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Section 4: Related Policies and Guidance

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References

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  • American Association of State Highway and Transportation Officials’ (AASHTO)A Policy on Geometric Design of Streets and Highways (2001), known as the “Green Book,” emphasizes safety. Clear roadside policies and specific statements relating to the utility placement in right of way are contained in the “Green Book.” TxDOT has incorporated these recommendations in its design manuals, to the extent possible. These policies and guidelines cover much more than just placement of utilities in highway right of way or clear zone areas. Some of the most important published AASHTO policies and guides are:
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  • FHWA Program Guide: Utility Relocations, Adjustments, and Accommodation on Federal-aid Highway Projects. This guide assists in administering Federal-aid highway programs that involve the use of Federal-aid highway funds for the relocation, adjustment, and the accommodation of utility facilities and private lines for Federal-aid highway projects. Contact FHWA for a printed copy of this guide.
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  • FHWA Highway/Utility Guide. This guide addresses planning, design, permits, construction, and maintenance of utility facilities. It provides the foundation for knowledge on the development, history, and evolution of highway and utility accommodation. This Guide is a critical tool for those involved in the highway utility accommodation field. Contact FHWA for a printed copy of this Guide. Note: These guidelines are generally used when Federal aid is not used on the project. Variations on these guidelines by the State will be more restrictive.
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  • General Utility and Empowerment Statutes
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    • Telephone: Utilities Code, §181.082 states, “A telephone or telegraph corporation may install a facility of the corporation along, on, or across a public road, a public street, or public water in a manner that does not inconvenience the public in the use of the road, street, or water.”
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    • Water: Local Government Code, §402.103 (b), (Water & Utilities), states, “A water corporation may lay water system pipes, mains, or conductors through a street, alley, lane, or square of a municipality if the governing body of the municipality consents, subject to any regulation by the governing body.”
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    • Gas: Utilities Code, §181.022, states, “A gas utility has the right to lay and maintain a gas facility through, under, along, across, or over a public highway, a public road, a public street or alley, or public water.”
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    • Electric: Utilities Code, §181.042, states, “An electric utility has the right to construct, maintain, and operate lines over, under, across, on, or along a state highway, a county road, a municipal street or alley, or other public property in a municipality.”
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  • Reimbursement and Compensable Rights: There are many laws, and policies that must be considered in making a determination regarding reimbursement. TxDOT must examine each situation to determine if the utility has a “compensable interest,” defined as “a utility’s interest in its current location that warrants reimbursement by TxDOT for the cost, or portion thereof, of relocating its facility.”

Federal and State law establishes that if utilities have compensable interests, they may qualify for reimbursement of the cost of adjustment of their facilities when made necessary by highway construction. Utilities may also be eligible for reimbursement of the expense of obtaining replacement right of way for utility adjustments.

A compensable interest will generally fall into one of the following three categories:

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  • Constitutional Property Right – When the utility is located on right of way acquired in its name and used for utility purposes, this right of way can be held in fee simple, lease, or as an easement. The rights inherent in ownership of private property are protected by both the United States and Texas Constitutions.
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  • TxDOT Policy - TxDOT has acknowledged, through its actions and policies, situations where a compensable interest is recognized when no official documentation of the property right exists. This compensable interest is recognized for reimbursement of adjustment cost only; this does not include replacement right of way. While TxDOT may pay for the initial utility adjustment, future adjustments will be at the expense of the utility. TxDOT may recognize a compensable interest in the following situations:
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    • Texas Code - Transportation Code, Chapter 203, §203.092
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    • Texas Caselaw – May establish additional reimbursement rights including granting prescriptive easements.
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    • License Agreement – As an example, utilities will normally occupy railroad right of way under the terms of a license agreement between the utility and the railroad. Should the utility be required to adjust their facilities, consideration will be given for recognizing a compensable interest.
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    • Joint Use Agreement between Utility Companies–where a utility occupies the private easement of another utility, a compensable interest may be recognized.
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    • Utility Company -a utility company may have a compensable interest in its existing facility although a record easement does not exist, i.e., a prescriptive claim.
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    • Municipal Utilities in Public Right of Way – TxDOT may recognize a municipal utility's compensable interest if the municipal utility was in place before the highway facility was incorporated into the State Highway System.
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Research on Eligibility

All evidence (including initial installations and any previous adjustments) concerning the presence of a utility at its current location must be examined by the utility and TxDOT to determine if a compensable interest exists, although the ultimate proof of a compensable interest rests solely with the utility. It is strongly recommended that the District discuss with the ROW Division the merits of each situation before advising the utility of any eligibility for reimbursement. The utility should also familiarize itself with the general requirements for compensation as set forth in Chapter 11, Section 1, of this Manual.

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