Agreeing With MACo, Review Committee Holds MDOT Regulations

Citing agreement with MACo’s key concerns, the Maryland General Assembly’s Joint Committee on Administrative, Executive and Legislative Review (AELR) has placed the Maryland Department of Transportation (MDOT)’s draft regulations, COMAR 11.01.18.01 and 11.01.18.02, required by the Maryland Open Transportation Investment Decision Act of 2016, on hold for further review.

AELR Committee Chairs Senator Roger Manno and Delegate Samuel Rosenberg attached MACo’s comments to their letter sent to MDOT Secretary Pete Rahn on December 6, and stated in that letter that the Committee agreed with the main points in MACo’s comments. The letter states:

…[W]e share the concerns expressed at the hearing on November 18, 2016, and we hope that the department will work in a bipartisan, good faith manner with the legislature and local government officials to propose alternative regulations.

Response To MACo’s Comments on Population Served

Specifically, the Committee agreed with MACo that language in the regulations defining the “area served by the project” as the county or counties housing the project should “be removed from the regulations.” In addition, the Committee “echo[ed] MACO’s sentiments that Chapter 36, as enacted, grants the department complete autonomy and flexibility to craft a project-scoring system in any manner and form that the department sees fit.”

From the letter:

[Enclosed is a document from] the Maryland Association of Counties (MACo) reiterating their position that the definition of “area served by the project” under proposed regulation .01 of COMAR 11.01.18 be amended so that it does not use the population modifier language that was struck from Chapter 36 by the General Assembly. The Joint Committee on Administrative, Executive, and Legislative Review (AELR committee) agrees that the department’s use of population modifier language that was struck from Chapter 36 goes directly against legislative intent. This language was removed from the law at the request of MACo due to rural areas of the State potentially receiving a project score that would not be as competitive as the scores received for projects in urban areas.

The AELR committee agrees with MACo that the population modifier language should be removed from the regulations, and encourages the department to take the steps necessary to make this change before adoption of the regulations. We echo MACo’s sentiments that Chapter 36, as enacted, grants the department complete autonomy and flexibility to craft a project-based scoring system in any manner and form that the department sees fit.

The full letter is available here.

Extensive coverage on the issue is available from Herald-Mail Media

The bill’s original language said the combined score of each project was to be multiplied by a factor based on one, plus the results of dividing the population of the “county or counties where the project will be located” by the population of Maryland.

Citing an unfair advantage by more populous counties, MACo objected.

Legislators then changed “county or counties where the project will be located” to “area served by the project.”

But when MDOT’s regulations were presented, the agency defined “area served by the project” as “the county or counties in which a major transportation project is located” — the language MACo had objected to.

“We don’t know where it came from,” Manno said.

The Fiscal Note Revision

The letter also enclosed a copy of a letter from the Department of Legislative Services (DLS) Fiscal and Policy Notes office, clarifying a revision it had made to the law’s fiscal note on November 10. The original fiscal note indicated that the law would have no fiscal impact on counties. However, following a series of letters sent over the summer transferring substantial responsibility for the law’s implementation to the counties, DLS revised the fiscal note in preparation for the AELR hearing, stating:

The bill does not impose any additional responsibilities on local governments and thus does not require additional local government expenditures. To the extent that local jurisdictions choose to conduct additional analyses, local expenditures may increase. Local revenues are not affected.

Some AELR committee members questioned the revision at the November 18 hearing, suggesting that the post-session clarification could hypothetically place at risk a court’s analysis of the law’s legislative intent.

What Happens Next?

At MACo’s Winter Conference on Friday morning, Governor Larry Hogan’s senior adviser and deputy legislative officer, Keiffer Mitchell, stressed that the Governor would push to repeal the transportation planning legislation, colloquially referred to as the “scorecard” law, or, as Governor Hogan calls it, the “roadkill bill.” But, The Washington Post quotes Senate President Mike Miller: “We don’t want to repeal it. That’s not going to happen.”

From The Daily Record:

“We’ve extended an olive branch to the governor and (Transportation) Secretary (Pete) Rahn, seeking their ideas since they’ve expressed discomfort with the legislation,” said Sen. Roger Manno, D-Montgomery and co-chairman of the joint Administrative, Executive and Legislative Review Committee. “We haven’t heard back.”

Hogan and his senior officials counter that the law usurps executive authority and eliminates an established system that was already transparent, flexible and took into account the priorities of local governments around the state. …

“I don’t like these regulations,” Rahn said. “These are bad regulations, but they are the result of a bad law.”

Those regulations will be put into effect on Feb. 10, the secretary said.

Rahn said there’s only one solution.

“Repeal the law and replace it,” Rahn said, adding that repeal must come first.

“It it’s repealed early in the session then there would be an opportunity to look at (replacing),” Rahn said.