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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 Fish and Wildlife Service (USFWS), DOI.

# 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 a proposed highway project for 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 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                         *August 24, 2010.*                         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,                               ( print page 8787)                            Indianapolis, IN 46204-1576; telephone: (317) 226-7486; e-mail:                         *Janice.Osadczuk@dot.gov.*                         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:                         *Scott_Pruitt@fws.gov.*                         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; 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 has approved a Tier 2 Final Environmental Impact Statement (FEIS) for section 3 of the I-69 highway project from Evansville to Indianapolis and issued a Record of Decision (ROD) for section 3 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). 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 3 of the I-69 project from Evansville to Indianapolis have culminated in the January 28, 2010, ROD and this Notice. Interested parties may consult the Tier 2, section 3 ROD and FEIS for details about each of the decisions described above and for information on other issues decided. The Tier 2, section 3 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 3, 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]. 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. For the Tier 2, section 3, 25.73-mile I-69 project in Daviess and Greene Counties, an individual Biological Opinion was issued on October 21, 2009, that concluded that the Section 3 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. In addition, the USFWS 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 3, Biological Opinion can be viewed and downloaded from the project Web site at                     *http://www.deis.i69indyevn.org/​FEIS_​Sec3/​Sec3_​Appendix_​Y2.pdf.*

(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. 2010-3560 Filed 2-24-10; 8:45 am]

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