OAR 635-410-0035. Damage Assessment Procedure

(1) The Department may seek recovery in damages for natural resource losses pursuant to CERCLA, either in lieu of or in addition to any recovery authorized by ORS 468B.060. (2) Pursuant to ORS 468B.060, the Department shall pursue recovery in the form of damages or, where desirable, in-kind compensation. The Department shall claim the full value of fish or wildlife injured or destroyed and, where applicable, the cost of restoring production in affected areas, including but not limited to habitat restoration. (3) Before initiating suit for damages in any court of competent jurisdiction, the Department shall serve a letter by registered or certified mail upon the responsible party demanding compensation for the value of the fish or wildlife injured or destroyed and the cost of restoring production in affected areas, including but not limited to habitat restoration. (4) If after 60 days from the date of mailing the responsible party fails or refuses to pay, the Department may seek recovery in a court of competent jurisdiction. (5) Any sums collected shall first be made available for habitat or population restoration work in the affected region. (6) In-kind compensation, in the form of habitat restoration or other actions beneficial to restoration of fish or wildlife production, may be acceptable to the Department, provided that, at a minimum: (a) The services are commensurate in value with the monetary value of the compensation claim; (b) The form of in-kind compensation is acceptable to both the Department’s Habitat Conservation Division and the appropriate Regional Office.