107 



Many of the critics of the outfall project, particularly those from outside the scientific or 

 environmental management communities, do not seem to clearly understand some of the issues 

 involvt^ and the constraints under which the regulatory agencies involved must operate. The 

 Endangered Species Act, like most wildlife or fisheries management legislation, considers impacts 

 and management plans at the level of the populatioir. not the individual. For example, many 

 "animals nghts" activists cannot accept that harvest of some individuals can benefit the majority of 

 the population. Along similar lines, "not likely to jeopardize the continued existence of the 

 species" is not the same as "no possibility of adverse impact to any individual". Critics would like 

 MWRA to have to demonstrate that the outfall will have no effect, with certainty. Rarely, if ever, 

 do we have the luxury of certainty In science. 



2. Sufficiency of the ConservarionRecommendflrions: 



In the Opinion, NMFS states that operation of the outfall "may affect" protected species. A scries 

 of Conservation Recommendations were included in the Opinion to "assess or reduce adverse 

 impacts of the MWRA outfall on listed species." There are four types of recommendations: 

 contingency planning, additional studies (A-1 through A-8), monitoring (M-1 through M-7), and 

 other permit conditions (P-1 through P-3). 



The Conservation Reconuncndarions in the Opinion arc much more detailed and far-reaching than I 

 expected they would be. Coupled with the reinitiation of consultation at flve-ycar or shorter 

 intervals, any adverse impacts should be detectable well before effects have become irreversible. I 

 believe that the Conservation Recommendations should be sufficient to allay most of the concerns 

 expressed by the SAP in our evaluation of the Biological Assessment, in particular those concerns 

 involving data gaps or uncertainties. 



For example, my own evaluation of the Assessment included five recommendations for conditions 

 that I hoped KMFS would include in their Opinion. All five are explicitly or implicitly included in 

 the Opinion and it's Recommendations. Below I have summarized each of my recommendations 

 in a few words, and briefly mentioned how the Opinion (or other document) has addressed that 

 topic: 



(i) Further development and validation of the hydrographic and water quality models: 

 Recommendation A-1 states that the stratified, 3-D model should be reviewed prior to discharge 

 from the new outfall. 



(ii) Regular surveys for endangered species at and near the proposed outfall site; 

 Recommendation M-6 explicitly includes regular systematic surveys for endangered species which 

 would be capable of detecting changes in distribution and/or abundance. In addition. 

 Recommendations M-1 and M-2 deal with the nearficld and farfield monitoring program. 

 Mammals arc not explicitiy mentioned, but they should logically be a component of this 

 monitoring. The Opinion recommends that M-1 and M-2 should be completed before issuance of 

 the NPDES permit. 



(iii) Explicitly required completion of all of the secondary treatment facilities: The EPA response 

 to our SAP evaluation addressed this point, indicating that completion of all secondary treatment 

 facilities would be an explicit condition of the NPDES permit and is required by court order. In 

 addition, the contingency planning Recommendation requested that EPA and COE begin 

 contingency planning for tertiary treatment and complete an EIS for tertiary treatment as pan of it. 



(iv) Monitoring of nutrients, phytoplankton abundance and species patterns, zooplankton 

 abundance and species pancms, red tides, bcnthic conditions, contaminant concentrations, etc., 

 with contingency plans for action to be taken in the event of any potential adverse conditions not 

 predicted by the modeling effon: Recommendations M-1 through M-5 all deal with monitoring 



