National Audubon Society, Inc. v. United States Fish & Wildlife Service (55 F. Supp. 3d 316, 2014)

OPINION & ORDER

FEUERSTEIN, 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 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. § 1586(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 plaintiffs 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) plaintiffs application for a temporary restraining order (“TRO”) was granted upon its posting of an undertaking in the amount of ten thousand dollars ($10,-000.00) pursuant to Rule 65(c) of the Federal Rules of Civil Procedure. Plaintiff posted the required undertaking on September 15, 2014.

Subsequently, defendants moved, inter alia, to dissolve the TRO pursuant to Rule 65(d)(4) of the Federal Rules of Civil Procedure and to extend the briefing schedule for the preliminary injunction motion. By order dated September 17, 2014, defendants’ motion was granted to the extent that their time to serve and file opposition to plaintiffs preliminary injunction motion was extended to October 2, 2014 and plaintiffs 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 plaintiffs motion for a preliminary injunction.

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

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) , 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 computability,” (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 modifiefd] 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 proposed dune and berm alignment for the [Park] portion of the [PJroject 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 Deck, 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 Deck, 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 protectionf,]” (Chang Deck, Ex. 6). Those additional alternatives include “construction] 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 “[although [it] appreciate^] 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 planningf] * * * [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 Deck, 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]rojeet features that would minimize impacts to listed species in the [Pjroject 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]ro-ject 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[ ] * * * preliminarily] determining] 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 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, washovér areas, spits, unstabi-lized 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). 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 “Reversals of major ongoing declines in the Eastern 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 * * *.” (IcL) “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.” (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. at 52). “[Continuing artificial shoreline stabilization perpetuates many low quality habitats * * * and [widespread 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).

“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 [P]roject area with an estimated capacity of approximately 60 pairs of piping plovers * * * assuming] 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 [PJroject 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.” (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 * * * redue[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, ereate[ ] physical barriers to plover movement * * *[,]” (id. at 117), 'thereby “affectfing] 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 beaches making them less likely to escape detection by red fox * * *[,]” (Bio. Op. at 118); that “[pjlovers 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). 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, ORYs [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 habitatf,] * * * compact and reduce any existing foraging base * * * [and] * * * result in mortality of adults, nests, and chieks[,]” (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 monitoring] 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 long-shore littoral drift,” (id. at 12); and (3) “would result in both immediate and long term effects to habitat and the species [sic] distribution, numbers and reproduction in the wild, with ramifications to the Fire Island breeding unit, the south shore of Long Island, and the New York-New Jersey recovery unit as a whole[,]” (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 bayside beaches, destruction of plover prey resources for at least one breeding season on oceanside beaches, increased predators, and increases in recreational disturbance (pedestrians and ORVS [sic]) [,]” (id. at 125). The FWS further determined that:

“[t]he destruction and modification of both foraging, nesting, and brood-rearing habitats resulting from the [Project] is likely to result in (1) reduction and eventual displacement of plovers from one or more existing Fire Island breeding sites; (2) higher mortality rates, delayed breeding, reduced nesting success and lower survivorship 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]e-creational 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, 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, “[simulations 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, “[potential 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 dune and vegetation, along with the re-establishment of Burma Road * * *[,]” and that more than sixty (60.3) acres of preferred habitat at Lighthouse Beach would be fragmented and impacted by “the artificially constructed berm.” (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 bayside and bay to ocean intertidal foraging habitats, and that th[o]se changes would likely negatively affect chick survival and population growth.” (Bio. Op. at 128-29). According to the FWS, although the Army Corps has proposed to “attempt to maintain nesting habitat on the bayside 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, “[fjurther 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), “as-sum[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-Hurrieane 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]onse-quently, 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]eeause piping plovers demonstrate breeding site fidelity to their breeding sites, they are likely to persist 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 this way, the [ ] [P]roject may continue to expose piping plovers to indirect adverse effects even beyond the life of the [P]ro-jeet.” (Id.) The FWS also determined that “[pliping plovers, which may be attracted to the site, may also have reduced productivity due to low prey resources, increased disturbance, and predation.” (Id.)

In addition, the FWS determined that “[hjabitat 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 “[ejonstruction 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 “[ejxcept where curtailed by mechanical beach raking or delayed by scarping [sic], partial to complete physical recovery of the organic material that comprises the wrack line can be expected within one year following sand nourishment, depending on the timing of the construction activity.” (Id.)

d. Cumulative Effects

The FWS determined that “[p]rivate projects to 'stabilize beaches, increase recreation, or build ORV roads are expected to degrade or destroy beach habitats such that plover population expansion is curtailed!,]” (Bio. Op. at 139); that “Suffolk County is planning to restore further Burma Road in [the Park] which would result in adverse effects * * * [and,] along with unregulated recreational activities such as boat landing and unrestricted pedestrian access[,] will disturb adults and prevent chick[s] from accessing bay side foraging habitats,” (id. at 140); that “[l]arge scale habitat fragmentation is expected to occur at [the Park] as the [SCDPRC] further establish [sic] Burma Road as an ORV route within overwash habitat and piping plover breeding areas[,] [which] will destroy and degrade about 2.0 mi[les] of plover habitat,” (id.); and that “[a]s part of [that] action [the SCDPRC] will install sand fences and plant beach grass, further stabilizing the beaches, and adversely affecting plovers and their habitats.” (Id.)

The FWS further determined that although the “NYSDEC would be expected to continue to be able to issue tidal wetland permits for ocean and bay side stabilization activities, such as bulkhead construction, dune stabilization through sand bags and geotubes, and breach scraping!,] * * * it is uncertain the extent to which [that] action is expected to continue into the future * * *.” (Bio. Op. at 140).

Additionally, the FWS-determined that “[t]he NYSOPRHP will likely continue to stabilize their beaches using material from dredging projects or upland sources[,]” (Bio. Op. at 140), and that those activities falling outside of the Army Corps’s regulatory jurisdiction, e.g., breach scraping, dune construction, the installation of sand fences and the planting of beach grass, would continue. (Id.) Furthermore, “[liocal entities would be expected to continue to install sand fences and plant beach grass as part of their effort at beach stabilization,” (id.); “[SCDPRC] has installed miles of sand fences at [the Park], in the process degrading, fragmenting, and ultimately destroying preferred piping plover habitat, * * * [and] negatively affecting the species’ distribution, abundance, and reproduction^]” (id.); and “[b]oth NY-SOPRHP and [SCDPRC] [will] continue to issue thousands of ORV permits for use on their beaches * * * [which] [will] continue to degrade and fragment plover habitat on large stretches of beaches, and affect the species’ distribution, abundance and reproduction[,]” (id.).

e. Conservation Measures

The Biological Opinion indicates that “[f]or a period of ten years after project completion, the [Army] Corps has proposed to implement a number of conservation measures to avoid or minimize adverse effects of the dune and beach construction to the piping plover * * (Bio. Op. at 16).

With respect to Lighthouse Beach, the proposed conservation measures include modifying “the dune and beach design template” (a) to provide for “a ‘straight’ dune alignment,” (id. at 17); (b) to reduce “[t]he tolerances for the proposed berm elevation * * * from ±1 ft to ±0.5 ft, meaning that minimum and maximum fill heights could not go below +9 ft or above +10 ft NGVD[,]” (id.); and (c) to build “dunes with slopes of 1V:5H with the seaward dune toe to match alignment,” (id.).

With respect to the Park, the Army Corp “indicated that it is not feasible to eliminate the proposed dune and beach or vary their heights * * * without compromising coastal storm risk reduction or severely curtailing management activities, operations, and recreational use within th[e] [P]ark.” (Bio. Op. at 18).

Additional conservation measures proposed by the Army Corps include: (a) modifying “the extent of length of each fill taper on federal lands on Fire Island to 300 ft.[,]” (Bio. Op. at 16-17); (b) removing vegetation in the area known as Great Gun Beach and managing the habitat “from an approximately 82 [acre] area to provide habitat for endangered species * * *[,]” (id. at 19), “as an experimental approach to mimic early successional habitat[,]” (id. at 20); (c) “monitoring] and adaptively managing] vegetation at 30-40% cover on the bayside * * * via mechanical, manual, or chemical means dependent on conditions and regulations of [SCDPRC] and the NYSDEC,” (id. at 19); (d) planting beach grass on the dunes at a density of eighteen (18) inches on center within the FIIS communities; (e) coordinating with the FWS “in the preparation of a predator plan (mammalian) for pre-season and in-season predator monitoring program for all project areas, * * * including] measures needed to protect piping plovers, nests, and chicks,” (id. at 20), to be implemented for ten (10) years; (f) clearing vegetation and modifying topography of an additional 6 ha [hectares] (15.8 ac [acres]) of bay side habitat south of New Made Island, as an experimental approach to mimic nesting and foraging plover habitat[,]” (id.); (g) contacting the FWS “upon initiation and completion of construction activities^] * * * conducting] pre-con-struction meetings with all project staff to provide all information on resource protection and terms of the [Pjroject permit[,j * * '"[and] [p]rovid[ing] all project personnel, construction staff, etc., with information regarding the conditions of the project (including all conservation measures) [,]” (id.); (h) refraining from all construction activities “during the piping plover breeding season April 1 to September 1, except [i] within the boundaries of the FUS communities[,j” (ii) for “low impact construction activities, such as beach surveying, * * * utilizing a 300-ft protective buffer zone[,j” and (iii) that “[i]f piping plovers are not observed in a proposed project area, or are not within 1000 m of the project area by July 15, then [Pjroject activities may commence, following consultation with the agencies[,j” (id. at 20-21); (i) “conduct[ingj surveys [by a qualified biologist required to attend a piping plover management course organized by the (FWS), NYSDEC, and The Nature Conservancy (TNC) ] during the spring/summer, and prior to construction activities, to identify nesting plovers in the project area and to document all known locations of piping plover[,j” (id.); (j) protecting “breeding piping plovers on all suitable habitats in the action area from human disturbance * * * and predation * * * via symbolic fencing and warning signs” and the prohibition of “[ajll pedestrian and off-road vehicle (OKV) access into, or through, the breeding * * * areas[,j” (id. at 21-22); and (k) conducting annual productivity and population surveys and daily monitoring, except during poor weather, (id. at 22-28).

The FWS determined that the Project “would, through each estimate, reduce the overall nesting area for future piping plovers[,j * * * [which they] need * * * to recover, * * * [but] that plover productivity on Fire Island, and the surrounding Long Island areas, is failing and is not on a path to recovering the species * * *, probably due to a mix of management-related elements, such as predator and vegetation management.” (Bio. Op. at 141). The FWS recognized the “many competing uses for Fire Island, e.g., recreation, storm protection, plover habitat” and the “need to operate in the current context of th[o]se competing uses.” (Id.) Accordingly, the FWS determined that “[ajchieving recovery for the plover is dependent on cooperation from State, County and Federal partners, and other local landowners, and possibly on the creation of-new habitat alternatives, such as engineered habitat,” (Id.), since “[ijt may be as real and detrimental an outcome for the plover if the [FWS] were to not work cooperatively with State, County and Federal partners, and other local landowners, thereby not fully engaging their ability to promote recovery, than if significant plover habitat quantity and. quality was degraded.” (Id.)

The FWS further determined that “[r]e-stored and managed habitat for plovers may be essential for the long-term recovery of plovers in the NY and NJ recovery unit, and the[] engineered and created areas and subsequent monitoring [proposed as conservation measures in the Project] will provide essential information to help [it] learn how best to restore [plover] habitats.” (Bio. Op. at 142). Accordingly, in order to “improve the quality and productivity of the available habitat,” the various agencies, including the FWS and the Army Corps, agreed: (1) to implement (a) a coordinated inlet-to-inlet monitoring program, led by the NPS, “to add consistency to the monitoring and reporting of plover reproductive activities,” (Bio. Op. at 142), (b) a coordinated ten (10)-year inlet-to-inlet mammalian predator management program, funded through the Army Corps, (id.), and (c) a coordinated stewardship/visitor management program to attempt “to eliminate or reduce human disturbance to plovers during all phases of breeding,” (id. at 143); (2) to continue to follow federal ORV guidelines, (id.); (3) to manage the three (3) overwash areas, the Great Gun restoration site and the dredge restoration site “to inhibit vegetation growth from impairing the quality of th[o]se available habitats!,]” (id. at 144), with the Army Corp building those areas to specifications to which the FWS agrees and Suffolk County maintaining the vegetation per the specification, (id.); (4) to plant the dunes with non-invasive species, (id.); (5) to fence and vegetate Burma Road, and move it further south in certain areas “to allow for more foraging and nesting habitat on the bay-side,” (id.); and (6) to monitor and evaluate the effectiveness of the aforementioned measures throughout the Project and provide revised recommendations, if necessary, “rebating to the deration of breeding habitat and the optimization of reproductive success!,]” (id.).

f. Jeopardy Analysis

The Biological Opinion indicates that “[t]he central question associated with [the FWS’s] jeopardy analysis is whether the effects of the [Army] Corps [sic] [Project], together with cumulative effects, are likely to preclude or impair the capacity of the New York-New Jersey recovery unit from providing both the survival and recovery function assigned to it.” (Bio. Op. at 145). “In other words, are the effects of the [Army] Corps [sic] [Project], together with cumulative effects, likely to preclude or impair the capability of th[e] [New York-New Jersey] recovery unit to support a minimum breeding population of 575 pairs of piping plovers that produce, on average, 1.5 fledged young per nesting pair?” (Id.) The FWS determined that the Project “will have an effect on the amount of nesting habitat available, even with the restoration acreage offered in the amended BA,” (Id. at 148), but that its estimates regarding nesting density with and without the Project “do not quantitatively include the multiple expected benefits from the agreed to management actions[,]” (id.), which “will serve to improve the recovery outlook for the plovers.” (Id. at 149). Although set forth in the “Incidental Take Statement” section of the Biological Opinion, the FWS determined that the “level of anticipated take is not likely to result in jeopardy to the species or destruction or adverse modification of critical habitat.” (Bio. Op. at 150).

g. The Incidental Take Statement

The FWS determined that “the [PJroject as described in the BA (amended, May[] 21, 2014) will take up to 11 pairs of piping plover, through the modification of habitat[,] * * * equalling] to roughly 1 pair each year of the project!,]” (Bio. Op. at 150), and that “[g]iven the extensive habitat management actions outlined [in the Biological Opinion] fewer pairs may be taken, yet it is difficult to quantify precisely the value of th[o]se measures.” (Id.)

The FWS further determined that the following “reasonable and prudent measures are necessary and appropriate to minimize impacts of incidental take of piping plovers,” (id.): (1) the development and implementation (a) “of a coordinated mammalian predator management strategy across all major landowners, inlet to inlet, on Fire Island to reduce the threat predators pose to piping plovers for the 10 year expected life of the projeet[,]” (id.), and (b) “of a coordinated piping plover monitoring program, inlet to inlet, on Fire Island, to assess the current and future status of plovers on Fire Island[,]” (id.); (2) the maintenance (a) “of buffers around construction sites (1000m) and breeding piping plovers (before July 15) and other human activities, including ORV use, (generally 200m) and breeding piping plovers[,]” (id.), and (b) “of nesting and foraging habitat through vegetation management on the three overwash areas and the two restored areas in accordance with the guidelines detailed in the amended BA[,]” (id.); and (3) the creation (a) “of foraging habitat in the 33.7 [hectares] of Great Gunn [sic] through the design and implementation of ephemeral pools[,]” (id.), (b) “of plover foraging and nesting habitat on 6 [hectares] on the dredge disposal site south of New Made Island[,]” (id. at 151), and (c) “by the [Army] Corps of an interagency team (that includes the [FWS]) that will develop and implement a coordinated effectiveness monitoring program whose purpose is to document the performance of the restored and created plover areas[,]” (id.).

The Incidental Take Statement sets forth the “nondiscretionary” terms and conditions implementing the reasonable and prudent measures with which the Army Corps must comply “[i]n order to be exempt from the prohibitions of Section 9 of the [ESA][,]” (Bio. Op. at 151-52), and indicates that “[t]he reasonable and prudent measures, with their implementing terms and conditions, are designed to minimize the impact of incidental take that might otherwise result from the proposed actionf,]” (id. at 152). The Incidental Take Statement further provides that “[i]f, during the course of the [Project], th[e] level of incidental take [of no more than 11 pair of piping plover] is exceeded, such incidental take represents new information requiring reinitiation of consultation and review of the reasonable and prudent measures provided[J [and] [the Army Corps] must immediately provide an explanation of the causes of the taking and review with the [FWS] the need for possible modification of the reasonable and prudent measures.” (Id. at 152-53). Moreover, “[i]n instances where the amount or extent of incidental take is exceeded, any operations causing such take must cease pending reinitiation.” (Id. at 153).

4. The Final EA

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

a. Alternatives Considered

The EA evaluates two (2) alternatives: (1) the “No Action Alternative” and (2) a “Beach Fill Alternative,” i.e., the Project, (EA at 14), with the latter being “the recommended alternative and [ ] the environmentally preferred plan because it reduces storm damages in a manner that mimics the natural protective features of the barrier island * * *.” (Id.)

i. The “No Action Alternative”

The EA indicates that although the Army Corps and federal government would take no action to reduce storm damages in the study area under the “No Action Alternative,” local governments and non-governmental groups, e.g., homeowner associations, “could take actions to protect themselves by undertaking their own construction projects to build up the beach and dune profiles.” (EA at 14, 61). Some of the elements that the Army Corps found “likely to occur within the No Action Alternative” include, inter aZm,”[p]eriodic beach fills and beach scraping * * * by local governments and home owner associations to maintain some threshold beach condition^]” (id.), and closure of the breaches “either through natural closure or human intervention, (id. at 15).

ii. The Project

The Project is comprised of three (3) design templates: (1) the “berm on