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###### Department of Transportation

###### Federal Highway Administration

# AGENCY:

Federal Highway Administration (FHWA), DOT.

# ACTION:

Notice of limitation on claims for judicial review of actions by FHWA 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 for a 28.7 mile segment of I-69 in the Counties of Gibson, Pike and Daviess, State of Indiana, and grant licenses, permits, and approvals for the project.

# 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 October 16, 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. Michelle Allen, Federal Highway Administration, Indiana Division, 575 North Pennsylvania Street, Room 254, Indianapolis, IN 46204-1576; telephone: (317) 226-7344; e-mail:                         *Michelle.Allen@dot.gov.*                         The FHWA Indiana Division Office's normal business hours are 7:30 a.m. to 4 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:                         *gregory.a.mckay@usace.army.mil.*                         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:                         *TSeeman@indot.IN.gov.*                         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 Discharge of Dredged or Fill Material 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,                           ( print page 21941)    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 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. Notice is hereby given that, subsequent to the earlier FHWA notice, the FHWA has taken final agency actions within the meaning of 23 U.S.C. 139(                    *l*)(1) by approving three (3) Reevaluations of the Tier 2, Section 1 Record of Decision issued on December 12, 2007. Section 1 of the I-69 project extends from I-64 just north of Evansville to just north of SR 64 west of Oakland City. Section 1 is a new alignment, fully access-controlled highway. As approved in the Tier 1 ROD, the corridor is generally 2000-feet wide. The ROD selected Preferred 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, Indiana (FEIS), available at                     *http://www.i69indyevn.org/​section1_​FEIS.html.*                     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 Limitation on Claims for Judicial Review of Actions by FHWA and United States Fish and Wildlife Service (USFWS), DOI” 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. A claim seeking judicial review of the Tier 2, Section 1 decisions must have been filed by July 30, 2008, to avoid being barred under 23 U.S.C. 139(l). The three (3) Reevaluations of the Tier 2, Section 1 ROD include: (1) The March 20, 2009 Reevaluation, which was prepared to evaluate the effects of additional right-of-way and improvements (including right-of-way required for bank stabilization, drainage improvements, guard-rail, cul-de-sacs, and a potential levee) made necessary based on final design that were not analyzed in the Tier 2 Section 1 ROD or FEIS (approved December 12, 2007); (2) the December 13, 2010 Reevaluation, which was prepared to evaluate the impacts of additional right-of-way areas (including right-of-way required to accommodate cul-de-sac construction, right-of-way shift to avoid a stream channel, stream channel realignment and tree planting, berm construction around existing oil storage tanks, driveway construction, interchange and grade modifications, and flood easements) made necessary based on final design that were not analyzed in the Tier 2 Section 1 ROD or FEIS (approved December 12, 2007); and (3) the February 17, 2011 Reevaluation, which was prepared to evaluate the impacts of additional right-of-way areas (including right-of-way required to accommodate cul-de-sac construction, building removal, cut sections through hills, driveway reconstruction, interchange modifications, erosion control, fill-in remainder portions of impacted ponds, construction of a connector road, drainage easements, and revised right-of-way to even station and offset) made necessary based on final design that were not analyzed in the Tier 2 Section 1 ROD or FEIS (approved December 12, 2007). The analysis in each of the Reevaluations 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 1, and therefore that the Tier 2 Section 1 FEIS and ROD remain valid. 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.*

                    2.                     *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. On August 13, 2010, the FHWA published a “Notice of Final Federal Agency Actions on Proposed Highway in Indiana” in the                     **Federal Register**                     at (75 FR 49547) for the Section 2, 28.7 mile segment of I-69 in the Counties of Gibson, Pike and Daviess. 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-2010-466. That information is available by contacting the USACE at the address provided above.                

                    On June 18, 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 28.7 mile Section 2 I-69 project. On April 1, 2011, the USACE took final action in issuing the Department of the Army (DA) Permit for the Section 2 I-69 project, Number LRL-2010-466, as described in the USACE decision and its administrative record for the project. As part of the Section 2 project, which begins at the northern terminus of the Section 1 project, there are 14 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 6,432 cubic yards of fill material below the Ordinary Highway Water Mark of 25,075 linear feet of stream channels, and to discharge 638,370 cubic yards of fill material into 16.41 acres of open water and emergent, scrub-shrub, and forested wetlands in constructing these 14 crossings. In addition, in two letters dated July 29, 2010 and September 29, 2010, the USACE has authorized impacts at 48 other sites under their jurisdiction within Section 2 of the I-69 project in Gibson, Pike and Davies Counties via the Regional General Permit No. 1 issued jointly by the Louisville and Chicago Districts on December 15, 2009. In the letter dated July 29, 2010 from Ms. Deborah Duda Snyder of the Indianapolis Regulatory Office of the USACE to Mr. Nathan Saxe of INDOT, the USACE verified that 10 individual stream and wetland impacts are authorized under the Regional General Permit No. 1 issued jointly by the Louisville and Chicago Districts on December 15, 2009. In the letter dated September 29, 2011 from Ms. Deborah Duda Snyder of the Indianapolis Regulatory Office of the USACE to Mr.                           ( print page 21942)                        Nathan Saxe of INDOT, the USACE verified that an additional 38 individual stream and wetland impacts are authorized under the Regional General Permit No. 1 issued jointly by the Louisville and Chicago Districts on December 15, 2009, subject to special permit conditions requiring compensatory wetland and stream mitigation in accordance with approved “Mitigation and Monitoring Plans.”                

                    In addition, FHWA has approved five (5) Reevaluations of the Tier 2, Section 2 Record of Decision issued on August 13, 2010. The five Reevaluations of the Tier 2, Section 2 ROD include: (1) The October 6, 2010 Reevaluation, which was prepared to analyze the impacts of additional right-of-way areas (including right-of-way changes to accommodate storm water detention, elimination and additions of local service roads, cul-de-sac construction, existing bridge upgrades, building removal, mitigation, construction of access roads, spill containment, and to tie into Section 1 right-of-way) made necessary based on final design of segments 1 and 1A of Section 2 that were not analyzed in the Tier 2 Section 2 ROD or FEIS (approved April 18, 2010); (2) the December 6, 2010 Reevaluation, which was prepared to evaluate the impacts of permanent flood easements required for the final design of seventeen waterway bridge crossings within Section 2 and determine the changes in impacts to the affected environment from what was documented in the Tier 2 Section 2 ROD (approved April 18, 2010); (3) the December 8, 2010 Reevaluation, which was prepared to evaluate the impacts of additional right-of-way areas (including right-of-way changes to accommodate cul-de-sac construction, refined curve alignments, construction of local service roads to access landlocked parcels, and right-of-way revisions to follow surveyed parcel lines) in segments 2 and 3 of Section 2 made necessary based on final design that were not analyzed in the Tier 2 Section 2 ROD or FEIS; (4) the January 6, 2011 Reevaluation, which was prepared to analyze the impacts of additional right-of-way areas (including right-of-way changes to accommodate transmission tower relocation, connection highway right-of-way into existing right-of-way, removal of existing pavement, intersection realignment for improved safety, cul-de-sac construction, access drive construction, local service roads modifications, and improvements in sight distance) made necessary based on final design of segments 4 and 5 of Section 2 that were not analyzed in the Tier 2 Section 2 ROD or FEIS (approved April 18, 2010); and (5) the January 13, 2011 Reevaluation, which was prepared to evaluate the impacts of minor right-of-way changes (including right-of-way changes to accommodate cul-de-sac construction, right-of-way shift to avoid a stream channel, side slope and ditching design to stay within right-of-way, construction of access drives and roadway profile changes, filling in the small remainder of an impacted pond, building removal, Local Service road modifications, right-of-way revisions to follow surveyed parcel lines, improvements to intersection sight distance, and right-of-way revisions to simplify acquisition and traffic maintenance) made necessary as a result of final design of segments 6 and 7 of Section 2 that were not analyzed in the Tier 2 Section 2 ROD or FEIS (approved April 18, 2010). The analysis completed in each of the five Reevaluations 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 2, and therefore that the Tier 2 Section 2 FEIS and ROD remain valid. 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.*

                    3.                     *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 two (2) 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 have been filed by August 24, 2010, to avoid being barred under 23 U.S.C. 139(l). The two (2) Reevaluations of the Tier 2, Section 3 ROD include: (1) The September 29, 2010 Reevaluation, which was prepared to evaluate the impacts of additional right-of-way areas (including right-of-way changes to accommodate residential relocation, channel grading as part of hydraulic design, natural channel design, stream relocation of a Doan's Creek tributary, barn removal, bridge upgrades, tie-in to existing right-of-way, and driveway reconstruction) made necessary as a result of final design of segments 10 through 13 of Section 3 that were not analyzed in the Tier 2 Section 3 ROD or FEIS (approved January 28, 2010); and (2) the November 17, 2010 Reevaluation Addendum (to the May 6, 2010 Reevaluation concerning flood easements in Section 3), which was prepared to evaluate the impacts of additional permanent flood easements required for the final design of Section 3 (including modification of flood easement boundaries at North Fork Prairie Creek and Epsom Lateral and acquisition of flood easements within the existing floodplain of North Fork Prairie Creek) and determine the changes in impacts to the affected environment from what was documented in the Tier 2 Section 3 ROD (approved January 28, 2010). The analysis completed in the Reevaluations 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, and therefore that the Tier 2 Section 3 FEIS and ROD remain valid. 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.*

                    The actions by the Federal agencies on the project, and the laws under which such actions were taken, are described in the Reevaluation documents, the Department of the Army (DA) Permit and Regional General Permit letters (LRL-2010-466-djd), and in other documents in the FHWA                           ( print page 21943)                        administrative record for the project. The ROD and other documents from the FHWA administrative record files for the Section 1, Section 2, and Section 3 projects are available by contacting FHWA, USACE 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).                    

Max Azizi,

Acting Division Administrator, Indianapolis, Indiana.

[FR Doc. 2011-9420 Filed 4-18-11; 8:45 am]

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