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<br />.. <br /> <br />3. \lliAT LEGAL ISSUES ARE RAISED WITH THE "l!INDY GAP" <br /> <br />APPROACH? <br /> <br />The Endangered Species Act and its legislative <br />history make no reference to the "Windy Gap" solu- <br /> <br />tion. Additionally, no case involving the "llindy <br />Gap" solution exists. Accordingly, the legal issues <br />raised are subject to wide interpretation and are far <br />from being resolved by any judicial court. <br /> <br />(a) Does Section 7 of The En~angered Species Act <br />require that Biological Opinions include an <br />analysis of cumulative effects? <br /> <br />In 1978, the 001 Solicitor's office rendered an <br /> <br />opinion that the cumulative impact analysis <br />required by the ESA was as broad as that re- <br />quired under NEPA. In 1981 a new 001 Solicitor <br />withdrew the '78 Solicitor's Opinion and opined <br />that the cumulative effects analysis under the <br />ESA was much more limited than that required <br /> <br />under NEPA. This view, however, has not been <br /> <br />put int.~_~ra.~~i_se _~~_ ~~S__ ~~_~_inst_ea~ _ tE_ey__ s~~J.J <br /> <br />follow the 1978 approach. <br /> <br />(b) Does the ESA permit the issuance of biological <br /> <br />opinions based on inadequate data? <br /> <br />-5- <br />