Below is a brief overview of MACo’s work to restore county roads funding that was cut during the Great Recession.
Follow links for more coverage on Conduit Street and MACo’s Legislative Database.
Highway User Revenues
The General Assembly maintained an additional $8.8 million in additional local transportation aid to be allocated among 23 counties. For more than forty years, local governments have received at least 30 percent of these revenues to fund local roads and bridges – 83 percent of the public road mileage in Maryland. In 2010, the State reduced highway user revenues by 90 percent for most jurisdictions – and local governments have advocated for restored highway user revenues ever since.
This year, as in years past, MACo continued to support legislation that would fully restore highway user revenues to their previous levels. As in recent years, however, the General Assembly did not advance these bills.
Senate Bill 586/House Bill 1322 “Local Infrastructure Fast Track for Maryland Act,” a MACo initiative for the legislative session, did not pass out of committee in either chamber. Bill Information | MACo Coverage
House Bill 552, a bill to restore highway user revenues to local governments, ensure that new gas tax revenues resulting from Chapter 429 of 2013 are shared equitably with local governments, and amend the Maryland Constitution to prevent depletion of highway user revenues from local governments in the future did not move out of committee. Bill Information | MACo Testimony
Senate Bill 161, a bill to phase in restoration of highway user revenues to counties over seven years did not move out of committee. Introducing the bill, its sponsor Senator Steve Waugh expressed the need to “find an affordability trigger” to move the restoration forward – an element that has not been present in other similar proposals in recent years. Bill Information | MACo Coverage
Transportation Funding Decisions
The subject of transportation funding decisions has become a contentious debate between the Governor’s Administration and the General Assembly. MACo tracks this issue as it relates to local roads funding and advocates for the decision process that supports county government efficiency and effectiveness.
Voicing concerns about the scorecard legislation passed in 2016, MACo supported House Bill 402/Senate Bill 307 the Governor’s “Road Kill Bill Repeal” – advocating for either repeal or replacement. The General Assembly passed the legislation in an amended form that clarifies that the use of scoring from the statutory system will be purely advisory, while a designated work group convenes to consider refinements to its elements and effects. Bill Information | MACo Coverage
MACo Executive Director Michael Sanderson testified in favor of the amended Administration bill (SB 307) which would repeal the controversial transportation scorecard law passed last year. This bill passed unanimously out of the Senate and was heard by the House Appropriations and Environment and Transportation committees on March 23.
Governor Hogan’s Administration introduced and supported the bill.
This amended bill substantially reframes the 2016 legislation creating a “scorecard” for major transportation projects. The amended bill clarifies that the use of scoring from the statutory system will be purely advisory for a two-year period, while a designated work group convenes to consider refinements to its elements and effects. By eliminating the uncertainty regarding the potential immediate effect on project funding, SB 307 addresses the chief county concerns with the current law. Counties welcome an opportunity to help inform the ongoing work group efforts proposed in the amended bill.
SB 307, the Administration bill to repeal the controversial transportation scorecard law passed last year, has passed out of the full Senate in an amended form. The final floor vote was unanimous, after discussions and additional amendments yesterday described the revised bill as a compromise acceptable to the Administration.
The Budget and Taxation Committee has passed an amended version of the Administration’s bill to repeal the controversial transportation scorecard law. The amended version would delay full implementation of the scoring process as a guide for project funding for two years, and empower a work group to study possible changes to the law.
From coverage in the Baltimore Sun:
The law, passed over Hogan’s veto last year, requires officials to study local transportation projects, rank them and offer an explanation if any project receives state funding over one that is ranked higher.
Hogan argues the law forces him to eliminate state funding for almost every project in Maryland and could mire projects in litigation. General Assembly Democrats and the Maryland attorney general’s office disagree, saying the scoring system is only advisory.
The new legislation, which has the backing of Senate President Thomas V. Mike Miller, amends a bill proposed by Hogan to repeal the scoring law. It would create a panel of legislators and administration officials that would study the new scoring system for two years.
In the meantime, Hogan would be allowed to assign transportation funding under the old rules, which did not require the governor to create a scoring system or explain why he chose to fund one project over another.
During Senate floor discussions on Tuesday, President Miller indicated “we’re working with the second floor [the Administration] on this,” and suggested that Administration-supported amendments could be forthcoming during floor debate on Wednesday.
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.
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.
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.
In a commentary piece timed with the beginning of session, veteran Annapolis reporter Len Lazarick of the news site MarylandReporter.com 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.
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.”
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).
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.
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.”
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.
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 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.
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.
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.
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.
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.
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.
…[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 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.
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 Postquotes Senate President Mike Miller: “We don’t want to repeal it. That’s not going to happen.”
“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.