Public Utilities in County Rights-of-Way

CHRIS MUDGETT, P.E.

County Road Administration Board

MARYA SILVERNALE, J.D.

Municipal Research & Services Center

The 1997 Washington Public Works Design Conference

October 16, 1997

Introduction

• Overview of issues

• Group discussion

Topics of Discussion

• Maps of Definite Locations

• Utility Accommodation Policy

• Franchises on County Rights-of-Way

• Utility Relocations to Accommodate Road Construction and Improvements

• Factors in Cost Responsibility

• Avoiding Utility Relocation Delays in County Public Works Contracts

Maps of Definite Locations

• Who is responsible for locating utilities?

• Where is the information?

Utility Accommodation Policy

• Does your agency have one?– Status of county compliance with WAC 136-40

Utility Accommodation Policy

• Issues to consider addressing in the policy– No release of hazardous substances– No abandonment in place– Maintenance of clear zone– County not responsible for damage of

obscured structures– Notification policies and practices

Utility Accommodation Policy

• Sample Utility Accommodation Policy

• Other joint use agreements

Franchises on County Rights-of-Way

• Authority per RCW 36.55

• Sample Utility Franchise Agreement– Including terms and conditions for use of the public

right-of-way

• Watch for new federal and state laws– Especially related to new technologies

Utility Relocations to Accommodate Road Construction and Improvements

• Responsibility for cost of relocations– Generally, the utility is responsible for the costs of

relocation (RCW 36.55.060)

Utility Relocations to Accommodate Road Construction and Improvements

• Case law and recent legal developments – Sundquist Homes v. PUD No. 1 of Snohomish County

– Clark County v. PUD of Clark County

– Pierce County, et al, v. U.S. West Communications

– GTE v. City of Bothell

Factors in Cost Responsibility

• Easement rights

• Franchise language

• Local ordinances regulating public right-of-way

• Local utility accommodation policy

• Utility tariffs filed with WUTC

• State and federal law

Avoiding Utility Relocation Delays in County Public Works Projects

• Early notice programs

• Design solutions

• Jointly bid projects with interlocal agreements for inclusion of utility relocation work– Sample interlocal agreement for utility relocation (at

utility expense) in connection with county road project

Avoiding Utility Relocation Delays in County Public Works Projects

• Contractual allocation of responsibility -- special provisions

• Limitations of ability to contractually allocate liability for damages (RCW 4.24.115)

What If There Are Problems?

• Practical advice on dealing with your attorney

Questions - Comments - Discussion

Summary

• Careful planning and attention to details can avoid or minimize utility conflicts and/or delays in county public works projects

• On-going communication with utility purveyors can strengthen relationships necessary to deal with construction project issues

Summary

• Draft contract language to anticipate potential problems and clearly assign responsibility

• Provide all available information to contractors