Final RP for Common Loon and Other Birds Impacted by the B120 Oil Spill June 2 2020.pdf

FINAL RESTORATION PLAN

for

COMMON LOON (Gavia immer) and OTHER BIRDS

IMPACTED BY THE BOUCHARD BARGE 120 (B-120) OIL SPILL

BUZZARDS BAY

MASSACHUSETTS and RHODE ISLAND

June 2020

Prepared by:

United States Fish and Wildlife Service

Massachusetts Executive Office of Energy and Environmental Affairs

Rhode Island Department of Environmental Management and

National Oceanic and Atmospheric Administration (Lead Administrative Trustee)

Executive Summary In April 2003, the Bouchard Barge‐120 (B‐120) oil spill (the Spill) affected more than 100 miles of Buzzards Bay and its shoreline and nearby coastal waters in both Massachusetts (MA) and Rhode Island (RI). Birds were exposed to and ingested oil as they foraged, nested, and/or migrated through the area. Species of birds estimated to have been killed in the greatest numbers included common loon (Gavia immer), common and roseate terns (Sterna hirundo and Sterna dougallii), and other birds such as common eider (Somateria mollissima), black scoter (Melanitta americana), and red‐throated loon (Gavia stellata).

The National Oceanic and Atmospheric Administration (NOAA), U.S. Department of the Interior (DOI) (acting through the U.S. Fish and Wildlife Service [USFWS]), the Commonwealth of Massachusetts (acting through the Executive Office of Energy and Environmental Affairs [EEA]), and the State of Rhode Island serve as the natural resource Trustees (Trustees) responsible under the Oil Pollution Act of 1990 (OPA) (33 U.S.C. § 2701, et seq.) for ensuring the natural resources injured from the Spill are restored. As a designated Trustee, each agency is authorized to act on behalf of the public under State1 and/or Federal law to assess and recover natural resource damages, and to plan and implement actions to restore, rehabilitate, replace, or acquire the equivalent of the natural resources or services injured or lost as a result of an unpermitted discharge of oil.

After more than 5 years spent assessing impacts to natural resources resulting from the Spill, in November 2010, the Trustees and the Bouchard Transportation Company, Inc., the Tug Evening Tide Corporation and the B. No. 120 Corporation, the Responsible Parties for the Spill, negotiated a mutually agreeable settlement for a portion of natural resource damages, including shoreline and aquatic resources, piping plovers, and lost natural resource uses. In January of 2018, the Trustees and Responsible Parties negotiated a second consent decree for the remaining natural resources injured as a result of the Spill, which included common loon, common and roseate terns, and all other affected bird species.

The purpose of restoration is to make the public “whole” for injuries resulting from the Spill by implementing one or more restoration actions that return injured natural resources and services to baseline conditions and compensate for interim losses. Through the development of Draft and Final Restoration Plans consistent with guidance in OPA and the National Environmental Policy Act (NEPA) (42 U.S.C. §§ 4321‐ 4347), the Trustees identify and evaluate preferred restoration alternatives and provide the public with an opportunity for review and comment.

Restoration of shoreline and aquatic resources, lost recreational uses and piping plovers was addressed in prior restoration plans (NOAA et al. 2014; USFWS et al. 2012). This Final Restoration Plan (RP) is intended to provide compensatory restoration for injuries to common loon and all other remaining bird species affected by the Spill, with the exception of common and roseate

1 MA General Law Chapter 21E, Section 5 and Chapter 21A, Section 2A, and RI General Law, Section 46‐12.5.1.

terns. A separate restoration plan for common and roseate terns and other shorebirds will be prepared following additional restoration project alternative analyses for those species.

Throughout the injury assessment and restoration planning process, the Trustees consulted with Federal and State wildlife agency experts, as well as organizations and individuals familiar with common loon and other injured bird species. These experts and organizations provided input on injury estimations and potential restoration alternatives. The Draft RP was provided to the public in August 2019 for a 60‐day comment period to both fully explain the injury assessment process and gain additional input from the public on the proposed restoration alternatives. The Trustees also held an informational public meeting and webinar on September 12, 2019.

The Trustees received written comments from more than 20 individuals during the comment period, and a number of verbal questions and comments at the public meeting. The Trustees appreciate the time and effort that the public expended to review and comment on the document. The Trustees have reviewed and considered all of the comments. A summary of the comments and the Trustees’ responses is provided in Section 5. A complete copy of each written comment is provided in Appendix A: Comment Letters and a transcript of the public meeting is provided in Appendix B: Public Meeting and Webinar Transcript.

The Final RP has been prepared by the USFWS, the Commonwealth of Massachusetts and the State of Rhode Island, with administrative assistance from NOAA, acting as the Lead Administrative Trustee. In the Final RP, taking into consideration the comments received, the Trustees have provided additional information, made corrections (where necessary), and adjusted the proposed funding amounts for selected alternatives. In summary, with respect to common loon restoration, the Trustees have added an additional management option for restoration (Reducing Individual Common Loon Mortality by Rescue and Rehabilitation of Stranded Birds), expanded the area of restoration implementation to include New York, and shifted $500,500 in funding from COLO‐1 (Common Loon Restoration through Translocation and Captive Rearing) to COLO‐2 (Common Loon Restoration through Artificial Nest Sites, Signage and Wardening, Protection of Breeding Habitat, and Reducing Individual Common Loon Mortality by Rescue and Rehabilitation of Stranded Birds and Reducing Exposure to Lead Tackle). The Trustees have also emphasized that the majority of funding for COLO‐2 will be focused on northern New England and New York. To implement Other Birds restoration, the Trustees have allocated $274,000 from Habitat Protection in Rhode Island (OB1‐RI) to Habitat Protection in Massachusetts (OB1‐MA).

The preferred restoration alternatives include specific restoration projects in two categories of injured birds: (1) common loon; and (2) other birds injured during the Spill. A suite of projects (e.g., translocation, rafts, signs and wardening, breeding habitat protection, and reducing individual common loon mortality by rescue and rehabilitation of stranded birds, and through reducing lead exposure with lead tackle exchange programs and public outreach) was selected to restore the loss to common loon; and two alternatives (habitat protection and common eider nest site management) were chosen to restore the loss to other bird species. The USFWS, the

Commonwealth of Massachusetts and the State of Rhode Island selected the following restoration alternatives and funding levels:

Project ID Number Preferred Restoration Activity Trustee Funding/Contribution

Common Loon Restoration COLO‐1 Common Loon Restoration through Translocation and Captive Rearing $2,499,500

Trustee Management and Oversight $185,000 $2,684,500 COLO‐2 Common Loon Restoration through Artificial Nest

Sites, Signage and Wardening, Protection of Breeding Habitat, and Reducing Common Loon Mortality through Rescue and Rehabilitation of Stranded Individuals and Decreasing Exposure to Lead Fishing Tackle

$3,685,500

Other Birds Restoration OB‐1 Habitat Protection

OB‐1MA Massachusetts $774,000 Cuttyhunk Island, Gosnold, MA OB‐1RI Rhode Island $1,000,000 OB‐1RI‐1 Lamoia Parcel, Warren, RI ($400,000) OB‐1RI‐2 Other RI property ($600,000)

OB‐2MA Common Eider Nest Site Management $100,000 Total1 $8,244,000

1. Total includes current interest earned on settlement funds; additional interest may be allocated to projects as well as trustee administrative and oversight costs.

Copies of the Final RP can be downloaded at http://fws.gov/newengland (Accessed April 30, 2020) or requested by mail at the address below:

USFWS

Attention: Molly Sperduto

70 Commercial Street, Suite 300 Concord, New Hampshire 03301 molly_sperduto@fws.gov http://fws.gov/newengland mailto:molly_sperduto@fws.gov

Table of Contents Executive Summary

1. Introduction

1.1. Project Purpose

1.2. Need for Action

1.3. Overview of Incident

1.4. Natural Resource Damage Assessment

1.5. Coordination

1.5.1. Trustee Council Organization and Activities

1.5.2. Responsible Party Involvement

1.5.3. Public Involvement, Notification, and Review

1.5.4. Administrative Record

1.6. Natural Resource Injuries to Migratory Birds

1.6.1. Common Loon Injury Assessment

1.6.2. Other Birds Injury Assessment

1.7. Summary of Settlement for Natural Resource Damages

2. Restoration Planning

2.1. Public Involvement in Restoration Planning

2.2. Restoration Criteria

2.2.1. Eligibility Criteria

2.2.2. Restoration Evaluation Criteria

3. Restoration Alternatives

3.1. No Action Alternative

3.2. Common Loon Restoration Alternatives

3.2.1. Common Loon Restoration – Preferred Alternatives

3.2.2. Common Loon Restoration – Non‐Preferred Alternatives

3.3. Other Birds Restoration Alternatives

3.3.1. Other Birds Restoration – Preferred Alternatives

3.3.2. Other Birds Restoration – Non‐Preferred Alternatives

3.4. Summary of Preferred Restoration Alternatives

3.5. Other Alternatives Considered But Not Fully Evaluated

4. NEPA Compliance

5. Summary of Comments and Trustee Responses

5.1. Overview

5.2. Trustees Response to Comments

5.2.1. Comments Regarding Common Loon Restoration

5.2.2. Comments Regarding Both Common Loon and Other Birds Restoration

5.2.3. Comments Regarding Other Birds Restoration

6. Compliance with Statutes, Regulations, and Policies

6.1. Federal Statutes, Regulations, and Policies

6.2. State Statutes, Regulations, and Policies, Massachusetts

6.3. State Statutes, Regulations, and Policies, Rhode Island

6.4. Local Laws

6.5. Environmental Justice

7. Literature Cited

8. List of Preparers

9. Agencies, Organizations, and Parties Consulted for Information

10. Appendices

10.1. Appendix A: Comment Letters

10.2. Appendix B: Public Meeting and Webinar Transcript

10.3. Appendix C Trustee Agency Approvals of the Final Restoration Plan for Common Loon and Other Birds Impacted by the Bouchard Barge 120 (B‐120) Oil Spill, Buzzards Bay Massachusetts and Rhode Island

List of Tables

Table 1. Common loon life history parameters used in injury and restoration scaling calculations Table 2. Trustee calculated common loon losses (2003 DBYs) Table 3. Trustee estimate of rocky island colonial bird, pelagic seabird, red‐throated loon, grebe, diving duck, and waterfowl losses (2003 DBYs) Table 4. Common eider life history parameters used in injury and restoration scaling calculations Table 5. Restoration evaluation criteria Table 6. Timeline of loon translocation project and major activities Table 7. Overall budget for each of 6 years, following the fiscal year (May 1 to April 30) Table 8. Summary of current funding sources and awards for the Cuttyhunk Island project Table 9. Preferred Restoration Alternatives Table 10. Projects considered but not fully evaluated Table 11. List of Comment Letters (CL) received in response to the Draft Restoration Plan (RP)

List of Figures

Figure 1. Grounding site and travel pathway of Bouchard Barge‐120, resulting in Buzzards Bay oil spill. 11 Figure 2. Extent of oiling resulting from the Bouchard B‐120 grounding Figure 3. Breeding range of the common loon in Massachusetts, common loon banding and winter recovery locations with dashed lines showing migration routes, and the selected restoration sites in southeastern and western Massachusetts

Figure 4. Cuttyhunk Island fee acquisition (red) areas and conservation restriction (orange), Gosnold, Massachusetts

Figure 5. Lamoia parcel boundary (orange) in Warren, Rhode Island Figure 6. Massachusetts and Rhode Island jurisdictional areas and boundaries

1. Introduction

1.1. Project Purpose

The purpose of the preferred restoration action, as discussed in this document as a set of project alternatives, is to compensate for natural resource injuries to migratory birds resulting from the April 2003 Bouchard Barge‐120 (B‐120) oil spill (the Spill) that released 98,000 gallons of No. 6 fuel oil to Buzzards Bay, and contiguous coastal waters and shoreline in Massachusetts and Rhode Island. Restoration of other injured natural resources (e.g., shoreline and aquatic resources, lost recreational uses and piping plovers) was addressed in prior restoration plans (NOAA et al. 2014;

USFWS et al. 2012). The preferred alternatives herein are intended to provide compensatory restoration that addresses injuries to common loon (Gavia immer) and all other remaining bird species (hereafter referred to as “other birds”) affected by the Spill with the exception of common tern (Sterna hirundo) and roseate tern (Sterna dougallii). A separate restoration plan for common and roseate terns and other shorebirds will be prepared following additional restoration project alternative analyses for those species.

1.2. Need for Action

Following the Spill, more than 100 miles (161 km) of coastal shoreline, including tidal marshes and intertidal flats, aquatic resources, including water column and benthic sub‐tidal habitats and benthic communities, and shellfish, fish, birds and other aquatic biota were oiled. Birds were exposed to and ingested oil, as they foraged, nested, and/or migrated through the area. Four hundred and ninety nine (499) oiled birds were collected; however, the overall mortality was estimated to be 1,174 adult birds (accounts for birds that were not collected due to scavenging, drifting out to sea, etc.). Birds estimated to have been killed in the greatest numbers included common loon (531), common (25) and roseate (9) terns, and other birds such as common eider (Somateria mollissima, 83), black scoter (Melanitta americana, 77), and red‐throated loon (Gavia stellata, 83). More detailed information on the Spill incident and the natural resource injuries is provided in Section 1.6. below.

Federal Trustee agencies for this Spill include the National Oceanic and Atmospheric Administration (NOAA) and the U.S. Fish and Wildlife Service (USFWS). State Trustees include the Commonwealth of Massachusetts and the State of Rhode Island. Collectively, and in accordance with the Oil Pollution Act (OPA) of 1990, the Bouchard B‐120 Trustees (Trustees) use recovered damages to restore, rehabilitate, replace or acquire the equivalent of the injured natural resources and services that result from incidents involving a discharge or substantial threat of a discharge of oil to the environment.

Prior to expending funds for restoration, OPA Natural Resource Damage Assessment (NRDA) regulations require trustees to develop a Restoration Plan (RP) for public review and comment (15 CFR §990.55), which the Trustees did through the Draft Restoration Plan for Common Loon (Gavia immer) and Other Birds Impacted by the Bouchard Barge 120 (B‐120) Oil Spill, dated August 29, 2019 (Draft RP). The NRDA regulations also require the Trustees to consider a reasonable range of restoration alternatives that would make the environment and public whole (15 CFR §990.53), as reflected in the Draft RP and this Final RP.

This document serves as the Final RP for addressing injuries to common loon and other birds attributed to the Spill. The Final RP was prepared by USFWS, the Commonwealth of Massachusetts and the State of Rhode Island, with administrative assistance from NOAA, acting as the Lead Administrative Trustee.

In addition, this document has been developed in consideration of the National Environmental Policy Act (NEPA) (42 U.S.C. §4321 et seq.) and the Council on Environmental Quality (CEQ) regulations implementing NEPA (40 CFR Parts §1500‐§1508). Under NEPA, Federal agencies must evaluate the potential environmental impacts of proposed Federal actions on the quality of the human environment. Since this Final RP exclusively focuses on migratory birds, and the USFWS is the designated Federal Trustee for migratory birds, the Trustees have authorized the USFWS to be the lead Federal agency for NEPA compliance for this Final RP. The Commonwealth of Massachusetts and the State of Rhode Island also have trustee responsibilities for birds and are designated cooperating agencies. As the Lead Administrative Trustee, NOAA has provided administrative support to the Co‐Trustees developing this document. NEPA compliance is discussed further in Section 4.

1.3. Overview of Incident

On April 27, 2003, the Bouchard B‐120, owned and operated by the Bouchard Transportation Company, Inc., struck a rocky shoal soon after entering the western approach to Buzzards Bay (Figure 1). The grounding resulted in a 12‐foot rupture in the hull of the barge, releasing approximately 98,000 gallons of No. 6 fuel oil into the Bay. More than 100 miles (161 km) of shoreline were affected, including shoreline and coastal waters in both Massachusetts and Rhode Island. The oil was spread and driven ashore by winds and currents, and primarily affected the north, northwest, and northeast portions of the Bay, including shoreline in the towns of Westport, Dartmouth, New Bedford, Fairhaven, Mattapoisett, Marion, Wareham, Gosnold, Bourne, and Falmouth, Massachusetts (Figure 2). Oil continued to be transported throughout Buzzards Bay and nearby coastal waters. Oiling was unevenly distributed and was particularly concentrated at exposed shoreline headlands and peninsulas in discrete, localized areas (e.g., Barneys Joy Point and Mishaum Point in South Dartmouth; West Island, Sconticut Neck, and Long Island in Fairhaven). Shoreline oiling was also reported on the Elizabeth Islands along the southern portion of Buzzards Bay and portions of the Rhode Island shoreline (e.g., Little Compton and Block Island).

The Buzzards Bay shoreline is comprised of diverse shoreline types, including sand and cobble beaches, rocky shores, tidal wetlands, and sand/mudflats under both public and private ownership. Approximately one‐quarter of the affected shoreline was determined to be moderately‐to‐heavily‐oiled while the remaining three‐quarters of affected shoreline incurred very light or light oiling (Figure 2).

Due to the timing of the Spill (during spring migration) and the oiling of extensive coastal waters and shoreline habitats, a large number and wide variety of birds, including terns and other shorebirds, loons, sea ducks, and waterfowl were exposed to oil following the Spill. The Trustees worked with emergency responders, contractors, and volunteers to collect live and dead oiled birds in the spill area. In the weeks following the Spill, 499 birds were collected (315 dead and 184 live). Of the live birds, 20 were rehabilitated and returned to the wild. Coordinated wildlife reconnaissance and collection of oiled animals began on April 30, 2003, and continued daily through May 16, 2003. Less frequent efforts continued from May 17 through June 6, 2003. Search teams consisted of representatives from USFWS, the Massachusetts Division of Fisheries and Wildlife (MassWildlife), the Responsible Parties, and many volunteers.

Response efforts also focused on Ram Island, a small, uninhabited island in Mattapoisett, Massachusetts that provides breeding habitat for the common tern and federally endangered roseate tern. Early in the spill response effort, booms and sorbent material were placed around Ram Island in an attempt to prevent oiling of this tern colony site.

1.4. Natural Resource Damage Assessment

Soon after the spill event, the Trustees commenced the Pre‐assessment Phase of the Natural Resources Damage Assessment in accordance with OPA and NRDA regulations to determine if jurisdiction existed to pursue restoration and, if so, whether it was prudent to do so. A primary purpose of OPA is to make the environment and public “whole” for injuries to natural resources and services that result from incidents involving a discharge or substantial threat of a discharge of oil to the environment. This mandate is carried out by first returning the injured natural resources and services to the condition in which they would have existed if the incident had not occurred (known as “baseline conditions”). This objective may be accomplished through natural recovery of the injury and/or with human intervention. Trustees must also consider compensatory restoration actions to compensate for the interim loss of natural resources and services pending recovery (15 CFR §990.53(c)(1)).

Based on the Trustees’ analyses of data collected during the initial spill response and Pre‐ assessment Phase (e.g., documentation of oiled and dead birds, which included federally listed threatened and endangered bird species), the Trustees determined that there was jurisdiction to pursue restoration under OPA, and that pursuing restoration under OPA was appropriate.

Analyses are available in MA‐EEA et al. 2005. The Trustees further determined that the spill response clean‐up actions had not adequately addressed the restoration of natural resource injuries resulting from the incident, and feasible primary and/or compensatory restoration actions were available and required to address the injuries. These determinations were memorialized in a Notice of Intent to Conduct Restoration Planning. The Notice was signed on July 21, 2006, and NOAA published the Notice in the Federal Register on July 28, 2006 (refer to Federal Register Vol. 71, No. 145, pp. 42812‐ 42814). As a result, the Trustees initiated the Restoration Planning phase of the NRDA, which includes evaluating and quantifying injuries through an injury assessment, and then using the quantified results to determine the need for and scale of the restoration action(s) to compensate for the injuries (15 CFR §990.50).

Figure 1. Grounding site and travel pathway of Bouchard Barge-120, resulting in Buzzards Bay oil spill.

(Source: Massachusetts Executive Office of Environmental Affairs [MA‐EEA] et al. 2005)

Figure 2. Extent of oiling resulting from the Bouchard B-120 grounding.

(Source: MA‐EEA et al. 2005)

Relatedly, but separate from the NRDA process, Bouchard Transportation Company, Inc.

(Bouchard) also pled guilty to violating the Clean Water Act and the Migratory Bird Treaty Act on March 29, 2004 (United States of America v. Bouchard Transportation Company, Inc., Case No.

04‐cr‐10087, March 29, 2004, U.S. District Court, District of Massachusetts). As part of a settlement for those violations, Bouchard paid $7 million to the North American Wetlands Conservation Fund for conservation efforts and $2 million to the Oil Spill Liability Trust Fund to assist with cleanup costs of future oil spills where the Responsible Party is unknown.

1.5. Coordination

1.5.1. Trustee Council Organization and Activities

OPA, Executive Orders 12580 and 12777, and 40 CFR §300.600 provide for or designate the Federal, State, and Tribal Trustees for natural resources affected by oil spills. The Secretary of the Department of the Interior (DOI) is the designated Federal Trustee for certain natural resources including, but not limited to, migratory birds, certain marine mammals, anadromous fish, federally endangered and threatened species, their respective habitats, and Federal lands managed by DOI. The Secretary of Interior designated the Northeast Regional Director of the USFWS to act on behalf of the Secretary as the Authorized Official for the Spill. NOAA, pursuant to authority delegated by the Secretary of Commerce, is a designated Federal Trustee for certain natural resources, including living marine resources and their habitats (e.g., marine, estuarine and diadromous fishes, other aquatic biota, and certain marine mammals).

The aforementioned Executive Orders and Federal regulations also provide that each state is the designated Trustee for all natural resources within its boundaries. The governor of each state designates the state agency or agencies that will act as the natural resource trustee for each affected state. For the Spill, the Governor of Massachusetts designated the Secretary of the MA‐ EEA as the Trustee for the Commonwealth.2 The MA‐EEA is supported by the Massachusetts Department of Environmental Protection (MassDEP), which administers the State’s NRDA Program. The Governor of Rhode Island designated the Rhode Island Department of Environmental Management (RIDEM) as the State’s natural resource Trustee.

Lastly, federally recognized Indian Tribes are Trustees for natural resources belonging to, managed by, controlled by, or appertaining to the Tribes. Early in the injury assessment phase of the Spill, the Wampanoag Tribe of Gay Head (the Aquinnah) reached a separate settlement with the Responsible Parties. Therefore, the Wampanoag Tribe is not a party to this restoration planning effort.

To memorialize the ongoing collaborative interagency efforts to accomplish the common goals of natural resource damage assessment and restoration, the Trustees entered into a Memorandum of Agreement (MOA), executed in March 2007. The MOA serves as a framework for coordination and cooperation among the Trustees to accomplish the following: (1) ensure timely and efficient implementation of a NRDA to address resource injuries, including service

2 The EEA Secretary is also a designated Trustee under M.G.L. Chapter 21A, Section 2A.

losses, caused by the Spill; (2) avoid duplication of assessment costs and otherwise ensure costs are reasonable; (3) seek compensation for resource injuries or losses, including reimbursement of assessment costs; and (4) provide for appropriate restoration, rehabilitation, replacement or acquisition of natural resources and/or services injured or lost. The Trustee MOA also identified NOAA as the Lead Administrative Trustee to serve as a logistical, administrative and fiscal agent for the Trustee Council and coordinate Trustee Council activities. NOAA’s participation in the development of this Final RP was limited to administrative activities undertaken as the Lead Administrative Trustee.

The Trustees have worked collaboratively to assess the natural resource injuries to migratory birds and identify potential restoration alternatives. NOAA as the Lead Administrative Trustee, and the USFWS as the lead Federal agency for this Final RP, are the Federal agencies responsible for complying with NEPA. The state Trustee agencies are designated cooperating agencies under NEPA. The USFWS and the state Trustees have prepared this Final RP for the purpose of evaluating potential restoration projects and identifying preferred restoration alternatives to address injuries to the following bird categories: (1) common loon and (2) other birds.

1.5.2. Responsible Party Involvement

Trustees generally must invite responsible parties to participate in the NRDA process, and may enter into agreements to promote cost‐effectiveness and cooperation (15 CFR §990.14(c)). The Responsible Parties formally responded in June 2003, indicating acceptance to participate in a cooperative NRDA with the Trustees. In October 2006, the Responsible Parties entered into a cooperative NRDA agreement with the Trustees titled: “Memorandum of Agreement between Bouchard Transportation Co., Inc. and the Natural Resource Trustees Governing Cooperative Natural Resource Damage Assessment and Restoration Planning Activities for the Bouchard B.

120 Oil Spill” (Trustee‐Responsible Party MOA), which included a reimbursement agreement supporting the Trustees’ role in injury assessment and accompanying studies and restoration project oversight.

The Trustees prepared and provided the Responsible Parties with scopes of work for assessment studies, according to the procedures for cooperative studies outlined in the Trustee‐Responsible Party MOA. The Responsible Parties’ consultant, ENTRIX (now named Cardno ENTRIX), participated in pre‐settlement NRDA studies, injury determinations, restoration scaling calculations, and restoration planning discussions. In November 2010, the Trustees and Responsible Parties negotiated a mutually agreeable settlement for specified categories of natural resource damages, including shoreline and aquatic resources, piping plovers, and lost natural resource uses. In January 2018, the Trustees and Responsible Parties negotiated a second consent decree for the remaining natural resources injured as a result of the Spill, which included common loon, common and roseate terns, and all other affected bird species.

1.5.3. Public Involvement, Notification, and Review

Public review of the Draft RP was an integral and important component of the restoration planning process and was consistent with all applicable State and Federal laws and regulations, including NEPA and its implementing regulations, and the guidance for restoration planning found within OPA regulations (15 CFR §990.55).

In addition to an informational public meeting and webinar held on September 12, 2019, the Trustees published a notice of the availability of the Draft RP in local newspapers and issued a press release to regional newspapers and other media outlets. The Draft RP was available online and as a hard copy for public review and comment for a period of 60 days. Copies of the Final RP can be downloaded at http://fws.gov/newengland or requested by mail at the address below:

USFWS

Attention: Molly Sperduto 70 Commercial Street, Suite 300 Concord, New Hampshire 03301 molly_sperduto@fws.gov

1.5.4. Administrative Record

The Trustees have established an Administrative Record in compliance with Federal regulatory requirements for NRDAs (15 CFR §900.45). The Administrative Record includes information and documents prepared by and/or relied upon by the Trustees during the injury assessment and determination, restoration scaling, and restoration planning. Interested persons can access or view the Administrative Record at the following locations:

NOAA Restoration Center

28 Tarzwell Drive Narragansett, RI 02882

Attention: Bouchard B‐120 Administrative Records Management and

NOAA Damage Assessment Remediation and Restoration Program: Bouchard Barge 120 (Accessed April 30, 2020)

Arrangements must be made in advance to review or to obtain copies of these records by contacting the office listed above. Access to and copying of these records is subject to all applicable laws and policies including, but not limited to, laws and policies relating to copying fees and the reproduction or use of any copyrighted material.

1.6. Natural Resource Injuries to Migratory Birds

To evaluate potential injury to migratory birds, the Trustees worked cooperatively with the Responsible Parties. The Trustees compiled and analyzed carcass collection data and estimated the number of adult birds that died as a result of the Spill (total = 1,174 birds, including 531 common loon, 9 roseate tern, 25 common tern, 83 common eider, 83 red‐throated loon, 77 black scoter, 38 dunlin, and 328 individuals of a variety of other species). Potential effects on the production of fledglings (also known as the F1 generation) were determined by utilizing published http://fws.gov/newengland mailto:molly_sperduto@fws.gov https://darrp.noaa.gov/oil-spills/bouchard-barge-120 life history data (whenever possible) for each species, or in the case of terns, based on site‐ specific monitoring data collected following the Spill.

The Trustees conducted a Resource Equivalency Analysis (REA) to evaluate the total injury to birds and to calculate appropriate compensation for the calculated injury (Sperduto et al. 2003).

Utilizing the REA methodology, the Trustees first calculated the loss of birds (adult and fledges) for each year of their expected life spans (direct injuries). The Trustees also calculated the loss of the first generation of fledges for each year of their expected life spans (indirect injuries) for some of the bird species, depending on species‐specific life history data. Then, using basic economic techniques, the sum of the direct and indirect injuries was converted to a current value of the loss, known as discounted bird‐years (DBYs). Based on this analysis, the Trustees determined the total direct and indirect loss for all impacted bird species as a result of the Spill (26,454 DBYs).

To evaluate and scale suitable restoration, three categories of injured bird species were developed, as follows:

• common loon (4,013 DBYs)

• common tern (17,904 DBYs), roseate tern (549 DBYs) and shorebirds (604 DBYs)

• all other birds (3,384 DBYs)

The Trustees evaluated various alternatives to restore each of the categories of injured birds to their baseline and generate additional bird‐years to compensate for interim losses that occurred until recovery to baseline conditions. Restoration projects were scaled and costs were estimated to determine the total amount of natural resource damages.

The following sections summarize the injury assessment for common loon and other birds.

Injuries to common and roseate terns (and shorebirds) will be described in a separate restoration plan that will be released following additional project alternatives analyses. This approach enables the Trustees to expedite restoration for common loon and other birds.

1.6.1. Common Loon Injury Assessment

The Trustees estimated the number of common loon killed by the Spill, either through acute or delayed effects, to be 531 birds. The total number of common loon killed was estimated based on the number of dead and oiled common loon collected throughout Buzzards Bay following the Spill. In addition, several oiled common loon were collected from New Hampshire and Maine and these were also determined to have been oiled from the Spill (MA‐EEA et al. 2005). Had the Spill not occurred, these birds would have lived their natural lifespans, estimated to be 30 years (Evers 2007). This spill‐related loss of bird‐years associated with this species, in present‐value terms, is the first component of the Trustees’ total estimate of losses for common loon.

In addition, the Trustees estimated the lost DBYs associated with the first generation of fledglings that would have been produced by the common loon killed by the Spill. To evaluate the lost fledglings, the Trustees considered life history characteristics of the common loon (Table 1). Of note, common loon populations typically include a number of non‐breeding adults, or floaters.

Nest sites that become available due to the death or ‘divorce’ of the breeding adults are generally occupied by floaters (Piper et al. 2000; Evers 2001; Grear et al. 2009). The Trustees assumed that nest sites that would have been otherwise occupied by the killed birds were instead occupied by floater adults. Recruitment attributed to these floaters was expected to replace, in part, the foregone production of the killed birds. Productivity was reduced to 0.371 to account for the fact that floater productivity was expected to be lower than the productivity associated with more experienced breeders. The lower productivity associated with floaters was calculated for only 1 year, after which time the Trustees assumed that the floater productivity would be equal to the pre‐spill breeding adult productivity.

Consistent with previous common loon injury calculations (Sperduto et al. 2003), the Trustees used a REA to calculate the total lost DBYs.

Table 2 shows the total estimated losses of common loon bird years (4,013 DBYs), and the breakdown by category (direct loss and foregone production of the F1 generation).

To compensate for the injury to common loon, the Trustees identified three established restoration project types based on previous experience and input from common loon experts and scientific literature (NOAA 1999; Evers et al. 2009; DeSorbo et al. 2007; LPC 2011; Hammond 2009). These projects included: (1) creating artificial nest sites; (2) implementing a nest protection program with loon wardens, signage and public outreach; and (3) protecting land around existing nest sites to limit future reductions in productivity. Each project was scaled using the life history data and the total cost to restore the loss (4,013 DBYs) was estimated.

1.6.2. Other Birds Injury Assessment

The Trustees calculated losses to the Other Birds species group (i.e., non‐tern, non‐shorebird, non‐common loon) injured as a consequence of the Spill. These include rocky island colonial nesting species (double‐crested cormorant, great cormorant, herring gull, great black‐backed gull, and ring‐billed gull), pelagic seabirds (northern gannet, razorbill, sooty shearwater), red‐ throated loon and grebes (horned grebe, red‐necked grebe), diving ducks (common eider, black scoter, white‐winged scoter, surf scoter, red‐breasted merganser, hooded merganser, greater scaup, bufflehead, and long‐tailed duck), and other waterfowl (American black duck, Canada goose) (Table 3).

The Trustees’ loss calculations are measured in units of DBYs and include two components. The first of these consists of DBYs associated with birds killed by acute or delayed effects of the Spill.

For example, the Trustees have estimated that 83.2 common eider were killed by the oiling. Had the Spill not occurred, these birds would have lived out their natural lifespans, generating ecological services quantified as 459 DBYs. For ease of reference, Table 4 summarizes eider key life history parameters used in this calculation.

Table 1. Common loon life history parameters used in injury and restoration scaling calculations.

Parameter Value Notes References Fledgling survival 0.7 Survival from fledgling to 1 y.o. Mitro et al. 2008

Mitro et al. (2008) estimated immature survival rates: 0.80 for 1‐2 y.o. and 2‐3 y.o., 0.92 for 3+ y.o. Evers (2007) survival to 3 y.o. = 0.41, which amounts to about 0.74 annually in this age range.

Mitro et al. 2008; Evers 2007 Annual immature survival/Annual adult survival

0.8 0.92

Adult productivity (chicks fledged/territorial pair) 0.53

Evers 2007: Species‐wide average of 0.53+/‐0.19 (0.29‐0.96 range for northern New England and New York). 0.37 (Mitro et

al. 2008) for high‐Hg lakes in northern NH and ME.

Evers 2007; Mitro et al. 2008

Age at first breeding (yrs) 6 ‐‐ Evers 2007

Percent adult female population that breeds each year 80% Evers 2007. NH average = 54%. Increased this to 80% to more closely reflect the observed population trend. Evers 2007

Percent females in population 50% ‐‐ Trustee assumption Maximum life span (yrs) 30 Evers 2007 Evers 2007

Population status level to increasing

Christmas Bird Count (CBC) shows insignificant increase in Buzzards Bay (1987‐2008). Evers (2007): ME, NY, level. NH, VT, MA increasing. Ontario, Quebec decreasing.

CBC multiple years; Evers 2007

Affected population size 2,100 Territorial pairs in New England Evers and Taylor 2014

Total number dead 531.2 Includes ~20 birds estimated to have died through delayed mortality, with the remainder having died immediately in the wake of the spill.

Trustee assumption

Floater productivity 0.371 30% lower than that of more experienced adults. Note Floater productivity duration (yrs) 1 ‐‐ Trustee assumption Note: Data sources considered include Weimerskirch (1992), Lee et al. (2008), Wooller et al. (1990), and Cooke et al. (1981). These authors found first‐year breeders to have lower productivity than more experienced breeders, with effects on productivity ranging from 10 percent to 40 percent lower.

Table 2. Trustee calculated common loon losses (2003 DBYs).

Injury Common Loons

Number of birds killed* 531.2

Direct and indirect mortality (DBYs) 3,899

F1 losses (DBYs) 114

Total losses (DBYs) 4,013

* The Trustee estimate of killed birds is a calculated value (rather than a whole number) resulting from a modelling approach that considers the number of dead birds collected, searcher efficiency rates, scavenging rates, and a number of other factors.

In addition, foregone productivity was calculated for some of the killed birds (e.g., diving ducks), depending on life history characteristics. For example, for bird species that do not have floaters that could fill the void of lost adults or for species where recovery was considered to be slower due to the relatively late age of first breeding and lower reproductive success, foregone productivity associated with the first generation was calculated. Losses associated with this foregone F1 generation were calculated in the REA as the present value of these fledglings (in DBYs), considered over the course of the fledglings’ natural lifespans.

A total of 3,384 DBYs, or approximately 13 percent of the total DBYs, were estimated lost due to the death of other birds. In the judgment of the Trustees, development of separate, relatively small restoration projects for each of the impacted bird species would not be practical, beneficial or cost‐effective. Therefore, as has been done in other cases (NOAA et al. 1999; CDFG et al. 2007;

CDFG et al. 2012), the Trustees selected a single “umbrella” species approach to restore all of the other birds. Since more than 50 percent of the other birds lost were diving ducks, with common eider experiencing the highest rate of mortality, the Trustees focused restoration efforts on increasing common eider productivity and survival by protecting habitat that is utilized for both breeding and overwintering. The Trustees scaled the size of habitat needed to be protected based on life history data for common eider and estimated costs for land protection. Habitat protection for the common eider is expected to benefit many of the bird species that were impacted by the Spill.

Table 3. Trustee estimate of rocky island colonial bird, pelagic seabird, red-throated loon, grebe, diving duck, and waterfowl losses (2003 DBYs).

Common Name Scientific Name Trustee estimate of killed birds*

Carcass DBYs

F1 DBYs

Total DBYs**

ROCKY ISLAND COLONIALS

Double‐crested Cormorant Phalacrocorax auritus 30 151 0 151 Great Cormorant Phalacrocorax carbo 7.5 29 0 29 Herring Gull Larus argentatus 50 248 0 248 Great Black‐backed Gull Larus marinus 24.4 96 0 96 Ring‐billed Gull Larus delawarensis 9.5 56 0 56 Total Rocky Island Colonials 121.4 580 0 580

PELAGIC SEABIRDS

Northern Gannet Morus bassanus 8.1 67 2 69 Razorbill Alca torda 11.2 82 116 198 Sooty Shearwater Ardenna grisea 2.4 20 0 20 Total Pelagic Seabirds 21.7 169 118 287

RED‐THROATED LOONS AND GREBES

Red‐throated Loon Gavia stellata 82.7 573 0 573 Horned Grebe Podiceps auritus 6.3 11 0 11 Red‐necked Grebe Podiceps grisegena 22.4 60 0 60 Total Red‐Throated Loons and Grebes

111.4 644 0 644

DIVING DUCKS

Common Eider Somateria mollissima 83.2 459 21 480 Black Scoter Melanitta americana 76.6 289 336 626 White‐winged Scoter Melanitta deglandi 11.9 44 44 88 Surf Scoter Melanitta perspicillata 21.4 79 80 159 Red‐breasted Merganser Mergus serrator 26.2 71 10 81 Hooded Merganser Lophodytes cucullatus 2.4 6 0 6 Greater Scaup Aythya marila 2.4 8 7 15 Bufflehead Bucephala albeola 21.9 50 71 121 Long‐tailed Duck Clangula hyemalis 28.6 130 125 255 Total Diving Ducks 274.6 1136 694 1831

OTHER WATERFOWL

American Black Duck Anas rubripes 4.8 10 0 10 Canada Goose Branta canadensis 11.4 32 0 32 Other Total Waterfowl 16.2 42 0 42

GRAND TOTAL 545.3 2571 812 3384

* The Trustee estimate of killed birds is a calculated value (rather than a whole number) resulting from a modelling approach that considers the number of dead birds collected, searcher efficiency rates, scavenging rates, and a number of other factors.

** Totals may not exactly match due to rounding.

Table 4. Common eider life history parameters used in injury and restoration scaling calculations.

Parameter Value Notes References

Fledgling survival (survival from fledging to 1 y.o.) 0.88 Used adult survival rate from Birds of North America (BNA). Goudie et al. 2000

Annual adult survival 0.88 BNA: 0.87‐0.88 Goudie et al. 2000

Adult productivity (#fledglings/female) 0.42

0.3 from Milne and Reed 1974. Flag Island, ME: 0.354 ducklings/hen in 2006; 0.278 ‐ 0.93 ducklings/hen in 2007 (Allen et al. 2008) 0.12 ducklings per pair (Mawhinney et al.

1999). Using all data, avg. =040.

Used 0. 42 so that r is closer to zero.

Milne and Reed 1974;

Mawhinney et al.

1999; Allen et al. 2008

Age at first breeding 3 ‐‐ Goudie et al. 2000 Adult female population that breeds each year (%) 0.78 ‐‐ Goudie et al. 2000

Percent females in population 50% ‐‐ Goudie et al. 2000 Maximum life span (yrs) 21 ‐‐ Goudie et al. 2000

Total number dead 83.2 Trustees' Acute Mortality Report + delayed mortality

Trustees' Acute Mortality Report

1.7. Summary of Settlement for Natural Resource Damages

Under OPA rules, the Responsible Parties are liable for the costs of conducting a natural resource damage assessment, as well as the costs of implementing restoration projects to restore the injured resources. Throughout the assessment phase, the Responsible Parties reimbursed the Trustees for assessment costs. In January 2018, based on the injury assessment and restoration scaling efforts, the Trustees and Responsible Parties reached a mutually agreeable settlement to restore injuries to common and roseate terns, common loon, and other birds resulting from the Spill. Under the agreement, the Responsible Parties agreed to pay damages totaling $13,300,000.00. This settlement includes the costs of Trustee restoration planning, implementation, oversight, and monitoring. The settlement was memorialized in a consent decree on January 24, 2018 (United States of America v. Bouchard Transportation Company, Inc., Tug Evening Tide Corporation, and B. No. 120 Corporation, Case No. 17‐cv‐12046, January 24, 2018, U.S. District Court, District of Massachusetts):

U.S. Department of the Interior Natural Resource Damage Assessment and Restoration Program: T/B Bouchard B‐120 Grounding Fuel Oil Spill (Accessed April 30, 2020) https://www.cerc.usgs.gov/orda_docs/CaseDetails?ID=966 https://www.cerc.usgs.gov/orda_docs/CaseDetails?ID=966

Funds were designated to achieve restoration goals for the following categories:

• Loon Restoration: The Trustees will use approximately $7.3 million of the funds to plan, implement, oversee, and monitor the restoration of common loon.

• Tern Restoration: The Trustees will use approximately $5 million of the funds to plan, implement, oversee, and monitor the restoration of common and roseate terns.

• Other Birds: The Trustees will use approximately $1 million of the funds to plan, implement, oversee, and monitor the restoration of other bird species impacted by the Spill.

The Trustees allocated specific funding amounts to each state, based on the level of injury to each category of birds in each state. The subdivision of the $13.3 million for use by the Trustees to restore, replace, or acquire the equivalent of birds injured by the Spill is as follows:

• Restoration in Rhode Island (Common Loon and Other Birds), the amount of $1,274,000 ($1,300,000, less 2 percent of the funds for restoration planning and oversight); the Trustees note that approximately 10 percent of all the dead birds recovered following the Spill were found in Rhode Island;

• Restoration in Massachusetts (Common Loon), the amount of $6,370,000 ($6,500,000 less 2 percent of the funds for restoration planning and oversight);

• Restoration in Massachusetts (Other Birds), the amount of $490,000 ($500,000, less 2 percent of the funds for restoration planning and oversight);

• Restoration in Massachusetts (Common and Roseate Terns), the amount of $4,900,000 ($5,000,000 less 2 percent of the funds for restoration planning and oversight) will be combined with funds from the Ram Island Shoreline and Related Resources Settlement ($534,000 that was previously secured through the first Consent Decree and has since gained interest). As mentioned above, injuries to common and roseate terns (and shorebirds) will be described in a separate Restoration Plan that will be released by the Trustees at a later date; and

• Restoration Planning and Oversight of Bird Restoration, the amount of $266,000, or 2 percent of the overall settlement, plus any anticipated interest earned following the date of initial deposit.

2. Restoration Planning The goal of natural resource restoration planning through OPA regulations is to identify actions appropriate to restore, rehabilitate, replace, or acquire natural resources or services equivalent to those injured by oil spills, to the condition that resources would have been if the incident had not occurred. Trustees are required to identify and consider a reasonable range of alternatives that would address the injuries associated with the Spill, as well as consider a No Action alternative for comparison and contrast with selected actions.

2.1. Public Involvement in Restoration Planning

Following the Spill, the Trustee Council met with citizens, environmental groups, and local and regional officials to inform the public about the status of the spill response, future agency actions, and the general NRDA process. Beginning in 2003, multiple public meetings were hosted by elected officials (former U.S. Senator John F. Kerry, former U.S. Congressman Barney Frank, and Massachusetts State Senator Mark Montigny), local environmental organizations (e.g., Buzzards Bay Coalition [BBC]), and the MassDEP. The public meetings provided an opportunity to explain to local residents and other interested citizens that thorough documentation and assessment of the impacts from the Spill were an integral part of the process leading to restoration planning and restoring the natural resources harmed by the Spill, as well as restoring the public’s use of these natural resources.