Sec. 40.107. NATURAL RESOURCES DAMAGES. (a) (1) In any action to recover natural resources damages, the amount of damages established by the commissioner in conjunction with the trustees shall create a rebuttable presumption of the amount of such damages.

(2) The commissioner shall represent the consensus position of the trustees whenever a collective decision or agreement is required by this section.

(3) Whenever trustees cannot achieve a consensus, the commissioner may invoke mediation to settle any disputed matter related to this section. The mediation shall be immediately commenced and shall be concluded within 10 days of its commencement. The trustees shall abide by the consensus achieved through mediation.

(4) The trustees shall enter into a memorandum of agreement which describes the mediation process of Subdivision (3) of this subsection.

(b) The commissioner may establish the rebuttable presumption by submitting to the court a written report of the amounts computed or expended according to the state plan. The written report shall be admissible in evidence.

(c)(1) The commissioner, in conjunction with the trustees, shall develop an inventory that identifies and catalogs the physical locations, the seasonal variations in location, and the current condition of natural resources; provides for data collection related to coastal processes; and identifies the recreational and commercial use areas that are most likely to suffer injury from an unauthorized discharge of oil. The inventory shall be completed by September 1, 1995.

(2) The physical locations surveyed for the inventory of natural resources shall include, at a minimum, the following priority areas:

(A) the Galveston Bay system and the Houston Ship Channel;

(B) the Corpus Christi Bay system;

(C) the lower Laguna Madre;

(D) Sabine Lake; and

(E) federal and state wildlife refuge areas.

(3) The current condition of selected natural resources inventoried and cataloged shall be determined by, at a minimum, a baseline sampling and analysis of current levels of constituent substances selected after considering the types of oil most frequently transported through and stored near coastal waters.

(4) The commissioner shall adopt administrative procedures and protocols for the assessment of natural resource damages from an unauthorized discharge of oil. As developed through negotiated rulemaking with the trustees and other interested parties, the procedures and protocols shall require the trustees to assess natural resource damages by considering the unique characteristics of the spill incident and the location of the natural resources affected. These procedures and protocols shall be adopted by rule, by the trustee agencies after negotiation, notice, and public comment, by June 1, 1994.

(5) The administrative procedures and protocols shall include provisions which address:

(A) notification by the commissioner to all trustees in the event of an unauthorized discharge of oil;

(B) coordination with and among trustees, spill response agencies, potentially responsible parties, experts in science and economics, and the public; and

(C) participation in all stages of the assessment process by the potentially responsible party, as consistent with trustee responsibilities.

(6) The administrative procedures and protocols shall also require the trustees to:

(A) assist the on-scene coordinator, during spill response activities and prior to the time that the state on-scene coordinator determines that the cleanup is complete, in predicting the impact of the oil and in devising the most effective methods of protection for the natural resources at risk;

(B) identify appropriate sampling and data collection techniques to efficiently determine the impact on natural resources of the unauthorized discharge of oil;

(C) initiate, within 24 hours after approval for access to the site by the on-scene coordinator, an actual field investigation which may include sampling and data collection; the protocols shall require that the responsible party and the trustees be given, on request, split samples and copies of each other's photographs utilized in assessing the impact of the unauthorized discharge of oil; and

(D) establish plans, including alternatives that are cost-effective and efficient, to satisfy the goal of restoring, rehabilitating, replacing, and/or acquiring the equivalent of the injured natural resources.

(7)(A) The administrative procedures and protocols shall also include the following types of assessment procedures and deadlines for their completion:

(i) an expedited assessment procedure which may be used in situations in which the spill has limited observable mortality and restoration activities can be speedily initiated and/or in which the quantity of oil discharged does not exceed 1,000 gallons; the purpose of utilizing the expedited assessment procedure is to allow prompt initiation of restoration, rehabilitation, replacement, and/or acquisition of an equivalent natural resource without lengthy analysis of the impact on affected natural resources; this procedure shall, at a minimum, require that the trustees consider the following items:

(aa) the quantity and quality of oil discharged;

(bb) the time period during which coastal waters are affected by the oil and the physical extent of the impact;

(cc) the condition of the natural resources prior to the unauthorized discharge of oil; and

(dd) the actual costs of restoring, rehabilitating, and/or acquiring the equivalent of the injured natural resources;

(ii) a comprehensive assessment procedure for use in situations in which expedited or negotiated assessment procedures are not appropriate; and

(iii) any other assessment method agreed upon between the responsible person and the trustees, consistent with their public trust duties.

(B) The trustees shall determine, within 60 days of the determination by the on-scene coordinator that the cleanup is complete, whether:

(i) action to restore, rehabilitate, or acquire an equivalent natural resource is required;

(ii) an expedited assessment which may include early commencement of restoration, rehabilitation, replacement, and/or acquisition activities, may be required; and

(iii) a comprehensive assessment is necessary.

(C) The trustees may petition the commissioner for a longer period of time to make the above determination by showing that the full impact of the discharge on the affected natural resources cannot be determined in 60 days.

(D) The trustees shall complete the comprehensive assessment procedure within 20 months of the date of the determination by the state on-scene coordinator that the cleanup is complete. The trustees may petition the commissioner for a longer period of time to complete the assessment by showing that the full impact of the discharge on the affected natural resources cannot be determined in 20 months.

(E) Any assessment generated by the trustees shall be reasonable and have a rational connection to the costs of conducting the assessment and of restoring, rehabilitating, replacing, and/or acquiring the equivalent of the injured natural resources. The trustees shall ensure that the cost of any restoration, rehabilitation, replacement, or acquisition project shall not be disproportionate to the value of the natural resource before the injury. The trustees shall utilize the most cost-effective method to achieve restoration, rehabilitation, replacement, or acquisition of an equivalent resource. Furthermore, the trustees shall take into account the quality of the actions undertaken by the responsible party in response to the spill incident, including but not limited to containment and removal actions and protection and preservation of natural resources.

(F) The potentially responsible party shall make full payment within 60 days of the completion of the assessment by the trustees or, if mediation pursuant to this paragraph is conducted, within 60 days of the conclusion of the mediation. To facilitate an expedited recovery of funds for natural resource restoration and to assist the trustees and the responsible party in the settlement of disputed natural resource damage assessments at their discretion and at any time, all disputed natural resource damage assessments shall be referred to mediation as a prerequisite to the jurisdiction of any court. Results of the mediation and any settlement offers tendered during the mediation shall be treated as settlement negotiations for the purposes of admissibility in a court of law. Either the trustees or the potentially responsible person may initiate the mediation process, after an assessment has been issued, by giving written notice to the commissioner, who shall give written notice to all parties. One mediator shall be chosen by the trustees and one mediator shall be chosen by the responsible parties. Within 45 days of the receipt of the assessment from the trustees, the mediators shall be designated. The mediation shall end 135 days after the receipt of the assessment from the trustees.

Added by Acts 1991, 72nd Leg., ch. 10, Sec. 1, eff. March 28, 1991. Amended by Acts 1993, 73rd Leg., ch. 776, Sec. 5, eff. Sept. 1, 1993; Acts 2003, 78th Leg., ch. 146, Secs. 8, 9, eff. Sept. 1, 2003.