National Audubon Society, Inc. v. United States Fish and Wildlife Service et al

Filing 33

OPINION & ORDER: SO ORDERED that plaintiffs motion for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure is denied; defts' motion pursuant to Rule 65(b)(4) to dissolve the TRO is denied and plaintiffs cross motion to strike certain paragraphs and exhibits of the Amanat declaration are denied as moot; and FILPS' s motion for leave to file a brief amicus curiae is denied. Ordered by Judge Sandra J. Feuerstein on 10/17/2014. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------)(

NATIONAL AUDUBON SOCIETY, INC.,
Plaintiff,

OPINION & ORDER
14-CV-5341 (SJF)(SIL)

-againstUNITED STATES FISH AND WILDLIFE
SERVICE; UNITED STATES ARMY CORPS
OF ENGINEERS; SALLY JEWELL, in her
official capacity as Secretary, Department of the
Interior; DANIEL M. ASHE, in his official
capacity as Director, U.S. Fish and Wildlife
Service; WEND! WEVER, in her official
capacity as Northeast Regional Director, U.S.
Fish and Wildlife Service; LIEUTENANT
GENERAL THOMAS P. BOSTICK, in his
official capacity as Commanding General and
Chief of Engineers, U.S. Army Corps of
Engineers; and COLONEL PAUL E. OWEN,
in his official capacity as New York District
Commander, U.S. Army Corp of Engineers,

F\L.ED
IN CLERK'S OFFICio N '(
U S DISTRICT COURT

*

oCT 1 7 2.014

*

LONG \SLAND Off\CE

Defendants.

----------------------------------------------------------)(
FEUERSTEIN, J.

I.

Introduction
On September 12, 2014, plaintiffNational Audubon Society, Inc. ("plaintiff'') filed: (I) a

complaint pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, against
defendants United States Fish and Wildlife Service ("FWS"); United States Army Corps of
Engineers ("Army Corps"); Sally Jewell, in her official capacity as Secretary of the United States
Department of the Interior ("DOl"); Daniel M. Ashe, in his official capacity as Director of the
FWS; Wendi Wever, in her official capacity as Northeast Regional Director of the FWS;

1

Lieutenant General Thomas P. Bostick, in his official capacity as Commanding General and
Chief of Engineers of the Army Corps; and Colonel Paul E. Owen, in his official capacity as
New York District Commander of the Army Corps (collectively, "defendants"), challenging (a) a
Biological Opinion issued by the FWS under Section 7(a)(2) of the Endangered Species Act
("ESA"), 16 U.S.C. § 1536(a)(2), on or about May 23,2014 ("the Biological Opinion"), and (b) a
final Environmental Assessment ("EA'') and Finding of No Significant Impact ("FONSI") issued
by the Army Corps under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 43214375, relating to the Fire Island Inlet to Moriches Inlet Fire Island Stabilization Project ("the
Project"); and (2) an application pursuant to Rule 65 of the Federal Rules of Civil Procedure
seeking a temporary restraining order and preliminary injunction enjoining defendants "from
undertaking, either directly or indirectly, or causing or allowing [their] contractors*** to
undertake, the destruction or modification of upland areas, beaches, intertidal areas, tidal flats,
ephemeral pools, and shorelines at Smith Point County Park and Fire Island Lighthouse Beach
["Lighthouse Beach"] on Fire Island, Suffolk County, New York, including the construction of
dunes, berms or roads, the operation of motorized equipment, and any other activity that alters or
may have the effect of altering, either temporarily or permanently, the physical condition of the
aforementioned areas [pending a ruling on plaintiff's motion for a preliminary injunction and
during the pendency of this action, respectively]." (Order to Show Cause for Temporary
Restraining Order and Preliminary Injunction ["OTSC"] at 2-3). By order dated September 12,
2014, inter alia: (I) defendants were ordered to show cause, by filing a memorandum in response
to the plaintiff's application and any supporting evidence on or before September 18,2014, why
the preliminary injunction should not be issued; and (2) plaintiff's application for a temporary

2

i

'

restraining order ("TRO") was granted upon its posting of an undertaking in the amount of ten
thousand dollars ($10,000.00) pursuant to Rule 65(c) of the Federal Rules of Civil Procedure.
Plaintiff posted the required undertaking on September 15,2014.
Subsequently, defendants moved, inter alia, to dissolve the TRO pursuant to Rule
65(d)(4) of the Federal Rules of Civil Procedure and to extend the briefing schedule for the
preliminary injunction motion. By order dated September 17,2014, defendants' motion was
granted to the extent that their time to serve and file opposition to plaintiff's preliminary
injunction motion was extended to October 2, 2014 and plaintiff's time to serve and file any
reply was extended to October 6, 2014. Thereafter, plaintiff moved pursuant to Rule 408 of the
Federal Rules of Evidence to strike certain paragraphs and exhibits of the Declaration ofF.
Franklin Amana!, dated September 16, 2014, submitted by defendants in support of their motion
to dissolve the TRO ("the Amana! declaration").
Also pending before the Court is the motion of Fire Island Lighthouse Preservation
Society ("FILPS") for leave to file a brief amicus curiae in opposition to plaintiff's motion for a
preliminary injunction.
For the reasons set forth herein, all of the above referenced motions are denied.

II.

Background
A.

Factual Background
I.

The Project

The Project area stretches from Robert Moses State Park in the west to Smith Point
County Park ("the Park") in the east, for a total of nineteen (19) miles, on Fire Island, New York.
3

i

i'

(Biological Opinion ["Bio. Op."] at 10). The Project includes "dune and beach construction*

*

* [and] beach fill tapers (lateral extensions of dune and beach fill)'' on Fire Island. (Bio. Op. at
5). The stated purpose of the Project is "to address shoreline erosion on Fire Island that occurred
as a result of Hurricane Sandy ["the storm"] and to provide a level of storm damage protection to
mainland developments***." (Id. at 10). Specifically, "[t]he storm created three breaches and
extensive overwash areas on the eastern end of Fire Island," (ill,. at II), particularly in the Park.
(I d.)

2.

Consultation

On or about December 9, 2013, the Army Corps transmitted to the FWS the plan layout
designs for the Project. (Bio. Op. at 5).
On or about December 13,2013, the FWS provided recommendations to the Army Corps
"to avoid or minimize impacts to listed and proposed species and their habitats[,]" (Bio. Op. at
5) 1, including changes in dune alignment and beach elevation at, inter alia, Lighthouse Beach in
order "to maximize protection of partial overwash habitats at [that] site[]," (illj; "a 'Berm only'
design profile and maximum berm elevation of9 feet (ft) National Geodetic Vertical Datum
(NGVD) at [the Park] in [certain] area[s]," (id.), i.e., elimination of"the proposed artificial dune
system in [the Park]," (Chang Dec!., Ex. 5 at 2); "sediment textural compatability, (Bio. Op. at
5); and "vegetation density[,]" (ill,.).
1

The letter itself indicates that its purpose "is to provide early recommendations for
discussion at the meeting scheduled for December 18, 2013, between [FWS and Army Corps]
staff to advance habitat restoration and to identify endangered species conservation measures."
(Declaration of Hannah Chang, Esq. in Support ofMotion for [TRO] and Preliminary Injunction,
dated September II, 2014 ["Chang Dec!."], Ex. 5 at 1).
4

i

On or about December 16, 2013, the Army Corps transmitted to the FWS a preliminary
Draft Environmental Assessment ("Draft EA''), including two (2) alternatives, i.e., a "No Action
Alternative" and a "Beach Fill Alternative," that did not include a biological assessment for
piping plovers because it was "being revised based on the December 13, 2013[] meeting." (Bio.
Op. at 5-6).
On or about December 18, 2013, the Army Corps convened a meeting with the FWS,
National Park Service ("NPS"), New York State Department of Environmental Conservation
("NYDEC"), Suffolk County Department of Parks, Recreation and Conservation ("SCDPRC")
and Suffolk County Department of Public Works ("SCDPW") "to discuss endangered species
conservation measures and habitat restoration alternatives in the proposed [P]roject area." (Bio.
Op. at 6). The Biological Opinion indicates that at that meeting, the Army Corps "slightly
modifie[d] the dune alignment at [Lighthouse Beach] * * *to address the [FWS's] December 13,
2013[] comments[;]*** propose[d) to lower tolerance limits for berm elevation to 0.5 ft from
1.0 ft[;] [and] propose[d) several options for vegetation maintenance throughout the [P]roject
area[] and habitat restoration near the east end of [the Park] in an area known as Great Gun
Beach." @)
On or about December 19, 2013, the Army Corps provided the FWS "its final proposed
dune and berm alignment for the [Park] portion of the [P]roject area[,]" including modifications
for "dune and beach construction, vegetation maintenance in piping plover breeding habitat, and
habitat restoration at the eastern end of [the Park]," (Bio. Op. at 6), "based upon feedback the
[Army] Corps received during*** [the December 18, 2013] meeting***." (Chang Dec!., Ex.
6).

5

•
On or about January 9, 2014, the FWS transmitted correspondence to the Army Corps,

inter alia, concurring with the Army Corps that the modifications adopted by it "are an
improvement over [its] earlier proposed plan and impact less habitat than the earlier proposal,"
(Chang Dec!., Ex. 6), but "identifying additional alternatives the [Army] Corps should consider
for the [Park] portion of the project area," (Bio. Op. at 6), to "further diminish the impacts to
habitat and provide storm protection[,]" (Chang Decl., Ex. 6). Those additional alternatives
include "construct[ion] of an enhanced berm" only, with "no solid dune," at the Park; an
"experimental" '"staggered dune' approach at [the Park] that would consist of two lines of dunes
with overlapping staggered openings[;]" not having a dune constructed through "at least one of
the three overwash lobes[;]" and having "breaks in the dunes[.]" (Id.) The FWS indicated, inter

alia, that "[a]lthough [it] appreciate[s] monitoring and adaptive management of vegetation in
specific [Park] areas, preserving the[] ocean-to-bay overwash lobes is most likely to provide the
most recovery benefits."

CllU

On or about January 10,2014, the Army Corps provided the FWS with "updated project
plans for a portion of the [P]roject at [the Park] * • • advis[ing] that the constructed dunes must
be straight lines, with as shallow transitions as possible, but they can be modified during the
Plans & Specification period of project planning[]*** [and] that the back slope of the dune
design can be modified slightly

* * * for a 'smaller' overall foot print."

(Bio. Op. at 6).

On or about January 24,2014, the DOl, Office of Environmental Policy and Compliance
("OEPC") submitted written comments and suggestions on the Draft EA, including comments
from the United States Geological Survey ("USGS"), the NPS and the FWS, to the Army Corps.
(Bio. Op. at 6; Chang Dec!., Ex. 7).

6

.

'
On or about February 4, 2014, inter alia, the FWS received the Army Corps's Biological

Assessment ("BA") and request for initiation of formal consultation pursuant to section 7 of the
ESA for, inter alia, the piping plover. (Bio. Op. at 7).
On or about February 7, 2014, the Army Corps informed the FWS: (I) "that no beach fill
will be placed within 1000 meters (m) of known populations of piping plover*

* * during the

breeding season[,]" (Bio. Op. at 7); and (2) that it expects "the effects of the [Project] will
provide storm damage protection for approximately five years and then erode over the next five
years to a point where it would not provide storm damage protection." (Bio. Op. at 7).
On or about February 12, 2014, the FWS met with the Army Corps, DOl, NPS and USGS
to discuss the Project, the Army Corps's ESA responsibilities and the schedules for the BA and
Biological Opinion. (Bio. Op. at 7).
On or about February 14, 2014, the FWS transmitted written comments to the Army
Corps on, inter alia, the Project design. (Bio. Op. at 7).
Between February 20-21, 2014, a meeting, attended by the FWS, Army Corps, NPS and
USGS, was held to discuss, inter alia, "the proposed [P]roject in more detail, looking at [P]roject
features that would minimize impacts to listed species in the [P]roject area." (Bio. Op. at 8).
On or about February 28, 2014, the Army Corps transmitted, inter alia, a revised BA to
the FWS, (Bio. Op. at 8), modifying its original BA to increase habitat in the Great Gun Area at
the Park to be "managed for piping plovers to mitigate effects of [the Project]" from almost
sixteen (15.7) hectares to nearly thirty-four (34) hectares, (Bio. Op. at 141), and to implement an
additional six (6) hectare dredge site restoration on the bay side of the Park, south of New Made
Island, to be "designed and managed to provide nesting and foraging habitat for plovers," fuh at
7

142).
On or about March 3, 2014, the Army Corps transmitted to the FWS, inter alia, its
determination that the Project "may affect, and would be likely to adversely affect the piping
plover* • • ." (Bio. Op. at 8).
On or about March 4, 2014, (I) biologists from the FWS and Army Corps discussed the
Project "and several areas where clarification in the [P]roject description [was] needed[,]" (Bio.
Op. at 8); (2) the Army Corps "follow[ed] up via electronic correspondence addressing such
issues as local maintenance of the [P]roject, land use management that might occur in the
[P]roject area after construction, and [its] commitment to continue to work with the [FWS] on
issues related to predator management and pre-, concurrent, and post- construction monitoring in
the [P]roject area[,]" (id.); and (3) the FWS transmitted to the Army Corps correspondence
accepting the BA, thereby officially beginning the process of formal consultation under the ESA.

ilib)
On or about May 7, 2014, a meeting, attended by, inter alia, the Army Corps, the NPS,
the FWS, the NYSDEC and Suffolk County, was held "to discuss the County's proposed changes
to the [Army] Corps's proposed [P]roject description for the area in [the Park] and • • • the
[FWS' s] draft biological opinion[] •

* • preliminar[ily] determin[ing] that the [P]roject, as

proposed, was likely to jeopardize the continued existence of the piping plover • • * ." (Bio. Op.
at 9). The FWS explained that its preliminary determination was based upon "the status of the
species, environmental baseline, effects of the action, and cumulative effects of the [P]roject, as
well as the regulatory standard required when undertaking jeopardy analyses." ([QJ
On or about May 8, 2014, a meeting attended by the Army Corps, the NPS, the FWS, the
8

•

•

NYSDEC and Suffolk County, was held "to solicit comments on the [FWS's] methodology in
evaluating the effects of the [Project], including an assessment of the carrying capacity of stormcreated habitats affected versus those not affected by the proposed [P]roject and the with[P]roject scenario." (Bio. Op. at 9).
Between May 15-16, 2014, a meeting, attended by the Army Corps, the NPS, the FWS,
the DOl, the NYSDEC and Suffolk County, was held "to finalize conservation measures to
minimize impacts to the piping plover." (Bio. Op. at 9).
On May 23, 2014, the FWS delivered its final biological opinion ("the Biological
Opinion") to the Army Corps. (Bio. Op. at 9).

3.

The Biological Opinion

The Biological Opinion is based upon information provided in the Army Corps's final
revised BA (Bio. Op. at 4, 12), and numerous other sources, (see Bio. Op. at 184-210).
The Biological Opinion indicates that the Project "includes dune and/or beach
construction for 19 mi[les] of the entire 30 mi[les] or 63%, of Fire Island's coastline[,]

***

[which] would affect I 00% of the overwash habitat created by Hurricane Sandy in the project
area that is used by, or could be utilized by piping plover[,] * * * [but] also includes measures the
[Army] Corps has proposed to avoid and minimize adverse effects to the piping plover***."
(Bio. Op. at 12). The FWS determined that since twenty thousand eight hundred (20,800) feet of
dune and beach construction is planned for undeveloped areas of the Park under the Project, the
Project "would adversely affect breeding populations of plovers and their habitat." (Bio. Op. at
16).
9

•

a.

Piping Plovers
1.

Life and Habitat

Piping plovers that breed on the Atlantic Coast of the United States and Canada ("the
Atlantic Coast piping plover"), such as those at issue here, are classified as threatened under the
ESA and breed "on sandy, coastal beaches from Newfoundland to North Carolina." (Bio. Op. at
49, 53-54). "[W]ide, flat, sparsely-vegetated barrier beach habitats

* * * [that] include abundant

moist sediments associated with blowouts, washover areas, spits, unstabilized and recently closed
inlets, ephemeral pools, and sparsely vegetated dunes" are important for the recovery of Atlantic
Coast piping plovers. (!4, at 49, 54, 56). Although Atlantic Coast piping plovers "may also nest
on areas where suitable dredge material has been deposited at a low slope and elevation,

***

many factors* **affect their nesting density and success in th[o]se areas." Mat 54). The
FWS determined that piping plover "[h]abitat became unsuitable when vegetative cover
exceeded 33.5%, distance from the high tide line to toe of the dune was less than 9.5 meters,
dune height exceeded 2.0 meters, and dune slope exceeded 20%[,]" (id. at 49), and that "piping
plovers respond positively to the creation of high quality habitat *

u.

* *."

(!4,)

Recovery Units

Four (4) recovery units have been established for the Atlantic Coast piping plover in an
approved recovery plan, i.e., the 1996 revised Atlantic Coast Recovery Plan: (I) Atlantic
(Eastern) Canada; (2) New England; (3) New York-New Jersey; and (4) Southern (Delaware,

10

•
Maryland, Virginia and North Carolina). (Bio. Op. at 59). 2 The FWS determined: (I) that "[t]he
achievement and maintenance of the assigned population level and the associated habitat
conditions necessary to support that population for each of the four recovery units are necessary
for both the survival and recovery of the Atlantic Coast* * *piping plover[,]" (Bio. Op. at 50,
60, 61); (2) that "[t]he ability of both the Eastern Canada and New York-New Jersey recovery
units to provide redundancy, resiliency, and representation that are essential to the survival and
recovery of the Atlantic Coast population are particularly at risk[,]"

Cili at 50, 74); (3) that

"[t]he

survival and recovery of Atlantic Coast piping plovers remain highly dependent on the
conservation of remaining habitats and habitat-formation processes, as well as annual
implementation of expensive labor-intensive management to minimize the effects of pervasive
and persistent threats from predation and disturbance by humans and pets[,]" Cili); and (4) that
"[r]eversals of major ongoing declines in the Eastern Canada and New York-New Jersey
recovery units are urgent[,]"

Cili).

iii.

Abundance

"The preliminary 2013 Atlantic Coast piping plover population estimate was I, 797 pairs,
more than double the 1986 estimate of790 pairs • • *[,]" (Bio. Op. 62), representing "a net
1989-2013 increase of88%." (IQJ "Abundance in the New York-New Jersey recovery unit
experienced a net increase of24% between 1989 and 2013, but the population declined sharply
from apeak of586 pairs in 2007 to 397 pairs in 2013 (-32%) * * *." (Id. at 63). "During [that]

Since recovery units were established in an approved recovery plan, the Biological
Opinion "considers the effects of the.[] [P]roject on ~iping plovers i'~ the. New York-New Jersey
Recovery Unit, as well as the Atlantic Coast populatiOn as a whole. (Bw. Op. at 62).
2

II

period, several storms occurred as did beach stabilization and nourishment efforts, and human
development increased • • • ." (Id.) "Changes in the Long Island population account for most of
the absolute growth in the recovery unit population through 2007 and most of the decrease that
has occurred in the last six years." (IQ,) "On Long Island, the south shore has been the greatest
contributor to population changes (both positive and negative), supporting about 50% of the
entire recovery unit population." (IQ,) "Low abundance in New Jersey and recent steep
decreases in abundance on Long Island (especially on the south shore) contribute to the recovery
units [sic] demographic vulnerability." (IQ,)

1v.

Vulnerability

"[L]oss and degradation of habitat remains a very prominent threat to piping plovers in
the New York-New Jersey recovery unit.'" (Bio. Op. at 52, 73, 84). "Within the New York
Bight, which includes • * • the southern Long Island shoreline, more than half the beaches are
classified as 'developed[]'** • [and] many of[the remaining 'natural and undeveloped'
beaches] are also subject to extensive stabilization activities that promote the formation of
mature dunes, thus preventing overwash, inlet migration, and other natural coastal processes that
create and maintain preferred plover habitats." (IQ, at 52, 84). "Actions that further diminish the
carrying capacity of habitat pose the greatest potential for additional reductions in the probability
of persistence of the [New York-New Jersey] recovery unit population and will be the most
difficult to reverse." (I d. at 73).
3

Other threats to Atlantic Coast piping plovers include "disturbance by humans and pets,
increased predation, [] oil spills • * * climate change and wind turbine generators • • • ." (Bio.
Op. at 83).
12

"A detailed review of threat t . .
s o PIPing plovers and their habitat in th .
.
.
.
eir contmental U.s.
migratiOn and wintering range * * * h
s ows a continuing loss and degradation of habitat due to
sand placement projects, inlet stabilization, sand mining groins seawall
d
'
,
s an revetments
dredging of canal subdivisions, invasive vegetation, and wrack removal., (Bio. Op. at

51~.

"It is

believed habitat loss and degradation via artificial coastal stabilization are limiting growth and
expansion of the recovery unit population of Atlantic Coast piping plovers, especially in the New
York-New Jersey and Southern recovery units[,] [as] [t]he rates of habitat loss are increasing
coincident with more stabilization activities." (Bio. Op. at 52). "[C]ontinuing artificial shoreline
stabilization perpetuates many low quality habitats

* * * and [w]idespread artificial habitat

stabilization also exacerbates conflicts with human beach recreation by constraining nests and
chicks to narrow ocean-front habitats." (!d, at 51, 73 ). "This, in tum, increases the costs and
effort required to manage threats to plovers from human and pet disturbance to the point where
sustainability ofth[o]se efforts may be compromised." (!d, at 73).
"Efforts to create and enhance piping plover nesting and foraging habitats * * * have been
incorporated into a number of shoreline stabilization projects * * * and implemented by other
recovery cooperators* • *[,][but], with the exceptions of the Lower Cape May Meadows and
Stone Harbor restoration projects in New Jersey •

* •, most efforts to date have been small-scale

• • * [and] monitoring and evaluation of restoration project effects on piping plovers and habitat
indicators (e.g., habitat availability-use ratios, predator track indices) have been nonexistent or
extremely limited* •

*."

(Bio. Op. at 53).

"While it is expected that carrying capacity will fluctuate locally, and perhaps even within
a state over time, it is anticipated that long-term carrying capacity of the Atlantic Coast[] piping
13

plover habitat • • • will be maintained if natural coastal habitat formation processes are not
interrupted." (Bio. Op. at 50-51, 71). "The 1996 revised [R]ecovery [P]lan states that
discouraging new structures or other developments, discouraging interference with natural inlet
processes, and discouraging beach stabilization projects are 'priority I' actions (those that must
be taken to prevent extinction or to prevent the species from declining irreversibly in the
foreseeable future)." (hh at 51, 83, 115-16). "Studies and reports completed since the recovery
plan • •

* reinforce the continued importance of protecting preferred piping plover breeding

habitats and the natural coastal processes that form and maintain them." (Id.) "Scientific
research conducted on Long Island explicitly recommended avoiding beach management
practices (e.g., jetty construction, breach filling, dune building, beach nourishment) that typically
inhibit natural renewal of ephemeral pools, bay tidal flats, and open vegetation * * • and
allowing natural storm processes that create habitat to act unimpeded •

b.

* *."

(hh)

Environmental Baseline
i.

Plover Population on Fire Island

"The piping plover population in the action area (Fire Island) has supported as many as
54 pairs of piping plovers (in 2008)." (Bio. Op. at 110). "The most consistent and major
breeding sites over the last 15 years are Democrat Point, Fire Island Wilderness, and [the Park]."
(I d. at 113 ). Prior to Hurricane Sandy, Democrat Point was the only site that provided the
preferred "bay to ocean overwash" habitat for piping plovers. Chh) Although bay to ocean
overwash habitats were formed at the other two (2) sites by Hurricane Sandy, that habitat "was

14

only available to piping plovers at Democrat Point and Old Inlet due to partitioning of beach
habitat undertaken by Suffolk County to delineate recreational ORV use areas and plover
breeding habitats." (I d.) Prior to the formation of a partial overwash area at Lighthouse Beach,
"all plover breeding habitat in [that] area[] was limited to the ocean beach south of an established
dune line." (!QJ
Between 2009 and 2013, the total number of breeding pairs of piping plover declined by

fifty percent (50%) and "productivity [chicks fledged per pair] for piping plovers on Fire Island
and the surrounding Long Island area has been declining for the past 14 years* * *." (Bio. Op.
at 113-14). "The 1996 Recovery Plan calls for a productivity level of 1.5 to create an increasing
population and achieve recovery." @,at 114). "2013 productivity levels for Fire Island were
close to 0.7, well below replacement." (Id.)
"Although the Fire Island piping plover population declined to 27 pairs in 2013,
Hurricane Sandy created approximately 162 hectares of new overwash habitat on Fire Island
including at least 84 hectares of new overwash habitat located within the [P]roject area with an
estimated capacity of approximately 60 pairs of piping plovers * * * assum[ing] there is full bay
to ocean connectivity of the newly created habitat across each of the three overwashes." @,)
However, the FWS determined that that "assumption is uncertain given beach management
activities in 2013." (Id.) ·
Furthermore, the FWS determined that "susceptibility of the [P]roject area to additional
overwash during future storms * * * creates the likelihood of more habitat formation in the action
area[,]" (id.); that "habitat availability will be the primary determinant of whether the breeding
population is actually able to increase[,]" (id.); and that "[i]n light of the widespread

15

development and continuing stabilization elsewhere in the recovery unit, [Fire Island] plays a
pivotal role via provision of existing habitat and the potential for future habitat formation that are
key to survival and recovery of the piping plover in the New York-New Jersey recovery unit."
(I d. at 110-11 ).

ii.

Factors Affecting Plovers on Fire Island
A.

Adverse Effects

The FWS determined that "[h]abitat limitation, Joss, fragmentation, beach stabilization,
avian and mammalian predators, recreation, and ORV use* * * are all factors negatively
affecting the species [sic] environment, distribution, reproduction and abundance on Fire
Island[,]" (Bio. Op. at 107-08, 115), and that "[t]he vast majority of the 30 miles of beaches on
Fire Island have been heavily impacted by habitat loss due to development, as well as, beach
stabilization and recreational activities for decades leading to the precarious conservation status
of the species within the action area."4 (!4, at 108-09). Specifically, there has been a "large
degree of artificial stabilization that has occurred throughout the majority of piping plover habitat
in the action area" since 193 8, (I d. at 108, 116-17), "that has affected piping plover habitat" and
"limited habitat area that is available for piping plovers on Fire Island, by inhibiting the

4

"Action area" is defined in the Biological Opinion as "all areas to be affected, directly,
or indirectly, by the federal action, and not merely the immediate areas involved in the action."
(Bio. Op. at I 09). "The 'action area' encompasses Fire Island, including ocean beaches,
intertidal areas, interdunal areas, Dbay side habitats * * * dredged material placement sites and
adjacent areas where dredged material deposition is not proposed * * * because of the potential
for indirect effects (those effects that are caused by or will result from the proposed action and
are later in time, but are still reasonably certain to occur) from littoral drift of sediments from the
renourished reaches and thus, changes to the downdrift beaches in unnourished reaches." (!4,)
16

development of storm-created habitats that are important to the recovery of this species." (!4, at
116, 117-18). In addition, the FWS determined that "[v]egative reinforcement of dunes and their
installation are common practices on Fire Island* * * [that] can prevent the formation of optimal
nesting and foraging habitats for plovers***[,]" fub at 108, 117); "beach scraping which
involves the use of heavy machinery to remove approximately the top 6-inch layer of sand over a
wide section of the dry beach** • reduc[es] foraging habitat,"

fub at 108, 117); and "[t]he use

of sand fences and Christmas trees to capture drifting sand and/or to build dunes may produce
steepened dune faces, or by themselves, create[] physical barriers to plover movement * * * [,]"

fub at 117), thereby "affect[ing] the abundance, distribution and reproduction of piping plovers
on Fire Island." (!4, at I 08, 118).
Moreover, the FWS determined that "[t]he stabilized beach system on Fire Island has
limited piping plover to narrower beaches making them less likely to escape detection by red fox
• • *[,]" (Bio. Op. at 118); that "[p]lovers that nest on human-made dunes may also be more
susceptible to detection by red fox[,]" (id. at I 08, 118); and that "the litter and food scraps left
behind by recreational beach activities have the effect of attracting predators such as red fox and
gull species to plover habitat." (!4, at 108, 118, 121). 5 The Biological Opinion indicates that the
FWS "is not aware of any comprehensive predator control or trapping programs being
implemented by the NYSOPRHP [New York State Office of Parks, Recreation and Historic
Preservation], Suffolk County, or FilS [Fire Island National Seashore]." (!4, at 118).
The FWS further determined that "[t]here are numerous potential sources of disturbance

5

Other predators on Fire Island include black-backed gulls, herring gulls, American
crow, dogs, feral cats, "other avian predators" and ghost crabs. (Bio. Op. at I 08, 118).
17

to plovers that may utilize the FilS including, but not limited to, ORVs [off-road vehicles],
aircraft, recreational fishing, kite-flying, bird-watching, surfing, dog-walking, fireworks events,
and vehicle patrols undertaken by law enforcement agencies that operate within the FilS[,]" (Bio.
Op. at I 08, 118); that "breeding habitat on Democrat Point is limited due to establishment of
recreational ORV areas[,]" (id. at I 18); that "ORV tire tracks can cause deep ruts which are
impassable to chicks* * *,causing them to become entrapped[,]" (id.); and that ORV "use can
reduce the quality of available foraging habitat[,] * * * compact and reduce any existing foraging
base * * * [and] * * * result in mortality of adults, nests, and chicks[,]" (id. at I I 9).

B.

Beneficial Effects

The Biological Opinion indicates that the NPS' s decision "to postpone moving forward
with a consultation and proposal to fill in [the breach at Old Inlet] caused by Hurricane Sandy* *
* [in order] to maintain newly created habitat as beneficial habitat for piping plovers for a period
longer than if the breach were closed immediately through human action[] * * * is believed to
provide a net benefit to the environmental baseline for piping plovers over the life of th[e]
[P]roject." (Bio. Op. at I I 1). Other "[b]eneficial actions include monitoring and protection
programs implemented by the NPS FilS, NYSOPRHP, and [SCDPRC]," (Bio. Op. at I 15),
including the delineation and protection of"[ s]uitable habitats * * • with symbolic fencing and
monitor[ing] by staff{,]" (id.), and the implementation of"[v]ehicle closures*** around
breeding areas when flightless chicks are present[,]'' (id.).

18

c.

Effects of the Project

The FWS determined that the Project "would perpetuate stabilization of beach habitats
with likely negative consequences to the piping plover[,]" (Bio. Op. at 125), and "would affect
all existing overwash areas and
project area[,]

* * * impair the formation of new overwash habitats within the

* * * [which] are the preferred habitats of the piping plover • * *." (I d. at 12).

"Consequently, the [] [P]roject would result in short- and long-term changes to plover nesting,
foraging, and chick rearing habitats, ultimately affecting the species' numbers, distribution, and
reproduction in the wild."

iliD

In addition, the FWS determined that the Project (I) "would

directly and indirectly impact occupied piping plover breeding habitat across all of Fire Island[,]"

04 at 122); (2) "would indirectly affect habitats not within the project area, but adjacent to dune
and beach construction activities due to longshore littoral drift," 04 at 12); and (3) "would result
in both immediate and long term effects to habitat and the species [sic] distribution, numbers and
reproduction in the wild, with ramifications to the Fire Island breeding unit, the south shore of
Long Island, and the New York-New Jersey recovery unit as a whole[,]" (ilL at 122). According
to the FWS, the impacts of the Project may include "the loss and fragmentation of preferred bay
to ocean overwash habitats, loss and degradation of partial overwash habitats, reduction in
foraging habitats on bayside beaches, destruction of plover prey resources for at least one
breeding season on oceanside beaches, increased predators, and increases in recreational
disturbance (pedestrians and ORVS [sic])[,]" (id. at 125). The FWS further determined that:
"[t]he destruction and modification of both foraging, nesting, and
brood-rearing habitats resulting from the [Project] is likely to result
in (1) reduction and eventual displacement of plovers from one or
more existing Fire Island breeding sites; (2) higher mortality rates,
delayed breeding, reduced nesting success and lower survivorship
19

of fledglings as a result of displacement; (3) the loss of potential
'source' breeding populations that may maintain, in part, through
emigration, other plover populations; (4) the fragmentation of, and
decline in, plover populations region-wide[;] and (5) increased
habitat Joss, fragmentation, and functional homogenization on a
local and regional scale."
(!4, at 122-23, 125).

The FWS determined that other adverse effects of the Project "include interruption and
prevention of formation and maintenance of optimal habitats * * *, longer term reduction in prey
resources* * *,increased recreational activities, the creation of habitat conditions that may
facilitate increase [sic] mortality due to predators, and allowance for ORV access through
breeding areas***." (!4, at 123). In addition, the FWS found that proposed "[s]and fencing
can affect dune topography and promote the formation of steep, uniform dunes * * * [and] may
also affect the movement ofmesopredators (such as raccoons, red fox and feral cats), provide
denning habitat for fox, and serve as perch sites for avian predators." (Id. at 123, 138-39).
Nonetheless, the FWS concluded that "[t]he degree to which increases in predator habitat result
in mortality or disturbances to plovers and their chicks depends on the degree to which the
protection measures are implemented." (!4, at 139).
The FWS further determined that "[r]ecreational activities that may potentially, adversely
affect piping plovers include unleashed pets, fireworks, kite-flying, and increase in garbage and
refuse***[,]" (id. at 123, 137), insofar as "[u]nleased pets, such as dogs and cats, can prey on
piping plovers * • • [and] [k]ite-flying may disturb piping plovers as it is believed that the piping
plovers perceive kites as avian predators[,]" (id.); and that "[i]ndirect effects of disturbance to
piping plovers also occur by limiting breeding habitat to oceanside habitats that are

20

simultaneously made more attractive for recreational activities by beach stabilization projects."
(I d. at 138). Nonetheless, the FWS determined that"[o ]vera!!, the degree to which increases in

recreational activity result in mortality or disturbances to plovers and their chicks depends on the
degree to which the protection measures are implemented." @)
The FWS determined that "[a]ll current sub-populations of breeding plovers and occupied
habitat on Fire Island, totaling about 26 pairs, would be impacted by the proposed [P]roject[,]"
(Bio. Op. at 125), and indicated that "[b]ecause of the small number of breeding sites on Fire
Island, the fragmented distribution, and vulnerability of small populations to stochastic processes
(oil spills, storms, disease, etc.), [it] is concerned about the degradation or loss of any breeding
site, as well as [the Project's] effect on the Long Island New York-New Jersey recovery unit."
(IQ) According to the FWS, "[s]imulations of future plover populations on Fire Island and the

south shore of Long Island • • • suggest a higher probability of decreasing populations and
extinctions with the [] [P]roject than without it." (I d. at 124).

i.

Effects Due to Construction Activities

The FWS determined that although the Army Corps proposed that construction activities
will not occur in the Park or at Lighthouse Beach during the piping plover season, i.e., from April

I" to September I", "[p ]otential direct effects of [its] construction and dredging activities upon
piping plovers during initial construction include* • *[:]
I) If construction starts prior to the arrival of piping plovers,
dredging and construction operations adjacent to plover nesting
habitat will prevent plovers from utilizing the habitat which is
currently under construction upon their arrival, forcing them to
seek appropriate habitat elsewhere.
21

2) Dredging and construction operations that encroach to within
1000 m of established plover courtship, nesting and brood rearing
areas that were undisturbed during the beginning of the breeding
season have the potential to disturb both adults and chicks that use
this habitat. Impacts may include territory abandonment,
disruption of pair bonds, nest abandonment, elevated predation of
eggs and chicks due to adults being less attentive, and increased
chick mortality due to reduced foraging opportunities. These
effects will adversely affect piping plover productivity.
3) Dredging and construction operations, especially the movement
of equipment and vehicles on the beach (e.g. dredge piping, beach
grading), can greatly endanger nests and chicks. Nourishment
activities occurring within 1000 m [of] chick rearing areas will
result in a high probability that chicks and eggs in the vicinity of
machinery will be accidentally crushed. • • * In addition, if dredge
pipeline is placed in a manner that prevents plover chicks from
gaining access to foraging habitats, * * * foraging opportunities
during critical periods will be reduced and chick mortality may
increase."

(Id. at 126). The FWS further determined that "[t]o the extent that the [Army] Corps adheres to
the 1,000 m buffer in the FilS Communities, [it] believes that the potential for impacts will be
minimized, but will not be eliminated." (lQ. at 127).

n.

Fragmentation and Degradation of Preferred Habitats

The FWS determined that preferred plover habitats at the Park and Lighthouse Beach
"would be degraded and fragmented by the

0 [P]roject."

(Bio. Op. at 127). Specifically, the

FWS found that about one hundred twenty-one (121) acres at the Park "would be fragmented by
the dune and vegetation, along with the re-establishment of Burma Road* * *[,]"and that more
than sixty (60.3) acres of preferred habitat at Lighthouse Beach would be fragmented and
impacted by "the artificially constructed berm." (IQ.) In addition, "[t]he dune and beach fill

22

would raise both the berm and dune elevation of the barrier island further decreasing habitat
heterogeneity."

iliD

The FWS indicated its "concern[) that the [) [P]roject would disrupt complex natural
processes that create bayside and bay to ocean intertidal foraging habitats, and that th[o]se
changes would likely negatively affect chick survival and population growth." (Bio. Op. at 12829). According to the FWS, although the Army Corps has proposed to "attempt to maintain
nesting habitat on the bayside ofPattersquash and Narrow Bay areas through vegetation control
north of Burma Road and the artificial dune~}" (ill. at 129), it has "no data that documents the
use of isolated bay habitat by piping plovers, so [it] currently ha[s] no assurances that [that] area
will support nesting pairs of piping plovers* * * [and] it is uncertain that [that] area[] would
result in observed increases in plover abundance or productivity."

<IlL)

Accordingly, "[f]urther

analysis or examples of bayside habitat are needed to determine the effectiveness ofth[o]se
habitats in supporting piping plovers.,

iii.

<tiD

Habitat Quantity

The FWS estimated that without the Pr .
OJect, the preferred habitats created by the storm
to 60
.
.
"could support c1
ose
nestmg pmrs of plov
.fl ft .
.
ers I e m then post-storm condition[]" (B.
Op at 129) "
['
'
10.
.
, assum mg] full connectivity of bay to ocean habitat," b t. di
.
u m cated that that
·
assumptw "·
n IS uncertam given the existing Bunna Road, hi h .
.
w c IS currently degraded from preHumcane Sandy
d' ·
con ltiOns but in use." ilil at 130).
"' .
The FWS, thus, determined that the
Without project' estimate that 60 .
.
paus worth of nesting habitat is available is not the b t
mterp tat'
es
re IOn of reality given that ocean to bay habitat . lr d
IS a ea y truncated in some fashion by
23

previous, recent anthropogenic habitat modification, e.g., sand fencing, vehicle use * * * [,]" (.llh
at I47), and that, "based upon the best available science and experience," (id. at I48), a more
reasonable "without project' estimate [is] 5 I .25 for the entire project area[,]" (id. at I 47).
The FWS estimated that the potential nest area "with Project" capacity would "support
plover nesting ranges from 17 to nearly 40 pairs," (Bio. Op. at I 30), and indicated that the
reduction in the potential nest area capacity "would result mostly from the fragmentation and
degradation of preferred habitats via construction of the artificial dune * * * [,]" (id. at 131 ). The
FWS ultimately determinated that a reasonable estimate for potential nest area "with project"
capacity "based on the best available science and experience" is 40.32 pairs.

ilib at 148).

The FWS determined that although "[b ]each nourishment may provide nesting substrate
for the species, * * * recent surveys undertaken at beach nourishment projects on Fire Island
showed that th[o]se habitats supported low numbers of breeding pairs with limited to no
reproductive output, and experienced high levels of recreational disturbance and degradation due
to off-road vehicle use***." (Bio. Op. at 132). "Further, the density of piping plovers that are
confined to ocean-side habitats is much lower, when preferred bayside foraging habitats are
absent." (llb) The FWS determined that "[c ]onsequently, artificially created beaches without
access to high quality bayside foraging areas, may lead to 'population sinks' by recruiting
individuals to the area each season, only to yield reproduction levels less than one chick per pair
which is below the level necessary to achieve a stationary population level."

fuh)

The FWS

further determined that "[i]n the event that plovers colonize these beaches they will experience
loss of habitat area annually, as the beach erodes back to a stabilized dune[,]" (Bio. Op. at 132),
and that "[b ]ecause piping plovers demonstrate breeding site fidelity to their breeding sites, they
24

are lik 1
e y to persist in atte
.
mptmg to br
·
plover
eed In these
.
areas, even if the ha .
productivity decl·
Illes m fut
se bitat d
[P .
ure Years." n-< ,
s egrade and
]ro)ect may conf
~ According to th
mue to expo . .
e FWs "[i]
.
of the [P] .
se PIPing plovers to indi
'
n this way, the []
TOJect." (14) The FWS also determJ·ned th
to th

rect adverse effects even beyond the life
at "fp]" ·
Ipmg plovers, Which may be

·
e Site, may also have reduced
productivity due t

and predation " riAd)
· ~

attracted
1
o ow prey resources in
' creased disturbance,

In addition the FWS
'
determined that "[h] b"
a Itat loss and ad
result from physical chan
. .
verse alterations can also
ges to artJficially constructed dun
d
"N
es an beaches." (Bio. Op. at 133)
atural forces, which work to redistribute the sand that is I d
.
.
P ace on the beaches during
nounshment projects, may create a sharp discontinuity of slopes between the upper beach and th
.
e
Intertidal zone, inhibiting the mo
. .
1 of p!pmg plovers, especially chicks, into intertidal
vemen
foraging areas " (lQJ I add· ·
.
. n
IliOn, beach scraping "may reduce the size of the intertidal foraging
area, inhibit adult and chick movement into the intertidal zone, and possibly delay the formation
of an upper beach wrack line, an important foraging habitat for piping plovers and their chicks."

(!4,)

iv.

Impacts to Foraging Habitats and Prey Resources

The FWS determined that "[c]onstruction between mid-October and January • • • may
result in reduced productivity, or possibly abandonment of piping plover nesting areas because of
reduced prey resource availability

* • *[,]" (Bio. Op. at 137), and that the Project "would be

expected to impact prey resources for breeding adults and their chicks at least one breeding
season." (Id.) Nonetheless, the FWS determined that "[e]xcept where curtailed by mechanical
25

beach raking or deJay ed by scarpmg [sic] ' partial to complete ph · al
.
material that comprises the wrack .
ystc recovery of the organic
!me can be expected within on
nourishment dep d.
e year following sand
'
en mg on the timing of the construction activity." iliD

d.

Cumulative Effects

.
a
nvate projects to stabilize beaches in
The
·td ORV FWS determined th t "[p] ·
' crease recreatiOn, or
expecte to degrade or destroy beach habitats such that plover population
d
ounty IS planmng to restore further
'
u
.
.
expansion is curtailed[,]" (Bio. Op. at 139)· that "S f£0 lk C

but

roads are

Burma Road in (the ParkJwhich would result in adverse effects *

* * [and,] along with

unregulated recreational activities such as boat landing and unrestricted pedestrian access(,] will
disturb adults and prevent chick[s1from accessing bay side foraging habitats," (ill,. at 140); that
"(l)arge scale habitat fragmentation is expected to occur at [the Park) as the (SCDPRC] further
establish (sic] surma Road as an ORV route within overwash habitat and piping plover breeding

- [ .[ [whi oh] will """'"" .,d "''""'' """"' 2 omill<'] or

''"~

habi"'C (hl); '"d ""' "[

P"' of [<bat] ,.;tion [fuO SCDPRC] will ..,.U ,orul """' md pi'"' >=h
stabilizing the beaches, and adverselY affecting plovers and their habitats."

Tbo pWS

'" bo

~"'

-~ """""""' IDat ~fuough

"' '"""' 1w.l wo<Ond

bulk"""-""""'.. ""''

-~~

ll'~"· "'""'

•l•

~)

iliO "N'{SDEC would bo

~P'ctol'" -nuo

fm """' orul OOy ,\do ""'"''""ion """'"'"· ""' '"

··=· _...[,]

,.,.mutinn mrough-'-"" · - - .,d th fu
.
.

, ,. ",,._,.. ,,,.,uom <n whiob [""'l oction '"

~ '' "'"'""'' urtn

'

<=

(Bio. Op. at 140).
AdditinruillY, "" pWS """""'""" ""' "[t]hO NYSO PRllP will tikolY o>ntinUO <o
26

***"
·

'
stabilize their beaches using material from dredging projects or upland sources[,]" (Bio. Op. at
140), and that those activities falling outside of the Army Corps's regulatory jurisdiction, e.g.,
breach scraping, dune construction, the installation of sand fences and the planting of beach
grass, would continue. (Mh) Furthermore, "[l]ocal entities would be expected to continue to
install sand fences and plant beach grass as part of their effort at beach stabilization," (id.);
"[SCDPRC] has installed miles of sand fences at [the Park], in the process degrading,
fragmenting, and ultimately destroying preferred piping plover habitat, * * * [and] negatively
affecting the species' distribution, abundance, and reproduction[,]" (ill); and "[b]oth
NYSOPRHP and [SCDPRC] [will] continue to issue thousands ofORV permits for use on their
beaches** *(which] (will] continue to degrade and fragment plover habitat on large stretches of
beaches, and affect the species' distribution, abundance and reproduction[,]" (id.).

e.

Conservation Measures

.
"[f]
eriod of ten years after project
or a p
The Biological Opinion indtcates that
.
ber of conservation measures to
. th (ArmY1 Corps has proposed to tmplement a num
compIetwn, e
· · plover * * • ,
.
f th d e and beach construction to the ptpmg
avoid or minimize adverse effects o e un

(Bio. Op. at 16).

.
easures include
.
each the proposed conservatiOn m
With respect to Ltghthouse B
,
.
" ' tr i ht' dune alignment,"
. template" (a) to provtde for a s a g
odifying "the dune and beach destgn
. ***
+I ft to
m
osed berm elevatiOn
from "[t]he tolerances for the prop
(iQ, at 17)6; (b) to reduce
.
S ti n 106 of the National Historic
.
ultatwn under ec 0
6 This modification is subject to cons
66 ("NHP A").
Preservation Act of 19

27

j

±0.5 ft, meaning that

. .
mmlmum and maxi

ft NGVD[,]" (id.); and (c) to build "d
match alignment,, (id.).

mum fill heights could not
.
go below +9ft or above+ I 0
unes With slopes of 1V·SH 'th
.
WI
the seaward dune toe to

With respect to the Park, the Arm

"'

.

Y Corp md1cated that it is n

proposed dune and b

h

fl .
ot easlble to eliminate the

eac or vary their heights * • * with
.
out compromising coastal sto
.
reductiOn or severely curt T
rm nsk
ru mg management activities, operations and
.
, recreatiOnal use within
th[ J
e [P]ark." (Bio. Op. at 18).
Additional conservation measures r
d
p opose by the Army Corps include: (a) modifYing
f
"the
extent o length of each fill taper on federal lands on Fire Island to 300ft.[]" (B' 0
,
10. p. at
16-17); (b) removing vegetation in the area known as Great Gun Beach

d
.
h
.
an managmg t e hab1tat

"from an approximate IY 82 [acre] area to provide habitat for endangered species* * *[,]" (id. at
·
19), "as an experimental approach to mimic early successional habitat[,]" (id. at 20); (c)
"monitor[ing] and adaptively manag[ing] vegetation at 30-40% cover on the bayside * • • via
mechanical, manual, or chemical means dependent on conditions and regulations of [SCDPRC]
and the NYSDEC," (Mh at 19); (d) planting beach grass on the dunes at a density of eighteen (18)
inches on center within the FIIS communities; (e) coordinating with the FWS "in the preparation
of a predator plan (mammalian) for pre-season and in-season predator monitoring program for all
project areas,

* • • includ[ing] measures needed to protect piping plovers, nests, and chicks," Wh

at 20), to be implemented for ten (1 0) years; (f) clearing vegetation and modifYing topography of
an additiona16 ha [hectares] (15.8 ac [acres]) of bay side habitat south ofNew Made Island, as an
experimental approach to mimic nesting and foraging plover habitat[,]" (id.); (g) contacting the
FWS "upon initiation and completion of construction activities[,]
28

* • • conduct[ing] pre-

construction meetings with all project staff to provide all information on resource protection and
terms of the [P]roject permit[,] • • *[and] [p]rovid[ing] all project personnel, construction staff,
etc., with information regarding the conditions of the project (including all conservation
measures)[,]" (ill); (h) refraining from all construction activities "during the piping plover
breeding season April I to September I, except [i] within the boundaries of the FilS
communities[,]" (ii) for "low impact construction activities, such as beach surveying, • • •
utilizing a 300-ft protective buffer zone[,]" and (iii) that "[i]f piping plovers are not observed in a
proposed project area, or are not within 1000 m of the project area by July 15, then [P]roject
activities may commence, following consultation with the agencies[,]"

<!It at 20-2 I); (j)

"conduct[ing] surveys [by a qualified biologist required to attend a piping plover management
course organized by the (FWS), NYSDEC, and The Nature Conservancy (TNC)] during the
spring/summer, and prior to construction activities, to identify nesting plovers in the project area
and to document all known locations of piping plover[,]" (ill); (k) protecting "breeding piping
plovers on all suitable habitats in the action area from human disturbance • • • and predation • •
• via symbolic fencing and warning signs" and the prohibition of"[a]ll pedestrian and off-road
vehicle (ORV) access into, or through, the breeding* • • areas[,]" (id. at 21-22); and (I)
conducting annual productivity and population surveys and daily monitoring, except during poor
weather, (id. at 22-23).
The FWS determined that the Project "would, through each estimate, reduce the overall
nesting area for future piping plovers[,] • • • [which they] need • • • to recover, • • • [but] that
plover productivity on Fire Island, and the surrounding Long Island areas, is failing and is not on
a path to recovering the species • • *, probably due to a mix of management-related elements,

29

such as predator and vegetation management." (Bio. Op. at !41 ). The FWS recognized the
"many competing uses for Fire Island, e.g., recreation, storm protection, plover habitat" and the
"need to operate in the current context ofth[o]se competing uses." (Id.) Accordingly, the FWS
determined that "[a]chieving recovery for the plover is dependent on cooperation from State,
County and Federal partners, and other local landowners, and possibly on the creation of new
habitat alternatives, such as engineered habitat," (!>h), since "[i]t may be as real and detrimental
an outcome for the plover if the [FWS] were to not work cooperatively with State, County and
Federal partners, and other local landowners, thereby not fully engaging their ability to promote
recovery, than if significant plover habitat quantity and quality was degraded." (!Q)
The FWS further determined that "[r]estored and managed habitat for plovers may be
essential for the long-term recovery of plovers in the NY and NJ recovery unit, and the[]
engineered and created areas and subsequent monitoring [proposed as conservation measures in
the Project] will provide essential information to help [it]leam how best to restore [plover]
habitats." (Bio. Op. at 142). Accordingly, in order to "improve the quality and productivity of
the available habitat," the various agencies, including the FWS and the Army Corps, agreed: (I)
to implement (a) a coordinated inlet-to-inlet monitoring program, led by the NPS, "to add
consistency to the monitoring and reporting of plover reproductive activities," (Bio. Op. at 142),
(b) a coordinated ten (10)-year inlet-to-inlet mammalian predator management program, funded
through the Army Corps, (llh), and (c) a coordinated stewardship/visitor management program to
attempt "to eliminate or reduce human disturbance to plovers during all phases of breeding," (llh
at 143); (2) to continue to follow federal ORV guidelines, (ill); (3) to manage the three (3)
overwash areas, the Great Gun restoration site and the dredge restoration site "to inhibit
30

vegetation growth from impairi
the Army Co

ng

th

r

e qua Ity ofth[o]se available habitats[,]" (&at 144), with

b "ld"
h
UI mg t ose areas to specifications to which th FWS
e
agrees and Suffolk
County m · ta" ·
h
·
am mmg t e vegetatiOn per the specifications ri" '· (4) to plant th d
.h
' ~.
e unes Wit noninvasive species, fuh); ( 5) to fence and vegetate Burma Road and
. furth
.
,
move It
er south m certain
rp

areas "to allow for more foraging and nesting habitat on the bayside,"(&); and (6) to monitor
and evaluate the effectiveness of the aforementioned measures throughout the Project and
provide revised recommendatio

·f
"
.
ns, I necessary, relatmg to the restoration of breeding habitat

and the optimization of reproductive success[,]" (illj.

f.

Jeopardy Analysis

The Biological Opinion indicates that "[t]he central question associated with [the FWS's]
jeopardy analysis is whether the effects of the [Army] Corps [sic] [Project], together with
cumulative effects, are likely to preclude or impair the capacity of the New York-New Jersey
recovery unit from providing both the survival and recovery function assigned to it." (Bio. Op. at
145). "In other words, are the effects of the [Army] Corps [sic] [Project], together with
cumulative effects, likely to preclude or impair the capability ofth[e] [New York-New Jersey]
recovery unit to support a minimum breeding population of 575 pairs of piping plovers that
produce, on average, 1.5 fledged young per nesting pair?" (!!h) The FWS determined that the
Project ''will have an effect on the amount of nesting habitat available, even with the restoration
acreage offered in the amended BA," (!4,. at 148), but that its estimates regarding nesting density
with and without the Project "do not quantitatively include the multiple expected benefits from
the agreed to management actions[,]" (id.), which "will serve to improve the recovery outlook for
31

the plovers." Mat 149). Although set forth in the "Incidental Take Statement" section of the
Biological Opinion, the FWS determined that the "level of anticipated take is not likely to result
in jeopardy to the species or destruction or adverse modification of critical habitat." (Bio. Op. at
!50).

g.

The Incidental Take Statement

The FWS determined that "the [P]roject as described in the BA (amended, May[] 21,
2014) will take up to 11 pairs of piping plover, through the modification of habitat[,]***
equat[ing] to roughly I pair each year of the project[,]"7 (Bio. Op. at !50), and that "[g]iven the
extensive habitat management actions outlined [in the Biological Opinion] fewer pairs may be
taken, yet it is difficult to quantify precisely the value of th[o]se measures."

ili!J

The FWS further determined that the following "reasonable and prudent measures are
necessary and appropriate to minimize impacts of incidental take of piping plovers," (id.): (!)the
development and implementation (a) "of a coordinated mammalian predator management
strategy across all major landowners, inlet to inlet, on Fire Island to reduce the threat predators
pose to piping plovers for the I 0 year expected life of the project[,]" (ill,), and (b) "of a
coordinated piping plover monitoring program, inlet to inlet, on Fire Island, to assess the current
and future status of plovers on Fire Island[,]" (ill,); (2) the maintenance (a) "of buffers around
construction sites (I OOOm) and breeding piping plovers (before July 15) and other human
activities, including ORV use, (generally 200m) and breeding piping plovers[,]" (ill,), and (b) "of

7

This estimate was derived by subtracting the FWS's "with project" estimate of plover
nesting density from its "without project" estimate. (Bio. Op. at 150).

32

nesting and foraging habitat through vegetation management on the three overwash areas and the
two restored areas in accordance with the guidelines detailed in the amended BA[,]" (!QJ; and (3)
the creation (a) "of foraging habitat in the 33.7 [hectares] of Great Gunn [sic] through the design
and implementation of ephemeral pools[,]" (id.), (b) "of plover foraging and nesting habitat on 6
[hectares] on the dredge disposal site south of New Made Island[,]" fuh at 151 ), and (c) "by the
[Army] Corps of an interagency team (that includes the [FWS]) that will develop and implement
a coordinated effectiveness monitoring program whose purpose is to document the performance
of the restored and created plover areas[,]" @).
The Incidental Take Statement sets forth the "nondiscretionary" terms and conditions
implementing the reasonable and prudent measures with which the Army Corps must comply
"[i]n order to be exempt from the prohibitions of Section 9 of the [ESA][,]" (Bio. Op. at 151-52),
and indicates that "[t]he reasonable and prudent measures, with their implementing terms and
conditions, are designed to minimize the impact of incidental take that might otherwise result
from the proposed action[,]" (iJl at 152). The Incidental Take Statement further provides that
"[i]f, during the course of the [Project], th[e] level of incidental take [of no more than 11 pair of
piping plover] is exceeded, such incidental take represents new information requiring reinitiation
of consultation and review of the reasonable and prudent measures provided[,] [and] [the Army
Corps] must immediately provide an explanation of the causes of the taking and review with the
[FWS] the need for possible modification of the reasonable and prudent measures." (I d. at 15253). Moreover, "[i]n instances where the amount or extent of incidental take is exceeded, any
operations causing such take must cease pending reinitiation." (M, at 153).

33

3.

The Final EA

The EA indicates that the stated purpose of the Project is "to reinforce the existing dune
and berm system along [Fire Island]," (EA at 10), because "[r]ecent storm events, most notably
Hurricane Sandy in 2012, have reduced sand volumes of beaches and dunes in the project area,
leaving communities on the coastal barrier and along the bay shores north of Fire Island
vulnerable to potential future storm surges." (lll.)

a.

Alternatives Considered

The EA evaluates two (2) alternatives: (I) the "No Action Alternative" and (2) a "Beach
Fill Alternative," i.e., the Project, (EA at 14), with the latter being "the recommended alternative
and [] the environmentally preferred plan because it reduces storm damages in a manner that
mimics the natural protective features of the barrier island • • • ." (@

1.

The "No Action Alternative"

The EA indicates that although the Army Corps and federal govermnent would take no
action to reduce storm damages in the study area under the "No Action Alternative," local
governments and non-governmental groups, e.g., homeowner associations, "could take actions to
protect themselves by undertaking their own construction projects to build up the beach and dune
profiles." (EA at 14, 61 ). Some of the elements that the Army Corps found "likely to occur
within the No Action Alternative" include, inter a/ia,"[p]eriodic beach fills and beach scraping •
• • by local governments and home owner associations to maintain some threshold beach
condition[,]" (id.), and closure of the breaches "either through natural closure or human

34

intervention, fuh at 15).

u.

The Project

The Project is comprised of three (3) design templates: (1) the "berm only" template,
proposed for areas on Fire Island "where eroded berm conditions have been observed, but where
existing dune elevation and width are sufficient to reduce the risk of overwashing and
breaching," (EA at 15), i.e., Robert Moses State Park, western Smith Point County Park and the
TWA Memorial beach; (2) the "small" template, including berms and vegetated dunes at
specified elevations, widths and foreshore slopes, "intended to reduce the risk of breaching" and
"proposed for areas with limited oceanfront structures, including [the Park]," (.iQf; and (3) the
"medium" template, including a berm and vegetated dune with specified widths, elevations, dune
slope and foreshore slope, "proposed for areas that have the greatest potential for damages to
oceanfront structures [] includ[ing] the 17 communities on Fire Island[,]" (id. at 15-16).
The EA indicates:
"Based upon consultation with the [FWS] * * *, project features
have been incorporated as habitat offsets for Piping Plover. These
features have been included as non-discretionary measures in the
[P]roject as defined in the Reasonable and Prudent Measures of the
Biological Opinion. These features * * • generally include: [1]
[d]evegetation and topographical alteration and management in the
Vicinity of Great Gunn [sic] Beach and extending eastward to
Moriches Inlet, to provide approximately 33.7 hectares of piping
plover nesting and foraging habitats including ephemeral pools[;]
[2] [t]he creation of plover foraging and nesting habitat on six
hectares of habitat in the vicinity of the dredge material

8

The "small" design template also includes the "Fire Island Lighthouse Tract," or
"modified 'small' design template," providing for an unvegetated dune at a specified length,
elevation, side slope and crest width at Lighthouse Beach. (EA at 15).
35

management site located near New Made Island[;] [3] [t]he
adaptive management of plover habitat through vegetation
management to achieve sparsely vegetated overwash areas in [the
Park] at the Pattersquash Island Overwash, Smith Point Breach
Location, and New Made Island Overwash[;] [and] [4] [t]he
development and implementation of a coordinated plover
monitoring program, coordinated mammalian predator
management plan, coordinated stewardship, and coordinated
effectiveness monitoring to inform the adaptive management of
these habitat offset areas."

(EA at 16). In addition, the EA identifies certain conservation measures and or project design
adjustments undertaken by the Army Corps, including:
"In several areas, tapers have been adjusted per consultations with
[the FWS] and [NPS] in order to address park objectives and
minimize potential adverse impacts to threatened and endangered
species.
The adjustments to the plan include I) modification to the dune
slope in areas to facilitate endangered species usage, 2)
modification of the vegetation plan in these areas, 3) inclusion of a
devegetation plan in these areas, 4) inclusion of a devegetation
plan for an additional location to increase available shorebird
habitat, and 5) modification to the dune alignment in another
location to increase the amount of beach habitat.
There are three locations that have been identified for modification
to the dune slope, modification of the vegetation plan and inclusion
of a devegetation plan. The locations where these modifications
have been included are in undeveloped locations that overwashed
during Hurricane Sandy, where these plans could allow for
shorebird access across the island. Three locations have been
identified in [the Park] (Pattersquash overwash area, Smith Point
breach area, and New Made Island overwash area). The [dune]
slopes [in those areas] have been selected to allow for shorebirds to
cross the dune structure. To ensure the continued access across the
dune, no vegetation planting or snow fencing would be included as
a component of the [P]roject in th[o]se locations. Further, in
th[o]se three locations, the plan includes 10 years of monitoring
and adaptive management to manage the density of vegetation, in a
36

condition optimal for endangered species usage. Within
[Lighthouse Beach], a portion of the area will also include
modification of the dune slope * * * and modification of the
vegetation planting plan * * *. To be consistent with NPS
management policies, this [Lighthouse Beach] area would not be
subject to active management of the vegetation. In addition* * *,
there is a recommendation to devegetate an area within [the Park],
in the proximity of Great Gunn [sic], to improve the habitat for
endangered species usage. This area has been selected as a wide,
stable beach that presently has limited use by off road vehicles, and
would have minimal management conflicts within the [P]ark. This
area also includes I 0 years of monitoring and adaptive
management to manage the density of vegetation, and maintain a
condition optimal for endangered species usage."
(EA at 21-22).

b.

Environmental Impacts

The Army Corps evaluated the environmental impacts, i.e., the effects upon the human
environment; socioeconomics; transportation; recreation; cultural resources; physical
environment, including water quality, geology/geomorphology and borrow areas; and natural
resources, under both the No Action Alternative and the Project. (EA at 61-100).

1.

No Action Alternative

Generally, the Army Corps concluded:
"With the No Action Alternative, a large storm will likely result in
major damage to structures and possibly human safety, since the
entire [Project area] lies within the I 00 year flood plain.
Therefore, even no action has negative environmental
consequences, since during low frequency storm events, no action
will probably mean a loss of property and potentially even human
life. Since the No Action alternative does not meet the needs of
the communities, it is not the socially preferred alternative."

37

(EA at 61 ). The Army Corps also found that under the No Action Alternative "storms analogous
to historic trends, consisting of frequent minor to moderate events, are likely to result in
moderate adverse impacts to" land use and communities, social and economic interests,
transportation, and recreation, and that those impacts "would be expected to be short to long
term, depending on storm frequency and severity." QQ., at 6!-63 ).
In addition, the Army Corps concluded, inter alia, that under the No Action Alternative
"[a] single catastrophic storm event outside of the wilderness area, is likely to result in severe
adverse impacts to transportation, including potential loss of roadways, travel routes, parking
areas, and marinas, including ferry facilities[,] • • • [that] would be expected to be long term[,]"
(EA at 62), and that a "[!Joss of essential transportation, including for emergency services, could
have severe repercussions during an emergency situation and could severely hinder rebuilding
efforts." @J
With respect to the effects upon the physical environment, the Army Corps concluded,
inter alia:
"Under the No Action Alternative, continued erosion unchecked by
sand bypassing or beach nourishment, could result in changes to
the shoreline and geomorphologic characteristics of Fire Island.
The shoreline would be expected to recede at its average prenourishment rate of 1.5 ft./yr. overall.[] This would lead to
progressive dune and shoreline retreat or degradation, which could
lead to increased risk of overwash and breach in one or more of the
community areas. A breach or overwash would have moderate to
major impacts on littoral processes and beach and dune sediments
over a period of five to ten years. Impacts would be moderate if a
breach were closed with emergency measures, or could be major if
it were allowed to remain open. • * *"
(EA at 65-66).

38

With respect to the effects upon natural resources, and specifically, endangered or
threatened species, the Army Corps concluded, inter alia, that the No Action Alternative "will
continue the current level of protection that is afforded for rare and endangered species
occupying the project area." (EA at 68, 73). With respect to migratory wildlife, the Army Corps
concluded that the "No-Action Alternative is expected to have little beneficial to no impact on
[the rare migratory bird species that may utilize the Project area referenced in another section of
the EA, including the piping plover]." Mat 58, 68). 9
In addition, the Army Corps concluded that "[u]nder the No-Action alternative, there
would be continuing shoreline erosion and a strong possibility of a breach or overwash occurring
during a tropical or extra-tropical storm." (EA at 68). According to the Army Corps:
"Ebb and flood tidal deltas, overwash fans, and sand spits are
commonly created by breach and overwash events. After breach
inlet closure, the sediment that has accumulated in the ebb tidal
delta is generally reworked by waves and re-introduced into the
littoral drift, while the sediments deposited into the flood tidal
deltas typically remain in place and serve as the substrate for future
wetlands and eelgrass beds [citation omitted].*** [A] general
increase in species diversity and numbers often follows such
environmental perturbations. Many wildlife species are
particularly attracted to these early successional habitats and
physically dynamic areas. Such areas provide loafing, foraging,
and nesting habitat for several species of shorebirds * * *.
Additionally, the areas on the barrier where overwashlbreaching
events are most likely to occur are typically characterized by low
elevation dunes and interior areas, and gently sloping beaches.
These areas are favored by piping plovers and their broods in
search of easy access to the bay-side mud flats to feed [citation
omitted]. * * *

Although the Army Corps specifically references the different tern species, as well as
the common loon, black rail and cormorants, it does not expressly mention the piping plover,
Cooper's hawk, osprey or peregrine falcon. (EA at 68).
9

39

The seasonality of breach or overwash occurrence may limit the
extent of the impact to the local ecology. For instance, most
overwash events occur during northeaster (fall and winter) storms
when the piping plovers have migrated elsewhere. In addition, the
loss ofbeachfront habitat * * • may negate the beneficial impacts
of overwash habitat creation. Should the breach occur in the spring
or summer due to a storm, the destruction of shorebird nests by
wind and flooding would be a more negative impact than any
presumed short-term overwash habitat gain. Similarly, low-lying
degraded beaches are also at risk of experiencing overwash during
much smaller storm events, and in tum threatening any shorebird
nesting activities."
(EA at 68-69).
With respect to the specific effects of the No Action Alternative upon the piping plover,
the Army Corps concluded:
"Elias-Gerken, ( 1994) studied piping plover use in the project area
to identify any discernible trends in habitat suitability. She
determined that certain habitat elements were lacking, particularly
ephemeral pools for feeding. Coupled with the scarcity of open or
sparsely vegetated sites, approximately 80 percent of the Fire
Island National Seashore is not suitable for breeding habitat. The
presence of open vegetation (median cover of 10 percent) was
determined to be an important habitat element to support foraging
piping plover chicks, in the absence of ephemeral pools and when
easy access to bay mudflats is restricted. Thus, suitable habitat is
limiting piping plover numbers on the Fire Island barrier. EliasGerken further suggested that storm-maintained, early successional
stage habitats, such as created by overwash fans, provide optimal
breeding conditions for piping plovers.
If a breach is closed or an overwash area is formed the winter prior
to the shorebird breeding season (Aprill-July 1), piping plovers *
* • will immediately use the newly altered area for foraging.
Gently sloping overwash fans that extend into the backbay marshes
provide prime foraging habitat. Due to routine dynamic changes in
washover or breach areas, the vegetation typically remains sparse.
This provides optimal nesting habitat. The insects associated with
the sparse vegetation * * * also provide a food source for the
foraging shorebirds. However, shorebirds may be subject to nest

40

failure due to subsequent wash-overs at the same location.
In direct contrast to the benefits derived from overwash deposits, a
barrier island breach and continued beach erosion could have
negative impacts on piping plovers. A breach occurring during the
nesting season could result in the direct loss of eggs, and mortality
of chicks and/or adults. Flood tidal deltas resulting from a breach
may provide additional foraging areas for piping plovers.
However, this benefit must be weighed against the loss of
beachfront nesting habitat. Continued erosion of the beach and
fore-dune can create erosion scarps, thereby degrading existing or
other potential plover habitat."
(EA at 73, 92).

ii.

The Project

The EA indicates, in relevant part, that with the Project:
"coastal storm risk on Fire Island would be offset in the areas
proposed for beachfill. The placement of beach fill in the
designated areas would manage risk to the residential, recreational,
and commercial uses by increasing protective sand volumes.
Effects on long-term barrir [sic] island geological processes are
anticipated to be short-term and temporary. Implementation of the
beach nourishment alternative wouldreduce [sic] the likelihood and
magnitude of damages for residents and businesses in the coastal
barriers during non-catastrophic events. The [Project) would also
afford increased protection to the communities along the bayshore
by reducing the likelihood of coastal barrier breaching. Due to the
reduced likelihood of breach and inundation of the bay shore,
residential, recreational and commercial structures are much less
likely to be damaged or destroyed, access to homes businesses [sic]
is less likely to be interrupted, and utility service is less likely to be
disrupted. In the near term this additional protection will afford a
window of opportunity for communities to undertake other
adaptation to reduce the potential for flood and erosion damage.
The coastal barrier will resume processes of natural transition over
time as the beach fill erodes, and implementation of other measures
to ensure community resilience will be necessary to address storm
risk and sea level rise. The proposed actions do not address
41

flooding that may occur in bay shore communities due to water
entering the existing inlets."
(EA at 75-76).
The Army Corps determined that with the Project, "storms analogous to historic trends,
consisting of frequent minor to moderate events, are likely to result in minor adverse impacts to"
land use and communities, social and economic interests, transportation, and recreation, and that
those impacts "would be expected to be short term, depending on storm frequency and severity."
(Id. at 76-77). In addition, the Army Corps determined that "[a] single catastrophic storm event
is likely to result in minor to moderate adverse impacts to transportation. While some flooding
and minor road damages could occur, there would be no loss of transportation systems. These
impacts would be expected to be short term and there would be no loss of essential
transportation, including for emergency services." (EA at 76).
With respect to impacts upon the physical environment, the Army Corps determined that
the Project:
"would alter the beach/dune profile substantially, reducing the
potential for breaching and overwash during storm events and
creating greater stability of the barrier island features. By changing
the natural coastal barrier processes of shoreline retreat, inlet
formation and shoal accumulation, the [P]roject could affect
coastal processes, such as longshore sediment transport, cross
island sediment transport, dune development and evolution,
estuarine circulation, and bayside shoreline processes, that are vital
to maintaining coastal features (i.e., beach, dunes and barrier
island)."

(EA at 79). In addition, the Army Corps determined that "[i]mpacts to the physical
characteristics of the borrow area would be expected to be adverse, minor to moderate and short

42

term." (Id. at 80).
With respect to the impacts of the Project upon natural resources, the Army Corps
concluded:
"Perhaps the greatest disturbance associated with beach filling is
destruction of nesting areas for shorebirds that may be onsite or on
beaches adjacent to such an operation. Least terns and piping
plovers commonly nest in the project area. * * *
With [the Project], construction activity on the adjoining marine
beach habitat may disrupt normal activity of faunal species;
however this disturbance would be temporary. The long-term
effect of active management of the coastal barrier by sand
placement and dredging activities is uncertain. * * * The overall
impact to the barrier island ecosystem that would result from the
increased sand volumes under the [Project] would be temporary
protection from storm damages with uncertain but temporary
disruption of transitional barrier habitats.

***
Numerous species of shorebirds forage along the beaches, marshes,
and intertidal flats of the project area from spring through fall. As
the extent of available [backbay ecosystem] habitat is likely to
remain relatively constant with the [Project], no impact to these
species would be expected."
(EA at 84-91 ). Specifically with respect to the piping plover, the Army Corps concluded, in
relevant part:
"Conducting the beach fill operation outside of the least tern and
piping plover nesting season is the easiest way to avoid adverse
impacts * * *.
The period of concern for the piping plover and least tern in the
proposed project area, extends from April 1 when the birds begin
to arrive and establish territories, to August 31, when all of the
young have fledged. Once the birds have arrived, construction
activities should not be scheduled if such activities would disrupt
their nesting rituals. When construction activities occur, shore

43

birds may avoid the active construction site temporarily. Given the
miles of shoreline and tidal flats on Fire Island outside of the
[P]roject work areas, the availability of habitat is not a limiting
factor and this temporary effect would not be significant, outside of
the nesting area.
Creating additional beach width and elevation would provide more
habitat for the plovers and terns. However, this may have little
positive impact on their long-term success because they currently
do not lack appropriate shorefront nesting habitat. The nourished
beach, however, may decrease flooding ofthe shorebird nests, due
to the increased elevation, during the hurricane season, and may
provide some real but immeasurable benefit. Beach slope is also a
critical factor for piping plover habitat selection and use.
As the proposed [P]roject will be constructed outside of the piping
plover breeding season (April 1 -August 31 ), no adverse impacts
to the piping plover will occur from the proposed filling activities.
[citation omitted].

* • * Potential indirect impacts are anticipated to piping plovers *
* * and their habitat. Beach nourishment could have both
beneficial and adverse effects on (this] beach-dependent species. If
the result of the sand placement produces a higher, wider beach
and more available, suitable habitat for • * * piping plovers, there
can be potential positive habitat impacts. This could reduce
flooding and potential loss of individuals and progeny * * * and
provide additional habitat for more colonization.
On the other hand, creating additional habitat in heavily disturbed
community areas could result in sub-optimal or nonfunctional
habitat, which could also result in a population sink. Wider, higher
beaches could attract and result in higher recreational use and an
increase in predation with additional habitat available for
predators. Numerous studies have documented the direct and
indirect adverse effects of human disturbance on piping plovers * *
*. Since the ocean beaches already receive high public use and
have protected areas for rare flora and fauna, no shift or change in
existing use is expected. This is also the case with human induced
predator impacts, as both beach conditions and predator
populations fluctuate and cycle.
Further, construction activities would temporarily impact beach

44

invertebrates and prey base of plovers * * *. Intertidal zone prey
base would be affected, as project activities would place material
below the high tide line. These impacts will be short term and
minimal due to time of year placement and the amount of intertidal
area along Long Island. * * *
The construction of the beach and dune building could preclude
natural overwash processes and early successional habitat
formation in the short term. Nourishment would also bury or
remove established beach vegetation and temporarily retard
vegetative growth. It would provide a gently sloping beach and
wider intertidal areas for increased plover breeding and foraging *
* *. The [P]roject could also bury or temporarily remove the
wrack line, an important source of prey for plovers.
Nourishment of the beach towards more stabilized conditions can
preclude natural habitat formation, including overwash and backbay foraging sites. The habitat resulting from the activities will be
temporarily changed, as well as available prey base (potential
removal of wrack/beach invertebrates). These conditions may be
positive or negative, as more beach will be available as breeding
habitat, but natural habitat formation of overwash areas could be
precluded. These manipulated conditions are expected to be
temporary and localized and the affected area [to] quickly recover
and recolonize with prey. Effects of this [P]roject are recognized
to not last through dynamic winters the shoreline will returned [sic]
to its natural configuration within five years. The [P]roject will
allow for overwash in all the other areas outside the project area
along Fire Island.
[The Army Corps] has identified the following potential indirect
adverse effects to listed species resulting from implementation of
the project: [1] [d]isturbance to prey base and temporarily reduced
prey availability (destruction of beach invertebrates and wrack
line); [2] [r]eduction of potential for formation and maintenance of
overwash or bayside piping plover breeding and foraging habitat;
[3] [d]isturbance to piping plovers through enhancing beaches to
attract increased recreational activities on oceanside beaches; [4]
[i]ncreased potential predator populations/activity that could utilize
habitat created by the[P]roject; and [5] [c]hanges in existing
plover*** habitatO on FilS (could be positive or negative).
[The Army Corps] coordinated with the [DOl] (NPS and [FWS]),

45

NYSDEC and Suffolk County and developed modifications to the
proposed beach fill component of the [Project] that would provide
increased protection and improved productivity for listed species,
including the piping plover. In addition, [the Army Corps] conduct
[sic] pre-construction field surveys for active piping plover nesting
areas."
(EA at 92-94).

c.

Cumulative Impacts

The Army Corps concluded that
"[t]he cumulative impact assessment of federal nourishment
projects on the south shore of Long Island indicate that federal
project actions would occur in dynamic environment whose
inhabitants have adapted to these conditions. Studies indicate that
borrow area and sand placement areas re-colonize shortly after
construction activities are completed."
(EA at 101, 108).
With respect to the No Action Alternative, the Army Corps determined that "[b]ecause of
the low percentage of disturbance and the recolonization potential, no cumulative impacts from
[ongoing Federal and State civil projects occurring within close proximity to the Project] is
expected" under the No Action Alternative. (EA at 101).
With respect to the cumulative impacts of the Project, the Army Corps concluded:
"[T]he cumulative impacts of the Federal projects in the Study Area are
uncertain. The coastal barriers were originaaly [sic] created by natural
processes without human intervention. These natural processes
redistribute sand in the nearshore environment in response to gradual
erosion and storm events. Once coastal barriers are manipulated by human
interventions, which Fire Island has undergone through maintenance of the
inlets at either end of the island, they are no longer able to maintain their
natural equilibrium. In combination with sea level rise, lower shoreface
erosion, bayshore inundation and continuing natural sediment transport

46

processes, the long-term effect of sand placement and prevention of
breaches on the coastal barriers is uncertain. The impacts are also
interactive in that the stabilization of barrier beaches and mainland
shoreline may alter/prevent early successional communities such as
maritime beach from evolving in overwash areas. The natural barrier
beach environment exists in a continually changing state of' dynamic
equilibrium' that depends on the size of the waves, changes in sea level
relative to the land, the shape of the beach, and the beach sand supply.
When any one of these factors changes, the others adjust accordingly.
Development patterns that have built up over the years took place prior to
research on coastal barrier behavior and sea level rise. Under the
cumulative effect of natural processes acting on an environment altered by
human intervention the proposed [Project] mediates between managing
risk and natural processes. The additive damages to homes, businesses,
the area's recreational resources, and its economy would be reduced by the
[Project]. The use of natural and nonrenewable resources in the salvage,
repair, and reconstruction in the aftermath of storm damage would also be
reduced. The [Project] maintains the opportunity for long-term
management plans in the project area to incorporate natural processes and
sea level rise adaptation within risk reduction and community resilience
strategies.

* * • Measures proposed to minimize the cumulative effects of the
federal nourishment projects are * * * long-term protection of
potential habitat for the * * * Piping plover* * *[;]pre and post
construction field surveys for plovers** *[;][and] [o]utside of the
communities work will be done from September 1 through April 1
on any given year * * •."
(EA at 102). In addition, the Project was modified to include, inter alia, the following
conservation measures in order "[t]o minimize adverse impacts on the listed species," (EA at
I 02), by increasing protection and improving productivity:
(1)

relocating dunes "more landward;"

(2)

revising dune tapers;

(3)

modifying the dune slope, subject to consultation under
Section I 06 of the NHPA, and reducing the tolerances for
the berm height at Lighthouse Beach;

47

(4)

devegetating "the four primary overwash areas in the [P]ark
* * • to more closely mimic conditions suitable to plovers *
* *" and monitoring and adaptively managing the "habitats
on the bay side of the three overwash areas and ocean side
of Great Gunn [sic] should they begin to fill in with
vegetation, or otherwise undergo succession to a habitat
unsuitable to plovers[;]" and

( 5)

restoring "up to approximately 84 acres {34 hectares} of a
now heavily vegetated area at Great Gunn [sic] Beach to
early successional habitat" and creating "up to 6 hectare of
bayside habitat" in the area of New Made Island.

(EA at 102-03 ). In the EA, the Army Corps indicated its belief that "the aforementioned
modifications to the [P]roject will protect the available bayside, maintain habitats that might
otherwise deteriorate over time, •

* * create new habitat from areas currently unsuitable[,] •

• •

provide for more suitable habitat over time and potentially increase overall plover productivity of
the area and advance the recovery of the species." (EA at 103).
In addition to the aforementioned Project modifications, the Army Corps agreed, inter

alia, to the following conservation measures: to conduct surveys during the spring and summer,
and prior to construction activities, to identify nesting plover in the Project area and document all
known locations of piping plover for ten (I 0) years; to plant dunes at low densities; to contact the
FWS upon initiation and completion of construction activities and to hold pre-construction
meetings with all project staff to provide all information on resource protection and terms of the
Project; to provide all Project personnel and construction staff with information regarding the
conditions, including all conservation measures, of the Project; to refrain from all construction
activities between April I and September 1, unless breeding piping plovers are not observed in
an area, or are not within one thousand (1000) meters of an area by July 15; and to undertake

48

only low impact construction activities, such as beach surveying, during the piping plover
breeding season, utilizing a three hundred (300)-feet buffer zone. (EA at 104). In addition, the
Army Corps agreed: (1) to implement, in coordination with the FilS, Suffolk County and the
FWS, a monitoring program for ten (1 0) years to be undertaken by a designated biologist who
. will be educated about the species and required to attend a piping plover management course
organized by the FWS, the NYSDEC and The Nature Conservancy and who will "recommend
and implement changes in the location and configuration of symbolic fencing and warning signs
and gauge the effectiveness of management actions[,]" (EA at 104); (2) to place symbolic fencing
and warning signs around suitable habitat within the Project area prior to piping plover breeding
season and in coordination with the land manager(s) and the FWS's biologists; (3) to prohibit all
pedestrian and ORV access into, or through, the breeding areas; (4) to conduct productivity and
population surveys and record such information each year; and (5) to coordinate with the FWS in
the preparation of (a) a de-vegetation plan within the three (3) primary overwash areas in the
Park for ten (1 0) years and (b) "a predator plan (mammalian) for pre-season and in-season
predator monitoring program for all project areas • • • for ten years of activity[,]" (EA at I 0407).
The Army Corps determined that since "the mitigative measures • • • will lessen
temporary impacts," (EA at 108) and the Project "is designed to minimize adverse environmental
impacts, the cumulative impacts to occur on the south shore of Long Island are not significant to
the human environment/communities present within this region." ili!,) In addition, the Army
Corps concluded, inter alia, that
"given the conservation measures and adaptive management plans

49

• • •, and the local implementation of existing [FWS] protection
measures, impacts to [] piping plovers * • * associated with the
proposed projects will be minimized. The precautions taken will
allow dredging or upland source placement of fill and continuous
operation, thereby providing the most cost-effective and
expeditious operation, while minimizing long-term plover • * •
impacts. These conditions are consistent with the findings during
previous beach nourishment and breach filling activities."
(EA at 108).

5.

The FONSI

On July 3, 2014, the Army Corps issued a FONSI determining, inter alia, that the Project
"does not constitute a major Federal action significantly affecting the quality of the human
environment" and, therefore, does not require the preparation of a detailed EIS. (FONSI,

~

4).

That determination was based upon, inter alia, the following factors:
"a.

[The Project] has been designed to minimize impacts and
avoid adverse impacts to threatened or endangered species
potentially occurring in the project area. Specifically, no
work will be performed between I April and I September
in order to avoid impacts to nesting piping plovers.

b.

Due to the short project life of the [Project], no
unacceptable adverse cumulative or secondary impacts
would result from [its] implementation.

c.

No additional long term adverse impacts to the
environment would be associated with the proposed
[P]roject."

(FONSI, ~ 4). The Army Corps found that the Project "would result in no significant adverse
environmental impacts and is the alternative that represents sound engineering practices and
meets environmental standards." (Id., ~ 5).

50

B.

Procedural Background ·

On September 12, 2014, plaintiff filed: (I) a complaint pursuant to the APA against
defendants challenging (a) the Biological Opinion issued by the FWS under Section 7(a)(2) of
the ESA and (b) the EA and FONSI issued by the Army Corps under NEP A; and (2) an
application pursuant to Rule 65 of the Federal Rules of Civil Procedure seeking a TRO and
preliminary injunction enjoining defendants "from undertaking, either directly or indirectly, or
causing or allowing [their] contractors* • * to undertake, the destruction or modification of
upland areas, beaches, intertidal areas, tidal flats, ephemeral pools, and shorelines at [the Park]
and [the Beach] * * •, including the construction of dunes, berms or roads, the operation of
motorized equipment, and any other activity that alters or may have the effect of altering, either
temporarily or permanently, the physical condition of the aforementioned areas [pending a ruling
on the motion for a preliminary injunction and during the pendency of this action, respectively]."
(OTSC at 2-3). The complaint seeks declaratory and injunctive relief and asserts the following
eight (8) causes of action: (I) that the FWS' s Biological Opinion is arbitrary and capricious, an
abuse of discretion and not in accordance with law because (a) it "contains no explicit
determination setting forth the Secretary's opinion whether the

DProject is likely to jeopardize

the Atlantic Coast piping plover," (Compl., ~ 93), in violation of 16 U.S.C. § 1536(b)(3)(A) and
SO C.F.R. § 402.14(h) (first cause of action), (b) any "no jeopardy" determination that may

inferred from the Biological Opinion "is contradicted by the numerous significant adverse
impacts of the[] Project identified in the Biological OpinionO * * * [and] therefore has no
factual or analytical basis • • • and is not rationally connected to the facts found in the Biological
Opinion[,]" (Compl., ~ 96), (second cause of action), (c) it "improperly relies on conservation
51

measures that are lacking in detail, unenforceable, not certain to occur, and not related to any
clearly articulated goal or benefit to the species[,]" (Compl., ~ 102), (fourth cause of action), and
(d) the Incidental Take Statement "did not offer a rational explanation for its calculation of the

0

Project's incidental take that is supported by facts in the record and based on 'the best scientific
and commercial data available[,]"' (Compl., ~ 99 (quoting 16 U.S.C. § 1536(a)(2))) (third cause
of action); (2) that the Army Corps's "analysis of impacts to piping plovers," (Compl., ~ 106), in
its EA is arbitrary, capricious, an abuse of discretion, and not in accordance with law because
"[w]ithout any scientific basis or support in the record, [it] ignores key findings in the Biological
Opinion concerning the significant adverse impacts of the [] Project on piping plovers

* * * [and]

is not rationally connected to the facts," (Compl., ~~ I 05-06) (fifth cause of action); (3) that the
Army Corps's "failure to consider any reasonable alternatives to the proposed[] Project and to
rigorously and objectively assess the No Action Alternative and the [] Project [in its EA] is
arbitrary and capricious, an abuse of discretion and not in accordance with law[,]" (Compl.,

~

109), in violation of 40 C.P.R. §§ 1502.14(a) and 1508.9(b) (sixth cause of action); (4) that the
Army Corps's "failure to consider cumulative impacts [in its EA] as required by [40 C.P.R. §
1508. 7] is arbitrary and capricious, an abuse of discretion and not in accordance with law[,]"
(Compl., ~ 112), (seventh cause of action); and (5) that the Army Corps's "issuance of a FONSI
and failure to prepare an EIS is arbitrary, capricious, an abuse of discretion, and not in
accordance with law[,]" (Compl., ~ 115), because the FONSI "is unsupported by the record,
which documents the integral ecological importance of First Island to the recovery of the piping
plover, the precedent-setting nature of the[] Project, the significant cumulative impacts of the
Project, the level of uncertainty associated with the Project's conservation measures, and the
52

degree to which the Project will adversely affect the survival and recovery of the threatened
piping plover[,]" (Compl., ~ 114), (eighth cause of action).
By Order dated September 12, 2014, inter alia: (1) defendants were ordered to show
cause, by filing a memorandum in response to the plaintiff's application and any supporting
evidence on or before September 18,2014, why a preliminary injunction should not be issued;
and (2) plaintiff's application for a TRO was granted upon its posting of an undertaking in the
amount often thousand dollars ($10,000.00) pursuant to Rule 65(c) of the Federal Rules of Civil
Procedure. Plaintiff posted the requisite undertaking on September 15,2014.
On September 16, 2014, defendants filed a motion seeking, inter alia: (1) to dissolve the
TRO pursuant to Rule 65(dX4) ofthe Federal Rules of Civil Procedure; and (2) to extend their
time to oppose the motion for a preliminary injunction for two (2) weeks, i.e., until Thursday,
October 2, 2014, and plaintiff's time to reply thereto until Monday, October 6, 2014. By order
dated September 17, 2014, inter alia, the branch of defendants' motion seeking extensions of
time to oppose the motion for a preliminary injunction and to file a reply thereto was granted.
On September 18, 2014, plaintiff filed a cross motion seeking to strike certain paragraphs
and exhibits of the Amanat declaration pursuant to Rule 408 of the Federal Rules of Evidence.
At 6:53p.m. on October 1, 2014, defendants filed a motion ("defendants' October
motion") seeking, inter alia: (1) to have this Court deem the TRO expired on September 26,
2014 by operation oflaw pursuant to Rule 65(b)(2) of the Federal Rules of Civil Procedure, or, in
the alternative, to dissolve the TRO pursuant to Rule 65(b )(4) of the Federal Rules of Civil
Procedure; and (2) an additional three (3)-week extension of time, i.e., until Friday, October 24,
2014, to oppose plaintiffs motion for a preliminary injunction. By order dated October 6, 2014,
53

inter alia, defendants' October motion was denied in its entirety. 10
Also pending before the Court is FILPS' s motion for leave to file a brief amicus curiae in
opposition to plaintiffs motion for a preliminary injunction."

Ill.

Discussion
A.

Standard for Injunctive Relief

"In general, district courts may grant a preliminary injunction where a plaintiff
demonstrates 'irreparable harm' and meets one of two related standards: either (a) a likelihood of
success on the merits, or (b) sufficiently serious questions going to the merits of its claims to
make them fair ground for litigation, plus a balance of the hardships tipping decidedly in [its]
favor • •

*."

Otoe-Missouria Tribe oflndians v. New York State Dep't of Fin. Servs.,- F.3d

- , 2014 WL 4900363 (2d Cir. Oct. I, 2014) (quotations and citation omitted);~ also Central
Rabbinical Congress of United States & Canada v. New York City Dep't of Health & Mental
Hygiene, 763 F.3d 183, 192 (2d Cir. 2014) (accord). However, "[a] plaintiff cannot rely on the
'fair-ground-for litigation' alternative to challenge governmental action taken in the public

10

Defendants' contention that the TRO expired by operation of law on September 26,
2014 ignores that fact that it was their request for a two (2)-week extension of time to oppose the
motion for a preliminary injunction that resulted in the TRO extending beyond the fourteen (14)day period prescribed by Rule 65(b)(2) of the Federal Rules of Civil Procedure. Had defendants
not requested an extension, the motion for a preliminary injunction would have been fully
briefed, and ready for determination, by September 22, 2014. Since it was defendants' own
conduct that prolonged the TRO, there was good cause for extending the TRO until determination
of plaintiffs motion for a preliminary injunction.
11

In addition, on September 30 and October 1, 2014, the Incorporated Village of Mastic
Beach and County of Suffolk, respectively, moved by way of order to show cause for leave to
intervene in this action pursuant to Rule 24 of the Federal Rules of Civil Procedure. Those
motions are presently returnable on October 29,2014.
54

interest pursuant to a statutory or regulatory scheme[]

* • • [because1governmental policies

implemented through legislation or regulations developed through presumptively reasoned
democratic processes are entitled to a higher degree of deference and should not be enjoined
lightly." Otoe-Missouria Tribe,- F.3d - , 2014 WL 4900363 (quotations and citation omitted);
see also Central Rabbinical, 763 F .3d at 192. That exception to the "two-track rule" for granting
a preliminary injunction applies even if the party "seeking to enjoin governmental action taken in
the public interest pursuant to a statutory or regulatory scheme •

* • public interest."

* • [also1seeks to vindicate a *

Otoe-Missouria Tribe,- F.3d - , 2014 WL 4900363 (quotations and

citation omitted). Accordingly, in order to grant plaintiff a preliminary injunction in this case,
the Court must be sure that, in all likelihood, defendants have acted unlawfully before
substituting its judgment for that of the political branches. See Otoe-Missouria Tribe,- F.3d
- , 2014 WL 4900363. In other words, plaintiff must meet "the higher standard" of
demonstrating a likelihood of success on the merits in order to obtain a preliminary injunction.
See id.; Pres. Coal. of Erie Cnty. v. Fed. Transit Admin., 129 F. Supp. 2d 551, 564 (W.D.N.Y.
2000) (holding that a plaintiff must show irreparable injury and a likelihood of success on the
merits in a NEP A case).
"The party seeking a preliminary injunction must also demonstrate that the public's
interest weighs in favor of granting an injunction." Central Rabbinical, 763 F .3d at 192; see also
Winter v. Natural Res. Def. Council, 555 U.S. 7, 24, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008)
("In exercising their sound discretion, courts of equity should pay particular regard for the public
consequences in employing the extraordinary remedy of injunction. (quotations and citation
omitted)). Injunctive relief is "an extraordinary remedy that may only be awarded upon a clear
55

showing that the plaintiff is entitled to such relief[,]" Winter, 555 U.S. at 22, 129 S. Ct. 365, and
is "never awarded as of right." !d. at 24, 129 S. Ct. 365.

B.

Likelihood of Success on the Merits
1.

The APA

The APA provides, in relevant part, that "[a] person suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. "Agency action made
reviewable by statute and final agency action for which there is no other adequate remedy in a
court are subject to judicial review." 5 U.S.C. § 704.
"Pursuant to the APA, courts review contested agency action to determine if it is
'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."' Brodsky
v. U.S. Nuclear Regulatory Comm'n, 704 F.3d 113, 119 (2d Cir. 2013) (quoting 5 U.S.C. §
706(2)(A)); see also Karoova v. Snow, 497 F.3d 262,267 (2d Cir. 2007). "Under this deferential
standard of review, [courts] cannot substitute [their] judgment for that of the agency." Natural
Res. Def. Council v. Fed. Aviation Admin., 564 F.3d 549, 555 (2d Cir. 2009); see also Fed.
Commc'ns Comm'n v. Fox Television Stations, Inc., 556 U.S. 502,513, 129 S. Ct. 1800, 173 L.
Ed. 2d 738 (2009) (holding that under the "narrow" arbitrary and capricious standard of review,
"a court is not to substitute its judgment for that of the agency* * *."(quotations and citation
omitted).
Nonetheless, "[a]1though highly deferential, this standard does not equate to no review."
Brodsky, 704 F.3d at 119. "Notably, the APA contemplates that, in deciding a challenge to
56

agency action, a court will review the administrative record to ensure that the agency examined
the relevant data and articulated a satisfactory explanation for its action." Brodsky, 704 F .3d at
119 (quotations and citation omitted); see also Marsh v. Oregon Natural Res. Council, 490 U.S.
360, 378, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989) (holding that courts must "ensure that
agency decisions are founded on a reasoned evaluation of the relevant factors." (quotations
omitted)); Karoova, 497 F.3d at 268 ("[S]o long as the agency examines the relevant data and has
set out a satisfactory explanation[,] including a rational connection between the facts found and
the choice made, a reviewing court will uphold the agency action

* * *.")

"[T]he agency's

decision must reveal a rational connection between the facts found and the choice made."
Brodsky, 704 F .3d at 119 (quoting Natural Res. Def. Council.Inc. v. U.S. EPA, 658 F.3d 200,
215 (2d Cir. 2011)); see also Fed. Aviation Admin., 564 F.3d at 555 (accord). "[A]n agency
determination will only be overturned when the agency 'has relied on factors which Congress has
not intended it to consider, entirely failed to consider an important aspect of the problem, offered
an explanation for its decision 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."' Karoova, 497 F.3d at 267-68 (quoting Motor Vehicle Mfrs. Ass'n of U.S .. Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856,77 L. Ed. 2d 443 (1983)).
However, "[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, 490 U.S. at 378, 109 S. Ct. 1851.
"[W]hile a court can uphold a decision ofless than ideal clarity if the agency's path may
reasonably be discerned, it may not itself supply a reasoned basis for the agency's action than the
57

agency itself has not given." Brodsky, 704 F.3d at 119 (quotations and citation omitted). "An
agency's decision is accorded a presumption ofregularity,"Coal. on W. Valley Nuclear Wastes
v. Bodman, 625 F. Supp. 2d 109, 116 (W.D.N.Y. 2007), aff'd sub nom Coal. on W. Valley
Nuclear Wastes v. Chu, 592 F.3d 306 (2d Cir. 2009) (quotations and citation omitted), "and the
party challenging the decision has the burden of proof." ld.; see also Natural Res. Def. Council,
Inc. v. U.S. Army Corns

ofEng'r~

457 F. Supp. 2d 198,220 (S.D.N.Y. 2006) (accord); Boatmen

v. Gutierrez, 429 F. Supp. 2d 543, 548 (E.D.N.Y. 2006) ("Plaintiffs bear the burden of showing,
by citation to evidence in the administrative record, that an agency's actions are arbitrary and
capricious.")
The only issues presented in this case are whether the findings and conclusions of (1) the
FWS in its Biological Opinion and (2) the Army Corps in its EA and FONSI are arbitrary and
capricious under the AP A. Since resolution of plaintiffs claims involves primarily issues of fact,
and "analysis of the relevant documents requires a high level of technical expertise," Marsh, 490
U.S. at 377, 109 S. Ct. 1851 (quotations and citations omitted), "defer[ence] to the informed
discretion of the responsible federal agencies" is required. Id.

2.

TheESA

Section 7(a) of the ESA provides, in relevant part:
"Each Federal agency shall, in consultation with and with the
assistance of the Secretary, 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 result in the destruction or adverse modification of habitat of
such species which is determined by the Secretary, after
consultation as appropriate with affected States, to be critical,
58

unless such agency has been granted an exemption from such
action by the Committee pursuant to subsection (h) of this section.
In fulfilling the requirements of this paragraph each agency shall
use the best scientific and commercial data available."
16 U.S.C. § 1536(a)(2).

12

Regulations promulgated under the ESA provide, in relevant part, that,

with exceptions not relevant here, formal consultation is required whenever a federal agency
determines that an "action may affect listed species or critical habitat." 13 50 C.F.R. § 402.14(a).
The FWS is responsible for administering the ESA with respect to all endangered and
threatened wildlife and plant species designated in 50 C.F .R. § 17 .II and 17 .12, respectively,~
50 C.F.R. § 402.01, including the piping plover. See 50 C.F.R. § 17.11 (h). During formal
consultation, the FWS must:

12

"Jeopardize the continued existence of means to engage in an action that 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. "Recovery means improvement in the status of listed
species to the point at which listing is no longer appropriate under the criteria set out in section
4(a)(l) of the [ESA)." Id.
"Destruction or adverse modification means a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and recovery of a listed species.
Such alterations include, but are not limited to, alterations adversely modifying any of those
physical or biological features that were the basis for determining the habitat to be critical." Id.
13

"Formal consultation" is defined as "a process between the [FWS) and the Federal
agency that commences with the Federal agency's written request for consultation under section
7(a)(2) of the [ESA) and concludes with the [FWS's) issuance of the biological opinion under
section 7(b)(3) of the [ESA)." 50 C.F.R. § 402.02.
"Listed species means any species of fish, wildlife, or plant which has been determined to
be endangered or threatened under section 4 of the [ESA) * * * [and) are found in 50 CFR 17.1117.12." ld.
"Critical habitat refers to an area designated as critical habitat listed in 50 CFR parts 17 or
226." Id. No critical habitat has been designated in the Project area.
59

"(I) Review all relevant information provided by the Federal
agency or otherwise available. * * *

(2) Evaluate the current status of the listed species or critical
habitat.
(3) Evaluate the effects of the action and cumulative effects on the
listed species or critical habitat.
(4) Formulate its biological opinion as to whether the action, taken
together with cumulative effects, is likely to jeopardize the
continued existence of listed species or result in the destruction or
adverse modification of critical habitat.
(5) Discuss with the Federal agency and any applicant [its] review
and evaluation * * *,the basis for any finding in the biological
opinion, and the availability of reasonable and prudent alternatives
(if a jeopardy opinion is to be issued) that the agency and the
applicant can take to avoid violation of section 7(a)(2) [of the
ESA]. The [FWS] will utilize the expertise of the Federal agency
and any applicant in identifying these alternatives. If requested, the
[FWS] shall make available to the Federal agency the draft
biological opinion for the purpose of analyzing the reasonable and
prudent alternatives. * * * [14 ]
(6) Formulate discretionary conservation recommendations, if any,
which will assist the Federal agency in reducing or eliminating the
impacts that its proposed action may have on listed species or
critical habitat.
(7) F annulate a statement concerning incidental take, if such take
may occur.
(8) * * • [U]se the best scientific and commercial data available
and • * • give appropriate consideration to any beneficial actions

14

"Reasonable and prudent alternatives refer to alternative actions identified during
formal consultation that can be implemented in a manner consistent with the intended purpose of
the action, that can be implemented consistent with the scope of the Federal agency's legal
authority and jurisdiction, that is [sic] economically and technologically feasible, and that the
[FWS regional director, or his authorized representative] believes would avoid the likelihood of
jeopardizing the continued existence of listed species or resulting in the destruction or adverse
modification of critical habitat." 50 C.F.R. § 402.02.

60

taken by the Federal agency or applicant, including any actions
taken prior to the initiation of consultation[] [in formulating its
biological opinion and any reasonable and prudent alternatives or
measures]."
50 C.F.R. § 402.14(g).

a.

The Biological Opinion

Section 7(b) of the ESA provides, in relevant part:
"Promptly after conclusion of consultation under paragraph (2) * *
• of subsection (a) of this section, the Secretary shall provide to the
Federal agency and the applicant, if any, a written statement setting
forth the Secretary's opinion, and a summary of the information on
which the opinion is based, detailing how the agency action affects
the species or its critical habitat. If jeopardy or adverse
modification is found, the Secretary shall suggest those reasonable
and prudent alternatives which he believes would not violate
subsection (a)(2) of this section and can be taken by the Federal
agency or applicant in implementing the agency action."
16 U.S.C. § !536(b)(3)(A). 15 Pursuant to the ESA's promulgating regulations,
"The biological opinion shall include:(!) [a] summary of the
information on which the opinion is based; (2) [a] detailed
discussion of the effects of the action on listed species or critical
habitat; and (3) [t]he [FWS's] opinion on whether the action is
likely to jeopardize the continued existence of a listed species or
result in the destruction or adverse modification of critical habitat
(a 'jeopardy biological opinion'); or, the action is not likely to
jeopardize the continued existence of a listed species or result in
the destruction or adverse modification of critical habitat (a 'no
jeopardy' biological opinion). A 'jeopardy' biological opinion
shall include reasonable and prudent alternatives, if any. If the
[FWS] is unable to develop such alternatives, it will indicate that to

15

"(T]he document that states the opinion of the [FWS] as to whether or not the Federal
action is likely to jeopardize the continued existence of listed species or result in the destruction
or adverse modification of critical habitat" is known as a "(b]iological opinion." 50 C.F.R. §
402.02.
61

the best of its knowledge there are no reasonable and prudent
alternatives."
50 C.F.R. § 402.14(h).
Plaintiff contends that the FWS' s Biological Opinion is arbitrary and capricious because:
(I) it failed to determine whether the Project will jeopardize the continued existence of the piping

plover and any "no jeopardy" conclusion that can be inferred from the Biological Opinion "is not
rationally related to the biological facts cited [therein][,]" (Plf. Mem. at 32); (2) "it relied on
vague and uncertain conservation measures to justify its purported no-jeopardy determination[,]"
(ill at 36); and (3) the Incidental Take Statement failed to "use the best scientific and commercial
data available," (Plf. Mem. at 40 (quoting 16 U.S.C. § 1536(a)(2))), and to consider that the
Army Corps's "planned habitat restoration measures have no proven success and indeed have
been found unlikely to succeed[,]" (ill).

i.

Jeopardy Determination

The two hundred seventeen (217)-page Biological Opinion thoroughly considered the
current status of the piping plover; the environmental baseline; the effects, both adverse and
beneficial, of the proposed action; and the cumulative effects of the proposed action in
addressing whether the Project is likely to jeopardize the continued existence of the piping plover
or result in the destruction or adverse modification of critical habitat. Contrary to plaintiff's
contention, the Biological Opinion contains an express "no jeopardy" determination, insofar as it
sets forth the FWS' s opinion that the "level of anticipated take" resulting from the Project "is not
likely to result in jeopardy to the [piping plover] species or [in the] destruction or adverse

62

modification of critical habitat." (Bio. Op. at 150). A review of the record establishes that the
FWS thoroughly examined all relevant data and articulated a satisfactory explanation for its
determination that the level of anticipated take of up to eleven (II) pairs of piping plovers during
the life of the Project, or roughly one (I) pair per year, is not likely to result in jeopardy to the
species, i.e., to appreciably reduce the likelihood of both the survival and recovery of the species
in the wild.
Moreover, the fact that the final Biological Opinion differs from the FWS's draft opinion,
which concluded "that the effects of the proposed action, taken together with the status of the
species, the environmental baseline, cumulative effects, are likely to appreciably reduce the
likelihood of both the survival and recovery of piping plover in the wild by reducing its
reproduction, abundance, and distribution[,]" (Draft Bio. Op. at 142), does not warrant a finding
that the final Biological Opinion is arbitrary and capricious. "[T]he FWS was entitled to, and
did, in fact, change its mind," Southwest Ctr. For Biological Diversitv v. U.S. Bureau of
Reclamation, 143 F.3d 515,523 (9th Cir. 1998), following discussions with the Army Corps, and
state and local agencies regarding "ways to increase the quantity and productivity of the available
habitat." (Bio. Op. at 141 ). The FWS considered all relevant factors and reasonably found, inter

alia, that there is a "need to operate in the current context of [all] competing uses," (id.), and that
the "nondiscretionary" conservation measures set forth in its final Biological Opinion, which
were absent and/or different from the draft Biological Opinion, were sufficient to avoid jeopardy
to the piping plover.
Since, inter alia, there is a rational connection between the facts found and the "no
jeopardy" determination made by the FWS in the Biological Opinion, and plaintiff has not

63

demonstrated that the FWS relied upon any improper factor, failed to consider an important
aspect of the problem, or offered an explanation contrary to the evidence before it, or that the "no
jeopardy" determination is so implausible that it cannot be ascribed to a difference in opinion, it
has not demonstrated a likelihood of success on the merits of its APA claim alleging that the
FWS's jeopardy analysis in its Biological Opinion was arbitrary and capricious.

ii.

Conservation Measures

The FWS properly relied upon mitigation or conservation measures in issuing its no
jeopardy determination in the Biological Opinion. See, JU:,. Native Fish Soc'y v. Nat'! Marine
Fisheries Servs., 992 F. Supp. 2d 1095, 1113 (D. Or. 2014). Such "[m]itigation measures must
be reasonably specific, certain to occur, and capable of implementation; they must be subject to
deadlines or otherwise enforceable obligations; and most important, they must address the threats
to the species in a way that satisfies the jeopardy and adverse modification standards." Natural
Res. Def. Council v. Rodgers, 381 F. Supp. 2d 1212, 1241 (E.D. Calif. 2005); see also Native
Fish Soc'y, 992 F. Supp. 2d at 1113 (accord); Ctr. for Biological Diversity v. Salazar, 804 F.
Supp. 2d 987, I 001 (D. Ariz. 2011) ("[M]itigation measures may be included as part of a
proposed action and replied upon where they involve specific and binding plans and a clear,
definite commitment of resources for future improvements to implement those measures."
(quotations and citation omitted)). Nonetheless, '[w]hile the proposed mitigation measures must
insure against jeopardy to the protected species if they work as intended, while there must be a
rational reason to expect them to work as intended, and while they must in fact be possible to
implement, there is no requirement for the FWS to ensure the overall success of the plan." In re

64

Operation of Missouri River Sys. Litig., 421 F.3d 618,635 (8th Cir. 2005). In other words, it is
the implementation of the proposed conservation or mitigation measures themselves, and not the
anticipated results of such measures, that must be certain to occur.
Contrary to plaintiff's contention, the conservation measures set forth in the Biological
Opinion are sufficiently specific and certain, particularly when considered together with the
nondiscretionary terms and conditions set forth in the Incidental Take Statement, (Bio. Op. at
151-52), insofar as, inter alia, they are identifiable, capable of implementation, subject to
deadlines and other enforceable obligations, and address the threats to the piping plovers
resulting from the modification of their preferred habitat by ensuring the creation of suitable
replacement habitat. That some of the proposed measures may be experimental does not warrant
a finding that the FWS' s reliance upon them is arbitrary and capricious since, inter alia, there is
at least a rational reason to expect them to work as intended; "there is no requirement for the
FWS to ensure the overall success of the plan[,]" In re Operation of Missouri River Sys. Litig.,
421 F.3d at 635; and the Army Corps is required to closely monitor the performance of the
measures and the effects of the Project upon the piping plovers and, if the level of incidental take
is exceeded, to "immediately provide an explanation of the causes of the taking and review with
the.[FWS] the need for possible modification of the reasonable and prudent measures," (Bio. Op.
at 152-53), and to cease "any operations causing such take," M, at 53), pending reinitiation of
consultation.

See,~

In re Operation of Missouri River Sys. Litig., 421 F.3d at 635.

Moreover, the fact that some of the measures may require interagency cooperation does
not render them uncertain, particularly since, inter alia, all of the agencies were represented at
the meetings wherein those measures were proposed and agreed upon; the Army Corps is
65

required to fund the measures and to ensure that the three (3) overwash areas and the restored
area are managed in accordance with the measures; the interagency team must be formed prior to
the initiation of any construction; and the monitoring and predator management plans must be
drafted before the completion of the first phase of construction. (Bio. Op. at 151-52). And
again, if the level of incidental take is exceeded during the course of the Project due to the failure
of a third party to cooperate or otherwise, the Army Corps must "immediately provide an
explanation ofthe causes of the taking and review with the [FWS) the need for possible
modification of the reasonable and prudent measures," (Bio. Op. at 152-53), and cease "any
operations causing such take," (id. at 53), pending reinitiation of consultation.
Accordingly, plaintiff has not satisfied its burden of demonstrating a likelihood of success
on the merits of its APA claim alleging that the FWS 's reliance upon the conservation measures
in issuing its no jeopardy determination in its Biological Opinion is arbitrary and capricious.

iii.

Incidental Take Statement

The ESA provides, in relevant part:
"If after consultation under subsection (a)(2) of this section, the
Secretary concludes that- (A) the agency action will not violate
such subsection, or offers reasonable and prudent alternatives
which the Secretary believes would not violate such subsection;
[and) (B) the taking of an endangered species • * • incidental to
the agency action will not violate such subsection[) • • • [,) the
Secretary shall provide the Federal agency and the applicant
concerned, if any, with a written statement that- (i) specifies the
impact of such incidental taking on the species, (ii) specifies those
reasonable and prudent measures that the Secretary considers
necessary or appropriate to minimize such impact, • • • and (iv)
sets forth the terms and conditions • • * that must be complied
with by the Federal agency or applicant (if any), or both, to

66

implement the measures specified under clause[] (ii)
16 U.S.C. §1536(b)(4)

16

;

* * •."

see also 50 C.F.R. § 402.14(i)(l). "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."17 50 C.F.R. §
402.14(i)(2).
Plaintiff contends that the FWS's Incidental Take Statement is arbitrary and capricious
because it failed to "use the best scientific and commercial data available," (Plf. Mem. at 40
(quoting 16 U.S.C. § 1536(a)(2))), and to consider that the Army Corps's "planned habitat
restoration measures have no proven success and indeed have been found unlikely to succeed[,]"
(id.). However, plaintiff has not proffered any scientific or commercial data presented to or
before the FWS that contradicts the data upon which the FWS relied and was ignored by the
FWS in its Biological Opinion. Moreover, a review of the administrative record reveals that
there is ample data supporting the proposed conservation measures and, as noted above, that
those measures are reasonably specific, certain to occur, and capable of implementation; are
subject to deadlines or otherwise enforceable obligations; and sufficiently address the threats to
the species in a way that satisfies the jeopardy and adverse modification standards, particularly in
light of the extensive monitoring programs to which the Project will be subject and the provision

16

The written statement required by Section 1536(b)(4) is referred to as an "incidental
take statement."
17

"Reasonable and prudent measures refer to those actions the [FWS' s regional director]
believes necessary or appropriate to minimize the impacts, i.e., amount or extent, of incidental
take." 50 C.F.R. § 402.02. "Incidental take refers to takings that result from, but are not the
purpose of, carrying out an otherwise lawful activity conducted by the Federal agency or
applicant." Id.

67

for reinitiation of consultation and cessation of operations in the event the level of incidental take
is exceeded. Accordingly, plaintiff has not satisfied its burden of demonstrating a likelihood of
success on the merits of its APA claim alleging that the FWS's Incidental Take Statement is
arbitrary and capricious.

3.

NEPA

"NEPA directs agencies contemplating 'major [f]ederal actions significantly affecting the
quality of the human environment' to prepare an Environmental Impact Statement ('EIS')
demonstrating agency consideration of the reasonably foreseeable environmental effects."
Brodsky, 704 F.3d at 119 (quoting 42 U.S.C. § 4332(2)(C)) 18 ; see also Stewart Park and Reserve

18

42 U.S.C. § 4332 provides, in relevant part:
"The Congress authorizes and directs that, to the fullest extent
possible: • • • (2) all agencies of the Federal Government shall- •
* • (C) include in* * *major Federal actions significantly
affecting the quality of the human environment, a detailed
statement by the responsible official on- (i) the environmental
impact of the proposed action, (ii) any adverse environmental
effects which cannot be avoided should the proposal be
implemented, (iii) alternatives to the proposed action, (iv) the
relationship between local short-term uses of man's environment
and the maintenance and enhancement oflong-term productivity,
and (v) any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be
implemented.
Prior to making any detailed statement, the responsible Federal
official shall consult with and obtain the comments of any Federal
agency which has jurisdiction by law or special expertise with
respect to any environmental impact involved. Copies of such
statement and the comments and views of the appropriate Federal,
State, and local agencies, which are authorized to develop and

68

Coal. Inc. CSPARC) v. Slater, 352 F.3d 545, 557 (2d Cir. 2003) ("NEPA requires a federal
agency to prepare an EIS before taking any major action 'significantly affecting the quality of the
human environment."') "The purpose of an EIS is to 'provide full and fair discussion of
significant environmental impacts and [to] inform decisionmakers and the public of the
reasonable alternatives which would avoid or minimize [the] adverse impacts or enhance the
quality of the human environment."' SPARC, 352 F.3d at 557 (quoting 40 C.F.R. § 1502.1); see
also Baltimore Gas and Elec. Co. v. Natural Res. Def. Council Inc., 462 U.S. 87, 97, 103 S. Ct.
2246, 76 L. Ed. 2d 437 (1983) ("NEPA has twin aims. First, it places upon an agency the
obligation to consider every significant aspect of the environmental impact of a proposed action.

• * • Second, it ensures that the agency will inform the public that it has indeed considered
environmental concerns in its decisionmaking process." (quotations and citation omitted)); 40
C.F.R. § 1500.1 ("The NEPA process is intended to help public officials make decisions that are
based on understanding of environmental consequences, and take actions that protect, restore,
and enhance the environment.")
"[N]o EIS is required where the major federal action is not 'significant' within the
meaning ofNEPA." Town ofOrangetown v. Gorsuch, 718 F.2d 29,34 (2d Cir. 1983); see also
40 C.F.R. § 1501.4(b) ("In determining whether to prepare an [EIS] the Federal agency shall* •
• prepare an [EA] * * *."); CitvofNewYorkv. Slater, 145 F.3d 568,571 (2dCir. 1998)
("Before deciding to prepare a full-blown EIS

* * * an agency may conduct an [EA] • • * in

enforce environmental standards, shall be made available * * * to
the public as provided by section 552 of Title 5, and shall
accompany the proposal through the existing agency review
processes[.]"
69

order to determine whether an EIS is necessary. Where the action in question is not 'significant,'
no EIS is required."); Friends ofOmpompanoosuc v. Fed. Energy Regulatorv Comm'!!. 968 F.2d
1549, 1556 (2d Cir. 1992) ("If an agency prepares an EA and determines that a project will have
no significant impact on the human environment, a costly and time consuming EIS need not be
prepared.") An EA is defined in the regulations promulgated under NEPA as:
"a concise public document for which a F edera) agency is
responsible that serves to: (I) [b ]riefly provide sufficient evidence
and analysis for determining whether to prepare an [EIS] or a
[FONSI][;] (2) [a]id an agency's compliance with [NEPAl when
no [EIS] is necessary[;] [and] (3) [f]acilitate preparation of a
statement when one is necessary."
40 C.F.R. § 1508.9(a); see also Nat') Audubon Soc'y v. Hoffm!!!!, 132 F.3d 7, 12 (2d Cir. 1997)
("An EA is a concise document that briefly discusses the relevant issues and either reaches a

conclusion that preparation of an EIS is necessary or concludes with a finding of no significant
impact, in which case preparation of an EIS is unnecessary." (quotations, brackets and citation
omitted)); Coal. for Responsible Growth and Res. Conservation v. U.S. Fed. Energy Regulatorv
Comm'n, 485 F. App'x 472,474 (2d Cir. June 12, 2012) (summary order) ("If an agency is
uncertain as to whether the action requires an EIS, it must prepare an [EA] that briefly provides
sufficient evidence and analysis for determining whether to prepare an EIS." (quotations,
alterations and citations omitted)). The regulations further provide that an EA "[s]hall include
brief discussions of the need for the proposal, of alternatives as required by section I 02(2)(E) [of
NEPA], of the environmental impacts of the proposed action and alternatives, and a listing of
agencies and persons consulted." 40 C.F.R. § 1508.9(b).

70

"NEP A imposes only procedural requirements to ensure that the agency, in reaching its
decision, will have available, and will carefully consider, detailed information concerning
significant environmental impacts[,]" Winter, 555 U.S. at 23, 129 S. Ct. 365 (quotations,
brackets and citation omitted), and "does not mandate particular results." Id.; see also Marsh,
490 U.S. at 371, 109 S. Ct. 1851 ("NEPA does not work by mandating that agencies achieve
particular substantive environmental results. Rather, NEPA promotes its sweeping commitment
to 'prevent or eliminate damage to the environment and biosphere' by focusing Government and
public attention on the environmental effects of proposed agency action." (quoting 42 U.S.C. §
4321)); SPARC, 352 F.3d at 557 ("NEPA is a procedural statute that mandates a process rather
than a particular result.") "In other words, NEP A does not command an agency to favor any
particular course of action but rather requires the agency to withhold its decision to proceed with
an action until it has taken a 'hard look' at the environmental consequences." SPARC, 352 F.3d
at 557 (quoting Sierra Club v. U.S. Army Cows ofEng'rs, 701 F.2d 1011, 1029 (2d Cir. 1983)).
"Significantly, '[i]fthe adverse environmental effects of the proposed action are adequately
identified and evaluated, the agency is not constrained by NEPA from deciding that other values
outweigh the environmental costs."' Fed. Aviation Admin., 564 F.3d at 556 (brackets in original)
(quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, I 09 S. Ct. 1835, I 04
L. Ed. 2d 351 (1989)); see also Baltimore Gas, 462 U.S. at 97, 103 S. Ct. 2246 ("Congress in
enacting NEP A

* * * did not require agencies to elevate environmental concerns over other

appropriate considerations.

* * * Rather, it requires only that the agency take a 'hard look' at the

environmental consequences before taking a major action." (citation omitted)). "The only role
for a court is to insure that the agency has taken a 'hard look' at environmental consequences; it
71

cannot interject itself within the area of discretion of the executive as to the choice of the action
to be taken." SPARC, 352 F.3d at 557 (quotations and citations omitted); see also Baltimore
Gas, 462 U.S. at 97-98, 103 S. Ct. 2246 ("The role of the courts is simply to ensure that the
agency has adequately considered and disclosed the environmental impact of its actions and that
its decision is not arbitrary and capricious.") "Thus, judicial review of administrative choices
under NEP A focuses primarily on the procedural regularity of the decision, rather than on its
substance." Brodsky, 704 F.3d at 118-19 (quotations, alterations and citation omitted); see also
Friends ofOmpompanoosuc, 968 F.2d at 1556 ("Judicial review of agency decisions regarding
whether an EIS is needed is essentially procedural." (quotations and citation omitted)).
Plaintiff contends that the Army Corps's EA violates NEPA because it failed: (I) to
consider relevant factors in its analysis of the Project's potential impacts on piping plovers; (2) to
adequately evaluate all reasonable alternatives and to explain why it rejected alternatives
proposed by other federal agencies; and (3) to adequately evaluate cumulative impacts. (Plf.
Mem. at43).

a.

Effects of the Project

Plaintiff challenges, inter alia, the Army Corps's determination that the Project's impacts
are "insignificant" on the basis that the EA "contains numerous unsupported and inaccurate
assertions about the Project's impacts on the piping plover that are inconsistent with the findings
in the Biological Opinion and the scientific evidence and comments provided to the [Army]
Corps by FWS." (Plf. Mem. at 44).
Plaintiff has not satisfied its burden of showing a likelihood of success on the merits on
72

its APA claim that the Army Corps's EA is arbitrary and capricious. The one hundred twentythree (123)-page EA thoroughly identifies and evaluates all relevant factors including, inter alia,
the environmental impacts, both adverse and beneficial, of the Project upon the piping plover
species and habitat, and cites to numerous authorities in support of its findings. (See EA at 11423). Since the Army Corps considered all environmental consequences of the Project and
convincingly documented its determination that the Project would have "no significant adverse
environmental impacts* * * ," (FONSI, ~ 5), plaintiff has not established a likelihood of success
on the merits of its AP A claim against the Army Corps alleging that its EA failed to adequately
consider all relevant factors.

b.

Consideration of Reasonable Alternatives

Under NEPA, "an agency must '[r]igorously explore and objectively evaluate all
reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly
discuss the reasons for their having been eliminated."' Fed. Aviation Admin., 564 F.3d at 556
(brackets in original) (quoting 40 C.F.R. § 1502.14(a)); see also Natural Res. Def. Council v.
U.S. Dep't of Agric., 613 F.3d 76, 85 (2d Cir. 2010). "[U]nder NEPA the range of alternatives
that must be discussed is a matter within an agency's discretion," Friends ofOmpompanoosuc,
968 F.2d at 1558, and "the range of alternatives an agency must consider is narrower when

** *

the agency has found that a project will not have a significant environmental impact." Id.; see
also Brodsky v. U.S. Nuclear Regulatory Comm'!J, 507 F. App'x 48, 53 (2d Cir. Jan. 7, 2013)
(summary opinion).
Plaintiff contends that the Army Corps "failed to consider reasonable alternatives and to
73

identify reasons for dismissing th[o]se alternatives," (Plf. Mem. at 46), and "also failed to
rigorously and objectively evaluate *

* * *."

* * the No Action Alternative and the [] Project Alternative

(.!4) Specifically, plaintiff identified several alternatives proposed by the FWS in its

January 9, 2014letter that were not included in the EA, fui. at 47-48), i.e., "construct[ing] an
enhanced berm" instead of a "solid dune," constructing a '"staggered dune' approach," having
"breaks in the dunes" at the Park, or not having a dune constructed through "at least one of the
three overwash lobes," (Chang Dec!., Ex. 6), as well as shifting the dune alignment at Lighthouse
Beach "north to lie adjacent to the [FilS's] western access road," (Chang Dec!., Ex. 5).
Contrary to plaintiff's contention, the Army Corps clearly considered the proposed
alternatives modifying the dune designs and "briefly discussed" its reasons for rejecting those
alternatives in the EA by finding, inter alia, that within the Park, "it is not feasible to eliminate
the proposed dune system or vary its height without compromising coastal storm risk
management or severely curtailing county park management, operations and use." (EA at I 03).19
In addition, the Biological Opinion indicates that in response that the FWS' s proposed
alternatives, the Army Corps: (1) indicated at the December 18, 2013 meeting, inter alia, that it
"slightly modifie[d] the dune alignment at [Lighthouse Beach]

* * * to address the [FWS' s]

December 13, 2013[] comments," (Bio. Op. at 6); and (2) provided the FWS with ''updated
project plans for a portion of the [P]roject at [the Park]* *

* advis[ing] that the constructed

dunes must be straight lines, with as shall transitions as possible, but they can be modified during

19

Moreover, the FWS even indicated that one of its proposed alternatives, i.e., the
"staggered dune" approach, was only "experimental[,]" (Chang Dec!., Ex. 6), and "there is no
need to consider alternatives of speculative feasibility * • * ." Natural Resources Defense
CounciL Inc. v. Callaway, 524 F.2d 79, 93 (2d Cir. 1975).
74

the Plans & Specification period of project planning[] •
design can be modified slightly

* * [and] that the back slope of the dune

* * • for a 'smaller' overall foot print."

(Bio. Op. at 6). Thus, it

is clear that the Army Corp rigorously explored and objectively evaluated the alternatives
proposed to it by the FWS and provided rational reasons for its elimination of those alternatives.
Moreover, the EA adequately explores and objectively evaluates the two (2) reasonable
alternatives, i.e., the No Action Alternative and the Project, in terms of, inter alia, their
environmental risks and benefits and "was not required to say more." Brodsky, 507 F. App'x at
53. Accordingly, plaintiff has not established a likelihood of success on the merits of its APA
claim against the Army Corps alleging that its consideration of alternatives in the EA is arbitrary
and capricious.

c.

Evaluation of Cumulative Impacts

Under NEPA, "the agency 'shall consider ... 3 types of impacts': direct, indirect, and
cumulative." Fed. Aviation Admin., 564 F.3d at 558 (ellipsis in original) (quoting 40 C.F.R. §
1508.25(c)). The regulations define "cumulative impact" as "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.
Plaintiff contends that the EA "fails to take a 'hard look' at cumulative impacts because it
(I) fails to identifY and analyze the impacts of several past, present, and reasonably foreseeable

future actions in the proximity of the[] [P]roject and (2) fails to adequately consider the
cumulative impacts of the seven projects it does identifY." (Plf. Mem. at 50).
75

Review of the administrative record reveals that the Army Corps adequately analyzed the
cumulative impacts of all past, present and reasonably foreseeable future actions on existing
conditions in the vicinity of the Project in full compliance with NEPA. NEPA does not require a
federal agency to consider the cumulative impacts of an incomplete, contingent or speculative
project or action, see Village of Grand View v. Skinner, 947 F.2d 651, 659 (2d Cir. 1991);
Callaway, 524 F.2d at 90 (holding that a federal agency need not "consider other projects so far
removed in time or distance from its own that the interrelationship, if any, between them is
unknown or speculative."); Pogliani v. U.S. Army Corps ofEngr's, No. 1:01-cv-0951, 2007 WL
983549, at* 21, 22 (N.D.N.Y. Mar. 28, 2007), and plaintiffs have not demonstrated that any of
the purportedly omitted projects or actions were sufficiently imminent or inevitable, or even
"extremely likely," Callaway, 524 F.2d at 88, as to be considered "reasonably foreseeable." See,
~

Airport Impact Relief, Inc. v. Wyckle, 192 F .3d 197, 206-07 ( 1" Cir. 1999) (holding that

speculative and contingent actions are not "reasonably foreseeable" within the meaning of
NEPA). Specifically, the Fire Island Inlet to Montauk Point, NY project (FIMP) was originally
authorized in the River and Harbor Act of 1960, (EA at 10), and has been undergoing a
"Reformulation Study" since 1994. (IQ, at I 0, 12). While the Reformulation Study proceeds,
three (3) Interim Plans have been developed, (ill, at 12), and the Army Corps sufficiently
considered the cumulative effects of those Interim Plans in the EA. (IQ, at 101-02). There is no
indication in the administrative record that the Reformulation Study is near completion or that
implementation of the FIMP is imminent or extremely likely. Similarly, there is no indication
that any beach stabilization activity "currently [being] evaluat[ed) at Robert Moses State Park on
Fire Island" by "other agencies such as the department of Housing and Urban Development,"
76

(Chang Decl., Ex. 8), are sufficiently imminent or inevitable as to be considered "reasonably
foreseeable."
Moreover, contrary to plaintiff's contention, the EA considers, inter alia, the cumulative
effects oflocal "[p ]eriodic beach fills," (Plf. Mem. at 5 I) (brackets in original). (See EA at 101
("Suffolk County periodically dredges local channels for maintenance purposes.

* • • The

dredging takes place mostly in the bays and not on the open Atlantic Ocean coast. The dredged
materials are used as beach fill whenever the materials are suitable, and the placement is cost
effective.")
In addition, plaintiff has not demonstrated that the Army Corps's cumulative effects
analysis is inadequate. To the contrary, the Army Corps furnished sufficient information on, and
analysis of, the cumulative effects of the past, present and reasonably foreseeable future actions
within the vicinity of the Project by, inter alia, disclosing other sufficiently imminent or
inevitable planned or proposed beach stabilization actions in proximity to the Project area and
discussing and analyzing their combined envirorunental impacts with the Project.
Since plaintiff has not demonstrated that the Army Corps failed to consider the
cumulative effects of any past, present of "reasonably foreseeable," i.e., imminent or inevitable,
future actions occurring in the vicinity of the Project, or that the Army Corps' consideration of
the cumulative effects of the actions identified in the EA is inadequate, it has not established a
likelihood of success on the merits of its AP A claim against the Army Corps alleging that the
EA's cumulative impact analysis was arbitrary and capricious.

77

4.

The FONSI

"If, pursuant to the EA, the agency concludes that no EIS is required, it must provide its
reasons in a FONSI." Brodskv. 704 F.3d at 120; see also 40 C.F.R. § 1501.4(e) ("In determining
whether to prepare an [EIS] the Federal agency shall*** [p]repare a [FONSI] * * *, ifthe
agency determines on the basis of the [EA] not to prepare a statement."); Coal. for Responsible
Growth, 485 F. App'x at 474 ("if the agency finds that an EIS is not necessary, the agency will
issue a [FONSI].") A FONSI is defined in the regulations as:
"A document by a Federal agency briefly presenting the reasons
why an action * * * will not have a significant effect on the human
environment and for which an [EIS] therefore will not be prepared.
It shall include the [EA] or a summary of it and shall note any
other environmental documents related to it(§ 1501.7(a)(5)). If the
[EA] is included, the [FONSI] need not repeat any of the
discussion in the [EA] but may incorporate it by reference."
40 C.F.R. § 1508.13. "The agency shall make the [FONSI] available to the affected public as
specified in§ 1506.6." 40 C.F.R. § 1501.4(e)(l). "The decision not to prepare an EIS is left to
the informed discretion of the agency proposing the action or project." Slater, 135 F.3d at 571
(quotations and citation omitted); see also Hoffman, 132 F.3d at 14 ("[W]hether a particular
agency action will have a 'significant' effect on the environment is a substantive question left to
the informed discretion of the agency proposing the action."); Gorsuch, 718 F.2d at 34 ("The
issue of whether a particular agency's action will have a 'significant' effect on the environment is
a substantive issue which has traditionally been left to the informed discretion of the agency
proposing the action or project.")
In Hoffman, the Second Circuit held that:
"in reviewing an administrative decision not to issue an EIS, a
78

federal court must undertake a two-step analysis. First, [the court]
must consider whether the agency took a 'hard look' at the possible
effects of the proposed action. * * * Second, if the agency has
taken a 'hard look,' [the court] must ask whether the agency's
decision was arbitrary and capricious."
132 F.3d at 14; see also Friends ofOmpompanoosuc, 968 F.2d at 1556 ("Once an agency has
made a decision subject to NEPA's procedural requirements, the only role for a court is to ensure
that the agency has considered the environmental consequences.

* * * Accordingly, a reviewing

court must ensure that [the federal agency] has taken a 'hard look' at the environmental
consequences and assess whether the agency has convincingly documented its determination of
no significant impact." (quotations, alterations and citations omitted)). "The court's "inquiry
must be 'searching and careful,' although the ultimate scope of judicial review is narrow."
Hoffman, 132 F .3d at 14 (quoting Marsh, 490 U.S. at 378, I 09 S. Ct. 1851 ). "The judiciary must
not inject itself into an area where the choice of action to be taken is one confided by Congress to
the executive branch." Id. Plaintiff bears the burden of showing that the Project will
significantly affect the physical environment and, thus, that the Army Corps's decision to issue
an EA and FONSI was arbitrary and capricious. See Countv of Seneca v. Cheney, 12 F.3d 8, 12
(2d Cir. 1993).
"Significantly as used in NEPA requires considerations of both context and intensity(.]"
40 C.P.R. § 1508.27; see also Countv

ofSenec<~,

12 F.3d at 12 ("Under NEPA, an EIS or EA is

not required unless the contemplated action will affect the environment 'in a significant manner
or to a significant extent,' with significance defined in terms of both context and intensity.")
"(T]he significance of an action must be analyzed in several contexts such as society as a whole
(human, national), the affected region, the affected interests, and the locality(,]
79

* • * [and] varies

with the setting of the proposed action." 40 C.F.R. § 1508.27(a). "Both short- and long-term
effects are relevant." Id.
Intensity "refers to the severity of impact." 40 C.F.R.§ 1508.27(b). NEPA regulations
provide that the following ten (1 0) factors "should be considered in evaluating intensity:
(!)

Impacts that may be both beneficial and adverse.** *[;]

(2)

The degree to which the proposed action affects public
health or safety[;]

(3)

Unique characteristics of the geographic area such as
proximity to historic or cultural resources, park lands,
prime farmlands, wetlands, wild and scenic rivers, or
ecologically critical areas[;]

(4)

The degree to which the effects on the quality of the human
environment are likely to be highly controversial[;]

( 5)

The degree to which the possible effects on the human
environment are highly uncertain or involve unique or
unknown risks[;]

(6)

The degree to which the action may establish a precedent
for future actions with significant effects or represents a
decision in principle about a future consideration[;]

(7)

Whether the action is related to other actions with
individually insignificant but cumulatively significant
impactsO * * * [;]

(8)

The degree to which the action may adversely affect
districts, sites, highways, structures, or objects listed in or
eligible for listing in the National Register of Historic
Places or may cause loss or destruction of significant
scientific, cultural, or historical resources[;]

(9)

The degree to which the action may adversely affect an
endangered or threatened species or its habitat that has been
determined to be critical under the [ESA] ***[;][and]

(10)

Whether the action threatens a violation of Federal, State,
80

or local law or requirements imposed for the protection of
the environment."
40 C.F.R. § 1508.27(b).
"Affecting" is defined in NEP A's implementing regulations to mean "will or may have an
effect on." 40 C.F.R. § 1508.3
Plaintiff contends that the FONSI is arbitrary and capricious because four (4) of the ten
(10) intensity factors "weigh in favor of a finding that the[] [P]roject will have a significant
impact on the environment," (Plf. Mem. at 53), thus, requiring an EIS. Specifically, plaintiff
contends that an EIS is required because: (I) that the Project will adversely affect the piping
plover,~

40 C. F. R. § 1508.27(b)(9); (2) several impacts of the Project are uncertain or

unknown, see id. § 1508.27(b)(5); (3) the Project is likely to "establish a precedent for future
actions with significant effects," id. § 1508.27(b)(6); and (4) "it is 'reasonable to anticipate a
cumulatively significant impact on the environment' from the [] [P]roject and other similar beach
engineering projects in the area," (Plf. Mem. at 55) (quoting 40 C.F.R. § 1508.27(b)(7)).
An action is not necessarily "significant," thus requiring an EIS, whenever one (I) of the
ten (10) intensity factors are met. To the contrary, "[w]hile the ten [intensity] factors may show
that the [agency] could have prepared an [EIS], they do not show that the [agency] acted
arbitrarily and capriciously in not completing one." Klein v. U.S. Dep't of Energy, 753 F.3d 576,
584 (6th Cir. 2014) (emphasis in original); see also Coliseum Square Ass'n, Inc. v. Jackson, 465
F.3d 215,240 (5'h Cir. 2006) ("[T]he listed factors do not constitute categorical rules such that
their presence or absence means an impact is per se significant.") But see Ocean Advocates v.
U.S. Army Corns ofEng'rs, 402 F.3d 846, 865 (9'h Cir. 2005) ("[O]ne of the[] factors may be
sufficient to require preparation of an EIS in appropriate circumstances.")
81

The Army Corps completed a thorough EA of the Project, considered all of the
environmental effects mentioned in the intensity factors, and reasonably described the
environmental impacts it finds to be "not significant" and NEPA "requires no more." Klein, 753
F.3d at 585; see also Coliseum Sguare, 465 F.3d at 240 (holding that as long as the agency has
addressed and reasonably evaluated each intensity factor, it has complied with NEPA).
Moreover, as set forth above, the Army Corps's analysis of cumulative impacts in the EA
is adequate and, thus, plaintiff cannot demonstrate that that intensity factor, 40 C.F.R. §
I 508.27(7), requires an EIS. Moreover, since the EA was developed "to address the particular
circumstances and problems encountered in and around [Fire Island]," Town of Cave Creek.
Ariz. v. Fed. Aviation Admin., 325 F.3d 320, 332 (D.C. Cir. 2003), it creates no binding
precedent. See,~ Barnes v. U.S. Dep't ofTransp., 655 F.3d 1124, 1140 (9'" Cir. 2011) ("EAS
are usually highly specific to the project and locale, thus creating no binding precedent."); Town
of Cave Creek, 325 F.3d at 332 (finding that approval of the project created no binding
precedent, as it was developed "to address the particular circumstances and problems
encountered in and around [the Project area].")
Furthermore, the "regulations do not anticipate the need for an EIS anytime there is some
uncertainty, but only if the effects of the project are 'highly' uncertain." In Defense of Animals.
Dreamcatcher Wild Horse and Burro Sanctuary v. U.S. Dep't oflnterior, 751 F.3d 1054, 1070
(9'" Cir. 2014). Plaintiff does not allege, much less demonstrate, that the effects of the Project are

"highly uncertain," only that "several impacts" and the cumulative impacts of several other
projects in the area are "uncertain." (Plf. Mem. at 53). Under the circumstances of this case, the
uncertainty of some of the Project's effects, alone, is insufficient to require an EIS.
82

See,~

Greater Yellowstone Coal. v. Flowers, 359 FJd 1257, 1276 (IO'h Cir. 2004) (finding that where
the uncertainty of the effects ofthe project were due to the unpredictability of, inter alia, the
species, as opposed to a "lack of thoroughness in investigating potential impacts," "further
assessment of impacts in an EIS before the project's implementation is unlikely to be
productive").
In addition, "NEP A regulations direct the agency to consider the degree of adverse effect
on a species, not the impact on individuals ofthat species." Environmental Prot. Info. Ctr. v.
U.S. Forest Serv. 451 F.3d 1005, 1010-11 (9'h Cir. 2006). Therefore, although the Project may
effect individual pairs of piping plover, estimated by the FWS to be approximately one (1) pair

per year of the Project, it was not arbitrary and capricious for the Army Corps to find that the
Project will not cause a significant adverse effect on the species, particularly in light of the
nondiscretionary conservation measures provided in the EA.
"When the adequacy of proposed mitigation measures is supported by substantial
evidence, the agency may use those measures as a mechanism to reduce environmental impacts
below the level of significance that would require an EIS." Hoffman, 132 F .3d at 17; see also
Friends ofOmpompanoosuc, 968 F.2d at 1556-57. "[M]itigation measures have been found to
be sufficiently supported when based on studies conducted by the agency,

* * * or when they are

likely to be adequately policed***." Hoffman, 132 FJd at 17 (citations omitted).
Since the mitigation measures in the EA are nondiscretionary and include, inter alia, a
program to monitor and ensure their effectiveness, they are supported by substantial evidence?0
20

Moreover, the Biological Opinion requires the Army Corps to cease operations and
reinitiate consultation to review those measures, and the need for their possible modification, in
the event the level of incidental take is exceeded.
83

See, u

Hoffman, 132 F .3d at 17 ("[H]ad [the mitigation measure] included a program to

monitor and ensure its effectiveness, there would then have been substantial evidence to support
it."); Abenaki Nation ofMississquoi v. Hughes, 805 F. Supp. 234,239 n. 9 (D. Vt. 1992), aff'd,
990 F.2d 729 (2d Cir. 1993) (finding the efficacy of the proposed mitigation measures to be
assured because they were included as mandatory conditions and they required the
implementation of a detailed plan to monitor the effects of the proposed action; the monitoring of
the mitigation efforts to ensure their effectiveness; and the implementation of an alternative plan
should the proposed mitigation efforts not be effective); Pogliani, 2007 WL 983549, at* 16
(accord). Accordingly, the Army Corps properly relied upon those measures in reducing the
environmental impacts of the Project below the level of significance and issuing a FONSI. Since
plaintiff has not demonstrated "that there is a substantial possibility that the [Project, including
the mitigation measures] may have a significant impact on the environment * * *[,]" Hoffman,
132 F.3d at 18, it has not demonstrated a likelihood of success on the merits of its APA claim
against the Army Corps challenging its issuance of a FONSI?'

21

Since plaintiff has not demonstrated a likelihood of success on the merits of any of its
claims against defendants, it is unnecessary to consider the "irreparable injury" and "public
interest" prongs of a preliminary injunction motion. In light of this determination: (I)
defendants' motion pursuant to Rule 65(b)(4) to dissolve the TRO is denied as moot, since the
TRO expires by operation of law upon determination of the motion for a preliminary injunction;
(2) plaintiff's cross motion to strike certain paragraphs and exhibits of the Amanat declaration is
likewise denied as moot; and (3) the FILPS's motion for leave to file a brief amicus curiae is
denied, since its proposed brief addresses only the "balance of hardships" prong, which is
inapplicable to this case, see Otoe-Missouria Tribe,- F.3d - , 2014 WL 4900363, and the
"public interest" prong, which is unnecessary to consider, of a motion for a preliminary
injunction.
84

III.

CONCLUSION
For the foregoing reasons, plaintiffs motion for a preliminary injunction pursuant to Rule

65 of the Federal Rules of Civil Procedure is denied; defendants' motion pursuant to Rule
65(b)(4) to dissolve the TROis denied and plaintiffs cross motion to strike certain paragraphs
and exhibits of the Amanat declaration are denied as moot; and FILPS' s motion for leave to file a
brief amicus curiae is denied.
SO ORDERED.

s/ Sandra J. Feuerstein
Sanrlra J. Feuers&?n
United States District Judge
Dated: October 17, 2014
Central Islip, New York

85