(a) In an action filed pursuant to the Oil Spill Prevention and Response Act (OSPRA), Texas Natural Resources Code, §40.107, the state trustees may recover:
  (1) the costs incurred by the state trustees in conducting the assessment, including, but not limited to:
    (A) salary, fringe benefits, overhead, release, and transportation, lodging and state per diem costs;
    (B) the costs of sampling and analyses of oil and natural resources, including reference areas;
    (C) the costs of laboratories, contractors, and other experts retained by the state trustees in assessing injury and determining and recovering damages;
    (D) the cost of the mediation required by §20.43 of this title (relating to Mediation); and
    (E) any other costs incurred in carrying out state trustee functions for assessing natural resource damages and for developing, implementing and monitoring plans for the restoration, rehabilitation, and/or acquisition of the equivalent of damaged resources;
  (2) the costs of restoration, rehabilitation, replacement and/or acquisition of equivalent resources in compensation for the injury to natural resources sustained as the result of an unauthorized discharge of oil;
  (3) the costs to mitigate further injury to natural resources from the time of the initial discharge until the time of restoration of the injured natural resources and the services they provide;
  (4) the diminution in value of the natural resources and the services they provide from the time of the unauthorized discharge of oil and during and after their restoration, replacement, rehabilitation, and/or acquisition of equivalent resources;
  (5) fees, economic rent or any payments collectible by the state trustees for the use of the natural resource by a private party; and
  (6) all costs that have a rational connection to the assessment and are incurred in the performance of the assessment, and the development, implementation, and monitoring of the restoration plan.
(b) Separate reimbursement. The responsible person shall reimburse assessment costs to each state trustee separately.
(c) Limitation on liability. If a responsible person is entitled to a limitation of natural resource damages liability, then any recovery under OSPRA, §40.107, shall be limited as provided in OSPRA, §40.203.
(d) Coastal Protection Fund (CPF) liability. The CPF is absolutely liable for all natural resource damages assessed as the result of injuries caused by an unauthorized discharge of oil into coastal waters. In the event that the responsible person does not reimburse state trustees, the trustees shall be reimbursed from the CPF pursuant to this subsection.
  (1) State trustee costs.
    (A) State trustees may recover from the CPF all costs incurred responding to an unauthorized discharge of oil and in assessing damages resulting from injuries to natural resources caused by an unauthorized discharge of oil into coastal waters.
    (B) State trustees must submit directly to the commissioner satisfactory proof of costs incurred. Satisfactory proof of costs is compliance with the procedures prescribed by and according to the rules of the comptroller of public accounts of the State of Texas. The commissioner will recommend that the comptroller make payment to the state trustees for their assessment costs, provided that funds are appropriated from the CPF by the Legislature for this purpose.
    (C) As provided in OSPRA, §40.157(b), state trustee agency requests for reimbursement of costs incurred responding to an unauthorized discharge of oil and costs incurred in assessing natural resource damages submitted in accordance with subsection (d)(1)(B) of this section are not subject to the procedures for claims against the CPF established under OSPRA, §40.159.
  (2) Damages for injuries to natural resources. In the event the responsible person fails to pay a natural resource damage assessment claim, the state trustees may present the claim to the CPF for the costs of actions to restore, rehabilitate, replace and/or acquire the equivalent of injured natural resources and for the costs to mitigate injuries to natural resources resulting from an unauthorized discharge of oil pursuant to this subsection.
  (3) CPF liability and limitation.
    (A) CPF liability. Any damages for injuries to natural resources in excess of the liability limits of OSPRA, §40.203, are payable by the CPF pursuant to this subsection. The CPF is liable when:
      (i) the federal fund denies the claim; or
      (ii) the amount of the claim paid by the federal fund is not sufficient to restore, rehabilitate, replace and/or acquire the equivalent of the injured natural resources.
    (B) Limitation on CPF liability. If subparagraph (A) of this paragraph applies, then the CPF shall be liable for further damages for restoration, rehabilitation, replacement and/or acquisition of the equivalent natural resources and for the mitigation of injuries to natural resources for a period of two years from the date the federal fund grants or denies the claim.
  (4) Reimbursement to the CPF. The commissioner shall diligently seek reimbursement to the CPF. The commissioner shall seek reimbursement from the responsible persons, the federal fund and any other person who is liable under OSPRA for all expenditures from the CPF, when the CPF has paid a natural resource damage assessment claim. When state trustees have recovered damages from the CPF, the commissioner shall be subrogated to all rights or causes of action of the trustees.
(e) Assessment claim. The state trustees shall present the assessment claim to the responsible person via hand delivery or United States Postal Service Return Receipt Requested Certified Mail.
(f) Payment of assessment claim. Within 60 days of the presentation of an assessment claim by the trustees, the responsible person shall make full payment unless the assessment is in dispute and referred to mediation pursuant to OSPRA, §40.107(c)(7)(F). In the case of successful mediation, payment of the assessment claim shall be made within 60 days of the completion of the mediation unless otherwise agreed.
(g) Pooling of recovered compensation. When monetary compensation is received by the state trustees as the result of payment of an assessment claim, the state trustees may use funds recovered from more than one assessment claim to execute a restoration project which meets the requirements of §20.36(e) of this title (relating to Equivalent Resource Plans).
(h) Double recovery prohibited. The commissioner shall ensure that there is no double recovery for natural resource damages resulting from an unauthorized discharge of oil.

Source Note: The provisions of this §20.41 adopted to be effective October 19, 1994, 19 TexReg 7911; amended to be effective October 21, 2010, 35 TexReg 9318