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Regulatory and Permitting Information Desktop Toolkit

Federal FHWA Utility Accommodation Process (3-FD-n)

It is in the public interest to allow developers access to rights-of-way on federal-aid or direct federal highways. The Federal Highway Administration (FHWA) will accommodate developers on federal highway rights-of-way provided certain conditions are met. 23 CFR 645.205(a).

“Direct federal highway projects” are defined as “those active or completed highway projects such as projects under the Federal Lands Highways Program which are under the direct administration of the Federal Highway Administration.” “Federal-aid highway projects” are defined as those active or completed highway projects administered by or through a state transportation department which involve or have involved the use of federal-aid highway funds for the development, acquisition or right-of-way, construction or improvement of the highway or related facilities, including highway beautification projects, landscaping and scenic enhancement.” 23 CFR 645.209.

Accommodation is only permitted if the developer is classified as a “utility.” “Utility” is defined as “…a privately, publicly, or cooperatively owned utility line, facility or system for producing, transmitting, or distributing communications, cable television, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with highway drainage, or any other similar commodity, including any fire or police signal system or street lighting system, which directly or indirectly serves the public.” 23 CFR 645.207.

FHWA Utility Accommodation Process Process

3-FD-n.1 to 3-FD-n.2 – Will the Project Require Transmission over a FHWA Right-of-Way?

If the project will require access over a FHWA right-of-way, then the utility is required to obtain permission.

3-FD-n.3 to 3-FD-n.4 – Is the Right-of-Way Grant for Highway Purposes Only?

If the existing right-of-way grant is only for highway purposes, then the utility will be required to obtain a separate right-of-way authority from the federal agency with jurisdiction over the land in question. The new right-of-way grant must allow for utility installation.

3-FD-n.5 to 3-FD-n.6 – Will the Project Require Access to a Federal-aid Highway Right-of-Way?

Each state department of transportation is required to submit an accommodation plan to the FHWA as to whether they will authorize utilities to use and occupy rights-of-way within Federal-aid highways. The state transportation departments will outline whether such occupancy is allowed in their state utility accommodation policy. If a Federal-aid highway is implicated in the project, then the utility should consult the state utility accommodation policy. The state utility accommodation policy will comply with the FHWA regulations outlined in CFR 645.201.

If the project requires access through a right-of-way located within a direct federal highway, then approval must be obtained from the FHWA. FHWA applies accommodation policies similar to those required on federal aid highway projects.

3-FD-n.7 – Review Proposed use of Right-of-Way for Safety

FHWA is required to determine whether the utility may use the right-of-way and maintain the necessary level of safety for the general public’s use of the highway. The nature and volume of traffic on the highway and the effect of joint use of the right-of-way will be carefully considered by FHWA. 23 CFR 645.209(a).

3-FD-n.8 to 3-FD-n.9 – Will Installation Affect the Movement or Safety of Traffic?

If installation of the utility project will affect the movement of traffic or traffic safety, then the utility is required to implement a traffic control plan and utilize traffic control devices as necessary to ensure the safe and expeditious movement of traffic around the work site. 23 CFR 645.211(j). The traffic control plan must comply with the standards outlined in the current edition of the “Manual on Uniform Traffic Control Devices” and 23 CFR 630.

3-FD-n.10 to 3-FD-n.11 – Does FHWA Approve Use of the Right-of-Way?

If use of the right-of-way will comply with safety requirements, then FHWA will approve the use. The utility must install transmission lines pursuant to FHWA requirements outlined in 23 CFR 645.209(b)-(c). If FHWA does not approve use of the right-of-way, then the utility will have to consider different project locations.

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