On October 26, 2018, the Department of the Interior (Interior) closed a 60-day public comment period on its advance notice of a proposed rulemaking (ANPRM) that solicited ideas on revising Interior’s regulations for conducting natural resource damage assessments and restoration (NRDAR).  As we discussed in a previous alert, Interior performs NRDAR activities in response to releases of hazardous substances that injure natural resources.  

This opportunity to update Interior’s regulations is important for entities whose activities may result in releases of hazardous substances that injure natural resources. Changes to the NRDAR regulations could, if appropriately drafted, modernize Interior’s process and revise or eliminate many of the elements that slow down NRDAR cases and lead to ballooning costs for affected industries and government trustees alike.

Given our experience in the NRDAR field, Nossaman submitted comments to Interior (found here), which focused on three overarching revisions that Interior should consider: (1) streamlining the environmental review process for NRDAR activities; (2) revising the NRDAR regulations to make them simpler and clearer; and (3) encouraging the use of innovative tools that help get restoration on the ground more quickly and cost-effectively.  Over 50 other entities, including states, tribes, and representatives from industry groups, also submitted comments on the ANPRM.  Many made similar suggestions related to simplification, efficiency, and cost-effectiveness, while others suggested wholesale changes to basic NRDAR definitions; others encouraged Interior not to update the regulations at all.

Interior will now undertake to review the comments it received and decide whether to proceed with a rulemaking.  Nossaman will continue to track this potential rulemaking and provide further updates if Interior decides to move to a formal rulemaking.