Natural Resource Damages AttorneyGlendale & Los Angeles
Counsel for companies and property owners in Glendale and Los Angeles facing trustee notices, damage assessments, and restoration-based settlements.
What are natural resource damages?
Natural resource damages compensate the public for injury to, destruction of, or loss of natural resources caused by a release of hazardous substances or a discharge of oil. Under CERCLA section 107(a)(4)(C), they include the reasonable costs of assessing the injury. Only designated federal, state, and tribal trustees may recover them, and sums recovered must be used to restore, replace, or acquire the equivalent of the injured resources.
At a glance
- Governing law
- CERCLA § 107(a)(4)(C) and (f); Oil Pollution Act, 33 U.S.C. § 2706
- Assessment rules
- 43 C.F.R. Part 11, with at least 30 days for plan review
- Key deadline
- Generally 3 years after discovery of the loss and its connection
- Trustee demand
- At least 60 days to respond before suit (43 C.F.R. § 11.91)
Natural resource damages are claims by government trustees for injury to public resources such as groundwater, wildlife, and coastal waters, brought under CERCLA section 107 and the federal Oil Pollution Act. DiJulio Law Group advises companies and property owners in Glendale and Los Angeles facing trustee notices, damage assessments, and restoration-based settlements.
How natural resource damage claims work in California
Cleanup and natural resource damages answer different questions. Environmental remediation asks how contamination will be investigated and removed, and who pays for that work. A natural resource damage claim asks what the public lost while the resource was injured, and what restoration will make up for it. The same release can produce both, and settling one does not automatically resolve the other.
CERCLA defines natural resources broadly to include land, fish, wildlife, biota, air, water, groundwater, and drinking water supplies that belong to, are managed by, or are held in trust by the United States, a State, a local government, or a tribe. Under section 107(f), the President designates federal trustees and each Governor designates state trustees. A trustee's assessment performed under the Interior Department's regulations at 43 C.F.R. Part 11 (opens in a new tab) carries a rebuttable presumption in later proceedings.
For oil, the Oil Pollution Act of 1990 provides a parallel claim. Under 33 U.S.C. section 2706, damages are measured by the cost of restoring or replacing the injured resources, plus the diminution in their value pending restoration, plus the reasonable cost of assessment. In California, the Office of Spill Prevention and Response within the Department of Fish and Wildlife works with federal trustees on oil spill assessment and restoration.
Because the assessment defines the claim, the most useful work usually happens before any lawsuit: engaging with the trustees on the assessment plan, testing the injury and baseline assumptions, and proposing restoration projects that address the loss.
How are natural resource damages assessed under 43 C.F.R. Part 11?
Assessment Process
Trustees follow a phased process: a preassessment screen, an assessment plan with at least 30 days of review, injury determination, quantification of lost services against baseline, and damage determination based on restoration costs. A report of assessment and a written demand follow, and the trustee should allow at least 60 days for a response before suit.
Responsible parties have defined points of entry. Under 43 C.F.R. § 11.32, the trustee must send identified potentially responsible parties a notice of intent to perform an assessment that invites them to take part, and must allow at least 30 calendar days to respond. The assessment plan must then be available for review by potentially responsible parties and the public for at least 30 calendar days. Those comments shape the record long before any litigation, so technical consultants and counsel are usually engaged at the notice stage and coordinated with the cleanup itself.
- Preassessment
Preassessment screen
A rapid review of readily available information to decide whether there is a reasonable probability of a successful claim before an assessment is funded (§ 11.23).
- At least 30 days
Notice of intent
Identified potentially responsible parties are invited to participate in developing and performing the assessment (§ 11.32).
- At least 30 days
Assessment plan review
The plan is made available to potentially responsible parties, other trustees, and the public; comments and responses go into the record (§ 11.32).
- Type B phases
Injury, quantification, damages
The trustee determines injury and pathway, quantifies lost services against baseline, and prepares a Restoration and Compensation Determination Plan (§§ 11.61 to 11.81).
- At least 60 days
Report and demand
A Report of Assessment is attached to a written demand, and the trustee should allow at least 60 days for a response before filing suit (§§ 11.90, 11.91).
- After recovery
Restoration plan
Recovered damages are used under a restoration plan based on the Restoration and Compensation Determination Plan (§ 11.93).
Natural resource damages vs. cleanup costs: what is the difference?
Comparison
Cleanup costs pay to investigate and remove contamination, and any person who incurs them may seek recovery. Natural resource damages compensate the public for injury to resources such as groundwater and wildlife, and only designated federal, state, and tribal trustees may recover them. Recoveries must be used to restore, replace, or acquire equivalent resources.
| Question | Response costs | Natural resource damages |
|---|---|---|
| Statutory basis | CERCLA § 107(a)(4)(A) and (B) | CERCLA § 107(a)(4)(C), including reasonable assessment costs |
| Who may recover | The government, or any other person that incurred necessary costs consistent with the National Contingency Plan | Only the United States, a State, or an Indian tribe acting as trustee (§ 107(f)) |
| How the claim is measured | Costs actually incurred for removal or remedial action | Assessment under 43 C.F.R. Part 11, based on restoration, replacement, or acquiring equivalent resources |
| Deadline | Generally 3 years after removal or 6 years after remedial construction begins (§ 113(g)(2)) | Generally 3 years after discovery of the loss and its connection with the release; at NPL sites, 3 years after the remedial action is completed (§ 113(g)(1)) |
| Use of money recovered | Reimburses the party that paid | Only to restore, replace, or acquire the equivalent of the injured resources (§ 107(f)(1)) |
Does a Superfund cleanup settlement resolve natural resource damage claims?
Settlements
Not automatically. Under CERCLA section 122(j), a settlement with the United States may include a covenant not to sue for damages to federal trust resources only if the federal natural resource trustee agrees in writing. State and tribal trustees hold their own claims, so each trustee's position should be addressed before a cleanup settlement is treated as final.
When settlement negotiations involve a release that may have damaged federal trust resources, section 122(j) (opens in a new tab) directs that the federal trustee be notified and encouraged to participate. The trustee may agree to a covenant if the responsible party agrees to take appropriate actions to protect and restore the damaged resources, which is one way restoration work can become part of a cleanup settlement.
CERCLA section 107(f)(1) also bars double recovery of natural resource damages, including assessment and restoration costs, for the same release and natural resource. Tracking which trustees have asserted claims, and what earlier settlements covered, helps avoid paying twice for the same injury. Allocation among responsible parties often runs through environmental mediation, and agency penalty matters through environmental enforcement defense.
Managing PartnerR. David DiJulioRead profile- Office
- 330 North Brand Boulevard, Suite 1280, Glendale, California 91203
- Direct line
- (818) 502-1700 · rdd@dijuliolaw.com
- Courts
- Los Angeles County Superior Court, including the Glendale and Stanley Mosk courthouses.
- Focus
- Enforcement defense, permitting and compliance, hazardous waste, and cleanup cost recovery in California.
Natural resource damage matters we handle
For companies, property owners, and former operators in Los Angeles, Glendale, and across California.
Trustee Notices and Early Engagement
Responding to trustee letters and notices of intent to sue, and deciding whether and how to participate in a cooperative assessment.
Assessment Review
Evaluating injury determination, baseline, and quantification under 43 C.F.R. Part 11 or the Oil Pollution Act rules, with technical consultants.
Restoration-Based Settlement
Negotiating resolutions built around restoration projects rather than cash alone, and coordinating the terms with any mediated allocation among responsible parties.
Oil Spill Claims
Oil Pollution Act natural resource damage claims arising from pipeline, facility, or vessel discharges, including coordination with federal and California trustees.
Coordination with Cleanup
Aligning the remedy with restoration goals so cleanup decisions do not enlarge the damages claim, alongside hazardous waste and Clean Water Act obligations.
Transactions and Indemnities
Addressing natural resource damage exposure in purchase agreements, indemnities, and transaction diligence, including for sellers who remain exposed after closing.
Natural resource damage claims that reach our office
Composite examples of the matters this practice handles. They illustrate common fact patterns and are not descriptions of specific client cases or predictions of any result.
The Groundwater Basin Claim
A manufacturer that has funded years of groundwater cleanup in the San Fernando Valley receives a trustee letter about lost use of the aquifer. The response turns on the baseline, the other contributors, and what restoration credit the cleanup already provides.
The Pipeline Release
A crude oil release reaches a creek and nearby shoreline. Federal and California trustees begin an Oil Pollution Act assessment, and the operator must decide early how to participate in data collection and restoration planning.
The Legacy Seller
A company that sold a coastal industrial property decades ago is named in a natural resource damage claim. The defense examines what was released during its ownership and whether the claim was brought within the statute of limitations.
First steps after a trustee notice of intent
Identify the trustees
Federal, state, and tribal trustees may each assert claims for the same resource. Knowing who is involved shapes every later negotiation.
Preserve the technical record
Sampling data, release history, and cleanup reports form the basis for challenging injury and baseline. Keep them organized and consistent with regulatory filings.
Engage before the assessment hardens
Comments and participation during assessment planning generally carry more weight than later challenges. Speak with counsel before responding to the trustees.
Signs a natural resource damage claim needs counsel
- A federal or California trustee has sent a letter or notice of intent to sue.
- Trustees have invited you to participate in a cooperative damage assessment.
- A release has reached surface water, a shoreline, wetlands, or an aquifer.
- An oil discharge has triggered a spill response by state or federal agencies.
- A cleanup settlement is being negotiated without addressing trustee claims.
- A purchase or sale involves property with a known release to public resources.
CERCLA, Oil Pollution Act, and natural resource damage assessment rules
- 43 C.F.R. Part 11: Natural Resource Damage Assessments (opens in a new tab)The Interior Department's assessment rules: preassessment, assessment plan, Type A and Type B procedures, and post-assessment demand and restoration.
- 42 U.S.C. § 9607: CERCLA Liability and Trustees (opens in a new tab)Section 107(a)(4)(C) natural resource damages and section 107(f) trustee designation and use of recoveries.
- 42 U.S.C. § 9613: Limitations for Damage Claims (opens in a new tab)Section 113(g)(1) deadlines for natural resource damage actions, including the rule for National Priorities List sites.
- CDFW Office of Spill Prevention and Response: NRDA (opens in a new tab)California's oil spill natural resource damage assessment and restoration program.
Natural resource damages questions companies and owners ask
What companies and property owners ask when government trustees assert natural resource damage claims in California.
Who can bring a natural resource damage claim?
Only designated government trustees can bring a natural resource damage claim under CERCLA section 107(f), meaning the United States, a State for resources within or belonging to the State, and an Indian tribe for tribal resources, with the President designating federal trustees and each Governor designating state trustees. Private property owners cannot recover natural resource damages, although they may have other claims for harm to their own property.
How are natural resource damages different from cleanup costs?
Cleanup costs pay for investigating and removing contamination, while natural resource damages compensate the public for injury to resources such as groundwater, fish, and wildlife, including lost use while the resource recovers, and they are listed separately in CERCLA section 107(a)(4) because they are measured and recovered differently. Recoveries must be used to restore, replace, or acquire the equivalent of the injured resources.
What is a natural resource damage assessment?
A natural resource damage assessment is the trustees' process for deciding whether resources were injured, quantifying the injury against baseline conditions, and calculating damages, usually as the cost of restoration, and for hazardous substances it follows the Interior Department's rules at 43 C.F.R. Part 11, with a preassessment screen, an assessment plan, and injury, quantification, and damage phases. A properly performed assessment carries a rebuttable presumption.
Can a responsible party participate in the assessment?
Yes, under 43 C.F.R. § 11.32 the trustee must send identified potentially responsible parties a notice of intent that invites them to participate in developing and performing the assessment, allowing at least 30 calendar days to respond, and the assessment plan itself must be available for at least 30 calendar days of review by those parties and the public. Comments and responses become part of the report of assessment.
What is the statute of limitations for a CERCLA natural resource damage claim?
Under 42 U.S.C. § 9613(g)(1), a natural resource damage action generally must be filed in federal court within three years after the later of the discovery of the loss and its connection with the release, or the date the assessment regulations were promulgated. At National Priorities List sites and other sites with a scheduled remedial action, it must instead be filed within three years after the remedial action is completed.
How much time does a trustee give to respond to a damages demand?
Under 43 C.F.R. § 11.91, at the end of an assessment the trustee presents a written demand with the report of assessment attached, and should allow the potentially responsible party at least 60 days from receipt, with reasonable extensions, to acknowledge and respond before filing suit, which is the usual window for proposing a restoration-based settlement. The demand must identify the claimant, the injured resource, the release, and the damages sought.
How does the Oil Pollution Act handle natural resource damages?
The Oil Pollution Act of 1990 makes responsible parties liable for injury to, destruction of, loss of, or loss of use of natural resources caused by oil discharges, and under 33 U.S.C. § 2706 damages equal the cost of restoring or replacing the resources, plus their diminution in value pending restoration, plus the reasonable cost of assessing the damage. In California, the Office of Spill Prevention and Response works with federal trustees on oil spills.
Can a natural resource damage claim be settled with restoration projects?
Often, yes, because recovered damages must be used to restore, replace, or acquire the equivalent of the injured resources, so trustees frequently resolve claims through settlements that fund or require specific restoration projects, sometimes combined with a cash payment, and a credible restoration proposal made early can narrow disputes about injury and valuation. Any settlement should be coordinated with the cleanup and with allocation among other parties.
Natural resource damages counsel in Glendale and Los Angeles
Glendale and Los Angeles matters can involve regional groundwater basins, the Los Angeles River watershed, and the coast. The firm's environmental law practice and business law group handle the related regulatory and commercial issues.
Talk to an Environmental Attorney
Natural resource damage claims are shaped by the assessment long before any lawsuit. Bring the trustee correspondence and the cleanup record, and review exposure in any pending real estate transaction.