No. 39297 (Change in Proposed Rule): Rule R930-8. Utility Relocations Required by Highway Projects

DAR File No.: 39297
Filed: 06/30/2015 09:55:53 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Department of Transportation (Department) makes these changes to the published proposed new rule after reviewing and considering comments it received from affected persons during the comment period. The Department agrees with many of the comments, and has changed the proposed rule as a result of those comments.

Summary of the rule or change:

Changes to correct typographical errors are made to Section R930-8-8. Subsection R930-8-6(2) is changed to eliminate conflicting phrases. The text of Subsection R930-8-6(4) is replaced with a concise statement that requires utilities to pay for betterments to existing real property interests the utilities receive through the process of relocating utility facilities. Subsection R930-8-10(1), is divided into two subsections and the new Subsection R930-8-10(2) is edited to clarify the Department's intent. Other subsections of Section R930-8-10 are renumbered to coincide with the addition of the new Subsection R930-8-10(2). (DAR NOTE: This change in proposed rule has been filed to make additional changes to a proposed new rule that was published in the May 15, 2015, issue of the Utah State Bulletin, on page 93. Underlining in the rule below indicates text that has been added since the publication of the proposed rule mentioned above; strike-out indicates text that has been deleted. You must view the change in proposed rule and the proposed new rule together to understand all of the changes that will be enforceable should the agency make this rule effective.)

State statutory or constitutional authorization for this rule:

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

Anticipated cost or savings to:

the state budget:

The new rule will help the Department to reduce the amount of time lost on highway construction projects due to inefficient utility facility relocation. It provides a framework for utility companies, the Department and the Department's contractors to follow when it becomes necessary to relocate a utility facility to facilitate a highway construction project, and it defines how the Department and the utility companies must cooperate and coordinate their efforts to minimize wasted time and effort. The Department anticipates that minimizing time lost due to utility relocation disputes will equate to cost savings for the state budget. These changes to the new rule should enhance cost savings to the state budget generated by the enactment of the new rule.

local governments:

Inefficient highway construction practices adversely affect all of a project's stakeholders. The Department anticipates that reducing time lost due to utility relocation disputes will result in cost savings for local governments for the same reasons it will result in saving to the state's budget. The Department anticipates that these changes to the new rule will lead to even greater savings for local governments.

small businesses:

Highway construction that impedes access to small businesses leads to fewer customers for and diminishing revenue for those affected businesses. The Department anticipates that this rule will reduce the time needed to complete highway construction projects and minimize revenue losses experienced by small businesses. The Department anticipates that these changes to the new rule will lead to even greater savings for small businesses.

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

Highway construction projects that impede travel for all members of the traveling public represents additional costs experienced by everyone in the state. Highway construction projects that impede travel can result in greater time needed to get to or from work, school, recreation facilities, and to deliver goods and services. The new rule will reduce the time needed to complete highway construction projects and reduce resulting lost time for everyone. These changes to the new rule are intended to enhance the cost savings experienced by everyone.

Compliance costs for affected persons:

The new rule should not result in additional compliance costs for affected persons such as the utility companies. It does not eliminate any substantive or procedural right. This new rule only eliminates gaps in the old rule that are known to have led to lost time on highway construction projects in the past. The Department anticipates that these changes to the new rule will not lead to increased compliance costs for the utilities.

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

Faster and more efficient highway construction practices benefit everyone who uses the state's transportation system. The Department intends that this new rule and these changes to the new rule will lead to faster and more efficient construction practices, which will have a positive fiscal impact on all the state's businesses, local governments, and on the state as a whole.

Carlos Braceras, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division 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:

• 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]

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:

08/14/2015

This rule may become effective on:

08/24/2015

Authorized by:

Carlos Braceras, Executive Director

RULE TEXT

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 Utility 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 Utility 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 54-3-29(1)(f), 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 Utility 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 Utility Facility likely to be affected following the process set forth in 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 Utility Facilities.

(3) Submit to the Department all conveyances, vesting documents, or other evidence of title to real property related to the potential relocation of Utility 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 Utility 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 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 Utility 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 Utility 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 Utility 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, Rule R930-7-13(5) shall apply.

(2) If the Utility's regulatory and construction requirements can be met, the Department may require Utility Companies to jointly occupy [conduits or ]trenches for the highway construction projects.[ The Department will not require one Utility to jointly occupy another Utility's conduit.] 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 Utility 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 Utility 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 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 Department may acquire a public utility easement as defined in Utah Code Section 54-3-27 , and may require the Utility to relocate its facilities to the public utility easement from the Department's right-of-way. In this situation, the Utility shall sign an agreement that any reimbursement for future utility relocations shall be 50% unless the Utility pays for the public utility easement. Utilities that are political subdivisions of the State shall be exempt from the requirement to sign such agreements. ]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-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 costs shall be determined in accordance with 23 CFR Section 645, 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 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 Utility 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 Utilities and Railroads Engineer and will include a reasonable timeframe for Utility Company actions to be complete[. Failure] the relocation of the Utility 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, [may result in ]the Department may issu[ing]e an administrative order to remedy non-compliance. The Department may order any or all of 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 Utility 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 [the ]amounts allowed by Utah Code Section 72-6-116(3).

([2]3) In addition, the Department may pursue additional remedies or claims against a Utility in a [the Utah Third D]district [C]court[.]in Utah.

([3]4) The Department shall not limit or waive any of its remedies or claims allowed in this rule or law.

([4]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: 2015

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)