Miller Offers “Grand Bargain” on Transportation Scorecard Bill

At the high profile hearing for SB 307, Governor Hogan’s proposal to repeal the transportation scorecard legislation enacted last year, Senate President Miller testified in support of a proposed “compromise” that would delay the scoring system’s effect for two years while a select work group would be empaneled to work through the system. The Administration and Department officials testifying in support of the repeal legislation expressed an initial reluctance, but indicated appreciation for the movement on the sticky issue.

From coverage in the Baltimore Sun:

Republican Gov. Larry Hogan‘s administration is refusing to compromise with Democrats on a controversial transportation scoring law, demanding its full repeal before they entertain anything else.

“We can’t salvage this law,” Transportation Secretary Pete K. Rahn told the Senate Budget and Taxation Committee on Wednesday. Hogan’s chief legislative officer, Christopher Shank, said if the administration discusses a compromise, “that conversation has to begin with repeal.”

MACo Executive Director Michael Sanderson testified in support of Senate Bill 307, indicating that MACo would support either a “repeal” or “replace” path forward. He indicated he was “heartened” by the proposed movement from the Senate President, who had reaffirmed that “we’re not going to pass a repeal,” but distributed amendment language to Committee members.

Sanderson outlined several areas for any workgroup to focus on — including specifying the Department’s ability to score projects differently based on region or mode, to specify the intended analytical responsibilities between the Department and counties, and to clarify the “advisory” nature of the legislation. He also urged local input into any review going forward.


The bill as introduced repeals the 2016 legislation creating a “scorecard” for major transportation projects. That bill, with its many prescriptive elements, and the subsequent implementing regulations, have left counties deeply concerned about the process for selecting major transportation projects. MACo urges the General Assembly to remedy the current two-part scheme of legislative and regulatory interpretation that collectively place projects in jeopardy, and may overwhelm county transportation planning staff.

During the 2016 legislative session, MACo raised concerns with HB 1013, the legislation targeted by this year’s SB 307. In testimony, MACo raised concerns about respecting county input into project selection, overburdening county public works departments, and the potential for unfairness in the legislated scoring system. Many of these points were addressed, in whole or in part, through both House and Senate amendments.

During the interim, MACo was again alarmed by exchanges with the Maryland Department of Transportation, suggesting that a failure of counties to rapidly provide dramatically expanded information to defend proposed projects would result in them being “de-funded.” And finally, after the implementation of last year’s act was delayed pending adoption of regulations, MACo again expressed concern with the proposed Departmental regulations that failed to implement flexibility that we believe the legislation afforded. Taken together, counties fear the law and regulations’ scoring system will prove counterproductive and cumbersome.

From MACo testimony:

Imperfect scores undermine the entire system. An ideal scorecard system could advance the public’s ability to understand the State’s project selection process. Counties fear that the status quo, as a combined result of legislation and regulations, will substantially miss this mark. The Maryland public would not be well served if the Department were obliged to routinely offer a multitude of “rational basis” letters to assert an exception for a wide range of projects in order to retain funding, despite their project scores. Even though this process is spelled out in the law, a system that creates an unreasonable number of exceptions loses its utility.

Follow MACo’s advocacy efforts during the 2017 legislative session here.

Maryland Reporter Muses On Scorecard Bill, Solutions

In a commentary piece timed with the beginning of session, veteran Annapolis reporter hogan-road-kill-charts-1170x781Len Lazarick of the news site bemoans the role of “facts” in political debate, and eventually focuses his attention on the high-profile “transportation scorecard” legislation passed last year and still causing a furor.

Governor Larry Hogan has made it clear that his top priority this session is to repeal the transportation scoring legislation passed overwhelmingly last session, which the Governor vetoed and the General Assembly overrided. Lazarick categorizes the history:

Why some road or highway or transit projects are funded and others are not is often a mystery. There is never enough money for everything, particularly after the Great Recession, so some projects win and some project lose.

The legislature wanted to make that decision process “more transparent” by creating a complicated scoring system with nine goals and 23 measures. Some projects would score higher than others, justifying funding.

The principal problem with the law is that its goals and measures are blatantly biased in favor of mass transit. On top of that, once the scores are arrived at, they are then weighted by population, putting a thumb on the scales for the largest counties.

Hogan’s veto of a measure that seems to restrict his authority to fund projects was understandable.

MACo testified, in opposition to the bill, at both hearings — arguing that the bill’s detailed provisions could marginalize local input, overlook regional or demographic variations in transportation needs, and under-value safety as a driving factor in project approval. Both the House and Senate accepted substantial amendments to the bill, many of which were drafted to address county concerns. The amendments made several changes to the bill, including directing the Maryland Department of Transportation (MDOT) to develop the final “percentage” weightings in the various components of the scoring system and adding an additional scoring component, “Local Priorities and Planning.” Amendments also ensured the bill would not affect the county priority letter process and MDOT’s visit to each county to discuss transportation priorities.

Lazarick states that the Governor “denied that there were escape clauses in the law,” and points out:

…in fact there are two. One allows the administration to fund a project, despite a low score, by writing a letter giving a “rational basis” for the decision. The other says the law should not prohibit the funding of any project.

Lazarick also calls attention to MDOT’s regulations drafted to implement the bill, which “provide little leeway on scoring.” MACo testified at a hearing held on the regulations on November 18, and provided formal comments on how to the regulations could be amended to provide more leeway.

Lazarick closes by opining on what comes next:

With bad regs due to take effect in February to implement a flawed bill, legislators seem prepared to tackle a rewrite of the scoring system. “Repeal and replace,” is how Democratic Del. Sandy Rosenberg phrased it, as he co-chaired the hearing on the regulations Nov. 18, echoing the Republican phrasing on Obamacare.

That could be a model for “repeal” of the “road kill bill” — repeal the bad bill, but create a new, more flexible “advisory” scoring system that Hogan could live with.

One note of potential optimism on the issue popped up as the Governor addressed the Senate Chamber in its initial session today. Senate President Mike Miller followed the Governor’s comments by noting multiple areas of potential collaboration, and added, “We’re also going to look at a road bill, Governor… we’re going to look to you for some ideas to make it more palatable for you and your Administration.”

Click here to see MACo’s ample coverage on this issue.

Transportation “Scorecard” Bill Still Sparking Back-and-Forth

2016 legislation variously known as the “Scorecard Bill,” the “Road Kill Bill,” or the “Transportation Transparency Bill” continues to stir up emotions in the State capital, as the legislative session approaches. The content of the bill itself, the process for its legislative consideration, and larger funding issues with the Department of Transportation are all in the crosshairs for this still-raging debate.

Department of Legislative Services (DLS) Executive Director Warren Deschenaux has weighed in on HB 1013 – the bill requiring scoring for major transportation projects – disputing the claim that it actually kills roads. In a letter sent to the Maryland General Assembly leadership, the head of the legislature’s nonpartisan staff agency points out that the Administration retains authority to override the scoring system and fund any project it favors and seeks to fund. Deschenaux also specified that 31 of the 71 projects being claimed as “killed” were not previously programmed in the draft Consolidated Transportation Program (CTP).

Deschenaux instead draws attention to a $1 billion shortfall in expected transportation revenue as a likely “road killer.” The Baltimore Sun quotes from the letter:

In his letter, Deschenaux said the most important current threat to transportation spending was a shortfall in expected transportation revenue that has forced the department to decrease capital spending by “nearly $1 billion.”

“Based on this analysis, it would appear that fiscal realities are likely to have a much bigger impact on MDOT’s ability to include projects in the [six-year plan] than the requirement under the act that projects be scored,” Deschenaux wrote.

Deschenaux points to $761 million placed in reserve by Governor Hogan to provide transportation funds to counties and municipalities for local roads and bridges – funds that the General Assembly could instead reserve for state projects.

Governor Hogan’s chief spokesperson, Doug Mayer, called Deschenaux’s view on the law “preposterous,” stating that the Administration does not believe the law provides the Maryland Department of Transportation (MDOT) legal authority to move forward with lower-scoring projects.  “There is no way the session ends without a major change to this law,” stated Mayer.

Read the article in  The Baltimore Sun.

The exchange has reignited a firestorm of social media attention from various sources. Some individuals and organizations are weighing in with memes and comments protesting that the bills the Governor says would be killed were never slated to be funded to begin with. Others take issue with the legislature and how HB 1013 was passed – there has been some disagreement over the hearings the cross-filed bill received.

On the issue over whether the Act had hearings in both chambers: it did, just in varying forms.  The Daily Record (available to subscribers only) sums it up well:

The governor is right in the fact that the legislature “rushed the bill through.” He’s wrong when he says the bill received no hearings or no public input.

Both the House and Senate versions of the bill [(House Bill 1013 and cross-file Senate Bill 908, respectively)] received hearings in their respective chambers on Feb. 17 and March 2, respectively. Both hearings are available on video, and state Transportation Secretary Pete K. Rahn testified against the bill at both.

The House completed its work on House Bill 1013 on March 19 and sent it to the Senate. ….

By tradition, bills that are cross-filed in the House and Senate receive a full hearing in their original chamber and a sponsor-only hearing when they are sent to the opposite chamber.

What should have been a sponsor-only hearing for House Bill 1013 was scheduled for March 29 in the Senate Budget and Taxation Committee. That hearing never happened. Instead, the bill legislators said is supposed to promote transparency was amended and voted out of committee session March 28. That session does not appear on any calendar.

The unusual procedural skip-ahead by Kasemeyer and the Senate Budget and Taxation Committee made it possible to fast-track the legislation and get it on the Hogan’s desk by April 1 — forcing governor to sign or veto the bill during session and allowing the General Assembly to take up a veto override.

Read more Conduit Street coverage on the Maryland Open Transportation Investment Decision Act of 2016 by clicking here or searching for the tag, “scorecard.”

The Department of Legislative Services letter is available here.


Battle Raging Over “Scorecard”/”Road Kill” Bill

Yesterday The Baltimore Sun ran an editorial about Governor Hogan’s announcement on his top legislative priority this session: repeal the “Road Kill Bill”  (i.e., the Maryland Open Transportation Investment Decision Act of 2016). Spoiler alert: it’s not nice.

Like any good dancer, actor or used car salesman, Gov. Larry Hogan has a “move.” It’s just a bit more elaborate than a feather step, a raised eyebrow or a pitch for $200 undercoating. His is the “straw man” — a distortion of reality that allows him to vigorously attack, knock down and refute something that doesn’t even exist.

Battle Lines Drawn

The Sun editorial board accuses Governor Hogan of grossly misrepresenting the law. While admitting that they saw no need for the law given the extent of existing transportation planning requirements, they nevertheless point out that it is strictly advisory:

Governor Hogan or any other governor still retains authority to decide how transportation money shall be spent; the law merely requires him to publicly justify expenditures.

Ah, but there’s the rub. The governor has chosen to make the law as unworkable as possible by drafting doomsday regulations that he claims would kill highway projects. He’s even labeled the legislation on which the General Assembly already overrode his veto as the “road kill bill.” He might as well have called it the “rain tax 2.” …

As the state attorney general’s office advised lawmakers earlier this year, projects with lower scores can still be funded if the transportation department “provides, in writing, a rational basis for the decision.” In other words, it’s all non-binding (unless the governor insists on “irrational” transportation projects — water slides, vacuum tubes, compressed air cannons perhaps — for which he might theoretically be stymied). …

Now Governor Hogan has upped the ante further by declaring this week that repeal of the “road kill” bill will be his highest priority in the upcoming legislative session. Wow. Guess he doesn’t have much of an agenda for his third year (normally, a governor’s most productive, by the way). Here’s our prediction: There is about a zero probability that lawmakers are backing down now.

Read the full editorial here.

The Governor immediately fought back by posting this on Facebook:

Governor Hogan: “The Baltimore Sun editorial writers are so biased and misinformed, they have lost all credibility. They often print whoppers with no truth to them whatsoever.”

The Governor states in the post that “The Road Kill Bill will kill 66 out of 73 transportation projects across the state,” and that the “bill was written in back rooms by lobbyists and special interests, and partisan legislators rammed it through with very little debate and without appropriate public input.”

MACo’s Involvement

MACo opposed the bill last session, with concerns that it may marginalize local input, overlook regional or demographic variations in transportation needs, and under-value safety as a driving factor in project approval. MACo subsequently offered amendments, which the Maryland General Assembly approved.

In a series of letters sent over the summer, the Administration sought to transfer substantial and costly responsibility for the law’s implementation to the counties. The Attorney General’s Office issued a letter advising that the new law does not authorize the Maryland Department of Transportation (MDOT) to shift analytical responsibilities to the counties. MACo sent MDOT a letter offering support in the upcoming months on developing a collaborative approach to implementing the law and drafting the regulations required by it.

We remain optimistic that the days ahead will allow a practical solution to the issues at hand – one that avoids seeing worthy projects becoming “de-funded.”

Upon the regulation’s publication in late September – regulations that Transportation Secretary Pete Rahn himself called “bad regulations”MACo offered detailed recommendations on how the Administration could instead interpret the law in a more reasonable manner, and in a manner that is fairer to all Maryland counties. MACo suggested that MDOT offer flexibility in determining the population to be served by a project and by offering a scoring regime based upon differing project conditions and local government input, among other recommendations.

On November 18 before the Maryland General Assembly’s Joint Committee on Administrative, Executive, and Legislative Review (AELR), MACo testified to this point alongside public works representatives from the County Engineers of Maryland and Cecil, Queen Anne’s, Prince George’s, and Harford counties. Two weeks ago, AELR sent Secretary Rahn a letter stating that it was placing the regulations on hold, citing agreement with MACo and requesting that the Department

…work in a bipartisan, good faith manner with the legislature and local government officials to propose alternative regulations.

Barring further action from MDOT or the General Assembly, the regulations go into effect in February.

Just The Facts: What The Law Does

The Maryland Open Transportation Investment Decision Act of 2016, a.k.a. the “Scorecard Bill” or “Road Kill Bill,” requires MDOT to score certain major transportation projects programmed in MDOT’s capital program, called the Consolidated Transportation Program (CTP). The law requires scoring for State Highway and Maryland Transit Administration projects that cost over $5 million and that increase or improve capacity, or improve transit stations or areas.

Scores are based on 9 overarching goals (such as “Quality of Service” and “Cost Effectiveness and Return on Investment”) and 23 supporting measures (such as “the degree to which the project has a positive impact on travel time reliability”). Each goal can count for up to 100 points, for a total of 900 points. The law requires MDOT to weight each goal and each measure, and provide for a method for doing so in regulations – further altering the score. Finally, the total score is weighted based upon the “population to be served by the project” – which MDOT is also tasked with defining in regulations.

Finally, MDOT may move forward with any project it chooses, so long as it provides a “rational basis for the decision” to move forward with any low-scoring projects.

For more information about the Act and political debate surrounding it, search Conduit Street for the tag, “scorecard.”

Hogan’s Top Priority: Repeal The “Road Kill Bill”

Governor Hogan announced today, December 14, 2016 that his top legislative priority for the upcoming session is the immediate and full repeal of the Maryland Open Transportation Investment Decision Act of 2016, otherwise known as the “Scorecard” bill, or to Governor Hogan, the “Road Kill Bill.” Maryland Transportation Secretary Pete Rahn joined the Governor in announcing the administration’s plan to submit emergency legislation to repeal the Act, which passed and became law with substantial support and over the Governor’s veto during the 2016 legislative session. Stated the Governor,

The repercussions of this law are quite simply disastrous, and I will not stop fighting on behalf of our citizens until this catastrophic bill is repealed.

MACo opposed the bill last session, and subsequently offered amendments to address concerns about ensuring equitable treatment for more rural jurisdictions. The Maryland General Assembly approved the amendments. A series of letters sent over the summer sought to transfer substantial responsibility for the law’s implementation to the counties.

In accordance with the law, the Maryland Department of Transportation (MDOT) filed draft regulations to implement the law, which were sparse in nature. On November 18 before the Maryland General Assembly’s Joint Committee on Administrative, Executive, and Legislative Review (AELR), MACo testified alongside public works representatives from the County Engineers of Maryland and Cecil, Queen Anne’s, Prince George’s, and Harford counties that MDOT’s proposed regulations could have implemented the Act in a more reasonable manner. At the hearing, Secretary Rahn stood firm in advocating for a full-on repeal of the law.

MDOT followed up with formal comments to the regulations sent to MDOT and copied AELR.  Committee Chairs Senator Roger Manno and Delegate Samuel Rosenberg attached MACo’s comments to their letter sent to Secretary Rahn on December 6, and stated in that letter that the Committee agreed with the main points in MACo’s comments. The letter indicated that the Committee was placing the draft regulations on hold for further review. The regulations are due to become effective in February.

For more information about the Act and political debate surrounding it, search Conduit Street for the tag, “scorecard.”

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 and, 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.

MACo Submits Comments On MDOT “Scorecard” Regulations

Earlier this week MACo submitted comments to the Maryland Department of Transportation (MDOT) on its draft regulations, COMAR and, which are required by the Maryland Open Transportation Investment Decision Act of 2016. MACo recommended changes to the regulations that would improve their effectiveness and flexibility. MACo suggested that MDOT could implement the law more reasonably by offering flexibility in determining the population to be served by a project and by offering a scoring regime based upon differing project conditions and local government input.

The law tasks MDOT with defining the “area served by the project” as a component of a population factor for project scoring. The resulting number dramatically affects a project’s final score. The draft regulations define this as “the county or counties in which a major transportation project is located.” From MACo’s comments:

Regulations should allow for determining a project’s ʺarea servedʺ in a
manner that recognizes the nature, size, and location of the project. Counties
should have an opportunity to assert that their priority projects benefit a greater
population than just their own residents.

MACo also commented on the one-size-fits-all nature of MDOT’s scoring system, which does not take into account the varying size, location, nature, and scope of each project.

The draft regulations provide one set of weights for the nine goals and 23 required measures, when nothing in the law prohibits MDOT from applying differing weights to the goals and measures based upon varying categories of projects. MACo recommends at least six categories of project types and different weights for each, as more specifically described on the enclosed attachment. However, we welcome alternative approaches, such as variation by geographical region, similar to the State of Virginia’s Smart Scale program. In either case, we support the goal of making the eventual project scores as sensible and credible as can be effected through this law.

MACo also commented that while counties are willing to provide some of the information required to score projects that they prioritize, MDOT should continue to serve as the primary agent for most inputs and analyses and provide other information required to carry out this law.

Finally, MACo requested that MDOT include language in the regulations clarifying how it would interpret some terms and conditions required under the law.

MACo concluded the recommendations by reiterating counties’ willingness to partner with MDOT on developing a workable scoring process:

Counties offer the above recommendations in the spirit of cooperation. At the AELR hearing on the subject regulations, MACo affirmatively committed to working with MDOT, and potentially other stakeholders, on developing a scoring process that works, and if necessary working with the Maryland General Assembly to modify the law to accommodate a more pragmatic approach. We stand by that commitment and hope to work with you in the near future toward an implementation of this law that maximizes its effectiveness and flexibility.

MACo’s full comments are available here.

Review Committee Questions MDOT “Scorecard” Regulations

AELR Chairs Rosenberg and Manno

On November 18 before the Maryland General Assembly’s Joint Committee on Administrative, Executive, and Legislative Review (AELR), MACo testified alongside public works representatives from the County Engineers of Maryland and Cecil, Queen Anne’s, Prince George’s, and Harford counties that the Maryland Department of Transportation (MDOT)’s proposed Major Transportation Project Scoring and Ranking System regulations could have implemented the Maryland Open Transportation Investment Decision Act of 2016 in a more reasonable manner.

From MACo’s written testimony:

Traditionally, the Department seeks each jurisdiction’s proposed projects in the month of April. The spring of 2017 will be the first cycle in which this scoring system is used. In advance of that deadline, all parties should fully understand the scoring system and its weightings, and the information sought from local governments to inform that process.

A set of well-conceived regulations, and any accompanying implementing documents, are essential tools toward making any scoring system effective. MACo and local public works professionals look forward to a collaboration with MDOT on the entire effort ahead.

Moving forward, MACo staff committed to working with MDOT and other stakeholders on refining the scoring process so that it results in fairer outcomes to all 24 counties.

Following a recommendation by Senator Steve Waugh, House Co-Chair Samuel “Sandy” Rosenberg concluded the hearing by requesting that MDOT, MACo and other stakeholders convene and pass along recommendations to the Committee by December 8 to make the process more closely resemble Virginia’s Smart Scale system. Smart Scale is Virginia’s recently implemented system which scores major transportation projects for funding prioritization using a sophisticated, objective scoring matrix. MDOT Secretary Pete Rahn indicated that he did not think that the Maryland Open Transportation Investment Decision Act enabled implementation of a scoring process in a manner similar to Virginia’s system, and the only way that outcome could be achieved was by repealing the Act and starting all over.

MACo’s written testimony is available here.

MDOT Files Draft Scorecard Law Regulations

The Maryland Department of Transportation (MDOT) has filed draft regulations with the Maryland General Assembly’s Administrative, Executive and Legislative Review (AELR) Committee, implementing the Maryland Open Transportation Investment Decision Act of 2016, informally referred to as the “scorecard” law. The draft regulations may be viewed here.

Under the much-discussed law, MDOT must adopt regulations on or before January 1, 2017 to address certain aspects of that law. Specifically, it states that MDOT shall:

 (1) In accordance with federal transportation requirements, develop a project-based scoring system using the goals and measures established under subsection (c) of this section;

(2) Develop the weighting metrics for each goal and measure established under subsection (c) of this section; [and]

(3) On or before January 1, 2017, adopt regulations to carry out the provisions of this section[.]

Maryland Annotated Code, Transportation Article, § 2-103.7(b). Additionally, the law states:

The Department shall multiply the total combined score of each major transportation project by a weighting factor equal to one plus the results of dividing the population in the area served by the project, as determined in regulations adopted by the Department, by the population of Maryland.

Maryland Annotated Code, Transportation Article, § 2-103.7(c)(3).

The draft regulations assign one set of weighting metrics for all relevant Consolidated Transportation Program projects, and define the “area served by the project” as the county or counties in which those projects are located.

Under “Opportunity for Public Comment,” the form indicates:

Comments may be sent to Eric R. Backes, Regulations Coordinator, MDOT, 7201 Corporate Center Drive, Hanover, MD 21076, or call 410-865-1158, or email to, or fax to 410-865-1113. Comments will be accepted through November 13, 2016. A public hearing has not been scheduled.

Governor Announces BAT Septic Repeal, Criticizes Transportation Scorecard at #MACoCon

Governor Lawrence (Larry) Hogan, Jr. announced the repeal of regulations requiring the use of best available nitrogen removal technology (BAT) for septic systems, criticized the recently passed transportation scorecard legislation, and discussed other priorities that he intends to the focus on during the upcoming 2017 Session at the close of the 2016 MACo Summer Conference on August 20. A packed room of county and state officials was on hand to hear the Governor’s remarks.

Introductory Remarks

2016 MACo Summer Conference - Governor Hogan
Governor Larry Hogan Addressing 2016 MACo Summer Conference

MACo President and Washington County Commissioner John Barr introduced the Governor by stating, “You understand the importance of local government.”

Governor Hogan thanked county leaders for their hard work and dedication and referencing back to his inability to attend last year’s conference due to his battle with cancer, said that he was “truly thrilled to be here.” He also stated that “we will do everything in our power” to continue the State’s partnership with MACo.

Turning to policy updates, the Governor noted that his administration will remain focused on: (1) economic development and job creation; (2) transportation infrastructure; (3) tax reform; and (4) easing burdensome regulatory requirements.

Budget & Economic Development

Discussing Maryland’s economic and budget status, Hogan stated that his administration has eliminated 91% of the structural deficit and added more than 76,000 private sector jobs. He disclosed that Maryland has gone from last place to first place in the Mid-Atlantic region for job creation and in March was the #1 state in the nation for job growth and creation.


2016 MACo Summer Conference - Governors Address Audience
A room full of county and state officials listened to Governor Hogan’s comments

In addressing BAT septics, Hogan argued that while BAT septics were needed within the 1,000 foot critical area next to coastal and Chespeake Bay waterways, they created an unnecessary burden on homeowners located outside of the critical area. Hogan’s announced that “on Monday [August 22], the Maryland Department of the Environment will be revising regulations and eliminating the requirement [outside of the critical area].”

He also stated that his Administration successfully implemented a new phosphorus management tool to limit phosphorus runoff from agricultural lands and invested $53 million in the Chesapeake and Atlantic Coastal Bays Trust Fund – the highest in history. Hogan also noted his sponsorship and support of enacted legislation that would make future budgetary cuts against Program Open Space (POS) and provided $62 million in POS funding.  Finally, Hogan said that his Administration was continiuing to work on sediment issues raised by the Conowingo Dam.


Hogan also announced that the State would be splitting the cost of new voting machines with the counties and noted that the Board of Public Works recently voted to approve the matching funds MACo had requested.


Governor Hogan stated that he would “continue to fight for the full restoration of Highway User Revenues” and has invested an “unprecedented and historic $2 billion in infrastructure projects to fix every single structurally deficit bridge” and road projects. He had strong words for the transportation scoring legislation (HB 1013 of 2016) that the General Assembly passed over his veto. “[This bill] has the potential to kill nearly all priority road and bridge improvements in every single jurisdiction across the state,” he warned. Although he noted that the General Assembly has agreed to delay implementation of the bill for a year, he will “push for the repeal of this legislation.”

Closing Remarks

Hogan concluded by noting that “we are stronger when we work together to get things done for the people we serve” and promised that counties and MACo “will always find a sympathetic ear and a seat at the table.”

Barr thanked both the Governor and his cabinet and staff for being willing to work with county governments.

Other Coverage of Governor’s Address

A Baltimore Sun article (2016-08-20) offered some additional perspectives on the Governor’s proposed BAT Septic repeal:

Dru Schmidt-Perkins, executive director of 1,000 Friends of Maryland, criticized Hogan’s decision to reverse the rule barring installation of older, low-tech septic systems throughout the state, limiting the ban to the “critical areas” within 1,000 feet of the Chesapeake Bay.

“Why is it OK to protect water within 1,000 feet of the bay, but it’s not OK to protect the water that’s in the streams, the ponds, the lakes and our drinking water?” she said.

Both Schmidt-Perkins and [House Environment and Transportation Committee Chair Kumar] Barve said they might push for legislation to codify the O’Malley rule in law.

Michael Sanderson, executive director of MACO, said the rule was a particular concern near state borders, where it could make houses more expensive than those in Delaware or Pennsylvania.

Environment Secretary Ben Grumbles said the rules can add $10,000 to $20,000 to the cost of a home. He stressed that the rules would not change in the critical areas or for large septic systems with a capacity of 5,000 gallons or more.

Grumbles said his department also would step up efforts to require the replacement of failing septic systems.

“It’s about a smarter, more effective way to make environmental progress,” he said. “We are going to strive for a smarter, more balanced approach.”

A Washington Post article (2016-08-20) focused on the transportation scorecard legislation:

St. Mary’s Board of County Commissioners President James Randy Guy (R) said he talked with the governor about the issue at the Maryland Association of Counties summer conference in Ocean City, which is the state’s largest annual gathering of elected officials.

“He said we need to repeal the [transportation scorecard] bill,” Guy said. “What will happen now, who knows?” …

Maryland Transportation Secretary Pete K. Rahn held back-to-back meetings with county officials from across the state throughout the conference to discuss their transportation priorities. He said every one of the officials he spoke with expressed concerns about the scoring system. …

House Speaker Michael E. Busch (D-Anne Arundel) defended the funding law, saying Marylanders deserve to know how and why their tax dollars are spent on transportation projects.

“I don’t understand why [the Maryland Department of the Transportation] won’t work with the General Assembly in a bipartisan manner to create a scoring system that addresses their concerns while creating transparency,” he said. …

Frederick County Executive Jan H. Gardner (D), who supports transportation scoring to identify high-priority projects, said Democrats and Republicans need to set aside politics and work together on either clarifying the law or setting guidelines for the rating system.

“Elected leaders are supposed to lead, and we need to problem-solve this,” she said. “We have a year now, so we need to make this something that is clearly understandable and works for people in every part of the state. Transportation is a common interest.”

Useful Links

Prior Conduit Street BAT Septic Coverage

Prior Conduit Street Transportation Scorecard Coverage