Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF TRANSPORTATION

OF THE STATE OF MONTANA

In the matter of the adoption of New Rule I and the repeal of ARM 18.7.232 pertaining to Electronic Utility Permitting for Right-of-Way Occupancy

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND REPEAL

TO: All Concerned Persons

1. On September 6, 2019, at 10:00 a.m., the Department of Transportation will hold a public hearing in the auditorium of the Department of Transportation building, 2701 Prospect Avenue, Helena, Montana 59620, to consider the proposed adoption and repeal of the above-stated rules.

2. The Department of Transportation will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Transportation no later than 5:00 p.m. on August 30, 2019, to advise us of the nature of the accommodation that you need. Please contact Gabe Priebe, Utilities Engineering Manager, Department of Transportation, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-6080; fax (406) 444-7254; TTY Service (406) 444-7696 or (800) 335-7592; or e-mail [email protected].

3. GENERAL STATEMENT OF REASONABLE NECESSITY: The 2019 Legislature enacted Senate Bill 76, Ch. 303, L. 2019, an act generally revising the laws relating to occupancy of and encroachment on transportation commission-designated highway systems or state highway rights-of-way. Among other changes, the bill allows the department to issue occupancy and encroachment permits for installation, construction, maintenance, repair, or system upgrade of all utilities on commission-designated highway systems or state highways. The bill becomes effective October 1, 2019.

The department is proposing New Rule I to conform to the new legislative changes and implement the bill on utility encroachment permitting processes. Further statements of reasonable necessity for each rule subsection follow the rule text.

4. The rule as proposed to be adopted provides as follows:

NEW RULE I ELECTRONIC UTILITY PERMIT APPLICATION PROCESS

(1) An applicant must apply for a utility encroachment permit or utility occupancy agreement (collectively Utility Permit) through the department's Utility Permitting Administration System (UPAS), through the department's website at www.mdt.mt.gov, for the installation of any utility facility on right-of-way under the jurisdiction of the department. The Utility Permit conditions and department's Montana Right-of-Way Utilities Manual set forth the procedures and conditions for all utility installations statewide. The department may impose additional restrictions or requirements for Utility Permits. The following conditions apply to all Utility Permit applications:

(a) Permits are only issued in the name of the utility owner;

(b) A utility owner, utility company, or utility company contractor may not begin any utility work on the right-of-way until an approved Utility Permit is issued by the department and the utility owner is authorized to proceed;

(c) If the utility owner expects work to impact travel lane capacity, the utility owner must contact the appropriate department district office to discuss traffic control concepts in advance of submitting a Utility Permit application;

(d) The utility owner's construction forces and the utility contractor must keep a copy of the completed Utility Permit, including all attachments, at the work site at all times. All documents and the utility work are subject to department review at all reasonable times; and

(e) A pending application shall, if necessary, be modified by the utility owner to improve safety or facilitate alteration or maintenance of the right-of-way as determined by the department.

(2) Each application must:

(a) be complete and accompanied by all required supplemental materials. The department reserves the right to reject ineligible, incomplete, or otherwise improper applications. The department may request additional information if warranted after initial application review. Applicants have 30 days to respond to an additional information request. If no response is received, the application will automatically be denied;

(b) be in the name of the utility owner that is responsible for the installation and maintenance of the utility facility, including name, address, e-mail address, responsible employee's title, and telephone number;

(d) include authorization, if any, for the utility owner's contractor to obtain a Utility Permit on the utility owner's behalf. All terms and conditions set forth in the Utility Permit apply to the contractor;

(e) include the name of any subcontractor who will be conducting the installation, the subcontractor's contact information, and an executed subcontractor's construction agreement if required by the department; and

(f) be accompanied by a $100 non-refundable electronic convenience fee.

(3) Application attachments must include:

(a) an electronic plan set in PDF depicting the proposed installation. The plans must be in a format acceptable to the department and must include utility company identification, work location, utility type and size, type of construction, vertical and horizontal location of facilities relative to the centerline of road, location of all appurtenances, trench details, and right-of-way limits;

(b) a traffic control plan which conforms to the Manual on Uniform Traffic Control Devices (MUTCD).

(4) The American Society of Civil Engineers (ASCE) standard guideline for recording and exchanging utility infrastructure data is adopted by reference. The ASCE guideline is available at www.asce.org. ASCE standard survey-grade Global Positioning System (GPS) survey, or "as built survey" of the utility facility location(s), must be submitted electronically to the department within 90 days of completion of the installation or construction, or otherwise as allowed in (c). The ASCE standard as-built surveys must comply with the department's Utility Manual and the following:

(a) A Utility owner may:

(i) Submit ASCE standard survey-grade Global Positioning System (GPS) as-built surveys certified by a licensed professional engineer (PE) or professional land surveyor (PLS) showing the facility type, function, size, configuration, material, location, elevation, and any special features such as encasement, manholes and valves, or as otherwise specified in the Utility Permit special conditions. The ASCE standard certified survey data will not be subject to department inspection and audit unless discrepancies are noted by the department;

(ii) Submit ASCE standard survey-grade as-built surveys, certified by a duly authorized officer or employee of the utility owner instead of a licensed PE or PLS, showing the facility type, function, size, configuration, material, location, elevation, and any special features such as encasement, manholes and valves, or as otherwise specified in the Permit special conditions. The ASCE standard non-PE or PLS certified survey data may be subject to department audit and inspection.

(b) ASCE standard non-PE or PLS certified as-built surveys are subject to department audit, inspection, and verification of accuracy. If the department notes discrepancies between submitted as-built surveys and inspections, the department may hire an independent contractor to locate the utility facility and obtain accurate as-built survey data. All costs associated with this activity are the responsibility of the utility owner.

(c) If ASCE standard as-built surveys are not submitted within 90 days, or another time period as determined by the department upon utility owner's request, the department may remove the utility facility, place all other submitted Utility Permit applications from the delinquent utility owner on hold, or hire a consultant to complete the survey work and charge all costs to the delinquent utility owner. A utility owner may request an extension due to weather or other conditions, which may be approved in writing by the department.

(d) The department may reimburse a utility owner for PE or PLS certified ASCE standard as-built surveys if the utility facility is eligible for relocation reimbursement due to a pending highway project.

(e) Costs incurred at any time by the department or its contractors due to significant incorrect as-built survey information supplied by the utility owner, or major deviations in actual placement from that described in the original permit, are the responsibility of the utility owner. The department will bill the utility owner for costs incurred.

(5) Utility owners performing maintenance of permitted utility facilities occupying right-of-way under the jurisdiction of the department must apply for a utility Notification Permit (Notification Permit). A Notification Permit application must be submitted electronically through UPAS through the department's website at mdt.mt.gov. Notification permits are subject to all applicable UPAS requirements and the following conditions:

(a) the application must provide an exact description of the maintenance work, including location, date(s) of maintenance work, traffic control plan, and any other information requested by the department;

(b) no fee or as-built survey data is required for a Notification Permit;

(c) the department will require the utility owner's construction forces or a utility contractor performing utility maintenance work in the right-of-way without a Notification Permit to vacate the right-of-way immediately until a Notification Permit has been issued by the department, including any required traffic control plan.

(6) The department may revoke a Utility Permit or a Notification Permit for failure to comply with the terms and conditions of the permit. Upon Utility Permit or Notification Permit revocation, the department may remove the utility facility and restore the highway and right-of-way at the sole expense of the utility owner. Prior to any revocation, the department shall notify the utility owner in writing, setting forth the violations, and providing the utility owner a time period to correct the violations to the satisfaction of the department. The utility owner may request an extension due to weather or other conditions which may be approved in writing by the department. The department may decline to issue further Utility Permits or Notification Permits to a utility owner who fails to comply with this rule or permit requirements.

AUTH: 60-4-402, MCA

IMP: 60-4-402, 60-4-403, MCA

REASON: Proposed New Rule I(1), (2), and (3) are necessary to allow the Montana Department of Transportation (MDT) to improve the review and tracking of utility installations throughout the state. MDT's right-of-way is becoming occupied by more and more utilities, and current requests for telecommunications equipment to occupy the right-of-way including fiber and small cell equipment is further necessitating the need for a better way to manage utility installations in the right-of-way. New Rule I will require the use of UPAS, with its electronic permitting and data management which out-performs and offers higher functionality than the current paper-based permitting and as-built records. The New Rule I UPAS records will be comprehensive and allow the applicant to view the status and progress of all applications online. New Rule I UPAS records will provide MDT and utilities access to useful utility information to improve decision-making on MDT and utility projects within the right-of-way.

The proposed electronic convenience fee in (2) will impact an estimated approximately 700 permit applicants for SFY 2020, resulting in a revenue increase to the State of Montana of approximately $70,000 annually.

Proposed New Rule I(4) is necessary to reflect the need for MDT to store quality utility installation data in an electronic system. Conflicts with utilities are a major cause of delays to highway contractors and the New Rule I UPAS Utility Location Data repository (ULDR) will track utilities in the right-of-way. New Rule I(4) as-built survey requirement is in line with the nationwide trend toward obtaining more accurate utility location information as inaccurate locations of underground utilities are measurable contributors to construction problems. The American Society of Civil Engineers (ASCE) standard guideline is incorporated into New Rule I (4) in order to provide consistent standards statewide. When latitude, longitude, and elevation information is performed during installation to create 3D digital as-builts, MDT, utility owners, and contractors will have useful insights into project impacts, designs, and optimization. New Rule I(4) as-built requirements are necessary to avoid damage to existing utilities, identify conflicts beforehand, prevent utility outages, and possibly avert injury or death.

Proposed New Rule I(5) is necessary to track utility maintenance activities in the right-of-way via an electronic notification system. Section (5) requires a maintenance notification system to increase MDT and contractor communication and accountability while streamlining the current paper-based processes.

Proposed New Rule I(6) is necessary to describe the circumstances and repercussions for rule and UPAS violations, allowing MDT to seek compliance with the new rule.

5. The department proposes to repeal the following rule:

18.7.232 PROCEDURE ‑ NEW UTILITY FACILITIES ON HIGHWAY RIGHT‑OF‑WAY

AUTH: 60‑3‑101, 60‑4‑402, MCA

IMP: 60‑3‑101, 60‑4‑402, MCA

REASON: The proposed repeal is necessary to repeal existing rule language on current procedures to apply for an occupancy agreement or encroachment permit for utility occupancy of new highway right-of-way. The procedure will be replaced by the UPAS electronic utility permitting process proposed in New Rule I.

6. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Gabe Priebe, Utilities Engineering Manager, Department of Transportation, P.O. Box 201001, Helena, Montana, 59620-1001; telephone (406) 444-6080; fax (406) 444-7254; TTY Service (406) 444-7696 or (800) 335-7592; or e-mail [email protected], and must be received no later than 5:00 p.m., September 6, 2019.

7. Office of Legal Services, Department of Transportation, has been designated to preside over and conduct this hearing.

8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 6 above or may be made by completing a request form on the department's website, or at any rules hearing held by the department.

9. An electronic copy of this proposal notice is available on the Department of Transportation website at www.mdt.mt.gov.

10. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by U.S. mail on June 12, 2019.

11. With regard to the requirements of 2-4-111, MCA, the department has determined the adoption and repeal of the above-referenced rules will significantly and directly impact small businesses.

12. With regard to the requirements of 2-15-142, MCA, the department has determined the adoption and repeal of the above-referenced rules will have direct tribal implications.

/s/ Carol Grell Morris /s/ Michael T. Tooley

Carol Grell Morris Michael T. Tooley

Rule Reviewer Director

Department of Transportation

Certified to the Secretary of State July 30, 2019.