CHAPTER 394

FORMERLY

HOUSE BILL NO. 575

AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 5

AN ACT TO AMEND CHAPTER 84, TITLE 29 OF THE DELAWARE CODE RELATING TO THE COUNCIL ON TRANSPORTATION AND THE CAPITAL IMPROVEMENTS PROGRAMS OF THE DEPARTMENT OF TRANSPORTATION.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. §8409. Council on Transportation.

(a) There is hereby established a Council on Transportation.

(b) The Council shall serve in an advisory capacity, except as otherwise provided, to the Secretary, the Deputy Secretary, the Transportation Directors and the Governor, and shall:

(1) Consider matters relating to transportation in the State and other matters

such as the budget and capital Improvement program which may be referred to it by the Governor or the Secretary of the Department;

(2) Study, research, plan and advise on matters it deems appropriate to enable the Department to function in the best possible manner;

(3) Have final approval of and adopt the Department of Transportation Capital Improvement Program which shall be submitted annually to the Council by the Department;

a. On or before August 31 of each year, the Council shall review the updated Department capital improvements program prepared by the Department of Transportation, and established pursuant to Section 8419 of this Title, as amended. The updated Capital Improvements Program shall cover a period of not less than six years. On or before August 31 of each year, the draft Capital Improvement Program shall be available to the public and the Council shall publish notices in a newspaper of general circulation in each county. The notices shall specify dates and places at which public meetings will be held, by the Council, one in each county, at which time the program will be reviewed and publicly explained and objections or comments may be made by an individual or group. Public meetings shall be held at least two weeks after the draft Capital Improvement program is made available to the public. The notices shall also specify the name and address of the person to whom written comments may be sent. The written comments must be received by the person within ten days after the last public meeting, which must be scheduled no later than September 30 of each year. Following the written comment period, the Council may make priority changes to the proposed capital improvements program in an open meeting by documenting the reasons and justifications for changes, using the priority formula-based processes described in Section 8419 of this Chapter, and shall adopt the program by November 1 of each year. The Capital Improvements Program as prepared by the Department and as adopted by vote of the Council shall become the adopted Capital Improvements Program for the upcoming fiscal year. The adopted program shall be submitted to the agency charged with preparation of the State Capital Improvements Program and members of the General Assembly on/or before November 15 of each year for inclusion in the state capital improvements program for the following fiscal year.

b. The Department capital improvements program, as recommended to the agency charged with preparation of the State's Capital Improvement Program, shall set forth estimated expenditures by project and/or program for engineering, rights-of-way and construction of any major capital transportation project/program when applicable. The program shall include detailed information by project as to location, description of improvement, areas of deficiency and priority rating.

(4) Have final approval of and adopt all corridor route projects in connection with new road alignments, which project shall be submitted to the Council by the Department;

(5) Have final approval on matters relating to highway transportation priority1 planning as set forth in §8419 of this title, as amended;

(6) Review and comment on the issuance, suspension, revocation or reinstatement of all certificates of public convenience and necessity issued pursuant to Chapter 18 of Title 2, as amended.

(c) The Council shall adopt all motions and approve all projects only by a majority vote of the entire membership of the Council. All voting shall be done in person and at regular or special meetings of the Council. If the Council, for any reason, shall fail to approve and adopt in writing within a reasonable period of time after receipt of the programs or projects referred to it, the Secretary of the Department may, with the approval of the Governor, upon 40 days prior written notice to the Chairperson of the Council, give final approval to said programs or projects notwithstanding the absence of the Council's written comments or approval.

(d) The council shall consist of nine (9) members, with the members of no one political party holding a number of seats greater than one in excess of that held by the members of any other political party. This provision shall be applied only as existing council members complete their present terms and all appointments made after the effective date of this Act shall be made in a manner sufficient to implement the political balance sought by this section, upon completion of the terms of the existing council members, at the earliest possible date.

(e) The Governor shall appoint the members of the Council, all of whom shall reside in the State, with a minimum of two (2) members residing in any one county. A Chairperson of the Council shall be appointed by the Governor from the membership of the Council to serve at his pleasure.

(f) No person shall be eligible for appointment to the Council on Transportation who is a director, officer or employee of any public carrier, as defined by Chapter 18 of Title 2, as amended, or who owns or directly or indirectly controls more than 1 percent of the stock of any public carrier.

(g) No member of the Council shall hold any office or position or be engaged in any business, employment or vocation, the duties of which are incompatible with the duties of their membership on the Council.

(h) Members of the Council shall serve for a term of three (3) years, provided however, that after the expiration of three (3) years such members shall continue to serve until such time as the Governor appoints a replacement. Members of the Council on Transportation existing prior to January 1, 1990, shall be permitted to complete the existing term of their membership, subject to the other provisions of Section 8409 as amended. As the terms of their existing members of the Council expire, each of the first three appointments of members of the Council shall be for a term of 1 year, and the next three such appointments shall be each for a term of 2 years. Thereafter, all appointments shall be made for 3 year terms such that three members of the Council are appointed each Year.

(i) Members of the Council shall serve without compensation, except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council.

(j) (1) Failure to attend 3 consecutive regular meetings of the Council shall be construed as a request by that member to resign from the Council and a replacement may thereafter be appointed in his stead.

(2) Members may be removed only for just cause, except as otherwise provided herein. Prior to removal, members shall be entitled to notice of the reason for removal and shall be entitled to a hearing before the Governor or his designee.

(k) Any replacement appointment to the Council to fill a vacancy prior to the expiration of the term shall be filled for the remainder of the term.

Section 2. §8419. Transportation priority planning.

The Department of Transportation, with Council approval, shall:

(1) Establish a method of determining current needs and costs of the entire multi-modal transportation requirements in the State which will be utilized in allocating capital funds by transportation capital improvement program. The needs and costs will be updated annually.

(2) a. Establish a priority formula-based process which shall be used for setting priorities on all Department Transportation projects which, if contained in the authorization act would be categorized as corridor/noncorridor and which shall consider, but not be limited to the following: Safety, service and condition factors; social, economic and environmental factors; regional variations; seasonality of traffic; continuity of improvement; availability of federal and State funds; and ability to utilize these funds for projects and programs.

b. The priority formula-based process may be utilized on other transportation programs as processes are developed and approved by the Council.

(3) Develop a needs study and a priority formula-based process along with any other relevant criteria which shall be used for the development of the Department's priority recommendations for the Department capital improvements program. Department programs or projects utilizing other than state, Transportation Trust Fund or federal funds shall be indicated within the capital improvements program with their priority rating as specified in paragraph a. of subdivision (2) of this section, but the costs shall not be added to the total estimated cost of the overall program. An annual written report including this data shall accompany the Department recommendations.

(4) Update and prepare annually a statewide Department capital improvements program for submission to the Council on Transportation. The first year shall consist of transportation programs and projects, containing the highest priorities in the categories specified in paragraph a. of subdivision (2) of this section and transportation programs and projects in the categories mentioned in paragraph b. of subdivision (2) of this section. No program or project in these categories will be funded for construction, except programs or projects that can, with reasonable certainty, be advertised for bidding that year. Proposed projects or programs for the remaining g years shall be grouped by order of priority and year that the construction or activity should begin. Department programs or projects utilizing other than state, Transportation Trust Fund or federal funds shall be indicated within the capital improvements program with their priority rating as specified in paragraph a. of subdivision (2) of this section, but the costs shall not be added to the total estimate cost of the overall program. The estimated cost of the program for each year shall be approximately equal to estimated federal and state funds available for transportation purposes during that year. The estimated federal and state fund availability will be developed annually by the Department of Transportation with the assistance of the agency responsible for the Capital Improvements Program.

(5) Review any priority changes that would result in the introduction of new projects or programs to a proposed or adopted Department Capital Improvements Program and make recommendations on such priority changes or introduction of new projects or programs based on the criteria and priority formula-based process which establish the priorities or projects and programs. The Department shall, fully document its recommendations in a written report to the Council on Transportation.

Approved July 18, 1990.