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New Mexico Public Highway Utility Accommodation Permit (3-NM-f)

Information current as of 2020
In New Mexico, a utility (developer) may need a Public Highway Utility Accommodation from the New Mexico Department of Transportation (NMDOT) to construct, adjust, or relocate electric power lines within the right-of-way of public highways, roads, or streets under the jurisdiction of NMDOT. N.M. Code R. §§, "Utility" means "all publicly, privately and cooperatively owned utilities, without distinction, for the rendition of water, electric power, sanitary sewer, storm sewer, steam, fuel gas, telephone or telegraph service through a system of pipes or wires devoted to public utility service." N.M. Code R. § A "public highway" means "any federal, state, county or city highway, street, road or other public way devoted to vehicular and other modes of travel including the entire area within the right-of-way." N.M. Code R. §

The MNDOT regulates the occupation of public highway rights-of-ways pursuant to N.M. Code R. §§

Public Highway Utility Accommodation Permit Process

3-NM-f.1 – Initiate Pre-Application Clearances Processes

Prior to submitting the NMDOT Application for Permit to Install Utility Facilities Within Public ROW, developers must receive multiple pre-application clearances, including environmental and archaeological clearances from the NMDOT. The applicable New Mexico statutes and regulations have a stated purpose to allow for the necessity of accommodations along public highways for transmission purposes, while also balancing competing environmental and archaeological concerns.

The archaeological survey requirement is worded broadly to include any utility structure, overhead/underground utility systems, and any other ground disturbing construction activities across or thorough any obvious or suspected archaeological site. If the proposed activity is not across or through an obvious or suspected archaeological site, an archaeological survey may not be required; however, archaeological clearance from the NMDOT is always required. N.M. Code R. §

For more information on the archaeological survey process, see Cultural Resource Investigation Process:

In addition, developers must consult with the NMDOT Environmental Development Section to establish if any action is necessary by the developer for adhering to air, noise, and water quality control regulations related to the project. Developers must file a Notice of Intent with the Environmental Protection Agency and, if applicable to the project, secure approval of a sediment and reclamation plan from the NMDOT Landscape Architect. N.M. Code R. §

3-NM-f.2 – Proof of Insurance

Developers must meet the insurance requirements outlined in N.M. Code R. § Mainly, the developer must have general and automobile liability coverage in the amounts specified and the New Mexico Department of Transportation must be added as an additional named insured on the general liability policy. Proof of insurance is required at the time a developer submits the NMDOT Application for Permit to Install Utility Facilities Within Public ROW. In addition, any contractor or subcontractor engaged by the developer must also provide the NMDOT with proof of insurance.

3-NM-f.3 – Application for Permit to Install Utility Facilities within Public Right of Way

A developer seeking to place or modify utility facilities within the ROW of public highways in New Mexico must determine in which Highway District the installation will be constructed, eventually submitting the NMDOT Application for Permit to Install Utility Facilities Within Public ROW to the corresponding District Engineer. The application must include comprehensive plans, proof of insurance described in 3-NM-f.2, and all other information required on the application form, including a survey. Developers should refer to the NMDOT Utility Permit Application Checklist prior to submitting an application. N.M. Code R. §

Note: Utility accommodation permit applications for installations in scenic enhancement areas must be accompanied by comprehensive and detailed supporting documentation. Scenic enhancement areas include overlooks, rest areas, recreation areas, and sections of highway that pass through public parks, recreation areas, wildlife refuges and historic sites. In order to gain approval for a utility accommodation permit over or through a scenic enhancement area, the design and materials should be aesthetically pleasing to the eye and the installation should not intrude in such a manner that would detract from the scenic quality presented for viewing by the traveling public. N.M. Code R. §

3-NM-f.4 to 3-NM-f.5 – Review Application Materials for Completeness

The NMDOT will not substantively review an application until the application is complete.

3-NM-f.6 to 3-NM-f.7 – Is the Application Approved?

If the District Engineer approves the application, the developer will receive a Public Highway Utility Accommodation Permit. If the District Engineer does not approve, the developer can dispute the decision or the process ends.

3-NM-f.8 to 3-NM-f.10 - Notification of Dispute

Dispute resolution between NMDOT and the developers regarding utility/highway construction operations begin with the developer submitting official notification to the Railroads and Utilities Section Manager within NMDOT. If the dispute is not resolved at the Railroad and Utility Section Manager level, the developer can submit a request for hearing within 30 days of the Railroad and Utility Manager’s decision. N.M. Code R. §

3-NM-f.11 – Schedule Hearing and Appoint Hearing Officer

Within a reasonable time, taking into account the nature of the dispute, the NMDOT will schedule a hearing and appoint a hearing officer to conduct the hearing. N.M. Code R. §

3-NM-f.12 – Hold Hearing

The hearing officer will oversee the hearing and rule on the dispute. The hearing officer’s decision is final and the hearing officer’s findings and orders are made available to the parties. N.M. Code R. §

3-NM-f.13 to 3-NM-f.14 – Is the Dispute Resolved in Favor of the Developer?

If the dispute is resolved in favor of the developer, the developer receives the Utility Accommodation Permit and follows the procedures for constructing within the ROW. If the hearing officer rules against the developer, the developer may appeal the order to the District Court of Santa Fe County for a review pursuant to NMSA 67-8-19. N.M. Code R. §

3-NM-f.15 – Public Highway Utility Accommodation Permit

The District Engineer issues the Public Highway Utility Accommodation Permit in writing and may have additional conditions outlined therein. The developer must comply with all conditions in the permit and all applicable standards outlined in N.M. Code R. §§ during the course of the project.

3-NM-f.16 to 3-NM-f.17 – Construction Traffic Control Plan

Developers must submit a Traffic Control Plan (TCP) in accordance with the Manual on Traffic Control Devices. TCPs must be accompanied by an approved utility accommodation permit and are reviewed by the District Engineer. Developers may not commence work under a utility accommodation permit until the TCP is approved. N.M. Code R. §

3-NM-f.18 to 3-NM-f.19 – Notice of Construction Commencement Date

After receiving approval, the developer must notify the NMDOT in writing, five days in advance of the date their construction/installation/modification will commence. In addition, the developer must commence construction/installation/modification within six months of the date of issuance of the utility accommodation permit. If the developer does not begin work within six months of permit issuance, the developer may only subsequently begin work by going through the permit application process and receiving new approvals from the NMDOT. N.M. Code R. §

3-NM-f.20 – As-Built Plans

The developer must provide “as-built” plans to the NMDOT within 30 days of completion of the construction/installation/modification contemplated in the utility accommodation permit. N.M. Code R. §

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