2 Del. Admin. Code § 2401-1.0

Current through Register Vol. 28, No. 5, November 1, 2024

Section 2401-1.0 - Introduction

1.1 Purpose and Objectives

1.1.1 The mission of the State of Delaware's Department of Transportation (DelDOT) is excellence in transportation every trip, every mode, every dollar, and everyone. DelDOT supports that mission by developing, constructing, and maintaining the State's infrastructure in a manner that results in a safe, cost-effective, and efficient multi-modal transportation network that enhances mobility commerce, and livability. Proficient management and utility installation design in close coordination with utility owners are essential to construct and maintain the transportation network safely and effectively.

1.1.2 The purpose of this regulation is to prescribe policies and procedures for adjusting, relocating, and accommodating utility facilities and private lines within the public right-of-way of DelDOT-maintained highways and streets, including any utility work related to highway project construction in the right-of-way of DelDOT-maintained streets and highways. These regulations establish guidelines that affect the relationship between DelDOT and any entities seeking to place utility facilities within the rights-of-way of highways and streets maintained by DelDOT.

1.1.3 This regulation has been prepared to accomplish the following objectives:

1.1.3.1 Provide standard arrangements to install permitted utilities along DelDOT maintained highways and relocate or maintain utilities due to DelDOT projects.

1.1.3.1 Minimize utility work delays and interference for DelDOT projects, highway contractors, or other utilities.

1.1.3.3 Prevent service disruptions, utility facility damage, and hazardous conditions.

1.1.3.4 Ensure standards, specifications, and environmental considerations are met.

1.1.3.5 Ensure proper performance and high-quality utility work, along with accurate and timely reimbursement to utility companies when appropriate.

1.1.3.6 Outline procedures and conditions for federal reimbursement when utility work is part of a federal-aid project.

1.1.3.7 Outline procedures and conditions necessary for state reimbursement of utility work when circumstances, agreements, and Delaware code govern.

1.1.4 The information in this regulation applies to all public and private facilities, including but not limited to electric power, telephone, communications, cable TV, lighting, water, natural gas, oil, petroleum, steam, chemicals, sewage, drainage, irrigation, and similar lines located along roadways that are maintained by or otherwise located within state highway rights-of-way under DelDOT's jurisdiction. Underground, surface, and overhead facilities - whether singular or in combination - are also covered by this regulation.

1.2 Statutory Authority

1.2.1 The Delaware Code provides DelDOT with the authority and responsibility to regulate the use of all utilities within rights-of-way of highways and streets maintained by DelDOT.

1.2.2 DelDOT has the legal authority to control the use of rights-of-way of DelDOT-maintained highways and streets.

1.2.3 The "Delaware State Highway Department" was established into law on April 2, 1917. Chapter 166 of the 1935 Code amended the original act that created the Highway Department. The legislature enacted additional amendments, including Title 17 of the Delaware Code, on February 11,1953. These were approved by the governor on February 12, 1953, and included all prior amendments as well. This act provides State of Delaware authorization to participate in acquiring rights-of-way, placing new utilities, and adjusting existing utilities.

1.2.4 Title 26 of the Delaware Code (1953) provides state authorization to control new installations of pipes, conduits, and wires above or beneath public roads.

1.2.5 Section 143, Title 17, of the Delaware Code established by law on January 16, 1962, made the state responsible for the entire cost of altering or relocating utilities within public highway rights-of-way when the utility facilities are owned or operated by a municipality, government body, or subdivision of the state when the altering or relocating of utilities is necessitated by highway construction, reconstruction, relocation, repair, or maintenance undertaken by DelDOT.

1.2.6 Section 132, Title 17, of the Delaware Code (1966) provides for the state to reimburse the owner for the expense of relocating public utility facilities for any project where the state is to be reimbursed at least 90% of the project cost from federal funds, by the federal government, or from any agency thereof. Such expense shall be the amount paid by the owner that is properly attributable to the relocation after deducting any increase in the new facilities' value and any salvage value derived from the old facilities.

1.2.7 Section 143, Title 17, of the Delaware Code, amended on June 29, 2004, allows DelDOT to negotiate alteration or relocation agreements with public utilities to improve efficiency and fairness.

1.2.8 The State of Delaware's Court of Chancery's 1963 opinion in Delaware Power & Light Co. v. Terry, 194 A.2d 553 (Del. Ch. 1963) forms the basis on which the state reimburses utility owners for the expense of relocating public utility facilities on rights-of-way for which they hold title or have permission or easement for occupancy, as necessitated by any project (Title 2 Transportation, 2400 Division of Transportation Solutions/2401 Utilities Manual Regulations). [A copy of the Court of Chancery's 1963 Decision, 194 A.2d 553 is provided in Appendix F, located at https://deldot.gov/Business/drc/manuals/utilities-manual-2022/appendix-f.pdf.]

1.2.9 Adherence to DelDOT's policies, practices, and procedures, along with the requirements described in the Regulation, shall be undertaken with full knowledge of and compliance with Chapter 8, Title 26, of the Delaware Code entitled Underground Utility Damage Prevention and Safety. DelDOT's commitment to protect public health and safety is essential and must always be maintained.

1.3 Construction and Location Requirements. DelDOT shall have the right to review and approve the detailed location and design of all utility installations, adjustments, or relocations affecting the highway rights-of-way and will issue permits for proposed utility work. Subsection 4.1 describes permitting requirements in further detail.

1.4 Exceptions to Requirements. The utility company shall submit any request for deviation from or exception to the standards described in this regulation to DelDOT. The request shall be in writing and must include full justification surrounding the hardship. The written justification and any other pertinent information shall be sent for coordination and comment to DelDOT's District Public Works Office for permit projects and the Utility Engineer for highway projects. The process for requesting an exception is outlined in subsection 5.8.

1.5 Grandfathering. If utility projects are bid to contractors, under construction, or there is a prior publication of a utility regulation update, those facilities are not required to meet the regulation's updated provisions. However, utilities shall abide by the most current version of this regulation any time work is performed in conjunction with existing or proposed facilities within the rights-of-way on highways and street maintained by DelDOT.

1.6 Transmittal of Information. When the utility companies are required to submit plans or other documents under this regulation, they shall submit electronic files directly to DelDOT. When utilities submit plans or other documents electronically, their systems and GIS databases must be compatible with DelDOT's system for electronic file transfer.

1.7 Sea Level Rise

1.7.1 In accordance with Exec. Order No. 41 (Sep. 12, 2013) (Gov. Markell), all state agencies must incorporate measures for adapting to increased flood heights and sea level rise in the siting and design of projects for construction of new structures and reconstruction of substantially damaged structures and infrastructure. Such projects must be sited to avoid and minimize flood risks that would unnecessarily increase state liability and decrease public safety.

1.7.2 Utility projects shall also incorporate measures to improve resiliency to flood heights, erosion, and sea level rise using natural systems or green infrastructure to improve resiliency wherever practical and effective, if the utilities are within an area mapped by the Department Of Natural Resources And Environmental Control (DNREC) as vulnerable to sea level rise inundation, the projects should be designed and constructed to account for sea level changes anticipated during the lifespan of the facility in addition to FEMA flood levels. Utilities should consider and incorporate the sea level rise scenarios set forth by the DNREC Sea Level Rise Technical Committee into appropriate long-range plans for infrastructure, facilities, land management, land use, and capital spending.

2 Del. Admin. Code § 2401-1.0

26 DE Reg. 618 (1/1/2023) (Final)