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The I-405 express toll lanes are not making the grade when it comes to delivering one of their key benchmarks, but will that be enough for the state Legislature to get rid of them?

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For the express toll lanes to stick around, they must make enough money to support themselves and they must deliver a 45 mile-an-hour trip during peak hours at least 90 percent of the time. As we reported last week, they are clearly making money, but they are not delivering on speed.

Senator Curtis King heads the transportation committee in Olympia and is not what you would call a fan of the express toll lanes. However, he has been willing to give them two years, which ends Wednesday.

“We need to confirm whether HOT lanes are the answer or not,” he said. “We need to feel comfortable that those HOT lanes are fair to everybody and not just giving those that have a little more money the advantage because they can afford to do it.”

The Legislature will have the full two-year stats when they begin to debate the lanes’ future in January, but Sen. King admitted he’s not sure if he will believe the Washington State Department of Transportation’s numbers when they are released.

“There are times when … I have a hard time believing that those numbers are actual. So we’ll have to see how it all plays out,” he said.

Through 18 months, WSDOT said the express toll lanes have made nearly $39 million. That’s $25 million more than they cost to operate. They are delivering a 45 mph trip about 82 percent of the time.

There may now be an internal debate about whether the state really has to reach those benchmarks to keep the lanes.

Reema Griffith, the executive director of the , which sets the toll rates, said, “I think there’s a debate brewing around what that says and what it requires.”

The law doesn’t appear to be ambiguous. This is a direct reading from one section: “If after two years of operation of the express toll lanes on Interstate 405 performance measures listed in subsection (4)(a) and (e) of this section are not being met, the express toll lanes project must be terminated as soon as practicable.” Those two measures are speed and money.

State Rep. Mark Harmsworth lives along the I-405 corridor and represents its residents. He can’t believe that WSDOT is trying to change the rules if that is what’s happening.

“There was a staff briefing from senior leadership — from DOT — where they explained their interpretation of this section of the statute is they’re not required to meet both of these requirements,” he said. “This, to me, is outrageous.”

WSDOT staff confirmed that the department asked the state Attorney General’s office for clarification on the law. The language, according to WSDOT, it isn’t clear. The department also doesn’t expressly cover the current situation where one benchmark is being met and the other is not.  This will all be hashed-out by the legislature. WSDOT said it is not trying to pull a fast-one by asking for legal clarification.

It’s hard to imagine Olympia getting rid of a program that is bringing in so much money, especially considering that work is already underway to add express toll lanes from Bellevue to Renton.

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