LSI 2010 NRD Santa Fe final conference binder 072110.pdf

William H. Desvousges of W. H. Desvousges & Associates Speaker 27: 7
Compensatory Restoration
The Plaintiff’s propose replacement of the resource as compensatory
restoration for the alleged groundwater losses at the former facility site. However,
replacement of a resource is only appropriate when all of the natural resource services
have been permanently lost (Dunford, Ginn, and Desvousges 2004). In the case of this
groundwater release, neither of these criteria has been met. There is no evidence that
any services have been lost as a result of the release and the release will be mitigated
through the remedial process. Replacement of the resource would be a gross
overcompensation for the injury and completely unnecessary to compensate for any
lost groundwater services.
In addition, the development of compensatory restoration alternatives must
account for cost. The least cost restoration alternative that fully compensates for lost
services provides the maximum benefit. Rarely does full replacement of a resource
provide compensatory services for the least cost. Only if compensatory services
cannot be provided using lower cost restoration alternatives would replacement of the
resource be considered. Using a least-cost approach is fundamental to the concept of
providing economic benefits to the public (Bockstael, et al. 2000; USEPA 2009).
Moreover, land replacement grossly overcompensates for the services that
allegedly were lost as a result of the releases. Purchasing and preserving land in an
attempt to protect groundwater services also protects a multitude of other services that
provide direct benefits to the public. Open space provides many habitat services and
potentially direct and indirect recreational services to the public; there is no allegation or
evidence of lost habitat services here. Moreover, protecting open space provides
habitat services for wildlife and potential recreational services for people (e.g.,
birdwatching and wildlife viewing) that far surpass any groundwater service losses that
could have occurred as a result of the releases.
Crucial in the scaling of compensatory restoration are the assumptions based
on the quality and quantity of services that will be provided by the restoration project.
The Plaintiffs do not provide any analysis of the individual potential locations used to
assess the cost of land acquisition. There is no support for the assumption that the
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM