SECTION 20.10. Definitions

The following words, terms and phrases, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Acquisition of equivalent--The acquisition of a natural resource that provides services substantially equivalent to those injured as the result of an unauthorized discharge of oil.

(2) Area Contingency Plan--The contingency plan required by the Federal Water Pollution Control Act (33 United States Code Annotated §1321(j)(4)).

(3) Assessment or natural resource damage assessment--The process of collecting, compiling and analyzing information through prescribed procedures and protocols to determine damages for injuries to natural resources and any loss in the services provided by the natural resources resulting from an unauthorized discharge of oil.

(4) Assessment area--The area or areas within which natural resources and the services they provide have been affected directly or indirectly by the unauthorized discharge of oil.

(5) Center--The Center for Public Policy Dispute Resolution and any successor entity established by the University of Texas providing statewide assistance and expertise to government agencies and courts for the design and implementation of alternative dispute resolution processes.

(6) Coastal Protection Fund (CPF)--The fund established by the OSPRA, §40.151.

(7) Coastal waters--The waters and bed of the Gulf of Mexico within the jurisdiction of the State of Texas, including the arms of the Gulf of Mexico subject to tidal influence, and any other waters contiguous thereto that are navigable by vessels with a capacity to carry 10,000 gallons or more of oil as fuel or cargo and as further defined in §19.2(a)(1) of this title (relating to Definitions).

(8) Commissioner--The commissioner of the Texas General Land Office.

(9) Comprehensive damage assessment--A method including sampling, modeling, and other appropriate scientific procedures to make a reasonable and rational determination of injury to natural resources resulting from an unauthorized discharge of oil.

(10) Cost-effective--When two or more activities provide the same or a similar level of benefits, the one which costs the least is cost-effective.

(11) Damages--With respect to natural resources, includes the cost to assess, restore, rehabilitate, replace and/or acquire the equivalent of injured natural resources, or to mitigate further injury, and their diminution in value after such restoration, rehabilitation, replacement, or mitigation.

(12) Discharge of oil--An intentional or unintentional act or omission by which harmful quantities of oil are spilled, leaked, pumped, poured, emitted, or dumped into or on coastal waters or at a place adjacent to coastal waters where, unless controlled or removed, an imminent threat of pollution to coastal waters exists.

(13) Ecological services--The services provided by natural resources to each other and includes, but is not limited to, water purification, flood control, erosion control, shelter, food supply, and reproductive habitats.

(14) Expedited damage assessment--A method selected by the state trustees that allows for prompt initiation of restoration, replacement, rehabilitation, and/or acquisition of an equivalent natural resource without lengthy analysis of the impact on affected natural resources and which may utilize limited, focused field and/or laboratory studies related to injured natural resources.

(15) Exposure--When all or part of a natural resource is or may be in physical contact with oil or with media containing oil or its degradation products.

(16) Federal fund--The Oil Spill Liability Trust Fund established by the Internal Revenue Code of 1986, 26 United States Code §9509.

(17) Federal trustee--Officials of the federal government designated, according to OPA, §2706(b)(2), as trustees and also includes, for the purposes of the rules, Indian tribes and foreign governments which may present a claim for and recover damages for injury to natural resources.

(18) Field investigation--An evaluation of the area impacted by an unauthorized discharge of oil to determine the actual and potential exposure of natural resources and the impact on natural resources and the services they provide for the purpose of evaluating which damage assessment methods, if any, should be utilized by state trustees.

(19) Harmful quantity--A quantity of oil that has created a sheen or film on coastal waters or that has been deposited as a sludge or emulsion in, on or under coastal waters.

(20) Incident--Any unauthorized discharge of oil or series of unauthorized discharges of oil having the same origin, involving one or more vessels, facilities, or any combination thereof.

(21) Injury--Any measurable adverse change, either long or short term, in the chemical or physical quality or the viability of a natural resource or any loss of a service provided by that resource resulting either directly or indirectly from exposure to an unauthorized discharge of oil.

(22) Lead administrative trustee--The state trustee responsible for compiling the assessment record and for coordinating activities of the state in the natural resource damage assessment process.

(23) Limited observable mortality--A determination that, in the best professional judgment of the state trustees, the mortality of natural resources from exposure to oil is not extensive or severe.

(24) Loss--A measurable adverse reduction in the chemical or physical quality or the viability of a natural resource or a reduction in a service provided by a natural resource resulting either directly or indirectly from exposure to an unauthorized discharge of oil.

(25) Mediation--The process defined in the Texas Civil Practice and Remedies Code, §154.023.

(26) National Contingency Plan--The federal regulations for response to oil spills and releases of hazardous substances, published at the Code of Federal Regulations, Title 40, Part 300.

(27) Natural recovery--The process through which injured resources and their services recover, without additional human intervention.

(28) Natural resources--All land, fish, shellfish, fowl, wildlife, biota, vegetation, air, water, groundwater, and other similar resources owned, managed, held in trust, regulated, or otherwise controlled by the State of Texas.

(29) Negotiated assessment--Any assessment method agreed to by the state trustees and the responsible person.

(30) Oil--Oil of any kind or in any form, including but not limited to crude oil, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil, but does not include petroleum, including crude oil or any fraction thereof, which is specifically listed or designated as a hazardous substance under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 United States Code Annotated §9601(14)(A) - (F), and which is subject to the provisions of that Act.

(31) OSPRA--The Oil Spill Prevention and Response Act, Texas Natural Resources Code, Chapter 40.

(32) OPA--The Oil Pollution Act of 1990, 33 United States Code Annotated §2701 et seq.

(33) Passive use values--The values a person places on natural resources which are not derived from direct use of those resources. These values include the value derived from: the knowledge of the existence of the resource and its protection; the availability of the resource for the use of a person, a person's family and other members of the public; and the knowledge that the resources will be available for future generations.

(34) Pathway--Any physical, biological or chemical link that connects a natural resource to an unauthorized discharge of oil.

(35) Pre-discharge condition--The condition or conditions of the natural resources and the level of services provided by those resources before the unauthorized discharge of oil. Pre-discharge condition may be measured by use of a reference area or a reference resource or by analysis of historical data.

(36) Properties of oil--The persistence, degradability, dispersability, toxicity, bioaccumulative effects, and any other characteristics relevant to a particular unauthorized discharge of oil.

(37) Public use--The services provided by natural resources for human activities; this includes, but is not limited to, cultural, archaeological, transportation, public water supply, industrial water supply, swimming, fishing, harvesting of natural resources, nature viewing, hunting, diving, sailing, boating, hiking, camping, climbing, photographing, drawing, painting, and other human activities.

(38) Recovery--The return of the injured natural resource and service to its pre-discharge or comparable condition within the constraints of natural or other variability.

(39) Reference area or reference resource--An area or natural resource, unaffected by the relevant unauthorized discharge of oil, and comparable in physical, chemical and biological characteristics or in the level of services provided by the assessment area or natural resource.

(40) Rehabilitation--Those actions which enhance the recovery of injured natural resources but do not return them to pre-discharge conditions.

(41) Replacement--Substituting natural resources at or near the impacted area to compensate for the loss of natural resources due to an unauthorized discharge of oil.

(42) Responsible person--

(A) the owner or operator of a vessel or facility from which an unauthorized discharge of oil emanates or threatens to emanate; and

(B) in the case of an abandoned vessel or facility, the person who would have been responsible immediately prior to the abandonment; and

(C) any other person who causes, allows or permits an unauthorized discharge of oil or threatened unauthorized discharge of oil.

(43) Restoration--Those actions that return injured natural resources and the services they provide to their pre-discharge or comparable condition.

(44) Restoration plan--A plan selected after public review and comment which describes the required restoration, replacement, rehabilitation, and/or acquisition of equivalent natural resources.

(45) Services or natural resource services--The physical, ecological, biological, chemical, aesthetic, cultural, and public uses provided by natural resources.

(46) State On-Scene Coordinator (SOSC)--The person appointed by the commissioner of the Texas General Land Office to coordinate all state response actions for the abatement, containment, and removal of pollution resulting from an unauthorized discharge of oil.

(47) State trustee or trustee--The Texas General Land Office, Texas Parks and Wildlife Department, and the Texas Commission on Environmental Quality.

(48) Technically feasible--The technology and management skills necessary to implement an assessment plan or restoration plan are known such that each element of the plan has a reasonable chance of successful completion in the applicable time period as defined in §20.34(b) of this title (relating to Comprehensive Damage Assessment) and §20.33(a) of this title (relating to Expedited Damage Assessment).

(49) Unauthorized discharge of oil--Any discharge of oil, or any discharge of oil emanating from a vessel into waters adjoining and accessible from coastal waters, that is not authorized by a federal or state permit.

Source Note: The provisions of this §20.10 adopted to be effective October 19, 1994, 19 TexReg 7911; amended to be effective October 21, 2010, 35 TexReg 9318