2011-18241. 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 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: [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), 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 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 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.