BP says it’s not responsible for paying to reseed oyster beds


State officials’ decision to turn on a number of freshwater diversions full blast to block oil from entering coastal wetlands on both sides of the Mississippi River – a strategy that decimated private and public oyster beds – was not approved by the Unified Command overseeing the response to the BP oil spill in the Gulf of Mexico, a senior BP official said Friday.

“Having been a part of this response since the beginning, I can tell you categorically that the Coast Guard indicated that it was not necessary and was not seen as a viable response technique,” Mike Utsler, chief operating officer of BP’s Gulf Coast Restoration Organization, said Friday. “As a Unified Command, we saw this as a not-needed exercise, and the state still chose to pursue that course of action.”

Utsler said that’s one reason why BP has so far refused to pay to restore oyster beds with cultch, the shell material on which oyster eggs attach and grow in the spring and fall.

A second reason, Utsler said, is research released this week by National Oceanic and Atmospheric Administration scientists that he said showed that oysters process and expel oil contaminants so quickly that they would not have been hurt by the spill.

“I can only quote the fact that there’s an article this week by NOAA … that there’s no evidence that oysters have been tainted by or retained any residual oil. And that’s testing not only by NOAA, but it was by FDA, EPA and the five states that all participated,” he said.

Utsler’s comments were immediately attacked by Gov. Bobby Jindal’s coastal adviser, Garret Graves, who said the diversion openings were coordinated with the Coast Guard, BP and the Army Corps of Engineers, whose water-flow modeling was used to confirm their potential usefulness.

“BP’s comments prove what we have been saying all along — BP thinks that they are unilaterally in charge of the Deepwater Horizon disaster response and recovery,” said Graves, who is chairman of the state Coastal Protection and Restoration Authority. “Neither the Coast Guard, that was supposed to be in charge, nor BP objected to the use of diversions.

“We had two choices: oil on our oysters or water on our oysters,” he said, adding that the freshwater flushing technique was part of the state’s existing oil spill contingency plan. “I’d choose water every time.”

Graves also said the state has repeatedly told BP that it is willing to count any money spent on rebuilding oyster reefs toward the mitigation required under the federal Oil Spill Act’s Natural Resource Damage Assessment process, rather than as emergency cleanup costs. That means it wouldn’t add to BP’s bottom line in the long run.

Utsler did not rule out the possibility that BP would eventually pay for oyster restoration under the NRDA process, which could take several years to complete.

Utsler’s comments came hours after Graves and other state officials held a news conference to slam BP for not paying for cultch projects, and to announce that the state had increased by $2 million, to $4 million, the amount of money it had found in various departments to pay for the projects.

“We have been shaking out the couches at our agency looking for funds to help ensure a healthy spat set,” said Randy Pausina, who oversees fisheries programs at the state Department of Wildlife & Fisheries.

The large amount of fresh water flowing over oyster beds caused significant damage to both private and public oyster beds, said Earl Melancon, an oyster biologist at Nicholls State University in Houma.

The worst damage occurred in the upper reaches of Barataria Bay and Breton Sound, where mortality rates neared 100 percent, he said. The percentage of dead oysters dropped off to the south, as the fresh water mixed with saltier water from the Gulf of Mexico.

That meant the average mortality was 30 percent to 40 percent in Barataria Bay and 50 percent to 80 percent in Breton Sound, he said.

Reseeding quickly is essential to a struggling oyster population that can take two to four years to reach marketable size, said Mike Voisin, owner of Motivatit Seafood and a member of the Governor’s Oyster Advisory Committee. Louisiana’s $360 million-a-year oyster crop – a third of the nation’s oyster production – is already down 50 percent, and will likely stay at that level until a new class of oysters reaches maturity.

BP officials first confirmed they were thinking about forwarding money to pay to rebuild the state’s oyster reefs in November during a news conference attended by Jindal and BP America Chairman and President Lamar McKay to announce the company was giving the state $218 million to pay for seafood marketing and promotion, tourism promotion and barrier island restoration.

Jindal said then the state was working on a separate agreement with BP to pay $15 million for an oyster seeding program and to help finance construction of several new fish hatcheries.

In March, Jindal held a news conference at the Governor’s Mansion to announce that BP had refused to pay for those projects and several other emergency restoration measures, and that the state would pay $2 million to begin the cultch project.

The state had begun using its diversion strategy by May 1, 10 days after the Deepwater Horizon explosion, even as it scrambled to close several segments of coastal waters to fishing as oil from the spill moved toward the Louisiana shoreline.

A week later, the state asked the corps to open the Bonnet Carre Spillway to increase the flow of water into Lake Pontchartrain and then into Lake Borgne, to block oil that already was being found in Chandeleur Sound. Two days later, the Southeast Louisiana Flood Protection Authority-East was looking into breaching the never-used Bohemia Spillway in lower Plaquemines Parish as an oil-fighting measure. Both were turned down by the corps.

By April 30, state and corps officials had increased the flow of river water through the Caernarvon Freshwater Diversion Project on the east side of the river in Plaquemines Parish to 8,000 cubic feet per second. The Davis Pond Freshwater Diversion Project, on the West Bank in Jefferson Parish, was allowed to flow at 4,000 cubic feet per second, and then increased in mid-May to 7,500 cubic feet per second as oil spread west toward Barataria Bay.

State officials also opened locks at Ostrica, just south of Empire on the east bank of Plaquemines, to increase freshwater entering Quarantine Bay.

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Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
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