Part 1.
TEXAS DEPARTMENT OF TRANSPORTATION
Chapter 21.
RIGHT OF WAY
Subchapter C. UTILITY ACCOMMODATION
The Texas Department of Transportation (department) adopts the repeal
of §§21.31-21.51 and simultaneously adopts new §§21.31-21.41,
concerning utility accommodation. New §§21.31, 21.33, 21.37, 21.40,
and 21.41 are adopted with changes to the proposed text as published in the
November 12, 2004 issue of the
Texas Register
(29
TexReg 10487). The repeal of §§21.31-21.51 and new §§21.32,
21.34-21.36, 21.38, and 21.39 are adopted without changes to the proposed
text as published in the November 12, 2004 issue of the
Texas Register
(29 TexReg 10487) and will not be republished.
EXPLANATION OF ADOPTED REPEALS AND NEW SECTIONS
Existing §§21.31-21.51 provide the current regulations for the
accommodation of utilities on highway right of way. The Texas Transportation
Commission (commission) has repealed §§21.31-21.51 and adopted new §§21.31-21.41
in a revised form to: reorganize the rules for clarity; allow the use of updated
utility construction methods and materials; and improve the state's management
of its right of way by requiring a better quality of plans and record drawings
for utility installations. Improved utility location information will allow
the earlier identification and resolution of utility conflicts with transportation
projects prior to the highway construction letting.
New §21.31 defines words and terms used in this subchapter. The definitions
are updated from the repealed language for clarity of engineering terms, new
utility procedures and processes, job functions, and occupational and departmental
titles.
New §21.32 is a statement of the purpose of the subchapter and is
reworded for clarity.
New §21.33 describes the types of facilities to which the subchapter
applies. New subsections have been added to make the subchapter applicable
to utility lines not specifically covered elsewhere in the subchapter, according
to the nature of the line, and to allow each District Engineer to make special
requirements based on factors unique to the area. These changes will allow
the department to better protect the right of way and to better accommodate
utilities by making allowances for unique and unforeseen circumstances.
New §21.34 describes the scope of the subchapter and includes new
language describing the means by which a district may impose supplemental
requirements and providing a means by which a utility may appeal a supplemental
requirement. Because conditions may differ greatly from area to area within
the state, these additions will allow the districts to better manage their
right of way on a local level, while protecting utilities by providing for
a higher level of review of district decisions.
New §21.35 includes the requirements for requesting, and criteria
for consideration of, an exception to the provisions of this subchapter. Providing
for exceptions allows the department to better meet the needs of utilities
for which the requirements of the subchapter would impose extreme hardship.
New §21.36 describes the legal authority of utilities to install lines
on state highway right of way. This section is included for clarity.
New §21.37 describes the design requirements for a utility installation.
In order to allow the department to more efficiently manage and protect its
right of way, new language has been added restricting the locations of utilities
within the right of way and adding new requirements regarding the submission
of plans, including a provision for a district to require signed and sealed
plans under certain circumstances, the design of utility tunnels and bridges,
and the joint use of highway and utility structures. More specific requirements
are also added relating to the removal, trimming, or replacement of trees,
bushes, shrubbery, or any other aesthetic features.
New §21.38 describes the standards and requirements for the construction
and maintenance of utility lines on the right of way. This section includes
expanded requirements for revegetation, traffic control, work restrictions,
and site cleanup. These changes are designed to protect the safety of the
traveling public as well as to protect the right of way from damage.
New §21.40 describes the requirements for the installation of underground
utilities on the right of way. The section includes new and expanded requirements
for standards for materials, conditions under which underground utilities
may be placed on the right of way, multiple conduits, abandonment, location
and placement, and markers. These changes are designed to allow the department
to better manage its right of way and to better protect the right of way,
as well as providing better protection for utility lines.
New §21.41 describes the requirements for the installation, maintenance,
and relocation of overhead power and communication lines on the right of way.
This section includes expanded and new requirements for construction, location,
and marking of overhead power and communication lines to protect the safety
of the traveling public and to allow the department to better manage its right
of way.
COMMENTS
A public hearing was held on November 23, 2004 to receive comments, views,
or testimony concerning the proposed repeal and new sections. Various oral
and written comments were received. Comments in support of the new rules were
received from Associated General Contractors; Cap Rock Telephone Cooperative,
Inc.; and Texas Statewide Telephone Cooperative, Inc. Comments opposing the
new rules were received from Atmos Energy Corporation; Houston Pipeline Company;
City Public Service Board of San Antonio; City of Austin d/b/a Austin Energy;
Kerrville Public Utility Board; New Braunfels Utilities; CenterPoint Energy;
Southwestern Bell Telephone, L.P.; TXU Electric Delivery Company; Texas Telephone
Association; East Texas Cooperative; and Kinder Morgan, Inc. Comments and
responses are as follows.
§21.31. Definitions.
The department is adopting §21.31 with changes by adding new definition
(8), Certified as-installed construction plans. This added definition clarifies
the term used in this subchapter.
Comment: Two commenters noted that the term "engineering drawings" in the
definition of "As-Built plans" would require that all submitted drawings contain
a professional engineering seal.
Response: The department agrees with this comment and the word "engineering"
has been deleted from this definition.
Comment: One commenter suggests that the definition of "Gathering line"
should track the definition found in Chapter 49, Code of Federal Regulations,
Part 192, so that the potential common carrier status of such a line could
be recognized.
Response: The department disagrees with exclusively using ownership status
to define the term. Unlike the federal definition, the department’s
definition focuses on both the ownership and functionality of the facility
located within state right of way. Those lines that deliver raw product drawn
from individual production facilities to larger pipelines that commingle the
product from multiple facilities are not eligible for location within state
right of way.
§21.33 Applicability.
Comment: Four commenters stated that the application of the rules should
be limited to those highways receiving federal aid or designated as controlled
access facilities.
Response: The department disagrees with this comment because this would
prevent the department fro effectively managing its right of way. The department’s
duty to ensure roadway safety extends to all roadways on the state highway
system. Exclusion of state highways, farm-to-market roads, and ranch roads
would subject the facilities, the traveling public, and other occupying utilities
to unnecessary risk.
Comment: Five commenters said §21.33 would require utilities to retrofit
facilities currently installed within state right of way and that facilities
that are currently operating under earlier regulations should be exempt from
new regulations requiring expensive in-place modifications. One commenter
requests the removal of the last sentence in subsection (b) to avoid this
result.
Response: The department agrees with this comment and has deleted the final
sentence originally proposed in subsection (b).
Comment: One commenter stated that §21.33 is an overall general statement
of applicability whereas the last sentence in subsection (c) specifically
applies to high-pressure gas lines. The subsection requires that all lines
carrying harmful materials comply with the safety provisions applicable to
high pressure lines. The sentence should be deleted or amended to acknowledge,
as in federal law, a distinction in safety requirements between high and low
pressure gas facilities.
Response: The department disagrees with the comment as the sentence is
a restatement of current practice and policy. Due to the nature of the substances
being carried in the lines, the department requires the higher standard of
protection afforded with high pressure lines to ensure the safety of miscellaneous
lines not specifically addressed in this subchapter. Specific requirements
are included for low pressure gas lines.
Comment: Five commenters noted that District Engineers should not have
the authority to impose special requirements on specific installations or
locations. This allowance conflicts with federal regulations that require
the department to maintain reasonable uniformity in its accommodation rules.
A failure to specify installation requirements does not provide utilities
with proper notice regarding the requirements to comply with the law, and
violates due process concerning their property rights.
Response: The department disagrees with this comment as this rule is a
restatement of current practice and policy. As stated in the rule, districts
may impose special requirements on utility installations due to a multitude
of specific factors. The department complies with federal law via the uniform
requirements contained in these rules; however, it is impractical to attempt
to memorialize by rule every geographic or site specific variable, and thus
every installation requirement that may be encountered throughout the state.
In order to protect the state highway system, the department must ensure that
the highway facility, the traveling public, and the occupying utilities remain
safe. To this end, District Engineers have authority to prescribe additional
requirements associated with those safety concerns.
As stated in §21.34, utilities having concerns regarding the requirements
for a particular installation may appeal those requirements to the Maintenance
Division or Right of Way Division. The department also disagrees with the
commenters’ statement regarding property rights. The Legislature has
merely granted utilities the right to voluntarily occupy state right of way;
no property rights are transferred in this process.
§21.34. Scope.
Comment: The department received two comments stating that the district
supplemental requirements do not afford the degree of consistency and specificity
needed for those utilities operating on a statewide basis and constitutes
ad hoc rulemaking by the District Engineers. The discretion given to District
Engineers allows for the favorable treatment of one utility over another.
One of the commenters recommends either striking the last three sentences
of the rule, including the requirement that if industry standards afford a
higher degree of protection then that standard supersedes department rule,
or better defining the appeal process.
Response: The department disagrees with this comment as §21.34 is
a restatement of current practice and policy. As stated in the rule, districts
impose special requirements on utility installations due to a multitude of
specific factors. It is impractical to attempt to memorialize by rule every
geographic or site specific variable, and thus every installation requirement,
that may be encountered throughout the state. In order to protect the state
highway system, the department must ensure that the highway facility, the
traveling public, and the occupying utilities remain safe. To this end, a
District Engineer has authority to prescribe additional requirements associated
with safety concerns, but only if these geographic variables expose the facility,
the traveling public, or other utility installations to a higher degree of
risk.
Generally, all department safety standards parallel those recommended by
the American Association of State Highway and Transportation Officials and
other national highway organizations. However, it is well recognized that
utility industry organizations occasionally recommend more stringent safety
standards than the department. For the maximum safety of all concerned, the
department desires utilities to adhere to their own industry’s stricter
standards when applicable.
The method of appeal of a District Engineer's accommodation requirements
will allow an independent fact finder to determine the appropriateness of
that requirement. Such appeal will also serve to avoid any disparity of treatment
of utilities within a district.
§21.35. Exceptions
Comment: Four commenters requested a clarification of what constitutes
"extreme hardship or unusual conditions" that would justify a request for
exception under subsection (b). The commenter also requests that a due process
procedure be implemented so that utilities may demonstrate such hardships
or unusual conditions.
Response: Section 21.35(b) is a readoption of repealed §21.35(c).
The criteria for granting an exception are stated in new §21.35(c).
Comment: A commenter stated that §21.35(c)(2) should be amended to
exclude as a determining factor those instances in urban areas where access
to a utility’s facilities are exclusively provided by the mainlanes
of a freeway or its connecting ramps.
Response: Section 21.35(c)(2) is a readoption of repealed §21.37(c)(2).
Even though the department agrees with the comment, no adjustment to subsection
(c) is necessary. Exceptions for these occurrences may be granted by the department
after the circumstances are evaluated under this section.
Comment: Five commenters noted that it is impossible for a utility seeking
an exception to comply with §21.35(c)(3) since the utility cannot prove
that the exception will not cause interference with a "future expansion" of
a highway. Such interference with future expansions should be limited to currently
planned expansions.
Response: Section 21.35(c)(3) is a readoption of repealed §21.37(c)(3).
The department disagrees with the comment. This interpretation of the subsection
would nullify its use as criteria for an exception. The department cannot
be limited to documented planned expansions of a highway facility when considering
an exception. The ability to use reasonable consideration of possible future
expansions is prudent for the protection of the highway system and to avoid
needless utility relocations in the future.
Comment: Four commenters said the provision in subsection (c)(4), stating
that for an exception to be granted, a utility must show that an alternative
location would be "contrary to the public interest" is vague. A utility would
not know what constitutes the "public interest," what types of impacts to
the alternative location would be relevant, or how they would be measured
and weighed by the department.
Response: The department disagrees with the comment. Subsection (c)(4)
is a readoption of repealed §21.37(c)(4), under which the department
has historically operated. As written, this language allows reasonable consideration
of the many site specific factors that would affect what is in the public
interest. A firm definition would only serve to restrict the factors that
could be considered.
§21.36. Rights of Utilities.
Comment: One commenter requested the deletion of the phrase "subject to
highway purposes" as this is in conflict with Utilities Code, Section 181.042.
Response: The department disagrees with the comment. Statutory rights granted
utilities are not absolute and are subordinate to the principal reason for
the creation of public roads. "The main purpose of roads and streets are for
travel and transportation, and while public utilities may use such roads…
such uses are subservient to the main uses and purposes of such roads and
streets."
City of San Antonio v. Bexar Metro. Water
Dist.
, 309 S.W.2d 491, 492 (Tex. Civ. App.-San Antonio 1958, writ ref’d);
§21.37. Design.
Comment: One commenter stated that the department does not have the legal
right to approve the manner of construction or installation in which a utility
performs its relocation work as stated in the second sentence of §21.37(a)(1).
Response: The department disagrees with this comment as it has such authority
over the manner in which a utility installs or maintains its facility if there
is an impact on the safety of the facility or traveling public. The third
sentence of §21.37(a)(1) establishes the safety factors the department
will use to evaluate the manner in which an installation is conducted.
Comment: One commenter suggested adding Title 16, Texas Administrative
Code, Chapter 8- Pipeline Safety Regulations, to the list of safety codes
in §21.37(a)(1).
Response: The department appreciates the commenter’s concern regarding
pipeline safety; however, it believes that the current list of codes is sufficient
to ensure the safety of the highway facility, the traveling public, and other
occupying utilities.
Comment: Four commenters stated the phrase "acceptable to the department"
in §21.37(a) allows the department to apply standards for design other
than those required by state or federal law or those specifically enumerated
by the proposed rules.
Response: The department disagrees with this comment. The language is a
general statement of the intent of the rule rather than a standalone requirement
and does not operate to impose any requirements other than those specifically
provided for in this subchapter. The design of a utility facility must be
acceptable to the department in order to preserve the safety and free flow
of traffic, structural integrity of the highway facility, ease of highway
maintenance and appearance of the highway.
Comment: Two commenters stated that a utility cannot locate lines to minimize
the need for adjustment for future highway projects as stated in subsection
(b)(1). Since it would be impossible for utilities to locate lines subject
to an unknown future expansion, they requested the removal of the term.
Response: The department disagrees with the comment. This interpretation
of §21.37(b)(1) would nullify its use as criteria for the proper location
of a utility line. The department cannot be limited to documented planned
expansions of a highway facility when considering a utility facility’s
location within the right of way. The ability to use reasonable consideration
of possible future expansions is prudent for the protection of the highway
system and to avoid needless utility relocations in the future. A utility
may coordinate a proposed location with the department prior to the design
stage.
Comment: Four commenters stated that subsection (b)(2) of §21.37 fails
to enumerate the conditions upon which the department will allow longitudinal
installations. The use of the phrase "if allowed" in the subsection gives
the department the authority to indiscriminately deny longitudinal installations.
Response: The department disagrees with the comment. The phrase "if allowed"
reserves to the department its authority to deny any utility installation
that would create a hazard to the highway facility, traveling public, or other
utility installations.
Comment: Six commenters stated that the requirement that all new utility
lines that cross the highway shall be installed at a 90 degree angle to the
centerline of the highway is too stringent. This requirement can be financially
burdensome and potentially pose a safety hazard. The department should either
delete the language or replace it with language giving utilities the ability
to achieve as close to a 90 degree angle as practical.
Response: The department disagrees with this comment. The 90 degree angle
minimizes the length of pavement that must be crossed, which reduces potential
damage to the pavement and the length of the bore, as well as making it easier
to locate the utility after it is installed. The rule requires lines to cross
at "approximately" 90 degrees, which provides adequate flexibility for utilities.
Utilities that find the 90 degree requirement impractical may request an exception
under §21.35.
Comment: A commenter noted the broad wording contained in §21.37(b)(4)
giving the department the authority to determine appropriate horizontal clearances
would allow the department to force utilities to bury their lines when unnecessary.
This authority has already been primarily delegated to the Public Utility
Commission.
Response: The department disagrees with this comment. Since the department’s
authority to regulate the manner of utility installations is limited to instances
affecting the safety of the highway facility or the traveling public, the
department would have no authority to require the underground installation
of electric facilities except under such circumstances. This rule simply disallows
the placement of fixed objects in the horizontal clearance, an area established
in accordance with national American Association of State Highway and Transportation
Officials (AASHTO) standards to allow a driver to recover control over his
or her errant vehicle. As indicated in subsection (b)(4), the department has
established a Horizontal Clearance Policy to assist utilities in installing
their facilities in a safe manner.
Comment: One commenter suggests adding subsurface engineering to the design
requirements in §21.37(b)(5).
Response: The department disagrees with this comment because requiring
a utility to conduct subsurface engineering could impose an unreasonable burden
and expense.
Comment: Six commenters noted that a utility cannot comply with §21.37(b)(5)
because it does not contain a mechanism for a utility planning a new installation
to know when another utility has previously filed plans showing its installations,
nor does it have control over whether the department will supply such plans.
Additionally, a utility cannot install its facilities subject to "approved
future utilities" that may be installed within the right of way as such is
an unknown. One of the commenters requested inclusion of language mandating
department compliance in delivering information concerning prior utility installations.
Response: The department disagrees with the comments. Utility facility
occupation of department right of way, although statutorily allowed, is a
voluntary exercise on the part of the utility. The subsection establishes
that it is a utility’s responsibility to conduct due diligence to determine
whether prior installations have occurred. To maintain the safety of all concerned,
it is in the department’s best interest to assist utilities by providing
whatever information it may have; therefore, language mandating compliance
would be cumulative of current practice. The requirement that a new installation
must be compatible with future installations means only that the new installation
must use minimal right of way area so that space is available for other future
utility installations.
Comment: Two commenters stated that subsection (b)(6) of §21.37 can
be read to exclude utilities entirely from controlled access highways because
the department could deny installation to any utility whose maintenance might
require access from the mainlanes or ramps. The commenter suggests amendment
of the subsection to state that installations should be made in such a manner
that maintenance is not necessary from mainlanes or ramps. It is also recommended
that discretion for exceptions to this rule be given to the districts.
Response: The department disagrees with the comments. Utilities that elect
to install facilities along controlled access highways or freeways do so subject
to the safety of the traveling public. Subsection (b)(6) makes clear that
installations requiring maintenance that would subject the traveling public
to an increased risk, as would occur on controlled access highways or freeways,
are generally prohibited. However, new §21.35, Exceptions, allows a utility
to seek an exception from the department to allow such installations. Having
exceptions considered at the division level rather than at the district level
allows for better consistency statewide.
Comment: Three commenters stated that §21.37(b)(7) would require that
utility lines currently located in the center median, outer separation, or
beneath existing pavement be relocated. This subsection would create an unreasonable
economic burden because those installations currently located in such areas
are not a safety issue so their relocation is not warranted. There is an additional
logistical burden since many urban areas cannot accommodate installations
in any other areas. The commenters request that the current installations
be allowed to remain and that the department grant exceptions to this subsection
if warranted.
Response: The department, being an agency of the state, possesses no authority
to act in a manner that exceeds its statutory grant from the Legislature.
The authority to require the relocation of a utility’s facility is limited
to those circumstances involving an improvement to the state highway system,
or an existing installation that is deemed unsafe. As such, the department
possesses no legal authority to enforce a rule that requires a utility to
relocate its facilities from their current location absent the occurrence
of one of the two above reasons. Therefore, the only legal application of §21.37(b)(7)
would be that a utility would be required to relocate its facility only if
an improvement to the state highway system were made. New §21.35, Exceptions,
allows a utility to seek an exception from the district to allow the installations
contemplated by this subsection.
Comment: Six commenters stated that the first sentence in subsection (c)
of §21.37 should be deleted. The sentence illegally assigns occupying
utilities the responsibility to protect the public investment in the highway
and maintain public safety.
Response: The department disagrees with this comment. The sentence does
not assign a general duty of care to utilities. Consistent with the heading
of this subsection, "Plans," and the department’s duty to protect the
highway facility and the traveling public, a utility will be held accountable
for the submission of plans that are sensitive to these duties. Those plans
that do not meet these minimum criteria for occupation will be returned to
the utility for correction.
Comment: Five commenters said that §21.37(c)(1), requiring that utility
installations be "of durable materials" should only apply to those installations
made subsequent to the adoption of these rules and not to existing facilities.
The requirement of "satisfactory design and condition" does not give adequate
guidance regarding the department’s requirements. The phrase that a
facility should be "free from routine service or maintenance" is vague and
possibly dangerous, and determination of maintenance needs should be left
exclusively to the utility. One of the commenters stated that authority to
review pipeline records, referring to the application of the subsection to
existing facilities, rests with the Railroad Commission of Texas.
Response: This subsection is a readoption of repealed §21.38(b). As
stated in new §21.32, the purpose of these rules is to provide standards
for the installation, adjustment, and maintenance of utility facilities. This
new subchapter does not apply to existing facilities unless the utility is
performing maintenance or adjusting its facility or the facility creates a
safety hazard to the highway or the traveling public. No review of existing
pipeline records would be required. The requirement that existing utilities
be of "satisfactory design and condition" in the opinion of the district refers
to the possibility that a utility facility may be discovered to have failed
in some manner, such as a leak or a collapsed carrier or encasement line.
That an installed utility should be "free from routine service or maintenance"
is not an absolute prohibition; however, acknowledging that utility maintenance
on the right of way creates a potential hazard to the traveling public, plans
submitted to the department for the installation of facilities should attempt
to minimize maintenance needs.
Comment: Four commenters requested clarification of the requirement in §21.37(c)(2)
that utilities shall avoid disturbing existing drainage courses. This requirement
could be interpreted to prohibit trenching across drainage courses. The commenter
wants a revision changing the requirement to "whenever possible."
Response: The department disagrees with the comment. It is not necessary
to further clarify the section. The rule does not prohibit disturbing drainage
courses, but only requires utilities to avoid doing so. To ensure the protection
of the highway system and the traveling public, the department has installed
multiple flood control facilities throughout the state. A utility installation
that interferes with the planned drainage courses risks flooding and injury.
Plans submitted to the department for the installation of facilities should
be drawn so that the facility, and its installation avoids disturbing current
drainage courses.
Comment: One commenter interpreted §21.37(c)(3) to require utilities
to submit utility plans that contemplate and accommodate future unknown highway
projects or other utility installations.
Response: The department disagrees with the comment. The requirement that
the expansion of an existing installation must minimize interference with
future installations means only that the expansion should be designed to use
minimal right of way area so that space is available for other future utility
installations. The department agrees that a utility could only reasonably
be held to the standard of planning a facility expansion subject to documented
future highway projects.
Comment: A commenter suggested making it an additional requirement to submit
a traffic control plan.
Response: The department disagrees with this comment. Under current regulations,
a traffic control plan must be filed by a utility if its installation or maintenance
will affect the safe flow of traffic on a highway facility.
Comment: Several comments were received against the inclusion of "vertical
elevations" in plan requirements contained in §21.37(c)(4), and the discretion
of the department to require utilities to supply signed and sealed as-built
plans included in subsection (c)(5)&(6). The commenters were against these
provisions because they would require utilities to employ licensed professional
engineers or surveyors to sign and seal facility plans. The requirement of
signed and sealed plans is seen as unnecessary, time consuming, cost prohibitive,
and of minimal benefit.
Response: The department disagrees with these comments. Vertical elevations
are needed rather than depths of cover due to the potential for erosion or
siltation over time that will change the depths. Having the elevation will
greatly aid department personnel, highway contractors, utilities and utility
contractors in determining the location of existing utilities when excavating
on the right of way. This will help provide protection against potential damage
to utilities.
Due to the costs associated with the purchase of additional property in
many urban areas, the department must make optimal use of existing right of
way when making expansions to the state highway system. This need places pressure
upon the areas available for use by utilities for new installations. Texas
law does not authorize the department to purchase additional right of way
for use by utilities; therefore, to maintain an adequate safety factor for
the highway, its users, and occupying utilities, the department must be increasingly
certain of which utilities are buried and their location. The inclusion of
signed and sealed plans in these subsections helps ensure the department and
utilities that future uses of the highway facility may be done in a safe manner.
Although the department recognizes the cost burden that must be borne by the
utilities, the cost and inconvenience is small when compared to the increased
safety of the public and the cost of utilities acquiring their own right of
way.
The department has taken precautions in §21.37(c)(6) against arbitrary
and capricious determinations by a district for the need of signed and sealed
as-built plans by requiring a district to justify the need to the Maintenance
Division or Right of Way Division prior to imposing the requirement.
Comment: One commenter stated that the "traffic safety and access procedures"
that the department lists as part of a utility’s plans are actually
done prior to starting construction and are not part of the construction plans.
Response: The department agrees with this comment and has deleted the requirement
from the rules.
Comment: One commenter noted that the requirement of signed and sealed
plans addressed in subsection (c)(4)(5)&(6) of §21.37 conflicts with
Occupations Code, §§1001.058 & 1001.061. Those sections state
that the employees of utility and telephone companies are not subject to the
Texas Engineering Practice Act, and that the requirement of this subsection
is contrary to those provisions.
Response: The department disagrees with this interpretation. Although the
selected statutes exclude utility employees from complying with the Texas
Engineering Practice Act, they do not exclude utility companies from complying
with the requirements of the department when the utility is occupying state
right of way. Note especially that Occupations Code, §1001.058, does
not exclude from the Texas Engineering Practice Act an employee who has final
authority over engineering designs and plans. The department is adopting §21.37(c)(5)
with changes. The language in paragraph (5) has been reworded for clarification
purposes only.
Comment: Five comments were received regarding §21.37(d)(1)(C)&(G)
stating that the umbrella requirement that all utilities comply with the safety
provisions of these subparagraphs is too broad because the provisions are
not applicable to their type of utility.
Response: The subsection does not require safety measures that are inapplicable
to particular utilities, but act as a general instructional tool to be used
by utilities wishing to occupy department right of way. New §21.35 contains
criteria for the department to grant exceptions where needed.
Comment: One commenter stated that the provision in §21.37(d)(1)(D)
that requires additional protective measures for pipelines that are not encased
should be amended so that the determination of adequate safety measures is
left to the utilities.
Response: The department disagrees with this comment. The department is
charged with maintaining the safety of the highway facility and the traveling
public. What constitutes adequate safety measures on the right of way must
be subject to department scrutiny, and ultimately, department determination.
Discretion to allow exceptions to this rule is given to the department pursuant
to §21.35, Exceptions.
Comment: One commenter requested the department join a one call notification
center in lieu of subsection (d)(1)(I) of §21.37 that requires the utility
give the department 48-hour notice prior to engaging in maintenance operations.
Another commenter stated that the requirements of subsection (d) are overly
burdensome for minor maintenance operations.
Response: The department disagrees with this comment. The one call notification
centers only provide notices of some excavations. Shallow excavations and
above ground work are not included. Additionally, the department has the duty
to ensure the safety of the traveling public. This duty extends to insuring
that all utility installations on highway right of way are conducted with
the utmost safety. The notification requirements of this subsection will allow
the department sufficient time to determine if the installation is a potential
hazard to the traveling public and to recommend safety measures.
Comment: Comments were received that §21.37(d)(2) requires that a
utility that owns an easement to cross a highway must give up that easement
and locate in a department utility tunnel or bridge. This requirement impermissibly
forces a utility to divest itself of a property right. Another commenter states
that the subsection requires the utility to bear the expenses of this move,
whereas it is potentially reimbursable by the department.
Response: The department disagrees with these comments. A utility possessing
an easement has a constitutionally protected property interest and cannot
be divested of it without proper compensation. This subsection contemplates
the use of utility tunnels or bridges whenever feasible and does not state
that the use of a utility tunnel or bridge is mandatory, but that "consideration
should be given" to such structure. Reimbursement of relocation costs, if
any, for a utility to install its lines in such a structure would be subject
to state law.
Comment:>
to reflect that new lines may not be attached to bridges without the approval
of the executive director. The commenter is actually referring to subsection
(e)(2)(C) with this comment.
Response: The department agrees with this comment and has amended this
subsection to clarify its intent.
Comment: Five commenters stated that subsection (e)(2)(D) of §21.37
requires that power lines that carry greater than 600 volts will not be permitted
on bridges under any condition. The commenters also stated that districts
should have the discretion to allow greater voltages when no reasonable option
is available to the utility, such as when crossing lakes or rivers.
Response: The department agrees with this comment and has deleted the phrase,
"under any condition." Should a utility need to attach a line with greater
than 600 volts to a bridge, the utility may apply for an exception under §21.35,
Exception.
Comment: One commenter noted that should a pipeline utility request permission
to attach a pipeline to a proposed bridge, §21.37(e)(2)(E) states that
the cost will be borne by the utility. These rules are subject to state law
governing utility reimbursements.
Response: The department disagrees with this comment. By referring to "proposed
bridges," the subsection pertains to only new attachments. Reimbursement for
utility relocation costs will continue to be governed by state law.
Comment: Eight commenters stated that federal and state utility laws determine
the method and extent of vegetation management for utility installations.
Section 21.37(f), which requires department notification and approval prior
to a utility engaging in vegetation management, impermissibly infringes upon
these laws.
Response: The department disagrees with this comment. Under federal and
state safety restrictions, the department maintains a clear zone around all
highways upon which all vegetation that is a hazard to the traveling public
is removed. Vegetation that is permitted on the right of way is state property.
An occupying utility has no property right upon which to base a unilateral
removal of this asset. The department will seek to strike a balance between
a utility’s industry standards and its duty to protect state assets.
§21.38. Construction and Maintenance.
Comment: Four commenters stated that subsections (a)(2) and (c)(1) of §21.38
should be deleted because they illegally assign occupying utilities the responsibility
to protect the public investment in the highway facility.
Response: The department disagrees with this comment. The subsections do
not assign a general duty of care to utilities. Pursuant to the department’s
duty to protect the highway facility and the traveling public, and utilities’
status as an occupier of the right of way, a utility will be held accountable
for construction and maintenance activities that provide the highest level
of safety for both. Those activities that subject the facility and the public
to unreasonable risk will not be allowed.
Comment: Five commenters suggested the department join a one-call notification
center for utilities to notify the department prior to facility maintenance.
Another commenter states that the 48-hour notice requirement of §21.38(a)(3)
is unduly burdensome.
Response: It would not be appropriate for the department to join a one-call
notification center because it is not a utility. Additionally, the department
has the duty to ensure the safety of the traveling public. This duty extends
to ensuring that all utility installations on highway right of way are conducted
with the utmost safety. The notification requirements of this subsection will
allow the department sufficient time to determine if the installation is a
potential hazard to the traveling public and to recommend safety measures.
Comment: One commenter wants to amend §21.38(a)(4), the general prohibition
on cutting into pavement or riprap without department permission, to allow
cutting with a "prior written agreement" with the department or if the utility
possesses a "right".
Response: If a utility has a "prior written agreement" with the department,
the utility already has permission prescribed by this subsection. The department
assumes that, by "right," the commenter is referring to a property right.
In the event that the department is occupying a utility’s property interest,
the department and utility must execute a Utility Joint Use Agreement prior
to highway construction that would define the rights and responsibilities
of each. This would also serve as a "prior written agreement" providing the
utility with necessary authority.
Comment: One commenter asked whether the provision of §21.38(a)(4),
that states that utilities may not cut into the pavement or riprap without
written permission, applies to driveways or just the pavement of the highway
itself.
Response: Although the department issues permits to allow the construction
of driveways accessing the state highway system, the department generally
does not have physical ownership of the structures. To ensure the safety of
all concerned, individual districts should be consulted to determine if cutting
would be allowed in those areas where driveways cross department right of
way.
Comment: Five commenters suggested, under §21.38(a)(5), to include
a time frame of 30 days for a utility to reimburse the department for measures
taken pursuant to a utility’s failure to comply with the rules. Another
commenter suggested numerous revisions to subsection (a) to ensure the utility
is protected from costs being arbitrarily imposed by the department.
Response: Since there are many variables involved with the reimbursement
of these types of expenses, it is impractical to address them by rule.
Comment: Several commenters question the department’s authority to
prescribe vegetation management policy to utilities as stated in §21.38(b).
Utilities are required under other federal and state law to maintain vegetation
clearing policies unique to their type of utility. These requirements should
be deleted in their entirety, or amended so that agreements between a utility
and the department would be necessary for enforcement. One commenter requests
an amendment making subsection (b) subject to a utility’s prior rights.
Response: The department disagrees with this comment. Under federal and
state safety restrictions, the department maintains a clear zone around all
highways upon which all vegetation that is a hazard to the traveling public
is removed. Vegetation that is permitted on the right of way is state property.
An occupying utility has no property right or any other authority upon which
to base a unilateral removal of this asset. In the event that a utility possesses
a superior property right, the utility would be free to address vegetation
as it sees fit, subject to the safety requirements of the highway facility
and the traveling public. The department seeks to strike a balance between
a utility’s industry standards and its duty to protect state assets;
however, if a conflict exists, the more restrictive policy will prevail.
Comment: Five commenters suggested that §21.38(b)(6), concerning utility
reimbursement to the department for damages to roads, drives, terrain, landscaping,
or fences, is without due process. They claim that the department could arbitrarily
assess such damages to a utility without an opportunity for the utility to
repair the damage or without seeking input from the utility.
Response: Since there are many variables involved with the assessment and
reimbursement of these types of expenses, it is impractical to address them
by rule.
Comment: One commenter suggested including signed and sealed traffic control
plans in subsection (c).
Response: Such a requirement would be an unnecessary expense since specific
traffic control measures are required under the Texas Manual on Uniform Traffic
Control Devices (TMUTCD).
Comment: Four commenters questioned the requirement under §21.38(c)(2)&(3)
that traffic control devices conform to the National Cooperative Highway Research
Project (NCHRP) Report 350. The commenter believes that compliance with TMUTCD
is sufficient.
Response: The NCHRP Report sets crashworthiness standards, whereas the
TMUTCD sets the standards for traffic control layouts and the devices to be
used. Traffic control devices must conform to both.
Comment: Five commenters noted that under §21.38(d)(1) a utility is
responsible for making requests for emergency repairs through the appropriate
district office. By definition, appropriate notification cannot be given for
"emergency maintenance."
Response: The department, in this subsection, does not require prior notification
for emergency maintenance, only that the notice of the maintenance, when made,
be directed to the district office. In an emergency maintenance situation
notification to the district may sometimes be feasible prior to initiating
the maintenance. Typically, however, such notification is practical only after
the emergency maintenance is performed.
Comment: A commenter stated that requiring a utility to relocate a facility
that is not installed in the location shown on approved construction plans,
as mandated by §21.38(d)(2), is too broad. Installation of underground
facilities is not an exact science and a utility could be penalized for installation
"inches from the design location."
Response: The department recognizes the inexact science of underground
utility installation and the existence of industry tolerances for such installations.
However, this provision is designed to allow the department to better manage
its right of way.
§21.39. Ownership/Abandonment/Idling.
Comment: Multiple comments were received regarding §21.39(a). Subsection
(a) does not recognize the right of a utility to receive compensation for
those property rights that are acquired by the department; nor does it recognize
any right for a utility to be reimbursed for the acquisition of a substitute
property interest if desired.
Response: Transportation Code, §203.092, dictates the rights of a
utility when it possesses a property interest and is required to relocate
its facilities. Since the level of reimbursement is determined on an individual
fact basis, subsection (a) is not intended as an exhaustive restatement of
current law. It merely acknowledges that the department will acquire the property
interest of the utility if the property is located within the new highway
right of way. Transportation Code, §203.092, and federal law control
the extent of utility reimbursements, including replacement property interests.
Reimbursements will be made pursuant to those laws.
Comment: One commenter suggested amending §21.39(b) to require the
department to contact the regulatory agency overseeing the utility to determine
if ownership of a facility has changed.
Response: The department disagrees with this comment. When facilities are
located on department right of way, it is incumbent upon the utility to provide
notice of a change in ownership. Should it be necessary for the department
to contact a utility for a proposed highway improvement, the department should
not be subject to uncertainty as to what entity the utility is operating under.
By requiring notification solely to the department, uncertainty is minimized.
Comment: Several comments were received regarding the abandonment of facilities
under §§21.39(c)(1)(A),(B)&(C). Two commenters suggested the
subsection be deleted in its entirety since either the Railroad Commission
of Texas or federal law has jurisdiction over pipeline abandonment. Other
commenters objected to the entire provision as being too onerous and burdensome.
The overall objection is that, once abandoned, and especially if the utility
releases its property interest, the utility should have little or no further
responsibility towards the facility. One commenter suggested referencing Chapter
251, Utilities Code, in subsection (c).
Response: To reduce the cost of future improvements to a highway facility,
and to ensure the safety of the facility and other utility users, abandoned
utility facilities should be removed. In many instances, the removal of the
facility is reimbursed by the department. At a utility’s request, the
department affords discretion to the District Engineer to allow abandoned
utilities to remain in place conditioned upon the criteria contained in subsection
(c). Since the facility was installed due to the need of the utility, if it
wishes to abandon the facility, the department should not bear expenses for
the safety, location, or future removal of the facility. The requirements
of §21.39(c) do not conflict with other regulatory authorities as the
department has the primary duty to ensure the safety of its facilities. The
secondary use by utilities of highway right of way does not provide authority
to determine what constitutes safe use. Note that the department elects not
to reference specific industry regulations in its rules unless necessary;
however, such election does not absolve a utility from abiding by those laws.
Comment: A commenter stated that for high and low pressure gas pipeline
abandonment under §21.39(c)(1)(C)(4), certification of conformance with
all applicable laws should be made to the regulatory agency having authority
over the utility. One commenter stated that clause (iii) of §21.39(c)(1)(A)
is overly burdensome because some of the requested information may be unknown
by the utility.
Response: Since the pipeline occupies department property, the department
has the responsibility to ensure that the gas pipeline has been properly and
safely abandoned. It is the department that grants the permission for abandonment
in place, and the department must ensure the safety of the highway facility
and its users; therefore, notice should properly be sent to the department
once complete. The department acknowledges that it cannot reasonably hold
a utility responsible for information that the utility does not possess.
Comment: A commenter stated that the requirements under §21.39(c)(4)(B),
that an abandoning utility must submit to the department written certification
that the abandonment conforms to the most stringent legal or industry standard,
is open ended. The utility is unable to determine what is required.
Response: The requirement is that whatever the most stringent abandonment
standard to which the utility is subject, whether required legally or by industry
standards, is the level of certification adopted by the department. The utility
will be required to submit to the department a certification that it has conformed
to the most stringent standard.
Comment: Four commenters noted that subsection (c)(6), requiring that records
of the abandoned pipeline should be kept in a utility’s permanent file,
should be deleted in its entirety. Retention of records is regulated by other
entities.
Response: Highway improvement is an ongoing process requiring changes subject
to the needs of the traveling public. The department is unable to recommend
a retention schedule for abandoned utilities since the department cannot determine
when in the future the records will be necessary due to an improvement. Permanently
retaining the records is the only way to ensure that such information will
be available to the department when needed.
Comment: One commenter supports the section and suggested including the
requirement of Global Positioning System data for all abandoned utilities.
Response: The department has determined that requiring this data would
create an unnecessary expense.
§21.40. Underground Utilities.
Comment: Several commenters stated that §21.40(a)(1)(A), regarding
the casing of underground utilities crossing the highway, provides no standard
for utilities to demonstrate to the department that their casing is adequate
for expected loads and stresses. One commenter stated that using steel casing
on steel pipelines is not good engineering practice.
Response: Standards applicable to utilities to demonstrate adequate casing
will be set out in the department’s policy manual. Installations that
exceed the flexibility of the rules may be evaluated through an exception
request pursuant to §21.35. A substitute casing would be allowed in the
event that a required casing would constitute a poor engineering practice.
Comment: Two commenters noted that §21.40(a)(1)(B) should be amended
to allow a utility the discretion to determine whether steel, concrete, or
plastic casing is the appropriate material for encasement.
Response: The department disagrees with this comment because the department
must determine whether the material is adequate for the expected loads and
stresses of the highway facility.
Comment: A commenter suggested that the depth of pipeline cover outlined
in §21.40(a)(2)(D) should be increased from its present 6 inches to 12
inches.
Response: The department has determined that 6 inches of cover is sufficient
for safety purposes. However, the department encourages utilities to use the
industry standard if it will provide greater safety to the facility and the
traveling public.
Comment: One commenter was concerned that the restrictions on manholes
in the pavement or shoulder of a highway in §21.40(a)(3)(A) might be
applied when there is a prior agreement between the department and a utility
regarding the installation of these manholes.
Response: The department recognizes the limitations of highway space in
some urban areas. Prior agreements between the department and a utility that
conflict with these regulations will not be disturbed.
Comment: One commenter wants casing decisions under §21.40(a)(4)(A),
regarding the method for placing lines beneath an existing highway, left to
the utility. Another commenter claims the term "jacking" is misused, that
the department wishes to prohibit the ramming of pipeline under the highway,
whereas the term actually means the excavation of soil for that purpose.
Response: The department must determine if casing is needed due to the
expected loads and stresses of the highway facility. The department stands
by its use of the term "jacking" meaning the forcing of pipeline through loose
soils; the commenter may have a different industry definition.
Comment: Four commenters stated §21.40(a)(3)(B) limits the equipment
that may be installed in manholes that occupy the right of way. One commenter
requests clarification of what equipment is prohibited, and what is the need
for the department to restrict that type of equipment.
Response: The department limits the equipment that may be placed in right
of way manholes due to safety and maintenance concerns. The equipment listed
either poses an unreasonable risk of harm to the facility or the traveling
public, or requires an unacceptable level of maintenance. To ensure the safety
of the traveling public, the department attempts to maintain a clear right
of way. To assist in this endeavor, the department seeks to limit utility
equipment requiring maintenance from occupying the right of way, preferring
that utilities locate high maintenance facilities on non-departmental property.
Comment: Four commenters requested the department to change the required
size of manhole covers contained in §21.40(a)(3)(C). The requested change
is from an outside width of 10 feet to 14 feet, and the depth from a minimum
of 5 feet to a minimum of 3 feet. Changing the utility’s dimensions
to fit this subsection will cause the commenter undue hardship and burden.
Response: The department suggests the commenter avail itself of §21.35,
and apply for an exception with the district office. If this is the utility’s
standard historical practice, §21.40(a)(3)(C) is not intended to prohibit
utility customary practices that meet district approval.
Comment: Four commenters requested that the department be flexible concerning §21.40(a)(4)(b),
which sets out required clearances from lanes of traffic for equipment located
within the right of way. The commenter regularly uses different clearances
with greater safety measures when needed.
Response: The department suggests the commenter avail itself of §21.35
and apply for an exception with the district office. The subsection is not
intended to prohibit utility customary practices that meet district approval.
Comment: A commenter suggested the restrictions for unsuitable pipeline
conditions on pipeline crossings contained in §21.40(a)(6) should be
relaxed. The "shall" provision should be changed to "should" to allow flexibility.
The commenter also requested clarification as to the safe clearances near
footings or bridges and retaining walls.
Response: The department disagrees with this comment. The use of the term
"generally unsuitable," when referring to the restricted conditions, is intended
to provide flexibility on those occasions when the conditions may be appropriate.
A utility may apply for an exception under §21.35 if use of one of the
conditions is necessary.
Comment: Five commenters noted that the department-required clearances
between pipelines and other utilities provided in §21.40(a)(7) should
be subject to prior private agreements between pipeline owners and utilities.
One commenter requested that the portion of the first sentence allowing districts
the discretion to allow greater clearances should be removed.
Response: The department disagrees with this comment. Unless the department
is a party to the agreement, the department will not recognize contractual
agreements between public utilities concerning department right of way when
the safety of the highway facility or traveling public is at issue. With regard
to existing utilities, no adjustment will be necessary unless the department
determines that there is a significant safety issue, or there is an improvement
to the highway facility. A utility may apply for an exception from the district
office in accordance with §21.35 if it can show that there is no safety
issue due to the method of installation.
Due to the differences in geography between districts, the department allows
individual districts to require greater clearances if necessary for the safety
of the facility and traveling public. These supplemental requirements can
be appealed to the Maintenance Division or Right of Way Division at the discretion
of the utility.
Comment: A commenter stated that §21.40(a)(9), regarding the department’s
requirements for utilities locating in department drainage easements, should
be eliminated entirely. The department has no authority outside of its right
of way.
Response: The commenter's statement is unsupported in the law. Under Texas
law, the owner of an easement has the right of unencumbered use of the property
to the extent that such does not violate the terms of the easement. Unencumbered
use of a drainage easement owned by the department allows the department to
control the method of installation of any utility to ensure that the drainage
characteristics of the land are undisturbed.
Comment: Six commenters said that §21.40(a)(10) should be deleted.
The subsection requires current longitudinal installations to be relocated
at a district’s discretion if they are located under a pavement structure
or shoulder of a highway.
Response: Section 21.40(a)(10) offers discretion to the district for requiring
a relocation in this instance. If the installation does not pose a safety
threat to the facility, and does not require routine maintenance that could
pose a threat to the traveling public, it is department policy to allow these
installations to remain.
Comment: Seven commenters to §21.40(a)(11) stated that requiring pipeline
markers showing operating pressure and depth of cover at highway crossings
is an undue burden, can lead to reliance upon faulty information, and can
be an aid to terrorism.
Response: The department disagrees with this comment. The additional information
serves to protect the transportation facility and would allow the department
to contact the appropriate personnel in the case of an emergency. Requiring
a marker at highway crossings does not remove the responsibility of another
utility or the department to contact a pipeline utility when work on the right
of way is contemplated.
Comment: A commenter requested that the requirements for outlets for underdrains
that are necessary in some underground utilities, as described in §21.40(a)(12),
be deleted.
Response: The use of outlets for underdrains provides superior protection
of the highway facility. An exception request to the use of outlets may be
made under §21.35.
Comment: Four commenters suggested that the term "underdrains" contained
in §21.40(a)(13) needs to be defined.
Response: The department disagrees with the comment and feels the context
clearly indicates the meaning of the term.
Comment: One commenter requested that the depth of cover for low-pressure
gas lines required under §21.40(b)(1)(A)(ii)(I) be changed from "18 inches"
to "18 inches or one-half of the diameter of the pipe, whichever is greater,"
beneath the bottom of the pavement structure. The commenter makes a similar
request for subsection (b)(1)(A)(ii)(II) that the depth of cover for paved
areas and under ditches remain at 24 inches instead of the proposed 48 inches.
Response: The department disagrees with this comment. The department has
determined that the depth of cover provided in the repealed rules is insufficient
to provide adequate safety for the highway facility and the traveling public.
Should a utility determine that the requirement is unduly burdensome, it may
appeal the requirement through the exception process outlined in §21.35.
Comment: One commenter requested the depth of cover in §21.40(b)(1)(B)
not be increased to 36 inches and should remain at 24 inches as stated in
the current rules.
Response: The department disagrees with this comment. The department has
determined that the depth of cover provided in the repealed rules is insufficient
to provide adequate safety for the highway facility and traveling public.
Should a utility determine that the requirement is unduly burdensome, it may
appeal the requirement through the exception process under §21.35.
Comment: A comment was received concerning §21.40(b)(1)(B)(i), which
states that low-pressure gas lines crossing the pavement shall be placed in
a steel encasement. The commenter noted that this is against good engineering
practices. An additional comment is that the title of the subsection refers
to longitudinal placement, and the inclusion of crossings is inconsistent
with such a placement.
Response: To prevent any confusion, §21.40(b)(1) is adopted with changes
by renumbering the clauses from (i) through (iv) to subparagraphs (C)-(F)
to be consistent with §21.40(b)(2). Subsection (b)(1)(B)(i) specifically
states that in the event a utility must encase a steel pipeline that the district
may waive the requirement if the line is of welded steel construction, and
cathodic protection or cold tar epoxy wrapping is used.
Comment: Five commenters stated that venting of low-pressure gas lines,
as required in §21.40(b)(1)(B)(ii), is not necessary and should be deleted.
It was further stated a utility should be able to provide proof to the department
that the encasement of a plastic line at a crossing, as required in subsection
(b)(1)(B)(iii), is unnecessary for safety purposes. Finally, the commenter
wants clarification that markers are an exception to the restriction of above
ground appurtenances contained in (b)(1)(B)(iii).
Response: The department disagrees with this comment. The department has
determined that venting of low-pressure gas lines is necessary to provide
adequate safety for the highway facility and the traveling public. Should
a utility determine that this requirement is unduly burdensome, or if it believes
that the strength of plastic pipe at a crossing provides adequate safety,
it may appeal the requirement through the exception process under §21.35.
The department considers its requirements for markers for underground pipelines
to be excluded from the language of §21.40(b)(1)(B)(iii). It is again
noted that this subsection is adopted with changes to the numbering format.
Comment: A commenter suggested that subsection (b)(1)(D)(iv) of §21.40
should be deleted because the department may not require modifications to
a utility facility that was installed in accordance with prior rules. Additionally,
it is inappropriate to use steel casing to protect steel lines.
Response: The subsection offers discretion to the district for requiring
a relocation in this instance. If the current installation does not pose a
safety threat to the facility, and does not require routine maintenance that
could pose a threat to the traveling public, it is department policy to allow
these installations to remain. The subsection referred to in the comment does
not contain reference to steel casing or lines.
Comment: One commenter requested that subsection (b)(2)(C) include concrete
protective slabs in addition to encasement as a method of protection for high-pressure
lines.
Response: The department disagrees with this comment. The department has
determined that encasement is necessary to provide adequate safety for the
highway facility and traveling public, and to keep utility incursions into
the right of way to a minimum. The inclusion of concrete slabs as a method
of protection would preclude the use of the covered right of way by the department
or other utilities. Should a utility determine that this requirement is unduly
burdensome, it may appeal the requirement through the exception process under §21.35.
Comment: Two commenters stated the requirement that vents for high pressure
lines be installed immediately above the pipeline, as required by §21.40(b)(2)(E),
is overly burdensome because in some instances such installation would be
impractical. Additionally, the restriction of above ground appurtenances contained
in subsection (b)(2)(F) precludes the installation of cathodic protection
facilities or valve assemblies necessary for the safety of the utility facility.
Response: The department disagrees with this comment. If the vent cannot
be placed immediately above the pipeline or if the installation of valve assemblies
is necessary to protect the safety of the highway facility or the traveling
public, an exception may be applied for with the district under §21.35.
Comment: Four commenters stated that although a utility by rule is allowed
to encase electric lines in "comparable materials," other than steel as stated
in §21.40(f)(1)(b), in practice the department does not allow alternative
encasements. The commenter suggested amending the rule to allow a utility
discretion to use materials approved in industry standards.
Response: The department does not agree with the comment. If sufficient
proof is provided to the district that the comparable materials are of sufficient
strength to provide adequate safety, the district will allow the use of such
materials. Such issues should be addressed through the exception procedure
outlined in §21.35 to the Maintenance or Right of Way Divisions. Discretion
in this area is reserved to the department to ensure safety and uniformity
of rule application.
Comment: One commenter stated that §21.40(f)(2)(D)(i), which requires
that the owner and the occupier of shared conduit space must submit a joint
Utility Installation Request for new line installations, should be deleted.
The owner, under federal law, would have no right to require the occupier
to submit such a request.
Response: The department has the responsibility to be informed of all installations
to be performed on state right of way, as well as all occupiers of that right
of way. The department is aware that a conduit owner cannot exclude other
telecommunications providers under federal law; however, the installation
of a new line in existing conduit is considered a new installation by the
department, and thus subject to the notification requirements. The information
requested will not be used for any purpose other than as a tool to gather
the pertinent facts regarding the installation of the new lines.
§21.41. Overhead Electric and Communication Lines.
Comment: A commenter requested the deletion of subsection (a), regarding
methodology of installing overhead electric lines, because the authority for
regulation lies with the Public Utility Commission of Texas (PUC).
Response: The department disagrees with this comment as it has authority
over the manner in which a utility installs or maintains its facility on department
right of way to the extent that there is a potential impact upon the safety
of the highway facility or the traveling public.
Comment: Five commenters noted that the restriction in §21.41(d)(1),
that the diameter of utility poles may not exceed 36 inches, is overly burdensome
and expensive. This restriction will require utilities to install more poles,
or in the alternative to install guy wires to support the weight of lines
placed on poles. One commenter stated that the department has no authority
to regulate the method of installation of utility poles; the authority for
regulation lies with the PUC.
Response: The department disagrees with this comment. For the safety of
the traveling public, and to conform to its policy of a clear right of way,
the department was required to determine at what diameter a utility pole becomes
an unacceptable collision hazard. Thirty-six-inch diameter poles were chosen
because of their smaller footprint upon the highway facility and their use
as an electric industry standard. Larger poles, and their attendant supporting
structures, create an unacceptable risk to the traveling public. The department
has authority over the manner in which a utility installs or maintains its
facility on department right of way to the extent that there is a potential
impact upon the safety of the highway facility or traveling public.
Comment: Concerning §21.41(d)(2) and (3), five commenters stated that
the prohibition of electric poles being placed in the center median of a highway
or that electric lines not being allowed to cross bridge or grade separation
structures, is unreasonable for urban areas. Restricted space in these areas
may require such an installation, and the commenter requests the district
be given discretion to allow them.
Response: The department agrees with this comment. In the event such an
installation is necessary, the utility may avail itself of the exception process
outlined in §21.35. For grammatical purposes, the department is adopting §21.41(d)(3)
with a change by deleting "at any time" at the end of the second sentence.
Comment: Several commenters requested that §21.41(e) be amended so
that industry standards for marking and identifying electric poles can be
used. The department’s requirements are too burdensome when compared
to industry standards.
Response: The department disagrees with the comment. Even though there
may be a single set of poles occupying the right of way, there is the likelihood
that multiple utilities will be occupiers of the poles. If an adjustment to
the poles becomes necessary, the additional marking requirements will allow
the department to expeditiously contact the owners and occupying utilities
and arrange for the adjustment.
43 TAC §§21.31 - 21.51
STATUTORY AUTHORITY
The repeals are adopted under Transportation Code, §201.101, which
provides the commission with the authority to establish rules for the conduct
of the work of the department.
CROSS REFERENCE TO STATUTE: None.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 25, 2005.
TRD-200500872
Bob Jackson
Deputy General Counsel
Texas Department of Transportation
Effective date: March 17, 2005
Proposal publication date: November 12, 2004
For further information, please call: (512) 463-8630
43 TAC §§21.31 - 21.41
The new sections are adopted under Transportation Code, §201.101,
which provides the commission with the authority to establish rules for the
conduct of the work of the department.
CROSS REFERENCE TO STATUTE: None.
§21.31.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
AASHTO--American Association of State Highway and Transportation
Officials.
(2)
Abandoned utility--A utility facility:
(A)
that no longer carries a product or performs a function
and for which the owner is unknown or cannot be located; or
(B)
whose owner has requested abandonment and the abandonment
has been approved by the district.
(3)
Access denial line--A line concurrent with the common property
line across which access to the highway facility from the adjoining property
is not permitted.
(4)
As-Built plans-- Drawings showing the actual locations
of installed or relocated utilities.
(5)
Border width--The area between the edge of pavement structure
or back of curb to the right of way line.
(6)
Bridge abutment joint--The joint between the approach slab
and bridge structure.
(7)
Center median--The area between opposite directions of
travel on a divided highway.
(8)
Certified as-installed construction plans--The construction
plans for the installation of a utility, accompanied by an affidavit certifying
that the facility was installed in accordance with the plans.
(9)
Commission--The Texas Transportation Commission.
(10)
Common carrier--As defined in the Natural Resources Code, §111.002.
(11)
Conduit--A pipe or other opening, buried or above ground,
for conveying fluids or gases, or serving as an envelope containing pipelines,
cables, or other utilities.
(12)
Controlled access highway--A highway so designated by
the commission on which owners or occupants of abutting lands and other persons
are denied access to or from the highway main lanes.
(13)
Department--The Texas Department of Transportation.
(14)
Depth of cover--The minimum depth as measured from the
top of the utility line to the ground line or top of pavement.
(15)
Design vehicle load (HS-20)--A design load designation
used for bridge design analysis representing a three-axle truck loaded with
four tons on the front axle and 16 tons on each of the other two axles. The
HS-20 designation is one of many established by AASHTO for use in the structural
design and analysis of bridges.
(16)
Distribution line--That part of a utility system connecting
a transmission line to a service line.
(17)
District--One of the 25 geographical districts into which
the department is divided.
(18)
District engineer--The chief administrative officer in
charge of a district, or his or her designee.
(19)
Duct--A pipe or other opening, buried or above ground,
containing multiple conduits.
(20)
Engineer--A person licensed to practice engineering in
the state of Texas.
(21)
Executive director--The chief administrative officer of
the department.
(22)
Freeway--A divided highway with frontage roads or full
control of access.
(23)
Frontage road--A street or road auxiliary to, and located
alongside, a controlled access highway or freeway that separates local traffic
from high-speed through traffic and provides service to abutting property.
(24)
Gathering line--A line that delivers raw product from
various sites to a central distribution or feed line for the purposes of refining,
collecting, or storing the product, and is private in function and does not
directly or indirectly serve the public.
(25)
Hazardous material--Any gas, material, substance, or waste
that, because of its quantity, concentration, or physical or chemical characteristics,
is deemed by any federal, state, or local authority to pose a present or potential
hazard to human health or safety or to the environment. The term includes
hazardous substances, hazardous wastes, marine pollutants, elevated temperature
materials, materials designated as hazardous in the Hazardous Materials Table
(49 CFR §172.101), and materials that meet the defining criteria for
hazard classes and divisions in 49 CFR Part 173 (49 CFR §171.8).
(26)
High-pressure gas or liquid petroleum lines--Gas or liquid
petroleum pipelines that are operated, or may reasonably be expected to operate
in the future, at a pressure of over 60 pounds per square inch.
(27)
Horizontal clearance--The areas of highway roadsides designed,
constructed, and maintained to increase safety, improve traffic operation,
and enhance the appearance of highways.
(28)
Idled facility--A utility conduit or line which temporarily
does not carry a product, or does not perform a function and whose owner has
not provided a date for its return to operation.
(29)
Inclement weather--Weather conditions that are hazardous
to the safety of the traveling public, highway or utility workers, or the
preservation of the highway.
(30)
Low-pressure gas or liquid petroleum lines--Gas or liquid
petroleum pipelines that are operated at a pressure not exceeding 60 pounds
per square inch.
(31)
Main lanes--The traveled way of a freeway or controlled
access highway that carries through traffic.
(32)
Maintenance Division--The administrative office of the
department responsible for the maintenance and operation of the state highway
system.
(33)
Noncontrolled access highway--A highway on which owners
or occupants of abutting lands or other persons have direct access to or from
the main lanes by department permit.
(34)
Outer separation--The area between the main lanes of a
highway for through traffic and a frontage road.
(35)
Pavement structure--The combination of the surface, base
course, and subbase.
(36)
Private utility--Any utility facility, its accessories,
and appurtenances, including gathering lines devoted exclusively to private
use.
(37)
Public utility--A person, firm, corporation, river authority,
municipality, or other political subdivision engaged in the business of transporting
or distributing a utility product for public consumption.
(38)
Ramp terminus--The entrance or exit portion of a controlled
access highway ramp adjacent to the through traveled lanes.
(39)
Right of Way Division (ROW)--The administrative office
of the department responsible for the acquisition and management of the state
right of way.
(40)
Riprap--An appurtenance placed on the exposed surfaces
of soils to prevent erosion, including a cast-in-place layer of concrete or
stones placed together.
(41)
Service line--A utility facility that conveys electricity,
gas, water, or telecommunication services from a main or conduit located in
the right of way to a meter or other measuring device that services a customer
or to the outside wall of a structure, whichever is applicable and nearer
the right of way.
(42)
TMUTCD--The most recent edition of Texas Manual on Uniform
Traffic Control Devices for Streets and Highways.
(43)
Transmission line--That part of a utility system connecting
a main energy or material source with a distribution system.
(44)
Utility--Any entity owning a public or private utility.
(45)
Utility appurtenances--Any attachments or integral parts
of a utility facility, including fire hydrants, valves, and gas regulators.
(46)
Utility facilities--All lines and their appurtenances
within the highway right of way except those for highway-oriented needs, including
underground, surface, or overhead facilities either singularly or in combination,
which may be transmission, distribution, service, or gathering lines.
(47)
Utility strip--The area of land established within a control
of access highway, located longitudinally within the border width, where an
assignment may be designated for a utility delineating the area of use, occupancy,
and access.
(48)
Utility structure--A pole, bridge, tower, or other aboveground
structure on which a conduit, line, pipeline, or other utility is attached.
§21.33.Applicability.
(a)
For highways under department jurisdiction, the provisions
of this subchapter concerning utility accommodation apply to:
(1)
new utility installations;
(2)
additions to or maintenance of existing utility installations;
(3)
adjustments or relocations of utilities; and
(4)
existing utility installations retained within the right
of way.
(b)
The provisions of this subchapter concerning utility accommodation
do not apply to utilities located within the rights of way of completed highways
for which agreements with the department were entered into before the effective
date of this subchapter.
(c)
This subchapter applies to utility lines not specifically
mentioned in accordance with the nature of the line. All lines carrying caustic,
flammable, or explosive materials shall conform to the provisions for high-pressure
gas and liquid fuel lines.
(d)
The district engineer or designee may prescribe special
district requirements on a specific installation or adjustment based on the
specific soil, terrain, climate, vegetation, traffic characteristics, type
of utility line, or other factors unique to the area.
§21.37.Design.
(a)
General. The design of any utility installation, adjustment,
or relocation is the responsibility of the utility. Utility design will be
accomplished in a manner and to a standard acceptable to the department. The
location and manner in which a utility installation, adjustment, or relocation
work will be performed within the right of way must be reviewed and approved
by the department. The department will review the measures to be taken to
preserve the safety and free flow of traffic, structural integrity of the
highway or highway structure, ease of highway maintenance, appearance of the
highway, and the integrity of the utility facility. Utility installations
shall conform with:
(1)
the requirements of this subchapter;
(2)
the National Electrical Safety Code rules for the installation
and maintenance of electric supply and communication lines;
(3)
23 CFR Part 645B, Accommodation of Utilities;
(4)
49 CFR Part 192, Transportation of Natural and Other Gas
by Pipeline: Minimum Federal Safety Standards;
(5)
49 CFR Part 195, Transportation of Hazardous Liquids by
Pipeline;
(6)
the latest American Society for Testing and Materials (ASTM)
specifications;
(7)
the latest edition of the Texas Manual on Uniform Traffic
Control Devices;
(8)
30 TAC §§290.38-290.47, relating to Rules and
Regulations for Public Water Systems; and
(9)
applicable state and federal environmental regulations,
including storm water pollution prevention, endangered species, and wetlands.
(b)
Location.
(1)
Utility lines shall be located to avoid or minimize the
need for adjustment for future highway projects and improvements, to allow
other utilities equal access in the right of way, and to permit access to
utility facilities for their maintenance with minimum interference to highway
traffic.
(2)
Longitudinal installations, if allowed, shall be located
on uniform alignments to the right of way line to provide space for future
highway construction and possible future utility installations.
(3)
New utility lines crossing the highway shall be installed
at approximately 90 degrees to the centerline of the highway.
(4)
The horizontal and vertical location of utility lines shall
conform with §21.41(c) of this subchapter, consistent with the clearances
applicable to all roadside obstacles. No aboveground fixed objects will be
allowed in the horizontal clearance.
(5)
The utility is responsible for determining whether other
utility lines exist at, or if plans have been submitted to the department
regarding, the proposed installation area. The utility must make every effort
to insure that the proposed installation is compatible with existing and approved
future utilities.
(6)
Utilities on controlled access highways or freeways shall
be located to permit maintenance of the utility by access from frontage roads,
nearby or adjacent roads and streets, or trails along or near the right of
way line without access from the main lanes or ramps. Utilities shall not
be located longitudinally in the center median or outer separation of controlled
access highways or freeways.
(7)
On highways with frontage roads, longitudinal utility installations
may be located between the frontage road and the right of way line. Utility
lines shall not be placed or allowed to remain in the center median, outer
separation, or beneath any pavement, including shoulders.
(8)
When a longitudinal installation is proposed within existing
access denial lines of a controlled access highway or freeway without frontage
roads and meets the conditions of §21.35 of this subchapter, the department
may establish a utility strip, specific to the requesting utility, designating
the area of use, occupancy, and access. All existing and proposed fences shall
be located at the freeway right of way line. Denial of access regarding property
adjoining the right of way line will not be altered.
(c)
Plans. Utilities shall be responsible and accountable for
protecting the public investment in the highway, inclusive of all its components,
and to maintain traffic capacity and safety for each highway user.
(1)
All utility installations shall be of durable materials
designed for long life expectancy and relatively free from the need for routine
servicing or maintenance. In addition to the requirements of this subchapter,
any existing utility lines to remain in place must be of satisfactory design
and condition in the opinion of the district.
(2)
Utilities shall avoid disturbing existing drainage courses.
In addition, soil erosion shall be held to a minimum and sediment from the
construction site shall be kept away from the highway and drain inlets.
(3)
Utility expansions shall be planned to minimize hazards
to, and interference with, future highway projects or other utility installations.
(4)
Plans shall include the design, proposed location, vertical
elevations, and horizontal alignments of the utility facility based on the
department’s survey datum, the relationship to existing highway facilities
and the right of way line, and location of existing utilities that may be
affected by the proposed utility facility.
(5)
As-built plans or certified as-installed construction plans
shall include the installed location, vertical elevations, and horizontal
alignments of the utility facility based upon the department’s survey
datum, the relationship to existing highway facilities and the right of way
line, and access procedures for maintenance of the utility facility. As-installed
construction plans certified by a utility or its representative shall be submitted
to the department for each relocation or new installation. In the alternative,
if approved by the director of the Maintenance Division or Right of Way Division,
a district may require a utility to deliver either as-installed construction
plans that are certified by an independent party or final as-built plans that
are signed and sealed by an engineer or registered professional land surveyor.
In determining whether to authorize a requirement for independently certified
or signed and sealed plans, the director shall consider:
(A)
the amount of available right of way or the proposed utility
facility's proximity to department facilities and other utility facilities
that may be impacted; and
(B)
past performance of the utility in providing accurate location
data and conformance with its certified as-installed construction plans.
(6)
If approved by the director of the Maintenance Division
or the Right of Way Division, a district may require a utility to deliver
plans that are signed and sealed by an engineer. In determining whether to
authorize a requirement for signed and sealed plans, the director shall consider:
(A)
the amount of available right of way or the proposed utility
facility's proximity to department facilities or other utility facilities
that may be impacted;
(B)
the complexity of required traffic control plans;
(C)
whether the installation or adjustment activity requires
a storm water pollution prevention plan; and
(D)
the utility's past performance in providing accurate location
data and conformance with its construction plans.
(d)
Tunnels and bridges.
(1)
Interstate highways. In providing a utility tunnel or utility
bridge, the requirements in subparagraphs (A) - (I) apply.
(A)
Mutually hazardous transmittants, such as fuels and electric
energy, shall be isolated by compartmentalizing or by auxiliary encasement
of incompatible carriers.
(B)
The utility tunnel or utility bridge structure shall conform
in design, appearance, location, bury, earthwork, and markings to the culvert
and bridge practices of the department.
(C)
Where a pipeline on or in a utility structure is encased,
the casing shall be effectively opened or vented at each end to prevent possible
build up of pressure and to detect leakage of gases or fluids.
(D)
Where a casing is not provided for a pipeline on or in
a utility structure, additional protective measures shall be taken, such as
employing a higher factor of safety in the design, construction, and testing
of the pipeline than would be required for cased construction.
(E)
Communication and electric power lines shall be insulated,
grounded, and carried in protective conduit or pipe from the point of exit
from the ground to reentry, and the cable carried to a manhole located beyond
the backwall of the structure.
(F)
Carrier and casing pipe for gas, liquid petroleum, hazardous
product, and water lines shall be insulated from electric power line attachments.
(G)
Sectionalized block valves shall be installed in lines
at or near ends of utility structures, pursuant to 49 CFR §192.179, Transmission
Line Valves, unless segments of the lines can be isolated by other sectionalizing
devices within a distance acceptable to the department.
(H)
Any maintenance, servicing, or repair of the utility lines
will be the responsibility of the utility.
(I)
The utility shall notify the district 48 hours in advance
of any maintenance, servicing, or repair; however, in an emergency situation,
the utility shall notify the district as soon as practicable.
(2)
Non-interstate highways. If a utility's line exists on
its own easement and it would be more economical to the department to adjust
the line across a highway by use of a utility tunnel or bridge rather than
to provide separately trenched and cased crossing, consideration should be
given to provision of such a structure. Where the utility line was placed
through an approved utility installation request and the adjustment of the
utility is the sole responsibility of the utility owner, the department may
allow for the provision of a utility structure without cost to the department,
provided the conditions outlined in subsection (a) of this section and all
other pertinent requirements are met. If a structure is to serve as a joint
utility/pedestrian crossing or a joint utility/sign support structure, the
department will participate to the extent necessary for accommodation of pedestrians
or highway signs only.
(e)
Joint use of utility and highway structures.
(1)
The attachment of utility lines to bridges and grade separation
structures is prohibited if other locations are feasible and reasonable.
(2)
Where other arrangements for a utility line to span an
obstruction are not feasible, the utility may submit a request to the district
for attachment of the line to a bridge structure through a bridge attachment
agreement. Each attachment will be considered on an individual basis, and
permission to attach will not be considered as establishing a precedent for
granting of subsequent requests for attachment.
(A)
When it is impractical to carry a self-supporting communication
line across a stream or other obstruction, the department may permit the attachment
of the line to its bridge. If approved on existing bridges, the line must
be enclosed in a conduit and so located on the structure as not to interfere
with stream flow, traffic, or routine maintenance operations. When a request
is made before construction of a bridge, if approved, suitable conduits may
be provided in the structure if the utility bears the cost of all additional
work and materials involved.
(B)
If it is the department's responsibility to provide for
the adjustment of telephone lines or telephone conduits to accommodate the
construction of a highway and the adjustment provides for the placement of
telephone conduits in a bridge, the department will allow a reasonable number
of spare telephone conduits in the structure if the spares are placed at the
time of construction and the telephone company bears the cost of the spare
conduits.
(C)
A utility shall not attach gas or liquid fuel lines to
a bridge without the written approval of the executive director.
(D)
Power lines carrying greater than 600 volts shall not be
permitted on bridges.
(E)
When a utility is granted permission to attach a pipeline
to a proposed bridge prior to construction, any additional costs associated
with the design or construction to accommodate the pipeline are the responsibility
of the utility.
(F)
A utility requesting permission to attach a pipeline to
an existing bridge shall submit sufficient information to allow the department
to conduct a stress analysis to determine the effect of the added load on
the structure. The department may require other details of the proposed attachment
as they affect safety and maintenance
(f)
Aesthetics. A utility will notify the department before
removing, trimming, or replacing trees, bushes, shrubbery, or any other aesthetic
features. The department must approve the extent and method of removal, trimming,
or replacement of trees, bushes, shrubbery, or any other aesthetic feature.
§21.40.Underground Utilities.
(a)
General.
(1)
Encasement.
(A)
Underground utilities crossing the highway shall be encased
in the interest of safety, protection of the utility, protection of the highway,
and for access to the utility. Casing shall consist of a pipe or other separate
structure around and outside the carrier line. The utility must demonstrate
that the casing will be adequate for the expected loads and stresses.
(B)
Casing pipe shall be steel, concrete, or plastic pipe as
approved by the district, except that if horizontal directional drilling is
used to place the casing, high-density polyethylene (HDPE) pipe must be used
in place of plastic pipe.
(C)
Encasement may be of metallic or non-metallic material.
Encasement material shall be designed to support the load of the highway and
superimposed loads thereon, including that of construction machinery. The
strength of the encasement material shall equal or exceed structural requirements
for drainage culverts and it shall be composed of material of satisfactory
durability for conditions to which it may be subjected. The length of any
encasement under the roadway shall be provided from top of backslope to top
of backslope for cut sections, five feet beyond the toe of slope for fill
sections, and five feet beyond the face of the curb for curb sections. These
lengths of encasement include areas under center medians and outer separations,
unless otherwise specifically addressed in subsections (b)-(f) of this section.
(D)
The department will provide an example graphic upon request
of a typical section showing encasement lengths
(2)
Depth. Where placements at the depths in this section are
impractical or where unusual conditions exist, the department may allow installations
at a lesser depth, but will require other means of protection, including encasement
or the placement of a reinforced concrete slab. Reinforced concrete slabs
or caps shall meet the following standards:
(A)
width -- five feet, or three times the diameter of the
pipe, whichever is greater;
(B)
thickness -- six inches, at minimum;
(C)
reinforcement -- #4 bars at 12 inch centers each way or
equivalent reinforcement; and
(D)
cover -- no less than six inches of sand or equivalent
cushion between the bottom of the slab/cap and the top of the pipe.
(3)
Manholes and handholds.
(A)
Manholes shall not be installed unless necessary for installation
and maintenance of underground lines. In no case shall a manhole be placed
or permitted to remain in the pavement or shoulder of a highway. However,
on noncontrolled access highways in urban areas, the district may, in its
discretion, allow existing lines to remain in place under existing or proposed
highways. In these cases, manholes may remain in place or be installed under
traffic lanes of low volume highways in municipalities only if measures are
taken to minimize the installations and to avoid locating them at intersections
or in wheel paths.
(B)
To conserve space, a manhole’s dimensions shall be
the minimum acceptable by appropriate engineering and safety standards. The
only equipment that may be installed in manholes located on the right of way
is that essential to the normal flow of the utility, such as circuit reclosers,
cable splices, relays, valves, and regulators. Other equipment, such as substation
equipment, large transformers, and pumps, shall be located outside the right
of way.
(C)
Inline manholes are the only type permitted within the
right of way. The width dimensions shall be no larger than necessary to hold
equipment involved and to meet safety standards for maintenance personnel.
Outside width, the dimension of the manhole perpendicular to the highway,
shall not exceed ten feet, with the length to be held to a reasonable minimum.
The outside diameter of the manhole chimney at the ground level shall not
exceed 36 inches, except that if the utility demonstrates necessity, the district
may, at its discretion, allow an outside diameter of up to 50 inches. The
top of the roof of the manhole shall be five feet or more below ground level.
(D)
All manhole covers shall be installed flush with the ground
or pavement structure. In order to minimize vandalism, manhole covers must
weigh at least 175 pounds. Manhole rings and covers must be designed for HS-20
loading.
(E)
Manholes shall be straight, inline installations with a
minimum overall width necessary to operate and maintain the enclosed equipment.
The utility is responsible for any adjustment of the manhole rim that may
be needed to meet grade changes.
(4)
Installation.
(A)
Lines placed beneath any existing highway shall be installed
by boring or tunneling. Jacking may not be used unless approved in writing
by the district. The district may require encasement of lines installed by
boring or jacking. The use of explosives is prohibited. Pipe bursting or fluid/mist
jetting may be allowed at the discretion of the department.
(B)
For rural, uncurbed highway crossings, all borings shall
extend beneath all travel lanes. Unless precluded by right of way limitations,
the following clearances are required for rural highway crossings:
(i)
30 feet from all freeway main lanes and other high-speed
(exceeding 40 mph) highways except as indicated in clauses (ii)-(iv) of this
subparagraph;
(ii)
16 feet for high-speed highways with current average daily
traffic volumes of 750 vehicles per day or fewer;
(iii)
16 feet for ramps; or
(iv)
ten feet for low-speed (40 mph or less) highways.
(C)
Annular voids greater than one inch between the bore hole
and carrier line (or casing, if used) shall be filled with a slurry grout
or other flowable fill acceptable to the department to prevent settlement
of any part of the highway facility over the line or casing.
(D)
For curbed highway crossings, all borings shall extend
beneath travel and parking lanes and extend beyond the back of curb, plus:
(i)
30 feet from facilities with speed limits of 40 mph or
greater; or
(ii)
five feet from facilities with speed limits of less than
40 mph or less, plus any additional width necessary to clear an existing sidewalk.
(E)
Where circumstances necessitate the excavation of a bore
pit or the presence of directional boring equipment closer to the edge of
pavement than set forth in paragraphs (2) or (3) of this subsection, approved
protective devices shall be installed for protection of the traveling public
in accordance with §21.38 of this subchapter. Bore pits shall be located
and constructed in such a manner as not to interfere with the highway structure
or traffic operations. If necessary, shoring shall be utilized for the protection
of the highway, and must be approved by the district.
(F)
All traffic control devices, including signs, markings,
or barricades used to warn motorists and pedestrians of the construction activity
must conform to the TMUTCD.
(G)
When trenching longitudinally, backfill or stabilized sand
shall be compacted to densities equal to that of the surrounding soil.
(5)
Nonmetallic pipe detection. Where nonmetallic pipe is installed,
whether longitudinally or at a crossing, a durable metal wire or other district-approved
means of detection shall be concurrently installed.
(6)
Unsuitable conditions. The following conditions are generally
unsuitable or undesirable for pipeline crossings and shall be avoided:
(A)
deep cuts;
(B)
locations near footings or bridges and retaining walls;
(C)
crossing intersections at-grade or ramp terminals;
(D)
locations at cross-drains where the flow of water may be
obstructed;
(E)
locations within basins or underpasses drained by pump
if the pipeline carries a liquid or liquefied gas; or
(F)
terrain where minimum depth of cover would be difficult
to attain.
(7)
Clearances. Except as specified in this subchapter, there
shall be a minimum of 12 inches vertical and horizontal clearance between
a pipeline and an existing utility, unless a greater clearance is required
by the district. However, if an installation of another utility or highway
feature cannot take place without disturbing an existing utility, the minimum
clearance will be 24 inches.
(8)
Crossings. A district may require crossings with no longitudinal
connections to be encased within the right of way.
(9)
Drainage easements. Where it is necessary for pipelines
to cross department drainage easements outside of the right of way, the depth
of cover shall be as specified for each type of utility. In cases where soil
conditions are such that erosion might occur, or where it is not feasible
to obtain specified depth, it shall be the responsibility of the utility to
install retards, energy dissipators, encasement, or concrete or equivalent
slabs/caps over the pipe, as approved by the department. Where grades on the
pipelines must be maintained, such as gravity flow sewer lines, each case
will be reviewed on an individual basis, keeping in mind that the main purpose
of the channel is to carry drainage water and that this flow must not be obstructed.
The utility owner is responsible for obtaining any other approvals to occupy
the drainage easement.
(10)
Existing installations in a highway or transportation
project. At the district's discretion, existing longitudinal lines in a highway
or transportation project that otherwise meet the requirements of this subchapter
may remain in place if the lines:
(A)
can be maintained in accordance with §21.37(b)(2)
of this subchapter; and
(B)
are not located under the pavement structure or shoulder
of any proposed or existing highway.
(11)
Markers. If a high pressure gas or liquid petroleum line
crosses a highway, the utility shall place a readily identifiable, durable,
and weatherproof marker over the centerline of the pipe at each right of way
line. Readily identifiable, durable, and weatherproof markers shall be placed
at a minimum distance of 500 feet or line of sight at the right of way line
for pipelines installed longitudinally within the right of way. All markers
shall indicate the name, address, emergency telephone number of the owner/operator,
and offset from the right of way line. For gas or petroleum pipelines, the
pipeline product, operating pressure, and depth of pipe below grade shall
also be indicated on the markers. At locations where underground utilities
have been allowed to cross at an angle other than 90 degrees to centerline,
the district may require additional markers in the medians and outer separations
of the highway.
(12)
Backfilling. Underground utility installations shall be
backfilled with pervious material and outlets for underdrainage.
(13)
Underdrainage. Underdrains shall be provided where necessary.
No puddling beneath the highway will be permitted.
(b)
Gas and liquid petroleum lines.
(1)
Low-pressure lines.
(A)
Depth of cover for crossings. Depth of cover is the depth
to the top of the carrier pipe or casing, as applicable. Where materials and
other conditions justify, such as on existing lines remaining in place, the
district may require a minimum depth of cover under the pavement structure
of 12 inches or one-half the diameter of the pipe, whichever is greater.
(i)
For encased low-pressure gas lines, the minimum depth of
cover shall be:
(I)
18 inches or one-half the diameter of the pipe, whichever
is greater, under pavement structure;
(II)
24 inches outside pavement structure and under ditches
(original unsilted flowline); or
(III)
30 inches for unencased sections of encased lines outside
of pavement structure.
(ii)
For unencased low-pressure gas lines, the minimum depth
of cover shall be:
(I)
60 inches under the pavement surface or 18 inches under
the pavement structure for paved areas;
(II)
48 inches outside paved areas and under ditches (original
unsilted flowline); or
(III)
a lesser depth if authorized by the district where a
reinforced concrete slab is used to protect the pipeline.
(B)
Depth of cover for longitudinal placement. The minimum
depth of cover for longitudinal installations shall be 36 inches.
(C)
Encasement. Low-pressure gas lines crossing the pavement
shall be placed in a steel encasement. The district may waive this encasement
requirement if the line is of welded steel construction and is protected from
corrosion by cathodic protective measures or cold tar epoxy wrapping, and
the utility signs a written agreement that the pavement will not be cut for
pipeline repairs at any time in the future.
(D)
Vents. One or more vents shall be provided for each casing
or series of casings. For casings longer than 150 feet, vents shall be provided
at both ends. On shorter casings, a vent shall be located at the high end
with a marker placed at the low end. Vents shall be placed at the right of
way line immediately above the pipeline, situated so as not to interfere with
highway maintenance or be concealed by vegetation, and shall be no greater
than six inches in diameter. The owner's name, address, and emergency telephone
number shall be shown on each vent.
(E)
Plastic lines. Plastic lines shall be encased within the
right of way on crossings, and must have at least 30 inches of cover.
(F)
Aboveground appurtenances. Except for vents, no above ground
utility appurtenances for gas lines shall be permitted within the right of
way.
(2)
High-pressure lines.
(A)
Depth of cover for crossings.
(i)
Depth of cover is the depth to the top of the carrier pipe
or casing, as applicable. Where materials and other conditions justify, such
as on existing lines remaining in place, the district may approve a minimum
depth of cover under the pavement structure of 12 inches or one-half the diameter
of the pipe, whichever is greater. For encased high-pressure gas or liquid
petroleum lines, the minimum depth of cover shall be:
(I)
the greater of 18 inches or one-half the diameter of the
pipe, under pavement structures;
(II)
30 inches if the line is outside the pavement structure
or under a ditch; or
(III)
36 inches for unencased sections of encased lines outside
the pavement structure.
(ii)
Where a reinforced concrete slab is used to protect the
pipeline, the district may authorize a reduction in the depths specified in
this section. For unencased high-pressure gas or liquid petroleum lines, the
minimum depth of cover is as follows:
(I)
60 inches under the pavement surface or 18 inches under
the pavement structure in paved areas; or
(II)
48 inches if the line is placed outside the pavement structure
or under a ditch.
(B)
Depth of cover for longitudinal placement. The minimum
depth of cover shall be 48 inches.
(C)
Encasement. Casing shall consist of a vented steel pipe.
(D)
Unencasement.
(i)
Where encasement is not employed, the utility shall show
that the welded steel carrier pipe will provide sufficient strength to withstand
the internal design pressure and the dead and live loads of the pavement structure
and traffic. Additional protective measures must include:
(I)
heavier wall thickness, higher factor of safety in design,
or both;
(II)
adequate coating and wrapping;
(III)
cathodic protection; and
(IV)
the use of Barlow's formula regarding maximum allowable
operating pressure and wall thickness, as specified in 49 CFR §192.105.
(ii)
Shallow anode bed types exceeding 48 inches in width shall
not be permitted in the right of way. All others must have a depth of coverage
of at least 36 inches. Deep well anode beds of up to 60 inches in diameter
are acceptable. Rectifier and meter loop poles shall be placed at or near
the right of way line.
(iii)
The minimum length of the additional protection shall
be the same as that required for an encased crossing.
(iv)
The district may allow existing lines under low-volume
highways to remain in place without encasement or extension of encasement
if they are protected by a reinforced concrete slab or equivalent protection
or if they are located at a depth of five feet under the pavement structure
and not less than four feet under a highway ditch.
(E)
Vents. Vents shall be installed at both ends of a casing,
regardless of length, with a marker on at least one end. Vents shall be placed
at the right of way line immediately above the pipeline, situated so as not
to interfere with highway maintenance or be concealed by vegetation. The owner's
name, address, and emergency telephone number shall be shown on each vent
marker.
(F)
Aboveground appurtenances. Aboveground appurtenances, except
vents for gas lines, shall not be permitted within the right of way.
(c)
Water lines.
(1)
Material type. All material types used for water lines
shall conform to American Waterworks Association, applicable local requirements,
and 30 TAC §290.44(a).
(2)
Depth of cover. The minimum depth of cover shall be 30
inches, but not less than 18 inches below the pavement structure for crossings.
(3)
Encasement. Unless another type of encasement is approved
by the district, water lines crossing under paved highways must be placed
in a steel encasement pipe within the limits of the right of way. At the district's
discretion, encasement may be omitted under center medians and outer separations
that are more than 76 feet wide. At the district's discretion, encasement
under side road entrances may be omitted in consideration of traffic volume,
condition of highway, maintenance responsibility, or district practice. Existing
water lines 24 inches or greater may be allowed to remain unencased under
the pavement of new low volume highways, provided depth and all other requirements
of 30 TAC §290.44 are met.
(4)
Manholes. The width dimensions shall be no larger than
is necessary to hold equipment involved and to meet safety standards for maintenance
personnel. The maximum inside diameter of the manhole chimney shall not exceed
48 inches. The outside diameter of the manhole chimney at the ground level
shall not exceed 36 inches.
(5)
Aboveground appurtenances.
(A)
Fire hydrants and valves. When feasible, fire hydrants
and blow-off valves are to be located at the right of way line. Fire hydrants
shall not be placed in the sidewalk or any closer than five feet from the
back of the curb. Valve locations shall be placed so as not to interfere with
maintenance of the highway.
(B)
Water meters. Individual service meters shall be placed
outside the limits of the right of way. Master meters for a point of service
connection may be placed in a manhole with a maximum width of 48 inch inside
diameter. If additional volume is required, a manhole with a neck of 60-inch
depth must be used.
(C)
Service lines crossing highway by bore. Lines for customer
service that cross the highway may be placed in a high-density polyethylene
(HDPE) encasement pipe without joints (rolled pipe).
(d)
Nonpotable water control facilities.
(1)
Applicability. This subsection applies to agricultural
irrigation facilities, water control improvement districts, municipal utility
districts, flood control districts, canals, and similar nonpotable water control
facilities.
(2)
Depth of cover for buried pipe facilities. The minimum
depth of cover, regardless of type of pipe used, shall be 30 inches, but not
less than 18 inches below any pavement structure.
(3)
Encasement for buried pipe facilities. Unless the district
approves another type of encasement, all non-potable water control lines crossing
under paved highways within the right of way must be placed in a steel encasement
pipe. At the district's discretion, encasement may be omitted under center
medians and outer separations that are more than 76 feet wide.
(4)
Location and design requirements. Open ditch facilities
and buried pipe facilities designed and constructed in accordance with this
subchapter may be installed across the right of way. Longitudinal buried pipe
facilities installed within the right of way must conform with §21.41(c)
of this subchapter, consistent with the clearances applicable to all roadside
obstacles. Open ditch facilities shall not be installed longitudinally within
the right of way, nor will any aboveground appurtenances be permitted within
the horizontal clearance.
(5)
Levee/ditch travel road location. Coordination with and
approval by the district is required where levee/ditch travel roads intersect
the highway.
(e)
Sanitary sewer lines.
(1)
Material type. All material types used for sanitary sewer
lines shall conform to 30 TAC §317.2 and applicable local requirements.
(2)
Depth of cover. The minimum depth of cover shall be 30
inches, but not less than 18 inches below any pavement structure.
(3)
Encasement. Pressurized line crossings under paved highways
within the limits of the right of way shall be placed in a steel encasement
pipe. Gravity flow lines not conforming to the minimum depth of cover shall
be encased in steel or concrete. At the district's discretion, encasement
may be omitted under center medians and outer separations that are more than
76 feet wide.
(4)
Manholes. Manholes serving sewer lines up to 12 inches
shall have a maximum inside diameter of 48 inches. For lines larger than 12
inches, the manhole inside diameter may be increased an equal amount, up to
a maximum diameter of 60 inches. Manholes for large interceptor sewers shall
be designed to keep the overall dimensions to a minimum. The outside diameter
of the manhole chimney at the ground level shall not exceed 36 inches.
(5)
Lift stations. Lift stations and pump stations for sanitary
sewer lines exceeding 48 inches inside diameter shall be located outside the
limits of right of way.
(f)
Electric and communication Lines.
(1)
Underground electric lines.
(A) Depth of cover. All underground electric lines placed within
the right of way may be installed by direct bury at depths according to the
voltage of electric lines as required by the National Electrical Safety Code
and as shown in the following chart.
Figure: 43 TAC §21.40(f)(1)(A)
(B) Encasement. Electric lines crossing the roadway shall be
encased in steel or comparable material greater than or equal to that of ductile
iron, with satisfactory joints, or materials and designs that will provide
equal or better protection of the integrity of the highway system and resistance
to damage from corrosive elements to which they may be exposed. The lines
shall be buried a minimum of 36 inches under highway ditches, and 60 inches
below the pavement structure. Encasement shall be provided as outlined in
this section.
(C) Installation. Longitudinal underground electric lines may
be placed by plowing or open trench method. All plowing and trenching shall
be performed in a uniform alignment with the right of way. If the installation
of the facility is found to deviate from the approved location, the district,
at its sole discretion, may require the adjustment of the facility to the
approved location. The utility facility shall be located as set forth in §21.37(b)
of this subchapter.
(D)
Aboveground appurtenances.
(i)
Aboveground appurtenances installed as part of an underground
electric line shall be located at or near the right of way line, and shall
not impede highway maintenance or operations.
(ii)
Structures that are larger in plan view than single poles
may be placed on the right of way if:
(I)
the installation will not hinder highway maintenance operations;
(II)
the housing will be placed at or near the right of way
line;
(III)
the installation will not reduce visibility and sight
distance of the traveling public;
(IV)
the dimensions of the housing are minimized, particularly
where the need to allow space for highway improvement or accommodation of
other utility lines is apparent;
(V)
the outside width, length (longitudinal with respect to
the right of way), and height dimensions of the aboveground portion of the
housing do not exceed 36 inches, 60 inches, and 54 inches respectively;
(VI)
the supporting slab does not project more than three inches
above the ground line, nor extend more than 12 inches on either side of the
housing structure; and
(VII)
the installation will be compatible with adjacent land
uses.
(E)
Manholes. Manholes serving electric and communication lines
shall conform to the requirements of this section.
(F)
Abandonment. Underground electric lines may be abandoned
in place at the discretion of the district.
(2)
Underground communication lines.
(A)
Longitudinal. The minimum depth of cover for cable television
and copper cable communications lines shall be 24 inches. The minimum depth
of cover for fiber optic facilities shall be 42 inches. If the owner/operator
of a fiber optic facility waives damages and fully indemnifies the department
in a form acceptable to the department, the minimum depth of cover may be
reduced to not less than 36 inches.
(B)
Crossings.
(i)
The minimum depth of cover for cable television and copper
cable communication lines shall be 24 inches under ditches or 18 inches beneath
the bottom of the pavement structure, whichever is greater.
(ii)
The top of the fiber optic facility shall be placed a
minimum of 42 inches below the ditch grade or 18 inches below the pavement
structure or 60 inches below the top of the pavement surface, whichever is
greater. The department may authorize a minimum depth of cover of not less
than 36 inches below the ditch grade or 60 inches below the top of the pavement
surface, whichever is greater, if the owner/operator waives damages and fully
indemnifies the department in a form acceptable to the department.
(iii)
The department may require encasement or other suitable
protection when necessary to protect the highway facility when the line is
located:
(I)
at less than minimum depth;
(II)
near the footing of a bridge or other highway structure;
or
(III)
near another hazardous location.
(iv)
Unless the line is encased, installation shall be accomplished
by boring a hole the same diameter as the line. The annular void between a
drilled hole and the line or casing shall be filled with a material approved
by the district to prevent settlement of any part of the highway facility
over the line or casing.
(C)
Installation. Lines may be placed by plowing or open trench
method and shall be located on uniform alignment with the right of way and
as near as practical to the right of way line to provide space for possible
future highway construction and for possible future utility installations.
(D)
Multiple conduits.
(i)
Shared conduits. When an existing utility rents, leases,
or sells conduit usage to another utility, the new utility and the conduit
owner must submit a joint Utility Installation Request before placement of
a new line within the conduit.
(ii)
Additional conduits. No more than two additional empty
conduits may be added for every full conduit line, unless otherwise approved
by the district.
(E)
Aboveground appurtenances.
(i)
Aboveground pedestals or other utility appurtenances installed
as a part of an underground communication line shall be located at or near
the right of way line, so as not to impede highway maintenance or operations.
(ii)
Large equipment housings. Structures that are larger in
plan view than single poles may be placed on the right of way if:
(I)
the installation will not hinder highway maintenance operations;
(II)
the housing will be placed at or near the right of way
line;
(III)
the installation will not reduce visibility and sight
distance of the traveling public;
(IV)
the dimensions of the housing are minimized, particularly
where the need to allow space for highway improvement and accommodation of
other utility lines is apparent;
(V)
outside width, length (longitudinal), and height dimensions
of the aboveground portion of the housing do not exceed 36 inches, 60 inches,
and 54 inches respectively;
(VI)
the supporting slab does not project further than three
inches above ground line, nor extend further than 12 inches on either side
of the housing structure; and
(VII)
the installation will be compatible with adjacent land
uses.
(F)
Abandonment. Underground communication lines may be abandoned
in place at the discretion of the district.
§21.41.Overhead Electric and Communication Lines.
(a)
Type of construction. Longitudinal lines on the right of
way shall be limited to single pole construction. Where an existing or proposed
utility is supported by "H" frames, the same type structures may be utilized
for the crossing provided all other requirements of this subchapter are met.
(b)
Vertical clearance. The minimum vertical clearance above
the highway shall be 22 feet for electric lines, and 18 feet for communication
and cable television lines. These clearances may be greater, as required by
the National Electric Safety Code and governing laws.
(c) Horizontal clearances. The following table indicates the
design values for horizontal clearances:
(d) Location.
(1) Poles supporting longitudinal lines shall be located within
three feet of the right of way line, except that, at the option of the department,
this distance may be varied at short breaks in the right of way line. Poles
with bases greater than 36 inches in diameter shall not be placed within the
right of way. Guy wires placed within the right of way shall be held to a
minimum and be in line with the pole line. Other locations may be allowed,
but in no case shall the guy wires or poles be located closer than the minimum
allowed by the department's horizontal clearance policy, as shown in subsection
(c) of this section.
(2)
Poles shall not be placed in the center median of any highway.
At the department’s discretion, poles may be placed in the outer separations
or more than three feet inside the right of way where the right of way is
greater than 300 feet and where poles can be located in accordance with the
department's horizontal clearance policy, as shown in subsection (c) of this
section.
(3)
Overhead electric, communication, and cable television
line crossings at bridges or grade separation structures are prohibited. Overhead
lines shall not be located below any bridge structure. If rerouting the line
completely around the structure and approaches is not feasible, a minimum
horizontal distance of 150 feet from the bridge abutment joint and a minimum
vertical clearance of 30 feet above the point of crossing the bridge pavement
and retaining walls is required to ensure adequate safety for construction
and maintenance operations.
(e)
Markers. Utility poles must bear readily identifiable plaques
or other approved markers denoting ownership and use, at a distance of approximately
one pole per 1,320 feet, as equally spaced as practicable, and at every crossing,
in a format acceptable to the department. Each company connecting to a pole
shall appropriately identify its use of the pole. There shall be a beginning
and end marker for each user of the pole line.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on February 25, 2005.
TRD-200500871
Bob Jackson
Deputy General Counsel
Texas Department of Transportation
Effective date: March 17, 2005
Proposal publication date: November 12, 2004
For further information, please call: (512) 463-8630