Texas Public Highway Utility Accommodation Permit (3-TX-h)
The TxDOT regulates the installation of public and private utilities within state right-of-ways pursuant to 43 TAC 21 and Texas - 43-TAC-21.31-56 - Utility Accommodation. A public utility (developer) may need a Permit for the following:
- New utility installations;
- Additions to or maintenance of existing utility installations;
- Adjustments or relocations of utilities; and
- Existing utility installations retained within the right of way. 43 TAC 21.33(a).
A ‘public utility’ includes any person, firm, corporation, river authority, municipality, or other political subdivision that is engaged in the business of transporting or disturbing a utility product and that is authorized by state law to operate, construct, and maintain its facilities over, under, across, on, or along highways. 43 TAC 21.31(40).A private utility may only construct a utility facility over, under or across a state highway right-of-way and may not place a utility facility longitudinally on a highway right-of-way. TX. Admin. Code §43.21.36
Public Highway Utility Accommodation Permit Process
3-TX-h.1 – Request for Utility Accommodation
Under Texas state law, public utilities have a right to operate, construct, and maintain their facilities over, under, across, on, or along highways, subject to highway purposes. The developer must submit a request to the TxDOT for Utility Accommodation. The appropriate request document is provided on TxDOT’s Right-of-Way forms page on their website.
3-TX-h.2 – Review Request for Utility Accommodation
TxDOT will review the request for Utility Accommodation to determine whether the developer’s project will comply with TxDOT design and maintenance requirements. 43 TAC 21.37. TxDOT must investigate the request to determine whether the project will jeopardize the public’s safety, convenience, or investment in the highway facility and whether it offers an impediment to the design, construction, operation, or maintenance of the highway facility. Certification for Utility Accommodation Document. The developer may request an exception to specific design and monitoring requirements pursuant to 43 TAC 21.35. The developer must show that extreme hardship or unusual conditions provide justification for the exception. 43 TAC 21.35(b).
3-TX-h.3 – Does TxDOT Approve the Request?
TxDOT may approve or deny a request for Utility Accommodation based on their investigation of the proposed project.
3-TX-h.4 to 3-TX-h.6 – Petition for Appeal of Denial of Request for Utility Accommodation
The developer may appeal the denial of their request for utility accommodation. The developer has the burden of demonstrating that TxDOT incorrectly applied its utility accommodation requirements to the applicable facts. 43 TAC 21.42(d). The petition for appeal must:
- Be in writing;
- Completely and succinctly state the grounds for appeals and its factual basis; and
- Include sufficient factual documentation, such as drawings, surveys, or photographs, to establish the merits of the appeal. 43 TAC 21.42(c).
3-TX-h.7 – Use and Occupancy Agreement
The developer and TxDOT will construct a “Use and Occupancy Agreement.” The Use and Occupancy Agreement is a written document by which TxDOT approves the use and occupancy of a highway right of way by a utility facility. 43 TAC 21.31(48).
3-TX-h.8 – Comply with TxDOT Utility Installation Requirements
TxDOT outlines specific requirements for installation and maintenance of utility facilities within rights of way in 43 TAC 21.38. For example, the developer is responsible and accountable for preserving the safety of the traveling public and the public’s investment in the highway facility. 43 TAC 21.38(a)(3).
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