Administrative Rules of Montana › Department 18 - TRANSPORTATION › Chapter 18.7 - MAINTENANCE › Subchapter 18.7.2 - Right-of-Way Occupancy by Utilities › Rule 18.7.231 - GENERAL CONSIDERATIONS

Current through Register Vol. 13, July 5, 2024
(1) The
				following general considerations shall apply to occupancy of highway
				right-of-way by utility facilities covered by ARM
				18.7.221 through
				18.7.232.
(a) If the state should deem it necessary
				and/or desirable to change, construct, reconstruct, or otherwise use for
				highway purposes, the premises occupied by utility facilities, or any portion
				thereof, and such change, construction, reconstruction or usage should
				necessitate changes in utility structures or installations, the utility shall
				make the necessary changes and the costs thereof shall be paid in accordance
				with the law in effect at the time the change is required to be made; state and
				utility reserve the right to test validity or constitutionality of any such
				law. The department reserves the right to expand highway facilities over
				existing underground utilities located within highway right-of-way without
				adjusting the utility facility, if the construction work does not conflict with
				the utility.
(b) The utility
				facility owner shall be liable, and state shall not be liable, to the general
				public for any injury to or death of any person whomsoever, or for the loss of
				or damage to property of any kind or nature to whomsoever belonging when such
				injury, death, loss or damage arises out of or results from the construction,
				maintenance, or repair of existing or future utility facilities located within
				the highway right-of-way, or the installation or operation of such utility
				facilities within the highway right-of-way, regardless of whether or not the
				department has expressed or implied approval of the construction, maintenance,
				repair, installation or operation of such facilities within the highway
				right-of-way. If any highway or transportation facility or structure is damaged
				by any party, whether through negligence or otherwise, then that party is fully
				responsible for the cost to repair the structure and any associated costs,
				including, but not limited to those liabilities set forth in the previous
				sentence.
(c) If the work done by
				the utility interferes in any way with highway drainage, the utility, at its
				expense, shall make such reasonable provisions as the department may direct to
				correct such drainage.
(d) Clearing
				of trees, bushes and other vegetation shall be held to the minimum required for
				construction and safety. All such clearing shall be revegetated in accordance
				with 7-22-2152, MCA. Spraying of
				vegetation to inhibit growth is prohibited.
(e) In the event it is necessary to cut or
				disturb a paved portion of a roadway, then such disturbance shall be properly
				patched, and shall be maintained for one year from the installation date. If
				the responsible party does not perform required repairs within 30 days of
				notification, the department may make such repair and charge the full cost to
				the responsible party.
(f) The
				utility shall return the right-of-way to its original condition as nearly as
				practicable and shall remove all of its rubbish and debris promptly following
				completion of its activities.
(g)
				Work performed by the utility within the highway right-of-way shall be subject
				to inspection at all times.
(h)
				Subsequent to the initial installation, all repair, maintenance,
				reconstruction, relocation, or removal of utility facilities shall be
				accomplished in such a manner as will cause the least interference with normal
				operation and maintenance of the highway.
(i) The state shall not be responsible or
				liable for damage which may occur to utility facilities occupying highway
				right-of-way under these regulations.
(j) Upon termination of occupancy, the
				utility shall remove its above-ground facilities and restore the right-of-way
				as nearly as practicable to the condition existing at the time of initial
				occupancy thereof. Reasonable and ordinary deterio- ration caused by use or the
				elements or the acts of nature are excepted.
(k) Retired or abandoned below-ground
				facilities shall, at the discretion of the department, be removed by the
				facility owner, and any costs (including costs associated with the proper
				removal of hazardous or solid wastes) associated with such removal shall be the
				responsibility of the utility facility owner.
(l) The utility, at its sole expense, shall
				maintain in a satisfactory condition, the installations and structures
				occupying the highway right-of-way. Maintenance work, except in emergency
				situations, may not be conducted from within access control limits of
				controlled-access highways.
(m)
				Where the state's right-of-way is by easement for highway purposes only,
				utility occupancy may be subject to approval by the owner of the underlying fee
				interest. The utility company is encouraged to determine whether it is in its
				best interest to obtain such approval prior to installing its
				facilities.
(n) New utility
				facility installations, including those needed for highway purposes, will not
				be permitted within scenic strips, overlooks, rest areas, recreation areas, the
				rights-of-way of highways adjacent thereto, the rights-of-way of highways which
				pass through historic sites and public parks, archaeological sites that have
				been determined eligible for listing on the national register of historic
				places, a wetland protected by Executive Order 11990, or any other
				environmentally sensitive area, except as follows:
(i) New underground utility facilities may be
				permitted within such areas where they do not require extensive removal of, or
				damage to, trees visible to the highway user, or impair the appearance of the
				area.
(ii) New aerial installations
				are to be avoided at such locations unless there is no feasible and prudent
				alternative to the use of such lands by the aerial facility and it is
				demonstrated that:
(A) Alternate locations
				for the utility facilities are not available or are extremely difficult and
				unreasonably costly, or are less desirable from the standpoint of scenic
				appearance.
(B) Underground
				installations are not technically or economically feasible, or are more
				detrimental to the scenic appearance of the area.
(C) The proposed utility installation will be
				made at a location and in a manner that will not significantly detract from the
				area, and will employ suitable designs and materials which the greatest weight
				to visual quality.
(iii)
				Situations involving unusual hardship or other extenuating circumstances within
				scenic and public use areas will be considered.
(iv) If avoidance of such areas is not
				feasible, and the applicant demonstrates to the satisfaction of the department
				that mitigation of any adverse impacts is possible and preferable to complete
				avoidance, then the department may allow the applicant to occupy such areas
				provided such mitigation measures are taken.
(o) The installation of utility facilities or
				conduits on the right-of-way of federal-aid or direct federal highway projects
				for the purpose of draining adjacent wetlands onto the highway right-of-way is
				inconsistent with Executive Order 11990, Protection of Wetlands, dated May 24,
				1977, and shall not be permitted. The filling, dredging or draining of wetlands
				located on highway right-of-way shall not be allowed unless in compliance by
				all federal and state laws and regulations.
(p) The utility company shall comply with the
				Montana Environmental Policy Act,
				75-1-101, et seq., MCA; the
				Threatened and Endangered Species Act,
				16 USC
				1531, et seq.; the Migratory Bird Treaty Act,
				16 USC
				701, et seq.; the Bald and Golden Eagle
				Protection Act, 16 USC
				668, et seq.; and all other applicable
				environmental laws, regulations or provisions.
(q) Whenever a utility installation,
				adjustment, or maintenance activity will affect the movement of traffic or
				traffic safety, the utility shall implement a traffic control plan and use
				traffic control devices as necessary to ensure safe and expeditious movement of
				traffic around the work site and the safety of the utility work force. The
				traffic control plan and the application of traffic control devices shall
				conform to the standards set forth in the Manual on Uniform Traffic Control
				Devices (MUTCD), and 23 CFR 655, subpart F. No road closure shall occur without
				prior approval from the district engineer. In all cases, it is necessary that
				utility work be undertaken in a manner that will minimize interference with the
				traveling public.