1. (a) General.

   1. (1) The provisions of this section apply to all utility types, unless otherwise specified in §21.40 and §21.41 of this subchapter.
   2. (2) Utilities with facilities on the right of way shall be responsible and accountable to maintain and protect the safety of the traveling public and the public's investment in the highway facility.
   3. (3) When an existing approved utility requires 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.
   4. (4) The utility shall not cut into the pavement or concrete riprap without written permission from the department.
   5. (5) Utilities shall reimburse the department for the cost of measures taken 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.

2. (b) Vegetation and site clean-up.

   1. (1) When utility installation is complete, the utility shall return the right of way to a condition, at a minimum, equal to its original condition, 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. (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 line and any special district requirements justified by the value of the trees and other aesthetic features.
   3. (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 acceptable to the department.
   4. (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. (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. (6) The utility shall reimburse the department for all costs incurred to repair damage from the actions of the utility. These costs may include restoration of and repairs to roads, drives, terrain, landscaping, or fences.

3. (c) Traffic control.

   1. (1) The utility shall be responsible for the safety of, and shall minimize disruption to, the traveling public with proper traffic control.
   2. (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. (3) All utility pits opened within the horizontal clearance shall be properly protected, in compliance with National Cooperative Highway Research Project Report 350, with concrete traffic barriers, metal beam guard fencing, appropriate end treatments, or other appropriate warning devices.

4. (d) Work restrictions.

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

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.