Mont. Admin. R. 18.7.231 - GENERAL CONSIDERATIONS
(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.
Notes
Sec. 60-3-101 and 60-4-402 MCA; IMP, Sec. 60-3-101 and 60-4-402 MCA;
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