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