On July 13, 2026, the U.S. Department of the Interior (DOI) released its final rule promulgating dramatic—and much needed—revisions to its regulations for natural resource damage (NRD) assessments. The finalized rule allows natural resource trustees (e.g. federal, state and tribal governments) to utilize modern, simplified assessment techniques such as equivalency models when conducting an NRD assessment under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et seq.
Pursuant to CERCLA, several decades ago the Department of Interior (DOI) promulgated regulations governing two types of NRD assessments: (1) Type A, a simplified procedure requiring minimal field observation; and (2) Type B, a complex and cumbersome set of protocols usually involving extensive data collection and analysis. However, the Type A procedure quickly became obsolete and was rarely used. Thus, the actual process of conducting an NRD assessment can sometimes take 10 years or more as trustees spend millions of dollars preparing for litigation that will likely never occur. Meanwhile, the alleged injured natural resources (often ranging from habitat, to animals, to recreational uses) are not restored.
To address this problem, in 2018, my colleague Lauren Daniel and I published an article (see here, page 9) discussing ways to streamline and standardize NRD assessments, suggesting an idea to improve the process that would benefit all parties involved—NRD trustees, potentially responsible parties (PRPs), and the public. Specifically, we proposed to amend the NRD regulations to allow for the use of standardized models (including habitat and resource equivalency models) to quickly scale the necessary restoration with the legally cognizable injury and thereby achieve expeditious settlements. In addition, to pave the way for judicial approval, we proposed that the NRD trustees would have the benefit of the statutory rebuttable presumption if PRPs agreed to the use of such models. We said at the time:
In sum, our proposal is this: Modify the Type A NRD regulations to include equivalency models and PRP cooperation. If the Trustees include both elements, they will enjoy the statutory rebuttable presumption, the PRPs will resolve their liabilities faster, transaction costs will be nearly eliminated, and environmental restoration will occur years, or decades, sooner.
The amended framework promulgated by the DOI largely follows those recommendations.
DOI’s Key Changes to the NRD Procedures
Environmental Type.The former Type A regulations were narrowly constrained by being limited to NRD cases in specific environments. The amended rule now allows for the Type A procedures to be used for all natural resources in any environment.
Methodologies Allowed. The Type A regulations now allow trustees and PRPs to rely on well-known methods for damage determination and restoration valuation, such as habitat and resource equivalency analyses, and benefits transfer techniques for recreational losses.
Limits on Damages. NRD assessments under Type A were previously limited to NRD claims no greater than $100,000. The DOI’s new version of its Type A assessment regulation essentially has no limit. While on its face, the new rule is limited to NRD claims that are expected to be less than $5 million, the Type A procedures may still be used in larger cases if all parties agree to use them.
Procedural Requirements. The Type A procedures have been revised to require that at least one PRP implicated in an NRD claim has voluntarily agreed to utilize them and to toll the statute of limitations for at least one year.
Information Used. Once a trustee and a PRP decide to use the Type A procedures, detailed information about the decision needs to be documented in a Type A Report that is made available to the public for a comment period of at least 30 days.
Impacts of Amending the Type A Procedures
DOI’s modifications to the Type A regulations should positively benefit all parties involved in, or impacted by, NRD claims. First, the amendments are estimated to save the government up to $1.6 million for each Type B assessment that is replaced by the Type A procedures. Second, and more importantly, by broadening the ability to use simplified Type A assessment procedures, the new NRD regulations could dramatically shorten the time to restore injured natural resources, thereby reducing PRPs’ NRD exposure and significantly lowering transaction costs. In short, everyone wins.
