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RULE §20.36Plans for Restoration, Rehabilitation, Replacement and/or Acquisition of the Equivalent of Injured Natural Resources

(a) General. The state trustees shall develop and implement a plan for the restoration, replacement, rehabilitation and/or acquisition of the equivalent natural resources.

(b) Requirements. Each restoration plan developed by state trustees shall:

  (1) include an analysis of a natural recovery alternative and other appropriate alternative restoration plans;

  (2) be cost-effective and technically feasible;

  (3) not have restoration costs grossly disproportionate to the value of the natural resources and the services provided by the resources prior to the unauthorized discharge of oil;

  (4) allow for corrective revisions in the execution of the restoration plan;

  (5) provide for a period of monitoring sufficient to determine the effectiveness of the plan; and

  (6) be available for public review and comment for at least 30 days prior to initiation of the plan.

(c) Procedure. The restoration plan may be developed simultaneously with other portions of the damage assessment.

  (1) When the state trustees conduct an expedited damage assessment, restoration plans should be developed as early in the process as practicable.

  (2) When the state trustees conduct a comprehensive damage assessment, restoration plans may be developed in phases. Phased restoration plans may be utilized when:

    (A) state trustees determine that pilot projects are necessary to establish the feasibility of the restoration plan;

    (B) natural recovery is the chosen alternative for some, but not all, of the injured natural resources; or

    (C) there is a potential for continuing injury resulting from the unauthorized discharge of oil.

  (3) The restoration plan may include any combination of restoration, rehabilitation, replacement and/or acquisition of equivalent natural resources to ensure full compensation for injured natural resources.

(d) Certification of completion. The state trustees, exercising their best professional judgment, shall establish criteria for determining when a restoration plan is completed.

  (1) The state trustees, when determining whether restoration is complete, shall consider:

    (A) performance standards and appropriate measures for their achievement;

    (B) natural changes occurring in reference areas; and

    (C) ability of the natural resources to maintain their viability without further human intervention.

  (2) The state trustees shall issue a certificate of completion to the responsible person when no further actions are necessary to achieve the goals of the restoration plan.

(e) Equivalent resource plans. If an equivalent resource plan has been developed for the ecosystem encompassing the injured natural resources, the state trustees may utilize the restoration projects identified in that plan for purposes of compensating for the injuries resulting from a particular unauthorized discharge of oil.

  (1) Public participation. The state trustees, when selecting a restoration project from the equivalent resource plans developed pursuant to this section, shall submit the project for public review and comment according to §20.44(c) of this title (relating to Public Review and Comment).

  (2) Criteria for use of equivalent resource plan project. The state trustees may select a project from the equivalent resource plan when the state trustees, in consultation with the responsible person, determine that:

    (A) there is an ecological relationship between the injured resources and the objectives of the particular project;

    (B) the direct, on-site, in-kind restoration of the injured resources is not technically feasible or cost-effective; and

    (C) utilization of an equivalent resource plan project will result in a level of services substantially similar to those lost as the result of the unauthorized discharge of oil.

Source Note: The provisions of this §20.36 adopted to be effective October 19, 1994, 19 TexReg 7911; amended to be effective October 21, 2010, 35 TexReg 9318

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