Federal Regulations Allow State Officials To End Unpopular Tolls On I-405

Published November 12, 2015

State officials say federal regulators are forcing them to restrict the public’s access to HOV lanes on I-405. However, a review of federal rules shows they could stop tolls on Interstate 405 and give the public the popular HOV 2+ and general travel lanes the public paid for in 2003 and 2005.

Members of the Washington State Transportation Commission say:

 “Due to the heavy use of HOV lanes, they are no longer performing to federal and state required standards. In order to conform to standards, we need to be able to change the carpool definition to 3 or more people all of the time or manage the lanes to…maintain the 45 mph speed objective.”


“WSDOT will manage the demand on the express toll lanes to meet performance standards through pricing.”

State Department of Transportation Secretary Lynn Peterson told KIRO Radio’s Dave Ross that federal mandates are forcing her to impose tolls on I-405 drivers:

“Well, in the HOV lanes the federal government does have performance standards that we need to continuously meet, and that is 45 miles per hour, 90 percent of the time.

That is actually why we are even moving in this direction, because, as a lot of people who drive the corridor know, we were not hitting those performance measures in the HOV lanes…so we want to make sure that this new system and this new capacity that we are putting out there can help us meet those performance measures.” [emphasis added]

WSDOT officials frequently say federal rules require their tolls on people using I-405.  See newspaper reports (here, here, here), their blog, and recent testimony to the Joint Transportation Committee.

Transportation agencies cite federal rules to defend unpopular tolling so often that I started to get suspicious.  Is this just a case of bureaucratic blame-shifting?  I decided to find out.

In the past, the Federal Highway Administration said the I-405 HOV lanes needed to meet the performance standard of 45 mph, 90% of the time. Any speeds lower than the 45 mph standard would cause the HOV lane to be considered “degraded.”  A state is typically required to create a plan to bring degraded HOV lanes into compliance. However, a review of federal HOV statutes shows federal rules do not require state officials to change their HOV system. The HOV system is not and was not degraded and doesn’t need to meet those performance standards.

The only the time a HOV system can be considered degraded is after state officials charge tolls or allow single-occupancy vehicles other than motorcycles to access the HOV lane. California officials, for example, allow low-emission vehicles to use HOV lanes regardless of the number of occupants. Since they allow this exception, they must meet federal requirements. See California’s report on degraded HOV lanes for further explanation.

I asked the Federal Highway Administration to confirm that the speed requirements only apply to HOV systems that are degraded because of tolls or single-occupancy low emission vehicles, and after checking with their lawyers, they confirmed my analysis. They told me the issue has been a “gray area” and that the “definition of degraded facilities relates specifically in the context of SOV use (via tolling and/or low emissions vehicles), and reading the provision more broadly to HOVs generally would be a reach from a statutory interpretation standpoint.” (Emphasis mine)

In other words, if state officials allow solo drivers to use HOV lanes, they must meet the federal speed requirement. If they don’t allow solo drivers to use HOV lanes, they don’t need to.

Washington state law doesn’t allow single-occupancy drivers to use HOV lanes, meaning the state has never been at risk of violating federal rules because of HOV lanes on I-405.  Far from it.

The new information is critical as the tolling debate moves forward. WSDOT officials have said they are looking to convert over 300 miles of HOV lanes in the Puget Sound Region to toll lanes. In fact, the Puget Sound Regional Council says they plan to impose similar tolls on every lane of every highway, collecting more than $22 billion from drivers between 2030 and 2040 ($2008).

While WSDOT officials and the state legislature may have heard that federal rules require raising carpool occupancy requirements and charging tolls, a legal analysis by the FHWA says otherwise. State lawmakers have the option to remove tolls, give the public back the general purpose lanes, and open up the carpool lane to two-person vehicles again and still be in compliance with federal rules.  

Bob Pishue ([email protected]) is director of the Coles Center for Transportation at the Washington Policy Center. An earlier version of this article appeared at http://washingtonpolicy.org/blog/post/federal-regulations-allow-state-officials-end-unpopular-tolls-i-405/. Reprinted with permission.