National Commission on the

BP DEEPWATER HORIZON OIL SPILL

AND OFFSHORE DRILLING

Attachment 21
Written Statement of Mary Landrieu

U.S. Senator, Louisiana

 Statement by Senator Mary Landrieu

Coastal Restoration and Protection -Lon~-Term Crisis

For more than a century, the federal government has mismanaged

critical water-resource projects, placing delicate ecosystems like the
Mississippi River Delta at extreme risk of complete and utter collapse.

In the decades since our federal government first pursued the

channelization of the Mississippi River to promote trade and commerce,
the world’s seventh-largest delta has been largely deprived of
nourishment from sediments carried by the river, which drains roughly
two-thirds of the continental United States. Instead of rebuilding the
delta, these sediments now are redirected and carried out to the Gulf of
Mexico, where they are dispersed.

The effect on the delta is a constant and debilitating land loss. This
strangulation of this natural process is compounded by the ravages of
coastal erosion and further aggravated by regular storms and hurricanes
that batter barrier islands and coastal plains.

Sustainability of life in the delta is under dire threat in coastal

Louisiana--a rapidly erodin~ landscape that loses 25 to 35 square
miles of wetlands each year. At the current rate of land loss, an area
the size of Rhode Island will be underwater by 2050. We have
already lost an area the size of Delaware in the last 50 years.

And with the loss of this unique area goes our nation’s only true working
energy coast--an economic engine that contributes 90 percent of
America’ s offshore energy production, 30 percent of the nation’s overall
oil and gas supply, and 30 percent of the seafood produced in the lower
48 states. Our working energy coast also caters to one of the most
unique and vibrant hospitality tourism industries in the nation. It is also
home to more than 2.5 million citizens who operate the great port
systems of the Mississippi.

At the heart, of this special coast is a massive river system stretching

nearly 2,500 miles from the Great Plains to the Gulf of Mexico. The
Mississippi River has the third-largest drainage basin in the world,
exceeded only by the watersheds of the Amazon River and the Congo
River.

Sitting at the mouth of this vast river system is my home of New

Orleans--a city that was almost lost in 2005 and is still struggling to
recover from Hun’icane Katrina--one of the most devastating man-made
disasters in history.

While it bears great strategic and cultural importance to the nation, New
Orleans is not the only vulnerable area that requires protection. Across
the entire Louisiana coast, from east to west, cities such as Lake Charles
(population 71,757), Houma (population 32,393), New Iberia
(population 32,623), Thibodeaux (population 14,431) and Lafayette
(population 110,257) are threatened as well.

As we have seen during this cun’ent oil spill, these cities form the
backbone of our nation’s fisheries, port system, and offshore oil and gas
industry.

All of these tremendous assets are at risk of being wiped off the map.
With. the persistent and rapid loss of land in Louisiana, communities are
more vulnerable to the storm surge of massive storms and the inevitable
impacts of sea-level rise.

The Solution: Justice for the Gulf

There is a solution; one that is do-able and affordable.

2
To help this region undo decades of coastal loss and respond to the
effects of the current oil spill, it is critical to secure a permanent, robust
and immediate source of revenue for coastal restoration.

This can be achieved in two ways, both of which are included in the
RESPOND Act that I re-introduced in August:

Accelerate the Domenici-Landrieu Gulf of Mexico Energy

Security Act of 2006, which finally dedicated 37.5% of
new offshore oil and gas revenues to coastal protection
and restoration in the four Gulf energy-producing states.
Inland states have shared 50% of the revenues generated
by drilling on federal lands since 1920. Historically the
Gulf states carried all of the risk associated with drilling
without the reward. Under the RESPOND Act, the flow of
revenue would begin immediately instead of 2017.

2. No less than 80% of the civil and criminal penalties

charged to BP under the Clean Water Act should be
directed to the Gulf Coast for long-term economic and
environmental recovery. The money should be invested
where the injury was suffered - along the Gulf Coast.

In addition to a permanent source of funding, we must energize the

sluggish and ill-equipped federal bureaucracy and establish a new more
effective governance model for implementing coastal protection and
restoration.

The current federal process for addressing coastal protection and

restoration is woefully inadequate and painfully slow, held up by the
interminable process of planning, irregular and unpredictable Federal
authorizations, mind-numbing regulations and insufficient funding.
We need a new approach that will expedite coastal protection and
restoration in Louisiana, and the Gulf Coast, by establishing a
governing entity or institute with this singular focus.

I applaud the recommendations that Secretary Ray Mabus is

making to the President today. In large measure, these
recommendations follow the suggestions of the stakeholders in
the region who are adamantly focused on protecting our
coastal areas.

Specifically, this report will recommend:

Congressional action to dedicate a significant amount of any

obtained civil Clean Water Act penalties incurred to the Gulf
Coast’s recovery.
Dedication of a portion of any obtained Clean Water Act
civil penalties directly to the Gulf States.
Congressional action to create a Gulf Coast Recovery
Council to manage the dedicated Clean Water Act funds.
The Council should coordinate closely with the ongoing
Natural Resource Damage Assessment (NRDA) proceedings
and should include representatives from the federal and state
governments, and tribal organizations.
Immediate appointment of a single federal lead for ecosystem
restoration.
Immediate creation of an administratively established Gulf
Coast Ecosystem Restoration Task Force to manage the
transition from response to recovery. The Task Force would
be an advisory body that would include representatives from
federal, state, and tribal organizations and would act in direct
coordination with the NRDA process. It would also act to
4
 coordinate non-NRDA ecosystem funds and projects. If the
Recovery Council is established by Congress the Ecosystem
Restoration Task Force could be modified or dissolved.
Continuation of public health efforts.
Continuation of the important economic recovery work.
Suppo~ to nonprofit organizations working on the Gulf
Coast.
Most of these recommendations will require Congressional
action and I hope my colleagues will join me in fighting for
these vital and necessary measures to put our coastal areas in
better condition.

Conclusion - While a long-term plan is essential~ we cannot

restore the Gulf Coast until we get people back to work.

April 19th, America consumed about 20 million barrels of oil each

day. Now, more than five months removed from the Deepwater
Horizon explosion, our nation still consumes 20 million ban’els of
oil a day

Thanks in large measure to a robust oil and gas industry in the

Gulf, the U.S. produces about 5 million ban’els of oil here. We
produce another 3 million barrels worth ofbiofuels.

While more needs to be done to reduce our dependence on oil -

and to transition to cleaner, renewable forms of energy~ the
fact remains that America will need oil well into the
foreseeable future.

This point is critical and one this Commission should take

leadership over. This country need oil and gas to run our
5
 economy, but not one person in this Administration seems focused
on the future of domestic oil and gas development.
This Administration continues to serve as a road block,
threatening the viable future of the industry.
Here is just one example of the Administration’s seeming lack of
support for the quick return of the industry. According to the
Federal register notice for this meeting:
"The President directed that the Commission be established
to examine the relevant facts and circumstances concerning
the root cause of the BP Deepwater Horizon explosion, fire,
and oil spill and to develop options to guard against, and
mitigate the impact of any spill associated with offshore
drilling in the future."
There is a key piece missing to this directive - the fact that
our ec,onomy is literally driven by oil and gas and will continue
as such for the foreseeable future. There is no mention of the
importance this industry and the vital jobs it supplies throughout
our country. As such, I hope this Commission can help the
Administration focus on this vital piece to our secure energy and
economic future.
For decades, Louisiana and the 330,000 people who work in the oil
and gas industry have delivered this fuel to our nation.

That energy fuels not just our cars, but a significant portion of our
national economy.

But unfortunately, tens of thousands of jobs are at risk due to this

Administration’s ill-conceived and borderline reckless six-month
deepwater drilling moratorium.

6
Of course, those of us familiar with the industry know that there is
also a de facto moratorium on shallow water drilling as well. You
may be surprised to know thatbefore the BP spill, the Mineral
Management Services (MMS) approved an average of three to six
shallow water permits per week, or 12 to 24 permits on average per
month. In contrast, since May, the Bureau of Ocean Energy
Management (BOEM) has only issued seven shallow water permits
for new wells.

This de facto moratorium threatens the viability of that entire

industry. -These companies cannot hold on to an empty promise
that new permits will be issued. They need action to keep
employees on their payrolls or be forced to lay-off workers. And
for each day new permits are not issued, the economic crisis
continues to grow.

I bring up these moratoria only to make this very critical point: a

long-term plan to save our coast can only be effective with a short
term strategy to save the thousands of jobs which are at grave risk.
What good is saving our environment to only let the economy
crumble around it?

The Gulf Coast needs quick and decisive action to lift the
moratorium to save our businesses and our economy. That
action coupled with a secure long-term plan to restore our
coast is the only way to save our way of life long into the
future.

7
National Commission on the
BP DEEPWATER HORIZON OIL SPILL
AND OFFSHORE DRILLING

Attachment 22
Written Statement of Haley Barbour

Governor of Mississippi
 Testimony of Governor Haley Barbour to the National Commission on the
BP Deepwater Horizon Oil Spill and Offshore Drilling
September 28, 2010

While the total impact of this summer’s oil spill on the Gulf of Mexico
ecosystem may not be known for several years from now, there is much we
already know about the Gulf and how to make it better, both
environmentally and economically, for Mississippi and the region.
Hopefully, scientists will find the spill has had a far smaller impact on the
Gulf ecosystem than most feared and a far, far smaller impact than what’s
been reported by the cable news channels, as the daily sensational reports
literally scared tourists away from Gulf vacation plans this summer. But the
fact is, while the ecological impact seems small for now, we just won’t know
the total impact until all the data is in.

This doesn’t mean we need to wait on the studies to conclude before we take
action. There’s much we know needs doing in the Gulf region, and as we
move forward in the aftermath of the oil spill into restoration and improving
the way we interface with the Gulf of Mexico, there are several areas that
deserve our attention - hurricane protection, environmental restoration,
fisheries improvements, commerce, and energy production - and all are
interrelated and tied to the long term economic well-being of the region.

With Katrina we have learned the hard way our communities must be better
prepared for hurricanes, and the natural barriers that better protected our
shoreline decades ago need rebuilding, otherwise we will remain more
vulnerable to storms than we’ve ever been. Seafood, and all of the
commercial and recreational activity with it, is a huge part of this region’s
economy, and environmental restoration and fisheries enhancement are very
much interconnected. Finally, this region is critically important to our
nation’s commerce and international trade through its seaports and to our
nation’s energy supply through production of its vast oil and natural gas
resources.

Some of these issues, like oil and gas production, are policy issues that we
must get right quickly, before more investment, infrastructure, and jobs go
elsewhere while some issues, like the Port of Gulfport expansion project
which is critically important to future job growth for South Mississippi,
require Congressional action and Federal attention to expedite permitting
processes to free up money already appropriated while some efforts will
require new funding, either through Congressional appropriations or monies
derived from the Natural Resources Damage Assessment currently
underway or proceeds from Clean Water Act fines.

Seemingly, the most important role of this Commission is to recommend

policies to the President and to Congress that could have a long-lasting and
enormous impact on offshore oil and gas production, on our economy, and
on energy security.. For decades now, for the obvious reasons of natural
security and jobs creation, Americans have demanded more American
energy and, election after election, have elected politicians that rhetorically
used "energy independence" as a platform. With roughly 60% of oil
consumed in the U.S. being imported, statistics show that we have done a
very poor job of expanding American energy production over the years, and
in fact, our federal energy policies, or lack thereof, of have resulted in
restricted access and supply, more imported oil, and higher prices. At $75
per barrel oil, this is over $800 million U.S. dollars spent on imports per day
and over $300 billion spent per year. A little progress towards reducing
imports would have a significant impact on the trade deficit. Americans
want more domestic energy and understand that more supply means more
jobs, more security, and affordability.

The President’s moratorium is a backwards step and needs to be reversed

before more infrastructure, investment, jobs, and production is lost in the
Gulf. Yes, we do need to understand how to prevent what caused the
Deepwater Horizon explosion and spill, but the impact of stopping
exploration and losing production is far too great. We need the energy.
While the inter-agency report last week boasts that only 8000 to 12,000 jobs
are estimated to be "temporarily" lost due to the deepwater drilling
moratorium, this is no small number of jobs to our region, and the report
only estimates job number losses, not individual income losses due to the
drastic drop in drilling activity. And the lost production will surely be
replaced by imported oil, so more American dollars will leave the country
rather than staying here to create jobs in the Gulf.

Roughly 13% of U.S. natural gas production is derived from the Gulf and
30% of U.S. oil production comes from the Gulf with 80% of that coming
from deepwater wells. So the deepwater drilling moratorium and the sharp
decline in shallow water drilling permits will have a significant negative
impact on U.S. energy production. Policy changes are needed now to
reverse the direction we’re headed of making our country more dependent
on foreign oil producers.

Aside from the negative impact on energy security and the economy, we
must remember that of the 10 largest oil spills in U.S. history, 8 have been
from tankers or barges, so by reducing production and necessitating more
imported product, we are creating a higher risk of major spills. The
Deepwater Horizon spill is now the largest by far, but tanker spills are
typically nearshore, not easily contained, and do not get as much benefit of
natural decomposition as we saw with the Deepwater Horizon oil this
summer in the warm waters of the Gulf.

You’re request today was for me to discuss the opportunities for funding
long-term Gulf restoration through Clean Water Act fines, the Natural
Resources Damage Assessment, and other mechanisms. Obviously, there
remains much uncertainty over Clean Water Act fines to be paid by the
responsible party, BP. Regardless of how much this will be or when it will
be paid, those who live, work, know, and depend on the resources in the
Gulf should decide how to restore the region. Much of this is science and
most of the restoration needed is not related to the oil spill but various
projects that were planned over time before this event even began.

Of course, the Natural Resources Damage Assessment (NRDA) process,

prescribed under the Oil Pollution Act (OPA), will run its course and will
tell us over the next several months and years environmental and economic
damages as a result of natural resource losses due to the Deepwater Horizon
spill. Assessments in Mississippi began in late April when our agencies -
the Department of Environmental Quality and the Department of Marine
Resources - stepped up water, air, sediment, and tissue sampling to collect
sufficient background data, and assessments will continue as our various
teams monitor all the different components of the MS Gulf ecosystem
through next year and after.

Many of the environmental restoration needs near Mississippi’s shore have

been identifled as part of the Mississippi Coastal Improvement Plan
(MSCIP). After Hurricane Katrina, Congress asked the U.S. Army Corps of
Engineers to determine projects that would provide greater protection
against storm surge to the Mississippi Gulf Coast. The Corps recommended
both near term improvements, which Congress funded at $107 million in
2007, and long term improvements, which are estimated to cost around $1.3
billion to complete. Of this, Congress has already appropriated $439 million
for the restoration of the Mississippi barrier islands to their pre-Hurricane
Camille footprint. A series of tropical storms and hurricanes, capitalized by
Hurricane Katrina, has resulted in the barrier islands being flatter with a
smaller impact. This is bad for the Mississippi Gulf Coast because these
islands, along with other natural shoreline barriers like wetlands and coastal
forestlands, serve as Mississippi’s defense against storms and storm surge.
These natural structures, which are roughly 12 miles off our main shoreline,
both reduce the intensity of hurricanes and decrease storm surge before
shoreline impact. Without the barrier islands and other natural protective
lands that absorb energy from hurricanes, the Mississippi Gulf Coast is left
vulnerable. About $800 million is needed to complete the MS Coastal
Improvement Plan and restore the barrier islands and the thousands of acres
of habitat and natural protection.

Regarding Clean Water Act fines, I know Senator Landrieu has proposed
that 80% be provided to Gulf States in lieu of being deposited into the Oil
Pollution Trust Fund or into the Federal treasury. I concur with this
proposal and have proposed to both BP and Secretary Mabus that
administration of dollars for the Gulf region be funneled through the Gulf of
Mexico Alliance (GOMA) or a States-led council. GOMA has existed since
2004 and has planned for and carried out actions for habitat restoration,
nutrient management, and water quality improvements. Each of the five
Gulf States are equally represented on GOMA, and a host of Federal
agencies and Gulf researchers are at the table as plans are made and carried
out. What the Gulf region does not want is Federal agencies making
decisions on how Gulf restoration dollars are spent.

In Mississippi, I have appointed a Commission made up of scientists,

business leaders, conservationists, seafood industry representatives, and
elected officials. This Commission is making recommendations in the areas
of economic development, research, environmental restoration, and public
health and safety to develop a long-term, comprehensive roadmap for things
to be done to improve quality of life among coastal communities as it relates
to the Gulf of Mexico. This plan will be the guiding document for
administration of environmental or economic restoration dollars in
Mississippi.
 National Commission on the
BP DEEPWATER HORIZON OILSPILL
AND OFFSHORE DRILLING

Attachment 23
Written Statement and Presentation of Dr. Steven Murawski

Director of Scientific Programs and Chief Science Advisor

National Oceanic and Atmospheric Administration
 WRITTEN STATEMENT OF

STEVEN A. MURAWSKI, PH.D.

DIRECTOR OF SCIENTIFIC PROGRAMS AND CHIEF SCIENCE ADVISOR

NATIONAL MARINE FISHERIES SERVICE

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

U.S. DEPARTMENT OF COMMERCE

PUBLIC HEARING BEFORE THE

NATIONAL COMMISSION ON THE BP DEEPWATER HORIZON

AND OFFSHORE DRILLING

September 28, 2010

Thank you Governor Graham, Administrator Reilly, and all the members of the

Commission and staff for inviting testimony from the Department of Commerce’s

National Oceanic and Atmospheric Administration (NOAA). My name is Steven

Murawski; I am the Director of Scientific Programs and Chief Science Advisor for

NOAA’s National Marine Fisheries Service. In addition to my normal duties I have been

involved with a number of interagency groups that have been formed to coordinate spill-

related science. I lead the National Incident Command’s Joint Analysis Group (JAG) that

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provides information and analysis of findings regarding the sub-surface monitoring of oil

and oceanography. Additionally I am the lead for the interagency Executive Leadership

group, which is coordinating the deployment of an enhanced sub-surface oil and

dispersants monitoring program being developed through the Unified Area Command.

My testimony today will discuss some scientific findings in the Gulf of Mexico related to

the BP Deepwater Horizon oil spill, on-going impact research, and long-term monitoring

plans, as well as the Administration’s scientific coordination with industry, academia, and

other state and Federal agencies.

TIlE ROLE OF SCIENCE

Science has been a critical component of all three major phases of this oil spill response

and recovery effort: (1) the response to the presence of vast quantities of Deepwater

Horizon oil with respect to the environment and human communities, (2) the Natural

Resource Damage Assessment (NRDA) identifying direct and indirect impacts of the

spill on the productivity, abundance, and use of ecosystem services in the Gulf, and (3)

long-term recovery of the GulFs ecosystems and communities dependent on natural

resources. Early in this spill it was recognized that the scale and scope of the event

would be so vast that it would touch virtually every aspect of life in and surrounding the

Gulf. The challenges would be to document the quantity, movement, and fate of the oil;

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the impacts of oil on ecosystems and people; and the success of any targeted recovery

and mitigation efforts.

As the spill scenario had evolved, so too have the nature and emphasis areas for science

supporting spill efforts. For example, initial sampling was aimed at quantifying surface

oil and predicting its movements as an aid to the first responders and clean-up crews.

Within hours of the spill the first surface trajectory models were being run to predict

where oil may be found. Over the course of the spill, modeling ofoil trajectories became

more complex and robust with the development of six independent surface tracking

models, and the addition of models predicting the fate of oil particles in the sub-surface. -

Similarly, issues of seafood safety testing, impacts on salt marsh, beach, and deep

ocean habitats, living marine resources, air quality, and socioeconomic impacts have

emerged as priority areas for science related to the spill. Below I detail some of NOAA’s

science efforts, the importance of interagency collaborations and the role of independent

scientists in the overall effort.

THE BREADTH OF NOAA’S SCIENCE SUPPORTING RESPONSE TO THE BP

DEEPWATER HORIZON OIL SPILL

Over the course of the spill literally thousands of NOAA employees and contractors have

been involved in various aspects of clean up and impact analysis. From providing daily
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weather predictions and hurricane outlook forecasts, to conducting shoreline impact

assessments; capturing and cleaning oiled sea turtles, and monitoring the Gulf’s seafood

supply, the spill has touched every aspect of NOAA’s diverse mission set. To date,

NOAA has conducted nearly 120 sampling missions using a total of seven of its ships

and six aircraft. These missions have been as diverse as dropping oceanographic

instruments into the loop current to study oil transport and conducting air quality

sampling from NOAA’s P-3s to using the new fisheries survey vessel PISCES and its

state-of-the-art acoustics monitoring capabilities to provide surveillance in the area

around the well head for oil and gas plumes once the well was shut in. While these

efforts have strained NOAA’s ability to respond to such a diverse and intensive use of its

resources, NOAA personnel have done so, knowing the importance of timely and

accurate scientific information supporting the response.

NOAA’s scientific experts have been assisting with the response both on-scene and

through NOAA’s headquarters and regional offices. The efforts by NOAA include all of

its line organizations, appropriate Cooperative Institutes and Sea Grant collaborations

involving many academic institutions. Coordinating all these various activities within the

Agency has been a challenge, and new structures were created to manage these efforts.

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The development of interagency collaborations by the National Incident Command (NIC)

and the Unified Area Command (UAC) has facilitated greatly the ability to collect and

interpret critical information. One case in point is the coordination of sub-surface

sampling to track the location, concentration and movement of sub-surface oil. Once it

was apparent that oil was in subsurface waters, a coordination unit was established at the

UAC, first in Houma and then in New Orleans, Louisiana. The Sub-surface monitoring

group (SSM, comprised of many agencies) was charged with overseeing the collection of

relevant data, communication with all vessels conducting sampling in the area of concern

and development of appropriate data sets. Once data began to flow from ships and other

assets deployed for sampling, the National Incident Commander set up the Joint Analysis

Group (JAG) to conduct analyses and to inform the responders, scientific community and

the public about relevant findings. Initially collaboration among agency scientists with

input of data from the contractors for one of the responsible parties, the JAG ultimately

established working relationships with more than a dozen academic researchers to assist

in interpreting of data and with combining information from all available sources. Three

substantial information reports and numerous online databases have resulted from this

collaboration, which continues to document the concentration of oil and dispersants in the

environment: http://ecowatch.ncddc.noaa.gov/JAG/reports.html. The first of the JAG

reports documented the chemistry information, particle size composition, oxygen levels

and evaluated instruments used to sample for likely oil signatures. The second report
5~Page
evaluated instrument findings from special UV lights that fluoresce in the presence of oil

(fluorometers), and the third such report compiled all available information on oxygen

levels calculated for the sub-surface, concluding that "dead zones" or hypoxia events,

once feared possible as a result of sub-surface microbial activity had not occurred and

were unlikely. These reports relied extensively on data collected and exchanged among

government, academic and private researchers.

To ensure that the public and agency partners have the data they need to understand what

is happening and to contribute their own expertise, NOAA has undertaken substantial

efforts to quality control and post data online as soon as soon as possible after collection.

A website has been created to serve as a focal point for accessing NOAA’s data. NOAA

continues to improve accessibility to data and is looking at ways, such as

geoplatform.gov, to make information and visualization products available to everyone.

NOAA leadership continues to be briefed daily on emerging science activities, and close

coordination with other federal agencies continues to occur at all levels.

At the onset of this oil spill, NOAA quickly mobilized staff from its Damage Assessment

Remediation and Restoration Program to begin coordinating with federal and state co-

trustees and the responsible parties to collect a variety of data that are critical to help
61Page
inform the NRDA. NOAA is working with the Department of the Interior (another

federal co-trustee), as well as co-trustees in five states and representatives for at least one

responsible party, BP on this effort. NOAA and the co-trustees are in the initial phase of

this process and are currently gathering data on resources such as fish, shellfish, birds,

turtles, and mammals; their supporting habitats such as wetlands, beaches, and corals;

and human uses of affected resources, such as fishing and recreational uses across the

Gulf of Mexico.

Plans are already under discussion for how agencies will continue to maintain the

necessary level of coordination through the long-term recovery phase.

COORDINATION ON SEAFOOD SAFETY SAMPLING AND RESEARCH.

NOAA has been coordinating with Food and Drug Administration (FDA), Environmental

Protection Agency (EPA), the states, and industry on seafood safety and research.

Fisheries closures remain in effect in some areas in the Gulf, and there is ongoing

sampling to evaluate additional areas for potential re-openings. Seafood samples are

derived from at-sea sampling and subjected to sensory and chemical testing for the

presence of oil. NOAA is confident in the sensory and chemical testing currently being

conducted to detect possible contamination in seafood. In response to ongoing public

concerns about seafood safety and dispersants, we have been working together with our
7[Page
scientific partners at FDA to develop a chemical test to detect dispersant in seafood. This

test, once validated, will provide additional public confidence in the safety of Gulf

seafood. All chemical samples obtained to date have tested below levels of concern

identified by FDA and NOAA and the states.

The interagency science processes set up under the various commands have by and large

worked well with a high degree of collaboration to assure the proper science is conducted

to inform the response and NRDA phases and that the public is informed. We continue

to look at ideas for more effective communication with stakeholders and the public.

COORDINATION WITH THE BROADER SCIENTIFIC COMMUNITY

While NOAA’s efforts have involved collaborations with many academic researchers,

there continues to be keen interest among the academic and private research communities

for further involvement in oil spill efforts. There have been a few instances of apparent

misunderstanding among academic researchers and agency information, leading to

confusion among the public and the media about what is happening, particularly in the

sub-surface. In order to address this issue, NOAA, along with EPA, OSTP, NSF, USGS,

BOEMRE, and NIH recently convened a series of public discussion sessions with the

external scientific community aimed at soliciting input to the goals, strategies, and

implementation of the Unified Area Command (UAC)’s draft sub-surface oil and
8]Page
dispersant monitoring plan, and discussing science collaborations more generally. The

events, hosted by the University of South Florida, Mississippi State University (in

partnership with Mississippi-Alabama Sea Grant and the Northern Gulf Institute), Tulane

University, and Dillard University (in partnership with the NAACP) brought together a

total over 300 people representing academic institutions, state agencies, private research

consortia, non-governmental organizations, and private industry. The discussions

covered a broad diversity of topics, including the need for continuing dialogue and

enhancing the communication and flow of data and information, the need for a

comprehensive plan that spans in-shore, near-shore, shelf, and deep-sea environments,

the need for a robust integrated ocean observing system, and questions about the

distinctions between the NRDA process, response efforts, and assessments of long-term

ecosystem impacts.

NOAA is committed to continuing to engage with its scientific partners. As one

example, NOAA and the other agencies that comprise the Joint Subcommittee on Ocean

Science and Technology are planning a workshop on October 5-6, 2010, in St.

Petersburg, Florida. This workshop is being designed to bring together scientists actively

conducting research, sampling, and monitoring in response to the DWH oil spill. Input

from the conference will be used to help federal agencies identify information needs and
plan short- and long-term research directions. Topics for the workshop will include: 1)

oil/dispersant extent and fate; 2) oil/dispersant impacts and mitigation in coastal and

offshore environments; 3) oil/dispersant impacts and mitigation on human health and

socio-economic; 4) oil/dispersant impacts and mitigation of living marine resources; and,

5) use of in situ and remote sensors, sampling, and systems for assessing the extent, fates,

impacts and mitigation of oil!dispersant.

We will also re-double efforts to communicate with and involve the external science

community in oil spill science, to the extent we can.

ECOSYSTEM SERVICES STUDY

NOAA is under discussions with the National Academy of Sciences (NAS) regarding an

NAS study of the long-term ecosystem service impacts of the BP Deepwater Horizon oil

spill. Such a study would assess long-term costs to the public of lost water filtration,

hunting, and fishing (commercial and recreational), and other ecosystem services

associated with the Gulf of Mexico. Calculation of lost services in the Gulf will help

inform the recovery goals and monitoring strategies likely to be developed.

LONG-TERM MONITORING PLANS

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As NOAA transitions from response through the NRDA process to long-term restoration

of the Gulf, it will be critical to monitor our restoration progress and adapt as necessary.

NOAA, along with its agency and academic partners, has initiated a process to identify

longer-term scientific needs so that recovery actions can be informed by the most

comprehensive science possible.

INTERNATIONAL COOPERATION

There has been keen interest among the other regional international partners, as well as

from other countries that support deep water drilling programs. NOAA and other

agencies including the Department of State have engaged countries in the Gulf of Mexico

region, particularly Mexico, the Bahamas, and Cuba. NOAA participated in meetings

organized by the State Department with the Bahamian government, the Mexican

government, and the Cuban Interest Section. All meetings have led to ongoing

discussions and interest in more formal collaborations

In July, NOAA deployed the research vessel Nancy Foster on a two-week assessment

mission in the eastern Gulf of Mexico and the Florida Straits to collect data critical to

understanding the Loop Current system and its effect on the plume of the BP Deepwater

Horizon oil spill. This mission was coordinated with Cuba and Mexico.

111Page
In addition, a Bahamian scientist spent four weeks at a NOAA laboratory, supported by

the Department of Defense’s NORTHCOM (Northern Command). It was a very

successful visit, and an example of the benefits of collaboration among agencies within

the U.S. and internationally.

CONCLUSION

Responding to the oil spill has necessitated an agile, robust and coordinated approach

emphasizing inter-line office (within NOAA), inter-agency and broader government-

academic/private partnerships. Coordinating the massive use of ships, satellites,

laboratories, aircraft and personnel has required logistics on a scale rarely seen outside of

war time. No one agency has had enough capacity to fulfill all the requirements

necessitated by the response, and ad hoc mechanisms set up to coordinate among

agencies have been extremely successful, resulting in more focused response efforts.

NOAA’s science efforts are not winding down with the killing of the well, they are,

rather transitioning into other stages of the assessment and recovery. The NRDA and

long-term impacts assessment and monitoring activities will require substantial

allocations of resources and personnel to adequately meet NOAA’s trustee

responsibilities with respect to the affected resources. The academic and private research

communities have been and continue to make significant contributions. Results of

~.:~ I P age
listening sessions and discussions among government, academic and private researchers

have emphasized the importance of ongoing coordination of plans to take advantage of

resources being deployed in the Gulf, and the expertise existing in all of these domains.

We intend to continue these collaborations and there are ongoing and active discussions

about how to best structure such collaborations.

Last, I want to acknowledge the enormous contributions that have been made by

scientists in the various agencies, in universities and research institutes. Our

understanding of the oil and dispersant fate and effects has increased greatly from the

initial days of the spill, and the information, papers and studies completed, ongoing and

yet to be deployed will significantly propel the science of oil spills forward as we search

for ways to be better prepared for such disasters and in fact to decrease the probability of

such events in the future.

Thank you.

131Page
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 National Commission on the
BP DEEPWATER HORIZON OIL SPILL
AND OFFSHORE DRILLING

Attachment 24
Written Statement and Presentation of Dr. Bill Walker

Mississippi Department of Marine Resources

 A PARTNERSHIP RESPONSE TO THE

BP DEEPWATER HORIZON OIL SPILL EVENT

Testimony Presented to

The National Commission on the BP Deepwater Horizon

Oil Spill and Offshore Drilling

by

William W. Walker, Ph.D.

Executive Director
Mississippi Dept. of Marine Resources

September 28, 2010

Thank you Senator Graham and Dr. Reilly and commissioners for
inviting me to present testimony today. Dr. Reilly, it’s good to see you
again and thank you for visiting Mississippi in July to visit with our
fishermen, processors, and retailers.

When the BP Deepwater Horizon oil rib exploded on April 20, 2010
roughly 100 miles south and east of Mississippi’s shoreline, Governor
Haley Barbour went to work to create a partnership to develop a plan
to first respond to the event and to protect Mississippi from the
approaching oil and then to recover from any adverse effects and
restore those damages. Partners in this effort included the MS Dept. of
Environmental Quality {MDEQ), the MS Dept. of Marine Resources
{MDMR), MS Department of Health {MDH), MS Emergency
Management Agency (MEMA), MS National Guard (MNG),National
Oceanic and Atmospheric Administration (NOAA), US Food and Drug
Administration (FDA), US Environmental Protection Agency (EPA), the
US Coast Guard, and BP, the responsible party.

That plan called for our team to fight the oil spill as far away from
Mississippi’s shoreline as possible. Heroic efforts at the spill site to
collect, skim, and burn the leaking oil, together with using dispersants
to make the crude oil more available to microbial metabolism,
succeeded in keeping as much as 75 percent of crude and degraded oil
from ever reaching Mississippi. As oil materials finally did approach our
barrier islands some 30 days following the April 20 explosion, additional
efforts to skim, corral, and collect the oil further reduced impacts to our
shoreline.

Together we conducted many aerial inspections and collected and

analyzed many water, tissue, and sediment samples. These activities
did eventually result in precautionary closing of nearly all Mississippi
waters to harvesting fish, crabs, shrimp, and oysters. While chemical
analyses of tissues from these species failed to detect levels of concern
of any oil related organics, we voluntarily closed our waters according
to closing protocols agreed to by all affected states and federal
agencies.

As the threat from oil began to diminish, we began reopening our

waters, again in accordance with a comprehensive reopening protocol
to which all states and federal agencies agreed. This protocol required
that:

1. The area to be opened must be free of visible oil.

:2. There must be no threat to the area from approaching oil.
3. Extensive samples must be collected for each species to be
harvested.
4. These samples must pass sensory evaluation and extensive
analytical examination for all chemical components of the crude
oil.

Only after passing all requirements of this rigorous reopening protocol

could our waters be reopened. For the reopening process and for our
routine sampling program, 73 shrimp samples, 49 crab samples, 85
finfish samples, and 40 oyster samples were collected and sent to
NOAA and ultimately FDA for analysis. Samples were analyzed for
naphthalene, fluorine, anthracene, phenanthrene, pyrene,
fluoranthene, chrysene, benzo(k)fluoranthene, benzo(b)anthracene,
indeno(1,2,3-cd)pyrene, dibenz(a,h)anthracene, and benzo(a)pyrene.
Of the 252 Mississippi samples provided, 181 of those samples have
been processed, and I’m very proud to say that all tissue samples
analyzed as part of the reopening requirements or collected at any
other time tested negative for the above analytes or showed trace
levels far, far below the levels of concern established by federal
regulations. In other words, based on credible scientific data collected
using federally-approved sampling and analytical techniques,
Mississippi seafood has been safe and healthy to eat throughout the
entirety of this event. To ensure its continued safety, Mississippi will
continue to sample and analyze fish, shrimp, crab, and oyster tissues at
monthly intervals for the foreseeable future. As has been the case for
all sampling activities to date, we will continue to engage NOAA and
FDA and utilize protocols and sampling designs acceptable to those
agencies.

Mississippi a!so coordinated with Unified Command in Mobile, NOAA,

and FDA to develop and implement a sampling regime to look for
submerged oil within 15 miles of the coastlines of MS and AL. This
survey divided the entire area into grids (159 for MS waters). In each
grid section, white sorbent pads were lowered to near the bottom and
retrieved. If any of the retrieved pads showed suspicious discolored
areas or other evidence of oil, water samples were collected
throughout the water column and sediment samples were taken.
Results of this survey showed one water sample collected due to the
presence of sheen on the water tested positive for Diesel fuel. All other
water samples tested non-detect on oil related organics. None of the
sediments collected were determined to contain oil by Fourier
Transform Infrared Spectroscopy (FTIR).

So, where are we now? No new oil is entering the Gulf of Mexico from
this event. Certainly, there are isolated patches in hardest hit LA
marshes, and there are credible reports that submerged oil product
may remain in the vicinity of the spill site. Scientists from Mississippi
and elsewhere are and will continue to study this area of the Gulf to
determine exactly what if anything is there and, if oil material is present
there, what actions to take. Weathered tar balls continue to impact
our barrier islands and our coastline, and we can expect that to
continue for many months. Clean-up activities on our islands and
shoreline beaches continue and will continue until the tar balls stop.
Short-term effects from this event in Mississippi, while serious, have
been minimal. We are moving from response to recovery and
restoration, and BP has pledged 5500 million for academic research to
quantify long-term effects and to monitor ecosystem recovery and the
condition of populations of marine species. The resulting data will, in
part, inform the Natural Resource Damage Assessment (NRDA), which
will determine appropriate compensation levels for damages from this
event.

So, the good news is that, based on credible scientific information,

seafood from Mississippi and the Gulf in general, is safe to eat. In
Mississippi and likely throughout the Gulf, populations of finfish,
shrimp, and crabs are plentiful and healthy. Oysters in Mississippi have
suffered above-normal mortalities, we think primarily due to extended
periods of very hot (>90 degrees Fahrenheit) water and depressed
dissolved oxygen levels. We have no scientific evidence to support
oyster mortalities due to the presence of oil materials.

Unfortunately, with absolutely no credible science to support them, a

small but vocal group of commercial fishermen continue to say that oil
remains in Mississippi waters, that these waters are not safe for
recreational purposes, and that seafood harvested from these waters is
not safe to eat. While some of these protesters are actually shrimping
commercially and catching nice, healthy shrimp and selling them to
Mississippi processors or directly to consumers, they continue to
declare their own product unsafe.

Such statements are irresponsible, untrue, and unsupported by credible

scientific data. Unfortunately and in large part due to the actions of
these few individuals and the press that continues to broadcast this
inaccurate information, there is a perception in areas of our nation
away from the Gulf that Gulf seafood may not be safe to eat. As a
result of that perception, our seafood processors cannot sell to the
buyers in Chicago, New York, Boston, and elsewhere that have
historically regarded Mississippi and Gulf seafood as a safe, high quality
product. Clearly, all citizens of this great nation have the right to speak
freely. I only ask that they base their statements on credible scientific
information, which they certainly have not done to date.

The message that I would like to leave with you today is that the TEAM
effort following this event has been a huge success, the best success
story you’ll never see on CNN.

Thankyou.
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 National Commission on the
BP DEEPWATER HORIZON OIL SPILL
AND OFFSHORE DRILLING

Attachment 25
Written Statement of Timothy Fitzgerald

Marine Scientist, Oceans Program, Environmental Defense Fund

September 28, 20:~0,
National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, 3rd Meeting
Testimony of Tim Fitzgerald, Senior Policy Specialist, Oceans Program, Environmental Defense Fund

Good afternoon. First, I’d like to thank the Commission for the opportunity to testify today on this
critically important topic. I’m a Senior Policy Specialist in the Oceans Program of Environmental
Defense Fund (EDF), with a scientific background in marine ecology and physiology. For the last seven
years I’ve worked specifically on issues of seafood sustainability and health for EDF, and I was asked to
testify today about the public perception of Gulf seafood safety and the work that we’ve begun with
fishermen to address ongoing consumer concerns. For background, EDF is a leading national nonprofit
organization representing more than 700,000 members that links science, economics and law to create
innovative, equitable and cost-effective solutions to society’s most urgent environmental problems.

As you may already know, the seafood market is inherently confusing for consumers. Most people
have very little connection to, or understanding of, the fish they buy. More than 80% of fish that
Americans eat is imported, coming from nearly every country on Earth and caught or farmed under
dozens of different regulatory schemes and environmental conditions. Given this complexity, there are
numerous opinions - often conflicting - over what seafood is "good" or "bad". Regardless, opinion
polls, focus groups, and other studies have consistently shown that quality and safety are two top
concerns for consumers.

This might explain, at least partially, why seafood safety has remained such a prominent issue in the
wake of the BP oil disaster. The 87-day event resulted in the release of almost 200 million gallons of
crude oil into the Gulf ecosystem, and the use of almost 2 million gallons of CorexitTM dispersants to
mitigate the damage. Despite the re-opening of state and federal waters to fishing, these are figures
seafood consumers are not likely to soon forget.

Based on federal and state testing, the public has been repeatedly reassured that Gulf seafood is safe
to eat. However sales remain depressed in the region and around the country, and some fishermen are
hesitant to return to work given poor markets and concerns over lingering toxins in the water. An
August 17th Associated Press poll showed that one month after the well was capped, more than half of
survey respondents still lacked confidence in the safety of seafood from Gulf areas affected by the oil
disaster. And as you have likely seen, we continue to see coverage in regional and national media that
consumer skepticism remains high.

For Gulf fishermen and other members of the seafood industry, this lack of consumer confidence can
be devastating. They not only face the pain of immediate financial losses, but must also struggle with
the uncertainty of trying to regain the business they once had. That’s why EDF is working closely with
an association of snapper and grouper fishermen called the Gulf of Mexico Reef Fish Shareholders’
Alliance to help them preserve their markets in the face of this disaster.

These fishermen have faced many challenges already. Years of overfishing and ineffective fishery
management had brought the fishery to the brink of collapse. At its low point, their fishing season had
shrunk to only 54 days, and regulations forced them to throw back dead much of the fish they caught.
But by working together and with federal regulators, these fishermen led the charge in transitioning
their fishery to an innovative management program called "catch shares". Catch shares soon allowed
the fishermen to fish year round while fish populations recovered - bringing better prices to fishermen
and more economic stability to fishing ports.

Low consumer confidence in Gulf seafood post oil-disaster threatens to undermine the progress to
date made by these fishermen and others like them. Therefore our partnership seeks to do everything
possible to ensure that the market supports them through the following four-part campaign:

¯ Continuing to strive for a more sustainable fishery with fewer ecological impacts;
¯ Development of a third-party seafood testing program that supplements that of NOAA and
FDA;
¯ Implementation of a rigorous chain-of-custody to track fish throughout the supply chain;
¯ An aggressive public relations and marketing effort to highlight these efforts.

This approach can serve as a model as the Commission considers how federal and state agencies can
restore confidence in Gulf of Mexico seafood. In closing, I will highlight a few key challenges and
corresponding recommendations that can help this campaign and similar efforts to achieve success:

Empower fishermen to conduct more targeted testing of their catch. The government alone can’t
solve this problem for the fishermen, nor are fishermen looking to them to do so. But what the
government can do is work in partnership with fishermen to work towards their own solution.
Making the financial and technical resources available to do this would go a long way towards
complimenting existing traceability and marketing efforts;

Articulate and make public the details of a long-term testing plan. Seafood consumers and buyers
not only need to better understand what has been done and why it is sufficient, but they also need
reassurances and specifics about how the government is in this for the long haul. Government
testing is currently focused on toxic polycyclic aromatic hydrocarbons (PAHs), and to a lesser
extent, dispersants. But there are other contaminants - such as heavy metals like arsenic,
cadmium, or mercury - along with the potential for re-contamination from unfound sources oil,
that may become a health risk further down the road, which we believe warrant formal evaluation;

Provide updated information to the public about dispersants in seafood. This issue remains high on
consumers’ lists of concerns, despite continued assurances from FDA that they pose no health risks.
However NOAA has recently developed a chemical test to detect them in seafood, so the agencies
should provide clear guidance about their latest findings, and offer recommendations for future
government and independent testing;

Make a concerted effort to reach out to consumers to understand what is needed to regain their
confidence in Gulf seafood. Bombarding consumers with marketing and dismissing their concerns
only exacerbates the current situation. NOAA’s recent series of ’dockside chats’ provides a good
example and could be expanded to educate local stakeholders on the issue of seafood safety;

Thank you very much for your time, and I am happy to answer any questions that the Commissioners
might have.
National Commission on the
BP DEEPWATER HORIZON OIL SPILL
AND OFFSHORE DRILLING

Attachment 26
Written Statement of Richard Stewart

Professor of Law, New York University

 The Oil Spill Commission
Statement of Richard B. Stewart
New York University School of Law
September 28, 2010

This statement provides an overview of the potential criminal and civil claims that the federal
government and state and tribal natural resource trustees may assert against BP and other
potential responsible parties for the Gulf oil spill. Drawing on my experience as Assistant
Attorney General for Environment and Natural Resources with the prosecution and settlement of
such claims against Exxon for the Exxon Valdez spill, I discuss some of the strategic issues that
the government parties and the defendants face in dealing with such claims, the incentives for
and potential structure of a global settlement, the legal and institutional challenges that the
government parties face in assessing natural resource damages (NRD), and the need for an
integrated approach and management structure for restoring the Gulf resources injured by the
spill that is closely linked with other ongoing or future programs to protect and enhance those
same resources.

Other than claims for removal costs and NRD, this statement does not address criminal or civil
claims that states or tribes might assert or other claims for economic losses that governments,
tribes or private parties may assert. The assertion of some of these other claims could further
complicate the already difficult challenge of achieving a settlement of federal criminal and civil
claims and federal, state, and tribal NRD claims in a way that will accommodate the basic
interests of the various parties and advance restoration efforts without prolonged delay.

Potential Criminal and Civil Claims by the Federal Government and NRD Claims
by Federal, State, and Tribal Trustees.

The federal government can assert criminal claims, claims for civil penalties, and NRD claims
for injury to the natural resources of the Gulf and adjacent lands. The claims and the liabilities
that they impose are cumulative. State and tribal natural resource trustee agencies can also assert
NRD claims, which in many cases will concern the same natural resources as the federal NRD
claims and overlap with them.

A. Criminal Violations

Depending on the facts, the Department of Justice could assert a variety of criminal violations
against corporate and individual defendants. 1 These include the following:

Clean Water Act. 33 USC 1321(b)(3), prohibits the discharge of oil.., in connection with
activities under the Outer Continental Shelf Lands Act... which may affect natural resources
belonging to... the United States... in such quantities as may be harmful.., except.., where
permitted." Negligent violations can be prosecuted under 33 USC 1319(c)(1); persons convicted
are subject to a fine of $25,000 per day or 1 year imprisonment or both. Knowing violations are

Corporate defendants would not be subject to the imprisonment provisions of the criminal statutes discussed,
1
prosecutable under 33 USC 1319(c)(2); persons convicted are subject to a fine of $50,O00/day or
three years imprisonment or both. Under 33 USC 1319(c)(3), a defendant who "knows at [the
time of a violation] that he thereby places another person in imminent danger of death or serious
bodily injury..." is subject to a fine of $250,000 or 15 years imprisonment or both.2

Migratory Bird Treaty Act. 16 USC 703(a) makes it "unlawful at any time, by any means or in
any manner, to... take [or]... kill.., any migratory bird, any part, nest, or egg of any such
bird..." This is a strict liability misdemeanor offense. The government need only show that the
defendant committed an act that killed a migratory bird or its eggs. No negligence, knowledge, or
purpose to kill a bird must be shown. Under 16 USC 707(a), persons convicted are subject to a
fine of not more than $15,000, imprisonment for not more than six months, or both.

Rivers & Harbors Act. 33 USC 407 prohibits the discharge without a permit from the Corps of
Engineers "from or out of any ship, barge.., or from the shore, wharf manufacturing
establishment or mill of any kind.., any refuse matter of any kind or description." There may be
some question whether an oil drilling rig fails within the statute, but the discharge of
commercially valuable oil does. A mobile, semi-submersible offshore drilling unit such as the
Deepwater Horizon would most likely be regarded as a "ship" for purposes of this provision.
This is again a strict liability offense. 33 USC 411 provides that a person convicted is "guilty of a
misdemeanor and subject to a fine of up to $ 25,000 per day and imprisonment for not less than
thirty days nor more than one year, or by both such fine and imprisonment..."

Endangered Species Act. 16 USC 1538(a)(1) and 50 CFR Part 17 make it unlawful to
knowingly "take" any species listed by the federal government as endangered or threatened
without a permit; "take" includes killing or otherwise harming a member of such a species. 16
USC 1540(b)(2) subjects a person convicted to fines of up to $50,000 and imprisonment for up
to one year.

Alternative Fines Act. 18 USC 3571 provides for enhancements of fines otherwise provided for
by specific statutes such as those described above. Subsection (a) provides for fines, in the case
of a felony, of not more than $250,000; for a misdemeanor resulting in death, of not more than
$250,000; and for a Class A misdemeanor that does not result in death, of not more than
$100,000. Of greatest significance for the BP spill, subsection (d) provides:

"If any person derives pecuniary gain from the offense, or if the offense results in
pecuniary loss to a person other than the defendant, the defendant may be fined
not more than the greater of twice the gross gain or twice the gross loss, unless
imposition of a fine under this subsection would unduly complicate or prolong the
sentencing process."

z Further, under 33 USC 1319(c)(4), a person knowingly making a false statement in connection with a violation is
subject to a fine of $10,000 or two years imprisonment or both. Other provisions of federal law also provide for
criminal penalties for violations of record keeping, reporting, and other requirements, as well as making false
statements to federal officials.
The background of this provision’s enactment indicates it was aimed at financial fraud,
manipulation, and similar crimes. There is a question, that has not been litigated and squarely
resolved by the courts, whether this provision applies to environmental violations, and whether
"pecuniary loss" would, in the context of this statute, include removal and restoration costs and
economic losses stemming from damage to natural resources. The provision was, however,
invoked by the federal government in the Exxon Valdez settlement and was invoked as a basis
for a settlement of environmental violations against BP arising out of the explosion at its Texas
City refinery) ff the provision were held applicable, if removal, restoration, and other economic
costs and losses stemming from injury to natural resources caused by the oil spill represent
"pecuniary loss" within the statute, and if a court were to conclude that applying the provision
would not "unduly complicate or prolong the sentencing process," the amount of fines imposed
could increase dramatically.

B. Civil Penalties

Clean Water Act. Under 33 USC 1321(b)(7)(A), persons who discharge oil in violation of the
Act are subject to a civil penalty of $25,000 per day or $1,100 per barrel; this is a strict liability
provision. For violations resulting from "gross negligence or willful misconduct" a violator is
subject to a civil penalty of not less than $100,000 per day of the violation and not more than
$4,300 per barrel of oil. Prior to the 1991 amendment of this provision passed after the Exxon
Valdez spill, it provided only for fines calculated on a per-day basis. The per-barrel penalties
reflect adjustments for inflation as provided by later statute. Administrative penalties are also
available under 33 USC 1321(b)(6), however such these are capped at $125,000 and are
therefore unlikely to play a role in this matter. Given the magnitude of the BP spill, the civil
penalties are potentially very large..4

EPA authorizes civil judicial and administrative enforcement settlements under the laws that it
administers, including the Clean Water Act, to include Supplemental Environmental Projects
(SEPs), which must be approved by EPA with review by the Justice Department. SEPs are
restoration projects conducted by the violator designed to improve resources affected by the
environmental violation or that otherwise have an appropriate nexus to the violation. Civil
penalties otherwise payable may be remitted in part by EPA in consideration of violators’
funding of SEPs.

3
In United States v. BP Products North America, Inc., a case arising from a deadly explosion at a BP refinery in
Texas City, Texas BP pied guilty to a felony violation of the Clean Air Act. 610 F.Supp.2d 655 (S.D. Tex. 2009).
The court approved the $50 million plea agreement expressly on the basis of the Alternative Fines Act. The
complexity of calculating the aggregate gross loss to the victims of the Texas refinery explosion persuaded the court
to base the fine on BP’s gain in savings consequent to the violation. Id. at 707. The Ninth Circuit, in evaluating the
appropriateness of the jury award from the civil litigation of the Exxon Valdez spill, relied upon the defendant’s
potential liability under the Alternative Fines Act as a reference point. In re Exxon Valdez, 270 F.3d 1215, 1245 (9th
Cir. 2001). When the Supreme Court ultimately vacated this jury award, it was silent on this use of the Alternative
Fines Act. United States v. Baker, 128 S. Ct. 2605 (2009).
4 In addition to seeking civil penalties for a violation of 33 USC 1321(b)(3), the Federal government could assert a
another Clean Water Act violation under 33 USC 1311 (a): "Except in compliance with this section.., the discharge
of any pollutant.., shall be unlawful." 33 USC 1319(d) allows the government to claim civil penalties of $25,000
per day of the violation. See generally United States v. Colonial Pipeline Co., 242 F. Supp. 2d 1365, 1379-72 (N.D.
Ga. 2002) (allowing assessment of penalties resulting from an oil spill to proceed under both § 1319 and § 1321).
EPA has developed requirements about when and what kinds of SEPs can be utilized to offset
civil penalty settlement payments. EPA has determined that the required nexus between SEP and
violation may be established by satisfying one three criteria:

"a) the project is designed to reduce the likelihood that similar violations is
satisfied will occur in the future; or

b) the project reduces the adverse impact to public health or the environment to
which the violation at issue contributes; or

c) the project reduces the overall risk to public health or the environment
potentially affected by the violation at issue.5’’

Another requirement is that the proposed SEP not augment or supplement the appropriations of
the EPA or any other federal agency. SEPs must be independent of activities for which the EPA
has received appropriated funds or is required by law to perform. Examples of past SEPs
resulting from oil spill violations under the Clean Water Act include the donation of spill
response equipment to local emergency response crews and the purchase and permanent
6
protection of resources in the affected area.

Endangered Species Act. 16 USC 1538(a)(1) and 50 CFR Part 17 make it unlawful to
knowingly "take" any species listed by the federal government as endangered or threatened
without a permit. "Take" includes killing or harming any member of such a species. 16 USC
1540(a)(1) authorizes a penalty of up to $25,000 for each violation.

C. Removal Costs and Natural Resource Damages

The Oil Pollution Act (OPA), 33 USC 2702(a), imposes strict liability on "each responsible
party" for removal costs and damages, including NRD, resulting from discharges of oil from a
"vessel." 33 USC 2701(18) defines "vessel" to include a "mobile offshore drilling unit" such as
the Deepwater Horizon. 33 USC 2701(32) defines a "responsible party" as "any person owning,
operating, or demise chartering" such a vessel. BP would be liable, having demise chartered the
Deepwater Horizon. Transocean would also be liable since it owned and operated the Deepwater
Horizon with the assistance of personnel from BP, Anadarko, Halliburton, and M-I Swarco, who
might, depending on the facts, thereby be liable as "operators."

"Removal costs" are defined under 33 USC 2702(b)(1) as any costs incurred by the United
States, a State, or an Indian tribe consistent with the National Contingency Plan, the Clean Water
Act, or the Intervention on the High Seas Act. "Removal costs" are defined under the Clean
Water Act, 33 US C 1321 (a) (25), as "the costs of removal of oil or a hazardous substance that are
incurred after it is discharged..." 33 USC 1321 (a)(8) further defines "removal" as "containment
and removal of the oil or hazardous substances from the water and shorelines or the taking of
such other actions as may be necessary to prevent, minimize, or mitigate damage to the public

See Walker B. Smith, Importance of the Nexus Requirement in the Supplemental Environmental Projects Policy,
EPA Memorandum, Oct. 31, 2002, available at
http://www.epa.gov/compliance/resources/policies/civil/seps/sepnexus-mem.pdf.
EPA maintains an online database of past SEPs at http://www.epa-echo.gov/echo/compliance_report_sep.html.
4
health or welfare, including, but not limited to, fish, shellfish, wildlife, and public and private
property, shorelines and beaches..."

"Damages" are defined under 33 USC 2702(b)(2) to include NRD; damages for injury to or
economic losses resulting from destruction of real or personal property; loss of subsistence use of
natural resources; loss of government taxes, royalties, rents, fees, or net profit shares due to
injury to real or personal property or natural resources; lost profits and earning capacity resulting
from the same, by any claimant; and the net costs of providing increased or additional public
services as a result of a discharge.

Damages Liability Cap: Under OPA, the amount of liability for discharges from offshore
facilities is capped at "the total of all removal costs plus $75,000,000." 33 USC 2704(a)(3). For
the purposes of calculating the amount of liability, mobile offshore drilling units like the
Deepwater Horizon are treated as offshore facilities. 33 USC 2704(b)(2). The cap does not apply
if the discharge was "proximately caused by gross negligence or willful misconduct, or the
violation of an applicable Federal safety, construction, or operating regulation..." 33 USC
2704(c)(1).

D. Natural Resource Damages

33 U.S.C. 2706(a) provides that the liability by a responsible party for NRD shall be to the
federal government for natural resources belonging to, controlled by, or appertaining to the
United States; to states for resources belonging to etc. a state or political subdivision thereof, and
to Indian tribes for resources belonging to etc. them. Under 33 USC 2706(b), the federal and
state governments designate trustees to present a claim for and to recover NRD. The President,
by Executive Order and through the National Contingency Plan at 40 CFR 300.600, designated
the following as among the trustees under OPA: the Secretary of Defense, the Secretary of the
Interior, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Energy, and
"[f]or natural resources.., not otherwise described.., the head of the federal agency or
agencies authorized to manage or control those resources." OPA and the Executive Order leave
entirely open what resources different trustees can claim for. In the context of the far-reaching
BP spill, involving multiple states each with different resource management agencies and
perhaps also tribes, the various federal, state, and any tribal NRD claims will all overlap to a
considerable degree. Beyond precluding double recovery under 33 USC 2706(d)(3), OPA
provides no mechanism for coordinating or directing the claims and NRD-related activities of
different trustees.

The trustees assess NRD and "develop and implement a plan for the restoration, rehabilitation,
replacement, or acquisition of the equivalent, of the natural resources under their trusteeship." 33
USC 2706(c). NRD are measured according to the "cost of restoring, rehabilitating, replacing, or
acquiring the equivalent of, the damaged natural resources;" the "diminution in value of those
natural resources pending restoration;" and the "reasonable cost of assessing those damages." 33
USC 2706(d).

NRD recoveries must be spent exclusively to restore injured natural resources and for related
activities. The trustees must retain NRD recoveries in a "revolving trust account, without further

5
appropriation, for use only to reimburse or pay costs incurred by the trustee.., with respect to
the damaged natural resources." 33 USC 2706(f). This arrangement was designed to ensure that
NRD recoveries go to restore the injured resources. The provision authorizing trustee
expenditures without further appropriation is a notable exception to the general requirements,
under the Miscellaneous Receipts Act and Anti-Deficiency Act, that any recoveries on behalf of
the United States must be deposited in the Treasury and may not be expended except pursuant to
appropriation as well as authorization by Congress. The availability of significant funds outside
of the normal appropriations process could have a major impact on the operations of trustee
agencies, including the Army Corps of Engineers, which is under the authority of the Secretary
of Defense, a designated OPA trustee, and has long played a prominent in the Mississippi Delta
and Gulf region.

II. Exxon Valdez Settlement

The October 1991 settlement between the United States, Alaska, Exxon Corp., and Exxon
Shipping, a wholly owned subsidiary of Exxon and owner and operator of the Exxon Valdez,
settled all civil and criminal claims (including federal claims for civil penalties) and was
approved by the federal district court in Anchorage in the form of a plea agreement (federal
criminal charges) and a consent decree (civil claims)]

A. Criminal Plea Agreement

Exxon pled guilty to violations of the Clean Water Act, the Refuse Act, and the Migratory Bird
Treaty Act.8 A $150 million fine was assessed against Exxon; $125 million was forgiven in
recognition of Exxon’s cooperation in cleaning up the spill and paying certain private claims. Of
the remaining $25 million, $12 million went to the North American Wetlands Conservation
Fund; the North American Wetlands Conservation Act authorizes criminal penalties under the
Migratory Bird Treaty Act to be paid into the Fund. 16 USC 4406(b).

The pleas agreement also provided $100 million in criminal restitution to be divided evenly
between the federal and state governments. The federal government’s $50 million went into the
Natural Resource Damage Assessment and Restoration Fund. Alaska’s $50 million was
appropriated by the state legislature for a variety of conservation projects including a recreation
and marine mammal rehabilitation center and habitat acquisitions.

B. Civil Settlement

The consent decree settling the federal and state civil claims provided for a total of $900 million
in annual payments over 10 years. The monies have been disbursed as follows: $216 million in
reimbursements for cleanup and damage assessments to the US and Exxon; $178 million for
research, monitoring, and general restoration; $375 million for habitat acquisition; $45 million
for program development and implementation; $177 million remained in a joint federal-state

7 1 had left the office some months before the final settlement was reached and judicially approved, but the basic
contours were determined while I was still there.
8 Exxon Shipping pled to all three violations; Exxon Corp. to one.
NRD trust fund account as of September 2008.9 The civil settlement also included a "reopener
window" that could be utilized at a later date to seek up to an additional $100 million to address
unforeseen impacts from the spill. The United States and the State of Alaska exercised this
option in 2006, filing a claim seeking $92 million to remove subsurface oil residues on
shorelines. The claim is still pending and has not been resolved.

IlL Issues and Challenges in Assessing NRD

The purpose of NRD assessment is to determine the character and extent of interim and ongoing
injury pending and after completion of recovery. NRD recoveries are to be spent to achieve
restoration of the injured resources to the condition that they would have been absent releases, to
compensate the public for interim resource losses, and also for scientific studies, restoration
planning, legal expenses, and other expenses incurred by trustees and government in connection
with NRD assessment, recovery, and restoration activities.

The conceptual basis for restoration is further elaborated in the NRD assessment regulations
issued by NOAA under OPA. While compliance with these regulations is optional with trustees,
under 33 U.S.C 2706 (c)(2), trustees that conduct NRD assessments pursuant to the regulations
enjoy a rebuttable presumption in favor of their assessment in litigation against responsible
parties; accordingly trustees generally follow the regulations. The NOAA regulations, 15 CFR
990.30, define "baseline" as "the condition of the natural resources and services that would have
existed had the incident not occurred." The purpose of NRD assessment is to "evaluate the nature
and extent of injuries resulting from an incident, and determine the restoration actions needed to
bring injured natural resources and services back to baseline and make the environment and
public whole for interim losses." Restoration consists of actions to restore, rehabilitate, replace,
or acquire the equivalent of injured natural resources and services. It includes "primary
restoration," which is any action, including natural recovery, that returns injured natural
resources and services to baseline; and "compensatory restoration," which is any action taken to
compensate for interim losses of natural resources and services that occur from the date of the
incident until recovery.

The theory is that trustees can determine a baseline and correlatively, the character and extent of
injuries caused by discharges; that restoration measures can be selected and implemented to
restore, sooner or later, injured resources to their baseline condition; that interim resource losses
to the public pending full recovery can be determined; and that resource measures can be devised
and implemented to provide additional resource benefits to the public as in kind compensation
for interim losses. Actually applying these concepts and identifying baseline conditions (which
require good pre-existing data), discharge effects, resource injuries, measures that will
successfully restore resources to baseline, interim losses to the public, and additional resource
measures to compensate for them therefore is an immensely challenging and difficult task in the
case of a major spill such as Exxon Valdez, or the much bigger and geographically much more
extensive BP spill. The difficulties include determining baselines; determining the extent of
injury to dynamic biological populations; accounting for long term low level but potentially quite
important effects; accounting for the effects of removal actions, including use of dispersants,

9 See Exxon Valdez Oil Spill Trustee Council, 2009 Status Report. Available at
http://www.ev~stc.state.ak.us/Universa~/D~cuments/Pub~icati~ns~Annua~Status~2~~9Annua~Rep~rt.pdf.
which defendants may claim have enhanced rather than reduced injuries; and the feasibility of
devising and successfully implementing restoration measures that will restore the wide range of
resources exposed to oil in a vast marine environment. While localized, acute effects can be
determined and perhaps remedied, more diffuse, complex, and long lasting effects pose far
greater difficulties, as attested by the reports of the Exxon Valdez Spill Trustee Council. 10

Determining interim losses to the public from injured resources pending full restoration
(assuming that goal can actually be achieved) present additional challenges. The basic approach
is to use economic valuation methodologies to put a dollar price tag on such losses and spend the
equivalent on enhanced resource services to the affected public (e.g. additional protected wildlife
habitat that will benefit those who fish, hunt, observe, or otherwise value wildlife). Fairly good
valuation methodologies exist for lost resource services - for example, the losses that
recreational fishers suffer if favored fishing grounds are closed or degraded. But the NRD
conception also includes interim "non-use" losses - the loss in economic welfare suffered by
member who places an economic value on the existence of undamaged nature for its own sake.
The basic methodology for measuring such losses in dollars consists of contingent valuation
methodology (CVM) surveys of a sample of individual members of the public to elicit their
willingness to pay to protect a resource similar to that injured, apart from any use that they might
make of it. The design of CVM studies (including identification of the relevant public and the
flaming of the questions, whether respondents are asked to value a range of other resources at the
same time, etc.) is controversial, and critics have attacked the validity of the entire enterprise,
pointing out that survey respondents do not have to back up their stated valuations with actual
money payments. In the context of the BP spill, it would be very difficult to devise a study that
was not influenced and probably biased by the immense and highly adverse publicity generated.
There is also an unresolved question whether a court would, consistent with the Federal Rules of
Evidence, allow CVM study results to be presented to a jury.ll Potential NRD liabilities for non-
use values determined through CVM are thus highly uncertain but potentially immense, an
important factor driving a global settlement in the Exxon Valdez case.

IV. Global Settlement of Governmental Claims for the BP Spill and Integrated
Restoration and Enhancement of the Gulf Ecosystems

It would be in the long mn interests of the federal, state, and any tribal parties and of the
defendants to achieve a global settlement in order to resolve risk and avoid potentially immense
litigation delay and expense. Most importantly, a global settlement could deliver restoration
resources to the Gulf more rapidly.

Given all the factual and legal complexities in determining and valuing injury to natural
resources, including interim lost use and non-use values, full litigation of the NRD claims in
Exxon Valdez or BP to final judgment, including massive discovery, endless motions, and
appeals, could well take 20 years or more. Defendants could use litigation delay to wear down
the plaintiffs and postpone the ultimate day of reckoning. A big factor in driving the Exxon

~0 See id.
11
See generally Richard B. Stewart, Natural Resource Damages: A Legal, Economic and Policy Analysis.
(1995) (Editor and principal author).
Valdez settlement was the federal criminal case. There is little or no discovery in criminal trials,
which proceed on a fast track. Defendants, especially major corporations, want to avoid the
publicity of a criminal trial, uncertainty in the amount of fines that could be levied in light of the
Alternative Fines Act, and the potential use by plaintiffs of a conviction following trial in private
civil claims including claims for punitive damages. Thus, defendants have strong incentives to
settle criminal charges, but in doing so they also want to resolve all government liabilities against
them, rather than settling one set of claims while remaining open to indefinite and highly
uncertain liability under the others, especially NRD claims. Governments also have incentives to
pursue a global settlement in the context of a criminal settlement in order to avoid long delays,
very high costs, and large uncertainties regarding recoveries in NRD claims.

Compared with the criminal case, the civil penalty claims in Exxon Valdez were not big enough
to drive the settlement. But they are certainly large enough in the case of the BP spill to help
drive settlement if they could be determined without significant factual and legal controversy and
delay. Government assertion of penalties for negligent discharge and possible defenses based on
partial government responsibility for the size of the spill could, however, complicate and delay
the resolution of civil penalties claims and thereby reduce their efficacy as a settlement driver. 12

As regards the elements of a global settlement and the allocation of settlement monies: because
of tax deductibility, insurance, public relations, and other considerations, defendants have strong
incentives to maximize the amount paid and spent as NRD and minimize the amounts paid and
disposed of as fines or civil penalties. Trustee agencies also have strong incentives to maximize
the NRD portion of the total, because they can expend them without further appropriation and, in
the case of federal agencies, congressional control. Because of its concerns to ensure punishment
and deterrence, the Justice Department sought to ensure that a substantial portion of any
settlement in Exxon Valdez took the form of criminal fines and civil penalties, which ordinarily
must be paid into the Treasury. In the ultimate Exxon Valdez settlement, substantial fines as well
as criminal restitution were ordered, but most of the monies were allocated to cover removal and
restoration costs. The civil penalty claims were rolled into an umbrella civil settlement, all of
which was effectively allocated to restoration, removal, and related expenses.

The BP spill involves five states and the federal government, each with multiple NRD trustees,
plus possible tribal NRD claims. There will also be multiple defendants. Thus, resolving the
government claims in the BP spill will be far more complicated and difficult than in the Exxon
Valdez case, involving only two governments and one (effectively) defendant. A big challenge
for the government lawyers will be to maintain a united front in pursuing defendants and
resolving claims, reaching any global settlement, and spending the monies. A united approach is
essential because the resource claims of the various trustees will overlap. A united front is also
important from the viewpoint of the governments in order to prevent the defendants from
pursuing a divide and conquer strategy. Of course the defendants face similar challenges.

121 am skeptical about the use of a reopener clause like that in Exxon Valdez, especially in the context of the BP
spill, where the resources affected by the spill have been subjected to many other stresses. It is highly unlikely that
new evidence will be discovered in the future that will reveal types and magnitudes of injury to the resources that
can be unambiguously attributed to the spill. In exchange for a reopener, defendants will demand a reduction in
monies otherwise paid up front. I believe that the governments would be better advised to forgo the reopener to
negotiate more up-front restoration recoveries.

9
In the Exxon Valdez case, NRD plans were developed and monies spent by a Trustee Council
composed of three federal and three Alaska state trustees. Under the federal-state Memorandum
of Understanding establishing the Council, decisions must be unanimous. In the event of
persistent disagreement, the only remedy is to apply to federal court to resolve the matter. I am
very concerned that any such arrangement would not be workable or wise in the BP spill context,
with so many different trustee authorities. Even if a trustee council were established and could
manage to function under a decision rule of unanimity, there would be a real danger that the
many trustees would effectively divide up the recoveries for separate expenditure that would
only be loosely coordinated. One step towards a solution would be for the President to provide
by Executive Order for appointment of a supervisory or head federal "Super Trustee" to exercise
final review and decisional authority over federal decisions on restoration and NRD
expenditures, and strongly encourage the states to do likewise. The arrangement could provide
for joint federal-state appointment of a third Super Trustee to decide restoration priorities, plans
and expenditures, along with the other two. Alternatively, Congress could establish such an
arrangement by legislation.

It will also be important in the BP spill context to mesh NRD restoration plans, expenditures, and
activities with other ongoing or proposed efforts to restore and enhance the Gulf and coastal
ecosystems and natural resources, especially those linked with the Mississippi Delta. These
resources have suffered massive long-term degradation from navigation and flood control works,
dredge and fill projects, oil and gas development, residential and commercial development,
pollution runoff, and other activities. While it will be possible to identify some local or otherwise
targeted and acute damage to specific resources and target restoration activities on them, it will
in many cases as a practical matter be impossible to separate the effects of the spill from the
effects of other activities, past and continuing, that have and will continue to adversely affect the
Gulf. In such cases, it would be counterproductive and indeed futile to try to target all NRD
restoration efforts exclusively on seeking to undo the adverse effects of the spill on specified
resources, and nothing beyond that. A more systemic approach is required. The Exxon Valdez
settlement recognized this reality by providing that NRD recoveries could be spent to "enhance"
affected resources, thereby finessing the impossible task, in many cases, of determining resource
baselines and ensuring that restoration achieves a return to baseline condition - not more or less.
The difficulties in establishing a baseline and targeting restoration to achieve it are much greater
in the BP spill context because the resources affected - unlike those involved in the Exxon
Valdez spill, had already been subject to many other stresses. Any arrangement for restoration in
the context of the BP spill should aim to enhance a broad range of the services provided by the
various resources affected in some way by the spill. The law is flexible enough to permit this
approach, which would allow spill restoration activities to be closely coordinated or nested with
other similar programs, including those aimed at restoration and protection of the critical
Mississippi deltaic ecosystem. The President and/or Congress could provide a management
structure to ensure that NRD restoration proceeds hand in hand with activities under such other
programs, such as the LCA programs being undertaken pursuant to the 2007 Water Resource
Development Act.

Moreover, there are ways in which some portions of a global BP spill settlement could be
allocated directly for expenditure under such other programs. One means that could be

10
 National Commission on the
BP DEEPWATER HORIZON OIL SPILL
AND OFFSHORE DRILLING

Attachment 27
Written Statement and Presentation of James Tripp

Senior Counsel, Environmental Defense Fund

 The Oil Spill Commission
Statement of James T. B. Tripp,
Senior Counsel, Environmental Defense Fund
September 20, 2010

Members and staff of President Obama’s Oil Spill Commission, I

am deeply honored to have been asked to join one of your Gulf coastal
restoration panels. Whilel have worked on coastal wetland protection
projects in all five Gulf states during my 37-years at the Environmental
Defense Fund, my involvement has been most pronounced in the
Mississippi River delta ecosystem of coastal Louisiana.

Background history. The Mississippi River delta ecosystem is

one of the great deltas in the world and by far the most important
contiguous coastal wetland ecosystem in the United States (#1 and 2).
The loss of 2300 square miles of its 7000 square mile extent of a
century ago represents by far the most devastating coastal biological
loss for the entire country, including the northern Gulf, and is
continuing (#3-5). It is therefore altogether appropriate, indeed,
imperative, that this Commission address this acute national ecological
tragedy in considering responses to the Gulf oil spill. Iris my hope
that, out this Gulf oil spill disaster, will come some good:
¯ broad public support for restoration of coastal Louisiana on an
emergency basis,
¯ congressionally approved dedication of 80% of Clean Water civil
penalties to a Gulf restoration fund with a major portion
committed to coastal Louisiana restoration and establishment of
a per barrel oil restoration fee,
¯ utilization of Natural Resource Damage Assessment funds for this
purpose, and
¯ a Presidential executive order that sets aggressive restoration
timelines and sediment reintroduction goals for coastal Louisiana
restoration and, absent legislation, restructures the Breaux Act
task force as an effective, high-level, multi-agency framework to
carry out this critical mission and use these funds.

The primary man-made causes of the collapse of the IVlississippi

River delta ecosystem over the last century have been the
management of the Mississippi River that has historically served
national navigation and flood control missions as reflected in the
Mississippi River and Tributaries (IVlR&T) program of the 1928 Flood
Control and the impact of on-shore and OCS oil and gas infrastructure
and operations (Boesch, D. et al, Scientific Assessment of Coastal
Wetland Loss, Restoration and Management, Louisiana, Journal of
Coastal Research Special Issue No. 20, May 1994, pp. 36-41). The
MR&T program resulted in the construction of a vast system of
tributary dams that have reduced sediment supply, revetments, the
Old River Control Structure, the Atchafalaya Basin floodway with its
guide levees and IVlississippi River navigation and flood control levees
(#6). These levees in coastal Louisiana have deprived these coastal
wetlands of the very riverine sediments that for 7000 years built,
shaped and sustained the 7000-square mile delta ecosystem that
existed a century ago. Oil and gas activities contributing to wetland
loss have included pipeline canals, navigation channels to transport
equipment, disposal of wastes and withdrawal of shallow on-shore oil
and gas (#7 and 8).

My first contact with this remarkable delta ecosystem, the 7th

largest coastal delta in the world and by far the largest in North
America, dates back to early 1974 when we joined a law suit that
Terrebonne Parish had brought against the Corps of Engineers
challenging the adequacy of the EIS for the then proposed expansion
of the Atchafalaya River navigation channel and Bayous Chene Boeuf
and Black, a project designed to support the off-shore oil and gas
industry. Then, as now, major off-shore rig fabrication yards were
located in the vicinity of IVlorgan City and needed expanded navigation
channels as the demand of the burgeoning OCS industry for ever larger
pieces of equipment grew. After I received a call of assistance, what
caught my attention was the glib statement in the EIS that the dredged
materials were to be disposed of on 8000 acres of channel-adjoining
wetlands and that this discharge would have a "de minimis" impact on
this coastal ecosystem. As I sat in EDF’s then East Setauket, Long
Island farmhouse office, that statement dumbfounded me. Even if this
delta ecosystem then had 80 to 90% of its 7000 square miles of
marshes and swamp forests, 8000 acres was still substantial.

When I flew down to New Orleans in April 1974 for the first of two
federal court trials of this case, I met Terrebonne Parish’s coastal
geology expert, Sherwood Gagliano, PhD, who had just set up his
consulting firm Coastal Environments. He had also co-authored the
first paper providing quantitative estimates of coastal land loss at 16.5
square miles per year over the preceding forty-year period (Chatry,
Frederic M. and Sherwood IVl. Gagliano, Shaping & Re-shaping a Delta,
Water Spectrum Magazine, Fall 1970). That paper also astounded me.
How could the country be so ignorant of and not care to do something
about this extraordinary amount of man-made coastal land loss?
Subsequent studies by USGS and others showed that the rate of land
loss accelerated in the 1960’s-1980’s reaching 30 to 40 square miles
per year. I began to realize that very few Americans had any idea
what a delta ecosystem of a major continental river is or looks like. It
is just too vast. While citizens in the New York metropolitan area, for
example, can grasp what the annual loss of 45 acres of wetland islands
in Jamaica Bay looks like, they can’t get their arms around a loss 500
times that amount. In addition, while very distinctive culturally,
coastal Louisiana is far away, and the state and the nation were
addicted to exploitation of its massive coastal and OCS oil and gas
resources.

In 1980, three years after the Secretary of the Army adopted the
first comprehensive set of dredged and fill material disposal
regulations under Section 404 of the Clean Water Act (CWA), the State
of Louisiana adopted a coastal permitting program as part of its
Department of Commerce-approved Coastal Zone Management
Program (CZMA). While its implementation has been far from perfect,
this program has led to a significant contraction in the total amount of
canal Construction and disposal of related dredged material in
wetlands, and, insofar as the rate of wetland loss has been reduced in
the last 25 years, this program deserves a good part of the credit.

In November 1985, John Day, a noted PhD wetland ecologist at

LSU, asked me to speak at a coastal conference at LSU on the subject
of citizen action. While l was familiar with at least one non-profit
citizens organization with full-time staff working in most every major
estuary along the nation’s three coasts, the one big exception was
coastal Louisiana. Although it is by far the largest, most productive
and most important coastal ecosystem in North America, it had no
staffed citizens group. Starting in early 1986, a group of Louisiana
scientists and voluntary environmentalists in the state, with some
urging from me, wrote a Citizens Action blueprint for Louisiana coastal
restoration entitled "Here Today and Gone Tomorrow". We released
the draft report in April 1987, after four "public" hearings in March, and
then afinal report two years later in 1989. This formed the genesis of
the Coalition to Restore Coastal Louisiana.

In 1990, Congress enacted the Coastal Wetlands Planning

Protection and Research Act ("CWPPRA" aka the "Breaux Act"), 16
U.S.C. 1351, that with the Dingell-Johnson Act has provided a steady
stream of $80 million annually for coastal restoration. The Breaux Act
task force wrote COAST 2050 that the Corps adopted as the
reconnaissance study for the Louisiana Coastal Area (LCA) feasibility
study.

In the mid-1990’s King Milling, then President of the Whitney

National Bank, joined the board of the Coalition as he came to realize
that the on-going collapse of the Mississippi delta ecosystem would
have profound consequences for the economy of South Louisiana and
the country, with the dependence of the on-shore and off-shore oil and
gas industry, the navigation industry and the structural integrity of
New Orleans and other coastal urban communities on this vast wetland
system. King knew former Governor Michael Foster (their grandfathers
had started a law firm together) and was instrumental in persuading
Governor Foster to host a Coastal Summit in August 200:1. Out of this
marshalling of State attention and resources came the Governor’s
Commission on Coastal Protection, Conservation and Restoration with
IVlilling as chair (and of which I am a member) and the initiation of the
Corps’ LCA and State master planning processes. With the completion
of the LCA delta ecosystem restoration Chief’s report in January 2005
and in light of the devastation of Katrina, Congress authorized the LCA
ecosystem restoration program in Title VII of the 2007 Water Resource
Development Act. The State now has underway a revision of its Master
Plan, due to be submitted to the State Legislature in 2012. I am
serving on its Framework Development Team. Two noted coastal
scientists Denise Reed, PhD geomorphologist, and Robert Twilley, PhD,
wetland ecologist, are assisting the State with this undertaking.

Katrina and Deepwater Horizon. A century or more ago, New

Orleans was buffered by 50 miles of dense coastal marsh, swamp
forest and barrier islands to the south and 30 miles of such wetlands to
the east. When Katrina hit in late August 2005, coastal Louisiana had
lost about one-third of its historic wetland land mass. As a result, its
urban communities and their levee systems and coastal oil and gas
and transportation infrastructure were much more vulnerable to storm
surge than would have been the case a century earlier (John W. Day, Jr.
et al, Restoration of the Mississippi Delta: Lessons from Hurricanes
Katrina and Rita, Science Vol. 3115, March 23, 2007). This was brutally
evident on the east side of New Orleans and St. Bernard Parish where a
massive wall of storm surge, aided and abetted by the Mississippi River
Gulf Outlet and the lost of tens of thousands of acres of cypress swamp
forests, breached levees and opened these urban communities to the
ravages of the storm. In response, Congress appropriated tens of
billions of dollars to rebuild levees and other infrastructure and to
provide restitution to homeowners and businesses However, despite
the banding together of numerous community groups such as the
Lower Ninth Ward Center for Sustainable Engagement and
Development that sought restoration of the swamp forests that had
historically protected their communities, Congress provided scarcely a
penny for wetland restoration. Indeed, Pam Dashiell, former director of
the Center, sadly died as she was preparing a power point presentation
for the Governor’s Commission that was meeting in the Lower Ninth
Ward on this subject last December.

In addition, private industry suffered losses. For example,

ConocoPhillips, as a result of Katrina, had to spend $250 million to
repair its Alliance Refinery that is close to the proposed location of the
LCA authorized IVlrytle Grove sediment diversion project, and, in the six
months it took to do so, it suffered $250 million in lost revenues - or a
direct loss of $0.5 billion at this one facility alone.

The Deepwater Horizon oil spill that commenced on April 20 and

lasted for almost three months spewing some 5 million barrels of oil
into the Gulf riveted the nation’s attention on the biological richness of
the Gulf with its vast fish, shellfish and wildlife resources, as well as its
magnificent barrier islands, beaches and estuaries. This was a sudden,
unexpected and intensive environmental as well as economic disaster.
Fortunately the span of time of active spilling was limited although the
impacts will be both temporary and long-lasting. However, the media
focus on the oil spill and its consequences for Gulf resources also
brought attention to the other, long-lasting, continuing and horrific
disaster that is happening to the Gulf- the collapse of the Mississippi
River delta ecosystem.

A comparison of the Mississippi delta ecosystem and

other Gulf coastal resources. Although this ecologically and
economically disastrous collapse is unfolding gradually, it constitutes,
in my view, a far greater and more insidious calamity for Gulf biological
resources than the oil spill. The coastal estuaries of the Gulf -
including the mangrove swamps of southwestern Florida, the floodplain
forests of great Gulf rivers such as the Suwannee, the Appalachicola
and the Pearl, Mobile Bay and its Tensas deltaic wetlands, Galveston
and IVlatagorda Bays and other major estuaries along the Texas coast -
provide substantial biological energy and habitat for the fish and
wildlife resources of the Gulf ecosystem. However, it is the vast
wetland resources of the Mississippi River delta in southeastern
Louisiana along with the River-shaped Chenier Plain that are the
northern Gulf’s crown jewel of the coastal wetlands, its beating heart
and font of its extraordinary biological productivity. The evidence for
this is simply the vastness of its salt water, brackish and fresh water
marshes, its coastal swamp forests and the magnificent maze of
wetlands and bayous that generate plant organic material and provide
spawning, nursery and feeding habitat for fish, shellfish and wildlife
that make up 60% of the marshes and estuaries in the Gulf.

The estuarine wetlands of Florida, Alabama, Mississippi and

Texas have shrunk historically due mostly to residential and
commercial development dredge and fill operations. Coastal Louisiana
has also seen coastal wetlands dredged and filled for these reasons as
well as for agriculture. Fortunately, the advent of the federal Clean
Water Act Section 404 regulatory program coupled with state coastal
wetland protection initiatives has substantially retarded the rate of loss
of coastal wetlands due to such activities.

However, the loss of Louisiana coastal wetlands has been

proceeding at a prodigious rate even with federal and state coastal
wetlands permitting programs in place. The reason is that so much of
this loss is associated with the Mississippi River’s navigation and flood
control levees that restrict introduction of sediments into the
compacting sediments of the delta and the historic and on-going
infrastructure footprint of on-shore and OCS oil and gas operations.
Indeed, by the mid-1980°s some 10,000 miles of oil and gas pipeline
and equipment navigation canals and their dredged spoil banks
occupied almost 10% of the delta’s wetland area (Jae-Young Ko and
John W. Day, Wetlands Impacts of Energy Development in the
Mississippi Delta, Encyclopedia of Energy, Vol. 6, 2004). So long as the
Gulf, with its huge reserves, produces oil and gas (#9), the industry
will need pipeline canals and navigation channels for equipment
transport that traverse the delta’s wetlands and coastal storage and
refinery facilities.

While federal and State permitting programs have reduced the

impacts of such infrastructure by conditioning permits on improved
disposal of dredged material practices or required backfilling of new
pipeline canals, these operations still have an extensive, on-going
cumulative impact on Louisiana’s coastal wetlands. Thus, even with
truly effective enforcement of federal and state regulatory programs
that could further reduce the rate of future wetland loss, they alone
will not reverse the tragic rate of loss of these delta wetlands, let alone
begin the process of rebuilding and restoring this amazing system.

Consequences of deltaic collapse for the Gulf. Scientists

have defined a complex but positive relationship between the extent
and quality of coastal and estuarine wetlands and Gulf biological
productivity and health. As the Mississippi River delta ecosystem
continues to collapse, Gulf fishery and wildlife resources will suffer.
Some scientists have pointed out that wetland complex may provide
long-stored organic energy to the Gulf, but as the collapse consumes
that wetland capital it will increasingly depress Gulf biological well-
being. In addition, the shunting of Mississippi River water to the Gulf,
water that historically would have flowed through its floodplain and
delta wetlands during high flow periods, has exacerbated the
contribution of the nutrients from the central agricultural states to the
Gulf’s dead zone.

The continued collapse of Louisiana’s coastal wetlands has

mounting national and regional economic impacts. The loss of storm
buffering capacity is intensifying the vulnerability of the nationally vital
Mississippi River navigation system and the GIWW and the on-shore oil
and gas infrastructure of Gulf OCS operations, as well as the urban
communities that support these economic activities to storm surge
(#I0).

The Coastal Louisiana wetland ecosystem restoration

program. The power of riverine sediments to build land is evident in
the Atchafalaya Basin and Bay with its new delta lobes (# 11 and 12)
in contrast to the wasteful discharge of sediments at the mouth of the
River (#13). Protection and restoration of coastal Louisiana’s coastal
wetlands entail four kinds of projects: 1) diversion projects that
reintroduce sediment and fresh water from the Mississippi River into
adjoining wetland basins and distribute Atchafalaya Basin sediments
more broadly, 2) conveyance of dredged material, primarily from the
River’s mouth, via pipeline or barge for sustainable wetland creation,
3) rebuilding of Louisiana’s eroding deltaic fragment barrier islands
and 4) re-engineering of thousands of miles of oil and gas canals.

After years of work by the Corps, other federal agencies, such as

USGS, the Fish and Wildlife Service, NOAA and EPA, the State,
Louisiana’s extraordinary coastal scientists and the NGO community,
Congress authorized 17 near-term restoration projects for construction
in Section 7006(c) and (e) in 2007 WRDA’s LCA Title (#14), many
initially investigated through the CWPPRA process. The State is also
pursuing a number of projects, including a long-range sediment
pipeline transport project in central Barataria Basin, funded through
the Community Impact Assistance Program (an amendment to the
Outer Continental Shelf Lands Act, 43 U.S.C. 1356a). In addition, these
state and federal agencies and Louisiana’s scientists have begun to
investigate prospective large-scale sediment reintroduction projects of
the sort described in Section 7002 of 2007 WRDA largely through the
State 2012 Master Plan revision process.

In his February 2010 FY 11 budget, President Obama proposed

that Congress approve the LCA program as a "new start" (one of two in
the country) with $19 million in construction funds as well as $16
million in LCA planning funds. The Senate Energy and Water
Subcommittee has endorsed this proposal, but its House counterpart
has not. It is critical that this program move beyond the planning to
the construction phase.

The 17 LCA near-term restoration projects constitute a program

that is intended to help stabilize the delta’s barrier islands, beneficially
use dredged material for targeted areas, including those devastated by
the now-blocked Mississippi River Gulf Outlet, modify existing
structures such as the Caernarvon and Davis Pond fresh water
diversions, add other such diversions and provide for two sediment
diversion projects that could take restoration to a whole new level. A
rough estimate of the cost of these 17 projects is $5 billion, although
the full cost of the MRGO restoration project that includes no
authorized cost cap may push that up.

Priority LCA restoration projects. Since the essence of

restoration is conveyance and reintroduction of sediment, those LCA
projects that do so are particularly critical. In the long-term the only
sustainable way of reintroducing sediment is by using the natural
energy of the Mississippi River during high River flow periods - what
scientists describe as "replication of natural processes". The two LCA
projects that could potentially be designed to convey and reintroduce
sediment using the power of the Mississippi River to distribute those
sediments are the Myrtle Grove sediment diversion project and the
White’s Ditch diversion project, respectively on the west and east
banks of the River approximately mid-way between New Orleans and
the mouth (#15 and 16).

While the Myrtle Grove project that would discharge into central
Barataria Basin is described in Section 7006(c) of 2007 WRDA as a
"medium" diversion, Congress authorized its modification (along with
four others) in response to post-Katrina wetland loss subject to a 150%
authorized cost cap. Two years ago, the State, with our support,
retained a superb team of engineering firm and academic contractors
to conduct detailed sediment data sampling and analysis, to
investigate state-of-the-art hydrodynamic and morphological modeling
of the River- and Basin-side impacts of the diversion with pulsing
capacities of 15,000, 30,000 and 45,000 cfs and to undertake
preliminary engineering design of the intake and diversion structure
and conveyance channel. The idea of pulsing is to have the capacity
to move extra amounts of water and sediment during rising and high
River flow periods when the lower River can carry 12 times more
suspended load compared to low discharge, with the sand loads
making up 19% of high flow sediments compared to zero at low flow
(IVl~ad Allison and Ehab Meselhe, The Use of Large Water and Sediment
Diversions in the Lower Mississippi River (Louisiana) for Coastal
Restoration, Elsevier B.V., Journal of Hydrology, Vol. 367, June 2010).

The White’s Ditch diversion is one of six projects to be included

in a Chief’s Report that the Corps expects to transmit to Congress by
the end of this year. Pursuant to a suggestion from the Coalition to
Restore Coastal Louisiana, the New Orleans District is proposing a
project with pulsing capacity up to 35,000 cfs.
 Both the IVlyrtle Grove and White’s Ditch projects should not only
contribute to land building but serve as demonstration projects for the
larger-scale diversion projects that will be necessary to move towards
serious landscape restitution. With the recent signing of the iVlyrtle
Grove cost share agreement, the Corps is assuming major
responsibility for moving this project forward. Unfortunately, the Corps
has indicated that, even with the impressive technical work that the
State has done, it may take up to three years to complete the project’s
feasibility study. Given the urgency of this project, the fact that
Congress has already authorized it and the extent of the State
contractors’ technical work, this tedious schedule is unacceptable, and
unnecessary.

In the wake of the Katrina disaster, the Corps has shown that it is
capable, with CEQ and OMB support, of designing and constructing a
project as huge and complex as the $15 billion, 100-year upgrade of
the massive greater New Orleans hurricane protection system in less
than six years. Coastal restoration is equally urgent. It is high time
that the Corps, indeed, the entire federal government, demonstrate
that kind of energy in and commitment to the coastal restoration
program. Otherwise, we must find some alternative structure that will
facilitate a greatly expedited near-term and longer-term restoration
program before another catastrophe strikes. After all, the collapse of
the delta ecosystem is increasing the vulnerability of the Mississippi
River and GIWW navigation systems, oil and gas infrastructure, freight
rail and trucking infrastructure and urban communities. Conversely,
the sustainability of these nationally vital economic assets depends on
comprehensive and robust coastal restoration. Time is of the essence.

In addition to these two sediment diversion projects, other near-

term LCA projects that are critical include the Barataria and
Terrebonne Basin barrier island rebuilding projects, the re-engineering
of the Davis Pond and Caernarvon freshwater diversions to convey
more sediment and the restoration of cypress swamp forests in the
MRGO-impacted area. The NGO community with the Lake
Pontchartrain Basin Foundation as sponsor has also proposed a very
cost-elective modification of the Bonnet Carre Spillway so that its
sediment could rebuild the LaBlanche wetlands.

Coastal Land Rights Issues. Coastal restoration will have

implications for privately-owned coastal underwater land and wetlands.
Since 90% of the land in coastal Louisiana is privately owned, much of
it by energy companies (with ConocoPhillips owning more than
500,000 acres), a restoration program that will reintroduce sediment,
fill in shallow water, nourish sediment-starved wetlands, raise water
elevations and change salinities, at least seasonally, will have
consequences for private land resources. The Myrtle Grove and White’s
Ditch diversion projects will help to determine the most effective, legal
and fair way of addressing the private land impacts of restoration
projects. The State has been addressing these land rights issues, but
much more needs to be done.

The Louisiana Supreme Court’s decision in Avenal v. State, 886

So._2d 1085 (2004), dismissed a series of claims by oystermen for
damages that they attributed to the Caernarvon diversion. It is the
leading judicial decision concerning the legal capacity of the State to
restore this coastal system. The Court found that the State was
authorized, if not obliged, to protect and restore the State’s coastal
wetland zone through, among other ways, diversion of River water and
sediment. Act 626, La. R.S. 4:~:1702 (2006), also authorizes the
establishment of a not-for-profit land trust that could receive donations
of surface rights with coastal landowners retaining subsurface mineral
rights and a set seaward boundary to their claims, a boundary that
could otherwise change as wetlands revert to open water. Among
other things, the State and private interests are awaiting an opinion of
the Attorney General that would clarify the legal capacity of the State
administratively to guarantee a fixed boundary for subsurface rights.
Effective implementation of this Act is imperative.

Restoration goals. What should our goals be for restoration of

coastal Louisiana? What is our vision of the Mississippi River delta
ecosystem :~0, 20 or 50 years from now? The national importance of
reversing land loss and starting the process of rebuilding wetlands calls
for the setting of aggressive time goals for action.

Time goals. A suggested goal for completion (planning,

detailed design and construction) of the :~7 LCA-authorized near-term
projects is five years. The goal for completion of the longer-term
program - including potentially a major lower River realignment with
redesign of the navigation channel at the mouth (the subject of the
2004 LSU Small Scale Physical Model report and the BP-America’s
Wetland June 2006 science report chaired by Denise Reed) and large-
scale upper Barataria and Terrebonne Basin sediment diversions and
canal closures - is :~0 years. This is ambitious, but commensurate with
the need to act immediately to reverse land loss, redress an open
wound in the Gulf ecosystem, protect critical national economic assets
and avoid further catastrophes of the sort that Paul Kemp, PhD, of the
National Audubon Society describes. We can do it by takingfull
advantage of the resources of key federal agencies, the State,
engagement of world-class private sector engineering firms through a
large-scale diversion project design competition that my colleague Paul
Harrison is pursuing, design-build concepts and help from the White
House to build support among energy firms active in the Gulf, the
navigation industry and mid-western agricultural interests that depend
on the Mississippi River to move half their agricultural exports.

Sediment reintroduction goals. If we adopt this lO-year

goal, what is our physical vision of the restoration program that we will
have implemented? Right now, very little sediment of the Mississippi
River is reaching the delta’s subsiding and eroding wetlands except
incidentally. Distributary bayous close to the mouth of the River in the
bird’s food delta convey sediment, but any benefit there is apt to be
temporary since the mouth is rapidly subsiding. Since strategic and
sustainable reintroduction of this sediment is a key to restoration, a
physical goal is to have projects in place that will sustainably divert
and reintroduce at a minimum 70%, and preferably 80 to 100%, of the
sediment of the Mississippi River.

In addition, the Atchafalaya River system carries 30% of the flow

and sediment of the combined Mississippi and Red Rivers. Confined by
the Basin’s east and west guide levees, the sediment of that River has
achieved a stunning amount of land building within the Basin (#11).
The River has also built up magnificent and rapidly growing new deltaic
lobes in Atchafalaya Bay (#12) through the Lower Atchafalaya River
and Wax Lake Outlet built by the Corps in 1941 as a second flood
water relief value for Basin flood water. However, since the east guide
levee retards the flow of that River’s sediments into central
Terrebonne Basin, another 10-year goal is the reintroduction of some
amount of that sediment, perhaps one-quarter to one-third, into the
Terrebonne Basin. The third leg of this physical goali.sthe
reintroduction of dredged disposal piles of half of the oil and gas
pipeline and equipment canals into those canals.

The long-term goal is formulated in this manner since it is

measurable and reflects what we must do - move sediment in a useful
way using predominantly the natural flows of the IVlississippi and
Atchafalaya Rivers while eliminating some of the barriers to that
movement. While we seek significant land building and nurturing of
existing wetlands as outcomes of the long-term restoration program,
that will happen only gradually, depending on the frequency of large-
scale flood events. Re-establishment of riverine processes and coastal
hydrology is what we should aim for.

It is hard to estimate the cost of the large-scale program that will

attain these sediment conveyance goals. A rough estimate may be
$15 billion if we can fully engage private sector firms, but it may
exceed $20 billion, particularly if we do not have an efficient
management structure in place commensurate with a public works
project of this magnitude and complexity. If we envision completion of
both the authorized near-term and longer-term programs within 10
years at a total cost of $20, this would entail a funding stream that
would gradually build up to and average $2 billion per year. Absent
new legislation establishing some new structure or authority, effective
utilization of CWPPRA with its Breaux Act task force with its goals and
mission defined in an executive order of the President and with
participation by high level agency officials could provide an effective
administrative framework.

NRDA Linkages between the Deep Water Horizon Oil Spill

and Coastal Restoration. The three-month Deep Water Horizon oil
spill has done significant temporary damage to Gulf environmental
resources and untold longer-term damage to those resources despite
heroic efforts to contain and remove surface oil. The federal trustee
agencies are conducting a Natural Resource Damage Assessment
(NRDA) under the Oil Pollution Act of 1990 (#17) to determine the
quantitative scope of the oil spill’s impact and damages relative to a
pre-spill baseline and to develop and implement a plan for restoration,
rehabilitation or replacement of damaged resources (33.U.S.C.
2706(c), 15 CFR 990.30 and 990.52, 40 CFR 300.615(c)).

It will be impossible for BP to undo some of this damage through

direct oil removal efforts. Since the temporary damage to Gulf
biological resources that was visible during the pendency of the spill
cannot be undone, it will require some kind of program to replace and
restore damaged resources. In addition, the continuing damage in the
form of very low concentrations of oil in deep waters that could affect
marine larvae and juveniles as well as expanses of thick oil on parts of
the Gulf seabed provides little opportunity for direct cleanup and oil
removal. Therefore, the trustee agencies will have to devise a plan to
compensate for and replace the short- and long-term damages to Gulf
resources that has a reasonable nexus to those damaged resources.

The lingering oil spill and the loss of Mississippi Delta wetlands
affect the same biological resources, although in different degrees,
places and ways. Both affect the Gulf food chain and Gulf biotic
reproductive, nursery and feeding habitats. Both affect the larvae and
juveniles ofawide range of biotic species. If very low concentration of
highly dispersed oil in the Gulf might injure millions or billions of larvae
and juveniles of many different species or oil on the bottom of the Gulf
could suppress benthic biota reproduction and growth that would
support fish and wildlife higher up in the food chain, then augmenting
the flow of food energy by protecting or restoring Louisiana coastal
wetlands could contribute to replacing or mitigating for the loss.
Implementing barrier island projects that would enhance protection of
Barataria and Terrebonne Basin wetlands would also indirectly
reinforce this effect. Deepwater Horizon oil that has gravitated to the
Gulf’s bottom suffocating biota there might be viewed as having a
similar affect to the dead zone. Diverting Mississippi River nutrients
would allow receiving basin wetlands to take up those nutrients
thereby reducing the shunting of agricultural nutrients into the Gulf
and the size of its dead zone. These are conceptual linkages between
the compounding damages of the oil spill and coastal restoration.

Of the LCA authorized restoration projects, the ones that would

most effectively restore or replace resources damaged by the oil spill
would be the two sediment diversion projects and the Barataria and
Terrebonne Basin barrier island rebuilding projects. These should be
the nucleus of a NRDA early action program. Large-scale sediment
reintroduction projects and canal closure projects could also serve this
purpose. If NRDA damages were to be dedicated in part to funding any
near-term LCA projects, including the sediment diversion or barrier
island projects identified above, an administrative structure not
requiring additional legislation that could effectively receive these
funds with an appropriate directive from President Obama is the 1990
CWPPRA "Breaux Act Task Force". The federal and State trustee
agencies and EPA are all represented on it.

The Clean Water Act and BP Funding for Coastal

Restoration. The Department of Justice in the early weeks of the oil
spill announced the initiation of a civil and criminal investigation. The
civil penalty provisions of the Clean Water Act, 33 U.S.C. 1321(b)(7)(A)
and (D) authorize the imposition of penalties up to $1100 per barrel of
spilled oil on a strict liability basis or up to $4300 per barrel upon a
finding of gross negligence (#18). Since the federal government has
estimated the total discharge to be 4.9 million barrels of oil, a potential
civil penalty could be several billions of dollars.

Executive settlement authority to dedicate BP oil spill funds to

coastal restoration includes the EPA Supplemental Environmental
Projects (SEPs) program (#19). Pursuant to its Final SEP Policy of April
10, 1998, SEPs are beneficial projects that a defendant agrees to
undertake as part of a settlement of an EPA Clean Water Act civil
penalty enforcement action. EPA has a five-step process to determine
if a proposed project qualifies as a SEP. Environmental restoration is
an eligible category. The defendant is responsible for implementing
the SEP with EPA oversight. The EPA Policy incorporates legal and
policy constraints to assure compliance with the Miscellaneous
Receipts Act that requires transmittal of civil penalties to the federal
treasury.
 So as to avoid any possible overuse of such a restoration project
mechanism, SEPs that EPA has negotiated have been of modest size.
The Department of Justice has often looked askance on the program.
With that said, it is hard to distinguish the legal as contrasted to policy
constraints in the SEP Policy. If we were to envision a SEP that BP
would voluntarily enter as part of an EPA settlement, it could be of a
magnitude that dwarfs any other SEP, would be highly visible and
should have broad support throughout the executive branch. Thus, it
behooves us to determine what a robust SEP that complies with the
IVliscellaneous Receipts Act could look like if BP were so inclined to
support it, and what role the Breaux Act task force could play in project
oversight. Even with a robust coastal restoration project SEP, one
could anticipate that BP might face quite a sizeable Clean Water Act
civil penalty. Senator MaryLandrieu has proposed legislation that
would dedicate 80% of any Clean Water Act civil penalties to Gulf
coastal restoration. Congressman Steve Scalise has introduced a
comparable bill. The entire Louisiana delegation and the national
environmental community support these bills.

The Need for Long-Term Sustainable Funding for Coastal

Restoration, While BP funds through the NRDA or any Clean Water
Act SEP could provide significant funding for and kick start systemic
coastal Louisiana restoration, the federal government will have to
devise a sustainable and substantial source of funding to achieve the
coastal restoration goals enunciated above. The Melancon
amendment would provide some very important funding, but more is
needed. An article that I authored for the July issue of USA Today
magazine entitled "Doubling Down on Disaster" proposed as one
funding option the imposition of a $2 per barrel of oil or natural gas
equivalent "restoration fee" on all OCS oil and gas produced in the
Gulf. The historic involvement of the oil and gas industry in coastal
Louisiana and the Gulf and the storm buffering benefits of a restored
coast to coastal oil and gas infrastructure, industry employees and
their communities could justify such a fee that could generate $20
billion or more over a ten,-year period.

Another option that would generate $2 billion annually for Gulf

coastal restoration could be a modest fee of $0.28 per barrel on all
imported and domestically produced oil, the equivalent of 0.7 cents
per gallon of gasoline. The justification for such a broadly assessed
restoration fee is the national economic and environmental benefit of a
restored Mississippi River delta ecosystem. The energy infrastructure
along and in the Gulf that has helped to power the US economy for the
last century and led to the location of the Macondo well has played a
major role in delta collapse. It would therefore be appropriate for the
energy system to contribute such a fee to its restoration.
 Gulf Coastal Restoration vs Coastal Louisiana Restoration.
This statement has focused on the national economic and
environmental imperative of a comprehensive Mississippi Delta
ecosystem restoration program in coastal Louisiana. BP funds that
might become available under a NRDA or through a SEP or new federal
law that imposes a restoration fee as suggested above would not be
limited to coastal Louisiana restoration although that is where the need
is by far the greatest. A suggestion for a restoration program in the
other Gulf states would be enhanced protection and restoration of the
floodplain forested wetlands of the multiple rivers that create estuaries
in and flow into the Gulf. The floodplain forests of southern rivers have
suffered enormously over the last century. However, the central focus
of Gulf restoration must be restoration of the IVlississippi River delta
ecosystem (#20). The time for action is now.
 9/27/2010

¯ Mississippi-Missouri: Fourth-longest river on Earth

¯ Drains 41% of U.S.
¯ Parts of 31 states, 2 Canadian provinces in :1.84 million sq. mile watershed
 9/27/2010

2,300 square miles of coastal wetlands lost in last century

90% of UoS. coastal wetland loss in Louisiana

2
 9/27/2010

Year- 2009 Year - 2100

Flood Control Act of 1928

Components
¯ Tributary dams
¯ Locks and dams
¯ Main stem and backwater levees
¯ Navigational jetties into the Gulf
¯ Old River ControIStructures
Consequences
¯ Severing of river from its flood plains and
delta
¯ Sediment starvation and subsidence of the
deltaic ecosystem
¯ Shunting of the River’s nutrients and
sediments into the Gulf
 9/27/2010

LOUISIANA
Oil & Gas Infrastructure

10,000 Miles of Coastal Oil and Gas Pipelines and Navigation Canals

4
 9/27/2010

¯ Ist in offshore oil reserves

¯ 2007 PADD reserves: 3.32 bin (1st)
¯ 2nd in natural gas production (land and OCS)
¯ 2007 output: 1.36 mln cubic ft
¯ 3rd in aggregate oil reserves (land and OCS)
¯ 4th in domestic oil production
¯ 2008 crude oil output: 73.01 mln barrels
st
¯ I in OCS revenues for US Treasury
¯ 2007 federal revenues: ~ ~;7 billion
¯ 41.7 BBOE recoverable at $60/bbl

¯ Critical route for bird migrations

¯ World-class fisheries dependent

on the delta
Deltaic
¯ Strategic oil, gas resources
Ecosystem
Dependence
¯ Important transportation
infrastructure

¯ Communities

5
 9/27/2010

The Atchafalaya Floodway

represents major section of
flood control system

Roberts et al. 1997

 9/27/20~0

Provides for Comprehensive Coastal Restoration Plan -

Section 7002
Establishes Federal Task Force - Section 7004
Creates a Science and Technolol~y Program and
Demonstration Program - Section 7006{a) and {b)
¯ Authorizes five initial restoration projects with allowance for
modifications to address Katrina and Rita impacts - 7006{c)
¯ Authorizes ten additional restoration projects- 7006{e){1)
and (3)
¯ Calls for the closure of the Mississippi River Gulf Outlet
{completed) and a MRGO damage-offset restoration program

7
 9/27/20~0

¯ Davis Pond
modification -
7006(e)(1)(D)
¯ Myrtle Grove medium
diversion with
dedicated dFedl~inl~-
7006(c)(i)(E)
¯ Myrtle Grove sediment
pipeline-CIAP
¯ BaFataFia Basin
shoreline protection
7006(c)(1)(D)
 9/27/2010

¯ Liability capped at $75M plus removal costs (NRDA costs)

except in cases of gross negligence (bills would raise or
eliminate cap)
¯ No preemption of liability under other federal or state laws
¯ Oil Spill Liability Trust Fund (proposals to increase per barrel
dedicated tax)
¯ Natural Resource Damage Assessments by trustees with
obligation to assess natural resource damages and develop
and implement plan for restoration, rehabilitation or
replacement of damaged resources- 33 U.S.C. 2706(c), 15
CFR 990.30, 40 CFR 300.615(c)
¯ Assessment includes quantifying the degree and spatial and
temporal extent of injury relative to baseline - 15 CFR 990.52.

¯ General: penalty up to ~25,000/day/violation

or up to ~l,000/barrel of oil discharged - 33
U.S.C. 1321(b)(7)(A)
¯ (D) Gross negligence: penalty not less than
$100,000 and not more than ~3,000/barrel of
oil discharged - 33 U.S.C. 1321(b)(7)(D)
¯ Criminal penalties 33 U.S.C. 1319(c)

9
 9/27/2010

¯ SEPs are beneficial projects that a defendant agrees to

undertake as part of a settlement of an EPA CWA civil penalty
enforcement action
¯ EPA has a five-step process to determine if a proposed project
qualifies as a SEP
¯ Environmental restoration is one of the SEP categories
¯ The SEP mitigation amount is subtracted from the civil penalty
¯ There must be a nexus between the violation and the SEP
¯ The defendant is responsible for completing the SEP with EPA
oversight

10
 National Commission on the
BP DEEPWATER HORIZON OIL SPILL
AND OFFSHORE DRILLING

Attachment 28
Written Statement of Stan Senner

Director of Conservation Science, Ocean Conservancy

 National Commission on the
BP Deepwater Horizon Oil Spill and Offshore Drilling
September 27-28, 2010

Testimony of
Stanley E. Senner, Director
Conservation Science
Ocean Conservancy

Chairman Graham, Chairman Reilly, and Members of the Commission, thank

you for the opportunity to present these remarks. I am Stan Senner, Director of
Conservation Science, for Ocean Conservancy.

In this role, it is my responsibility to enhance the organization’s science capacity

and link that capacity to advocacy of policies that promote conservation and
sustainable uses of the ocean. Since the BP oil disaster, I have spent most of my
time trying to understand and interpret the impacts on natural resources of this
oil spill, especially with respect to the Natural Resources Damage Assessment
process, meeting with affected persons and decision-makers, and laying ground
for Ocean Conservancy’s engagement in the long-term restoration work that will
follow in the Gulf coastal region. In doing so, I draw on nearly seven years of
working on the Exxon Valdez oil spill, first as Restoration Program Manager for
the State of Alaska prior to the settlement with Exxon and then as Science
Coordinator for the state-federal Exxon Valdez Oil Spill Trustee Council following
the settlement.

I have been asked to highlight several aspects of the Exxon Valdez experience that
are relevant and useful with respect to restoration in the Gulf of Mexico
following the BP oil disaster. I am pleased to be invited to be here today on this
panel for that purpose. I offer these comments to you as a biologist and
restoration planner, and not as an attorney.

As I discuss these Exxon Valdez examples, I will make reference to proposed

legislation that pertains to restoration in the Gulf of Mexico, and I will close with
Ocean Conservancy’s vision for the key elements of a comprehensive restoration
program in the Gulf of Mexico.
Senner - Ocean Conservancy - Restoration Planning 2

The President’s Commitment

When President Obama addressed the nation from the Oval Office on June 15, he
stated:

Beyond compensating the people of the Gulf in the short-term, it’s

also clear we need a long-term plan to restore the unique beauty
and bounty of this region. The oil spill represents just the latest
blow to a place that has already suffered multiple economic
disasters and decades of environmental degradation that has led to
disappearing wetlands and habitats. And the region still hasn’t
recovered from Hurricanes Katrina and Rita. That’s why we must
make a commitment to the Gulf Coast that goes beyond responding
to the crisis of the moment.

Ocean Conservancy has worked for more than two decades to protect and
restore depleted fish and wildlife resources in the Gulf of Mexico, and we
enthusiastically support the President’s call for a Gulf Coast Restoration Plan1
that addresses decades of environmental degradation that have compromised
the Gulf of Mexico coastal and marine ecosystem.

There are many physical and biological differences between the Gulf of Mexico
and the northern Gulf of Alaska (including Prince William Sound), and there are
great d~fferences between the characteristics of the BP oil disaster in 2010 and the
Exxon Valdez oil spill in 1989. The Exxon Valdez oil spill was the best studied spill
event in the history of the United States, if not in the world. Although there was
immediate and dramatic harm, the full story of impact and recovery from the
Exxon Valdez played out over two decades and in some ways is not yet complete.

My expectation is that it will take several years before we have some clarity
about the nature, scope, and severity of harm from the BP oil disaster and its
impacts--especially given that so much of this story unfolded under water and
out of sight. Now is an appropriate time to look ahead to a Gulf of Mexico
restoration program. As you do so, I strongly encourage you to be mindful that,
while restoration can and must begin now, many of the critical questions about
the impacts of the BP oil disaster will not be answered for several years. Given
the nature and scope of the BP disaster and the several states and multiple
interests involved, conducting the Natural Resources Damage Assessment

Throughout my statement, the "Gulf Coast Restoration Plan" refers to the plan called for by the President.
Senner - Ocean Conservancy - Restoration Planning 3

(NRDA) and developing and implementing a comprehensive Gulf Coast

Restoration Plan will be every bit as challenging as capping the Macondo well in
the Gulf of Mexico proved to be.

NRDA and the Restoration Plan

The goal set by the President goes beyond a typical NRDA-based restoration
plan. As a result, development of a broader Gulf Coast Restoration Plan raises
the question of the relationship between NRDA-based restoration and a broader
program that seeks to reverse decades of environmental degradation. Ocean
Conservancy’s view is that NRDA-based restoration is nested within and
essential to the larger plan. By defining the set of actions that respond to the
short- and long-term damage done by the BP oil disaster, the NRDA is a key
building block in development of a broader Gulf Coast Restoration Plan. In turn,
by addressing decades of environmental degradation in the Gull
implementation of the broader plan will improve the efficacy of efforts to restore
what was injured and lost due to the BP oil disaster. For example, it will be most
effective to both restore an oiled marsh and protect it from harmful erosion.
Hence, it makes sense for a Gulf restoration program to address oil-spill injuries
as well as the systemic degradation that compromises the whole ecosystem.
Restoration funds should be applied where they can accomplish the most for the
long-term productivity and resilience of the ecosystem, including the fish and
wildlife resources on which so many people in the Gulf rely for their livelihoods.

Of course, the NRDA is only one avenue through which the broader suite of
restoration projects needed to fully restore the Gulf will be identified, and there
already exist various restoration, management, and research and monitoring
plans for the Gulf region.2 To be effective, the Gulf Coast Restoration Plan should
outline mechanisms for integrating existing natural resource restoration and
management plans, aligning and guiding agency programs, and securing
funding to support implementation.

Bills in both the House and Senate would establish a Gulf Restoration Task Force
to facilitate the needed coordination. I note, however, that the State of Texas is
not currently represented on the task force in S. 3763, the Restoring Ecosystem
Sustainability and Protection on the Delta Act. If there is to be a region-wide Gulf
Coast Restoration Plan and program--addressing oil-spill injury and reversing

2 For example, Louisiana’s Comprehensive Master Plan for a Sustainable Coast, the federal Louisiana
Coastal Protection and Restoration Plan, Mississippi Coastal Improvement Plan, to name only a few.
Senner - Ocean Conservancy - Restoration Planning 4

decades of degradation beyond oil-spill injury--Texas must be part of it. Texas

fishery resources may well have been impacted by the spill,3 and the Texas coast
is very much a part of the Gulf of Mexico ecosystem.

The Exxon Valdez Settlement and Restoration Program

The United States and State of Alaska settled their claims against Exxon for
various criminal violations and recovery of civil damages resulting from the oil
spill in October 1991.4 Prior to that settlement, the Federal Government and State
of Alaska carried out a series of damage assessment studies under the authority
and framework of the Federal Water Pollution Control Act and Comprehensive
Environmental Response, Compensation, and Liability Act, as supplemented by
the National Contingency Plan and NRDA regulations. Although the
governments did not elect to conduct a formal NRDA following the Exxon Valdez
oil spill the approach of the early, pre-settlement restoration plannings was
generally guided by then current NRDA regulations which defined "restoration"
or "rehabilitation" as "actions undertaken to return an injured resource to its
baseline condition .... -6 However, the August 1991 Memorandum of Agreement
and Consent Decree7 resolving claims between the United States and the State of
Alaska stipulated that the Trustees "...shall jointly use all natural resource
damage assessment recoveries for purposes of restoring, replacing, enhancing,
rehabilitating, or acquiring the equivalent of natural resources injured as a result
of the Oil Spill and the reduced or lost services provided by such
resources..."(emphasis added).

Enhancing Injured Natural Resources.- The late Governor Walter Hickel

reportedly personally insisted on inclusion of "enhancing" in the definition of

3 For example, there is westward transport of red snapper larvae across the Mississippi Delta in May,
September and October, and impacts on those larvae due to the BP oil disaster may ultimately be manifest
in Texas. (Johnson, D.R., H.M. Perry, J. Lyczkowski-Shultz, and D. Hanisko. 2009. Red snapper larval
transport in the northern Gulf of Mexico. Transactions of the American Fisheries Sodety 138:458-470.)
4 Memorandum of Agreement and Consent Decree, United States and Alas’ka v. Exxon Corp., Nos. A91-082 CIV
& A91-083 CIV (D. Alaska, filed Oct. 8, 1991).

s Restoration Planning Work Group. 1990. Restoration Planning Following the Exxon Valdez Oil Spill:
August 1990 Progress Report. Alaska Departments of Fish and Game, Natural Resources, and
Environmental Conservation; U.S. Departments of Agriculture, Commerce, and Interior; and the U.S.
Environmental Protection Agency. Anchorage, Alaska.
6 43 CFR 11.14(11).
7 Memorandum of Agreement and Consent Decree, United States v. State of Alaska, No. A91-081 CIV (D.
Alaska, filed Aug. 23, 1991).
Senner - Ocean Conservancy - Restoration Planning 5

how restoration funds could be spent,8 and I think this was a wise choice. In the
case of the Exxon Valdez, baseline data were limited, which made it hard to prove
harm definitively or establish benchmarks for evaluation of progress toward
restoration. Inclusion of the word "enhancing" eliminated the potential
argument that restoration funds could only be used to return injured natural
resources (or lost or reduced services) to a poorly known pre-spill, baseline
condition. Adding enhancement to settlement documents allowed the Trustees to
focus on identifying and supporting actions that were beneficial to an injured
natural resource--and the larger ecosystem--without having to invest significant
energy splitting hairs about whether the proposed action would result in a return
to, but not go beyond, an uncertain baseline condition for a specific resource in a
dynamic environment.

Having the ability to enhance a resource in the tool kit also provided
supplemental justification for a given restoration action and perhaps
shortdrcuited the need for difficult judgments concerning which of the standard
restoration terms otherwise applied. For example, protection of forested upland
habitats used by injured fish and wildlife could be justified as restoration
measures to facilitate natural recovery from the effects of the spill. If that
justification was not persuasive, however, those same actions also enhanced
recreational opportunities for people who lived in or visited the spill-impacted
region, and who perceived that the oil spill had compromised intangible values,
such as wilderness qualities.

The concept of enhancement was espedally useful as an underlying rationale for

allocation of restoration funds to support long-term research and monitoring in
the spill area. The Trustee Council found that such activities were necessary to
support restoration and healthy functioning of the northern Gulf of Alaska-
Prince William Sound ecosystem, which was injured by the spill. Although
research and monitoring clearly can b6 justified as necessary to monitor the
recovery of injured resources, the concept of enhancement obviated the need for
arguments about whether there was continued justification to support research
and monitoring activities as time after the spill event grew longer. One result of
the Trustee Council’s focus on the larger ecosystem, in addition to specific
resources, was the Gulf Ecosystem Monitoring Plan (GEM).9 GEM was

Hunt, Joe. 2002. Mission Without a Map: The Politics and Polities of Restoration Following the Exxon
Valdez Oil Spill. Exxon Valdez Oil Spill Trustee Council, Anchorage, Alaska.

9 Mundy, P. M. McCammon, and R. Spies. 1992. Gulf of Alaska Ecosystem Research and Monitoring
Program (GEM): The GEM Program Document. Exxon Valdez Oil Spill Trustee Council, Anchorage, AK.