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Avoiding Utility Relocations
II. Historical Framework
II.1 Use of Right-of-Way for Utilities
Utility owners and operators (utilities) have been constructing, operating, and maintaining utility facilities within and adjacent to the public right-of-way (ROW) of streets and highways since the late 1800s. Beginning with the urban distribution of basic municipal facilities (water, sewer and power), technology and demand have evolved to include natural gas, communications, and cable television facilities as well, within almost every local street in the country. As growth expanded, and continues to expand, transmission of utility services between urban cities and towns, and to outlying rural areas now routinely involves utilities in the public ROW.
For the utility company, dealing with a single entity such as a municipality or State Department of Transportation (DOT) can be more efficient than dealing with a myriad of private property owners. Property rights (ROW or easement), frontage to service customers, and access for facility maintenance are coincidental with the street or highway, potentially reducing the utilities required project investment in both time and money. As savings realized by the utility may reduce the end cost to the customer, it is generally considered in the public’s best interest to allow utilities to occupy right of way, and utilities have been given some level of ROW privilege in all states.
Utilities, whether occupying the ROW by permit, easement or other property right, are responsible for the operation and maintenance of their particular facilities and not the public road which they occupy (except for damage to the road caused by the utility). The governing agencies, having the responsibility to maintain the rights-of-way of streets and highways to preserve the integrity, operational safety, and function of the transportation facility, are thus charged with the regulation of the activities of utilities within the public ROW.
More than 90 percent of the highways currently in use in the United States were built prior to 1950 (Highway Utility Guide, FHWA, June 1993). Many of these roads have insufficient ROW for the expansion needed to satisfy the tremendous growth of traffic and the proliferation of basic and increasingly sophisticated utility services in this country. Connectivity through buried fiber optic cables is being viewed as a necessity to moving large files and amounts of data around the country. Each utility company has its own network and is laying cable to expand the network as fast as possible. The underground environment has become increasingly congested as more and more utilities compete for limited space within and adjacent to the ROW.
As demand for the finite space in existing ROW increases, the difficulty and cost of adding new utility facilities and relocating existing utility facilities also increases. Just as significant is how utility service interruptions may add to public discontent with overall highway construction. It is therefore essential for planners, designers, and builders of street and highway projects to avoid unnecessary utility relocations. The first step in this process is to recognize the problems facing highway agencies and utility owners in resolving utility conflicts and avoiding utility relocations.
II.2.1 Property Interest
The premise of utility relocation is that the utility bears the financial burden unless they have a legal property interest (fee title, easement, prescriptive right, long term lease) in the land their facilities occupy that is preemptive to the ROW interest of the highway. Fee title interest is when the utility actually owns the land, which is typically associated with utility service centers, base of operations, or plant generating stations. Along active and proposed highway corridors, the most common form of property interests are easements. Easements are typically located adjacent to existing ROW, or are within an area proposed for new ROW, and are granted to the utility by the property owner. Prescriptive rights and long term leases are the least common forms of property interest. When utility relocation is involved, the utility must normally provide the burden of proof to the agency regarding its property interest.
If a utility has a proven property right, then the agency must reimburse the utility for the cost of any relocation, or other accommodation required as a result of the road project. The utility would, however, be required to release their property interest to the State upon relocation. The State, since it would pay, puts a priority on avoiding relocation and acquiring additional ROW to accommodate the utility in order to keep its project costs down.
When the utility facilities occupy the ROW of existing streets and highways, it is usually under a permit or franchise agreement with the governing agency. This gives the State or municipality the power to force relocation, with the cost of relocation, including any private easement acquisition, borne by the utility. In this case, the agency, although cognizant of relocation impacts and costs, is not as concerned with avoidance strategies as they would be if reimbursing. Consequently, there is often a lack of project coordination between the agency and the affected utilities, resulting in unnecessary relocations or undiscovered conflicts, the burden of which, although generally placed on the utility, inevitably impacts the project cost and schedule. Just obtaining required easements on private property is a costly and time-consuming exercise for the utility. Even if the utility has the power of eminent domain, it is not as comprehensive as the State’s. If the utility is not informed of the relocation early enough in the process, easement acquisition alone can cause delay and, when combined with the cost of the actual relocation, can have a significant financial impact to the utility and its customers.
In the case of permits or franchise agreements, the costs of relocations can be reimbursable, depending on the laws of the given State. According to the Code of Federal Regulations, title 23, Federal funds are available for all phases of utility relocation on Federal aid projects, regardless of the utilities’ property interest. The State, however, must pay for the cost of relocation from its own funds and be the entity to be reimbursed with Federal funds. It is, therefore, up to the States to pass legislation to include utility relocation reimbursement for their highway projects.
II.2.2 Quality of Records
Probably the most frustrating problem the designer encounters is knowing that there are utilities in the area and not being able to locate them. Unless existing utilities are “positively located” (pot-holed), or “designated” by surface geophysical methods, the highway designer must rely on utility records and as-built plans to determine the location of existing utilities within the project corridor. The utility owners must also rely on these same records, both their own and those of other utilities and agencies, to provide the highway designer with the location of their facilities or to perform facility maintenance or expansion operations. There are many different types of records, both public and private, contained on as many different formats (paper, mylar, maps, books, electronic, etc.), containing diverse types of detail (location, depth, material, size, slope, etc.). The main difference among these records is quality. Combining data collected from various record sources usually results in all information being portrayed the same; at the lowest common denominator of quality. The lack of a common platform or shared database on which to collect, report, and disseminate records also makes the search for records time-consuming and often incomplete.
II.2.3 Readability of Plans Sent to Utilities
Wisconsin DOT, in a memorandum published in the “WisDOT Guide To Utility Coordination,” reports receiving numerous complaints from utility companies that the plans that are being sent by the DOT are of poor quality and it is difficult for them to determine if their existing facilities are in conflict with the proposed construction. The main reason stated for this is the reduced plan size (11”x17”) typical of most DOTs. If the utility locations are hard to read on the original large plan sheets, they are virtually impossible to see when the plans are reduced. Another reason stated was poor reproduction quality. Existing facilities which are screened do not show up well when the printed copy is lighter than it should be due to low toner or an improper setting.
Solutions to this problem include providing the utility with special plans that contain enhanced graphical resolution of existing utilities, providing the utility with large size plan sheets, and providing the utility with the electronic plan file.
II.2.4 Reliance on Institutional Memory
There is a crisis in the highway industry that will be difficult to solve. The institutional memory is being lost. Through reduced budgets and a general aging of the staff members in the agencies, the “old guard” is retiring. Over the past few decades, hiring freezes were imposed on agencies and these freezes, in conjunction with normal retirements, have created a void between the senior experienced people and the new entry-level personnel. There are no mid-level people who would be the heirs to valuable planning and design practices, which was in the memory of the senior individuals.
II.2.5 Communication and Coordination
Lack of effective communication and coordination between the agency (DOT or municipality), and utility owner/operators is a recognized problem. Every agency has some form of long-range transportation master plan based on the projected needs of future growth. Typically these master plans are distributed among government agencies and discussed at public meetings. Limited staffing makes it impossible for utility companies to attend all the public meetings for projects within their service territories. The utilities are not being routinely provided with master plans and meeting agendas so that they can determine which projects are most important and then allocate the necessary resources for attending the important meetings. Furthermore, poor advance planning can result in multiple relocations of the same facilities due to all phases of a highway expansion not being identified on the master plan.
Effective January 1980, the Florida Department of Transportation (FDOT) established a policy for adequate and effective liaison practices between the department and other entities such as local governments and utilities. In spite of the existence of this policy, a 1996 study by the State of Florida’s Office of Program Policy and Government Accountability (Report 95-30), identified poor communication and coordination between FDOT staff and other entities as the second major factor contributing to FDOT construction project cost overruns and delays. About 30% of the study cases involved coordination problems with utilities, most often resulting in extra work to locate and move utility lines impacted by the projects. A 1998 follow-up report (Report 98-24) indicates that FDOT should continue improving its efforts to coordinate with third parties to identify existing utilities and incorporate design alternatives as plans are developed to minimize cost overruns and delays due to making design changes and unplanned utility relocations during construction.
Wisconsin has a State law that was enacted to prescribe minimum utility coordination requirements in order to prevent utility relocations from delaying highway projects [Sec. 84.063, Wis. Stats. Utility Facility relocations and related Administrative Rule Trans 220]. This law, among other things, requires the Wisconsin Department of Transportation (WisDOT) to provide utility companies with a notice of proposed highway improvements and preliminary plans as early in the development of highway projects as possible. Within a reasonable time, usually about 60 days, utilities are to respond to the notice and provide a description of facilities in the vicinity of the improvements, including specific reasons or needs for those facilities to remain in place or be relocated. After each utility responds to the notice, WisDOT must mail each utility at least one set of preliminary plans. These plans must show all existing utility facilities known to WisDOT in areas where they will conflict with the improvements. More details and other legislative requirements may be found under Trans 220 at: http://www.legis.state.wi.us/ rsb/code/trans/trans.html.
FDOT and WisDOT are certainly not alone, and despite the lack of similar studies in other states there is enough personal experience in the state highway design departments and the construction and utility communities across the country to verify that poor communication and coordination is a measurable contributor to construction problems.
The FHWA has developed and distributed a video entitled “CCC: Making the Effort Work!” This 19-minute video is based on the research and recommendations contained in AASHTO Utility Guidelines and Best Practices. It is designed to inform highway agencies and utilities of actions they can take toward avoiding construction delays and reducing or eliminating unnecessary project costs, and to motivate them to work in partnership with each other toward this common goal. Information for obtaining copies of this video can be found on the FHWA web site at: https://www.fhwa.dot.gov/programadmin/utility.html.
II.2.6 Technology to Locate Utilities
Although many geophysical methods currently exist to designate buried utilities successfully, there is no one piece of equipment capable of detecting all types of utilities in a given location, and many of the methods are further constrained by soil conditions, depth of burial and proximity to other utilities. The current technology thus makes it necessary to have a variety of equipment on hand and the trained staff to use it, economically limiting the in-house capabilities of any DOT or utility. The use of a Subsurface Utility Engineering (SUE) provider becomes the most economical solution as they specialize in the equipment and training necessary for all project conditions. The technology is at hand for refinement of current designating devices for increased accuracy and a broader range of material detection, under a variety of soil conditions, under a variety of installations. As the technology increases however, so does the level of training required to utilize the equipment and interpret the results, therefore it is likely that SUE professionals will continue to remain the best choice for application of the designating technology of the near future.
II.2.7 Abandoned Facilities
Abandoned facilities represent out of service utilities that have been abandoned in place. Abandoned facilities are generally of unknown origin which is attributed to either a lack of records indicating their presence, or the original owner being out of business or otherwise unavailable to participate in the locating effort. Abandoned facilities may sometimes still contain product, and when found, create a potentially hazardous, definitely precarious situation to deal with. Encountering an abandoned facility during construction can mean a major delay to identify, remove, or seal the facility. Abandoned facilities, existing in close proximity to active facilities, can be marked as active and vice-versa leaving the active facility vulnerable to potential damage. Abandoned facilities must be identified in the design stage so that ample time may be allocated for discovery of the ownership and contents of the facility. Unless there are surface features (picked up on topographic survey) to indicate their presence, abandoned facilities are not typically discovered in the design stage unless a SUE investigation is performed as part of the project mapping.
II.2.8 Joint Use Trench Liability
The issue of joint use (common) utility trenches involves the sharing of a trench by two or more utilities. In a common trench application, different utilities are separated vertically according to the affected utility standards, with multiple lines of the same utility separated horizontally on the same vertical level. The two most frequent examples of common trenches include gas / water, and electric / telephone / cable TV. Municipal and private utilities are never in a common trench with each other.
Common trenches make effective use of space where ROW is limited and are therefore utilized often as a design option. The designer, whether employed by the highway agency or the utility, should be cognizant of the following problems associated with the use of joint trenches:
- Typically, the facilities installed in common are owned and operated by different companies. Since these companies perform independent operation, maintenance and repair activities, additional risk and liability to both parties is assumed in protection of the other’s facilities during these activities. The utility companies should seek legal counsel and negotiate an agreement between them regarding this liability. In any case, the highway agency should require a hold harmless agreement in favor of the agency for any joint installations mandated by the highway project.
- Positive location of the lower utility by either geophysical methods or by potholing can be difficult. It is important that as-built drawings of each respective utility show the other’s facilities in common trench for future identification.
- The most cited problem with common trenches is improper field installations resulting in less than minimum clearances between facilities. This compounds the risk and liability issue. The designer must insure that the project PS&E specify the proper installation, and that the construction inspection enforces compliance by the constructors. The more frequently that the trenches are properly installed, the more willing utilities will be to utilize the option.
II.3 FINANCIAL IMPACTS
II.3.1 Cost for Relocation
Utility relocation, as required for highway construction and rehabilitation, is inherently a costly item. As previously stated, relocation costs can be borne by either the utility or the highway agency, depending on the utility’s property interest and the State’s utility accommodation laws. In either case, the cost is ultimately borne by either a ratepayer or a taxpayer, who are one and the same person, so to truly serve the public, the agency should attempt to avoid relocations whenever possible, whether or not it is reimbursable. Since 1983, New Jersey DOT has been reimbursing for all public utility relocations (utilities that are regulated by the public utilities commission), as well as reimbursing private utilities with property interests. The NJDOT utility department estimates utility reimbursement at approximately 10 percent of the State’s annual highway budget, with DOT personnel dedicated to coordinating with utility companies comprising approximately 5 percent of the highway design budget.
The costs of utility relocation increase significantly when not planned for well in advance, especially if discovered after construction begins. The utility company must have time to prepare construction drawings, obtain the required materials for the relocation, and mobilize its forces for traffic control and construction. Most often, the utility is required to relocate prior to mobilization of the highway contractor and this can’t occur if the conflict is unknown to project designers. Once the highway contractor is mobilized, any delay to the contract schedule, through no fault of the contractor, constitutes a contract change order claim. In addition, work that the contractor may do involving the actual relocation would also be a change order claim, to be paid at the contractor’s cost plus profit and overhead. If identified during design, the relocation could have been included in the bid price and schedule, or possibly even avoided.
II.3.2 User Costs
User costs are the great unknown in calculating costs of a highway project, both on a first cost basis and on a life-cycle cost basis. What are the fuel costs involved with congestion caused by lane closures? What costs are incurred by businesses in the form of lost revenue when access to their businesses are impeded by rehabilitation activities? What are the costs incurred by ratepayers as a result of temporary loss of service and unnecessary utility relocation? What are the costs to the State when public opinion opposes frequent highway construction? Although these costs are difficult to quantify, the fact is that they are real.
One of the drivers for avoiding utility relocations is the reduction of user costs due to delay. A common practice is for State agencies to require utilities to relocate prior to the commencement of highway construction. The traveling public sees lane closures and congestion during the relocation work and then suffers again through the actual highway construction. The public does not understand the process. They want a maximum service facility with a minimum of disruption. The pressure to reduce or eliminate such delays in congested corridors is growing. Agencies such as Florida Department of Transportation now require a permitted Maintenance of Traffic (MOT) for highway utility work to minimize traffic disruption. NJDOT schedules the utility work to occur either using the highway contractors own forces, or at least in conjunction with the highway contractors traffic control operations.
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