['PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY v. BROMWICH']

• Court: District Court, District of Columbia
• Decided: March 14, 2014
• Docket: Civil Action No. 2010-1067
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) PUBLIC EMPLOYEES FOR ) ENVIRONMENTAL RESPONSBILITY, ) et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 10-1067 (RBW) (DAR) ) TOMMY P. BEAUDREAU, et al., 1 ) Consolidated with: ) Defendants, ) Civil Action No. 10-1073 ) Civil Action No. 10-1079 CAPE WIND ASSOCIATES, LLC, ) Civil Action No. 10-1238 ) Intervenor. ) ____________________________________) ) ALLIANCE TO PROTECT ) NANTUCKET SOUND, et al., ) ) Plaintiffs, ) ) v. ) ) SALLY JEWELL, et al., ) ) Defendants, ) ) CAPE WIND ASSOCIATES, LLC, ) ) Intervenor. ) ____________________________________) ) TOWN OF BARNSTABLE, ) MASSACHUSETTS, ) ) Plaintiff, ) ) v. )

1 Individuals sued in their official capacity have been replaced in the case caption and throughout this memorandum opinion in accordance with Federal Rule of Civil Procedure 25. ) SALLY JEWELL, et al., ) ) Defendants, ) ) CAPE WIND ASSOCIATES, LLC, ) ) Intervenor. ) ____________________________________) ) THE WAMPANOAG TRIBE OF GAY ) HEAD (AQUINNAH) ) ) Plaintiff, ) ) v. ) ) TOMMY P. BEAUDREAU, et al., ) ) Defendants, ) ) CAPE WIND ASSOCIATES, LLC, ) ) Intervenor. ) ____________________________________)

MEMORANDUM OPINION

This consolidated case comprises four sets of interrelated claims concerning several

administrative decisions made by federal agencies approving the construction of various aspects

of an offshore wind energy project in Nantucket Sound, which is the first project of its kind in

the United States. First, the Public Employees for Environmental Responsibility (“PEER”), the

Cetacean Society International, the Lower Laguna Madre Foundation, Californians for

Renewable Energy, Three Bays Preservation, the Alliance to Protect Nantucket Sound, and

several individuals 2 (collectively, the “PEER plaintiffs”) allege that defendants Tommy

2 The individual plaintiffs are Cindy Lowry of Portland, Maine; Barbara Durkin of Northboro, Massachusetts; Martha Powers of West Yarmouth, Massachusetts; and Richard Largay of Cummaquid, Massachusetts.

2 Beaudreau, the Director of the United States Bureau of Ocean Energy Management (“BOEM”); 3

Sally Jewell, the Secretary of the United States Department of the Interior; Daniel Ashe, the

Director of the United States Fish and Wildlife Service (“FWS”); Penny Pritzker, the Secretary

of the United States Department of Commerce; Eileen Sobeck, the Assistant Administrator of the

National Marine Fisheries Service (“NMFS”); and Lieutenant General Thomas P. Bostick, the

United States Army Chief of Engineers and Commanding General of the United States Army

Corps of Engineers (“Corps of Engineers” or “Corps”) have violated the Administrative

Procedure Act (“APA”), 5 U.S.C. § 701 (2006); the Endangered Species Act (“ESA”), 16 U.S.C.

§§ 1531-1544 (2006), the Migratory Bird Treaty Act, 16 U.S.C. § 703 (2006); and the National

Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370h (2006). Second Amended

Complaint for Declaratory and Injunctive Relief, ECF No. 47, (“PEER Compl.”) ¶¶ 1, 97-111.

Second, the Town of Barnstable, Massachusetts, alleges that Secretary Jewell; the United States

Department of the Interior; the BOEM; Director Beaudreau; Admiral Robert J. Papp, Jr., the

Commandant of the United States Coast Guard; the United States Coast Guard; Lieutenant

General Bostick; and the Corps of Engineers have violated the APA; the Outer Continental Shelf

Lands Act (“Shelf Lands Act”), as amended, 43 U.S.C. §§ 1331-1356a (2012); the NEPA; the

Coast Guard and Maritime Transportation Act of 2006, Pub. L. No. 109-241, 120 Stat. 516; the

3 As explained by the Court of Federal Claims,

In May 2010, the Secretary of the Interior announced that [the Minerals Management Service (“MMS”)] would be split into three separate agencies: the Bureau of Safety and Environmental Enforcement (BSEE), the Bureau of Ocean Energy Management (BOEM), and the Office of Natural Resources Revenue (ONRR). In June 2010, MMS was renamed [the Bureau of Ocean Energy Management, Regulation and Enforcement (“BOEMRE”)]. The revenue-collection functions of BOEMRE were transferred to ONRR in October 2010, and BOEMRE was then divided into two new agencies, BSEE and BOEM, in October 2011.

Century Exploration New Orleans, LLC v. United States, 110 Fed. Cl. 148, 154 n.7 (2013) (citations omitted). For the sake of clarity, this Court will refer throughout this memorandum opinion to the MMS and the BOEMRE by the Bureau’s current name: the BOEM.

3 Clean Water Act, 33 U.S.C. § 1344 (2006); and the Rivers and Harbors Act, 33 U.S.C. § 403

(2006). First Amended Complaint for Declaratory and Injunctive Relief, ECF No. 68

(“Barnstable Compl.”) ¶¶ 1, 175-225. Third, the Alliance to Protect Nantucket Sound and

several individuals 4 (collectively, the “Alliance plaintiffs”) allege that Secretary Jewell; the

United States Department of the Interior; Director Beaudreau; the BOEM; Admiral Papp; the

United States Coast Guard; Lieutenant General Bostick; and the Corps of Engineers violated the

APA; the NEPA; the Energy Policy Act of 2005, Pub. L. No. 109-58, § 388(a), 119 Stat. 594,

744-46 (codified at 43 U.S.C. § 1337(p) (2006)) (amending the Shelf Lands Act); the Coast

Guard and Maritime Transportation Act of 2006; the National Historic Preservation Act

(“Preservation Act”), 16 U.S.C. § 470f (2006); the Clean Water Act; and the Rivers and Harbors

Act. First Amended Complaint for Declaratory and Injunctive Relief, ECF No. 69 (“Alliance

Compl.”) ¶¶ 1, 151-93. Finally, the Wampanoag Tribe of Gay Head (Aquinnah) alleges that

Director Beaudreau; Secretary Jewell; and the BOEM 5 violated the Preservation Act; the NEPA;

and the APA. Complaint for Declaratory and Injunctive Relief, 11-cv-1238, ECF No. 1

(“Wampanoag Compl.”) ¶¶ 1, 127-43.

Currently before the Court are three sets of cross-motions for summary judgment, as well

as the Plaintiffs’ Rule 56(e) Motion for Discovery Necessary to Explain Defendants’ Citation to

Documents Withheld as “Deliberative” and Other Extra-Record Assertions or, in the Alternative,

4 The individual plaintiffs are Ron Borjeson, Jeff Good, and James Keding of Plymouth, Massachusetts; Neil Good and Robert Bussiere of Mashpee, Massachusetts; Cameron Dawson of East Falmouth, Massachusetts; Patricia J. Dineen and David Moriarty of West Falmouth, Massachusetts; William H. Rypka of Sandwich, Massachusetts; Richard Klein and Pauline K. Klein of Yorktown Heights, New York; Heather Rockwell of Marstons Mills, Massachusetts; Barbara Jean Pennick of Marble Head, Massachusetts; Lou Gonzaga of Barnstable, Massachusetts; Frank Caruso of Forestdale, Massachusetts; James R. Powell of West Tisbury, Massachusetts; Christopher Birdsey of Hyannis, Massachusetts; and Crocker Snow, Jr. of Ipswich, Massachusetts. 5 For ease of reference, the Court refers to all the federal officials and agencies collectively as the “federal defendants.”

4 to Strike, ECF No. 316 (“Pls.’ 56(e) Mot.”). Upon careful consideration of the parties’

submissions 6 and the several voluminous administrative records in this case, the Court grants

6 In addition to those documents already identified, the Court considered the following filings made by the parties: (1) the PEER et al. Plaintiffs’ Memorandum in Support of Their Motion for Summary Judgment on Their Claims Under the Endangered Species Act and Migratory Bird Treaty Act, ECF No. 171 (“Pls.’ ESA/MBTA Mem.”); (2) the Federal Defendants’ Cross-Motion for Summary Judgment and Opposition to PEER Plaintiffs’ Motion for Summary Judgment, ECF No. 205 (“Fed. Defs.’ ESA/MBTA Mem.”); (3) the Combined Memorandum of Law in Support of Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment and in Opposition to the PEER et al. Plaintiffs’ Motion for Summary Judgment, ECF Nos. 203, 204 (“Int. Def.’s ESA/MBTA Mem.”); (4) the PEER et al. Plaintiffs’ Memorandum in Opposition to Federal Defendants’ and Intervenor Cape Wind Associates LLC’s Motions for Summary Judgment, and Reply in Support of Their Motion for Summary Judgment, ECF Nos. 221, 222 (“Pls.’ ESA/MBTA Opp’n”); (5) the PEER et al. Plaintiffs’ Notice of Clarification, ECF No. 229; (6) the Federal Defendants’ Reply in Support of Their Cross-Motion for Summary Judgment, ECF No. 231 (“Fed. Defs.’ ESA/MBTA Reply”); (7) the Intervenor Cape Wind Associates LLC’s Reply in Support of Its Motion for Summary Judgment Regarding the PEER et al. Plaintiffs’ Claims, ECF No. 232 (“Int. Def.’s ESA/MBTA Reply”); (8) the Memorandum of Points and Authorities in Support of Plaintiff the Wampanoag Tribe of Gay Head (Aquinnah)’s Motion for Summary Judgment, ECF No. 177 (“Wampanoag Mem.”); (9) the Federal Defendants’ Memorandum in Opposition to Wampanoag Tribe of Gay Head (Aquinnah)’s Motion for Summary Judgment [ECF No. 177] and in Support of Federal Defendants’ Cross-Motion, ECF Nos. 208, 209 (“Fed. Defs.’ Wampanoag Mem.”); (10) the Combined Memorandum of Law in Support of Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment and in Opposition to the Wampanoag Tribe of Gay Head (Aquinnah)’s Motion for Summary Judgment, ECF Nos. 210, 211 (“Int. Def.’s Wampanoag Mem.”); (11) Plaintiff the Wampanoag Tribe of Gay Head (Aquinnah)’s Memorandum in Opposition to Federal Defendants’ and Intervenor Cape Wind Associates LLC’s Motions for Summary Judgment, and Reply in Support of Their Motion for Summary Judgment, ECF No. 223 (“Wampanoag Opp’n”); (12) the Federal Defendants’ Reply in Support of Summary Judgment on Claims Brought by the Wampanoag Tribe of Gay Head (Aquinnah), ECF No. 226 (“Fed. Defs.’ Wampanoag Reply”); (13) the Reply in Support of Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment Against the Wampanoag Tribe of Gay Head (Aquinnah), ECF No. 228 (“Int. Def.’s Wampanoag Reply”); (14) the Plaintiffs’ Joint Motion for Summary Judgment on all Remaining Claims and Memorandum in Support of Motion for Summary Judgment, ECF No. 283 (“Pls.’ Remain Mem.”); (15) the Errata: Corrected Memorandum in Support of Motion for Summary Judgment, ECF No. 286; (16) the Federal Defendants’ Memorandum in Opposition to Plaintiffs Alliance to Protect Nantucket Sound et al.’s and Town of Barnstable’s Motions for Summary Judgment and in Support of Cross Motions for Summary Judgment, ECF Nos. 300, 301 (“Fed. Defs.’ Remain Mem.”); (17) the Combined Memorandum of Law in Support of Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment and in Opposition to Plaintiffs’ Joint Motion for Summary Judgment on all Remaining Claims, ECF Nos. 303, 304 (“Int. Def.’s Remain Mem.”); (18) the Plaintiffs’ Reply Memorandum of Law in Support of Their Motion for Summary Judgment, ECF No. 317 (“Pls.’ Remain Opp’n”); (19) the Federal Defendants’ Reply in Support of Motion for Summary Judgment on the Claims Brought by Plaintiffs Alliance to Protect Nantucket Sound et al. and Town of Barnstable, ECF No. 330 (“Fed. Defs.’ Remain Reply”); (20) the Reply in Support of Cape Wind Associates LLC’s Motion for Summary Judgment and in Opposition to Plaintiffs’ Joint Motion for Summary Judgment on all Remaining Claims, ECF No. 328 (“Int. Def.’s Remain Reply”); (21) the Errata: Corrected Reply in Support of Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment, ECF No. 329; (22) the Federal Defendants’ Opposition to Plaintiffs’ Rule 56(e) Motion for Discovery or, in the Alternative, to Strike, ECF No. 319 (“Fed. Defs.’ 56(e) Opp’n”); (23) Intervenor Cape Wind Associates LLC’s Opposition to Plaintiffs’ Rule 56(e) Motion for Discovery and Motion to Strike, ECF No. 320 (“Int. Def.’s 56(e) Opp’n”); (24) the Plaintiffs’ Reply to Defendants’ Oppositions to Plaintiffs’ Motion for Discovery or, in the Alternative, to Strike, ECF No. 321 (“Pls.’ 56(e) Reply”); (25) the Brief Amicus Curiae of American Bird Conservatory in Support of the PEER et al. Plaintiffs’ Motion for Summary Judgment, ECF No. 306; (26) the Amicus Curiae Brief of the National Trust for Historic Preservation in Support of the Joint Motion for Summary Judgment Filed by the Alliance to Protect Nantucket Sound, et al., ECF No. 307; (27) the [Proffered] Brief Amicus Curiae of Whale and Dolphin Conservation (North America), ECF No. 308; (28) the Amicus Curiae Brief of the Cape Cod Marine Trades (continued . . . )

5 partial summary judgment to each party as outlined below, and the Court further denies the

plaintiffs’ Rule 56(e) motion for additional discovery or, in the alternative, to strike.

I. BACKGROUND

An initial overview of several statutes is necessary to provide context for the plaintiffs’

claims in this litigation.

A. Statutory Background

1. The ESA

The ESA is “the most comprehensive legislation for the preservation of endangered

species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978).

Congress designed the ESA “to save from extinction species that the Secretary of the Interior

designates as endangered or threatened.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great

Or., 515 U.S. 687, 690 (1995). With the exception of certain insects, the ESA defines an

“endangered species” as “any species which is in danger of extinction throughout all or a

significant portion of its range.” 16 U.S.C. § 1532(6). A “threatened species” is defined as “any

species which is likely to become an endangered species within the foreseeable future throughout

all or a significant portion of its range.” Id. § 1532(20). The ESA generally prohibits the taking

of an endangered or threatened species, id. § 1538(a)(1)(B)-(C), and the term “take” is defined as

(. . . continued) Association, Inc. and Massachusetts Fishermen’s Partnership, Inc. in Support of a Selected Aspect of Plaintiffs’ Motion for Summary Judgment, ECF No. 309; (29) the Amicus Curiae Brief of the National Trust for Historic Preservation in Support of the Motion for Summary Judgment Filed by the Wampanoag Tribe of Gay Head (Aquinnah), ECF No. 186; (30) the Memorandum of the Conservation Law Foundation, the Natural Resources Defense Council, and Mass Audubon in Support of Defendants’ Motions for Summary Judgment and in Opposition to PEER et al. Plaintiffs’ Motion for Summary Judgment on Their Claims Under the Endangered Species Act and Migratory Bird Treaty Act and in Opposition to the Wampanoag Tribe of Gay Head (Aquinnah) Motion for Summary Judgment, ECF No. 212; and (31) the Memorandum of the Conservation Law Foundation, the Natural Resources Defense Council, and Mass Audubon in Support of Defendants’ Motion for Summary Judgment and in Opposition to Plaintiffs’ Motion for Summary Judgment on all Remaining Claims, ECF No. 302; as well as the parties’ notices of supplemental authority and replies thereto, ECF Nos. 227, 298, 305, 358, 360, 363, 364, 365, 367, 368, and 369.

6 “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to

engage in any such conduct,” id. § 1532(19). However, the Secretary of the Interior or the

Secretary of Commerce “may permit,” under certain circumstances, “any taking otherwise

prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the

purpose of, the carrying out of an otherwise lawful activity.” Id. § 1539(a)(1)(B).

The Secretary of the Interior and the Secretary of Commerce have delegated the authority

to administer the ESA to the FWS and the NMFS. 50 C.F.R. § 402.01(b). Section 7(a)(2) of the

ESA mandates that

[e]ach Federal agency shall, in consultation with and with the assistance of the [FWS or NMFS, as appropriate], insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species . . . .

16 U.S.C. § 1536(a)(2). In carrying out their duties under § 7, agencies “shall use the best

scientific and commercial data available.” Id.

An agency action “jeopardize[s] the continued existence” of a species where the action

“reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of

both the survival and recovery of a listed species in the wild by reducing the reproduction,

numbers, or distribution of that species.” 50 C.F.R. § 402.02. Accordingly, “[e]ach Federal

agency shall review its actions at the earliest possible time to determine whether any action may

affect listed species,” and “[i]f such a determination is made, formal consultation” with the FWS

and/or the NMFS is required. Id. § 402.14(a). The formal consultation process requires the

FWS and/or the NMFS to review the proposed agency action and prepare a “biological opinion”

that includes “[a] detailed discussion of the effects of the action on listed species,” and also

render an “opinion on whether the action is likely to jeopardize the continued existence of a

listed species.” Id. §§ 402.14(h)(2)-(3). Where the biological opinion concludes that an agency

7 action may result in the incidental taking of a listed species, the FWS and/or NMFS must

“provide with the biological opinion a statement concerning incidental take that” specifies both

“the amount or extent[] of such incidental taking on the species,” as well as “terms and

conditions . . . that must be complied with by the Federal agency or any applicant to implement”

certain specified “reasonable and prudent measures” designed to minimize the impact of the

incidental taking. Id. §§ 402.14(i)(1)(i)-(ii), (iv); see also id. § 402.14(g)(7). Any such

“[r]easonable and prudent measures, along with the terms and conditions that implement them,

cannot alter the basic design, location, scope, duration, or timing of the action and may involve

only minor changes.” Id. § 402.14(i)(2).

2. The Migratory Bird Treaty Act

The Migratory Bird Treaty Act, unless otherwise “permitted by regulations,” makes it

“unlawful at any time, by any means or in any manner, to . . . take[7] . . . kill, [or] attempt to take

. . . or kill . . . any migratory bird, any part, nest, or egg of any such bird . . . included in” certain

bilateral treaties 8 adopted for the protection of migratory birds. 16 U.S.C. § 703(a). Violations

of the Act can result in criminal sanctions. See id. §§ 706-707. However, “the Secretary of the

Interior is authorized,” upon consideration of certain factors, “to determine when, to what extent,

if at all, and by what means . . . to allow . . . [the] taking . . . [or] killing” of protected migratory

birds. Id. § 704(a); see also 50 C.F.R. § 21.11 (addressing the requirement for permits to, among

other things, take or kill migratory birds). The FWS, which implements and enforces the

7 The term “take” is not defined in the Migratory Bird Treaty Act. However, the implementing regulations of the Act provide that, among other things, “[t]ake means to . . . wound[] [or] kill.” 50 C.F.R. § 10.12. 8 The treaties comprise bilateral conventions between the United States and Great Britain; the United States and Mexico; the United States and Japan; and the United States and Russia, each concerning the protection of migratory birds. 16 U.S.C. § 703(a); see also 50 C.F.R. § 10.13(a).

8 Migratory Bird Treaty Act on behalf of the Secretary of the Interior, 50 C.F.R. § 10.1, maintains

a list of protected migratory birds as outlined in the Act’s implementing regulations, id. § 10.13.

In addition to the protections outlined in the Migratory Bird Treaty Act,

[o]n January 10, 2001, President Clinton signed Executive Order (EO) 13186, [which addresses the] “Responsibilities of Federal Agencies to Protect Migratory Birds”. One of the requirements of E.O. 13186 is that each Federal agency taking actions that have, or are likely to have, a measurable negative effect on migratory bird populations is directed to develop and implement a [Memorandum of Understanding] with the FWS that shall promote the conservation of migratory bird populations.

77 Fed. Reg. 60,381, 60,382 (Oct. 3, 2012); see also Exec. Order No. 13,186, 66 Fed. Reg. 3853

(Jan. 10, 2001), reprinted in 16 U.S.C. § 701 app.

3. The NEPA

Under the NEPA, federal agencies must, “‘to the fullest extent possible[,]’ . . . prepare an

environmental impact statement (EIS) for ‘every . . . major Federal actio[n] significantly

affecting the quality of the human environment.’” 9 Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7, 15-16 (2008) (quoting 42 U.S.C. § 4332(2)(C)) (alterations in original). “An agency

is not required to prepare a full EIS if it determines—based on a shorter environmental

assessment (EA)—that the proposed action will not have a significant impact on the

environment.” Id. at 16 (citing 40 C.F.R. §§ 1508.9(a), 1508.13). The NEPA established the

Council on Environmental Quality, see 42 U.S.C. § 4342, which has the “‘authority to issue

9 The regulations interpreting the NEPA provide:

Human environment shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment. . . . This means that economic or social effects are not intended by themselves to require preparation of an environmental impact statement. When an environmental impact statement is prepared and economic or social and natural or physical environmental effects are interrelated, then the environmental impact statement will discuss all of these effects on the human environment.

40 C.F.R. § 1508.14.

9 regulations interpreting’” the Act, New York v. Nuclear Regulatory Comm’n, 681 F.3d 471, 476

(D.C. Cir. 2012) (quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004)); see

generally 40 C.F.R. pts. 1500-1508 (regulations interpreting the NEPA).

4. The Preservation Act

Congress enacted the Preservation Act in 1966, finding that the preservation of the

nation’s “heritage is in the public interest so that its vital legacy of cultural, educational,

aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future

generations of Americans.” 16 U.S.C. § 470(b)(4). Under the Preservation Act, Congress

authorized the Secretary of the Interior to create and “maintain a National Register of Historic

Places composed of districts, sites, buildings, structures, and objects significant in American

history, architecture, archeology, engineering, and culture.” Id. § 470a(a)(1)(A).

To protect identified historic sites, Section 106 of the Preservation Act provides that a

federal agency undertaking action on a historic site or licensing such an undertaking must, prior

to the

approval of the expenditure of any Federal funds on the undertaking . . . [,] take into account the effect of the undertaking on any district, site, building, structure or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation . . . a reasonable opportunity to comment with regard to such undertaking.

Id. § 470f. The Advisory Council has promulgated regulations that set forth the procedures that

federal agencies must follow to comply with Section 106. Id. § 470s. The regulations in turn

require that federal agencies engage in “consultation . . . [with] other parties with an interest in

the effects of the undertaking on historic properties,” 36 C.F.R. § 800.1(a), including “any Indian

Tribe . . . that attaches religious and cultural significance to” properties included on the National

10 Register as a result of their “traditional religious and cultural importance to [the] Indian Tribe,”

16 U.S.C. § 470a(d)(6); see also 36 C.F.R. §§ 800.2(c), 800.3(f)(2).

The consultation process requires federal agencies to: (1) identify the historic properties

that might be affected by the undertaking, 36 C.F.R. § 800.4; (2) evaluate the impact of any

adverse effects on those properties, id. § 800.5; and (3) “develop and evaluate alternatives or

modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on”

those properties, id. § 800.6; see also Corridor H Alts., Inc v. Slater, 166 F.3d 368, 370 (D.C.

Cir. 1999). When the required consultation has concluded, the agency and consulting parties

may sign a memorandum of agreement that “shall govern the undertaking and all of its parts.”

See § 800.6(c). The memorandum of agreement also “evidences the agency[’s] . . . compliance

with [S]ection 106.” Id. However, if “[a]fter consulting to resolve adverse effects pursuant to 36

C.F.R. § 800.6(b)(2), the agency . . . may determine that further consultation will not be

productive and terminate consultation. Any party that terminates consultation shall notify the

other consulting parties and provide them the reasons for terminating in writing.” Id. § 800.7(a).

Where the agency decides to terminate consultation, the agency “shall request that the

[Advisory] Council” provide comments and shall also “notify all consulting parties of the

request.” Id. § 800.7(a)(1). “The head of the agency shall take into account the [Advisory]

Council’s comments in reaching a final decision on the undertaking.” Id. § 800.7(c)(4).

5. The Shelf Lands Act

The Shelf Lands Act accords the United States jurisdiction over the “the outer

Continental Shelf,” 42 U.S.C. § 1333(a), which is defined as “all submerged lands lying seaward

11 and outside the area of lands beneath navigable waters as defined in section 1301 of this title,[10]

and of which the subsoil and seabed appertain to the United States and are subject to its

jurisdiction and control.” 43 U.S.C. § 1331(a). The Shelf Lands Act provides that the laws of

the United States apply not only to the outer Continental Shelf, but also “to the subsoil and

seabed of the outer Continental Shelf and to all . . . installations and other devices permanently or

temporarily attached to the seabed, which may be erected thereon.” Id. § 1333(a). As amended

by the Energy Policy Act of 2005, Pub. L. No. 109-58, 110 Stat. 594, the Shelf Lands Act

provides that “[t]he Secretary [of the Interior], in consultation with the Secretary of the

Department in which the Coast Guard is operating and other relevant departments and agencies

of the Federal Government, may grant a lease, easement, or right-of-way on the outer

Continental Shelf for activities” that, among other things, “produce or support production,

transportation, or transmission of energy from sources other than oil and gas,” including

renewable energy sources. Id. § 1337(p)(1)(C); see 30 C.F.R. §§ 585.100-.101. “The Secretary

of the Interior delegated to the Bureau of Ocean Energy Management (BOEM) the authority to

regulate activities under” the Shelf Lands Act concerning such activities. 30 C.F.R. § 585.100.

See generally id. §§ 585.100-.1019 (regulations concerning leases, easements, and rights-of-way

for non-gas and non-oil related activities on the outer Continental Shelf).

6. The Coast Guard and Maritime Transportation Act of 2006

The Coast Guard Maritime Transportation Act of 2006, which was enacted on July 11,

2006, imposes specific duties on the Commandant of the Coast Guard with respect to offshore

wind energy projects in the Nantucket Sound. See Pub. L. No. 109-241, § 414, 120 Stat. 516,

540. Section 414 of the Act reads in its entirety:

10 The Shelf Lands Act generally defines “lands beneath navigable waters” as all underwater land extending outward from the coastline of the United States that is subject to the laws of the United States. See 43 U.S.C. § 1301(a).

12 Sec. 414. Navigational Safety of Certain Facilities.

(a) Consideration of Alternatives.—In reviewing a lease, easement, or right-of- way for an offshore wind energy facility in Nantucket Sound under section 8(p) of the Outer Continental Shelf Lands Act (43 U.S.C. 1337(p)), not later than 60 days before the date established by the Secretary of the Interior for publication of a draft environmental impact statement, the Commandant of the Coast Guard shall specify the reasonable terms and conditions the Commandant determines to be necessary to provide for navigational safety with respect to the proposed lease, easement, or right-of-way and each alternative to the proposed lease, easement, or right-of-way considered by the Secretary. (b) Inclusion of Necessary Terms and Conditions.—In granting a lease, easement, or right-of-way for an offshore wind energy facility in Nantucket Sound under section 8(p) of the Outer Continental Shelf Lands Act (43 U.S.C. 1337(p)), the Secretary shall incorporate in the lease, easement, or right-of-way reasonable terms and conditions the Commandant determines to be necessary to provide for navigational safety.

Id. at 540.

B. Factual Background 11

At the center of this consolidated civil action is the Nantucket Sound (the “Sound”), a

body of water located off the coast of Massachusetts. See CW65034. The Sound serves many

functions, including the home to various endangered species, a commercial and recreational

waterway, and a source of cultural and religious identity. See CW65356, CW111969-78.

Intervenor-defendant Cape Wind, with the approval of the federal defendants, also seeks to make

the Sound the location of the nation’s first offshore wind energy project. See CW201584.

11 Three sets of administrative record documents were submitted to the Court—one for each set of cross-motions for summary judgment. See Notice of Submission of Jointly Prepared Appendix of Administrative Record Pursuant to Local Civil Rule 7(N), ECF No. 234 (index to administrative record concerning claims by the Wampanoag Tribe of Gay Head (Aquinnah)); Notice of Filing of Appendix, ECF No. 237 (index to administrative record concerning ESA and Migratory Bird Treaty Act claims); Notice of Filing of Appendix, ECF No. 333 (index to administrative record concerning plaintiffs’ remaining claims). For ease of reference, the Court refers in this Memorandum Opinion to the Bates numbers assigned to the administrative record documents as outlined in the index for each administrative record. The Bates numbers consist of alpha-numeric references. Bates numbers beginning with (1) “CW” refer to documents from the BOEM; (2) “FWS” refer to documents from the FWS; (3) “NMFS” refer to documents from the NMFS; and (4) “USCG” refer to documents from the Coast Guard.

13 1. The Cape Wind Project

The Cape Wind project has been described as “the first of its kind in the United States

and is one of the largest offshore wind projects in the world.” CW201584. Cape Wind “began

preliminary work on siting and designing a wind energy project in 2000,” NMFS1413, and

proposed an offshore wind energy park, to be located on the outer Continental Shelf on

Horseshoe Shoal 12 in the Sound, CW65037. As described in the Federal Register,

[t]he proposed wind park would consist of 130 offshore wind turbine generators arranged to maximize the park’s maximum potential electric output of approximately 454 megawatts. The wind-generated electricity from each of the turbines would be transmitted via a 33 kilovolt submarine transmission cable system to a centrally located electric service platform. This platform would transform and transmit electric power to the Cape Cod mainland (12+ miles) via two 115 kilovolt lines, where it would ultimately connect with the existing power grid.

71 Fed. Reg. 30,693, 30,693 (May 30, 2006); see also, e.g., NMFS1415-22 (providing a more

detailed description of the Cape Wind’s project proposal). Prior to its construction, and as

discussed below, the Cape Wind project was and is subject to several regulatory and

administrative procedures and approvals.

2. The Regulatory Approval Process

“In November 2001, [Cape Wind] filed a permit application with the [Corps of

Engineers], New England District, under section 10 of the Rivers and Harbors Act of 1899 . . . .”

71 Fed. Reg. at 30,693. The Corps issued a draft EIS in 2004. See CW142751. Upon the

passage of the Energy Policy Act of 2005, the BOEM took over “as a lead agency for

coordinating the permitting process with other Federal agencies.” 71 Fed. Reg. at 30,693;

12 A “shoal” is “a sandbank or sandbar that makes the water shallow.” See Merriam-Webster Dictionary, available at http://www.merriam-webster.com/dictionary/shoal (last visited Mar. 4, 2014).

14 CW111956. As outlined below, the BOEM subsequently initiated required consultation with

various agencies.

a. Formal Consultation Under Section 7 of the ESA

i. The FWS’s Biological Opinion and Incidental Take Statement

The BOEM consulted informally with the FWS from November 17, 2005, until May 19,

2008, when the BOEM requested initiation of formal consultation. See FWS92-96. The FWS

issued its biological opinion on November 21, 2008. See FWS1. The biological opinion “only

applies to the roseate tern and piping plover,” two types of migratory birds, “as listed species

under the ESA.” FWS3. The FWS reached the following conclusion:

After reviewing the current status of the Atlantic Coast piping plover and the northeastern population of the roseate tern, the environmental baseline for the action area, and all effects of the proposed Cape Wind Project, it is the Service’s biological opinion that the project is not likely to jeopardize the continued existence of these species. No critical habitat has been designated for the Atlantic Coast breeding ranges of these species; therefore, none will be affected.

FWS73. The FWS included with its biological opinion an incidental take statement authorizing

the taking of “four to five roseate terns per year (80-100 terns over the 20-year life of the

project)” and “a maximum of 10 piping plovers . . . over the life of the [project].” FWS75. With

respect to the taking of piping plovers, the FWS added:

Because the formulation of mortality estimates is very complex, new empirical information demonstrating one or more of the following circumstances will constitute new evidence that estimated take of piping plovers has been exceed:

1. Annual flights across the project area exceed the total number of pairs breeding in and north of the action area. This is equivalent to approximately 18% of migration flights by adults and young of the year (pairs x 5.5). 2. More than 20% of flights occur at rotor height. 3. Avoidance rates <0.95.

15 Id. The FWS also “estimate[d] that implementation of the Bird Island restoration project[13] will

offset any potential roseate tern mortality that may occur from the Cape Wind Project.” Id.

The incidental take statement included terms and conditions necessary to implement

reasonable and prudent measures pursuant to the ESA. See FWS75-78. Among these measures

was a discussion of an operational adjustment that the FWS had considered but ultimately

decided against:

The [FWS] . . . considered as a reasonable and prudent measure[] an operational adjustment to the wind facility that would require the temporary and seasonal shut down of the [wind turbine generators] through the feathering of the rotors. Feather of the rotors causes them to face the wind and stop spinning, and would reduce the risk of collision by roseate terns and, to a limited extent, migrating piping plovers transiting the Horseshoe Shoal project area. Although the [FWS] considered that result in this “operational adjustment” would be based on weather and day light parameters that reduce visibility, and would be limited in time to seasons when plovers and peak numbers of roseate terns are expected to be present (a few weeks in early to mid-May and a few weeks in late August to mid- September), it was determined by [the BOEM] and [Cape Wind] . . . to not be reasonable and prudent based on the following:

The operational adjustment (shut down of the turbine rotors to a neutral position) is not reasonable because it does not meet the [reasonable and prudent measure] regulatory definition as a “reasonable measure” as it modifies the scope of the project in a manner that is adverse to the project’s stated purpose and need, that is to make a substantial contribution to enhancing the region’s electrical reliability and achieving the renewable energy requirements under the Massachusetts and regional renewable portfolio standards. [The BOEM] considers that this may involve more than a “minor change” (50 C.F.R. § 402.14(i)(2)[)].

[The BOEM] has also determined that the [reasonable and prudent measure] is not reasonable because the uncertainty regarding the project’s ability to generate electricity during the two time frames (late April to mid-May and late August to mid-September) reduces the project’s predicted potential electrical output in a

13 According to the FWS biological opinion, “the Bird Island restoration project is to restore and repair the existing stone revetment in its current location on the island and to use clean dredged material to raise the elevation of 0.4 acre of habitat landward of the revetment.” FWS67. The FWS opined that the “project is likely to have measurable beneficial effects for the roseate tern by preventing further loss of existing essential nesting habitat, by creating additional suitable nesting habitat, and by increasing the carrying capacity of the island which is the most productive breeding site for the species in Buzzards Bay.” Id. The FWS acknowledged that “this project may not be completed . . . until some point after the Cape Wind Project is constructed.” FWS67-68.

16 significant enough way to have a deleterious effect on anticipated revenues, financing and power purchasing agreements.

Furthermore, [the BOEM] indicates that the proposed timeframes for the operational adjustment, although limited by season, visibility and time of day, constitute peak period hours, when the energy supplied to the [Independent System Operator of] New England (the regional transmission organization) has greater market value. Therefore, the [reasonable and prudent measure] may not be prudent because economic cost makes this measure not feasible for project proponents to implement.

FWS76-77 (citations omitted).

ii. The NMFS’s Biological Opinion and Incidental Take Statement

The “BOEM and [the] NMFS began discussing consultation requirements in January

2006.” NFMS1414. The “NMFS provided technical assistance to [the] BOEM as they drafted a

new [draft EIS][14] and draft [biological assessment].” Id. The “BOEM provide[d] NMFS with a

final [biological assessment] and request for formal consultation in a letter dated May 19, 2008,”

and “[c]onsultation was initiated on May 22, 2008.” Id. The NMFS issued its biological opinion

on November 18, 2008 (“2008 biological opinion”), which

concluded that the proposed action was likely to adversely affect but was not likely to jeopardize the continued existence of loggerhead, Kemp’s ridley, leatherback or green sea turtles. Additionally, [the] NMFS concluded that the proposed action was not likely to adversely affect right, humpback or fin whale species. Because no critical habitat is designated in the action area, none will be affected by the proposed action. The [biological] [o]pinion included an Incidental Take Statement exempting the incidental take by acoustic harassment of 3-7 sea turtles during each 4 hour pile driving event (130 events total) and 13-28 sea turtles during the geophysical survey. ....

In the spring of 2010, over 90 North Atlantic right whales were observed in Rhode Island Sound and nearby waters, including areas to be transited by project vessels originating from the staging site at Quonset, [Rhode Island]. While right

14 The NMFS had previously “provided comments on [a] [draft EIS] [prepared by the Corps of Engineers] and indicated to the [Corps] that consultation pursuant to Section 7 of the ESA would be necessary for the proposed project.” NMFS1414.

17 whales were not sighted in the area proposed for construction (i.e., the project footprint on Horseshoe Shoal within Nantucket Sound), right whales were observed in nearby areas and along the route that would be used by vessels moving between the project footprint and the project staging area near Quonset, [Rhode Island]. When compared to sightings in previous years, these sightings represent a higher than average number of right whales in the action area and nearby areas. As noted in [the] BOEM’s July 13, 2010 letter to [the] NMFS, these sightings represent new information that when analyzed may reveal effects of the action that may affect listed species in a manner or to an extent not previously considered. As such, [the] NMFS concurred with [the] BOEM’s determination that reinitiation of consultation was appropriate; specifically, to consider the new information on the presence of right whales in the action area. Consultation was reinitiated on July 26, 2010.

NMFS1414-15. The reinitiation of consultation culminated in a second biological opinion,

which the NMFS issued on December 30, 2010 (“2010 biological opinion”). NMFS1413. The

2010 biological opinion reached the same conclusions as the first opinion about the project’s

effects on listed whales and sea turtles. See NMFS1534. The NMFS issued with the 2010

biological opinion a second incidental take statement for listed sea turtles, which authorized the

same level of take as the prior incidental take statement. See NMFS1536.

b. The BOEM and FWS Consultation Regarding the Impact of the Cape Wind Project on Migratory Birds

The BOEM’s final EIS 15 notes that “[a]vian resources that are likely to occur in the area

of the proposed action are protected under the Migratory Bird Treaty Act.” See CW157080

(citing also Executive Order 13,186). “From March 2002 through September 2006, aerial, boat,

and radar surveys were conducted by [Cape Wind]. Additionally, the [Massachusetts Audubon

Society] conducted aerial and boat surveys from August 2002 through September 2004.” Id.

Cape Wind and the Massachusetts Audubon Society “collectively flew 125 systematic aerial

surveys to document avian species and distributions in Nantucket Sound,” and the surveys took

15 The final EIS, which was prepared pursuant to the NEPA and the Shelf Lands Act, is discussed in further detail below.

18 place “during the daytime throughout different seasons from March 2002 through March 2006.”

CW157081; see also CW66154 (tables summarizing survey results). “A total of 17 boat surveys

were conducted from May 2002 [through] March 2005 during the same study periods as the

aerial surveys,” and Cape Wind “also conducted radar surveys during the spring and fall

migration periods.” CW157081. The BOEM concluded that the existing surveys were sufficient

to inform its final EIS. See CW67697-67770 (responding to comments suggesting that the

BOEM obtain additional information about the project’s impacts on migratory birds).

During the course of the Section 7 consultation, the FWS

recommended several studies to more fully assess the project’s impacts . . . on migratory birds. Certain information was collected, and some was not. While they would have generated information useful to assessment of migratory birds generally, the unimplemented studies would not necessarily yield information that would have significantly addressed the uncertainties in the analysis of impacts to the roseate tern and piping plover specifically.

FWS4. The FWS biological opinion did not specifically address other migratory birds not listed

in the ESA. Id. However, one of the terms and conditions of the FWS biological opinion

requires the BOEM, Cape Wind, and the FWS to “coordinate in the development of specific pre-

and post-construction monitoring protocols . . . for [an] Avian and Bat Monitoring Framework

for the Cape Wind Proposed Offshore Wind Facility.” FWS77.

On June 4, 2009, the BOEM and the FWS signed a Memorandum of Understanding

pursuant to section 3 of Executive Order 13,186. CW242438. The Memorandum “identifies

specific areas in which cooperation between the agencies would substantially contribute to the

conservation and management of migratory birds and their habitats.” Id. Both agencies also

reviewed drafts of the Avian and Bat Mitigation and Monitoring Plan prepared by Cape Wind.

See CW242441. “The monitoring plan was developed in coordination with [the BOEM and the

FWS] . . . and includes several monitoring requirements as a result of previous regulatory

19 review,” including the required pre- and post-construction monitoring. CW237369. The lease

for the Cape Wind project, which was issued by the BOEM on October 6, 2010, see CW119269;

CW119275, states that the monitoring plan is “mandatory,” CW119314, and the BOEM also

conditioned approval of Cape Wind’s Construction and Operation Plan “on an acceptable Avian

and Bat Monitoring Plan,” CW119704. 16

c. The NEPA and Shelf Lands Act Review Process

“The Energy Policy Act of 2005 was enacted on August 8, 2005, giving the Department

of the Interior authority for issuing leases, easements, or rights-of-way for alternative energy

projects on the Outer Continental Shelf . . . .” 71 Fed. Reg. at 30,693. Accordingly, the BOEM

began to “act as a lead agency for coordinating the permitting process with other Federal

agencies.” Id.; see CW111956.

Once [the BOEM] became the lead agency for the [Cape Wind] project, [the BOEM] determined that a new [d]raft EIS was needed and developed the scope of the study for the [d]raft EIS by requesting comments on the Proposed Action in a public notice published in the Federal Register on May 30, 2006 (71 FR 30693). The [BOEM] treated all the comments previously made on the [Corps of Engineers’] [d]raft EIS as scoping comments for [the BOEM’s] [d]raft EIS. The [BOEM] also considered the comments that were made at [Corps] public meetings held in Yarmouth, Martha’s Vineyard, Cambridge, and Nantucket, Massachusetts.

CW111956. The BOEM issued a new draft EIS on January 18, 2008. See 73 Fed. Reg. 3482,

3482 (Jan. 18, 2008); CW111956. “The public comment period on the [d]raft EIS lasted 60 days

(until March 20, 2008) and was then extended another 30 days (until April 21, 2008) in order to

provide the public with additional time to consider and submit comments on the [d]raft EIS.”

16 “The final [Avian and Bat Monitoring Plan] was approved by [the] FWS on September 6, 2012, and by [the] BOEM on November 20, 2012.” Fed. Defs.’ ESA/MBTA Mem. at 8 & n.8 (citing http://www.boem.gov/ Renewable-Energy-Program/Studies/Cape-Wind.aspx (last visited Mar. 4, 2014)).

20 CW111956. The BOEM made the final EIS available to the public on January 21, 2009. See id.;

74 Fed. Reg. 3635, 3635 (Jan. 21, 2009).

Subsequently, on March 8, 2010, the BOEM prepared an environmental assessment

(“2010 Assessment”). See CW111957. As explained by the BOEM,

[t]he purpose of th[e] [2010 Assessment] was to determine whether there were significant new circumstances or information relevant to environmental concerns and impacts associated with the Proposed Action that were not fully addressed in the [f]inal EIS . . . . The [BOEM] used this [2010 Assessment] to determine whether the [f]inal EIS needed to be supplemented. The [BOEM] found that no significant new information existed that would necessitate a re-analysis of the range of the alternatives or the kinds, levels, or locations of the impacts of the Proposed Action on the human environment. After considering public comments on the [2010 Assessment] and additional new information that was received after the [2010 Assessment] was made publicly available, [the BOEM] concluded that the analyses in the [f]inal EIS remained valid, and that, because a supplemental EIS was not required, it issued a Finding of No New Significant Impact (FONNSI) on April 28, 2010.

Id.

On April 28, 2010, the BOEM also issued a Record of Decision (“2010 ROD”), which

stated that “[t]he decision is hereby made to offer a commercial lease to [Cape Wind] in

accordance with . . . [the Shelf Lands Act], under the terms and conditions” specified in the 2010

ROD, id., and in a lease issued to Cape Wind by the BOEM on October 6, 2010, see CW119269;

CW119275. The lease granted Cape Wind “the exclusive right and privilege” to construct,

operate, and eventually decommission the proposed wind energy facility on Horseshoe Shoal in

the Sound. See CW119270. Among the terms and conditions incorporated into the Cape Wind

lease are the terms and conditions which the Coast Guard deemed necessary pursuant to § 414 of

the Coast Guard and Maritime Transportation Act of 2006. See CW119319. The Coast Guard

had previously issued the §414 terms and conditions on August 2, 2007. See CW66389;

CW66393.

21 The 2010 ROD required Cape Wind to submit to BOEM a Construction and Operations

Plan. CW111957; see also CW119697. Cape Wind “submitted a [Construction and Operations

Plan] for the project on October 29, 2010, and submitted a modified [Construction and

Operations Plan] on February 4, 2011.” CW119697. Thereafter,

[o]n February 22, 2011, a “Notice of Preparation of an Environmental Assessment” was posted on the [BOEM] website to solicit public input in anticipation of the preparation of [a] 2011 [environmental assessment (“2011 Assessment”)]. The purpose of the comment period was to provide the public with an opportunity to review and comment on the [Construction and Operations Plan] as well as to provide [the BOEM] with any significant new information or circumstances relevant to environmental concerns and bearing on the proposed action or its impacts. The [Construction and Operations Plan] was made available for review on the [BOEM] website . . . . Consulting parties and local governments were informed of the comment period via email, which provided the location of the [BOEM] website and [the BOEM] mailing address for receiving comments.

The purpose of the 2011 [Assessment] was to evaluate whether substantial changes in the proposed action that are relevant to environmental concerns or significant new circumstances or information relevant to environmental concerns and bearing on the proposed action had come to light since the [final EIS] and the 2010 [Assessment] were issued. If so, [the BOEM] would be required to prepare a[] [supplemental EIS] before taking action on [Cape Wind’s Construction and Operations Plan]. Issues considered in the 2011 [Assessment] include: additional surveys and sampling; conflicts with aviation traffic and fishing use; emergency response; migratory birds; microclimate; oil within wind turbine generators; sloshing dampers; transition piece grout; permits issued by other Federal agencies; and consultations with other agencies. [The BOEM] did not directly address comments related to the content of the [Avian and Bat Monitoring Plan] in the [2011 Assessment]; rather it [did so] in its review of that plan.

CW119705; see also CW119743-86 (2011 Assessment). The BOEM “determined that the [final

EIS] fully discussed the significant environmental consequences associated with the approval of”

Cape Wind’s Construction and Operations Plan, and approved the plan in a record of decision

dated April 18, 2011 (“2011 ROD”). CW119705-06.

22 d. Consultation Under Section 106 of the Preservation Act

“The [Advisory Council on Historic Preservation] formally entered into the Section 106

consultation with the Corps [of Engineers] for the” proposed wind energy park “in March of

2005 upon its determination that the project would adversely affect historic properties on or

eligible for the National Register of Historic Places.” CW44617. After the BOEM took over as

the lead agency, it

commenced its Section 106 process in late 2005 and conducted more than twenty- one meetings through February 2010. [The BOEM] invited the Massachusetts [State Historic Preservation Officer] to be a cooperating party on March 16, 2006, to which she replied “the [Massachusetts Historical Commission] is a consulting agency.”

CW112019. The Wampanoag Tribe of Gay Head (Aquinnah) and the Mashpee Wampanoag

Tribe were also consulting parties to the Section 106 process. CW112021. The BOEM

published a draft EIS pursuant to the NEPA in January of 2008, which “included its initial

identification of properties and its findings of adverse effects.” CW112021. The comments to

the draft EIS objected to the methodology that the BOEM used to identify affected properties,

and the BOEM responded to the comments by revising its methodology and undertaking new

identification efforts. Id. “From that point forward, the NEPA and [S]ection 106 process

timelines” proceeded independently of one another. Id. As part of its Section 106 consultation,

the BOEM

conducted interagency and intergovernmental consultation meetings, including tribes, to solicit comments and concerns related to the [Cape Wind] project, including issues related to cultural resources and historic preservation, in November 2005, June of 2006, and February of 2007[,] leading up to the circulation of the [draft EIS], and in July of 2008 to discuss concerns raised in comments to the [draft EIS]. One-on-one government-to-government meetings with tribes in advance of the [draft EIS] and its findings also took place in July of 2006, February of 2007 . . . and July of 2007.

23 Following its evaluation of [the draft EIS] comments, [the BOEM] resumed its Section 106 process with a series of consultation meetings specific to the [S]ection 106 process that began in July 2008. Upon completion of its second identification of properties effort and these consultations, the [BOEM] released a Finding of Adverse Effect as an individual document on December 29, 2008[,] to describe its new list of identified eligible properties and those adversely affected under the revised methodology. The December 2008 Finding identified 29 historic properties as being adversely affected, including one property of cultural[] importan[ce] to the Mashpee tribe and two [National Historic Landmarks]. The December 2008 Finding was included in the analysis of the [f]inal EIS for the project, [and] circulated for public comment in January 2009. Government-to-government consultation meetings and Section 106 consultations meetings with the parties followed throughout 2009 and in early 2010, as described below.

Through this process, [the BOEM] considered additional information from tribes and other consulting parties via meetings, written communications, and site visits. [The BOEM] also worked closely with the Advisory Council for Historic Preservation and the National Park Service (Keeper of the National Register and [National Historic Landmark] personnel) in a continued effort to assess the nature and level of adverse effects and to make determinations of the eligibility of additional properties, as well as to determine the appropriate scope of the [S]ection 106 process. As a result, [the BOEM] released a Revised Finding of Adverse Effect on January 13, 2010. The Revised Finding added Nantucket Sound and four individual onshore [traditional cultural properties] to the list of affected historic properties, and clarified the types of alterations that could occur to each.

A draft Memorandum of Agreement (MOA) was distributed at the June 16, 2009 consultation meeting. The draft MOA contained several proposed mitigation measures. [The BOEM] asked attendees to review the MOA and provide [the BOEM] with any comments on the document or other ideas to avoid, minimize or mitigate adverse effects. The draft MOA was re-circulated to consulting parties at the January 13, 2010 full Section 106 meeting. The [State Historic Preservation Officer] concurred with the revised Finding in February 2010. Following public review of the revised Finding and additional site visits and several meetings with parties in February 2010, the Secretary [of the Interior] determined that further efforts to agree on an MOA would not be productive, and on March 1, 2010, submitted a request to the [Advisory Council for Historic Preservation] for their comment to terminate the [S]ection 106 process.

CW112021-22. “The [Advisory Council for Historic Preservation] comment was received [by

the Secretary of the Interior] on April 2, 2010.” CW112024; see also CW112696.

24 3. The Current Litigation

The PEER plaintiffs, comprised of several environmental groups, members of those

groups, and individuals who use the Nantucket Sound, PEER Compl. ¶¶ 3-29, assert three claims

for relief based on alleged deficiencies in the FWS’s and the NMFS’s biological opinions and

incidental take statements, id. ¶¶ 97-99. They also challenge the issuance of the records of

decision, the lease, and the approval of the Cape Wind construction operations plan, on the

grounds that each relies on invalid biological opinions. Id. ¶¶ 100-103. The PEER plaintiffs also

allege that the BOEM and the Corps of Engineers should have obtained a permit for the take of

migratory birds prior to approving the Cape Wind project. Id. ¶ 104. Finally, they claim that the

BOEM violated the NEPA by failing to issue a supplemental EIS concerning the recent

aggregations of right whales, by failing to address certain other data or effects of the project, and

by relying on the Avian and Bat Monitoring Plan. Id. ¶¶ 106-110.

The Town of Barnstable “is a municipal corporation and political subdivision of

Massachusetts” that “has jurisdiction over extensive lands on the south side of Cape Cod along

Nantucket Sound.” Barnstable Compl. ¶ 10. In its complaint, Barnstable asserts nine claims for

relief based on the BOEM’s alleged failure to adequately address the finding that the Sound is

eligible for listing in the National Register or to survey all historic properties in and around the

Cape Wind project area, in violation of the Preservation Act. Id. ¶¶ 200-08. Barnstable also

challenges the adequacy of the BOEM’s final EIS, as well as its failure to issue a supplemental

EIS, id. ¶¶ 209-14, the BOEM’s alleged failure to provide for safety 17 as required by the Shelf

17 Specifically, the Town of Barnstable alleges that

[t]he [d]efendants have . . . fail[ed] to ensure that the [Cape Wind project] . . . will be carried out in a manner that provides for the safety of parties engaging in: a) commercial and general aviation activities; b) commercial shipping and commercial transportation between the Cape and the

(continued . . . )

25 Lands Act, id. ¶¶ 215-19, and the Coast Guard’s alleged failure to specify appropriate terms and

conditions as to navigation safety in the Sound as required in § 414 of the Coast Guard and

Maritime Transportation Act of 2006, id. ¶¶ 220-25.

The Alliance plaintiffs, a non-profit environmental group and several individuals who use

or enjoy the Sound, Alliance Compl. ¶¶ 6-24, assert six claims under the NEPA, the Shelf Lands

Act, § 414, and the Preservation Act similar to those asserted by the PEER plaintiffs and the

Town of Barnstable, id. ¶¶ 151-76. The Alliance plaintiffs additionally allege violations of the

Clean Water Act and the Rivers and Harbors Act. See id. ¶¶ 177-93.

The Wampanoag Tribe of Gay Head (Aquinnah) states in its complaint that “[t]he Tribe

has lived on the shores of Nantucket Sound since time immemorial,” and “depends on the

Nantucket Sound for food, jobs, spiritual ceremonies, and cultural continuity, and the Sound is

essential to the Tribe’s religious ceremonies and traditional religious practices.” Wampanoag

Compl. ¶¶ 13-14. The Tribe’s complaint asserts three claims for relief based on the federal

defendants’ alleged failure to consider the impact of the Cape Wind project on subsistence

fishing, the failure to adequately consider the impact of the finding that the Nantucket Sound is

eligible for listing in the National Register, and the failure to engage in timely and adequate

Section 106 consultation with the Tribe. Id. ¶¶ 127-43.

The Court granted Cape Wind Associates, LLC’s (“Cape Wind”) unopposed motion for

leave to intervene as a defendant. See September 8, 2010 Minute Order. The Court

subsequently consolidated the cases filed by the PEER, Alliance and Town of Barnstable

(. . . continued) Islands; c) oil spill prevention and response operations; and d) search and rescue operations.

Barnstable Compl. ¶ 216

26 plaintiffs, 18 see October 25, 2010 Minute Order, as well as the case filed by the Wampanoag

Tribe of Gay Head (Aquinnah), see July 8, 2011 Minute Order.

The parties have now filed cross-motions for summary judgment: one concerning the

PEER, Alliance, and Town of Barnstable plaintiffs’ ESA and Migratory Bird Treaty Act claims;

a second concerning the PEER, Alliance, and Town of Barnstable plaintiffs’ remaining claims;

and a third concerning the claims of the Wampanoag Tribe of Gay Head (Aquinnah).

Additionally, the PEER, Alliance, and Town of Barnstable plaintiffs have filed a motion

pursuant to Federal Rule of Civil Procedure Rule 56(e) seeking additional discovery concerning

certain documents cited in the federal defendants’ legal memoranda, or in the alternative to strike

those same documents.

II. STANDARD OF REVIEW

“Summary judgment is the proper mechanism for deciding, as a matter of law, whether

an agency action is supported by the administrative record and consistent with the APA standard

of review.” Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010)

(citing Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007), aff’d, 408

F. App’x 383 (D.C. Cir. 2010)); see also Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir.

1977). But due to the limited role of a court in reviewing the administrative record, the typical

summary judgment standards set forth in Federal Rule of Civil Procedure 56 are not applicable.

Stuttering, 498 F. Supp. 2d at 207. Rather, “[u]nder the APA, it is the role of the agency to

resolve factual issues to arrive at a decision that is supported by the administrative record,

whereas ‘the function of the district court is to determine whether or not as a matter of law the

18 Another case was consolidated at the same time, but was later dismissed with prejudice. See Stipulation of Voluntary Dismissal of All Claims in Martha’s Vineyard / Dukes County Fisherman’s Ass’n v. Salazar, ECF No. 149; see also July 2, 2012 Minute Order.

27 evidence in the administrative record permitted the agency to make the decision it did.’” Id.

(quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)). In other words,

“when a party seeks review of agency action under the APA, the district judge sits as an

appellate tribunal,” and “[t]he ‘entire case’ on review is a question of law.” Am. Bioscience, Inc.

v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (footnote and citations omitted).

III. ANALYSIS

A. Whether the Coast Guard Violated § 414 of the Coast Guard and Maritime Transportation Act of 2006

The Town of Barnstable and the Alliance plaintiffs have moved for summary judgment

on their claims that the United States Coast Guard violated § 414 of the Coast Guard and

Maritime Transportation Act of 2006. Pls.’ Remain Mem. at 15-16; Pls.’ Remain Opp’n at 21;

Alliance Compl. ¶¶ 167-70; Barnstable Compl. ¶¶ 220-25. The federal defendants and Cape

Wind each move for summary judgment on the ground that no final agency action resulted from

the United States Coast Guard’s issuance of terms and conditions for the Cape Wind lease

pursuant to § 414, and thus there can be no APA challenge to those terms and conditions. 19 Fed.

Defs.’ Remain Mem. at 14; Fed. Defs.’ Remain Reply at 1; Int. Def.’s Remain Mem. at 19; Int.

Def.’s Remain Reply at 1-2. Alternatively, the federal defendants and Cape Wind argue that

even if the issuance of the terms and conditions constitutes final agency action, the Coast Guard

fully complied with the provisions of the Coast Guard and Maritime Transportation Act of 2006.

Fed. Defs.’ Remain Mem. at 14; Fed. Defs.’ Remain Reply at 1; Int. Def.’s Remain Mem. at 19;

Int. Def.’s Remain Reply at 1-2.

19 Because the Court concludes that there has been no violation of § 414 of the Coast Guard and Maritime Transportation Act of 2006, the Court will not address whether the issuance of terms and conditions pursuant to § 414 constitutes final agency action.

28 Section 414 was passed in large part due to the pendency of Cape Wind’s proposal. See

152 Cong. Rec. S6439-40 (daily ed. June 22, 2006) (statement of Senator Stevens). The

legislative history discloses Congress’ position that “[i]t must be left up to the Commandant of

the Coast Guard to decide what is necessary to prevent negative impact to navigation, aviation,

and communications caused by the proposed wind farm.” Id. at S6439. To that end, § 414

provides that “the Commandant of the Coast Guard shall specify the reasonable terms and

conditions the Commandant determines to be necessary to provide for navigational safety with

respect to the proposed lease . . . and each alternative” to the proposal, and also that “the

Secretary [of the Interior] shall incorporate into the lease . . . reasonable terms and conditions the

Commandant determines to be necessary to provide for navigational safety.” Pub. L. No. 109-

241, 120 Stat. at 540 (emphasis added).

There is no case law construing § 414, and so the Court must turn to the familiar two-step

analysis of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). “When a court reviews an agency’s construction of the statute which it administers, it is

confronted with two questions. First, always, is the question whether Congress has directly

spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the

matter.” Chevron, 467 U.S. at 842. And it is well established that

[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.

Id. at 843 n.9 (citations omitted). Among the “traditional tools of statutory interpretation” are the

“text, structure, purpose, and legislative history” of the statute.” Pharm. Research & Mfrs. of

Am. v. Thompson, 251 F.3d 219, 224 (D.C. Cir. 2001). If the Court determines that Congress’

29 intent is unclear, then the court proceeds to the second step under Chevron, which requires the

court to “defer to the agency’s interpretation as long as it is ‘based on a permissible construction

of the statute.’” Bluewater Network v. EPA, 372 F.3d 404, 410 (D.C. Cir. 2004) (quoting

Chevron, 467 U.S. at 843)).

As to step one of the Chevron analysis, the Court “begins, as always, with the text of the

statute.” Chao v. Day, 436 F.3d 234, 235 (D.C. Cir. 2006). And “[w]here, as here, [the text] is

plain and unambiguous,” the Court’s “analysis ends with the text as well.” Id. The mandatory

language of § 414 makes clear that the Commandant “shall” communicate to the Secretary of the

Interior the terms and conditions deemed necessary for navigational safety, and the Secretary of

the Interior “shall” include those terms and conditions in any lease that might be issued pursuant

to § 1337(p) of the Shelf Lands Act. Pub. L. No. 109-241, 120 Stat. at 540. The statute leaves

no discretion to either the Commandant as to the decision to issue terms and conditions, or to the

Secretary of the Interior regarding the decision to include those terms and conditions in a

§ 1337(p) lease. See Ass’n of Civilian Technicians v. Fed. Labor Relations Auth., 22 F.3d 1150,

1153 (D.C. Cir. 1994) (“The word ‘shall’ generally indicates a command that admits of no

discretion on the part of the person instructed to carry out the directive.”).

What is less clear from the text of the statute is the effect of the Commandant’s issuance

of the terms and conditions. However, the legislative history is instructive:

The arrangement dictated by section 414 of [the Coast Guard and Maritime Transportation Act of 2006] has precedence in the procedure for granting hydroelectric licenses under the Federal Power Act[, 16 U.S.C. § 797(e) (2012)]. This process requires the Federal Energy Regulatory Commission to include in the terms and conditions of its licenses for hydroelectric licenses any conditions deemed necessary to protect the interests of other agencies. The United States Supreme Court[, in Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765 (1984),] determined that such conditions had to be “reasonable” and the reasonability of the conditions was a matter to be determined by the courts, not the Commission.

30 152 Cong. Rec. at S6440. In Escondido, the Supreme Court addressed § 4(e) of the Federal

Power Act, 466 U.S. at 772, which provides that licenses such as the hydroelectric facility

license at issue in that case “shall be subject to and contain such conditions as the Secretary [of

the Interior] . . . shall deem necessary for the adequate protection and utilization” of the property,

16 U.S.C. § 797(e). The Supreme Court held that it was “clear enough that while Congress

intended that the Commission would have exclusive authority to issue all licenses, it wanted the

[Secretary of the Interior] to continue to . . . determin[e] what conditions would be included in

the license in order to protect the resources under [his] [] jurisdiction[].” Escondido, 466 U.S. at

775. The District of Columbia Circuit has elaborated that

[i]f Congress had intended Interior to have authority to require prescriptions independent of the Commission’s licensing process, it could easily have so specified. By providing instead that Interior’s prescription is to be a FERC license requirement, Congress implicitly indicated that it would have to be supported as would any other Commission licensing requirement. The record before us, then, is no more and no less than what was presented to the Commission.

Bangor Hydro-Elec. Co. v. Fed. Energy Regulatory Comm’n, 78 F.3d 659, 662 (D.C. Cir. 1996).

And “[i]f the Secretary [of the Interior] concludes that the conditions are necessary” then “the

court is obligated to sustain” the conditions “if they are reasonably related to [the Secretary’s]

goal [of preserving reservations], otherwise consistent with the [Federal Power Act], and

supported by substantial evidence.” Escondido, 466 U.S. at 778. The Circuit has interpreted this

standard of review as akin to arbitrary and capricious review under the APA. See Bangor

Hydro-Elec. Co., 78 F.3d at 663.

Given the similarity between the statutory schemes of § 414 and § 4(e) of the Federal

Power Act, and given also the fact that the legislative history of § 414 specifically relies on the

Supreme Court’s decision in Escondido, it seems inescapable that the Court must review the

31 imposition of the § 414 terms and conditions in the same manner dictated for review of § 4(e) of

the Federal Power Act. In other words, if the Coast Guard has deemed certain terms and

conditions necessary for the Cape Wind project pursuant to § 414, then “the [C]ourt is obligated

to sustain” those terms and conditions “if they are reasonably related to [the Coast Guard’s] goal,

otherwise consistent with the [Shelf Lands Act], and supported by substantial evidence.” 20 See

Escondido, 466 U.S. at 778; see also Bangor Hydro-Elec. Co., 78 F.3d at 662-63.

As to the Coast Guard’s objective, § 414 makes clear that its terms and conditions must

“provide for navigational safety with respect to the proposed lease, easement, or right of-way.”

Pub. L. No. 109-241, 120 Stat. at 540. The terms and conditions imposed by the Coast Guard

address the design, positioning, arrangement, and operation of the Cape Wind project, and

include required specified labeling, mechanisms for shutting down the wind turbine generators,

and placement of safety equipment and mooring attachments on the wind turbine generators for

emergency use. CW66379. The terms and conditions also require Cape Wind, prior to

construction, to provide to the BOEM and the Coast Guard for their review and approval certain

research analyses concerning, and recommended mitigation measures for, the project’s impact on

radar navigation of vessels in and around the project. CW66380. There are also provisions for

breaking ice that might form in and around the project area. CW66381-82. Finally, the terms

and conditions require Cape Wind to report periodically to both the BOEM and the Coast Guard

about navigational safety, and the Coast Guard retains for itself the right to amend the terms and

20 The defendants argue that the similarity between the two statutory schemes calls for the conclusion that the Coast Guard is not a proper party. See, e.g., Fed. Defs.’ Remain Mem. at 14-17; Int. Def.’s Remain Mem. at 19-23. As this Circuit has stated, where parties levy a challenge to licenses issued under the Federal Power Act, “FERC is the appropriate named respondent even if the real defense is to be mounted by [the Department of the] Interior.” Bangor Hydro-Elec. Co., 78 F.3d at 662 (citing 16 U.S.C. § 825 (b)). The Court thus need not address whether the Coast Guard is an appropriate party because even if it is not, the plaintiffs’ claims concerning the § 414 terms and conditions are properly brought against the BOEM, and must therefore be reviewed by the Court in the manner set forth in Escondido.

32 conditions at any time. CW66380-83. The Court is satisfied that these terms and conditions are

reasonably related to the Coast Guard’s goal to provide for navigational safety.

The Court is also satisfied that the terms and conditions are otherwise consistent with

§ 1337(p) of the Shelf Lands Act. This Act requires, among other things, that any lease granted

pursuant to § 1337(p) be “carried out in a manner that provides for . . . safety” and for

“oversight, inspection, research, monitoring, and enforcement relating to” the lease. 43 U.S.C.

§ 1337(p)(4). The terms and conditions adopted by the Coast Guard provide for oversight,

inspection, research, and monitoring, and also provide several safety measures. And while the

terms and conditions do not explicitly address enforcement of the provisions, the Coast Guard

has not only the right to amend the terms and conditions, but also to order that a wind turbine

generator or a set of generators be shutdown “in instances where the Coast Guard determines that

navigation safety may be impacted if the [wind turbine generator] were to continue to operate.”

CW66376. The Court finds that the Coast Guard’s § 414 terms and conditions are consistent

with the terms of the Shelf Lands Act.

Finally, there is substantial evidence to support the imposition of the Coast Guard’s terms

and conditions. As instructed by the Circuit, the Court assesses the substantial evidence issue by

considering the record that “was presented to” the BOEM. 21 Bangor Hydro-Elec. Co., 78 F.3d at

662 (citing Escondido, 466 U.S. at 778 n.20 (“[T]he court is to sustain the conditions if they are 21 Cape Wind urges the Court to restrict its review “to the BOEM record and not the Coast Guard record.” Int. Def.’s Remain Mem. at 22-23. However, the federal defendants do not make this argument, and “[t]he general rule in this Circuit is that ‘[i]ntervenors may only argue issues that have been raised by the principal parties.’” Ass’n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 675 (D.C. Cir. 2013) (Silberman, J., concurring) (quoting Nat’l Ass’n of Regulatory Util. Comm’rs v. ICC, 41 F.3d 721, 729 (D.C. Cir. 1994)). Indeed, the federal defendants rely heavily on Coast Guard documents in making their arguments, and the plaintiffs agree that the Coast Guard’s documents are part of the administrative record. Pls.’ Remain Opp’n at 18 & n.3. Presumably, these same documents were or would have been “presented to” the BOEM, and so in any event they can properly be considered by the Court. See Bangor Hydro-Elec. Co., 78 F.3d at 662 (denying request to remand the record so that the Department of the Interior could add material to the record and remarking that “Interior had no excuse for not including any evidence it wished to rely on[] in the court of appeals, in the record before the Commission. It is simply too late now to shore up its case”).

33 consistent with law and supported by the evidence presented to the [agency], either by the

Secretary or other interested parties.” (emphasis added in Bangor Hydro-Elec. Co.))). Here, the

BOEM’s final EIS incorporates the Coast Guard’s findings. See, e.g., CW65611-26 (discussing

results of Coast Guard studies on navigational safety); CW66375-414 (Coast Guard responses to

comments on the draft EIS); CW75940-86 (Coast Guard commissioned study of the Cape Wind

project’s impact on radar technology of vessels in and around the project area).

As to the navigational safety studies, the administrative record contains a Revised

Navigational Risk Assessment (“Revised Assessment”), USCG907, which was an update of an

initial risk assessment prepared for Cape Wind at the request of the Coast Guard, USCG916.

The Revised Assessment “includes updated information to address topics requested by the [Coast

Guard]” when the Corps of Engineers was functioning as the lead agency for the Cape Wind

Project. Id. The Revised Assessment

includes descriptions of the Nantucket Sound environment,[22] vessel traffic types and operating areas, the effects of the proposed Wind Park on navigation, an analysis of vessel impacts on the [wind turbine generators], historic search and rescue operations in and around the Wind Park, the effects of the proposed Wind Park on search and rescue operations, and the effects of the proposed Wind Park on communications. Various marine interests in Nantucket Sound, including the [Coast Guard] and the Steam Ship Authority [], and the proposed [wind turbine generator] vendor (General Electric) [] provided information to assist in the preparation of the . . . Assessment.

Id.; see also USCG917-61 (discussing observations and data concerning each of the listed

considerations, including data obtained from currently operational offshore wind energy projects

in other bodies of water). The Risk Assessment also includes several mitigation measures to

which Cape Wind agreed in an effort to address any navigational safety issues. USCG961-62.

The executive summary of the Risk Assessment ultimately concludes that “[t]he presence of the

22 Environmental descriptions included the hydrography, currents, waves, and weather of Nantucket Sound. USCG918-20.

34 Wind Park at Horseshoe Shoal is not expected to create negative impacts to navigational safety.”

USCG913.

In addition to the Risk Assessment, the Coast Guard also considered guidance from the

United Kingdom’s Maritime and Coast Guard Agency, which “assess[ed] the impact on

navigational safety from offshore renewable energy developments.” See USCG409-23.

Included in this guidance were standard design requirements, operational requirements, and

operational procedures for offshore wind energy farms. USCG418-19 (requiring, among other

things, that wind turbine generators be clearly marked, that “[t]hroughout the design process for

a wind farm, assessments and methods for safe shutdown should be established and agreed,” and

that periodic testing of emergency communication and shutdown procedures be conducted). The

Coast Guard adopted many of these recommendations as part of its own “guidance on

information and factors the Coast Guard will consider when reviewing an application for a

permit to build and operate an Offshore Renewable Energy Installation.” USCG1087; see

generally USCG1086-111 (Coast Guard’s Navigation and Vessel Inspection Circular No. 02-07).

Given the results of the Risk Assessment, as well as the recommendations in the guidance

from the United Kingdom and the Coast Guard’s own guidance, it cannot be said that the terms

and conditions deemed necessary by the Coast Guard pursuant to its § 414 obligation were

unreasonable. Rather, the information available shows that there is a “rational connection

between the facts” concerning navigational safety and “the choice made” as to the terms and

conditions adopted by the Coast Guard for the Cape Wind project. See Bangor Hydro-Elec. Co.,

78 F.3d at 663 n.3. The Court therefore finds that the terms and conditions chosen are supported

by substantial evidence.

35 The plaintiffs do not confine their objections to the § 414 terms and conditions to the

three prongs of the Escondido analysis, presumably because they do not believe that the analysis

should apply here, and instead lodge attacks on other aspects of the terms and conditions. First,

the plaintiffs contend that the terms and conditions “are little more than vague generalities and a

promise to ensure navigational safety later.” Pls.’ Remain Mem. at 18. The Court disagrees.

While it is true that certain terms and conditions require future action or studies, other terms and

conditions impose mandatory design, positional, and operational requirements. See, e.g.,

CW66379 (providing that “each individual [wind turbine generator] shall be marked with private

aids to navigation in accordance with” specified guidelines) (emphasis added); id. (“All [wind

turbine generator] rotors (blade assemblies) shall be equipped with control mechanisms that can

be operated from the control center of the [Nantucket Sound Wind Farm].”) (emphasis added);

id. (“Safety lines, mooring attachments (for securing vessels) and access ladders for use in

emergencies shall be placed on each [wind turbine generator].”) (emphasis added). Moreover,

provisions for future action are actually consistent with the terms of the Shelf Lands Act. See 43

U.S.C. § 1337(p)(4)(L) (requiring that renewable energy activities be “carried out in a manner

that provides for . . . oversight, inspection, research, monitoring, and enforcement relating to a

lease . . . granted” under the Shelf Lands Act). Indeed, it strikes the Court that it would make

little sense for the Coast Guard and the BOEM to approve the Cape Wind project only to

abandon the possibility of future oversight, research, and monitoring of the impacts that the

project might have on navigational safety. Perhaps most importantly, though, a great deal of

deference is owed to the “Coast Guard’s expertise . . . in maritime safety.” Collins v. Nat’l

Transp. Safety Bd., 351 F.3d 1246, 1253 (D.C. Cir. 2003); see also Cassidy v. Chertoff, 471 F.3d

67, 84 (2d Cir. 2006) (“Expert determinations by the Coast Guard . . . which are based on an

36 explicit Congressional delegation of legislative authority . . . are entitled to significant

deference.”). Accordingly, because the Coast Guard deemed provisions concerning future action

to be appropriate, the Court must reject this challenge to the terms and conditions.

The plaintiffs next object to the Coast Guard’s interpretation that § 414 requires the

issuance of terms and conditions only for project proposals, see CW66378, and not for each

NEPA alternative to the proposed action. Pls.’ Remain Mem. at 23. The plaintiffs rely on the

statutory language of § 414, which states:

[T]he Commandant of the Coast Guard shall specify the reasonable terms and conditions the Commandant determines to be necessary to provide for navigational safety with respect to the proposed lease, easement, or right-of-way and each alternative to the proposed lease, easement, or right-of-way considered by the Secretary.

Pub. L. No. 109-241, 120 Stat. at 540 (emphasis added); see Pls.’ Remain Mem. at 23-24. As

noted above, the Court begins its analysis with the language of the statute. In this instance, while

it is clear that the Commandant is required to specify terms and conditions for the project

proposal, it is not clear, as the plaintiffs contend, that the definition of “alternative” as intended

in § 414 has the same meaning that the word “alternative” has in the NEPA. See 40 CFR §

1502.14. To be sure, the terms and conditions must be specified “not later than 60 days before

the date established . . . for the publication of a draft environmental impact statement,” Pub. L.

No. 109-241, 120 Stat. at 540, but the statute does not otherwise incorporate or reference the

NEPA. “Alternative” as used in the NEPA context is a term of art addressed in that statute’s

implementing regulations. See 40 C.F.R. § 1502.14. If Congress had intended to direct the

Commandant to consider specifically NEPA alternatives, it could easily and explicitly have

drafted § 414 to refer to the applicable sections of the NEPA or its implementing regulations, but

it did not. Furthermore, it would be odd to require the Coast Guard to provide terms and

37 conditions for each NEPA alternative, given that several alternatives were jettisoned without

detailed consideration for various reasons. 23 Although the plaintiffs’ proposed reading of the

statute is plausible, the Court is required to defer to an agency’s permissible interpretation of an

ambiguous statute. Bluewater Network, 372 F.3d at 410. Here, the Coast Guard interpreted

§ 414 to require only the issuance of terms and conditions for alternative proposals, as opposed

to doing the same for each NEPA alternative to a proposal. Because the statute does not

specifically reference NEPA alternatives, the Court finds that the Coast Guard’s interpretation is

not impermissible.

Because the Coast Guard has deemed the § 414 terms and conditions necessary to

provide for navigational safety in and around the Cape Wind project, CW66389, and because the

terms and conditions “reasonably relate[] to [the Coast Guard’s] goal, [are] otherwise consistent

with the [Shelf Lands Act], and [are] supported by substantial evidence,” see Escondido, 466

U.S. at 778, the Court must sustain the terms and conditions and dismiss the plaintiffs’ claims

against the Coast Guard that allege violations of the Coast Guard and Maritime Transportation

Act of 2006. Accordingly, the Court grants summary judgment to the defendants on the

plaintiffs’ § 414 claims.

B. Whether the BOEM Violated the Shelf Lands Act

1. The BOEM’s Reliance on the Coast Guard’s Navigational Safety Findings

The plaintiffs argue that the BOEM violated both the Shelf Lands Act and the NEPA by

relying on the Coast Guard’s navigational safety analyses. Pls.’ Remain Mem. at 45. With

respect to renewable energy projects like the Cape Wind project, the Shelf Lands Act requires

the Secretary to

23 The alternatives are discussed in detail below in the context of the Court’s evaluation of the plaintiffs’ NEPA claims.

38 ensure that [the] activity . . . is carried out in a manner that provides for-- (A) safety; (B) protection of the environment; (C) prevention of waste; (D) conservation of the natural resources of the outer Continental Shelf; (E) coordination with relevant Federal agencies; (F) protection of national security interests of the United States; (G) protection of correlative rights in the outer Continental Shelf; (H) a fair return to the United States for any lease, easement, or right-of-way under this subsection; (I) prevention of interference with reasonable uses (as determined by the Secretary) of the exclusive economic zone, the high seas, and the territorial seas; (J) consideration of-- (i) the location of, and any schedule relating to, a lease, easement, or right-of- way for an area of the outer Continental Shelf; and (ii) any other use of the sea or seabed, including use for a fishery, a sealane, a potential site of a deepwater port, or navigation; (K) public notice and comment on any proposal submitted for a lease, easement, or right-of-way under this subsection; and (L) oversight, inspection, research, monitoring, and enforcement relating to a lease, easement, or right-of-way under this subsection.

43 U.S.C. § 1337(p)(4). The plain language of the Shelf Lands Act therefore suggests that it

would have been unlawful for the BOEM to rely on the Coast Guard’s findings if those findings

did not further the Secretary of the Interior’s obligation to ensure that the Cape Wind project “is

carried out in a manner that provides for safety.” Id.

As to the findings themselves, the plaintiffs devote a substantial portion of their

memoranda to attacking the Coast Guard’s evaluation of the navigational safety impacts

resulting from the Cape Wind project as arbitrary and capricious decisionmaking. Pls.’ Remain

Mem. at 29-45; Pls.’ Remain Opp’n at 21-31. First, the plaintiffs argue that the Coast Guard’s

“assessment of navigational impacts is incoherent and contradicted by Coast Guard personnel.”

Pls.’ Remain Mem. at 29; see also id. at 30-33. They challenge the Coast Guard’s conclusion in

a November 2008 safety assessment letter that the Cape Wind project “‘will (1) have a moderate

impact on navigation safety, and (2) have a negligible adverse impact on Coast Guard

39 missions.’” Id. at 30 (quoting CW66389); see also id. at 31-33 (addressing the November 2008

letter’s discussion of impacts on radar communications, the spacing of the wind turbines,

inclement weather, and Coast Guard search and rescue missions). At bottom, the plaintiffs argue

that the BOEM could not lawfully rely on the Coast Guard’s findings because those findings

represent arbitrary and capricious decisionmaking.

Under the APA, only “final agency action” is reviewable by the Court. See 5 U.S.C. §

704. The Supreme Court has stated that,

[a]s a general matter, two conditions must be satisfied for agency action to be “final”: First, the action must mark the “consummation” of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.”

Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citations omitted). Here, it cannot be

said that the Coast Guard engaged in arbitrary and capricious decisionmaking, because while the

BOEM incorporated the Coast Guards’ navigational safety findings into the final EIS, those

findings did not, in and of themselves, “mark the ‘consummation’ of the [Coast Guard’s]

decisionmaking process,” nor did those findings determine the “rights or obligations” of any

party or result in “legal consequences.” Bennett, 520 U.S. at 177-78. Rather, the Coast Guard’s

findings were simply meant to inform the BOEM of the impact that the Cape Wind project

would have on navigational safety in and around the Nantucket Sound.

Even if the Coast Guard’s findings do constitute reviewable final agency action, as this

Court recently reiterated:

“[t]he ‘arbitrary and capricious’ standard of review as set forth in the APA is highly deferential,” and the Court must “presume the validity of agency action.” Am. Horse Prot. Ass’n v. Yeutter, 917 F.2d 594, 596 (D.C. Cir. 1990). Although the “court is not to substitute its judgment for that of the agency[,] . . . the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice

40 made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citations and quotation marks omitted). And where, as here, a court is reviewing an agency’s evaluation of “‘scientific data within its technical expertise,’” the arbitrary and capricious standard of review is “‘extreme[ly] deferential.’” Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1289 (D.C. Cir. 2004) (citation omitted). This is because courts “review scientific judgments of the agency ‘not as the chemist, biologist, or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality.’” Troy Corp. v. Browner, 120 F.3d 277, 283 (D.C. Cir. 1997).

Styrene Info. & Research Ctr., Inc. v. Sebelius, 944 F. Supp. 2d 71, 87 (D.D.C. 2013) (footnote

omitted). And, in the matter currently before the Court, a great deal of deference is owed to the

“Coast Guard’s expertise . . . in maritime safety.” Collins, 351 F.3d at 1253; see also Cassidy,

471 F.3d at 84 (“Expert determinations by the Coast Guard . . . which are based on an explicit

Congressional delegation of legislative authority . . . are entitled to significant deference.”). In

evaluating whether the Coast Guard has engaged in arbitrary or capricious decisionmaking, the

Court’s role is to determine whether the record demonstrates that the agency has considered the

“relevant data and articulate[d] a satisfactory explanation for its action,” and whether the

agency’s choice reflects “a rational connection between the facts found and the choice made.”

Bluewater Network, 370 F.3d at 11.

Although the plaintiffs fault the Coast Guard for issuing the November 2008 safety

assessment letter prior to the completion of radar studies, the letter itself acknowledges that the

impact on radars “remains outstanding.” CW66389. The letter also indicates the further steps

the Coast Guard was taking in order to better understand the impacts on radars, and stated that

“[t]he Coast Guard will review the study and provide any additional information at that time and

requests that the information provided be addressed in the Record of Decision.” Id. Contrary to

what the plaintiffs indicate, the November 2008 letter does not state that the project “will not

make navigation within the Project site more difficult,” Pls.’ Remain Mem. at 31, but instead

41 clearly states that the Coast Guard expected “a moderate impact on navigation safety,”

CW66389. Those impacts, and mitigation measures to lessen the impacts, are discussed in

attachments to the letter. See, e.g., CW66407-08. Relying on the Risk Assessment discussed

above, among other factors, the Coast Guard concluded that “navigation is capable of being done

safely.” CW66408. As far as concerns about inclement weather, the plaintiffs emphasize the

Coast Guard’s suggestion that smaller vessels will be “less prevalent” in poor weather, Pls.’

Remain Mem. at 32, and ignore the Coast Guard’s inclusion of “vessels of any size” as also

being “less prevalent” in such conditions, CW66406. Indeed, the Coast Guard considers other

weather-related factors, both in the Risk Assessment and in the attachments to the November

2008 letter. CW66406-07. Finally, the plaintiffs’ contention that the Coast Guard did not

adequately consider the effects on Coast Guard search and rescue operations is contradicted by

the record. The plaintiffs focus, Pls.’ Remain Mem. at 33, on the “four of 50 [search and rescue]

cases (8%) [that] involved the use of an aircraft for rescue,” without noting that “in only one case

did the aircraft actually effect a rescue,” CW66411. The Coast Guard concluded based on the

small number of actual rescues affected and other factors that search and rescue efforts would

not be adversely hindered. In short, there is substantial evidence in the record that the Coast

Guard considered and addressed the concerns that the plaintiffs raised with respect to the

November 2008 safety assessment letter, and thus, the Court finds that the Coast Guard did not

engage in arbitrary and capricious decisionmaking through the issuance of the letter.

Next, the plaintiffs contend that “the Coast Guard improperly dismissed the importance

of marine radar to navigational safety.” Pls.’ Remain Mem. at 29; see also id. at 34-41; Pls.’

Remain Opp’n at 42-45. In making this argument, they focus primarily on a report authored by

the Technology Service Corporation analyzing the effect of the Cape Wind project, which was

42 attached as part of Appendix M to the final EIS. See CW75940-86. In advancing their

arguments, the plaintiffs cherry pick quotes from the report, and invite the Court to examine

maps, images, and videos depicting various radar functioning related scenarios. See, e.g., Pls.’

Remain Opp’n at 34-35. As an initial matter, it would be improper for the Court to delve into

and analyze the scientific underpinnings of the report. But even if it could, the Coast Guard’s

findings, which are also contained in Appendix M, see CW75970-86, acknowledge and address

each of the points raised by the plaintiffs concerning the ability of radar operators to detect

potential dangers, compare Pls.’ Remain Mem. at 34-41 (raising concerns about false targets,

radar reflections, and impacts on Automatic Radar Plotting Aid systems), with CW75976-86

(discussing impacts on Automatic Radar Plotting Aid systems, false targets, and radar

reflections). And while the plaintiffs additionally attempt to undermine the Coast Guard’s

findings by pointing to alterations made to the Technology Service Corporation’s report and the

Coast Guard’s alleged failure to implement recommendations put forth by various individuals,

Pls.’ Remain Opp’n at 42-43, it is axiomatic that “the reasonableness of [an] agency’s action is

judged in accordance with its stated reasons” under the arbitrary and capricious standard of

review, and “the actual subjective motivation of decisionmakers is immaterial as a matter of

law—unless there is a showing of bad faith or improper behavior,” In re Subpoena Duces

Tecum, 156 F.3d 1279, 1279-80 (D.C. Cir. 1998). The Court cannot discern that the Coast

Guard engaged in improper behavior or acted in bad faith, and the plaintiffs have provided no

basis for the Court reaching that conclusion. The plaintiffs’ disagreement with the ultimate

findings made by the Coast Guard is not reason enough for the Court to deem the agency’s

decisionmaking arbitrary or capricious. Lastly, although the plaintiffs challenge, Pls.’ Remain

Mem. at 37-41, the Coast Guard’s finding that the impact on navigational safety would be

43 “moderate” with the implementation of the stated mitigation measures, CW75984-86, the Court

is not in a position to evaluate the adequacy of those measures. As the Court has already held,

there is substantial evidence to support the Coast Guard’s § 414 terms and conditions, and the

mitigation measures similarly enjoy adequate support in the administrative record. See, e.g.,

USCG 907-62 (analyzing navigational safety and discussing mitigation measures with respect to

both the Cape Wind project and offshore wind farms in other parts of the world); USCG417

(United Kingdom’s Maritime and Coast Guard Agency’s suggested “safety and mitigation

measures recommended for [offshore renewable energy installations] during construction,

operation and decommissioning”); USCG1111 (setting forth “example risk mitigation strategies”

adopted as part of the Coast Guard’s Navigation and Vessel Inspection Circular No. 02-07).

Accordingly, because there is a rational connection between the facts found and the decision

made, it was not arbitrary and capricious for the Coast Guard to find that the stated mitigation

measures would lessen the impact on navigational safety so as to render the impact moderate.

Finally, the plaintiffs argue that “the Coast Guard’s finding that buffer zones are

unnecessary is contradicted by the record and by Coast Guard Policy and is fundamentally

indefensible from a safety perspective,” thus resulting in arbitrary and capricious

decisionmaking. Pls.’ Remain Mem. at 29, 41-45; Pls.’ Remain Opp’n at 43-45. They contend

in essence that “the Coast Guard was required to address substantial questions raised by experts

regarding how a buffer zone would affect navigational safety in the Sound, not merely that it was

not necessary.” Pls.’ Remain Opp’n at 44. To the extent that the plaintiffs rely on experts’

comments that post-date the issuance of the Coast Guard’s findings, see id. at 43-44 (citing

comments from 2009 and 2012), their reliance on the comments is misplaced because “[i]t is a

widely accepted principle of administrative law that the courts base their review of an agency’s

44 actions on the materials that were before the agency at the time its decision was made,” IMS,

P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997). The remainder of the plaintiffs’ arguments

fail for the same reasons stated above, namely, that the Coast Guard’s finding that a buffer zone

was unnecessary is adequately supported by the record, see, e.g., CW75983 (analyzing the

Technology Services Corporation report); CW75986 (finding that mitigation measures obviate

the need for buffer zones), and significant deference is owed to those findings, Menkes v. DHS,

637 F.3d 319, 332 (D.C. Cir. 2011) (“[T]he potential ramifications of the agency’s decision

confirm that these are precisely the sort of complex, interstitial questions that the Coast Guard

deserves deference to address.”); Ill. Commerce Comm’n v. Interstate Commerce Comm’n, 749

F.2d 875, 882 n.10 (D.C. Cir. 1984) (“Because this conclusion required the agency to exercise its

expert knowledge of . . . an area in which the agency possesses a comparative advantage vis-à-

vis the courts, this court should accord substantial deference to the agency’s interpretation.”); see

also Collins, 351 F.3d at 1253; Cassidy, 471 F.3d at 84. While the record reflects debate within

the Coast Guard about the potential of a buffer zone, the Coast Guard’s stated reasons for not

including a buffer zone, which are what the Court must consider, In re Subpoena Duces Tecum,

156 F.3d at 1279, are adequately supported in the record.

In sum, the Coast Guard’s findings provide a rational explanation for the conclusion that

navigational safety will be only moderately impacted so long as the stated mitigation measures

are implemented, and the explanation is adequately supported by the administrative record. This

is all that the APA requires, and the plaintiffs’ charge that the Coast Guard’s findings are

arbitrary and capricious therefore fails. By the same token, the plaintiffs’ claim that the BOEM

violated the Shelf Lands Act by relying on the Coast Guard’s findings must also fail.

45 2. The BOEM’s Approval of the Construction and Operations Plan Without First Obtaining Geotechnical and Geophysical Studies

The plaintiffs argue that the BOEM violated the Shelf Lands Act by approving Cape

Wind’s Construction and Operations Plan without first receiving certain geotechnical and

geophysical studies from Cape Wind. 24 Pls.’ Remain Mem. at 47-54; Pls.’ Remain Opp’n at 63-

66. The Court disagrees.

The implementing regulations of the Shelf Lands Act direct parties seeking to conduct

renewable energy projects to submit, in addition to other documentation, a Construction and

Operations Plan that includes “the results of [certain] . . . surveys for the proposed site(s) of [the]

facility(ies).” 30 C.F.R. § 585.626(a). Specifically, the Construction and Operations Plan must

include the results of shallow hazards, geographical, biological, geotechnical, and archaeological

surveys, along with supporting data. Id. (detailing information required for each type of survey).

Here, there is no dispute that the BOEM wanted Cape Wind to conduct additional and more

detailed surveys than what it had provided to the agency during the review process. See, e.g.,

Pls.’ Remain Mem. at 48-52; Fed. Defs.’ Remain Mem. at 49-53; Int. Def.’s Remain Mem. at 52.

And the record makes clear that Cape Wind represented to the BOEM that additional financing

was required prior to conducting the surveys, see CW147710; CW235267, and that such

financing would be unavailable absent approval of its Construction and Operations Plan,

CW147710. The question thus centers on whether the BOEM appropriately approved a

departure from its regulations.

BOEM’s regulations provide for a departure from the general provisions of the

regulations in certain circumstances, see 30 C.F.R. § 585.103(a), but

24 The plaintiffs’ NEPA and NHPA arguments concerning these data are addressed later in this memorandum opinion.

46 (b) [a]ny departure approved under this section and its rationale must:

(1) [b]e consistent with [43 U.S.C. § 1337(p)] . . . ;

(2) [p]rotect the environment and the public health and safety to the same degree as if there was no approved departure from the regulations;

(3) [n]ot impair the rights of third parties; and

(4) [b]e documented in writing.

30 C.F.R. § 585.103(b) (emphasis added).

Under 30 C.F.R. § 585.103(a), approval of a departure is appropriate to, among other

things, “[f]acilitate the appropriate activities on a lease or grant under this part.” Id.

§ 585.103(a)(1). The plaintiffs argue unconvincingly that obtaining financing “is not an ‘activity

on a lease.’” Pls.’ Remain Mem. at 53 (quoting 30 C.F.R. § 585.103(a)(1)). The regulation,

however, refers not to “activities on a lease” but to the facilitation of such activities. 30 C.F.R.

§ 585.103(a)(1). Certainly, financing geophysical and geotechnical surveys is consistent with

the facilitation of “appropriate activities on a lease.” And the plaintiffs’ concern that granting a

departure for financial reasons equates to providing “no meaningful limit on what [the] BOEM

can approve without information [the] BOEM itself has determined to be required” under the

Shelf Lands Act, Pls.’ Remain Opp’n at 65, fails to take into account the substantive

requirements of 30 C.F.R. § 585.103(b), which must all be satisfied in order to warrant a lawful

departure.

Here, the requirements of 30 C.F.R. § 585.103(b) have been satisfied. Conducting the

surveys after approval of Cape Winds’ construction and operations plan is consistent with the

Shelf Lands Act’s requirement that the project be carried out in a manner that provides for

“safety” and for “protection of the environment.” See 43 U.S.C. § 1337(p)(4); 30 C.F.R.

§ 585.103(b)(1). In arguing to the contrary, the plaintiffs seem to miss that the Secretary’s

47 overall obligation under 43 U.S.C. § 1337(p)(4) to provide for safety is an obligation that applies

not only to approving individual steps of the process, such as the timing of the collection of

survey data, but rather to the entirety of the leasing process. And the plaintiffs’ suggestion that

the departure here is inconsistent with 43 U.S.C. § 1337(p) because it was not subject to notice

and comment, Pls.’ Remain Opp’n at 66, relies on a selective reading of the Shelf Lands Act,

which requires “public notice and comment on any proposal submitted for a lease,” 43 U.S.C. §

1337(p)(4)(K) (emphasis added). And a departure is not a lease proposal.

As to the remaining requirements, the Court does not find it inappropriate for the BOEM

to allow collection of data after approving the Construction and Operations Plan, given that the

data must still be collected and analyzed prior to commencing construction or otherwise

disturbing the seafloor, see, e.g., CW241409, and thus, the departure “[p]rotect[s] the

environment and the public health and safety to the same degree as if there was no approved

departure from the regulations,” 30 C.F.R. § 585.103(b)(2). The plaintiffs offer no argument that

the departure will affect the rights of any third parties, id. § 585.103(b)(3), and the Court discerns

none. Finally, the “rationale,” id. § 585.103(b)(4), for the departure is documented in writing,

see CW241409, and the departure itself is memorialized in the 2011 ROD, see CW119701-04,

and the lease itself, see CW119300-03. Although the BOEM could have more explicitly drawn a

connection between the departure and its rationale for granting it, the fact remains that both are

documented in writing in the administrative record. The regulation requires nothing more.

Accordingly, the Court finds that the BOEM complied with the Shelf Lands Act regulations

concerning the approval of departures from those regulations, and therefore grants summary

judgment to the defendants on the plaintiffs’ Shelf Lands Act claims.

48 C. Whether the Federal Defendants Violated the ESA

1. The Plaintiffs’ Claims Against the FWS

The plaintiffs contend that the FWS violated the ESA by improperly delegating to Cape

Wind and to the BOEM decisions concerning certain reasonable and prudent minimization

measures. Pls.’ ESA/MBTA Mem. at 20-29; Pls.’ ESA/MBTA Opp’n at 2-19. Specifically, they

argue that “the statutory language” of the ESA “plainly imposes an unequivocal duty on [the]

FWS to determine what [reasonable and prudent measures] are ‘necessary or appropriate to

minimize’ an action’s impact on listed species.” Pls.’ ESA/MBTA Mem. at 21 (quoting 16

U.S.C. § 1536(b)(4)). They maintain that the statute places that duty on the FWS to the

exclusion of any other entities. Id. The Court agrees.

In determining whether the FWS complied with the statutory mandates of the ESA, the

Court must again engage in the two-step inquiry set forth in Chevron, as discussed above.

Turning to the first step of the Chevron analysis, there is no question that the FWS has been

tasked with administering the ESA for certain species, 50 C.F.R. § 402.01(b), and that the Act

requires the FWS to issue an incidental take statement where it finds that agency action will

adversely impact a listed species, id. § 402.14(i). Moreover, it is clear that the FWS is required

to “[s]pecif[y] those reasonable and prudent measures that the Director considers necessary or

appropriate to minimize such impact.” Id. § 402.14(i)(1)(ii). Neither the ESA nor its

implementing regulations explicitly state whether the FWS is required to render independent

determinations concerning reasonable and prudent minimization measures included in incidental

take statements. The ESA and its regulations do state, however, that incidental take statements

must include “those reasonable and prudent measures that the Director [of] [the Fish and

Wildlife Service] considers necessary or appropriate.” Id. § 402.14(i)(1) (emphasis added); see

49 also 16 U.S.C. § 1536(b)(4)(ii) (requiring the Secretary to “specif[y] those reasonable and

prudent measures that the Secretary considers necessary or appropriate”) (emphasis added).

This Circuit construed similar statutory and regulatory language in Gerber v. Norton, 294

F.3d 173 (D.C. Cir. 2002). In Gerber, the Circuit addressed Section 10 of the ESA, 294 F.3d at

175-76, which provides that the FWS shall issue a permit for a taking “[i]f the [FWS] finds, after

opportunity for public comment, . . . that the applicant will, to the maximum extent practicable,

minimize and mitigate the impacts of such taking,” 16 U.S.C. § 1539(a)(2)(B)(ii). Gerber

considered whether “the issuance of [an] incidental take permit violated [S]ection 10 of the

ESA” where the FWS failed to make an independent determination concerning the applicant’s

mitigation of the impacts of the taking. 294 F.3d at 184-85. In that case, the FWS had

considered a “Reduced Impact Alternative” to the developer’s proposed project, but ultimately

decided against the alternative. Id. at 185. However, the Circuit noted that there was “no

evidence in the [administrative] record that the [FWS] ever made such a finding[, but the FWS]

did repeatedly observe that the developer had rejected the alternative.” Id. (emphasis in

original). “And [the FWS] noted that [the developer] did so out of concern that changing the

design would entail additional costs and delay the process of obtaining approval from” local

government entities. Id. In holding that the FWS had violated Section 10 of the ESA, the

Circuit stated that “[w]hen a statute requires an agency to make a finding as a prerequisite to

action, it must do so.” Id. at 185-86.

The defendants argue that Gerber is inapposite, because it construed a different section of

the ESA, involved different required findings, and did not involve another federal agency. See

Fed. Defs.’ ESA/MBTA Mem. at 27-28; Int. Def.’s ESA/MBTA Mem. at 23 n.13. These

arguments are unavailing. First, it is well established as a “normal rule of statutory construction

50 that identical words used in different parts of the same act are intended to have the same

meaning.” Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (citations and internal quotation marks

omitted). Here, both Sections 7 and 10 of the ESA refer to considerations and findings that “the

Secretary shall” make or reach. 16 U.S.C. § 1536(b)(4)(ii) (emphasis added); 16 U.S.C. §

1539(a)(2)(B). Moreover, neither the types of findings or considerations required in Sections 7

and 10 of the ESA nor the nature of the Section 7 consultation process have any bearing on the

fact that the FWS is the entity that must make the ultimate determination in both instances.

Here, the FWS’s incidental take statement discusses a potential “operational adjustment”

as a reasonable and prudent measure. FWS76. Specifically, the incidental take statement notes

that

[t]he [FWS] also considered a reasonable and prudent measure, an operational adjustment to the wind facility that would require the temporary and seasonal shut down of the [wind turbine generators] through the feathering of the rotors. Feathering of the rotors causes them to face the wind and stop spinning, and would reduce the risk of collision by roseate terns and, to a limited extent, migrating piping plovers transiting the Horseshoe Shoal project area.

FWS76-77 (emphasis added). Thus here, as in Gerber, the FWS found that a particular

mitigation measure would reduce take. However, also as in Gerber, the FWS went on to discard

the proposed reasonable and prudent measure because “it was determined by [the BOEM] and

[Cape Wind] . . . to not be reasonable and prudent based on” the failure to “meet the [reasonable

and prudent measure] regulatory definition as a ‘reasonable measure’ as it modifies the scope of

[a] project in a manner that is adverse to the project’s stated purpose and need.” FWS77 (first

emphasis added). The FWS stated again that the “[BOEM] considers that this may involve more

than a ‘minor change’” under 50 C.F.R. § 402.14(j)(2). Id. (emphasis added). The remainder of

the FWS’s explanation for casting away the feathering measure is couched in phrases beginning

with statements like “[the BOEM] has also determined” and “[the BOEM] indicates.” Id.

51 However, nowhere in the explanation is there an indication that the FWS made an independent

determination. This is unacceptable. While it is certainly possible that the feathering measure

would not comport with 50 C.F.R. § 402.14(i)(2), the ESA and its implementing regulations

require the FWS to make an independent determination. Because it seemingly did not do so, the

Court must grant summary judgment to the plaintiffs on their ESA claims against the FWS.

The defendants try to avoid this conclusion by pointing to places in the administrative

record where FWS personnel addressed the BOEM’s reasons for rejecting the feathering

reasonable and prudent measure. See Fed Defs.’ ESA/MBTA Mem. at 22 (citing FWS215;

FWS220). While it might be true that the FWS grappled with the issues raised by the BOEM, it

is not clear from the reasonable and prudent measures issued by the FWS that its ultimate

decision was based on its independent determination, or whether the FWS merely deferred to

determinations made by the BOEM and Cape Wind. As noted before, the reasonable and

prudent measures begin by observing that the proposed operational adjustment would reduce

take, at least to some extent. The FWS then proceeds to rely exclusively on BOEM and Cape

Wind determinations as the basis for not including the operational adjustment. Without any

indication that the FWS in fact made an independent determination about whether the adjustment

was appropriate, the Court cannot infer that such a determination ultimately factored into the

FWS’s decision.

The defendants also argue that language elsewhere in the statute and regulations suggests

that the FWS can and indeed should consult other agencies or entities in making its

determination. See, e.g., Fed. Defs.’ ESA/MBTA Mem. at 19-20 (citing 16 U.S.C. § 1536(a)(2)

and 50 C.F.R. § 402.14(g)(8)); Int. Def.’s ESA/MBTA Mem. at 21-23 (citing the same statutory

and regulatory provisions). While these provisions undoubtedly direct the FWS to consult and

52 work with other agencies and entities in carrying out its Section 7 duties, they do not in and of

themselves absolve the FWS of its responsibility to make an independent determination, albeit

after consideration of its consultations. And the Joint Consultation Handbook is not inconsistent

with this requirement. As the federal defendants point out, the Joint Consultation Handbook

directs that “[r]easonable and prudent measures and terms and conditions should be developed in

coordination with the action agency and the applicant,” FWS31117, and urges the FWS to

consult actively with action agencies based on the following understanding:

Section 7 consultation is a cooperative process. The [FWS] do[es] not have all the answers. Actively seek the views of the action agency and its designated representatives, and involve them in your opinion preparation, especially in the development of reasonable and prudent alternatives, reasonable and prudent measures, terms and conditions to minimize the impacts of incidental take, and conservation recommendations.

FWS31010-11. While collaboration is encouraged, the Joint Consultation Handbook does not

support the notion that the FWS should have deferred to the BOEM or Cape Wind when

discarding the operational adjustment at issue without at least making clear that it was doing so

based on its own independent determination of the issue. This is especially true given the

explicit finding that implementing the operational adjustment as a reasonable and prudent

measure would, at least to some extent, decrease the take of roseate terns and piping plovers.

See FWS76. The ESA required the FWS to independently make that determination, and “it must

do so.” Gerber, 294 F.3d at 185.

2. The Plaintiffs’ Claims Against the National Marine and Fisheries Service

The plaintiffs also contend that the NMFS violated the APA and the ESA by erroneously

concluding in its biological opinion that the Cape Wind project is not likely to adversely affect

right whales, failing to establish terms and conditions for the incidental take of right whales, and

failing to analyze the effect of preconstruction geological surveys on listed sea turtles. Pls.’

53 ESA/MBTA Mem. at 34-45; Pls.’ ESA/MBTA Opp’n at 29-44. The defendants argue that the

considerations that went into and the resulting conclusions of the NMFS biological opinion

complied with the ESA and the APA. Fed. Defs.’ ESA/MBTA Mem. at 39-45; Fed. Defs.’

ESA/MBTA Reply at 19-25; Int. Defs.’ ESA/MBTA Mem. at 35-45; Int. Defs.’ ESA/MBTA

Reply at 17-25.

a. Whether the NMFS’s Biological Opinion is Arbitrary and Capricious

As the Supreme Court recently reiterated,

[r]eview under the arbitrary and capricious standard is deferential; [courts] will not vacate an agency’s decision unless it has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its 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. [Courts] will, however, uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.

Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (citations and

internal quotation marks omitted).

Here, it cannot be said that the NMFS “entirely failed to consider an important aspect of”

the impact that the Cape Wind project might have on right whales. The NMFS biological

opinion considers the status of the North Atlantic right whale, including birth rates, the

availability of food, and the effects of human-caused mortalities from net entanglements, as well

as incidents such as ship strikes, on the viability of the species. NMFS1424-32. While the

biological opinion recognized that “right whale recovery is negatively affected by human sources

of mortality, which may have a greater impact on population growth rate given the small

population size and low annual reproductive rate of right whales,” NMFS1432, the opinion

stated also that “the population trend (i.e., whether increasing or declining) provides better

information for assessing the effects of a proposed action on the species,” NMFS1427. And

54 “[a]s described in previous [biological] [o]pinions, data collected in the 1990s suggested that

right whales were experiencing a slow but steady recovery.” NMFS1427-28; see also

NMFS1432 (citing data that indicates “an increasing population size of and positive growth rate

for North Atlantic right whales”). The biological opinion also discussed “federal activities” and

“numerous [other] recovery activities [that] are being implemented to decrease the adverse

effects of private and commercial vessel operations on the species in the [Cape Wind project]

area and during the time period of th[e] consultation,” NMFS1477, as well as activities aimed at

reducing the threat caused by entanglements, NMFS1481.

The biological opinion also took into account recent aggregations of right whales in

Rhode Island Sound, Nantucket Sound, and other nearby bodies of water, NMFS1498-502, and

ultimately concluded with respect to the recent aggregations that based on “a review of the

available scientific literature[,] . . . the use of Nantucket Sound by any species of whales,

including North Atlantic right whales is extremely limited” and there were “no observations

within Horseshoe Shoal where the project will be constructed.” NMFS1501. The biological

opinion continued “that right whale use of Nantucket Sound is likely to be rare, sporadic and

extremely limited in duration and frequency” and noted further that “the habitat within

Nantucket Sound is inconsistent with the habitat where right whales are typically found.”

NMFS1502. The opinion acknowledged that

as occasional whales have been documented off of Monomoy and Great Point and in the waters outside of Nantucket Sound that will be transited by project vessels (i.e., Rhode Island Sound and Buzzards Bay), it is reasonable to expect that these species may be present in those portions of the action area.

55 Importantly, the biological opinion also considered that the “increase in vessel traffic will

result in some increased risk of vessel strike of listed species,” including the right whale.

NMFS1510. The opinion noted, however, that

[i]n spite of being one of the primary known sources of direct anthropogenic mortality to whales, and to a lesser degree, sea turtles, ship strikes remain relatively rare, stochastic events, and an increase in vessel traffic in the action area would not necessarily translate into an increase in ship strike events. No vessel strike events have been reported in the action area.

Id. The NMFS took into account certain mitigation measures that the BOEM and Cape Wind

proposed to further minimize any risk of ship strikes. NMFS1510-11; NMFS1514. After

considering the various mitigation measures, the frequency and location of the recent whale

aggregations, and the status of right whales generally, the NMFS biological opinion found that

“there is not a reasonable likelihood that a construction vessel associated with the Cape Wind

project originating from the Quonset, [Rhode Island] staging site will collide with a whale” and

also that “the insignificant increase in traffic” represented by support vessels associated with the

project would result in a “discountable” likelihood of ships striking right whales. NMFS1514.

The Court’s role is not to second-guess the NMFS, but rather to ascertain whether the

administrative record demonstrates that the agency has considered the “relevant data and

articulate[d] a satisfactory explanation for its action” and whether the agency’s choice reflects “a

rational connection between the facts found and the choice made.” Bluewater Network, 370

F.3d at 11. With respect to the data, the ESA requires the NMFS to consider and to evaluate the

“relevant information” available, the “current status of the listed species,” and the “cumulative

effects” the project might have on listed species. 50 C.F.R. § 402.14(g). The NMFS is further

directed to carry out its responsibilities using “the best scientific and commercial data available”

and to “give appropriate consideration to any beneficial actions taken by” the BOEM or Cape

56 Wind. Id. § 402.14(g)(8). As demonstrated above and as evident in the NMFS 2010 biological

opinion, the agency considered the relevant required information. And because the NMFS

ultimately concluded that danger to right whales, though not nonexistent, is “insignificant or

discountable,” see NMFS1531; see also NMFS1514, the Court is satisfied that the biological

opinion represents “a rational connection between the facts found” and the choice made to issue

a finding that the Cape Wind project “is not likely to adversely affect listed whales in the action

area,” NMFS1531. Accordingly, the Court finds that the NMFS did not engage in arbitrary or

capricious decision-making by issuing its 2010 biological opinion.

The plaintiffs’ arguments to the contrary fall flat. As support for their position, they

point first, Pls.’ ESA/MBTA Mem. at 35, to an article entitled “Right Whales in Rhode Island

Sound: April 2010,” see NMFS1021-25; a map depicting the location of right whale sightings in

early 2010, see NMFS1012-13, and also focus particularly on the number of mother-calf pairs

among the recent sightings, see NMFS1017; NMFS2138. But as detailed above, the NMFS

considered the recent aggregations of right whales at length in its 2010 biological opinion. See

NMFS1498-502.

The plaintiffs next quibble with the biological opinion’s treatment of the danger posed by

certain maintenance vessels that will be used during the life of the Cape Wind Project. Pls.’

ESA/MBTA Mem. at 38-44. The plaintiffs’ contention that no consideration was given to the

increased traffic attributable to the Cape Wind project’s maintenance vessels overstates the

conclusions reached in the biological opinion. See, e.g., NMFS1514 (discussing the “large

number of commercial shipping and fishing vessels” transiting the same route and stating that

“[t]he small number of additional transits (2 per day) contributed by maintenance support vessels

57 represents a minimal increase in overall vessel traffic in the area”). Rather, the biological

opinion states that

due to the limited information available regarding the incidence of ship strike[s] and the factors contributing to ship strike events, it is difficult to determine how a particular number of vessel transits or a percentage increase in vessel traffic will translate into a number of likely ship strike events or a percentage increase in collision risk.

NMFS1510. And, as noted above, such ship strikes are “relatively rare” and the minimal

increased traffic “would not necessarily translate into an increase in ship strike events.” Id.

Despite the unlikely event of a ship strike, the BOEM and Cape Wind “proposed to implement . .

. mitigation measures to further reduce the likelihood of a project vessel interacting with a

whale.” NMFS1510 (citing Appendix A to the 2010 biological opinion). 25 Among the

mitigation measures is a requirement that watercraft of different lengths adhere to varying speed

restrictions. See NMFS1576 (Appendix A to the 2010 biological opinion). It follows that the

NMFS considered speed restrictions, and concluded that the allowable speed for the maintenance

vessels was acceptable. Although the plaintiffs might wish for a clearer indication of speed

considerations in the NMFS decision, courts “uphold decision[s] of less than ideal clarity if the

agency’s path may reasonably be discerned.” Nat’l Ass’n of Home Builders, 551 U.S. at 658.

And here the Court finds the NMFS’s path to its decision concerning speed restrictions to be

reasonably clear and thus rejects the plaintiffs’ arguments that the agency must further consider

the issue.

25 The plaintiffs erroneously state that the biological opinion “requires only one measure to minimize the risk that boats will hit right whales.” Pls.’ ESA/MBTA Mem. at 43 (citing NMFS1515). A list of mitigation measures is found in Appendix A to the 2010 biological opinion, NMFS1576-84, which in turn references and requires familiarity and training in accordance with certain agency implemented guidelines, NMFS1577. These guidelines comprise operational requirements, including instructions to decrease speed or alter course when a right whale is observed. See NOAA – National Marine Fisheries Service & National Ocean Service: Whalewatching Guidelines for the Northeast Region Including the Stellwagen Bank National Marine Sanctuary, available at NOAA, http://www.nmfs.noaa.gov/pr/pdfs/education/viewing_northeast.pdf (last visited Mar. 5, 2014).

58 b. Whether the NMFS Should Have Issued an Incidental Take Statement Concerning Right Whales

The plaintiffs argue that the NMFS violated the ESA by failing to include an incidental

take statement concerning the take of right whales with its 2010 biological opinion. Pls.’

ESA/MBTA Mem. at 42; Pls.’ ESA/MBTA Mem. at 38 (citing Pac. Shores Subdivision Cal.

Water Dist. v. U.S. Army Corps of Eng’rs, 538 F. Supp. 2d 242, 261 (D.D.C. 2008)). The Court

agrees.

The implementing regulations of the ESA provide that one of the NMFS’s

responsibilities during formal consultation is to “[f]ormulate a statement concerning incidental

take, if such take may occur.” See 50 C.F.R. § 402.14(g)(7). While this Circuit has not

addressed whether the regulations require the issuance of an incidental take statement where take

is not reasonably certain, the Ninth Circuit has ruled that a statement is generally required. Ctr.

for Biological Diversity v. Salazar, 695 F.3d 893, 910 (9th Cir. 2012) (stating that an incidental

take statement is required where threatened or endangered species “are present in the [action]

area” and the agency action is “reasonably certain to result in at least some nonlethal

harassment”). And a former member of this Court explicitly held that an incidental take

statement is required when take might occur, even where take is unlikely. In Pacific Shores

Subdivision California Water District v. United States Army Corps of Engineers, the FWS and

the Corps of Engineers had entered into formal consultation under Section 7 of the ESA. 538 F.

Supp. 2d at 246. At the conclusion of the consultation, the FWS issued a biological opinion

which found, among other things, that the proposed agency action “‘[was] not likely to

jeopardize the continued existence’ of any of the listed species.” Id. Although “the FWS

established that brown pelicans [were] present in the affected area and admitted that the brown

pelicans face a greater risk of take as a result” of the agency action, “the FWS failed to issue an

59 incidental take statement for the brown pelican.” Id. at 261. The defendants claimed that the

omission complied with the regulations due to “the low probability of take.” Id. However, the

Court found that

[t]his is a flawed interpretation of the FWS’s statutory obligation. The term “may” is broadly interpreted under ESA regulations and the FWS’s obligation to issue an incidental take statement was triggered by the possibility of take of the brown pelican, regardless of how unlikely that possibility may have seemed. 51 Fed. Reg. 19926, 19949 (June 3, 1986) (endorsing the definition of “may effect” for purposes of 50 C.F.R. § 402.14(a) as “[a]ny possible effect, whether beneficial, benign, adverse, or of an undetermined character.”). Accordingly, the FWS’s biological opinion is arbitrary and capricious because it fails to consider incidental take of the brown pelican.

Id. (second alteration in original) (citation omitted).

The Joint Consultation Handbook is not to the contrary. Rather, the Handbook includes a

standardized incidental take statement for situations “when no take is anticipated,” which in turn

suggests that the incidental take statement read as follows: “The Service does not anticipate the

proposed action will incidentally take any (species).” FWS31115.

Here, the NMFS included no incidental take statement for right whales, despite the fact

that the whales have traversed the Cape Wind project area and appeared along routes that will be

traveled by project vessels. And while the biological opinion states that the “NMFS [] concluded

that the proposed action is not likely to adversely affect right . . . whales and, therefore, is not

likely to jeopardize the[ir] continued existence,” NMFS1534, the NMFS did not state that

incidental take would not occur or was “not anticipated.” Accordingly, because incidental take

“may occur,” 50 C.F.R. § 402.14(g)(7), the NMFS was required to include an incidental take

statement with its biological opinion, and its failure to do so was arbitrary and capricious.

The federal defendants argue that no incidental take statement was required because the

“NMFS determined that [incidental] take [of right whales] would not occur,” Fed. Defs.’

60 ESA/MBTA Mem. at 44 (citing NMFS1531; NMFS1534-37); see also Fed. Defs.’ ESA/MBTA

Reply at 23 (“The administrative record shows that NMFS determined that take of right whales

was unlikely to occur.”), and cite Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife

Service, No. Civ 99-0673PHX RCB, 1999 WL 33722331, at *13 (D. Ariz. Dec. 14, 1999), aff’d,

273 F.3d 1229 (9th Cir. 2001), as support for their position. Contrary to the federal defendants’

assertions, the Ninth Circuit did not affirm the district court’s holding in Arizona Cattle that “an

[incidental take statement] is appropriate only when a take has occurred or is reasonably certain

to occur.” Fed. Defs.’ ESA/MBTA Reply at 22-23. Rather, the Ninth Circuit held that “it is

arbitrary and capricious to issue an [i]ncidental [t]ake [s]tatement when the Fish and Wildlife

Service has no rational basis to conclude that a take will occur incident to the otherwise lawful

activity.” Arizona Cattle, 273 F.3d at 1242. That holding was later clarified in Center for

Biological Diversity, where the Ninth Circuit said of its holding in Arizona Cattle: “We held in

that case that the Service could not attach binding conditions on permittees via an [incidental

take statement] where no listed species were present in the area and thus the agency ‘ha[d] no

rational basis to conclude that a take will occur incident to the otherwise lawful activity.’” Ctr.

for Biological Diversity, 695 F.3d at 910. Here, unlike in Arizona Cattle where there was no

evidence of the endangered species in the action area, there is evidence in the record that right

whales traverse the action area as well as the routes traveled by the project vessels. An

incidental take statement was therefore required.

The federal defendants also argue in a footnote that “[b]ecause Cape Wind has no

incidental take coverage for right whales, if there is a whale strike in the action area, which

would be the first of its kind in record history, NMFS1510, [the] NMFS would need to reinitiate

consultation.” Fed. Defs.’ ESA/MBTA Reply at 23 n.24. In making that assertion, the federal

61 defendants cite 50 C.F.R. § 402.16, which requires reinitiation of formal consultation when,

among other things, “the amount or extent of taking specified in the incidental take statement is

exceeded” or “new information reveals effects of the action that may affect listed species . . . in a

manner or to an extent not previously considered.” See 50 C.F.R. §§ 402.16(a), (b). The federal

defendants’ reading of the regulation does not make sense. In order for the “amount or extent of

taking specified in the incidental take statement” to be “exceeded,” it must be specified in the

first place. 26 Id. § 402.16(a). Further, a single whale strike would not necessarily rise to the

level of an “effect[] . . . not previously considered,” id. § 402.16(b), where the danger of a whale

strike has not been deemed impossible, but rather “not likely.” At what number of whale strikes

would the likelihood increase above “not likely” such that reinitiation of consultation would be

required? The Court cannot answer that question, but rather the issue should have been

addressed in an incidental take statement. Because the failure to include an incidental take

statement was arbitrary and capricious, and the Court must thus grant summary judgment to the

plaintiffs and remand the matter to the NMFS so that it can comply with the ESA and issue an

incidental take statement for the take of right whales along with its biological opinion.

c. Whether the NMFS Failed to Analyze the Effect of Construction on Listed Sea Turtles

The plaintiffs contend that the federal defendants “violated the ESA and APA by failing

to analyze the effect of noise from greatly expanded preconstruction surveys on listed sea

turtles.” Pls.’ ESA/MBTA Mem. at 44; see also Pls.’ ESA/MBTA Opp’n at 41-44. In particular,

the plaintiffs challenge the notion that “an increase of 10 to 20 times as many survey hours and a

26 To be sure, “[t]hat limit may be zero; that is, a valid [incidental take statement] may exempt no take.” Town of Superior v. U.S. Fish & Wildlife Serv., 913 F. Supp. 2d 1087, 1143 (D. Colo. 2012) (citing Natural Res. Def. Council, Inc. v. Evans, 232 F. Supp. 2d 1003, 1051 (N.D. Cal. 2002)). However, whether a threshold of zero is what was intended is not for the Court to say, but rather for the NMFS.

62 larger survey area” considered in the 2010 biological opinion “could possibly result in the same

level of harassment to turtles as the smaller survey” contemplated in the 2008 biological opinion.

Pls.’ ESA/MBTA Opp’n at 42. They are wrong.

To be sure, there is a considerable difference in the anticipated number of survey hours

contemplated by the two biological opinions. Compare NMFS920 (considering “one 36-hour

sampling event”), with NMFS1526 (“The applicant anticipates up to 5 months of survey activity

to cover the survey area, with between 330 and 660 hours of survey effort during this time.”).

And there is no question that the incidental take statements in both biological opinions exempted

the same number of turtles. Compare NMFS1414, with NMFS1536. But as the defendants point

out, see Fed. Defs.’ ESA/MBTA Mem. at 44, the NMFS exempted take of sea turtles with

reference to the density of sea turtles that would be affected, see NMFS929 (2008 incidental take

statement); NMFS1536 (2010 incidental take statement). 27 And although “Congress indicated its

preference for a numerical value” in incidental take statements, “it anticipated situations in which

impact could not be contemplated in terms of a precise number.” Arizona Cattle, 273 F.3d at

1250.

The plaintiffs assert that the 2008 biological opinion and incidental take statement

considered only the “project footprint,” whereas the 2010 biological opinion and incidental take

statement “include not only the footprint of the facility but also the transmission line to shore.”

Pls.’ ESA/MBTA Mem. at 44. While it is true that one sentence in the 2008 biological opinion

states that “[o]nly the project footprint on Horseshoe Shoal would be surveyed,” NMFS920, the

opinion states elsewhere that the surveys would cover “the offshore construction footprints and

associated work areas for all facility components, including the [wind turbine generators], the

27 Density is measured by the number of individuals of a species present within a given area. See, e.g., Davis. Latschar, 202 F.3d 359, 361 (D.C. Cir. 2000). It does not refer to the total population of a species. Id.

63 [electrical service platform], the inner array cables and the 115kV transmission cables to shore,”

NMFS830. Furthermore, the 2008 and 2010 biological opinions each provide the same number

of square kilometers that would be affected by the surveys. Compare NMFS929 (“During the

survey, an area of approximately 148 square kilometers will be surveyed.”), with NMFS1536

(same). Thus, although there is some contradiction within the 2008 biological opinion as to the

area considered for the survey, the contradiction does not, on the whole, suggest that the NMFS

considered a larger survey area in 2010 than it did in 2008. Rather, there appears to be a

“rational connection” between the facts found and the choice made, Bluewater Network, 370

F.3d at 11, and the Court therefore concludes that the NMFS’s consideration of the effects of the

preconstruction surveys on sea turtles complied with the ESA and was not arbitrary or

capricious. Accordingly, the Court grants summary judgment to the defendants as to the

NMFS’s incidental take statement for affected sea turtles.

D. The Plaintiffs’ Migratory Bird Treaty Act Claims

The plaintiffs also argue that they are entitled to summary judgment because the BOEM

has violated the Migratory Bird Treaty Act by approving the Cape Wind project without first

obtaining a permit from the FWS for the taking of migratory birds. Pls.’ ESA/MBTA Mem. at

29-34. In particular, they argue that “where, as here, (1) [an agency] concede[s] that the project

[it] was asked to approve will . . . [take] migratory birds . . . , and (2) no [Migratory Bird Treaty

Act] permit authorizes that take, then” the agency approval of the project is “‘arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.’” Pls.’ ESA/MBTA

Opp’n at 21 (quoting 5 U.S.C. § 706(2)(A)) (emphasis removed). The defendants respond that

the “BOEM was not required to obtain a[] [Migratory Bird Treaty Act] permit before approving

64 the Cape Wind project.” Fed. Defs.’ ESA/MBTA Mem. at 29; see also Int. Def.’s ESA/MBTA

Mem. at 27-32. 28 The Court agrees.

This Circuit “has held that the [Migratory Bird Treaty Act] applies to federal agencies.”

Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1031 (D.C. Cir. 2008) (citing Humane

Soc’y of the United States v. Glickman, 217 F.3d 882, 885-86 (D.C. Cir. 2000)). And the

Migratory Bird Treaty Act’s implementing regulations provide that “[a] special purpose permit is

required before any person may lawfully take . . . migratory birds, their parts, nests, or eggs for

any purpose not covered by the standard form permits” included elsewhere in the regulations. 50

C.F.R. § 21.27(a). But on its face, the Migratory Bird Treaty Act does not appear to extend to

agency action that only potentially and indirectly could result in the taking of migratory birds.

Rather, the text of the Act simply makes “unlawful” the taking of migratory birds, 16 U.S.C. §

703(a), and its implementing regulations provide for a “special purpose permit . . . before any

person may lawfully take . . . migratory birds,” 50 C.F.R. § 21.27(a) (emphasis added). There is

no mention of which entities must obtain a special purpose permit, nor is there an explicit

requirement that the permit be obtained at any time except “before” the taking occurs. Id. Even

if the taking of migratory birds takes place at some point in the future, it is clear that no such

taking has yet occurred and is not imminent at this point because construction of the Cape Wind

project has not begun and the wind turbine generators that might take migratory birds are not

operational.

28 Cape Wind additionally argues that the plaintiffs’ reading of the statute is too broad and would lead to absurd results, Int. Def.’s ESA/MBTA Mem. at 32-34 (“The legislative history of the [Migratory Bird Treaty Act] makes clear that the Act was passed to restrict human activity[, i.e., hunting or poaching,] directed at wildlife” (original emphasis)), but “[t]he [f]ederal [d]efendants do not join and in fact strongly disagree with Cape Wind Associates’ [] arguments regarding the scope of the [Migratory Bird Treaty Act] . . . ,” Fed. Defs.’ ESA/MBTA Reply at 14 n.13. “The general rule in this [C]ircuit is that ‘[i]ntervenors may only argue issues that have been raised by the principal parties.’” Ass’n of Battery Recyclers, Inc., 716 F.3d at 675 (quoting Nat’l Ass’n of Regulatory Util. Comm’rs, 41 F.3d at 729). Accordingly, the Court declines to address Cape Winds’ statutory interpretation argument.

65 Given the statutory and regulatory text, the Court finds that the BOEM did not violate the

Migratory Bird Treaty Act by merely approving a project that, if ultimately constructed, might

result in the taking of migratory birds. As the Circuit stated in Glickman, “[a]s § 703 is written,

what matters is whether someone has killed or is attempting to kill or capture or take a protected

bird, without a permit and outside of any designated hunting season.” 217 F.3d at 885. No such

taking is yet reasonably certain. The Court therefore grants summary judgment to the defendants

on the plaintiffs’ Migratory Bird Treaty Act Claims.

The plaintiffs cite several cases in support of their position that the BOEM’s was required

to obtain a permit prior to authorizing the Cape Wind project, but these cases are inapposite.

American Bird Conservancy did not hold that a federal agency’s “approval of actions in violation

of” the Migratory Bird Treaty Act constitutes agency action that is “‘contrary to law’ under the

APA.” Pls.’ ESA/MBTA Mem. at 33 (citing Am. Bird Conservancy, 516 F.3d at 1031). Rather,

the Circuit merely stated that the Federal Communications Commission had “acted reasonably in

deferring consideration of [the Migratory Bird Treaty Act] issue” in that case because the agency

had indicated that it was in the midst of an “ongoing nationwide proceeding” concerning its

approach to compliance with the Act. Am. Bird Conservancy, 516 F.3d at 1032. And the

circumstances of Glickman are not analogous to this case, because there the agency itself was

planning to take migratory birds. 217 F.3d at 884. Indeed, the cases cited by the plaintiffs each

involve cases where the violations of the Migratory Bird Treaty Act were attributed to the party

who committed the taking. See Pls.’ ESA/MBTA Mem. at 31-32 (citing United States v. Apollo

Energies, Inc., 611 F.3d 679, 682 (10th Cir. 2010) (“Appellants are two Kansas oil drilling

operators who were charged with violating the [Migratory Bird Treaty] Act after dead migratory

birds were discovered lodged in a piece of their oil drilling equipment called a heater-treater.”);

66 United States v. CITGO, 893 F. Supp. 2d 841, 842 (S.D. Tex. 2012) (“According to the

Indictment, . . . [killed migratory] birds were found in tanks owned by [the defendants].”);

United States v. Moon Lake Elec. Ass’n, 45 F. Supp. 2d 1070, 1071 (D. Colo. 1999) (“The

government alleges that Moon Lake has failed to install inexpensive equipment on 2,450 power

poles, causing the death or injury of 38 birds of prey . . . .”); United States v. Corbin Farm Serv.,

444 F. Supp. 510, 514-15 (E.D. Cal. 1978) (charging the defendants with causing the death of

several migratory birds by improperly applying pesticides to an alfalfa field)).

The plaintiffs argue that a recent NMFS application to the FWS for a permit authorizing

incidental take of migratory birds lends support to their assertion that the BOEM should have

applied for a permit in this case. See Pls.’ ESA/MBTA Mem. at 29 (citing Special Purpose

Application: Hawaii Longline Fishery, 77 Fed. Reg. 1501, 1502 (Jan. 10, 2012)). But the

existence of this application does not save the plaintiffs’ claims. The application concerned the

Hawaii-Based Shallow-Set Longline Fishery, a third-party project regulated by the NMFS which

became operational “in the late-1980s.” 77 Fed. Reg. at 1502. Thus, even if it is necessary for

the BOEM to apply for a permit from the FWS, it is not clear that the BOEM is required to do so

prior to when the Cape Wind project becomes operational, or at least not until the construction

has advanced to the point when the potential take of migratory birds would be considerably more

imminent than it is now.

E. The Plaintiffs’ Preservation Act Claims

All of the plaintiffs argue that they are entitled to summary judgment on their

Preservation Act claims because the federal defendants engaged in allegedly untimely and

meaningless Section 106 consultation and failed to identify on-shore historic properties in good

faith. Pls.’ Remain Mem. at 60-66; Pls.’ Remain Opp’n at 70-74; Wampanoag Mem. at 13-25;

67 Wampanoag Opp’n at 5-17. The PEER, Alliance, and Town of Barnstable plaintiffs additionally

argue that the federal defendants violated the Preservation Act by failing to conduct geographical

and geotechnical surveys in accordance with the Shelf Lands Act regulations. Pls.’ Remain

Mem. at 57-60; Pls.’ Remain Opp’n at 58-66. The defendants unsurprisingly assert that the

BOEM conducted timely and meaningful Section 106 consultation, properly identified historic

properties, and did not otherwise violate the Preservation Act. Fed. Defs.’ Remain Mem. at 58-

68; Int. Def.’s Remain Mem. at 64-71; Fed. Defs.’ Remain Reply at 15-17, 27-32; Int. Def.’s

Remain Reply at 23-30, 34-36; Fed. Defs.’ Wampanoag Mem. at 11-35; Int. Def.’s Wampanoag

Mem. at 16-30; Fed. Defs.’ Wampanoag Reply at 2-15; Int. Def.’s Wampanoag Reply at 3-17.

1. Whether the BOEM’s Section 106 Consultation was Untimely

The Preservation Act is a procedural statute that requires federal agencies to “‘stop, look,

and listen,’” or stated another way, “it requires federal agencies to take into account the effect of

their actions on structures eligible for inclusion in the National Register of Historic Places.” Ill.

Commerce Comm’n v. Interstate Commerce Comm’n, 848 F.2d 1246, 1260-61 (D.C. Cir. 1988).

A federal agency is not required “to engage in any particular preservation activities; rather,

Section 106 only requires that the [agency] consult the [State Historic Preservation Officer] and

the [Advisory Council on Historic Preservation] and consider the impacts of its undertaking.”

Davis v. Latschar, 202 F.3d 359, 370 (D.C. Cir. 2000). And where, as here, the undertaking

involves “historic properties of significance to Indian Tribes,” the agency must also consult and

consider the views of the affected tribes. See 36 C.F.R. § 800.2(c)(2)(ii). While an agency is

required to “ensure that the [S]ection 106 process is initiated early in the undertaking’s

planning,” there is little statutory guidance as to the appropriate timeline except that the timing

should allow for “a broad range of alternatives [to] be considered during the planning process for

68 the undertaking.” Id. § 800.1(c). The regulations do suggest, but do not require, that an agency

“should coordinate the steps of the [S]ection 106 process, as appropriate, . . . with any reviews

required under other” statutes, including the NEPA. Id. § 800.3(b). An agency also “must

complete the [S]ection 106 process ‘prior to the approval of the expenditure of any Federal funds

on the undertaking or prior to the issuance of any license,’” but “[t]his does not prohibit [an]

agency . . . from conducting or authorizing nondestructive project planning activities before

completing compliance with [S]ection 106, provided that such actions do not restrict the

subsequent consideration of alternatives to avoid, minimize or mitigate the undertaking’s adverse

effects on historic properties.” Id. § 800.1(c).

The administrative record demonstrates that these criteria were satisfied. The Section

106 consultation process began in 2005, CW112019, well before the 2010 Record of Decision

documenting the BOEM’s decision to issue a lease for the Cape Wind project. The State

Historic Preservation Officer and the Advisory Council were both included as consulting parties,

see CW44617; CW112019, as was the Wampanoag Tribe of Gay Head (Aquinnah), CW112021.

The 2010 Record of Decision acknowledges and explains its reasons for divorcing the NEPA and

Preservation Act timelines, explaining that rather than proceeding with a historic property

identification methodology that commenters found objectionable, the BOEM began its

identification process anew with a different identification methodology. CW112021. The

Section 106 consultation process thus involved the appropriate parties and was not conducted in

an untimely fashion.

The plaintiffs cite several documents in the administrative record as support for their

position that the consultation was subject to an arbitrary deadline. Pls.’ Remain Mem. at 62

(citing CW224910; CW359834; CW178879). This is a red herring. The documents comprise

69 emails in which BOEM personnel “jot[ted] down a rough timeline” that was “not cast[] in stone

but rather can serve as points of discussion,” CW224910, or other schedules for the completion

of various pieces of the administrative process, see CW359832-34 (“Critical Action Dates”);

CW178879 (schedule). The fact that the BOEM created schedules does not mandate the

conclusion that the agency did not intend to comply with its obligation to appropriately consider

the impacts of the Cape Wind project on historical properties. Neither the Preservation Act nor

its implementing regulations forbid the creation of schedules, and the plaintiffs cite no support

for their position to the contrary.

2. Whether the BOEM’s Section 106 Consultation was Meaningless or Otherwise not Conducted in Good Faith

The plaintiffs first argue that the Cape Wind project “required far more” time to identify

historic properties “than could be completed in five months.” Pls.’ Remain Mem. at 63; see also

Wampanoag Mem. at 13-15. This disregards the facts. Even ignoring that consultation began in

2005, the administrative record is clear that comments on the draft EIS spurred the BOEM to

renew efforts to identify affected historic properties and landmarks in 2008, and that consultation

did not conclude until April 2010 with the Advisory Council comment terminating the

consultation process. CW112021-24.

The plaintiffs also complain that the BOEM’s renewed identification efforts were

considered “insufficient” by the consulting parties, Wampanoag Mem. at 20-21; Pls.’ Remain

Mem. at 63, and cite, for example, an October 6, 2008 comment from the Martha’s Vineyard

Commission indicating that “hundreds, if not, thousands” of properties remained to be

considered, CW224865. But these comments were taken into account. While the plaintiffs

correctly note that the “BOEM’s environmental consultant . . . agreed that these comments had

‘merit,’” Pls.’ Remain Mem. at 63 (citing CW195859-65), the consultant merely suggested that

70 the BOEM “re-evaluat[e] . . . the [area of potential effect]” and stated that if the BOEM

“determines that a [good faith effort] to identify has been conducted,” then the BOEM should

respond as such to the comments, CW195859. Indeed, and as the consultant recognized,

“[a]rbitrary statements such as ‘there are other properties which were not included’ are not

specific enough to be helpful to the process of identifying properties.” Id. And as this Circuit

has stated, “[t]he regulations do not expressly require agencies in all cases completely to survey

impact areas, and in fact recognize that the need for surveys will vary from case to case.”

Wilson v. Block, 708 F.2d 735, 754 (D.C. Cir. 1983). Where, as here, “both the . . . survey[s],

and all other evidence, indicate that a complete survey would be fruitless,” further surveys are

not required. Id. In any event, the comments did not present “other evidence” which suggested

that further surveys would be beneficial, but rather stated in general terms that “other properties”

existed. This is not enough to render the BOEM’s identification efforts inadequate. Importantly,

the Advisory Council’s final comment terminating the Section 106 consultation noted that while

the BOEM’s “initial investigation of historic properties” included only “‘designated’ historic

properties,” eventually “these important issues” were “resolved.” CW112699. The Advisory

Council also stated that “the survey effort appears to have been sufficient to assess the potential

for archaeological resources.” CW112700.

The Wampanoag Tribe of Gay Head (Aquinnah) additionally argues that the “BOEM

dismissed the Tribe’s position that the Sound itself, rather than the specific locations from which

they viewed it, was a Traditional Cultural Property.” Wampanoag Mem. at 16. This is incorrect.

The final EIS and the 2010 Record of Decision each consider various cultural impacts, including

“[t]he altered view of the eastern horizon” and the Wampanoag Tribe of Gay Head’s “belie[f]

that the [Cape Wind project] would destroy the archaeological evidence of their history

71 throughout the Sound, including Horseshoe Shoal.” CW111975-76; see also CW157192;

CW157196-201. And the final EIS discusses and acknowledges the fact that “[t]he Wampanoag

consider the entirety of Nantucket Sound to be ancestral lands.” CW157201. Thus, although the

BOEM disagreed with the Wampanoag Tribe of Gay Head (Aquinnah)’s position that the Sound

was eligible as a Traditional Cultural Property, there is evidence in the record that the agency

took its view into account. The Preservation Act does not mandate a specific outcome, but rather

requires only that an agency consider the impact of its actions. Davis, 202 F.3d at 370. The

BOEM satisfied this requirement. And because it took these views into account, the subsequent

determination by the Keeper that Nantucket Sound was in fact eligible for listing in the National

Register does not change the Court’s conclusion.

The Wampanoag Tribe of Gay Head (Aquinnah)’s remaining Preservation Act arguments

fail for similar reasons. While the Tribe takes issue with the manner in which the Section 106

consultation occurred, see Wampanoag Mem. at 18-25, the administrative record demonstrates

that its views were considered, see, e.g., CW157196-201; CW111975-76. Even the Advisory

Council’s final comment, though expressing displeasure with various aspects of the Section 106

consultation process, found that “in spite of” early problems with the process,

the record shows that the tribes clearly identified their concerns about the effects of the undertaking on [traditional cultural properties] and about the importance of Nantucket Sound as a [traditional cultural property] and the location of former aboriginal lands in 2004. In 2009, [the BOEM] took steps to remedy deficiencies in the tribal consultation process by participating in site visits and consultation meetings on Cape Cod and the Islands.

CW112699-700. The plaintiffs’ disagreement with the BOEM’s decision to approve the Cape

Wind project does not mandate the conclusion that Section 106 consultation was conducted in

bad faith.

72 3. Whether the BOEM Violated the Preservation Act by Failing to Obtain Geotechnical and Geophysical Surveys Required by the Shelf Lands Act

Finally, the plaintiffs argue that the defendants’ failure to obtain certain geophysical and

geotechnical surveys required by the implementing regulations of the Shelf Lands Act renders

inadequate the BOEM’s survey efforts for potential cultural resources on the seabed. Pls.’

Remain Mem. at 57-60; Pls.’ Remain Opp’n at 58-66. While there is undoubtedly some overlap

between the surveys required for compliance with the Preservation Act and the Shelf Lands Act,

the plaintiffs have pointed to no requirement within the Preservation Act mandating the

completion of Shelf Lands Act surveys prior to concluding surveys for subsurface archaeological

resources.

Because Section 106 consultation was conducted with the appropriate parties, was neither

untimely nor conducted in bad faith, and because the Preservation Act does specify that the Shelf

Lands Act geophysical and geotechnical surveys be conducted prior to conclusion of Section 106

consultation, the Court grants summary judgment in favor of the defendants on the plaintiffs’

Preservation Act claims.

F. The Plaintiffs’ NEPA Claims

The plaintiffs have moved for summary judgment on their NEPA claims on several

grounds. The PEER, Alliance, and Barnstable plaintiffs argue that the final EIS was deficient

because it lacked necessary information, did not sufficiently review alternatives, and did not

sufficiently address cumulative impacts on wildlife. Pls.’ Remain Mem. at 68-80; Pls.’ Remain

Opp’n at 93-99. They also argue that Cape Wind’s Construction and Operation Plan constituted

a new major federal action that required a new EIS or at the very least a supplemental EIS. Pls.’

Remain Mem. at 81-89; Pls.’ Remain Opp’n 86-92. The Wampanoag Tribe of Gay Head

(Aquinnah) argues that the BOEM violated the APA and the NEPA by failing to address the

73 impact that the Cape Wind project would have on subsistence fishing, as well as by failing to

prepare a supplemental EIS subsequent to the Keeper’s determination that the Nantucket Sound

is eligible for inclusion on the National Register of Historic Places. Wampanoag Mem. at 25-43;

Wampanoag Opp’n at 17-21.

Like the Preservation Act, the “NEPA’s mandate ‘is essentially procedural.’” Nevada v.

Dep’t of Energy, 457 F.3d 78, 87 (D.C. Cir. 2006) (quoting Vt. Yankee Nuclear Power Corp. v.

Natural Res. Def. Council, Inc., 435 U.S. 519, 558 (1978)). It “requires each agency to assess

the environmental consequences of ‘major [f]ederal actions’ by following certain procedures

during the decision-making process,” including the preparation of an EIS. Id. (quoting 42 U.S.C.

§ 4332(2)(C)). “At the ‘heart of the [EIS]’ is the requirement that an agency ‘rigorously explore

and objectively evaluate’ the projected environmental impacts of all ‘reasonable alternatives’ to

the proposed action.” Id. (quoting 40 C.F.R. § 1502.14).

1. The BOEM’s Purpose and Need Statement

The plaintiffs contend that the need and purpose statement contained in the EIS was

deficient. Pls. Remain Mem. at 75-77. In evaluating the adequacy of an agency’s NEPA

decision-making, the Court “review[s] both [the] agency’s definition of its objectives and its

selection of alternatives.” Theodore Roosevelt Conservation P’ship v. Salazar (“Theodore

Roosevelt Conservation II”), 661 F.3d 66, 73 (D.C. Cir. 2011). So “long as the agency ‘look[s]

hard at the factors relevant to the definition of purpose,’” courts must “generally defer to the

agency’s reasonable definition of objectives.” Id. (quoting Citizens Against Burlington v. Busey,

938 F.2d 190, 196 (D.C. Cir. 1991)). On the other hand, courts must also “reject an

‘unreasonably narrow’ definition of objectives that compels the selection of a particular

alternative.” Id. (quoting Citizens Against Burlington, 938 F.2d at 196).

74 Here, the final EIS defined the purpose and need for the project as follows:

[T]o provide an alternative energy facility that utilizes the unique wind resources in waters offshore of New England using a technology that is currently available, technically feasible, and economically viable, that can interconnect with and deliver electricity to the New England Power Pool (NEPOOL), and make a substantial contribution to enhancing the region’s electrical reliability and achieving the renewable energy requirements under the Massachusetts and regional renewable portfolio standards (RPS).

CW65082. Especially when considered in light of Cape Wind’s proposal “to build, operate, and

eventually decommission a wind energy facility . . . in Nantucket Sound,” id., the statement of

need and purpose in the final EIS is reasonable. While it is clear that the Cape Wind proposal

seeks a particular outcome, the final EIS objectives are much broader. Namely, there is no

mention of a specific body of water or of a specific type of energy facility. Rather, the statement

calls for a facility that “us[es] a technology that is currently available, technically feasible, and

economically viable.” Id. The stated objective is even broader than the definition of objectives

in Theodore Roosevelt Conservation II, which the Circuit found to be reasonable despite the fact

that the objectives in that case concerned one specific project proposal. 661 F.3d at 73 (finding

reasonable a stated purpose and need “to act upon the Proponents’ proposal to revise . . . [a]

[record of decision] to expand the level of development by drilling 4,399 new producing wells

and to relax seasonal restrictions in certain areas” (internal quotation marks omitted)). The

Circuit considered and rejected the appellant’s argument in Theodore Roosevelt Conservation II

that the objectives were “unreasonably narrow,” after noting that “[t]he Bureau does not state a

purpose to enact or adopt the Operators’ proposal to some degree; rather, its purpose is to ‘act

upon’ that proposal.” Id. (emphasis in original). The stated objectives in this case are similarly

broad. The BOEM does not seek to enact or adopt a specific proposal, but rather seeks to

provide energy to a certain region of the country using an offshore alternative energy resource.

75 While it is true that the statement of purpose and need could have been even broader, the

statement was not unreasonably narrow. Accordingly, the Court finds that the statement of need

and purpose in the final EIS is not arbitrary or capricious.

2. The Range of Alternatives

The plaintiffs argue that the final EIS did not consider a reasonable range of alternatives.

Pls.’ Remain Mem. at 74. The Court disagrees. The final EIS lists ten alternative sites for the

offshore wind project:

1. Offshore Portland, Maine 2. Offshore Cape Ann, Massachusetts 3. Offshore Boston, Massachusetts 4. Offshore Nauset, Massachusetts (east of Nauset Beach) 5. Nantucket Shoals (southeast of Nantucket Island, Massachusetts) 6. Phelps Bank (southeast of Nantucket Island, Massachusetts) 7. East of Block Island, Rhode Island 8. Monomoy Shoals (east of Monomy, Massachusetts) 9. South of Tuckernuck Island 10. Horseshoe Shoals (proposed action)

CW65138. The final EIS sets forth the BOEM’s rationale for addressing the alternative sites:

The sites were chosen based on geographic diversity, having at least some potential in terms of wind resources, and the necessary area required for the proposed facility size. The Phelps Bank site was chosen as a result of a comment/request from the Massachusetts Office of CZM that an alternative be evaluated for a site located more than 25 miles (40 km) offshore with water depths less than 150 feet. The Offshore Nauset site was chosen as a result of agency interests in comparing a deep water alternative.

Id. Additionally, several “[n]on-geographic alternatives,” which include “design alternatives”

such as “modifications to the proposed action that reduce the scope . . . or temporal impacts”

were considered, including:

• Smaller Alternative (half of the [megawatt] capacity of the proposed action at the same location) • Condensed Array Alternative • Phased Development Alternative • No Action Alternative.

76 CW65139.

Seven of the geographic alternatives were “screened out” because they failed to comport

with the statement of need and purpose. CW65139-42 (eliminating geographic alternatives due

to, among other considerations, water depth, hostile seabed conditions, and distance from shore).

Thus, “further detailed analysis was not conducted and the reasons that each site was eliminated”

were briefly discussed in the final EIS. Id. The remaining geographic alternatives and all four

non-geographic alternatives were subsequently described at length, compared to the proposed

action (that is, to the Cape Wind proposal), and examined with an eye toward numerous

environmental, safety, socioeconomic, and cultural considerations, among others. CW65626-81.

Given this detailed and thorough analysis, the Court finds that the BOEM “selected a reasonable

range of alternatives in light of its purpose.” Theodore Roosevelt Conservation II, 661 F.3d at

74-75.

3. Whether the BOEM Acquired Information Sufficient to Characterize Environmental Impacts.

The plaintiffs complain that the “BOEM repeatedly deferred critical studies that NEPA

requires,” including additional data that the FWS suggested be obtained to assess the impact on

birds, Pls.’ Remain Mem. at 68-73, and on “navigational safety, shallow hazards safety, site

characterization and archaeological resources,” id. at 73-74. The Wampanoag Tribe of Gay

Head (Aquinnah) additionally argues that the potential impact on subsistence fishing was a factor

not adequately considered by the BOEM. Wampanoag Mem. at 25-32.

As the Supreme Court has noted, “[w]hen specialists express conflicting views, an

agency must have discretion to rely on the reasonable opinions of its own qualified experts even

if, as an original matter, a court might find contrary views more persuasive.” Marsh v. Or.

77 Natural Res. Council, 490 U.S. 360, 378 (1989). Thus, “[a]lthough an agency should consider

the comments of other agencies, it does not necessarily have to defer to them when it disagrees.”

Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir. 1999). Here, the

record indicates that the BOEM considered the FWS’s recommendation to collect additional data

concerning the impact on birds, but ultimately the BOEM decided that it had enough data to

complete its EIS. See CW67697-770 (responding to comments suggesting that the BOEM

obtain additional information about the project’s impacts on migratory birds). And while the

plaintiffs are correct, Pls.’ Remain Mem. at 70, that NEPA regulations require the inclusion of

information in an EIS where the “information [is] relevant to reasonably foreseeable significant

adverse impacts” and “is essential to a reasoned choice among alternatives,” 40 C.F.R.

§ 1502.22(a), the plaintiffs have made no showing that the additional data was “essential.”

Indeed, the FWS did not characterize the missing data as essential when it referenced those data

in its own biological opinion. See FWS4 (“[T]he unimplemented studies would not necessarily

yield information that would have significantly addressed the uncertainties in the analysis . . . .”).

The plaintiffs’ concerns about “navigational safety, shallow hazards safety, site

characterization and archaeological resources,” are based on the same arguments advanced with

respect to the Coast Guard’s findings and the Shelf Lands Act. See Pls.’ Remain Mem. at 73.

Because the Court has concluded that the Coast Guard’s findings are adequately supported by the

administrative record, and because the Court has found that the BOEM did not violate the Shelf

Lands Act, these arguments also cannot support the plaintiffs’ NEPA claims.

As noted earlier, the Wampanoag Tribe of Gay Head (Aquinnah) argues that the BOEM

failed to take a “hard look” at the Cape Wind project’s impact on subsistence fishing.

Wampanoag Mem. at 28. The Tribe contends first that the effects of “constant vibrations” were

78 not analyzed. Id. But this argument is directly contradicted by the final EIS. See CW65518-19;

CW65593. The Tribe next argues that the BOEM “provided no analytical support for” its

finding “that turbine-spacing would not significantly affect fishing activities or fish populations.”

Wampanoag Mem. at 29. But while the phrase to which the plaintiffs point does not cite to

studies about fish, see CW65593, there are discussions on the effects of the project on fish

elsewhere in the final EIS, see CW65518-19. And those discussions provide support for the

BOEM’s action, which discusses studies conducted with respect to operational offshore wind

farms in other parts of the world. Id. Finally, the Tribe faults the BOEM for categorizing its

comments concerning subsistence fishing as comments concerning commercial fishing.

Wampanoag Mem. at 31. The Tribe further argues that “conflating subsistence fishing with

commercial fishing implicates” several factors that the BOEM was required to consider under

the NEPA. Id. at 31-32. However, the final EIS does acknowledge the comments on subsistence

fishing separately from commercial fishing. See CW65593. While the conclusions about the

effects on the two types of fishing might be the same, the fact remains that both are considered in

the final EIS.

4. Whether the EIS Adequately Addressed Cumulative Effects on Wildlife.

The plaintiffs next argue that the BOEM “improperly constrained the scope of its analysis

by limiting its consideration of cumulative effects to the immediate Project area.” Pls.’ Remain

Mem. at 79. “Cumulative impact is the impact on the environment which results from the

incremental impact of the action when added to other past, present, and reasonably foreseeable

future actions regardless of what agency (Federal or non-Federal) or person undertakes such

other actions.” 40 C.F.R. § 1508.7. As the Supreme Court has stated, “identification of the

geographic area within which” cumulative environmental impacts “may occur[] is a task

79 assigned to the special competence of the appropriate agencies.” Kleppe v. Sierra Club, 427 U.S.

390, 414 (1976). Indeed, “[e]ven if environmental interrelationships could be shown

conclusively to extend across” a wider geographic scope than that chosen by an agency,

“practical considerations of feasibility might well necessitate restricting the scope of

comprehensive statements.” Id.

Aside from positing their own additional geographic areas for the BOEM’s consideration,

the plaintiffs have not presented the Court with a sufficient reason to invalidate the BOEM’s

choice. To be sure, in certain situations, a cumulative impact assessment should include inter-

regional effects in the manner described by the Circuit in Natural Resources Defense Council,

Inc. v. Hodel, 865 F.2d 288, 298-300 (D.C. Cir. 1988). However, in Hodel, the agency action

involved “simultaneous development” in adjacent marine environments. Id. at 297.

Accordingly, the Circuit agreed that the agency was required to address the inter-regional

cumulative impact of the simultaneous developments in the EIS, given that the marine species at

issue would “have to swim through each area, with no respite from the harmful effects of [the]

development.” Id. The Cape Wind project does not appear to implicate the same concerns, and

so the Court finds no reason to disturb the BOEM’s cumulative impact conclusions.

5. Whether the Construction and Operations Plan Constituted a new Major Federal Action.

The plaintiffs contend that the BOEM should have conducted another NEPA review of

the Construction and Operations Plan for the Cape Wind project and issued another EIS. See

Pls.’ Remain Mem. at 81. Alternatively, they argue, the BOEM should have issued a

supplemental EIS. See id. at 84-87.

A “major Federal action” is defined to include “projects and programs entirely or partly

financed, assisted, . . . or approved by federal agencies.” 40 C.F.R. § 1508.18(a). Approval of a

80 Construction and Operations Plan is undoubtedly federal action. See id. § 1508.18(b)(2)

(including the “[a]doption of formal plans, such as official documents . . . approved by federal

agencies which guide or prescribe alternative uses of Federal resources” among the definitions of

“[f]ederal actions”). As used in the NEPA regulations, the term “[m]ajor reinforces but does not

have a meaning independent of significantly.” Id. § 1508.18(b). And “[s]ignificantly as used in

NEPA requires considerations of both context and intensity.” Id. § 1508.27. This requires,

among others, consideration of “the affected region, the affected interests, and the locality”;

“[t]he degree to which the proposed action affects public health or safety”; “characteristics of the

geographic area such as proximity to historic or cultural resources”; and “[t]he degree to which

the possible effects on the human environment are highly uncertain or involve unique or

unknown risks.” Id. Here, these were the same factors considered at great length in the final

EIS. Indeed, “an agency need not supplement an EIS every time new information comes to light

after the EIS is finalized. To require otherwise would render agency decisionmaking intractable,

always updating information only to find the new information outdated by the time a decision is

made.” Marsh, 490 U.S. at 373 (footnotes omitted). Accordingly, the Court finds that the

approval of the Construction and Operations Plan did not constitute a new major federal action.

The plaintiffs’ references to BOEM regulations requiring NEPA review of such plans, Pls.’

Remain Mem. at 81, does not warrant a different conclusion because the regulations reference

only “an appropriate NEPA analysis,” 30 C.F.R. § 585.628(b). Such an analysis does not

necessarily entail a new EIS.

6. Whether Any New Information Required a Supplemental EIS.

Courts review an agency’s decision to issue a supplemental EIS under the arbitrary and

capricious standard. City of Olmstead Falls v. FAA, 292 F.3d 261, 274 (D.C. Cir. 2002). And

81 as the Circuit has explained, “a ‘supplemental EIS is only required where new information

provides a seriously different picture of the environmental landscape.’” Nat’l Comm. for the

New River v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004) (citation omitted); see also Marsh,

490 U.S. at 373 (“[A]n agency need not supplement an EIS every time new information comes to

light after the EIS is finalized.”). “‘Only those changes that cause effects which are significantly

different from those already studied require supplementary consideration.’” Davis, 202 F.3d at

369 (citation omitted). The decision whether a supplemental EIS is required is reviewed under

the arbitrary and capricious standard. Blue Ridge Envtl. Def. League v. Nuclear Regulatory

Comm’n, 716 F.3d 183, 195 (D.C. Cir. 2013).

The plaintiffs complain that a supplemental EIS is required because the Construction and

Operations Plan “includes a Safety Management System, Oil Spill Response Plan, Operations

and Maintenance Plan, and other details regarding the Project and its environmental

significance.” Pls.’ Remain Mem. at 84. This is incorrect for several reasons. First, these

concerns are not entirely new and were addressed in the final EIS. See, e.g., CW65381-86

(safety concerns and oil spills); CW66745-813 (draft oil spill response plan attached to final

EIS); CW65119-126 (operation and maintenance). Moreover, the fact that the Construction and

Operations Plan includes some new details or information on these subjects, or whether those or

other details otherwise relate to environmental concerns, is not the point. Rather, the

significance of the information is what drives the necessity for a supplemental EIS. And as this

Circuit recently reiterated, “[t]he determination as to whether information is either new or

significant ‘requires a high level of technical expertise’; thus” courts should generally defer to

the agency’s “informed discretion.” Blue Ridge Envtl. Def. League, 716 F.3d at 197 (quoting

Marsh, 490 U.S. at 377). The plaintiffs have not demonstrated how the BOEM’s analysis in its

82 2010 and 2011 Assessments was arbitrary or capricious. Instead, they list the new information

considered in each and label it significant. This is not enough.

The plaintiffs also argue that the recent aggregations of North Atlantic right whales

warranted a supplemental EIS. Pls.’ Remain Mem. at 85-87. However, as discussed above, the

NMFS completed a new biological impact statement in 2010, which addressed the recent

aggregation. The NMFS concluded, as it did in its 2008 biological opinion, that the Cape Wind

project was not likely to adversely affect the right whales. The BOEM subsequently included

this information in its 2011 Assessment. See CW119760-61; CW119780. Considering that the

NMFS’s conclusion did not change, the Court finds that it was not arbitrary or capricious for the

BOEM to decline to supplement its EIS as a result of the whale sightings.

The Wampanoag Tribe of Gay Head (Aquinnah) contends separately that the Keeper’s

determination that the Nantucket Sound is eligible for inclusion on the National Register was

another independent ground for the issuance of a supplemental EIS. See Wampanoag Mem. at

32-33. However, as discussed above, the BOEM took into account the Tribe’s comments that

the entirety of the Nantucket Sound was a traditional cultural property. Although the BOEM

disagreed and was ultimately incorrect about the Sound’s eligibility for inclusion on the National

Register, that does not mean that the BOEM did not take the comments seriously. See

CW111975-76 (considering “[t]he altered view of the eastern horizon” and the Wampanoag

Tribe of Gay Head’s “belie[f] that the [Cape Wind project] would destroy the archaeological

evidence of their history throughout the Sound, including Horseshoe Shoal”); see also

CW157192 (addressing visual impacts of the Cape wind project on, among other things, the

Wampanoag “ceremonies, spiritual and religious practices [that] are dependent upon maintaining

the ability to view the first light, the eastern horizon vista and viewshed”); CW157196-201

83 (discussing historical and cultural impacts, and acknowledging that “[t]he Wampanoag consider

the entirety of Nantucket Sound to be ancestral lands”). Thus, while the Keeper’s determination

was new information in a sense, it cannot be said that it was arbitrary and capricious for the

BOEM to decline to supplement its EIS in light of that information. Cf. Blue Ridge Envtl. Def.

League, 716 F.3d at 198 (finding that new information did not create need for additional NEPA

review where “the EIS addressed and dismissed precisely the risks that gave rise” to the concerns

raised by the new information).

Finally, the plaintiffs fault the BOEM for failing to analyze alternatives in its 2010 and

2011 Assessments. See Pls.’ Remain Mem. at 74, 88-89 (citing 40 C.F.R. § 1502.14). By its

terms, however, the regulation cited by the plaintiffs requires the consideration of alternatives

only when an agency issues an EIS. The plaintiffs also take issue with the level of public

comment sought on the 2010 and 2011 Assessments. See id. at 87-89 (citing 40 C.F.R. §

1501.4(e)). However, an “agency has significant discretion in determining when public

comment is required with respect to [environmental assessments].” Blue Ridge Envtl. Def.

League, 716 F.3d at 189 (citation omitted). Here, the BOEM did, in fact, invite public comment

on both environmental assessments. See, e.g., CW111956-57; CW119705. Moreover, the CEQ

regulations do not “impose a [finding of no significant impact] requirement” where “an agency

[is] deciding, on the basis of an [environmental assessment], whether to issue a supplemental

EIS. The regulations require [findings of no significant impact] only when the agency employs

an [environmental assessment] to decide whether to issue an initial EIS.” Del. Dep’t of Natural

Res. & Envtl. Control v. U.S. Army Corps of Eng’rs, 685 F.3d 259, 273 (3d Cir. 2012) (citing 40

C.F.R. § 1501.4(e)) (emphasis added); see also Natural Res. Def. Council v. Kempthorne, 525 F.

Supp. 2d 115, 121 (D.D.C. 2007) (“[The] plaintiffs[] contend that [the agency] should have

84 circulated the draft [environmental assessments] for public comment because [it] deferred

evaluating the site-specific environmental impacts of the project until proposals for development

of specific well sites were submitted. This argument is also to no avail because neither the

applicable regulations, nor relevant caselaw, require such notice and comment.”) (citations

omitted). In other words, where, as here, an agency “has prepared [an] [environmental

assessment] . . . . to determine whether [it] can make a [f]inding of [n]o [n]ew [s]iginficant

[i]mpact . . . or should prepare a [s]upplemental [EIS] . . . ,” see CW119745, the requirements of

40 C.F.R. § 1501.4(e) do not apply to require the agency to submit the environmental assessment

for public notice and comment, but rather require the agency to involve the public only “to the

extent practicable,” TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 861

(D.C. Cir. 2006) (citing and comparing 40 C.F.R. §§ 1501.1, 1501.3, 1501.4). 29 Here, the

BOEM undoubtedly involved the public in the review of both the 2010 and 2011 Assessments.

G. The Plaintiffs’ Remaining Claims

In its complaint, the Town of Barnstable advance in its first five claims for relief Shelf

Lands Act and NEPA violations that center on the federal defendants’ failure to take certain

action concerning aviation safety. See Barnstable Compl. ¶¶ 175-99. However, these aviation

related allegations are not addressed in the plaintiffs’ briefs. 30 To the extent that the plaintiffs

29 Even if 40 C.F.R. § 1501.4(e) does apply here, it is not clear that the BOEM violated that regulation. The 2010 Assessment was subject to notice and comment. See CW111956-57. And while the BOEM invited comments on the 2011 Assessment only by posting the assessment on its website, see CW119705, NEPA regulations require only public “review” of environmental assessments, not public “notice and comment.” 40 C.F.R. § 1501.4(e)(2). The regulations elsewhere refer to “[r]equest[ing] comments from the public,” see, e.g., id. § 1503.1(a)(4), which suggests that something less than the usual public notice and comment is not inappropriate for environmental assessments subject to § 1501.4(e)(2). 30 The most that the plaintiffs do is refer to aviation safety once in the context of their NEPA claims, see Pls.’ Remain Mem. at 73-74, while simultaneously acknowledging that the Circuit recently remanded the safety issue to the FAA in Town of Barnstable v. FAA, 659 F.3d 28, 36 (D.C. Cir. 2011), and indeed, the Circuit subsequently found that the Federal Aviation Administration’s analysis was reasonable, Town of Barnstable v. FAA, 740 F.3d 681 (2014). In any event, even this passing reference to aviation safety was subsequently removed from the (continued . . . )

85 fail to advance additional arguments concerning aviation safety, the Court deems these aspects of

the plaintiffs’ NEPA claims abandoned. See Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667,

678 (1st Cir. 1995) (“Even an issue raised in the complaint but ignored at summary judgment

may be deemed waived.”); Noble Energy, Inc. v. Salazar, 691 F. Supp. 2d 14, 23 n.6 (D.D.C.

2010) (same).

Similarly, the Alliance plaintiffs allege violations of the Clean Water Act and the Rivers

and Harbors Act. See Alliance Compl. ¶¶ 177-93. While both statues are mentioned in passing

in the plaintiffs’ legal memoranda, see Pls.’ Remain Mem. at 5, 8 n.6, 9; Pls.’ Remain Mem. at

36, the plaintiffs advance no arguments concerning these claims. Even if the Court construed the

plaintiffs’ passing references to the Clean Water Act and the River Harbors Act as legal

arguments, the plaintiffs fail entirely to support their arguments with citations to the

administrative record. While it is true that a party does not abandon a claim by not briefing it in

a partial motion to dismiss other claims, see Fund for Constitutional Gov’t v. Nat’l Archives &

Records Serv., 485 F. Supp. 1, 4 (D.D.C. 1978), aff’d, 656 F.2d 856 (D.C. Cir. 1981), the

plaintiffs did not make any arguments concerning either statute in their first partial motion for

summary judgment, and represented to the Court that their second partial motion for summary

judgment addressed “all remaining claims presented in their consolidated cases,” see Pls.’

Remain Mot. at 1. Accordingly, the Court deems the claims abandoned. See Grenier, 70 F.3d at

678 (“Even an issue raised in the complaint but ignored at summary judgment may be deemed

waived.”); Noble Energy, 691 F. Supp. 2d at 23 n.6 (same).

(. . . continued) plaintiffs’ briefs through an errata. See Errata: Corrected Memorandum in Support of Motion for Summary Judgment, ECF No. 286 at 2 (“Change air safety to other statutory obligations.” (emphasis in original)).

86 H. The Plaintiffs’ Rule 56(e) Motion for Additional Discovery or, in the Alternative, to Strike

In light of the Court’s finding above, based on the existing administrative record, that the

BOEM complied with its Shelf Lands Act regulations for approving a departure, the plaintiffs’

motion to strike the federal defendants’ references to documents outside of the administrative

record is denied. The Court need not strike documents that were not before it in the first place

and moreover that were not considered.

The Court also denies the plaintiffs’ motion for additional discovery. Although the

plaintiffs may be correct that it was improper for the defendants to attempt to introduce the

document in question into the record, the federal defendants did not concede that the document

was or should have been a part of the administrative record. Rather, they referenced the

document under the auspices of providing the Court with “an internal memorandum that was

withheld from the administrative record as deliberative material” if the Court deemed the

documents in the administrative record insufficient. Fed. Defs.’ Remain Mem. at 55 n.26. The

Court previously issued an order indicating that such memoranda are not part of the

administrative record as a matter of law, and that the plaintiffs were not entitled to review them.

See May 16, 2013 Order, ECF No. 273, at 4-5 (citing Nat’l Ass’n of Chain Drug Stores v. HHS,

631 F. Supp. 2d 23, 27 (D.D.C. 2009); In re Subpoena Duces Tecum, 156 F.3d at 1279). Further, as

the Court stated, “[i]t is well established in this Circuit that the [APA] ‘limits judicial review to

the administrative record except where there has been a strong showing of bad faith or improper

behavior or when the record is so bare that it prevents effective judicial review.’” Id. at 6

(quoting Theodore Roosevelt Conservation P’ship v. Salazar (“Theodore Roosevelt Conservation

I”), 616 F.3d 497, 514 (D.C. Cir. 2010)). Here, there has been no showing or allegation of bad

faith, and the Court was able to rule on the plaintiffs’ claims based on the existing administrative

87 record and without considering the subject documents. Thus, additional discovery, whether in

the form of allowing the plaintiffs access to documents outside of the administrative record or

conducting depositions, Pls.’ 56(e) Mot. at 3-4, is unwarranted.

IV. CONCLUSION

For the foregoing reasons, the Court grants summary judgment to the plaintiffs on their

claims that the FWS violated the ESA by failing to make an independent determination about

whether the feathering operational adjustment was a reasonable and prudent measure, and the

Court will therefore remand this case to the FWS for it can make the required independent

determination on this point. The Court also grants summary judgment to the plaintiffs on their

claims that the NMFS violated the ESA by failing to issue an incidental take statement for the

take of North Atlantic right whales, and the Court will therefore remand that issue to the NMFS

for the issuance of an incidental take statement on this subject. Otherwise, the Court grants

summary judgment to the defendants on the plaintiffs’ remaining claims. Finally, the Court

denies the plaintiffs’ Rule 56(e) motion for additional discovery or, in the alternative, to strike. 31

SO ORDERED this 14th day of March, 2014.

REGGIE B. WALTON United States District Judge

31 The Court will issue an order contemporaneously with this Memorandum Opinion.