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National Audubon Society, Inc. v. United States Fish & Wildlife Serv.

United States District Court, E.D. New York

October 17, 2014

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

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For National Audubon Society, Inc., Plaintiff: Christopher A. Amato, Hannah Chang, LEAD ATTORNEYS, Earthjustice, New York, NY; Katherine Eleanor Ghilain, LEAD ATTORNEY, Arnold & Porter LLP, New York, NY.

For Fire Island Lighthouse Preservation Society, Inc., Plaintiff: Maureen T. Liccione, LEAD ATTORNEY, Jaspan Schesinger Hoffman, LLP, Garden City, NY.

For United States Fish and Wildlife Service, United States Army Corps of Engineers, Sally Jewell, in her official capacity as Secretary, Department of the Interior, Daniel M. Ashe, in his official capacity as Director, U.S. Fish and Wildlife Service, Wendi Weber, in her official capacity as Northeast Regional Director, U.S. Fish and Wildfish Service, Lieutenant General Thomas P. Bostick, in his official capacity as Commanding General and Chief of Engineers, U.S. Army Corps of Engineers, Colonel Paul E. Owen, in his official capacity as New York District Commander, U.S. Army Corps of Engineers, Defendants: Farzin Franklin Amanat, LEAD ATTORNEY, United States Attorneys Office, Eastern District of New York, Brooklyn, NY.

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OPINION & ORDER

Sandra J. Feuerstein, United States District Judge.

I. Introduction

On September 12, 2014, plaintiff National Audubon Society, Inc. (" plaintiff" ) filed: (1) a complaint pursuant to the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701-706, against defendants United

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States Fish and Wildlife Service (" FWS" ); United States Army Corps of Engineers (" Army Corps" ); Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior (" DOI" ); Daniel M. Ashe, in his official capacity as Director of the FWS; Wendi Wever, in her official capacity as Northeast Regional Director of the FWS; Lieutenant General Thomas P. Bostick, in his official capacity as Commanding General and Chief of Engineers of the Army Corps; and Colonel Paul E. Owen, in his official capacity as New York District Commander of the Army Corps (collectively, " defendants" ), challenging (a) a Biological Opinion issued by the FWS under Section 7(a)(2) of the Endangered Species Act (" ESA" ), 16 U.S.C. § 1536(a)(2), on or about May 23, 2014 (" the Biological Opinion" ), and (b) a final Environmental Assessment (" EA" ) and Finding of No Significant Impact (" FONSI" ) issued by the Army Corps under the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321-4375, relating to the Fire Island Inlet to Moriches Inlet Fire Island Stabilization Project (" the Project" ); and (2) an application pursuant to Rule 65 of the Federal Rules of Civil Procedure seeking a temporary restraining order and preliminary injunction enjoining defendants " from undertaking, either directly or indirectly, or causing or allowing [their] contractors * * * to undertake, the destruction or modification of upland areas, beaches, intertidal areas, tidal flats, ephemeral pools, and shorelines at Smith Point County Park and Fire Island Lighthouse Beach [" Lighthouse Beach" ] on Fire Island, Suffolk County, New York, including the construction of dunes, berms or roads, the operation of motorized equipment, and any other activity that alters or may have the effect of altering, either temporarily or permanently, the physical condition of the aforementioned areas [pending a ruling on plaintiff's motion for a preliminary injunction and during the pendency of this action, respectively]." (Order to Show Cause for Temporary Restraining Order and Preliminary Injunction [" OTSC" ] at 2-3). By order dated September 12, 2014, inter alia : (1) defendants were ordered to show cause, by filing a memorandum in response to the plaintiffs application and any supporting evidence on or before September 18, 2014, why the preliminary injunction should not be issued; and (2) plaintiff's application for a temporary restraining order (" TRO" ) was granted upon its posting of an undertaking in the amount often thousand dollars ($10,000.00) pursuant to Rule 65(c) of the Federal Rules of Civil Procedure. Plaintiff posted the required undertaking on September 15, 2014.

Subsequently, defendants moved, inter alia, to dissolve the TRO pursuant to Rule 65(b)(4) of the Federal Rules of Civil Procedure and to extend the briefing schedule for the preliminary injunction motion. By order dated September 17, 2014, defendants' motion was granted to the extent that their time to serve and file opposition to plaintiff's preliminary injunction motion was extended to October 2, 2014 and plaintiff's time to serve and file any reply was extended to October 6, 2014. Thereafter, plaintiff moved pursuant to Rule 408 of the Federal Rules of Evidence to strike certain paragraphs and exhibits of the Declaration of F. Franklin Amanat, dated September 16, 2014, submitted by defendants in support of their motion to dissolve the TRO (" the Amanat declaration" ).

Also pending before the Court is the motion of Fire Island Lighthouse Preservation Society (" FILPS" ) for leave to file a brief amicus curiae in opposition to plaintiff's motion for a preliminary injunction.

For the reasons set forth herein, all of the above referenced motions are denied.

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II. Background

A. Factual Background

1. The Project

The Project area stretches from Robert Moses State Park in the west to Smith Point County Park (" the Park" ) in the east, for a total of nineteen (19) miles, on Fire Island, New York. (Biological Opinion [" Bio. Op." ] at 10). The Project includes " dune and beach construction * * * [and] beach fill tapers (lateral extensions of dune and beach fill)" on Fire Island. (Bio. Op. at 5). The stated purpose of the Project is " to address shoreline erosion on Fire Island that occurred as a result of Hurricane Sandy [" the storm" ] and to provide a level of storm damage protection to mainland developments * * *. (Id. at 10). Specifically, " [t]he storm created three breaches and extensive overwash areas on the eastern end of Fire Island," (id. at 11), particularly in the Park. (Id.)

2. Consultation

On or about December 9, 2013, the Army Corps transmitted to the FWS the plan layout designs for the Project. (Bio. Op. at 5).

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

On or about December 16, 2013, the Army Corps transmitted to the FWS a preliminary Draft Environmental Assessment (" Draft EA" ), including two (2) alternatives, i.e., a " No Action Alternative" and a " Beach Fill Alternative," that did not include a biological assessment for piping plovers because it was " being revised based on the December 13, 2013[] meeting." (Bio. Op. at 5-6).

On or about December 18, 2013, the Army Corps convened a meeting with the FWS, National Park Service (" NPS" ), New York State Department of Environmental Conservation (" NYDEC" ), Suffolk County Department of Parks, Recreation and Conservation (" SCDPRC" ) and Suffolk County Department of Public Works (" SCDPW" ) " to discuss endangered species conservation measures and habitat restoration alternatives in the proposed [P]roject area." (Bio. Op. at 6). The Biological Opinion indicates that at that meeting, the Army Corps " slightly modifie[d] the dune alignment at [Lighthouse Beach] * * * to address the [FWS's] December 13, 2013[] comments[; ] * * * propose[d] to lower tolerance limits for berm elevation to 0.5 ft from 1.0 ft[; ] [and] propose[d] several options for vegetation maintenance throughout the [P]roject area[] and habitat restoration near the east end of [the Park] in an area known as Great Gun Beach." (Id.)

On or about December 19, 2013, the Army Corps provided the FWS " its final

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proposed dune and berm alignment for the [Park] portion of the [P]roject area[,]" including modifications for " dune and beach construction, vegetation maintenance in piping plover breeding habitat, and habitat restoration at the eastern end of [the Park]," (Bio. Op. at 6), " based upon feedback the [Army] Corps received during * * * [the December 18, 2013] meeting * * *." (Chang Decl., Ex. 6).

On or about January 9, 2014, the FWS transmitted correspondence to the Army Corps, inter alia, concurring with the Army Corps that the modifications adopted by it " are an improvement over [its] earlier proposed plan and impact less habitat than the earlier proposal," (Chang Decl., Ex. 6), but " identifying additional alternatives the [Army] Corps should consider for the [Park] portion of the project area," (Bio. Op. at 6), to " further diminish the impacts to habitat and provide storm protection[,]" (Chang Decl., Ex. 6). Those additional alternatives include " construct[ion] of an enhanced berm" only, with " no solid dune," at the Park; an " experimental" " 'staggered dune' approach at [the Park] that would consist of two lines of dunes with overlapping staggered openings[; ]" not having a dune constructed through " at least one of the three overwash lobes[; ]" and having " breaks in the dunes[.]" (Id.) The FWS indicated, inter alia, that " [a]lthough [it] appreciate[s] monitoring and adaptive management of vegetation in specific [Park] areas, preserving the[] ocean-to-bay overwash lobes is most likely to provide the most recovery benefits." (Id.)

On or about January 10, 2014, the Army Corps provided the FWS with " updated project plans for a portion of the [P]roject at [the Park] * * * advis[ing] that the constructed dunes must be straight lines, with as shallow transitions as possible, but they can be modified during the Plans & Specification period of project planning[] * * * [and] that the back slope of the dune design can be modified slightly * * * for a 'smaller' overall foot print." (Bio. Op. at 6).

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

On or about February 4, 2014, inter alia, the FWS received the Army Corps's Biological Assessment (" BA" ) and request for initiation of formal consultation pursuant to section 7 of the ESA for, inter alia, the piping plover, (Bio. Op. at 7).

On or about February 7, 2014, the Army Corps informed the FWS: (1) " that no beach fill will be placed within 1000 meters (m) of known populations of piping plover * * * during the breeding season[,]" (Bio. Op. at 7); and (2) that it expects " the effects of the [Project] will provide storm damage protection for approximately five years and then erode over the next five years to a point where it would not provide storm damage protection." (Bio. Op. at 7).

On or about February 12, 2014, the FWS met with the Army Corps, DOI, NPS and USGS to discuss the Project, the Army Corps's ESA responsibilities and the schedules for the BA and Biological Opinion. (Bio. Op. at 7).

On or about February 14, 2014, the FWS transmitted written comments to the Army Corps on, inter alia, the Project design. (Bio. Op. at 7).

Between February 20-21, 2014, a meeting, attended by the FWS, Army Corps, NPS and USGS, was held to discuss, inter alia, " the proposed [P]roject in more detail, looking at [P]roject features that

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would minimize impacts to listed species in the [P]roject area." (Bio. Op. at 8).

On or about February 28, 2014, the Army Corps transmitted, inter alia, a revised BA to the FWS, (Bio. Op. at 8), modifying its original BA to increase habitat in the Great Gun Area at the Park to be " managed for piping plovers to mitigate effects of [the Project]" from almost sixteen (15.7) hectares to nearly thirty-four (34) hectares, (Bio. Op. at 141), and to implement an additional six (6) hectare dredge site restoration on the bay side of the Park, south of New Made Island, to be " designed and managed to provide nesting and foraging habitat for plovers," (id. at 142).

On or about March 3, 2014, the Army Corps transmitted to the FWS, inter alia, its determination that the Project " may affect, and would be likely to adversely affect the piping plover * * *." (Bio. Op. at 8).

On or about March 4, 2014, (1) biologists from the FWS and Army Corps discussed the Project " and several areas where clarification in the [P]roject description [was] needed[,]" (Bio. Op. at 8); (2) the Army Corps " follow[ed] up via electronic correspondence addressing such issues as local maintenance of the [P]roject, land use management that might occur in the [P]roject area after construction, and [its] commitment to continue to work with the [FWS] on issues related to predator management and pre-, concurrent, and post- construction monitoring in the [P]roject area[,]" (id); and (3) the FWS transmitted to the Army Corps correspondence accepting the BA, thereby officially beginning the process of formal consultation under the ESA. (Id.)

On or about May 7, 2014, a meeting, attended by, inter alia, the Army Corps, the NPS, the FWS, the NYSDEC and Suffolk County, was held " to discuss the County's proposed changes to the [Army] Corps's proposed [P]roject description for the area in [the Park] and * * * the [FWS's] draft biological opinion[] * * * preliminar[ily] determin[ing] that the [P]roject, as proposed, was likely to jeopardize the continued existence of the piping plover * * *." (Bio. Op. at 9). The FWS explained that its preliminary determination was based upon " the status of the species, environmental baseline, effects of the action, and cumulative effects of the [P]roject, as well as the regulatory standard required when undertaking jeopardy analyses." (Id.)

On or about May 8, 2014, a meeting attended by the Army Corps, the NPS, the FWS, the NYSDEC and Suffolk County, was held " to solicit comments on the [FWS's] methodology in evaluating the effects of the [Project], including an assessment of the carrying capacity of storm-created habitats affected versus those not affected by the proposed [P]roject and the with-[P]roject scenario." (Bio. Op. at 9).

Between May 15-16, 2014, a meeting, attended by the Army Corps, the NPS, the FWS, the DOI, the NYSDEC and Suffolk County, was held " to finalize conservation measures to minimize impacts to the piping plover." (Bio. Op. at 9).

On May 23, 2014, the FWS delivered its final biological opinion (" the Biological Opinion" ) to the Army Corps. (Bio. Op. at 9).

3. The Biological Opinion

The Biological Opinion is based upon information provided in the Army Corps's final revised BA (Bio. Op. at 4, 12), and numerous other sources, (see Bio. Op. at 184-210).

The Biological Opinion indicates that the Project " includes dune and/or beach construction for 19 mi[les] of the entire 30

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mi[les] or 63%, of Fire Island's coastline[,] * * * [which] would affect 100% of the overwash habitat created by Hurricane Sandy in the project area that is used by, or could be utilized by piping plover[,] * * * [but] also includes measures the [Army] Corps has proposed to avoid and minimize adverse effects to the piping plover * * *." (Bio. Op. at 12). The FWS determined that since twenty thousand eight hundred (20,800) feet of dune and beach construction is planned for undeveloped areas of the Park under the Project, the Project " would adversely affect breeding populations of plovers and their habitat." (Bio. Op. at 16).

a. Piping Plovers

i. Life and Habitat

Piping plovers that breed on the Atlantic Coast of the United States and Canada (" the Atlantic Coast piping plover" ), such as those at issue here, are classified as threatened under the ESA and breed " on sandy, coastal beaches from Newfoundland to North Carolina." (Bio. Op. at 49, 53-54). " [W]ide, flat, sparsely-vegetated barrier beach habitats * * * [that] include abundant moist sediments associated with blowouts, washover areas, spits, unstabilized and recently closed inlets, ephemeral pools, and sparsely vegetated dunes" are important for the recovery of Atlantic Coast piping plovers. (Id. at 49, 54, 56). Although Atlantic Coast piping plovers " may also nest on areas where suitable dredge material has been deposited at a low slope and elevation, * * * many factors * * * affect their nesting density and success in th[o]se areas." (Id. at 54). The FWS determined that piping plover " [h]abitat became unsuitable when vegetative cover exceeded 33.5%, distance from the high tide line to toe of the dune was less than 9.5 meters, dune height exceeded 2.0 meters, and dune slope exceeded 20%[,]" (id. at 49), and that " piping plovers respond positively to the creation of high quality habitat * * *." (Id.)

ii. Recovery Units

Four (4) recovery units have been established for the Atlantic Coast piping plover in an approved recovery plan, i.e., the 1996 revised Atlantic Coast Recovery Plan: (1) Atlantic (Eastern) Canada; (2) New England; (3) New York-New Jersey; and (4) Southern (Delaware, Maryland, Virginia and North Carolina). (Bio. Op. at 59).[2] The FWS determined: (1) that " [t]he achievement and maintenance of the assigned population level and the associated habitat conditions necessary to support that population for each of the four recovery units are necessary for both the survival and recovery of the Atlantic Coast * * * piping plover[,]" (Bio. Op. at 50, 60, 61); (2) that " [t]he ability of both the Eastern Canada and New York-New Jersey recovery units to provide redundancy, resiliency, and representation that are essential to the survival and recovery of the Atlantic Coast population are particularly at risk[,]" (id. at 50, 74); (3) that " [t]he survival and recovery of Atlantic Coast piping plovers remain highly dependent on the conservation of remaining habitats and habitat-formation processes, as well as annual implementation of expensive labor-intensive management to minimize the effects of pervasive and persistent threats from predation and disturbance by humans and pets[,]" (id.): and (4) that " [r]eversals of major ongoing declines in the Eastern

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Canada and New York-New Jersey recovery units are urgent[,]" (id.).

iii. Abundance

" The preliminary 2013 Atlantic Coast piping plover population estimate was 1,797 pairs, more than double the 1986 estimate of 790 pairs * * *[,]" (Bio. Op. 62), representing a net 1989-2013 increase of 88%." (Id.) " Abundance in the New York-New Jersey recovery unit experienced a net increase of 24% between 1989 and 2013, but the population declined sharply from a peak of 586 pairs in 2007 to 397 pairs in 2013 (-32%) * * *." (Id. at 63). " During [that] period, several storms occurred as did beach stabilization and nourishment efforts, and human development increased * * *." (Id.) " Changes in the Long Island population account for most of the absolute growth in the recovery unit population through 2007 and most of the decrease that has occurred in the last six years." (Id.) " On Long Island, the south shore has been the greatest contributor to population changes (both positive and negative), supporting about 50% of the entire recovery unit population." (Id.) " Low abundance in New Jersey and recent steep decreases in abundance on Long Island (especially on the south shore) contribute to the recovery units [sic] demographic vulnerability." (Id.)

iv. Vulnerability

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

" A detailed review of threats to piping plovers and their habitat in their continental U.S. migration and wintering range * * * shows a continuing loss and degradation of habitat due to sand placement projects, inlet stabilization, sand mining, groins, seawalls and revetments, dredging of canal subdivisions invasive vegetation, and wrack removal." (Bio. Op. at 51). " It is believed habitat loss and degradation via artificial coastal stabilization are limiting growth and expansion of the recovery unit population of Atlantic Coast piping plovers, especially in the New York-New Jersey and Southern recovery units[,] [as] [t]he rates of habitat loss are increasing coincident with more stabilization activities." (Bio. Op. a, 52). " [C]ontinuing artificial shoreline stabilization perpetuates many low quality habitats * * * and [w]idespread artificial habitat stabilization also exacerbates conflicts with human beach recreation by constraining nests and chicks to narrow ocean-front habitats." (Id. at 51, 73). " This, in turn, increases the costs and effort required to manage threats to plovers from human and pet disturbance to the point where sustainability of th[o]se efforts may be compromised." (Id. at 73).

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" Efforts to create and enhance piping plover nesting and foraging habitats * * * have been incorporated into a number of shoreline stabilization projects * * * and implemented by other recovery cooperators * * *[,] [but], with the exceptions of the Lower Cape May Meadows and Stone Harbor restoration projects in New Jersey * * *, most efforts to date have been small-scale * * * [and] monitoring and evaluation of restoration project effects on piping plovers and habitat indicators (e.g., habitat availability-use ratios, predator track indices) have been nonexistent or extremely limited * * *." (Bio. Op. at 53).

" While it is expected that carrying capacity will fluctuate locally, and perhaps even within a state over time, it is anticipated that long-term carrying capacity of the Atlantic Coast[] piping plover habitat * * * will be maintained if natural coastal habitat formation processes are not interrupted." (Bio. Op. at 50-51, 71). " The 1996 revised [R]ecovery [P]lan states that discouraging new structures or other developments, discouraging interference with natural inlet processes, and discouraging beach stabilization projects are 'priority 1' actions (those that must be taken to prevent extinction or to prevent the species from declining irreversibly in the foreseeable future)." (Id. at 51, 83, 115-16). " Studies and reports completed since the recovery plan * * * reinforce the continued importance of protecting preferred piping plover breeding habitats and the natural coastal processes that form and maintain them." (Id.) " Scientific research conducted on Long Island explicitly recommended avoiding beach management practices (e.g., jetty construction, breach filling, dune building, beach nourishment) that typically inhibit natural renewal of ephemeral pools, bay tidal flats, and open vegetation * * * and allowing natural storm processes that create habitat to act unimpeded * * *.'' (Id.)

b. Environmental Baseline

i. Plover Population on Fire Island

" The piping plover population in the action area (Fire Island) has supported as many as 54 pairs of piping plovers (in 2008)." (Bio. Op. at 110). " The most consistent and major breeding sites over the last 15 years are Democrat Point, Fire Island Wilderness, and [the Park]." (Id. at 113). Prior to Hurricane Sandy, Democrat Point was the only site that provided the preferred " bay to ocean overwash" habitat for piping plovers. (Id. ) Although bay to ocean overwash habitats were formed at the other two (2) sites by Hurricane Sandy, that habitat " was only available to piping plovers at Democrat Point and Old Inlet due to partitioning of beach habitat undertaken by Suffolk County to delineate recreational ORV use areas and plover breeding habitats." (Id.) Prior to the formation of a partial overwash area at Lighthouse Beach, " all plover breeding habitat in [that] area[] was limited to the ocean beach south of an established dune line." (Id.)

Between 2009 and 2013, the total number of breeding pairs of piping plover declined by fifty percent (50%) and " productivity [chicks fledged per pair] for piping plovers on Fire Island and the surrounding Long Island area has been declining for the past 14 years * * *." (Bio. Op. at 113-14). " The 1996 Recovery Plan calls for a productivity level of 1.5 to create an increasing population and achieve recovery." (Id. at 114). " 2013 productivity levels for Fire Island were close to 0.7, well below replacement." (Id.)

" Although the Fire Island piping plover population declined to 27 pairs in 2013, Hurricane Sandy created approximately 162 hectares of new overwash habitat on Fire Island including at least 84 hectares of new overwash habitat located within the

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[P]roject area with an estimated capacity of approximately 60 pairs of piping plovers * * * assum[ing] there is full bay to ocean connectivity of the newly created habitat across each of the three overwashes." (Id.) However, the FWS determined that that " assumption is uncertain given beach management activities in 2013." (Id.)

Furthermore, the FWS determined that " susceptibility of the [P]roject area to additional overwash during future storms * * * creates the likelihood of more habitat formation in the action area[,]" (id.); that " habitat availability will be the primary determinant of whether the breeding population is actually able to increase[,]" (id.); and that " [i]n light of the widespread development and continuing stabilization elsewhere in the recovery unit, [Fire Island] plays a pivotal role via provision of existing habitat and the potential for future habitat formation that are key to survival and recovery of the piping plover in the New York-New Jersey recovery unit." (Id. at 110-11).

ii. Factors Affecting Plovers on Fire Island

A. Adverse Effects

The FWS determined that " [h]abitat limitation, loss, fragmentation, beach stabilization, avian and mammalian predators, recreation, and ORV use * * * are all factors negatively affecting the species [sic] environment, distribution, reproduction and abundance on Fire Island[,]" (Bio. Op. at 107-08, 115), and that " [t]he vast majority of the 30 miles of beaches on Fire Island have been heavily impacted by habitat loss due to development, as well as, beach stabilization and recreational activities for decades leading to the precarious conservation status of the species within the action area." [4] (Id. at 108-09). Specifically, there has been a " large degree of artificial stabilization that has occurred throughout the majority of piping plover habitat in the action area" since 1938, (Id. at 108, 116-17), " that has affected piping plover habitat" and " limited habitat area that is available for piping plovers on Fire Island, by inhibiting the development of storm-created habitats that are important to the recovery of this species." (Id. at 116, 117-18). In addition, the FWS determined that " [v]egative reinforcement of dunes and their installation are common practices on Fire Island * * * [that] can prevent the formation of optimal nesting and foraging habitats for plovers * * *[,]" (id. at 108, 117); " beach scraping which involves the use of heavy machinery to remove approximately the top 6-inch layer of sand over a wide section of the dry beach * * * reduc[es] foraging habitat," (id. at 108, 117); and " [t]he use of sand fences and Christmas trees to capture drifting sand and/or to build dunes may produce steepened dune faces, or by themselves, create[] physical barriers to plover movement * * *[,]" (id. at 117), thereby " affect[ing] the abundance, distribution and reproduction of piping plovers on Fire Island." (Id. at 108, 118).

Moreover, the FWS determined that " [t]he stabilized beach system on Fire Island has limited piping plover to narrower

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beaches making them less likely to escape detection by red fox * * *[,]" (Bio. Op. at 118); that " [p]lovers that nest on human-made dunes may also be more susceptible to detection by red fox[,]" (id. at 108, 118); and that " the litter and food scraps left behind by recreational beach activities have the effect of attracting predators such as red fox and gull species to plover habitat." (Id. at 108, 118, 121).[5] The Biological Opinion indicates that the FWS " is not aware of any comprehensive predator control or trapping programs being implemented by the NYSOPRHP [New York State Office of Parks, Recreation and Historic Preservation], Suffolk County, or FIIS [Fire Island National Seashore]." (Id. at 118).

The FWS further determined that " [t]here are numerous potential sources of disturbance to plovers that may utilize the FIIS including, but not limited to, ORVs [off-road vehicles], aircraft, recreational fishing, kite-flying, bird-watching, surfing, dog-walking, fireworks events, and vehicle patrols undertaken by law enforcement agencies that operate within the FIIS[,]" (Bio. Op. at 108, 118); that " breeding habitat on Democrat Point is limited due to establishment of recreational ORV areas[,]" (id. at 118); that " ORV tire tracks can cause deep ruts which are impassable to chicks * * *, causing them to become entrapped[,]" (id.): and that ORV " use can reduce the quality of available foraging habitat[,] * * * compact and reduce any existing foraging base * * * [and] * * * result in mortality of adults, nests, and chicks[,]" (id. at 119).

B. Beneficial Effects

The Biological Opinion indicates that the NPS's decision " to postpone moving forward with a consultation and proposal to fill in [the breach at Old Inlet] caused by Hurricane Sandy * * * [in order] to maintain newly created habitat as beneficial habitat for piping plovers for a period longer than if the breach were closed immediately through human action [] * * * is believed to provide a net benefit to the environmental baseline for piping plovers over the life of th[e] [P]roject." (Bio. Op. at 111). Other " [b]eneficial actions include monitoring and protection programs implemented by the NPS FIIS, NYSOPRHP, and [SCDPRC]," (Bio. Op. at 115), including the delineation and protection of " [s]uitable habitats * * * with symbolic fencing and monitor[ing] by staff],]" (id.), and the implementation of " [v]ehicle closures * * * around breeding areas when flightless chicks are present[,]" (id.).

c. Effects of the Project

The FWS determined that the Project " would perpetuate stabilization of beach habitats with likely negative consequences to the piping plover[,]" (Bio. Op. at 125), and " would affect all existing overwash areas and * * * impair the formation of new overwash habitats within the project area[,] * * * [which] are the preferred habitats of the piping plover * * *." (Id. at 12). " Consequently, the [] [P]roject would result in short- and long-term changes to plover nesting, foraging, and chick rearing habitats, ultimately affecting the species' numbers, distribution, and reproduction in the wild." (Id.) In addition, the FWS determined that the Project (1) " would directly and indirectly impact occupied piping plover breeding habitat across all of Fire Island[,]" (id. at 122); (2) " would indirectly affect habitats not within the project area, but adjacent to dune and beach construction activities due to longshore littoral drift," (id. at 12); and (3) " would result in both immediate and long

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term effects to habitat and the species [sic] distribution, numbers and reproduction in the wild, with ramifications to the Fire Island breeding unit, the south shore of Long Island, and the New York-New Jersey recovery unit as a whole[,]" (id. at 122). According to the FWS, the impacts of the Project may include " the loss and fragmentation of preferred bay to ocean overwash habitats, loss and degradation of partial overwash habitats, reduction in foraging habitats on bay side beaches, destruction of plover prey resources for at least one breeding season on oceanside beaches, increased predators, and increases in recreational disturbance (pedestrians and ORVS [sic])[,]" (id. at 125). The FWS further determined that:

" [t]he destruction and modification of both foraging, nesting, and brood-rearing habitats resulting from the [Project] is likely to result in (1) reduction and eventual displacement of plovers from one or more existing Fire Island breeding sites; (2) higher mortality rates, delayed breeding, reduced nesting success and lower survivorship of fledglings as a result of displacement; (3) the loss of potential 'source' breeding populations that may maintain, in part, through emigration, other plover populations; (4) the fragmentation of, and decline in, plover populations region-wide [; ] and (5) increased habitat loss, fragmentation, and functional homogenization on a local and regional scale."

(Id. at 122-23, 125).

The FWS determined that other adverse effects of the Project " include interruption and prevention of formation and maintenance of optimal habitats * * *, longer term reduction in prey resources * * *, increased recreational activities, the creation of habitat conditions that may facilitate increase [sic] mortality due to predators, and allowance for ORV access through breeding areas * * *." (Id. at 123). In addition, the FWS found that proposed " [s]and fencing can affect dune topography and promote the formation of steep, uniform dunes * * * [and] may also affect the movement of mesopredators (such as raccoons, red fox and feral cats), provide denning habitat for fox, and serve as perch sites for avian predators." (Id. at 123, 138-39). Nonetheless, the FWS concluded that " [t]he degree to which increases in predator habitat result in mortality or disturbances to plovers and their chicks depends on the degree to which the protection measures are implemented." (Id. at 139).

The FWS further determined that " [r]ecreational activities that may potentially, adversely affect piping plovers include unleashed pets, fireworks, kite-flying, and increase in garbage and refuse * * *[,]" (id. at 123, 137), insofar as " [u]nleased pets, such as dogs and cats, can prey on piping plovers * * * [and] [k]ite-flying may disturb piping plovers as it is believed that the piping plovers perceive kites as avian predators[,]" (id.): and that " [i]ndirect effects of disturbance to piping plovers also occur by limiting breeding habitat to oceanside habitats that are simultaneously made more attractive for recreational activities by beach stabilization projects." (Id. at 138). Nonetheless, the FWS determined that " [o]verall, the degree to which increases in recreational activity result in mortality or disturbances to plovers and their chicks depends on the degree to which the protection measures are implemented." (Id.)

The FWS determined that " [a]ll current sub-populations of breeding plovers and occupied habitat on Fire Island, totaling about 26 pairs, would be impacted by the proposed [P]roject[,]" (Bio. Op. at 125), and indicated that " [b]ecause of the small number of breeding sites on Fire Island,

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the fragmented distribution, and vulnerability of small populations to stochastic processes (oil spills, storms, disease, etc.), [it] is concerned about the degradation or loss of any breeding site, as well as [the Project's] effect on the Long Island New York-New Jersey recovery unit." (Id.) According to the FWS, " [s]imulations of future plover populations on Fire Island and the south shore of Long Island * * * suggest a higher probability of decreasing populations and extinctions with the [] [P]roject than without it." (Id. at 124).

i. Effects Due to Construction Activities

The FWS determined that although the Army Corps proposed that construction activities will not occur in the Park or at Lighthouse Beach during the piping plover season, i.e., from April 1st to September 1st, " [p]otential direct effects of [its] construction and dredging activities upon piping plovers during initial construction include * * *[:]

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

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

ii. Fragmentation and Degradation of Preferred Habitats

The FWS determined that preferred plover habitats at the Park and Lighthouse Beach " would be degraded and fragmented by the [] [P]roject." (Bio. Op. at 127). Specifically, the FWS found that about one hundred twenty-one (121) acres at the Park " would be fragmented by the dime and vegetation, along with the re-establishment of Burma Road * * *[,]" and that more than sixty (60.3) acres of preferred habitat at Lighthouse Beach would be fragmented and impacted by " the artificially constructed berm." (Id.) In addition, " [t]he dune and beach fill would raise both the berm and dune elevation of the barrier island further decreasing habitat heterogeneity." (Id.)

The FWS indicated its " concern[] that the [] [P]roject would disrupt complex natural processes that create bay side and bay to ocean intertidal foraging habitats, and

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that th[o]se changes would likely negatively affect chick survival and population growth." (Bio. Op. at 128-29). According to the FWS, although the Army Corps has proposed to " attempt to maintain nesting habitat on the bay side of Pattersquash and Narrow Bay areas through vegetation control north of Burma Road and the artificial dune[,]" (id. at 129), it has " no data that documents the use of isolated bay habitat by piping plovers, so [it] currently ha[s] no assurances that [that] area will support nesting pairs of piping plovers * * * [and] it is uncertain that [that] area[] would result in observed increases in plover abundance or productivity." (Id.) Accordingly, " [f]urther analysis or examples of bayside habitat are needed to determine the effectiveness of th[o]se habitats in supporting piping plovers." (Id.)

iii. Habitat Quantity

The FWS estimated that without the Project, the preferred habitats created by the storm " could support close to 60 nesting pairs of plovers if left in their post-storm condition[,]" (Bio. Op. at 129), " assum[ing] full connectivity of bay to ocean habitat," but indicated that that assumption " is uncertain given the existing Burma Road, which is currently degraded from pre-Hurricane Sandy conditions but in use." (Id. at 130). The FWS, thus, determined that the " 'without project' estimate that 60 pairs worth of nesting habitat is available is not the best interpretation of reality given that ocean to bay habitat is already truncated in some fashion by previous, recent anthropogenic habitat modification, e.g., sand fencing, vehicle use * * *[,]" (id. at 147), and that, " based upon the best available science and experience," (id. at 148), a more reasonable " without project' estimate [is] 51.25 for the entire project area[,]" (id. at 147).

The FWS estimated that the potential nest area " with Project" capacity would " support plover nesting ranges from 17 to nearly 40 pairs," (Bio. Op. at 130), and indicated that the reduction in the potential nest area capacity " would result mostly from the fragmentation and degradation of preferred habitats via construction of the artificial dune * * *[,]" (id. at 131). The FWS ultimately determinated that a reasonable estimate for potential nest area " with project" capacity " based on the best available science and experience" is 40.32 pairs. (Id. at 148).

The FWS determined that although " [b]each nourishment may provide nesting substrate for the species, * * * recent surveys undertaken at beach nourishment projects on Fire Island showed that th[o]se habitats supported low numbers of breeding pairs with limited to no reproductive output, and experienced high levels of recreational disturbance and degradation due to off-road vehicle use * * *." (Bio. Op. at 132). " Further, the density of piping plovers that are confined to ocean-side habitats is much lower, when preferred bayside foraging habitats are absent." (Id.) The FWS determined that " [c]onsequently, artificially created beaches without access to high quality bayside foraging areas, may lead to 'population sinks' by recruiting individuals to the area each season, only to yield reproduction levels less than one chick per pair which is below the level necessary to achieve a stationary population level." (Id.) The FWS further determined that " [i]n the event that plovers colonize these beaches they will experience loss of habitat area annually, as the beach erodes back to a stabilized dune[,]" (Bio. Op. at 132), and that " [b]ecause piping plovers demonstrate breeding site fidelity to their breeding sites, they are likely to presist in attempting to breed in these areas, even if these habitats degrade and plover productivity declines in future years." (Id.) According to the FWS, " [i]n

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this way, the [] [P]roject may continue to expose piping plovers to indirect adverse effects even beyond the life of the [P]roject." (Id.) The FWS also determined that " [p]iping plovers, which may be attracted to the side, may also have reduced productivity due to low prey resources, increased disturbance, and predation." (Id.)

In addition, the FWS determined that " [h]abitat loss and adverse alterations can also result from physical changes to artificially constructed dunes and beaches." (Bio. Op. at 133). " Natural forces, which work to redistribute the sand that is placed on the beaches during nourishment projects, may create a sharp discontinuity of slopes between the upper beach and the intertidal zone, inhibiting the movement of piping plovers, especially chicks, into intertidal foraging areas." (Id.) In addition, beach scraping " may reduce the size of the intertidal foraging area, inhibit adult and chick movement into the intertidal zone, and possibly delay the formation of an upper beach wrack line, an important foraging habitat for piping plovers and their chicks." (Id.)

iv. Impacts to Foraging Habitats and Prey Resources

The FWS determined that " [c]onstruction between mid-October and January * * * may result in reduced productivity, or possibly abandonment of piping plover nesting areas because of reduced prey resource availability * * *[,]" (Bio. Op. at 137), and that the Project " would be expected to impact prey resources for breeding adults and their chicks at least one breeding season." (Id.) Nonetheless, the FWS determined that " [e]xcept where curtailed by mechanical beach raking or delayed by scarping [sic], partial to complete physical recovery of the organic material that comprises the wrack ...


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