[Federal Register Volume 78, Number 166 (Tuesday, August 27, 2013)]
[Notices]
[Pages 52999-53001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20869]


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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 and United States Fish and Wildlife Service (USFWS), DOI.

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SUMMARY: This notice announces actions taken by the FHWA and the USFWS 
that are final within the meaning of 23 U.S.C. 139(l)(1). The actions 
relate to proposed highway projects for a 21 mile segment of I-69 in 
the Counties of Monroe and Morgan, State of Indiana, and grant 
licenses, permits, and approvals for the project.

DATES: By this notice, the FHWA is advising the public that the FHWA 
and the USFWS have made decisions that are 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 decisions on the proposed 
highway project will be barred unless the claim is filed on or before 
January 24, 2014. If the Federal law that authorizes judicial review of 
a claim provides a time period of less than 150 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; email: [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; email: [email protected]. Normal 
business hours for the USFWS Bloomington Field Office are: 8 a.m. to 
4:30 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; email: 
[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 has 
approved a Tier 2 Final Environmental Impact Statement (FEIS) for 
section 5 of the I-69 highway project from Evansville to Indianapolis 
and issued a Record of Decision (ROD) for section 5 on August 7, 2013. 
Section 5 of the I-69 project extends from the intersection of Victor 
Pike and State Road 37 (south of Bloomington) to south of the 
intersection of State Road 37 and State Road 39 (south of 
Martinsville). Section 5 generally follows the alignment of and 
upgrades State Road 37, an existing four-lane median divided highway, 
to a fully access-controlled highway. As approved in the Tier 1 ROD, 
the corridor is generally 2,000 feet wide. The ROD selected Refined 
Preferred Alternative 8 for section 5, as described in the I-69 
Evansville to Indianapolis, Indiana, Tier 2 Final Environmental Impact 
Statement Bloomington to Martinsville, Indiana (FEIS), available at 
http://www.i69indyevn.org/section-5-FEIS.html. The ROD also approved 
the locations of the interchanges, grade separations, and access roads 
(which include new roads, road relocations, and realignments). 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. 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(1). Decisions in the FHWA Tier 1 ROD that 
were cited in that Federal Register notice included, but were not 
limited to, the following:

    1. Purpose and need for the project.
    2. Range of alternatives for analysis.
    3. Selection of the Interstate highway build alternative and 
highway corridor for the project, as Alternative 3C.
    4. Elimination of other alternatives from consideration in Tier 
2 NEPA proceedings.
    5. Process for completing the Tier 2 alternatives analysis and 
studies for the project, including the designation of six Tier 2 
sections and a decision to prepare a separate environmental impact 
statement for each Tier 2 section.

    The Tier 1 ROD and Notice specifically noted that the ultimate 
alignment of the highway within the corridor, and the locations and 
number of interchanges and rest areas would be evaluated in the Tier 2 
NEPA proceedings. Those proceedings for section 5 of the I-69 project 
from Evansville to Indianapolis have culminated in the August 7, 2013 
ROD and this Notice. Interested parties may consult the Tier 2, section 
5 ROD and FEIS for details about each of the decisions described above 
and for information on other issues decided. The Tier 2, section 5 ROD 
can be viewed and downloaded from the 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. Decisions in the section 
5, Tier 2 ROD that have final approval include, but are not limited to, 
the following: 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].
    Notice is hereby given that, subsequent to the earlier FHWA notices 
cited above, the USFWS has taken two final agency actions within the 
meaning of 23 U.S.C. 139(l)(1) by issuing: 1) ``Amendment 2 to the Tier 
1 Revised Programmatic Biological Opinion (dated August 24, 2006, 
previously amended May 25, 2011) for the I-69, Evansville to 
Indianapolis, Indiana Highway'' dated July 24, 2013, and, 2) an 
individual Biological Opinion, dated July 25, 2013, for the Tier 2, 
section 5, 21 mile I-69 project in Monroe and Morgan counties, that 
concluded that the section 5 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.
    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. The USFWS affirmed 
its decisions in the Amendment to the Revised Programmatic Biological 
Opinion issued on May 25, 2011. 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 July 20, 2011. A claim seeking 
judicial review of the Amendment to the Revised Programmatic Biological 
Opinion must have been filed by January 17, 2012, to avoid being barred 
under 23 U.S.C. 139(l).
    For the Tier 2, section 5, 21 mile I-69 Project in Monroe County, 
an

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individual Biological Opinion was issued on July 25, 2013, which 
concluded that the Section 5 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. In addition, the USFWS 
issued an Incidental Take Statement subject to specific terms and 
conditions. The USFWS also issued a Bald Eagle Take Exempted under ESA 
permit (NO. MB218918-0) for the incidental take of the bald eagles for 
all sections of the I-69 project. The permit was effective as of June 
25, 2009, and is subject to the terms and conditions of the Endangered 
Species Act section 7 incidental take statement and the August 24, 
2006, Revised Programmatic Biological Opinion. The biological opinions, 
Bald Eagle permit no. MB218918-0, and other project records relating to 
the USFWS actions, taken pursuant to the Endangered Species Act, 16 
U.S.C. 1531-1544, are available by contacting the FHWA, INDOT, or USFWS 
at the addresses provided above. The Tier 2, section 5 Biological 
Opinion can be viewed and downloaded from the project Web site at 
http://www.i69indyevn.org/section-5-feis/.
    On July 24, 2013, USFWS issued ``Amendment 2 To the Tier 1 Revised 
Programmatic Biological Opinion (RPBO dated August 24, 2006, previously 
amended May 25, 2011) for the I-69, Evansville to Indianapolis, Indiana 
highway'' USFWS decided to issue the Amendment to the RPBO primarily 
due to the identification of two new Indiana bat maternity colonies in 
the Section 5 project area (which begins south of Bloomington near 
Victor Pike in Monroe County, Indiana and terminates south of State 
Road 39 south of Martinsville in Morgan County, Indiana). Additionally, 
the project identified increases to exempt level of forest and wetland 
impacts based on refinement of the Tier 1 RPBO estimates. Finally 
additional forest impacts were revealed within and adjacent to the 
Section 4 (which begins east of the intersection of U.S. 231 and SR 45/
SR58 in Greene County, Indiana and terminates at SR 37 near Victor Pike 
in Monroe County, Indiana) project right-of-way due to private 
landowner tree-clearing actions. In light of this new information, 
USFWS chose to reevaluate impacts to the Indiana bat and to update the 
2006 and 2011 Tier 1 RPBO and Incidental Take Statement. The Amendment 
2 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 
appreciable reductions in the likelihood of survival and recovery of 
Indiana bats due to the construction, operation, and maintenance of I-
69 from Evansville to Indianapolis, Indiana are unlikely to occur, and 
hence, the FHWA has ensured that the proposed action is not likely to 
jeopardize the continued existence of the Indiana bat or destroy or 
adversely modify designated critical habitat. USFWS did not conduct any 
new analysis for either the bald eagle or 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). The Amendment 2 To the 
Tier 1 Revised Programmatic Biological Opinion (RPBO dated August 24, 
2006, previously amended May 25, 2011) for the I-69, Evansville to 
Indianapolis, Indiana highway can be found and downloaded from the 
project Web site at http://www.i69indyevn.org/corridor-wide-technical-reports/.

(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).

Richard J. Marquis,
Division Administrator, Indianapolis, Indiana.
[FR Doc. 2013-20869 Filed 8-26-13; 8:45 am]
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