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nation of eastern Cape Cod Bay as a critical habitat for the right 

 whale. 



Cape Codders have always been aware of the productivity and 

 value of Cape Cod and Massachusetts Bays and Stellwagen Bank. 

 Concern for the region's resources, and for the long-term impact 

 that the proposed MWRA project may have on this system, particu- 

 larly on the endangered and threatened species it supports, have 

 led regional and local governments on Cape Cod, as well as many 

 individual Cape Codders to carefully scrutinize the MWRA propos- 

 als. 



Residents' concerns led Barnstable County's legislative body, the 

 Assembly of Delegates, to pass a resolution in November 1991, a 

 copy of which was submitted for the record, outlining the county's 

 major concerns regarding the use of the MWRA outfall facility. 

 The resolution includes a set of specific actions to be taken to pro- 

 tect the bay's ecosystem. Many of these actions are embodied in the 

 conservation recommendations and additional studies specified in 

 the NMFS opinion. We are pleased to see that NMFS agrees with 

 the county's call to action. We believe that these measures are 

 vital to the protection of our endangered species. 



As part of the Cape's ongoing evaluation of the MWRA project, 

 the Barnstable County Commissioner Science Advisory Panel, SAP, 

 another acronym here, reviewed the EPA's work plan for the bio- 

 logical assessment, the assessment itself and the biological opinion. 

 Copies of these documents have been provided to you. NMFS con- 

 sidered the SAP's comments in preparing the opinion and incorpo- 

 rated many of the issue raised in their reports, in the conservation 

 recommendations and additional studies. 



Before reviewing with you some of our specific comments on the 

 opinion in the conservation recommendations, I would like to make 

 three points regarding the process that has culminated in this deci- 

 sion. 



First, the intent of the consultation process under Section 7 of 

 the Endangered Species Act is to determine the project's potential 

 impact on endangered and threatened species and their habitats 

 prior to an agency's making irretrievable commitments of funds to 

 the project. In this instance, however, NMFS conducted its detailed 

 consultation and rendered an opinion after the Army Corps of En- 

 gineers had issued a construction permit for the outfall tunnel, and 

 after the MWRA had committed more than $400 million and had 

 begun construction of the tunnel. Important decisions had been 

 made regarding the location and the engineering of the outfall and 

 significant moneys had been spent on the project. Thus, we believe 

 there was an irretrievable commitment to the project before this 

 opinion was rendered, implicitly limiting the field of alternatives 

 and mitigation options considered by NMFS. 



Second, we are concerned that this process has been based on the 

 underlying assumption that where there is conflicting credible sci- 

 entific evidence of where there is uncertainty regarding impact, 

 the benefit of the doubt goes to the project. This appears to us to be 

 in conflict with the intent of the act in which the benefit of the 

 doubt was to go to the endangered and threatened species and their 

 habitat. 



