colonies may be under loose bark or in snag cavities up to end of August

25. Lockport Spill SiteHine’s emerald dragonfly Minimize summer use by adults foraging over oiled habitats Protect downstream resources by preventing flow into species habitats (and the river) white: pumped none found Green: pumped foundblue: not pumped yet

26. Quick Summary of Responsibilities USFWS Respond or otherwise make staff available to spill incident. Answer question whether listed species or critical habitat affected by response ops. Develop measures to minimize take. Biologist replies with consultation document and incidental take statement Lessons learned used to revise response plans. USEPA Notify Trustees of spill incident including USFWS & NOAA for listed species. Answer question whether listed species or critical habitat affected by response ops. Inform response of measures to minimize take. FOSC signs initiation package & requests consultation Lessons learned used to revise response plans. http://www.fws.gov/contaminants/FWS_OSCP_05/fwscontingencyappendices/O-EndangeredSpecies/MOATrainingManualVersion02.pdf

27. Natural Resource Damages • 42 U.S.C. 9601 et seq. for CERCLA • 33 U.S.C. 2791 et seq. for OPA • 33 U.S.C. 1251 et seq. for CWA • authorizes recovery of damages for injuries • 43 C.F.R. 11 for CERCLA • 15 C.F.R. 990 for OPA • describes the assessment and restoration processes

28. Natural Resource Damages - Goals • Goal: Make the public whole • Objective #1: Rehabilitation the natural resources affected by exposure to the oil or hazardous substance and from impacts related to the response or remediation back to the condition that existed prior to the incident = primary restoration • Objective #2: Replace the interim or permanent loss of human uses and ecological services = compensatory restoration • Objective #3: Recover past assessment costs and future administrative costs

29. The Natural Resource Damage Assessment (NRDA) is directed by the Natural Resource Trustees not by the FOSC, but there is the need to coordinate safety and access. The Trustees have the option to collect field data for ephemeral conditions in advance of an assessment plan. The response data collection plans may provide the needed data and information on the ephemeral conditions and the vice versa may occur.

30. Natural Resource Damages - Terms • Trustees: Federal agencies, States, Tribes • Baseline: Pre-incident condition • Natural resources: Water (sediment), Geologic (soil), Biologic • Injury: health affects, mortality • Damages: value of injury, or cost to restore • Restoration: rehabilitation, replacement, habitat enhancement, population augmentation • Human use of natural resources • Ecological services flow from the natural resources • Valuation: willingness to pay, monetary value • In kind: similar natural resource

31. % Services Time Graphical Representation Baseline Event

32. % Services Time Graphical Representation Baseline Natural Recovery Event

33. % Services Time Graphical Representation Baseline Primary Restoration Event

34. % Services Time Graphical Representation Compensatory Restoration Baseline Lost Ecological Servicesand Human Uses Event

35. % Services Time Graphical Representation Compensatory Restoration Baseline Lost Services Primary Restoration Natural Recovery Event

36. Natural Resource Damage Assessment • PreAssessment Screen • Assessment • Injury determination • Injury quantification (Habitat Equivalency Analysis-HEA) • Damage quantification • Report of Assessment or • Damage Assessment and Restoration Plan Habitat Equivalency Analysis (HEA) http://www.nova.edu/ocean/visual_hea/

37. Natural Resource Damage Settlement • Cooperative assessments and/or negotiations using results of damage assessments or evaluations • Interesting use of Admin Order for Lockport spill • Consent decree for natural resource damages In kind action by the Responsible Party Cash equivalent for action by the Trustees • Department of the Interior Revolving Fund • Prepare a Restoration Plan and NEPA • Implement the Plan • Monitor performance of restoration actions • Certify as complete

38. Not actual site photosExamples of proposed activities Mt. Erie, ILRestoration

39. Guttenberg, IARestoration Not actual site photosExamples of proposed activities

40. Lockport, ILRestoration Challenges& Discussions

41. Questions Thank you for your participation in the discussions Jim Mitchell Mike Coffey Health Physicist/On-Scene Coordinator Contaminants Biologist USEPA Region 5 USFWS Region 3Emergency Response Branch Greater Illinois and Iowa Ecological 77 W. Jackson Blvd Services Field Office Chicago IL 60604 1511 47th Avenue Office (312) 353-9537 Moline, IL 61265 Office (309) 757-5800 x206