17-229 C.M.R. ch. 220
SUMMARY: This chapter sets forth rules and procedures adopted by the Maine Department of Transportation (MaineDOT) to administer a program of reimbursement for the underground relocation of utility facilities on federal-aid highways in federally designated historic districts, pursuant to 23 M.R.S.A. §4210-A.
This Chapter establishes rules and procedures for the administration of a program of reimbursement for the underground relocation of existing overhead utility facilities in federally designated historic districts where utility relocation is necessary due to a Federal-aid highway project on a highway that is part of the National Highway System and where underground utility relocation is requested for the benefit of a National Register Historic District (NRHD). It is adopted pursuant to P.L. 2005, c. 282, “An Act To Facilitate Reimbursement of Public Utilities Relocation Costs”, as amended by P.L. 2007, c. 306; see 23 M.R.S.A. §4210-A.
For the purposes of this chapter, the following words have the following meanings unless the context indicates otherwise.
1. Adverse Effect. An “Adverse Effect” means when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association. (36 CFR §800.5)
2. Betterment. “Betterment” means any additional feature, upgrade, or change in capacity or character of the facility, or an increase in its useful life.
3. Delivering the Federal Surface Transportation Program. “Delivering the Federal Surface Transportation Program” means the entire process by which MaineDOT applies funding received from the Federal Highway Administration and other sources to the construction, reconstruction, improvement or repair of highways that are part of the National Highway System and eligible for Federal aid.
4. Eligible Project. “Eligible Project” means a project for the construction, reconstruction, improvement or repair of a highway on the National Highway System that is eligible for federal aid under the FSTP and that has either been identified as a project candidate in MaineDOT’s mid-term plan (a.k.a., Six-Year Plan) or has received funding approval.
5. Eligible reimbursement area. "Eligible reimbursement area" means an area that is within the right-of-way limits of an eligible project and also within the limits of a National Register Historic District.
6. Existing overhead utilities. "Existing overhead utilities" means lawfully located aboveground facilities such as wires, lines, cables or similar devices, and necessary related appurtenances, used for or in connection with the transmission of electric power or telephone, cable television or communications signals.
7. Historic site. "Historic site" means any site, structure, district or archaeological site which has been officially included on the National Register of Historic Places and/or on the Maine Historic Resource Inventory, or which is established by qualified testimony or evidence as being of historic significance.
8. Lawfully located. "Lawfully located" means placed, existing and maintained in compliance with MaineDOT's Utility Accommodation Policy Rules, 17-229 CMR chapter 210, and all other applicable statutes, Rules and permitting requirements, as determined by MaineDOT.
9. Local entity. "Local entity" means either an NRHD, a municipality acting on behalf of an NRHD or a third party consisting of an NRHD and a municipality.
10. National Register Historic District (NRHD). "National Register Historic District" means a district that is individually listed in the National Register of Historic Places pursuant to the National Historic Preservation Act, 16 United States Code, Section 470 et seq.
11. Relocation. For purposes of the rule, "Relocation" means the process by which existing overhead utilities are moved from one location within a public highway right-of-way and lawfully located at an alternate location underground within the public highway right-of-way in connection with an eligible project. "Relocation" does not include any action that results in improvements to, or extension of, service, or that in any way constitutes a betterment, as determined by MaineDOT.
12. Underground relocation. "Underground relocation" means relocation of existing overhead utilities in an eligible reimbursement area to an underground location also within that eligible reimbursement area.
1. To the extent that such payments are eligible for reimbursement under the FSTP, MaineDOT may, subject to this Chapter, reimburse local entities for up to 80% of the eligible costs paid by a local entity for the difference between the cost of underground relocation of existing overhead utilities in eligible reimbursement areas and the cost that those utility facility owners would have incurred to relocate those same facilities if they were relocated above ground.
2. MaineDOT's responsibility for reimbursement of costs associated with underground relocation of existing overhead utilities is limited to eligible reimbursement areas as defined in this Chapter.
3. Underground relocation costs eligible for reimbursement by MaineDOT under this Chapter may include consideration of utility requirements, landscaping and other appropriate considerations, as determined by MaineDOT.
4. MaineDOT will not reimburse costs associated with or resulting from any action that results in a betterment, or improvements to, or extension of, service, as determined by MaineDOT.
5. MaineDOT will not reimburse costs associated with or resulting from service connections or related work beyond the project right-of-way limits.
6. MaineDOT will not reimburse costs associated with or resulting from the acquisition of additional rights-of-way outside the limits of state or state aid highway right-of-way.
7. MaineDOT will not reimburse costs associated with estimates relating to the relocation of utilities.
1. At the request of a local entity, MaineDOT will coordinate the underground relocation of existing overhead utilities in eligible reimbursement areas on eligible projects.
2. Prior to design of the underground relocations, applicants will provide MaineDOT with complete, utility approved detailed estimates of:
A. the cost to relocate all existing overhead utilities within an eligible reimbursement area to alternate above ground locations; and
B. the cost to relocate those same existing overhead utilities to alternate underground locations.
3. As early as possible in the planning stages of an eligible project, MaineDOT will, as part of this coordination process, determine whether the proposed underground relocation will result in any adverse effects on the NRHD or any historic site, and will communicate its determination to the local entity.
4. MaineDOT may decline to participate in, or entertain requests for cost reimbursement of, underground relocations under this Chapter that it determines will, or are likely to, result in an adverse effect on an NRHD or any historic site.
1. On eligible projects where MaineDOT has agreed to perform coordination of underground relocation, a local entity will pay utility facility owners for the difference between the cost of underground relocation of existing overhead utilities in eligible reimbursement areas and the cost that those utility facility owners would have incurred to relocate those same facilities if they were relocated above ground. Utility facility owners will calculate this difference by subtracting their estimated cost for relocating above ground from their estimated cost for relocating underground.
2. The MaineDOT will not reimburse for costs associated with any action that results in a betterment, or that generates costs associated with improvements to, or extension of, service, as determined by MaineDOT. The cost for any such betterment, expansion or improvement must be borne by the owners of the utility facilities.
1. Funding for reimbursement of local entities under this Chapter will be derived from, and awarded as part of, the existing Transportation Enhancement (TE) Program. Funding under this Chapter shall not be derived from any other FSTP programs.
2. The total of reimbursements paid by MaineDOT to local entities under this Chapter in any biennium shall not exceed the total amount of FSTP funds available to reimburse the State in that biennium under the TE Program, 23 USC §133 (b) (8).
To obtain reimbursement under this Chapter, a municipality must, in response to MaineDOT's biennial municipal solicitation, apply for federal TE funding under the Landscaping and Scenic Beautification category. Fully completed application forms must be submitted to MaineDOT by a designated deadline and are subject to a competitive process. All TE applications are prioritized and selected for funding by MaineDOT. A successful municipality will be notified in writing, and once a state-local agreement is executed, a MaineDOT project is established. In the case of relocated overhead utilities underground, the MaineDOT project will be linked to an eligible project and terms for reimbursement will be outlined in the agreement.
Nothing in this Chapter is intended, or shall be construed, to:
1. establish any obligation on the part of MaineDOT to directly reimburse owners of utility facilities;
2. establish any cause of action or basis for appeal on behalf of owners of utility facilities;
3. increase MaineDOT's cost or liability in complying with the National Historic Preservation Act, 16 USC §470 et seq. or with 49 USC §303; or
4. waive any of the rights, privileges and immunities of the State of Maine, including those enjoyed under the 11th Amendment to the Constitution of the United States of America, except as specifically provided herein.
Appeal of final agency action pursuant to this Chapter shall be governed by the standard provisions for judicial review contained in the Maine Administrative Procedure Act, 5 M.R.S.A. §
1101 et seq.
STATUTORY AUTHORITY: 23 M.R.S.A. §4210-A
EFFECTIVE DATE:
March 24, 2010 – filing 2010-86