MEMORANDUM OPINION
This consolidated case comprises four sets of interrelated claims concerning several administrative decisions made by federal agencies approving the construction of various aspects of an offshore wind energy project in Nantucket Sound, which is the first project of its kind in the United States. First, the Public Employees for
Currently before the Court are three sets of cross-motions for summary judgment, as well as the Plaintiffs’ Rule 56(e) Motion for Discovery Necessary to Explain Defendants’ Citation to Documents Withheld as “Deliberative” and Other Extra-Record Assertions or, in the Alternative, to Strike, ECF No. 316 (“Pis.’ 56(e) Mot.”). Upon careful consideration of the parties’ submissions
I. BACKGROUND
An initial overview of several statutes is necessary to provide context for the plaintiffs’ claims in this litigation.
A. Statutory Background
1. The ESA
The ESA is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill,
The Secretary of the Interior and the Secretary of Commerce have delegated the authority to administer the ESA to the FWS and- the NMFS. 50 C.F.R. § 402.01(b). Section 7(a)(2) of the ESA mandates that
[e]ach Federal agency shall, in consultation with and with the assistance of the [FWS or NMFS, as appropriate], insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species....
16 U.S.C. § 1536(a)(2). In carrying out their duties under § 7, agencies “shall use the best scientific and commercial data available.” Id.
An agency action “jeopardize^] the continued existence” of a species where the action “reasonably would be expected, directly or indirectly, to reduce ■ appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02. Accordingly, “[e]ach Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species,” and “[i]f such a determination is made, formal consultation” with the FWS and/or the NMFS is required. Id. § 402.14(a). The formal consultation process requires the FWS and/or the NMFS to review the proposed agency action and prepare a “biological opinion” that includes “[a] detailed discussion of the effects of the action on listed species,” and also render an “opinion on whether the action is likely to jeopardize the continued existence of a listed species.” Id. §§ 402.14(h)(2) — (3). Where the biological opinion concludes that an agency action may result in the incidental taking of a listed species, the FWS and/or NMFS must “provide with the biological opinion a statement concerning incidental take that” specifies both “the amount or extent[] of such incidental taking on the species,” as well as “terms and conditions ... that must be complied with by the Federal agency or any applicant to implement” certain specified “reasonable and prudent measures” designed to minimize the impact of the incidental taking. Id. §§ 402.14(i)(l)(i)-(ii), (iv); see also id. § 402.14(g)(7). Any such “Reasonable and prudent measures, along with the terms and conditions that implement them, cannot alter the basic design, location, scope, duration, or timing of the action and may involve only minor changes.” Id. § 402.14(f)(2).
The Migratory Bird Treaty Act, unless otherwise “permitted by regulations,” makes it “unlawful at any time, by any means or in any manner, to ... take [
In addition to the protections outlined in the Migratory Bird Treaty Act,
[o]n January 10, 2001, President Clinton signed Executive Order (EO) 13186, [which addresses the] “Responsibilities of Federal Agencies to Protect Migratory Birds”. One of the requirements of E.O. 13186 is that each Federal agency taking actions that have, or are likely to have* a measurable negative effect on migratory bird populations is directed to develop and implement a [Memorandum of Understanding] with the FWS that shall promote the conservation of migratory bird populations.
77 Fed.Reg. 60,381, 60,382 (Oct. 3, 2012); see also Exec. Order No. 13,186, 66 Fed. Reg. 3853 (Jan. 10, 2001), reprinted in 16 U.S.C. § 701 app.
3. The NEPA
Under the NEPA, federal agencies must, “ ‘to the fullest extent possible[,]’ ... prepare an environmental impact statement (EIS) for ‘every ... major Federal actiofn] significantly affecting the quality of the human environment.’ ”
4. The Preservation Act
Congress enacted the Preservation Act in 1966, finding that the preservation of the nation’s “heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations • of Americans.” 16 U.S.C. § 470(b)(4). Under the Preservation Act, Congress authorized the Secretary of the Interior to create and “maintain a National Register of Historic Places composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture.” Id. § 470a(a)(l)(A).
To protect identified historic sites, Section 106 of the Preservation Act provides that a federal agency undertaking action on a historic site or licensing such an undertaking must, prior to the
approval of the expenditure of any Fed-'. eral funds on the undertaking ...[,] take into account the effect of the undertaking on any district, site, building, structure or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation ... a reasonable opportunity to comment with re-gаf d to such undertaking.
Id. § 470f. The Advisory Council has promulgated regulations that set forth the procedures that federal agencies must follow to comply with Section 106. Id. § 470s. .The regulations in turn require that federal agencies engage in “consultation ... [with] other parties with an interest in the effects of the undertaking on historic properties,” 36 C.F.R. § 800.1(a), including “any Indian Tribe ... that attaches religious and cultural significance to” properties included on the National Register as a result of their “traditional religious and cultural importance to [the] Indian Tribe,” 16 U.S.C. § 470a(d)(6); see also 36 C.F.R, §§ 800.2(c), 800.3(f)(2).
The consultation process requires federal agencies to: (1) identify the historic properties that might be affected by the undertaking, 36 C.F.R. § 800.4; (2) evaluate the impact of any adverse effects on those properties, id. § 800.5; and (3) “develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on” those properties, id. § 800.6; see also Corridor H Alts., Inc v. Slater,
5. The Shelf Lands Act
' The Shelf Lands Act accords the United States jurisdiction over the “the outer Continental Shelf,” 42 U.S.C. § 1333(a), which is defined as “all submerged lands lying seaward and outside the area of lands beneath navigable waters as defined in section 1301 of this title, [
6. The Coast Guard and Maritime Transportаtion Act of 2006 .
The Coast Guard Maritime Transportation Act of 2006, which was enacted on July 11, 2006, imposes specific duties on the Commandant of the Coast Guard with respect to offshore wind energy projects in the Nantucket Sound. See Pub.L. No. 109-241, § 414,120 Stat. 516, 540. Section 414 of the Act reads in its entirety:
Sec. 414. Navigational Safety of Certain Facilities.
(a) Consideration of Alternatives. — In reviewing a lease, easement, or right-of-way for an offshore wind energy facility in Nantucket Sound under section 8(p) of the Outer Continental Shelf Lands Act (43 U.S.C. 1337(p)), not later than 60 days before the date established by the Secretary of the Interior for publication of a draft environmental impact statement, the Commandant of the Coast Guard shall specify the reasonable terms and conditions the Commandant determines to be necessary to provide for navigational safety with respect to the proposed lease, easement, or right-of-way and each alternative to the proposed lease, easement, or right-of-way considered by the Secretary.
(b) Inclusion of Necessary Terms and Conditions. — In granting a lease, easement, or right-of-way for an offshore wind energy facility in Nantucket Sound under section 8(p) of the Outer Continental Shelf Lands Act (43 U.S.C.1337(p)), the Secretary shall incorporate in the lease, easement, or right-of-way reasonable terms and conditions the Commandant determines to be necessary to provide for navigational safety.
Id. at 540.
B. Factual Background
At the center of this consolidated civil aótion is the Nantucket Sound (the “Sound”), a body of water located off the coast of Massachusetts. See CW65034. The Sound serves many functions, including the home to various endangered species, a commercial and recreational waterway, and a source of cultural and religious identity. See CW65356, CW111969-78. Intervenor-defendant Cape Wind, with the approval of the federal deféndants, also seeks "to make the Sound the location of the nation’s first offshore wind energy project. See CW201584.
1. The Cape Wind Project
The Cape Wind project has been described as “the first of its kind in the United ^States and is one of the largest offshore wind projects in the world.” CW201584. Cape Wind “began preliminary work on siting and designing a wind energy project in 2000,” NMFS1413, and proposed an offshore wind energy park, to be located on the outer Continental Shelf on Horseshoe Shoal
[t]he proposed wind park would consist of 130 offshore wind turbine generators arranged to maximize the park’s maximum potential electric output of approximately 454 megawatts. The wind-generated electricity from each of the turbines would be transmitted via a 33 kilovolt submarine transmission cable system to a centrally located electric service platform. This platform would transform and transmit electric power to the Cape Cod'mainland (12+ miles) via two 115 kilovolt lines, where it would ultimately connect with the existing power grid.
71 Fed.Reg. 30,693, 30,693 (May 30, 2006); see also, e.g., NMFS1415-22 (providing a more detailed description of the Cape Wind’s project proposal). Prior to its construction, and as discussed below, the Cape Wind project was and is subject to several regulatory and administrative procedures and approvals.
2. The Regulatory Approval Process
“In November 2001, [Cape Wind] filed a permit application with the [Corps of Engineers], New England District, under section 10 of the Rivers and Harbors Act of
a. Formal Consultation Under Section 7 of the ESA
i.The FWS’s Biological Opinion and Incidental Take Statement
The BOEM consulted informally with the FWS from November 17, 2005, until May 19, 2008, when the BOEM requested initiation of formal consultation. See FWS92-96. The FWS issued its biological opinion on November 21, 2008. See FWS1. The biological opinion- “only applies to the roseate tern and piping plover,” two types of migratory birds, “as listed species under the ESA.” FWS3. The FWS reached the following conclusion:
After reviewing the current status of the Atlantic Coast piping plover and the northeastern population of the roseate tern, the environmental baseline for the action area, and all effects of the proposed Cape Wind Project, it is the Service’s biological opinion that the project is not likely to jeopardize the continued existence of these species. No critical habitat has been designated for the Atlantic Coast breeding ranges of these species; therefore, none will be affected.
FWS73. The FWS included with its biological opinion an incidental take statement authorizing the taking of “four to five roseate terns per year (80-100 terns over the 20-year life of the project)” and “a maximum of 10 piping plovers ... over the life of the [project].” FWS75. ' With respect to the taking of piping plovers, the FWS added:
Because the formulation of mortality estimates is very complex, new empirical information demonstrating one or more of the following circumstances will constitute new evidence that estimated take of piping plovers has been exceed:
1. Annual flights across the project area exceed the total number of pairs breeding in and north of the action area. This is equivalent to approximately 18% of migration flights by adults and young of the year (pairs x 5.5).
2. More than 20% of flights occur at rotor height.
3. Avoidance rates <0.95.
Id. The FWS also “estimate[d] that implementation of the Bird Island restoration project[
The incidental take statement included terms and conditions necessary to implement reasonable and prudent measures pursuant to the ESA. See FWS75-78. Among these measures was a discussion of an operational adjustment that- the FWS
The [FWS] ... considered as a reasonable' and prudent measure[] an operational adjustment to the wind facility that would require the temporary and seasonal shut down of the [wind turbine generators] through the feathering of the rotors. Feather of the rotors causes them to face the wind and stop spinning, and would reduce the risk of collision by roseate terns and, to a limited extent, migrating piping plovers transiting the Horseshoe Shoal project area. Although the [FWS] considered that result in this “operational adjustment” would be based on weather and day light parameters that reduce visibility, and would be limited in time to seasons when plovers and peak numbers of roseate terns are expected to be present (a few weeks in early to mid-May and a few weeks in late August to mid-September), it was determined by [the BOEM] and [Cape Wind] ... to not be reasonable and prudent based on the following:
The operational adjustment (shut down of the turbine rotors to a neutral position) is not reasonable because it does not meet the [reasonable and prudent measure] regulatory definition as a “reasonable measure” as it modifies the scope 'of the рroject in a manner that is adverse to the project’s'stated purpose and need, that is to make a substantial contribution to enhancing the region’s electrical reliability and achieving the renewable energy requirements under the Massachusetts and regional renewable portfolio standards. [The BOEM] considers that this may involve more than a “minor change” (50 C.F.R. '§ 402.14(i)(2)[) ].
[The BOEM] has also determined that the [reasonable and prudent measure] is not reasonable because the uncertainty regarding the project’s ability to generate electricity during the two time frames (late April to mid-May and late August to mid-September) reduces the project’s predicted potential electrical output in a significant enough way to have a deleterious effect on anticipated revenues, financing and power purchasing agreements.
Furthermore, [the BOEM] indicates that the proposed timeframes for the operational adjustment, although limited by season, visibility and time of day, constitute peak period hours, when the energy supplied to the [Independent System Operator of] New England (the regional transmission organization) has greater market value. Therefore, the [reasonable and prudent measure] may not be prudent because economic cost makes this measure not feasible for project proponents to implement.
FWS76-77 (citations omitted).
ii. The NMFS’s Biological Opinion and Incidental Take Statement
The “BOEM and [the] NMFS began discussing consultation requirements in January 2006.” NFMS1414. The “NMFS provided technical assistance to [the] BOEM as they drafted a new [draft EIS]c
concluded that the proposed action was likely to adversely affect but was not likely to jeopardize the continued existence of loggerhead, Kemp’s ridley, leatherback or green sea turtles. Additionally, [the] NMFS concluded that the proposed action was not likely to adversely affect right, humpback or fin whale species. Because no critical habitat is designated in the action area, none will be affected by the proposed action. The [biological] [o]pinion included an Incidental Take Statement exempting the incidental take by acoustic harassment of 3-7 sea turtles during each 4 hour pile driving event (130 events total) and 13-28 sea turtles during the geophysical survey.
In the spring of 2010, over 90 North Atlantic right whajes were observed in Rhode Island Sound and nearby waters, including areas to be transited by project vessels originating from the staging site at Quonset, [Rhode Island], While right whales were not sighted in the area proposed for construction (i.e., the project footprint on Horseshoe Shoal within Nantucket Sound), right whales were observed in nearby areas and along the route that would be used by vessels moving between the project footprint and the project staging area near Quonset, [Rhode Island]. When compared to sightings in previous years, these sightings represent a higher than average number of right whales in the action area and nearby areas. As noted in [the] BOEM’s July 13, 2010 letter to [the] NMFS, these sightings represent new information that when analyzed may reveal effects of the action that may affect listed species in a manner or to an extent not previously considered. As such, [the] NMFS concurred with [the] BOEM’s determination that reinitiation of consultation was appropriate; specifically, to consider the new' information on the presence of right whales in the action area. Consultation was reinitiated on July 26, 2010.
NMFS1414-15. The reinitiation of consultation culminated in a second biological opinion, which the NMFS issued on December 30, 2010 (“2010 biological opinion”). NMFS1413. The 2010 biological opinion reached the same conclusions as the first opinion about the project’s effects on listed whales and sea turtles. See NMFS1534. The NMFS issued with the 201Q biological opinion a second incidental take statement for listed sea turtles, which authorized the same level of take as the prior incidental take statement. See NMFS1536.
b. The BOEM and FWS Consultation Regarding the Impact of the Cape Wind Project on Migratory Birds
The BOEM’s final EIS
During the course of the Section 7 consultation, the FWS
recommended several studies to more fully assess the project’s impacts ... on migratory birds. Certain information was collected, and some was not. While they would have generated information useful to assessment of migratory birds generally, the unimplemented studies would not necessarily yield information that would have significantly addressed the uncertainties in the analysis of impacts to the roseate tern and piping plover specifically.
FWS4. The FWS biological opinion did not specifically address other migratory birds not listed in the ESA. Id. However, one of the terms and conditions of the FWS biological opinion requires the BOEM, Cape Wind, and the FWS to “coordinate in the development of specific pre- and post-construction monitoring protocols ... for [an] Avian and Bat Monitoring Framework for the Cape Wind Proposed Offshore Wind Facility.” FWS77.
On June 4, 2009, the BOEM and the FWS signed a Memorandum of Understanding pursuant to section 3 of Executive Order 13,186. CW242438. The Memorandum “identifies specific areas in which cooperation between the agencies would substantially contribute to the conservation and management of migratory birds and their habitats.” Id. Both agencies also reviewed drafts of the Avian and Bat Mitigation and Monitoring Plan prepared by Cape Wind. See CW242441. “The monitoring plan was developed in coordination with [the BOEM and the FWS] ... and includes several monitoring requirements as a result of previous regulatory review,” including the required pre- and post-construction monitoring. CW237369. The lease for the Cape Wind project, which was issued by the BOEM on Octоber 6, 2010, see CW119269; CW119275, states that the monitoring plan is “mandatory,” CW119314, and the BOEM also conditioned approval of Cape Wind’s Construction and Operation Plan “on an acceptable Avian and Bat Monitoring Plan,” CW119704.
c. The NEPA and Shelf Lands Act Review Process
“The Energy Policy Act of 2005 was enacted on August 8, 2005, giving the Department of the Interior authority for issuing leases, easements, or rights-of-way for alternative energy projects on the Outer Continental Shelf....” 71 Fed.Reg. at 30,693. Accordingly, the BOEM began to “act as a lead agency for coordinating the permitting process with other Federal agencies.” Id.; see CW111956.
Once [the BOEM] became the lead agency for the [Cape Wind] project, [the BOEM] determined that a new [d]raft EIS was needed and developed thescope of the study for the [d]raft EIS by requesting comments on the Proposed Action in a public notice published in the Federal Register on May 30, 2006 (71 FR 30693). The [BOEM] treated all the comments previously made on the [Corps of Engineers’] [d]raft EIS as scoping comments for [the BOEM’s] [d]raft EIS. The [BOEM] also considered the comments that were made at [Corps] public meetings held in Yar-mouth, Martha’s Vineyard, Cambridge, and Nantucket, Massachusetts.
CW111956. The BOEM issued a new draft EIS on January 18, 2008. See 73 Fed.Reg. 3482, 3482 (Jan. 18, 2008); CW111956. “The public comment period on the [d]raft EIS lasted 60 days (until March 20, 2008) and was then extended another 30 days (until April 21, 2008) in order to provide the public with additional time to consider and submit comments on the [djraft EIS.” CW111956. The BOEM made the final EIS available to the public on January 21, 2009. See id.; 74 Fed.Reg. 3635, 3635 (Jan. 21, 2009).
Subsequently, on March 8, 2010, the BOEM prepared an environmental assessment (“2010 Assessment”). See CW111957. As explained by the BOEM,
[t]he purpose of th[e] [2010 Assessment] was to determine whether there were significant new circumstances or information relevant to environmental concerns and impacts associated with the Proposed Action that were not fully addressed in the [f]inal EIS.... The [BOEM] used this [2010 Assessment] to determine whether the [f]inal EIS needed to be supplemented. The [BOEM] found that no significant new information existed that would necessitate a reanalysis of the range of the alternatives or the kinds, levels, or locations of the impacts of the Proposed Action on the human environment. After considering public comments on the [2010 Assessment] and additional new information that was received after the [2010 Assessment] was made publicly available, [the BOEM] concluded that the analyses in the [fjinal EIS remained valid, and that, because a supplemental EIS was not required; it issued a Finding of No New Significant Impact (FONNSI) on April 28, 2010.
Id.
On April 28, 2010, the BOEM also issued a Record of Decision (“2010 ROD”), which stated that “[t]he decision is hereby made to offer a commercial lease to [Cape Wind] in accordance with ... [the Shelf Lands Act], under the terms and conditions” specified in the 2010 ROD,' id., and in a lease issued to Cape Wind by the BOEM on October 6, 2010, see CW119269; CW119275. The lease granted Cape Wind “the exclusive right and privilege” to construct, operate, and eventually decommission the proposed wind energy facility on Horseshoe Shoal in the Sound. See CW119270. Among the terms and conditions incorporated into the Cape Wind lease are the terms and conditions which the Coast Guard deemed necessary pursuant to § 414 of the Coast Guard and Maritime Transportation Act of 2006. See CW119319. The Coast Guard had previously issued the § 414 terms and conditions on August 2, 2007. See CW66389; CW66393.
The 2010 ROD required Cape Wind to submit to BOEM a Construction and Operations Plan. CW111957; see also CW119697. 'Cape Wind “submitted a [Construction and Operations Plan] for the project on October 29, 2010, and submitted a modified [Construction and Operations Plan] on February 4, 2011.” CW119697. Thereafter,
[o]n February 22, 2011, a “Notice of Prepаration of an Environmental Assessment” was posted on the [BOEM] website to solicit public input in anticipation of the preparation of [a] 2011 [environmental assessment (“2011 Assessment”) ]. The purpose of the comment period was to provide the public with an opportunity to review and comment on the [Construction and Operations Plan] as well as to provide [the BOEM] with any significant new information or circumstances relevant to environmental concerns and bearing on the proposed action or its impacts. The [Construction and Operations Plan] was made available for review on the [BOEM] website .... Consulting parties and local governments were informed of the comment period via email, which provided the location of the [BOEM] website and [the BOEM] mailing address for receiving comments.
The purpose of the 2011 [Assessment] was to evaluate whether substantial changes in the proposed action that are relevant to environmental concerns or significant new circumstances or information relevant to environmental concerns and bearing on the proposed action had come to light since the [final EIS] and the 2010 [Assessment] were issued. If so, [the BOEM] would be required to prepare a[] [supplemental EIS] before taking action on [Cape Wind’s Construction and Operations Plan]. Issues considered in the 2011 [Assessment] include: additional surveys and sampling; conflicts with aviation traffic and fishing use; emergency response; migratory birds; microcli-mate; oil within wind turbine generators; sloshing dampers; transition piece grout; permits issued by other Federal agencies; and consultations with other agencies. [The BOEM] did not directly address comments related to the content of the [Avian and Bat Monitoring Plan] in the [2011 Assessment]; rather it [did so] in its review of that plan.
CW119705; see also .CW119743-86 (2011 Assessment). The BOEM “determined that the [final EIS] fully discussed the significant environmental consequences associated with the approval of’ Cape Wind’s Construction and Operations Plan, and approved the plan in a record of decision dated April 18, 2011 (“2011 ROD”). CW119705-06.
d. Consultation Under Section 106 of the Preservation Act
“The [Advisory Council on Historic Preservation] formally entered into the Section 106 consultation with the Corps [of Engineers] for the” proposed wind energy park “in March of 2005 upon its determination that the project would adversely affect historic properties on or eligible for the National Register of Historic Places.” CW44617. After the BOEM took over as the lead agency, it
commenced its Section 106 process in late 2005 and conducted more than twenty-one meetings through February 2010. [The BOEM] invited the Massachusetts [State Historic Preservation Officer] to be a cooperating party on March 16, 2006, to which she replied “the [Massachusetts Historical Commission] is a consulting-agency.”
CW112019. The Wampanoag Tribe of Gay Head (Aquinnah) and the Mashpee Wam-panoag Tribe were also consulting parties to the Section 106 process. CW112021. The BOEM published a draft EIS pursuant to the NEPA in January of 2008, which “included its initial identification of properties and its findings of adverse effects.” CW112021. The comments to the draft EIS objected to the methodology that the BOEM used to identify affected properties, and the BOEM responded to the comments by revising its methodology and un
conducted interagency and intergovernmental consultation meetings, including tribes, to solicit comments and concerns related to thе [Cape Wind] project, including issues related to cultural resources and historic preservation, in November 2005, June of 2006, and February of 2007[,] leading up to the circulation of the [draft EIS], and in July of 2008 to discuss concerns raised in comments to the ’[draft EIS]. One-on-one government-to-government meetings with tribes in advance of the [draft EIS] and its findings also took place in July of 2006, February of 2007 ... and July of 2007.
Following its evaluation of [the draft EIS] comments, [the BOEM] resumed its Section 106 process with a series of consultation meetings specific to the [S]ection 106 process that began in July 2008. Upon completion of its second identification of properties effort and these consultations, the [BOEM] released a Finding of Adverse Effect as an individual document on December 29, 2008[,] to describe its new list of identified eligible properties and those adversely affected under the revised methodology. The December 2008 Finding identified 29 historic properties, as being adversely affected, including one property of cultural ] importance] to the Mashpee tribe and two [National Historic Landmarks]. The December 2008 Finding was included in the analysis of the [f]inal EIS for the project, [and] circulated for public comment in January 2009. Government-to-government consultation meetings and Section 106 consultations meetings with the parties followed throughout 2009 and in early 2010, as described below. •
Through this process, [the BOEM] considered additional information from tribes and other consulting parties via meetings, written communications, and site visits. [The BOEM] also worked closely with the Advisory Council for Historic Preservation and the National Park Service (Keeper of the National Register and [National Historic Landmark] personnel) in a continued effort to assess the nature and level of adverse effects and to make determinations of the eligibility of additional properties, as well as to determine the appropriate scope of the [S]ection 106 process. As a result, [the BOEM] released a Revised Finding of Adverse Effect on January 13, 2010. The Revised Finding added Nantucket Sound and four individual onshore [traditional cultural properties] to the list of affected historic properties, and clarified the types of alterations that could occur to each.
A draft Memorandum of Agreement (MOA) was distributed at the June 16, 2009 consultation meeting. The draft MOA contained several proposed mitigation measures. [The BOEM] asked attendees to review the MOA and provide [the BOEM] with any comments on the document or other ideas to avoid, minimize or mitigate adverse effects. The draft MOA was re-circulated to consulting parties at the January 13, 2010 full Section 106 meeting. The [State Historic Preservation Officer] concurred with the revised Finding in February 2010. Following public review of the revised Finding and additional site visits and several meetings with parties in February 2010, the Secretary [of the Interior] determined that further efforts to agree on an MOA would not be productive, and on March 1, 2010, submitted a request to the [Advisory Council for Historic Preservation] for their comment to terminate the [Sjection 106 process.
CW112021-22. “The [Advisory Council for Historic Preservation] comment was received [by the Secretary of the Interior] on April 2, 2010.” CW112024; see also CW112696.
3. The Current Litigation
■ The PEER plaintiffs, comprised of several environmental groups, members of those groups, and individuals who use the Nantucket Sound, PEER Compl. ¶¶ 3-29, assert three claims for relief based on alleged deficiencies in the FWS’s and the NMES’s biological opinions and incidental take statements, id. ¶¶ 97-99. They also challenge the issuance of the records of decision, the lease, and the approval of the Cape Wind construction operations plan, on-the grounds that each relies on invalid biological opinions. Id. ¶¶ 100-103. The PEER plaintiffs also allege that the BOEM and the Corps of Engineers should have obtained a permit for the take of migratory birds prior to approving the Cape Wind project. Id. ¶ 104. Finally, they claim that the BOEM violated the NEPA by failing to issue a supplemental EIS concerning the recent aggregations of right whales, by failing to address certain other data or effects of the project, and by relying on the Avian and Bat Monitoring Plan. Id. ¶¶ 106-110.
The Town of Barnstable “is a municipal corporation and political subdivision of Massachusetts” that “has jurisdiction over extensive lands on the south side of Cape Cod along Nantucket Sound.” Barnstable Compl. ¶ 10. In its complaint, Barnstable asserts nine claims for relief based on the BOEM’s alleged failure to adequately address the finding that the Sound is eligible for listing in the National Register or to survey all historic properties in and around the Cape Wind project area, in violation of the Preservation Act. Id. ¶¶ 200-08. Barnstable also challenges the adequacy of the BOEM’s final EIS, as well as its failure to issue a supplemental EIS, id. ¶¶ 209-14, the BOEM’s alleged failure to provide for safety
The Alliance plaintiffs, a non-profit environmental group and several individuals who use or enjoy the Sound, Alliance Compl. ¶¶ 6-24, assert six claims under the NEPA, the Shelf Lands Act, § 414, and the Preservation Act similar to those asserted by the PEER plaintiffs and the Town of Barnstable, id. ¶¶ 151-76. The Alliance plaintiffs additionally allege violations of the Clean Water Act and the Rivers and Harbors Act. See id. ¶¶ 177-93.
The Wampanoag' Tribe of Gay Head (Aquinnah) states in its complaint that “[t]he Tribe has lived on the shores of Nantucket Sound since time immemorial,” and “depends on the Nantucket Sound for food, jobs, spiritual ceremonies, and cultural continuity, and the Sound is essential to the Tribe’s religious ceremonies and tradi
The Court granted Cape Wind Associates, LLC’s (“Cape Wind”) unopposed motion for leave to intervene as a defendant. See September 8, 2010 Minute Order. The Court subsequently consolidated the cases filed by .the PEER, Alliance and Town of Barnstable plaintiffs,
The parties have now filed cross-motions for summary judgment: one concerning the PEER, Alliance, and Town of Barnsta-ble plaintiffs’ ESA and Migratory Bird Treaty Act claims; a second concerning the PEER, Alliance, and Town of Barnsta-ble plaintiffs’ remaining claims; and a third concerning the claims of the Wampa-noag Tribe of Gay Head (Aquinnah). Additionally, the PEER, Alliance, and Town of Barnstable plaintiffs have filed a motion pursuant to Federal Rule of Civil Procedure Rule 56(e) seeking additional discovery concerning certain documents cited in the federal defendants’ legal memoranda, or in the alternative to strike those same documents.
II. STANDARD OF REVIEW
“Summary judgment is the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review.” Loma Linda Univ. Med. Ctr. v. Sebelius,
III. ANALYSIS
A. Whether the Coast Guard Violated § 414 of the Coast Guard and Maritime Transportation Act of 2006
The Town of Barnstable and the Alliance plaintiffs have moved for summary judgment on their claims that the United States Coast Guard violated § 414 of the
Section 414 was passed in large part due to the pendency of Cape Wind’s proposal. See 152 Cong. Ree. S6439-40 (daily ed. June 22, 2006) (statement of Senator Stevens). The legislative history discloses Congress’ position that “[i]t must be left up to the Commandant of the Coast Guard to decide what is necessary to prevent negative impact to navigation, aviation,, and communications caused by the proposed wind farm.” Id. at S6439. To that end, § 414 provides that “the Commandant of the Coast Guard shall specify the reasonable terms and conditions the Commandant determines to be necessary to provide for navigational safety with respect to the proposed lease ... and each alternative” to, the proposal, and also that “the Secretary [of the Interior] shall incorporate into the lease ... reasonable terms and conditions the Commandant determines to be necessary to provide for navigational safety.” Pub.L. No. 109-241, 120 Stat. at 540 (emphasis added).
There is no case law construing § 414, and so the Court must turn to the familiar two-step analysis of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.
Id. at 843 n.9,
As to step one of the Chevron analysis, the Court “begins, as always, with the text of the statute.” Chao v. Day,
What is less clear from the text of the statute is the effect of the Commandant’s issuance of the terms and conditions. However, the legislative history is instructive:
The arrangement dictated by section 414 of [the Coast Guard and Maritime Transportation Act of 2006] has precedence in the procedure for granting hydroelectric licenses under the Federal Power Act[, 16 U.S.C. § 797(e) (2012) ]. This process requires the Federal Energy Regulatory Commission to include in the terms and conditions of its licenses for hydroelectric licenses any conditions deemed necessary to protect the interests of other agencies. The United States Supreme Court[, in Escondido Mutual Water Co. v. La Jolla Band of Mission Indians,466 U.S. 765 ,104 S.Ct. 2105 ,80 L.Ed.2d 753 (1984),] determined that such conditions had to be “reasonable” and the reasonability of the conditions was a matter to be determined by the courts, not the Commission.
152 Cong. Rec. at S6440. In Escondido, the Supreme Court addressed § 4(e) of the Federal Power Act,
[i]f Congress had intended Interior to have authority to require prescriptions independent of the Commission’s licensing process, it could easily have so specified. By providing insteаd that Interi- or’s prescription is to be a FERC license requirement, Congress implicitly indicated that it would have to be supported as would any other Commission licensing requirement. The record before us, then, is no more and no less than what was presented to the Commission.
Bangor Hydro-Elec. Co. v. Fed. Energy Regulatory Comm’n,
Given the similarity between the statutory schemes of § 414 and § 4(e) of the Federal Power Act, and given also the fact that the legislative history of § 414 specifically relies on the Supreme Court’s decision _in Escondido, it seems inescapable that the Court must review the imposition of the § 414 terms and conditions in the same manner dictated for review of § 4(e) of the Federal Power Act. In other words, if the Coast Guard has deemed certain terms and conditions necessary for the Cape Wind project pursuant to § 414, then “the [C]ourt is obligated to sustain” those terms and conditions “if they are reasonably related to [the Coast Guard’s] goal, otherwise consistent with the [Shelf •Lands Act], and supported by .substantial evidence.”
As to the Coast Guard’s objective, § 414 makes clear that its terms and conditions must “provide for navigational safety with respect to the proposed lease, easement, or right of-way.” Pub.L. No. 109-241, 120 Stat. at 540. The terms and conditions imposed by the Coast Guard address the design, positioning, arrangement, and operation of the Cape Wind project, and include required specified labeling, mechanisms for shutting down the wind turbine generators, and placement of safety equipment and mooring attachments on the wind turbine generators for emergency use. CW66379. The terms and conditions also require Cape Wind, prior to construction, to provide to the BOEM and the Coast Guard for their review and approval certain research analy-ses concerning, and recommended mitigation measures for, the project’s impact on radar navigation of vessels in and around the project. CW66380. There are also provisions for breaking ice that might form in and around the project area. CW66381-82. Finally, the terms and conditions require Cape Wind to report periodically to both the BOEM and the Coast Guard about navigational safety, and the Coast Guard retains for itself the right to amend the terms and conditions at any time. CW66380-83. The Court is satisfied that these terms and conditions are reasonably related to the Coast Guard’s goal to provide for navigational safety.
The Court is also satisfied that the terms and conditions are otherwise consistent with § 1337(p) of the Shelf Lands Act. This Act requires, among other things, that any lease granted pursuant to
Finally, there is substantial evidence to support the imposition of the Coast Guard’s terms and conditions. As instructed by the Circuit, the Court assesses the substantial evidence issue by considering the record that “was presented to” the BOEM.
As to the navigational safety studies, the administrative record contains a Revised Navigational Risk Assessment (“Revised Assessment”), USCG907, which was an update of an initial risk assessment prepared for Cape Wind at the request of the Coast Guard, USCG916. The Revised Assessment “includes updated information to address topics requested by the [Coast Guard]” when the Corps of Engineers was functioning as the lead agency for the Cape Wind Project. Id. The Revised Assessment
includes descriptions of the Nantucket Sound environment, [22 ] vessel traffic types and operating areas, the effects of the proposed Wind Park on navigation, an analysis of vessel impacts on the[wind turbine generators], historic search and rescue operations in and around the Wind Park, the effects of the proposed Wind Park on search and rescue operations, and the effects of the proposed Wind Park on communications. Various marine interests in Nantucket Sound, including the [Coast Guard] and the Steam Ship Authority [], and the proposed [wind turbine generator] vendor (General Electric) [ ] provided information to assist in the preparation of the ... Assessment.
Id.; see also USCG917-61 (discussing observations and data concerning each of the listed considerations, including data obtained from currently operational offshore wind energy projects in other bodies of water). The Risk Assessment also includes several mitigation measures to which Cape Wind agreed in an effort to address any navigational safety issues. USCG961-62. The executive summary of the Risk Assessment ultimately concludes that “[t]he presence of the Wind Park at Horseshoe Shoal is not expected to create negative impacts to navigational safety.” USCG913.
In addition to the Risk Assessment, the Coast Guard also considered guidance from the United Kingdom’s Maritime and Coast Guard Agency, which “assessed] the impact on navigational safety from offshore renewable energy developments.” See USCG409-23. Included in this guidance were standard design requirements, operational requirements, and operational procedures for offshore wind energy farms. USCG418-19 (requiring, among other things, that wind turbine generators be clearly marked, that “[throughout the design process for a wind farm, assessments and methods for safe shutdown should be established and agreed,” and that periodic testing of emergency communication and shutdown procedures be conducted). The Coast Guard adopted many of these recommendations as part of its own “guidance on information and factors the Coast Guard will consider when reviewing an application for a permit to build and operate an Offshore Renewable Energy Installation.” USCG1087; see generally USCG1086-111 (Coast Guard’s Navigation and Vessel Inspection Circular No. 02-07).
Given the results of the Risk Assessment, as well as the recommendations in the guidance from the United Kingdom and the Coast Guard’s own guidance, it cannot be said that the terms and conditions deemed necessary by the Coast Guard pursuant to its § 414 obligation were unreasonable. Rather, the information available shows that there is a “rational connection between the facts” concerning navigational safety and “the choice made” as to the terms and conditions adopted by the Coast Guard for the Cape Wind project. See Bangor Hydro-Elec. Co.,
The plaintiffs do not confine their objections to the § 414 terms and conditions to the three prongs of the Escondido analysis, presumably because they do not believe that the analysis should apply here, and instead lodge attacks on other aspects of the terms and conditions. First, the plaintiffs contend that the terms and conditions “are little more than vague generalities and a promise to ensure navigational safety later.” Pis.’ Remain Mem. at 18. The Court disagrees. While it is true that certain terms and conditions require future action or studies, other terms and ' conditions impose mandatory design, positional, and operational requirements. See, e.g., CW66379 (providing that “each individual [wind turbine generator] shall be
The plaintiffs next object to the Coast Guard’s interpretation that § 414 requires the issuance of terms and conditions only for project proposals, see CW66378, and not for each NEPA alternative to the proposed action. Pis.’ Remain Mem. at 23. The plaintiffs rely on the statutory language of § 414, which states:
[T]he Commandant of the Coast Guard shall specify the reasonable terms and conditions the Commandant determines to be necessary to provide for navigational safety with respect to the proposed lease, easement, or right-of-way and each alternative to the proposed lease, easement, or right-of-way considered by thé Secretary.
Pub.L. No. 109-241, 120 Stat. at 540 (emphasis added); see Pis.’ Remain Mém. at 23-24. As noted above, the Court begins its analysis with the language of the statute. In this instance, while it is clear that the Commandant is required to specify terms and conditions for the project proposal, it is not clear, as the plaintiffs contend, that the definition of “alternative” as intended in § 414 has the same meaning that the word “alternative” has in the NEPA. See 40 CFR § 1502.14. To be sure, the terms and conditions must be specified “not later than 60 days before the date established ... for the publication of a draft environmental impact statement,” Pub.L. No. 109-241, 120 Stat. at 540, but the statute does not otherwise incorporate or reference the NEPA. “Alternative” as used in the NEPA context is a term of art addressed in that statute’s implementing regulations. See 40 C.F.R. § 1502.14. If Congress had intended to direct the Commandant to consider specifically NEPA alternatives, it could easily and explicitly have drafted § 414 to refer to the applicable sections of the NEPA or 'its implementing regulations, but it did not. Furthermore, it would be odd to require the Coast Guard to provide terms and conditions for each NEPA alternative, given that several alternatives were jettisoned without detailed consideration for various
Because the Coast Guard has deemed the § 414 terms and conditions necessary to provide for navigational safety in and around the Cape Wind project, CW66389, and because the terms and conditions “reasonably relate[] to [the Coast Guard’s] goal, [are] otherwise consistent with the [Shelf Lands Act], and [are] supported by substantial evidence,” see Escondido,
B. Whether the BOEM Violated the Shelf Lands Act
1. The BOEM’s Reliance on the Coast Guard’s Navigational Safety Findings
The plaintiffs argue that the BOEM violated both the Shelf Lands Act and the NEPA by relying on the Coast Guard’s navigational safety analyses. Pis.’ Remain Mem. at 45. With respect to renewable energy projects like the Cape Wind project, the Shelf Lands Act requires the Secretary to
ensure that [the] activity ... is carried out in a manner that provides for—
(A) safety;
(B) protection of the environment;
(C) prevention of waste;
(D) conservation of the natural resources of the outer Continental Shelf;
(E) coordination with relevant Federal agencies;
(F) protection of national security interests of the United States;
(G) protection of correlative rights in the outer Continental Shelf;
(H) a fair return to the United States for any lease, easement, or right-of-way under this subsection;
(I). prevention of interference with reasonable uses (as determined by the Secretary) of the exclusive economic zone, the high seas, and the territorial seas;
(J) consideration of—
(i) the location of, and any schedule relating to, a lease, easement, or right-of-way for an area of the outer Continental Shelf; and
(ii) any other use of the sea or sеabed, including use for a fishery, a sealane, a potential site of a deepwa-ter port, or navigation;
(K) public notice and comment on any proposal submitted for a lease, easement, or right-of-way under this subsection; and
(L) oversight, inspection, research, monitoring, and enforcement relating to a lease, easement, or right-of-way under this subsection.
43 U.S.C. § 1337(p)(4). The plain language of the Shelf Lands Act therefore suggests that it would have been unlawful for the BOEM to rely on the Coast Guard’s findings‘if those findings did not further the Secretary of the Interior’s obligation to ensure that the Cape Wind project “is carried out in a manner that provides for safety.” Id.
As to the findings themselves, the plaintiffs devote a substantial portion of their memoranda to attacking the Coast Guard’s evaluation of the navigational safety impacts resulting from the Cape Wind project as arbitrary and capricious deci-sionmaking. Pis.’ Remain Mem. at 29-45; Pis.’ Remain Opp’n at .21-31. First, the plaintiffs argue that the Coast Guard’s “assessment of navigational impacts is incoherent and contradicted by Coast Guard personnel.” Pis.’ Remain Mem. at 29; see also id. at 30-33. They challenge the Coast Guard’s conclusion in a November 2008 safety assessment letter that the Cape Wind project “ ‘will (1) have a moderate impact on navigation safety, and (2) have a negligible adverse impact on Coast Guard missions.’ ” Id. at 30 (quoting CW66389); see also id. at 31-33 (addressing the November 2008 letter’s discussion of impacts on radar communications, the spacing of the wind turbines, inclement weather, and Coast Guard search and rescue missions). At bottom, the plaintiffs argue that the BOEM could not lawfully rely on the Coast Guard’s findings because those findings represent arbitrary and capricious decisionmaking.
Under the APA, only “final agency action” is reviewable by the Court. See 5 U.S.C. § 704. The Supreme Court has stated that,
[a]s a general matter, two conditions must be satisfied for agency action to be “final”: First, the action must mark the “consummation” of the agency’s deci-sionmaking process — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.”
Bennett v. Spear,
Even if the Coast Guard’s findings do constitute reviewable final agency action, as this Court recently reiterated:
“[t]he ‘arbitrary and capricious’ standard of review as set forth in the APA is highly deferential,” and the Court must “presume the validity of agency action.” Am. Horse Prot. Ass’n v. Yeutter,917 F.2d 594 , 596 (D.C.Cir.1990). Although the “court is not to substitute its judgment for that of the agency[,] ... the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,463 U.S. 29 , 43,103 S.Ct. 2856 ,77 L.Ed.2d 443 (1983) (citations and quotation marks omitted). And where, as here, a court is reviewing an agency’s evaluation of “ ‘scientific data within its technical expertise,’ ” the arbitrary and capricious standаrd of review is “ ‘extremely] deferential.’ ” Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251 , 1289 (D.C.Cir.2004) (citation omitted). This is because courts “review scientific judgments of the agency ‘not as the chemist, biologist, or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain .minimal standards of rationality.’ ” Troy Corp. v. Browner,120 F.3d 277 , 283 (D.C.Cir.1997).
Styrene Info. & Research Ctr., Inc. v. Sebelius,
Although the plaintiffs fault the Coast Guard for issuing the November 2008 safety assessment letter prior to the completion of radar studies, the letter itself acknowledges that the impact on radars “remains outstanding.” CW66389. The letter also indicates the further steps the Coast Guard was taking in order to better understand the impacts on radars, and stated that “[t]he Coast Guard will review the study and provide any additional infpr-mation at that time and requests that the information provided be addressed in the Record of Decision.” Id. Contrary to what the plaintiffs indicate, the November 2008 letter does not state that the project “will not make navigation within the Project site more difficult,” Pis.’ Remain Mem. at 31, but instead clearly states that the Coast Guard expected “a moderate impact on navigation safety,” CW66389. Those impacts, and mitigation measures to lessen the impacts, are discussed in attachments to the letter. See, e.g., CW66407-08. Relying on the Risk Assessment discussed above, among other factors, the Coast Guard concluded that “navigation is capable of being done safely.” CW66408. As far as concerns about inclement weather, the plaintiffs emphasize the Coast Guard’s suggestion that smaller vessels will be “less prevalent” in poor weather, Pis.’ Remain Mem. at 32, and ignore the Coast Guard’s inclusion of “vessels of any size” as also being “less prevalent” in such conditions, CW66406. Indeed, the Coast Guard considers other weather-related factors, both in the Risk Assessment and in the attachments to the November 2008 letter. CW66406-07. Finally, the plaintiffs’ contention that the Coast Guard did not adequately consider the effects on Coast Guard search and rescue operations is contradicted by the record. The plaintiffs focus, Pis.’ Remain Mem. at 33, on the “four of 50 [search and rescue] cases (8%) [that] involved the use of an aircraft for rescue,” without noting that “in only one case did the aircraft actually effect a rescue,” CW66411. The Coast Guard concluded based on the small number of actual rescues affected and oth
Next, the plaintiffs contend that “the Coast Guard improperly dismissed the importance of marine radar to navigational safety.” Pis.’ Remain Mem. at 29; see also id. at 34-41; Pis.’ Remain Opp’n at 42^5. In making this argument, they focus primarily on a report authored by the Technology Service Corporation analyzing the effect of the Cape Wind project, which was attached as part of Appendix M to the final EIS. See CW75940-86. In advancing their arguments, the plaintiffs cherry pick quotes from the report, and invite the Court to examine maps, images, and videos depicting various radar functioning related scenarios. See, e.g., Pis.’ Remain Opp’n at 34-35. As an initial matter, it would be improper for the Court to delve into and analyze the scientific underpinnings of the report. But even if it could, the Coast Guard’s findings, which are also contained in Appendix M, see CW75970-86, acknowledge and address each of the points raised by the plaintiffs concerning the ability of radar operators to detect potential dangers, compare Pis.’ Remain Mem. at 34-41 (raising concerns about false targets, radar reflections, and impacts on Automatic Radar Plotting Aid systems), with CW75976-86 (discussing impacts on Automatic Radar Plotting Aid systems, false targets, and radar reflections). And while the plaintiffs additionally attempt to undermine the Coast Guard’s findings by pointing to alterations made to the Technology Service Corporation’s report and the Coast Guard’s alleged failure to implement recommendations put forth by various individuals, Pis.’ Remain Opp’n at 42-43, it is axiomatic that “the reasonableness of [an] agency’s action is judged in accordance with its stated reasons” under the arbitrary and capricious standard of review, and “the actual subjective motivation of decision-makers is immaterial as a matter of law— unless there is a showing of bad faith or improper behavior,” In re Subpoena Duces Tecum,
Finally, the plaintiffs argue that “the Coast Guard’s finding that buffer zones are unnecessary is contradicted by the record and by Coast Guard Policy and is fundamentally indefensible from a safety perspective,” thus resulting in arbitrary and capricious decisionmaking. Pis.’ Remain Mem. at 29, 41-45; Pis.’ Remain Opp’n at 43-45. They contend in essence that “the Coast Guard was required to address substantial questions raised by experts regarding how a buffer zone would affect navigational safety in the Sound, not merely that it was not necessary.” Pis.’ Remain Opp’n at 44. To the extent that the plaintiffs rely on experts’ comments that post-date the issuance of the Coast Guard’s findings, see id. at 43-44 (citing comments from 2009 and 2012), their reliance on the comments is misplaced because “[i]t is a widely accepted principle of administrative law that the courts base their review of an agency’s actions on the materials that were before the agency at the time its decision was made,” IMS, P.C. v. Alvarez,
In sum, the Coast Guard’s findings provide a rational explanation for the conclusion that navigational safety will be only moderately impacted so long as the stated mitigation measures are implemented, and the explanation is adequately supported by the administrative record. This is all that the APA requires, and the plaintiffs’ charge that the Coast Guard’s findings are arbitrary and capricious therefore fails. By the same token, the plaintiffs’ claim that the BOEM violated the Shelf Lands Act by relying on the Coast Guard’s findings must also fail.
2. The BOEM’s Approval of the Construction and Operations Plan Without First Obtaining Geotech-nical and Geophysical Studies
The plaintiffs argue that the BOEM violated the Shelf Lands Act by approving Cape Wind’s Construction and Operations Plan without first receiving
The implementing regulations of the Shelf Lands Act direct parties seeking to conduct renewable energy projects to submit, in addition to other documentation, a Construction and Operations Plan that includes “the results of [certain] ... surveys for the proposed site(s) of [the] facility(ies).” 30 C.F.R. § 585.626(a). Specifically, the Construction and Operations Plan must include the results of shallow hazards, geographical, biological, geotech-nical, and archaeological surveys, along with supрorting data. Id. (detailing information required .for each type of survey). Here, there is no dispute that the BOEM wanted Cape Wind to conduct additional and more detailed surveys than what it had provided to the agency during the review process. See, e.g., Pis.’ Remain Mem. at 48-52; Fed. Defs.’ Remain Mem. at 49-53; Int. Def.’s Remain Mem. at 52. And the record makes clear that Cape Wind represented to the BOEM that additional financing was required prior to conducting the surveys, see CW147710; CW235267, and that such financing would be unavailable absent approval of its Construction and Operations Plan, CW147710. The question thus centers on whether the BOEM appropriately approved a departure from its regulations.
BOEM’s regulations provide for a departure from the general provisions of the •regulations in certain circumstances, see 30 C.F.R. § 585.103(a), but
(b) [a]ny departure approved under this section and its rationale must:
(1)[b]e consistent with [43 U.S.C. § 1337(p)] ...;
(2) [p]rotect the environment and the public health and safety to the same degree as if there was no approved departure from the regulations;
(3) [n]ot impair the rights of third parties; and
(4) [b]e documented in writing.
30 C.F.R. § 585.103(b) (emphasis added).
Under 30 C.F.R. § 585.103(a), approval of a departure is appropriate to, among other things, “[fjaeilitate the appropriate activities on a lease or grant under this part.” Id. § 585.103(a)(1). The plaintiffs argue unconvincingly that obtaining financing “is not an ‘activity on a lease.’ ” Pis.’ Remain Mem. at 53 (quoting 30 C.F.R. § 585.103(a)(1)). The regulation, however, refers not to “activities on a lease” but to the facilitation of such activities. 30 C.F.R. § 585.103(a)(1). Certainly, financing geophysical and geotechnical surveys is consistent with the facilitation of “appropriate activities on a lease.” And the plaintiffs’ concern that granting a departure for financial reasons equates to providing “no meaningful limit on what [the] BOEM can approve without information [the] BOEM itself has determined to be required” under the Shelf Lands Act, Pis.’ Remain Opp’n at 65, fails to take into account the substantive requirements of 30 C.F.R. § 585.103(b), which must all be satisfied in order to warrant a lawful departure.
Here, the requirements of 30 C.F.R. § 585.103(b) have been satisfied. Conducting the surveys after approval of Cape Winds’ construction and operations plan is consistent with the Shelf Lands Act’s requirement that the project be carried out
As to the remaining requirements, the Court does not find it inappropriate for the BOEM to allow collection of data after approving the Construction and Operations Plan, given that the data must still be collected and analyzed prior to commencing construction or otherwise disturbing the seafloor, see, e.g., CW241409, and thus, the departure “[p]rotect[s] the environment and the public health and safety to the same degree as if there was no approved departure from, the regulations,” 30 C.F.R. § 585.103(b)(2). The plaintiffs offer no argument thаt the departure will affect the rights of any third parties, id. § 585.103(b)(3), and the Court discerns none. Finally, the “rationale,” id. § 585.103(b)(4), for the departure is documented in writing, see CW241409, and the departure itself is memorialized in the 2011 ROD, see CW119701-04, and the lease itself, see CW119300-03. Although the BOEM could have more explicitly drawn a connection between the departure and its rationale for granting it, the fact remains that both are documented in writing in the administrative record. The regulation requires nothing more. Accordingly, the Court finds that the BOEM complied with the Shelf Lands Act regulations concerning the approval of departures from those regulations, and therefore grants summary judgment to the defendants on the plaintiffs’ Shelf Lands Act claims.
C. Whether the Federal Defendants Violated the ESA
1. The Plaintiffs’ Claims Against the FWS
The plaintiffs contend that the FWS violated the ESA by improperly delegating to Cape Wind and to the BOEM decisions concerning certain reasonable and prudent minimization measures. Pis.’ ESA/MBTA Mem. at 20-29; Pis.’ ESA/ MBTA Opp’n at 2-19. Specifically, they argue that “the statutory language” of the ESA “plainly imposes an unequivocal duty on [the] FWS to determine what [reasonable and prudent measures] are ‘necessary or appropriate to minimize’ an action’s impact on listed species.” Pis.’ ESA/MBTA Mem. at 21 (quoting 16 U.S.C. § 1536(b)(4)). They maintain that the statute places that duty on the FWS to the exclusion of any other entities. Id. The Court agrees.
In determining whether the FWS complied with the statutory mandates of the ESA, the Court must again engage in the two-step inquiry set forth in Chevron, as discussed ábove. Turning to the first step of the Chevron analysis, there is no question that the FWS has been tasked with administering the ESA for certain species, 50 C.F.R. § 402.01(b), and that the Act requires the FWS to issue an incidental take statement where it finds that agency action will adversely impact a listed spe
This Circuit construed similar statutory and regulatory language in Gerber v. Norton,
The defendants argue that Gerber is inapposite, because it construed a different section of the ESA, involved different required findings, and did not involve another federal agency. See Fed. Defs.’ ESA/MBTA Mem. at 27-28; Int. Def.’s ESA/MBTA Mem. at 23 n.13. These arguments are unavailing. First, it is well established as a “normal rúle of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.” Sullivan v. Stroop,
Here, the FWS’s incidental take statement discusses a potential “operational adjustment” as a reasonable and prudent measure. FWS76. Specifically, the incidental take statement notes that
[t]he [FWS] also considered a reasonable and prudent measure, an operational adjustment to the wind facility that would require the temporary, and seasonal shut down of the [wind turbine generators] through the feathering of the rotors. Feathering of the rotors causes them to face the wind and stop spinning, and would reduce the risk of collision by roseate terns and, to a limited extent, migrating piping plovers transiting the Horseshoe Shoal project area.
FWS76-77 (emphasis added). Thus here, as in Gerber, the FWS found that a particular mitigation measure would reduce take. However, also as in Gerber, the FWS went on to discard the proposed reasonable and prudent measure because “it was determined by [the BOEM] and [Cape Wind] ... to not be reasonable and prudent based on” the failure to “meet the [reasonable and prudent measure] regulatory definition as a ‘reasonable measure’ as it modifies the scope of [a] project in a manner that is adverse to the project’s stated purpose and need.” FWS77 (first emphasis added). The FWS stated again that the “[BOEM] considers that this may involve more than a ‘minor change’ ” under 50 C.F.R. § 402.14(j)(2). Id. (emphasis added). The remainder of the FWS’s explanation for casting away the feathering measure is couched in phrases beginning with statements like “[the BOEM] has also determined” and “[the BOEM] indicates.” Id. However, nowhere in the explanation is there an indication that the FWS made an independent determination. This is unacceptable. While it is certainly possible that the feathering measure would not comport with 50 C.F.R. § 402.14(i)(2), the ESA and its implementing regulations require the FWS to make an independent determination. Because it seemingly did not do so, the Court must grant summary judgment to the plaintiffs on their ESA claims against the FWS.
The defendants try to avoid this conclusion by pointing to places in the administrative record where FWS personnel addressed the BOEM’s reasons for rejecting the feathering reasonable and prudent measure. See Fed Defs.’ ESA/MBTA Mem. at 22 (citing FWS215; FWS220). While it might be true that the FWS grappled with the issues raised by the BOEM, it is not clear from the reasonable and prudent measures issued by the FWS that its ultimate decision was based on its independent determination, or whether the FWS merely deferred to determinations made by the BOEM and Cape Wind. As noted before, the reasonable and prudent measures begin by observing that the proposed operational adjustment would reduce take, at least to some extent. The FWS then рroceeds to rely exclusively on BOEM and Cape Wind determinations as the basis for not including the operational adjustment. Without any indication that the FWS in fact made an independent determination about whether the adjustment was appropriate, the Court cannot infer that such a determination ultimately factored into the FWS’s decision.
The defendants also argue that language elsewhere in the statute and regulations suggests that the FWS can and indeed should consult other agencies or entities in making its determination. See, e.g., Fed. Defs.’ ESA/MBTA Mem. at 19-20 (citing 16 U.S.C. § 1536(a)(2) and 50 C.F.R. § 402.14(g)(8)); Int. Def.’s ESA/MBTA Mem. at 21-23 (citing the same statutory and regulatory provisions). While these provisions undoubtedly direct the FWS to consult and work with other agencies and entities in carrying out its Section 7 duties, they do not in and of themselves absolve the FWS of its responsibility to make an independent de
Section 7 consultation is a cooperative process. The [FWS] do[es] not have all the answers. Actively seek the views of the action agency and its designated representatives, and • involve them in your opinion preparation, especially in the development of reasonable and prudent alternatives, reasonable and prudent measures, terms and conditions to minimize the impacts of incidental take, and conservation recommendations.
FWS31010-11. While collaboration is encouraged, the Joint Consultation Handbook does not support the notion that the FWS should have deferred to the BOEM or Cape Wind when discarding the operational adjustment at issue without at least making clear that it was doing so based on its own independent determination of the issue. This is especially true given the explicit finding that implementing the operational adjustment as a reasonable and prudent measure would, at least to some extent, decrease the take of roseate terns and piping plovers. See FWS76. The ESA required the FWS to independently make that determination, and “it must do so.” Gerber,
2. The Plaintiffs’ Claims Against the National Marine and Fisheries Service
The plaintiffs also contend that the NMFS violated the APA and the ESA by erroneously concluding in its biological opinion that the Cape Wind project is not likely to adversely affect right whales, failing to establish terms and conditions for the incidental take of right whales, and failing to analyze the effect of preconstruction geological surveys on listed sea turtles. Pis.’ ESA/MBTA Mem. at 34-45; Pis.’ ESA/MBTA Opp’n at 29-44. The defendants argue that the considerations that went into and the resulting conclusions of the NMFS biological opinion complied with the ESA and the APA. Fed. Defs.’ ESA/MBTA Mem. at 39-45; Fed. Defs.’ ESA/MBTA Reply at 19-25; Int. Defs.’ ESA/MBTA Mem. at 35-45; Int. Defs.’ ESA/MBTA Reply at 17-25.
a. Whether the NMFS’s Biological Opinion is Arbitrary and Capricious
As the Supreme Court recently reiterated,
[rjeview under the arbitrary and capricious standard is deferential; [courts] will not vacate an agency’s decision unless it has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decisiоn that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. [Courts] will, however, uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.
Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
Here, it cannot be said that the NMFS “entirely failed to consider an important aspect of’ the impact that the Cape Wind project might have on right whales. The NMFS biological opinion
The biological opinion also took into account recent aggregations of right whales in Rhode Island Sound, Nantucket Sound, and other nearby bodies of water, NMFS1498-502, and ultimately concluded with respect to the recent aggregations that based on “a review of the available scientific literature[,] ... the use of Nantucket Sound by any species of whales, including North Atlantic right whales is extremely limited” and there were “no observations within Horseshoe Shoal where the project will be constructed.” NMFS150Í. The biological opinion continued “that right whale use of Nantucket Sound is likely to be rare, sporadic and extremely limited in duration and frequency” and noted further that “the habitat within Nantucket Sound is inconsistent with the habitat where right whales are typically found.” NMFS1502. The opinion acknowledged that
as occasional whales have been documented off of Monomoy and Great Point and in the waters outside of Nantucket Sound that will be transited by project vessels (i.e., Rhode Island Sound and Buzzards Bay), it is reasonable to expect that these species may be present in those portions of the action area.
Id.
Importantly, the biological opinion also considered that the “increase in vessel traffic will result in some increased risk of vessel strike of listed species,” including the right whale. NMFS1510. The opinion noted, however, that
[i]n spite of being one of the primary known sources of direct anthropogenic mortality to whales, and to a lesser dеgree, sea turtles, ship strikes remain relatively rare, stochastic events, and an increase in vessel traffic in the action area would not necessarily translate into an increase in ship strike events. No vessel strike events have been reported in the action area.
Id. The NMFS took into account certain mitigation measures that the BOEM and Cape Wind proposed to further minimize any risk of ship strikes. NMFS1510-11; NMFS1514. After considering the various mitigation measures, the frequency and location of the recent whale aggregations, and the status of right whales generally, the NMFS biological opinion found that
The Court’s role is not to second-guess the NMFS, but rather to ascertain whether the administrative record demonstrates that the agency has considered the “relevant data and articulate[d] a satisfactory explanation for its action” and whether the agency’s choice reflects “a rational connection between the facts found and the choice made.” Bluewater Network,
The plaintiffs’ arguments to the contrary fall flat. As support for their position, they point first, Pis.’ ESA/MBTA Mem. at 35, to an article entitled “Right Whales in Rhode Island Sound: April • 2010,” see NMFS1021-25; a map depicting the location of right whale sightings in early 2010, see NMFS1012-13, and also focus particularly on the number of mother-calf pairs among the recent sightings, see NMFS1017; NMFS2138. But as detailed above, the NMFS considered the recent aggregations of right whales at. length in its 2010 biological opinion. . See NMFS1498-502.
The plaintiffs next quibble with the biological opinion’s treatment of the danger posed by certain maintenance vessels that will be used during the life of the Cape Wind Project. Pis.’ ESA/MBTA Mem. at 38-44. ' The plaintiffs’ contention that no consideration was given to the increased traffic attributable to the Cape Wind project’s maintenance vessels overstates the conclusions reached in the biological opinion. See, e.g., NMFS1514 (discussing the “large number of commercial shipping and fishing vessels” transiting the same route and stating that “[t]he small number of additional transits (2 per day) contributed by maintenance support vessels represents a minimal increase in overall vessel traffic in the area”). Rather, the biological opinion states that
due to the limited information available regarding the incidence of ship strikefs] and the factors contributing to ship strike events, it is difficult to determine how a particular number of vessel transits or a percentage increase in vessel traffic will translate into a number of likely ship strike events or a percentage increase in collision risk.
b. Whether the NMFS Should Have Issued an Incidental Take Statement Concerning Right Whales
The plaintiffs argue that the NMFS violated the ESA by failing to include an incidental take statement concerning the take of right whales with its 2010 biological opinion. Pis.’ ESA/MBTA Mem. at 42; Pls.’ ESA/MBTA Mem. at 38 (citing Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of Eng’rs,
The implementing regulations of the ESA provide that one of the NMFS’s responsibilities during formal consultation is to “[fjormulate a statement concerning incidental take, if such take may occur.” See 50 C.F.R. § 402.14(g)(7). ‘ While this Circuit has not addressed whether the regulations require the issuance of an incidental take statement where take is not reasonably certain, the Ninth Circuit has ruled that a statement is generally required. Ctr. for Biological Diversity v. Salazar,
[t]his is a flawed interpretation of the FWS’s statutory obligation. The term “may” is broadly interpreted under ESA regulations and the FWS’s obligation to issue an incidental take statement was triggered by the possibility of take of the brown pelican, regardless of how unlikely that possibility may have seemed. 51 Fed.Reg. 19926, 19949 (June 3, 1986) (endorsing the definition of “may effect” for purposes of 50 C.F.R. § 402.14(a) as “[a]ny possible effect, whether beneficial, benign, adverse, or of an undetermined character.”). Accordingly, the FWS’s biological opinion is arbitrary and capricious because it fails to consider incidental take of the brown pelican.
Id. (second alteration in original) (citation omitted).
The Joint Consultation Handbook is not to the contrary. Rather, the Handbook includes a standardized incidental, take statement for situations “when no take is anticipated,” which in turn suggest? that the incidental take statement read as follows: “The Service does not anticipate the proposed action will incidentally take any (species).” FWS31115.
Here, the NMFS included no incidental take statement for right whales, despite the fact that the whales have traversed the Cape Wind project area and appeared along routes that will be traveled by project vessels. And while the biological opinion states that the “NMFS [] concluded that the proposed action is not likely to adversely affect right ... whales and, therefore, is not likely to jeopardize the[ir] continued existence,” NMFS1534, the NMFS did not state that incidental take would not occur or was “not anticipated.” Accordingly, because incidental take “may occur,” 50 C.F.R. § 402.14(g)(7), the NMFS was required to include an incidental take statement with its biological «opinion, and its failure to do so was arbitrary and capricious.
The federal defendants argue that no incidental take statement was required because the “NMFS determined that [incidental] take [of right whales] would not occur,” Fed. Defs.’ ESA/MBTA Mem. at 44 (citing NMFS1531; NMFS1534-37); see also Fed. Defs.’ ESA/MBTA Reply at 23 (“The administrative record shows that NMFS determined that take of right whales was unlikely to occur.”), and cite Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife Service, No. Civ 99-0673PHX RCB,
The federal defendants also argue in a footnote that “[b]ecause Cape Wind has no incidental take coverage for right whales, if there is а whale strike in the action area, which would be the first of its kind in record history, NMFS1510, [the] NMFS would need to reinitiate consultation.” Fed. Defs.’ ESA/MBTA Reply at 23 n.24. In making that assertion, the federal defendants cite 50 C.F.R. § 402.16, which requires reinitiation of formal consultation when, among other things, “the amount or extent of taking specified in the incidental take statement is exceeded” or “new information reveals effects of the action that may affect listed species ... in a manner or to an extent not previously considered.” See 50 C.F.R. §§ 402.16(a), (b). The federal defendants’ reading of the regulation does not make sense. In order for the “amount or extent of taking specified in the incidental take statement” to be “exceeded,” it must be specified in the first place.
c. Whether the NMFS Failed to Analyze the Effect of Construction on Listed Sea Turtles
The plaintiffs contend that the federal defendants “violated the ESA and APA by failing to analyze the effect of noise from greatly expanded preconstruction surveys on listed sea turtles.” Pis.’ ESA/MBTA Mem. at 44; see also Pis.’ ESA/MBTA Opp’n at 41-44. In particular, the plaintiffs challenge the notion that “an increase of 10 to 20 times as many survey hours and a larger survey area” considered in the 2010 biological opinion “could possibly result in the same level of harassment to turtles as the smaller survey” contemplated in the 2008 biological opinion. Pis.’ ESA/MBTA Opp’n at 42. They are wrong.
The plaintiffs assert that the 2008 biological opinion and incidental take statement considered .only the “project footprint,” whereas the 2010 biological opinion and incidental take statement “include not only the footprint of the facility but also the transmission line to shore.” Pis.’ ESA/ MBTA Mem. at 44. While it is true that one sentence in the 2008 biological opinion states that “[o]nly the project footprint on Horseshoe Shoal would be surveyed,” NMFS920, the opinion states elsewhere that the survеys would cover “the offshore construction footprints and associated work areas for all facility components, including the [wind turbine generators], the [electrical service platform], the inner array cables and the 115kV transmission cables to shore,” NMFS830. Furthermore, thé 2008 and 2010 biological opinions each provide the same number of square kilometers that would be affected by the surveys. Compare NMFS929 (“During the survey, an area of approximately 148 square kilometers will be surveyed.”), with NMFS1536 (same). Thus, although there is some contradiction within the 2008 biological opinion as to the area considered for the survey, the contradiction does not, on the whole, suggest that the NMFS considered a larger survey area in 2010 than it did in 2008. Rather, there appears to be a “rational connection” between the facts found and the choice made, Bluewater Network,
D. The Plaintiffs’ Migratory Bird Treaty Act Claims
The plaintiffs also argue that they are entitled to summary judgment because the BOEM has violated the Migratory Bird Treaty Act by approving the Cape Wind project without first obtaining a permit from the FWS for the taking of migratory birds. Pis.’ ESA/MBTA Mem. at 29-34. In particular, they argue that “where, as here, (1) [an agency] concede[s] that the project [it] was asked to approve will ... [take] migratory birds ..., and (2) no [Migratory Bird Treaty Act] permit authorizes that take, then” the agency ap
This Circuit “has held that the [Migratory Bird Treaty Act] applies to federal agencies.” Am. Bird Conservancy, Inc. v. FCC,
Given the statutory and regulatory text, the Court finds that the BOEM did not violate the Migratory Bird Treaty Act by merely approving a project that, if ultimately constructed, might result in the taking of migratory birds. As the Circuit stated in Glickman, “[a]s § 703 is written, what matters is whether someone hаs killed or is attempting to kill or capture or take a protected bird, without a permit and outside of any designated hunting season.”
The plaintiffs cite several cases in support of their position that the B OEM’s was required to obtain a permit prior to authorizing the Cape Wind project, but these cases are inapposite. American Bird Conservancy did not hold that a federal agency’s “approval of actions in violation of’ the
The plaintiffs argue that a recent NMFS application to the FWS for a permit authorizing incidental take of migratory birds lends support to their assertion that the BOEM should have applied for a permit in this case. See Pis.’ ESA/MBTA Mem. at 29 (citing Special Purpose Application: Hawaii Longline Fishery, 77 Fed.Reg. 1501, 1502 (Jan. 10, 2012)). But the existence of this application does not save the plaintiffs’ claims. The application concerned the Hawaii-Based Shallow-Set Longline Fishery, a third-party project regulated by the NMFS which became operational “in the late-1980s.”
E. The Plaintiffs’ Preservation Act Claims
All of the plaintiffs argue that they are entitled to summary judgment on their Preservation Act claims because the federal defendants engaged in allegedly untimely and meaningless Section 106 consultation and failed to identify on-shore historic properties in good faith. Pls.’ Remain Mem. at 60-66; Pls.’ Remain Opp’n at 70-74; Wampanoag Mem. at 13-25; Wampanoag Opp’n at 5-17. The PEER, Alliance, and Town of Barnstable plaintiffs additionally argue that the federal defendants violated the Preservation Act by failing to conduct geographical and geotechnical surveys in accordance with the Shelf Lands Act regulations. Pis.’ Remain Mem. at 57-60; Pis.’ Remain Opp’n at 58-66. The defendants unsurprisingly assert that the BOEM conducted timely and meaningful Section 106 consultation, prоperly identi-
1. Whether the BOEM’s Section 106 Consultation was Untimely
The Preservation Act is a procedural statute that requires federal agencies to “ ‘stop, look, and listen,’ ” or stated another way, “it requires federal agencies to take into account the effect of their actions on structures eligible for inclusion in the National Register of Historic Places.” Ill. Commerce Comm’n v. Interstate Commerce Comm’n,
The administrative record demonstrates that these criteria were satisfied. The Section 106 consultation process began in 2005, CW112019, well before the 2010 Record of Decision documenting the BOEM’s decision to issue a lease for the Cape Wind project. The State Historic Preservation Officer and the Advisory Council were both included as consulting parties, see CW44617; CW112019, as was the Wampanoag Tribe of Gay Head (Aquinnah), CW112021. The 2010 Record of Decision acknowledges and explains its reasons for divorcing the NEPA and Preservation Act timelines, explaining that rather than proceeding with a historic property identification methodology that commenters found objectionable, the BOEM began its identification process anew with a different identification methodology. CW112021. The Section 106 consultation process thus involved the appropriate parties and was not conducted in an untimely fashion.
The plaintiffs cite several documents in the administrative record as support for their position that the consultation was subject to an arbitrary deadline. Pis.’ Remain Mem. at 62 (citing CW224910;
2. Whether the BOEM’s Section 106 Consultation was Meaningless or Otherwise not Conducted in Good Faith
The plaintiffs first argue that the Cape Wind project “required far more” time to identify historic properties “than could be completed in five months.” Pis.’ Remain Mem. at 63; see also Wampanoag Mem. at 13-15. This disregards the facts. Even ignoring that consultation began in 2005, the administrative record is clear that comments on the draft EIS spurred the BOEM to renew efforts to identify affected historic properties and landmarks in 2008, and that consultation did not conclude until April 2010 with the Advisory Council comment terminating the consultation process. CW112021-24.
The plaintiffs also complain that the BOEM’s renewed identification efforts were considered “insufficient” by the consulting parties, Wampanoag Mem. at 20-21; Pis.’ Remain Mem. at 63, and cite, for example, an October 6, 2008 comment from the Martha’s Vineyard Commission indicating that “hundreds, if not, thousands” of properties remained to be considered, CW224865. But these comments were taken into account. While the plaintiffs correctly note that the “BOEM’s environmental consultant ... agreed that these comments had ‘merit,’ ” Pis.’ Remain Mem. at 63 (citing CW195859-65), the consultant merely suggested that the BOEM “re-evaluat[e] ... the [area of potential effect]” and stated that if the BOEM “determines that a [good faith effort] to identify has been conducted,” then the BOEM should respond'as such to the comments, CW195859. Indeed, and as the consultant recognized, “[arbitrary statements such as ‘there are other properties which were not included’ are not specific enough to be helpful to the process of identifying properties.” Id. And as this Circuit has stat.ed, “[t]he regulations do not expressly require agencies in all cases completely to survey impact areas, and in fact recognize that the need for surveys will vary from case to case.” Wilson v. Block,
The Wampanoag Tribe of Gay Head (Aquinnah)’s remaining Preservation Act arguments fail for similar reasons. While the Tribe takes issue with the manner in which the Section 106 consultation occurred, see Wampanoag Mem. at 18-25, the administrative record demonstrates that its views were considered, see, e.g., CW157196-201; CW111975-76. Even the Advisory Council’s final comment, though expressing displeasure with various aspects of the Section 106 consultation process, found that “in spite of’ early problems with the process,
the record shows that the tribes clearly identified their concerns about the effects of the undertaking on [traditional cultural properties] and about the importance'of Nantucket Sound as a [traditional cultural property] and the location of former aboriginal lands in 2004. In 2009, [the BOEM] took steps to remedy deficiencies in the tribal consultation process by participating in site visits and consultation meetings on Cape Cod and the Islands. ■
CW112699-700. The plaintiffs’ disagreement with the B OEM’s decision to approve the Cape Wind project does not mandate the conclusion that Section 106 consultation was conducted in bad faith.
3. Whether the BOEM Violated the Preservation Act by Failing to Obtain Geotechnical and Geophysical Surveys Required by the Shelf Lands Act
Finally, the plaintiffs argue that the defendants’ failure to obtain certain geophysical and geotechnical surveys required by the implementing regulations of the Shelf Lands Act renders inadequate the BOEM’s survey efforts for potential cultural resources on the seabed. Pis.’ Remain Mem. at 57-60; Pis.’ Remain Opp’n at 58-66. While there is undoubtedly some overlap between the surveys required for compliance with the Preservation Act and the Shelf Lands Act, the plaintiffs have pointed tó no requirement within the Preservation Act mandating the completion of Shelf Lands Act surveys pri- or to concluding surveys for subsurface archaeological resources.
Because Section 106 consultation was conducted with the appropriate parties, was neither untimely nor conducted in bad
F. The Plaintiffs’ NEPA Claims
The plaintiffs have moved for summary judgment on their NEPA clаims on several grounds. The PEER, Alliance, and Barnstable plaintiffs argue that the final EIS was deficient because it lacked necessary information, did not sufficiently review alternatives, and did not sufficiently address cumulative impacts on wildlife. Pis.’ Remain Mem. at 68-80; Pis.’ Remain Opp’n at 93-99. They also argue that Cape Wind’s Construction and Operation Plan constituted a new major federal action that required a new EIS or at the very least a supplemental EIS. Pis.’ Remain Mem. at 81-89; Pis.’ Remain Opp’n 86-92. The Wampanoag Tribe of Gay Head (Aquinnah) argues that the BOEM violated the APA and the NEPA by failing to address the impact that the Cape Wind project would have on subsistence fishing, as well as by failing to prepare a supplemental EIS subsequent to the Keeper’s determination that the Nantucket Sound is eligible for inclusion on the National Register of Historic Places. Wampanoag Mem. at 25-43; Wampanoag Opp’n at 17-21.
Like the Preservation Act, the “NEPA’s mandate ‘is essentially procedural.’ ” Nevada v. Dep’t of Energy,
1. The BOEM’s Purpose and Need Statement
The plaintiffs contend that the need and purpose statement contained in the EIS was deficient. Pis. Remain Mem. at 75-77. In evaluating the adequacy of an agency’s NEPA decision-making, the Court “review[s] both [the] agency’s definition of its objectives and its selection of alternatives.” Theodore Roosevelt Conservation P’ship v. Salazar (“Theodore Roosevelt Conservation II ”),
Here, the final EIS defined the purpose and need for the project as follows:
[T]o provide an alternative energy facility that utilizes the unique wind resources in waters offshore of New England using a technology that is currently available, technically feasible, and economically viable, that can interconnect with and deliver electricity to the New England Power Pool (NEPOOL), and make a substantial contribution to enhancing the region’s electrical reliability and achieving the renewable energy requirements under the Massachusetts and regional renewable portfolio standards (RPS).
CW65082. Especially when considered in light of Cape Wind’s proposal “to build, operate, and eventually decommission a wind energy facility ... in Nantucket Sound,” id. the statement of need and purpose in the final EIS is reasonable. While it is clear that the Cape Wind proposal seeks a particular outcome, the final EIS objectives are much broader. Namely, there is no mention of a specific body of water or of a specific type of energy facility. Rather, the statement calls for a facility that “us[es] a technology that is currently available, techniсally feasible, and economically viable.” Id. The stated objective is.even broader than the definition of objectives in Theodore Roosevelt Conservation II, which the Circuit found to be reasonable despite the fact that the objectives in that case concerned one specific project proposal.
2.The Range of Alternatives
The plaintiffs argue that the' final EIS did not consider a reasonable range of alternatives. Pis.’ Remain. Mem. at 74. The Court disagrees. The final EIS lists ten alternative sites for the offshore wind project:
1. Offshore Portland, Maine
2. Offshore Cape Ann, Massachusetts
3. Offshore Boston, Massachusetts
4. Offshore Nauset, Massachusetts (east of Nauset Beach)
5. Nantucket Shoals (southeast of Nantucket Island, Massachusetts)
6. Phelps Bank (southeast of Nantucket Island, Massachusetts)
7. East of Block Island, Rhode Island
8. Monomoy Shoals (east of Monomy, Massachusetts)
9. South of Tuckernuck Island
10. Horseshoe Shoals (proposed action)
CW65138. The final EIS sets forth the BOEM’s rationale for addressing the alternative sites:
The sites were chosen based on geographic diversity, having at least some potential in terms of wind resources, and the necessary area required for the proposed facility size. The Phelps Bank site was chosen as a result of a comment/request from the Massachusetts Office of CZM that an alternative be evaluated for a site located more than 25 miles (40 km) offshore with water depths less than 150 feet. The Offshore Nauset site was chosen as a result ofagency interests in comparing a deep ' water alternative.
Id. Additionally, several “[n]on-geographic alternatives,” which include “design alternatives” such as “modifications to the proposed action that reduce the scope ... or temporal impacts” were considered, including:
• 'Smaller Alternative (half of the [megawatt] capacity of the proposed action at the same location)
• Condensed Array Alternative
• Phased Development Alternative
• No Action Alternative.
CW65139.
Seven of the geographic alternatives were “screened out” because they failed to comport with the statement of need and purpose. CW65139-42 (eliminating geographic alternatives due to, among other considerations, water depth, hostile seabed conditions, and distance from shore). Thus, “further detailed analysis was not conducted and the reasons that each site was eliminated” were briefly discussed in the final EIS. Id. The remaining geographic alternatives and all four non-geographic alternatives were subsequently described at length, compared to the proposed action (that is, to the Cape Wind proposal), and examined with an eye toward numerous environmental, safety, soсioeconomic, and cultural considerations, among others. CW65626-81. Given this detailed and thorough analysis, the Court finds that the BOEM “selected a reasonable range .of alternatives in light of its purpose.” Theodore Roosevelt Conservation II,
3. Whether the BOEM Acquired Information Sufficient to Characterize Environmental Impacts.
The plaintiffs complain that the “BOEM repeatedly deferred critical studies that NEPA requires,” including additional data that the FWS suggested be obtained to assess the impact on birds, •Pis.’ Remain Mem. at 68-73, and on “navigational safety, shallow hazards safety, site characterization and archaeological resources,” id. at 73-74. The Wampanoag Tribe of Gay Head (Aquinnah) additionally argues that the potential impact on subsistence fishing was a factor not adequately considered by the BOEM. Wampanoag Mem. at 25-32.
As the Supreme Court has noted, “[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.”. Marsh v. Or. Natural Res. Council,
The plaintiffs’ concerns about “navigational safety, shallow hazards safety, site characterization and archaeological resources,” are based on the same arguments advanced with respect to the Coast Guard’s findings and the Shelf Lands Act. See Pis.’ Remain Mem. at 73. Because the Court has concluded that the Coast Guard’s findings are adequately supported by the administrative record, and because the Court has found that the BOEM did not violate the Shelf Lands Act, these arguments also cannot support the plaintiffs’ NEPA claims.
As noted earlier, the Wampanoag Tribe of Gay Head (Aquinnah) argues that the BOEM failed to take a “hard look” at the Cape Wind project’s impact on subsistence fishing. Wampanoag Mem. at 28. The Tribe contends first that the effects of “constant vibrations” were not analyzed. Id. But this argument is directly contradicted by the final EIS. See CW65518-19; CW65593. The Tribe next argues that the BOEM “provided no analytical support for” its finding “that turbine-spacing would not significantly affect fishing activities or fish populations.” Wampanoag Mem. at 29. But while the phrase to which the plaintiffs point does not cite to studies about fish, see CW65593, there are discussions on the effects of the project on fish elsewhere in the final EIS, see CW65518-19. And those discussions provide support for the B OEM’s action, which discusses studies conducted with respect to operational offshore wind farms in other parts of the world. Id. Finally, the Tribe faults the BOEM for categorizing its comments concerning subsistence fishing as comments concerning commercial fishing. Wampa-noag Mem. at 31. The Tribe further argues that “conflating subsistence fishing with commercial fishing implicates” several factors that the BOEM was required to consider under the NEPA. Id. at 31-32. However, the final EIS does acknowledge the comments on subsistence fishing separately from commercial fishing. See CW65593. While the conclusions about the effects on the two types of fishing might be the same, the fact remains that both are considered in the final EIS.
4. Whether the EIS Adequately Addressed Cumulative Effects on Wildlife.
The plaintiffs next argue that the BOEM “improperly constrained the scope of its analysis by limiting its consideration of cumulative effects to the immediate Project area.” Pis.’ Remain Mem. at 79. “Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to .other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7. As the Supreme Court has stated, “identification of the geographic area within which” cumulative environmental impacts “may occur[] is a task assigned to the special competence of the appropriate agencies.” Kleppe v. Sierra Club,
5. Whether the Construction and Operations Plan Constituted a new Major Federal Action.
The plaintiffs contend that the BOEM should have conducted another NEPA review of the Construction and Operations Plan for the Cape Wind project and issued another EIS. See Pis.’ Remain Mem. at 81. Alternatively, they argue, the BOEM should have issued a supplemental EIS. See id. at 84-87.
A “major Federal action” is defined to include “projects and programs entirely or partly financed, assisted, ... or approved by federal agencies.” 40 C.F.R. § 1508.18(a). Approval of a Construction and Operations Plan is undoubtedly federal action. See id. § 1508.18(b)(2) (including the “[a]doption of formal plans, such as official documents ... approved by federal agencies which guide or prescribe alternative uses of Federal resources” among the definitions of “[fjederal actions”). As used in the NEPA regulations, the term “[m]a-jor reinforces but does not have a meaning independent of significantly.” Id. § 1508.18(b). And “[significantly as used in NEPA requires considerations of both context and intensity.” Id. § 1508.-27. This requires, among others, consideration of “the affected region, the affected interests, and the locality”; “[t]he degree to which the proposed action affects public health or safety”; “characteristics of the geographic area such as proximity to historic or cultural resources”; and “[t]he degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.” Id. Here, these were the same factors considered at great length in the final EIS. Indeed, “an agency need not supplement an EIS every time new information comes to light after the EIS is finalized. To require otherwise would render agency de-cisionmaking intractable, always updating information only to find the new information outdated by the time a decision is made.” Marsh,
6. Whether Any New Information Required a Supplemental EIS.
Courts review an agency’s decision to issue a supplemental EIS under the arbitrary and capricious standard.
The plaintiffs complain that a supplemental EIS is required because the Construction and Operations Plan “includes a Safety Management System, Oil Spill Response Plan, Operations and Maintenance Plan, and other details regarding the Project and its environmental significance.”. Pis.’ Remain Mem. at 84. This is incorrect for several reasons. First, these concerns are not entirely new and were addressed in the final EIS. See, e.g., CW65381-86 (safety concerns and oil spills); CW66745-813 (draft oil spill response plan attached to final EIS); CW65119-126 (operation and maintenance). Moreover, the fact that the Construction and Operations Plan includes some new details or information on these subjects, or whether those or other details otherwise relate to environmental concerns, is not the point. Rather, the significance of the information is what drives the necessity for a supplemental EIS. And as this Circuit recently reiterated, “[t]he determination as to whether information is either new or significant ‘requires a high level of technical expertise’; thus” courts should generally defer to the agency’s “informed discretion.” Blue Ridge Envtl. Def. League,
The plaintiffs also argue that the recent aggregаtions of North Atlantic right whales warranted a supplemental EIS. Pis.’ Remain Mem. at 85-87. However, as discussed above, the NMFS completed a new biological impact statement in 2010, which addressed the recent aggregation. The NMFS concluded, as it did in its 2008 biological opinion, that the Cape Wind project was not likely to adversely affect the right whales. The BOEM subsequently included this information in its 2011 Assessment. See CW119760-61; CW119780. Considering that the NMFS’s conclusion did not change, the Court finds that it was not arbitrary or capricious for the BOEM to decline to supplement its EIS as a result of the whale sightings.
The Wampanoag Tribe of Gay Head (Aquinnah) contends separately that the Keeper’s determination that the Nantucket Sound is eligible for inclusion .on the National Register was another independent ground for the issuance of a supplemental EIS. See Wampanoag Mem. at 32-33. However, as discussed above, the BOEM took into account the Tribe’s comments that the entirety of the Nantucket Sound * was a traditional cultural property. Although the BOEM disagreed and was ultimately incorrect about the Sound’s eligibility for inclusion on the National Register, that does not mean that the BOEM did not
Finally, the plaintiffs fault the BOEM for failing to analyze alternatives in its 2010 and 2011 Assessments. See Pls.’ Remain Mem. at 74, 88-89 (citing 40 C.F.R. § 1502.14). By its terms, however, the regulation cited by the plaintiffs requires the consideration of alternatives only when an agency issues an EIS. The plaintiffs also take issue with the level of public comment sought on the 2010 and 2011 Assessments.' See id. at 87-89 (citing 40 C.F.R. § 1501.4(e)). However, an “agency has significant discretion in determining when public comment is required' with respect to [environmental assessments].” Blue Ridge Envtl. Def. League,
G. The Plaintiffs’ Remaining Claims
In its complaint, the Town of Barnstable advance in its first five claims for relief Shelf Lands Act and NEPA violations that center on the federal defendants’ failure to take certain action concerning aviation safety. See Barnstable Compl. ¶¶ 175-99. However, these aviation related allegations are not addressed in the plaintiffs’ briefs.
Similarly, the Alliance plaintiffs allege violations of the Clean Water Act and the Rivers and, Harbors Act. See Alliance Compl. ¶¶ 177-93. While both statutes are mentioned in passing in the plaintiffs’ legal memoranda, see Pis.’ Remain Mem. at 5, 8 n.6, 9; Pis.’ Remain Mem. at 36, the plaintiffs advance no argu-menté concerning these claims. Even if the Court construed the plaintiffs’ passing references to the Clean Water Act and the River Harbors Act as legal arguments, the plaintiffs fail entirely to support their arguments with citations to the administrative record. While it is true that a party does not abandon a claim by not briefing it in a partial motion to dismiss other claims, see Fund for Constitutional Gov’t v. Nat'l Archives & Records Serv.,
In light of the Court’s finding above, based on the existing administrative record, that the BOEM complied with its Shelf Lands Act regulations for approving a departure, the plaintiffs’ motion to strike the federal defendants’ references to documents outside of the administrative record is denied. The Court need not strike documents that were not before it in the first place and moreover that were not considered.
The Court also denies the plaintiffs’ motion for additional discovery. Although the plaintiffs may be correct that it was improper for the defendants to attempt to introduce the document in question into the record, the federal defendants did not concede that the document was or should have been a part of the administrative record. Rather, they referenced the document under the auspices of providing the Court with “an internal memorandum that was withheld from the administrative record as deliberative material” if the Court deemed the documents in the administrative record insufficient. Fed. Defs.’ Remain Mem. at 55 n.26. The Court previously issued an <>rder indicating that such memoranda are not part of the administrative record as a matter of law, and that the plaintiffs were not entitled to review them. See May 16, 2013 Order, ECF No. 273, at 4-5 (citing Nat’l Ass’n of Chain Drug Stores v. HHS,
IV. CONCLUSION
For the foregoing reasons, the Court grants summary judgment to the plaintiffs on their claims that the FWS violated the ESA by failing to make an independent determination about whether the feathering operational adjustment was a reasonable and prudent measure, and the Court will therefore remand this case to the FWS for it can make the required independent determination on this point. The Court also grants summary judgment to the plaintiffs on their claims that the NMFS violated the ESA by failing to issue an incidental take statement for the take of North Atlantic right whales, and the Court will therefore remand that issue to the NMFS for the issuance of an incidental take statement on this subject. Otherwise, the Court grants summary judgment to the defendants on the plaintiffs’ remaining claims. Finally, the Court denies the plaintiffs’ Rule 56(e) motion for additional discovery or, in the alternative, to strike.
SO ORDERED this 14th day of March, 2014.
Notes
. The individual plaintiffs are Cindy Lowry of Portland, Maine; Barbara Durkin of North-boro, Massachusetts; Martha Powers of West Yarmouth, Massachusetts; and Richard Lar-gay of Cummaquid, Massachusetts.
. As explained by the Court of Federal Claims,
In May 2010, the Secretary of the Interior announced that [the Minerals Management Service ("MMS”) ] would be split into three separate agencies: the Bureau of Safety and Environmental Enforcement (BSEE), the Bureau of Ocean Energy Management (BOEM), and the Office of Natural Resources Revenue (ONRR). In June 2010, MMS was renamed [the Bureau of Ocean Energy Management, Regulation and Enforcement ("BOEMRE”)]. The revenue-collection functions of BOEMRE were transferred to ONRR in October 2010, and BOEMRE was then divided into two new agencies, BSEE and BOEM, in October 2011.
Century Exploration New Orleans, LLC v. United States,
.The individual plaintiffs are Ron Borjeson, Jeff Good, and James Keding of Plymouth, Massachusetts; Neil Good and Robert Bussi-ere of Mashpee, Massachusetts; Cameron Dawson of East Falmouth, Massachusetts; Patricia J. Dineen and David Moriarty of West Falmouth, Massachusetts; William H. Rypka of Sandwich, Massachusetts; Richard Klein and Pauline K. Klein of Yorktown Heights, New York; Heather Rockwell of Marstons Mills, Massachusetts; Barbara Jean Pennick of Marble Head, Massachusetts; Lou Gonza-
. For ease of reference, the Court refers to all the federal officials and agencies collectively as the “federal defendants.”
. In addition to those documents already identified, the Court considered the following filings made by the parties: (1) the PEER et al. Plaintiffs’ Memorandum in Support of Their Motion for Summary Judgment on Their Claims Under the Endangered Species Act and Migratory Bird Treaty Act, ECF No. 171 ("Pis.’ ESA/MBTA Mem.”); (2) the Federal Defendants' Cross-Motion for Summary Judgment and Opposition to PEER Plaintiffs’ Motion for Summary Judgment, ECF No. 205 ("Fed. Defs.’ ESA/MBTA Mem.”); (3) the Combined Memorandum of Law in Support of Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment and in Opposition to the PEER et al. Plaintiffs’ Motion for Summary Judgment, ECF Nos. 203, 204 ("Int. Def.'s ESA/MBTA Mem.”); (4) the PEER et al. Plaintiffs’ Memorandum in Opposition to Federal Defendants’ and Interve-nor Cape Wind Associates LLC’s Motions for Summary Judgment, and Reply in Support of Their Motion for Summary Judgment, ECF Nos. 221, 222 ("Pis.' ESA/MBTA Opp'n”); (5) the PEER et al. Plaintiffs' Notice of Clarification, ECF No. 229; (6) the Federal Defendants’ Reply in Support of Their Cross-Motion for Summary Judgment, ECF No. 231 ("Fed. Defs.’ ESA/MBTA Reply”); (7) the In-tervenor Cape Wind Associates LLC’s Reply in Support of Its Motion for Summary Judgment Regarding the PEER et al. Plaintiffs’ Claims, ECF No. 232 ("Int. Def.’s ESA/MBTA Reply”); (8) the Memorandum of Points' and Authorities in Support of Plaintiff the Wampa-noag Tribe of Gay Head (Aquinnah)'s Motion for Summary Judgment, ECF No. 177 ("Wampanoag Mem.”); (9) the Federal Defendants' Memorandum in Opposition to Wampanoag Tribe of Gay Head (Aquinnah)’s Motion for Summary Judgment [ECF No. 177] and in Support of Federal Defendants’ Cross-Motion, ECF Nos. 208, 209 ("Fed. Defs.’ Wampanoag Mem.”); (10) the Combined Memorandum of Law in Support of Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment and in Opposition to the Wampanoag Tribe of Gay Head (Aquinnah)'s Motion for Summary Judgment, ECF Nos. 210, 211 ("Int. Def.'s Wampanoag Mem.”); (11) Plaintiff the Wampanoag Tribe of Gay Head (Aquinnah)’s Memorandum in Opposition to Federal Defendants’ and Inter-venor Cape Wind Associates LLC's Motions for Summary Judgment, and Reply in Support of Their Motion for Summary Judgment, ECF No. 223 ("Wampanoag Opp’n”); (12) the Federal Defendants’ Reply in Support of Summary Judgment on Claims Brought by the Wampanoag Tribe of Gay Head (Aquin-
. The term "take” is not defined in the Migratory Bird Treaty Act. However, the implementing regulations of the Act provide that, among other things, "[t]ake means to ... wound[][or] kill.” 50 C.F.R. § 10.12.
. The treaties comprise bilateral conventions between the United States and Great Britain; the United States and Mexico; the United States and Japan; and the United States and Russia, each concerning the protection of migratory birds. 16 U.S.C. § 703(a); see also 50 C.F.R. § 10.13(a).
. The regulations interpreting the NEPA provide:
Human environment shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment.... This means that economic or social effects are not intended by themselves to require preparation of an environmental impact statement. When an environmental impact statement is prepared and economic or social and natural or physical environmental effects are interrelated, then the environmental impact statement will discuss all of these effects on the human environment.
40 C.F.R. § 1508.14.
. The Shelf Lands Act generally defines "lands beneath navigable waters” as all underwater land extending outward from the coastline of the United States that is subject to the laws of the United States. See 43 U.S.C. § 1301(a).
. Three sets of administrative record docii-ments were submitted to the Court — one for each set of cross-motions for summary judgment. See Notice of Submission of Jointly Prepared Appendix of Administrative Record Pursuant to Local Civil Rule 7(N), ECF No. 234 (index to administrative record concerning claims by the Wampanoag Tribe of Gay Head (Aquinnah)); Notice of Filing of Appendix, ECF No. 237 (index to administrative record concerning ESA and Migratory Bird Treaty Act claims); Notice of Filing of Appendix, ECF No. 333 (index to administrative record concerning plaintiffs' remaining claims). For ease of reference, the Court refers in this Memorandum Opinion to the Bates numbers assigned to the administrative record documents as outlined in the index for each administrative record. The Bates numbers consist of alpha-numeric references. Bates numbers beginning with (1) "CW” refer to documents from the BOEM; (2) "FWS” refer to documents from the FWS; (3) "NMFS” refer to documents from the NMFS; and (4) "USCG” refer to documents from the Coast Guard.
. A "shoal” is "a sandbank or sandbar that makеs the water shallow.” See Merriam-Webster Dictionary, available at http://www. merriam-webster.com/dictionaiy/shoal (last visited Mar. 4, 2014).
. According to the FWS biological opinion, "the Bird Island restoration project is to restore and repair the existing stone revetment in its current location on the island and to use clean dredged material to raise the elevation of 0.4 acre of habitat landward of the revetment." FWS67. The FWS opined that the "project is likely to have measurable beneficial effects for the roseate tern by preventing further loss of existing essential nesting habitat, by creating additional suitable nesting habitat, and by increasing the carrying capacity of the island which is the most productive breeding site for the species in Buzzards Bay.” Id. The FWS acknowledged that "this projéct may not be completed ... until some point after the Cape Wind Project is constructed.” FWS67-68.
. The NMFS had previously "provided comments on [a] [draft EIS] [prepared by the Corps of Engineers] and indicated to the [Corps] that consultation pursuant to Section 7 of the ESA would be necessary for the proposed project.” NMFS1414.
. The final EIS, which was prepared pursuant to the NEPA and the Shelf Lands Act, is discussed in further detail below.
. "The final [Avian and Bat Monitoring Plan] was approved by [the] FWS on September 6, 2012, and by [the] BOEM on November 20, 2012.” Fed. Deis.’ ESA/MBTA Mem. at 8 & n.8 (citing http://www.boem.gov/ Renewable-Energy-Program/Studies/Cape-Wind.aspx (last visited Mar. 4, 2014)).
. Specifically, the Town of Barnstable alleges that
[t]he [d]efendants have ... fail[ed] to ensure that the [Cape Wind project] ... will be carried out in a manner that provides for the safety of parties engaging in: a) commercial and general aviation activities; b) commercial shipping and commercial transportation between the Cape and the Islands; c) oil spill prevention and response operations; and d) search and rescue operations.
Barnstable Compl. ¶ 216
. Another case was consolidated at the same time, but was later dismissed with prejudice. See Stipulation of Voluntary Dismissal of All Claims in Martha's Vineyard / Dukes County Fisherman’s Ass’n v. Salazar, ECF No. 149; see also July 2, 2012 Minute Order.
. Because the Court concludes that there has been no violation of § 414 of the Coast Guard and Maritime Transportation Act of 2006, the Court will not address whether the issuance of terms and conditions pursuant to § 414 constitutes final agency action.
. The defendants argue that the similarity' between the two statutory schemes calls for the conclusion that the Coast Guard is not a proper party. See, e.g., Fed. Defs.’ Remain Mem. at 14-17; Int. Def.’s Remain Mem. at 19-23. As this Circuit has stated, where parties levy a challenge to licenses issued under the Federal Power Act, "FERC is the appropriate named respondent even if the real defense is to be mounted by [the Department of the] Interior.” Bangor Hydro-Elec. Co.,
. Cape Wind urges the Court to restrict its review “to the BOEM record and not the Coast Guard record.” Int. Def.'s Remain Mem. at 22-23. However, the federal defendants do not make this argument, and "[t]he general rule in this Circuit is that '[finterve-nors may only argue issues that have been raised by the principal parties.’ ” Ass’n of Battery Recyclers, Inc. v. EPA,
. Environmental descriptions included the hydrography, currents, waves, and weather of Nantucket Sound. USCG918-20.
. The alternatives are discussed in detail below in the context of the Court's evaluation of the plaintiffs' NEPA claims.
. The plaintiffs' NEPA and NHPA arguments concerning these data are addressed later in this memorandum opinion.
. The plaintiffs erroneously state that the biological opinion "requires only one measure to minimize the risk that boats will hit right whales.” Pis.’ ESA/MBTA Mem. at .43 (citing NMFS1515). A list of mitigation measures is found in Appendix A to the 2010 biological opinion, NMFS1576-84, which in turn references and requires familiarity and training in accordance with certain agency implemented guidelines, NMFS1577. These guidelines comprise operational requirements, including instructions to decrease speed or alter course when a right whale is observed. See NOAA — National Marine Fisheries Service & National Ocean Service: Wha-lewatching Guidelines for the Northeast Region Including the Stellwagen Bank National Marine Sanctuary, available at NOAA, http:// www.nmfs.noaa.gov/pr/pdfs/education/ viewing_northeast.pdf (last visited Mar. 5, 2014).
. To be sure, "[t]hat limit may.be zero; that is, a valid [incidental take statement] may exempt no take.” Town of Superior v. U.S. Fish & Wildlife Serv.,
. Density is measured by the number of individuals of a species present within a given area. See, e.g., Davis v. Latschar, 202 F.3d 359, 361 (D.C.Cir.2000). It does not refer to the total population of a species. Id.
. Cape Wind additionally argues that the plaintiffs’ reading of the statute is too broad and would lead to absurd results, Int. Def.’s ESA/MBTA Mem. at 32-34 ("The legislative history of the [Migratory Bird Treaty Act] makes clear that the Act was passed to restrict human activity[, i.e., hunting or poaching,] directed at wildlife" (original emphasis)), but "[t]he [fjederal [defendants do not join and in fact strongly disagree with Cape Wind Associates’ [ ] arguments regarding the scope of the [Migratory Bird Treaty Act] ...," Fed. Defs.’ ESA/MBTA Reply at 14 n.13. "The general rule in this [C]ircuit is that ’[i]ntervenors may only argue issues that have been raised by the principal parties.’ ” Ass’n of Battery Recyclers, Inc.,
. Even if 40 C.F.R. § 1501.4(e) does apply here, it is not clear that the BOEM violated that regulation. The 2010 Assessment was subject to notice and comment. See CW111956-57. And while the BOEM invited comments on the 2011 Assessment only by posting the assessment on its website, see CW119705, NEPA regulations require only public "review” of environmental assessments, not public "notice and comment.” 40 C.F.R. § 1501.4(e)(2). The regulations elsewhere refer to "[r]equest[ing] comments from the public,” see, e.g., id. § 1503.1(a)(4), which suggests that something less than the usual public notice and comment is not inappropriate for environmental assessments subject to § 1501.4(e)(2).
. The most that the plaintiffs do is refer to aviation safety once in the context of their NEPA claims, see Pis.' Remain Mem. at 73-74, while simultaneously acknowledging that the Circuit recently remanded the safety issue to the FAA in Town of Barnstable v. FAA,
. The Court will issue an order contemporaneously with this Memorandum Opinion.