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Washington State Highway Right-of-Way (3-WA-c)

Information current as of 2021
In Washington, a developer planning to place utility lines in a state highway right-of-way must obtain a Utility Permit or Franchise from the Washington State Department of Transportation (“WSDOT”). Wash. Admin. Code § 468-34-160. Depending on the access required, a developer may need to obtain either a permit or franchise from WSDOT. A developer will need a Utility Line Franchise if the developer plans to place utility lines that will require the “…longitudinal occupancy of highway rights-of-way…”. Wash. Admin. Code § 468-34-110(16). If the developer needs any other kind of utility line access that encroaches on a highway right-of-way, that developer will need a Utility Line Permit. Wash. Admin. Code § 468-34-110(17).

State Highway Right-of-Way Process

3-WA-c.1 – Application for Utility Permit or Franchise

A developer must submit an Washington – Application for Utility Permit or Franchise Form (“Application”) to the Washington State Department of Transportation (“WSDOT”) to construct utility lines that encroach on a state highway’s right-of-way. The Application must:

  • Be submitted in writing on the Washington – Application for Utility Permit or Franchise Form;
  • Describe the state highway or portion thereof where the Utility Permit or Franchise is desired;
  • Include a list of jurisdictions that would be affected by the proposed permit or franchise, as well as a list of other franchisees who should receive notice of the current application;
  • Include a description of the utility facility and any additional plans and data for Category 1 and Category 2 installations;
    • Category 1 installations will have considerable impact on highway facilities and the public, and will require a detailed review by more than one department office. Wash. Admin. Code § 468-34-110(53)(a);
    • Category 2 installations will have limited impact on highway facilities and the public, and may require a detailed review by more than one department office. Wash. Admin. Code § 468-34-110(53)(b);
  • Indicate compliance with the standards set forth in Wash. Admin. Code § 468-34-100.; and
  • Discuss alternate siting possibilities and provide reasons why siting the utility line on the highway’s right-of-way is the desired option.

Wash. Rev. Code §§ 47.44.010(2); Wash. Admin. Code § 468-34-010

The developer must also pay reasonable cost to WSDOT for investigating, handling and granting the Utility Permit or Franchise, including but not limited to basic overhead charges, the fees of hearing officers and reporters, and the cost of providing an inspector during construction and maintenance of the utility facility. Wash. Admin. Code § 468-34-020.

3-WA-c.2 – Publish Notice of Application

WSDOT must give notice at the expense of the applicant (developer) in the county or counties in which any portion of the right-of-way applied for is located, by publishing a notice once a week for two consecutive weeks in a newspaper of general circulation in those counties. Wash. Admin. Code § 468-34-050. These notices must state the name of the developer and provide a description of the state highway or part thereof whose right-of-way the developer is seeking a Utility Permit or Franchise for. Wash. Admin. Code § 468-34-050.

3-WA-c.3 to 3-WA-c.5 – Does WSDOT Determine that a Hearing on the Application is Necessary?

When a developer files a Utility Permit or Franchise Application, WSDOT will first determine if it’s in the public interest to require a hearing prior to approving the Application. In making this decision, WSDOT will look at whether the work involved in the Application may:

  • During construction, significantly disrupt the flow of traffic or use facilities within the right of way; or
  • During or following construction, cause a significant and adverse effect upon the surrounding environment.

Wash. Rev. Code §§ 47.44.010(3); Wash. Admin. Code § 468-34-030(1).

If WSDOT determines that a hearing on the Application is necessary, then WSDOT will make arrangements for a hearing before the Secretary of Transportation or his/her designee at the earliest possible date. The developer will be given the opportunity to appear before the secretary or his/her designee in support of the Application. If WSDOT determines that a hearing is necessary, they will likely publish a notice of the hearing on the Application.

Wash. Admin. Code § 468-34-040.

There are some examples listed in the Washington – Wash. Rev. Code §§ 47.44 et seq., Franchises on State Highways where WSDOT may require a hearing. These examples include projects that involve any of the following:

  • Overhead transmission lines in excess of 35 kV;
  • Facilities requiring the installation of pipe larger than eighteen inches in nominal diameter;
  • Conduits requiring an excavation wider than three feet;
  • Pipelines that are larger than four (4) inches in nominal diameter, and are carrying substances which are flammable, corrosive, expansive, energized or unstable;
  • Pressurized carrier pipes larger than 12 inches in nominal diameter; and
  • Underground installations of any size that require excavation through landscaped areas which are authorized by permit and which are maintained by owners of abutting property.

Wash. Admin. Code § 468-34-030(2).

Note: It is very rare for WSDOT to require a hearing for a Utility Line Permit or Franchise.

3-WA-c.6 to 3-WA-c.7 – Are there Any Protests to the Application?

Private parties, whose interests would be adversely affected by the Utility Permit or Franchise, have fourteen (14) days to protest the Application after the notice of filing is published. This protest must state the facts upon which the protest is based. WSDOT will not consider any protests filed after the 14-day period.

Wash. Admin. Code § 468-34-060.

Note: WSDOT usually does not post or publish a notice of a Utility Permit or Franchise Application filing, because in most cases, only state or local government interests are involved and private interests are rarely involved.

3-WA-c.8 –Conduct Hearing on the Application Protest

If a protest is filed, then WSDOT will arrange for a hearing on any matters with respect to which the protest was filed. Wash. Admin. Code § 468-34-080. The applicant (developer) will be responsible for the costs of conducting the hearing. Wash. Admin. Code § 468-34-020.

3-WA-c.9 – Does WSDOT Approve the Application?

WSDOT will review the Application to ensure that all necessary considerations are included. WSDOT ultimately has the discretion to approve or reject any Application for a Utility Permit or Franchise.

Depending upon the review of the Application, WSDOT regional office governing the area where the project is located will either approve or deny the Application.

3-WA-c.10 – Appeal Decision (Optional)

If the Application is not approved, then the developer may appeal the decision. There is no specific form for appealing the decision, but the appeal must be on a written and signed hard copy that is delivered by hand or mail to the Office of the Secretary of WSDOT. The appeal must be filed within 30 days of the application rejection, and specify the issues to be adjudicated.

Wash. Admin. Code § 468-10-430.

If the Application is again rejected upon appeal, the applicant (developer) should consider a different project location.

3-WA-c.11 – Utility Permit or Franchise

If WSDOT approves the Application, the resulting Utility Permit or Franchise must include all the following:

  • All provisions as to location, construction, traffic protection, maintenance, access restriction, preservation of visual qualities, and any further special conditions WSDOT deems appropriate;
  • General description of the facilities to be installed as to size, type, nature or extent;
  • Exhibits depicting: existing or proposed project location(s) in relation to the highway, existing or planned highway improvements, rights-of-way, and access;
  • A summary of the effects the installation will have on the aesthetics of the highway right of way and visible natural features;
  • The extent of liability and responsibilities associated with future adjustment of the utility facilities to accommodate highway improvements;
  • The effect of noncompliance with the conditions thereof;
  • Terms which commit the applicant (developer) to perform routine cutting and trimming work in such a manner that the roadside will not be disfigured; and
  • A certification of compliance with the control zone guidelines.

Wash. Admin. Code § 468-34-170.

Note: If the developer breaches any of the conditions of the Utility Permit or Franchise, WSDOT has the authority to revoke the Utility Permit or Franchise with 30 days notice to the developer, pursuant to the General Provisions of the Utility Permit or Franchise Application.

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Contact Information

Edit Washington State Department of Transportation
Washington State Department of Transportation - Utility Permitting Contact 360-705-7318 WIESTR@wsdotabbazabbawaabbazabbagov