97 



"• Even though an action Riay affect or is likely to adversely affect a listed species, it docs 

 not necessarily foUow that the action will ieopardlzc the continued existence of the species. In 

 oitier to find jeopardy, NMFS must have evidence, as stated in the ESA irgulaiions: 



that the action reasonably would be expected, -directly or indirectly, to reduce appreciably 

 the likelihood of both the survival and recovery of a listed species in the wild by reducing the 

 reproduction, numbers, or distribution of that species." 



My review is based on the MWRA Outfall Biological Opinion Fact Sheet which 

 accompanied the Opinion, and assumes all of the process elements (two of which arc extracted 

 above) are correct If these processes aic not correct, then my assessment of the NMFS Opinion 

 might change. 



The major points of concern by the SAP in previous reviews (October 1992 comments on 

 "Pinal Work Plan for Performing a Biolorical Impact Assessment and Related Tasks In Support of 

 Preparation of an Endangered Species Technical Memo" and the 10 July 1993 commcms on 

 "Assessment of PotentJaf Impact of the MWRA Outfall on Endangered Species: Biological 

 Assessment Prepared pursuant to Section 7 of the Endangered Species Act") related to the vast 

 uncertainties in our ability to predict in any quantitative fashion the precise effects of outfall 

 relocation on physical and biologic^ processes in Massachusetts Bay. These uncertainties include 

 physical processes such as circulation, mixing, dispersal, and sedimentation, as well as biological 

 processes related to phytoplankion, zooplankton, and ultimately to marine mammals and other 

 endangered species. Whereas ongoing modeling is expected to reduce the unccnainty in some 

 physical circulation and mixing processes, it was not clear how the uncertainties in biological 

 processes was to be reduced. 



The Outfall Biological Opinion Fact Sheet suggests that jeopardy must be proven by 

 available evidence, whereas no-jeopardy can be based on relative lack of data or scientific insight. 

 This approach seems to short-change the endangered species, though I can understand its utility in 

 a contentious and litigious regulatory environment. 



With the Section 7 consultation procedures and guidance given above, and the difficulty of 

 basing a jeopardy decision on uncertainty, I must agree with the NOAA NMFS finding of No- 

 Jeopardy. 



Moreover, I strongly agree with the need for contingency planning, additional studies, and 

 monitoring. More detailed comments on these issues arc provided in the next section. I also 

 strongly encourage NMFS to evaluate constantly the results of these additional studies and 

 monitoring results, to assure Consultation can be re-initiated if the available data or studies 

 elsewhere warrant such re-initiation. However, to assure such attention by NMFS, a commitment 

 is required to dedicate adequate high quality scientific talent to such reviews. Without such a 

 commitment, this process allowing re-initiation of consultation may not be successful. 



In addition, the significant scientific uncertainties outlined clearly in the Opinion must be 

 addressed in a scientifically-defensible fashion and in a phased approach, to help guide this open- 

 ended consultation process. Details are discussed below. 



2) Conservation Recommendations 



The Opinion provides three types of Conservation Recommendations: a) Contingency 

 Planning, b) Additional Studies, and c) Monitoring. These are discussed in detail below. In 

 general, monitoring and further studies can be misdirected easily, at great cost to the agencies. I 

 can think of few monitoring tasks which have succeeded without clearly stated objectives and 

 goals, whereas I can think of dozens of monitoring and "study" programs which have failed to 



