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Utility Rights-of-Way

Accommodating public utilities on highway right of way has traditionally been at no cost to the utility or only involves direct cost reimbursement for replacement ROW. This reflects society's public service policy that supports limiting the burden on taxpayers for basic municipal services. Pressure to accommodate a growing number of new powerful, profit-making entities who seek private uses of public rights of way may require changes in State laws and agency regulations. Demands for accommodating expensive new technologies such as ITS (Intelligent Transportation Systems) are causing many states and local governments to re-evaluate past policies and seek to gain benefits from their billions in land assets by making their rights of way available for these uses.

Local and State governments are reacting to legislative and industry pressures, while protecting these assets. States and local governments have established and support coordinating teams to identify concerns and anticipate regulatory changes. While utility accommodation is primarily in Utilities or Right of Way sections of State DOT's, Traffic, Maintenance, Legal, Fiscal, ITS and other sections also have important concerns. How a State identifies applicants (e.g., as a utility or private enterprise) will impact their ability to control rights of way and obtain cash or services in return. If the applicant is a utility, income may not be required, or otherwise not be restricted to Title 23 purposes.

Real Estate issues - Generating income or services in kind from private leases that can then be used for highway purposes is of particular concern to State DOT's and local governments. While FHWA does not directly require payment for its proportion of airspace income, our interest is that these funds be applied to Title 23-eligible transportation purposes (like State matching funds). For funds that can be retained by the State for these purposes, refining Right of Way/ Real Estate airspace/Property Management procedures present the most potential. Using existing fair market rent requirements, and applying appropriate appraisal techniques, Property Management may generate substantial value for your agency if accommodation is made for cash or services compensation. FHWA has developed suggested guidelines for evaluating leasing proposals that will help you in evaluating utilities accommodation proposals.

Coordination with larger municipalities (and perhaps other State agencies) with extensive experience in cable systems and wireless antenna siting may be most helpful. A number of local government interest sites are available through your State DOT site or through the Federal Communications Commission (FCC) coordination site. We are always looking for additional examples of these new regulations, will appreciate your help in providing them, and will make them available upon request. Please let us know what additional information we can try to provide you. For more information on FHWA policy on Utility Accommodation and related subjects please see the following:

Updated: 09/13/2013
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