Days before feds could issue I-495 toll lanes decision, Montgomery official urges delay

With the U.S. Department of Transportation poised to issue its decision on an ambitious Capital Beltway and I-270 toll lanes plan, Montgomery County’s top planner accused state highway officials of running roughshod over Maryland law.

In a Tuesday letter to federal transportation officials, Maryland-National Capital Park and Planning Commission Chair Casey Anderson said the state Department of Transportation has neglected to put the toll lanes plan through a required review process known as Mandatory Referral.

Anderson said Maryland law prohibits public agencies and officials from acquiring land, building a road, park or public building, or “authorizing” such development “unless the proposed location, character, grade, and extent of the activity is referred to and approved by the Commission.”

“Clearly, Mandatory Referral applies to the [toll lanes] project and it applies at every stage of the project including ‘locating, constructing, or authorizing,’” said Anderson, an attorney. “Each stage in the life of a project raises different issues for the community, many of which are unknown at the earlier stages of development.”

Anderson does not ask U.S. DOT to reject the $7.6 billion Maryland plan, but he does seek “the required 60-day Mandatory Review process” so that the commission can “ensure that the Project’s impacts to parkland, stream, and wetland resources are avoided, minimized, and mitigated to the maximum extent possible.”

The request for a delay comes at a critical time for Gov. Larry Hogan’s plan, which envisions the construction of four privately funded toll lanes on portions of the two roads along with the reconstruction of the 60-year-old American Legion Bridge.

According to a government dashboard that tracks federally funded infrastructure projects, the target date for issuing a final verdict on the proposal — known as the Record of Decision — is Aug. 5. (A spokesperson for the State Highway Administration insisted last week that the date listed on the site in no longer accurate, but declined to elaborate or provide the new date.)

Late Wednesday, an MDOT spokesman said the agency is following “a well established process.” He noted that the agency went through Mandatory Referral for the Intercounty Connector and the Purple Line after those projected received a green-light from the federal government.

Maryland hopes to use Accelerate Maryland Partners, a consortium that includes the Australian toll road operator Transurban, for its “express lane” plan. The term-limited Hogan (R) is eager to get a final construction contract signed before he leaves office in January.

According to the federal project dashboard, the state intends to seek a permit with the Department of the Interior on Jan. 6, 2023, approximately two weeks before Hogan leaves office. It’s considered unlikely that his successor would embrace his plan in its current form.

On Friday, Wes Moore, the Democratic nominee for governor, told WAMU (88.5 FM) host Kojo Nnamdi that he would like to see “a new type of proposal,” one that emphasizes reversible lanes, increased transit and greater collaboration with local “stakeholders.” Republican gubernatorial nominee Dan Cox has expressed concern about the cost of tolls and he has urged MDOT to reconfigure its existing right-of-way to reduce delays.

Montgomery County Executive Marc Elrich (D) has also urged the federal government to give residents more time to study a 26,000-page environmental analysis the state released in June. A leading critic of the project has asked the U.S. Department of Transportation to determine whether the state’s traffic models were altered to make the plan appear more successful at cutting commute times.

Doug Mayer, a former Hogan spokesman who leads Traffic Relief Now, said the commission’s letter is an example of how “truly obscure government organizations that almost no one has ever heard of” are able to thwart progress in relieving traffic.

But Rockville Mayor Bridget Donnell Newton, a leading critic of the Hogan plan, applauded Anderson’s letter.

“I certainly hope they are more successful in getting MDOT/SHA to follow the law than we have been in getting adequate time to review the [Federal Environmental Impact Study],” she wrote in an email.

In an interview, Anderson insisted that he did not spring his concern about the Mandatory Referral process on the state as a delaying tactic. Rather, he said, it was to insure that county planners and residents have a venue for “formal feedback” on specific design elements of the highway-widening effort. “We have asked them repeatedly, in the course of this process, when we can expect a Mandatory Referral package,” he said.

Anderson noted that M-NCPPC, which by law is responsible for the use of county-owned parkland, has invoked its Mandatory Referral rights on far less ambitious projects, such as the construction of salt barns that MDOT wanted to build along the Beltway.

“We are land-owners,” he said. “We have a legal obligation — as well as a right — to provide input” on how the toll lanes project moves forward.

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