2023 New York Laws › ENV - Environmental Conservation › Article 9 - Lands and Forests › Title 21 - Forest Preserve Health and Safety Land Account and Public Utility Improvements › 9-2103 - Highway Right of Way Public Utility Improvements.

§ 9-2103. Highway right of way public utility improvements.
1. Definitions. For purposes of this section:
a."county   highway"  shall  have  the  same  meaning  as  defined  in
subdivision four of section three of the highway law.
b. "eligible project" shall mean burial or  co-location  of  a  public
utility  line  or  construction  and  maintenance  of bicycle paths by a
project sponsor within the width of a highway of a town highway,  county
highway or state highway that traverses state forest preserve land.
c.  "project sponsor" shall mean a village, town, a county, located in
the counties of Clinton,  Delaware,  Essex,  Franklin,  Fulton,  Greene,
Hamilton,  Herkimer,  Lewis, Oneida, Saratoga, Saint Lawrence, Sullivan,
Ulster, Warren and Washington or, for:
(i) bicycle paths, the department of transportation,
(ii) for water lines, a public water supplier; or
(iii) for electric, telephone or broadband  lines,  a  public  utility
company.
d.  "public  utility company" shall have the same meaning as such term
is defined in section two of the public service law; provided,  however,
that  for  broadband  projects a person subject to article eleven of the
public service law shall be included.
e.  "public  utility  line"  shall  mean  only  electric,   telephone,
broadband, water or sewer lines, including any necessary conduit used to
protect   such   lines.  Public  utility  line  shall  not  include  the
construction of any new intrastate natural gas  or  oil  pipelines  that
have   not   received   all   necessary  state  and  local  permits  and
authorizations as of June first, two thousand sixteen.
f.  "public  water  supplier"  shall  mean  a  county  or  town  water
improvement district, village, New York city, public benefit corporation
or  public  authority established pursuant to state law and empowered to
construct and operate a municipal water management facility, as  defined
in section twelve hundred eighty-one of the public authorities law.
g.   "state  highway"  shall  mean  a  state  highway  as  defined  in
subdivisions one, two and three of section three of the highway law.
h. "state lands" shall  mean  lands  owned  by  the  state  in  forest
preserve counties that are under the jurisdiction of the department.
i. "town highway" shall mean a town highway, as defined in subdivision
five  of  section  three  of the highway law, in existence as of January
first, two thousand fifteen,  listed  on  the  local  highway  inventory
maintained  by the department of transportation, and annually plowed and
regularly maintained.
j. "water supply projects" shall mean drinking water wells.
k. "width of the  highway"  shall  mean  three  rods  or  the  deeded,
recorded  municipal or state right of way or easement in existence as of
January first, two thousand fifteen.
2. Pursuant to approval  by  the  department  and  the  department  of
transportation  and  following a public hearing on each eligible project
at which the public shall be given an opportunity to be heard, a  public
utility line may be co-located within or buried beneath the width of the
highway of any state highway, county highway, or town highway.
3.  A  project sponsor for an eligible project within the width of the
highway shall submit an application for a permit to the department  that
at minimum shall include:
a.  a resolution from the governing body of the project sponsor, or in
the case of a public utility seeking to utilize the width of highway  of
a  town highway, the governing body of the town, or the width of highway
of a county, the county governing board, that includes:
(i) approval of the project;
(ii) attestation that such width of highway lands will  only  be  used
for eligible purposes;
(iii)  attestation that the project will minimize the removal of trees
and vegetation and restore the area  to  pre-project  condition  to  the
maximum extent practicable.
b.  specific metes and bounds, including total proposed acreage of the
width of highway land sought;
c. a narrative about the project, including a justification;
d. any necessary permits and authorizations; and,
e. an accurate survey.
4. Immediately upon determining that an application is  complete,  the
department shall cause a notice of application, which shall also include
the  time  period  for  public  comments,  to  be  published in the next
available state register and environmental notice bulletin as well as in
a newspaper having general circulation in the area in which the eligible
project is proposed to  be  located.  Newspaper  publications  shall  be
provided by the project sponsor.
5. The department shall hold a public hearing on each eligible project
at which the public shall be given an opportunity to be heard.
6.  The  department,  following  consultation  with  the department of
transportation to determine that any  required  authorization  has  been
provided,  shall  only  approve  an  application for an eligible project
permit following a determination that:
a. the eligible project meets the eligible project criteria;
b. the eligible project minimizes adverse environmental impact to  the
maximum extent practicable; and
c.   the  eligible  project  will  not  adversely  impact  lands  with
environmental, ecological or recreational value, as  determined  by  the
department based on a resource inventory and assessment.
7.  After  a  hearing and opportunity to be heard, if the commissioner
determines that a project sponsor is utilizing land for a purpose  other
than  as  authorized  by  the  department,  the commissioner may require
removal of any improvements to the land and restoration of the land to a
natural, vegetative state.
8.  The  department  is  authorized  to  promulgate  such  rules   and
regulations  as  may  be  necessary  to  implement  and  administer  the
provisions of this article.