Disturbed Land Restoration

Authorities

Support and Tools for Restoration

The NPS Organic Act and the Wilderness Act of 1964

The responsibility of the NPS to restore disturbed lands in National Park System units arises from its mandates to conserve scenery and resources unimpaired; preserve wilderness character; and protect, manage, and administer units in light of their high public value and so as not to derogate the purposes for which they were established. See NPS Organic Act, 16 U.S.C. § 1 et seq. (1994); the General Authorities Act, 16 U.S.C. § 1a-1 (1994); the Redwood Act amendments, 16 U.S.C. § 1a-1 (1994); and the Wilderness Act of 1964, 16 U.S.C. §§ 1131-1136 (1994).

Park Enabling Statutes

Park enabling statutes may also provide direction for restoration. For example, the enabling legislation for Redwood National Park authorizes the NPS to develop and implement rehabilitation of areas inside and upstream from the park, which are contributing significant sediment because of past logging disturbances and road conditions. 16 U.S.C. § 79c(e) (1994).

Solid and Hazardous Waste Management Laws and Regulations

The restoration of lands and waters in National Park System units disturbed by non-NPS entities, such as the holders of private rights, should ideally be conducted or funded by the entities responsible for the disturbance rather than by NPS. If the responsible parties are identifiable and financially viable and if the disturbance releases or threatens to release hazardous substances into the environment, the NPS may be able to use the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675. Under this authority, the NPS may remediate a disturbance and may then seek to recover costs from the responsible parties, or issue an order compelling the responsible parties to conduct the cleanup.

Another authority by which NPS may seek damages for injuries to natural resources, real or personal property, subsistence use, public services, and revenues is the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701–2761 (1997). This act makes responsible parties liable for a vessel or facility from which oil was discharged or poses a substantial threat of discharge into waters of the United States and adjoining shorelines.

The NPS may also seek reimbursement from responsible parties to restore injured park resources under the authority of the Park System Resources Protection Act, 16 U.S.C. § 19jj (1997).

Some disturbed areas in National Park System units may be associated with unauthorized solid waste disposal sites. Solid waste disposal sites in National Park System units, even on private land, are subject to NPS regulations at 36 CFR Part 6. Under these regulations, solid waste disposal sites may only operate in parks pursuant to permits issued under 36 CFR § 6.4 (new sites) and § 6.5 (existing sites). The operators of solid waste disposal sites who have not obtained these permits must close their sites in a manner that protects the resources of the National Park System unit from degradation. [See § 6.4(a) and § 6.5(a).] Applying 36 CFR Part 6 regulations to unauthorized solid waste disposal sites may help prevent or reduce the effect of disturbances on park resources.

Executive Orders

Executive Order 13112 directs federal agencies, including the NPS, to provide for the restoration of native species and habitat conditions in ecosystems that have been invaded by invasive species (the Executive Order defines invasive species as species not native to that ecosystem and whose introduction does or is likely to cause economic or environmental harm or harm to human health). (See 35 Fed. Reg. 185-188 [Feb. 8, 1999].)

NPS Administrative Documents

The NPS Strategic Plan (2000) specifically identifies two critical components of broader restoration activities. These are found in Long-Term Goal Ia1: (1) Ia1A - 10% of targeted acres of parkland, disturbed by development or agriculture, are restored; and (2) Ia1B – 10% of the exotic vegetation on targeted acres of parkland are contained. On an annual basis, parks report all effort spent in restoring acreage or containing exotic vegetation. Specific guidance to parks on reporting to these goals is found in the Technical Guidance and PMDS Users’ Guides, including detailed information requirements for dollars, FTE, performance indicators, unit measures, baselines, performance targets, and who to contact with questions.

Park planning documents may also contain direction for restoration. General management plans developed under DO 2 Park Planning define desired future conditions for park resources that should provide direction for restoration.

Potential Liability from Failure to Restore Disturbed Lands

In addition to the damage to park natural resources, failure to restore disturbed lands may result in NPS liability.

Abandoned mines on NPS lands that discharge pollutants into navigable waters may subject the NPS to National Pollutant Discharge Elimination System (NPDES) permit requirements (i.e., it is unlawful for any person to discharge any pollutant from a point source into navigable waters without a permit) pursuant to the Clean Water Act, 33 U.S.C. §§ 1251-1387. At least once to date, the NPS has been named by a regional water quality board as secondarily liable for a mine's illegal discharge. Adequate reclamation or restoration of these mines would help prevent NPS liability.

CERCLA § 120 provides that federal agencies are subject to the requirements of CERCLA to the same degree and same manner as private parties. Thus, the NPS can be held liable for the release of hazardous substances at sites presently or formerly owned or operated by the agency (such as unpatented mining claims) and compelled to engage in response activity or to reimburse other parties that engage in response activity. Federal agencies also are required to assess and respond to hazardous substance sites under their control and fulfill various reporting obligations to the United States Environmental Protection Agency.