Gravel2Gavel Construction & Real Estate Law Blog
For nearly three decades, the U.S. Department of the Interior’s (DOI) simplified “Type A” Natural Resource Damage Assessment (NRDA) regulations were available more in theory than in practice, constrained by dated models, narrow geographic applicability and a $100,000 cap that rarely matched the economics of modern environmental claims. DOI has now finalized revisions to the Type A natural resource damages assessment procedures under 43 C.F.R. Part 11 for hazardous substance releases under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Clean Water Act (CWA), with the final rule published in the Federal Register on July 13, 2026 and scheduled to become effective August 12, 2026.
As discussed previously, DOI has sought to modernize what it views as an “inefficient and inflexible” process and restore the Type A procedure to its intended role as a more streamlined pathway for smaller, less contentious NRD claims. The final rule adopts a $5 million default damages threshold, allows use above that amount if all parties agree, clarifies that Type A may be used in all environments and for all natural resource types, and removes legacy model appendices that had tethered the process to outdated formulas.
Background: Why Type A Needed an Update
43 C.F.R. Part 11 contains DOI’s optional procedural framework for conducting NRDAs for hazardous substance releases under CERCLA and the CWA. NRDAs are conducted by designated federal, state and Tribal trustees to evaluate injuries to public natural resources and determine the restoration, rehabilitation, replacement or acquisition of equivalent resources needed to address those injuries. Although trustees are not required to use Part 11, assessments performed in accordance with its procedures may receive a CERCLA rebuttable presumption of correctness in administrative or judicial proceedings.
CERCLA requires DOI’s regulations to include two assessment paths: Type A procedures are intended to be for simplified assessments requiring minimal field observation. Type B procedures are for more detailed, site-specific assessments for individual cases and typically require more extensive field work, technical analysis and valuation support. In practice, Type B has long been the more common path, even for matters that may not warrant a full-scale, site-specific assessment.
DOI’s obligation to revisit the NRDA regulations is statutory, not merely discretionary. CERCLA Section 301(c)(3), 42 U.S.C. § 9651(c)(3), provides that the NRDA regulations “shall be reviewed and revised as appropriate every two years.” Before this final rule, however, the Type A procedures had not been substantively revised since November 1997, although DOI issued technical corrections to the Type A models in 2000. The Type B procedures were last amended in 2008 and, as of this writing, DOI has not published a comparable proposal to update those procedures.
Over time, the Type A rule became available more in theory than in practice. The current rule was effectively limited to coastal, marine and Great Lakes environments, was available only for damages of $100,000 or less, and relied on two outdated modeling approaches. Consequently, those limitations excluded many matters from the simpler Type A procedures that did not warrant a full Type B assessment.
What the Final Rule Changes
The final rule responds to those longstanding constraints by striving to convert Type A from a narrow, model-based mechanism into what is intended to be a more flexible restoration-focused process and significantly expanding when Type A may be used. Trustees may now use Type A for all resource types defined in Part 11 and in all environments.
The final rule also raises the monetary threshold for Type A procedures. Under new Section 11.34(c), a claim resolved through Type A must be expected to be less than $5 million, excluding reasonable assessment costs, and that figure will be periodically adjusted for inflation following Office of Management and Budget guidance. Claims expected to exceed $5 million may still use Type A procedures if all parties agree. That is a notable shift from the proposed rule, which would have set a $3 million default threshold and allowed a $5 million threshold only for certain relatively short-duration releases with a small number of potentially responsible parties.
The final rule retains an important voluntary participation requirement for potentially responsible parties (PRPs). At least one PRP must voluntarily agree to use Type A procedures, and the PRP must agree to toll the statute of limitations for at least one year and reimburse trustees for reasonable Type A assessment costs until the claim is resolved or the PRP formally withdraws from voluntary participation. Where a claim involves multiple PRPs, the rule cautions that Type A may not be appropriate unless the resolution includes all significant PRPs or represents a final settlement of the claim for injury to specific natural resources at the site.
The final rule updates the methodology framework by giving trustees and participating PRPs greater flexibility to use appropriate assessment methods It does not, however, provide new preapproved Type A models. Instead, trustees may now use Type A where they determine that methods for replacing resources or resource services—drawn from the list of applicable models in Section 11.83 or evaluated under that section’s factors for new methodologies—are appropriate for determining damages to fund site-specific restoration activities. In a significant clarification from the proposal, DOI removed the proposed reference to “existing” models, preserving flexibility to use methodologies developed in the future rather than limiting Type A to models available at the time of adoption. That approach avoids freezing Type A around current models and leaves room for methods that can address complex resource service losses at a scale appropriate to the incident, rather than forcing parties back into the prior static equations.
The rule also preserves the ability to use both Type A and Type B for the same release where the regulatory requirements are met and double recovery is avoided.
Additionally, the rule updates references to fish kill investigations and freshwater fish mortality, appraisals under the Uniform Appraisal Standards for Federal Land Acquisitions, and Resource Equivalency Analysis (REA), including biomass REA/Habitat-Based Resource Equivalency Method. These updates modernize and clarify the Part 11 methodology framework, but they do not eliminate the need to develop data inputs, justify assumptions, or address uncertainty. In some matters, trustees and PRPs may still need field data, resource-loss quantification, appraisals or equivalency analysis to support the selected approach.
The new Type A process is built around a public Type A Report that must explain the basis for using the procedure, describe agreements among co-trustees and PRPs, identify response activities that could affect the resources being assessed, and describe the selected model or models, including data inputs, assumptions, strengths, limitations, uncertainties, restoration alternatives and modeling results. The report must be made available for public comment for at least 30 days, and substantial changes to models, inputs or assumptions may require a revised report and additional comment period.
Practical Implications
The revisions significantly expand the circumstances in which Type A procedures may be considered beyond the relatively narrow set of low-dollar cases historically associated with the process. NRD screening should no longer treat Type A procedures as limited to coastal, marine or post-cleanup sites. By expanding Type A to all environments and resource types and raising the damages threshold, DOI has expanded the universe of matters in which trustees and PRPs may consider whether Type A is appropriate. Inland industrial sites, brownfield redevelopment projects, mining properties and other sites may now be more likely to involve Type A discussions.
Whether the expanded eligibility criteria will result in broader use of Type A procedures remains to be seen. DOI estimates that shifting appropriate matters from Type B to Type A can substantially reduce assessment transaction costs and lead to faster restoration, saving the federal government approximately $1.6 million per each Type B assessment that switches to Type A. Although the rule substantially increases the range of matters in which Type A may be available and can result in trustee cost savings, trustees still retain discretion in selecting the assessment approach based on the circumstances of a particular release. And, since the regulations are optional, Trustees can and do opt out of complying with regulatory procedures at all. 43 C.F.R. § 11.10.
The rule is thus best understood as expanding the range of matters in which Type A may be considered without ensuring that qualifying claims will proceed under a streamlined process. The extent of any streamlining will depend on whether the selected methods, available data and simplifying assumptions can reasonably substitute for more extensive site-specific Type B work in the circumstances presented, and whether Trustees will elect regulatory compliance at all. Actual cost and timing efficiencies will vary by site, resource, methodology, availability of reliable data and the degree of trustee-PRP alignment. Where a selected method still requires substantial field data, fish or wildlife counts, appraisal work, resource-loss quantification, or contested equivalency-analysis inputs, the cost and timing savings may be more limited. As with any NRDA, parties should also consider how reliance on averaged data, simplifying assumptions and modeling uncertainties may affect settlement negotiations, the administrative record and any subsequent challenge to Trustee injury and damages positions.
Pillsbury’s Environmental team has deep experience advising clients through all phases of natural resource damages matters, including pre-assessment exposure analyses, assessment strategy, trustee engagement, PRP coordination, technical record development, settlement negotiations, restoration planning and litigation. We are available to help clients evaluate how the revised rule may affect pending matters, transactions, project planning and future NRD strategy.
RELATED ARTICLES