In 1976 Mercer Island, the only populated Island in the US that is wedged between a major city and the suburbs with a single highway for access, cut a brilliant deal.

The state wanted to widen I-90 and build a new bridge. So MI negotiated the 1976 Memorandum of Agreement (MOA) allowing all single-occupant-vehicle (SOV) traffic to and from MI to use the new Express Lanes. It also contemplated future access between MI and I-405 and mandated that any big changes to I-90 required Mercer Island’s negotiated agreement.

Fast forward to today.  The Express Lanes close in a few months for Light Rail construction and restriped HOV lanes will be added to the outer roadway. Negotiations are in full swing on several issues, including whether Mercer Island SOVs will continue to be eligible to use these new HOV lanes.

It should be simple. In 2007, the State Legislature mandated this eligibility (until the lanes become HOT lanes) and WSDOT formally promised to implement. In 2011, every traffic scenario of Sound Transit’s Environmental Impact Statement assumed this eligibility. The Federal Highway Administration (FHWA) not only approved this, but used MI SOV eligibility as an argument why Light Rail construction wouldn’t have a negative impact on traffic flow.

In fact, once Light Rail opens across I-90, buses will stop crossing the bridge and the HOV lanes will be underutilized without Mercer Island traffic.

But in January 2016, after months of rumors, FHWA said that under a 2005 Federal law, SOVs cannot drive in HOV lanes or on HOV ramps. No exceptions.

So the negotiations ground to a halt and everyone started blaming FHWA for the lack of progress.

The good news is that there are a lot of options. FHWA does make exceptions. Putting Mercer Island traffic in the lanes exempts the lanes from the HOV law. Nobody wants a 2-5 year delay to redo all of the Environmental Impact Statement work. There are answers here. Mercer Island, Sound Transit and WSDOT all want this done.

The bad news is the City hasn’t done a great job strategically:

  • In 2007, they failed to identify the potential legal problem
  • In 2011, they didn’t challenge the Environmental Impact Statement for more specificity
  • In mid-2015, when rumors of this legal issue were emerging, they didn’t alert our Federal delegation, who were in the process of negotiating a Highway Bill that amended the specific section in question and could have fixed the problem
  • In 2016, the Council started a formal exchange of letters with FHWA (rather than a behind-the-scenes dialogue), causing FHWA lawyers to dig in further.
  • The Mayor went to DC to make the case with a senior FHWA official, but without a comprehensive deal in place and unanimity among the parties, there was no political pressure, so the lawyers again said “no.”
  • Then the City hoped the new Sound Transit CEO could persuade his former DC colleagues to fix the problem, issuing Sound Transit’s shoreline permit without a deal in place to maintain positive relations. Unfortunately, he was unsuccessful.
  • Now the City is “studying alternatives” on this issue separately from the other negotiating topics, further decreasing leverage.

So now what?

Our research indicates that the win/win position is:

  1. Eligibility for Mercer Island SOVs to the new HOV lanes, between I-405 and Seattle including all ramps, until the lanes become HOT lanes
  1. WSDOT has the ability to do this by simply calling them “Managed Lanes” instead of HOV lanes and nobody has to redo any Environmental Impact Statements
  1. Mercer Island, Sound Transit and WSDOT complete their big negotiation, including this provision, and hand the deal to FHWA as a complete package. With a signed agreement, unified support and Light Rail’s schedule at stake, our Federal delegation can make sure FHWA doesn’t throw a wrench in things

If this doesn’t happen by the end of the year, it’s possible Mercer Island will be in a lawsuit with Sound Transit and WSDOT instead of working together with them. Then all bets are off and Mercer Island could very likely lose the HOV access negotiated for in 1976.

What You Can Do

Let the City Council know you care.  Here is a sample email:

Dear Council Members,

 I am concerned that the current transportation negotiation strategy, especially as it pertains to SOV access to I-90, is not on the right track. Please stop blaming others and negotiate fiercely with Sound Transit and WSDOT to ensure SOV eligibility between I-405 and Seattle, including all ramps, until the lanes become HOT lanes. Do this as an integrated, win/win negotiation and present our Federal delegation with a unified, signed deal they can advocate for.


 Your Name


MI City Council Email Addresses:


The parties do not appear far apart on the list of issues. Vision Mercer Island hopes that by educating people about these issues we can identify win/win solutions and encourage a good, expedient and public process.