Addressing the Uncertainty and Requirements for Oil Spill Response Consultations

Abstract

ABSTRACT In the United States (U.S.), oil spill response planning, preparedness, and response requirements are dictated primarily by the National Oil and Hazardous Substances Pollution Contingency Plan, a regulation that implements the Oil Pollution Act of 1990, the Clean Water Act, and the Comprehensive Environmental Response, Compensation and Liability Act. At the planning stage, these regulations require the development of national, regional, and local response capabilities and promote overall coordination among responders. During a spill, these capabilities are utilized by the Federal On-Scene Coordinator (FOSC) to analyze whether response actions are likely to impact protected resources. The consultation process required under Federal statutes, charges the FOSC to consult with Federal, state, Tribal entities, and other Federal agencies to determine potential effects of response actions during an incident and to develop strategies to avoid, minimize, and mitigate those effects (40 CFR § 300.135(j); § 300.305(e); and § 300.322(a), 1994). Consultations should continue until response operations are concluded and may continue after operations are complete. Four key regulatory mandates that require an FOSC to initiate consultation during a response include:Endangered Species Act of 1973, as amended requires consultation with US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) on federally listed species and designated critical habitats;Magnuson-Stevens Act requires consultation with NMFS on any action that may affect Essential Fish Habitats;National Historic Preservation Act of 1966, as amended requires Federal agencies to consult with states, federally recognized tribes, and other stakeholders on potential impacts to historic and cultural resources; andTribal Consultations under Executive Order 13175 – Consultation and Coordination with Indian Tribal Governments when federally recognized Indian Tribes and their interests are affected by a response. Consultation is also required under the Native American Graves Protection and Repatriation Act when Native American burial sites, human remains, funerary objects, sacred objects, or items of cultural patrimony are identified on Federal or Tribal lands during a response and no pre-consultation plan of action has been developed.1 Consultation requirements are not universally understood, leading to uncertainty and inconsistencies across the response community and Trustees regarding when to initiate and how to conduct the consultations. This paper discusses the Federal consultation requirements and identifies areas of possible uncertainties in the consultation process throughout the pre-spill planning, response, and post-response phases of an incident. This paper will suggest resolutions and recommendations to further enhance the consultation process by the Federal spill response decision-makers and planning bodies.