This rule has been repealed.

(1) Any person or entity proposing to encroach on a highway right-of-way within the jurisdiction of the department must obtain an encroachment permit from the department.

(2) An encroachment is any installation, device, object, or occupancy that is located at, above, or below the grade lines of the highway and within the right-of-way limits, and that is not installed as part of the highway facility by the department.

(3) Encroachment permits are not required for the following uses, which require a separate department-issued permit for the appropriate use:

(a) Utility facilities occupying right-of-way pursuant to department-issued utility encroachment permits or utility occupancy agreements; or

(b) Private driveways, road approaches, and curb cuts occupying right-of-way pursuant to department-issued approach permits.

(4) Encroachment permits may be issued for uses including:

(a) devices or objects placed within right-of-way limits (e.g., fence encroachment permits, landscaping encroachment permits); or

(b) physical occupancy of the right-of-way by persons or groups of persons (e.g., special use permits, foraging permits).

(5) Application for an encroachment permit must be made to the appropriate district or area office. The form may be found on the department's web site at www.mdt.mt.gov. Paper copies of the application may also be obtained by request to the appropriate district office.

(6) Applicants must be the owner of the property abutting the right-of-way at the encroachment's proposed location, a government agency, the contractor proposing to conduct work in the right-of-way, or an individual or designated group leader of persons who will temporarily occupy the right-of-way. The application must be signed by the applicant or representative.

(7) For device or object encroachment permits, a site plan drawing with sufficient detail must be provided to show the location of the proposed encroachment. The site plan must be tied to the nearest highway milepost or station marker.

(8) For device or object encroachment permits, the applicant must:

(a) submit a detailed drawing of the proposed encroachment;

(b) submit an environmental checklist contained within the form; and

(c) agree to the terms and conditions on the permit.

(9) Each application must be complete and accompanied by all required supplemental materials. The department will not review or approve a permit application until all necessary information has been provided. The department reserves the right to reject ineligible, incomplete, or otherwise improper applications.

(10) The department may set a time limit for placement of the requested encroachment. Failure to construct the encroachment or occupy the right-of-way within the specified time limit will terminate the encroachment permit and require the applicant to re-apply.

(11) Construction work of the encroachment within highway right-of-way limits must not commence until an approved permit has been issued.

This rule has been repealed.

(1) No private use of right-of-way of highways under the jurisdiction of the department shall be allowed within and between the access control limits of a controlled access highway except:

(a) the department may approve individual private encroachments within the controlled access right-of-way, with prior concurrence from the Federal Highway Administration;

(b) encroachments within controlled access right-of-way must conform to all department statutes, rules, and design standards; and

(c) the encroachment must be constructed, maintained, and allow removal from the area outside of the access control limits.

(1) No private use of non-controlled access highway right-of-way shall be allowed, except under department-issued encroachment permits.

(2) Overhanging Encroachments - Private advertising signs, eaves, marquees and similar devices may overhang the right-of-way, provided:

(a) the overhanging device is within an incorporated city, or is under the jurisdiction of another local unit of government which has ordinances or regulations allowing such overhang, and the overhanging device is in compliance with such ordinances or regulations;

(b) the overhanging device does not conflict with, or interfere with, traffic control signs, signals, or other devices, or with highway construction or maintenance operations, or with the public's use of the right-of-way;

(c) ground-mounted structures supporting the overhanging device must be located entirely off the public right-of-way; and

(d) The outermost portion of the overhanging device must be at least two feet behind the curb or curbline in horizontal distance, and at least seven and one-half feet above the top of the curb, sidewalk, or roadway shoulder elevation in vertical distance.

(3) Underground Encroachments - Private underground facilities other than utilities, such as vaults, access and transportation tunnels, and sidewalk freight entrances may be allowed within the highway right-of-way, provided:

(a) the underground facility is located within an incorporated city, or is under the jurisdiction of another local unit of government which allows such use under promulgated ordinances or regulations, or by special agreements;

(b) the underground facility is in compliance with the local jurisdiction's ordinances, regulations, or special agreements;

(c) the ordinance, regulation, or special agreement allowing such underground use of the public right-of-way contains a revocation clause requiring that the owner shall either remove the encroaching facility at the owner's sole expense, or pay any difference in costs of construction upon receiving appropriate notice that removal or adjustment is deemed necessary and must be accomplished; and

(d) the facility does not interfere with highway construction or maintenance operations, or with the use of the right-of-way by the traveling public.

(4) At-grade Encroachments and Maintenance of Area Adjacent to Traveled Way - Private and public noncommercial use and maintenance of at-grade highway right-of-way may include, but is not limited to the following:

(a) General object or device encroachment permits may be allowed in the right-of-way provided the design is reviewed and approved by the department. At-grade objects or devices may include, but are not limited to, fences, gates, buildings, signs, markers, or other structures.

(b) Landscaping may be allowed in the right-of-way when the area between the property line and the curb line is proposed by abutting property owners for planting trees, shrubs, grass, and similar uses, provided:

(i) the use is generally allowed within the city or other area under the jurisdiction of a local unit of government;

(ii) the use is not commercial or for profit and does not interfere with highway construction or maintenance operations, or with the public use of the right-of-way;

(iii) the trees, shrubs, or other vegetation are of species that will not damage the street, curbs, or sidewalks; and

(iv) the use complies with applicable safety policies or standards adopted and promulgated by the American Association of the State Highway and Transportation Officials (AASHTO). A copy of the AASHTO standards may be obtained from the department.

(c) Bus shelters may be allowed in the right-of-way in urban areas provided the design is reviewed and approved by the department. Commercial advertising on bus shelters must comply with department outdoor advertising control rules.

(d) Mailboxes may be allowed in the right-of-way, but must meet standards defined and reviewed by the department.

(e) Other delivery boxes such as newspaper boxes may be allowed in the right-of-way, but must comply with the department standards and rules.

(5) Occupancy Encroachments - Private and public noncommercial occupancy and use of highway right-of-way by individuals or groups of individuals may include, but is not limited to:

(a) special use permits (e.g., parades, pedestrian, or bicycle events);

(b) encroachment permits for work to be conducted within highway right-of-way limits; or

(c) foraging permits, for harvesting of agricultural crops within the highway right-of-way limits.

(6) Other types of encroachments not listed in the rules may be reviewed on a case-by-case basis and the department may issue an encroachment permit as appropriate.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) The construction of new or modified device or object encroachments shall be the responsibility of the permittee and shall be constructed in conformance with the applicable regulations and manuals, as approved by the department, at the permittee's sole expense.

(2) During the progress of right-of-way work or occupancy, the permittee must erect and maintain such barricades, signs, and other traffic control devices as may be deemed necessary by the department.

(3) The permittee is responsible for completing any environmental documentation required by the department at the permittee's sole expense.

(4) The permittee is responsible for any changes, maintenance, or repairs to existing encroachments deemed necessary by the department at the permittee's sole expense.

(5) The permittee must furnish all materials necessary for the construction of the device or object encroachment authorized by the permit. All materials must be of satisfactory quality, and are subject to inspection and approval by the department.

(6) It is the responsibility of the permittee to supply, place, and properly construct an approved device or object encroachment, or upgrade a retroactively approved encroachment, in accordance with department design and safety standards, and all appropriate department manuals.

(7) Drainage in highway ditches must not be altered or impeded except as authorized and approved by the department. The permittee is responsible for any damage to highway right-of-way or adjacent landowners' property caused by unapproved drainage encroachments into highway right-of-way, at the permittee's sole expense.

(8) The permittee is responsible for any changes, maintenance, or repairs to existing encroachments deemed necessary by the department, at the permittee's sole expense.

(9) The department may make any changes, additions, repairs, or relocations to any encroachment or its appurtenances within the highway right-of-way, at the permittee's sole expense.

(10) Existing device or object encroachments which are granted either a retroactive new permit, or a permit for a change in condition, may be inspected by the department for compliance with department design and safety standards.

(11) Any device or object encroachment which does not meet department design and safety standards is subject to removal by the owner at the owner's sole expense, after department revocation of the encroachment permit.

(12) The permittee is responsible for all repairs to the highway or within the right-of-way resulting from the activities of the encroachment, at the permittee's sole expense. Additionally, the permittee must reimburse the department for any expense incurred in repairing the surface of the roadway or right-of-way due to any damage as a result of the occupancy or work performed under the permit (e.g., settlement at installation site).

(13) If the department makes changes, additions, repairs, or relocations to the highway within the highway right-of-way, which conflict with a permitted encroachment, the encroachment permit may be temporarily or permanently revoked by the department, at the department's sole discretion.

(14) The permittee is responsible for any damage or injury to a third party or department facilities caused by the permittee's installation, maintenance, repair, or actions under a department-issued encroachment permit, at the permittee's sole expense.

(1) The permittee shall hold harmless the department and its agents and employees against any action for personal injury or property damage sustained by reason of exercise of the permit.

(2) A decision to grant, deny, or revoke an encroachment permit is solely within the discretion of the department.

(3) The owner of an existing private encroachment who does not have a department-issued encroachment permit may retroactively apply for an encroachment permit.

(4) If a retroactive encroachment permit application is denied by the department, the existing encroachment must be removed, at the encroachment owner's sole expense, within two days after the permit denial.

(5) Any person proposing a change in encroachment use of highway right-of-way must obtain a new encroachment permit from the department.

(6) A non-permitted encroachment, not affixed permanently to the land, must be removed by the encroachment owner within two days after notice from the department, unless a retroactive permit is applied for by the encroachment owner and approved by the department.

(7) A non-permitted encroachment, which is affixed to the land, must be removed by the encroachment owner within five days after notice from the department, unless a retroactive permit is applied for by the encroachment owner and approved by the department.

(8) A non-permitted encroachment, whether or not affixed to the land, and not timely removed by the owner after notice, may be removed by the department under 60-6-104 and 60-6-105, MCA.

(9) If a non-permitted encroachment obstructs or prevents the use of the highway for vehicles, or constitutes a safety hazard to the traveling public, the department may immediately remove the encroachment without giving notice to the encroachment owner.

(1) The purpose of these regulations is to prescribe conditions under which utility facilities may be accommodated on right-of-way of highways under the jurisdiction of the department of transportation. The principal objectives of these regulations are to achieve maximum public use of such highway right-of-way consistent with the laws of the state of Montana while yet providing maximum public safety, environmental protection, preservation of the highway investment and minimization of future conflicts between highway and utility facilities.

(2) These regulations are adopted and promulgated pursuant to the authority of the state of Montana department of transportation, hereinafter referred to as the department, to regulate occupancy of highway right-of-way. 23 CFR part 645, subpart B, has been used as a guideline in establishing the policies and procedures set forth in these regulations to the extent the provisions of 23 CFR part 645, subpart B, are not inconsistent with the Constitution and laws of the state of Montana or with special local conditions and circumstances.

(1) "Clear recovery area" means that portion of the highway right-of-way as established by the department. Unless otherwise provided, the distance for this area shall be 30 feet from the outer edge of the outside travel lane on paved sections or 42 feet from the centerline of the road on unpaved sections, or "clear zone" as defined by the 2011 edition of the AASHTO publication "Roadside Design Guide," whichever is greater. Copies of AASHTO publications are available for inspection and copying at the department's offices in Helena. Copies of current AASHTO publications are available for purchase at https://bookstore.transportation.org/.

(2) "Department" means the state of Montana Department of Transportation and its authorized agents and representatives.

(3) "District" means the specific geographic area of the state designated by the Department of Transportation as a district. There are five district headquarters, which are currently located in Missoula, Butte, Great Falls, Billings, and Glendive.

(4) "District administrator" means the administrative head of each district or the designee of the district engineer.

(5) "Facility" means all pipes, mains, conduits, cables, wires, towers, poles, and other equipment, structures, and appliances built or installed by any utility or non-utility for the purpose of transporting, transmitting, furnishing, and/or distributing hydro-carbons and the products thereof, electric power and energy, communication signals, water, and sewage.

(6) "Full controlled-access facility" means those portions of an interstate highway, throughway, or throughway intersection which the Highway Commission designates for through traffic or other federal-aid or state highways over, from, or to which the owners or occupants of abutting land or other persons have no easement of access, light, air, or view. It also means those portions of spurs of the interstate system which the Highway Commission designates as unsafe or impeded by unrestricted access of traffic from intersecting streets or alleys or public or private roads or ways of passage.

(7) "Highway" means any highway under the jurisdiction of the Department of Transportation.

(8) "Highway right-of-way" means the land owned or controlled by the State of Montana Department of Transportation which is designated as highway right-of-way.

(9) "Highway structure" means any structure located on a highway that is under the jurisdiction of the Department of Transportation and constructed for the purpose of carrying vehicular, rail, or pedestrian traffic over a depression, stream, obstacle, roadway, walkway, or railroad.

(10) "Occupancy agreement," "common use agreement," or "encroachment permit" means the documents the owner must secure from the department, prior to occupancy, showing the conditions of occupancy of highway right-of-way, whether such occupancy is overhead, underground, or on the surface.

(11) "Retained facility" means an existing facility which occupies right-of-way required for a new highway project by virtue of a permit, right, or easement under which it was originally installed.

(12) "State" means the State of Montana and the State of Montana Department of Transportation as a duly constituted agency thereof, and its employees.

(13) "State highway project" means any highway construction project on a highway that is under the jurisdiction of the Department of Transportation.

(14) "Utility" means:

(a) all public utilities as defined by 69-3-101, MCA, but including publicly owned water and sewer facilities;

(b) all common carrier pipelines as defined by 69-13-101, MCA; and

(c) all rural cooperative, non-profit membership corporations organized under the Rural Electric and Telephone Cooperative Act, as set forth in 35-18-101 through 35-18-503, MCA.

(a) Utility facilities having property rights which have not been extinguished as a result of the utility facilities having been relocated, or have not been extinguished by specifically acquiring the property rights in question. ARM 18.7.211 covers and explains the status of and actions to be taken regarding situations where both a utility company and the department have property rights in a given piece of property.

(b) All other utility facilities as herein defined.

(2) Except as noted in subsection (3) of this rule, these regulations shall apply to:

(a) New utility facilities as herein defined. Specific regulations governing these facilities are covered in ARM 18.7.221 through 18.7.232.

(b) Existing utility facilities presently occupying state highway right-of-way. Such facilities shall be governed by ARM 18.7.225.

(c) Reconstruction or major changes in existing utility facilities presently occupying state highway right-of-way.

(d) Existing utility facilities which must be modified, adjusted or relocated for the accommodation of new state highway construction.

(e) Retained facilities on new state highway projects where facility design and construction location are reasonably acceptable and not hazardous. Such facilities shall be governed by ARM 18.7.225.

(f) Occupancy by utility-type facilities that do not have a statutory right to occupy highway right-of-way, but are allowed under established use and encroachment permits administered by the department. Longitudinal occupancy of highway right-of-way by a non-utility is contrary to department policy. Where such longitudinal occupancy is approved by the district administrator, it will only be by a revocable encroachment permit.

(3) These regulations shall not apply to facilities operated and maintained by local units of government within their jurisdictional areas unless they occupy right-of-way of federal-aid highway projects.

(4) Lands administered by the department in excess of highway right-of-way are not subject to occupancy under these regulations. Easements or permits for use of such lands are obtained through the department's right-of-way bureau, land section supervisor, Helena, Montana.

(a) the accommodation will not adversely affect the safety, design, construction, operation, maintenance or stability of the full controlled-access facility;

(b) the accommodation will not be constructed or serviced by direct access from through traffic roadways or connecting ramps;

(c) the accommodation will not interfere with or impair the present use or future expansion of the full controlled-access facility;

(d) any alternative location would be contrary to the public interest. This determination includes an evaluation of the direct and indirect environmental and economic effects which would result from disapproval of the use of such right-of-way for the accommodation of such utility.

(2) New utility installations and adjustments or relocations of existing utilities may cross the full controlled-access facility right-of-way. To the extent feasible and practicable they should cross at right angles to the full controlled-access facility right-of-way. No structures, vents, poles, manholes or other above-ground fixtures may be located within the full controlled-access facility right-of-way unless approved by the department.

(3) Utilities can be installed within the right-of-way of a crossroad over or under the full controlled-access facility, provided such installation is in compliance with all applicable rules, and provided the installation and servicing can be accomplished without access from the through traffic facilities of the full controlled-access facility roadway or ramps.

(a) supersede all present regulations governing occupancy by facilities described in (1) and (2) of ARM 18.7.203.

(b) supersede any general or statewide permits issued by the department.

(c) not supersede specific permits or agreements previously issued or entered into by the department for the occupancy of highway right-of-way by specific facilities.

(1) All utilities defined in ARM 18.7.202 have authority under Montana law to occupy highway rights-of-way, and in event of relocation, are eligible for reimbursement pursuant to the laws of the state of Montana.

(2) All other facilities are private and have no authority to occupy highway rights-of-way other than by revocable permits issued at the sole discretion of the department. Such facilities are regulated by these provisions, but in the event of relocation, they are not eligible for reimbursement under the provisions of 23 CFR part 645, subpart A, or otherwise.

(1) An applicant must apply for a utility encroachment permit or utility occupancy agreement (collectively Utility Permit) through the department's Utility Permitting Administration System (UPAS), through the department's website at www.mdt.mt.gov or mdtupas.com, for the installation of any utility facility on right-of-way under the jurisdiction of the department. The Utility Permit conditions and department's Montana Right-of-Way Utilities Manual set forth the procedures and conditions for all utility installations statewide. The department may impose additional restrictions or requirements for Utility Permits. The following conditions apply to all Utility Permit applications:

(a) Permits are only issued in the name of the utility owner;

(b) A utility owner, utility company, or utility company contractor may not begin any utility work on the right-of-way until an approved Utility Permit is issued by the department and the utility owner is authorized to proceed;

(c) The utility owner must provide the name of any contractor or subcontractor who will be conducting the installation, including contact information and an executed construction agreement if required by the department, within 60 days after the utility owner retains the contractor or subcontractor, or prior to commencement of work whichever occurs earlier;

(d) If the utility owner expects work to impact travel lane capacity, the utility owner must contact the appropriate department district office to discuss traffic control concepts in advance of submitting a Utility Permit application;

(e) The utility owner's construction forces and the utility contractor must keep a copy of the completed Utility Permit, including all attachments, at the work site at all times. All documents and the utility work are subject to department review at all reasonable times; and

(f) A pending application shall, if necessary, be modified by the utility owner to improve safety or facilitate alteration or maintenance of the right-of-way as determined by the department.

(2) Each application must:

(a) be complete and accompanied by all required supplemental materials. The department reserves the right to reject ineligible, incomplete, or otherwise improper applications. The department may request additional information if warranted after initial application review. Applicants have 30 days to respond to an additional information request. If no response is received, the application will automatically be denied;

(b) be in the name of the utility owner that is responsible for the installation and maintenance of the utility facility, including name, address, e-mail address, responsible employee's title, and telephone number;

(c) be authenticated via the applicant's password;

(d) include authorization, if any, for the utility owner's contractor to obtain a Utility Permit on the utility owner's behalf. All terms and conditions set forth in the Utility Permit apply to the contractor; and

(e) be accompanied by a $100 non-refundable electronic convenience fee.

(3) Application attachments must include:

(a) an electronic plan set in PDF depicting the proposed installation. The plans must be in a format acceptable to the department and must include utility company identification, work location, utility type and size, type of construction, vertical and horizontal location of facilities relative to the centerline of road, location of all appurtenances, trench details, and right-of-way limits;

(b) a traffic control plan which conforms to the Manual on Uniform Traffic Control Devices (MUTCD).

(4) The American Society of Civil Engineers (ASCE) standard guideline for recording and exchanging utility infrastructure data is adopted by reference. The ASCE guideline is available at www.asce.org. ASCE standard survey-grade Global Positioning System (GPS) survey, or "as built survey" of the utility facility location(s), must be submitted electronically to the department within 90 days of completion of the installation or construction, or otherwise as allowed in (c). The ASCE standard as-built surveys must comply with the department's Utility Manual and the following:

(a) A Utility owner may:

(i) Submit ASCE standard survey-grade Global Positioning System (GPS) as-built surveys certified by a licensed professional engineer (PE) or professional land surveyor (PLS) showing the facility type, function, size, configuration, material, location, elevation, and any special features such as encasement, manholes and valves, or as otherwise specified in the Utility Permit special conditions. The ASCE standard certified survey data will not be subject to department inspection and audit unless discrepancies are noted by the department; or

(ii) Submit ASCE standard survey-grade as-built surveys, certified by a duly authorized officer or employee of the utility owner instead of a licensed PE or PLS, showing the facility type, function, size, configuration, material, location, elevation, and any special features such as encasement, manholes and valves, or as otherwise specified in the Permit special conditions. The ASCE standard non-PE or PLS certified survey data may be subject to department audit and inspection.

(b) ASCE standard non-PE or PLS certified as-built surveys are subject to department audit, inspection, and verification of accuracy. If the department notes discrepancies between submitted as-built surveys and inspections, the department may hire an independent contractor to locate the utility facility and obtain accurate as-built survey data. All costs associated with this activity are the responsibility of the utility owner.

(c) If ASCE standard as-built surveys are not submitted within 90 days, or another time period as determined by the department upon utility owner's request, the department may remove the utility facility, place all other submitted Utility Permit applications from the delinquent utility owner on hold, or hire a consultant to complete the survey work and charge all costs to the delinquent utility owner. A utility owner may request an extension due to weather or other conditions, which may be approved in writing by the department.

(d) The department may reimburse a utility owner for PE or PLS certified ASCE standard as-built surveys if the utility facility is eligible for relocation reimbursement due to a pending highway project.

(e) Costs incurred at any time by the department or its contractors due to significant incorrect as-built survey information supplied by the utility owner, or major deviations in actual placement from that described in the original permit, are the responsibility of the utility owner. The department will bill the utility owner for costs incurred.

(5) Utility owners performing maintenance of permitted utility facilities occupying right-of-way under the jurisdiction of the department must apply for a utility Notification Permit (Notification Permit). A Notification Permit application must be submitted electronically through UPAS through the department's website at mdt.mt.gov or mdtupas.com. Notification permits are subject to all applicable UPAS requirements and the following conditions:

(a) the application must provide an exact description of the maintenance work, including location, date(s) of maintenance work, traffic control plan, and any other information requested by the department;

(b) no fee or as-built survey data is required for a Notification Permit;

(c) the department will require the utility owner's construction forces or a utility contractor performing utility maintenance work in the right-of-way without a Notification Permit to vacate the right-of-way immediately until a Notification Permit has been issued by the department, including any required traffic control plan; and

(d) utility work performed in response to an emergency does not require a prior Notification Permit, but a Notification Permit application must be submitted as soon as practicable after the work is completed.

(6) The department may revoke a Utility Permit or a Notification Permit for failure to comply with the terms and conditions of the permit. Upon Utility Permit or Notification Permit revocation, the department may remove the utility facility and restore the highway and right-of-way at the sole expense of the utility owner. Prior to any revocation, the department shall notify the utility owner in writing, setting forth the violations, and providing the utility owner a time period to correct the violations to the satisfaction of the department. The utility owner may request an extension due to weather or other conditions which may be approved in writing by the department. The department may decline to issue further Utility Permits or Notification Permits to a utility owner who fails to comply with this rule or permit requirements.

(1) This section applies to those situations where both utility facilities and highway facilities occupy a given piece of land and where the utility has a real property interest in the said land. This situation most commonly occurs as follows: Prior to expansion, improvement, or new construction of the highway, the utility constructed its line on land where it had a compensable interest; subsequent to this, the highway was widened or newly constructed, and the area where the utility had property rights was purchased by the department; the utility was not required to be relocated for the physical construction of the road, but remained and continued to occupy the land in which the utility company had an easement (in this case, the utility continues to occupy an easement which predates the right-of-way acquisition by the department, and thus the utility continues to occupy land in which it has a compensable real property interest) . The situation of joint use and joint occupancy can conceivably occur in other ways, but the above is far the most common manner which gives rise to the common use situation.

(2) In those situations described in (1) above, the parties should enter into a written agreement, thereby acknowledging their respective rights of ownership and use. Said written agreement may be a "common use agreement," or it may be of any other form acceptable to the parties and appropriate to the situation.

(a) In rural areas it is preferable that facilities be located at the edge of the right-of-way, but in no case should they be located within the clear recovery area, without prior department approval. Furthermore, above-ground facilities should not be nearer than proposed or existing roadside appurtenances and fixtures.

(b) In cities, towns and urban areas, above-ground facilities to be placed within the right-of-way will be placed as far as practicable from the edge of the pavement.

(c) At the discretion of the department, the clear recovery area requirement may be waived for minor sections of a facility if no other reasonable alternative exists. Any such waiver may only be granted upon the written approval of the district administrator.

(1) Facilities above ground shall be located along the outer portion of the right-of-way.

(a) Where right-of-way width and terrain features permit, the facilities shall be located outside the clear recovery area, except as follows:

(i) On curbed sections, the facilities shall be located at the maximum practicable distance behind the face of the curb.

(ii) Where the safety of the motorist is provided by guard rails or other protective devices or structures, the facility may be located behind such guard rail or other device.

(iii) In timbered areas, adherence to the principle of occupying the outer portion of the right-of-way or adherence to the clear recovery area distance may result in unwarranted cutting of timber along the roadway or the cutting of a new pathway along the right-of-way line. In these cases, discretion should be exercised to balance the undesirable aesthetic effects of such additional cutting against the results which are achieved by strict adherence to general policy. Any deviation from this rule will require written approval from the district administrator.

(iv) As set forth in ARM 18.7.222(1) (c) .

(b) Where appropriate, installations shall comply with the current edition of the National Electric Safety Code, or other applicable code or regulation.

(2) For natural gas and other hydrocarbon facilities, pipeline installation shall conform to all applicable federal regulations.

(3) For water and sewer facilities, pipeline installation shall conform to the current standards for Montana Public Works Standard Specifications and to the state's current Standard Specifications for Road and Bridge Construction and all applicable federal regulations.

(4) No underground facilities will be permitted longitudinal occupancy under any portion of the pavement or surfacing courses in rural areas. However, in hardship cases such as solid rock, steep cliffs and swampy areas, etc., the department may permit the placement of utility facilities along the shoulder of the highway road section, provided sufficient justification is shown. It would be preferable in these cases, however, if the facilities were placed in the roadway ditch section or in the roadway fills for the short distance required to bypass the hardship areas. In such hardship cases consideration will be given to placement in conduit, at extra depth, or placing a concrete cap over the facility for additional protection. The installations shall be well marked as they leave the edge of the right-of-way and where they are located within the highway road facility. This does not affect the direct crossing of the highway rights-of-way in any manner (for underground crossings, see ARM 18.7.227 through 18.7.229) . Utility installation in curbed sections or built-up areas may be permitted under the pavement or surfacing courses provided there are no border strips available for the installation.

(5) Fiber optic cable is to be buried a minimum of 1.0668 meters (42 inches) below the ground line except where the department approves a lesser depth because of some exceptionally difficult construction problems, including, but not limited to, solid rock or placement in utility conduits under city streets. The installed cable must be properly marked above ground and have a location or warning tape 457.2 millimeters (18 inches) above the cable, except as provided for in (6) . The aboveground marking should be at least at 152.4 meters (500 foot) intervals or on a common line of sight between signs and markers.

(6) When installing non-metallic pipe or cable, the utility owner shall install suitable markers and other metallic location tape or wire for all installations other than pushed or bored crossings.

(a) where it is determined that definite hazards are created by the present location of such facilities, the department and utility shall mutually attempt to eliminate such hazard. The replacing facility shall conform with the standards required for new facilities on highway right-of-way.

(b) where existing facilities are relocated due to highway projects, the relocated facilities shall conform with the standards required for new facilities on highway right-of-way.

(1) In addition to the rules for longitudinal occupancy, the following shall apply to new aerial crossings:

(a) consideration shall be given to minimizing the frequency and length of crossing spans.

(b) facility crossings shall be made as nearly as possible at right angles to the highway.

(c) installation shall comply with the current edition of the National Electric Safety Code, or other appropriate code or regulation. 6.4008 meters (twenty-one feet) of clearance is required above the surface of the roadway.

(2) Crossings required for service connections or crossing, which, in the opinion of the utility, will not require reinforcement may be made without the use of the conduit.

(3) All other crossings should be made with conduit of sufficient capacity to handle anticipated future requirements of the utility.

(4) Conduit shall be of sufficient strength to carry prescribed legal weights of construction equipment and highway traffic.

(5) The department shall determine the minimum length of conduit to be used, based on protection to the highway, as well as future highway expansion.

(6) Fiber optic cable crossings are to be buried a uniform, minimum depth of 1.0668 meters (42 inches) below the ground line, or the bottom of a ditch, whichever is greater, if a ditch is present. Steel, heavy gauge pvc, or some equivalent conduit is required on road crossings where the district determines it is necessary. The location or warning tape will not be required on roadway crossings.

(a) If practicable, all crossings under existing highways shall be made by boring, pushing or other acceptable trenchless technology.

(b) Full controlled-access facility crossings shall be installed by trenchless technology, or other acceptable methods, from control access fence to control access fence. The district can consider exceptions where soils are not suitable for boring or pushing or the length and topography make boring or pushing impracticable. In these cases permission can be granted to install jacking or boring pits within the control access fences. Receiving pits may also be installed in the median to reduce the distance only as a last resort. A traffic control plan must be submitted by the utility and approved by the district prior to beginning work.

(c) Trenching through existing paved highways shall be permitted only when installation by boring or pushing pipe is not practicable. When trenching is allowed by the district administrator, installation will be made under the following conditions:

(i) The department shall approve the methods used for backfill and compaction and repair of the highway surface where the surface is cut or damaged by utilities' operations. The methods followed shall be consistent with the department's standard practice. Non-shrink backfill may be required by the district as an acceptable alternative to conventional backfill methods.

(ii) The department shall be advised of the date work will be started and 12 hours' notice shall be given if this date is changed.

(iii) The trenching shall be subject to inspection by the department at all times and upon completion of the project, the department shall inspect and accept the work.

(iv) The utility shall be responsible for any repairs necessary as a result of cutting the pavement for a period of 12 months after completion and notice thereof to the department.

(d) A traffic control plan shall be submitted by the utility and approved by the district administrator prior to commencing such work.

(2) For crossing new highways, facility crossings necessitated by new highway construction shall be built in accordance with the foregoing standards unless the department and utility shall otherwise mutually agree.

(a) Attachments to existing structures in place prior to the effective date of these rules are considered to be in compliance with this rule, provided:

(i) The owner shall inspect the attachment annually and shall repair any deficiencies. The owner shall maintain a record of the inspections.

(ii) If the attachment is not currently permitted by a structure attachment permit, the owner shall submit an application for a permit and drawings to the appropriate district office for approval under these rules within six months of the effective date of these rules.

(2) For proposed attachments to existing structures:

(a) Where it is feasible and reasonable to locate utility facilities elsewhere, attachment to highway structures will not be allowed. Where other locations create undue hardship for the installation of the facility, consideration will be given to attaching the utility facility to a highway structure. The following conditions will apply:

(i) All utility facilities attached to structures shall be attached as provided in this rule unless written approval to do otherwise is granted by the department's bridge engineer.

(ii) Attachments to structures shall be inspected by the owner at least once per year and the owner shall repair any deficiencies immediately. Records of the inspections shall be maintained by the owner for a minimum of three years.

(iii) Attachment to longitudinal structures on a full control access facility system generally will not be permitted except to exclusively serve a highway facility. Attachments to existing structures crossing the full control access facility will be considered on a case-by-case basis.

(iv) The attachment method shall conform to engineering standards for preserving the highway, its safe operation, maintenance and appearance.

(v) Attachment of a utility facility will not be permitted unless the structure can support the additional load, and accommodate the utility facility without   compromising highway user safety and convenience, and its attachment does not impair bridge inspection or maintenance.

(vi) Manholes will not be allowed in the driving lanes of a bridge deck.   Where the structure has a minimum shoulder width of 3.048 meters (10 feet) , manhole access through the deck in the shoulder area may be allowed within the discretion of the department.

(vii) The utility attachment will be installed on the bridge in a manner which will not reduce the vertical clearances above river, stream, pavement or top of a rail.

(viii) Utility attachments to the outside of a structure that is located within 402.336 meters (440 yards) of a residential structure, park, fishing access site, or other recreational facility will not be permitted. A residential structure is any go building intended for human occupancy, including businesses. This provision may be waived by the district administrator if the utility can demonstrate the provision will place an economic hardship on the utility and that the design and attachment of the facility will not detract from the aesthetics of the structure. In other areas where, in the opinion of the district administrator, bridge aesthetics are not a particular concern, a utility may be attached to the outside of the structure. Utilities attached to the outside of the structure will be on the downstream side.

(ix) Utility facilities shall be firmly attached to the structure and where necessary padded to eliminate noise and abrasion due to vibrations caused by wind or traffic.

(x) The installation of a utility through the abutment or wing wall of an existing structure shall not be permitted.

(xi) In locations where a utility attached to a structure is carried beyond the back of the abutment, the utility shall curve or angle out to its proper alignment outside the roadbed area within the shortest possible distance from the abutment.

(xii) So long as utility facilities comply with the other conditions set forth in these rules such a facility may be attached to structures by hangers or roller assemblies suspended from inserts in the underside of the deck or from hanger rods clamped to a flange of a superstructure member.

(A) Bolting through the deck or concrete beams shall not be permitted.

(B) Welding of attachments to steel members or bolting through such members shall not be permitted.

(C) The use of anchors driven using the explosive type drilling force shall not be permitted.

(D) Drilling in prestressed concrete beams shall not be permitted.

(E) Attachments of utilities facilities to bridge handrail or guardrail or their anchorage systems shall not be permitted.

(F) Attachment of pipelines carrying deleterious or corrosive substances shall not be permitted.

(xiii) The design of a utility attachment to a highway structure shall include provisions acceptable to the department for lineal expansion and contraction due to temperature changes. Line bends or expansion couplings may be used for this purpose.

(xiv) Each proposed bridge attachment will be considered on a case-by-case basis by the department.

(xv) Trenching in the vicinity of piers, bents or abutments shall be a sufficient distance from footings to prevent undercutting or material from sloughing from under the footing.

(xvi) An application which involves the reduction of existing waterway area shall not be permitted.

(xvii) Utilities attached to bridges shall not be maintained from the bridge deck without the prior approval of the department's district engineer.

(xviii) Utility facilities shall not be attached to bridges on or eligible for listing on the national register of historic places without written consent of the state historic preservation officer.

(xix) By accepting the occupancy permit, the owner of the utility facility shall be fully liable to the department, or others, for any damage to the structure, or the surrounding environment, caused by the placement and use of the facility on a highway structure. If the structure is damaged by the utility facility, through negligence or otherwise, so that the structure can not be used by the traveling public, then the utility must pay all costs to repair the structure, and associated costs.

(xx) The department shall not allow any new attachments to a highway structure by petroleum, natural gas, or other products pipelines in seismically active areas (those areas where the anticipated acceleration coefficients due to an earthquake exceed 100 of gravity) unless the structure has been retrofitted or built in conformity to the department's seismic requirements since January 1, 1992. The department may waive this requirement if the department determines that the structure is adequate for the seismic area within which it is located.

(3) For proposed attachments to new bridge structures:

(a) Where the department plans to construct a new structure, the design of the structure will, upon request of a utility company, be reviewed by the department's bridge bureau for accommodation of existing or proposed utility installations consistent with the requirements set forth herein. The utility company may be required to reimburse the state for additional design and construction costs associated with accommodating the utility facility on the new structure.

(b) Installation of a utility facility on a new structure shall be coordinated with the bridge construction so as not to interfere with the operations of the highway contractor.

(c) The applicant shall submit complete plans and specifications of the proposed installation, including the weight per lineal meter (foot) and detail drawings to the department prior to the department's completion of plans and specifications for the proposed structure.

(d) Utility facilities may be installed through free standing bridge abutments, but shall not be permitted through abutments or bents that are expected to move as the thermal expansion and contraction affects the bridge. The hole created in the bridge abutment must be of the minimum size necessary to accommodate the utility and it shall be sleeved to permit relative movement between the abutment and utility.

(4) For pipelines:

(a) At the option of the utility, pipelines must be attached to a highway structure by one of the following methods:

(i) The carrier line shall be encased throughout the length of the structure and the casing shall be carried beyond, but not through, the bridge abutments and shall be effectively opened or vented at each end. The casing shall be designed to withstand the same internal pressure as the carrier pipe; or

(ii) The carrier line may be attached to the structure unencased using the following design factors:

              Class Location 1          0.50

              Class Location 2          0.40

              Class Location 3          0.33

              Class Location 4          0.27

The design factor specified shall be obtained in accordance with the equations set forth in 49 CFR 192 by any combination of wall thickness and/or pipe yield strength that will provide the required design factors. If the design factor is obtained by increasing steel strength, the utility shall provide certification at the time of installation to the department that the pipe, in fact, meets the strength requirements in the design calculations.

(b) The carrier pipe shall be pressure tested before start-up in accordance with the latest edition of applicable industry codes, as well as the applicable statutes and regulations.

(c) The attachment shall be designed to prevent any discharge from damaging the structure or reaching the waterway in the event of a rupture. That capability shall be demonstrated to the satisfaction of the department's bridge engineer prior to approval of the attachment.

(d) Pipelines using bridge members to resist forces generated by fluids in motion shall not be permitted.

(e) The following information shall be included in the application: outside diameter, inside diameter, pipe material, actual working pressure, substance carried, type of coating, and any other information requested by the department.

(f) Pipelines attached to highway structures shall be electrically isolated from the structure.

(g) Pipelines shall be attached to provide sufficient clearance for convenience and safety during maintenance and repair of the structure or other utility attachments on the structure. The pipeline shall be located to minimize the possibility of damage from traffic. Pipelines shall include the capability to allow for expansion and contraction of the structure and the pipeline.

(5) For power and communication lines:

(a) Electric power and communication conductors attached to a highway structure shall be insulated from the structure, and carried in protective conduit or pipe throughout the structure. Exposed metallic conduit shall be grounded on each end. Where metallic conduit is installed within two meters (seven feet) of any metal parts of the structure which are readily accessible, including, but not limited to, railings, platforms, or stairs, the metallic conduit shall be bonded to the metal parts of the structure. When bonding, all sections of the structure shall be bonded to the metallic conduits.

(b) Electrical power and communication lines shall be attached to provide sufficient clearance for convenience and safety during maintenance and repair of the structure or other utility attachments on the structure. The conduit shall be located to minimize the possibility of damage from traffic. Conduits shall allow for the expansion and contraction of the structure.

(c) Attachments shall comply with the national electrical safety code and applicable regulations.

(d) Metallic conduit attached to structures that are cathodically protected shall meet all of the above requirements and shall not adversely affect the cathodic protection of the structure, i.e., insulate the conduit from the soil and use anodes at each end for grounding. Method to be used shall be approved by the department's bridge engineer on a case by case basis.

(6) Aerial power or communication lines will not cross over bridges where it is possible to avoid such installations. A minimum vertical clearance of 7.62 meters (25 feet) from the top of the bridge rail will be maintained. A horizontal clearance of 7.62 meters (25 feet) will be maintained from the neat lines of the structures.

(7) For attachment materials:

(a) All attachments to structures shall be constructed from durable materials designed for long service life and be free from routine servicing or maintenance. All materials shall conform to current applicable industry specifications and codes.

(b) All steel materials used in attaching a utility conduit to a structure shall be stainless or galvanized.

(c) Materials used for attaching a utility facility to the structure shall be compatible with the structural material to eliminate the possibility of corrosion.

(a) If the state should deem it necessary and/or desirable to change, construct, reconstruct, or otherwise use for highway purposes, the premises occupied by utility facilities, or any portion thereof, and such change, construction, reconstruction or usage should necessitate changes in utility structures or installations, the utility shall make the necessary changes and the costs thereof shall be paid in accordance with the law in effect at the time the change is required to be made; state and utility reserve the right to test validity or constitutionality of any such law. The department reserves the right to expand highway facilities over existing underground utilities located within highway right-of-way without adjusting the utility facility, if the construction work does not conflict with the utility.

(b) The utility facility owner shall be liable, and state shall not be liable, to the general public for any injury to or death of any person whomsoever, or for the loss of or damage to property of any kind or nature to whomsoever belonging when such injury, death, loss or damage arises out of or results from the construction, maintenance, or repair of existing or future utility facilities located within the highway right-of-way, or the installation or operation of such utility facilities within the highway right-of-way, regardless of whether or not the department has expressed or implied approval of the construction, maintenance, repair, installation or operation of such facilities within the highway right-of-way. If any highway or transportation facility or structure is damaged by any party, whether through negligence or otherwise, then that party is fully responsible for the cost to repair the structure and any associated costs, including, but not limited to those liabilities set forth in the previous sentence.

(c) If the work done by the utility interferes in any way with highway drainage, the utility, at its expense, shall make such reasonable provisions as the department may direct to correct such drainage.

(d) Clearing of trees, bushes and other vegetation shall be held to the minimum required for construction and safety. All such clearing shall be revegetated in accordance with 7-22-2152, MCA. Spraying of vegetation to inhibit growth is prohibited.

(e) In the event it is necessary to cut or disturb a paved portion of a roadway, then such disturbance shall be properly patched, and shall be maintained for one year from the installation date. If the responsible party does not perform required repairs within 30 days of notification, the department may make such repair and charge the full cost to the responsible party.

(f) The utility shall return the right-of-way to its original condition as nearly as practicable and shall remove all of its rubbish and debris promptly following completion of its activities.

(g) Work performed by the utility within the highway right-of-way shall be subject to inspection at all times.

(h) Subsequent to the initial installation, all repair, maintenance, reconstruction, relocation, or removal of utility facilities shall be accomplished in such a manner as will cause the least interference with normal operation and maintenance of the highway.

(i) The state shall not be responsible or liable for damage which may occur to utility facilities occupying highway right-of-way under these regulations.

(j) Upon termination of occupancy, the utility shall remove its above-ground facilities and restore the right-of-way as nearly as practicable to the condition existing at the time of initial occupancy thereof. Reasonable and ordinary deterio- ration caused by use or the elements or the acts of nature are excepted.

(k) Retired or abandoned below-ground facilities shall, at the discretion of the department, be removed by the facility owner, and any costs (including costs associated with the proper removal of hazardous or solid wastes) associated with such removal shall be the responsibility of the utility facility owner.

(l) The utility, at its sole expense, shall maintain in a satisfactory condition, the installations and structures occupying the highway right-of-way. Maintenance work, except in emergency situations, may not be conducted from within access control limits of controlled-access highways.

(m) Where the state's right-of-way is by easement for highway purposes only, utility occupancy may be subject to approval by the owner of the underlying fee interest. The utility company is encouraged to determine whether it is in its best interest to obtain such approval prior to installing its facilities.

(n) New utility facility installations, including those needed for highway purposes, will not be permitted within scenic strips, overlooks, rest areas, recreation areas, the rights-of-way of highways adjacent thereto, the rights-of-way of highways which pass through historic sites and public parks, archaeological sites that have been determined eligible for listing on the national register of historic places, a wetland protected by Executive Order 11990, or any other environmentally sensitive area, except as follows:

(i) New underground utility facilities may be permitted within such areas where they do not require extensive removal of, or damage to, trees visible to the highway user, or impair the appearance of the area.

(ii) New aerial installations are to be avoided at such locations unless there is no feasible and prudent alternative to the use of such lands by the aerial facility and it is demonstrated that:

(A) Alternate locations for the utility facilities are not available or are extremely difficult and unreasonably costly, or are less desirable from the standpoint of scenic appearance.

(B) Underground installations are not technically or economically feasible, or are more detrimental to the scenic appearance of the area.

(C) The proposed utility installation will be made at a location and in a manner that will not significantly detract from the area, and will employ suitable designs and materials which the greatest weight to visual quality.

(iii) Situations involving unusual hardship or other extenuating circumstances within scenic and public use areas will be considered.

(iv) If avoidance of such areas is not feasible, and the applicant demonstrates to the satisfaction of the department that mitigation of any adverse impacts is possible and preferable to complete avoidance, then the department may allow the applicant to occupy such areas provided such mitigation measures are taken.

(o) The installation of utility facilities or conduits on the right-of-way of federal-aid or direct federal highway projects for the purpose of draining adjacent wetlands onto the highway right-of-way is inconsistent with Executive Order 11990, Protection of Wetlands, dated May 24, 1977, and shall not be permitted. The filling, dredging or draining of wetlands located on highway right-of-way shall not be allowed unless in compliance by all federal and state laws and regulations.

(p) The utility company shall comply with the Montana Environmental Policy Act, 75-1-101, et seq., MCA; the Threatened and Endangered Species Act, 16 USC 1531, et seq.; the Migratory Bird Treaty Act, 16 USC 701, et seq.; the Bald and Golden Eagle Protection Act, 16 USC 668, et seq.; and all other applicable environmental laws, regulations or provisions.

(q) Whenever a utility installation, adjustment, or maintenance activity will affect the movement of traffic or traffic safety, the utility shall implement a traffic control plan and use traffic control devices as necessary to ensure safe and expeditious movement of traffic around the work site and the safety of the utility work force. The traffic control plan and the application of traffic control devices shall conform to the standards set forth in the Manual on Uniform Traffic Control Devices (MUTCD) , and 23 CFR 655, subpart F. No road closure shall occur without prior approval from the district engineer. In all cases, it is necessary that utility work be undertaken in a manner that will minimize interference with the traveling public.

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