(a) General. After issuing a Notice of Intent to Conduct Restoration Planning under § 990.44 of this part, trustees must determine if injuries to natural resources and/or services have resulted from the incident.
(b) Determining injury. To make the determination of injury, trustees must evaluate if:
(1) The definition of injury has been met, as defined in § 990.30 of this part; and
(2)
(i) An injured natural resource has been exposed to the discharged oil, and a pathway can be established from the discharge to the exposed natural resource; or
(ii) An injury to a natural resource or impairment of a natural resource service has occurred as a result of response actions or a substantial threat of a discharge of oil.
(c) Identifying injury. Trustees must determine whether an injury has occurred and, if so, identify the nature of the injury. Potential categories of injury include, but are not limited to, adverse changes in: survival, growth, and reproduction; health, physiology and biological condition; behavior; community composition; ecological processes and functions; physical and chemical habitat quality or structure; and public services.
(d) Establishing exposure and pathway. Except for injuries resulting from response actions or incidents involving a substantial threat of a discharge of oil, trustees must establish whether natural resources were exposed, either directly or indirectly, to the discharged oil from the incident, and estimate the amount or concentration and spatial and temporal extent of the exposure. Trustees must also determine whether there is a pathway linking the incident to the injuries. Pathways may include, but are not limited to, the sequence of events by which the discharged oil was transported from the incident and either came into direct physical contact with a natural resource, or caused an indirect injury.
(e) Injuries resulting from response actions or incidents involving a substantial threat of a discharge. For injuries resulting from response actions or incidents involving a substantial threat of a discharge of oil, trustees must determine whether an injury or an impairment of a natural resource service has occurred as a result of the incident.
(f) Selection of injuries to include in the assessment. When selecting potential injuries to assess, trustees should consider factors such as:
(1) The natural resources and services of concern;
(2) The procedures available to evaluate and quantify injury, and associated time and cost requirements;
(3) The evidence indicating exposure;
(4) The pathway from the incident to the natural resource and/or service of concern;
(5) The adverse change or impairment that constitutes injury;
(6) The evidence indicating injury;
(7) The mechanism by which injury occurred;
(8) The potential degree, and spatial and temporal extent of the injury;
(9) The potential natural recovery period; and
(10) The kinds of primary and/or compensatory restoration actions that are feasible.