2 CCR 601-16
I. STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE The Statement of Basis, Specific Statutory Authority and Purpose for the May 1, 2003 rulemaking to adopt the Harvesting in the Right of Way program is incorporated herein by this reference, and is available upon request from:
Colorado Department of Transportation15285 South Golden Road, Bldg 47Property Management SectionGolden, Colorado 80401 The specific authority to conduct rulemaking to adopt the Harvesting in the Right of Way program is contained in sections 24-4-103 and 43-1-210.5, C.R.S.
II. RULES A. GENERAL PROVISIONS 1. APPLICABILITY: These Rules allow persons who own land adjacent to State Highway Rights-of- way to obtain a permit from the Department so that such persons may use such rights- of-way for Harvesting of the native grasses and hay through mechanical mowing means only. No permit may be issued which, in the judgment of the Department, would not be in the best interests of the State or that would be detrimental to the public health, safety, welfare, or that would be in conflict with any applicable federal, state, or local law, or that allows any agricultural purpose other than harvesting by mechanical means only. Agricultural purposes that involve plowing, tilling or disturbing the soil in any fashion, planting any seed or seedlings, applying pesticides or herbicides or irrigation shall not be permitted.2.
CONFORMITY WITH LAWS: Every person applying for a permit shall give written assurance to the Department of its conformity with all applicable laws, including the Rules, Federal Authority, and all laws concerning public accommodations without regard to race, religion, color, sex, or national origin, and that it shall not breach that assurance at any time. Such assurance is a condition precedent to obtaining and renewing a Harvesting permit.3. LOCAL AUTHORITY: All Harvesting permits shall be required to comply with the Rules, and all applicable regulations of the county, city and county, or municipality in which such permitted location resides.
B. DEFINITIONS 1. Abutting - means any land which adjoins an Interstate Highway or a State Highway.2. Adjacent Landowner – the person or persons entitled to the ownership and possession of real property abutting an Interstate Highway or a State Highway.3. Agricultural Uses – means the cutting, baling, and removal of hay and grasses only.4. Department - refers to the State of Colorado, Department of Transportation. 5. Environmentally Restricted Areas – areas where no Harvesting is allowed due to threatened and endangered species or their habitat, wetlands or other areas of concern that may exist.6. Expressway - means a physically divided highway with partial control of access generally having grade separations at major intersections.7.
FHWA - refers to the Federal Highway Administration, the U.S. Department of Transportation.8. Freeway - means a physically divided highway with full control of access having grade separations at all intersections.9.
Harvesting – means cutting of native grasses and hay, through mechanical means only, removing them from the ground by baling, and removing the bales from the State Highway Right-of-way.10. Interstate Highway - any highway included as a part of the National System of interstate and defense highways as authorized and designated in accordance with section 7 of the "Federal-Aid Highway Act of 1944" and any other subsequent acts of Congress.11. Local Authority - a county, or municipality.12.
Median - means the area of right of way from the inside shoulder of one lane of a divided highway to the inside shoulder of the opposite lane.13.
Municipality - means a city or town incorporated pursuant to Colorado law, and any city, town, or city and county which has chosen to adopt a home rule charter pursuant to the provisions of Article XX of the State Constitution 14.
Permittee - means a person, firm or corporation who owns the land adjacent to the State Highway Rights-of-way at the location requested on the application for the express purpose of Harvesting the native grasses on the State Highway Rights-of-way. 15. Of Public Record – means the Department’s ownership of the right-of-way must be on record at the appropriate County Clerk and Recorder’s Office.16.
State Highway - means a highway on the State Highway System in a rural area17. State Highway Rights-of-way – means the real property controlled and owned by the Department for a State Highway.18.
Survey Monument – means the object or physical structure installed in the ground, including witness posts, for the purpose of performing a land survey.
C. ELIGIBILITY To be eligible to obtain a permit to harvest hay and grasses from the State Highway Rights-of-way, the following requirements must be met:
1. A permit applicant must be the Adjacent Landowner to the State Highway Right-of-way the applicant wishes to harvest.
2. The ownership of the State Highway Right-of-way must be Of Public Record.
3. The State Highway Right-of-way requested in the permit application may not include that area of any Median separating traffic lanes on a State Highway.
4. Areas under construction are not eligible for Harvesting permits and any permits in existence at the time that construction begins are deemed null and void at that time. Permits will automatically be reinstated for the remaining period on the original permit upon completion of the construction.
5. Areas that are not eligible to be Harvested are:
a. Newly seeded areas (within the past two growing seasons), or newly constructed sections of State Highway where adequate vegetation is not yet established.
b. Sparse or marginal vegetative cover.
c. Highly erosive slopes or waterways.
d. Areas requiring environmental restrictions as identified during the environmental clearance conducted prior to approval of the initial permit for the permitted area.
e. Medians, rest areas, or other locations designated by the Department.
6. All permitted areas may be Harvested prior to April 1st or after August 15th (or as further amended by the Department’s Memorandum of Agreement (“MOU” ) with the Colorado Division of Wildlife to comply with the Migratory Bird Act). From April 1st or after August 15th, the Department shall allow Harvesting only if it has obtained the concurrence of the local State Division of Wildlife Officer before issuing the permit. Should such concurrence not be obtained, Harvesting shall be limited to prior to April 1st or after August 15th.
D. PERMITS 1. No person, firm or corporation shall Harvest any portion of the State Highway Right-of-way and keep the cuttings from such Harvesting without first obtaining a written permit from the Department.
2. The permit application shall be submitted to the appropriate Department’s Regional Traffic Section Office on the Harvesting permit application provided by the Department.
3. Permits shall be valid for five (5) years from August 15th through April 1st or as further amended by the Department’s MOU with the Colorado Division of Wildlife to comply with the Migratory Bird Act unless a waiver is secured from the State Division of Wildlife allowing year round harvesting. Upon expiration of the initial five (5) year period, the permit may be renewed with the approval of the Department for an additional five year period.
4. Application packages and permits may be obtained from the Department at the appropriate Regional Traffic Section Permit Office.
5. The effective date of an application transmitted by mail shall be the date and time of receipt by the Department rather than the date of mailing by the applicant.
6. The Department will act promptly to approve or deny a permit application once the initial environmental clearance is completed. Notice of approval or denial will be sent to the applicant by first class mail. The Department may deny a permit application that does not comply with all terms and conditions of the Rules, or for any reason required by the terms and purpose of § 43-1-210.5, C.R.S.7. The Department shall conduct and prepare an environmental clearance (Form 128) for all areas of the State Highway Right-of-way for which an applicant is requesting a permit. A permit may be granted excluding those sections of the requested State Highway Right-of-way found to require environmental restrictions.
The Department may typically take forty-five (45) days to complete the initial environmental clearance. The Department encourages the applicant to apply at least 90 days prior to the actual time the applicant may wish to conduct the Harvesting operation to avoid potential delays due to a backlog of requests for environmental clearances. In the process of clearing requested parcels, the Department may delineate areas designated as “No Harvesting Allowed” to preclude work or driving equipment through areas that may be Environmentally Restricted Areas. These areas will be delineated and marked by the Department before any Harvesting can take place and all environmental restrictions shall be delineated on the permit.
8. The applicant shall provide to the Department a completed application form. The form shall include the following information:
a. The name, address, and telephone number of the applicant.
b. Proof that the applicant is the Adjacent Landowner of the property the applicant wishes to Harvest.
c. A legal description of the proposed Harvesting area.
d. The beginning and ending milepost numbers, the side or sides of the State Highway the Harvesting permit is requested for, and identification of the Interstate Highway or State Highway.
e. The Federal Tax I.D. number, or the Social Security number of the applicant.
f. The applicant must sign and date the permit application.
g. A contact person and telephone number if the landowner is not the person conducting the actual Harvesting operation.
h. The Department may reject a permit application that is incomplete.
9. Applicant shall submit the standard non-refundable Application Fee of $100.00 per mile of State Highway Right-of-way requested in the application. Payment shall be made by cash or certified check only.
10. The granting of the permit conveys no right, title, or interest to the permittee in the State Highway Rights-of-way.
E. TERMS AND CONDITIONS 1. All operations shall be done in accordance with the requirements and guidelines set forth herein. Harvesting through the use of mechanical means is the only agricultural use permitted by this permit. No animals shall be permitted on the State Highway Rights-of-way for grazing or other purposes. No plowing, tilling or disturbing the soil in any fashion, planting any seeds or seedlings, spraying any pesticides or herbicides or conducting any irrigation of any type shall be allowed by this permit or rules on the Department’s State Highway Rights-of-way.
2. A copy of the permit and proof of liability insurance in the amounts required herein shall be available on the work site at all times.
3. Access to the permitted State Highway Right-of-way shall be from the Adjacent Landowner’s property only.
a. Access to the permitted Harvesting area for all State Highways including Interstate and controlled access highways is limited to the use of gates provided in the State Highway Right-of-way fence via the adjacent property. If no gate exists, one may be installed by the permittee at a location designated by the Department, at the permittee’s expense, and shall meet the Department current standards. The gate becomes the property of the Department. The Department shall provide a lock for any gate installed for access to any Right-of-way abutting interstate. A lock on all other rights of way access shall be at the discretion of the Department. The permittee shall coordinate access through the gate with the Department’s local maintenance patrol. The gate shall not be used for any other purpose than Harvesting as authorized by the permit.
b. Under no circumstances may the permittee enter or leave the permitted Harvesting area using the main traveled-way of the State Highway.
c. The removal of fences to facilitate ingress and egress to the State Highway Right-of-way is strictly prohibited.
d. The Department is not responsible for providing access roads outside the State Highway Right-of-way line.
e. The permittee shall be responsible for keeping all livestock off of the Department’s State Highway Rights-of-way at all times.
4. Parking, loading and/or off-loading of equipment on the paved shoulders of the State Highway is prohibited.
5. While operating on State Highway Rights-of-way, Harvesting equipment shall display flashing yellow lights and slow-moving vehicle placards.
6. All traffic rules shall be complied with in conjunction with the Harvesting operation. Permittees are not allowed to access the state highway under any circumstances from the harvest area.7. Harvesting shall be continuous within the permitted area. Selective Harvesting will not be allowed; however, selective baling will be permitted except where environmental restrictions have been placed in effect. Harvesting shall be conducted to a minimum of six inches. All weeds should be cut within the harvest area, but weed residue may be left on the ground.
8. Operations will be permitted only when soil is dry enough to prevent rutting to or damage to the rights- of-way.
9. Operations will be permitted during daylight hours only.
10. When the Department determines the Harvesting operation is creating an undue safety hazard, all operations will cease until further notice upon verbal notification to the permittee. The permittee shall cease harvesting operations anytime that dust and debris is blowing onto the highway impairing visibility and traction for motorists until conditions improve. The permit shall be suspended anytime that fire bans are put into effect by the proper fire authority, state Office of Emergency Management or the Governor. Such suspension shall occur automatically and without notice by the Department and shall exist for the duration of the fire ban.
11. The area of the State Highway Right-of-way which may be Harvested by permit is limited to the area from the right-of-way line fence up to fifteen (15) feet from the edge of the roadway shoulder pavement and the areas inside interchanges, if access to the interchange area can be gained without crossing any highway or ramp. Access to interchange areas must occur from the land owner’s property. All Harvesting operations must be conducted at least fifteen (15) feet from the nearest paved portion of the State Highway.
12. Permittee must cut the native grasses and weeds around signs, improvements, and appurtenances as closely as possible.
13. Harvesting of the State Highway Rights-of-way by the permittee is done with the full knowledge that the vegetation may contain chemical residue of automotive emissions and chemical herbicides used for vegetative control.
14. Upon completion of operations, the State Highway Right-of-way shall be left in a clean and neat condition.
15. All hay to be removed shall be baled.
16. All bales within thirty (30) feet of the traveled-way shall be removed immediately.
17. All bales shall be removed within ten (10) days, or they will be removed by the Department without compensation to the permittee.
18. Unattended equipment must be parked as near as possible to the right-of-way fence line, and may not be left unattended within thirty (30) feet of the traveled-way under any circumstances. All equipment shall be removed from the State Highway Right-of-way at the end of each day of Harvesting. Equipment may not be stored overnight on the State Highway Right-of-way.
19. Any permit issued under these rules becomes null and void at any time the Abutting land changes ownership.
20. Any lessee or contractor of the Adjacent Landowner, performing work under a permit issued in accordance with these Rules is subject to the all provisions of these Rules.
21. The permittee is responsible to ensure no damage occurs to existing utility and other installations that may be present on the State Highway Right-of-way during Harvesting.
22. The Department reserves the right to issue utility permits allowing installation of utilities in the State Highway Rights-of-way. The permittee shall not interfere with these installations which will take precedence over any Harvesting activity. Any utility installation may destroy significant portions of any individual year’s crop. Neither the Department nor the utility company shall have any liability to the permittee for such damage.
23. The Department does not guarantee any specific yield of hay or grasses in any given growing season whether impacted by utility installations, construction, drought or any other contributing factor.
24. The permittee (including the permittee’s lessee or contractor) shall coordinate all Harvesting activity with the Department’s local maintenance patrol. Traffic control in the form of “Shoulder Work Ahead” or “Mowing Operations Ahead” signs is required. The Department will provide and install such signs upon 48 hours notification to the appropriate maintenance patrol.
25. The local maintenance patrol Leadworker or Supervisor shall monitor the harvesting operation for compliance with these rules, the permit and any environmental restrictions and shall be empowered to order an immediate cessation of all harvesting activities and the right-of-way cleared should any infractions be noted.
26. The permittee shall not allow any person onto the State Highway Rights Of Way that is not contributing to the actual harvesting operation.
27. The permittee is responsible to ensure no damage or disturbance occurs to any existing survey monuments that may be present on the right-of-way during harvesting.
F. INSURANCE AND LIABILITY 1. Each permittee must provide Comprehensive General Public Liability (PL), and Property Damage (PD) Insurance (minimum) on both the permittee and any and all lessees and/or contractors the permittee may use for Harvesting hay;
a. Combined single limit - $600,000 written on an occurrence basis.
b. Any aggregate limit will not be less than $1 million.
c. Permittee must purchase additional insurance if claims reduce the annual aggregate below $600,000.
d. Certificates of Insurance to be provided to the Department prior to issuance of a permit.
e. Insurance shall include a provision naming the Department as an “Additional Insured” on the Insurance Certificate.
2. The permittee is responsible for reimbursing the Department for the repair of any damage to fences, signs, delineators, guardrails, landscape plantings, or any other State Highway improvements resulting from Harvesting operations by the permittee.
3. The permittee, his successors, or assigns shall hold the Department, its officers, or employees harmless from all costs, liabilities, expenses, suits, judgments, claims or actions brought by any person against the Department, its officers, or employees as a result of, or in connection with the permit, or the operation and performance hereunder by the permittee, his agents, or employees.
4. All risk of injury or damage to permittee, property of permittee or others which may result from debris, foreign objects, or chemical contamination resulting from handling or feeding of Harvested hay is assumed by the permittee. The Department shall not be liable for the quality of the Harvested hay or grasses obtained through this permit.
5. The permittee is responsible for reimbursing the Department for the repair and re-survey of any damage and disturbance to any survey monuments resulting from harvesting operations by the permittee.
G. FEE SCHEDULE PROVISIONS 1. The Department shall charge an Application Fee of $100.00 per mile, with no pro-ration for areas less than one mile, of State Highway Right-of-way requested.
a. Example 1: The applicant owns the property Abutting 1 mile of State Highway Right-of-way on both sides of the State Highway and applies for a permit to Harvest the native grasses on both sides. The Application Fee would be $100.00.
b. Example 2: The applicant owns the property Abutting 3 miles of State Highway Right-of-way on only one side of the State Highway and applies for a permit to Harvest the native grasses on the side owned by the applicant. The Application Fee would be $300.00.
2. The Department will only accept payment in the form of certified checks, or cash for the fees required by the Rules and specifically this Section.
H. PERMIT RENEWAL 1. Applications for renewal of Harvesting permits shall be made by the applicant every five (5) years.
2. The Permit Renewal fee will be the same as the original Application Fee, calculated on a per mile basis.
3. The Department will typically grant or deny a renewal application within fourteen days (14) of receipt of the renewal application. If a new environmental clearance is deemed necessary by the Department, the Department will typically renew or deny a permit within 45 days.
4. All applications for permit renewals shall be mailed to the State of Colorado, Department of Transportation, Traffic Section where the original permit was issued.
I. PERMIT DENIAL, REVOCATION, SUSPENSION AND APPEAL PROCESS 1. The Department may, upon notice, deny a permit application or renewal or may revoke a permit. The provisions of C.R.S. § 43-1-210.5, §24-4-104, and the Rules promulgated thereunder, shall apply to the denial of a permit application or renewal, or a permit revocation, or immediate suspension. Notice and a hearing concerning such denials, revocation or immediate suspension will be provided as required by the applicable provisions of the above sections and the Rules. Written notice of denial of a permit application, or of denial of permit renewal, or of permit revocation, or of immediate suspension shall be sent to the applicant or permittee by first class mail. A request for a hearing shall be made in writing and must be received by the Department no later than 60 days after receipt by applicant/ permittee of such notice.
2. Denial of Permit Application:
a. A permit application shall be denied if the applicant fails to meet any provision of the rules.
b. A permit application shall be acted upon promptly.
c. The Notice shall specify the grounds for such denial, including which requirements, or criteria, of the Rules or section 43-1-210.5, C.R.S., the applicant has failed to meet.
3. Denial of Permit Renewal or Permit Revocation:
a. A permit may be revoked or renewal of a permit may be denied for the following reasons:
b. Should a permit be revoked or not renewed for any reason, the permittee shall, at his/her own expense, remove the gate and restore the fence to its original condition. If the permittee does not accomplish this within 30 days, then the Department shall perform this task and bill the permittee for the cost to do so.
4. Immediate Suspension of a Permit:
a. When the Department has reasonable grounds to believe and finds that the permittee has been guilty of willful and deliberate violation of the Rules, or the health, safety, or welfare of the public imperatively requires emergency action, a permit may be immediately suspended as provided in C.R.S. § 24-4-104(4).
b. In such emergency situations, the Department may take immediate action prior to notice and hearing.
c. When the Department determines the Harvesting operation is creating an undue safety hazard, all operations will cease until further notice upon verbal notification to the permittee.
d. Notice of permit suspension shall be sent to the permittee immediately by first class mail. Such notice shall set forth the basis for the emergency action.
e. In the event that the permittee’s insurance should lapse for any reason, this permit shall immediately be null and void.
5. Revocation of Permits due to new environmental restrictions a. When the Department learns of newly identified environmentally sensitive, threatened or endangered species being present in the permitted area b. When the Department learns of new species being identified – the Department may suspend the permit until the area can be cleared for the new species.