1

National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling

THE STORY OF THE LOUISIANA BERMS PROJECT

---Draft---

Staff Working Paper No. 8

Staff Working Papers are written by the staff of the National Commission on the BP Deepwater

Horizon Oil Spill and Offshore Drilling for the use of members of the Commission. They are 

preliminary and do not necessarily reflect the views of the Commission or any of its members. In 

addition, they may be based in part on confidential interviews with government and nongovernment personnel.

Former Louisiana governor Huey Long once described himself to an interviewer as 

follows: “Just say I’m sui generis, and let it go at that.”1 Indeed, Louisiana’s politicians and 

politics are unique. And it was this unique environment that served as the primary staging 

grounds for the response to the Deepwater Horizon spill. The leaders of the spill response could 

not divorce key decisions from their political context.

Louisiana’s offshore berms project involved the construction of massive and costly linear 

sand barrier systems, seaward of the coast, adjoining or extending existing barrier islands. 

Federal decision-making on the project implicated a variety of scientific and environmental 

concerns but evolved into a political issue. The State of Louisiana’s “central priority for fighting 

the encroaching Gulf oil,”2 berms became a lightning rod both for the state’s criticism of the 

federal spill response and for federal officials’ skepticism about the state’s priorities.

The term “berms” encompasses different types of projects. During the Deepwater 

Horizon spill response, Alabama and Florida proposed or used beach berms,

3 temporary walls of 

mounded sand along beaches to guard against oil washing up into dunes or developed areas. 

Alabama, Florida, and Louisiana proposed or used inlet barriers,

4 which involved the 

construction of barriers in coastal passageways to block the flow of oil-laden water through to 

coastal lakes or estuaries. This Draft Staff Working Paper focuses on Louisiana’s large-scale 

offshore barrier berms. Unlike beach berms and inlet barriers, offshore barrier berms were, and 

continue to be, the subject of significant controversy regarding their timing, design, cost, and 

environmental impacts.

This Draft Staff Working Paper is separated into four parts. Part I discusses the review of 

the berms project by the Army Corps of Engineers (the Corps). Part II examines the decision by 

National Incident Command to approve the Louisiana berms project. Part III summarizes 

 1 Richard D. White, Kingfish: The Reign of Huey P. Long xii (2006). 2 Chris Kirkham, Sand Barrier Faces Bureaucratic Delays, Ecological Questions, Times-Picayune (May 21, 2010). 3 See infra note 111. 4 Id.; infra Section III.B.
2

developments in the berms story after the Corps and National Incident Command approved the 

project, and Part IV provides our conclusions.

The scope of this Draft Staffing Working Paper has an important limitation. The paper 

examines the Louisiana berms only as an oil spill response measure. As used for spill response, 

berms are a temporary, “sacrificial” barrier to landward oil intrusion, designed without the 

capability to withstand long-term wave, tide, storm, and other dynamic forces. The Louisiana 

berms, however, also implicate broader coastal restoration issues. On November 1, the state

announced a plan to convert the berms it has constructed — initially touted as an oil spill 

response measure — into a barrier island restoration project.5 This report does not consider the

merits of the Louisiana berms project as a coastal restoration initiative.

I. Corps Review

A. Genesis of the Berms Project

In early May 2010, Deltares, a Dutch independent research institute focused on water, 

soil, and subsurface issues, working with Van Oord, a Dutch dredging and marine contractor, 

sent a PowerPoint presentation to BP,6 the State of Louisiana’s Coastal Protection and 

Restoration Authority (CPRA), and officials from Plaquemines Parish, Louisiana.7 The 

presentation outlined a conceptual plan to construct offshore sand berms — essentially artificial 

islands fronting existing barrier islands on the seaward side — east of the Mississippi River.8 It 

appears that President Obama, along with National Incident Commander Admiral Thad Allen, 

learned about the berms plan from Louisiana officials during a visit to Venice, Louisiana on May 

2.9 

By May 8, at both the state and parish level, the idea had picked up steam.10 No end to 

the spill was in sight, and state and local officials increasingly viewed the federal response as 

ineffective. Reinforcing the barrier islands, moreover, had long been a component of 

Louisiana’s and Plaquemines Parish’s coastal restoration plans.11

 5 Press Release, Office of the Governor, State of Louisiana, Governor Jindal Announces Agreement with BP for 

Seafood Safety, Coastal Restoration & Tourism Funding (Nov. 1, 2010), available at 

http://www.gov.state.la.us/index.cfm?md=newsroom&tmp=detail&catID=2&articleID=2550 [hereinafter Nov. 1 

Release].

 In 2005, 2007, and 2008, the 

State of Louisiana submitted sixteen funding requests totaling $101 million to the Federal 

Emergency Management Agency for barrier island restoration projects (all of which were denied 

6 BP has not responded to the Commission staff’s repeated requests for an interview on the Louisiana berms project. 7 Presentation, Van Oord and Deltares, Save the Delta, The Dutch Perspective (May 6, 2010) (on file with 

Commission staff); Telephone Interview by Commission Staff with Garret Graves et al., Louisiana Coastal 

Protection and Restoration Authority (Oct. 27, 2010); Non-Public Telephone Interview (Oct. 22, 2010). 8 Van Oord and Deltares Presentation.

9 E-mail from Colonel Alvin Lee, U.S. Army Corps of Engineers, to Miles Croom, National Oceanic and 

Atmospheric Administration, et al. (May 9, 2010) (on file with Commission staff); Telephone Interview by 

Commission Staff with Colonel Alvin Lee, U.S. Army Corps of Engineers (Dec. 6, 2010); see also Telephone

Interview by Commission Staff with Admiral Thad Allen, U.S. Coast Guard (Nov. 2, 2010). 10 See, e.g., Chris Kirkham, Gov. Bobby Jindal and Plaquemines Officials Float Plan to Rebuild Barrier Islands to 

Stop Encroaching Oil, Times-Picayune (May 8, 2010). 11 See id.; Tim Padgett, Dredge, Baby, Dredge: Can Sand Stop the Oil?, Time Mag. (June 1, 2010).
3

as ineligible).

12 The spill presented an opportunity for state and parish officials to facilitate 

construction of a large-scale, temporary oil spill response measure whose purpose might, they 

believed, “pivot” to permanent restoration of Louisiana’s barrier islands — with BP footing the 

bill.13 

Evidence provided to the Commission staff suggests that Plaquemines Parish, led by 

President Billy Nungesser, intended, or attempted, to take the lead on the berms project.14 But

on May 11, at 11:06 p.m., CPRA applied to the Corps for an emergency permit to construct 

offshore sand barrier berms, in the vicinity of the Chandeleur Islands and the barrier islands from 

East Grand Terre Island east to Sandy Point, to “enhance[e] the capability of the islands to 

reduce the inland movement of oil from the Deepwater Horizon Oil Spill.”15 Colonel Alvin Lee, 

two months shy of the end of a three-year tour as the Commander of the Corps for the District of 

New Orleans, was scheduled to leave for a vacation in Europe with his wife. He cancelled his 

trip.16 

B. Approval Process Begins

Corps approval is required for structures like the Louisiana berms under Section 404 of 

the Clean Water Act17 and Section 10 of the Rivers and Harbors Act.18

 12 See U.S. Department of Homeland Security, Summary of Ineligible PWs for Barrier Islands (Nov. 11, 2010) (on 

file with Commission staff) (detailing that in 2005, 2007, and 2008, the State of Louisiana requested Federal 

Emergency Management Agency funding for sixteen separate barrier island restoration projects. The Federal 

Emergency Management Agency turned down all of these funding requests); E-mail from Tod Wells, U.S. 

Department of Homeland Security, to Commission Staff (Nov. 8, 2010) (on file with Commission staff).

 Pursuant to its statutory 

authority, the Corps’ New Orleans District offers a general permit, known as NOD-20, covering 

13 See, e.g., Interview with Coast Guard Rear Admiral (Aug. 30, 2010); see also Mark Schleifstein, Barrier Berm 

Advocates Not Deterred by Environmental Regulators’ Misgivings, Times-Picayune (Sept. 20, 2010) (quoting 

CPRA Chairman Garret Graves as saying “this is an extraordinary opportunity for us to very quickly pivot to 

restoration and re-engineer these berms into barrier islands, and then pump sediment to create additional back marsh 

platforms”).

14 See E-mail from William Honker, Environmental Protection Agency, to Various Officials (May 9, 2010) (on file 

with Commission staff) (“The powerpoint below and the email chain that follows outline an interesting proposal 

which was developed by Dutch interests. Plaquemines Parish, LA will be proposing it to BP tomorrow, as a spill 

response measure, apparently now with the LA Governor’s support.”); Lee E-mail (May 9, 2010) (“Plaquemines 

Parish is developing a plan to present to BP on Monday to try and gain their approval to reestablish a continuous line 

of Barrier Island from approx. Grand Isle to the birds foot delta and east from the birds foot to the Chandelier [sic]

islands.”); U.S. Army Corps of Engineers, Permit Evaluation Timeline (Undated) (on file with Commission staff) 

(noting that on May 10 the Corps “hosts presentation of conceptual barrier plan by Plaquemines Parish President 

Billy Nungesser. [Corps] later attends presentation of conceptual plan by Mr. Nungesser to BP at UCC in Schriever, 

LA”); E-mail from Pete Serio, U.S. Army Corps of Engineers, to Martin Mayer, U.S. Army Corp of Engineers (May 

12, 2010) (on file with Commission staff).

15 Letter from Kristi Cantu, Coastal Protection and Restoration Authority of Louisiana, to Pete Serio, U.S. Army 

Corps of Engineers (May 11, 2010) (contained within a compilation of documents on the Corps website related to 

CPRA’s NOD-20 application, available at

http://www.mvn.usace.army.mil/news/Emergency%20Permit%20Documents%20Compressed%20FINAL.pdf) 

[hereinafter Emergency Permit Documents Compilation]).

16 Interview by Commission Staff with Colonel Alvin Lee, U.S. Army Corps of Engineers, in Washington, D.C. 

(Oct. 28, 2010).

17 33 U.S.C. § 1344. 18 33 U.S.C. § 403.
4

operations “to respond to such emergencies as oil or gas well blowouts . . . which would result in 

an imminent safety and/or environmental hazard, loss of property, or immediate economic 

hardship if corrective action requiring a permit is not undertaken within a time period less than 

the normal time needed to process an application.”19 NOD-20 specifically mentions “emergency 

dredging and placement of fills to collect and confine oil” as one of the activities within its 

scope.20 CPRA sought approval of its proposed berms project under NOD-20.

NOD-20 truncates normal review procedures, but with several caveats. First, work 

authorized under the permit must be the minimum amount necessary to respond to the 

emergency conditions.21 Second, any authorization of work is temporary. After the emergency 

has ended, the applicant must either restore the project area to “as near pre-project conditions as 

practical” or, within 30 days of the emergency approval, apply for a standard permit to maintain 

the alterations.22 Third, NOD-20 specifies that any dredging must be the minimum necessary to 

meet the emergency.23 Finally, approval under NOD-20 does not relieve the applicant of the 

responsibility to obtain necessary approvals under other federal, state, and local regulations.24

Review under NOD-20 requires solicitation of comments from other agencies under the 

National Environmental Policy Act,25 unless an emergency exemption is justified under that 

Act’s implementing regulations.

26 Therefore, on May 12, the Corps convened a coordination 

meeting in New Orleans for all of the state and federal agencies involved in the comment process 

for CPRA’s NOD-20 application. At least 25 federal and state agency representatives attended 

the meeting in person, with others dialing-in.27 During this meeting, the Corps made the 

determination that the CPRA proposal did not qualify for NOD-20 approval, because it 

constituted a coastal restoration project exceeding the scope of emergency work authorized under 

NOD-20.

28

 19 General Permit Emergency Operations Within the New Orleans District (Sept. 13, 2007) (contained within 

Emergency Permit Documents Compilation) [hereinafter NOD-20 Permit Guidelines]. 20 Id. 21 Id. 22 Id. 23 Id. 24 Id. 25 In general, the Army Corps permit program requires compliance with the National Environmental Policy Act. 33 

C.F.R. § 325.2(a)(4). The National Environmental Policy Act requires an agency to prepare an environmental 

impact statement or environmental assessment whenever the agency takes an action that significantly affects the 

quality of the human environment. 42 U.S.C. § 4332(2)(C). Preparation of this statement requires an agency to 

“consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with 

respect to any environmental impact involved.” Id. Corps regulations further define specific actions that require 

consultation with certain specific agencies. See 33 C.F.R. § 325.3(d)(2). 26 The entity tasked with implementing the National Environmental Policy Act — the White House Council on 

Environmental Quality — requires an agency to consult with the Council “[w]here emergency circumstances make 

it necessary to take an action . . . without observing the provisions of these regulations.” 40 C.F.R § 1506.11. 

Similarly, Corps regulations require that “[w]hen possible,” the Council on Environmental Quality should be 

consulted in major emergency actions. 33 C.F.R. § 230.8. The NOD-20 permit, however, authorizes the District 

Commander to immediately act in a justified emergency situation. See NOD-20 Permit Guidelines. 27 Attendance Sheet, Emergency Oil Spill Protection Berm Meeting, U.S. Army Corps of Engineers (May 12, 2010) 

(on file with Commission staff).

28 Department of the Army, Permit Evaluation and Decision Document (May 27, 2010) (contained within 

Emergency Permit Documents Compilation) [hereinafter NOD-20 Permit Decision].
5

Three days later, on May 15, CPRA finalized and submitted a revised NOD-20 permit 

application specifically proposing the construction of oil spill response berms. The new proposal 

requested approval for 128 miles of berms (with gaps for tidal exchanges) 300 feet wide at the 

water line, 25 feet wide at the top, rising six feet above the water line, and covering 9800 acres.29 

These berms would require approximately 102 million cubic yards of dredge material.

30 The 

project included nineteen “reaches,” or segments, stretching from the Chandeleur Islands

westward to Baptiste Collette Bayou on the east side of the Mississippi River, and from 

Timbalier Island eastward to Sandy Point on the west side.

31 CPRA Chairman Garret Graves 

called Colonel Lee to let him know that “this request is at the top of the list for [Louisiana] 

Governor [Bobby] Jindal.”32 

On May 18, CPRA submitted another application for an NOD-20 permit to cover three 

reaches of berms along the Isles Dernieres chain west of the Mississippi River.

33 This project 

entered a review process similar to the one described for the Chandeleur/Timbalier application.34

C. Agencies Comment

On May 13, 17, and 22, the Corps consulted with agencies including the National 

Oceanic and Atmospheric Administration (NOAA), its National Marine Fisheries Service, the 

Environmental Protection Agency (EPA), the Department of the Interior (including the Fish and 

Wildlife Service and the Minerals Management Service), the Louisiana Department of Wildlife

and Fisheries, and the Coast Guard, as well as the Federal On-Scene Coordinator and the 

National Incident Command.35 On May 13 and 14, the Corps received written comments from 

NOAA, EPA, the Fish and Wildlife Service, and the Louisiana Department of Wildlife and 

Fisheries.36 Most of these same agencies submitted a second round of written comments on the 

revised May 15 application between May 17 and May 26.

37 Other entities — including the 

National Incident Command and Federal On-Scene Coordinator — submitted comments orally.

38 

Key concerns raised in the written comments relating to the permit application, as revised on 

May 15, are summarized below.39

 29 Executive Summary, Corps Decision on State’s Emergency Permit Request (Undated) (contained within 

Emergency Permit Documents Compilation). 30 Id. 31 Id. 32 E-mail from Colonel Alvin Lee, U.S. Army Corps of Engineers, to Michael Walsh, U.S. Army Corps of Engineers 

(May 15, 2010) (on file with Commission staff).

33 On eight separate occasions in 2005, 2006, and 2007, the State of Louisiana had applied for Federal Emergency 

Management Agency grants ranging from approximately $4 million to $10.5 million for Isles Dernieres coastal 

restoration efforts. See Summary of Ineligible PWs for Barrier Islands; Wells E-mail. 34 See U.S. Army Corps of Engineers, Isles Dernieres NOD-20 Application Documents Compilation (July 6, 2010), 

available at http://www.mvn.usace.army.mil/pao/Isles%20Dernieres%20Packet.pdf. 35 NOD-20 Permit Decision. 36 Id. 37 Id. 38 Id.

39 The synthesis of these concerns is drawn from the comment letters the agencies submitted. See generally

Emergency Permit Documents Compilation.
6

1. Construction Time Line

Although at the time Louisiana submitted its NOD-20 application no one knew how long 

the active spill phase of the Deepwater Horizon disaster would last, the general consensus among 

federal officials was that a relief well, which would stop the flow of oil from the Macondo well, 

could be completed by September.40 None of the commenting agencies stated this directly, but 

the Department of the Interior and EPA, in particular, expressed deep skepticism that the berms 

would be constructed in time to be effective for oil spill response: 

• Department of the Interior: “If this project could be completed within a week or two, 

we would be more willing to consider the risks inherent in the project as appropriate 

ones. However, the State itself has said this very large and comprehensive project will 

take six to nine months to complete.”41

• EPA: “We are concerned about the element of time. Can the proposed project 

realistically be constructed in time to have a measurable effect on controlling movement 

of oil into interior estuarine waters and wetlands?”42

CPRA responded to these concerns by stating that the time frame for project completion

would be “dependent upon the level of commitment by BP to fast-track the operation” and on 

how many dredges were incorporated into the effort.43

2. Direct Effects of Dredging on Physical and Biological Resources

Comments from the Department of the Interior, its Minerals Management Service, EPA,

NOAA, and its National Marine Fisheries Service highlighted potential adverse impacts of the 

dredging operations necessary for the berms project:

• Department of the Interior/Mineral Management Service: Expressed concern “about 

oiling of the borrow areas [that is, the areas from which sand would be removed] after 

they are dredged” and “dredging the borrow area particularly with regard to pipelines and 

impacts on cultural resources.”44

 40 See, e.g., Meet the Press Transcript (May 2, 2010), available at http://www.msnbc.msn.com/id/36879498/ 

(Secretary of the Interior Ken Salazar estimating that it would take ninety days to drill a relief well); White House 

Press Briefing by Press Secretary Robert Gibbs (May 3, 2010), available at http://www.whitehouse.gov/the-pressoffice/press-briefing-press-secretary-robert-gibbs-532010 (same). 41 Department of the Interior, Response to Information Received From the Applicant for the Permit to Dredge 

Sediment to Replenish Barrier Islands in Response to the Deepwater Horizon Spill (May 22, 2010) (contained 

within Emergency Permit Documents Compilation) [hereinafter Interior Comments]. 42 EPA Review of Revised Berm Proposal (May 26, 2010) (contained within Emergency Permit Documents 

Compilation) [hereinafter EPA Comments].

43 OCPR Responses, Barrier Plan Issues Communicated to the State by the Corps (May 21, 2010) (contained within 

Emergency Permit Documents Compilation) [hereinafter CPRA Responses]. 44 Interior Comments.
7

• EPA: “[T]here is no specific provision for testing borrow areas for potentially 

contaminated sediments prior to dredging.”45

• NOAA/National Marine Fisheries Service: Requested that the state conduct 

“numerical analyses of wave climate changes that may result from excavation of the 

proposed borrow areas” as well as “potential changes to adjacent shorelines that may 

result from predicted wave climate changes.”46 

CPRA stated that it was “currently evaluating all historical data sets for the proposed 

borrow areas,” and planned to perform geophysical surveys of the areas after initial sampling 

confirmed that borrow material (i.e., the dredged sand) was contaminant free.47 Moreover, 

CPRA explained that the “[m]agnometer and geophysical surveys have been initiated to 

determine . . . potential hazards in extraction.”48 Finally, CPRA assured the Corps that it would 

confirm the quality of the borrow material (specifically, that it was un-contaminated and suitable

for berm construction) through two different sampling protocols.

49

While CPRA thus attempted to address the comments about borrow areas and the quality 

of the borrow material, it did not address the concern from NOAA and the National Marine 

Fisheries Service regarding the effects of dredging on adjacent shorelines. CPRA did note that 

the proposed process, at least west of the Mississippi River, would be “similar to the procedures 

utilized on the east [coast] of Florida for coastal restoration,”50 but it did not elaborate on the 

similarity of the Florida and the Louisiana shorelines that might be affected.

3. Release of Oil and Other Contaminants from Dredged Sediments or Eroded 

Barriers

Certain commenting agencies expressed concerns about the project’s potential to 

introduce immediate and long-term oil contamination into the environment near the berms:

• Department of the Interior: “Dredging requires the intake of water, which, if 

contaminated, will mix with the sediment/sand during the dredging/placement process. 

We are unclear as to how the State can control for this in the construction of the berm. If 

there is no way to filter the water intake and the water is oiled, they will be placing 

contaminated sediment into the berm.”51

 45 EPA Comments. 46 NOAA & National Marine Fisheries Service, Comments on Louisiana Barrier Island Berm (Undated) (contained 

within Emergency Permit Documents Compilation) [hereinafter NOAA/National Marine Fisheries Service 

Comments].

47 CPRA Responses. 48 Id.

49 Id. 50 Id. 51 Interior Comments.
8

• EPA: The project gave “no consideration to either short or longer-term planning, 

responsibility or costs for removal/remediation of berm sediments that become 

contaminated from intercepting waterborne oil.”52

• NOAA/National Marine Fisheries Service: “[N]o contaminated sediments shall be 

used to construct the barrier berm” and “sediment in the berm that may become 

contaminated must be removed.”53

As described above, CPRA affirmed that it would test borrow material for contamination 

during construction of the berms. CPRA also agreed to monitor the berms for the presence of 

oil, but emphatically stated that oil cleanup was the responsibility of BP and the federal 

government, not of Louisiana.

54 CPRA further pointed out “that this endeavor is not intended to 

be a permanent barrier berm,” and that “[t]he protective berm will be reshaped with dozers as 

needed.”55 To the extent that contaminated, degraded berm material is harder to recover than 

floating oil, CPRA did not provide a plan for recovering that material. 

4. Alteration of Water, Sediment, and Salinity Flow Patterns

Commenting agencies focused on the effects the berms could have on the circulation of 

water, sediment, and salinity in the coastal environment: 

• Department of the Interior/Fish and Wildlife Service: While acknowledging that “the 

State has offered to work with [the Fish and Wildlife Service] on where the breaches [in 

the berms] should be to protect tidal inlets,” the Department expressed concern that tidal 

currents and circulation patterns “could be altered by the construction of the project” and 

requested further study of these potential impacts.56 The Fish and Wildlife Service, in 

particular, commented that “tidal inlets should not be blocked by the berm.”57

• EPA: “If this plan moves forward, the permit should be conditioned upon the applicant 

adjusting the ‘containment’ aspect of the berm to a more environmentally beneficial 

project after the risk of oil contamination has passed. In other words, return the berm to 

a more studied and beneficial ‘barrier island’ restoration project. Clearly, if the more 

extensive 80-120 mile proposal were to be advanced, EPA’s concerns about these longer 

term impacts on salinity, hydrology and sediment would greatly increase.”58

 52 EPA Comments. 53 NOAA/National Marine Fisheries Service Comments. 54 CPRA Responses. 55 Id. 56 Id. 57 U.S. Fish and Wildlife Service, LA Barrier Island Protective Berm — Digested Comments (May 17, 2010) 

(contained within Emergency Permit Documents Compilation) [hereinafter Fish and Wildlife Service Comments]. 58 EPA Comments.
9

• Louisiana Department of Wildlife and Fisheries: Asked if “borrow area excavation 

will increase wave energy and subsequent shoreline erosion, alter littoral currents, or 

otherwise impact depositional processes.”59

• NOAA/National Marine Fisheries Service: These agencies were willing to authorize

“placement of sand in front of existing islands” but not “complete closure of passes.”60 

CPRA responded that “it is not our intent to alter the hydrology of tidal passes and other 

significant water exchange points,” and that “tidal passes are critical hydrological features and 

we are not proposing these be adversely altered.”61 CPRA agreed to monitor hydrological 

impacts and to assess the effects of any deepwater reaches at the time of their construction.

62 

5. Effects of Barriers on Endangered and Other Protected Species and Habitats

The Department of Interior, its Fish and Wildlife Service, EPA, NOAA, and its National 

Marine Fisheries Service expressed concerns about the berms’ effects on endangered and other 

protected species and habitats:

• Department of the Interior/Fish and Wildlife Service: Expressed concerns about 

impacts on the habitats for the piping plover, royal tern, nesting gulls, black skimmers, 

and brown pelicans, as well as the impact on seagrasses.63

• EPA: “It is unclear what specific protective measures this project would implement to 

avoid and minimize impact to [seagrass beds] from dredged sediments and potentially oil 

that is pooled in the more sheltered regime created by berms.”64

• NOAA/National Marine Fisheries Service: Expressed concern that cross-sectional 

openings of tidal passes would have an effect on fishery resources and oyster-producing 

areas, and that tracked construction equipment could harm seagrasses.

65

The agencies sought information about how construction of the berms would affect 

particular species and their habitats. CPRA did not directly address these questions, providing 

only the general assurance that it would monitor the area to “provide baseline and with [sic] 

project information to better assess environmental effects.”66

 59 Letter from Jimmy Anthony, Louisiana Department of Wildlife and Fisheries, to Pete Serio, U.S. Army Corps of 

Engineers (May 13, 2010) (contained within Emergency Permit Documents Compilation). Note the Louisiana 

Department of Wildlife and Fisheries submitted its comment letter on May 13, two days before CPRA submitted a 

revised NOD-20 application to the Corps. 60 NOAA/National Marine Fisheries Service Comments. 61 CPRA Responses. 62 Id. 63 Interior Comments; Fish and Wildlife Service Comments. 64 EPA Comments. 65 NOAA/National Marine Fisheries Service Comments. 66 CPRA Responses.
10

6. Funneling and Entrapment of Oil

EPA, in particular, worried that, if the project were only partially completed during the 

spill, it might worsen rather than improve oil dispersal. To reduce the concerns described above 

about water, sediment, and salinity circulation, CPRA had designed the project to avoid closing

important tidal passes. But EPA argued that these passes could produce a funneling and 

entrapment effect. According to EPA, if oil were to reach partially-completed berms, the berms 

could funnel oil at higher than normal velocities into areas where tidal passes were still open. 

Oil so funneled or otherwise reaching the bayside of the berms could be trapped in that area and 

wash back onto the bayside shore of the berms and barrier islands.67 EPA recommended use of 

boom in the passes,68 which CPRA stated it included in its design.69 Building on this 

recommendation, CPRA further noted that the project would “allow for the strategic reallocation 

and concentration of boom and other oil spill reaction mechanisms in the passes.”70

* * *

In short, agency comments raised numerous concerns about the efficacy and 

environmental impacts of the berms project, some of which were addressed by CPRA, and others 

of which were not. In its Permit Evaluation and Decision Document, the Corps stated that “none 

of those agencies have submitted a formal objection to the Corps requesting that the NOD-20 

emergency permit not be issued.”71 The Department of the Interior, however, came close, 

saying: “[W]e do not think the risks inherent in proceeding without more environmental study 

and knowledge are acceptable.”72 

D. Pressure Begins to Rise

By mid-May, criticism of the Corps’ handling of the berms project had become heated. 

On May 17, Governor Jindal’s office summoned Colonel Lee to the New Orleans Louis 

Armstrong International Airport for a meeting with a contingent of state and local officials, 

including three parish presidents, the Chairman of CPRA, the Adjutant General for Louisiana, 

the Chief of Staff to Governor Jindal, and the Governor himself. The group’s message to 

Colonel Lee was clear: Approve the berms project, and do it quickly.73

The entire Louisiana congressional delegation wrote a letter on May 20 “implor[ing] [the 

Corps] to immediately approve the emergency authorization request” for the berms.74

 67 EPA Comments.

 The next 

day, Governor Jindal proclaimed “[t]here’s no reason not to go ahead and approve this permit, 

68 Id. 69 CPRA Responses. 70 Id. 71 NOD-20 Permit Decision. 72 Interior Comments. 73 See Lee Interview (Oct. 28); Press Release, Governor Jindal & Coastal Parish Leaders Meet with Army Corps of 

Engineers to Stress Importance of Approving Dredging Plan (May 17, 2010), available at

http://emergency.louisiana.gov/Releases/05172010-jindal.html. 74 See Letter from Senator Mary Landrieu et al., to Colonel Alvin Lee, U.S. Army Corps of Engineers, and Admiral 

Thad Allen, U.S. Coast Guard (May 20, 2010) (contained within Emergency Permit Documents Compilation).
11

get this done and keep this heavy oil out of the wetlands.”75 Parish President Nungesser

rhetorically asked a reporter, “How can anybody say no, after seeing this [oil in the marsh]?”76 

In a May 21 letter to President Obama, Senator David Vitter of Louisiana asked the President to 

stop the “tragic bureaucratic stranglehold” and to “make this happen now.”77 

The Louisiana Attorney General, Buddy Caldwell, entered the fray as well. On May 23, 

he sent a letter to the Corps arguing that “the federal government does not have the legal 

authority to deny a state the right to conduct such necessary emergency response actions” and 

advising the Corps that, if it did not approve the permit, “I will have no choice but to advise the 

Governor to go forward with our plans to construct the barrier islands.”78 The theory of 

Attorney General Caldwell’s legal position was that states, pursuant to the Tenth Amendment, 

retain traditional authority to conduct their own emergency efforts to prevent or mitigate 

damages to their natural resources. This authority can only be divested by the federal 

government, if at all, when Congress (1) acts pursuant to its constitutional powers to (2) clearly 

manifest its intention to preempt the states. The Attorney General argued that, even assuming 

Congress has the power to regulate barrier island construction as an oil spill response measure, 

nothing in the Clean Water Act or any other federal statute constitutes such a “clear statement” 

of congressional intent to displace state authority. According to Attorney General Caldwell, 

certain provisions of the statute evidence just the opposite — i.e., that Congress contemplated 

states exercising their emergency response power unless the President personally declares 

otherwise and takes over all response efforts.79

 75 Kirkham, Sand Barrier Faces Bureaucratic Delays, Ecological Questions. 76 Id. 77 Letter from Senator David Vitter of Louisiana, to President Barack Obama (May 21, 2010), available at

http://vitter.senate.gov/public/index.cfm?FuseAction=PressRoom.PressReleases&ContentRecord_id=bbb7cd6c00c1-83cc-6b60-c05663e719f3&Region_id=&Issue_id=. 78 See Letter from James D. “Buddy” Caldwell, Louisiana Attorney General, to Lt. General Robert L. Van Antwerp,

U.S. Army Corps of Engineers (May 23, 2010), available at http://media.nola.com/2010_gulf_oil_spill/other/buddycaldwell-letter-to-corps.pdf. 79 None of the United States Supreme Court opinions the Caldwell letter cites in support of its theory involve 

circumstances remotely similar to the Deepwater Horizon context, where federal authority is being asserted over 

state emergency dredging and placement of massive sand structures in traditional navigable waters. It is beyond

question that Congress has the authority to regulate dredging and the placement of structures in navigable waters of 

the Gulf, whether within or outside state waters. The primary case cited in the Caldwell letter involved the question 

whether federal legislation reached non-navigable isolated intrastate wetlands, which bears little in common with the 

context at hand. See Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 

159, 174 (2001). As the Caldwell letter notes, the Clean Water Act does refer to “State . . . actions” in connection 

with mitigating or preventing the threat of damage from oil discharges.” 33 U.S.C. 1321(c)(2). This provision 

allows the President, in cases where the discharge poses a threat to national public health or welfare, to direct all 

federal, state, and private response actions. Attorney General Caldwell asserts that this provision falls short of a 

“clear statement,” and that in any event the President had not exercised this authority for the Deepwater Horizon

spill. On the other hand, the provision also does not appear to preserve or even contemplate the scope of emergency 

authority Attorney General Caldwell asserts the states possess.

Overall, while it is true that nothing in the Clean Water Act specifically purports to preempt states from 

exercising their traditional emergency response action authorities to protect their natural resources, it is far from 

clear (1) what the scope of those traditional state authorities is; (2) the extent to which any such authority allows a 

state to override traditional federal powers to regulate dredging and placement of massive sand structures in 

navigable waters clearly subject to federal jurisdiction; and (3) what effect the Clean Water Act would have were the 

“clear statement” principle to apply to that context.
12

E. Corps Approves NOD-20 Application 

On May 27, the Corps approved issuance of an NOD-20 permit for a 39.5-mile, sixsegment portion of the proposed 128-mile Chandeleur/Timbalier project (but not the Isles 

Dernieres project, for which Louisiana had submitted a separate NOD-20 application on May 

18).80 The Corps had required CPRA to eliminate restoration as a purpose of the response 

project, and permitted what it considered to be the minimum work necessary to respond to the 

emergency. It identified the six reaches of the project that it approved as the most critical areas,

where the state could achieve “greater immediate benefit” with minimal environmental impact.

81 

Corps approval did not eliminate the need for statutorily-required approvals from agencies, such 

as from the Minerals Management Services for dredging, from the Fish and Wildlife Service for 

work in wildlife refuges, and from the Louisiana Department of Natural Resources for a

Louisiana Coastal Use Permit.82 To address concerns raised by commenting agencies, the permit 

included 33 special conditions relating to dredging depths, borrow site location, use of floating 

equipment, migratory species, endangered species, national wildlife refuges, essential fish 

habitat, cultural and historic resources, and water quality.83

The following timeline summarizes the Corps’ NOD-20 permitting process for the 

Louisiana berms project, from start to finish:84 

• May 11: Upon receipt of the initial CPRA NOD-20 application, the Corps began 

National Environmental Policy Act coordination with other resource agencies.

• May 12: The Corps hosted a coordination meeting in New Orleans for all of the state 

and federal agencies involved in the comment process, and notified CPRA that the 

restoration focus of the project did not qualify for NOD-20.

• May 12: The Corps hosted a teleconference with the White House Council on 

Environmental Quality, the National Incident Command, the Department of the Interior, 

and EPA to “discuss permit application [National Environmental Policy Act]

compliance,”85 as well as “the state’s proposal and the status of pre-application meetings 

between the Corps, the applicant, and other federal agencies.”86 

• May 13: The Corps began coordinating through e-mails, telephone calls, meetings, and 

written communications with federal and state agencies as necessary under federal laws 

 80 See NOD-20 Permit Decision; Presentation, New Orleans District Emergency Permit Request Action, U.S. Army 

Corps of Engineers (June 1, 2010), available at http://www.mvn.usace.army.mil/pao/MVNIPR1June2010Final.pdf

[hereinafter Corps June 1 Presentation].

81 NOD-20 Permit Decision. 82 Id. 83 Id. 84 See generally Emergency Permit Documents Compilation. 85 Permit Evaluation Timeline. 86 E-mail from White House Council on Environmental Quality to Commission Staff (Dec. 6, 2010) (on file with 

Commission staff). 
13

including the Endangered Species Act,87 National Wildlife Refuge System Improvement 

Act,88 Wilderness Act,89 Magnuson-Stevens Act,90 Marine Mammal Protection Act,91

National Historic Preservation Act,92 Section 401 of the Clean Water Act,93 and Coastal 

Zone Management Act.94

 87 Section 7 of the Endangered Species Act (16 U.S.C. § 1536) requires all federal agencies to consult with the 

National Marine Fisheries Service or the Fish and Wildlife Service when proposing an action that may affect listed 

species or their designated habitat. 16 U.S.C. § 1536(a). The Corps consulted with both of these agencies. The Fish 

and Wildlife Service approved an expedited review of the project. The typical protocol of sending a biological 

assessment to the Fish and Wildlife Service and the National Marine Fisheries Service, followed by a biological 

opinion from these two agencies, was conducted informally. The Fish and Wildlife Service and the National Marine 

Fisheries Service responded to the Corps with detailed recommendations to prevent habitat destruction for all 

endangered and threatened species in the project area, which were included in the special conditions of the permit. 

See Emergency Permit Documents Compilation. 88 In regards to the Breton National Wildlife Refuge, the Corps consulted with the Refuge Manager under the Fish 

and Wildlife Service to determine if the proposed project constituted a “compatible use” as defined by Section 5 of 

the National Wildlife Refuge System Improvement Act. A compatible use means a “wildlife-dependent recreational 

use or any other use of a refuge that, in the sound professional judgment of the Director, will not materially interfere 

with or detract from the fulfillment of the mission of the System or the purposes of the refuge.” 16 U.S.C. 

§ 668ee(1). The Fish and Wildlife Service provided the Corps with recommendations to ensure consistency with 

compatible use. Those recommendations were incorporated into the permit along with the condition to that the state 

must obtain a Special Use Permit for construction activities in Breton National Wildlife Refuge. See Emergency 

Permit Documents Compilation.

89 Federal agencies proposing to use a wilderness area are responsible for preserving the wilderness character of the 

area. 16 U.S.C. § 1133. The Fish and Wildlife Service determined the proposed project met the emergency 

exception for permitted use. See Emergency Permit Documents Compilation.

90 The Magnuson-Stevens Act (16 U.S.C. § 1801 et seq.) requires measures to conserve and enhance the habitat 

needed by fish to carry out their life cycles. The act requires the cooperation of federal and state agencies and others 

in achieving Essential Fish Habitat protection. 50 C.F.R. § 600.815. The National Marine Fisheries Service 

provided the Corps with recommendations for anticipated Essential Fish Habitat issues, which were incorporated 

into the permit. See Emergency Permit Documents Compilation.

91 Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act (16 U.S.C. § 1361 et seq.) allow the 

incidental take of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than 

commercial fishing) within a specified geographic region if certain findings are made (i.e., taking will have a 

negligible impact on the affected species or stock(s) and will not have an adverse impact on the availability of the 

species or stock(s) for subsistence uses). The Fish and Wildlife Service and the National Marine Fisheries Service 

responded to the Corps with recommendations regarding potential impact to marine mammals, which were included 

in the special conditions of the permit. See Emergency Permit Documents Compilation.

92 National Historic Preservation Act (16 U.S.C. § 470 et seq.) requires federal agencies to consult with the State 

Historic Preservation Office to determine the impacts of their projects on historic properties. 36 C.F.R. pt. 800. The 

State Historic Preservation Office did not anticipate the project to produce any issues with historic land, but the 

office recommended the Corps add special conditions to the permit requiring the permitee to contact it for 

consultation of any dredge and fill activity. The Corps also contacted the Chitimacha Tribal Director. The tribe 

discovered the proposed project might impact pre-historic tribal campsites, historic plantations forts and a historic 

cemetery. See Emergency Permit Documents Compilation.

93 Any entity that applies for a federal permit for an activity resulting in discharge to navigable waters must obtain a 

state Section 401 water quality certification to ensure the project will comply with state water quality standards. 33 

U.S.C. § 1341. The proposed Corps Section 404 permit is required to conduct a water quality certification for 

approval. The Louisiana Department of Environmental Quality issued a Water Quality Certification for the 

proposed project and this limit was added to the permit special conditions. See Emergency Permit Documents

Compilation.

94 A federal development in the coastal zone of a state must consult with the state to insure the project is consistent 

state coastal management programs. The Corps coordinated with the Louisiana Office of Coastal Management for 

authorization of construction in the coastal zone. See Emergency Permit Documents Compilation.
14

• May 13-14: Federal and state agencies provided written comments on the initial 

application.

• May 14: CPRA responded to that first round of comments and also submitted a revised 

application.

• May 15: The Corps distributed the revised application to commenting agencies.

• May 17: The Corps coordinated with the agencies by teleconference and requested 

written comments.

• May 21, 24: CPRA submitted additional information.

• May 17-26: Federal and state agencies provided comments and CPRA provided 

responses; the Corps and CPRA exchanged technical reviews.

• May 27: The Corps approved the NOD-20 application.

On June 1, Louisiana signed the NOD-20 permit acceptance and, on June 3, it forwarded this 

signed acceptance to the Corps.95

Within a sixteen-day time frame, the Corps and other agencies pored over a proposal for 

an emergency response measure of unprecedented magnitude.96 The agencies quickly provided 

the Corps with an extensive basis for reviewing the proposal.

97 The Corps also conducted its 

own internal review. CPRA had the opportunity to respond to the agencies’ comments, in some 

cases resolving the concerns by agreeing to monitoring, and in other cases disagreeing with the 

comments on merits. The Corps and CPRA maintained regular contact.

 95 Permit Evaluation Timeline. 96 Other projects approved under NOD-20 for the Deepwater Horizon response were miniscule in scale compared to 

the Louisiana berms project. No other example of emergency approval of a project of the scale and potential effect 

of the Louisiana berms project could be identified under NOD-20 or any other similar procedure. According to the 

Corps, the emergency permitting process for “Katrina Cut” at Dauphin Island, Alabama, a berms project on a much 

smaller scale, took roughly 10 days from start to finish. See Telephone Interview by Commission Staff with Craig 

Litteken, U.S. Army Corps of Engineers (Oct. 27, 2010). Publicly available Corps statistics show that during the 

Deepwater Horizon spill response, in all three Gulf of Mexico Coast Guard districts (New Orleans, Mobile, and 

Jacksonville), 92 emergency permits in total were issued. The vast majority of these permits (73) were issued in 0 to 

5 days. 13 permits were issued in 6 to 10 days. 1 permit was issued in 16-20 days (the Louisiana berms project

discussed in this paper). 2 permits were issued in 21 to 25 days, and 3 projects took 30 plus days to be permitted. 

See U.S. Army Corps of Engineers, Gulf Coast District Situation Report, Status of Emergency Permit Requests (Oct. 

28, 2010) (on file with Commission staff).

97 The Commission staff has heard that EPA officials in Washington, D.C., rather than regional and local EPA 

officials per the norm, weighed in on that agency’s comments on the NOD-20 application. Telephone Interview by 

Commission Staff with Pete Serio & Martin Mayer, U.S. Army Corps of Engineers (Oct. 27, 2010); Lee Interview

(Oct. 28, 2010); Telephone Interview by Commission Staff with Government Official (Oct. 28, 2010). The New 

Orleans-based EPA official ran all agency comments through a special assistant to the EPA Deputy Administrator. 

See Interview with Government Official.
15

In addition, the Corps and National Incident Command “were in constant contact . . . on 

the validity of the project.”98 On May 24, three days before the Corps officially approved 

Louisiana’s NOD-20 application, Colonel Lee e-mailed a draft of the permit to Admiral Allen’s 

Chief of Staff, writing: “Please have the NIC Interagency Solutions Group provide comments on 

the draft permit and Draft Environmental Assessment for the proposed barrier project.”99 “We 

wanted to cross talk with the Coast Guard so we were not getting out in front of them,” Colonel 

Lee told the Commission staff, “to make sure we were in alignment.”100 According to Colonel 

Lee, the Corps could have issued the NOD-20 permit five days earlier had it not sought to 

“align” with the National Incident Command.

101 

While coordination with the National Incident Command may have resulted in a few 

days’ delay, it appears to have been appropriate. The National Incident Command was 

conducting its own evaluation of the berms project, though against a different set of criteria 

(described below). The Corps coordinated with — although it did not take direction from — the 

National Incident Command because, as the Corps put it, the project had a “great[] potential for 

controversy” and “the scope of this event transcended many jurisdictions.”102 Indeed, “it was 

critical that communication occurred across the board in support of the comprehensive Federal 

response.”103 The Corps’ NOD-20 permit review process seems to have been diligent and 

thorough.

104

II. The National Incident Command Review

That the Corps issued a permit for a modified version of the State of Louisiana’s berms

project did not mean that construction on the approved 39.5-mile, six-segment project could 

immediately begin. The NOD-20 permit authorized Louisiana to begin construction “at its own 

expense.”105 The permit did not “address the applicability of the proposed project to the spill 

response effort, which is a decision to be made by the National Incident Commander in 

consultation with Federal On-Scene Coordinator.”106 The state needed the National Incident 

Command’s authorization “to integrate a section of the project with the federal oil spill response

— and therefore potential funding by BP, as the responsible party.”107

 98 Telephone Interview by Commission Staff with Former Aide to National Incident Commander (Nov. 2, 2010).

 The Corps had “approved 

the feasibility and environmental impacts” of the berms, but deciding whether the berms were 

99 E-mail from Colonel Alvin Lee, U.S. Army Corps of Engineers, to Mark Clark, U.S. Army Corps of Engineers & 

Captain Peter Gautier, U.S. Coast Guard (May 24, 2010) (on file with Commission staff).

100 Lee Interview (Oct. 28, 2010). 101 Id. 102 E-mail from Martin Mayer, U.S. Army Corps of Engineers, to Commission Staff (Nov. 18, 2010) (on file with 

Commission staff).

103 Id. 104 See, e.g., Interview with Government Official. 105 See Press Release, Deepwater Horizon Incident Joint Information Center, Admiral Allen Approves One Section 

of Louisiana Barrier Island Project Proposal as Part of Federal Oil Spill Response (May 27, 2010), available at

http://www.restorethegulf.gov/release/2010/05/27/admiral-allen-approves-one-section-louisiana-barrier-islandproject-proposal-part [hereinafter May 27 Release]. 106 NOD-20 Permit Decision. 107 May 27 Release.
16

“effective[] . . . in combating the oil spill” fell to Admiral Allen.

108 The NOD-20 permit process 

only included a “look at the proposed purpose” of the berms, not “a technical analysis of the 

effectiveness of” the berms as an oil spill response measure.

109 

The idea to use berms as an oil spill response measure on the scale proposed by Louisiana 

had not been contemplated in any spill response plan, or by any federal agency.

110 Of the two

applicable Coast Guard approved spill response plans for Louisiana, the Southeast Louisiana 

Area Contingency Plan only describes in general terms the small-scale use of berms in response 

to a spill,111 while the New Orleans Area Contingency Plan does not mention berms in any 

context.

112 

In an attempt to ensure a smooth federal review of this novel spill response measure, soon 

after Louisiana filed its NOD-20 permit application in mid-May, a group composed of officials 

from the White House Council on Environmental Quality and agency officials at the deputy 

secretary level determined that evaluation of the berms project would occur on two, seemingly 

separate tracks:

(1) The Corps’ review for “engineering and environmental feasibility”; and 

(2) “Once the proposal review [by the Corps] is complete, the [Federal On-Scene 

Coordinator] or the [National Incident Commander], with input from BP as the 

 108 Press Briefing by National Incident Commander (June 2, 2010), available at

http://www.restorethegulf.gov/release/2010/06/08/transcript-press-briefing-national-incident-commander-june-2-

2010 [hereinafter June 2 Transcript].

109 E-mail from Max Wilson, U.S. Army Corps of Engineers, to Commission Staff (Nov. 2, 2010). 110 CPRA has claimed that “NOAA confirms the use of sand berms for oil spills.” Presentation, Barrier Island Berm 

Meeting, State of Louisiana/CPRA (June 1, 2010), available at

http://www.lacpra.org/assets/docs/NIC_Sandbarrier_Garret_Graves_Presentation.pdf [hereinafter CPRA June 1 

Presentation]. NOAA, however, disputes this assertion. See E-mail from Christine Blackburn, National Oceanic 

and Atmospheric Administration, to Commission Staff (Dec. 1, 2010) (on file with Commission staff) (“The 

statement ‘NOAA confirms the use of sand berms for oil spills’ is not consistent with the general guidance.”). 

111 Southeast Louisiana Area Contingency Plan § 4530.8 (2003) (“Generally, sediment berms, dikes and dams will 

most often be used to protect small coastal inlets or perhaps tidal channels . . . . Dikes and dams are not practical 

when currents are great, waters are deep and waves are large. Also, beaches with abundant sand are generally the 

most suitable for building dikes and dams. Berms can be built above the active beach face to prevent oil 

contamination of high beach during spring tides.”). This description of berms from the Southeast Louisiana Plan 

seems to contemplate the use of small inlet barriers and beach berms like those constructed in Florida during the 

spill. For example, in early June, the Florida Department of Environmental Protection issued a permit to Bay 

County authorizing a small-scale sand inlet, temporary barrier at the relatively narrow Phillips inlet to Lake Powell, 

a coastal dune lake. See Florida Department of Environmental Protection Permit No. 7000010-BA (June 4, 2010), 

available at http://www.dep.state.fl.us/deepwaterhorizon/files/permits/powell_060710.pdf. In late June, the Florida 

Department of Environmental Protection issued several permits for “emergency sand dikes,” or beach berms, 

including a permit issued for Walton County authorizing 19 miles of three-foot-high beach berms. See Florida 

Department of Environmental Protection Permit No. WL-1089 E (June 25, 2010), available at

http://www.dep.state.fl.us/deepwaterhorizon/files/permits/walton_062510.pdf. The Southeast Louisiana Area 

Contingency Plan does not appear to contemplate the large offshore barrier berms constructed in Louisiana. 112 Sector New Orleans Geographic Response Plan (August 2009). But see CPRA June 1 Presentation (claiming that 

“sand berms are also pre-approved in the area contingency plan for oil spill response”).
17

responsible party, will assess the proposal’s effectiveness in mitigating oil damages 

and decide whether to go forward with the proposal.”113

In a June 2 press conference, Admiral Allen re-emphasized the distinct roles of the Corps 

and the National Incident Command in reviewing Louisiana’s novel proposal:

The Corps permits approved the feasibility and the environmental impact of the barriers 

and the berms. What they don’t establish is whether they are effective in combating the 

oil spill. Most of these projects are looked at in terms of “what is the source of the 

sand?”, “how will it be done?”, “what are the design characteristics of the berms in the 

barrier islands and what are the environmental issues associated with that?” If all of that 

is consistent with the fact there is no harm to the environment, then the Corps of 

Engineers proffers a permit back to the state which they can accept. The question of 

doing this as part of an oil spill response is novel and has never been done before. So we 

are vetting the issues associated with the proposal in terms of the effectiveness they 

would have in combating the oil spill. Because if that is the case, we can direct that to be 

done by British Petroleum and that’s a novelty issue.114

As Admiral Allen told the Commission staff, the Corps’ process was “agnostic to efficaciousness 

of berms on spill response.”115 The Corps’ decision on the berms provided a “foundation” for 

the National Incident Command,116 but the National Incident Command, not the Corps, had the 

“final call” on whether BP would fund the berms as part of the response.

117 

Colonel Lee also distinguished between the role of the Corps and the National Incident 

Command in reviewing the berms project. Recounting a conversation with CPRA Chairman 

Garret Graves, Colonel Lee wrote in a May 15 e-mail that the National Incident Command “has 

to review the project to determine if it will be approved as part of the spill response plan. I 

informed him [Mr. Graves] that we have no role in that decision making . . . .”118

Separate from assessing whether berms would effectively guard the Louisiana coastline 

from oil, Admiral Allen’s responsibilities included addressing the concerns of federal, state, and 

local leaders. The National Incident Command, as envisioned by Admiral Allen, functioned as a 

coordination and communications center that handled high-level political demands as well as

response strategy.

119 An August 10 version of the National Incident Command’s Draft Strategy 

Implementation — an evolving spill strategy blueprint — suggests that “political considerations” 

influenced the Command’s posture toward the Louisiana berms project.120

 113 NIC Decision Support Document Regarding Barrier Island Proposal Based Upon Interagency Solutions Group 

Discussion and Army Corps of Engineers NOD 20 Permit Discussions (May 17, 2010) (on file with Commission 

staff) [hereinafter May 17 Interagency Solutions Group Berms Guidance].

 The politics of 

114 See June 2 Transcript. 115 Allen Interview. 116 National Incident Commander Aide Interview (Nov. 2, 2010). 117 Allen Interview. 118 Lee E-mail (May 15, 2010). 

119 Interview with Coast Guard Admiral (Sept. 2, 2010); Interview with Coast Guard Rear Admiral (Aug. 31, 2010). 120 Draft Manuscript from National Incident Commander, NIC Strategy Implementation 42-43 (Aug. 10, 2010) (on 

file with the Commission staff) [hereinafter NIC Draft Strategy Implementation] (Under a heading entitled “Local, 
18

berms, not just the science of berms, would impact the National Incident Command’s decisionmaking.

A. Initial Opposition

As soon as CPRA filed its NOD-20 application with the Corps on May 11, berms 

emerged on the radar of the National Incident Command and Federal On-Scene Coordinator. In 

an e-mail to Federal On-Scene Coordinator Rear Admiral Mary Landry dated May 11, a Coast 

Guard captain listed Louisiana’s berms project as the first of nine “issues from yesterday”: 

“Dredging plan to create a barrier against worst case discharge oil from reaching inland marshes. 

Federal agencies ([Corps] and [Department of the Interior]) in favor; State in favor; would 

provide protection against worst case spill; would probably offset BP’s [Natural Resource 

Damage Assessment] costs; would be a significant PR boon to BP.”121 Admiral Allen publicly 

stated that he was not waiting until the Corps “produce[d] a plan that we react to; we’re trying to 

understand it, analyze it, and take a look at the interaction of those barrier islands or berms, if 

you will, in relation to how we’re trying to prosecute this oil spill.”122 

The National Incident Command and the Unified Command were initially skeptical of, if 

not opposed to, the berms project, as the following stinging e-mail from a Coast Guard officer to 

Admiral Allen’s Chief of Staff indicates: 

I think that RADM Landry is on board for those berming and diking “projects” that are 

quickly employed and that the LA National Guard has been accomplishing. The Guard 

has been taking action and the [Corps] has been approving them after the fact. Do not get 

this confused with the coastal restoration project that the state is trying to get the Federal 

government to do. My understanding is that this project will cost over $350M. I 

seriously doubt that BP would consider it. We have been working with the state to 

employ their plan as submitted by the Parish presidents . . . I guess their plan has not 

worked so now they want us to buy their dredge project that has been in process for over 

10 years as a part of the coastal restoration project? Give me a break . . . .123

 

One of Admiral Allen’s aides told the Commission staff that “[w]e all shared the belief that this 

was probably, in the long term, not something that would substantially benefit the response.”124

 

Community & Political Considerations,” noting the following: “Constituents of elected officials, including the office 

of the Governor of LA, are being pressured to respond, by any means necessary, to respond aggressively to this 

crisis. It has been purported in various correspondence that the strategic decisions made by local and state officials 

may be motivated by industries that may be benefactors of said decisions, such as local dredging and construction 

companies.”)

 

In an e-mail to Admiral Allen on May 18, Rear Admiral James Watson, who would take over for 

121 E-mail from Captain Edwin Stanton, U.S. Coast Guard, to Rear Admiral Mary Landry, U.S. Coast Guard (May 

11, 2010) (on file with Commission staff).

122 Teleconference by Admiral Thad Allen (May 21, 2010), available at

http://www.restorethegulf.gov/release/2010/05/24/teleconference-allen-may-21. 123 E-mail from Captain James Hanzalik, U.S. Coast Guard, to Captain Peter Gautier, U.S. Coast Guard (May 23, 

2010) (on file with Commission staff).

124 National Incident Commander Aide Interview (Nov. 2, 2010).
19

Rear Admiral Mary Landry as Federal On-Scene Coordinator in June, made clear that he did not 

believe the berms represented a “spill response activity.”125 

Evidence available to the Commission staff suggests that the White House Council on 

Environmental Quality had also engaged on the berms issue by mid-May,126 and that it may have 

shared the skepticism of Admiral Allen and others that the Louisiana berms were an appropriate

spill response measure.127 According to an e-mail from the Council, it “contacted academic 

scientists on May 20 to ask their views on the project.”128 One of the scientists contacted by a 

Council official on that day told the Commission staff that, according to the official, the federal 

government (presumably, the National Incident Command129) expected to notify the State of 

Louisiana that afternoon that it did not consider the berms to be an effective oil spill response 

measure.

130

B. Interagency Solutions Group Provides Feedback

The National Incident Command did not call the State of Louisiana to deny approval of

the berms project on May 20.131 Its review of the berms as an oil spill response measure moved 

ahead. 

The National Incident Command asked for feedback on berms from the Interagency 

Solutions Group, which was comprised of subject-matter experts from various federal agencies

participating in the response, including the Corps.132 Admiral Allen had established the group in 

early May to advise the National Incident Command on a host of issues — everything from 

fisheries closures, to mental health issues, to berms. 

Draft summaries of findings on the berms project show that the National Incident 

Command and the Interagency Solutions Group initially had extensive reservations about the 

project. Over a twelve day period in mid-May, the group’s perspective on the berms evolved: 

 125 E-mail from Rear Admiral James Watson, U.S. Coast Guard, to Admiral Thad Allen, U.S. Coast Guard (May 18, 

2010) (on file with Commission staff).

126 Council on Environmental Quality E-mail. 127 Non-Public E-mail from Scientist. 128 Council on Environmental Quality E-mail. 

129 Id. (When asked by the Commission staff whether “CEQ, or the NIC, or the Corps expect[ed] to notify 

Louisiana on May 20 that it did not consider the berms to be an effective spill response measure,” the Council on 

Environmental Quality responded that “[c]onsistent with the National Contingency Plan, the expectation was that 

the NIC would notify the State once it had made a determination about whether or not the project qualified as a 

response project”). 130 Non-Public E-mail from Scientist. 131 The Commission staff asked the Council on Environmental Quality why the State of Louisiana was not notified 

on May 20 that its request for approval of the berms project would be denied, as one of the scientists contacted had 

been told would occur. The Council responded that it “does not have any information by which it can answer this 

question.” Council on Environmental Quality E-mail. 132 See May 27 Release.
20

• May 13: “[T]his would be an enormous undertaking under emergency authorities of the 

Federal On-Scene Coordinator using a technique that is not a planned response technique 

and may not achieve the desired results in a sufficiently timely manner.”133

• May 17: “This paper from the NIC, as advised by the NIC Interagency Solutions 

Working Group, does not recommend this project as a spill response technique for 

multiple reasons; including fund issues, project timeliness, oil/fill material intermingling 

potential, spill response effectiveness, effort v. benefit, hurricane season impacts, and 

project durability and longevity . . . . Responders in the Unified Area Command and 

members of the NIC Interagency Solutions Group, do not find the proposal appropriate as 

an oil spill response tactic at this incident.”134

• May 19: “The NIC has monitored the progression of this proposal through the [Corps]

emergency permitting process, and with advice from an interagency expert team, has 

determined that the proposal is not appropriate for construction as a spill response 

countermeasure for several key reasons including: spill response effectiveness and 

timeliness, potential for oil and fill material intermingling during construction, project 

durability and longevity, and project cost versus per incident cap under the Oil Spill 

Liability Trust Fund.”135

• May 25: “The NIC Interagency Solutions Group (IASG) does not recommend the 

modified Louisiana berm proposal involving barrier islands around the Mississippi Delta 

as a spill response technique primarily due to the inability to construct these berms in a 

timely manner.”136

During this period, the State of Louisiana’s proposal underwent significant revisions as well. By 

May 25, most concerns about the berms seemed to have been addressed. But the National 

Incident Command and Interagency Solutions Group remained opposed to the project because 

they did not believe the berms could be constructed quickly enough to fight the Deepwater 

Horizon spill.

C. The Prototype Decision

On May 22, Admiral Allen sent the following e-mail to his Chief of Staff and the Deputy 

National Incident Commander:

 133 E-mail from Commander Tim Tobiasz, U.S. Coast Guard, to Captain Michael White, U.S. Coast Guard, Juliette 

Kayyem, Department of Homeland Security, et al. (May 13, 2010) (on file with Commission staff) (outlining “NIC 

Interagency Solutions Workgroup (IASG) 5/13 bullets”).

134 May 17 Interagency Solutions Group Berms Guidance. 135 U.S. Department of Homeland Security, Berm Construction and Spill Response (May 19, 2010) (draft 

manuscript) (on file with Commission staff).

136 U.S. Department of Homeland Security, Berm Construction and Spill Response (May 25, 2010) (on file with 

Commission staff) [hereinafter May 25 Interagency Solutions Group Berms Guidance].
21

What are the chances we could pick a couple of no brainer projects and call them 

prototypes to give us some trade space on the larger issue and give that to Jindal this 

weekend? S-1 is going down Monday.137

The Interagency Solutions Group had advised the National Incident Command that the Louisiana

berms project would not effectively fight the spill, but pressure from state and local officials was 

unyielding.

138 There was also “general extreme demand to do something.”139 A letter to the 

editor of the Baton Rouge Advocate from a retired federal health care worker in Abita Springs 

gives a flavor of what seems to have been common public sentiment in Louisiana: “Complaints 

by our governor and the local leaders and our congressional representatives continue” while the 

“plan to build miles of sand berm that will supposedly shield our coast is stalled . . . . Stop the 

whining and get it done.”140 “If there was something that we could try,” a senior Coast Guard 

officer told the Commission staff, it was “considered to be a good thing.”141 

Admiral Allen conceived of a solution: If the National Incident Command approved only 

one prototype berm segment, that gesture could potentially appease Governor Jindal and satisfy 

“the public outcry to do something”142 while not offending the consensus within the National 

Incident Command that the berms project would not aid the response. Secretary of the Interior 

Ken Salazar and Secretary of Homeland Security Janet Napolitano (“S-1”) were scheduled to 

visit the Gulf Coast on May 24.143 As Admiral Allen’s Chief of Staff put it in a subsequent email, Secretaries Salazar and Napolitano would view Admiral Allen’s prototype solution to the 

berms problem as a “big win.”144 

The berms issue had not been settled by the time Secretaries Salazar and Napolitano 

traveled to Louisiana on May 24. At a news conference in Galliano, Secretary Napolitano 

appeared to “pour[] cold water on Louisiana’s berm plan” when she said the Administration was 

looking into “alternatives that might be as effective or more effective” as berms without the 

environmental risks.145 According to one news report, Governor Jindal — standing next to 

Secretary Napolitano — “didn’t disguise his frustration.”146

 137 E-mail from Admiral Thad Allen, U.S. Coast Guard, to Captain Michael White, U.S. Coast Guard (May 22, 

2010) (on file with Commission staff). 

 “We know we have to take action 

and take matters into our own hands if we are going to win this fight to protect our coast,” 

138 As former Assistant Secretary for Intergovernmental Affairs at the Department of Homeland Security Juliette

Kayyem put it to the Commission staff, Governor Jindal was a “drumbeat” on the berms project from May 1 

onward. Telephone Interview by Commission Staff with Juliette Kayyem, U.S. Department of Homeland Security 

(Dec. 6, 2010). 

139 National Incident Commander Aide Interview (Nov. 2, 2010). 140 Letter to the Editor, La. Leaders Waste Time as Oil Spreads, The Advocate (May 28, 2010). 141 National Incident Commander Aide Interview (Nov. 2, 2010). 142 Telephone Interview by Commission Staff with Former Aide to National Incident Commander (Nov. 11, 2010). 143 E-mail from Captain Michael White, U.S. Coast Guard, to Colonel Alvin Lee, U.S. Army Corps of Engineers 

(May 22, 2010) (on file with Commission staff). 144 Id. 145 Jeffrey Ball & Jonathan Weisman, Slippery Start: U.S. Response to Spill Falters, Wall St. J. (June 16, 2010); 

Paul Rioux, Calling Gulf of Mexico Oil Spill ‘America's Problem,’ Federal Officials Say Disaster Response is 

Largest in Nation’s History, Times-Picayune (May 24, 2010); Chris Kirkham, Frustration Over Sand Barriers Boils 

in Louisiana as Federal Government Offers Few Answers, Times-Picayune (May 24, 2010). 146 Ball & Jonathan, Slippery Start: U.S. Response to Spill Falters.
22

Governor Jindal said.147 At the same news conference, Senator Vitter argued that delay in 

approving the berms project showed that President Obama “was breaking his pledge to ‘act in a 

timely manner and do whatever it takes’ to protect Louisiana and the Gulf coast.”148 At a White 

House press briefing on the afternoon of May 24, however, Admiral Allen stated: “We need to 

understand . . . that building a set of barrier islands and berms that large is going to take a very, 

very long time even by the state’s own estimate — six to nine months in some cases — and a 

significant amount of resources associated with that that might be applied elsewhere.”149 

On May 26, the Interagency Solutions Group, which had concluded the day before that it 

did “not recommend the modified Louisiana berm proposal involving barrier islands around the 

Mississippi Delta as a spill response technique primarily due to the inability to construct these 

berms in a timely manner,”150 revised its guidance: “The NIC-Interagency Solutions Group 

(IASG) recommends supporting Louisiana’s implementation of one of the reaches of Louisiana’s 

proposed berm project as a spill response prototype.”151 

On May 27, the same day the Corps proffered its NOD-20 permit, Admiral Allen 

announced a decision: The National Incident Command would approve construction of one of 

the six sand berm reaches authorized by the Corps as a prototype. The plan called for a single

berm to be constructed near Scofield Island west of the Mississippi at an estimated cost of $16 

million.

152 According to the press release, the National Incident Command balanced three major 

considerations in reaching its decision: (1) “the imperative to protect vulnerable Louisiana 

coastlines”; (2) “the need for any construction to contribute to the overall response effort”; and 

(3) “the extensive time needed to implement such a strategy.”153 Construction on the other five 

reaches approved by the Corps, not to mention the thirteen additional reaches the state wanted to 

build, would have to wait until the prototype reach had been built and analyzed. The release 

stated that, if evaluation of the one prototype berm section’s “effectiveness and environmental 

impact show a net environmental benefit, additional areas may be considered by the National 

Incident Commander as part of the oil spill response moving forward.”154 “There are a lot of 

doubts whether this is a valid oil spill response technique, given the length of construction and so 

forth,” Admiral Allen said, “[b]ut we’re not averse to attempting this as a prototype.”155

Governor Jindal praised the prototype plan but pushed for approval of the “entire plan.” 

“[H]ad we been given approval earlier, we could have built nearly 10 miles of barriers 6 feet 

 147 Id. 148 Rioux, Calling Gulf of Mexico Oil Spill ‘America's Problem,’ Federal Officials Say Disaster Response is Largest 

in Nation’s History. 149 Press Briefing by Press Secretary Robert Gibbs, Admiral Thad Allen, and Assistant to the President for Energy 

and Climate Change Carol Browner (May 24, 2010), available at http://www.whitehouse.gov/the-press-office/pressbriefing-press-secretary-robert-gibbs-admiral-thad-allen-and-assistant-presid [hereinafter May 24 Press Briefing]. 150 May 25 Interagency Solutions Group Berms Guidance. 151 U.S. Department of Homeland Security, Berm Construction and Spill Response (May 26, 2010) (draft 

manuscript) (on file with Commission staff).

152 Mark Schleifstein, Sand Berm to Protect Barataria Bay Wetlands Gets Federal OK, Times-Picayune (May 27, 

2010).

153 May 27 Release. 154 Id. 155 Schleifstein, Sand Berm To Protect Barataria Bay Wetlands Gets Federal OK.
23

high already,” he said.156 Senator Mary Landrieu of Louisiana “declared the decision by Allen 

an interim first step that needs to be followed by a federal commitment to major funding of” 

coastal restoration.157 Senator Vitter said the prototype decision showed President Obama 

“doesn’t have a clue,” and “[h]is decision on the emergency dredging barrier plan is a thinly 

veiled ‘no.’”158 “Approving 2 percent of the request and kicking the rest months down the road 

is outrageous, absolutely outrageous,” the Senator concluded.159 

One of Admiral Allen’s aides told the Commission staff that the May 27 approval of a 

prototype was an effort to “take some of the focus off of that option [i.e., the berms project] and 

look at what we knew to be decent mitigation strategies.”160 The National Incident Command 

“didn’t want to shoot the whole kitty at something we didn’t know would work.”161 It hoped that 

the prototype plan would extinguish the firestorm surrounding Louisiana’s berms proposal and 

allow responders to focus on other, more effective response measures and efforts. Replying to a 

suggestion to “establish a Coast Guard cell” to monitor the just-approved prototype project, 

Federal On-Scene Coordinator Rear Admiral Landry advised one Coast Guard officer to “[s]teer 

clear of [Coast Guard] involvement.”162

D. The Grand Isle Meeting 

The events of May 28 forced the National Incident Command to change course.

By late May, the competence and effectiveness of the federal government’s response to 

the Deepwater Horizon disaster was under assault. Polls showed that 60 percent of adults 

thought that the government was doing a poor job of handling the spill.163 On May 27, President 

Obama held his first formal news conference since the rig explosion on April 20. Responding to 

a question from an Associated Press reporter, President Obama noted that “when it comes to 

what’s happening on the surface, we’ve been much more involved in the . . . berms, in the 

skimming.”164

The next day, the President traveled to Louisiana, where he visited Port Fourchon and 

then Grand Isle.

165 A group of about a dozen elected officials including Parish President 

Nungesser,

166

 156 Id.

Governor Jindal, New Orleans Mayor Mitch Landrieu, Alabama Governor Bob 

157 Id. 158 Id.

159 Id. 160 Telephone Interview by Commission Staff with Former Aide to National Incident Commander (Nov. 9, 2010). 161 Id. 162 E-mail Exchange Between Commander Dan Lauer, Rear Admiral Mary Landry, and Admiral Thad Allen, U.S. 

Coast Guard (May 28, 2010) (on file with Commission staff). 163 Mimi Hall et al., Is Oil Spill Becoming Obama’s Katrina?, USA Today (May 27, 2010) (reporting results of 

USA Today/Gallup poll).

164 Press Conference, President Barack Obama, Gulf Oil Spill, ABC News (May 27, 2010). 165 Paul Rioux, President Barack Obama in Grand Isle After Touring Beach in Port Fourchon, Times-Picayune 

(May 28, 2010).

166 In one news account, Parish President Nungesser claimed that he had not been invited to the meeting but had

attended anyway. See Frank McCormack, Privateer Perfection, Plaquemines Gazette (June 7, 2010). One of 

Admiral Allen’s aides told the Commission staff that Parish President Nungesser had, in fact, been invited to the 
24

Riley, Florida Governor Charlie Crist, and Admiral Allen assembled around a small table in a 

cramped conference room at the Coast Guard station in Grand Isle for a two-hour private

discussion with President Obama.

167 

The President made a short opening statement. He then asked each of the elected 

officials to tell him “what they were upset about and what they wanted government to do.”168

Parish President Nungesser, sitting to President Obama’s immediate left, went first.169 

According to one witness, he was “very adamant” that the entire berms project — not just one 

prototype — should be approved.

170 Governor Jindal, sitting to Parish President Nungesser’s 

immediate left, spoke next, and also emphasized to President Obama that the “big thing were the 

berms.”171 As one news report put it, President Obama “got an earful” on the berms project from 

Governor Jindal and Parish President Nungesser.

172 

President Obama was non-committal.173 He told Governor Jindal and Parish President 

Nungesser that he needed independent validation that the berms project constituted a proper spill 

response strategy.174 He then turned to Admiral Allen and, in front of the assembled governors 

and other leaders, asked the National Incident Commander to assemble a group of experts to 

examine the berms project.175 Admiral Allen replied that this might take some time:

176 It was

the Friday afternoon before Memorial Day weekend. But President Obama pushed: “Can you do 

it next week?”177 In the words of one Coast Guard officer present at the meeting, the President 

put Admiral Allen “on the spot.”178

At a news conference directly following the Grand Isle meeting, President Obama made 

the following statement:

Admiral Allen announced yesterday, for example, that after a bunch of back-and-forth 

between State and Federal experts, he is prepared to authorize moving forward with a 

portion of the idea for a barrier island that may stop some of the oil from coming ashore.

We had an extensive conversation about this and to see whether additional steps can be 

taken on this barrier island idea. And what I told the parish president, what I told the 

Governor is that if there is an idea that can be shown to work, then we should move 

forward on it, and they deserve quick answers. But I also reminded everybody that we’ve 

 

Grand Isle meeting. See Telephone Interview by Commission Staff with Former Aide to National Incident 

Commander (Nov. 12, 2010).

167 Paul Rioux, President Barack Obama Promises No Retreat from Gulf of Mexico Oil Spill Response, TimesPicayune (May 28, 2010).

168 National Incident Commander Aide Interview (Nov. 12, 2010).

169 Id. 170 Id. 171 Id. 172 Ball & Weisman, Slippery Start: U.S. Response to Spill Falters. 173 National Incident Commander Aide Interview (Nov. 12, 2010). 174 Id. 175 Id. 176 Id. 177 Id. 178 Id.
25

got to make sure that whatever we do is actually going to work, particularly because 

we’re going to have not unlimited resources, at least not right now.179

Despite the President’s caution, Parish President Nungesser and Governor Jindal

interpreted his public and private comments as a commitment to build the berms. That night, 

Parish President Nungesser told CNN that “[t]he President committed by early next week, we 

will have an answer and I believe that he’s going to task BP. As long as it — the group agrees 

that it will protect us from the oil getting in the marshes, which everyone does.”180 Governor 

Jindal put out a press release emphasizing the President’s “promised sand-boom plan progress in 

days.”181

According to Admiral Allen, President Obama had “hamstrung” him.

182 As a result of

the Grand Isle meeting, even though the National Incident Command had received multiple 

analyses from its Interagency Solutions Group and publicly announced a decision to approve 

only one prototype berm the day before, Admiral Allen had to assemble a panel of experts to 

analyze the berms project again, and quickly. As Admiral Allen told the Commission staff, after 

the Grand Isle meeting he “was trying to give effect to [President Obama’s] commitment.”183 

Although the facts suggest that the White House Council on Environmental Quality had 

engaged on the berms issue by mid-May,

184

whether the President had been briefed on, or was 

otherwise aware of, Admiral Allen’s newly-announced prototype decision before he visited 

Grand Isle is unclear to the Commission staff.

185 It is also unclear whether the President knew 

the National Incident Command had already vetted the berms project with the Interagency 

Solutions Group when he pushed Admiral Allen to assemble a group of experts to vet the project 

again. What is clear to the staff is that the President’s Grand Isle visit would set in motion a 

chain of events that, only a few days later, led to the National Incident Command’s approval of 

all six berm reaches for which Governor Jindal and Parish President Nungesser had aggressively 

lobbied.

 179 President Barack Obama, Remarks Following a Briefing on the Oil Spill in the Gulf of Mexico and an Exchange 

With Reporters in Grand Isle, Louisiana (May 28, 2010), available at

http://www.gpoaccess.gov/presdocs/2010/DCPD-201000429.htm. 180 Transcript, Anderson Cooper 360 (May 28, 2010). 181 Press Release, Governor Jindal: President Promised Sand-Boom Plan Progress in Days, Need Swift Action (May 

28, 2010), available at http://emergency.louisiana.gov/Releases/05282010-progress.html. 182 Allen Interview. 183 Id. 184 Council on Environmental Quality E-mail. 185 The Commission staff asked the Council on Environmental Quality whether “the President was aware before his 

meeting with various elected officials at Grand Isle on May 28 that, on May 27, Admiral Allen had publicly 

announced that only one prototype berm would be approved.” The Council responded that it “does not have any 

information by which it can answer this question.” The Council further stated that none of its officials attended or 

helped brief the President for the May 28 meeting. Council on Environmental Quality E-mail. Heather Zichal, 

Deputy Assistant to the President for Energy and Climate, also told the Commission staff that she did not know 

whether the President was aware that Admiral Allen had approved only one prototype berm before the meeting at 

Grand Isle. See Interview by Commission Staff with Heather Zichal, Deputy Assistant to the President for Energy

and Climate, in Washington, D.C. (Nov. 22, 2010). 
26

E. The June 1 Summit 

To answer the questions the President posed at Grand Isle on May 28, Admiral Allen 

convened a summit at the Port of New Orleans Administration Building Auditorium on Tuesday, 

June 1 — the day after Memorial Day.

186 About 100 people were in attendance,187 including

CPRA and Corps officials, officials and scientists from various federal and state agencies, two 

full-time academics from Louisiana State University and the University of New Orleans (which 

is part of the Louisiana State University System), parish presidents, the Mayor of New Orleans, 

and Governor Jindal.188 Admiral Allen asked the assembled experts to “[d]evelop a final 

position” on four questions:

(1) “The feasibility of this intervention” (i.e., the Corps-permitted berms project); 

(2) “Whether this construction is a bona fide element of spill response and recovery”;

(3) “A recommended course of action for the remaining segments approved by the 

Corps”; and

(4) “The applicability of these decisions on other potential berm projects in areas 

threatened by the spill.”189 

According to the official National Incident Command minutes, Admiral Allen opened the 

meeting at 1:00 p.m. by “summarizing the President’s direction and the intent of the meeting to 

gather scientific and technical information relating to the spill response factors associated with 

the berm proposal.”190 He said he had committed to getting the President a recommendation on 

berms within 24 hours, and offered to “provide an open docket [on the Deepwater Horizon 

website] for twenty-four hours so that any opinions could be provided before he made a 

recommendation.”191

Admiral Allen then turned the floor over to a moderator, and spent the rest of the meeting

listening and taking notes.192 Admiral Allen, the moderator, and the panelists sat together on the 

lighted auditorium stage.193 Governor Jindal and his entourage arrived shortly after the meeting 

began, and sat in the darkened auditorium, along with most of the parish presidents, “about a 

third of the way up . . . in the middle section, pretty much all together in a row.”194

 186 Allen Interview; Summary of NIC Barrier Island Berm Meeting (June 1, 2010) [hereinafter June 1 Meeting 

Minutes]. 187 See Telephone Interview by Commission Staff with Coast Guard Official (Nov. 3, 2010). 188 June 1 Meeting Minutes. 189 Id.

190 Id.

191 Id.

192 Telephone Interview by Commission Staff with William Holt, U.S. Coast Guard (ret.) (Nov. 12, 2010); 

Telephone Interview by Commission Staff with Dr. Denise Reed, University of New Orleans (Nov. 16, 2010) 

(stating that Admiral Allen listened during the summit).

193 Reed Interview.

194 Holt Interview; E-mail to Commission Staff from William Holt, U.S. Coast Guard (ret.) (Nov. 15, 2010) (on file 

with Commission staff).
27

After Admiral Allen’s introduction, CPRA gave a presentation in support of its berms 

proposal.195 Colonel Lee of the Corps then “provided an overview of the permit process, their 

review, the conditions, and the engineering perspective.”196 

Next, a panel of academics, state officials, and federal officials addressed the “feasibility 

of intervention” — specifically, construction factors and considerations; how quickly and how 

much protection would be afforded to the marshes; and how interactions between oil, borrow

material, and fill material would be managed.197 

A second panel of academics, state officials, and federal officials tasked with examining 

“spill response bona fides” followed. This panel attempted to address how the berms compared

to other oil response techniques, whether construction would affect other response activities, and 

the benefits and impacts to other natural resources.198

Admiral Allen then put the “net benefit question” — that is, all things considered, would 

the berms be a net positive for the spill response and the environment — to both panels. 

Following is a summary of all responses recorded in the meeting minutes: 

• Dr. Denise Reed, University of New Orleans: “Keep this strategic. Elements of the 

plan are promising . . . look at the low spots in the island, and move out quickly. 

Don’t put all your eggs in one universal basket, and combine with booming and 

[skimming].”199

 

• Kyle Graham, CPRA: “Move forward on multiple fronts. Not all the answers are in 

these papers. Put together a [council] on what the dredges should do. Move the 

resources now and figure out the details.”200

• Jane Lyder, Deputy Assistant Secretary for Fish and Wildlife and Parks, 

Department of the Interior: “You have makings of a solution, but it’s not simple. 

Have people at the table to make solution, and don’t harm the system in the long 

term.” 201

• Dr. Robert Twilley, Louisiana State University: “All agree barrier system is the 

better place to fight the spill. Move forward with a strategy that makes the most 

benefit from the limited resources that we have. Lots of challenges, lots of risk. 

Consider the ratio of wetlands protected to amount filled.”202 

 195 June 1 Meeting Minutes; CPRA June 1 Presentation.

196 June 1 Meeting Minutes; Corps June 1 Presentation. 197 June 1 Meeting Minutes.

198 Id.

199 Id. 200 Id. 201 Id. 202 Id.
28

• Bruce Terrell, Chief, Corps Construction Division: “This can be done, but there 

are lots of unknowns and lots of risk. The weather is the scariest factor.”203

• Dr. Larry Robinson, NOAA: “Use pilot/incremental/adaptive management 

approach. Don’t do research, but learn from the process. Know the impacts on the 

tidal passes and water quality.”204 

• Dr. Jacquelin Michel, NOAA: “Target the low places and make it happen right 

away. The whole plan is too ambitious.”205 

• Karolien Debusschere, Louisiana Oil Spill Coordinator’s Office: “We make risk 

decisions every day with incomplete information. There is lots of local knowledge, 

use the Louisiana resources. Urge everyone not to wait forever — don’t have time to 

wait.”206

Most of the comments on the “net benefit question” seem to suggest guarded support for the 

berms project, at least in some form.

The June 1 summit finished with comments from the “political attendees.”207 Governor 

Jindal first reminded the gathering that his “push” with President Obama led to the summit and 

then emphasized that the “single criterion is yes or no. Please make BP pay . . . this will be a 

success with all six reaches.”208 Parish President Nungesser had walked out for a time, calling 

the summit a “Dog and Pony Show,”209 only to return to speak at the end of the meeting. He,

along with other parish presidents and the Mayor of New Orleans, pushed the group to approve 

the berms.210 

Finally, Admiral Allen reemphasized his commitment to providing the President with an 

answer in 24 hours, and reiterated that the group and the public could provide additional 

comments on the berms for another 24 hours.211 He closed the summit, three-and-one-half hours 

after it had begun.212 

 According to Admiral Allen’s public account of the summit, the academics and agency 

representatives argued for the need to “make sure that in constructing those barriers and berms 

that we’re not doing harm to the environment by changing the water — the direction of the tidal 

and the ocean currents and other environmental impacts.”213

 203 Id.

 The discussion, though, “focused 

on the fact that the barrier islands and berms have the potential to protect a far greater area of 

204 Id. 205 Id. 206 Id. 207 Id. 208 Id. 209 Bigad Shaban, Upset Nungesser Walks Out on Coast Guard Meeting, wwwltv.com (June 1, 2010). 210 June 1 Meeting Minutes. 211 Id. 212 Id. 213 June 2 Transcript.
29

marshland behind them.”214 Admiral Allen told the Commission staff that berms received “not a 

unanimous response but a positive response to the guidelines set by the President.”215 

Other attendees offered more blunt assessments. According to the summit moderator, 

“you could tell most of [the experts] were not keen on the idea,” but when Admiral Allen posed 

the “net benefit question” at the end of the meeting, the panelists “were tired of getting beat 

up”216 by the project’s proponents and “hedged their bets.”217 None of the panelists was willing 

to say that the berms “were going to be worse than the oil going ashore.”218

A Coast Guard officer present at the summit offered a similar assessment to the 

Commission staff. According to that officer, the experts “all said it’s pretty crummy” and 

offered no “glowing endorsements” of berms as a spill response measure.219 None of the 

experts, however, “could conclusively say that [the berms project] would cause harm to the 

environment . . . . None of them said it.”220

Dr. Denise Reed of the University of New Orleans, one of the experts on the first panel, 

told the Commission staff that the question posed was essentially “thumbs up or thumbs 

down.”221 The purpose of the summit was not to create new solutions.222 According to Dr. 

Reed, there was “no way anyone could have taken the thumbs up message out of those two 

panels,” and Admiral Allen’s summary at the end of the summit did not imply a “thumbs up.” 223 

But the absence of a “no” may have been interpreted as a “yes.”224 As Dr. Reed pointed out, the 

downsides were “a bad use of sand resources and a waste of money — but it wasn’t our money 

anyway.”225 

According to the Coast Guard official who kept the meeting minutes, while a “mixed 

message” came out of the summit, the “environmental people” “were not able to say that 

building the berms would create environmental damage.”226 That the full six-berm project

would take many months to construct227 — a fact that had been dispositive to the Interagency 

Solutions Group’s analysis — did not trump the pressure to “do something.” The National 

Incident Command appears to have interpreted the President’s guidance from May 28, fairly or 

not, to mean that the berms should be built unless experts affirmatively stated that the project 

“was a terrible thing to do.”228

 214 Id.

 This proved to be a too heavy a burden for the skeptics at the 

June 1 meeting to carry.

215 Allen Interview. 216 Holt Interview. 217 Holt Interview; see also Reed Interview. 218 Holt Interview. 

219 National Incident Commander Aide Interview (Nov. 12, 2010). 220 Id. 221 Reed Interview. 222 Id. 223 Id. 224 Id. 225 Id. 226 See Interview with Coast Guard Official. 227 See, e.g., May 24 Press Briefing. 228 National Incident Commander Aide Interview (Nov. 12, 2010).
30

 

F. Six-Segment Project Approval

A couple of hours after the berms summit ended, Admiral Allen and BP CEO Tony 

Hayward met for dinner in New Orleans.

229 According to Admiral Allen, he passed on the 

message to Mr. Hayward, over pasta and Gulf shrimp, that the full six-reach project — not just 

one prototype berm — would be approved, and that BP would be asked to pay for it.230 The 

National Incident Command could support “in concept” the six berms the Corps had permitted

because a “preponderance of opinion” at the summit was that the berms would be effective.231 

The next morning, Admiral Allen briefed “cabinet officials” on the berms project.

232 At 

2:00 p.m. on June 2, Admiral Allen held a press conference at which he stated, “we’re looking to 

try to get a decision later on today” on “the feasibility of constructing the proposed barriers and 

berms and number two, are they effective as far as this oil spill response.”233 At 4:00 p.m., 

Admiral Allen issued a short press release that gave a green light to the entire berms project

approved by the Corps — all six reaches.234

Admiral Allen told the Commission staff that, notwithstanding the President’s guidance 

at Grand Isle, “responsibility rest[ed]” with him for the approval of the Louisiana berms 

project.235 Whether Admiral Allen’s stated expectation that the National Incident Command 

would “get,” as opposed to make, a decision on the berms, coupled with his statement that he had 

briefed cabinet officials about the project on the morning of June 2, evidences Administration 

involvement in the berms decision-making is unclear. What is clear is that, in mid-May, the 

White House Council on Environmental Quality had helped determine that the Corps and the 

National Incident Command would review the Louisiana berms project on two separate tracks236

and, on May 20, the Council had contacted scientists to solicit their views on the project and 

indicated to one of those scientists that the federal government expected to notify the State of 

Louisiana shortly that it did not consider the berms to be an effective oil spill response 

measure.

237 The White House, however, described Admiral Allen as the “sole decisionmaker.”238 A White House official further said, “If you are asking if anybody from the White 

House called [Admiral Allen] and told him to green-light it, the answer is no.”239

 229 Glenn Thrush, Carville Doesn’t Regret Ripping W.H., Politico (June 2, 2010); see also Allen Interview. 230 Allen Interview. In a footnote that Admiral described to the Commission staff as “either historical or hysterical,” 

id., James Carville, “the rail-thin Democratic operative who ha[d] come to embody the growing popular disgust at 

BP and the federal government,” Thrush, Carville Doesn’t Regret Ripping W.H., coincidentally walked into the 

same restaurant and joined Admiral Allen and Mr. Hayward for a drink during their dinner, id. 231 Allen Interview; see also National Incident Commander Aide Interview (Nov. 12, 2010); Reed Interview. 232 June 2 Transcript. 233 Id. 234 See June 2 Release; Jindal: Plan to Build Sand Berms Approved, Associated Press (June 2, 2010); Mark 

Kaufman, BP Says More La. Barrier Island Berms Will Cost $360 Million, Wash. Post. (June 3, 2010). 235 Allen Interview. 236 May 17 Interagency Solutions Group Berms Guidance. 237 Council on Environmental Quality E-mail; Non-Public E-mail from Scientist. 238 Zichal Interview. The Commission staff asked the Council on Environmental Quality “[w]hat role generally did 

CEQ play in the NIC decision-making process on the berms?” The Council replied as follows: “CEQ’s role was to 

ensure that, if the NIC determined that the activity qualified as a response project, the agencies with permitting 

authority related to this proposal were providing the necessary information to the NIC. CEQ did not have a direct 
31

III. Post-Approval Developments

The day after his June 2 announcement, Admiral Allen had dinner at the Governor’s 

Mansion in Baton Rouge with Governor Jindal and Mr. Graves of CPRA, among others.240 He 

told the Governor that, in his view, the berms project was “not a clean sweep” but a “borderline 

call,” and requested that the State of Louisiana “work it out with BP.”241 

On June 4, the Federal On-Scene Coordinator sent a letter to BP stating that “the expense 

of this project is an appropriate removal cost under the Oil Pollution Act of 1990.”242 On June 7, 

BP wrote to Governor Jindal to confirm its responsibility to pay for the berms as a removal cost, 

and to state its intention to make “block payments of $60 million to the State at intervals 

reflecting incremental progress of 20% of actual completion of the project as certified by the 

chairman of the Coastal Protection and Restoration Authority of Louisiana, Garret Graves, or his 

designee.”243

BP estimated the cost of the berms to be $360 million, double the amount it had spent up 

to that point in “helping the region respond to the oil spill,” according to one source.244 The 

Corps estimated the project would cost $424 million.

245 

A. Construction Begins

The State of Louisiana awarded the contract for the berms to the Shaw Group, a

diversified Baton Rouge-based engineering, construction, and environmental services firm,246

and C.F. Bean LLC, a Plaquemines Parish-based dredging contractor.

247

 

role in the NIC decision-making process on the berms.” The staff also asked the Council whether it had “an 

understanding of why the NIC’s stance on the berms project changed between May 27 — when the NIC announced 

that only one prototype would be approved — and June 2, when the NIC approved the full six-segment berms 

project.” The Council responded, “No, but we did ensure agencies had an opportunity to weigh in on environmental 

effects.” Council on Environmental Quality E-mail.

On June 11, Governor

239 Zichal Interview. 240 E-mail from Coast Guard Officer to Commission Staff (Dec. 6, 2010) (on file with Commission staff); Allen 

Interview. 

241 Allen Interview. 242 Letter from Rear Admiral James A. Watson, U.S. Coast Guard, to Doug Suttles, BP (June 4, 2010) (on file with 

Commission staff).

243 Letter from Bob Dudley, BP, to Governor Bobby Jindal of Louisiana (June 7, 2010) (on file with Commission 

staff).

244 Kaufman, BP Says More La. Barrier Island Berms Will Cost $360 Million. 245 E-mail from William Grawe, U.S. Coast Guard, to Admiral Thad Allen, U.S. Coast Guard, et al. (June 2, 2010) 

(on file with Commission staff).

246 Shaw Group did not respond to the Commission’s repeated requests for an interview on the Louisiana berms 

project.

247 Shaw Group Wins Contract to Build Barrier Island Temporary Berms, Times-Picayune (June 4, 2010); Chris 

Kirkham, State Now Faces Hurdles in Constructing Berms, Times-Picayune (June 4, 2010). Why Louisiana did not 

include the Deltares/Van Oord group that originally proposed the Louisiana berms project in the construction 

contract is unclear. CPRA told the Commission staff that the Shaw Group offered to “front the money” for the 

project, while the Dutch group did not. See Graves Interview. Other sources have told Commission staff that the 

Jones Act indirectly blocked Dutch participation. See Non-Public Telephone Interview. Because the Dutch berms 

plan involved mobilization of the Dutch dredging fleet, the plan required a waiver of the Jones Act, a law that 
32

Jindal issued Executive Order BJ 10-11 governing access to lands necessary for the project.

248

Dredging for and construction on the six approved berm reaches began soon thereafter.

249 

The National Incident Command had estimated that the construction time for all six berm 

reaches would be six to nine months.250 As the following table illustrates, Shaw initially

estimated that five of the six berm reaches would be completed by November 1, and that the 

sixth reach would be completed by the end of November 2010:

251

Berm Segment Island Estimated Start Date Estimated End Date

E3 Curlew July 28 October 21

E4 Chandeleur June 14 November 1

W8 Shell August 21 November 28

W9 Pelican July 21 August 27

W10 Scofield August 8 September 21

W11 Sandy Point September 28 November 1

Almost from the beginning, however, delays plagued the project. During the last week of 

June, the Corps ordered a week-long halt to dredging operations in one location because sand 

was being removed from what the Corps believed to be an improper location.

252 Local officials 

sharply criticized this delay.

253 In response to an e-mail from Deputy Assistant Secretary for 

Fish and Wildlife and Parks Jane Lyder to various Louisiana officials suggesting that state and 

federal agencies should “round up volunteers” to “help lay the pipe” necessary to pump sand for 

the berms, Parish President Nungesser issued the following blistering statement:

You don’t move sediment pumping pipe with volunteers. This is the lady that Thad 

Allen and President Obama are allowing [to] hold up dredging to save our wetlands —

God help us. What planet is this lady from? In the conference today Lyder was worried 

about the pelican nesting grounds. Obviously, she hasn’t been out there to see the birds, 

covered in oil, just like the other people who make ridiculous comments. Maybe she 

 

generally prevents foreign vessels from transporting merchandise between two U.S. ports but may be waived “in the 

interest of national defense.” See 46 U.S.C. § 501(a). Although some evidence suggests that CPRA at least 

contacted the relevant federal agencies about the possibility of obtaining a Jones Act waiver for Deltares/Van Oord 

(see E-mail from Jim Sartucci, K&L Gates LLP, to Unknown Recipients (May 28, 2010) (on file with Commission 

staff)), the Shaw Group and C.F. Bean LLC represented to CPRA that the U.S. dredging fleet had the capacity to 

perform the berms project on-schedule without Dutch dredges (see Graves Interview; see also Jeffrey Ball, 

Accusations Fly in Sand-Berm Project, Wall St. J. (Oct. 12, 2010)). CPRA did not request a Jones Act waiver for 

Deltares/Van Oord. See E-mail from Melinda Jones, U.S. Coast Guard, to Commission Staff (Oct. 29, 2010) (on file 

with Commission staff).

248 See Executive Order BJ 10-11, Bobby Jindal, Governor of Louisiana (June 11, 2010), available at

http://doa.louisiana.gov/osr/other/bj10-11.htm.

249 See Shaw’s Environmental & Infrastructure Group, Shaw Barrier Berm Project – Daily Report Day 43 (July 14, 

2010), available at http://www.mvn.usace.army.mil/pao/139551-PMD-043-S.pdf (indicating that dredging began on 

June 16 and construction of one berm reach began on June 14). 250 See, e.g., E-mail from Sean Smith, Department of Homeland Security, to Juliette Kayyem, Department of 

Homeland Security, et al. (May 27, 2010) (on file with Commission staff).

251 See Shaw Daily Report Day 43. 252 See News Release, U.S. Army Corps of Engineers, Team New Orleans, State of Louisiana to Dredge From 

Approved Borrow Location (June 24, 2010), available at http://www.mvn.usace.army.mil/news/view.asp?ID=351. 253 See Paul Quinlan, La., Obama Admin Square Off Over Sand Barriers, Greenwire (June 24, 2010).
33

should go sailing on a yacht in England with Tony Hayward, it would be a great place to 

send her on vacation. I’ll pay her way.

254

The week after this Corps-ordered shutdown, Hurricane Alex forced another construction delay

of a few days.

255

By the time BP capped the well on July 15 — day 44 of construction — Shaw estimated 

that it had completed ten percent of one reach, representing 7.32 percent of total dredging and 

less than six percent of the total project as approved in the emergency permit.256

As construction continued, the efficacy and impacts of the berms became the subject of 

criticism by the scientific community. The Horizon-Science and Engineering Review Team, 

created in May to advise CPRA on a variety of response-related issues, expressed concerns about 

environmental risks associated with the project. Certain members of this advisory group felt 

their concerns were ignored.257 Later in July, a large group of private and academic coastal 

scientists sent an open letter to Admiral Allen criticizing the berms: “It is time to put a halt to 

the numerous coastal engineering projects that are both underway and planned as a response to 

the Deepwater Horizon spill. In summary, these projects will do little, if any, good. At the same 

time, they have a great potential to change the nature of the Gulf Coast in ways that have not 

been investigated and are likely to be more harmful than helpful.”258

B. The Barataria Rock Dikes

In July, the controversy over the offshore barrier berms project briefly subsided, but, as 

the Times-Picayune put it, “another showdown is in full force over a proposal to build rock dams 

near Grand Isle to stop the Gulf oil spill from reaching deep into Barataria Bay.”259

The use of small-scale inlet barriers as a relatively low-cost spill response measure with 

limited environmental impact appears to have been contemplated in the Southeast Louisiana 

Area Contingency Plan.

260 The Corps had approved several small-scale inlet barriers made of 

sand bags261 or sheet piling262

 254 Nungesser Dredge Statement (June 23, 2010), available at https://secure.systememerge.com/preview-8503-

41dc19a1.html.

to close shoreline breaches caused by prior storms and to protect 

255 See, e.g., Amy Wold, Sand Berms Partially Political, The Advocate (July 11, 2010); Serio & Mayer Interview. 256 See Shaw’s Environmental & Infrastructure Group, Shaw Barrier Berm Project – Daily Report Day 44 (July 15, 

2010), available at http://www.mvn.usace.army.mil/pao/139551-PMD-044-S.pdf. 257 Wold, Sand Berms Partially Political; Telephone Interview by Commission Staff with Scientist (Oct. 20, 2010); 

Telephone Interview by Commission Staff with Scientist (Oct. 29, 2010). 

258 Erik Stokstad, Scientists to Thad Allen: Stop ‘Massive Re-Engineering’ of Gulf Coast, Sci. Insider (July 21, 

2010).

259 See Chris Kirkham, Jindal, Jefferson Parish Officials Keep Pushing Jetty Project Despite Scientists’ Concerns, 

Times-Picayune (July 7, 2010). 260 See supra note 111. 261 See Letter from Pete Serio, U.S. Army Corps of Engineers, to Jerome Zeringue, Louisiana Dept. of Natural 

Resources (May 14, 2010), available at http://www.mvn.usace.army.mil/pao/May%2014,%202010-Permit.pdf. 262 Letter from Pete Serio, Army Corps of Engineers, to Rebecca Broussard, Vermilion Parish Office of Homeland 

Security & Emergency Preparedness (June 25, 2010), available at

http://www.mvn.usace.army.mil/pao/DEEPWATER%20HORIZON%202010-1442-WB.pdf.
34

inland wetlands and marshes. But in early June, Jefferson Parish requested an NOD-20 permit 

for an inlet barrier on a grander scale — a two-mile-long barrier to protect Barataria Bay from oil 

intrusion.

263 The proposal called for 100,000 tons of rock to close several major inlets.264 The 

Shaw Group, the contractor for the offshore sand berms, would lead the construction effort.

265

Governor Jindal and Parish President Nungesser pushed the Corps to approve the 

Barataria Bay rock dikes. On June 30, for example, Parish President Nungesser e-mailed 

Colonel Lee: “The [Corps] has still not approved the emergency rock permit for [Barataria Bay]. 

Please approve the emergency permit for the rocks immediately.”266 EPA, NOAA, and an 

independent group of scientists, however, expressed concerns about substantial adverse 

environmental impacts — in particular, tidal modification risks — from the project.

267 On July 

3, the Corps denied Jefferson a permit on those grounds as well as for insufficient plans for 

mitigation, restoration, and safety.268 State and local officials were “outraged.” 269 Governor 

Jindal’s spokesman said, “Only a government bureaucrat would say rocks are more harmful to 

our water and marshes than oil. The Corps took weeks to review the plan only to reject it today 

— and this denial is another unfortunate example of the federal government’s lack of urgency in

this war to protect our coast.”270 But the Corps held its ground.271

 263 See Richard Rainey, Corps Denies Jefferson Parish’s Requests to Use Rocks to Block Oil from Barataria Bay, 

Times-Picayune (July 3, 2010); John Collins Rudolf, Louisiana and Scientists Spar Over How to Stop Oil, N.Y. 

Times (July 6, 2010); Mark Strassman, The Fight Over Keeping Oil Out of Barataria Bay, CBS News (July 7, 

2010), http://www.cbsnews.com/stories/2010/07/07/eveningnews/main6655784.shtml. 264 Rudolf, Louisiana and Scientists Spar Over How to Stop Oil. 265 See Kirkham, Jindal, Jefferson Parish Officials Keep Pushing Jetty Project Despite Scientists’ Concerns. 266 E-mail from Billy Nungesser, Plaquemines Parish President, to Colonel Alvin Lee, U.S. Army Corps of 

Engineers (June 30, 2010) (contained within Barataria Barrier NOD-20 Permit Application Documents Compilation, 

available at http://www.mvn.usace.army.mil/pao/jprdstatuspacketjuly3.pdf ). 267 Id. 268 See Letter from Colonel Alvin Lee, U.S. Army Corps of Engineers, to Marnie Winter, Jefferson Parish, 

Department of Environmental Affairs (July 3, 2010), available at

http://images.bimedia.net/images/070310corps.jpg.

269 See Scott Satchfield, Denial of Rock Barrier Plan Sparks Outrage, WWLTV.com (July 4, 2010), 

http://www.wwltv.com/news/gulf-oil-spill/Corps-denies-plan-to-build-rock-barrier-to-protect-Barataria-basin--

97740669.html.

270 Id. 271 At Dauphin Island in Alabama, the Mobile District of the Corps issued an emergency permit for a rock inlet 

barrier to close the “Katrina Cut,” a 7,300 foot (1.4 mile) gap created by Hurricane Katrina in that barrier island. 

See Compilation of Dauphin Island Application, U.S. Army Corps of Engineers (July 6, 2010), available at

http://www.sam.usace.army.mil/pa/permits/SAM-2010-00822-JBE.pdf. The gap in the island was an inlet only in 

the sense that it allowed water to flow between the open Gulf and the open bay — i.e., it was not an inlet into a dune 

lake or estuarine wetland. Id. Agencies and scientists raised concerns about the project’s environmental impacts 

(see Ryan Dezember, Massive Berm Project Goes up on Dauphin Island, Draws Criticism, Press-Register (July 20, 

2010)), but on June 9, the Corps approved the Katrina Cut barrier. Mobile, Alabama-based Thompson Engineering 

received the $13 million construction contract. Casandra Andrews, Dauphin Island ‘Katrina Cut’ Project 

Progressing Even Though Deepwater Horizon Oil Well is Plugged, Press-Register (Sept. 11, 2010). By midAugust, a month after the Macondo well had been capped, the project “[wa]sn’t even half completed.” Editorial, 

Let’s Pause to Rethink the Katrina Cut Project, Press-Register (Aug. 18, 2010). The Corps expects the project to be 

completed in early January 2011. E-mail to Commission Staff from Craig Litteken, U.S. Army Corps of Engineers 

(Dec. 14, 2010) (on file with Commission staff). Alabama or Thompson will have to request a standard construction 

permit or remove the barrier by June 9. See Katherine Sayre, Dauphin Island’s Katrina Cut Could be Filled by 

Thanksgiving Week, Press-Register (Nov. 12, 2010); see also Litteken Interview. 
35

C. CPRA Applies for a Standard Permit

Focus turned back to the state’s offshore barrier berms. Because the Corps’ NOD-20 

permit had only a 30-day lifespan, on July 1, CPRA submitted an application to the Corps for a 

standard permit covering its Chandeleur/Timbalier berms project.

272 The application sought 

approval to complete the six reaches approved in the emergency permit and to construct the 

remaining thirteen reaches specified, but not approved, in the state’s revised emergency 

application of May 15. The total length of the project would be 101 miles. The Corps issued a 

public notice soliciting comments on the standard permit application and initiating inter-agency 

coordination procedures under applicable federal statutes, including the Endangered Species Act

and the Magnuson-Stevens Act.273

Five days after CPRA applied for a permanent permit for the Chandeleur/Timbalier 

project, the Corps notified CPRA that it had denied the NOD-20 permit application for the Isles 

Dernieres berms west of the river (which had been submitted on May 18).

274 The principal 

reason the Corps gave for this denial was greater tide-energy dynamics than in the areas where it 

had approved berm construction.

275

The intense debate over the already-permitted portion of the state’s berms project

continued, as the Corps began to receive written comments on the standard permit application.

276 

On August 18, the Fish and Wildlife Service submitted comments stating: “Any large-scale 

threat to the Louisiana coast from the Deepwater Horizon oil will likely have dissipated long 

before the completion of the berm barrier project . . . . In light of the fact that much of the oil is 

dissipating and it is highly unlikely that the berm can be constructed within a time frame that will 

meet the stated objective (i.e., trapping oil), the Service questions the need for continuation of 

the barrier berm project.”277 Also on August 18, BP submitted a comment letter contending that 

“the reasonably foreseeable benefits of the Proposed Berms are substantially outweighed by the 

detriments, and that the application to construct the berms should be denied because it does not 

meet applicable legal requirements,” namely, “the project does not meet the criteria for an 

emergency exemption from [the National Environmental Policy Act] because it is not ‘necessary 

to control the immediate impacts’ of the Deepwater Horizon incident.”278

 272 See Joint Public Notice, U.S. Army Corps of Engineers, New Orleans District, and State of Louisiana, 

Department of Environmental Quality, Construction of a Barrier Berm Within St. Bernard, Plaquemines & Jefferson 

Parishes, Louisiana (July 19, 2010), available at

http://www.mvn.usace.army.mil/ops/regulatory/pdf/Barrier%20Berm%202010-1066%20PN.pdf .

 Other agencies, as 

273 See id. 274 See Letter from Colonel Alvin Lee, U.S. Army Corps of Engineers, to Kristi Cantu, Coastal Protection and 

Restoration Authority of Louisiana (July 6, 2010), available at

http://www.mvn.usace.army.mil/pao/Isles%20Dernieres%20Packet.pdf. 275 Id. 276 A compilation of comments for CPRA’s standard permit application is available at 

http://media.2theadvocate.com/documents/BERMS+Agency+Comments+compressed.pdf [hereinafter Standard 

Permit Comments Compilation].

277 Id. 278 Id.
36

well as outside scientists and academics, expressed similar doubts about the need for continued 

construction on the berms project.

279

Although, by September, the Macondo well had long since been capped, CPRA argued 

that the remnants of subsurface oil in the Gulf, in plumes or in bottom layers, continued to 

threaten the coast. Berms “may be our only line of defense against submerged oil,” Governor 

Jindal said in early September.280 According to the governor, berms could guard the coastline 

from “about 1 million barrels [that] could be unseen under the water’s surface.”281 Mr. Graves 

similarly pointed to estimates that three million barrels of oil could still be in the Gulf as 

justification for the berms in an interview with the Commission staff.282 

On September 7, EPA provided the Corps its comments on the state’s standard permit 

application.283 First, it questioned the berms as an oil response strategy, noting that the berms 

had “received only light oiling.”284 Second, it expressed concern about environmental impacts, 

including problems for sea turtles, birds, seagrass beds, navigation, water quality, and the natural 

flow of sediment along the coast.

285 EPA said it would be willing to work with the Corps and 

the state toward a proposal more consistent with barrier island restoration.286

CPRA responded to EPA’s letter with sharp criticism. Mr. Graves said opponents of the 

berms “have very, very little understanding” and described concerns about ecological impacts as 

“irresponsible.”287 According to Mr. Graves, “some [of] the heaviest oiling on Louisiana’s 

coast” had occurred on the berms.

288 Mr. Graves also argued that birds had been attracted to the 

berms, which “appear to actually increase bird habitat.”289

On September 16, the Corps submitted a letter to CPRA summarizing its standard permit 

processing and review steps to date.290 The letter summarized the comments of four resource 

agencies — NOAA, EPA, the Fish and Wildlife Service, and the Louisiana Department of 

Wildlife and Fisheries — from late August and early September, and informed CPRA of the 

following:

• The project required inter-agency consultation with NOAA under Section 7 of the 

Endangered Species Act for several listed species.

 279 See id.; see also U.S. Geological Survey, Effects of Building a Sand Barrier Berm to Mitigate the Effects of the 

Deepwater Horizon Spill on Louisiana Marshes, available at http://pubs.usgs.gov/of/2010/1108/. 280 Mark Ballard & Amy Wold, Berm Controversy Rises, The Advocate (Sept. 5, 2010). 281 Id. 282 Graves Interview. 283 See Letter from Miguel Flores, Environmental Protection Agency, to Colonel Edward Fleming, U.S. Army Corps 

of Engineers (Sept. 7, 2010) (contained within Standard Permit Comments Compilation). 

284 Id. EPA’s letter did not provide substantiation for its “light oiling” description. See id. 285 Id. 286 Id. 287 See Ballard & Wold, Berm Controversy Rises. 288 See Cain Burdeau, EPA: Louisiana’s Sand Berms Not Stopping Much Oil, Associated Press (Sept. 10, 2010).

289 Id.

290 Letter from Pete Serio, Army Corps of Engineers, to Charlie Hess, Louisiana Office of Coastal Protection and 

Restoration (Sept. 16, 2010), available at

http://media.2theadvocate.com/documents/Corps+Berm+Letter+0916+2010.pdf.
37

• The project required evaluation with NOAA of impacts to Essential Fish Habitat under 

the Magnuson-Stevens Act.

• A full environmental impact statement under the National Environmental Policy Act

would likely be necessary, and the Corps would compile this statement through a third 

party contractor process paid for by the applicant.

• Given that the spill had stopped and that responders had not recovered any significant 

amount of oil in over a month, and given the strong objections to the project by NOAA, 

EPA, the Fish and Wildlife Service, and a number of commenters from the environmental 

and academic communities, CPRA should provide a detailed discussion defending the 

purpose of and need for the project.

The letter gave CPRA seven days to notify the Corps if it wished to continue seeking a standard 

permit for the six reaches authorized under the NOD-20 emergency permit and for the other 

thirteen reaches proposed by the state but not authorized by the Corps.

By the time of the Corps’ request — day 107 of construction — 20.4 percent of the linear 

feet of one reach (E4) and 67.4 percent of another reach (W9) had been completed, representing 

just over fourteen percent of the total linear feet of the six reaches approved by the NOD-20 

emergency permit.

291 Reports were that over $120 million, or one-third of the $360 million cost 

estimate, had been spent.292 CPRA estimated that 700 barrels had been recovered from the 

berms on the west side of the Mississippi River and 1,500 pounds of oil and debris had been 

recovered from the east side berms,293 and, later, that at least 1,000 barrels of oil in total had 

been collected by the berms.

294 

On October 4, CPRA sent a letter to the Corps requesting an extension of the NOD-20 

permit with respect to the six segments authorized on May 27, but not the other thirteen reaches 

contemplated in the application for a standard permit.295

 291 Shaw’s Environmental & Infrastructure Group, Shaw Barrier Berm Project – Daily Report Day 107 (Sept. 16, 

2010), available at http://www.mvn.usace.army.mil/pao/139551-PMD-107-S.pdf.

 CPRA also altered its original proposal 

for the six permitted reaches, allowing for gaps between the six segments that would reduce the 

292 See Robert Travis Scott, Construction of Sand Berms Continues on Louisiana Coast, Times-Picayune (Aug. 5, 

2010).

293 Mark Ballard, EPA Opposes La. Berms, The Advocate (Sept. 9, 2010); John Maginnis, Louisiana’s Sand Berms 

Challenged, Times-Picayune (Sept. 15, 2010). Note that, according to the federal government’s Oil Budget 

Calculator, with “no estimates . . . of the percentage of oil in [] debris . . . it is not possible to give a reliable estimate 

of this amount. Based upon past spills, the oil content of collected debris mass is only a few percent.” Federal 

Interagency Solutions Group, Oil Budget Calculator Science and Engineering Team, Oil Budget Calculator, 

Deepwater Horizon, Technical Documentation 34 (Nov. 2010), available at

http://www.restorethegulf.gov/sites/default/files/documents/pdf/OilBudgetCalc_Full_HQ-Print_111110.pdf

[hereinafter Oil Budget Calculator]. Note also that CPRA’s estimates for the amount of oil collected by the berms 

presumably do not account for any oil that may have infiltrated the berm sands.

294 See Interview with Louisiana Official (Sept. 22, 2010) (“We estimated that we had over 1,000 barrels of oil 

collected by the berms.”). 

295 Letter from Steve Mathies, Louisiana Office of Coastal Protection and Restoration, to Pete Serio, U.S. Army 

Corps of Engineers (Oct. 4, 2010) (on file with Commission staff).
38

total number of miles built from the originally-permitted 39.5 to 25 miles, according to the 

Corps.296 Other sources stated that, following the October 4 revisions, only 22 miles of berms 

would be built.

297

Three days later, the Corps responded to CPRA with a letter requesting a revised 

application for a standard permit “that exclusively show[s] the footprint and scope of the 

modified project” — that is, a new standard permit application including “only the [six] reaches 

you intend to construct and complete.”298 CPRA submitted a revised standard permit application 

to the Corps on October 26.299

 

 

D. Pivot From Response to Restoration

Although the State of Louisiana continued to defend berms as an oil spill response 

mechanism, state officials did not hide their view that the berms would benefit future coastal 

restoration efforts. In early September, for example, Mr. Graves argued that, because pipes and 

dredges were already in place, the cost of pivoting the berms from response to restoration “would 

be less now than reorganizing down the road.”300 As Mr. Graves described it, “the plan would 

be to fill in the areas behind the berms to create a marsh, which would serve as a platform for the 

additional vegetation and other restoration that would help build up the barrier islands.”301 

On November 1, Governor Jindal announced an agreement with BP to commit “up to 

$100 million of the remaining berm funds . . . to support the long-term restoration and 

sustainability of Louisiana’s barrier islands.”302 Five months into construction, “10 miles of 

sand berm have been built and two more berms segments (W8 and W10) are scheduled to be 

completed within the next two weeks.”303 Louisiana has shifted the purpose of its berms, on 

which BP has spent approximately $220 million, from response to coastal restoration, which will 

require “transforming the rapidly built berms into permanent barrier islands that can withstand

the strong storms and tides of coastal Louisiana.”304 Specifically, the response-to-restoration 

pivot will involve “fortifying” the berms by dredging and pumping “sand on both the front and 

back sides of the berms and vegetation to support the long-term restoration and sustainability of 

Louisiana’s barrier islands.”305

 296 E-mail from Pete Serio, U.S. Army Corps of Engineers, to Commission Staff (Oct. 27, 2010) (on file with 

Commission staff).

 The governor’s November 1 press release also indicated that 

Louisiana had not given up on the berms as an oil spill response measure: “[F]ortifying these 

sand berms for oil protection by building them into barrier islands is especially important now 

that today (Nov. 1) marks the end of the hurricane season and there is time to strengthen these 

297 John Collins Rudolf, Louisiana Builds Barriers Even as Oil Disperses, N.Y. Times (Oct. 21, 2010).

298 Letter from Pete Serio, U.S. Army Corps of Engineers, to Steve Mathies, Louisiana Office of Coastal Protection 

and Restoration (Oct. 7, 2010) (on file with Commission staff).

299 Telephone Interview by Commission Staff with Pete Serio, U.S. Army Corps of Engineers (Nov. 16, 2010). 300 Ballard & Wold, Berm Controversy Rises. 301 Id. 302 Nov. 1 Release; see also Ball, Accusations Fly in Sand-Berm Project. 303 Nov. 1 Release. 304 John Collins Rudolf, Louisiana Rethinks Its Sand Berms, N.Y. Times (Nov. 4, 2010). 305 Nov. 1 Release.
39

berm projects to protect Louisiana against the threat of submerged oil before the next hurricane 

season.”306 

According to the Corps, as of early December, the state is winding down construction on 

the berms project under the current spill response design.

307 Once construction ceases, the Corps 

will make a determination on CPRA’s standard permit application for the berms completed at 

that point.308 CPRA will have to apply separately for standard permits for the berm reaches it 

wishes to transition from oil spill response to coastal restoration.309 Of the $140 million in 

remaining BP funds, $40 million will be used to complete work on the Chandeleur Islands berms 

segment (E-4) east of the Mississippi, and $100 million will go toward the restoration of at least 

two barrier islands west of the Mississippi310 — Scofield Island (the location of the W-10 berm 

segment, and the proposed location of Admiral Allen’s prototype) and Pelican Island (the

location of the W-9 berm segment).311

IV. Conclusions 

It is not within the purview of the Commission staff to judge, let alone claim to know 

with certainty, the motives of the various actors in the Deepwater Horizon spill response. It is, 

however, within the staff’s charge in support of the Commission’s investigation to evaluate the 

efficacy of different aspects of the spill response and to draw lessons that will improve future 

responses. With these boundaries in mind, the staff believes that the story of the Louisiana 

berms project supports the following conclusions. 

A. The Louisiana berms were not a success.

With the benefit of hindsight, the evidence available to the Commission staff suggests the 

Louisiana berms were not an effective spill response measure. In his book Leadership and 

Crisis, Governor Jindal claims that berms “proved to be one of the most effective protection 

measures . . . . Indeed, time and time again, [berms] stopped the oil that got past the skimmers 

and boom.”312 Similarly, appearing recently on Meet the Press, Governor Jindal argued “[t]he 

sand berms were a great success.”313 We disagree. From a long-term coastal restoration 

perspective, the berms may indeed be a “significant step forward,”314 as Governor Jindal has 

claimed, but they were not successful for oil spill response. 

 306 Id. 307 E-mail from Pete Serio, U.S. Army Corps of Engineers, to Commission Staff (Dec. 7, 2010) (on file with 

Commission staff). 308 Serio Interview. 309 Id. 310 Mark Schleifstein, At Least Two Barrier Islands to Be Rebuilt with $100 million in BP Money, Times-Picayune 

(Dec. 8, 2010). 

311 As of December 7, 2010, the State of Louisiana had submitted a permit application for its response-to-restoration 

project at Scofield Island, but not for its Pelican Island restoration project. Serio E-mail (Dec. 7, 2010). 312 Bobby Jindal, Leadership and Crisis 6 (2010). 313 Meet the Press Transcript (Nov. 21, 2010), available at

http://www.msnbc.msn.com/id/40276017/ns/meet_the_press-transcripts/. 314 Id.
40

The Louisiana berms project does not survive a rigorous cost-benefit analysis, even 

without taking yet unquantified environmental impacts into account. The value of the berms as 

an oil spill response measure depends on how much oil they trapped. Estimates vary, and no 

precise figures are available, but no estimates of how much oil the berms captured are much 

greater than 1,000 total barrels.

315 In comparison, according to peer-reviewed government 

estimates released in November, burning, skimming, and chemical dispersion addressed a total 

of between 890,000 and 1.85 million barrels spilled from the Macondo well.

316 To be sure, had 

the berms been constructed sooner and more extensively, had weather and other factors pushed 

more oil toward the Louisiana coast, had other response measures been less effective, and had 

the spill lasted longer, perhaps the berms would have trapped more oil. But not much more than

1,000 barrels, in the context of a spill in which nearly five million barrels of oil were released,

and approximately four million barrels entered the ocean, is a miniscule amount by any measure. 

On the cost side of the equation, according to the state, as of November 1, five months 

after the Corps and National Incident Command approved the project, “10 miles of sand berm 

have been built and two more berms segments . . . are scheduled to be completed within the next 

two weeks” at a cost of about $220 million.317 To put this dollar figure in perspective, according 

to BP’s estimates, it has paid approximately $581 million to the federal government, $65 million 

to Florida, $62 million to Alabama, $77 million to Mississippi, and $293 million (including the 

cost of the berms) to Louisiana for “response and removal.”318 BP’s expenditure on berms is 

about three times greater than its expenditures for all other response and removal activities in 

Louisiana.319 The $220 million BP has spent on the berms to date, along with the additional 

$140 million BP has committed to the project, represents about one-third of the total amount BP 

has paid to the federal government and the states for oil response and removal in the Gulf of 

Mexico.320

Admittedly, the cost-benefit question is to some extent inapposite to an emergency 

response effort where some measures are designed to respond to worst-case contingencies. And 

the cost-benefit equation is certainly different for the State of Louisiana, which does not have to 

pay for the berms. From the perspective of the Commission staff, however, $220 million for a 

spill response measure that trapped not much more than 1,000 barrels of oil is not a compelling 

cost-benefit tradeoff. 

B. Berms like the Louisiana project are not a viable oil spill response measure.

More generally, evidence available to the Commission staff reveals two main concerns 

that counsel against employing offshore barrier berms as a spill response measure in the future.

 315 See supra notes 293-94; see also Meet the Press Transcript (Nov. 21, 2010) (Governor Jindal stating “[w]e’ve 

collected thousands of pounds of oily debris off these berms”) and Oil Budget Calculator at 34. 316 See Oil Budget Calculator at 39. 317 Nov. 1 Release. 318 BP Claims and Government Payments Gulf of Mexico Oil Spill Public Report (Dec. 9, 2010), available at

http://www.bp.com/liveassets/bp_internet/globalbp/globalbp_uk_english/incident_response/STAGING/local_assets/

downloads_pdfs/Public_Report_12.9.10.pdf. 319 See id. 320 See Nov. 1 Release.
41

First and foremost, the length of time and cost to build only a fraction of the proposed 

project shows that, even with advance planning and preparation, and rapid review of proposed 

actions, it is unlikely that offshore barrier berms could ever be constructed to any effective scale 

during an emergency. In late May, a few weeks after CPRA filed its initial permit application 

with the Corps, Governor Jindal complained that “[w]e could have built 10 miles of sand [berms] 

already if [the feds] would have approved our permit when we originally requested it.”321 But by

November 1, five months after the Corps and National Incident Command had approved the 

project, only ten miles of berms had been constructed.

322 While there were unforeseen delays, 

even the rosiest construction time frame estimates plainly stated that five of the six berm reaches 

would not be completed until November 1 and the sixth reach would not be completed until the 

end of November, months after a relief well would have stopped the flow of oil.

323 Indeed, by 

the time the well was capped, less than six percent of the berms project had been completed.324 

If the pace of construction for the Louisiana berms is even within the general range of what can 

be expected for similar projects in the future, offshore barrier berms cannot be constructed 

quickly enough to protect coastlines from oil spills.

To the extent that construction of offshore barrier berms continues after a spill ends, to 

guard against residual oil intrusion or lingering subsurface plumes, the design of such berms as 

“sacrificial” poses similar concerns. To ensure that the berms do not degrade for however long 

the threat of oil remains latent (to the extent that can even be determined), the berms would have 

to be: (1) designed to be permanent, which would slow down construction and thus reduce 

effectiveness during the emergency active spill phase; (2) constantly maintained in a sacrificial

state for as long as the residual oil threat persists; or (3) built initially as sacrificial structures and 

later converted to permanent structures. Under any of these scenarios, there are serious questions 

about whether offshore barrier berms could ever be constructed in time to be effective, especially 

since, as EPA argued, partial construction during the emergency period could result in oil 

washing onto the bayside shore of the berms and barrier islands, making matters worse from an 

environmental perspective.

325

Second, as a response measure, offshore barrier berms may exceed the capacity of oil 

spill planning and emergency response infrastructure to adequately assess feasibility and 

environmental impacts. The marine environments within which berms projects would be located 

are highly variable and dynamic, limiting the opportunity for advance planning and complicating 

design and execution at the time of an emergency. Sources of sand shift; existing barrier islands 

and other coastal features evolve; tidal and weather conditions change. Any plan for rapid 

construction of offshore barrier berms would have to be continually revised. Moreover, different 

locations for the emergency placement of berms can involve vastly different environmental 

impacts from dredging and filling. Conditions along the Gulf Coast, in particular, vary widely 

and are in constant flux. Many of the environmental impact questions asked of the Louisiana

berms thus would potentially need to be asked, researched, and answered anew a few years 

 321 Padgett, Dredge, Baby, Dredge (some brackets in original). 322 Nov. 1 Release; see also Meet the Press Transcript (Nov. 21, 2010) (Governor Jindal stating “[w]e’ve now built 

over 12 miles”).

323 See Shaw Daily Report Day 43. 324 See Shaw Daily Report Day 44. 325 EPA Comments.
42

hence even for a project in the same location, and even more so for a project in a different 

location. There is also the underlying concern that appropriate sand and sediment is at a 

premium in some marine environments, particularly off the Louisiana coast. Consequently, there 

may not be enough borrow material in appropriate dredging locations to complete a project in a 

timely fashion, and the use of what material there is may severely affect the ecological integrity 

of the dredged areas.

In short, massive offshore barrier berms are not a viable oil spill response measure.

There is little evidence to suggest that the concerns summarized above could be resolved for 

such a project in the future, particularly one in the Gulf of Mexico, given the inherent limits of

construction feasibility and time, and the significant constraints on acquiring knowledge 

necessary for sound design and impact assessment. 

C. The Grand Isle meeting set in motion a chain of events that led to approval of 

the six-segment berms project.

The Louisiana berms project stands out as the most expensive and perhaps most 

controversial response measure deployed during the Deepwater Horizon spill. Louisiana’s

request to build massive offshore sand barriers to guard its coastline from approaching oil was 

unprecedented. The State of Louisiana championed this project, and the Corps and the National 

Incident Command decided to approve it, in the context of intense political pressure and public 

attention, not to mention a dangerous and constantly-evolving emergency situation. Any effort 

to evaluate actions by the State of Louisiana, the Corps, the National Incident Command, or the 

White House must recognize that these actions occurred not in a vacuum but during the response 

to an oil spill of epic proportions.

The Commission staff can comfortably conclude that the decision to green-light the 

underwhelmingly effective, overwhelmingly expensive Louisiana berms project was flawed. But 

whether it was flawed at the time, or only flawed in retrospect, with the benefit of hindsight, is 

not a question this paper seeks to answer. That said, based on over two dozen interviews with 

knowledgeable government officials and many key contemporaneous documents, the staff can

offer a few observations on the decision-making process surrounding the Louisiana berms:

First, the Corps’ review was not only “cautious and deliberate,”326

 326 NIC Draft Strategy Implementation.

but also as expeditious 

as could reasonably be expected given the scale, complexity, and potential impacts of the berms. 

State and local pressure surrounding the project did not unduly influence the Corps. Although it 

would probably be naïve to conclude that the intense interest from Louisiana elected officials, 

the public outcry to “do something,” and the unprecedented circumstances surrounding the 

Deepwater Horizon disaster had no influence on the Corps’ process, none of the many sources

interviewed by the Commission staff have said anything to contradict the Corps’ insistence that 

its decision was not politically motivated. The Corps refused the Louisiana berms project as 

originally submitted because it constituted a coastal restoration project exceeding the scope of 

NOD-20 authority. The portion of the berms project that the Corps did permit under NOD-20 

constituted a much scaled-back version of what the state had requested. And the Corps refused 
43

to permit the Barataria Bay rock dikes,

327 despite loud complaints from the State of Louisiana 

and local officials. Corps officials involved in review of the berms project told the Commission 

staff that they felt political pressure but were not affected by it, and the staff has seen no 

evidence to suggest that the Corps’ decision-making was anything other than “objective.”328

That the Corps and National Incident Command ran parallel, but connected, review 

processes did slow the Corps’ review. The Corps would have issued the NOD-20 permit five 

days sooner but for coordination with the National Incident Command, as Colonel Lee told the 

Commission staff.329 This procedural issue aside, the evidence available to the staff indicates

that the Corps did not take direction from the National Incident Command. For example, on 

Saturday, May 22, Admiral Allen’s Chief of Staff sent Colonel Lee an e-mail in which he 

seemed to request that the Corps immediately permit one or two prototype berm segments: “If 

there’s any chance we can point out a section or two to Gov[ernor] Jindal in advance of 

Secretary Napolitano or Secretary Salazar’s visit Monday, we could have a big win. The rest of 

the permitting process may still be a challenge, but it’s something.”330 The Corps did proffer a 

permit for all six berm reaches requested by CPRA — but not for another five days. Although 

the Corps’ process may not have been wholly independent of the National Incident Command’s, 

the Commission staff has learned nothing to suggest that the Command influenced the Corps’ 

substantive decision-making. Considering the magnitude of the berms project and the “abutting 

of jurisdictions”331 of the Corps and the National Incident Command, it seems entirely 

appropriate that the two entities maintained contact. 

Second, the National Incident Command green-lighted the berms project in response to

the concerns of federal, state, and local leaders. The decision did not result from a conviction

that berms were an effective oil spill response measure worthy of their cost. Admiral Allen 

intended for the National Incident Command to shield front-line personnel from the politics of 

the response. In analyzing whether the berms would be effective, the National Incident 

Command sought to balance science with the demands of elected officials. Ultimately, pressure 

to build the berms overwhelmed the analysis. The Command tried to keep the Interagency 

Solutions Group “immune”332 from non-scientific considerations, but the Group does not seem 

to have been fully insulated. Despite its initial opposition to the berms project, it fell in line with 

the prototype idea conceived by Admiral Allen. Although many of the experts at the hastilyorganized berms summit on June 1 were independent and objective, as one scientist in 

attendance put it, “politics got ahead of the science.”333

 327 Dr. Denise Reed of the University of New Orleans, one of the panelists at the June 1 science summit, told the 

Commission staff that when the Corps turned down the Barataria dike project “that gave me some faith in the 

process.” See Reed Interview.

 None of the assembled experts, speaking

before the Louisiana politicians who had campaigned aggressively for the project, affirmatively 

opposed the berms. A “preponderance of opinion” at the summit suggested the berms “might not 

328 National Incident Commander Aide Interview (Nov. 2, 2010).

329 Lee Interview (Oct. 28, 2010). 330 White E-mail. 331 NIC Draft Strategy Implementation. 332 Kayyem Interview. 333 Reed Interview.
44

be a terrible thing to do.”334 As a result of the surrounding context, the bar for approval of the 

project was set low, and the State of Louisiana cleared it.

Third, although the White House has told the Commission staff that Admiral Allen was 

the “sole decision-maker”335 on the berms project, we believe the facts show that the White 

House influenced the National Incident Command’s June 2 decision. The June 1 summit arose 

from the exchange between President Obama, Governor Jindal, Parish President Nungesser, and 

Admiral Allen at Grand Isle. The day before the Grand Isle meeting, Admiral Allen had 

announced a decision to approve only one $16 million prototype berm. But on May 28, sitting 

around a conference room table at the Grand Isle Coast Guard station, Governor Jindal and 

Parish President Nungesser gave President Obama an “earful”336 on the berms. President Obama 

then put Admiral Allen “on the spot”337 to quickly organize a meeting of experts to analyze the 

project — which the Interagency Solutions Group had already analyzed and mostly rejected. 

The request from the President “hamstrung”338 the Admiral, forcing him to re-open the berms 

debate. The summit took place a few days later, and the day after the summit the National 

Incident Command announced that it would approve the full six-segment project. 

When asked for an explanation of the National Incident Command’s about-face, a White 

House official told the Commission staff simply that the response to the spill was “dynamic.”339 

No doubt, the spill response evolved on a day-to-day basis, but this broad truism does not explain 

why the National Incident Command’s stance on the berms project changed dramatically in a 

matter of days. We do not doubt Admiral Allen’s statement that responsibility for the decision 

rested with him.

340 We do, however, believe the facts show that the President’s “direction”341 to 

Admiral Allen at Grand Isle set off a chain of events that led to the National Incident 

Command’s approval of the full six-segment project — six days after it had made a very 

different decision.

During spills of national significance, there will always be understandable pressures to 

provide as many resources as possible for response and coastal protection, and a wide variety of 

opinions and suggestions about the best way to deploy those resources. One way to address 

these demands is to consider as many spill response options as possible ahead of time and set 

guidelines in advance — which is why this Draft Staff Working Paper proposes establishing that 

offshore barrier berms are not a viable response measure. During a major event, however, novel

and costly proposals like Louisiana’s berms project will inevitably emerge. Consistent with his 

responsibilities as National Incident Commander, Admiral Allen tried to balance expert advice 

with the concerns of leaders in Washington and Louisiana. For the future, the Commission may 

wish to recommend use of an independent process or group — perhaps separated from the 

National Incident Command — to provide decision-makers with a rigorous, scientific analysis of

 334 Allen Interview; National Incident Commander Aide Interview (Nov. 12, 2010). 335 Zichal Interview. 336 Ball & Weisman, Slippery Start: U.S. Response to Spill Falters. 337 National Incident Commander Aide Interview (Nov. 12, 2010). 338 Allen Interview. 339 Zichal Interview. 340 Allen Interview. 341 June 1 Meeting Minutes. 
45

the effectiveness of large-scale and previously unstudied spill response measures like the 

Louisiana berms project.