Full opinion text
MEMORANDUM OPINION REGGIE B. WALTON, United States District Judge 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 (collectively, the “PEER plaintiffs”) allege that defendants Tommy Beaudreau, the Director of the United States Bureau of Ocean Energy Management (“BOEM”); 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 Beau-dreau; 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 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 (“Barnsta-ble Compl.”) ¶¶ 1, 175-225. Third, the Alliance to Protect Nantucket Sound and several individuals (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 Wampapoag Tribe of Gay Head (Aquin-nah) alleges that Director Beaudreau; Secretary Jewell; and the BOEM violated the Preservation Act; the NEPA; and the APA. Complaint for Declaratory and Injunctive Relief, ll-ev-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, to Strike, ECF No. 316 (“Pis.’ 56(e) Mot.”). Upon careful consideration of the parties’ submissions and the several voluminous' administrative records in this case, the Court grants 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, 98 S.Ct. 2279, 57 L.Ed.2d 117 (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, 115 S.Ct. 2407, 182 L.Ed.2d 597 (1995). With the exception of certain insects, tl)e 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(aXi)(B)-(C), and the term “take” is defined as “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^] the continued existence” of a species where the action “reasonably would be expected, directly or indirectly, to reduce ■ appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02. Accordingly, “[e]ach Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species,” and “[i]f such a determination is made, formal consultation” with the FWS and/or the NMFS is required. Id. § 402.14(a). The formal consultation process requires the FWS and/or the NMFS to review the proposed agency action and prepare a “biological opinion” that includes “[a] detailed discussion of the effects of the action on listed species,” and also render an “opinion on whether the action is likely to jeopardize the continued existence of a listed species.” Id. §§ 402.14(h)(2) — (3). Where the biological opinion concludes that an agency action may result in the incidental taking of a listed species, the FWS and/or NMFS must “provide with the biological opinion a statement concerning incidental take that” specifies both “the amount or extent[] of such incidental taking on the species,” as well as “terms and conditions ... that must be complied with by the Federal agency or any applicant to implement” certain specified “reasonable and prudent measures” designed to minimize the impact of the incidental taking. Id. §§ 402.14(i)(l)(i)-(ii), (iv); see also id. § 402.14(g)(7). Any such “Reasonable and prudent measures, along with the terms and conditions that implement them, cannot alter the basic design, location, scope, duration, or timing of the action and may involve only minor changes.” Id. § 402.14(f)(2). 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 [ ] ... kill, [or] attempt to take ... or kill ... any migratory bird, any part, nest, or egg of any such bird ... included in” certain bilateral treaties 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 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 actiofn] significantly affecting the quality of the human environment.’ ” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 15-16, 129 S.Ct. 365, 172 L.Ed.2d 249 (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, 129 S.Ct. 365 (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 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, 124 S.Ct. 2204, 159 L.Ed.2d 60 (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)(l)(A). To protect identified historic sites, Section 106 of the Preservation Act provides that a federal agency undertaking action on a historic site or licensing such an undertaking must, prior to the approval of the expenditure of any Fed-'. eral funds on the undertaking ...[,] take into account the effect of the undertaking on any district, site, building, structure or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation ... a reasonable opportunity to comment with re-gaf d to such undertaking. Id. § 470f. The Advisory Council has promulgated regulations that set forth the procedures that federal agencies must follow to comply with Section 106. Id. § 470s. .The regulations in turn require that federal agencies engage in “consultation ... [with] other parties with an interest in the effects of the undertaking on historic properties,” 36 C.F.R. § 800.1(a), including “any Indian Tribe ... that attaches religious and cultural significance to” properties included on the National Register as a result of their “traditional religious and cultural importance to [the] Indian Tribe,” 16 U.S.C. § 470a(d)(6); see also 36 C.F.R, §§ 800.2(c), 800.3(f)(2). The consultation process requires federal agencies to: (1) identify the historic properties that might be affected by the undertaking, 36 C.F.R. § 800.4; (2) evaluate the impact of any adverse effects on those properties, id. § 800.5; and (3) “develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on” those properties, id. § 800.6; see also Corridor H Alts., Inc v. Slater, 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 and outside the area of lands beneath navigable waters as defined in section 1301 of this title, [] 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)(l)(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: Sec. 414. Navigational Safety of Certain Facilities. (a) Consideration of Alternatives. — In reviewing a lease, easement, or right-of-way for an offshore wind energy facility in Nantucket Sound under section 8(p) of the Outer Continental Shelf Lands Act (43 U.S.C. 1337(p)), not later than 60 days before the date established by the Secretary of the Interior for publication of a draft environmental impact statement, the Commandant of the Coast Guard shall specify the reasonable terms and conditions the Commandant determines to be necessary to provide for navigational safety with respect to the proposed lease, easement, or right-of-way and each alternative to the proposed lease, easement, or right-of-way considered by the Secretary. (b) Inclusion of Necessary Terms and Conditions. — In granting a lease, easement, or right-of-way for an offshore wind energy facility in Nantucket Sound under section 8(p) of the Outer Continental Shelf Lands Act (43 U.S.C. 1337(p)), the Secretary shall incorporate in the lease, easement, or right-of-way reasonable terms and conditions the Commandant determines to be necessary to provide for navigational safety. Id. at 540. B. Factual Background At the center of this consolidated civil aótion is the Nantucket Sound (the “Sound”), a body of water located off the coast of Massachusetts. See CW65034. The Sound serves many functions, including the home to various endangered species, a commercial and recreational waterway, and a source of cultural and religious identity. See CW65356, CW111969-78. Intervenor-defendant Cape Wind, with the approval of the federal deféndants, also seeks "to make the Sound the location of the nation’s first offshore wind energy project. See CW201584. 1. The Cape Wind Project The Cape Wind project has been described as “the first of its kind in the United ^States and is one of the largest offshore wind projects in the world.” CW201584. Cape Wind “began preliminary work on siting and designing a wind energy project in 2000,” NMFS1413, and proposed an offshore wind energy park, to be located on the outer Continental Shelf on Horseshoe Shoal 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 FecLReg. 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; 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. Id. The FWS also “estimate[d] that implementation of the Bird Island restoration project[ ] 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 significant enough way to have a deleterious effect on anticipated revenues, financing and power purchasing agreements. Furthermore, [the BOEM] indicates that the proposed timeframes for the operational adjustment, although limited by season, visibility and time of day, constitute peak period hours, when the energy supplied to the [Independent System Operator of] New England (the regional transmission organization) has greater market value. Therefore, the [reasonable and prudent measure] may not be prudent because economic cost makes this measure not feasible for project proponents to implement. FWS76-77 (citations omitted). ii. The NMFS’s Biological Opinion and Incidental Take Statement The “BOEM and [the] NMFS began discussing consultation requirements in January 2006.” NFMS1414. The “NMFS provided technical assistance to [the] BOEM as they drafted a new [draft EIS]c ] 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 whajes were observed in Rhode Island Sound and nearby waters, including areas to be transited by project vessels originating from the staging site at Quonset, [Rhode Island], While right whales were not sighted in the area proposed for construction (i.e., the project footprint on Horseshoe Shoal within Nantucket Sound), right whales were observed in nearby areas and along the route that would be used by vessels moving between the project footprint and the project staging area near Quonset, [Rhode Island]. When compared to sightings in previous years, these sightings represent a higher than average number of right whales in the action area and nearby areas. As noted in [the] BOEM’s July 13, 2010 letter to [the] NMFS, these sightings represent new information that when analyzed may reveal effects of the action that may affect listed species in a manner or to an extent not previously considered. As such, [the] NMFS concurred with [the] BOEM’s determination that reinitiation of consultation was appropriate; specifically, to consider the new' information on the presence of right whales in the action area. Consultation was reinitiated on July 26, 2010. NMFS1414-15. The reinitiation of consultation culminated in a second biological opinion, which the NMFS issued on December 30, 2010 (“2010 biological opinion”). NMFS1413. The 2010 biological opinion reached the same conclusions as the first opinion about the project’s effects on listed whales and sea turtles. See NMFS1534. The NMFS issued with the 201Q biological opinion a second incidental take statement for listed sea turtles, which authorized the same level of take as the prior incidental take statement. See NMFS1536. b. The BOEM and FWS Consultation Regarding the Impact of the Cape Wind Project on Migratory Birds The BOEM’s final EIS 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 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 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. 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 Yar-mouth, Martha’s Vineyard, Cambridge, and Nantucket, Massachusetts. CW111956. The BOEM issued a new draft EIS on January 18, 2008. See 73 Fed.Reg. 3482, 3482 (Jan. 18, 2008); CW111956. “The public comment period on the [d]raft EIS lasted 60 days (until March 20, 2008) and was then extended another 30 days (until April 21, 2008) in order to provide the public with additional time to consider and submit comments on the [djraft EIS.” CW111956. The BOEM made the final EIS available to the public on January 21, 2009. See id.; 74 Fed.Reg. 3635, 3635 (Jan. 21, 2009). Subsequently, on March 8, 2010, the BOEM prepared an environmental assessment (“2010 Assessment”). See CW111957. As explained by the BOEM, [t]he purpose of th[e] [2010 Assessment] was to determine whether there were significant new circumstances or information relevant to environmental concerns and impacts associated with the Proposed Action that were not fully addressed in the [f]inal EIS.... The [BOEM] used this [2010 Assessment] to determine whether the [f]inal EIS needed to be supplemented. The [BOEM] found that no significant new information existed that would necessitate a reanalysis of the range of the alternatives or the kinds, levels, or locations of the impacts of the Proposed Action on the human environment. After considering public comments on the [2010 Assessment] and additional new information that was received after the [2010 Assessment] was made publicly available, [the BOEM] concluded that the analyses in the [fjinal EIS remained valid, and that, because a supplemental EIS was not required; it issued a Finding of No New Significant Impact (FONNSI) on April 28, 2010. Id. On April 28, 2010, the BOEM also issued a Record of Decision (“2010 ROD”), which stated that “[t]he decision is hereby made to offer a commercial lease to [Cape Wind] in accordance with ... [the Shelf Lands Act], under the terms and conditions” specified in the 2010 ROD,' id., and in a lease issued to Cape Wind by the BOEM on October 6, 2010, see CW119269; CW119275. The lease granted Cape Wind “the exclusive right and privilege” to construct, operate, and eventually decommission the proposed wind energy facility on Horseshoe Shoal in the Sound. See CW119270. Among the terms and conditions incorporated into the Cape Wind lease are the terms and conditions which the Coast Guard deemed necessary pursuant to § 414 of the Coast Guard and Maritime Transportation Act of 2006. See CW119319. The Coast Guard had previously issued the § 414 terms and conditions on August 2, 2007. See CW66389; CW66393. The 2010 ROD required Cape Wind to submit to BOEM a Construction and Operations Plan. CW111957; see also CW119697. 'Cape Wind “submitted a [Construction and Operations Plan] for the project on October 29, 2010, and submitted a modified [Construction and Operations Plan] on February 4, 2011.” CW119697. Thereafter, [o]n February 22, 2011, a “Notice of 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; microcli-mate; oil within wind turbine generators; sloshing dampers; transition piece grout; permits issued by other Federal agencies; and consultations with other agencies. [The BOEM] did not directly address comments related to the content of the [Avian and Bat Monitoring Plan] in the [2011 Assessment]; rather it [did so] in its review of that plan. CW119705; see also .CW119743-86 (2011 Assessment). The BOEM “determined that the [final EIS] fully discussed the significant environmental consequences associated with the approval of’ Cape Wind’s Construction and Operations Plan, and approved the plan in a record of decision dated April 18, 2011 (“2011 ROD”). CW119705-06. d. Consultation Under Section 106 of the Preservation Act “The [Advisory Council on Historic Preservation] formally entered into the Section 106 consultation with the Corps [of Engineers] for the” proposed wind energy park “in March of 2005 upon its determination that the project would adversely affect historic properties on or eligible for the National Register of Historic Places.” CW44617. After the BOEM took over as the lead agency, it commenced its Section 106 process in late 2005 and conducted more than twenty-one meetings through February 2010. [The BOEM] invited the Massachusetts [State Historic Preservation Officer] to be a cooperating party on March 16, 2006, to which she replied “the [Massachusetts Historical Commission] is a consulting-agency.” CW112019. The Wampanoag Tribe of Gay Head (Aquinnah) and the Mashpee Wam-panoag Tribe were also consulting parties to the Section 106 process. CW112021. The BOEM published a draft EIS pursuant to the NEPA in January of 2008, which “included its initial identification of properties and its findings of adverse effects.” CW112021. The comments to the draft EIS objected to the methodology that the BOEM used to identify affected properties, and the BOEM responded to the comments by revising its methodology and 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. Following its evaluation of [the draft EIS] comments, [the BOEM] resumed its Section 106 process with a series of consultation meetings specific to the [S]ection 106 process that began in July 2008. Upon completion of its second identification of properties effort and these consultations, the [BOEM] released a Finding of Adverse Effect as an individual document on December 29, 2008[,] to describe its new list of identified eligible properties and those adversely affected under the revised methodology. The December 2008 Finding identified 29 historic properties, as being adversely affected, including one property of cultural ] importance] to the Mashpee tribe and two [National Historic Landmarks]. The December 2008 Finding was included in the analysis of the [f]inal EIS for the project, [and] circulated for public comment in January 2009. Government-to-government consultation meetings and Section 106 consultations meetings with the parties followed throughout 2009 and in early 2010, as described below. • Through this process, [the BOEM] considered additional information from tribes and other consulting parties via meetings, written communications, and site visits. [The BOEM] also worked closely with the Advisory Council for Historic Preservation and the National Park Service (Keeper of the National Register and [National Historic Landmark] personnel) in a continued effort to assess the nature and level of adverse effects and to make determinations of the eligibility of additional properties, as well as to determine the appropriate scope of the [S]ection 106 process. As a result, [the BOEM] released a Revised Finding of Adverse Effect on January 13, 2010. The Revised Finding added Nantucket Sound and four individual onshore [traditional cultural properties] to the list of affected historic properties, and clarified the types of alterations that could occur to each. A draft Memorandum of Agreement (MOA) was distributed at the June 16, 2009 consultation meeting. The draft MOA contained several proposed mitigation measures. [The BOEM] asked attendees to review the MOA and provide [the BOEM] with any comments on the document or other ideas to avoid, minimize or mitigate adverse effects. The draft MOA was re-circulated to consulting parties at the January 13, 2010 full Section 106 meeting. The [State Historic Preservation Officer] concurred with the revised Finding in February 2010. Following public review of the revised Finding and additional site visits and several meetings with parties in February 2010, the Secretary [of the Interior] determined that further efforts to agree on an MOA would not be productive, and on March 1, 2010, submitted a request to the [Advisory Council for Historic Preservation] for their comment to terminate the [Sjection 106 process. CW112021-22. “The [Advisory Council for Historic Preservation] comment was received [by the Secretary of the Interior] on April 2, 2010.” CW112024; see also CW112696. 3. The Current Litigation ■ The PEER plaintiffs, comprised of several environmental groups, members of those groups, and individuals who use the Nantucket Sound, PEER Compl. ¶¶ 3-29, assert three claims for relief based on alleged deficiencies in the FWS’s and the NMES’s biological opinions and incidental take statements, id. ¶¶ 97-99. They also challenge the issuance of the records of decision, the lease, and the approval of the Cape Wind construction operations plan, on-the grounds that each relies on invalid biological opinions. Id. ¶¶ 100-103. The PEER plaintiffs also allege that the BOEM and the Corps of Engineers should have obtained a permit for the take of migratory birds prior to approving the Cape Wind project. Id. ¶ 104. Finally, they claim that the BOEM violated the NEPA by failing to issue a supplemental EIS concerning the recent aggregations of right whales, by failing to address certain other data or effects of the project, and by relying on the Avian and Bat Monitoring Plan. Id. ¶¶ 106-110. The Town of Barnstable “is a municipal corporation and political subdivision of Massachusetts” that “has jurisdiction over extensive lands on the south side of Cape Cod along Nantucket Sound.” Barnstable Compl. ¶ 10. In its complaint, Barnstable asserts nine claims for relief based on the BOEM’s alleged failure to adequately address the finding that the Sound is eligible for listing in the National Register or to survey all historic properties in and around the Cape Wind project area, in violation of the Preservation Act. Id. ¶¶ 200-08. Barnstable also challenges the adequacy of the BOEM’s final EIS, as well as its failure to issue a supplemental EIS, id. ¶¶ 209-14, the BOEM’s alleged failure to provide for safety as required by the Shelf 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 plaintiffs, see October 25, 2010 Minute Order, as well as the case filed by the Wampanoag Tribe of Gay Head (Aquinnah), sm July 8, 2011 Minute Order. The parties have now filed cross-motions for summary judgment: one concerning the PEER, Alliance, and Town of Barnsta-ble plaintiffs’ ESA and Migratory Bird Treaty Act claims; a second concerning the PEER, Alliance, and Town of Barnsta-ble plaintiffs’ remaining claims; and a third concerning the claims of the Wampa-noag Tribe of Gay Head (Aquinnah). Additionally, the PEER, Alliance, and Town of Barnstable plaintiffs have filed a motion pursuant to Federal Rule of Civil Procedure Rule 56(e) seeking additional discovery concerning certain documents cited in the federal defendants’ legal memoranda, or in the alternative to strike those same documents. II. STANDARD OF REVIEW “Summary judgment is the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review.” Loma Linda Univ. Med. Ctr. v. Sebelius, 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 Fed.Appx. 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, “[ujnder 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 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. Pis.’ Remain Mem. at 15-16; Pis.’ 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. 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. Section 414 was passed in large part due to the pendency of Cape Wind’s proposal. See 152 Cong. Ree. S6439-40 (daily ed. June 22, 2006) (statement of Senator Stevens). The legislative history discloses Congress’ position that “[i]t must be left up to the Commandant of the Coast Guard to decide what is necessary to prevent negative impact to navigation, aviation,, and communications caused by the proposed wind farm.” Id. at S6439. To that end, § 414 provides that “the Commandant of the Coast Guard shall specify the reasonable terms and conditions the Commandant determines to be necessary to provide for navigational safety with respect to the proposed lease ... and each alternative” to, the proposal, and also that “the Secretary [of the Interior] shall incorporate into the lease ... reasonable terms and conditions the Commandant determines to be necessary to provide for navigational safety.” Pub.L. No. 109-241, 120 Stat. at 540 (emphasis added). There is no case law construing § 414, and so the Court must turn to the familiar two-step analysis of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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, 104 S.Ct. 2778. 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, 104 S.Ct. 2778 (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’ 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 eonstruetion of the statute.’ ” Bluewater Network v. EPA, 372 F.3d 404, 410 (D.C.Cir.2004) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778)). 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 “[wjhere, 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, 104 S.Ct. 2105, 80 L.Ed.2d 753 (1984),] determined that such conditions had to be “reasonable” and the reasonability of the conditions was a matter to be determined by the courts, not the Commission. 152 Cong. Rec. at S6440. In Escondido, the Supreme Court addressed § 4(e) of the Federal Power Act, 466 U.S. at 772, 104 S.Ct. 2105, which provides that licenses such as the hydroelectric facility license at issue in that ease “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, 104 S.Ct. 2105. 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 Interi- or’s prescription is to be a FERC license requirement, Congress implicitly indicated that it would have to be supported as would any other Commission licensing requirement. The record before us, then, is no more and no less than what was presented to the Commission. Bangor Hydro-Elec. Co. v. Fed. Energy Regulatory Comm’n, 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, 104 S.Ct. 2105. 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 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.” See Escondido, 466 U.S. at 778, 104 S.Ct. 2105; 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 analy-ses concerning, and recommended mitigation measures for, the project’s impact on radar navigation of vessels in and around the project. CW66380. There are also provisions for breaking ice that might form in and around the project area. CW66381-82. Finally, the terms and conditions require Cape Wind to report periodically to both the BOEM and the Coast Guard about navigational safety, and the Coast Guard retains for itself the right to amend the terms and conditions at any time. CW66380-83. The Court is satisfied that these terms and conditions are reasonably related to the Coast Guard’s goal to provide for navigational safety. The Court is also satisfied that the terms and conditions are otherwise consistent with § 1337(p) of the Shelf Lands Act. This Act requires, among other things, that any lease granted pursuant to § 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. Bangor Hydro-Elec. Co., 78 F.3d at 662 (citing Escondido, 466 U.S. at 778 n. 20, 104 S.Ct. 2105 (“[T]he court is to sustain the conditions if they are 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 (discussi