Rural Interstate Corridor Communications Study
Report to States
8.0 Utility Accommodation Policies
This section presents the various utility accommodation policies of each State and determines how these policies either facilitate a shared resource project or discourage the trading of ROW access for telecommunications infrastructure in a Corridor deployment of a communications backbone.
8.1 Utility Accommodation Policies in the I-20 Corridor
Within the I-20 Corridor, there is great variance in the policies of the three States with regard to allowing the use of Interstate highway rights-of-way for the installation of telecommunications infrastructure. In general, the States of Alabama and Mississippi do not currently allow private utilities to construct communications infrastructure within Interstate highway rights-of-way. Louisiana does allow the use of Interstate highway ROW and encourages installations through the use of barter or shared resource projects to gain infrastructure for the state. In order to promote the development of contiguous and Corridor-wide communications infrastructure along I-20, the policies of both Mississippi and Alabama would require modification.
In order for a contractor or private sector partner to complete construction along the Corridor, they would need to adhere to the specific policies of each state. If one standard were adopted Corridor-wide to satisfy all of the States, the following conditions would apply that would meet all state policies:
- Minimum depth for construction is 40"
- The utility must be located within 10' of the ROW line
- Traffic control must be provided
- Bridge attachments are to be avoided, unless extreme circumstances require attachment
- Bridge attachments need to be encased in protective conduit and grounded
- Erosion control must be used during construction
- The construction area must be restored afterwards
- Access to the infrastructure should be from outside the ROW or from an interchange
- All wetlands permits are the responsibility of the contractor
The following sections provide specific details about each State's utility accommodation policies.
8.1.1 Alabama DOT
Specifically within Alabama, their Utility Accommodation Policy prohibits the installation of utilities within Interstate highway rights-of-way. The following is from Section 2.14.2 of the Alabama DOT Utilities Manual (http://www.dot.state.al.us/NR/rdonlyres/CB214C69-D6BF-48EC-A28B-C61E7119B998/0/ALDOT_Design_utman.pdf accessed on 4/11/2008):
New utilities will not be permitted to be installed longitudinally within the control-of-access lines for any interstate or other controlled access highway.
In an effort to look forward, some of the specifics of Alabama's utility regulations will be noted here as if the above policy prohibiting utility installations were to be amended to allow communication infrastructure to be installed. The information presented here is what may be of use to a utility contractor seeking to install communications infrastructure. These regulations are for non-Interstate highway ROW, but would possibly be applicable to Interstate highway ROW.
Of note is that utilities are required to be outside of the clear zone. That is 30 feet for Interstate highway ROW in Alabama. Installation depth for conduit is 40" and it is to be placed as near to the ROW line as practicable. All traffic control required for installation is the responsibility of the contractor. Alabama DOT prohibits attachment to bridge structures except in extreme cases where no other alternative is available. Attachment requests are reviewed rigorously by the Alabama DOT to make sure there is no alternative. Where communications facilities are allowed on structures, they must be insulated, grounded, and carried in a protective conduit. Disturbed areas may require the use of temporary erosion control and restoration after construction.
8.1.2 Mississippi DOT
The Mississippi DOT by policy prohibits the installation of utilities on Interstate highway ROW, except in special cases as defined below. The following is taken from the Mississippi DOT Rule 941-7501-06001, Accommodation of Utilities on Freeway Rights of Way (http://www.gomdot.com/apa_data/apa_rules/PDF_Record/maintenance/941-7501-06001/941-7501-06001.pdf accessed on 4/11/2008.):
Installation of new utilities will not be permitted longitudinally within the control of access lines of any freeway, except that in special cases such installations may be permitted under strictly controlled conditions. The location of such installations, if permitted, will generally be restricted to the outer ten (10) feet of the right of way. Installation of utilities will not be allowed longitudinally within the median area.
Some special cases, referenced above, that may warrant accommodation on the right of way are (1) significantly undesirable social, economic, or environmental effects on adjacent property, (2) prohibitively excessive right of way costs on areas adjacent to the freeway, (3) unique nature of adjacent property (irreplaceable historical, parkland, recreational or other function), (4) temporary, short-term emergency needs, or other circumstances that the Mississippi Transportation Commission may specifically authorize.
Where such longitudinal installations are requested, the utility owner must in each case show that:
A. The accommodation will not adversely affect the safety, design, construction, operation, maintenance or stability of the freeway;
B. The accommodation will not be constructed and/or serviced by direct access from the through traffic roadways or connecting ramps;
C. The accommodation will not interfere with or impair the present use or future expansion of the freeway; and
D. Any alternative location would be contrary to the public interest. This determination would include an environmental evaluation of the direct and indirect environmental and economic effects covering on and off right of way alternates.
Although the policy notes that installations are allowed under special circumstances, it has been reported by representatives of Mississippi DOT that the practice of allowing such installations is almost never allowed. The DOT does install its own infrastructure for communications on Interstate highway ROW.
If this policy were to be reversed at some point in the future, there are several requirements of Mississippi's utility construction rules of which a contractor should be aware. These requirements include a minimum 36" depth for underground installations; the utility should be located within the outer 10' of ROW and as close as possible to the ROW line; no median or shoulder installations are allowed; and access for maintenance should be via a frontage road or interchange. Wetlands permits must be obtained when working in or around wetland areas and restoration of the area must be performed after construction. Traffic control is to be provided by the contractor. No bridge attachments are allowed unless the owner can show that there are special circumstances that make the attachment the best alternative.
8.1.3 Louisiana DOTD
The Louisiana DOTD has by far the most accommodating utility policy of the three Corridor States along I-20. They have fully embraced the shared resource concept and accept applications for use of the Interstate highway ROW for most utility types, including wireless towers. Neither Alabama nor Mississippi has wireless tower siting policies. Louisiana does have specific regulations regarding the use of their ROW and they do charge fees or accept barter arrangements. Their Utility Accommodation Policy is contained within the Louisiana Administrative Code, Title 70 (Transportation), Section II (Utilities), dated December 2005.
Specific to the policy of Louisiana is the provision to charge an access fee. There is a fee of $5,000 per mile for Interstate or access-controlled highway ROW, or the utility can offer shared resource barter in exchange for the fee. There is also a fee associated with bridge attachments. Although bridge attachments are to be avoided by policy, they are allowed where no alternative exists and the attachment will not damage the structure or create a hazard. There is both a lump sum fee and an annual rent associated with bridge attachments that vary depending on the structure length and the weight of what is to be attached.
Other requirements of the Louisiana DOTD include requirements for 36" burial depth of conduit, placement of conduit in the outside 10' of ROW or as close as possible to the ROW limits; no median installations; and bridge attachments need to be grounded and encased in protective conduit. Traffic control is the responsibility of the contractor, and access to the infrastructure must be from outside the ROW, an interchange, or lastly, from the roadway. The ROW must be restored to its previous condition upon completion of construction.
Louisiana DOTD allows wireless towers and wireless equipment to be located on State ROW or property in exchange for a fee, co-location, and/or bartered services. Primary locations where towers or fixtures are allowed include rest areas, weigh stations, power poles or light standards, existing state-owned towers, crossing structures, and at interchanges. Where space permits, towers can be up to 350' lattice type towers or up to 195' monopole towers. Providers are also allowed to strengthen existing towers in order to place equipment, or to replace existing towers completely in order to make them more suitable to their needs. The fees charged range from $1,500 to $3,500 per year, but these can be waived if the provider offers shared resources in exchange. Overall, the Louisiana DOTD wireless policy is fairly liberal and allows many concepts and ideas to be forwarded for review.
8.2 Utility Accommodation Policies in the I-90 Corridor
Of the three Corridors studied, the I-90 Corridor States have the most consistent and progressive Utility Accommodation Policies with regard to shared resource projects and bartering of ROW access in exchange for infrastructure. The I-90 Corridor States provide the best opportunity for the creation of a Corridor-wide telecommunications backbone that can be shared between multiple States as the accommodation policies of the three States along I-90 are similar. South Dakota, Minnesota, and Wisconsin all allow access to Interstate highway ROW for communications infrastructure installation in exchange for fees, shared resource compensation, or in the case of South Dakota, for free.
For the most part, the ROW is free of other utilities at this time and presents a very clean installation opportunity. The most restrictive construction specifications of the States would include:
- Burying the conduit at a depth of 48"
- Using protected and grounded conduit for bridge crossings
- Ensuring that endangered plants and animals are taken into consideration before beginning construction
- Providing traffic control
- Initiating erosion control measure
- Restoring the ROW to pre-construction condition
Minnesota and Wisconsin vary on the fees charged, which will need to be resolved. Probably the largest impediment to a Corridor-wide contract is the requirement in Minnesota that the contractor selection must be done in a competitive manner and that additional conduit should be installed for future users or installed for a competitor at fair market value. Although this seems onerous, it will likely not be much of an issue as there have been few companies interested to date in having communications infrastructure installed along I-90. The Minnesota Department of Administration will be heavily involved in this process.
Specifics of each State's utility accommodation polices are presented below.
8.2.1 South Dakota
South Dakota's Administrative Rule, Article 70:04:05.01:01, Utility Accommodations on Interstate Rights-of-Way (http://legis.state.sd.us/rules/DisplayRule.aspx?Rule=70:04:05.01:01 accessed on 4/11/2008.) states the following:
Construction and maintenance of utility facilities within interstate right-of-way. All longitudinal installations within the interstate right-of-way are prohibited except for longitudinal installations of fiber-optic telecommunications cable if the facility is located as near the right-of-way line as practicable. However, the department may approve longitudinal utility attachments to structures over major bodies of water where other utility crossings are impractical, result in excessive costs, or are otherwise unique and unusual. The department may also approve longitudinal installations if the permittee is a governmental entity, the utility facility is a gravity flow sewer line or a water line, and other locations would result in excessive costs or are impractical as determined by the region engineer.
This rule allows for any provider to apply for a permit and, if approved, install communications infrastructure within South Dakota's Interstate highway ROW without compensation to the state. This is generally the case for typical non-access controlled ROW, but rarely the case for access-controlled ROW.
With the exception of the open policy for access to Interstate highway ROW, South Dakota's utility accommodation rules are very similar to most States. The utility should be installed as near to the ROW line as possible; installation should be done without extensive removal of trees or natural features; the area needs to be restored after construction; access is from a side road or interchange; and traffic control needs to be provided. The depth of installation is 48" in rural areas and 36" in other areas. Bridge attachments are allowed, but only if an alternate is difficult or unreasonably costly. Bridge attachments need to be grounded and encased in protective conduit.
The Minnesota DOT has developed an extensive policy regarding the accommodation of wireline communications infrastructure on Interstate highway ROW. Their policy does allow for installation on Interstate highway ROW, but it must be done in an open and competitive manner and the contractor must allow competitors to install their infrastructure at the same time if they so desire. In general, utility installations are allowed on Interstate highway ROW for highway purposes such as lighting or ITS by the DOT or by a private entity if there is a need shown by the DOT for infrastructure and it is a shared resource arrangement where the State is compensated. The compensation must be fair market value for the ROW and access, and paid monetarily or as a shared resource in the form of infrastructure or services.
Minnesota DOT's policy statement (http://www.dot.state.mn.us/utility/policy/index.html accessed on 4/11/2008), Highways No. 6.6, allowing installations on Interstate highway ROW, is dated November 20, 2006 and reads as follows:
Minnesota and federal laws permit the accommodation of utility facilities on highway right-of-way, including all federal-aid highways. Minnesota law also authorizes Mn/DOT to develop reasonable rules pertaining to placing and maintaining such facilities. Mn/DOT's policy is that wireline facilities may be accommodated within freeway right of way when such use and occupancy does not adversely affect traffic safety, roadway operations, roadside vegetation function or visual quality and does not conflict with federal or state laws, rules, regulations or this policy.
This policy applies to longitudinal installation of wireline facilities used for the transmission of voice, data, and/or video communications.
The utility construction policies of Mn/DOT are similar to those of other States. Bridge attachments are allowed only if a separate structure or path is infeasible. The attachment cannot adversely affect the structure in terms of maintenance, structural capacity, aesthetics, or safety. The conduit used must be steel. Access to infrastructure along the ROW must be made from a side road, frontage road or adjacent property and traffic control is to be provided by the contractor. The installation depth shall be 36" in open ROW and installed outside the clear zone as close to the ROW edge as possible.
For wireless tower installations, Minnesota has a State statute, 174.70, which allows the DOT to enter into a contract for the development of wireless tower locations with a private provider in exchange for compensation. The statute provides for great latitude in negotiating a shared resource agreement and what the state may receive in compensation.
The Wisconsin DOT also allows for the installation of communications infrastructure on Interstate highway ROW. The specific policy allowing this is Policy 96.30 from the State Highway Maintenance Manual (http://www.dot.wisconsin.gov/business/rules/property-96.htm accessed on 4/11/2008). It states as follows:
Longitudinal installations on freeway right-of-way shall be limited to communications facilities only. The installation of cellular antennas and its associated equipment shall be defined as a longitudinal occupation. Other types of utility facilities may be allowed to longitudinally occupy freeway right-of-way, but only under certain circumstances. See policy 96.31(C) for details.
On highways which are not presently constructed as freeways but the right-of-way has been acquired for the construction of such a facility, the requirements for utility installations shall be the same as for freeways.
Utility facilities may be limited to underground installations, except as provided for crossings or special cases.
Longitudinal utility installations on freeways may be charged a fee for the right to occupy. The Department may also opt for access to communications or other types of services, or a combination of fees and services. If this is warranted, agreements shall be negotiated with each company on a case by case basis, and are aimed at providing mutual benefits to all parties involved.
Wisconsin does charge a fee for access to Interstate or access controlled highways by communication companies. These fees vary between $5,000 and $20,000 per mile depending on the length of the installation and the AADT of the route being considered. They are applicable to a 20-year period. Although it is not explicitly stated in the Utility Accommodation Policy, Wisconsin does allow for the installation of wireless communication facilities on state ROW. To date, only two such agreements have been negotiated and it is done on an as-needed basis. A negotiated fee is charged for wireless infrastructure access as well.
Wisconsin's utility construction policies are similar to those of other States. Access to the ROW should be from frontage roads, side roads, or trails adjacent to the ROW. Access is allowed from the roadway, but only by special permit. Utilities need to be placed as near as practicable to the ROW line and no median installations are allowed. Environmentally, permits are required to trim or otherwise damage any trees or shrubs on the ROW, and the contractor is responsible for being aware of and avoiding endangered species. Erosion control measures are required and the contractor must provide traffic control as per MUTCD rules. The depth of the utility line is Wisconsin is shallower than other States, only 24".
Bridge attachments are to be avoided, but they are allowed as long as they do not affect the structural design, appearance, maintenance, or safe operations of the bridge.
8.3 Utility Accommodation Policies in the I-91 Corridor
The I-91 Corridor is the most advanced of the Corridors studied in that the States along I-91, Vermont and Massachusetts, have progressed farther then the other Corridor States in securing a contract to have communications infrastructure installed. MassHighway has a solicitation whereby they are installing the infrastructure themselves, but then offering up use of that infrastructure in exchange for fees. Vermont is in the design stage of their shared resource project and expecting to solicit for a partner within the next year.
Both Vermont and Massachusetts allow and encourage shared resource arrangements along I-91 as evidenced by their impending projects. For this study, copies of utility accommodation polices were requested. In this instance, only information on the MassHighway Utility Accommodation Policy was supplied. It was noted by MassHighway that the policy from 1988 is being updated. Vermont also noted that their policy is being updated, but it was not available at the time this report was published nor was a copy of their current policy.
For the purposes of this report, only specifics of the Utility Accommodation Policy of Massachusetts will be presented. This policy is currently under revision and will likely change in the near future. However, for the purposes of this report, the 1992 version of the Utility Accommodation Policy is used.
The latest Utility Accommodation Policy for Massachusetts is dated 1988. In that policy, it does allow for the accommodation of multiple types of utilities, including communications, on freeway ROW. In 1992, Massachusetts clarified the 1988 UAP regarding communication utilities on Interstate highway ROW in response to the FHWA changing their policy on the accommodation of utilities on Interstate highways and to gain approval from the FHWA for the State's UAP. The 1992 amendment states as follows with regard to longitudinal accommodation of utilities of freeways:
This policy applies to all applications for permits for longitudinal accommodation of utilities on freeways. The policy addresses the recent change in Federal Highway Administration regulations codified at 23 CFR Section 645.201, et seq. (subpart B) regarding accommodation of utilities on rights-of-way of freeways. This policy also complies with federal standards (23 U.S.C. Section 109) and agreements relating to access to rights-of-way (23 U.S.C. Section 111)
The Massachusetts Highway Department's primary concern is to maintain safe standards on our highways. Our goal is to strike a balance between keeping work on Freeways to a minimum and assuring that the accommodations of longitudinal utilities are safe, while at the same time accommodating utilities on Freeways where it may be in the public interest. Accordingly, permits for the installation of utilities longitudinally will be issued on a case by case basis for underground utilities, and may be issued for above-ground utilities only under unusual circumstances as provided in Part 5.6.
In addition, the provisions of the Massachusetts Highway Department's "Utility Accommodation Policy – 1988", as it has been or may be amended, is applicable to the accommodation of the longitudinal utilities on Freeways.
In general, MassHighway's Utility Accommodation Policy is similar to that of other States in that it requires installations to be as near the ROW line as possible, contractor provided traffic control, and access to the ROW restricted to be only from frontage roads, side roads, or trails. Mainline access is allowed in emergency or otherwise unusual circumstances where no other access is available. Traffic control is to be provided by the contractor and erosion control measures must be used. Bridge attachments should be avoided, but are allowed if it does not impair the structure in any way and it is deemed in the public's best interest.
There are, however, some unique characteristics of the MassHighway UAP of which a contractor should be aware. Of note is that median installations are allowed on freeways if the median is large enough. No specifics are provided, so this approval would be on a case-by-case basis. The depth of installation ranges from 18" to 33" depending on whether the communications cable is for a toll operation (33") or not (18"). Visual aesthetics are emphasized heavily in the MassHighway UAP. Trees are not allowed to be removed, especially in rest areas, scenic overlooks and other recreation areas. If they are removed, a replacement tree must be planted by the contractor. All disturbed areas need to have a revegetation plan developed so that the construction area is restored to its natural state. Lastly, in the 1992 amendment, MassHighway required that the contractor submitting the application demonstrate that approval is in the public's best interest. This is unique amongst accommodation policies studied as part of this project.
In 2006, MassHighway amended their UAP to provide for the accommodation of wireless utilities on state-owned property where there is a desire to install tower facilities or co-locate on existing structures. The MassHighway Wireless Telecommunications Asset Management Policy provides a mechanism for private companies to request the use of various property owned by MassHighway for the purposes of installing wireless towers or equipment. In exchange, MassHighway receives compensation in the form of fees, equipment, or services. Once sites have been identified, providers must bid on the sites through an open and competitive process.
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