Laws, regulations, and Policies that Govern Placing Utilities in State Highway Rights-of-Way

You asked for a description of federal and state laws, regulations or policies related to the placing of utility facilities within the rights-of-way of state highways.

Federal statutes specify the procedure the U. S. Department of Transportation (DOT) must follow in setting policy regarding the placement of utility facilities within the rights-of-way of highways that received federal assistance. These include expressways, most state highways, and certain local roads. Federal Highway Administration (FHWA) regulations require each state to develop its own policy regarding the accommodation of utility facilities within the rights-of-way of such highways. Once FHWA has approved a state’s policy, the state can approve any proposed utility installation without referral to FHWA, unless it does not conform to the policy.

State law requires a state DOT encroachment permit to erect any structure in the right-of-way of a state highway and similar provisions apply to local roads. The statutes also allow the DOT commissioner to enter into agreements with utilities and other entities regarding the use of the right-of-way.

In conformance with the federal law, DOT has adopted a policy regarding the accommodation of utility facilities in the rights-of-way of federally-aided highways. DOT adopted its policy in 1977. The policy is based on policies developed by the American Association of State Highway and Transportation Officials (AASHTO). The DOT policy requires that utility facilities in the right-of-way of an expressway conform to an AASHTO policy, which generally prohibits the longitudinal installation of utility lines in the right-of-way, e. g. , in the median or alongside the travel lanes.

Federal law does not directly control how states accommodate utilities within highway rights-of-way. But, in determining whether a right-of-way on a federally-aided highway should be used for accommodating a utility facility, the Secretary of the U. S. DOT must:

1. ascertain the effect accommodation of utilities will have on highway and traffic safety, since no such use may be authorized or permitted that would adversely affect safety;

2. evaluate the direct and indirect environmental and economic effects of any loss of productive agricultural land or any impairment of its productivity that would result from disapproving accommodation of the utility facility; and

3. consider the environmental and economic effects together with any interference with or impairment of the use of the highway that would result from accommodation of the utility facility (23 U. S. C. § 109(l)).

In addition, 23 U. S. C. § 116 requires state highway agencies to ensure proper maintenance of highway facilities, which implies adequate control over non-highway facilities such as utility facilities.

Finally, 23 U. S. C. § 123 specifies when federal funds can be used to pay for the costs of relocating utility facilities in connection with highway construction projects.

FHWA regulations require all real property, including air space, within the right-of-way of federally-aided highway projects to be devoted exclusively to public highway purposes. But the FHWA administrator may approve a non-highway use based on a determination that it is in the public interest and will not impair or interfere with the free and safe flow of traffic on the highway (23 CFR § 1. 23).

Another FHWA regulation (23 CFR § 645. 205) recognizes that it is in the public interest for utility facilities to be accommodated on the right-of-way when this does not (1) adversely affect highway or traffic safety or impair the highway or its aesthetic quality or (2) conflict with federal, state, or local laws or regulations. The FHWA regulation requires each state to develop its own utility accommodation policy. The policy must prescribe the way that the state will control use of the rights of way. The policy must apply to all federally-aided highways, including expressways and other components of the National Highway System. In 1988, FWHA amended the regulations to require that states decide, under their policies, whether to allow longitudinal utility installations within expressways and under what circumstances. (Previously, the regulations barred such installations except under very limited circumstances. ) States can adopt more restrictive provisions. The policies must consider the effect of utility installations on safety, aesthetic quality, and the cost of highway construction and maintenance. These provisions apply to new utility installations within the right-of-way and existing installations that will be retained, relocated, or adjusted as part of highway project (23 CFR § 645. 211).

FHWA uses two AASHTO publications to assist in its review of state policies, A Guide for Accommodating Utilities Within Highway Right-of –Way and the Roadside Design Guide. These are guidance documents and FHWA notes that state policies do not have to contain their provisions. Among other things, the latter document provides guidance on how to establish highway clear zones in order to minimize the risk of vehicle collisions with structures. FHWA also recommends that states consider AASHTO’s A Policy on the Accommodation of Utilities Within Freeway Right-of-Way. OLR has a copy of this document.

Once FHWA has approved a state’s policy, the state can approve any proposed utility installation without referral to FHWA. FHWA approval is limited to applications that do not conform to the approved policy.

The FHWA regulations include few details governing specific criteria a state policy should contain if it allows longitudinal utility use of existing expressway rights-of-way. FHWA does not encourage the installation of utilities in the median of highways and notes that AASHTO has had a

longstanding policy in opposition to longitudinal use of expressway rights-of-way for utilities. However, FHWA division administrators can approve the use of medians and have done so in several states.

CGS § 13a-247 requires anyone who wishes to place any obstruction within or over a state highway to obtain an encroachment permit from the state Department of Transportation (DOT). DOT can remove any obstruction made without a permit or allow the entity that erected it to do so. An initial violation of these provisions is subject to a fine of up to $ 100; a subsequent violation is subject to a fine of $ 100 to $ 500.

CGS § 13b-17 allows DOT to adopt implementing regulations. DOT requires permit applicants to apply to the DOT District Maintenance Director, file a bond, and provide proof of insurance. Further information about encroachment permits is available at a DOT Website, http: //www. ct. gov/dot/cwp/view. asp?A=1394&Q=259544.

In addition, CGS § 16-229 requires any utility regulated by the Department of Public Utility Control to obtain a permit from the authority having jurisdiction over the maintenance of a highway (generally, DOT in the case of a state highway, the town in the case of local road) before making an excavation in it. Under CGS § 16-230, the utility must file a bond with the Secretary of the State before applying for the permit.

1. any utility facility owner or operator to place a transmission line or trunk line facility longitudinally in the right-of-way of a limited access highway and to fix the terms, conditions, and charges for the use of this property (CGS § 13a-126c);

2. any such owner or operator to revise its plans for a new facility which is planned to be built before a highway is built, rather than readjusting or relocating them later (CGS § 13a-126b); and

3. any entity who wishes to use the Gold Star Memorial Bridge or the Lyme and Old Saybrook Bridge for utility lines and to fix the terms, conditions, and charges for the use of this property (CGS § 13b-127).

In the second case, if the proposed line would have been located within the right of way, the state must pay an equitable share of the cost of the readjustment or relocation. If the proposed line would not have been located in the right-of-way, DOT must pay for the readjustment or relocation from its appropriations.

CGS § 13a-98f allows DOT to adopt regulations as are required by USDOT to accommodate utilities on roads covered by the surface transportation urban program. Such roads include major urban arterials such as Farmington Avenue in Hartford. The law allows the state DOT or a municipality to order any utility to adjust, relocate, or remove its facilities from the roadway at its expense. The cost of adjusting, relocating, or removing a municipal utility facility must be apportioned in the same as the road’s construction cost. If the facility has to be adjusted, relocated, or removed as the result of the construction or reconstruction of a state highway, the state must pay an equitable share of the cost, as specified in CGS § 13a-126. If the utility and the state cannot agree on equitable share, either party can petition the Superior Court to set the shares.

CGS § 13a-126a allows the state DOT to adopt regulations on the location and installation of utility facilities within, along, on, over, or under the right-of-way of any state highway in order to protect the highway’s aesthetic characteristics. The state has to pay for any additional costs required by the regulations. This provision does not affect the authority of the Department of Public Utility Control regarding the location and installation of utility facilities (it appears that this provision was not updated to reflect the fact that the Siting Council took over most of the department’s responsibilities regarding utility siting more than 30 years ago).

Under Conn. Agencies Regs. § 13b-17-17, any new installation of utility facilities on any state or interstate highway must conform to the department’s policy and AASHTO’s Policy on the Accomodation of Utilities on Freeway Rights of Way. In addition, if in DOT’s opinion, it becomes necessary to remove or relocate any utility structure or fixture, the owner must immediately do so.

DOT adopted its policy on the accommodation of utilities in highway rights-of-way in 1977. The policy applies to all private and municipal utilities that are to be located, adjusted, or relocated within the right-of-way of a state highway or federally-aided local road. The policies apply to overhead, surface, or underground facilities.

The policy has provisions regarding the location and design of the utility facility. It has specific provisions regarding pipelines, utility facilities located on or near bridges, underground utilities located near structures, and overhead and underground power and telecommunication lines. The policy also includes measures to minimize the facility’s scenic impacts.

The policy requires that the location of utility facilities conform to AASHTO’s freeway policy. As a result, it discourages longitudinal use of expressway rights-of-way and generally bars the installation of utility facilities in the medians of highways. Among other things, the policy only allows utility facilities within the right-of–way of an expressway when (1) the right-of-way is of ample width to accommodate the facilities without harming the expressway’s design, construction, integrity, and operational characteristics; (2) the right-of-way will not be needed for the foreseeable expansion of the expressway; and (3) satisfactory provision is made for any needed maintenance of the expressway and utility facility.


March 17, 2004		2004-R-0161
LAWS, REGULATIONS, AND POLICIES ON PLACING UTILITIES IN STATE HIGHWAY RIGHTS-OF-WAY

By: Kevin E. McCarthy, Principal Analyst