FWS National Contingency Plan

2. Authority

As a manager of trust natural resources, the FWS has a responsibility to conserve, enhance, and protect fish and wildlife, their habitats, and sensitive environments. There are many legislative acts, administrative laws, treaties, compacts, and executive orders that equip the FWS with the legal right to conduct specific activities related to the well-being of fish and wildlife and their habitats. The Migratory Bird Treaty Act, the Endangered Species Act, and the Marine Mammal Protection Act are three (among many) of the more powerful and wide-ranging legal authorities that give the FWS broad access to circumstances occurring on non-Federal property. (Physical access to property other than the Service's may be limited to law enforcement officers investigating the incident and/or other Service employees who have secured consent from the property owner.) The authorities and jurisdictions granted by these legal instruments permit fulfillment of FWS duties and responsibilities for natural resources. The FWS has expertise that is sought by the On-Scene Coordinators and various "response" agencies. The FWS is not a typical response agency for oil spills, but it does respond to spills and participates in "removal" (often confused with "response" in the Comprehensive Environmental Response, Compensation, and Liability Act) activities as they are related to fish and wildlife and sensitive environments. There are direct and indirect responsibilities for the FWS during oil spills. The FWS's role during prespill planning, removal activities and preassessment activities has been enhanced and formalized by the new responsibilities identified in the OPA and the mandated amendments to the Federal Water Pollution Control Act (FWPCA), which revises the revised NCP.

The Oil Pollution Act of 1990
(see Appendix B)

This public law (101-380) established new requirements and amended the FWPCA and the NCP. It provided a suitable legal base to prevent oil spills and improve the quality of the water. It called for, among other things, the development of plans to prevent spills, enhanced prespill planning for "response," new natural resource damage assessment regulations for oil, and a new overall emphasis on natural resources. The FWS is not a typical response agency for oil spills, but it does respond to spills and participates in "removal" activities (defined by the OPA) as they relate to fish and wildlife and sensitive environments. The OPA's section 1012(a) is advantageous for the natural resource trustees because it states that costs incurred for removal and the preassessment of natural resource damages are reimbursable from the Oil Spill Liability Trust Fund (Fund). Therefore, any costs assumed by the FWS for activities associated with an oil spill, up to the activities of conducting a damage assessment, are reimbursable from the Fund.

The OPA mandates that the trustees assess natural resource damages for natural resources under their trusteeship that have been injured by an oil spill. It also calls for the development and implementation of a plan for the restoration, rehabilitation, replacement, or acquisition of the equivalent of natural resources. It should also be highlighted that the OPA states that trustees are to be consulted on the appropriate removal actions to be utilized during an oil spill.

The OPA radically changed the planning process by amending the NCP to emphasize prespill plans and create Area Committees. These Area Committees are responsible for developing Area Contingency Plans. The Area Contingency Plans are the key to having well thought out response options delineated in advance of an oil spill. The FWS needs to actively participate in the development and subsequent updating of these Area Contingency Plans. Each Area Plan is to include an Appendix that addresses fish and wildlife and sensitive environments. The guidance for developing this Appendix comes from section 300.210(c)(4)(A & B) of the NCP.

Another mandate under the OPA that will have a direct impact on the FWS is the requirement for facilities, vessels, and rolling stock (trains and trucks) that handle oil products to prepare response plans. These plans are to be consistent with the Area Plans and must address environmental concerns. The FWS activities would include the identification of fish and wildlife, their habitats, and sensitive environments for incorporation into the various plans and the determination of environmental risk associated with a potential worse-case scenario oil spill by the planner.

The Area Contingency Plans also contain the requirement to have unannounced drills. There are regional spill drills conducted by the U.S. Coast Guard. It is highly recommended that FWS personnel participate as often as possible in these drills so they are prepared and familiar with the procedures, the participants, and the involvement of managing an oil spill response.

The National Contingency Plan
(see Appendix A)

The NCP was promulgated as a Federal regulation in 1973 and established the mechanisms for a National Response System through the National Response Center, the National Response Team (NRT), Regional Response Teams (RRT), and On-Scene Coordinators. There are 13 RRTs designated by the Environmental Protection Agency (EPA) regional boundaries (See Appendix I). The RRTs consist of regional representatives of the Federal agencies that are represented on the NRT, a representative from each of the States within the Region, and any additional private or public groups deemed appropriate. All of the Regional Response Teams are co-chaired by the EPA and the U.S. Coast Guard. The U.S. Department of the Interior (DOI) is represented by its Regional Environmental Officers (REO’s) on the Regional Response Team. REO’s are advised by the DOI agencies, which includes the FWS.

The OPA mandated that the FWPCA be amended, altering the NCP to address many concerns related to oil spills. The EPA was delegated the authority to revise the NCP. The NCP revisions increase the President's authority to direct oil spill and hazardous substance cleanup and expand preparedness and planning activities. The OPA calls for the NCP to "provide for efficient, coordinated, and effective action to minimize damage from oil, and hazardous substance discharges, including containment, dispersal, and removal of oil and hazardous substances...." Items of particular interest to the FWS include the identification of duties and responsibilities of Federal, State, and local agencies addressing water pollution control, conservation and trusteeship of natural resources, and the conservation of fish and wildlife. Under the amendment for strengthening the response planning system, Area Committees are created and directed to develop the Area Contingency Plans.

Area Committees are comprised of qualified personnel from Federal, State, and local agencies. The Area Committees are under the direction of the On-Scene Coordinators. For the coastal areas and the Great Lakes shoreline, the Coast Guard has designated 47 "Captain of the Port" zones as areas for Area Plan development. The Coast Guard has also delegated to the Captains of the Ports the ability to further divide the port areas. Each of these port areas are required to have an Area Committee and prepare an Area Plan. For inland zones, exclusive of the Great Lakes shorelines, the EPA oversees the Area Committees. The Area Committees have been designated as the 13 individual RRTs. The EPA has delegated the authority to its Regional Administrators to designate different members to the committee and, if they so determine, further divide the RRT Region into more defined areas. However, as the final inland areas are designated, they will each require development of an Area Contingency Plan.

The amendments to the NCP also establish requirements for the development of response strategies that address fish and wildlife and sensitive environments. The guidance for these response strategies is contained in a Fish and Wildlife and Sensitive Environments Plan, written by the FWS and the National Oceanic and Atmospheric Administration, and to be incorporated as an annex to every Area Contingency Plan. This section of the NCP calls for annexes that will initiate the immediate and effective protection, rescue, and rehabilitation of, and the minimization of risk of damage to fish and wildlife resources and their habitats that may be jeopardized or harmed by a discharge. The annex of the Area Contingency Plans offers an effective local approach for planning to avoid or mitigate spill-induced injuries to fish and wildlife and sensitive environments. These should offer the immediate identification and provide for protection of sensitive environmental areas, and protection, rescue, and rehabilitation of fish and wildlife (see also chapter 6 and Appendix L). The Area Plan Appendices should identify areas of special economic or environmental importance that may be injured, harmed, and/or threatened by an oil discharge. We have not included Area Contingency Plans within the present plan, but current plans, many of which include sensitive environment plans, may be accessed through links found at http://www.uscg.mil/vrp/acp/acp.shtml.

The National Response Plan
(see Appendix A and NRP directory)

As a result of the terrorist attacks of September 11, 2001, the Department of Homeland Security was created by the Homeland Security Act of 2002, which brought together many Federal agencies that deal with domestic security and related issues. Under that Act, and under Homeland Security Presidential Directive -5 (HSPD-5; Nov 23, 2003), response to a wide variety of incidents was to be consolidated under the Secretary of Homeland Security and the National Incident Management System (March 1, 2004), including terrorist incidents, natural disasters, oil spills, and other major events affecting people and infrastructure. The vehicle for doing so is the National Response Plan (NRP), which was released as final in December, 2004. . In Appendix A, we include the full final text.

Mandated by the Homeland Security Act of 2002 and Homeland Security Presidential Directive 5, the NRP is intended to integrate federal government domestic prevention, preparedness, response, and recovery plans into one all-discipline, all-hazards plan. As the core plan for national incident management, the NRP will replace the Federal Response Plan, the U.S. Government Interagency Domestic Terrorism Concept of Operations Plan, and the Federal Radiological Emergency Response Plan. It will be linked to hazard-specific Federal contingency plans, such as the National Oil and Hazardous Substances Pollution Contingency Plan, designed to implement specific statutory authorities and responsibilities of Federal departments and agencies.

The NRP focuses on prevention, preparedness, response, and recovery for Incidents of National Significance. These are actual or potential high-impact events that require a coordinated and effective response by an appropriate combination of Federal, State, tribal, local, non-governmental and/or private sector entities to save lives and minimize damage.

The NRP is made up of a base plan, 15 Emergency Support Function Annexes,
10 Support Annexes, and 7 Incident Annexes. The ESFs describe the capabilities and resources of Federal agencies to support State, tribal, or local governments or other agencies in specific functional areas during Incidents of National Significance. The Support Annexes describe common processes and specific administrative requirements. The Incident Annexes outline procedures, roles and responsibilities for specific contingencies, such as a terrorist attack.

The majority of these annexes are not relevant specifically to oil spills, and cover a wide variety of potential response situations, including natural disasters, firefighting, terrorist incidents, etc. For more information on definitions of these terms and purpose and scope of the NRP, see the introduction to the NRP, in Appendix A of this FWSOSCP. The most relevant sections for our purposes are the introductory material, ESF #10 Oil and Hazardous Materials Response, ESF #11 Agriculture and Natural Resources, and the Incident Annex for Oil and Hazardous Materials Incidents. (Part of ESF #11 is also a responsibility of the Department of Interior, as it deals with response to incidents other than oil and hazardous materials where cultural and natural resources may be affected, but will not be discussed further here.)

The NRP recognizes the NCP as an existing Federal interagency incident- or hazard-specific plan that is designed to implement specific statutory authorities and responsibilities assigned to specific departments and agencies in particular contingency scenarios. The NRP establishes national-level coordinating structures, processes, and protocols that are to be incorporated into the NCP. The NCP is linked to the NRP in the context of Incidents of National Significance (which are defined in the NRP), but remains as a stand-alone document that provides detailed protocols for responding to routine incidents that normally are managed by Federal agencies without the need for Department of Homeland Security coordination. For oil spills, it is anticipated that higher levels of involvement of the NRP would only come into play for especially major incidents and where possible sabotage or terrorist activities may have been involved in oil or hazardous material incidents. Such a relationship was included as part of the scenario for a recent drill for a “Spill of National Significance,” where part of the scenario hypothesized a potential terrorist incident causing a vessel to spill oil.