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Delaware State Highway Right-of-Way (3-DE-c)

Information current as of 2018
In Delaware, a developer may need a Utility Construction Permit from the Delaware Department of Transportation (DelDOT) to construct, open, reconstruct, maintain, modify or use any crossing or entrance onto a state-maintained highway, street or road. Del. Code. Ann. tit. 17 § 146(b).


A developer needs a Utility Construction Permit from the appropriate District Public Works Office prior to initiating construction if they intend to construct an installation within a state highway right-of-way if the utility construction is not performed in conjunction with a DelDOT construction project. Del. Admin. Code tit. 2 § 2401 (4.4.1).


In Delaware, “no person, firm, corporation” may “construct, open, reconstruct, maintain, modify or use any crossing or entrance onto a state-maintained highway, street or road” without obtaining a Utility Construction Permit from the Delaware Department of Transportation (DelDOT). Del. Code. Ann. tit. 17 § 146(b). DelDOT regulates access to state highway rights-of-way pursuant to Delaware – Del. Code. Ann. tit. 17 ch. 1 et seq., General Provisions, Delaware – Del. Admin. Code tit. 2 §§ 2400 et seq., Division of Transportation Solutions; and DelDOT Development Coordination Manual.


State Highway Right-of-Way Process

3-DE-c.1 to 3-DE-c.2 – Contact Appropriate Local Authority or the Department of Transportation (DelDOT) (If Applicable)

The developer should contact the appropriate local authority with jurisdiction over the roadway to determine whether any local approvals are required. Alternatively, the developer may contact Delaware Department of Transportation’s (DelDOT) Public Works Utility section county representative to determine if the roadway in question falls under DelDOT’s jurisdiction.

In Delaware, municipalities retain jurisdiction over municipal roads unless the municipality surrenders authority to the Delaware Department of Transportation. Del. Code. Ann. tit. 17 § 134(a). Pursuant to Del. Code. Ann. tit. 26 § 906(a), transmission developers may only use “public roads, highways, streets, avenues and alleys” to construct transmission lines after obtaining consent from the appropriate local authority. Prior to initiating construction for the purpose of laying or placing “wires or other conductors” within a state highway right-of-way within the incorporated limits of a municipality, a project developer must also obtain approval from the appropriate municipal authority. Del. Code. Ann. tit. 22 § 103 ; Del. Admin. Code tit. 2 § 2401 (4.4.6).


3-DE-c.3 to 3-DE-c.4 – Does the Project Cross a State Highway Right-of-Way?

If a proposed project requires installation within a state highway right-of-way and the work is not to be performed in conjunction with a DelDOT construction project, a project developer must obtain approval from DelDOT before beginning construction. “No person, firm, corporation” may “construct, open, reconstruct, maintain, modify or use any crossing or entrance onto a state-maintained highway, street or road” outside of a DelDOT construction project without obtaining a Utility Construction Permit from the DelDOT. Del. Code. Ann. tit. 17 § 146(b).

Bulk Transmission

Generally, transmission projects are characterized as “Permit and New Service Installation Work,” encompassing maintenance of existing facilities or installation of new services or utility distribution facilities. Del. Admin. Code tit. 2 § 2401 (3.1.1).

3-DE-c.5 – Review DelDOT Design Requirements

Depending on the nature and location of the proposed project, a developer may need to comply with certain design requirements. Prior to initiating the Utility Construction Permit process, the developer should review the design requirements outlined in Del. Admin. Code tit. 2 § 2401 (3).

3-DE-c.6 to 3-DE-c.8 – Is the Developer a Public Utility?

If the developer is a public utility, then the developer must obtain a Master Franchise prior to applying for and obtaining a Utility Construction Permit. Del. Admin. Code tit. 2 § 2401 (4.4.3). A developer that is a public utility will not be able to obtain a Utility Construction Permit unless the developer’s Master Franchise is in force. Del. Admin. Code tit. 2 § 2401 (4.4.3).

A Master Franchise grants the public utility the right to use a state highway right-of-way, but does not specify project details or construction methods outlined in a Utility Construction Permit. Del. Admin. Code tit. 2 § 2401 (4.1.1). A public utility must apply for a Master Franchise for each county where it owns, or intends to construct, a facility within a state highway right-of-way. Del. Admin. Code tit. 2 § 2401 (4.1.1 ).

A public utility is defined as “every individual, partnership, association, corporation, joint stock company, agency or department of the state” that operates for public use within the state any electric “service, system, plant or equipment.” Del. Code. Ann. tit. 26 § 102(2).

If the developer is a private owner of a project for private use, then the developer must obtain a Use and Occupancy Agreement prior to applying for and obtaining a Utility Construction Permit. Del. Admin. Code tit. 2 § 2401 (4.4.3). A developer that is a private owner will not be issued a Utility Construction Permit, unless the developer has previously obtained a Use and Occupancy Agreement that is in force at the time the developer applies for the permit.

A Use and Occupancy Agreement is between DelDot and the private entity intending to own or construct a facility that crosses a state highway right-of-way. The Use and Occupancy Agreement describes the proposed crossing and sets forth conditions for the project. Del. Admin. Code tit. 2 § 2401 (4.1.1). Typically, DelDOT grants a Use and Occupancy Agreement if the developer owns or has the rights/easements to the properties on both sides of the road.


3-DE-c.9 – Utility Construction Permit Application and Traffic Control Plan

A developer must submit a complete Utility Construction Permit Application to DelDOT before beginning utility construction work, including excavations or openings, that will “disturb anything on the roadway or State right-of-way.” Del. Admin. Code tit. 2 § 2401 (4.4.3). A developer may also need a Use and Occupancy Agreement along with a Utility Construction Permit if they are a private owner. Del. Admin. Code tit. 2 § 2401 (4.4.3). In addition to a Utility Construction Permit, a project developer must also prepare and submit a traffic control plan to DelDOT. Del. Admin. Code tit. 2 § 2401 (3.2.3). A complete Traffic Control Plan must adhere to the DelDOT Traffic Control Plan Manual and be prepared in accordance with the Delaware Department of Transportation Manual on Traffic Control Devices.


A developer must prepare and submit four copies of a complete Utility Construction Permit Application and four copies of project plans to the appropriate DelDOT District Public Works Section or through the electronic Utility Permit Application website. Del. Admin. Code tit. 2 § 2401 (4.4.5.1). Project plans must include the following:

  • The width of the right-of-way;
  • The type of roadway involved in the proposed project;
  • The width of the traveled way;
  • The distance from the crossroad or side road to the installation;
  • The type of shoulder;
  • The drainage system in the utility area;
  • The trench and restoration details involved;
  • A north arrow and scaled legend; and
  • Railroads crossing roadways. Del. Admin. Code tit. 2 § 2401 (4.4.5.1).

3-DE-c.10 to 3-DE-c.11 – Review Application Materials for Completeness

The appropriate DelDOT District Public Works Office or the electronic Utility Permit Application website reviews the Application for technical and administrative completeness. If the Application is complete, the District Public Works Office assigns the permit a number and distributes the application to District Public Works personnel, the utility, and the State Inspector. Del. Admin. Code tit. 2 § 2401 (4.4.6).

3-DE-c.12 to 3-DE-c.13 – Review Application Materials for Approval

The appropriate DelDOT District Public Works Office reviews the Application materials for approval.

3-DE-c.14 to 3-DE-c.16 – Utility Construction Permit

Once a developer obtains a Utility Construction Permit, the developer may not begin work within a state highway right-of-way, unless the developer notifies the District Public Works Office at least one (1) business day prior to initiating construction. Del. Admin. Code tit. 2 § 2401 (4.5.4). Notice to the District Public Works Office is sufficient if given in writing, or orally. Proper notice must include:

Prior to initiating construction, the developer must also notify adjacent utility owners at least 48-hours in advance. DelDOT Development Coordination Manual, 6.2


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