The following section provides an overview of the Federal and state regulations governing the use of highway ROW related to utilities and, by extension, renewable energy technologies and alternative fuel facilities.
Prior to 1988, FHWA prohibited the installation of utilities within interstate ROW, and many states adopted the same policy for state highways. In 1988, that policy changed to allow each state to decide whether to permit utilities within interstate ROW and to specify the conditions for approval, or continue to adhere to the stricter AASHTO policies. The 1988 FHWA policy also stated that public utilities (i.e., utility service available for public use) that were "in the public interest" could be allowed in interstate ROW under the DOT's approved Utility Accommodation Policy (UAP) Manual or Plan as long as they are accommodated in ways that are safe for the traveling public and do not interfere with the operation of the facility. The emergence of opportunities for locating renewable energy technologies and alternative fuel facilities within highway ROW has caused FHWA and the states to reexamine the existing definition for "utility."
At present, a number of Federal statutes and regulations govern the use and management of the highway ROW. The Federal statutes and regulations most applicable to accommodating renewable energy generating technologies and alternative fuel infrastructure in the ROW are:
Some current Federal restrictions on highway real property use and commercialization may limit state DOTs' abilities to construct renewable energy technologies or alternative fuel facilities along the highway ROW. The use of highway real property is limited by 49 CFR 18.31(b), which states that except as otherwise provided by Federal statutes, real property will be used for the originally authorized purposes as long as the property is needed for those purposes. Commercialization along the interstate highway system is also restricted. Specifically, 23 USC 111 requires states, as a condition of receiving Interstate funding, to prohibit automotive service stations or other commercial establishments for serving motor vehicle users to be constructed or located on the ROW of the Interstate System. Federal regulations further prohibit states from charging the public for goods and services at safety rest areas except for telephone and vending machines (23 CFR 752.5).
A provision of SAFETEA-LU amended 23 USC 111 by adding subsection (d), permitting idling reduction facilities to be installed at safety rest areas on the Interstate for commercial vehicle use; subsection (d) permitted the charging of a fee for the use of those facilities. However, three years later, this provision was repealed. The Administrator can still approve under 23 CFR 1.23 any noncommercial uses on the ROW if they are in the public interest and will not interfere with the free and safe flow of traffic.
Additional regulations govern the use of the Interstate ROW for utilities (23 USC 109(l) and 23 CFR 645). A utility is determined to be "public" by how a state defines the term under its own laws and regulations as well as whether it meets the Federal definition.8 As defined in Federal regulation, a utility is a "privately, publically, or cooperatively owned line, facility or system for producing, transmitting, or distributing communications, cable television, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with highway draining, or any other similar commodity, including any fire or police signal system or street lightening system, which directly or indirectly serves the public" (23 CFR 645.207). DOTs can accommodate public and private utility facilities within the ROW when such facilities serve the public interest under their approved Utility Accommodation Policy (UAP) Manual or Plan (per 23 CFR 645 Subpart B). The UAP describes practices and procedures for regulating and accommodating utility facilities along, across, or on highway ROW and other transportation facilities under their respective jurisdictions. AASHTO's "Guide for Accommodating Utilities within the Right-of-Way"9 establishes guidelines for states' UAPs, which FHWA ultimately reviews and approves.10
The use of highway ROW to accommodate facilities that will serve private or proprietary interests may also be accommodated; however, it is necessary for them to be approved under the airspace leasing requirements of 23 CFR 710 Subpart D. The right to use the ROW for interim non-highway use may be granted in airspace leases as long as such uses will not interfere with the construction, operation or maintenance of the facility; anticipated future transportation needs; or the safety and security of the facility for both highway and non-highway users.11 The DOT shall charge current fair market value or rent for the use of the land; the income received from airspace leases shall be used for transportation purposes (as specified is 23 CFR 710.403(e)). Federal regulations do provide an exception to charging fair market rent if the DOT shows and the FHWA approves, that such an exception is in the overall public interest for social, environmental, or economic purposes. This exception may be appropriate for activities that address climate change mitigation and adaptation or contribute to improvements in air quality. The FHWA has final approval on leases of airspace on Interstate systems.
On March 27, 2009, FHWA's Office of Real Estate Services and Office of Program Administration jointly issued guidance on the longitudinal accommodation of utilities in the Interstate System ROW.12 The guidance provides an expanded discussion on how 23 CFR Part 645 and 23 CFR Part 710 apply to utility accommodation proposals based on the classification of the facility's intended use.
Whether accommodated under a DOT's approved UAP or through an airspace lease, use of the highway ROW requires some form of written agreement. The terms of the agreement define the responsibilities and authorities of the parties involved, typically the DOT and the utility company. Additionally, the agreement should include provisions governing lease revocation; removal of improvements; adequate liability insurance to hold the DOT and the FHWA harmless; requirements of the utility; and access by the transportation agency for inspection, maintenance, and reconstruction of the transportation facility. The DOT should also have the capacity, policies, and procedures in place to verify the desired operation is progressing as planned and not adversely affecting highway safety and traffic flow.
Finally, each action in the highway ROW that is classified as a major Federal action must comply with the National Environmental Policy Act (NEPA) and other relevant environmental regulations. Federal actions are projects that use Federal funding, require a Federal permit, or require a Federal agency's approval.13 The appropriate NEPA class of action is determined by the significance of the environmental impact of the project under study. Actions in the highway ROW that do not individually or cumulatively have a significant effect on the environment, for example, may be covered under a Categorical Exclusion level document.
In 2003, AASHTO published the "Policy on Accommodation of Utilities within ROW" to encourage the use of a uniform policy under which public and private utilities could accommodate renewable energy technologies in the ROW. State DOT's may need to reexamine their respective policies on the definition of utilities when considering the accommodation of renewable energy technologies and alternative fuel. As such, DOTs have employed different approaches over time. The project team distributed a questionnaire to the 52 FHWA Division Offices to identify and better understand any state-specific policies or regulations governing the accommodation of renewable energy and alternative fuel facilities in highway ROW that may exist. The project team received 42 responses representing 39 Division Offices (including the District of Columbia and Puerto Rico).
According to the responses, 29 states allow for the use of highway ROW to accommodate public utility facilities as noted in FHWA's Guidance on Utilization of Highway ROW. Five other states allow for utilities in highway ROW when certain exceptions are made, such as allowing for telecommunications utilities only (Colorado), utilities on highways but not the Interstate (Nebraska), or the longitudinal placement of high-voltage transmission lines–potentially for compensation–when there is no other practical alternative (Florida).
However, most states (29) also indicated that their UAPs do not characterize renewable energy facilities as utilities in regard to accommodating them in highway ROW. In one state, the definition of the term "utility" refers to the lines used to distribute power, not the means to generate it. In other states, the UAPs do not make distinctions between renewable and non-renewable energy facilities. Some states noted that while renewable energy facilities are not specifically distinguished as utilities in their UAPs, the permissibility of those facilities would likely be open to legal interpretation.14
Nevertheless, fundamentally most states (36) do not have any laws or other requirements that either allow or prohibit the generation of renewable energy within highway ROW. No specific legal authorizations or proscriptions have been given in these states. Of the remaining three states for which responses were received, two have laws allowing for the accommodation of renewable energy facilities in highway ROW while the third has an encroachment policy that may discourage some types of renewable energy technologies, such as wind turbines, within the ROW.
8 The FHWA's Program Guide: Utility Relocation and Accommodation on Federal-aid Highway Projects (6th Edition, January 2003) describes several factors that help determine whether the facility is deemed a "public" or a "private line." In the event that there are questions concerning whether a proponent is a public utility, a legal opinion from the State may be necessary to establish the status of the facility.
9 American Association of State Highway and Transportation Officials. October 2005. A Guide for Accommodating Utilities within Highway Right-of-Way, 4th Edition.
10 The FHWA Program Guide Utility Relocation and Accommodation on Federal-Aid Highway Projects, which is a resource on regulations dealing with matters of accommodating utility facilities and private transmission lines in federal-aid highway ROW, can be found at: www.fhwa.dot.gov/reports/utilguid/index.htm
11 FHWA's Airspace Guidelines to 23 CFR 710.405–710.407, which was issued August 10, 2010, is available at: www.fhwa.dot.gov/real_estate/practitioners/right-of-way/corridor_management/airspace_guidelines.cfm.
12 FHWA's HEPR and Office of Program Administration March 27, 2009. Information: Guidance on Utilization of Highway Right-of-Way. Longitudinal Accommodation of Utilities in the Interstate System Right-of-Way. www.fhwa.dot.gov/real_estate/practitioners/right-of-way/policy_and_guidance/guidutil.cfm
14 In Ohio, the DOT does differentiate between renewable energy facilities and other utilities in describing the former as "alternative energy utilities." Ohio DOT anticipates that the 2011 update to its Utilities Manual will directly address the topic of accommodating renewable energy facilities in the state's highway ROW.