[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Notices]
[Pages 43372-43374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18241]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration


Notice of Final Federal Agency Actions on Proposed Highway in 
Indiana

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of Limitation on Claims for Judicial Review of Actions 
by FHWA, United States Fish and Wildlife Service (USFWS), DOI, and 
United States Army Corps of Engineers (USACE), DoD.

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SUMMARY: This notice announces actions taken by the FHWA and the USACE 
that are final within the meaning of 23 U.S.C. 139(l)(1). The actions 
relate to proposed highway projects, including I-69 from Evansville to 
Indianapolis in the Counties of Vanderburgh, Warrick, Gibson, Pike, 
Daviess, Greene, Monroe, Morgan, Johnson and Marion, State of Indiana, 
and a 13.1 mile segment of I-69 in the Counties of Warrick and Gibson, 
State of Indiana. These actions grant or amend licenses, permits, and 
approvals for the projects.

DATES: By this notice, the FHWA is advising the public of final agency 
actions subject to 23 U.S.C. 139(l)(1) and are final within the meaning 
of that law. A claim seeking judicial review of those Federal agency 
actions that are covered by this notice will be barred unless the claim 
is filed on or before January 17, 2012. If the Federal law that 
authorizes judicial review of a claim provides a time period of less 
than 180 days for filing such claim, then the shorter time period 
applies.

FOR FURTHER INFORMATION CONTACT: For the FHWA: Ms. Michelle Allen, 
Federal Highway Administration, Indiana Division, 575 North 
Pennsylvania Street, Room 254, Indianapolis, IN 46204-1576; telephone: 
(317) 226-7344; e-mail: [email protected]. The FHWA Indiana 
Division Office's normal business hours are 7:30 a.m. to 4 p.m., e.t. 
For the USFWS: Mr. Scott Pruitt, Field Supervisor, Bloomington Field 
Office, USFWS, 620 South Walker Street, Bloomington, IN 47403-2121; 
telephone: 812-334-4261; e-mail: [email protected]. Normal business 
hours for the USFWS Bloomington Field Office are: 8 a.m. to 4:30 p.m., 
e.t. For the USACE: Mr. Greg Mckay, Chief, North Section Regulatory 
Branch, Louisville District, United States Army Corps of Engineers, 
P.O. Box 59, Louisville, KY 40201-0059; telephone: (502) 315-6685; e-
mail: [email protected]. Normal business hours are 8 a.m. 
to 5 p.m., e.t. You may also contact Mr. Thomas Seeman, Project 
Manager, Indiana Department of Transportation (INDOT), 100 North Senate 
Avenue, Indianapolis, IN 46204; telephone: (317) 232-5336; e-mail: 
[email protected]. Normal business hours for the Indiana Department 
of Transportation are: 8 a.m. to 4:30 p.m., e.t.

SUPPLEMENTARY INFORMATION: Notice is hereby given that the FHWA and 
other Federal agencies have taken final agency actions by issuing 
licenses, permits, and approvals for the highway projects in the State 
of Indiana that are listed below. The actions by the Federal agencies 
on a project, and the laws under which such actions were taken, are 
described in the Record of Decision (ROD), Section 404 Discharge of 
Dredged or Fill Material Permit and Regional General Permit letters, 
the Revised Programmatic Biological Opinion and Incidental Take 
Statement, and in other documents in the FHWA administrative record for 
the project. The ROD and other documents from the FHWA administrative 
record files for the listed projects are available by contacting the 
FHWA or the Indiana Department of Transportation (INDOT) at the 
addresses provided above. Project information may also be available 
through the INDOT I-69 Project Web site at http://www.i69indyevn.org/. 
People unable to access the Web site may contact FHWA or INDOT at the 
addresses listed above. This notice applies to all Federal agency 
decisions on the listed project as of the issuance date of this notice 
and all laws under which such actions were taken, including but not 
limited to: 1. National Environmental Policy Act (NEPA) [42 U.S.C. 
4321-4351]. 2. Endangered Species Act [16 U.S.C. 1531-1544]. 3. 
Federal-Aid Highway Act [23 U.S.C. 109 and 23 U.S.C. 128]. 4. Clean Air 
Act, 42 U.S.C. 7401-7671(q). 5. Section 4(f) of the Department of 
Transportation Act of 1966 [49 U.S.C. 303]. 6. Section 106 of the 
National Historic Preservation Act of 1966, as amended [16 U.S.C. 
470(f) et seq.]. 7. Bald and Golden Eagle Protection Act [16 U.S.C. 
688-688d]. 8. Clean Water Act, 33 U.S.C. 1251-1377 (Section 404, 
Section 402, Section 401, Section 319).
    The projects subject to this notice are:
    1. Project: The I-69 highway project from Evansville to 
Indianapolis. Location: I-64 just north of Evansville to I-465 in 
Indianapolis west of the I-465/SR 37 interchange, in the Counties of 
Vanderburgh, Warrick, Gibson, Pike, Daviess, Greene, Monroe, Morgan, 
Johnson and Marion, State of Indiana. The FHWA had previously issued a 
Tier 1 FEIS and ROD for the entire I-69 project from Evansville to 
Indianapolis, Indiana. A ``Notice of Limitation on Claims for Judicial 
Review of Actions by FHWA and United States Fish and Wildlife Service 
(USFWS), DOI,'' was published in the Federal Register on April 17, 2007 
(at 72 FR 19228-02). A claim seeking judicial review of the Tier 1 
decisions must have been filed by October 15, 2007, to avoid being 
barred under 23 U.S.C. 139(l). Notice is hereby given that, subsequent 
to the earlier FHWA notice, the USFWS has taken final agency actions 
within the meaning of 23 U.S.C. 139(l)(1) by issuing an ``Amendment to 
the Tier 1 Revised Programmatic Biological Opinion (dated August 24, 
2006) for the I-69, Evansville to Indianapolis, Indiana Highway''. The 
actions by the USFWS, related final actions by other Federal agencies, 
and the laws under which such actions were taken, are described in the 
USFWS ``Amendment to Tier 1 Revised Programmatic Biological Opinion for 
the I-69, Evansville to Indianapolis, Indiana

[[Page 43373]]

Highway'' and related records. That information is available by 
contacting the USFWS at the address provided above.
    Previous actions taken by the USFWS for the Tier 1, I-69 project, 
pursuant to the Endangered Species Act, 16 U.S.C. 1531-1544, included 
its concurrence with the FHWA's determination that the I-69 project was 
not likely to adversely affect the eastern fanshell mussel (Cyprogenia 
stegaria) and that the project was likely to adversely affect, but not 
jeopardize, the bald eagle. The USFWS also concluded that the project 
was not likely to jeopardize the continued existence of the Indiana bat 
and was not likely to adversely modify the bat's designated Critical 
Habitat. These USFWS decisions were described in the Programmatic 
Biological Opinion issued on December 3, 2003, the Revised Programmatic 
Biological Opinion issued on August 24, 2006, and other documents in 
the Tier 1 project records. A Notice of Limitation on Claims for 
Judicial Review of these actions and decisions by the USFWS, DOI, was 
published in the Federal Register on April 17, 2007. A claim seeking 
judicial review of the Tier 1 decisions must have been filed by October 
15, 2007, to avoid being barred under 23 U.S.C. 139(l).
    On May 31, 2011, USFWS issued the Amendment to the Tier 1 Revised 
Programmatic Biological Opinion (RPBO) and Incidental Take Statement 
(ITS). USFWS decided to issue the Amendment to the RPBO primarily based 
on the discovery of the disease White Nose Syndrome in the State of 
Indiana, including the action area (which is within the Indiana bat 
Midwest Recovery Unit). Additionally, one new Indiana bat maternity 
colony was discovered within the right-of-way of Section 4 of the I-69 
Project (which begins just east of the intersection of U.S. 231 and 
SR45/SR58 in Greene County, Indiana and terminates at SR 37 near Victor 
Pike in Monroe County, Indiana), and other new information revealed 
minor forest impacts within critical habitat for the Indiana bat 
(specifically, the Ray's Cave Winter Use Area). In light of this new 
information, USFWS chose to reevaluate impacts to the Indiana bat and 
to update the 2006 Tier 1 RPBO and ITS. The Amendment to the Tier 1 
RPBO contains new analysis and comment for each of the sections of the 
2006 Tier 1 RPBO affected by the new information, and USFWS affirmed 
that all other sections of the Tier 1 RPBO remain valid. Based on 
analysis of the new information, USFWS concluded that overall the 
amount of project impacts decreased since completion of the Tier 1 
analysis and that no additional impacts to the habitat of the Indiana 
bat are anticipated. USFWS further concluded that appreciable 
reductions in the likelihood of survival and recovery of the Indiana 
bat due to the construction, operation and maintenance of the I-69 
Evansville to Indianapolis project are unlikely to occur, and therefore 
FHWA demonstrated that the proposed action is unlikely to jeopardize 
the continued existence of the Indiana bat or its designated critical 
habitat. USFWS did not conduct any new analysis for either the bald 
eagle or the eastern fanshell mussel (Cyprogenia stegaria), and the 
non-jeopardy conclusion regarding impacts to the bald eagle still 
stands as stated in the original Tier 1 Biological Opinion (dated 
December 3, 2003).
    2. Project: Section 1 of the I-69 highway project from Evansville 
to Indianapolis. Location: I-64 just north of Evansville to just north 
of SR 64 west of Oakland City. Section 1 of the I-69 project extends 
from the I-64/I-164/SR 57 interchange north of Evansville to 
approximately one-half mile north of SR 64 near Oakland City, Indiana. 
Section 1 is a new alignment, fully access-controlled highway that has 
an approximately 350-foot-wide right-of-way. The ROD selected 
Alternative 4 for section 1, as described in the I-69 Evansville to 
Indianapolis, Indiana, Tier 2 Final Environmental Impact Statement, 
Evansville to Oakland City (FEIS). The ROD also approved the locations 
of the interchanges, grade separations, and access roads (which include 
new roads, road relocations, and realignments). On February 1, 2008, 
the FHWA published a ``Notice of Final Federal Agency Actions on 
Proposed Highway in Indiana'' in the Federal Register (at 73 FR 6241-
01) for the Section 1, 13.1 mile segment of I-69 in the Counties of 
Warrick and Gibson, State of Indiana. Notice is hereby given that, 
subsequent to the earlier FHWA notice, the USACE has taken final agency 
actions within the meaning of 23 U.S.C. 139(l)(1) by issuing permits 
and approvals for the highway project. The actions by the USACE, 
related final actions by other Federal agencies, and the laws under 
which such actions were taken, are described in the USACE decisions and 
its project records, referenced as Department of the Army (DA) Permit, 
Number LRL-2007-1043. That information is available by contacting the 
USACE at the address provided above.
    On June 7, 2010, INDOT filed an individual permit application with 
the USACE for authorization under Section 404 of the Clean Water Act, 
33 U.S.C. 1344, to construct crossings and relocations of four (4) 
unnamed tributaries to Smith Creek on Section 1 of the I-69 project. On 
June 15, 2011, the USACE took final action in issuing the Department of 
the Army (DA) Individual Permit for the construction of crossing and 
relocation of four (4) unnamed tributaries to Smith Creek for Section 1 
I-69 project, Number LRL-2007-1043, as described in the USACE decision 
and its administrative record for the project. As part of the Section 1 
project, which begins at I-64 just north of Evansville and extends to 
just north of SR 64 west of Oakland City, there is one (1) crossing of 
water resources requiring an individual permit from the USACE. Subject 
to the permit conditions, INDOT is permitted to discharge 1,149 cubic 
yards of fill material below the Ordinary Highway Water Mark of 1,780 
linear feet of stream channels (the four unnamed tributaries to Smith 
Creek). In addition, in a letter dated January 25, 2010, the USACE has 
authorized impacts at 52 other sites under their jurisdiction within 
Section 1 of the I-69 project in Warrick and Gibson Counties via the 
Regional General Permit No. 1 (LRL-2007-1043-djd) issued jointly by the 
Louisville, Detroit and Chicago Districts on December 15, 2009. In the 
letter dated January 25, 2010 from Ms. Deborah Duda Snyder of the 
Indianapolis Regulatory Office of the USACE to Ms. Laura Hilden of 
INDOT, the USACE verified that 52 individual stream and wetland impacts 
are authorized under the Regional General Permit No. 1, subject to 
special permit conditions requiring compensatory wetland and stream 
mitigation in accordance with the approved ``I-69 Section 1 
Compensatory Mitigation Plan'' (dated October 16, 2007; revised 
February 8, 2008).
    The actions by the Federal agencies on the project, and the laws 
under which such actions were taken, are described in the Amendment to 
the Tier 1 Revised Programmatic Biological Opinion and Incidental Take 
Statement, the Department of the Army (DA) Individual Permit (LRL-2007-
1043) and Regional General Permit letter (LRL-2007-1043-djd), and in 
other documents in the FHWA administrative record for the project. The 
ROD and other documents from the FHWA administrative record files for 
Tier 1 of the I-69 project and for the I-69 Tier 2 Section 1project are 
available by contacting FHWA, USACE, USFWS or INDOT at the addresses 
provided above. Project information may also be available through the 
INDOT I-69

[[Page 43374]]

Project Web site at http://www.i69indyevn.org/.

(Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program.)

    Authority:  23 U.S.C. 139(l)(1).

Robert F. Tally Jr.,
Division Administrator, Indianapolis, Indiana.
[FR Doc. 2011-18241 Filed 7-19-11; 8:45 am]
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