96 



EVALUATION OF 



"NOAA FISHERIES ENDANGERED SPECIES ACT 

 SECTION 7 CONSULTATION: BIOLOGICAL OPINION" 



Isiued 8 September 1993 by the 



Nonheait Marine Fliheiles Service Naitheait Region 



Relative to the Issuance of a National Pollutant Discharge 



Elimination System (NPDES) Permit for the 

 Massachusetts Water Resources Authority (MWRA) Outfall 



David 0. Aubrey, PhD. 



Aubny Consulting, Inc. 



Suite 2-3 



350 GifTord Street 



Falmouth. MA 02540 



and 



Science Advisory Panel (SAP) 

 Cape Cod Comnnission 



3 October 1993 



This review of the Biological Opinion (Opinion) focused on the following aspects: 



1) Is the conclusion of "no-jeopardy" justified in the Opinion, and by available data 

 presented in the Opinion as well as other sources of information? 



2) Are the Conservation Recommendations presented in the Opinion necessary, valid and 

 relarively comprehensive? 



I address each of these issues separately "below. 



1) JustiHcation of the "no-jeopardy" Opinion 



In the Opinion provided by NMFS, the Endangered Species Act Section 7 Consultadon 

 process is outlined. In particular, the actions that NMFS must t^e arc detailed, particularly in light 

 of sciendfic unccnainty. Specifically, the consultation document specifics that 



"♦ In sixuarions where there is conflicting credible scientific evidence or where there is 

 uncertainty regarding impact, a jeopardy conclusion is difficult to justify. Although a certain 

 amount of new studies may be requested to assist in the decision, NMFS must ultimately make its 

 conclusion on the available information." 



and also, 



