Utility Relocation and Accommodation on Federal-Aid Highway Projects
Chapter 2: Utility Accommodation
It is recognized to be in the public interest for utility facilities to jointly use the right-of-way of public roads and streets when such use does not interfere with primary highway purposes. The opportunity for such joint use avoids the additional cost of acquiring separate right-of-way for the exclusive accommodation of utilities. As a result, the right-of-way of highways, particularly local roads and streets, is used to provide public services to abutting residents as well as to serve conventional highway needs.
Utility facilities, unlike most other fixed objects that may be present within the highway environment, are not owned nor are their operations directly controlled by State or local transportation departments. Because of this, highway authorities have developed policies and practices that govern when and how utilities may use public highway right-of-way. The FHWA utility accommodation regulations have been developed to reflect this situation. A discussion of the development of FHWA policies may be found in the following documents:
- Utility Relocation and Accommodation: A History of Federal Policy Under the Federal-Aid Highway Program, Part II: Utility Accommodation.
- Highway/Utility Guide, Chapter Two, Historical Perspective.
These documents were distributed in 1981 and 1993, respectively. They are important reference sources for those dealing with utility accommodation on Federal-aid projects. A link to copies of these documents may be found on the FHWA's utilities web page at: http://www.fhwa.dot.gov/programadmin/utility.cfm.
The last major rewrite of the FHWA's overall utility accommodation regulations occurred on May 15, 1985, when a final rule was published in the Federal Register. The only significant changes since then occurred on February 2, 1988, July 5, 1995, and November 22, 2000, when amendments to the regulations were published in the Federal Register.
The 1988 amendments dealt with utility use of freeway right-of-way. It stipulated that each State must decide, as part of its utility accommodation plan, whether or not to allow longitudinal utility installations within the access control limits of freeways and under what circumstances. The FHWA retained the authority to approve each State's freeway utility accommodation plan. The State then operates under its plan and decides whether to permit specific utility installations along freeways.
The 1995 amendments brought the definition of "clear zone" into conformance with the definition in the American Association of State Highway and Transportation Officials (AASHTO) Roadside Design Guide, and incorporated an amendment conforming the utilities regulations to the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA).
The 2000 amendments emphasized that the most important consideration in determining whether a proposed facility is a utility or not, is how the State views it under its own laws and/or regulations, and eliminated a confusing provision to clarify the intent that the utility regulations are not applicable to longitudinal installations of private lines.
The following discussions examine the material presented in 23 CFR 645 subpart B on accommodation of utilities.
Applicability (23 CFR 645.203)
There has often been some confusion as to the extent private line use of highway right-of-way is covered by FHWA's utility accommodation regulations.
When the FHWA was developing implementing policies and procedures for utility accommodation, an issue was identified concerning the need for privately owned and used facilities which transport commodities to cross highway right-of-way (e.g., a farmer's water line or an industrial plant's pipeline). Reasons for needing to cross the highway right-of-way might vary. There might be a need by a private entity to expand its operations to the other side of a highway, or there might be a need to restore existing private facilities that would be severed by construction of a highway project.
Recognizing that private line crossings of a highway could be handled in a fashion similar to utility crossings, the FHWA's implementing policies and procedures for utility accommodation provided the States the latitude to include this matter in their utility accommodation policies.
The FHWA intended for its utility accommodation regulations to apply to private lines crossing highway right-of-way, but did not intend for them to cover extensive longitudinal use of highway right-of-way by private lines. The mechanism for handling requests for extensive private line longitudinal use of Federal-aid highways (both freeways and non-freeways) is found in 23 CFR 1.23(c).
Questions may arise as to whether a particular facility is a "private line" or a "utility" (see discussion of "Utility" below). For a borderline case, a legal opinion may well be in order to establish the status of the facility.
Policy (23 CFR 645.205)
Public Interest Finding
Section 645.205(a) is extremely important because it contains the Federal Highway Administrator's finding that it is in the public interest for utility facilities to be accommodated on the right-of-way of Federal-aid or direct Federal highway projects provided certain conditions are met. This finding is required under the provisions of 23 CFR 1.23, and is a prerequisite for permitting non-highway use of the right-of-way of Federal-aid or direct Federal highway projects.
It is important to note that this public interest finding covers only utility facilities. No similar blanket public interest finding has been made to cover private lines, although private line crossings of highway right-of-way may be addressed within a State's utility accommodation policy and have generally been accepted in a manner similar to utility crossings of highways (see discussion of "Private Lines" below).
Even so, extensive private line longitudinal use of highway right-of-way must be handled on a case-by-case basis. In each case it must be shown why it would be in the public interest for private facilities to longitudinally use and occupy public right-of-way for private purposes.
Under 23 CFR 645.205(c), the State is required to control utility use of right-of-way on a Federal-aid project so as to preserve the operational safety and the function and aesthetic quality of the highway facility. The authority for this requirement flows from 23 U.S.C. 116 in that proper maintenance of a highway facility requires, among other things, adequate control over non-highway facilities, such as utilities which may be located within the right-of-way.
Section 645.205(d) was added when the utility accommodation regulations were revised in 1985. This section was inserted not to reflect a change in policy but rather to flag the issue that on some highway projects other Federal agencies may also have legal jurisdiction in determining whether certain uses of the land underlying the highway facility, including occupancy by utilities, are to be allowed.
Definitions (23 CFR 645.207)
The clear zone definition conforms to that in the AASHTO Roadside Design Guide.
The State establishes the clear zone. Recognizing that the clear zone area may vary depending on the type of highway, terrain traversed, and overall road geometric and operating conditions, this section has not attempted to define specific clear zone criteria or standards. This information may be found in the Roadside Design Guide.
Clear zone should be viewed as an essential and integral design feature of a highway project. As such, it should be evaluated and its impact considered as part of the overall project development process. In doing so, the appropriateness of a particular clear zone design may become a legitimate area for discussion and input by the various parties involved in a project. The resulting designation of the clear zone should be appropriately described or delineated in the project documents to assure its continued maintenance (see discussion of "New Above Ground Utility Installations/Clear Zone Policies" below).
For certain requests to place facilities on highway right-of-way care needs to be exercised to determine whether the facility involved is a "utility" or a "private line." This distinction is important because it may impact how the State treats the facility and also because FHWA has different mechanisms for handling its review and approval actions (see "Private Lines" above for more information on private lines).
When determining whether a facility is a "utility" or a "private line" several factors may come into play. The most important consideration is how the State views a particular facility under its own State laws and/or regulations. A secondary, but nonetheless important consideration is the definition of a "utility facility" in section 645.207.
As part of the 1988 rulemaking, the definition of a "utility facility" was expanded to include utility-type facilities that are owned by or dedicated to a governmental agency for its own use. For example, a State may establish its own communication system linking together various governmental offices. The definition was also expanded to include hardware facilities that are part of a utility's physical plant and necessary for the utility's operation.
Particularly within the telecommunication industry, the distinction between a "utility facility" and a "private line" can become blurred at times. Certain situations may be fairly straightforward. For example, a telecommunication line that provides a link between various operating units of a manufacturing company is clearly a "private line," since it is not providing any service to the public. On the other hand, telecommunication lines that are providing long distance service to the general public can be viewed as "utility facilities." However, not all situations are this clear cut and careful judgments may be necessary. Several examples follow:
- A regional telephone company (a recognized public utility) is placing a telecommunication line that connects its own administrative offices around a State. Generally, this line would be considered to be part of the utility's operating plant and, under the definition in the FHWA regulations, it could be viewed as a "utility facility."
- A recognized public utility providing telecommunication services requests a permit to install a line within highway right-of-way. This line will only provide service for a private user with no service for the public at large. The public utility is primarily acting as a contractor to install the line. Under these circumstances, the line would be considered a "private line" because it serves a private corporation, for example, a manufacturing company. However, if the line is for the use of a State or local governmental unit, then under the definition in the FHWA regulations the line would be viewed as a "utility facility."
- A telecommunication company is placing a line that will be available to a select group of users on a lease arrangement basis. Normally, such a facility would be considered a "private line."
General Requirements (23 CFR 645.209)
Right-Of-Way Needs And Utility Use
The FHWA's authority for allowing utility use and occupancy of the right-of-way of Federal-aid and direct Federal highway projects is contained in 23 CFR 1.23. Under the provisions of this section, the State must acquire right-of-way that is adequate not only for the construction of the highway facility but also for its operation and maintenance.
The right-of-way must be devoted exclusively to public highway purposes. However, § 1.23(c) permits certain non-highway uses of the right-of-way which are found to be in the public interest provided such uses do not impair the highway or interfere with the free and safe flow of traffic thereon. As previously discussed above in "Public Interest Finding," such a public interest finding has been made for utilities.
A direct relationship exists between the § 1.23 requirements concerning the adequacy of right-of-way to be acquired and the provisions for permitted non-highway uses. Proposed non-highway uses cannot be of a nature that would negate the general requirement regarding the adequacy of the right-of-way. Therefore, it is implicit in the public interest finding for utility use of the right-of-way of Federal-aid or direct Federal highway projects that there must be adequate space available to locate the utility facilities in a manner that does not interfere with the safe and efficient operations of the highway.
Consequently, when a State intends to permit utilities to use and occupy public highway right-of-way, such potential use should be a consideration in determining the extent and adequacy of the right-of-way needed for the project. Failure to recognize the impact of such use, as well as other uses on private property located adjacent to the public highway right-of-way, may affect the safe and efficient operations of the highway and may result in the acquisition of right-of-way which is inadequate to meet the needs of the highway and the traveling public. For example, little would be gained by acquiring restricted right-of-way and denying its use to certain utilities if these utilities could locate their facilities on private property adjacent to the restricted right-of-way with substantially the same impact on the highway and its users.
Therefore, the issue of adequate accommodation of utilities is a legitimate consideration in the development of highway projects. This is particularly true of land service facilities where the highway user and utility consumer tend to be one and the same.
The concept of considering potential utility uses in the determination of right-of-way needs has been incorporated in § 645.209(a). A corresponding issue then becomes the use of Federal-aid highway funds for the acquisition costs of the needed right-of-way.
Utility use of highway right-of-way is not considered to be a use for a highway purpose. Therefore, Federal-aid highway funds are theoretically not eligible to participate in right-of-way acquired solely for the purpose of accommodating utility facilities in excess of that normally acquired in accordance with standard criteria and procedures. Even so, when a State or locality routinely dedicates or permits a portion of the road and street right-of-way for use by utilities in accordance with established standard criteria pursuant to State law, ordinance, or administrative practice, such right-of-way may be considered eligible for Federal-aid reimbursement as an integral part of the project right-of-way.
New Above Ground Utility Installations/Clear Zone Policies
On Federal-aid and direct Federal projects, new above ground utility installations are to be placed as far from the traveled way as possible, preferably along the right-of-way line. No new above ground utility installations are to be allowed within the established clear zone except in special situations, in which case appropriate countermeasures to reduce hazards shall be used.
As mentioned previously in the "Clear Zone" discussion, the FHWA procedures do not establish specific clear zones. Rather, this is a matter left to the States. The AASHTO Roadside Design Guide is to be used as a guide in helping to determine appropriate clear zone areas. The AASHTO Green Book (A Policy on Geometric Design of Highways and Streets) also provides information concerning horizontal clearances to obstructions.
The following is offered on page 344 of the 1994 Green Book:
The width of the clear zone is influenced by the type of facility, speed, horizontal alignment and embankment slopes. The AASHTO Roadside Design Guide discusses clear zone widths as related to speed, volume, and embankment slope. The Guide may be used as a reference for the determination of clear zones for freeways, rural arterials and high-speed rural collectors. For low-speed rural collectors and rural local roads, a minimum clear zone width of 3.0 m should be provided.
For urban arterials, collectors and local streets where curbs are utilized, space for clear zones is generally restricted. A minimum distance of 500 mm should be provided beyond the face of the curb with wider clear zones provided where possible. Where shoulders are provided rather than curbs, a clear zone commensurate with rural conditions should be provided.
One issue which has arisen concerns the appropriate clear zone for above ground utility facilities on Federal-aid highway projects in urban areas. In particular, there has been a question as to whether or not the Green Book's 0.5 m (18-inch) offset is an established design standard for utility poles on an urban highway with curbs.
For curbed urban highways, the 0.5 m Green Book offset doesn't really have much to do with clear zone. It provides sufficient space for motorists to park next to the curb and open the passenger side door. It allows the State or local transportation department to put signs on utility poles and not have them clipped by trucks. The 0.5 m value should be viewed as an absolute minimum offset but not as a clear zone.
Providing greater offsets is particularly appropriate for utility poles. The Green Book recognizes this in discussing utilities on highway projects. For example, on pages 311-313, it is stated that longitudinal utility installations should be "located on uniform alignment as near as practicable to the right-of-way line."
Clearly, offsets greater than 0.5 m are recommended where the right-of-way is available. This also points out the need to obtain sufficient right-of-way to enable multiple and necessary joint highway-utility usage to occur in a safe and efficient manner.
Additionally, the Green Book states that utilities that occupy the right-of-way of non-controlled access highways should conform to AASHTO's A Guide for Accommodating Utilities Within Highway Right-of-Way. This guide recommends placing ground-mounted utility facilities as far as practical from the traveled way and beyond the clear zone. Where there are curbed sections, the Guide recommends that utilities be located as far as practical behind the face of outer curbs and, where feasible, behind the sidewalks. The Guide does recognize, however, that the placement of utility installations on urban streets with closely abutting improvements are special cases which must be resolved in a manner consistent with the prevailing limitations and conditions.
The AASHTO documents discussed previously are not necessarily presenting inconsistencies. Basically, AASHTO has recognized the importance of locating utilities as near as possible to the right-of-way line. This is the policy FHWA has adopted in its utility accommodation regulations. AASHTO has recommended a minimum offset width of 0.5 m for curbed urban highways but recognizes that greater offsets are desirable. It is expected that the States will develop individual clear zone policies that will strive to obtain the desirable offsets whenever feasible.
Installations On Freeways
Section 108(I) of the 1956 Federal-Aid Highway Act (now 23 U.S.C. 109) provided that "the geometric and construction standards to be adopted for the Interstate System shall be those approved by the Secretary of Commerce in cooperation with the State highway departments." As a result, the Geometric Design Standards for the National System of Interstate and Defense Highways were adopted by AASHTO (then AASHO) on July 12, 1956, and were accepted by FHWA on July 17, 1956. These standards provided for full control of access on all sections of the Interstate system. Access control was, and continues to be, recognized as one of the most significant design features contributing to the safety of a freeway system and was considered an essential element in preserving the traffic carrying capacity of these important highways.
Highway officials also recognized that control of access could be materially affected by the extent and manner in which utilities were permitted to cross or otherwise occupy the right-of-way of Interstate highways. It was agreed that in order to be able to effectively carry out the intent of the highway legislation, a uniform national policy should be developed to establish the conditions under which publicly and privately owned utilities could be accommodated on Interstate right-of-way.
Thus, in 1957 AASHTO began the task of establishing such a national policy. In developing this policy, AASHTO arranged several meetings with national utility organizations and groups so that utility industry input could be taken into consideration. Finally, in 1959 AASHTO issued its document, A Policy on the Accommodation of Utilities on the National System of Interstate and Defense Highways, and the FHWA accepted the AASHTO policy as a design standard for Interstate highway projects.
The primary objectives of the AASHTO policy were -
- developing and maintaining access control;
- increasing highway safety and function to the maximum; and
- insuring uniformity of utility treatment among the States.
The AASHTO policy recognized the need for utility installations to cross over or under the Interstate right-of-way, as it was not intended for the Interstate to be a barrier to obstruct the development of expanding areas adjacent to the freeway.
Most important, the policy was viewed as strongly discouraging longitudinal utility use of Interstate right-of-way within the access control lines. However, the policy did not establish an outright prohibition of such use, as it was recognized that "extreme case exceptions" might be allowed when the conditions encountered were extraordinary and costly.
Over the years AASHTO reevaluated its position regarding utility use of Interstate right-of-way. The Policy was reissued in 1969 and in 1982 and was expanded to cover all freeway-type facilities. In each instance, the FHWA followed by adopting the AASHTO Policy for use on Federal-aid highways. In both 1969 and 1982 AASHTO reaffirmed the basic principles and policies it had been following in regard to utility use of freeway right-of-way.
The Surface Transportation Assistance Act of 1978, and the technical amendments that later followed, added § 109(l) to 23 U.S.C. This section specifically addressed the issue of utility use of highway right-of-way. It provided that utility use of the right-of-way on Federal-aid highways should not be permitted if such use would "adversely affect safety," and emphasized that highway and traffic safety were of paramount importance when considering the accommodation of utility facilities within highway right-of-way. However, this section also recognized that there could be adverse impacts resulting from not permitting such use, and it required that certain environmental and economic impacts be evaluated and considered in the denial of the use of Federal-aid highway right-of-way for utility facilities. The 1982 AASHTO Policy reflected these concerns and provided for their consideration in the decision-making process.
By the mid-1980s some State authorities and others were questioning the more restrictive provisions of the AASHTO and FHWA policies, particularly regarding longitudinal utility occupancy of freeway right-of-way. Some believed that certain types of utilities could be permitted to longitudinally use freeways with very little adverse impact on the freeway systems. In consideration of these views and concerns, the FHWA agreed that a more flexible Federal policy position would be appropriate.
Effective February 8, 1988, the FHWA modified its regulations regarding utility installations within freeways (see § 645.209(c)). The revised regulations no longer mandated that the States adhere to the AASHTO Policy. Instead, each State was given the flexibility to adopt its own freeway utility accommodation plan, one that was best suited to its needs and conditions.
In turn, AASHTO revised its policy covering utilities within freeway right-of-way in February 1989. This revised AASHTO policy was generally consistent with the FHWA's regulations in many respects, but continued to prohibit longitudinal utility installations on freeway right-of-way, except in special cases under strictly controlled conditions. For this reason, the FHWA opted not to adopt the AASHTO policy as a Federal standard.
Freeway Accommodation Policies
Prior to the FHWA's regulatory change in February 1988, each State, as part of its overall utility accommodation policy, was required to address transverse utility crossings of freeways and how they were to be controlled. Once a State's policy was approved by the FHWA, the State could then approve individual utility requests for transverse freeway crossings without any further referral to the FHWA provided the crossings satisfied the criteria in their approved policy. For longitudinal utility use of freeways, the States were required to adopt a position at least as restrictive as that in the then current AASHTO Policy. Hence, prior to 1988, the only longitudinal installations allowed on freeways were extreme case exceptions under provisions in the AASHTO Policy, and each individual request had to be approved by the FHWA.
Subsequent to the FHWA's 1988 regulatory change, each State was required to update its utility accommodation policy and include its own policy for permitting utility use of freeways, including longitudinal use if such use was to be allowed.
The States had to decide if they wanted longitudinal utility installations on freeways and if so to what extent and under what conditions. Whatever a State decided to do in this regard had to be documented in its utility accommodation policy and submitted to the FHWA for approval. A State could permit certain utilities and exclude others. And, if a State so chose, it could prohibit any longitudinal utility installations.
All the States are now operating under freeway utility accommodation policies that have been approved by the FHWA. Many States opted to stick with the AASHTO Policy prohibiting longitudinal utility installations, except in special cases under strictly controlled conditions. The States that opted to allow longitudinal installations no longer have to submit individual proposals to the FHWA for approval. It has become their responsibility to assure that proposals are in accord with provisions in their approved utility accommodation policies.
Exceptions to these policies, or changes, must be submitted to the FHWA Division Administrator for approval. In substance, this places all utility freeway installations under the same administrative process that other utility use proposals have been under since the late 1960s.
In summary, FHWA policy for longitudinal utility installations on freeways is as follows:
- The States may decide if they want to allow longitudinal utility installations on freeways and if so to what extent and under what conditions.
- Whatever a State decides to do in this regard must be documented in its utility accommodation policy and approved by the FHWA. Exceptions or changes must be approved by the FHWA Division Administrator.
- A State may permit certain utilities and exclude others. If a State so chooses, it can prohibit any longitudinal utility installations.
- Fees charged for utility use are at a State's discretion and may be used as the State sees fit. The FHWA does, however, encourage States to use generated revenues for transportation purposes.
In approving a State's freeway utility accommodation policy, the FHWA must give careful consideration to measures proposed to insure safety of the traveling public, and features to protect the operation and integrity of the highway. Effects on both the present and future use of the freeway must be considered.
The FHWA recognizes that conditions vary. Highway safety matters are not the same on a low volume rural freeway as on a high volume urban one. Considerable latitude may be appropriate on these rural facilities. The nature and type of utility facilities may also differ from area to area. All these variables must be taken into account. It is noted that there is no such thing as an absolutely safe utility installation. The construction, operation and maintenance of any utility on or near a major high speed highway cannot be done without some risk. Judgment must be exercised by highway authorities in determining if the risks are acceptable and whether all reasonable measures have been taken to maximize the safety of the traveling public.
The FHWA regulation presented in § 645.209(c)(2)(v) includes a few details governing specific criteria a State's utility freeway accommodation policy should contain if it plans to allow longitudinal utility use within the access control lines. These are:
- A utility strip should be established along the outer edge of the right-of-way.
- Existing fences should be retained and, except along section of freeways having frontage roads, planned fences should be located at the freeway right-of-way line.
- The State or political subdivision should retain control of the utility strip, including its use by utility facilities.
- Service connections to adjacent properties to provide services to utility consumers should not be permitted from within the utility strip.
Federal regulations indicate that a utility strip should be established along the outer edge of the right-of-way. The FHWA has interpreted this to mean that longitudinal utility installations as a general rule should not be allowed within the median area of a freeway. There may, however, be some exceptional circumstances where utility facilities could be safely accommodated in the median. For example, for very wide medians where a utility could be installed well beyond the clear zone of the roadways and where access to the site is from crossroads, a case could well be made that there is minimal impact on the highway and its safe operation.
Another example might involve the installation of fiber optics needed for ITS purposes. In situations where it is not technically feasible or is unreasonably costly and there are no feasible alternate locations, it may be argued that the risk involved constructing, operating, and maintaining a fiber optic installation will be more than offset by the benefits derived by ITS and other systems that the fiber optic facilities will serve.
Hence, proposals by States for a median installation under these circumstances, if considered justified, may be approved by Division Administrators as an exception to the State's approved utility accommodation policy under the provisions of § 645.215(d).
Access To Utility Facilities (Including Gates)
If a State allows utility facilities to longitudinally occupy freeway right-of-way within the access control lines, its utility accommodation policy must address access to construct, operate and maintain these facilities. The nature and extent of the access, including possible direct access from through roadways or ramps if allowed, and conditions for controlling and policing access should be covered in the State's policy. The State's policy on access should demonstrate that the State has taken adequate steps to ensure the permitted utility use, including access to construct, operate and maintain the utility facilities, can be accomplished in a manner that will not adversely affect the safety of the freeway.
The FHWA's approval of a State's utility accommodation policy is viewed as representing FHWA acceptance of the State's freeway access approval and control process (this could include locked gates, direct access from through roadways, etc.) as covered in the State's policy. No further submittal to FHWA on these matters would be necessary except in those instances where the proposed access is not in accord with the State's approved policy. In these cases, FHWA action on exceptions involving access can be handled under the provisions of 23 CFR 645.215(d) similar to other exceptions to a State's policy.
If a utility wants to make use of gates for access to its facilities, the following conditions are typically used in this situation:
- Access to and from the freeway will be on the basis of a revocable permit.
- The gates must be locked when not in use and can only be used by authorized utility personnel.
- Use must not adversely affect traffic operations;
- Use will not give the utility a claim to permanent access rights.
Uniform Policies and Procedures
Section 645.209(d) requires State transportation departments to control utility use of Federal-aid highway right-of-way within the State and its political subdivisions. This is to be done by exercising, or causing to be exercised, adequate regulation over such use and occupancy through the establishment and enforcement of reasonably uniform policies and procedures for utility accommodation.
The term "highway" is defined in § 645.207 to mean any public way for vehicular travel constructed or improved in whole or part with Federal-aid highway funds. Hence, there is a distinction between highways actually constructed or improved using Federal-aid highway funds, and highways eligible for construction or improvement with Federal-aid highway funds.
Even though States may only be required to regulate utility use on highways where Federal-aid highway funds have been used, as a practical matter it is difficult for them to adopt one policy for Federally funded highways versus a different policy for adjoining State funded highways. As a result, States normally adopt a utility accommodation policy that covers highway routes under their jurisdiction as a group.
Utility Use Where State Lacks Authority
Under § 645.209(g), for Federal-aid projects on highways where the State cannot exercise authority to control utility use of the highway right-of-way, the State is required to make adequate arrangements to ensure that utility use of the highway right-of-way is properly controlled. Typically this situation arises on roads off the State's system, such as those under county or city jurisdiction; however, it can also occur for roads that may be under the jurisdiction of another State level entity such as a toll road authority. In these situations, the local or toll road authorities have the option of developing their own utility accommodation policies but this is rarely done. Rather, the approach used is that the State/local or State/toll road agreement for the Federal-aid highway project will make reference to the State's utility accommodation policy and its application to the local or toll road project.
This is one area of utility accommodation that requires continued attention. If a State's utility accommodation policy will, in effect, serve as the document controlling utility use of right-of-way on highways under the jurisdiction of others, particularly on local Federal-aid projects, it is important that the State's policy include provisions to adequately address utility use on these types of roadway facilities. It is also important that these other highway authorities are not only aware that the State's policy is being used, but are familiar with the requirements to be applied.
Section 645.209(h) maintains the same basic philosophy of not permitting the installation of utilities on highways within or adjacent to scenic areas except under special conditions. However, the method of administering this requirement was revised in 1985.
Under former PPM 30-4, if utility use was to be allowed in scenic areas under special conditions, the State was required to clear this matter through the Division Administrator. Sections 645.209(h) and 645.211(c)(3) change this process. Now the State is allowed to address the scenic areas issue, including special conditions under which exceptions will be allowed, within its utility accommodation policy. Thus, FHWA's acceptance of the State's utility accommodation policy should eliminate the need for clearance of individual exceptions through the Division Office.
Additionally, under former PPM 30-4.1, a mechanism was established for so-called hardship cases involving scenic areas. This process required a submittal to the Federal Highway Administrator, but none were ever made. As a consequence, when 23 CFR 645 was issued in 1985, this hardship procedure was not included. Should a need arise in the future to process a hardship type request involving scenic areas, it could be handled under 23 CFR 645.215(d) as a situation not in accordance with the State's approved policy. The FHWA's decisions on the matter can be made at the Division Office level.
Traffic Control Plan
This provision was included in 23 CFR 645 to highlight the importance of having proper traffic control within utility work areas. It is not a new requirement since 23 CFR 630 subpart J, Traffic Safety in Highway and Street Work Zones, has been in place many years and covers utility construction and maintenance work activities on Federal-aid projects.
Under § 645.209(j) it is intended that the transportation department maintain control over the process of providing proper traffic control devices in work zones. Designation of who is to prepare a traffic control plan and who is to provide the necessary traffic control devices is to be determined by the transportation department under the its own established procedures.
Corrective Measures/Utility Pole Safety Programs
Section 645.209(k), reads as follows:
When the transportation department determines that existing utility facilities are likely to be associated with injury or accident to the highway user ... the highway agency shall initiate ... in consultation with the affected utilities, corrective measures ...
The intent of this regulation is for each State to work with pole owners to develop and implement programs to systematically remove, relocate, or mitigate hazardously-located utility poles in a reasonable, cost-effective manner.
A utility pole crash reduction program as envisioned in the Federal regulations should contain the following essential elements:
- Identification of hazardously-located utility poles.
- Analysis of hazardously-located poles and development of countermeasures,
- Establishment of a goal for removing, relocating, or mitigating hazardously-located utility poles.
- Actual removal, relocation, or mitigation of hazardously-located utility poles.
Ideally, the clear zone should be free of utility poles. Where poles exist in the clear zone, or where an analysis has shown that an existing pole located outside the clear zone may need treatment, many options are available. The following list has generally been considered as the desirable order of treatment:
- Remove the pole and underground the utility lines;
- Relocate the pole to a location where it is less likely to be struck;
- Reduce the number of poles by joint use, placing poles on only one side of the street, or increasing pole spacing by using bigger, taller poles;
- Reduce impact severity by using breakaway utility poles;
- Redirect a vehicle by shielding the pole with a longitudinal traffic barrier or crash cushion; and
- Warn of the presence of the pole if the alternatives above are not appropriate using warning signs, reflective paint, sheeting, or object markers placed on the poles.
There is also the possibility that keeping the driver on the road is the best solution to a crash problem. This may be done by positive guidance. For example, using pavement markings, delineators, advance warning signs, and other visual cues to tell the driver what to expect and to provide a visual path through a site. Physical enhancements such as improving the skid resistance of the pavement, widening the pavement travel lanes, widening or paving shoulders, placing rumble strips on the shoulders, improving the superelevation, straightening sharp curves, decreasing the speed of vehicles, or adding lighting in areas where crashes frequently occur at night, may also diminish crash potential by decreasing the number of vehicles that for whatever reason leave the travelway.
Once specific corrective actions have been determined, it is expected implementation will be pursued through a prioritization process which takes into account resources available, replacement and upgrading planned both for the utility and highway physical plants, and overall accident potential.
To be effective this corrective program must be a joint effort between highway authorities and the affected utilities. It is strongly encouraged that the utility companies work closely with the transportation departments in identifying problem areas and establishing schedules for corrective actions. Such schedules should take into consideration, wherever possible, a utility's planned activities on line upgradings, replacements, and the like. An orderly, planned, effective process of safety improvements over time that would take into consideration the costs to both the highway user and utility consumer is preferred.
The Washington State Department of Transportation (WSDOT) has a model utility pole safety program. It was developed and implemented in coordination with the affected utility pole owners. The Division Office provided invaluable encouragement and assistance. WSDOT considers the most hazardously-located utility poles to be those that are: (a) outside of horizontal curves where advisory signed speeds for the curve are 15 mph or more below the posted speed limit of that section of highway; (b) within the turn radius of public at-grade intersections; (c) where a barrier, embankment, rock outcropping, ditch, or other roadside feature is likely to direct a vehicle into a utility object; or (d) closer than 5-feet horizontal beyond the edge of the usable shoulder. A goal has been established for removing, relocating, or mitigating a certain number of hazardously-located utility poles each year. This goal applies to each company owning utility poles and takes into account the size of the utility company, the number of poles in need of attention, available funding, and other factors. Hazardously-located utility poles may be removed, relocated, or mitigated in conjunction with planned highway or utility projects or individually. All utility poles removed, relocated, or mitigated, for whatever reason, count toward the utility company's goal. Efforts are made to systematically address the worst poles first.
Since most hazardously-located utility poles are on highway right-of-way, State law in most States requires the owner of the poles to pay for removal, relocation, or mitigation. If, however, the State can pay and does pay, Federal funds can participate in the cost, even up to 100 percent in some cases.
A strong case can be made for moving utility poles if they are located so as to present a significantly greater threat to motorists than anything else along the road. But, if they are not, States should not ask the utility pole owners to do any more to improve roadside safety than they plan to do themselves.
Questions can arise as to the amount of corrective actions regarding utility facilities that should be undertaken as part of 3R (resurfacing, restoration, rehabilitation) projects. Overall, the FHWA has encouraged and supported efforts by each State to develop and implement reasonable and effective clear zone policies consistent with the principles set forth in the AASHTO Green Book (see above discussion of "New Above Ground Installations/ Clear Zone Policies").
In this respect a number of States have adopted individual 3R project design criteria that specifically addresses the clear zone issue. Considerable judgment must be exercised in actually establishing clear roadside areas on individual 3R projects to ensure that the safety benefits are reasonably commensurate with costs. Consideration should be given to this matter regardless of who pays for the utility work.
As clarified by FHWA's July 1988 final rule, which modified 23 CFR 645.107, costs incurred by transportation departments in implementing projects for safety corrective measures to reduce the hazards of utilities to highway users are eligible for Federal-aid participation.
There has been concern that FHWA's utility regulations might be used by some as a basis for authority for allowing placement within highway right-of-way of structures or facilities to drain adjacent wetlands. Section 645.209(l) was specifically added to address this issue. The section clearly states that the installation of private lines on the right-of-way of Federal-aid or direct Federal highway projects to drain adjacent wetlands is inconsistent with Executive Order 11990, Protection of Wetlands, and is to be prohibited.
The 2000 amendments added paragraph (m) to 23 CFR 645.209 to emphasize that in determining whether a proposed installation is a utility or not, the most important consideration is how the State views it under its own State laws and/or regulations.
This determination is important because utilities are accommodated under the utility regulations; whereas, private lines and other non-utilities are accommodated under other regulations. As in many utility-related matters, the FHWA definition of "utility facilities" is broad enough to cover most situations, but nonetheless, in States where the State definition is more restrictive, or sometimes more liberal, than the FHWA definition, the FHWA will normally look upon it in the same manner the State does.