S.B. 78 Enrolled

UTILITIES IN HIGHWAY RIGHTS-OF-WAY
2000 GENERAL SESSION
STATE OF UTAH
Sponsor: Leonard M. Blackham
AN ACT RELATING TO TRANSPORTATION; PROVIDING CERTAIN DEFINITIONS;
AMENDING COST RESPONSIBILITIES FOR THE RELOCATION OF UTILITIES;
AMENDING PROVISIONS RELATED TO THE USE OF INTERSTATE HIGHWAY
RIGHTS-OF-WAY BY TELECOMMUNICATION PROVIDERS; CREATING AN ADVISORY
COUNCIL; MAKING TECHNICAL CORRECTIONS; AND PROVIDING AN EFFECTIVE
DATE.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
72-3-109, as renumbered and amended by Chapter 270, Laws of Utah 1998
72-6-116, as last amended by Chapter 325, Laws of Utah 1999
72-7-102, as last amended by Chapter 325, Laws of Utah 1999
72-7-108, as enacted by Chapter 325, Laws of Utah 1999
ENACTS:
72-7-109, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 72-3-109 is amended to read:
72-3-109. Division of responsibility with respect to state highways in cities and
towns.
(1) Except as provided in Subsection (2), the jurisdiction and responsibility of the
department and the municipalities for state highways within municipalities is as follows:
(a) The department has jurisdiction over and is responsible for the construction and
maintenance of:
(i) the portion of the state highway located between the back of the curb on either side of
the state highway; or
(ii) if there is no curb, the traveled way, its contiguous shoulders, and appurtenances.

(b) The department may widen or improve state highways within municipalities.
(c) (i) A municipality has jurisdiction over all other portions of the right-of-way and is
responsible for construction and maintenance of the right-of-way.
(ii) If a municipality grants permission for the installation of any pole, pipeline, conduit,
sewer, ditch, culvert, billboard, advertising sign, or any other structure or object of any kind or
character within the portion of the right-of-way under its jurisdiction:
(A) the permission shall contain the condition that any installation will be removed from the
right-of-way at the request of the municipality; and
(B) the municipality shall cause any installation to be removed at the request of the
department when the department finds the removal necessary:
(I) to eliminate a hazard to traffic safety;
(II) for the construction and maintenance of the state highway; or
(III) to meet the requirements of federal regulations.
(d) If it is necessary that a utility, as defined in Section 72-6-116 , be relocated [on a highway
eligible for federal aid], reimbursement shall be made for the relocation as provided for in Section
72-6-116 .
(e) (i) The department shall construct curbs, gutters, and sidewalks on the state highways if
necessary for the proper control of traffic, driveway entrances, or drainage.
(ii) If a state highway is widened or altered and existing curbs, gutters, or sidewalks are
removed, the department shall replace the curbs, gutters, or sidewalks.
(f) The department may furnish and install street lighting systems for state highways, but their
operation and maintenance is the responsibility of the municipality.
(g) If new storm sewer facilities are necessary in the construction and maintenance of the
state highways, the cost of the storm sewer facilities shall be borne by the state and the municipality
in a proportion mutually agreed upon between the department and the municipality.
(h) (i) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
department may make rules governing the location and construction of approach roads and driveways
entering the state highway.

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(ii) The department may delegate the administration of the rules to the highway authorities
of a municipality.
(2) The department has jurisdiction and control over the entire right-of-way of interstate
highways within municipalities and is responsible for the construction, maintenance, and regulation
of the interstate highways within municipalities.
Section 2. Section 72-6-116 is amended to read:
72-6-116. Regulation of utilities -- Relocation of utilities.
(1) As used in this section:
(a) "Cost of relocation" includes the entire amount paid by the utility company properly
attributable to the relocation of the utility after deducting any increase in the value of the new utility
and any salvage value derived from the old utility.
(b) "Utility" includes telecommunication, gas, electricity, cable television, water, sewer, data,
and video transmission lines, drainage and irrigation systems, and other similar utilities located in, on,
along, across, over, through, or under any state highway.
(c) "Utility company" means a privately, cooperatively, or publicly owned utility, including
utilities owned by political subdivisions.
(2) (a) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
department may make rules for the installation, construction, maintenance, repair, renewal, system
upgrade, and relocation of all utilities.
(b) [(i)] If the department determines under the rules established in this section that it is
necessary that any utilities should be relocated, the utility company owning or operating the utilities
shall relocate the utilities in accordance with this section and the order of the department.
[(ii)] (3) (a) The department shall pay 100% of the cost of relocation [in connection with the]
of a utility on a state highway [systems shall be paid by the department in all cases where: (A)
proportionate reimbursement of the cost may be obtained by the state of Utah from the United States
pursuant to the Federal-Aid Highway Act of 1956; and (B)] if the:
(i) utility is owned or operated by a political subdivision [whether or not federal
reimbursement may be obtained.] of the state; or

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(ii) utility company owns the easement or fee title to the right-of-way in which the utility is
located.
(b) Except as provided in Subsection (3)(a) or (c), the department shall pay 50% of the cost
of relocation of a utility on a state highway and the utility company shall pay the remainder of the cost
of relocation.
(c) This Subsection (3) does not affect the provisions of Subsection 72-7-108 (5).
[(3)] (4) If a utility is relocated, the utility company owning or operating the utility, its
successors or assigns, may maintain and operate the utility, with the necessary appurtenances, in the
new location.
[(4) The] (5) In accordance with this section, the cost of relocating a utility in connection
with any project on a highway [eligible for federal aid, or on the interstate system] is a cost of
highway construction.
[(5)] (6) (a) The department shall notify affected utility companies whenever the relocation
of utilities is likely to be necessary because of a reconstruction project.
(b) The notification shall be made during the preliminary design of the project or as soon as
practical in order to minimize the number, costs, and delays of utility relocations.
(c) A utility company notified under this Subsection [(5)] (6) shall coordinate with the
department and the department's contractor on the utility relocations, including the scheduling of the
utility relocations.
Section 3. Section 72-7-102 is amended to read:
72-7-102. Excavations, structures, or objects prohibited within right-of-way except in
accordance with law -- Permit and fee requirements -- Rulemaking -- Penalty for violation.
(1) As used in this section, "management costs" means the reasonable, direct, and actual costs
a highway authority incurs in exercising authority over the highways under its jurisdiction.
[(1)] (2) Except as provided in Subsection [(2)] (3) and Section 54-4-15 , a person may not:
(a) dig or excavate, within the right-of-way of any state highway, county road, or city street;
or
(b) place, construct, or maintain any approach road, driveway, pole, pipeline, conduit, sewer,

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ditch, culvert, billboard, advertising sign, or any other structure or object of any kind or character
within the right-of-way.
[(2)] (3) (a) A highway authority having jurisdiction over the right-of-way may allow
excavating, installation of utilities and other facilities or access under rules made by the highway
authority and in compliance with federal, state, and local law as applicable.
(b) (i) The rules may require a permit for any excavation or installation and may require a
surety bond or other security.
(ii) The application for a permit for excavation or installation on a state highway shall be
accompanied by a fee established under Subsection [(3)] (4)(f).
(iii) The permit may be revoked and the surety bond or other security may be forfeited for
cause.
(4) (a) Except as provided in Section 72-7-108 with respect to the department concerning
the interstate highway system, a highway authority may require compensation from a utility service
provider for access to the right-of-way of a highway only as provided in this section.
(b) A highway authority may recover from a utility service provider, only those management
costs caused by the utility service provider's activities in the right-of-way of a highway under the
jurisdiction of the highway authority.
(c) (i) A fee or other compensation under this Subsection (4) shall be imposed on a
competitively neutral basis.
(ii) If a highway authority's management costs cannot be attributed to only one entity, the
management costs shall be allocated among all privately owned and government agencies using the
highway right-of-way for utility service purposes, including the highway authority itself. The
allocation shall reflect proportionately the management costs incurred by the highway authority as
a result of the various utility uses of the highway.
(d) A highway authority may not use the compensation authority granted under this
Subsection (4) as a basis for generating revenue for the highway authority that is in addition to its
management costs.
(e) A utility service provider that is assessed management costs or a franchise fee by a

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highway authority is entitled to recover those costs. If the highway authority that assesses the
management costs or franchise fees is a political subdivision of the state and the utility service
provider serves customers within the boundaries of that highway authority, the management costs
may be recovered from those customers.
[(3)] (f) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
department shall adopt a schedule of fees to be assessed for [services provided] management costs
incurred in connection with issuing and administering a permit on a state highway under this section.
[The schedule of fees:]
[(a) shall reflect the cost of services provided; and]
[(b) may provide that the department bill for services reasonably incurred in connection with
each permit.]
[(4)] (5) Permit fees collected by the department under this section shall be deposited with
the state treasurer and credited to the Transportation Fund.
[(5) (a) Except as provided in Section 72-7-108 , the department may not collect any fee that
is not authorized in this section for utility access to a highway right-of-way.]
[(b) (i) A highway authority, other than the department, may not collect any fee that is not
cost-based for any utility access to a highway right-of-way.]
[(ii)] (6) Nothing in this section shall affect the authority of a municipality under Section
11-26-1 and Title 10, Chapter 1, Part 3, Municipal Energy Sales and Use Tax Act.
[(6)] (7) A person who violates the provisions of Subsection [(1)] (2) is guilty of a class B
misdemeanor.
Section 4. Section 72-7-108 is amended to read:
72-7-108. Longitudinal telecommunication access in the interstate highway system --
Definitions -- Agreements -- Compensation -- Restrictions -- Rulemaking.
(1) As used in this section:
(a) "Longitudinal access" means access to or use of any part of a right-of-way of a highway
on the interstate system that extends generally parallel to the right-of-way for a total of 30 or more
linear meters.

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(b) "Statewide telecommunications purposes" means the further development of the statewide
network that meets the telecommunications needs of state agencies and enhances the learning
purposes of higher and public education.
[(b)] (c) "Telecommunication facility" means any telecommunication cable, line, fiber, wire,
conduit, innerduct, access manhole, handhole, tower, hut, pedestal, pole, box, transmitting equipment,
receiving equipment, power equipment, or other equipment, system, and device used to transmit,
receive, produce, or distribute via wireless, wireline, electronic, or optical signal for communication
purposes.
(2) (a) Except as provided in Subsection (4), the department may allow a telecommunication
facility provider longitudinal access to the right-of-way of a highway on the interstate system for the
installation, operation, and maintenance of a telecommunication facility.
(b) The department shall enter into an agreement with a telecommunication facility provider
and issue a permit before granting it any longitudinal access under this section.
(i) Except as specifically provided by the agreement, a property interest in a right-of-way may
not be granted under the provisions of this section.
(ii) An agreement entered into by the department under this section shall:
(A) specify the terms and conditions for the renegotiation of the agreement[.];
(B) specify maintenance responsibilities for each telecommunication facility;
(C) be nonexclusive; and
(D) be limited to a maximum term of 30 years.
(3) (a) The department shall require compensation from a telecommunication facility provider
under this section for longitudinal access to the right-of-way of a highway on the interstate system.
(b) The compensation charged shall be:
(i) fair and reasonable;
(ii) competitively neutral;
(iii) nondiscriminatory;
(iv) open to public inspection;
(v) established to promote access by multiple telecommunication facility providers;

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(vi) established for zones of the state, with zones determined based upon factors that include
population density, distance, numbers of telecommunication subscribers, and the impact upon private
right-of-way users;
(vii) established to encourage the deployment of digital infrastructure within the state; [and]
(viii) set after the department conducts a market analysis to determine the fair and reasonable
values of the right-of-way based upon adjacent property values;
(ix) a lump sum payment or annual installment, at the option of the telecommunications
facility provider; and
[(viii)] (x) set in accordance with Subsection (3)[(c)] (f).
(c) (i) The compensation charged may be cash, in-kind compensation, or a combination of
cash and in-kind compensation.
(ii) In-kind compensation requires the agreement of both the telecommunication facility
provider and the department.
(iii) The department shall, in consultation with the Telecommunications Advisory Council
created in Section 72-7-109 , determine the present value of any in-kind compensation based upon the
incremental cost to the telecommunication facility provider.
(iv) The value of in-kind compensation or a combination of cash and in-kind compensation
shall be equal to or greater than the amount of cash compensation that would be charged if the
compensation is cash only.
(d) (i) The department shall provide for the proportionate sharing of costs among the
department and telecommunications providers for joint trenching or trench sharing based on the
amount of conduit innerduct space that is authorized in the agreement for the trench.
(ii) If two or more telecommunications facility providers are required to share a single trench,
each telecommunications facility provider in the trench shall share the cost and benefits of the trench
in accordance with Subsection (3)(d)(i) on a fair, reasonable, competitively neutral, and
nondiscriminatory basis.
(e) The market analysis under Subsection (3)(b)(viii) shall be conducted at least every five
years and any adjustments warranted shall apply only to agreements entered after the date of the new

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market analysis.
[(c)] (f) [Beginning October 1, 1999 and in] In accordance with Title 63, Chapter 46a, Utah
Administrative Rulemaking Act, the department shall establish a schedule of rates of compensation
for any longitudinal access granted under this section.
(4) The department may not grant any longitudinal access under this section that results in
a significant compromise of the safe, efficient, and convenient use of the interstate system for the
traveling public.
(5) The department may not pay any cost of relocation of a telecommunication facility
granted longitudinal access to the right-of-way of a highway on the interstate system under this
section.
(6) (a) Monetary compensation collected by the department in accordance with this section
shall be deposited with the state treasurer and credited to the Transportation Fund.
(b) Any telecommunications capacity acquired as in-kind compensation shall be used:
(i) exclusively for statewide telecommunications purposes and may not be sold or leased in
competition with telecommunication or Internet service providers; and
(ii) as determined by the department after consultation with the Telecommunications
Advisory Council created in Section 72-7-109 .
(7) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
department shall make rules:
(a) governing the installation, operation, and maintenance of a telecommunication facility
granted longitudinal access under this section;
(b) specifying the procedures for establishing an agreement for longitudinal access for a
telecommunication facility provider; [and]
(c) providing for the relocation or removal of a telecommunication facility for:
(i) needed changes to a highway on the interstate system;
(ii) expiration of an agreement; or
(iii) a breach of an agreement[.]; and
(d) providing an opportunity for all interested providers to apply for access within open

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right-of-way segments.
(8) (a) Except for a right-of-way of a highway on the interstate system, nothing in this section
shall be construed to allow a highway authority to require compensation from a telecommunication
facility provider for longitudinal access to the right-of-way of a highway under the highway
authority's jurisdiction.
(b) Nothing in this section shall affect the authority of a municipality under Section 11-26-1
and Title 10, Chapter 1, Part 3, Municipal Energy Sales and Use Tax Act.
(9) Compensation paid to the department under Subsection (3) may not be used by any
person as evidence of the market or other value of the access for any other purpose, including
condemnation proceedings, other litigation, or the application of rates of taxation or the establishment
of franchise fees relating to longitudinal access rights.
Section 5. Section 72-7-109 is enacted to read:
72-7-109. Telecommunications Advisory Council -- Membership -- Duties.
(1) As used in this section:
(a) "Council" means the Telecommunications Advisory Council created in this section.
(b) "Statewide telecommunications purposes" has the same meaning provided in Section
72-7-108 .
(2) (a) There is created within the department the Telecommunication Advisory Council
consisting of six members who represent:
(i) the governor's chief advisor on telecommunications;
(ii) the Public Service Commission;
(iii) the department;
(iv) the Utah Education Network;
(v) the Division of Purchasing and General Services within the Department of Administrative
Services; and
(vi) the Division of Public Utilities within the Department of Commerce.
(b) The members shall be appointed by the governor and confirmed by the Senate.
(3) (a) The members shall annually elect a chair from its members.

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(b) The council shall meet as it determines necessary to accomplish its duties.
(c) A majority of the council constitutes a quorum for the transaction of business.
(d) Members shall receive no compensation or benefits for their services.
(4) (a) The department shall provide staff support for the council.
(b) The council may request assistance from other technical advisors as it determines
necessary to accomplish its duties.
(5) The council shall:
(a) provide information, suggestions, strategic plans, priorities, and recommendations to
assist the department in administering telecommunications access to interstate highway rights-of-way
for statewide telecommunications purposes.
(b) assist the department in valuing in-kind compensation in accordance with Subsection
72-7-108 (3)(c);
(c) seek input from telecommunications providers and the public;
(d) coordinate and exchange information with other technology and telecommunications
entities of the state and its political subdivisions; and
(e) provide other assistance as requested by the department.
Section 6. Effective date.
This act takes effect on July 1, 2000.

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