PRE-LITIGATION SETTLEMENT OF LIABILITY

Responsible parties are encouraged to contact the Office of Natural Resource Restoration to explore voluntary settlement. With respect to volunteers who seek a reasonable settlement, it is the goal of the Office of Natural Resource Restoration to reach a fair compromise in order to expedite restoration. Those responsible parties that choose not to volunteer and obtain the benefit of a compromise to resolve their natural resource damage liability should be aware (i) that voluntary settlements usually are resolved with substantial discounts and (ii) that the Office of Natural Resource Restoration may initiate litigation to pursue the full value of natural resource damages.

News Release – Attorney General and DEP Initiative

Primary Restoration

When a natural resource is injured by contamination, the responsible party is obligated to restore the natural resource to its pre-discharge quality, quantity, function, and value. Depending upon the type of natural resources injured, primary restoration includes, among other things, restoring the impacted resource to its pre-discharge quality, quantity, function, and value, repair of the injured habitat, and replacement of injured resources.

Compensatory Restoration

Compensatory restoration is a separate and additional obligation from the duty to restore the injured natural resource to its pre-discharge quality, quantity, function, and value. There are various means in which responsible parties may compensate the citizens of New Jersey for the lost interim value of their natural resources caused by a discharge. The Office of Natural Resource Restoration seeks to have the responsible parties implement the restoration project in lieu of payment of money damages provided that equal payment is made. For example, if as part of a remedial action, wetlands are impacted, the responsible party may propose to create, enhance or reestablish wetlands/habitat in the appropriate ratios and location in order to compensate for the impacted resource lost in quality, quantity and function of value. For all natural resource damage claims, the Department’s preference is for performance of restoration work and resource protection in lieu of payment of money (damages), provided that reasonable allowance is made for monitoring and oversight to ensure accountability and effectiveness of restoration.

The Office of Natural Resource Restoration may coordinate restoration projects with federal trustees and a variety of DEP programs, such as the Site Remediation Program, the Division of Fish & Wildlife, the Green Acres Program and the Division of Parks and Forestry. The Office of Natural Resource Restoration also has restoration partnerships with environmental organizations, and solicits input from environmental and local government and community groups with special resource expertise and knowledge of the restoration area.

Compensatory restoration may include acquisition of land for aquifer recharge. Compensatory restoration may also include resource projects, such as reforestation, removal of impervious surfaces to improve infiltration and water retention, storm water management, non-point source pollution abatement projects, enhanced public access, and information and interpretive projects. These projects are put into action to compensate the public for a discharge’s impact to natural resources.

Examples include:

WETLANDS and HABITAT: rehabilitation or creation of wetlands / habitat in the appropriate ratios

SPECIES: restoration of habitat and monitoring of success / research projects

PUBLIC USE: enhanced public access, information and interpretive centers

To determine the types of projects to be funded, the Office of Natural Resource Restoration considers stakeholder input to develop projects. These stakeholders include federal (e.g., National Oceanic and Atmospheric Administration, U.S. Fish and Wildlife Service, National Marine Fisheries Service, U.S. Environmental Protection Agency, U.S. Army Corps of Engineers), state (e.g., NJDEP Division of Fish and Wildlife, NJDEP Green Acres, NJDEP Division of Parks & Forestry), and local government agencies, government working groups (e.g., NY/NJ Harbor Estuary Program, Harbor Spill Governments Committee), environmental groups (e.g., NY/NJ Baykeeper, New Jersey Audubon, New Jersey Conservation Foundation, Nature Conservancy), and local community groups (e.g., Newark Ironbound Community Corporation, Friends of Liberty State Park, Camden SMART).

Projects have also come to the attention of ONRR through the Community Collaborative Initiative, which is a unit within NJDEP’s Site Remediation Program that works closely with urban communities to help leverage resources and expertise to aid in revitalization. The Office of Natural Resource Restoration’s largest and most expensive restoration projects have occurred in these communities as restoration here is acutely needed, transformative, and benefits a large component of those affected by pollution.