Maryland Delegation Introduces Key Bridge Replacement Authorization Bill

Members of the Maryland Congressional delegation introduced legislation yesterday that would authorize – but would not actually fund – the replacement of the Francis Scott Key bridge over the Patapsco River, which collapsed March 26 after being struck by a container ship.

The draft legislative text is here and Sen. Ben Cardin’s (D-MD) office said in their press release that the bill was introduced in the Senate and given the bill number S. 4114. (The House companion bill is H.R. 7961.)

The (short) bill basically has two parts. The second part is similar to, but also different than, the language that Congress enacted in the wake of the Interstate 35W bridge collapse in Minneapolis in 2007 in Public Law 110-56. Here is the new language for the Key Bridge:

Sec. 3. Federal share for certain emergency relief projects. Notwithstanding subsection (e) of section 120 of title 23, United States Code, the Federal share for emergency relief funds made available under section 125 of that title to respond to damage caused by the cargo ship Dali to the Francis Scott Key Bridge located in Baltimore City and Baltimore and Anne Arundel Counties, Maryland, including reconstruction of that bridge and its approaches, shall be 100 percent.

Now, here is what Congress enacted in 2007 for the I-35W bridge collapse:

Sec. 1. Additional emergency relief funding. (a) IN GENERAL.—The Secretary of Transportation is authorized to carry out a project for the repair and reconstruction of the Interstate I–35W bridge located in Minneapolis, Minnesota, that collapsed on August 1, 2007.
(b) FEDERAL SHARE.—The Federal share of the cost of the project carried out under this section shall be 100 percent.
(c) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated $250,000,000 to carry out this section. Such sums shall remain available until expended.

While both bills set the federal share of the eventual bridge replacement at 100 percent, the 2007 law put a financial target on the appropriation of $250 million. The eventual cost to replace the bridge, according to the state DOT, was $234 million, not including the bonuses paid to the contractors to finish ahead of schedule. Of that amount, $195 million came from a special appropriation for this specific purpose (and no other purpose) made in December 2007, and the rest from the general-purpose emergency relief fund.

Whereas in the Maryland bridge bill, there is no target, and no potential ceiling for the eventual federal appropriations.

Several provisions of the 2007 law are no longer necessary. Section 2 of the 2007 law waived a $100 million per incident per state limitation on ER awards that has since been repealed. And section 3 of the 2007 law made provision for federal funding for mass transit as a temporary work-around for the missing bridge traffic; that is now permanent law in 23 U.S.C. § 125(d)(5).

The other interesting thing about the new Maryland bill is this section, which has no precedent in any recent bridge collapse response legislation:

Sec. 2. Finding. Congress finds that, in accordance with section 668.105(e) of title 23, Code of Federal Regulations (or a successor regulation), any compensation for damages or insurance proceeds, including interest, recovered by a State, a political subdivision of a State, or a toll authority for repair, including reconstruction, of the bridge described in section 3 in response to the damage described in that section should be used on receipt to reduce liability on the repair, including reconstruction, of that bridge from the emergency fund authorized under section 125 of title 23, United States Code.

This language is somewhat vague, but it doesn’t have to be specific and enforceable if the underlying regulation mentioned is enforceable. That regulation, in 23 CFR 668.105(e), says, in part:

Any compensation for damages or insurance proceeds including interest recovered by the State or political subdivision or by a toll authority for repair of the highway facility must be used upon receipt to reduce ER fund liability on the project.

That seems specific enough. The timing would be interesting – if the new bridge is an exact enough copy of the old bridge as to be exempt from the lengthy environmental impact statement process that a different structure would require, then the most likely outcome is that the bridge reconstruction work will be completed before the years of lawsuits, claims, and counter-claims related to the insurance situation of the vessel that struck the bridge will be resolved. In which case, obeying this regulation would require Maryland DOT (or the Maryland Transportation Authority, the toll entity which owned the bridge) to receive an insurance settlement and then write a very large check to the Federal Highway Administration.

In the meantime, the latest financial report from the Maryland Transportation Authority shows that in the last fiscal year (2023), the MDTA received $56.1 million in toll revenue from the Key Bridge, up $3.1 million from the year before. That puts a $50+ million per year dent in their operations until the bill is restored. However, the MDTA appears to be solid for a while – in fiscal 2023, their operating revenue exceeded their operating expenses by $254 million, which could then be applied to non-operating expenses like debt service, but they still managed to have a net $185 million left over, increasing their net position (value of all assets, minus value of all liabilities) increase by that amount.

Thousand $
Operating revenues
Toll revenue 755,701
Other revenue 106,132
Subtotal, operating revenues 861,833
Operating expenses
Collection, police, maintenance 334,708
Depreciation/amortization 197,049
Other expenses 76,225
Subtotal, operating expenses 607,982
Net non-operating income -68,537

As far as traffic goes, the Key Bridge only tolled 12.4 million vehicles in fiscal 2023, far less than the competing Fort McHenry Tunnel (43.0 million vehicles) or the Baltimore Harbor Tunnel (28.8 million).

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