Montana Administrative Register Notice 18-177 No. 21   11/08/2019    
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In the matter of the adoption of New Rule I and the repeal of ARM 18.7.232 pertaining to Electronic Utility Permitting for Right-of-Way Occupancy







TO: All Concerned Persons


1. On August 9, 2019, the Department of Transportation published MAR Notice No. 18-177 pertaining to the public hearing on the proposed adoption and repeal of the above-stated rules at page 1145 of the 2019 Montana Administrative Register, Issue Number 15.


2. The department has repealed the following rule as proposed: ARM 18.7.232.


3. The department has adopted the following rule as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:


NEW RULE I (18.7.207) ELECTRONIC UTILITY PERMIT APPLICATION PROCESS (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) and (b) remain as proposed.

(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;

            (c) through (e) remain as proposed but are renumbered (d) through (f).

            (2)  Each application must:

            (a) through (c) remain as proposed.

            (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) include the name of any subcontractor who will be conducting the installation, the subcontractor's contact information, and an executed subcontractor's construction agreement if required by the department; and

 (f) remains as proposed but is renumbered (e).

            (3) through (4) remain as proposed.

            (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) through (e) remain as proposed.

(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) and (b) remain as proposed.

(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) remains as proposed.


AUTH: 60-4-402, MCA

IMP: 60-4-402, 60-4-403, MCA


4. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:




COMMENT #1:  One comment was received stating New Rule I(1) establishes a new, electronic utility permitting process and requested a "soft launch" until May 1, 2020 at the start of the 2020 construction season. The comment stated a "soft launch" would afford both MDT and utility applicants the opportunity to test and troubleshoot any problems during the implementation. Delaying implementation to May 2020 also will not affect the remaining 2019 construction season and projects already underway.


RESPONSE: MDT agrees a delayed effective date before the UPAS application process becomes mandatory will allow time for additional training and troubleshooting. MDT will adopt New Rule I with a delayed effective date until January 1, 2020. MDT will offer training sessions on specific dates in October-December and will continue to offer ongoing training after the initial UPAS launch. With the effective date delayed until January 1, 2020, all utility permit applicants may use the existing paper process, with no as-built survey data requirement, until the January 1, 2020 effective date. Any applicant seeking utility permits for the 2020 construction season may apply under the existing permit application process or the UPAS process until January 1, 2020.


COMMENT #2: MDT staff commented New Rule I(1) and (5) should reference the web address at which UPAS may be accessed.


RESPONSE:  MDT will amend New Rule I(1) and (5) as shown to insert "mdtupas.com" as a web address for UPAS application access.


NEW RULE I(2)(a)


COMMENT #3:  One comment was received stating New Rule I(2)(a) which requires utilities to respond to MDT's request for additional permit application information is reasonable, but the rule should be amended to "commit the Department to approve a completed application within 30 days of receipt of the application or the application is deemed granted if the Department fails to approve the application within 30 days of receipt."


RESPONSE:  MDT acknowledges the comment in support of the New Rule I(2)(a) requirement for permit applicants to respond to additional information requests within 30 days. MDT notes proposed New Rule I did not contain a proposed timeline for MDT approval of completed applications, thus the rule comment regarding this type of timeline is outside the scope of this proposed rule notice.


NEW RULE I(2)(d) and (e)


COMMENT #4:  Two comments were received stating New Rule I(2)(d) and (e), requiring names of utility owner's contractor and subcontractor, should be removed, as the installation contractor may not be selected and named prior to submitting the application for a permit. The comments stated the utility owner typically tries to get all permits before awarding a project to a contractor. The comments recommended amending the subsections to allow utility applicants to submit contractor information to MDT within 60 days of the utility owner retaining a contractor.


RESPONSE:  MDT agrees utility owners may or may not select contractors or subcontractors until after a utility permit has been obtained. MDT will therefore delete New Rule I(2)(e) requiring submission of contractor names as part of the application, and amend New Rule I(1)(c) as shown to state a utility owner must provide contractor and subcontractor information within 60 days of retaining a contractor or subcontractor, or prior to commencement of work whichever occurs earlier. No amendments to New Rule I(2)(d) are necessary, as that subsection only requires disclosure of the contractor's name as authorization for a contractor to obtain a utility permit in the utility owner's name, which would not occur unless the contractor had an already-established contract with the utility owner.


NEW RULE I(2)(f)


COMMENT #5:  One comment was received stating New Rule I(2)(f) stating applications must be accompanied by a $100 convenience fee, which will produce $70,000 of new revenue to MDT, will cause small utilities to incur significant costs to comply with the new rule. The comment stated some utilities will incur at least that much expense to purchasing new equipment and dedicating personnel to comply with New Rule I.  The comment recommended the convenience fee apply on a per-project basis, so utilities will not face multiple fees for the same construction project.


RESPONSE:  MDT notes the "convenience fee" being charged for UPAS applications does not produce revenue for MDT. Instead, the convenience fee is charged to allow payment for electronic government services on a State of Montana website.  Section 2-7-1103, MCA allows the State to charge convenience fees and allows private entities to collect fees to provide funding for the support and furtherance of electronic government services. The statute allows a minimal convenience fee to be charged to applicants, as collected by the UPAS vendor, to provide funding only for use of this electronic government service.  No fee is being charged or collected by MDT for issuance of utility permits.




COMMENT #6: One comment was received stating the New Rule I(4) requirement for GPS "as built" surveys certified by a Professional Land Surveyor (PLS) or a Professional Engineer (PE) is not correct. The comment stated the as-built surveys required by MDT fall under a PLS not a PE licensure statute so PEs risk inappropriately stamping projects that are under the jurisdiction of a PLS. The comment stated MDT may be inadvertently putting PEs at risk of complaints against their license through the language of the permit.


RESPONSE: MDT notes 37-67-101(5), MCA allows the New Rule I type of as-built survey data to be provided as "engineering survey" by a PE. It is therefore allowable for a PE or a PLS to certify the required as-built survey data. MDT notes New Rule I does not require property ties, or filing of a Certificate of Survey, both of which would have to be certified or stamped by a PLS.


COMMENT #7: One comment was received stating New Rule I(4)(a)(i) and (ii) requiring GPS as-built surveys to be submitted as certified by a PE or PLS or submitted by a utility owner employee appear to stand alone with no correlation. The comment recommended inserting the word "or" between the subsections so a utility must comply with either (i) or (ii). The comment proposed amending the language of (4)(a) to clarify (i) PE/PLS surveys are not subject to MDT inspection and audit unless discrepancies are noted by MDT and (ii) non-PE/PLS surveys are subject to MDT inspection.  The comment also stated if MDT inspects non-PE/PLS surveys, any discrepancies should be presented to the utility for notice and opportunity to challenge MDT findings before incurring MDT's expense of a new survey. The comment stated it was asking for due process to challenge MDT's determination of a discrepancy.


RESPONSE: MDT agrees insertion of the word "or" between New Rule I(4)(a)(i) and (ii) was inadvertently omitted in the proposed rule notice. The rule will be amended as shown. New Rule I(4)(a) allows the utility owner to choose an option and decide whether to submit (i) as-built survey data stamped by a PE or PLS, without MDT audit and inspection, or (ii) as-built survey data certified by a utility owner authorized officer or employee, subject to MDT audit and inspection. If non-PE or PLS certified (4)(a)(ii) submissions are made, MDT may audit and inspect the installation and charge the utility owner for corrections to survey information. Survey data discrepancies noted by MDT would result in discussion of a corrective plan to be performed by the utility owner before MDT would undertake its own corrective work or charge the utility owner for corrective work.


COMMENT #8: One comment was received expressing concern with the cost and timing associated with PLS survey for "as built."  The comment stated if this rule requires a PLS to be at every site before it is covered, utilities will incur costs and time.


RESPONSE: MDT notes New Rule I(4)(c) allows 90 days to submit as-built survey data, or a longer period if requested and justified by the utility owner. New Rule I does not therefore require a PE or PLS to be at every site, as the survey could be completed and submitted after installation is complete. See, also, Response to Comment #6. New Rule I(4)(a) does not require PE or PLS presence at a site or certification, as the utility owner may choose an option which requires neither.


COMMENT #9: Six comments were received asking MDT to provide the accuracy requirements for the "as built" survey in New Rule I(4) and (4)(a)(ii). The comments stated PEs may incur a risk of stamping projects with only locater equipment accuracy.  The comments stated accuracy of locates using locator equipment (e.g., ELM only certifies for +/-18", whereas UPAS requirements are more stringent). The comments also stated using locater equipment for vertical depth is problematic (what if wire is not attached to the pipe). The comments also stated the only way to meet proposed requirements is to survey while the trench is still open. The comments also stated the utility owner would need to use MDT control to go on the MDT coordinate system and tie into control points on both sides of new installations to make certain they are using correct scale factors and vertical datum. Finally, the comments stated New Rule I(4) requires clarification on specific X, Y, and Z specifications and tolerances that MDT seeks from utilities.


RESPONSE: New Rule I (4) states the American Society of Civil Engineers (ASCE) standard guideline for recording and exchanging utility infrastructure data is adopted by reference.  New Rule I requires utility owners to make their best effort with current technology to follow the ASCE standards. MDT also notes technical requirements of survey data will be contained in MDT's Utility Manual, which will reflect the current state of technology. If new technology and locator equipment is developed to allow for more accurate locations, the Manual may be updated to reflect the technology updates.  The ASCE standards currently make provision for trenchless methods (e.g., accuracy level 7); however, if a trench method is being used, a physical survey is preferred, not after backfill. A utility owner may choose option 1 or 2 for as-built survey data (see response to Comment #6), and if option 2 is chosen, no PE or PLS certification is required, and accuracy level 7 may be submitted. MDT will approve non-certified as-built survey data if appropriate, but all non-certified submissions are subject to inspection, audit, and correction if necessary, at utility owner's cost. New Rule I (4) requires utility owners to follow ASCE standards to certify which accuracy level, including X, Y, and Z specifications and tolerances are being submitted for the subject utilities.


COMMENT #10: Two comments were received stating New Rule I(4) states the as-built surveys are to be "standard ASCE standard survey grade GPS," yet ASCE Table 1, defines seven different accuracy levels ranging from Level 1 to Level 7; thus it is not clear which level of "survey grade" New Rule I proposes. The comments also stated ASCE standard guideline is currently in draft form, so the comment requested clarification as to whether the draft is adopted as it is, or whether subsequent amendments, and presumably a final standard be "automatically" adopted by reference. The comments also requested information on when the ASCE standard will be released as final. The comments stated utilities may not be able to comply with "interim" drafts, so a utility may submit current ASCE standard data, but standards may charge during permitting or construction, and it will not be clear which standard applies.


RESPONSE: New Rule I(4) requires use of ASCE standards, which are set for finalization in January 2020, which will coincide with the New Rule I effective date of January 2020. See response to Comment #8 for MDT's ability to update its Manual for updated standards.


COMMENT #11: One comment was received stating New Rule I does not explain how MDT contactors will be required to comply with the same ASCE guidelines, including Z coordinates, nor explain how MDT will use ASCE guidelines, nor how MDT plans to share such data with utilities.


RESPONSE: See response to Comment #8 on ASCE X, Y, and Z specifications. MDT notes proposed New Rule I did not contain requirements for sharing of data; thus the rule comment regarding this type of guideline is outside the scope of this proposed rule notice.


COMMENT #12: One comment was received stating New Rule I(4) ASCE level of accuracy might be impossible to obtain in remote areas with limited satellite coverage.  The comment stated MDT would have to work with the utility to obtain the data.


RESPONSE:  New Rule I requires the utility owner to certify the level of accuracy of the submitted survey data. If satellite coverage was not available, the utility owner would use a different level of accuracy for submission.


NEW RULE I(4)(d)


COMMENT #13: One comment was received objecting to New Rule I(4)(d), which states the department may reimburse a utility owner for PE or PLS certified as-built surveys, in its entirety. The comment stated the subsection conflicts with 60-4-403, MCA, wherein MDT must reimburse 75%. The comment also objected to use of the word "may" and to the language stating the reimbursement only applies to PE/PLS certified surveys.


RESPONSE: MDT notes New Rule I(4)(d) only addresses possible MDT reimbursement for costs associated with PE or PLS certified as-built survey data submissions, not MDT statutory requirements to pay 75% of utility relocation costs for qualifying federal-aid system construction. The statutory requirement would continue to be followed for relocation costs. New Rule I(4) only addresses reimbursement for PE or PLS certified as-built survey data submissions and does not address nor change MDT statutory utility relocation obligations in any way.


NEW RULE I(4)(e)


COMMENT # 14: One comment was received agreeing with New Rule I(4)(e), which requires utility owners to reimburse MDT costs incurred due to incorrect as-built surveys, stating utility applicants that submit significantly incorrect data should be held accountable for their errors. The comment stated the subsection should include a definition for "significant[ly] incorrect" and due process for notice and opportunity to cure (aka dispute process) earlier in the process. The comment stated the rule needs to be amended to allow for due process (good faith negotiated settlement) prior to imposition of costs to cure.


RESPONSE:  New Rule I requires the utility owner to provide the accuracy level of the data. MDT will work with the utility owner if audit, inspection, or future project work encounters incorrect data to allow utility owner correction at its expense, or MDT correction with costs charged to utility owner. New Rule I(4)(e) uses the wording "significant[ly] incorrect" and "major deviations" to acknowledge MDT will not require corrections for all inaccuracies, especially minor deviations. MDT will work with the utility owners to determine the significance of any incorrect as-built survey information.




COMMENT #15: Two comments were received on New Rule I(5) requirement for application for a Notification Permit prior to performing maintenance of permitting utility facilities on MDT right-of-way.  The comments stated it is not feasible to comply with the requirement to file a notification permit prior to conducting all maintenance. The comments also stated it is impractical for emergencies and after hour calls to submit a utility notification permit before proceeding with necessary repairs. The comments requested an exemption for electric utilities based on public safety and restoring power to consumers. The comments did not see the point of submitting a notification permit after the work was completed.


RESPONSE:  MDT agrees with the comment and will amend New Rule I as shown to allow emergency utility work to be performed without obtaining a notification permit in advance. New Rule I(5)(d) will require application for a notification permit as soon as practicable after emergency work is performed, to ensure MDT utility records are complete and accurate as to work performed at any time in the right-of-way.


            5. The effective date for the adoption and repeal of the above-stated rules is January 1, 2020.



/s/ Carol Grell Morris                                  Michael T. Tooley                

Carol Grell Morris                                       Michael T. Tooley

Rule Reviewer                                            Director

                                                                   Department of Transportation


Certified to the Secretary of State October 29, 2019.

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