Tenn. Comp. R. & Regs. 1680-06-01-.04 - GENERAL CONSIDERATIONS

(1) New utility facilities being installed within highway rights-of-way will require a Use and Occupancy Agree- issued by the Department of Transportation. The Department has adopted a standard Use and Occupancy Agreement which is included as Appendix #1.

(a) The utility official signing the Use and Occupancy Agreement must furnish evidence acceptable to the Department that fie is empowered to bind the corporation or municipality to the terms of the agreement. This evidence will be kept on file by the Department for reference, and it will not be necessary that same be submitted each time a permit is requested so long as the same official executes the agreement.

(b) In those instances where Utility facilities are being installed in highway rights-of-way by an owner or developer of properties adjacent to the highway and the utility facilities will later become the property of a local government or utility company; particular care must be exercised to insure that obligations assumed by the developer in executing the Use and Occupancy Agreement are transferred to the subsequent owner. Both the developer and subsequent owner shall sign the agreement.

(c) Individuals or businesses installing private utility facilities will be required to execute the license as shown in Appendix No. 6.

(2) Utility facilities presently located in public rights-of-way which must be adjusted and/or relocated to accommodate new highway construction will be subject to these stated rules and may be retained in the rights-of-way under provisions of the existing permit or Use and Occupancy Agreement. If no record of a permit can be found by either the utility or State, a Use and Occupancy Agreement will be prepared by the Department of Transportation for execution by the utility and State Transportation Engineer.

(3) The facilities of a utility located in private lands. whether owned in fee or casement, that must be adjusted and/or relocated to accommodate no", highway construction and will thereafter jointly occupy said lands with the highway shall be subject to these rules.

(4) Utility facilities presently located in private lands, by virtue of adverse possession thereof, which must be adjusted and/or relocated to accommodate highway construction and will, when adjusted and/or relocated, occupy lands acquired for highway rights-of-way will be subject to these rules. A Use and Occupancy Agreement will be prepared by the Department of Transportation for execution by the utility owner and the State Transportation Engineer.

(5) Execution of a Use and Occupancy Agreement will not be required for:

(a) Routine maintenance of utility facilities where pavement and shoulders are not disturbed.

(b) Placement of additional cable in existing underground ducts.

(c) Changing of transformers in electric distribution lines.

(d) Reconductoring of existing poles, anchor and guy facilities when poles are not added or replaced, framing and other minor work. Poles may be replaced in the same location; however, consideration must be given to relocating the pole line in order to meet the present safety requirements as outlined in these rules and regulations.

(e) Underground water, gas, electric, telephone or other service connections when shoulder or pavement of highway is not disturbed.

(f) Overhead service connections on conventional highways. Overhead service connections shall not be made across freeway projects without approval of the Department of Transportation.

1. The utility owner or authorized representative, when performing any of these activities, is required to provide signing and traffic control measures as required and set forth in these rules.

2. The utility owner must notify the Department of Transportation's Regional Utilities Engineer prior to performing excavation or replacing poles within the highway right-of-way. When work must be done on an emergency basis during other than normal working hours, notification should be given by the next working day. If any temporary structures are required to facilitate the work, the location of these structures must be approved by the Regional Utilities Engineer.

(6) Except as may otherwise be provided in Rule 1680-6-1-.09 for certain fiber optic cable facilities, the design, location and installation of new utility facilities or the necessary relocation and/or adjustment of existing utility facilities within the rights-of-way of freeways shall conform to the provisions of "A Policy on the Accommodation of Utilities Within Freeway Right-of-Way," published by the American Association of State Highway and Transportation Officials in 1982. This publication is included herein as Appendix # 2.

(7) Longitudinal installations of utility facilities other than certain fiber optic cable facilities governed by Rule 1680-6-1-.09 shall not be permitted within freeway rights-of-way except in special cases under strictly controlled conditions and only along the outer edge of the right-of-way. This restriction shall not apply to utilities that provide services to Department of Transportation or other state-operated facilities along the freeway, including without limitation rest areas, welcome centers and weigh stations.

(a) To be considered for a permit in a special case, the utility owner must submit to the Department of Transportation a study showing that:

1. The proposed utility accommodation will not adversely affect the safety, design, construction, operation, maintenance or stability of the freeway;

2. The proposed utility accommodation will not be constructed, serviced or maintained by direct access from the traveled way, shoulders or access ramps of the freeway;

3. The proposed utility accommodation will not interfere with or impair the present operation, use and maintenance, or future expansion, of the freeway; and

4. Any alternative location would be contrary to the public interest. This showing shall include an evaluation of the direct and indirect environmental and economic effects that would result if the proposed utility accommodation is denied.

(b) When evaluating this study, the Department of Transportation will give consideration to:

1. The effect the proposed utility accommodation would have on the highway and traffic safety;

2. The direct and indirect environmental and economic effects of any loss of productive agricultural land that would result if the proposed utility accommodation is denied;

3. The interference with or impairment of the use of the highway if the proposed utility accommodation is approved; and

4. The availability of alternative locations for the utility.

(8) Use and Occupancy Agreements for the installation of utility facilities within the rights-of-way of Federal-aid highway projects may require the approval of the Division Administrator, Federal Highway Administration, as provided in the rules and regulations of the Federal Highway Administration with respect to the accommodation of utilities, 23 C.F.R. Part 645, Subpart B, as amended.

(9) The responsibility of designing, installing, maintaining, repairing and operating utility facilities to be located within highway rights-of-way under terms of an approved Use and Occupancy Agreement shall be the express obligation of the company, individual or public agency owning the facility. (Relocation costs to accommodate highway construction will be considered under the Department of Transportation's reimbursement procedures for such relocations.)

(10) The Department of Transportation will inspect all utility installations within highway rights-of-way for conformity with herein stated rules and regulations and special provisions which are made a part of the Use and Occupancy Agreement. When new utility installations within the rights-of-way of existing highways are of such magnitude and complexity as to require extensive inspectional services by the Department of Transportation to ascertain that all provisions of these rules and regulations are carried out, the Department of Transportation reserves the right to place an inspector on the site for the duration of construction activities. The utility in accepting the Use and Occupancy Agreement agrees to reimburse the Department of Transportation for said inspector's salary, equipment use and miscellaneous expense applicable to the installation of the utility facilities. The necessity for such inspectional services can usually be determined prior to execution of the Use and Occupancy Agreement, and the requirement for inspectional services will be set out as part of the agreement by incorporation of a special provision. Failure to install facilities in accordance with these ruled and regulations and terms of the Use and Occupancy Agreement will result in the Department of Transportation's Regional Engineering Director advising the utility company to suspend further construction activities until corrective measures have been made to the satisfaction of the Department of Transportation.

(11) Any inspection or control exercised by the Department of Transportation shall in no way relieve the utility owner of any duty or responsibility to the general public nor shall such services and/or control by the Department of Transportation relieve the utility owner from any liability for loss, damage or injury to persons or adjacent properties.

(12) The decision of the State Transportation Engineer, and if required the Division Administrator of the Federal Highway Administration, shall be final and conclusive with respect to conditions, terms, stipulations and provisions of the Use and Occupancy Agreement as approved.

Notes

Tenn. Comp. R. & Regs. 1680-06-01-.04

Original rule filed August 8, 1983; effective September 7, 1983. Amendment filed July 20, 1984; effective August 19, 1984. Amendment filed February 1, 1989; effective March 18, 1989. Amendment filed September 24, 2002; effective December 8, 2002.

Authority: T.C.A. § 4-3-2303(2).