Earlier this week MACo submitted comments to the Maryland Department of Transportation (MDOT) on its draft regulations, COMAR 11.01.18.01 and 11.01.18.02, 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.
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.
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.
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 email@example.com, or fax to 410-865-1113. Comments will be accepted through November 13, 2016. A public hearing has not been scheduled.
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.
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.
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.”
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.”
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.”
In remarks at MACo’s Summer Conference this morning, Governor Larry Hogan emphasized his commitment to working with counties on transportation priorities, stating to a room full of county officials that they “will always have a seat at the table with my Administration.”
He referenced the rapid series of back-and-forth letters among the Maryland Department of Transportation (MDOT), county leadership and various parties concerning this year’s Consolidated Transportation Program (CTP) and the “scoring system” required by a recently passed state law, which he stressed he would work to repeal. Further, he announced:
We remain committed to improving our state’s transportation infrastructure … seeing top priority transportation projects in every county move forward … [and] restoring every single penny of highway user revenues.
To achieve this and other successes, he stated,
We will need the help of every person in this room.
In a letter to MDOT sent last week, MACo President John Barr urged that a state/county collaboration on prioritizing transportation projects would serve all parties best.
Following a rapid series of back-and-forth letters among multiple parties, the Maryland Department of Transportation announced Tuesday that it would not tie this year’s capital funding plan to the “scoring system” required by a recently passed state law.
In a letter to county leaders, MDOT Deputy Secretary James Ports referenced the legislation from 2016, but also the more recent debate regarding the timing and implementation of the new system.
From the letter:
Based on this new opinion and multiple statements made by legislators, apparently MDOT now has the discretion when to implement this new law, and the department has decided to delay the requirement until the draft FY 2018 – FY 2023 CTP to be released on September 1, 2017.
The letter continues in describing the information and evaluation process to begin next year under the legislation, notably the Department’s decision to require county governments to provide extensive information and analysis with each project identified as a local priority. Also from the letter:
Projects are still required to be scored, and low scoring projects could be defunded under the requirements of the law. In order to inform the scoring process, our previous request for information will remain in place in 2017 since several of the legislatively mandated measures can only be supplied by local jurisdictions.
In a letter to the Department from the day before, MACo President John Barr had urged that a state/county collaboration on developing the regulations and implementation for this process would serve all parties best.
In a letter sent today to Maryland Department of Transportation (MDOT) Deputy Secretary James Ports, MACo President John Barr offered MACo’s aid to MDOT in collaborating to implement a project-based scoring system to prioritize major transportation projects. The letter responds to Ports’ July 28 letter requiring counties to provide MDOT with substantial analyses of their requested priorities, in response to scoring system legislation passed last session. From MACo’s letter:
Following the receipt of your July 28 letter to county leaders, I write to offer the Maryland Association of Counties’ aid to the Maryland Department of Transportation in developing a productive process to evaluate major transportation projects. We believe the best way forward on this important process is by working together.
We write here to focus on the months ahead – where the Department is charged by the legislation to create its implementing regulations. We believe that a dialogue involving public works and transportation officials and other leaders at the county level could be a great asset to the Department’s deliberations. We would welcome the opportunity to coordinate such an effort.
We look forward to seeing you, the Secretary, and other Department leaders at the upcoming MACo conference. We expect that some face-to-face discussion of these issues may be mutually beneficial in charting both the short term, and longer term, processes ahead.
After MDOT sent its initial July 28 letter, the Chairs of the General Assembly Committees which passed the scoring system legislation responded with their own letter expressing concern. MDOT followed up with counties by sending a second letter informing them of what projects would be funded based on preliminary Department project scoring. In its own letter dated last Wednesday, the Attorney General’s office advised House Appropriations Chair McIntosh that the new law does not require MDOT to implement a scoring system at this time, nor does it authorize MDOT to shift analytical responsibilities to county governments.
MDOT officials have indicated that Secretary Pete Rahn will attend the MACo Summer Conference, and will be available to discuss these issues with county leaders.
The Office of the Attorney General has offered its opinion on the recent controversial process letters sent by the Maryland Department of Transportation (MDOT). In its opinion, the Department is not obligated by 2016 legislation to require the project analysis for “scoring” for this year’s CTP process, and is not authorized to require the proposed shift of analytical responsibilities to county governments.
The letter – issued today to House Appropriations Committee Chair Maggie McIntosh, addresses both the timing and substance of this recent high-profile controversy.
On the timing — whether the scoring analysis is required to be used for the development of the Consolidated Transportation Plan (CTP) currently in process — the letter reads:
Because Ch. 36 directs MDOT to adopt regulations on or before January 7, 2017 , to “carry out” the scoring system, I believe the most reasonable construction of the legislation is that it does not require MDOT to implement the new scoring system for the CTP currently being developed, as the proposed CTP is to be submitted to the General Assembly on or before September 1, and the approved CTP is to be submitted with the budget bill in January. If MDOT intends to apply the new scoring system to projects being evaluated for inclusion in the upcoming CTP, it is my view that it may do so only if it first adopts the implementing regulations required by Ch. 36.
On the process — whether the Department is required by the legislation to shift a wide range of analytical and informational responsibilities to county governments — the letter reads:
No provision of Ch. 36 requires that MDOT request the various studies, analyses, and data identified, nor does the law in any way impose an obligation on local jurisdictions to provide this information to MDOT. To the extent that MDOT is requiring local jurisdictions to submit this information, it appears to be doing so as a matter of departmental policy, not because Ch. 36 requires that it do so. As to whether MDOT has the authority to impose such a policy, it is my view that it does not.
The conflict over the law reopened with a July 28 letter in which Deputy Transportation Secretary James F. Ports Jr. told counties they must submit results of a dozen studies to the state by Aug. 15. Pointing out that the Hogan administration opposed the legislation, he insisted that the law required the department to seek that information in time to include projects in this year’s draft Comprehensive Transportation Program, due Sept. 1.
“Due to this legislation, projects previously funded in the CTP that receive low scores will be in jeopardy and could be de-funded,” Ports wrote. He urged counties to deliver the “required” information as soon as possible. The CTP is a six-year plan that is revised each year to account for state capital spending on all modes of transportation — from roads, to transit, to airports, to the Port of Baltimore.
The deadline came as a surprise to county officials.
Chairman McIntosh, quoted in the Sun, offered her view on flexibility for implementation ahead, and pledged legislative attention:
McIntosh noted that the bill gives the governor the authority to fund projects regardless of the score. She said the bill’s purpose was to require the department “to be more transparent about how and why they make their decisions.”
McIntosh said her committee would hold a hearing on the department’s actions, probably in the early fall.
The Maryland Department of Transportation (MDOT) continues to pursue the “scoring” process for major transportation projects for this year’s Consolidated Transportation Program (CTP) document, and has offered counties preliminary information on what projects would be funded based on preliminary Department project scoring. Counties face an August 15 deadline for submitting local information and analysis to contribute to the scoring – a deadline first announced in a July 28 letter from MDOT.
An August 9 letter sent to counties by MDOT offers a preliminary scoring assessment of each county’s proposed projects, and indicates:
In order to comply with the goals and measures for the project-based scoring system required under Chapter 36 and based on the project rankings completed by the Maryland Department of Transportation (MDOT), only the top 7 projects are able to be funded.
One project Ports listed as potentially receiving no funding — a $31 million second Md. 180 bridge over U.S. 15/U.S. 340 — was actually promoted in Frederick by Gov. Larry Hogan (R) in a press conference announcing the project’s planned funding earlier this year.
Now, Ports’ letter states that the scoring system will allow MDOT to fund only the top seven “capacity projects” in the state. The bridge and other improvements along Md. 180 are currently ranked 65th and 45th out of 73 total projects, according to Ports’ letter.
In a conversation today with MACo, MDOT indicated that the August 9 follow-up letter was intended to answer questions raised by several counties in recent days. Regarding the list of funded or non-funded projects, a representative said, “If we were to only fund projects according to the weighted scores, there would only be funding for these seven. That’s what the letter is explaining.”
(3) THE DEPARTMENT MAY INCLUDE IN THE CONSOLIDATED TRANSPORTATION PROGRAM A MAJOR TRANSPORTATION PROJECT WITH A LOWER SCORE OVER A MAJOR TRANSPORTATION PROJECT WITH A HIGHER SCORE IF IT PROVIDES IN WRITING A RATIONAL BASIS FOR THE DECISION.
Meanwhile, jurisdictions are responding to both the newly announced requirements for county information and analysis, but also the short timeline affecting projects for the pending CTP. From Washington Post coverage:
In late July, the Maryland Department of Transportation sent a letter to counties giving them less than three weeks to produce detailed studies for projects on their local transportation wish lists and threatening to withhold funding if they did not comply.
Democratic lawmakers say their legislation imposed no such demands and that scoring was not supposed to start until next year.
And officials in Baltimore and Prince George’s, who fired back with their own letters, say they won’t comply because the state’s ultimatum is unreasonable. They say the studies requested — including reviews of costs, environmental impacts and effects on traffic — are not available at this stage.
State officials have backed off the threat to withhold funding for counties that don’t produce the studies. But they cautioned that information provided by counties will inform the state’s scoring.
As for the complaints about the short timetable for the counties’ studies to be completed? State officials say it is because the law took effect on July 1 and, based on their reading, immediately applies to the projects under consideration for funding this year.
“This isn’t something we are doing as a scare tactic. The legislature created this law. We have an obligation to enforce it,” said Erin Henson, a spokeswoman for the Department of Transportation. “Clearly the law is confusing.”
The Post’s reference that the Department has “backed off” may refer to an interview with The Daily Record (article is accessibly only to paid subscribers), where Deputy Secretary James Ports clarified the Department’s intentions regarding project funding.
Following the controversial letter to counties from the Maryland Department of Transportation (MDOT) requiring by August 15 substantial studies and analysis on any county-identified major transportation project, the Chairs of the General Assembly Committees passing the initiating legislation responded with their own letter. Senator Edward Kasemeyer and Delegate Maggie McIntosh, chairs of the Senate and House committees passing HB 1013, issued a joint letter today with a harsh response to the MDOT proposed shift of burden.
The Chairs’ letter expressed concern with the process change and timing offered recently by MDOT, citing provisions from HB 1013 requiring regulations to be adopted by January of 2017 — a process that has not even begun yet.
From the legislative leaders’ letter:
[W]e remain perplexed how MDOT can require exhaustive project information in the next seven business days – all while claiming that the legislative requirements of the Act may ultimately lead to county transportation priorities being defunded. Much of the requested documentation and evaluation has traditionally been completed by MDOT or metropolitan planing organizations across the State. The unilateral transfer of these responsibilities to the counties is troubling and was never considered much less required by the General Assembly or the legislation.
The Chairs’ letter closes with a look forward toward further process in developing the regulations and (presumably) the long term division of analytical responsibilities for major transportation projects:
We hope that MDOT will work in the months ahead to implement a transparent and fair project-based evaluation process of which all Marylanders may be proud.