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RULE §21.25State Participation in the Relocation of Certain Publicly-Owned Utility Facilities

(a) A utility that is a political subdivision or owned or operated by a political subdivision may request the relocation of its utility facilities required by a state highway improvement project be at the expense of the state under Transportation Code, Section 203.092(a-4).

(b) To request relocation under this section, the utility must make a written request to the department and submit:

  (1) documentation that the utility, because of an existing financial condition, would be unable to pay the cost of relocation in full or in part at the time of relocation or that the utility's ability to operate or provide essential services to its customers would be adversely affected by such a payment made at that time; and

  (2) documentation:

    (A) on the utility's ability to obtain a state infrastructure bank loan under Chapter 6 of this title (relating to State Infrastructure Bank) and its ability to obtain other financing for the relocation, including relevant financial information described in §6.23 of this title (relating to Application Procedure); or

    (B) that the utility is a political subdivision, or owned or operated by a political subdivision, that has a population of less than 5,000 and is located within a county that has been included in at least five disaster declarations made by the president of the United States of America in the six-year period preceding the proposed date of the relocation; and

  (3) any other information or documentation requested by the department.

(c) As soon as practicable after review and analysis of the documentation and information provided under subsection (b) of this section, the department will submit findings and recommendations to the commission for consideration.

(d) The commission will find that all or a part of the utility facility relocation is an expense of the state if:

  (1) payment for all or a part of the relocation of the utility facility would not cause the department to exceed $10 million for the relocation of utilities authorized under Section 203.092(a-4) in any fiscal year; and

  (2) the commission determines that:

    (A) the utility is a political subdivision or is owned or operated by a political subdivision;

    (B) a financial condition exists, as described in subsection (b)(1) of this section; and

    (C) the utility:

      (i) would not be able to receive a state infrastructure bank loan under Chapter 6 of this title to finance the cost of the relocation and is otherwise unable to finance that cost; or

      (ii) meets the description provided in subsection (b)(2)(B) of this section.

(e) If the commission finds that all or a part of the utility facility relocation is an expense of the state, the department and the utility shall include the terms of the department's payment of relocation expenses in an agreement concerning the relocation.

(f) Because of the fiscal constraint provided under Transportation Code, Section 203.092(e), the department:

  (1) may prioritize the utility requests based on the needs of the department, including the construction schedules of the projects requiring relocation of utility facilities;

  (2) may delay until the next fiscal year the payment of all or part of a claim made by a utility if at the time the claim is received by the department, the payment is prohibited by Section 203.092(e); and

  (3) will not pay a claim for payment that is received by the department later than one year after the date that the relocation of the utility facility is completed.

Source Note: The provisions of this §21.25 adopted to be effective February 19, 2020, 45 TexReg 1044

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