Wyo. Code R. 045-0007-4
Effective Date: 03/26/1990 to 03/16/2001
Rule Type: Superceded Rules & Regulations
Reference Number: 045.0007.4.03261990
Section 1. General. By Federal regulations, the rights-of-way of Federal-aid or Direct Federal roads are acquired exclusively for highway purposes which include the construction, reconstruction, maintenance, and safe operation of a highway and related facilities, and include the air rights above the right-of-way.
Federal regulations and Department policy recognize and endorse the joint use of highway rights-of-way with utilities, provided such occupancy is in the public interest and will not impair the highway or interfere with the free and safe flow of traffic thereon.
The applicant for a license should allow adequate time for plans and/or field review of the applicants project as well as the possibility of redesign in order to be in conformance with Department stipulations.
The applicant shall consider the aesthetic quality of the proposed installation and make maximum use of the terrain to reduce visual clutter. FHPM 6-6-3-2 provides guidelines in paragraph 5a, and paragraph 6h specifically addresses utility construction in scenic areas.
Section 2. Grant of Right. When the Department grants a License or executes a License Agreement with a utility company, private entity, or governmental entity for the installation of a facility within or across a highway right-of-way, the Department does not convey an exclusive right or strip of land of specific width to the applicant. The Department merely gives permission to the applicant to occupy highway right-of-way with a facility in the exact location as shown in the proposal (Exhibit) furnished by the applicant, with the provision that the facility be removed by the owner at the owners expense at any time the right-of-way is required for highway purposes.
Licenses, License Agreements, and Exhibits are covered in detail elsewhere in this regulation.
Section 3. Construction Criteria. The Department has developed specific criteria regarding how and where utility facilities may be constructed within the rights-of-way under its jurisdiction.
This criteria is covered in detail elsewhere in this regulation and is in addition or complimentary to the general text of this section of the regulation.
Section 4. Interstate Highways and Other Fully Access Controlled Roads.
(a) Crossings of the Rights-of-Way.
(i) Crossing of the right-of-way and the area between the NO ACCESS lines will be allowed for buried and aerial utility lines whether they are owned and operated by a private, public, or governmental entity.
(ii) The specific construction and safety criteria of this regulation will apply. No above ground appurtenances will be allowed between the NO ACCESS lines.
(iii) Customer service lines to a facility or industrial/residential development on the other side of a fully access controlled highway right-of-way shall be accomplished by construction of one crossing of sufficient capacity to serve the area instead of many individual service connections.
(b) Service Roads and Frontage Roads. These types of roads are generally not included within the NO ACCESS lines and may be used for parallel utility facility encroachments as well as placement of facilities connected with a crossing of the adjacent access controlled portion of the right-of-way.
All construction and safety provisions of this regulation apply.
(c) Parallel Encroachments Within the No Access Lines.
(i) Short parallel encroachments within the NO ACCESS line of a fully access controlled road may be allowed for a public utility or governmental entity if special and unique circumstances exist and when such a parallel encroachment does not affect the design, construction, reconstruction, safe operation and maintenance of the highway in any way.
(ii) Requests for parallel encroachments will be considered and evaluated by the Department on a case by case basis and should meet the following minimum criteria:
(A) The facility is used for transmission (not distribution) of a non-flammable, non-corrosive, non-explosive commodity.
(B) The facility will not require frequent servicing, inspection, or patrolling on foot or by vehicle.
(C) No service connections for distribution will be constructed within the highway right-of-way, initially or in the future.
(D) No pump stations, repeaters, transformers, regulators, meters, or facilities of a similar nature will be located within the no-access lines.
(iii) The key tests the Department will use in determining if a parallel encroachment should be considered are:
(A) Construction of the utility facility outside of the right-of-way is extremely difficult to implement due to terrain, environmentally or archeologically sensitive areas, heavily developed residential or industrial areas, or constraints of a similar nature.
(B) Construction outside of the right-of-way is unreasonably costly, and based on the size of the utility company, would cause an economic hardship on the utility and its consumers.
(C) Construction outside of the right-of-way will cause significant adverse impact on productive agricultural land.
(D) Utility facility construction within the highway right-of-way lines is the most prudent and feasible location available.
(iv) The applicant will provide the Department with all pertinent documentation supporting the above cited criteria at the time of application.
(v) After review and approval by the Department, the Department will secure Federal Highway Administration approval, as provided for in FHPM 6-6-3-2.
Section 5. Access to a Facility Within a Fully Access Controlled Road.
(a) If the Department approves a request for parallel encroachment within a fully access controlled right-of-way, the following steps will be taken by the Department and/or Utility Company as applicable:
(i) The Department establishes a new no-access line between the outer limits of the right-of-way and traveled lanes of the highway, which will encompass the proposed utility facility, thereby creating a utility corridor.
(ii) The Department will designate specific points of access and egress to the corridor for use by the utility company during construction and maintenance of the facility.
Whenever possible such access points should start and terminate at existing interchanges and be tied to the ramps or crossroad.
(iii) If no interchanges are in the vicinity of the proposed utility encroachment and access/egress for construction purposes has to be provided from the through traveled lanes, the Department will, at the expense of the applicant and workload permitting, conduct or supervise the design of temporary off and on ramps from the traveled lanes to the proposed work site.
The applicant or its contractor will construct and ultimately remove such temporary ramps, provide safety signing and traffic control, and restore the disturbed area within the highway right-of-way in accordance with current Department specifications and under the supervision of Department personnel.
(b) If the utility requires permanent access to their facility for inspection and/or maintenance and no interchanges or crossroads are located nearby, the utility will have to negotiate an access right with the adjacent land owner to a point designated by the Department where a locked gate may be installed for the utility's access to their facility.
In extreme cases of necessity a permanent approach to the corridor maybe considered if design standards and safety requirements can be met.
(c) In no case shall the utility or its contractor access their facility by leaving or entering the traveled lanes of the road by driving off the shoulder of the roadway or use the shoulder for parking of equipment or vehicles.
(d) In no case, whether during construction or maintenance activities, shall personnel of the utility or its contractor cross the median of a divided road or make U-turns across the traveled lanes in order to access the utility's facility or construction site.
If access to the facility requires a change in direction of travel for construction equipment, it shall be accomplished at locations designated by the Department and in compliance with applicable safety requirements.
Section 6. Other Roads on the State or Federal Highway System.
(a) General Requirements. Proposed occupancy of highway rights-of-way for nonhighway purposes shall meet the following criteria:
(i) The proposed facility must directly or indirectly serve the general public. (See Private and Public Utilities and Governmental Facilities under Definitions).
(ii) Adequate right-of-way is available and the proposed occupancy does not interfere with or restrict in any way the maintenance, operation, upgrading, and reconstruction of the road and its related facilities like: signs, delineators, guardrail, signals, drainage pipes, ditches, slopes, stockpasses, bridges, fences, etc.
(iii) The safety of the public is not impaired in any way during construction, operation and maintenance of the facility.
(iv) Clear recovery area (clear zone) criteria is not violated.
(v) Major feeder lines of sufficient capacity shall be brought across the R/W to service developing areas instead of individual lines for each customer.
(b) Private Lines; Highway R/W Owned by the Department.
(i) Crossings
Privately owned facilities which are operated for private purposes may be allowed to cross the R/W.
(ii) Parallel encroachments
Generally not permitted unless unusual hardship or extenuating engineering, environmental, or aesthetic considerations make construction outside of the R/W extremely difficult and/or costly.
(iii) Construction methods and safety provisions must be in compliance with this regulation and as directed by the Department.
(c) Private Lines; Highway R/W on Easement. When the Department holds an easement for highway or transportation purposes from a private landowner, privately owned lines that are operated for private purposes may cross or encroach upon the highway easement as in Para. (ii) above. (Previous case law and legal opinions uphold the following: "The highway rights-of-way are held in trust for the use of the citizens of the State of Wyoming as that may be determined by law. The fact a portion of its right-of-way is held by an easement for highway purposes as opposed to a fee simple interest does not create a greater or lesser estate in the public in and to the land embraced within the rights-of-way or create any difference in the way the public may utilize the right-of-way for highway purposes. The State is legally able to utilize the land within the boundaries of the highway for all lawful purposes consistent with every reasonable method of travel, transportation and communication for which public highways are normally used'. Extract from Opinion No. 88-003, dated January 15, 1988, by Joseph B. Meyer, Attorney General and Lawrence A. Bobbitt, III, Senior Assistant Attorney General, based on Wyoming Statute 1-26-813).
(d) Private & Public Utility Lines; Highway on Federal Land. When the highway easement is on Federal land, the applicant is required to obtain permission from the applicable Federal agency which administers the land, after the Department has approved the proposed utility line construction.
(e) Private & Public Utility Lines; Highway on Railroad Operating R/W. When the Department's roads cross a railroad operating right-of-way, whether at grade or on a separation structure, the railroad reserves the exclusive right to license secondary use by any type of utility facility. The utility must first secure permission from the railroad to cross or encroach upon the rights held by the Department and then furnish the railroad's approval to the Department for issuance of a license. Failure to first obtain railroad approval will jeopardize the rights granted to the Department by the railroad.
(f) Public Utilities; Highway R/W on Easement or Department Owned.
(i) General
Crossings and parallel encroachments may be granted to companies, corporations, districts and joint powers boards organized under the laws of the State, Boards of Public Utilities, facilities belonging to the State or Federal Government and facilities of the various political subdivisions of the State, who are providing a direct or indirect service to the public.
(ii) See Section 6 (a) for General Requirements.
(iii) See Section 6 (d) for Federal Lands.
(iv) See Section 6 (e) for Railroad Operating R/W.
(v) All other applicable provisions of this regulation, the license form, or the license agreement, and other stipulations of the Department will be complied with.
Section 7. Inspection. The Department may at any time, at the discretion of the District, assign full or part time inspectors to any utility's project within the right-of-way to assure full compliance with applicable State and Federal laws, rules, regulations, as well as Department policy.
Such inspection will be at the expense of the utility which owns the facility being installed. The District shall execute a WHD Form A-32, Authority for Rendering Special Service, with the utility to cover reimbursement of inspection costs incurred by the Department.