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As a part of ths Cape's on-going avaluation of the MWRA project, the Barnstable 

 County Conunissioners' Science Advisory Panel (SAP) reviewed EPA's Workplan 

 for the Biological Assessment, the Assessment itself, and the Biological Opinion. 

 Copies of these documents have been provided to you. The NMFS considered the 

 SAP's comments in preparing the Opinion, and incorporated many of the issues 

 raised in their reports in the Conservation Recommendations and Additional 

 Studies. 



Before reviewing with you some of our specific comments on the Opinion and the 

 conservation recommendations, I'd like to make three points regarding the process 

 that has culnninated In this decision. The intent of the consultation process, under 

 Section 7 of the Endangered Species Act, is to determine a project's potential impact 

 on endangered and threatened species and their habitats prior to an agencyCies) 

 making irretrievable commitments of funds to the project. 



In this instance, however, the NMFS conducted its detailed consultation and 

 rendered an opinion after the Army Corps of Engineers had issued a construction 

 permit for the outfall tunnel, and afler the MWRA had committed more than $400 

 million and begun construction of the tunnel. Important decisions had been made 

 regarding the location and engineering of the outfall and significant monies had 

 been spent on the project. Thus, we believe there was a irretrievable commitment 

 to the project before this Opinion was rendered, implicitly limiting the field of 

 alternatives and mitigation options considered by NMFS. 



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

 assumption that, where there is conflicting credible scientific evidence or 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. The 

 County's SAP 's agreement with the NMFS "no jeopardy" finding is valid only 

 under the assumptions regarding the process as outlined in the Fact Sheet 

 accompanying the Biological Opinion. I quote the SAP report: 



All SAP members agree with the finding of No Jeopardy. However, the 

 constraints leading to this finding, as enunciated in the Fact Sheet accompanying 

 the Biological Opinion, were new to the panel and had not been enunciated 

 before to the SAP. The unanimous agreement of the SAP members on the 

 finding of No jeopardy is linked closely with the Fact Sheet "ground rules." 



Finally, we believe very strongly that the analysis which forms the basis of this 

 project is flawed in that it did not consider whether the existing conditions in 

 Massachusetts and Cape Cod bays are contributing to the tlireat to endangered and 

 threatened spedes and their habitats, and thus whether the NMFS should approve 

 any action which may additionally pose a threat. Both the Biological Assessment 

 and the Opinion describe the degradation that is occuring in the bays, and the 

 impacts that will result from the discharge of effluent from the MWRA facility. 



