Abstract
Section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2), states that each Federal agency shall, in consultation with the Secretary, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. In fulfilling these requirements, each agency is to use the best scientific and commercial data available. This section of the Act sets out the consultation process, which is further implemented by regulation (50 CFR § 402).
This document represents the U.S. Fish and Wildlife Service’s (Service) Biological Opinion (BO) based on the Service’s review of the Bureau of Ocean Energy and Management’s (BOEM) Sunrise Wind Offshore Wind Biological Assessment (BA) and its effects on the federally threatened piping plover (Charadrius melodus) and federally threatened rufa red knot (Calidris canutus rufa) and its proposed critical habitat in accordance with section 7 of the ESA (87 Stat. 884, as amended; 16 U.S.C. 1531 et seq). BOEM was the lead agency for this consultation (50 C.F.R. § 402.07).
Both the Service and the BOEM acknowledge that there are significant data gaps relative to our knowledge of bird movement through the wind lease areas. As noted in the Service’s Consultation Handbook (USFWS and NMFS 1998), “Where significant data gaps exist there are two options: (1) if the action agency concurs, extend the due date of the biological opinion until sufficient information is developed for a more complete analysis; or (2) develop the biological opinion with the available information giving the benefit of the doubt to the species. These alternatives must be discussed with the action agency and the applicant, if any. Based on this discussion, a decision regarding the preparation of the biological opinion should be made and documented in the administrative record of that opinion. This subsequent analysis may have minor or major consequences (worst case scenario) depending on the significance of the missing data to the effects determination.”
“If the action agency, or the applicant, insists consultation be completed without the data or analyses requested, the biological opinion or informal consultation letter should document that certain analyses or data were not provided and why that information would have been helpful in improving the data base for the consultation….The Services are then expected to provide the benefit of the doubt to the species concerned with respect to such gaps in the information base (H.R. Conf. Rep. No. 697, 96th Cong., 2nd Sess. 12 (1979)). This subsequent analysis may have minor or major consequences (worst case scenario) depending on the significance of the missing data to the effects determination. The action agency also should be advised that if and when further data become available, the need for reinitiation of consultation may be triggered” (50 CFR § 402.16) (USFWS and NMFS 1998). We have advised the BOEM that if, and when, additional data become available, reinitiation of consultation, pursuant to 50 CFR Part 4012.16, may be required.
The tools available to the Service to quantitatively predict collision impacts include two collision risk models, Band (2012) and Stochastic Collision Risk Assessment Model (SCRAM; Adams et al. in prep). Each model has its strengths and limitations as discussed further in Appendix A of this Opinion and undergo periodic updates. In addition, biological inputs to these models are also limited in scope and coverage and come with their own limitations. For instance, the Motus Wildlife Tracking System (Motus) tracking stations have limitations in how far they can detect birds beyond a certain distance from shore, which creates a level of uncertainty that alone would not provide the Service with an ability to conclude there is a reasonable certainty of take. Consequently, we use other sources of information such as survey findings, historical information, and best professional judgement to support our determination that incidental take will occur as a result of this project. However, before arriving at that decision we had to employ the above model results and information to determine whether the proposed project would jeopardize the continued existence of listed species.