Friday, August 30, 2019

Federal Highway Administration quietly files Final Notice in the Federal Register

See update below.

The Federal Highway Administration has quietly filed its Final Notice in the Federal Register, ending the National Environmental Protection Act (NEPA) documentation and starting a mandatory time limit on litigation related to the agency's decision to move forward with the Mobile River Bridge & Bayway Project.

The $2.1 billion plan to create a new route across the Mobile River and expand the Bayway hit a practical and financial barrier to construction earlier this month when local government officials voted nearly unanimously to remove it from their Transportation Improvement Plans (TIPs). Those votes made the plan ineligible for federal funding, effectively ending any realistic chance of building the deeply unpopular project.

From a NEPA perspective however, the project is not dead. Its status is better described as in stasis. It is a project that is approved, but according to the MAP-21 Act, cannot be built. Yet.
This notice announces actions taken by the FHWA that are final. The action relates to the proposed project to increase the capacity of Interstate Route 10 (I-10) by constructing a new six-lane bridge across the Mobile River and replacing the existing four-lane I-10 bridges across Mobile Bay with eight lanes above the 100-year storm elevation. The proposed project is located in Mobile and Baldwin Counties, Alabama. Those actions grant approvals for the project.
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the project will be barred unless the claim is filed on or before January 27, 2020. 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 that shorter time period still applies.
So what does this mean for the project's opponents?

It means that if opponents have a cause to challenge FHWA's determination that the NEPA process for moving ahead with project has been satisfied, now is the time to make it official and begin your litigation process. File your notice, file your suit, whatever legal counsel tells you to do.

Please note the last sentence in the quoted text above. It says that if a shorter clock exists, that shorter clock applies. In keeping with FHWA and ALDOT practice with this project, they ain't saying if a shorter clock exists or when it might run out. As usual, dear peasant public person, it's on you to figure it out.

What could go wrong? The two MPO's could have a change of heart after the litigation clock runs out and put the project back in their TIPs. The state could then put it back in their STIP, and the public would have no legal recourse to stop it.

This blog has always maintained that NEPA was the project's greatest weakness.

Perhaps not coincidentally, the amount of information available on the project website's documents section at has been greatly abbreviated.

Update: A friend of the blog advises me that taking this step just covers FHWA from trouble for not completing the process. She also surmises that talks between FHWA, ALDOT and local officials could produce an alternative that satisfies the local "red line" of no tolls. This filing removes the chance that the new alternative falls afoul of NEPA procedure. Fair enough.

Could such discussions be underway? I won't speculate.

Update II: The old site's documents section is back.


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