2010-19979. 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.

SUMMARY:

This notice announces actions taken by the FHWA, the USFWS, and the USACE that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to proposed highway projects for a 28.7 mile segment of I-69 in the Counties of Gibson, Pike and Daviess, State of Indiana, and a 25.73 mile segment of I-69 in the Counties of Daviess and Greene, State of Indiana, and grant licenses, permits, and approvals for the projects.

DATES:

By this notice, the FHWA is advising the public that the FHWA, the USACE, 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 February 9, 2011. 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. Janice Osadczuk, Federal Highway Administration, Indiana Division, 575 North Pennsylvania Street, Room 254, Indianapolis, IN 46204-1576; telephone: [phone]; e-mail: [e-mail]. 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: [phone]; e-mail: [e-mail]. 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: [phone]; e-mail: [e-mail]. 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: [phone]; e-mail: [e-mail]. 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), Reevaluation Documents to the final environmental impact statements (FEIS) issued in connection with the projects, Section 404 Water Quality Permit and Regional General Permit letters, 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). 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).

The projects subject to this notice are:

1. Project: Section 2 of the I-69 highway project from Evansville to Indianapolis. Location: Oakland City, Indiana to Washington, Indiana, Gibson, Pike and Daviess Counties. Notice is hereby given that the FHWA has approved a Tier 2 Final Environmental Impact Statement (FEIS) for Section 2 of the I-69 highway project from Evansville to Indianapolis and issued a Record of Decision (Section 2 ROD) for Section 2 on April 30, 2010. Section 2 of the I-69 project extends from approximately one-half mile north of SR 64 near Oakland City to US 50 east of Washington. Section 2 is a new alignment, fully access-controlled highway. As approved in the Tier 1 ROD, the corridor is generally 2000-feet wide, but corridor width varies and is at its narrowest crossing the Patoka River, where it narrows to 420 feet. The Section 2 ROD selected Refined Preferred Alternative 1 for Section 2, as described in the I-69 Evansville to Indianapolis, Indiana, Tier 2 Final Environmental Impact Statement, Oakland City to Washington, Indiana (FEIS), available at http://www.i69indyevn.org/​section2_​FEIS.html. The Section 2 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(l). 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 location and number of interchanges and rest areas would be evaluated in the Tier 2 NEPA proceedings. Those proceedings for Section 2 of the I-69 project from Evansville to Indianapolis have culminated in the April 30, 2010, ROD and this Notice. Interested parties may consult the Tier 2, Section 2 ROD and FEIS for details about each of the decisions described above and for information on other issues decided. The Tier 2, Section 2 ROD can be viewed and downloaded from the project Web site at http://www.i69indyevn.org/​.

For the Tier 2, Section 2, 28.7 mile I-69 project in Gibson, Pike and Daviess Counties, an individual Biological Opinion by the USFWS was issued in February 2010 that concluded that the Section 2 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 specified terms and conditions. The biological opinions 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 2, Biological Opinion can be viewed and downloaded from the project Web site at http://www.deis.i69indyevn.org/​FEIS_​Sec2/​2F_​Appendix_​Y2.pdf.

2. Project: Section 3 of the I-69 highway project from Evansville to Indianapolis. Location: U.S. 50 east of the city of Washington, Indiana to U.S. 231 near the Crane NSWC, Daviess and Greene Counties. Notice is hereby given that the FHWA has approved four Reevaluations of the Tier 2, Section 3 Record of Decision issued on January 28, 2010. Section 3 of the I-69 project extends from U.S. 50 east of the city of Washington, Indiana to U.S. 231 near the Crane NSWC. Section 3 is a new alignment, fully access-controlled highway. As approved in the Tier 1 ROD, the corridor is generally 2000-feet wide. The corridor width varies at two locations within Section 3. It narrows to 1200-feet wide near First Creek and expands to 6400-feet wide near the Thousand Acre Woods. The ROD selected Refined Preferred Alternative 1 for Section 3, as described in the I-69 Evansville to Indianapolis, Indiana, Tier 2 Final Environmental Impact Statement, Washington to Crane NSWC, Indiana (FEIS), available at http://www.i69indyevn.org/​section3_​FEIS.html. The ROD also approved the locations of the interchanges, grade separations, and access roads (which include new roads, road relocations, and realignments). 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 February 25, 2010 (75 FR 8786-01). A claim seeking judicial review of the Tier 2, Section 3 decisions must be filed by August 24, 2010, to avoid being barred under 23 U.S.C. 139(l). The four Reevaluations of the Tier 2, Section 3 ROD include: (1) The June 15, 2010 Reevaluation, which was prepared to evaluate the impacts of additional right-of-way areas made necessary as a result of final design of Section 3 that were not analyzed in the Tier 2 Section 3 ROD or FEIS; (2) the April 18, 2010 Revaluation, which was prepared to analyze the impacts of additional right-of-way areas made necessary based on final design Section 3 that were not analyzed in the Tier 2 Section 3 ROD or FEIS (approved April 18, 2010); (3) the February 18, 2010 Reevaluation, which was prepared to evaluate the impacts of additional right-of-way to accommodate grade separation, drive construction and building removal, made necessary based on final design of several bridges; and (4) the May 6, 2010 Reevaluation, which was prepared to evaluate the impacts of minor bridge design changes and acquisition of additional permanent flood easements made necessary based on final design that were not analyzed in the Tier 2 Section 3 ROD or FEIS. The analysis in each of the four reevaluations completed supports the FHWA's conclusions that none of the changes examined will have impacts sufficient to require preparation of a Supplemental Environmental Impact Statement (SEIS) or an additional Draft Environmental Impact Statement (DEIS) for Section 3. The detailed analysis of the reevaluation documents along with the Federal decision of minimal impact can be found on the project Web site at http://www.i69indyevn.org/​reevaluation.html.

In addition, the United States Army Corps of Engineers (USACE) has taken final agency action by issuing a permit and approval for the Section 3, 25.73 mile I-69 project in Daviess and Greene Counties. On January 7, 2010, INDOT filed an application with the USACE for authorization under Section 404 of the Clean Water Act, 33 U.S.C. 1344, to construct the 25.73 mile Section 3 of I-69. As part of the Section 3 project, which begins at the terminus of the Section 2 project, there are six crossings of water resources requiring individual permits from the USACE, including streams, open water and emergent, scrub-shrub and forested wetlands. Subject to the permit conditions, INDOT is permitted to discharge fill material below the Ordinary Highway Water mark of 8,925 linear feet of Doan's Creek and intermittent and ephemeral tributaries of Eagan Ditch and Doan's Creek, and to discharge fill material into 4.64 acres of open water and emergent, scrub-shrub and forested wetlands adjacent to First Creek and Doan's Creek in constructing these crossings. The action taken by the USACE, related final actions by other Federal agencies, and the laws under which such actions were taken are described in the USACE decision and its administrative record for the Projects, referenced as Section 404 Water Quality Permit Number LRL-2010-39-djd, issued on July 14, 2010. In addition, in two letters dated January 20, 2010 and May 4, 2010, the USACE has authorized impacts at 32 other sites under their jurisdiction within Section 3 of the I-69 project in Daviess and Greene Counties via the Regional General Permit No. 1 issued jointly by the Louisville and Chicago Districts on December 15, 2009. All of this information is available on the project Web site at http://www.i69indyevn.org/​404permits.html,, or by contacting the USACE at the address provided above.

(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.