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TITLE 43TRANSPORTATION
PART 1TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 21RIGHT OF WAY
SUBCHAPTER CUTILITY ACCOMMODATION
RULE §21.38Construction and Maintenance

(a) General.

  (1) A utility is responsible for the construction and maintenance of its utility facility, including installation, adjustment or relocation, replacement, expansion, and repair. Construction and maintenance must conform to the requirements of §21.37 of this subchapter (relating to Design) and shall be accomplished in a manner and to a standard acceptable to the department.

  (2) The provisions of this section apply to all utility facility types, unless otherwise specified in §21.40 and §21.41 of this subchapter (relating to Underground Utilities and Overhead Electric and Communication Lines, respectively).

  (3) Utilities with utility facilities on the right of way shall be responsible and accountable to preserve and protect the safety of the traveling public and the public's investment in the highway facility.

  (4) When an existing approved utility facility requires construction or maintenance, the utility shall notify the district 48 hours before the start of any work. In an emergency situation, the utility shall notify the district as soon as possible.

  (5) The utility shall not cut into the pavement or concrete riprap without written permission from the department.

  (6) Utilities shall reimburse the department for the cost of measures taken by the department in the interest of public safety, restoration, clean-up, and repairs to the highway and right of way made necessary by the utility's failure to comply with the provisions of this subchapter.

(b) Vegetation and site clean-up.

  (1) When utility construction or maintenance is complete, the utility shall restore the right of way to substantially the same condition that existed before the construction or maintenance, including reseeding or resodding to prevent erosion. After the area is brought to grade, the entire disturbed area shall be covered in accordance with the department's Standard Specifications for Construction and Maintenance of Highways Streets & Bridges.

  (2) To preserve and protect trees, bushes, and other aesthetic features on the right of way, the department may specify the extent and methods of tree, bush, shrubbery, or any other aesthetic feature's removal, trimming, or replacement, in conjunction with paragraph (1) of this subsection. The district engineer shall use due consideration in establishing the value of trees and other aesthetic features in the proximity of a proposed utility facility and any special district requirements justified by the value of the trees and other aesthetic features.

  (3) If settlement or erosion occurs due to the actions of the utility, the utility shall, at its expense, reshape, reseed, or resod the area as directed by the department. Reseeding, resodding, or repair under this section shall be completed within a reasonable period of time that is acceptable to the department.

  (4) Pruning of trees shall comply with the department's Roadside Vegetation Management Manual. When unapproved pruning or cutting occurs, the utility shall be responsible for the replacement of trees or for damages to existing trees and bushes.

  (5) Highways adjacent to utility construction sites shall be kept free from debris, construction material, and mud. At the end of every construction day, construction equipment and materials shall be removed from the horizontal clearance, placed as far from the pavement edge as possible, and properly protected.

  (6) The utility shall reimburse the department for all costs incurred to repair damage to the right of way that results from the actions of the utility. These costs may include restoration of and repairs to the pavement structure, drainage structures, terrain, landscaping, or fences.

(c) Traffic control.

  (1) The utility shall be responsible for the safety of, and shall minimize disruption to, the traveling public with proper traffic control.

  (2) Appropriate measures shall be taken in the interests of safety, traffic convenience, and access to adjacent property that meet the requirements of the department's Compliant Work Zone Traffic Control Device List. The utility shall place appropriate signs, markings, and barricades before beginning work and shall maintain them to warn motorists and pedestrians properly. All traffic control devices shall conform to the TMUTCD and the National Cooperative Highway Research Project Report 350.

  (3) All utility pits opened within the horizontal clearance must, in compliance with National Cooperative Highway Research Project Report 350, be properly protected with concrete traffic barriers, metal beam guard fencing, appropriate end treatments, or other appropriate warning devices.

(d) Work restrictions.

  (1) The department reserves the right to halt construction or maintenance during hazardous situations, such as inclement weather, peak traffic hours, special events, or holidays, or for non-compliance with a use and occupancy agreement. Requests for emergency maintenance shall be directed to the appropriate district office.

  (2) If the department determines that the facility was not constructed or maintained in the location or in the manner shown on the approved construction plans, the department may require the utility to take appropriate corrective action as determined by the department.

(e) Utility work included in a highway construction contract.

  (1) If a state highway improvement project requires the adjustment or relocation of a utility facility, the utility by agreement with the department may authorize the department to include the adjustment or relocation of the utility facility in the highway construction contract. The department may enter into an agreement under this subsection only if the district engineer determines that:

    (A) including the adjustment or relocation of the utility facility in the construction contract is necessary to meet the construction sequencing of the state highway improvement project or will expedite the project;

    (B) the adjustment or relocation of the utility facility by the department's contractor can be accomplished in conformity with all applicable local, state, and federal regulations for the installation of the particular utility facility; and

    (C) the adjustment or relocation of the utility facility by the department's contractor will not involve an unreasonably high risk of:

      (i) danger to the traveling public, highway, or construction workers due to the presence of hazardous materials, high pressure pipelines, or other potentially dangerous utility products; or

      (ii) prolonged interruption of the delivery of a utility product that is essential to public health and safety.

  (2) The utility must approve the plans, specifications, and cost estimate for the adjustment or relocation of the utility facility before it may be included in the construction contract. The utility is responsible for ensuring that the design and construction of the utility facility meet all regulatory and environmental compliance requirements.

  (3) If the adjustment or relocation of the utility facility included in the construction contract is not 100 percent reimbursable by the department under the requirements of Transportation Code, §203.092, the utility is responsible for advancing or otherwise paying to the department the utility's prorata share under state law of the funds necessary for construction work related to the adjustment or relocation.

  (4) An agreement under this subsection must provide:

    (A) the estimated cost of the construction work related to the adjustment or relocation, including the cost of any betterment, to be performed by the department's contractor, and the utility's prorata share of the cost based on eligibility for department cost participation under Transportation Code, §203.092;

    (B) for payment to the department of the utility's prorata share, if any, of the estimated cost under subparagraph (A) of this paragraph at least 45 days before the date set for the receipt and opening of bids for the highway construction contract;

    (C) a description of the construction work related to the adjustment or relocation, including any betterment, that is to be performed by the utility at no cost to the department;

    (D) for concurrent construction inspection by the utility during construction;

    (E) that the utility is responsible for physically connecting the installed utility facility to its existing utility facilities to make the installed facility operational and for performing any tests required to assure compliance with all applicable safety standards and regulations;

    (F) for final acceptance by the utility of the adjustment or relocation after the construction work is completed; and

    (G) any other provisions that the district engineer considers to be necessary or desirable.

  (5) When used in this subsection, "betterment" means any upgrading of the utility facility being adjusted or relocated that is not attributable to the highway construction project nor required in order to comply with any other law, code, or ordinance, and is made solely for the benefit and at the election of the utility.

  (6) During the adjustment or relocation of a utility facility under an agreement under this subsection, the utility remains liable under any certificate of service. The department is not responsible for any issue related to the design or construction of the adjustment or relocation of the utility facility after final acceptance by the utility of the utility facility.

  (7) After completion of the construction work under an agreement under this subsection, the utility is responsible for any ongoing maintenance of the utility facility in compliance with this section.

  (8) If the adjustment or relocation of the utility facility is reimbursable by the department under the requirements of Transportation Code, §203.092, the department will reimburse the utility for eligible expenses incurred in approving and inspecting the construction work.

  (9) All provisions of this subchapter and Subchapter B of this chapter (relating to Utility Adjustment, Relocation, or Removal) that apply to the design, estimates, and scope of an adjustment or relocation apply to a project carried out under an agreement entered into under this subsection.


Source Note: The provisions of this §21.38 adopted to be effective March 17, 2005, 30 TexReg 1455; amended to be effective December 11, 2008, 33 TexReg 10064; amended to be effective November 17, 2011, 36 TexReg 7679; amended to be effective October 12, 2014, 39 TexReg 7946

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