106 



(2) Given the acknowledged scientific uncenainties, the weaknesses in the Assessment pointed out 

 in the SAP evaluation, and recommendations made by the SAP, ore any Conservation 

 Recomnendations included in the Opinion sufficient to (a) ensure that operation of the outfall is not 

 likely to seriously impact the listed populations or critical habitats in question, (b) provide for 

 mitigation of adverse impacts shon of actual jeopardy, and (c) prepare for adverse impacts which 

 might, in fact, jeopardize one or more listed species or critical habitats due to unforeseen or 

 foreseen but very low probability circumstances? 



1. Justification for a no-jeopftidy opinion: 



Since I was in general agiccmcnt with the overall conclusion of the Assessment that die existing 

 scientii^c information indicated that the outfall was unlikely to seriously affect the populations of 

 endaneered'thTeatened cetaceans and turtles found in the Massachusetts Bays system, I also concur 

 with me no-jeopardy opinion. It seems to me that in this case the system of environmental 

 safeguards installed to protect endangered marine fauna has functioned as it was designed to. A 

 project is designed, a dctcrminadon is made that protected species m&y be affected, and the Section 

 7 consultation is initiated. EPA provides the review of existing scientific information necessary for 

 NMFS to inake a judgment. All interested parties have the opportunity to evaluate and comment on 

 the completeness of EPA's review and the validity of their conclusions. NMFS makes a final 

 dctciminaaon in accord with existing scientific information and statutory requirements. 



I believe that the conclusion of no jeopardy is well -supported by the existing scientific data. In my 

 review of the Opinion, I found no substantive scientific errors. Even the critics on the SAP felt 

 that the Assessment was a relatively complete review of the available literature. None of the SAP 

 members, nor any other critics of the outfall project to my knowledge, has cited evidence that 

 showed the outfall was likely to impact the protected species present NMFS indicates in the Fact 

 Sheet accompanying the Opinion that clear evidence for likely impact is necessary for a jeopardy 

 conclusion, and that a jeopardy conclusion would be difficult to justify based only on lack of 

 information or on conflicting evidence. 



The majority of the problems which I and the other SAP members have had with the Assessment 

 and the MV/RA outfall projea in general are with data gaps and uncertainties. Though I do not 

 believe that serious impacts are likely, I recognize that a number of potential avenues of impact do 

 exist. Many of the linkages involved in these potential avenues of impact are very poorly 

 understood. My own most serious misgivings are with the potential of increased frequency of red 

 tides and their possible impacts on protected species in the region. Reasonable scientific opinion 

 on both sides of this question exists, exemplified by the comments of Dr. Smayda in the SAP 

 evaluation. Dr. Malone's response to Smayda included with the EPA response, and the other 

 literature cited in the Assessment, Opinion, SAP evaluation, and EPA response. But none of these 

 authorities to my knowledge has presented evidence that impacts which jeopardize any protected 

 species are likely, only that they might be possible given our poor understanding of the 

 mechanisms which produce red tides. Given these circumstances, a no-jeopardy conclusion seems 

 to be the only choice available. 



In the Opinion, NMFS reiterates that the consultation is to be reinitiated any time the situation 

 changes or whenever new information comes to light indicating possibility of jeopardy, at 

 minimum every five years during the NPDES permit renewal process. Assuming that enforcement 

 mechanisms exist which are strong enough to compel effective, timely mitigation in the event of a 

 jeopardy conclusion during a future consultation, the fact that new data will reinitiate consultation 

 and can change NMFS' conclusions relieves a great deal of my own misgivings about the outfall 

 project. 



