No. 43745 (Amendment): Rule R930-8. Utility Relocations Required by Highway Projects

(Amendment)

DAR File No.: 43745
Filed: 05/30/2019 10:17:50 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Department of Transportation (Department) is proposing this amendment to accommodate changes made by H.B. 358 passed during the 2019 General Session.

Summary of the rule or change:

These proposed rule changes: 1) delete the definition of "utility facility" in the existing rule; 2) change the requirement that reimbursement for relocation costs be determined by 23 CFR Section 645 sub-part A to 23 CFR Section 645, 103, 107, 109, 111, 113, 115, and 117; and 3) make other technical or grammatical changes.

Statutory or constitutional authorization for this rule:

• Subsection 54-3-29(5)(b)
• Subsection 54-3-29(6)
• Subsection 54-3-29(7)
• Subsection 72-6-116(2)
• Subsection 72-6-116(6)

Anticipated cost or savings to:

the state budget:

The Department does not anticipate that these proposed rule changes will cause a fiscal impact to the state's budget. The Department proposes these rule changes so that this rule does not conflict with the amended Section 72-6-116.

local governments:

The Department does not anticipate that these proposed rule changes will cause a fiscal impact to local governments. The Department proposes these rule changes so that this rule does not conflict with the amended Section 72-6-116.

small businesses:

The Department does not anticipate that these proposed rule changes will cause a fiscal impact to businesses, small or non-small. The Department proposes these rule changes so that this rule does not conflict with the amended Section 72-6-116.

persons other than small businesses, businesses, or local governmental entities:

The Department does not anticipate that these proposed rule changes will cause a fiscal impact to persons other than small businesses, businesses, or local government entities. The Department proposes these rule changes so that this rule does not conflict with the amended Section 72-6-116.

Compliance costs for affected persons:

The Department does not anticipate that these proposed rule changes will lead to compliance costs for any person. The Department proposes these rule changes so that this rule does not conflict with the amended Section 72-6-116.

Comments by the department head on the fiscal impact the rule may have on businesses:

These proposed changes should not have a fiscal impact on businesses.

Carlos Braceras, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Transportation
Preconstruction
CALVIN L RAMPTON COMPLEX
4501 S 2700 W
SALT LAKE CITY, UT 84119-5998

Direct questions regarding this rule to:

• Christine Newman at the above address, by phone at 801-965-4026, by FAX at 801-965-4338, or by Internet E-mail at [e-mail]
• James Palmer at the above address, by phone at 801-965-4000, by FAX at 801-965-4338, or by Internet E-mail at [e-mail]
• Linda Hull at the above address, by phone at 801-965-4253, by FAX at , or by Internet E-mail at [e-mail]
• Josh Dangel at the above address, by phone at 269-217-7091, by FAX at , or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/15/2019

This rule may become effective on:

07/22/2019

Authorized by:

Carlos Braceras, Executive Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2020

FY 2021

FY 2022

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Persons

$0

$0

$0

Total Fiscal Costs:

$0

$0

$0

Fiscal Benefits

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Persons

$0

$0

$0

Total Fiscal Benefits:

$0

$0

$0

Net Fiscal Benefits:

$0

$0

$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non - Small Businesses are described in Appendix 2.

 

Appendix 2: Regulatory Impact to Small and Non - Small Businesses

1) The Department estimates that the utilities and telecommunications industries in Utah are the only businesses that may experience a material fiscal impact resulting from enactment of this proposed amendment. This fiscal impact may be positive or negative, depending upon the specific facility or right of way impacted and how we define fiscal impact.

 

A) The utilities industry is comprised of establishments involved in:

 

i) Electric power generation, transmission, and distribution, NAICS of 221112 for generation, and 221122 for distribution;

 

ii) Natural gas distribution, NAICS of 221210; and

 

iii) Water distribution and irrigation systems, NAICS 221310, Sewer systems, NAICS 221320.

 

b) The telecommunications industry is comprised of establishments involved in:

 

i) Wired Telecommunications Carriers NAICS of 517311; and

 

ii) Wireless Telecommunications Carriers (except Satellite), NAICS of 517312.

 

2) The Department of Workforce Services (DWS) Firm Find Data includes information about firms within the seven industries identified by the NAICS industry code, which data on numbers of employees by firm follows:

 

a) Electric power generation, transmission, and distribution, NAICS of 221112 for generation, lists 16 firms total, 11 are small businesses;

and 221122 for distribution; lists 57 firms total, 52 are small businesses;

 

b) Natural gas distribution, NAICS of 221210, lists 46 firms total, 40 are small businesses;

 

c) Pipeline Transportation of Crude Oil, NAICS of 486110, lists five firms, all of which are small businesses by definition;

 

d) Water distribution and irrigation systems, NAICS 221310, lists 182 firms total, 177 are small businesses;

 

e) Sewer systems, NAICS 221320, lists 48 firms total, 46 are small businesses;

 

f) Wired Telecommunications Carriers NAICS of 517311, lists 150 firms total, 135 are small businesses; and

 

g) Wireless Telecommunications Carriers (except Satellite), NAICS of 517312, lists 56 firms, 55 are small businesses.

 

3) Of these 560 firms in the eight possibly affected industries, 39 are non-small businesses and 521 are small businesses, as defined by Section 63G-3-102(19). For a complete list of these firms, contact the Department.

 

4) The Department is proposing this amendment to accommodate changes made by H.B. 358 passed in the 2019 General Session. Passage of H.B. 358 (2019) amended the definition of "utility" in Subsection 72-6-116(1)(b) to include "crude oil, petroleum" for the first time. H.B. 358 also adds a subsection to Subsection 72-6-116(3) that effectively requires the Department to pay 50% of the cost to of relocate a utility to accommodate construction of a state highway project.

 

5) The Department does not anticipate this proposed rule change will cause a fiscal impact to the state's budget. The Department proposed this rule change so that the rule does not conflict with the amended Section 72-6-116.

 

6) The Department does not anticipate this proposed rule change will cause a fiscal impact to the budgets of businesses, small or non-small. The Department proposed this rule change so that the rule does not conflict with the amended Section 72-6-116.

 

7) The Department does not anticipate this proposed rule change will cause a fiscal impact to the budgets of local governments. The Department proposed this rule change so that the rule does not conflict with the amended Section 72-6-116.

 

8) The Department believes this proposed amendment should not lead to compliance costs for persons other than businesses and local governments. The Department proposed this rule change so that the rule does not conflict with the amended Section 72-6-116.

 

9) Carlos Braceras, executive director of the Department has reviewed and approved this fiscal analysis.

 

 

R930. Transportation, Preconstruction.

R930-8. Utility Relocations Required by Highway Projects.

R930-8-1. Purpose.

This Rule sets forth the Department's requirements and authority as to a Utility Company's coordination and cooperation when removal, relocation, or alteration of a [U]utility [F]facility is made necessary by a highway project and sets forth the options the Department may pursue to proceed with a highway project in the event that a [U]utility [C]company fails to cooperate or coordinate with the Department as required by statute or rule.

 

R930-8-2. Authority.

This Rule is enacted pursuant to Utah Code Sections 54-3-29(5)(b), (6), and (7), and 72-6-116(2) and (6).

 

R930-8-3. Definitions.

As used in this Rule R930-8:

(1) "Department" means the Utah Department of Transportation.

(2) "Non-operating Property" and "Non-operating Real Property" refer to property owned by a Utility Company that is not directly part of the Utility Company's physical plant or facilities that provide the utility service.

(3) "Utility Company" and "Utility" shall have the same definition as in Utah Code Section 72-6-116(b) and (c) and may be used interchangeably.

[(4) "Utility Facility" shall have the same definition as in Utah Code Section 54-3-29(1)(g).]

 

R930-8-4. Utility Company Coordination and Cooperation.

When the Department notifies a Utility that relocation of a [U]utility [F]facility may be necessary due to a highway project, both the Department and the Utility shall use their best efforts to identify conflicts, minimize utility relocation costs and operational impacts, highway project costs and delays, and to coordinate and cooperate with one another, as directed in Utah Code Sections 54-3-29(6)-(7) and 72-6-116(6). When the Department believes a conflict exists, it will offer an initial scoping meeting and provide authorization for the Utility to do preliminary design work. The Utility shall:

(1) Provide to the Department, the location of each [U]utility [F]facility likely to be affected following the process set forth in [R]rule R930-7-11(6).

(2) Identify to the Department conflicts between the Department's proposed highway work and the Utility's operation of its [U]utility [F]facilities.

(3) Submit to the Department all conveyances, vesting documents, or other evidence of title to real property related to the potential relocation of [U]utility [F]facilities as early as practicable.

(4) Submit to the Department the Utility's proposed design for relocation; detailed cost estimates; a reasonable relocation schedule to accommodate the highway project; reasonable limits on highway project work, including utility outage windows and construction loadings by the Department; and communication procedures between the parties. A reasonable relocation schedule for the project includes, but is not limited to, work sequencing, task durations, material ordering, notification requirements, mobilization, third-party coordination, communication between the parties, and any other activity necessary for the relocation of the [U]utility [F]facility to accommodate the highway project. If the relocation work is to be completed prior to the Department awarding the highway project to its contractor, the Utility shall include specific dates in the schedule.

(5) Execute a written relocation agreement with the Department. The agreement shall include terms and conditions, including but not limited to, the relocation scope of work, reimbursement provisions, federal requirements, description and location of the work to be undertaken, plans and drawings, and detailed cost estimates.

(6) After the Department has awarded the highway project to [the]a contractor, coordinate with the contractor to develop a detailed work plan and schedule and address all other matters of mutual concern during construction. Submit to the Department written acknowledgement of the approved schedule.

(7) Perform the work necessary for removal, relocation, or alteration of the [U]utility [F]facility in accordance with the detailed work plan and schedule developed in (4) and (6) above, and as described in the relocation agreement and supplemental agreements.

 

R930-8-5. Timeliness.

The work listed in Subsections R930-8-4(1) through (7) must be timely completed by the Utility as not to delay the highway project or otherwise increase costs to the project. The Department will provide reasonable deadlines for the Utility, so the Utility can meet the deadlines and not unnecessarily delay the highway project. The Department will also provide the Utility with reasonable updates of highway project schedule changes.

 

R930-8-6. Relocation.

The basic concept when relocating [U]utility [F]facilities is to functionally restore the Utility's operation facilities that existed prior to the Department constructing a highway project.

(1) The Department incorporates by reference 23 CFR Section 645, subpart A (05/15/1985), for all [U]utility [F]facility relocations required by the Department's highway projects. For deviations in determining whether the Utility's real property needed for the highway project should be handled as a utility relocation or right-of-way acquisition, [R]rule R930-7-13(5) shall apply.

(2) If the Utility's regulatory and construction requirements can be met, the Department may require [U]utility [C]companies to jointly occupy trenches for the highway construction projects. To the extent Utilities have valid agreements concerning the joint use of above ground facilities, the Utilities shall cooperate with each other for the relocated joint use.

(3) If a Utility determines the existing [U]utility [F]facilities do not need to be replaced or are not needed to maintain its operational facilities, payment for the real property, which is needed to accommodate the construction of the highway project where the [U]utility [F]facilities are located, shall be handled as a right-of-way acquisition.

 

R930-8-7. Replacement of Property Rights.

(1) When the Department replaces a Utility's fee interest or easement, the Utility shall transfer title to the prior fee or easement to the Department without charge.

(2) If the Utility has facilities within a fee or easement and the facilities are relocated within the Department's right-of-way, the Utility shall transfer title to the fee or easement without charge to the Department and the Department shall reimburse the Utility 100% of the future utility relocation costs in compliance with 23 CFR Section 645, subpart A.

(3) When the Utility's [Utility F]facilities are located in a public utility easement as defined in Utah Code Section 54-3-27, the Department may purchase a replacement public utility easement and may require the Utility to relocate its facilities to the replacement public utility easement.

(4) The Utility shall pay UDOT for any betterment between the existing real property interest and the real property interest acquired for relocation.

(5) If the Department obtains a court ordered occupancy or right-of-entry from a property owner, the Utility shall relocate its facilities onto the replacement property rights while the Department obtains the final order or deeds from the property owner.

(6) Acquisition of Non-[O]operating Real Property from a Utility shall be in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and applicable right-of-way procedures in 23 CFR Section 710.203.

 

R930-8-8. Reimbursement of Relocation Costs.

(1) Reimbursement for relocation costs shall be determined in accordance with 23 CFR Section 645, 103, 107, 109, 111, 113, 115, 117[subpart A], and the Program Guide, Utility Relocation and Accommodation on Federal-Aid Highway Projects, Sixth Edition, January 2003, as amended, Cost Development and Reimbursement, pages B-21 to B-23.

(2) If a Utility cannot provide a copy of a permit that shows the Department's acceptance of the deviation from the rule in effect at the time of installation of the [U]utility [F]facilities and the [U]utility [F]facilities do not meet the overhead and depth of bury clearance requirements, the Utility must relocate its facilities without any reimbursement from the Department. The Utility shall be responsible for 100% of its relocation costs for non-compliant utility facilities.

(3) When reimbursement is made on the basis of actual costs, the Utility's estimate and final billing shall be itemized to show the totals for labor, overhead construction costs, travel expenses, transportation, equipment, materials and supplies, handling costs, and other services.

(4) The Utility's final billing statement shall be provided in a format that facilitates making comparisons with the Department's approved estimates.

(5) A Utility must submit final billings to the Department within six months following the completion of the [Utility Facility ]relocation work. The Department may make a final payment when the final bill is received from a Utility more than six months after the completion of the [Utility Facility ]relocation work if the Department and the Utility have agreed in advance that a longer time period is needed.

(6) The costs incurred by the Department and a Utility for compliance with federal and state statutes, rules, and regulations will be included as part of the utility relocation costs.

(7) Temporary [U]utility [F]facility relocations required by the highway project will be included as part of the utility relocation costs.

(8) Telecommunication utility companies granted longitudinal interstate access are required to pay all relocation costs pursuant to Utah Code Section 72-7-108.

 

R930-8-9. Betterments.

No betterment credit is required for the replacement of utility devices or materials that are:

(1) Required by the highway project;

(2) Of equivalent standards although not identical;

(3) Of the next highest grade or size when the existing devices or materials are no longer regularly manufactured;

(4) Required by law pursuant to governmental and appropriate regulatory commission code; or

(5) Required by current design practices regularly followed by the Utility in its own work, and there is a resulting direct benefit to the highway project.

 

R930-8-10. Issuance of Administrative Order; Enforcement.

(1) In the event that a Utility fails to timely coordinate and cooperate with the Department at any point in the utility relocation process, the Department may issue an administrative order pursuant to Utah Code Section 72-6-116(2)(b) to the Utility to accommodate the highway project. The administrative order shall be issued by the Department's Statewide Railroad and Utilities Director and will include a reasonable timeframe for Utility Company actions to be complete the relocation of the [U]utility [F]facilities, including any design.

(2) If the Utility fails to comply with the Department's administrative order, and the failure to comply is not caused by a third party who the Utility has no control over, the Department may issue an administrative order to remedy non-compliance. The Department may order any or all the following remedies:

(a) The Department may recover from the Utility increased costs caused by the Utility's unreasonable or unjustified delays. Such actual and indirect costs may include, but are not limited to, increased costs on the current highway project or related projects, added expenses from loss of a construction season, and loss of project funding.

(b) The Department may deny further permits for utility installation under R930-7 until the Utility's non-compliance is resolved.

(c) The Department may perform design work and construction work on behalf of the Utility for those [U]utility [F]facilities located within the highway right-of-way, except for fiber for telecommunications, electricity, and natural gas. The Department will only perform such work if the work can be performed without violating any state or federal statute, regulation, or safety requirement. The Utility shall reimburse the Department for the costs the Department incurs to relocate the Utility's facilities, in amounts allowed by Utah Code Section 72-6-116(3).

(3) In addition, the Department may pursue additional remedies or claims against a Utility in a district court in Utah.

(4) The Department shall not limit or waive any of its remedies or claims allowed in this rule or law.

(5) The Department may require a Utility to comply with a practicable shortened process or expedited schedule when an emergency exists that could affect public safety or the structural or functional integrity of the highway.

 

R930-8-11. Agency review.

A Utility aggrieved by an administrative order issued under Rule R930-8-10 and Utah Code Section 72-6-116(2)(b) may file a written request for agency review with the Department pursuant to the Administrative Procedures Act, Utah Code Title 63G, Chapter 4, and Rule R907-1. The presiding officer for the agency review will be the Department's Director of Operations, who will issue the Department's Final Order. The administrative proceedings shall be informal.

 

KEY: right-of-way, utility accommodation, utility facilities, utilities

Date of Enactment or Last Substantive Amendment: [September 28, 2018]2019

Authorizing, and Implemented or Interpreted Law: 54-3-29(5)(b); 54-3-29(6); 54-3-29(7); 72-6-116(2); 72-6-116(6)

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