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S. HRG. 112–951 

STATUS OF THE DEEPWATER HORIZON 

NATURAL RESOURCE DAMAGE ASSESSMENT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WATER AND WILDLIFE 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

JUNE 28, 2011 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.fdsys.gov 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

THOMAS R. CARPER, Delaware 

FRANK R. LAUTENBERG, New Jersey 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

TOM UDALL, New Mexico 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

JAMES M. INHOFE, Oklahoma 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

JEFF SESSIONS, Alabama 

MIKE CRAPO, Idaho 

LAMAR ALEXANDER, Tennessee 

MIKE JOHANNS, Nebraska 

JOHN BOOZMAN, Arkansas 

BETTINA POIRIER, Majority Staff Director and Chief Counsel 

RUTH VAN MARK, Minority Staff Director 

SUBCOMMITTEE ON WATER AND WILDLIFE

BENJAMIN L. CARDIN, Maryland, Chairman 

MAX BAUCUS, Montana 

FRANK R. LAUTENBERG, New Jersey 

SHELDON WHITEHOUSE, Rhode Island 

TOM UDALL, New Mexico 

KIRSTEN GILLIBRAND, New York 

BARBARA BOXER, California, (ex officio) 

JEFF SESSIONS, Alabama, Ranking Member 

JOHN BARRASSO, Wyoming 

DAVID VITTER, Louisiana 

MIKE CRAPO, Idaho 

LAMAR ALEXANDER, Tennessee 

JAMES M. INHOFE, Oklahoma, (ex officio) 

(III) 

C O N T E N T S 

Page 

JUNE 28, 2011 

OPENING STATEMENTS 

Cardin, Hon. Benjamin, U.S. Senator from the State of Maryland .................... 1 

Sessions, Hon. Jeff, U.S. Senator from the State of Alabama ............................. 4 

Vitter, Hon. David, U.S. Senator from the State of Louisiana ............................ 6 

Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode Island ......... 44 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma, prepared 

statement .............................................................................................................. 136 

WITNESSES 

Dohner, Cynthia, Regional Director, Southeast Region, U.S. Fish and Wildlife 

Service ................................................................................................................... 8 

Prepared statement .......................................................................................... 11 

Responses to additional questions from: 

Senator Cardin .......................................................................................... 17 

Senator Vitter ............................................................................................ 21 

Penn, Tony, Deputy Chief, Assessment and Restoration Division, Office of 

Response and Restoration, National Oceanic and Atmospheric Administration, U.S. Department of Commerce ................................................................... 24 

Prepared statement .......................................................................................... 26 

Responses to additional questions from: 

Senator Cardin .......................................................................................... 34 

Senator Vitter ............................................................................................ 39 

Boesch, Donald, Professor of Marine Science and President of the University 

of Maryland Center for Environmental Science, Member of the National 

Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling ... 49 

Prepared statement .......................................................................................... 52 

Leinen, Margaret, Vice-Chair, Gulf of Mexico Research Initiative Review 

Board; Executive Director, Harbor Branch Oceanographic Institute; Associate Provost for Marine and Environmental Initiatives, Florida Atlantic 

University ............................................................................................................. 58 

Prepared statement .......................................................................................... 60 

Rifkin, Erik, Interim Executive Director, National Aquarium Conservation 

Center, National Aquarium ................................................................................. 63 

Prepared statement .......................................................................................... 65 

Graves, Garret, Chair, Coastal Protection and Restoration Authority ............... 98 

Prepared statement .......................................................................................... 101 

Responses to additional questions from: 

Senator Cardin .......................................................................................... 109 

Senator Vitter ............................................................................................ 112 

Shattuck, R. Cooper, Chairman, Executive Committee, NRDA Trustee Council, Legal Adviser to Governor Bentley ............................................................... 119 

Prepared statement .......................................................................................... 122 

ADDITIONAL MATERIAL 

Statement of Northwest Florida Tourist Development Council Coalition .......... 137 

(1) 

STATUS OF THE DEEPWATER HORIZON 

NATURAL RESOURCE DAMAGE ASSESSMENT 

TUESDAY, JUNE 28, 2011 

U.S. SENATE 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Subcommittee on Water and Wildlife 

Washington, DC. 

The subcommittee met, pursuant to notice, at 10 a.m. in room 

406, Dirksen Senate Office Building, Hon. Benjamin Cardin (chairman of the subcommittee) presiding. 

Present: Senators Cardin, Sessions, Vitter and Whitehouse. 

OPENING STATEMENT OF HON. BENJAMIN CARDIN, 

U.S. SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. Good morning, everyone. 

The Subcommittee on Water and Wildlife of the Environment 

and Public Works Committee is holding this hearing in order to followup on our responsibilities on the oversight of the damage caused 

by the explosion of Deepwater Horizon. 

I want to thank Senator Sessions for his cooperation in arranging 

for this hearing. I think it is an important part of our continuing 

oversight responsibility. 

On April 20th of last year, the offshore drilling rig Deepwater 

Horizon exploded, triggering the largest accidental marine oil spill 

in history. Oil gushed from the well for 87 days, releasing 4.9 million barrels of oil. That is almost 20 times the Exxon Valdez oil 

spill. 

The catastrophe claimed 11 lives and left thousands of others in 

turmoil across Louisiana, Texas, Mississippi, Alabama and Florida. 

The spill has been referred to as the worst environmental disaster 

in the United States. With oil covering over 3,000 miles of ocean, 

impacts on water and wildlife are substantial. Oil contamination 

killed thousands of birds, in addition to many mammals and sea 

turtles. Those who depend on the region’s natural resources for 

livelihoods were also impacted. 

As Chairman of this Subcommittee I visited the Gulf and saw 

first-hand the devastation and devastating environmental and economic impacts of the oil disaster. But what I witnessed was the beginning. Long-term impacts on the Gulf waters continue to emerge. 

Under Federal law, BP and its partners are liable for the catastrophic damages caused by the Deepwater Horizon. While the 

statutory limit for the spill is only $75 million, BP has agreed to 

pay in full and has already committed $1 billion in advance for the 

restoration projects. 

2 

The natural resources damage assessment, NRDA, is the legal 

process by which the Federal and State agencies identify impacts 

on natural resources, how to best restore them, and the costs for 

achieving restoration. Since the NRDA process determines the 

scale and means of restoration efforts, it is critical that it is done 

right. 

The Water and Wildlife Subcommittee has responsibility for 

overseeing the NRDA process to ensure that it is accurate, thorough, transparent and fully accounts for the short-and long-term 

effects of the spill. My colleagues and I are committed to doing everything we can to right the wrong that has happened in the Gulf. 

Last year, we initiated oversight hearing by conducting an initial 

hearing assessing the NRDA process for the Deepwater Horizon 

spill. We listened to experts from the field who provided invaluable 

information about the NRDA efforts. Experts shared lessons from 

the previous spill cleanups, suggesting how to maximize process effectiveness and concerns over obstacles to a successful assessment. 

But evaluating impact of oil and hazardous substances on the 

Gulf’s complex ecosystem is no simple task. The process can take 

years. We come together 1 year later with access to more comprehensive information and a better idea of the true impacts of this 

devastating accident from the severe and potentially chronic damage to marine life and local fishing economies, to the loss of tourism dollars due to damaged coastal environment. 

Today’s hearing is intended to ensure that the Deepwater Horizon NRDA process is being conducted as accurately and thoroughly 

as possible, and will result in a settlement that fully restores the 

damage that the Gulf region has suffered from this devastating 

spill. 

Specifically, we will be examining where the assessment process 

currently stands and hear about some of the damage findings to 

date, learning how damage assessment is taking into account longterm damage effects that may only become evident after a financial 

settlement is reached and understanding whether the assessment 

process is effectively engaging the public and providing transparent 

information to the affected communities. 

In the weeks following the spill, the President instituted a commission of national experts to study the spill’s response and to recommend concrete improvements to various government responses, 

including the damage assessment process. That commission noted 

that the Deepwater Horizon spill as a uniquely destructive spill of 

national significance and requires a uniquely thorough government 

response. 

The commission has made numerous recommendations to assure 

the effective and appropriate coordination of the hosts of Federal 

agencies, State governments and others impacted by a spill of this 

magnitude. Specifically, the commission recommended the appointment of independent scientific auditors to oversee the damage assessment process. They recommended a course of transparency and 

public engagement in the data-sharing and restoration planning 

and they have recommended that human public health impacts be 

explicitly included in this response. 

So today, we will hear from a series of witnesses, starting with 

our government panel, and then from people from the private secVerDate Aug 31 2005 11:50 Apr 07, 2017 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\21155.TXT VERN
3 

tor to see how well we are complying with the warnings that have 

been given to us and whether we are using best science; whether 

we have put together the transparency necessary to make sure that 

we have public confidence that we are doing what is right; making 

sure that we not only take care of the known damages now, but 

that we also understand there may be further damage that comes 

to our attention, that the restoration plans take that into consideration. 

I want to thank all the witnesses for participating today and I 

look forward to your testimony. 

And with that, let me turn to Senator Sessions. 

[The prepared statement of Senator Cardin follows:] 

STATEMENT OF HON. BENJAMIN L. CARDIN, U.S. SENATOR

FROM THE STATE OF MARYLAND

On April 20th of last year, the offshore drilling rig Deepwater Horizon exploded, 

triggering the largest accidental marine oil spill in history. Oil gushed from the well 

for 87 days, releasing 4.9 million barrels of oil. That is almost 20 times the Exxon 

Valdez oil spill. 

The catastrophe claimed 11 lives and left thousands of others in turmoil across 

Louisiana, Texas, Mississippi, Alabama and Florida. 

The spill has been referred to as the ‘‘worst environmental disaster the US has 

faced.’’ With oil covering over 3,000 miles of oceans, impacts on water and wildlife 

are substantial. 

Oil contamination killed thousands of birds in addition to many mammals and sea 

turtles. Those who depend on the region’s natural resources for their livelihoods 

were also impacted. 

As Chairman of this Subcommittee, I visited the Gulf and saw first-hand the devastating environmental and economic impacts of this oil disaster. But what I witnessed was only the beginning. Long-term impacts on the Gulf waters continue to 

emerge. 

Under Federal Law, BP and its partners are liable for the catastrophic damages 

caused by the Deepwater Horizon spill. While the statutory liability cap for the spill 

is a mere $75 million, BP has agreed to pay in full, and has already committed $1 

billion in advance for restoration projects. 

The Natural Resource Damage Assessment is the legal process by which Federal 

and State agencies identify impacts on natural resources, how to best restore them, 

and the costs for achieving restoration. 

Since the NRDA process determines the scale and means of restoration efforts, 

it is critical that it is done right. The Water and Wildlife Subcommittee has responsibility for overseeing the NRDA process to ensure that it is accurate, thorough, 

transparent, and fully accounts for short-and long-term effects of the spill. 

My colleagues and I are committed to doing everything we can to right the wrongs 

that have happened to the Gulf. Last year, we initiated oversight efforts by conducting an initial hearing assessing the NRDA process for the Deepwater Horizon 

spill. We listened to experts from the field, who provided invaluable information 

about the NRDA effort. Experts shared lessons from previous spill clean-ups, suggestions for how to maximize process effectiveness, and concerns over obstacles to 

a successful assessment. 

But evaluating impacts of oil and hazardous substance on the Gulf’s complex ecosystems is no simple task. The process can take years. We come together 1 year 

later with access to more comprehensive information and a better idea of the true 

impacts of this devastating accident, from the severe and potentially chronic damage 

to marine life and local fishing economies to the loss of tourism dollars due to damaged coastal environments. 

Today’s hearing is intended to ensure that the Deepwater Horizon NRDA process 

is being conducted as accurately and thoroughly as possible, and that it results in 

a settlement that fully restores the damage that the Gulf region has suffered from 

this devastating spill. Specifically, we will be: 

• examining where the assessment process currently stands, and hearing about 

some of the damage findings to date; 

• learning how damage assessment is taking into account long-term damage effects that may only become evident after a financial settlement is reached; and 

4 

• understanding whether the assessment process is effectively engaging the public 

and providing transparent information to affected communities. 

In the weeks following the spill, the President instituted a commission of national 

experts to study the spill response and to recommend concrete improvements to various government responses, including the damage assessment process. That Commission noted that the Deepwater Horizon spill, as a uniquely destructive ‘‘spill of 

national significance,’’ requires a uniquely thorough government response. 

The Commission made a number of recommendations to ensure the effective and 

appropriate coordination of the host of Federal agencies, State governments, and 

others impacted by a spill of this magnitude. Specifically, the Commission recommended the appointment of an independent scientific auditor to oversee the damage assessment process. They recommended a course of transparency and public engagement in the data-sharing and restoration planning. And they recommended 

that human public health impacts be explicitly included in the response efforts. 

Today, we will hear from a key architect of those recommendations. He will give 

us his understanding of whether and to what extent those recommendations have 

been implemented in the Deepwater Horizon damage assessment, and how what affect that might have on the settlement and the ultimate recovery of the Gulf region. 

We will use the Commission’s recommendations to help us evaluate the NRDA 

process. 

• How are the trustees handling the damage assessment of this event of ‘‘national 

significance’’? 

• Do we need an independent science board in the future for spills of national significance? 

• Is the current process sufficiently transparent; 

• Are public health concerns being incorporated; and 

• Is the public being engaged? 

We will also hear from NRDA trustees, from both the Federal Government and 

the states. They will present information about the status of the assessment to date, 

including reporting on what initial field data are showing about damage to various 

ecosystems and habitats. They will be able to tell us how the NRDA trustees are 

accounting for long-term damages, which may not yet be evident in research studies 

to date, but which could show up in the months and even years to come. They will 

give us a sense of any restoration planning that has taken place to date, and whether the public is being effectively engaged in the process. They will also be able to 

give us a sense of how the BP’s participation in the damage assessment is impacting 

the effectiveness of the research and planning. 

We cannot undo the damage that has been done. But through the natural resource damage assessment and subsequent restoration efforts, we can employ best 

practices to minimize impacts and ensure an effective, thorough restoration. 

We will do everything in our power to ensure that this process is of the highest 

quality and that it ultimately results in a settlement that fully repairs all of the 

damages the Gulf region has suffered due to this tragic spill. I want to thank our 

witnesses for joining us today to assist us in our efforts to clean up the Gulf, and 

to provide hope for people living throughout the Gulf region that their environment 

and way of life will soon be restored. 

OPENING STATEMENT OF HON. JEFF SESSIONS, 

U.S. SENATOR FROM THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Senator Cardin. I appreciate your 

leadership and efforts to stay on top of the NRDA process. I do believe it is important and thank you for doing that. 

I know Senator Vitter, I know how many hours he spent working 

on this bill, as I did, and how it impacted our States. And we appreciate you bringing this forward. 

During the last year Deepwater Horizon incident, more than 200 

million gallons of oil spilled into the Gulf, 20-times the volume, as 

you said, Mr. Chairman, of that released during Exxon Valdez. 

Much of that was dispersed through chemical dispersants. The Gulf 

waters are warmer and microbes helped remove more than it did 

in the cold waters of Alaska. But we don’t know yet the full impact 

that all of that will have on our system environmentally. 

5 

For a season, the incident spoiled miles of beautiful beaches 

along the Gulf Coast, dissuaded tourists from frequenting the area, 

and caused great economic loss to the region’s seafood industry. 

Maybe I would show, Mr. Chairman, two photographs that give a 

feel for our area on the Alabama Gulf Coast. We were really hammered in the tourist industry. Can you hold that up? 

This is the condition of the public beaches where people live and 

go for recreation. They have been cleaned very well. BP people are 

still there. If some oil comes up, they will clean it up promptly. 

Now, this chart is at the wildlife refuge area on the beach. And 

under the Fish and Wildlife Service, they are uneasy about using 

equipment to clean it up for environmental reasons. It may have 

to be cleaned by hand. But this is an area that is not the public 

beaches, but it is an area of environmental significance. So it shows 

sort of what it would be like had they not been cleaned up. And 

I do believe that issue has got to be confronted. We need to have 

an effective relationship with the Fish and Wildlife people to determine how to clean that up. 

So the tourism industry is rebounding, but we need to look at the 

long-range natural resource impact of the spill and the losses associated with that impact. The natural resources damages assessment NRDA process will play a critical part in restoring the Gulf 

Coast. Federal, State, tribal and local governmental stakeholders, 

the NRDA Trustees, are engaged in the assessment of damage to 

the natural resources, including the beaches, fishery, the wildlife, 

water and other resources. And it takes a look at the losses that 

have occurred. 

In Alabama alone, commercial fishing, seafood processing and re- lated industries accounted for some $1 billion in annual revenues 

before the spill. As we know, the spill caused that industry to essentially shut down for months. Unfortunately for shrimpers, it 

was in the most critical months of the season, May through October; 40 percent of Alabama’s waters were closed to fishing. Shrimp 

landings decreased by 50 percent to 60 percent in 2010 compared 

to 2009. One recent study found that oyster beds would in the Gulf 

Coast would take up to 10 years to recover. That is a significant 

thing and we would like to know more about that and the meaning 

of that report. 

During the oil spill, around 28,000 sea turtle eggs were moved 

from the turtle nests along the Gulf shores and beaches. It may be 

decades before we know the impact of that. We have tried to preserve the turtle population and the people on the beach have been 

doing that for years voluntarily. They watch them and protect 

them in any way possible. 

So we have had a number of problems. The $1 billion that has 

been put forth by BP at this point is a good step, as you noted. But 

the final tally of natural resource damages relating to the spill is 

likely to require billions more. 

So I am glad that we have the representatives of the NRDA 

Trustee Council here with us, including Alabamian Cooper 

Shattuck, and I will more formally introduce him on the second 

panel. 

Thank you, Mr. Chairman. I look forward to hearing the testimony. 

6 

Senator CARDIN. Thank you, Senator Sessions. 

I had the chance to visit the coast with Senator Vitter, and I appreciated his leadership on our Committee in keeping us informed 

as to the conditions in the Gulf. 

Senator Vitter. 

OPENING STATEMENT OF HON. DAVID VITTER, 

U.S. SENATOR FROM THE STATE OF LOUISIANA 

Senator VITTER. Thank you, Mr. Chairman, and thank you for 

that visit and all of your work. And thanks to Senator Sessions. We 

obviously partnered a lot during this tragedy and the followup, as 

well as with our other Gulf colleagues. Thank you for this hearing. 

It is certainly very important. 

I would also like to personally thank Garret Graves. He is on the 

second panel. He is here today as a trustee to Louisiana’s restoration efforts, a former member of my staff and a long-time staffer 

with the Louisiana delegation, now serving as the Chair of the 

Coastal Protection and Restoration Authority of Louisiana. 

As we are all aware, the Deepwater Horizon disaster was a grave 

disaster, starting with the loss of 11 lives, 11 of our fellow Americans, hard-working contributing members of society who left this 

world far too soon. 

The incident also resulted in the largest oil spill in history, period; an incident that pummeled the Gulf Coast and left significant 

environmental and economic damage, which is an ongoing challenge. 

About a year ago, I was able to work with several of my colleagues to secure funding for a National Academies of Science 

study to review the best methodology for ascertaining the consequences of the BP spill and to make recommendations to the 

Trustees for assessing the entire universe of environmental impacts. So I very much look forward to hearing all of the panelists’ 

thoughts about this NAS work. 

To say that the work of the NRDA Trustees is important would 

be an enormous understatement, for Louisiana coastal restoration 

has been an ongoing challenge. It will be one through my lifetime 

and beyond my lifetime. Over the last 80 years, 1,900 square miles 

of wetlands have been lost through coastal erosion. The BP spill exacerbated the habitat challenges for our fisheries and wildlife, but 

it also provides a significant opportunity to restore much of the 

Gulf and make critical investment counteracting this very grave 

trend. And the NRDA Trustees are at the forefront of that opportunity. 

Finally, Mr. Chairman, I just want to underscore four key points. 

No. 1, one of the Federal responses to this tragedy by the Administration was to issue a moratorium on domestic energy production 

in the Gulf that continues to be a real permitting and economic 

challenge for the Gulf more than a year later. Production there will 

fall well below what it should have been over the next year. Unemployment as a direct result of this and the Interior Department’s 

mismanagement of permitting is way too high. 

It would be a far smarter economic decision, in my mind, to rectify these issues to get the Gulf and America back to work, rather 

7 

than, for instance, selling off part of the Strategic Petroleum Reserve. 

No. 2, the Interior Department’s idle iron guidance may well be 

a step backward for Gulf fisheries habitat, and I think we need to 

look at that carefully. States like Louisiana and Texas have been 

very supportive of strong rigs-to-reefs programs, and I believe even 

California has recently taken steps to protect critical marine habitat built through artificial reefs around this infrastructure. When 

we are trying to recover the fisheries in the Gulf, I really don’t 

think it will be helpful to mandate removing, in many cases, premier fish habitats that have become home to a plethora of marine 

wildlife. 

No. 3, we absolutely need to figure out a way to speed up this 

NRDA process. The idea that investment in restoration could take 

upwards of a decade is really unacceptable. We need to figure out 

to get BP to more quickly sign off on assessment review and funding. The initial $1 billion that Senator Sessions mentioned was a 

good step, but the continued leverage BP has on the process needs 

further scrutiny. And I would suggest we look at my bill that I 

have joined with others on, S. 662, also cosponsored by my Louisiana colleague Mary Landrieu, which would require a further significant down payment on NRDA liability. 

And fourth and finally, I continue to work closely with all of my 

Gulf colleagues, certainly including Senator Sessions, to direct the 

fines under the Clean Water Act for this disaster to the impacted 

area in the Gulf. It remains appropriate that at least 80 percent 

of those fines levied on BP go toward restoring the Gulf and Gulf 

State economies. And I look forward to continuing to work with 

Chairman Boxer and this Committee in particular to move that 

bill. And I believe a markup is being scheduled for the week we return from the July 4th recess. 

Thank you very much, Mr. Chairman. 

[The prepared statement of Senator Vitter follows:] 

STATEMENT OF HON. DAVID VITTER, U.S. SENATOR

FROM THE STATE OF LOUISIANA

Thank you Chairman Boxer and Ranking Member Inhofe for holding this hearing 

today on assessing the status of early restoration and the Natural Resources Damages Assessment (NRDA) process. 

I would personally like to thank Garret Graves, who is here today as a trustee 

to Louisiana’s restoration efforts, a former member of my staff, and a long time 

staffer in the Louisiana delegation and now serving as the chair of the Coastal Protection and Restoration Authority of Louisiana. 

As we are all aware, the disaster at Deepwater Horizon was a grave tragedy that 

took the lives of 11 of our fellow Americans. These were hard working contributing 

members of our society who left this world far too soon. 

The incident also resulted in the largest oil spill in history. An incident that pummeled the Gulf Coast and left significant environmental and economic damages that 

remain an ongoing challenge. 

Approximately a year ago I was able to work with several of my colleagues to secure funding for a National Academies of Science (NAS) study to review the best 

methodologies for ascertaining the consequences of the BP spill and to make recommendations to the Trustees for assessing the entire universe of environmental 

impacts. I look forward to hearing the panel’s thoughts on the NAS work. 

To say that the work of the NRDA Trustees is important would be a huge understatement. Coastal restoration in Louisiana will be an ongoing challenge to extend 

well beyond my lifetime. Over the last 80 years 1900 square miles of wetlands have 

eroded or been lost. The BP spill has exacerbated the habitat challenges for our fisheries and wildlife, but also provides a significant opportunity to restore much of the 

8 

Gulf and make critical investment in the science necessary to protect and strengthen the resiliency of the Gulf Coast. The NRDA Trustees are at the forefront of that 

opportunity. 

Finally, there are four key points I would like to highlight: 

1. One of the Federal responses to this tragedy was to issue a moratorium on domestic energy production that continues to be a permitting and economic challenge 

for the Gulf region even now, more than a year later. Production in the Gulf will 

fall well below what it should over the next year, and unemployment as a direct 

result from Interior Department’s mismanagement of the permitting process remains too high. It would be a far smarter economic decision to rectify the permitting 

process at Interior and get our fellow Americans back to work in the Gulf rather 

than selling oil from the Strategic Petroleum Reserve. 

2. The Interior Department’s ‘‘Idle Iron’’ guidance may very well be a step backward for Gulf fisheries habitat. States like Louisiana and Texas have been very supportive of strong ‘‘Rigs to Reefs’ programs, and I believe even California has recently 

taken steps to protect the critical marine habitat and artificial reefs established by 

this infrastructure. In fact, when we are trying to recover the fishery in the Gulf, 

I don’t see how it can be helpful to remove premier fish habitat that has become 

home to a plethora of marine wildlife and even threatened and endangered species. 

3. We need to figure out a way to speed the process. The idea that investment 

in restoration could take upwards of a decade is unacceptable. We need to figure 

out how to get BP to more quickly sign off on the assessment, review, and funding 

activities. The initial $1 billion was a good first step, but the continued leverage BP 

has in the process needs further scrutiny. It may be prudent in the near future to 

look at moving S. 662, legislation written by me and cosponsored by my colleague 

Mary Landrieu, which would require a significant down payment on NRDA liabilities. 

4. Finally, I continue to work closely with my Gulf colleagues to direct the fines 

under the Clean Water Act to the Gulf States that were impacted. It remains appropriate that at least 80 percent of the fines leveled on BP go toward restoring the 

Gulf and Gulf State economies. I will continue to work with the Chair and Ranking 

member of this committee and am committed to my Gulf colleagues who have been 

working diligently together on this issue for the last several months. 

Thank you Madame Chair and ranking member Inhofe, and I thank our witnesses 

for their testimony today. 

Senator CARDIN. Thank you, Senator Vitter. 

We will now turn to our first panel. 

The agency Trustees play a critical role in this whole process, the 

two Federal agencies plus the States that are affected, the States 

of Louisiana, Mississippi, Alabama, Florida and Texas. But the two 

Federal agencies play a role in assessing and developing an action 

plan to remedy the damage that is done, hopefully in conjunction 

with BP, but ultimately decided, if necessary, by the courts. 

So we welcome our two government agency representatives that 

are here. We know that you have been extremely busy on this issue 

since the incident occurred. First, we have Cynthia Dohner, the Regional Director of the Southeast Region, U.S. Fish and Wildlife, one 

of the Federal Trustees; and Mr. Tony Penn, the Deputy Chief of 

the Assessment and Restoration Division, Office of Response and 

Restoration, NOAA. 

Welcome. Your full statements will be made part of the record 

and you may proceed as you wish. 

Ms. Dohner. 

STATEMENT OF CYNTHIA DOHNER, REGIONAL DIRECTOR, 

SOUTHEAST REGION, U.S. FISH AND WILDLIFE SERVICE 

Ms. DOHNER. Good morning and thank you, Chairman Cardin 

and Members of the Subcommittee. 

I am Cynthia Dohner, the Regional Director of the U.S. Fish and 

Wildlife Service’s Southeast Region. I also serve as the Department 

of Interior’s authorized official for the natural resource damage asVerDate Aug 31 2005 11:50 Apr 07, 2017 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\21155.TXT VERN
9 

sessment and restoration process in the Deepwater Horizon oil 

spill. I appreciate the opportunity to appear before the Subcommittee today to testify about Interior Department’s ongoing 

work on the assessment and ultimate restoration of natural resource damaged in the wake of the Deepwater Horizon oil spill over 

a year ago. 

The magnitude of the Deepwater Horizon oil spill is unprecedented in the United States and could result in significant injury 

to the Gulf of Mexico ecosystem and its vast and diverse natural 

resources. The natural resource damage assessment and restoration effort as a result of this historic oil spill continues to be a high 

priority effort for the department and the service. 

While the response to this historic oil spill continues, the Federal 

agencies and States that make up the NRDA Trustee Council are 

working to complete pre-assessment phase activities and have initiated a formal assessment of damages; launched work on a programmatic environmental impact statement for potential restoration options; undertaken emergency restoration projects; and 

reached an unprecedented agreement with BP that makes the $1 

billion available for early restoration projects to be implemented 

before ultimate resolution of the claims. 

The NRDA process focuses on identifying injured natural resources, determining the extent of the injury, recovering damages 

from those responsible, and planning and carrying out natural resource restoration activities that achieve pre-spill conditions. 

NRDA also seeks to ensure that responsible parties compensate 

the public for the lost use and enjoyment of those resources. The 

department is working with fellow Trustees and independent and 

responsible party scientists to obtain the best available scientific 

data to support our assessment of injuries. Much of the NRDA 

work currently underway is part of the injury assessment and restoration planning phase. 

Although the concept of assessing injuries may sound relatively 

straightforward, understanding complex ecosystems, the services 

these ecosystems provide, and the injuries caused by oil and hazardous substance takes time, often years. 

The NRDA process seeks to ensure an objective, scientifically rigorous and cost-effective assessment of injuries, and that harm to 

the public’s resources is fully addressed. Simply put, the objective 

under the Oil Pollution Act is to restore injured natural resources 

to their pre-spill conditions. 

The Trustees issued an notice of intent to conduct restoration 

planning and initiated the formal assessment process in October, 

2010. However, numerous pre-assessment studies involving analysis of baseline and preliminary exposure data are still ongoing. 

Today, formal assessment studies are well underway and the department expects that any remaining pre-assessment activities will 

be completed before the end of the year. 

Assessment of the injuries resulting from this spill is moving forward through both independent studies by the Trustees and cooperative studies with BP Currently, more than 80 studies are 

planned. The department is taking the lead on more than 20 of 

these studies involving bird species, loggerhead and Kemp’s Ridley 

sea turtles, beach mice and aerial imaging. 

10 

So far, 24 private nongovernmental and academic entities from 

several universities are engaged in these studies and the assessment work. More than two dozen technical working groups comprised of the Trustee agencies are working to determine and quantify the impact of the oil spill on multiple public resources. The assessment involves looking at those acute impacts that we can identify now, and the long-term chronic impacts, some of which may 

not materialize for years to come. All this is being coordinated and 

directed through the Trustee Council. 

One of the actions the Trustees have taken to ensure enhanced 

transparency during the NRDA process is the public distribution of 

cooperative assessment work plans and data. Trustees are posting 

study plans on the Internet, providing opportunities for public engagement, and conducting frequent calls for study planners, scientists and others to assist in both developing a broad integrated 

ecosystem perspective, as well as reviewing numerous restoration 

possibilities. 

We recognize the value of technical expertise and are using leading researchers from academic institutions and nongovernment organizations to the extent practicable. In addition, emergency restoration projects have been initiated to avoid or reduce irreversible 

loss of natural resources and to prevent or reduce continuing danger to the resources. 

In April, the Deepwater Horizon oil spill Trustees signed an agreement with BP to provide $1 billion toward early restoration 

projects in 2011 and 2012. This agreement does not affect the ultimate liability of BP or other entities for natural resource damages. 

The early restoration is taking place on parallel tracks with our assessment work. 

We have made a great deal of progress within the NRDA framework. This is a complex process involving five States and two Federal agencies. The scope and magnitude of the natural resource injuries and other impacts resulting from the Deepwater Horizon oil 

spill are extraordinary and still not fully known at this time. We 

are working to finish our pre-assessment phase, continue assessment activities in 2012, prepare for potential litigation, and ensure 

early restoration projects are consistent with long-term restoration 

planning. 

The department is committed to work with the Trustees to fully 

assess the overall impacts of the spill on the Gulf Coast ecosystem 

and restore the natural resource damage. 

Mr. Chairman and Members of the Subcommittee, thank you for 

the opportunity to testify today. I will be happy to answer any 

questions you may have. 

[The prepared statement of Ms. Dohner follows:] 

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Senator CARDIN. Thank you very much. 

Mr. Penn. 

STATEMENT OF TONY PENN, DEPUTY CHIEF, ASSESSMENT 

AND RESTORATION DIVISION, OFFICE OF RESPONSE AND 

RESTORATION, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE 

Mr. PENN. Thank you, Chairman Cardin, and Members of the 

Subcommittee for the opportunity to testify on the status of the ongoing natural resource damage assessment and restoration planning for the Deepwater Horizon oil spill. 

My name is Tony Penn. I am the Deputy Chief of the Assessment 

and Restoration Division in NOAA’s Office of Response and Restoration. I appreciate the opportunity to discuss NOAA’s role and 

our work to date on the Deepwater Horizon natural resource damage assessment process, also known as NRDA. 

NOAA and our co-Trustees have been working tirelessly to assess 

the ecological and human-use impacts of the spill and to identify 

restoration opportunities in the Gulf of Mexico. We will continue in 

our efforts until restoration of the impacts is complete. 

My testimony today will discuss NOAA’s involvement in the 

damage assessment process, the status of the Deepwater Horizon 

assessment and restoration, and the successes of the Deepwater 

Horizon NRDA. 

NOAA, along with our co-Trustees, is charged with assessing and 

restoring natural resources injured by an oil spill. The goal of the 

assessment process is to determine the type and amount of restoration needed to compensate the public for injury to the natural resources. The Trustees also assess public lost use of those resources 

such as recreational fishing, boating, hunting and swimming. The 

ultimate goal of the NRDA is to implement a package of restoration 

projects to compensate the public for all the ecological and human 

use injuries. 

At the outset of the Deepwater Horizon spill, NOAA quickly mobilized staff to begin coordinating with Federal and State co-Trustees and the responsible parties to collect data that are critical to 

inform the NRDA. The Trustees focused on assessing the injuries 

to all ecosystem resources from the deep ocean to the coastlines of 

the Gulf of Mexico. Information continues to be collected to assess 

potential impacts to fish, shellfish, terrestrial and marine mammals, turtles, birds and other sensitive resources, as well as their 

habitat, including wetlands, beaches, mud flats, bottom sediments, 

corals and the water column. Lost human use of these resources 

such as recreational fishing and beach use are also being assessed. 

Technical teams consisting of scientists and State and Federal 

agencies, academic institutions, and BP have been in the field conducting daily surveys and collecting samples for multiple resources, 

habitats and services. To date, several hundred scientists, economists and restoration specialists have been and continue to be involved in our NRDA activities. 

Through the size of the Deepwater Horizon release and the potential for injury, NRDA field efforts have far surpassed any other 

for a single oil release. As of early June, the Trustees had approved 

over 115 study plans and collected more than 36,000 water, tissue, 

25 

sediment, soil, tar ball and oil samples. More than 90 oceanic 

cruises have been conducted since early May, 2010, and many more 

are scheduled for the summer and fall of 2011. 

From these sample collection efforts, more than 21,000 laboratory analyses have been completed. Of those, more than 20,000 

have been validated through a rigorous quality assurance process. 

Once these data clear the validation process, they are then made 

publicly available, which is a new milestone in NRDA transparency. 

Concurrent with the injury assessment, NOAA and the co-Trustees are planning for and implementing restoration. To date, the 

Trustees and BP have agreed to implement several emergency restoration projects designed to curtail further injury to natural resources. Trustees are also preparing an environmental impact 

statement which will identify a range of restoration alternatives 

that the Trustees will consider to compensate the public for lost 

natural resources and services. 

On April 21st of this year, the Trustees announced an agreement whereby BP agreed to fund $1 billion in early restoration projects. 

Public input on early restoration projects has already begun and 

will continue through the summer. 

To meet the requests from academia, NGO’s and the general 

public regarding data and ongoing NRDA actions, NOAA and the 

co-Trustees have developed data-sharing and other outreach practices that have resulted in one of the most transparent damage assessments i history. One of the key actions the Trustees have taken 

is the public distribution of cooperative assessment work plans and 

data during the NRDA process. 

NOAA has continued to update its publicly accessible Gulf environmental response management application website, allowing 

users to observe data via an interactive map. Along with providing 

an unprecedented amount of data during the NRDA, NOAA and 

the other trustees have sustained efforts to educate and communicate with the public. 

Since the beginning of the spill, the Trustees have conducted numerous roundtable discussions with stakeholder groups and have 

facilitated stakeholder field trips where NRDA actions were discussed and observed. As part of the programmatic environmental 

impact statement process to solicit restoration project ideas, 11 

public meetings were held across the Gulf Coast States and in 

Washington, DC. 

The task of quantifying the environmental impact of the spill is 

no small feat, but I would like to assure you that we will not relent 

in our effort to protect the livelihood of the Gulf Coast residents 

and mitigate the environmental impacts of this spill. 

Thank you for allowing me to testify on NOAA’s damage assessment efforts, and I am happy to try and address any questions that 

you may have. 

[The prepared statement of Mr. Penn follows:] 

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Senator CARDIN. Let me thank both of you for your testimony. 

We really appreciate it. Clearly, we want to make sure you get this 

right. So our first objective is to make sure that we have the best 

scientific assistance, that we do the assessment accurately, so that 

the restoration plan is effective in restoring to the best that we can 

the environmental damage that has been done, and that it is implemented in an accountable way. So we want to make sure it is 

done right. 

But we also need to have some understanding of where we are 

in the process and how long you believe that process will take. We 

understand that a lot depends on the cooperation between BP and 

the Trustees. If things go into courts in a contested way, it can 

take a longer period of time. But give us some estimation as to 

where we are in the process and when you believe we will be able 

to look forward to an implementation agreement. 

Mr. PENN. So, where we are in the process, as Cindy mentioned, 

we are in the restoration planning phase under OPA, which includes actual injury assessment. We are in the process of quantifying injuries to the resources and services. 

At the same time, we are undertaking restoration planning. So 

we are looking ahead to what can we do to restore those resources 

that we are finding have been impacted. 

Specifically with respect to the injury assessment process, we 

have come a long ways to identifying exposure to the resources in 

the Gulf. I don’t know if you saw on the map, whether they be turtles, marine mammals, fish resources, shoreline habitat, oyster 

reefs. We have documented that there has been exposure to these 

resources. We are in the process of now moving from, OK, yes, 

there has been exposure, but under OPA we have to go to the next 

step of what are the injuries, what has been caused by the oil spill 

that we can quantify that then we try and restore. 

So we are in the middle of that injury causality process. And 

again, at the same time, looking forward to what can we do for restoration of those resources. 

Senator CARDIN. Is there a guesstimate as to how much longer 

that process will take? 

Ms. DOHNER. May I just add one thing to what Tony said as far 

as the assessment as we go forward? We are also looking at the assessment of the chronic, the long-term impacts and how we go forward. And as we go forward, each year gives us new information. 

And overall, trying to make sure that we accurately count the 

acutely injured species. Obviously, the more information, the more 

time we have, the better it would be as we go forward. 

Senator CARDIN. And I am not trying to rush the process. I am 

just trying to get your game plan now as to when you believe you 

would complete that phase. 

Mr. PENN. So, from our perspective, as you probably now, DOJ 

filed suit in this case that included natural resource damages in 

December of last year. And so we don’t know what that will mean 

for the court schedule, but we have to be prepared when the judge 

comes around looking at NRDA. So we are looking at completing 

another year of field work this year and looking again next year, 

and then perhaps having to be ready for a court schedule. 

41 

So in the next couple of years, we are going to have to have pretty good information on what we have found and where we are. 

Senator CARDIN. Which leads me to the early restoration fund- ing, the $1 billion in April, and that was certainly good news and 

I applaud you and BP for releasing the funds so that restoration 

work can begin. But it seems to me $1 billion is a relatively small amount considering the amount of restoration that will be required and that early 

restoration is important. Can we look forward to additional sums 

being released before a full settlement is reached so that the States 

have additional resources to move forward? 

Ms. DOHNER. I think that is unknown at this time, but whether 

or not we go forward, we need to deal with the $1 billion that we 

have go forward with the early restoration projects that we can do 

with that $1 billion as we are going along on a parallel path with 

the assessment and quantifying the injury and making sure that 

we identify uncertainties. 

If we do work on a timeline similar to what Tony was talking 

about, we need to make sure we also address the long-term, again, 

chronic damages that we are unsure of as we go forward. 

Senator CARDIN. Well, I appreciate your keeping us informed, because we do hear from the States and I am sure we are going to 

hear more from them today that they are strapped on resources 

and that the moneys that are being made available are being put 

to good use. It would be I think an encouraging sign if we could 

get additional commitments for restoration at this stage. So if you 

will work with us on that. 

I have one more question I want to ask before turning to Senator 

Sessions, and that is this process builds upon the cooperative relationship between BP and the Trustees which we know could turn 

adversarial. It is the nature of the process. You have to be realistic. 

We would like to see an agreement. We may not have an agreement. 

Therefore, it is very important that we have an independent scientific base for what we are doing. During Exxon Valdez, the 

NRDA process set up their own council, their own side group of 

independent experts. Do you have such a process available to you 

in the BP circumstance? Do you have an independent panel that 

you rely upon? I know you said you seek independent verification, 

but is there a panel that has been put together similar to Exxon 

Valdez? 

Ms. DOHNER. There is not a panel that is put together at this 

time. We do have the technical expertise on the technical working 

groups and we pull from academia in the States and the Federal 

agencies as needed, and a long list. The responsible parties are 

part of that technical working group. 

So we do have experts in the field as we design these studies for 

the long-term restoration, the restoration projects. 

Senator CARDIN. Did you consider putting together a panel similar to Exxon Valdez? 

Mr. PENN. We have heard that feedback and that input from 

some of our NGO partners. I think if memory serves me right, in 

Exxon Valdez that group was I believe set up after there was settlement to look at how moneys were being spent post-settlement. 

42 

As Cindy said, in this case we are pre-settlement. We do have a 

lot of technical expertise within these working groups. NOAA alone 

is working with 75-some academics, along with their support staff. 

And we feel like we have really got strong technical expertise within our working groups and that we can speak candidly with some 

of the experts that we are working with who we have under confidentiality agreements. 

Senator CARDIN. Thank you. 

Senator Sessions. 

Senator SESSIONS. Thank you very much. 

Ms. Dohner, tell us who is in charge of the NRDA process? In 

other words, who invokes the meetings and sets the schedules and 

makes decisions under this statute, as you understand it? 

Ms. DOHNER. There are seven different individual Trustees that 

are part of this. At this time, there is a new structure that has 

been put in place with an Executive Committee that is helping 

guide this process. 

This process was started at the very, very beginning of the spill 

as we were pulled together and has met routinely and regularly 

across the board as we go forward with the technical working 

groups and working together as a Trustee Council. But within that 

Trustee Council, as we go forward on different things, we have 

equal votes as we go forward. 

Senator SESSIONS. Is the Secretary of Interior coordinating and 

calling the group into session? 

Ms. DOHNER. Right now, as part of the Executive Committee, 

Cooper Shattuck is actually the Chair of that committee and Cooper is the lead for helping us put together these meetings. The 

Trustee Council actually has, as I said, routine meetings that are 

scheduled. And with the early restoration, at the last meeting we 

had we scheduled an additional one so we could go forward and 

work on this early restoration, the project proposal and the process 

we have to go through to get them approved. 

Senator SESSIONS. So if you don’t report on time, it would be 

Cooper’s fault. Right? 

[Laughter.] 

Ms. DOHNER. No, sir. As I said, the Trustees have to work together. 

Senator SESSIONS. Well, you do. And I hear good things about 

the openness with which you are doing the process, but I did note 

Mr. Penn previously stated he doubts the NRDA process will have 

moved from the planning stage to the implementation stage by 

year’s end. That may be more likely by the end of 2012. It is a big 

system. 

So I think we share the interest, Senator Vitter and the Chairman did, that we don’t want this to take too long. Somebody needs 

to make sure that this moves forward. 

Would you comment on that, Mr. Penn? 

Mr. PENN. Yes, and I think that the Trustee Council that has 

come in with Cooper’s leadership has been a shot in the arm to get 

the Trustees organized and has focused on some of the decisions at 

hand. 

I don’t want to suggest that we just sort of slowly moving 

through the assessment process. I think one of the real accomplishVerDate Aug 31 2005 11:50 Apr 07, 2017 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\21155.TXT VERN
43 

ments so far to date here is the $1 billion of early restoration and 

the new council that has been formed is really focused on identifying projects and looking at how we get to agreement to get those 

projects implemented. And I think we will see restoration in this 

case long before we would in most other damage assessment cases 

because of their leadership and the focus on getting things in the 

ground very soon. 

Senator SESSIONS. Ms. Dohner, I may have been unfair when I 

said that some of this cleanup hadn’t been done by the concerns of 

Fish and Wildlife. That was sort of the feedback I had gotten. 

Are you aware of whether the Fish and Wildlife Service has directed any cleanup efforts to stop as a result of environmental concerns? 

Ms. DOHNER. Sir, I was actually down at Bon Secour at that refuge just earlier this month and there are cleanups going on right 

now. There are times that they have asked the cleanup to stop if 

there are birds that are nesting, things like that, natural resources 

that we would want to protect on the refuge. But there is a current 

active cleanup operation going on right now. 

Senator SESSIONS. Well, there is a danger of spreading and 

washing also in high tides and storms. I think it is not healthy for 

the environment for it to stay there. So I guess either by hand or 

by machinery, I would suggest we might as well get on the work 

in accomplishing that. 

The other parts, the beaches are fabulously clean and getting 

really good reports this year, so we are pleased about that. 

Do you talk, Ms. Dohner, with local officials along the Gulf 

Coast, I will ask both of you, concerning their concerns about how 

progress is occurring? 

Ms. DOHNER. Sir, I haven’t myself talked with the local folks, but 

we have managers that are on the ground and we have people that 

are stationed at the incident command that are talking with the 

local folks and working with them on their concerns on how we go 

forward with the cleanup at the refuge. 

Senator SESSIONS. Mr. Penn, when do you expect that NOAA will 

transition from the assessment and planning phase to the restoration and implementation phrase? 

Mr. PENN. Sir, with the early restoration, so right now we have 

things going on concurrently. We are doing the assessment and we 

are doing restoration planning, and restoration implementation. 

We have actually done some emergency restoration action to prevent further injury to resources. And with early restoration, we are 

looking to implement some of those types of projects here in late 

2011 into 2012. 

Senator SESSIONS. Just briefly, there are some concerns that 

have been expressed to me by people that I respect that live in the 

area that there may be some hesitation to proceed with the NRDA 

process while the initial response process is still ongoing, that BP 

as the responsible party is responsible for. 

Have you heard, is there any legal concern that they might say, 

well, you need to certify that we have finished our initial response 

effort before we go any further with the NRDA process? 

Mr. PENN. No, sir. We have moved forward with our damage assessment at the same time the response started. We are learning 

44 

from the response. We are getting information that is informing the 

damage assessment. But we are not delayed at all by the response 

action. 

Senator SESSIONS. Good. Thank you. 

Senator CARDIN. Senator Whitehouse. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 

U.S. SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Thank you, Chairman. 

First of all, let me welcome Ms. Dohner here. We just had over 

the weekend the 50th anniversary of the University of Rhode Island Graduate School of Oceanography. And I believe you got your 

master’s degree from GSO. 

Ms. DOHNER. Yes, sir. 

Senator WHITEHOUSE. We are very pleased to actually have another GSO person on the following panel, so I am glad to see the 

University of Rhode Island Graduate School of Oceanography so 

well represented in this hearing. 

Mr. Penn, the natural resource damage assessment, as I understand it, stands on a considerable number of study plans that are 

approved, that identify various problems and explore them. As I 

understand it, there have been well over 100 approved already. 

And I understand that the relationship is that the Trustees and BP 

negotiate to try to define the study plans correctly. 

What is your sense of how that process has been going? Have 

there ever been deadlocks? What happens when there are deadlocks? I understand that BP is paying for all of this as it goes, so 

they have slightly different interests at stake than you. And I am 

interested in how that works itself out through this process. 

Mr. PENN. Yes, sir. I think the process is going fairly well. We 

have our disagreements on what we would like to see in study 

plans. There is kind of the push and the pull that we have between 

the Trustees and BP 

But ultimately, the decision is the Trustees’ on what to implement, and what we feel we need to do is to make a defensible damage assessment case. So in the instances where we cannot reach 

agreement and we can’t get signature on these plans and BP agree 

to up front the cost of those studies, we would take those studies 

on our own and implement those studies if we felt that they were 

necessary to meet our needs of the case. 

Senator WHITEHOUSE. Without BP paying for it at that point 

since they are not agreed. What sources of funding do you have? 

Do you feel that is a restriction on your ability to proceed with any 

of the studies? 

Mr. PENN. I do not feel that it is a restriction. We have been able 

to up front costs. And in fact, when BP commits, they sign that 

they are going to fund these studies. They don’t actually fund those 

real-time. We incur the costs and then we recover those costs later. 

But any study that we do, the Trustees feel those are reasonable 

assessment costs that we will recover eventually, if not by a written signature saying they agree up front, those are legitimate costs 

that we will recover later. 

Senator WHITEHOUSE. And you have an account that allows you 

to pay the scientists and the folks who are doing the work in the 

45 

meantime so that they are not carrying the cost of the government 

study? 

Mr. PENN. Yes, sir. 

Senator WHITEHOUSE. And you are comfortable that works 

smoothly, that there is plenty available that is not an issue? Because that creates no hesitancy on the part of NOAA with respect 

to proceeding with studies? 

Mr. PENN. That is correct. 

Senator WHITEHOUSE. OK. Good. Good to hear. 

Thank you, Chairman. 

Senator CARDIN. Senator Vitter. 

Senator VITTER. Thank you, Mr. Chairman. 

And thank you both for your work. 

Ms. Dohner, can you briefly discuss efforts that have been undertaken to rehabilitate seafood and in particular the oyster habitat 

over the last few months? 

Ms. DOHNER. Sir, I do know that they are doing work to evaluate 

the oyster and the oyster habitat. But as far as the seafood, I 

would have to get back to you on that. 

Senator VITTER. And what broadly is being done on the oyster 

side? 

Ms. DOHNER. I know that they have looked at what needs to be 

done for restoration and those are some of the early restoration 

projects that have been evaluated; and also some of the work that 

has been done under the technical working groups on the impacts. 

But again, I would get back to you with a better explanation. 

Senator VITTER. OK, great. If you could do that followup, that 

would be super. 

In your testimony, you State that the NRDA process allows implementation of emergency restoration projects before the whole assessment is complete. What are the limits on this authority and 

what is the potential to expand and expedite that authority so we 

are not backloading everything for 8 years from now? 

Ms. DOHNER. The emergency projects are designed to go forward 

and minimize the injury so that the long-term injury would be less 

than what is anticipated. Some of the things that we have done is 

shoreline vegetation and going forward with the shoreline vegetation, or improving habitat that would allow waterfowl to land in 

areas that are not oiled, things like that. 

The other process that we have, the early restoration, would be 

the overall restoration. So emergency projects are a little bit different than the early restoration projects as we go forward. 

Senator VITTER. OK. And Ms. Dohner, if you could briefly discuss 

both Federal and State rigs-to-reefs programs and their significance for our fisheries habitat? 

Ms. DOHNER. Sir, I am sorry. I am not familiar with that project, 

so I would have to get back to you. 

Senator VITTER. OK. 

Mr. Penn, one of the frustrations I hear all the time from the 

fishing community, both recreational and commercial, are challenges with adequate stock assessment and science at NOAA. This 

pre-dates BP This is a general frustration. Given that there are 

clear shortcomings in NOAA’s stock assessments, how is that complicating your efforts in this context? 

46 

Mr. PENN. Sir, we are looking at impacts to fisheries resources 

from both a recreational use perspective, as well as ecological perspective. I am not an expert in this area. I don’t know to what extent we have relied on stock assessments to do that work. I don’t 

think it has come into play for the recreational assessment. 

On the ecological side, certainly we need to know the resources 

that are out there, the types, what might have been impacted by 

the spill. We are working through some of those issues. How do we 

determine baseline? What is potentially impacted? 

Senator VITTER. I guess that is my question in all of this, and 

I don’t mean to interrupt, but to get to the heart of it, you need 

some baseline. Ordinarily, a logical baseline to go to would be 

NOAA stock assessments. I think it is universally recognized those 

are not current, up to date, precise, adequate in any way. 

So how do you determine a baseline? 

Mr. PENN. Yes, that is a very good question and we could always 

use better baseline information across our resources that we are 

looking at. In this case, what we are able to do is a number of 

things. We are doing some trials now to determine what is there. 

It is not ideal. We would have liked to have been out there before. But we can also then simulate what creatures would have 

been exposed to oil at different concentrations and look at potential 

impacts to those species. And then think about how that applies to 

the larger system that was impacted. 

Senator VITTER. Is any of that work being done in this context 

helpful in terms of the broader NOAA stock assessment responsibility? Because again, I think it is broadly recognized that NOAA 

is way behind on that. We don’t have good current stock assessment information. 

Mr. PENN. Yes, that is a good point. And we are coordinating 

with other NOAA programs that don’t typically do damage assessment work, but that have other monitoring requirements and responsibilities. We have supplemented what they have done and 

then we have enhanced what they have done so that they can use 

some of that information going forward. 

The specifics for stock assessments, I would have to get back to 

you on how what we are doing is feeding into that process. 

Senator VITTER. OK. 

Thank you, Mr. Chairman. 

Senator CARDIN. I want to underscore the point that Senator 

Vitter made about the baseline assessments. On our second panel, 

there will be testimony of concerns about whether we have an accurate baseline. I think some of the points that Senator Vitter raised 

is very much important to be addressed. 

So I would just urge you to use as wide a range of scientific opportunities that we have in order to try to have an accurate baseline to assess damages. I think we could do a stronger job there. 

And second, and I think Ms. Dohner you mentioned this specifically, that by having another season, you will get more information 

and you will have more confidence in the restoration plan. We are 

concerned about the long-term impact, what might be discovered 

after the settlement is reached; after the court decisions are finished; after the implementation plans have already started to be 

implemented. 

47 

And I believe I heard from your prior comments that in the assessment and implementation plans, you attempt to deal with 

those issues the best that you can. Would you spend a minute giving us a little bit more confidence that the unknown that may develop later, that there will be adequate protection in the negotiations? 

Ms. DOHNER. Sir, as part of the assessment studies as we go forward in trying to assess the long-term chronic impacts, we are also 

going to have to have long-term monitoring incorporated into these 

studies and also incorporated into the restoration planning, and 

overall to make sure that we are able to, with performance measures within these monitoring plans, identify any types of impacts 

that we might not see for years from now. 

Sea turtles, for example, we might not see impacts years from 

now, so we need to make sure that is part of the overall process 

as we go forward. 

Senator CARDIN. So we would be protected to make sure that 

even those discovered later, it is still part of the plan? 

Ms. DOHNER. Yes, sir. 

Senator CARDIN. Thank you. 

Any other questions? Senator Sessions. 

Senator SESSIONS. Briefly, we have had reports concerning the 

oyster situation. Also, some reports have indicated that red snapper stocks are showing more lesions when they have been caught 

than have been otherwise observed. Some have said it is not unusual. Those are the kind of things we definitely need to get to the 

bottom of. 

Mr. Penn, is that under your review? And do you have any comment on that? 

Mr. PENN. Yes, sir. We are looking at the red snapper and we 

have heard reports of lesions. I know there is a researcher at LSU 

that has indicated findings of more widespread lesions than might 

otherwise be expected. So we are looking into that and are developing some study plans that would look at that specifically. 

Senator SESSIONS. How long does it take to get that plan developed and executed? 

Mr. PENN. We can develop plans in a matter of days to weeks. 

I don’t know exactly what the status is of that particular plan. I 

know it has been under discussion and we have been looking at the 

data that is coming from LSU. And some of our data that we have 

collected through some of our trawls, but not necessarily tied to a 

particular study plan. So we are actively working on that issue. 

Senator SESSIONS. Well, we thank you for your attention to this 

matter. I do think it provides a historic opportunity to develop a 

new baseline, to look at some new research, and to identify ways 

not only to recover from the damage that has been sustained, but 

also perhaps to manage our stocks and our wildlife better and to 

make it more healthy. 

So thank you very much. 

Senator CARDIN. Let me thank both of you again for not just your 

testimony, but your commitment to this issue. This is the second 

hearing that this Committee has had on the subject. It will not be 

our last as we will assist and followup on oversight as to how the 

process moves forward. 

48 

So thank you very much for your testimony. 

Mr. PENN. Thank you. 

Ms. DOHNER. Thank you. 

Senator CARDIN. We will now turn to our second panel. And as 

they come up, let me yield to Senator Sessions and Senator Vitter 

for an introduction before introducing the rest of the panel. 

Senator SESSIONS. Mr. Chairman, while the panel is coming forward, it is my pleasure to introduce a fellow member of the Alabama Bar, Mr. Cooper Shattuck. Mr. Shattuck currently serves as 

Legal Advisor to Governor Robert Bentley of Alabama. In that capacity, he was selected to serve as Chairman of the Executive Committee of the NRDA Trustee Council. So we get to hold him responsible for everything, I suppose. 

But actually, I am a little concerned that I don’t think any of our 

leaders have a lot of executive power. They just have collegial 

power in this process. 

Prior to joining the Bentley Administration, Cooper was a practicing attorney with the firm of Rosen Harwood in Tuscaloosa, a 

good law firm. In addition, he served as Adjunct Professor of Law 

at the University of Alabama School of Law, one of the top law 

schools in America, I am proud to say. 

He is a Bar Commissioner for the Sixth Circuit, which was elected by his fellow bar members. He is currently a member of the Alabama State Bar Foundation Board of Trustees; a member of the 

Tuscaloosa Bar where he served as President previously. A bachelor’s degree in economics he has from Georgia Tech and a juris 

doctorate from Alabama. 

He and his wife Christine live in Tuscaloosa. They have four 

daughters. He had been an Associate Pastor at First United Methodist Church there. 

And thank you for coming. And I also note his mother is a good 

citizen, former citizen of my hometown of Camden, Alabama, a little community, and they are a great family, and I am proud of Cooper to be serving on this important position with Governor Bentley. 

Senator CARDIN. Mr. Shattuck, welcome. 

Senator Vitter. 

Senator VITTER. Thank you, Mr. Chairman. 

As I mentioned, Garret Graves is here today as a Louisiana 

Trustee, and he also serves as the Chair of the Coastal Protection 

and Restoration Authority of Louisiana. That is a State cabinetlevel position over all of coastal restoration and protection. 

Before that, I was honored to have him on my staff serving with 

me, and he served many Members of Louisiana’s congressional delegation over several years. He was intimately involved in virtually 

every WRDA, water resources, coastal restoration-related bill going 

through this process while he was up here; very, very able. And I 

know Louisiana’s interests are in very good hands. 

Senator CARDIN. Thank you. 

Senator Whitehouse. 

Senator WHITEHOUSE. I just want to recognize Dean Leinen, this 

is, as I said earlier, a banner day for the URI Graduate School of 

Oceanography, with both a graduate in the first panel and a former 

Dean on this panel. Dean Leinen was kind enough to return to the 

Graduate School of Oceanography for the 50th anniversary celebraVerDate Aug 31 2005 11:50 Apr 07, 2017 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\21155.TXT VERN
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tion, and if my timing is right, I think she was actually Dean of 

the graduate school at the time my wife got her Ph.D. in marine 

science from the graduate school. 

So in any event, she was a good friend her years a Dean in 

Rhode Island and I am delighted to have her here. Unfortunately, 

we have lost her to Florida in the meantime, but there is always 

hope. 

[Laughter.] 

Senator CARDIN. And Dr. Boesch could have been introduced also 

by Senator Vitter since he is a native of Louisiana, but now he is 

a Marylander, so I will take the honor of introducing Dr. Boesch. 

He has been a strong advocate for us in Maryland, part of the 

University of Maryland Center for Environmental Science. He has 

been a personal adviser to me on many of the environmental 

issues. And he comes to us as a member of President Obama’s Oil 

Spill Commission. 

Dr. Boesch examined the causes of the Deepwater Horizon explosion and recommended improvements to Federal laws, regulations 

and industry practices to both prevent and mitigate future spills. 

He has a strong background in biological and ocean issues, and it 

is a pleasure to have you once again back before our Committee. 

And we have another Marylander, Dr. Eric Rifkin, who comes to 

us through the National Aquarium in Baltimore. Dr. Rifkin is the 

interim Executive Director of the National Aquarium Conservation 

Center, which partnered with Mote Marine Laboratories in Florida 

and Johns Hopkins University to study new technologies for measuring low levels of oil spill contaminants. 

I think this is cutting-edge information that helps us better assess the amount of damage that has actually been done. He has 

been able to actually develop techniques that are more sophisticated in determining areas that we thought were not affected, 

which in fact were affected by the BP oil spill. 

So Dr. Rifkin, it is also a pleasure to have you here, and also another Marylander on the panel. 

We will start with Dr. Boesch and work our way down. 

STATEMENT OF DONALD BOESCH, PROFESSOR OF MARINE 

SCIENCE AND PRESIDENT OF THE UNIVERSITY OF MARYLAND CENTER FOR ENVIRONMENTAL SCIENCE, MEMBER OF 

THE NATIONAL COMMISSION ON THE BP DEEPWATER HORIZON OIL SPILL AND OFFSHORE DRILLING 

Mr. BOESCH. Thank you, Senator Cardin. 

Senators, I am very appreciative of the opportunity to testify 

today. I ask that revised testimony just changed to include more 

specific references and sources be included in the record. 

Senator CARDIN. It will be. And all of your statements will be included in the record. 

You may proceed as you wish. Thanks. 

Mr. BOESCH. I was very actively engaged in scientific research on 

the long-term environmental issues in the Gulf of Mexico and the 

impacts of offshore oil and gas development before leaving Louisiana 21 years ago to, as Senator Cardin indicated, head the University of Maryland’s Center for Environmental Science. 

50 

I suspect it was for this reason, my familiarity with the issues 

surrounding the oil spill that the President appointed me to serve 

as one of seven members of the National Commission on the BP 

Deepwater Horizon Oil Spill and Offshore Drilling. 

So my perspectives are really those of the commission that I will 

present today. 

The natural resources damage assessment was not central to our 

investigation, and in any case, was still in a very early stage as we 

completed our report in January. Nonetheless, the commission’s report does discuss and offers some recommendations concerning the 

ongoing NRDA. 

The goal of NRDA is to make the environment and public whole 

for injuries to natural resources resulting from this oil spill. These 

injuries are quantified by reference to conditions that would have 

existed had the incident not occurred. Now, we recognized on the 

commission that establishing such baseline conditions is challenging, not only because of the paucity of background data and 

natural variability, but because many Gulf Coast habitats have 

been substantially degraded over decades from pressure from industrial, agricultural, commercial and residential development. 

To illustrate this long-term degradation, I included in my written 

testimony a simple graph that shows the rate of wetland loss in 

Louisiana and how it spiked during the 1970’s when we had a very 

aggressive program of dredging canals and wetlands for oil and gas 

exploitation, as well as transportation. 

The Oil Spill Commission recommended that the Trustees ensure 

compensatory restoration under NRDA process is transparent, appropriate, and to the degree possible, apolitical by, one, as Senator 

Cardin mentioned in his introduction, an appointed independent 

scientific auditor to ensure that projects are authorized on the 

basis of the ability to mitigate actual damages caused by the spill; 

second, that any potential settlement agreement provided for longterm monitoring and assessment of the affected resources for a period of at least 3 years; and for enhancement of the damages beyond the baseline. 

And third, hewing as closely as possible to the in-place/in-kind 

principles that underpin NRDA regulations to ensure that the injured public resources are made whole to the fullest extent possible 

regardless of State or Federal boundaries. 

The recent agreement to support early restoration presents a 

promising opportunity to begin to restore impacted resources without waiting years for full compensation of the NRDA, when damage 

restoration may prove less effective. However, it also presents opportunities for misallocation of these resources. From the beginning, it allocates early restoration funding equally among the 

States and Federal Trustees despite the fact that there are disparities among these natural resource damages. 

This potentially, if this principle continues, could compromise the 

in-place/in-kind principle in a way that concerned the commission. 

The framework agreement also states that early restoration 

projects must be consistent with the Oil Pollution Act in meeting 

criteria for making the public whole for injuries from the oil spill. 

To avoid politically expedient approaches that might miss the mark 

in terms of compensatory restoration, appointing an independent 

51 

scientific auditor to a review board to ensure that projects are authorized on their basis to mitigate actual damages caused by the 

spill to the degree possible would be prudent. 

A scientific audit could also independently evaluate the degree to 

which the natural resource damage offsets to be credited against 

the damages due to the responsible party for these projects are 

measured, calculated and documented using the best available 

science. 

The impacts of the Deepwater Horizon oil spill come, as I mentioned, on top of longer-term degradation of important habitats and 

resources of the Northern Gulf of Mexico, including loss of coastal 

wetlands that Senator Vitter mentioned, recurrent hypoxia, the socalled dead zone, over-fished populations and endangered species. 

The Oil Spill Commission identified that a restoration effort that 

is well funded, scientifically grounded and responsive to regional 

needs and public input would be very consistent with the recommendations that Secretary of the Navy Ray Mabus made earlier 

last year. The commission recommended that Congress dedicate for 

this purpose 80 percent of the Clean Water Act penalties, as Senator Vitter mentioned earlier in his discussion of legislation. A Gulf 

Ecosystem Restoration Task Force chaired by EPA Administrator 

Lisa Jackson and co-chaired by Mr. Graves is developing a Gulf of 

Mexico ecosystem restoration strategy, which is due in October 

2011. 

Legislation to dedicate the funds and establish a council to administer them has seemed, to me at least, stalled in Congress, in 

part because of a lack of consensus among the Gulf States over the 

scope and permissible uses of the funds and, once again, allocation 

among the States. Senator Vitter’s announcement that a markup 

will take place is a hopeful sign that we may see some progress on 

that. 

The Oil Spill Commission in looking at this issue concluded that 

it was most compelling from a national perspective if the application of these funds focused on ecosystem restoration, and we argued that the criteria should be national significance, contribution 

to achieving ecosystem resilience, and the extent to which national 

policies such as flood control, oil and gas development, agriculture, 

navigation directly contributed to the environmental problems that 

require the restoration. 

So thank you very much. 

[The prepared statement of Mr. Boesch follows:] 

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Senator CARDIN. Thank you, Dr. Boesch. 

Dr. Leinen. 

STATEMENT OF MARGARET LEINEN, VICE-CHAIR, GULF OF 

MEXICO RESEARCH INITIATIVE REVIEW BOARD; EXECUTIVE 

DIRECTOR, HARBOR BRANCH OCEANOGRAPHIC INSTITUTE; 

ASSOCIATE PROVOST FOR MARINE AND ENVIRONMENTAL 

INITIATIVES, FLORIDA ATLANTIC UNIVERSITY 

Ms. LEINEN. Thank you, Mr. Chairman and Members of the Subcommittee. 

My name is Margaret Leinen. I am the Vice Chair of the Gulf 

of Mexico Research Initiative Review Board. I am also Associate 

Provost for Marine and Environmental Initiatives at Florida Atlantic University and Executive Director of Harbor Branch Oceanographic. 

My remarks today were prepared by Dr. Rita Caldwell of the 

Gulf of Mexico Research Initiative and one of your constituents, 

Senator Cardin. 

In May, 2010, BP committed $500 million over a 10-year period 

to create an independent research program to study the impacts of 

the Deepwater Horizon oil spill on the Gulf of Mexico. The program, known as the Gulf of Mexico Research Initiative, or GRI, is 

directed by an independent research board. The research board is 

responsible for identifying the research priorities, preparing requests for proposals, enabling an open and transparent process for 

review, selecting proposals for funding based on that review, and 

reviewing annual progress for continuation of funding. 

Although the GRI was announced in 2010, it was not until 

March 14, 2011 that the master research agreement was signed. 

That agreement between BP and the Gulf of Mexico Alliance provides the operational structure for the GRI. 

As stated in that master research agreement, the GRI is an independent scientific research program and is separate from the natural resources damages assessment process, and BP agrees that 

the participation of the Alliance in this agreement shall not result 

in a credit against or defense to any claims for natural resource 

damages or assessment costs. So we are independent of NRDA. 

The objectives of GRI are to study the impacts of the oil, dispersed oil, and dispersant on the ecosystems of the Gulf of Mexico 

and affected Gulf States in a very broad context of fundamental understanding of the dynamics of these events, the associated environmental stresses, and public health implications. 

The GRI will also support the development of improved oil spill 

mitigation, oil and gas detection characterization, and remediation 

technologies. 

Ultimately, the goal is to improve society’s ability to understand 

and respond to events like this and to understand the effects on 

coastal ecosystems, with an emphasis on Gulf of Mexico. 

We have establish and are implementing peer-reviewed competitive grant programs to support research that advances this understanding in five areas: first, physical distribution, dispersion and 

dilution of petroleum, its constituents and associate contaminants 

such as dispersants under the action of physical oceanographic 

processes, air-sea interaction and tropical storms. 

59 

Second, the chemical evolution and biological degradation of petroleum dispersant systems and their subsequent interaction with 

coastal, open ocean and deep water ecosystems. Third, environmental effects of the petroleum dispersant system on the sea floor, 

water column, coastal waters, beach sediments, wetlands, marshes 

and organisms, the science of ecosystem recovery. 

Fourth, technology developments for improved response, mitigation, detection, characterization and remediation associated with oil 

spills and gas releases. And fifth, fundamental scientific research, 

integrating results from the four other themes in the context of 

public health. 

The Research Board has released two requests for proposals, 

which we call RFP–1 and RFP–3. We anticipate issuing another request for proposal later this year. The first of these, RFP–1, was 

announced on April 25th of this year. Through this program, a 

minimum of $37.5 million per year will fund approximately four to 

eight research consortia to study the effects of the Deepwater Horizon incident. 

It is anticipated that each grant will be for up to 3 years and will range between $1 million and $7.5 million per year. The research 

will be conducted through these consortia and must address one or 

more of the five areas that we have described. The proposals are 

being accepted until the 11th of July and we anticipate announcing 

the results of this competition August 30th. 

The second RFP will be for funding smaller research teams. It 

will focus on individual investigators with up to three co-principal 

investigators; a maximum of $7.5 million per year will be available 

for those grants. 

And earlier this year, the Research Board recognized the need to 

provide short-term or emergency funding to sustain some data collection that had already begun over the summer. On June 7th, we 

announced the availability of $1.5 million of emergency funding, 

and are conducting an expedited review of proposals that we have 

received. We anticipate announcing the results of that competition 

at the end of this week. 

So the GRI supports research that contributes to our understanding of how the Gulf of Mexico was influenced by the Deepwater Horizon oil spill and how this rich and dynamic environment 

is recovering. This information will undoubtedly be useful and informative to the NRDA program and we expect it to provide valuable insight for the long-term analysis of ecosystems since it lasts 

for 10 years. 

Thank you very much for the opportunity. 

[The prepared statement of Ms. Leinen follows:] 

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Senator CARDIN. Thank you very much, Dr. Leinen. 

Dr. Rifkin. 

STATEMENT OF ERIK RIFKIN, INTERIM EXECUTIVE DIRECTOR, NATIONAL AQUARIUM CONSERVATION CENTER, NATIONAL AQUARIUM 

Mr. RIFKIN. Good morning, Chairman Cardin, Ranking Member 

Sessions and remaining Members of the Subcommittee. Thank you 

very much for inviting me to testify today. 

On July 27th of 2010, approximately 1 year ago, the National 

Aquarium was invited to testify before this Senate Subcommittee 

on a hearing titled Assessing Natural Resource Damages Resulting 

from the BP Deepwater Horizon Disaster. 

At that time, I emphasized the importance of independent research to address concerns related to our ability to accurately 

quantify potential chronic damages to natural resources in the 

Gulf. The rationale for this view was and still is based on the concern that the current NRDA process is not using a methodological 

approach which adequately measures small quantities of petroleum 

contaminants which could have chronic impacts on aquatic biota. 

And this is important because small amounts of contaminants in 

the water and in the sediment porewater through a process called 

bioconcentration or biomagnification can increase exponentially in 

aquatic flora and fauna. 

More specifically, my testimony and the written testimony of the 

other researchers on the panel at that time suggested that devices 

called passive diffusers can be used to measure low levels of petroleum in order to accurately characterize ecological risks and impacts. 

Since the last hearing, as Senator Cardin mentioned earlier, the 

National Aquarium Conservation Center, in collaboration with the 

Mote Marine Laboratory and Johns Hopkins University, has deployed sophisticated petroleum contaminant samples as deployed 

by the USGS well over a decade ago, using semi-permeable membrane devices, the acronym for which is SPMDs. These devices 

function as virtual fish and provide unparalleled time-integrated 

data on low levels of petroleum contaminants in the water column 

and sediment porewater, data necessary for assessing potential 

chronic impacts. 

By using the SPMDs, we were able to level low levels of individual PAHs, these are organic pollutants found in petroleum, in 

the water column and in the porewater in areas impacted by the 

BP spill. Our preliminary findings support the contention that data 

obtained by these devices when incorporated into bioconcentration 

models, will provide a far more accurate assessment of the nature 

and extent of chronic damages in the Gulf than the standard approach of using grab samples for water and sediment. 

Our samples came from impacted areas off the coasts of Louisiana, Mississippi, Alabama and Florida. A number of months ago, 

we had an opportunity to meet with representatives from the Environmental Protection Agency so that we could share our preliminary results with the agency and obtain advice and guidance from 

their research scientists. 

64 

At our meeting and subsequent conference calls, EPA scientists 

support the view that there was value in using these passive diffusers to monitor levels of these so-called PAHs. Incorporating 

EPA’s technical suggestions, we refined our method and once again 

deployed these devices in Barataria Bay, which is in Louisiana, as 

you all know. The results from this recent effort should provide values which can be used to model the bioconcentration of contaminants in the food chain, provide empirical data which can be used 

in bio-assays to assess and quantify chronic damages, and reduce 

the level of uncertainty when assessing chronic damages from exposure to oil from the BP spill. 

The ramifications of our findings should not be underestimated. 

To date, the vast majority of water and sediment grab samples obtained for the NRDA have resulted in PAH concentrations being reported as ND or non-detect. That is, below the analytical detection 

limit. Non-detect equates to zero. 

So the assumption has been made that there are insignificant 

damages to natural resources from the released PAHs. However, 

the PAH values below detection and predetermined benchmark values from grab samples doesn’t mean that PAHs are absent or 

present at levels which are not harmful. 

The NRDA protocols reports the use of benchmark values as the 

basic determinant for whether concentrations of PAHs and other 

contaminants constitute an ecological risk. However, benchmarks 

are only meant to be used for screening purposes only. They are 

not regulatory standards or criteria. Benchmarks cannot be validated for all sites and situations. They can be defended only in 

terms of regulatory precedent. 

And while EPA and other agencies provide broad guidelines for 

the assessment of benchmark end-points, specific end-points are 

not identified. A meaningful NRDA must be able to incorporate empirical data in economic models in order to accurately assess chronic damages and injury to natural resources in the Gulf. This perspective should certainly apply here, given the magnitude and 

scope of this oil spill. 

In light of our preliminary findings, there are reasons to give serious consideration to expanding the use of these diffusers in impacted areas of the Gulf as soon as possible. This will increase our 

ability to assess causality between the release of oil and injured resources and/or lost human use of those resources and services. 

I thank you very much for your time. 

[The prepared statement of Mr. Rifkin follows:] 

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Senator CARDIN. Thank you, Dr. Rifkin. 

Mr. Graves. 

STATEMENT OF GARRET GRAVES, CHAIR, COASTAL 

PROTECTION AND RESTORATION AUTHORITY 

Mr. GRAVES. Thank you, Mr. Chairman, Ranking Member, and 

Senators, I appreciate the opportunity to be here. My name is Garret Graves and I serve as the Chair of the Coastal Protection and 

Restoration Authority of Louisiana. It is a State agency that was 

created after Hurricane Katrina to be the single State entity 

charged with coastal sustainability, hurricane protection and other 

coastal resource issues in the State of Louisiana. 

Mr. Chairman, I think it is important to provide some background for the conditions in coastal Louisiana prior to this disaster 

occurred. Going back about 80 years ago, Federal levees put on the 

lower Mississippi River was the primary cause of the loss of approximately 1,900 square miles of coastal wetlands, and these are 

jurisdictional wetlands just like you or I would have to get a permit 

for impacting. 

There has been no mitigation done for that 1,900 square miles 

of loss. In addition, over the last 6 years we have been impacted 

by Hurricanes Katrina, Rita, Gustav and Ike that all took an extraordinary toll on our State. 

I tell you that because our coastline is very different than the 

other 35 coastal States and territories in this Country. It is a very 

fragmented coastal area, with a lot of nooks and crannies. If you 

measure the shoreline from Mississippi to Texas, you get about 800 

miles. But if you actually measure the actual tidal shoreline, it is 

much closer to about 8,000 miles. So it is a very, very different 

coastline and trying to protect that area from oil was a very extraordinary challenge. 

At the same time, this coastal ecosystem is very, very productive. 

U.S. Fish has called it the most productive ecosystem on the continent. Approximately 90 percent of the marine species in the Gulf 

of Mexico are dependent upon that estuary in coastal Louisiana for 

at some point in their life for survivability. Ninety-eight percent of 

the fisheries and shellfish that are commercially harvested in the 

Gulf of Mexico, again, are dependent upon coastal Louisiana’s wetlands and our unique estuary, where 90 percent of the fresh water 

that flows into the Gulf of Mexico comes through our State. 

At the same time, this area is home to 5 million waterfowl, 25 

million songbirds, and is the largest wintering habitat for migratory songbirds and waterfowl. So again, a very, very productive 

area. It is home to 70 rare, threatened and endangered species, and 

the coastal wetlands that we have lost played an important role not 

just in terms of ecosystem services, but also in terms of keeping a 

buffer between the Gulf of Mexico and our populated communities. 

We saw the impact of that after Hurricane Katrina. 

On the economic side, Mr. Chairman, if you collectively look at 

the five Gulf States, the GDP of those areas, if it were compared 

to a nation, it would comprise the seventh largest economy in the 

world. So much economic activity is ongoing there. In coastal Louisiana alone, we have five of the top 15 ports and approximately 

20 percent of the Nation’s waterborne commerce comes through our 

99 

ports and river systems, which is hundreds of billions of dollars annually. And at the same time, this area produces or transports approximately one-third of the oil and gas that is consumed in the 

United States. 

So from an economic side, the Gulf Coast, coastal Louisiana is 

very, very important. 

Though we have had these historic challenges, we have been able 

to make progress in recent years. The State of Louisiana has made 

unprecedented investment in trying to restore our coastal wetlands. And as a matter of fact, in recent weeks the U.S. Geological 

Survey released a report indicating that it appears that we have 

created approximately 200 square miles of land, while the historical loss rate has been anywhere from 11 to 16 square miles on average over the last 80 years. We in the last 3 years have perhaps 

created up to 200 square miles. So we are making progress. 

This oil spill came in the worst place because of the productivity 

of this ecosystem. And it came at the worst time because we were 

rebounding. We reversed the loss of the trend that had been ongoing for decades. 

To give you a few spill statistics, 92 percent of the heavily and 

moderately oiled shorelines were in coastal Louisiana. And even 

today, 100 percent of the heavily, over 99 percent of the moderately, 81 percent of the light and about 96 percent of the very 

light shorelines oiled are still in coastal Louisiana today. Over 60 

percent of the marine species, the birds, the mammals, the fish 

that were collected, that were injured, sick or oiled during this oil 

spill were collected in coastal Louisiana. So incredible impacts on 

our State. 

I am going to flip over to the response and the NRDA side very 

quickly. BP is to be commended for coming to the table with their 

checkbook. I think it is a very, very important thing to keep in 

mind. They came to the table with mental health dollars, with 

tourism funds, seafood safety and marketing funds. And we very 

much appreciate that. 

But I want to paint the box that we are in today. As you very 

well know better than I do, this Country is facing fiscal challenges. 

Our State is facing fiscal challenges. There is a $1 billion cap on 

the oil spill liability trust fund to fund oil spill response activity, 

including NRDA; a $1 billion cap. We are over $900 million in expenses from this disaster so far. 

And so the only source of money for us in this case is BP It is 

the only source of funding to a large degree to fund response, to 

fund NRDA operations. 

Mr. Chairman, I think that equation needs to be flipped over. I 

think that the public should be in the driver’s seat. By being able 

to control the checkbook, you can control what is in these work 

plans, how the NRDA assessments are conducted, the timeline of 

the NRDA assessments, perhaps losing access to ephemeral data 

because of the negotiations ongoing with these work plans. 

BP at the same time has hired armies of attorneys, of marketing 

firms, of P.R. campaigns, lobbyists, scientists, consultants and 

other experts. And we have to compete with that, the States do, the 

Federal Government does. And as long as we are not provided access to the funds that are needed for us to truly put up a strong 

100 

case for the public, it perhaps provides a situation where the 

public’s resources, the public’s trust is not properly represented. 

And I think that equation needs to be entirely flipped over. 

Three other quick points. I think it is important, the question, 

and I know, Senator Sessions, you have an extensive legal background, what other situation do you have where the defense is allowed to govern or rein in the plaintiffs in terms of the activities 

they carry out through exercising their governance of the funding? 

I don’t know of any other scenario. 

The NRDA process does take too long, as has been noted. Senator Vitter and Senator Landrieu did file legislation to require a 

down payment. I think that is critical. Our citizens have already 

been victimized. Our economy has been victimized. And by allowing 

for a 10-year, 15-year or 20-year process for recovery of that ecosystem and those natural resources is unacceptable. And for the 

statutory confines to allow for that, I think that needs to be revisited. 

We need to have accurate science, Senator, Mr. Chairman, we 

need to have accurate science and base our recovery upon that. But 

at the same time, we can’t allow these resources to sit in a degrades State for decades. It is inexcusable to the public. 

The last point I would like to make is that I know this Committee has jurisdiction over the Clean Water Act. I think I represent all Gulf States in saying that we strongly support the recommendations of the National Oil Spill Commission, Secretary 

Mabus and others that have recommended that those funds be returned to the Gulf States for environmental-type uses. 

I don’t think it is appropriate for the Federal Government to 

profit from the loss that has occurred in the Gulf Coast. 

Thank you. 

[The prepared statement of Mr. Graves follows:] 

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Senator CARDIN. Thank you very much for your testimony. 

Mr. Shattuck. 

STATEMENT OF R. COOPER SHATTUCK, CHAIRMAN, EXECUTIVE COMMITTEE, NRDA TRUSTEE COUNCIL, LEGAL ADVISER TO GOVERNOR BENTLEY 

Mr. SHATTUCK. Thank you, Chairman Cardin, Ranking Member 

Sessions, Members of the Subcommittee. Thank you for the opportunity to speak today. 

Thank you, Senator Sessions, for that most gracious introduction. 

I won’t bore you with the statistics for the significance and the 

size of the oil spill, which we all know too well. Suffice it to say 

it was unprecedented. It has impacted five States along the Gulf 

Coast and the Gulf of Mexico itself, which is one of the United 

States’ greatest resources. Impacts to the Gulf include commercially important aquatic life; endangered or threatened species of 

turtles, birds and marine mammals; habitat use; migration patterns and erosion; and most significantly, the loss of use of these 

resources. 

The Gulf is an essential habitat for countless species of fish and 

shellfish; contains numerous species of marine mammals, many of 

which are protected or endangered; turtles; marshes that provide 

feeding and nesting habitat for offshore, near-shore and marsh 

birds. And the presence of oil in these habitats may lead to decreased habitat use in the area, altered migration patterns, altered 

food availability, and disrupted life cycles. 

The oil may also cause plants to die, whose roots stabilize the 

soils and thus lead to erosion. 

And this is not to mention the loss of use of these resources, 

which for Alabama, like many of the other States along the Gulf 

Coast, is a significant factor. 

Travel-related expenditures in just one of our counties has been 

reduced by $500 million as a result of the impact of the oil spill. 

Commercial seafood landings, as Senator Sessions pointed out, are 

down 50 percent from 2009. 

The response to the spill from a natural resources perspective 

has also been unprecedented. The NRDA Trustees have secured $1 

billion from BP for early restoration projects in the Gulf. The fact 

that the Trustees and the responsible party have even attempted 

to address early restoration of this magnitude is extraordinary. 

The sum secured for early restoration alone is larger than the 

entire NRDA restoration process for the Exxon Valdez spill. Under 

the framework for early restoration, each Trustee, the five States 

and the Department of Interior and NOAA will select and implement $100 million in projects, with the remaining $300 million 

used for projects selected by NOAA and the Department of Interior 

from proposals submitted by the State Trustees. 

This agreement would not have been possible without the combined and concerted efforts of all of the Trustees working together. 

With so many resources and agencies involved in this daunting, 

but incredibly important task, it is essential to ensure continuing 

cooperation and coordination to guarantee that restoration of our 

natural resources is carried out to the benefit of all, both from an 

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early restoration perspective and for the long-term benefit of the 

Gulf as a whole. 

In order to manage these early restoration processes and continue the assessment that has been ongoing for some time, the 

Trustee Council has formed an Executive Committee. The committee is made up of representatives from each of the Trustees. We 

have also created subcommittees dedicated to specific tasks as part 

of our charge, each of which is chaired by a representative of the 

trustees. 

The executive committees themselves work together to make 

sure that each Trustee is represented in an equal and balanced 

manner, to ensure that the priorities and goals of all Trustees are 

achieved. 

The resource assessment process and early restoration project selection present many challenges, given the magnitude of this disaster, its widespread impact, and the number of parties involved. 

Each State was impacted differently and all may have unique priorities for the needed restoration, as may each Federal agency. 

Even within a State or agency, there will be different approaches 

and ideas about how to meet these needs and achieve these goals. 

After all, restoration on this scale has never been done before. All 

of the different perspectives and ideas have the potential to lead 

to many disagreements over how best to assess the damages sustained and how best to spend the funds to restore our natural resources. 

Such disagreements could easily manifest themselves between 

the States, between the States and the Federal Government, and 

between the different Federal agencies, or between Democrats and 

Republicans. However, we must be reminded that the natural resources do not share our notions of boundaries and borders. A fish 

does not realize when it crosses from the waters of Mississippi into 

Alabama, or from State waters to Federal waters. 

Wetlands do not begin an end indiscriminately at State borders, 

but instead cross them. An oyster does not know whether it sits in 

the waters of a red State or a blue State. 

Just as it was necessary for us to frame our initial discussions 

in fairness for the common good of all, we will be challenged to 

eliminate disputes based on our boundaries and maintain our focus 

on the ultimate goal of restoring the Gulf of Mexico’s natural resources and hold the responsible party responsible. 

But we have created and experienced the precedent that will 

allow us to accomplish just that. From the beginning of this disaster, it was essential that the States and Federal Government 

work together through the response and cleanup process and we 

did. And as we began the monumental task of assessing the extend 

of the injuries to our natural resources, the need for cooperation became pronounced, and we have done just that. 

Obtaining $1 billion for early restoration projects set new standards for our ability to tackle obstacles and succeed by uniting for 

a common good. The cooperation between the five States is unprecedented, and the cooperation between the States and the Federal 

agencies has likewise been unprecedented, and the need continues. 

121 

We simply must remain united against the responsible party to 

see that the damages caused by this disaster are indeed corrected 

and restored. 

The communication and cooperation has and will continue as we 

select early restoration projects. Though the full extent of the damages to the resources is not yet known, all agree that there must 

be a nexus between the oil spill, the injury and the projected benefits of the project. Cooperation is not only necessary for the selection of the projects, but the implementation of them as well. 

I would like to report that the process is going well. We have 

challenged ourselves to some fairly demanding timelines. Our plan 

is to select an initial set of early restoration projects in July of this 

year. Even as early restoration projects are selected, negotiated 

and implemented, the NRDA process will continue in order to determine the full extent of the damage to our resources and our 

long-term restoration plans. 

Thus far, the NRDA process must be measured as a tremendous 

success. We have secured an historic sum of money within a year 

of the tragedy which created this assessment, and the monumental 

task continues as to what will undoubtedly result in the most widespread and thorough analysis of a significantly large ecosystem as 

has ever been attempted. 

All of this is unprecedented. We rest assured that if the successes of this process are to continue, such cooperation that we 

have experienced between the States, the Federal Government and 

all of the agencies affected will not be a luxury, but will be a necessity. 

I am confident that it will continue, and everything that has 

made this process unprecedented will create a precedent by which 

future cooperative efforts will be possible. 

Thank you. 

[The prepared statement of Mr. Shattuck follows:] 

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Senator WHITEHOUSE. 

[Presiding] Thank you, Mr. Shattuck. 

Since I will be chairing the remainder of the hearing and will 

therefore by definition be here until the end, I will not insist that 

my distinguished Ranking Member wait through my questioning, 

but I will yield to him so that he may proceed. 

Senator SESSIONS. Thank you, Mr. Chairman. We have done this 

before on the Judiciary Subcommittee that you and I participated 

in as Ranking and Chair. 

Mr. Shattuck, thank you for your comments. I am pleased to see 

the emphasis on collaboration and cooperation and openness in the 

process. The only flip side of that coin a bit is somebody in charge 

and can we make sure it happens on time? But you have already 

selected projects that would commence before the year is out. Is 

that correct? 

Mr. SHATTUCK. We are in the process of selecting projects. We 

hope to have the selected by the end of July, to be implemented before the end of this year. Yes. 

Senator SESSIONS. And of the 80 trustees, do they vote individually? Is that how decisions are made on these projects? 

Mr. SHATTUCK. Yes, sir. Each Trustee, and there are seven, one 

from each State, one from NOAA and one from the Department of 

Interior. Each have a vote on selecting a project. Projects are selected by a majority vote and then we will move forward with the 

process of negotiating with BP the offsets for those projects. 

Senator SESSIONS. Back to a fundamental question on the NRDA 

process. To what extent do you consider it, and the trustees, to 

what extent do you consider that the process to make the region 

entirely whole? Or is it just a part of it? 

Mr. SHATTUCK. It is just a part, unfortunately. It addresses only 

the damages to natural resources, and that is its limit. And unfortunately, the damages that Alabama has sustained, for example, 

are much greater than that. Though many of the damages we have 

sustained are tied to the loss of our natural resources and the loss 

of use of our natural resources, the NRDA process doesn’t address 

those economic losses for individuals, businesses or the State itself. 

Senator SESSIONS. Well, I know Governor Mabus was very clear 

on that in his report, which is really dealing, I suppose, more with 

the Oil Spill Act damages that eventually have to be paid by BP 

under the Oil Spill Act. But he noted this section outlined a proposal for Congress to create a new Gulf Coast Recovery Council 

that would be funded in part by civil penalties collected under the 

Act and which would work to facilitate environmental restoration 

and economic recovery and attend to the health issues arising from 

the spill. 

Is that what you understand that will be the next project or another project that could be going on contemporaneously with this 

project? 

Mr. SHATTUCK. Yes, sir. And we hope that Congress will consider 

giving the States, as Mr. Graves pointed out, 80 percent of the 

Clean Water Act funds that might ultimately be assessed to address all of those losses, whether they are environmental or economic. 

129 

Senator SESSIONS. And whereas there has been some language in 

the legislation I have seen that proposed giving States a certain 

proportion by State, most of the money as I have seen in the legislation will be based on an overall need process. Is that what most 

of the legislation says? 

Mr. SHATTUCK. That is what I understand. 

Senator SESSIONS. I would just comment on a number of things. 

I felt very strongly that this accident should not have happened. 

And I think the reports are showing that. I feel very strongly that 

the responsible party, the one that by law signs, no matter whether 

subcontractors are liable or not, they are responsible for all of the 

damages, and that is BP And they are responsible to their last dollar of their corporate existence, as far as I am concerned. 

I think they have moved forward and in some ways been very helpful in this $1 billion. I think they were not legally required to 

produce it this soon. Is that correct? 

Mr. SHATTUCK. That is correct. 

Senator SESSIONS. I thought that was a positive step on their behalf of sustained and unprecedented damage and the size of the 

spill. And I would note that I am very unhappy that there was not 

the kind of capping mechanism already constructed that you would 

have thought the oil company would have had to shut this thing 

off shortly after it happened. 

Now, Mr. Reilly on the part of the commission, and Mr. Rifkin, 

was that the commission you served on with Mr. Reilly? You did? 

Well, he testified here a month or so ago that there now has been 

designed a cap that could be put over any blowout like this that 

would in a matter of days be able to capture that. Is that your understanding? 

Mr. BOESCH. Senator Sessions, that is correct. There are two industry groups that have developed that capacity. And if you remember the controversies over the permits reassuming the deep 

water drilling, a large part of the demonstration to meet these new 

requirements was to demonstrate that they had this deep water 

containment capability. 

So after those two groups developed that they had the capacity 

satisfactory to the assessment of the Department of the Interior, it 

was at that point that they granted the permit to resume deep 

water drilling. 

Senator SESSIONS. Well, Mr. Graham Reilly, former head of EPA, 

did testify. He thought that had the capacity to be done in a matter 

of days. So we went 90 some odd days. How many days? Almost 

90 days of pouring oil that really was a thing that is most concerning about it. 

So, Mr. Chairman, I do think that we have learned a tremendous 

amount from this process. The United States has benefited dramatically from the production of oil and gas from the Gulf. It needs 

that oil and gas for our economy, jobs and growth. I hope that we 

will be able to continue it. We have learned how to remediate and 

I think we have learned how to stop an accident if it ever were to 

happen again, and frankly should not have happened the first time. 

But I do believe we have a capability now to shut it off. 

So hopefully, the Gulf Coast area is ready to go forward in the 

future. We want to fix our economic problems that have been seVerDate Aug 31 2005 11:50 Apr 07, 2017 Jkt 000000 PO 00000 Frm 00133 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\21155.TXT VERN
130 

vere. And we also want to use this as an opportunity for, as I know 

you share, an assessment, a baseline and future projection for a 

more productive and environmentally positive environment on our 

coast. 

Thank you for participating and allowing me to participate in 

this hearing. 

Senator WHITEHOUSE. Thank you, Senator Sessions. 

I think we learned a lot from this incident about the status of 

our baseline research along our coasts and oceans. Senator Vitter 

was very eloquent a little while ago on how far behind we are on 

the stock assessments and how dated most of those are in areas in 

which coastal flooding and weather events and increasing ocean 

levels and all of that are affecting what can happen along the 

shores, and the development capacity of the shoreline and what 

needs to be protected and buttressed. And we seem to be way behind on LIDAR studies. Our physical oceanography, we seem to 

have a far from robust baseline in terms of our currents and temperatures. 

If we are going to address the issues that we face in our oceans 

and along our coasts, how much do we need to improve our baseline research capability, our awareness of what is going on out 

there, and what are the best methods to do it? 

And I will go right across the table. This is not a Gulf-specific 

question. This is a generic question. 

Dr. Boesch. 

Mr. BOESCH. Yes, Senator, I couldn’t agree with you more. We 

need to have better information about our national ocean to make 

prudent decisions about it. Since the commission did focus on the 

Gulf, let me make just a few comments. 

First of all, we were shocked to see that as the industry moved 

into deep water over really only the last 20 years, the really spectacular new technology, there was not the investment by our government in understanding that environment. So at the time this 

was taking place, the investment in studies of that Gulf of Mexico 

environment were actually declining. 

To redress that, we recommend that not only for oil and gas development, but for all kinds of energy development around our 

coasts whether it is oil and gas in the Alaskan Arctic or wind 

power in the Mid-Atlantic, we should have a better capacity, since 

we were just talking about energy issues, to understand the environment. 

So our recommendation is that there should be a really modest 

fee, if you will, recognizing the Federal deficit problem, there 

should be a modest fee to the industry much like a State would 

have a severance tax, that would pay for the appropriate regulation 

and the appropriate studies to support that going forward, so that 

you would have a predictable support base to sustain those studies. 

One final thing, as you know, Senator Whitehouse, since you 

have been a champion of this, there is this great interest and move 

around our Country to create ocean observing systems, where we 

can continuously, using modern technologies, monitor the State of 

the ocean. If any part of our national ocean needs an integrated 

ocean observing system, it is the Gulf of Mexico, with the great economic engine that it is in oil and gas production, shipping, fishVerDate Aug 31 2005 11:50 Apr 07, 2017 Jkt 000000 PO 00000 Frm 00134 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\21155.TXT VERN
131 

eries, all of the conflicting uses. And again, we have the resources 

with that industry and we have the infrastructure, all of the platforms that exist out in the Gulf of Mexico, to have a first-rate, innovative observing system that will help us make decisions going 

forward. 

Senator WHITEHOUSE. Thank you, Doctor. 

Dean Leinen, again, with respect to the adequacy of our current 

research baseline on oceans and coasts and what you would recommend to improve it. 

Ms. LEINEN. Well, I think that Dr. Boesch has spoken eloquently 

about the Gulf. I will branch out a little further from there. That 

lack of ability to understand not only the conditions as they stand 

today, but also the processes that evolve over decades, is a real hindrance to our ability to make good decisions, whether it is the decline of the winter flounder in Rhode Island or whether it is the 

increase in diseases that humans get that we see in the wild dolphin in Florida. 

We have very little ability to go back and understand what the 

causes of those features are. 

When you compare this to weather, we understand how much 

changing weather influences the economy. But I think that we 

haven’t realized how much that lack of knowledge and lack of predictability about the oceans affects our competitiveness, our ability 

to use resources wisely, and our ability to prepare for the changes 

that we will see in the future. 

So it is a need for baselines. It is a need for understanding evolving processes as well. 

Senator WHITEHOUSE. I will followup on these questions with the 

remaining witnesses, but my questioning time at this point has expired and our Chairman has returned. So I will yield to the Chairman and then perhaps the Chairman will give us another round 

afterwards so that we can continue this line of inquiry. 

Senator CARDIN. [Presiding] Let me thank Senator Whitehouse. I apologize for 

having to leave. We have the Jim Cole nomination on the floor for 

Deputy Attorney General, as I know Senator Sessions is aware and 

Senator Whitehouse, both from the Judiciary Committee. So I 

added to that debate a little bit on the floor. 

I want to continue on this baseline issue, but I would like to get 

the views of Mr. Graves and Mr. Shattuck as to whether you believe there are adequate resources available to you as Trustees to 

get the type of independent technical support to make the type of 

assessments that we have confidence are the best that we possibly 

can. 

The baseline is a very difficult challenge. No one denies that. But 

having the resources available to get the independent type of 

verification review and technical assistance, to me, would be very 

important. Do you believe the Trustees have adequate resources 

here? 

Mr. SHATTUCK. Well, there are never enough resources, to be 

honest, but I don’t think that we have been impacted or that the 

process has suffered in a detrimental way at this point from a lack 

of resources. And I think part of that is the economic incentive that 

BP has to see that this process is funded, which sounds 

132 

counterintuitive, but I think BP wisely has determined that if they 

do not fund it at this point, then they are going to pay for it in 

the long run and it is going to cost even more. 

So as long as we have that economic incentive for them, we both 

benefit from it, in a way, because the studies are done. But who 

knows? We aren’t finished yet and it could be at some point we are 

hampered by lack of resources if BP decides to cut them off. 

And our State, Alabama, is strapped financially. We are in dire 

financial straits and we don’t have the capacity to sponsor studies 

of the Gulf of Mexico or even to the resources that we have on our 

own. It is simply not there. 

Mr. GRAVES. Mr. Chairman, I would say that I think there are 

resource issues. And just to lay out, under the current statutory 

confines for how this would work, if we wanted to try and assess 

the impact on red fish in the Gulf of Mexico, we have to develop 

a work plan for how that assessment would be conducted. And we 

have to go present that to BP, and then there is a negotiation process. 

I am going to embellish this just to give you an idea of what we 

have to go through. But during that negotiation, they can say, well, 

we don’t really like the area where you have chosen to do this assessment. We think you ought to go to West Texas. And we say, 

well, wait a minute. There wasn’t oil in West Texas. They say, well, 

if you want the money, then you need to do it in West Texas. 

And so you are in a very difficult situation because of the box I 

tried to describe earlier where, as Mr. Shattuck indicated, the 

States have fiscal challenges. The Federal Government does. There 

is a $1 billion cap on the oil spill liability trust fund that we are 

very close to hitting. 

And so BP is, to a large degree, the only funding source there. 

And if you want access to those dollars, you have to have a negotiation and they have to agree to fund it. 

Senator CARDIN. That seems to be the problem. 

Dr. Boesch, it seems to me that your recommendations really 

deal with that by suggesting there needs to be independent, scientific auditor available to verify that in fact we are using independent judgment here. 

Elaborate a little bit more on that and whether you think we are 

implementing that recommendation? 

Mr. BOESCH. I think having such audit independent assessment 

is valuable for a number of reasons. First of all, for the public confidence that the right thing is being done all the way around. Second, as we begin the restoration efforts, there is going to be a requirement to make sure, as Mr. Shattuck indicated, that this nexus 

between the damage and the restoration, to the degree possible, is 

there. 

And having that independently evaluated I think is important 

because imagine, as he indicated, there are five States, each with 

their own independent, their unique problems and approaches to 

restoration, which is fine. But at the end of the day, they all have 

to meet that same standard. 

So absent that, it becomes a problem as we want to court, to adjudication of this, not only between the Trustees and the responsible party, but by third parties who might hypothetically come in 

133 

and say, well, the money that BP gave you really wasn’t used to 

redress this damage; you used it for some other way, so it shouldn’t 

be counted against the amount that BP is responsible for. 

For all those reasons, and I think the most important reason is 

to make sure that what we do with restoration is as effective as 

we can be. That independent evaluation I think is important. 

And you ask the question to the agencies, and they do have lots 

of technical experts, but of course the technical experts work for 

the people within the agencies. So having someone who is independent, having a group that is independent of that I think adds 

real value and accountability to the process. 

Senator CARDIN. I would just observe this is a similar issue that 

came up at our first hearing, whether we would have the capacity. 

I just think the process itself has an inherent conflict because of 

the funding source and the desire, quite frankly, to have a cooperative relationship with the responsible party. That makes sense. If 

you can do it, save time and save uncertainty and gets things moving. But on the other hand, you need to have the independence to 

move in the directions you think you need to. 

And Mr. Graves, you raise a very important concern as to the selection of the site is critical to the assessment. 

So I am not sure we have quite gotten there yet. I think there 

is a real commitment on behalf of the trustees to get independent 

scientific information, but the funding sources and the process 

itself is challenging. And if you don’t have adequate baseline information, it is hard to make an accurate assessment. 

And there, I think Dr. Rifkin, you have really come in and provided some real substantial help on the technology, and I am glad 

to see EPA is at least using the information that you made available. I hope it will be successful, that we will be able to get a more 

accurate assessment of the current damage. 

Have you had any further indications from EPA? 

Mr. RIFKIND. First of all, I would like to say that the methodology that we are using was developed by the USGS way over a 

decade ago and has been used by Federal agencies for many years. 

So this isn’t just something a few scientists came up with recently. 

It is, however, not being used in the Gulf as part of the NRDA 

process, which is a shame. EPA has acknowledged the value in 

using these devices. 

But since everyone was talking about funding, it is difficult to obtain that funding either from EPA or from NOAA or from other organizations. So we are in a position now where we are going to 

have limited data, which is going to be more sophisticated and significant; more sophisticated than what is currently being used in 

the NRDA process and very significant in attempting to quantify 

chronic damages in the Gulf. 

But again, we are very limited in what we can do because of the 

lack of funding. 

Senator CARDIN. Thank you. 

Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. I appreciate this 

opportunity, and I don’t think I have another round of questions. 

I believe it is an excellent panel. It is indeed an excellent panel. 

We are beginning to have a congressional response to the damage 

134 

that the Gulf has sustained. We will work our way through that 

hopefully sooner, rather than later. 

And I thank you for your leadership. 

And Senator Boxer, our Chairman of the full Committee, has 

also given a good bit of her time and attention to this, and her 

leadership can help us lead to a successful conclusion. 

Senator CARDIN. Thank you. I concur completely with our leadership of this Committee. I think that it has focused from the beginning on trying to get the right thing done and to move it as quickly 

and as completely as we can. 

Senator Boxer has been very encouraging to this Subcommittee 

Chair to move forward on these issues. 

Senator Whitehouse. 

Senator WHITEHOUSE. I just wanted to give the remaining witnesses a chance to answer my earlier question, which had to do 

with what I perceive to be the inadequacy of the baseline research, 

and if you agree that is a problem, what can we be doing nationally 

to improve it. Again, not just specific to the Gulf, but including the 

Gulf. 

Mr. RIFKIND. Well, first and foremost, I think the question is 

spot on, and it is a very difficult, complicated issue. Baseline for 

an impacted area such as Sarasota Bay is different than the baseline you will find currently along parts of the coast of Louisiana 

and Alabama because of previous spills. 

And from my point of view, in order to get an adequate baseline, 

which is critical, the right information needs to be obtained periodically and monitored periodically, so that when a spill occurs, the 

baseline is there. It is too late after a spill. 

And today, that is what we are always doing. We are always trying to find a baseline someplace where the spill hasn’t existed, 

which in fact is not scientifically useful because that is not the area 

that we are going to be looking at. 

So I think the agencies responsible for collecting data such as 

NOAA and EPA and Fish and Wildlife Service and other Federal 

agencies need to continually look and monitor, or look to and monitor certain water bodies such as the Gulf so if there is another disaster, that baseline will be available before and not concerns about 

it after the spill itself. 

Senator WHITEHOUSE. Mr. Graves. 

Mr. GRAVES. Thank you, Senator. I often pretend to be expert in 

various fields of my job, but I certainly know the limits of my expertise. If I were to ask that question, I think one of the first 

things I would do is probably e-mail Dr. Boesch and ask him his 

thoughts. So I would largely defer to him, in addition to our internal folks. And if it is OK with you, I would prefer to respond in 

writing. 

Senator WHITEHOUSE. Mr. Shattuck. 

Mr Shattuck. Sure. I am not scientist either, but I think there 

is a fine line. Disasters like this give us 20/20 hindsight vision, and 

it would have been great to have a better baseline, but we have to 

work with what we have. And what we learned from that is that 

it would be great to have a more extensive baseline study throughout the Country just in case something like this happens again. 

135 

But again, I know that you all are battling limited resources, as 

are we, and there is a fine line and balance of how much can we 

afford to do, versus addressing more immediate plans. And that is 

a risky endeavor, but it is one that economics might force upon us. 

Senator WHITEHOUSE. And clearly a good deal of this research is 

done at the State level and through States, through what in Rhode 

Island is called the Coastal Resources Management Council, for instance. 

And as States find their budgets slaughtered, it is hard to imagine that this will improve. And the Federal funding environment 

is one that is looking at cuts. And so I think it is important that 

we try to find new and lasting sources of funding so that we are 

not as ill-informed about the actual status of our oceans and coasts 

as we are right now. In many respects, we are flying blind in certain areas. 

And so I appreciate the testimony of all the witnesses. 

The only other point I would like to raise briefly, it hasn’t come 

up yet and I don’t know if it is a problem. There is a concern that 

when you get to a major incident like this and you have a responsible party that is pretty evident, and there is a lot of money at 

stake, one of the first things that they do is go in and buy up all 

the science; put as many scientists as they can under contract with 

whatever it takes to get them. And then they can dole out which 

ones they want, and the other ones they just have bought their silence, more or less. 

Have you seen that as a problem? And is that something we need 

to attend to? 

I guess I will go to Mr. Graves for that. 

Mr. GRAVES. Senator, it absolutely is an issue. Everything from 

the attorneys we were interviewing back in May to some of the consultants, scientists and other experts. Many of them were conflicted 

out either by pre-spill contracts or there certainly was a big rush 

by the responsible parties to pick those folks up. It absolutely has 

been an issue. 

Thankfully, one of the major areas of science where we needed 

assistance we were able to work our an agreement with the Federal Government to share a consultant there, but I think it is an 

issue. 

Senator CARDIN. Again, let me thank all of you for your testimony and for your work in this area. This is a continuing interest 

to this Committee and its oversight responsibility. 

Obviously, we have to get this right. The stakes are very, very 

high for all of us. It affects our entire Country, not just the directly 

impacted regions. 

So we have got to get this right. We need to learn from how we 

handled previous environmental damage areas and we need to 

make sure that we can justify the process at the end of the day as 

being in the best interests. 

One of the encouraging signs, let me just point out that it 

seemed, and it was a point that you raised, Dr. Boesch, dealt with 

the long-term issues. It looks like that as this is moving forward, 

there is sensitivity that the final assessment include monitoring to 

make sure that we carry out the intended restoration that we 

thought. 

136 

It looks like we have made progress since our first hearing on 

that issue because that was raised immediately that there would 

be damage for a long time to come that may not be quite as well 

defined by the time agreements are reached. It seems like there is 

sensitivity among the Trustees to make sure that is included in the 

long-term solution. 

So let me again compliment all of you for your work and we will 

look forward to continuing to work with you. 

With that, the Subcommittee will stand adjourned. 

[Whereupon, at 12 p.m., the subcommittee was adjourned.] 

[Additional material submitted for the record follows.] 

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR

FROM THE STATE OF OKLAHOMA

Thank you, Senator Cardin, for conducting today’s subcommittee hearing to discuss the difficult and extensive process of determining natural resource damages 

stemming from BP’s Deepwater Horizon disaster. As the Committee of Jurisdiction, 

one of our fundamental roles is to provide oversight of the Natural Resource Damage Assessment (NRDA) process. I look forward to getting an update on the assessment and a thoughtful discussion on some of those issues today. 

Today our committee welcomes two panels of witnesses, Federal and non-Federal, 

that have diverse and unique experiences to share. I’m particularly happy to have 

witnesses from the Gulf Coast such as Cooper Shattuck, Chairman of the Executive 

Committee of the NRDA Trustee Council, and Garrett Graves, Chair of the Coastal 

Protection and Restoration Authority, State of Louisiana. 

As many of you may know, my initial reaction to the Administration’s response 

was critical, as noted in my report entitled, ‘‘Failure of Leadership: President 

Obama and the Flawed Federal Response to the BP Disaster’’. Perhaps time will 

tell us that the greatest threat to the Gulf came from the Obama administration’s 

regulatory overreach on offshore drilling. 

While we still do not know the full extent of the effects from BP’s Deepwater Horizon spill, we owe it to the Gulf region and the American people to carefully examine 

the effectiveness of the Federal response. I hope that this hearing today will be a 

positive step in that direction. 

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