32011 letter. Accordingly, the Biological Opinion is unlawful as currently written, and werequest that the Service retract the Opinion, and that the Corps not rely on the Opinion in anyway, until and unless the Service addresses these vitally important issues in a legally permissiblemanner as mandated by the ESA and its implementing regulations.
I.THE FINAL BIOLOGICAL OPINION IS NOT BASED ON THE BESTAVAILABLE SCIENCE, AND FAILED TO PROVIDE THEINSTITUTIONALIZATION OF CAUTION REQUIRED BY THE ESA.
In the ESA, Congress mandated that the Service’s consultation efforts – including thepreparation of a Biological Opinion – must be based on the “best scientific . . . data available.”16 U.S.C. § 1536(a)(2). Based on a review of the Service’s September 27, 2011 BiologicalOpinion, it is clear that several key pieces of available scientific evidence have been entirelyoverlooked or discarded by the Service in rendering its authorization for this project to proceedin a way that will be lethal not only for thousands of non-listed birds and bats, but also fordozens of members of an endangered bat species already threatened by a rapidly spreading andcatastrophic disease in White-Nose Syndrome (“WNS”). Accordingly, at bare minimum, theService must reinitiate consultation to address the errors identified below. 50 C.F.R. § 402.16.
A. The Service Failed To Consider Macrositing Or Micrositing Changes To TheProject Layout, And Thus Disregarded Without Explanation PersuasiveDeclarations By Leading Bat Biologists.
At the outset, the glaring omission of
discussion in the Biological Opinion aboutpotential macrositing or micrositing changes to the project’s layout and design runs counter tothe ESA’s best available science mandate in section 7.
16 U.S.C. § 1536(a)(2). In ourFebruary 9, 2011 letter, we explained at length that it was legally inappropriate for the Service to“sidestep . . . a vital wildlife conservation option – the avoidance, relocation, or significantmodification of the proposed siting location – and determin[e] to instead jump immediately tothe implicit conclusion that minimization and mitigation of take is the preferred manner of addressing the devastating effects to an Indiana bat maternity colony (not to mention maleIndiana bats).” Circumventing the critical threshold question of whether a wind power projectshould be located at this site
in light of the exigent risks the project poses to an Indiana batmaternity colony undermines accepted principles within the independent scientific community,but also directly contravenes section 7 of the ESA and the federal government’s own insistencethat critical wildlife resources must play a vital role in threshold
decision for windprojects. The following are examples of extremely crucial scientific evidence that was madeavailable to the Service bearing on this issue that the Service apparently discarded, and certainlyafforded no consideration or discussion in the Biological Opinion, in violation of the ESA.As leading bat ecologist Dr. Thomas H. Kunz opined in a June 27, 2010 declaration,“wind project developers should not site projects in or near known Indiana bat maternity