2 Colo. Code Regs. § 601-18-2.0

Current through Register Vol. 47, No. 11, June 10, 2024

Section 2 CCR 601-18-2.0 - PROCEDURES

2.1General

2.1.1 Local Agency Authority to Issue Permits in the SH ROW

2.1.1.1 The Department has the authority and primary responsibility to issue permits for utility accommodations on all SH ROW, including State highways that may also be local streets within the local agency jurisdiction. Any work outside of the roadway may require a separate permit from the local agency.

2.1.1.2 If an application requests utility accommodation on a State highway that is also a local street within the local agency jurisdiction, the Department shall, if requested by the local agency, consult with the local agency before the Department acts on the application and/or the terms and conditions of the permit.

2.1.1.3 The Department may, upon written request by a local agency and prior approval thereof by the Department, delegate the authority described in the above Section 2.1.1.2 to a local agency for State highways within its jurisdiction, subject to the following conditions:

2.1.1.3.1 The local agency's written request must be executed by the person authorized to obligate the local agency on utility matters.

2.1.1.3.2 Under any delegation, the Department shall remain the sole issuing authority for utility permits on all State highways designated as freeways or expressways.

2.1.1.3.3 Any permit issued by the local agency shall include all terms and conditions necessary to ensure compliance with the Code.

2.1.1.3.4 Upon written request from the local agency, the Department will assist with permit applications received by the local agency, including but not limited to reviewing an application, recommending permit action, and/or preparing a permit for local agency issuance.

2.1.1.3.5 If requested by the Department, the local agency shall promptly furnish the Department with copies of all permits issued, and of applications denied together with reasons for denial.

2.1.1.3.6 The local agency shall be responsible to ensure minimum Code compliance with all terms and conditions of any permit issued, and to hear and decide any appeals of its permitting decisions.

2.1.1.3.7 The permit shall expressly provide that the Department may, at any time, inspect the site of work authorized by the permit.

2.1.1.3.8 Any locally adopted utility accommodation standards that are imposed through a permit shall meet the minimum applicable requirements of the Code.

2.1.1.3.9 The permit shall expressly provide that the Department shall retain authority to take immediate remedial action concerning permitted work to attain compliance with the Code or with permit conditions, or as otherwise required for the public health, welfare and/or safety.

2.1.1.3.10 The local agency may relinquish the delegated authority upon written notice to the Department, and the Department may withdraw its delegation of authority upon written notice to the local agency.

2.1.1.3.11 The Department reserves the right to issue utility relocation permits.

2.1.2 Responsibility for Utility Accommodation Costs and Damages on Department Projects

2.1.2.1 The utility owner shall be responsible for all costs relating to the accommodation of its facilities within the SH ROW, or their relocation from the SH ROW and the Department shall have no responsibility for any costs of any utility accommodation, except as expressly provided otherwise in this Section or in a permit or written agreement.

2.1.2.2 The Department shall give written notice to the utility when the utility fails to fulfill any requirement of the Code or the provisions of its permit. The Department shall allow the utility the opportunity to remedy within the time set by the Department in its written notification. Extensions may be granted upon written request showing good cause. If a utility does not remedy the failure to comply with any requirement or provision, the Department, may elect in its discretion to perform the work by any other suitable means. In that event, the utility shall be liable to the Department for all costs reasonably and actually incurred by the Department for that performance. All costs shall be itemized to the extent practicable. The utility shall pay that amount plus interest at the statutory rate to the Department not later than 30 days after receipt of the Department's bill. Any such amounts not paid may be used to offset future fiscal Department obligations to the utility.

2.1.2.3 The utility company shall pay for damages caused by the company's delay in the performance of utility relocation work or interference with the performance of transportation project work done by others. Such damages may include, but are not limited to, payments made by the Department to any third party based on a claim that performance of the transportation project work was delayed or interfered with as a direct result of the utility company's failure to timely perform the utility relocation work. Project delay damages shall be tied to the project's critical path schedule so as to demonstrate a timeline of events leading up to the utility's failure to perform the work and subsequent delay to the project. This information will be provided to the utility in advance and is subject to the following additional provisions:

2.1.2.3.1 Damages resulting from delays in the performance of the utility company's relocation work or interference with the transportation project work caused by Force Majeure or events beyond the utility company's ability to reasonably foresee or control shall not be charged to the utility company.

2.1.2.3.2 If damages are charged against the utility, the Department may withhold issuance of a permit until such damage charges are paid, or deduct damage charges from any outstanding accounts for relocation reimbursement agreements with that utility company.

2.1.2.3.3 For utility relocations arranged through Design-Build Contracts, damage charges and the potential withholding of permits are subject to Part 14 of Title 43, C.R.S.

2.1.2.4 The Department will reimburse a utility for the costs of relocating its facility only where any of the following conditions exist:

2.1.2.4.1 the Utility has the right of occupancy in its existing location because it holds the fee, an easement, or other real property interest, the damaging or taking of which is compensable in eminent domain; or

2.1.2.4.2 the facilities are owned by a governmental subdivision of the State of Colorado or an abutting landowner, as provided in § 43-1-225, C.R.S.; or

2.1.2.4.3 the provisions of § 43-1-1411, C.R.S. apply with respect to certain relocation costs associated with a Design-Build Contract; or

2.1.2.4.4 the facilities exist to serve a highway purpose.

2.1.2.5 Except as otherwise provided in § 43-1-1411(5), C.R.S., when in the acquisition of new SH ROW, the Department overtakes a utility's real property interest, the Department may:

2.1.2.5.1 acquire a replacement property interest for the utility or reimburse the utility for the reasonable cost of acquiring its own replacement interest, the reasonableness of which will be determined by the Department after consultation with the utility; or

2.1.2.5.2 where it is not necessary, by virtue of the nature of the transportation project to relocate utility facilities, the Department may enter into a common use agreement or other type of agreement with the utility that allows a property interest to exist within SH ROW; or

2.1.2.5.3 if the utility must relocate within the SH ROW and if a replacement interest is not acquired, the utility may be justly compensated to the extent allowable in accordance with Colorado eminent domain law and precedent for the value of its real property interest; or

2.1.2.5.4 if the relocation of a utility's facility is necessitated by a transportation project and the utility elects to relocate its facilities within the SH ROW, the Department may enter into a common use agreement or a utility permit with the utility that allows reimbursement for future relocations of the utility's facilities provided that the utility vacates all property interest that exists within the SH ROW.

2.2Utility Permits and Utility Relocation Permits to the State Highway

2.2.1 Requirement to Obtain a Permit

2.2.1.1 Utility owners must obtain a permit from the Department prior to performing any utility accommodation work, including the initial installation, relocation, system upgrades, maintenance activities not covered under existing permit, or facilities removal.

2.2.1.2 The utility must obtain a new or revised permit for any work which is not expressly described in the language of the scope of work of an existing permit. The Department may issue an annual maintenance permit, depending upon the utility type, for planned or emergency maintenance activities, traffic and roadway characteristics.

2.2.1.3 Applications for utility permits and utility relocation permits, shall be on Department-prescribed forms, unless issuing authority for permits has been delegated to a local agency.

2.2.1.4 The utility shall comply with all applicable requirements of the Code, and if a permit is issued, with all terms and conditions of that permit.

2.2.1.5 A utility shall not perform any utility accommodation work without first obtaining a permit issued by the Department or delegated issuing authority.

2.2.2 Application for a Utility Permit

2.2.2.1 An applicant must submit an application for a permit to the appropriate Region Utility Permit Office where the accommodation is requested. CDOT region offices are located in Denver, Durango, Grand Junction, Greeley, and Pueblo. For permitting purposes the Durango region is further subdivided into Durango and Alamosa offices. Contact names, addresses, phone/fax numbers and e-mail addresses are available online from the CDOT Utility Code website (https://www.codot.gov/business/permits/utilitiesspecialuse/permit-process.html).

2.2.2.2 The application must be submitted through the Department's prescribed CDOT Form #1233, which is available from the Department's regional offices or online. The application must include a complete description of the purpose, nature and specific location of planned work, and the anticipated start and completion dates for that work. The application must include a scope of the proposed activities to be covered by a permit, including type and size of utility facility, proposed utility plans, traffic control plans, insurance certificate, methods used to perform the work. The application must describe that information in sufficient detail to enable the Department to determine exactly what work is proposed.

2.2.2.3 Permits are only issued in the name of the utility owner. If the applicant is other than the utility owner, the application must include written evidence granting the applicant's authority to act as an agent for the utility owner. Such evidence will be on official utility owner letterhead, signed by the utility owner granting such authority. Such written evidence shall acknowledge that the utility owner understands that the permit will only be issued to the owner.

2.2.2.4 The applicant shall submit reasonably necessary additional items of information, if any, as requested by the Department in conjunction with a permit application, including but not limited to: highway and utility plan and profile information, utility facility design, existing and/or proposed locations of other facilities within the affected area, evidence of adequate, and current liability insurance coverage of the proposed work, and any available Global Positioning System (GPS) coordinates for all proposed work.

2.2.3 Action on the Application; Issuance of Permit

2.2.3.1 The Department may refuse to accept or consider any incomplete application that lacks necessary information or detail. Such permit is not denied but the Department may defer the administration, review, and processing until it is deemed complete.

2.2.3.2 When a completed application is received, the Department shall promptly evaluate and act on the application in accordance with the Code and any applicable federal and state laws. For any applications involving extraordinary circumstances, the Department shall negotiate additional reasonable time, as necessary, to completely review and act on an application.

2.2.3.3 If the Department denies the permit requested by the application per Section 2.2.6.1 , a copy of the permit application marked "Denied," together with a written explanation of the grounds for the denial shall immediately be provided. Retracted applications are not permit denials.

2.2.3.4 If the Department preliminarily approves the permit requested by the application, it will prepare and transmit to the applicant for signature a written permit containing standard provisions and applicable special provisions and other terms and conditions. The permit will be prepared using the Department's prescribed form. The permittee must sign and return the permit to the Department in a timely manner.

2.2.3.5 The Department may issue a "conditional" permit that is subject to further resolution of such matters as work schedule, construction methods or other permit requirements, before the affected work may proceed.

2.2.3.6 The effective date of the permit shall be the date the Department signs the permit. A permit shall not be effective or valid until it is signed by the permittee and the Department, with the date of issuance properly affixed thereto.

2.2.3.7 If the permittee does not sign the permit, or does not agree to all the terms and conditions of the permit, or does not return the signed permit within that 60-day period, then the Department shall have no obligation to sign the permit or to take further action on the permit.

2.2.3.8 The Department will submit the Utility Relocation Permit to the Utility Owner for signature when a utility relocation is required for a transportation project.

2.2.4 Utility Permits Requiring Third Party Approval

2.2.4.1 The applicant must obtain the approval of a third party, and agree to terms and all conditions imposed by that third party, before the Department will issue a permit in certain circumstances, which may include but not be limited to:

2.2.4.1.1 applications wherein the proposed accommodation is on federal lands and the SH ROW grant is for highway purposes only. In such cases, the applicant must first obtain permission from, and comply with the requirements of, the federal agency having jurisdiction over the underlying land; or

2.2.4.1.2 proposed utility accommodation wherein others hold an overlapping easement or other real property interest in a portion of SH ROW. In such cases, the application must include written evidence that the overlapping easement or other real property interest owner concurs with the application; or

2.2.4.1.3 required FHWA concurrence when the proposed accommodation is on the ROW of a federal aid highway and either:

2.2.4.1.3.1 does not conform with applicable federal regulations; or

2.2.4.1.3.2 does not comply with the Code; or

2.2.4.1.3.3 involves longitudinal use of the SH ROW by a private line as described in Section 3.2.2.5; or

2.2.4.1.4 the proposed accommodation involves the joint use of another utility owner facility or facilities, or involves the co-location of two or more utility facilities in a common trench or conduit.

2.2.4.2 Any necessary FHWA approval under Section 2.2.4.1 above will be requested by the Department during the permit application review process. The applicant shall be solely responsible to request and obtain all other approvals required under Section 2.2.4.1 above.

2.2.4.3 The applicant must identify and address the need for any such third party approval in the application. The Department will advise the applicant of such needs that it is aware of, and will make the permit expressly subject to prior written approval of such third parties, or may require reasonable evidence of such approvals.

2.2.4.4 If a permit is issued, it will contain, or incorporate by reference, all terms and conditions required by such third parties.

2.2.4.5 Environmental clearances must be obtained as described in Section 3.1.7.

2.2.5 Variance Procedures

2.2.5.1 The applicant must submit a written request, as part of the permit application, if seeking a variance from any requirement of the Code. The request shall describe the proposed variance, and the specific reasons for the variance.

2.2.5.2 In determining whether to grant a variance the Department will consider all relevant factors, including whether:

2.2.5.2.1 a variance is reasonably necessary for the convenience, safety and/or welfare of the public; or

2.2.5.2.2 there is exceptional or undue financial burden or other hardship on the applicant, or a physical impracticability; or

2.2.5.2.3 a variance will not impair the highway, highway operations, maintenance, safety or otherwise conflict with the purposes of the Code; or

2.2.5.2.4 a variance would not be detrimental to the public health, welfare and/or safety.

2.2.6 Denial, Suspension, Modification or Revocation of Permit

2.2.6.1 The Department may deny a permit pursuant to § 24-4-104, C.R.S. if the requested utility accommodation does not comply with the Code or applicable law, or otherwise endangers the public health, safety and/or welfare.

2.2.6.2 The Department may suspend, limit, modify, revoke or refuse to renew or revise a previously issued permit pursuant to § 24-4-104(5), C.R.S. if:

2.2.6.2.1 The application contains any material misrepresentations, false information, or its approval was otherwise obtained fraudulently and/or in bad faith; or

2.2.6.2.2 The permitted work is performed in violation of the terms and/or conditions of the permit, the requirements of the Code or any other applicable law; or

2.2.6.2.3 The Permittee fails to satisfactorily perform, in a timely manner, any obligation imposed by the permit or the Code; or

2.2.6.2.4 Such action is necessary to protect the highway facility, or otherwise protect the public health, safety and/or welfare; or

2.2.6.2.5 The Permittee is currently in default on the conditions of a previously issued permit or is currently in arrears on payment of damages to the Department, as specified under Section 2.1.2.3.

2.2.6.3 The utility permit manager shall give the Permittee notice in writing pursuant to § 24-4-104(3)(a), C.R.S., and afford the Permittee opportunity to submit a response and give the Permittee a reasonable opportunity to comply with all lawful requirements, except in cases of deliberate and willful violation or a substantial danger to public health and safety

2.2.6.4 Immediate Suspension of Permit. Pursuant to § 24-4-104(4)(a), C.R.S., where the utility permit manager has objective and reasonable grounds to believe and finds, upon a full investigation, that the Permittee has been guilty of deliberate and willful violation or that the public health, safety, or welfare imperatively requires emergency action and incorporates the findings in its order, the utility permit manager may summarily suspend the permit pending proceedings for suspension or revocation which shall be promptly instituted and determined. For purposes of immediately suspending a permit, full investigation means a reasonable ascertainment of the underlying facts on which the agency action is based.

2.2.6.5 Proceedings for Denial, Suspension, Modification or Revocation of Permit

2.2.6.5.1 Pursuant to § 24-4-104(3)(a), C.R.S., the utility permit manager shall give the applicant or Permittee:

2.2.6.5.1.1 Notice in writing that specifies in what respect the Applicant or Permittee has failed to comply with state and or federal law or these Rules;

2.2.6.5.1.2 If requested by the applicant or Permittee, a reasonable opportunity to comply with all lawful requirements; and

2.2.6.5.1.3 Notice of the right to request a hearing.

2.2.6.5.2 Pursuant to § 24-4-104(10), C.R.S., written notice of the denial, revocation, suspension, limitation, or modification of a permit and the grounds for the action shall be served promptly on the Permittee personally or by mailing by first-class mail to the last address furnished to the Department by the applicant or Permittee. The notice must also be sent on the same day via email to the applicant or Permittee's last known email address.

2.2.7 Hearings

2.2.7.1 The utility owner may request a hearing regarding the CDOT utility permit manager's decision respecting the renewal, denial, revocation, suspension, limitation or modification of a permit, pursuant to the provisions of § 24-4-104, C.R.S.

2.2.7.2 A request for hearing shall comply with the following provisions:

2.2.7.2.1 The request for an administrative hearing shall be submitted to the Chief Engineer within 60 days of receipt of personal service or first-class mail and email of written notice of denial or transmittal of the permit for signature. A request for a hearing shall be submitted to the Chief Engineer at the Colorado Department of Transportation.

2.2.7.2.2 Upon proper request by the utility owner, a hearing shall be held within ninety (90) days of the receipt of the request unless otherwise agreed upon.

2.2.7.3 Pursuant to § 24-4-105(2)(a), C.R.S., the Department shall give a Notice of Hearing to the utility owner of the time, place, and nature of the hearing, the legal authority and jurisdiction under which it is to be held, and the matters of fact and law asserted, at least 60 days prior to the hearing. The Notice of Hearing shall be served personally or by mailing by first-class mail to the last address provided to the Department.

2.2.7.4 The Chief Engineer shall appoint a Hearing Board consisting of three or more persons to preside over the hearing, at least one of which will have experience with utility issues within the SH ROW. Hearing Board members may serve on a Hearing Board more than once. The Chief Engineer shall select, from among the Hearing Board members, a chairperson who shall direct the proceedings, and shall assign a Department employee as a non-voting Hearing Board secretary, who will accomplish the Hearing Board's administrative duties.

2.2.7.4.1 The Hearing Board shall have authority and the hearing shall be conducted pursuant to § 24-4-105, C.R.S. Each side shall have 30 minutes in which to present their case, beginning with the utility owner, and the utility owner shall have 15 minutes in which to rebut the Department's presentation. The Hearing Board may opt to hear opening and closing statements, and may ask questions of either party. If requested, the Hearing Board may, but is not required to, extend the allotted times. Each party may have an attorney present their case, solely at their own expense. Any attorney who is a witness may not act as counsel for the party calling the attorney as a witness.

2.2.7.4.2 The Hearing Board shall electronically record the proceedings but must hold the hearing before a certified court reporter.

2.2.7.4.3 The utility shall have the burden of proof, by a preponderance of the evidence, relating to the Department's decision regarding the utility permit.

2.2.7.4.4 Within 10 days of the hearing, the Hearing Board shall make a recommendation to the Chief Engineer regarding the validity of the Department's action on the utility permit. The recommendation shall be in writing and contain a Statement of Findings and Conclusions upon all the material issues of fact, law or discretion presented by the record and shall enter an appropriate order sanctioning or denying relief. The recommendation shall not be binding on the Chief Engineer.

2.2.7.4.5 The Chief Engineer shall take the recommendation of the Hearing Board under advisement and shall make a final decision on the utility permit within 30 days of receipt of the recommendation. The decision of the Chief Engineer shall be in writing and sent to all parties via email and first class mail. The decision of the Chief Engineer shall be the final agency action of the Department pursuant to §§ 24-4-105 and 24-4-106, C.R.S.

2.2.7.4.6 Petitions for Declaratory Orders pursuant to § 24-4-105(11), C.R.S., may be considered by the Chief Engineer on any issues within the jurisdiction of the Commission and the Department.

2.3Installation, Operation and Maintenance

2.3.1 Construction and Inspection

2.3.1.1 The permittee shall keep a copy of the completed utility permit, including accepted plans, accepted TCP, insurance and other required attachments at the accommodation work site at all times. All such documents and all the utility accommodation work shall be subject to Department review at all reasonable times.

2.3.1.2 Permittee shall not proceed with any work covered by a conditional permit pursuant to Section 2.2.3.5 without express written Department permission.

2.3.1.3 An approved permit will specify the completion date for all the accommodation work, which work shall include final cleanup. The permittee shall not perform any work after that date without the prior written Department approval. A permit shall expire automatically if the construction work approved therein has not commenced within the timeframe established in the permit or approved time extensions(s).

2.3.1.4 The permittee shall provide notice to the Department at the following times:

2.3.1.4.1 at least two working days prior to commencing work, or resuming operations which have been suspended for five or more consecutive working days; and

2.3.1.4.2 promptly upon completion of the work; or

2.3.1.4.3 when otherwise specified in the permit or as ordered by the Department.

2.3.1.5 The Department may designate an inspector during permit operations, to assist with coordinating the work and inspect the work during progress and upon completion.

2.3.1.6 The Department shall determine the extent of necessary inspection services.

2.3.1.7 Remediation of any unacceptable work under the approved permit shall be as ordered by the Department and completed in a timely manner prior to any further work, as determined by the Department.

2.3.1.8 The permittee shall attend a final site inspection, as directed by the Department.

2.3.1.9 The permittee shall comply with all requirements related to the performance of planned or ongoing highway construction work in the same area of the SH ROW, in order to coordinate the performance of any such work and minimize public inconvenience and cost.

2.3.1.10 When utility operations encounter areas of previously unknown historical or ecological significance, the permittee shall immediately avoid any further disturbance thereof, and shall promptly notify and follow any subsequent Department and/or other applicable Federal, State or local agency rules and regulations.

2.3.1.11 If utility operations cause or observe hazardous materials spills or unauthorized discharges, the permittee shall immediately notify the Department and any other interested Federal, State and local agencies. If the utility construction causes an unauthorized discharge that may potentially enter into the Department's Municipal Separate Storm Sewer System (MS4), operations must cease until the discharge has been properly contained and the appropriate corrective measures have been implemented. An unauthorized discharge is any discharge to a municipal separate storm sewer that is not composed entirely of stormwater, CDPS permitted discharges and allowable non-stormwater discharges.

2.3.1.12 If utility operations are not being carried out in compliance with the terms and conditions of the permit, the Department shall order the utility to perform whatever corrective measures are necessary to attain compliance. If there is an imminent danger to the public's health, safety or welfare, the Department shall order the utility to cease all operations, and if necessary, to remove all equipment and facilities from the SH ROW.

2.3.1.13 If no permit has been issued for utility work in the SH ROW, the Department shall order the utility to immediately cease all operations until such time as a permit is obtained. If deemed by the Department to be necessary for the public's health, safety or welfare, the Department shall order the utility to remove all equipment and/or facilities from the SH ROW. The permit issued for the work may include whatever terms and conditions necessary to correct any improperly performed work and attain Code compliance.

2.3.2 Plan Revisions or Altered Work

2.3.2.1 The permittee shall not revise the plans or methods of performing the work covered in the permit without prior written Department permission.

2.3.2.2 The permittee shall promptly notify the Department of any desired changes, or if site conditions are encountered which may require changes.

2.3.2.3 The Department may accept and/or order minor changes in the plans and/or methods that are within the scope of the existing permit.

2.3.2.4 The permittee must apply for, and receive a new or revised permit before performing any major change(s) in the work. Permittee will be required to provide the Department with "As-Constructed" plans when alterations are made as per Section 3.3.4.6 herein.

2.3.3 Operation and Maintenance

2.3.3.1 The permittee shall operate and maintain all utility facilities in SH ROW in accordance with the permit, either the initial permit or any subsequent individual or annual maintenance permit, and in a manner that does not impair traffic safety or unreasonably interfere with the operation and maintenance of the State highway or SH ROW.

2.3.3.2 A permit will describe the scope of work and conditions thereto, and of maintenance activities that may be performed without prior notice to and/or Department approval. The permittee shall provide written notice to, and if necessary obtain a new permit from, the Department before performing any maintenance not expressly covered in the permit.

2.3.3.3 The Department shall be given proper advance notice, as specified in the permit, whenever maintenance work will affect the movement and/or safety of traffic.

2.3.3.4 To determine if the permittee must obtain a new permit for maintenance activities, the Department shall consider all relevant factors, including: extent and duration of the work, traffic control requirements and required construction or excavation within SH ROW.

2.3.3.5 The permittee shall provide reasonable advance written notice before performing maintenance work which is confined to areas beyond the traveled way and contiguous shoulders, which does not require new excavation or construction, and which does not require the active control or rerouting of traffic, and temporary lane closures where utility facilities must be serviced from within the traveled way, provided that the traffic control plan in the original permit addresses such closures. Forty-eight (48) hours of notice is required for all non-emergency work requiring temporary lane closure(s).

2.3.3.6 Emergency repairs not affecting the movement or safety of traffic may be performed with reasonable notice to the Department as provided herein. The permittee shall notify the Department soon after the repairs are completed, and shall comply with the terms of the initial permit for the facility, as well as any subsequent permit issued to cover site restoration activities. If emergency repairs will affect the movement or safety of traffic, the permittee shall, before commencing such repairs, notify the Department and the appropriate law enforcement agency to coordinate traffic safety measures. The permittee shall notify the Department soon after the repairs are completed, and shall comply with the terms of the initial permit for the facility, as well as any subsequent permit issued to cover site restoration activities.

2.3.3.7 If the utility facility unreasonably interferes with or impairs any necessary highway function, the permittee shall, upon reasonable notice from the Department, shut off utility lines, remove combustible or hazardous materials from SH ROW, provide necessary temporary safeguards and take other appropriate actions as directed by the Department.

2.3.3.8 The permittee shall provide written notice to the Department and obtain written permission prior to any change in the carrying capacity of the utility's facility before implementing such change.

2.3.3.9 The permittee shall contact the Department immediately if, during any operation and maintenance procedure, an illicit discharge or improper connection is observed.

2.3.4 Safety Corrective Measures

2.3.4.1 The permittee shall promptly perform any corrective safety measures that the Department, after consultation with the utility owner and others, deems necessary to protect the public health, safety or welfare and has notified the permittee in writing thereof.

2.3.4.2 The permittee's performance of the safety corrective measures shall conform with the Code.

2.3.4.3 When the public health, safety or welfare require that any corrective measures be performed immediately, and if the permittee is unable or unwilling to take such action, the Department may perform those corrective measures, pending a determination of responsibility and an allocation of cost for that performance.

2.3.5 Utility Relocations Initiated by the Department

2.3.5.1 The utility shall relocate its existing facilities when the Department provides reasonable notice to the utility in writing that the relocation is necessary due to a transportation project or other transportation purpose. The notice shall include all available and relevant information including the Department's planned timeframe within which the utility relocation work must be completed. If the relocation of the company's facilities is necessitated by a transportation project, the Department shall provide written notice to the utility.

2.3.5.2 When the utility owner is required to relocate existing utility facilities, the utility owner shall assist the Department to develop schedules and alternatives concerning the new location of the facilities. The Department will consider the impact of new transportation projects on existing utilities during project development.

2.3.5.3 The utility shall relocate its facilities in compliance with all terms of the permit. The permit shall be prepared using the Department's prescribed forms.

2.3.5.4 The utility shall perform the relocation at or within a time convenient to, and in proper coordination with, the project or transportation-related activity, to minimize public inconvenience and cost, as directed by the Department.

2.3.5.5 Every permit shall be contingent upon and subject to the right of the Department to require the utility, upon reasonable written notice, to relocate facilities as necessary for any transportation purpose.

2.3.5.6 Relocations associated with Design-Build Contracts shall conform to the provisions of Part 14 of Article 1, Title 43, C.R.S.

2.3.5.7 Utility relocation cost responsibilities are described in Section 2.1.2.

2.3.6 Illegal or Nonconforming Installations or Activities

2.3.6.1 The utility owner shall, after receiving written notice from the Department: promptly remove any utility facility which was constructed, installed, revised or relocated without a utility permit or in violation of the terms of a permit after the effective date of the Code, immediately cease all unauthorized utility activities, promptly perform remedial actions to attain compliance with the terms and conditions of a permit that was issued after the effective date of the Code, and immediately suspend the permitted operation/maintenance of the facility when it is determined that the permittee has committed a deliberate and willful violation of the Code or permit and the public safety, health or welfare require emergency action.

2.3.6.2 Remedial actions, concerning utility accommodations that existed prior to the effective date of the Code, are subject to the provisions of Section 1.3.10.

2.3.7 Abandonment, Retirement, Change in Ownership

2.3.7.1 The utility shall notify the Department in writing of the planned inactivation of a facility or any portion thereof, including plans for removing the facility, or submit a request to retire or abandon the facility in-place.

2.3.7.2 The Department may allow a retired facility to remain in place. The retired facility shall remain the utility's sole responsibility, and is subject to all provisions of the Code and all terms and conditions of the permit issued for that facility, including maintenance and relocation requirements. The Department shall notify the utility in writing when the facilities may be retired in place, along with any applicable special conditions.

2.3.7.3 The utility shall promptly remove all abandoned facilities from the SH ROW and promptly restore the SH ROW to pre-existing or other conditions prescribed by the Department unless the Department in writing expressly allows the facility to remain in place. Written notice from the Department, allowing an abandoned facility to remain in place, may include special conditions.

2.3.7.4 In determining whether to allow abandoned or retired facilities to remain in place, the Department may consider such factors as: present or potential congestion of utility installations, highway construction and/or maintenance requirements, cost and/or difficulty of removal, presence of hazardous materials such as asbestos, the potential for the facilities removal by the Department at some future date, and traffic and/or safety requirements.

2.3.7.5 The Department will notify the utility in writing of the determination if and/or when the facilities must be removed.

2.3.7.6 If utility facilities are retired or abandoned in place, the Department may require the utility to: cap, plug or fill lines, furnish suitable location records for any such buried facilities, maintain records of such facilities and respond to locate notices and requests from the UNCC or others. In providing such services, the utility shall indicate to the requesting entity whether or not the subject facilities are retired or abandoned, perform any other actions as deemed necessary by the Department to protect the transportation facility or the traveling public.

2.3.7.7 When transferring ownership of utility facilities, both the original permittee and the new owner shall notify the Department in writing prior to the change, and such notice shall indicate the planned date of change. The notice from the new owner shall include a written statement accepting all terms and conditions of the existing permit, effective upon the planned date of ownership change.

2.3.7.8 Utility facilities containing asbestos shall not be retired in-place without the express written permission of the Department with the utility owner retaining full legal responsibility for the facilities.

2 CCR 601-18-2.0

43 CR 24, December 25, 2020, effective 1/14/2021