§381. Use and occupancy of highways
A. When not inconsistent with the purposes of state highways, the chief engineer
may issue permits for the use and occupancy of the rights-of-way of state highways as
follows:
(1) For the installation, operation, and maintenance of underground pipes, conduits,
or cables along or across the highways for the purpose of transporting or conveying fluids,
telephone or telegraph messages, cable television signals, gases, or electric current for any
purpose.
(2) For the installation, operation, and maintenance of overhead cables, pipes,
conduits, or wires, together with appropriate supporting structures, for the conveying or
transporting of fluids, telephone or telegraph messages, cable television signals, or electric
current for any purpose.
(3) For the erection, operation, and maintenance of structures crossing the highway
over or beneath the traveled surface for the purpose of providing trans-communication for
vehicles, pedestrians, cattle, or railway rolling stock.
(4) For the erection, operation, and maintenance of structures for the shelter of
waiting passengers at designated transit stops of a public transit system, provided that the
municipality, parish, or other political subdivision which erects, operates, maintains, or owns
the structure or structures under permits issued hereunder shall indemnify the state and its
departments and agencies against any damage to any person or property which occurs as a
result thereof.
(5) If a permittee receives a permit or authorization from the department to locate
facilities within highway rights-of-way, said permittee may locate in the highway right-of-way and not be displaced by any entity other than the department, whether the department's
ownership is full or a servitude.
B. All such installations shall be in accordance with the best modern practice and
national underwriting standards and shall be so maintained. Permits shall be issued only to
owners of the facility and shall be nonexclusive. Installations which will interfere with the
proper operation and maintenance of highways are expressly prohibited.
C.(1) No installation may be made except upon the explicit condition that the owner
thereof shall, at no cost to the department, remove or relocate the facility when that is
necessary to permit the widening, relocation, or other improvement of the highway, when so
ordered by the chief engineer of the department or his duly authorized representative;
however, this condition shall not apply to the removal or relocation of municipally owned
utility installations located within the limits of the municipality in cases where the necessity
of such removal or relocation is created by the construction, repair, or improvement of an
interstate highway. In such instances the cost of removal or relocation shall be paid for by
the department, and such payment shall be deemed a valid use of funds appropriated or
otherwise made available to the department for highway purposes. Payment for such
relocation or removal of municipally owned utility installations shall be made only as to
projects in the process of construction on July 1, 1992, and projects begun thereafter. The
making of such payments shall be conditioned upon the availability of federal aid funds to
reimburse the department for such expenditures.
(2)(a) However, in such instances where a municipality, parish, or special district
created by or pursuant to law or a nonprofit water corporation or nonprofit gas district owns
a utility installation, and it is necessary to remove or relocate such installation for the
construction, repair, widening, relocation, or improvement of a state or an interstate highway,
and a public accountant, the Department of Transportation and Development, or the entity's
private certified public accountant, after an examination of the books of such municipality,
parish, special district, nonprofit water corporation, or nonprofit gas district, certifies that
unencumbered funds are not available out of the accumulated unreserved earnings generated
by the utility for payment for the removal or relocation of the utility installation, the
department may contract itself for the proposed work to the utilities.
(b)(i) "Unencumbered funds" as used in this Subsection shall not include an amount
equal to ten percent of the annual income from the utility that a municipality, parish, special
district, nonprofit water corporation, or nonprofit gas district is hereby authorized to set aside
as reserve. However, if the department contracts itself for the utility removal or relocation,
the municipality, parish, special district, nonprofit water corporation, or nonprofit gas district
shall henceforth be prohibited from locating a utility installation in any state-owned right-of-way until the municipality, parish, special district, nonprofit water corporation, or nonprofit
gas district reimburses the state for the cost of the removal or relocation. Notwithstanding
the foregoing provision, the Department of Transportation and Development may enter into
any contract allowing any municipality, parish, special district, nonprofit water corporation,
or nonprofit gas district to locate a utility installation in a state-owned right-of-way if the
contract is required by the public need.
(ii) The definition of unencumbered funds as used in this Section shall not be
applicable unless and until there is approval of the Federal Highway Administration of the
United States Department of Transportation.
(3)(a) The chief engineer, or his duly authorized representative is hereby authorized
to negotiate utility relocation agreements containing liquidated damages clauses, equal to .15
percent per day of the estimated utility's relocation costs, regarding delays caused solely by
the unjustifiable delinquency of a utility in the completion of relocation work. The chief
engineer, or his duly authorized representative, may decline the issuance of a permit to any
utility company that is unjustifiably delinquent in completing a relocation project and shall
continue to so decline until such a project is completed.
(b)(i) "Unjustified delinquency" as used in this Subsection shall not include delays
in the completion of relocation work caused by acts beyond the reasonable control of the
utility as provided in Item (ii) of this Subparagraph.
(ii) Should any delay be caused by the inability of the utility to complete its work in
a timely manner due to acts beyond its reasonable control, or due to any delays caused by
another utility, another contractor, or the department in the completion of relocation work,
and the delay cannot be estimated, then the affected relocation work of the utility shall be
suspended until the cause for the suspension is removed without incurrence of liquidated
damages as otherwise provided in this Subsection.
(iii) When the utility has resumed the delayed relocation work, such utility shall
complete its work within the calendar days as specified in the utility relocation agreement.
Should the utility fail to complete its work as specified in the agreement, such utility shall
be subject to the liquidated damages as provided in Subparagraph (a) of this Paragraph.
(4) Where existing lines are to be relocated and the utility company does not have
sufficient information of record to determine the location of its facilities, then the utility is
required to advise the department and fully cooperate with the department's contractor by
locating or exposing, if necessary, to enable the contractor to avoid or minimize damages
during construction.
(5) All nonmetallic utility lines installed or relocated within the highway right of way
by permit or otherwise will be provided with pipe locator wire or tape acceptable to the
department.
(6) The department shall use all practical means in consultation with utility operators
during the planning, design, and execution of highway projects to avoid the need for utility
relocation. The timeframe for operator response prior to the accrual of penalties shall be
determined through this consultation.
D. The assistant secretary for project delivery, or his duly authorized representative,
in consultation with the chief engineer may require a deposit in the form of a certified check
or other guaranty in a form and in an amount deemed by him to be necessary for the proper
protection of the state prior to the issuing of a permit when the installations require
excavations, or at other times when he believes a deposit or guaranty is necessary to protect
the department's interests.
E.(1)(a) Except for rural water districts, the assistant secretary for project delivery
or his duly authorized representative may also assess reasonable utility operator's annual
permit fees in connection with the issuance of permits. Such fees as determined by the
department shall not exceed the maximum fees as set in the following schedule:
Maximum Annual
Operator Type Customers Fee
Class 1 0 - 100 $ 20.00
Class 2 101 - 500 $ 50.00
Class 3 501 - 6000 $ 200.00
Class 4 more than 6000 $ 700.00
Operator of Transmission
Pipelines and Natural Gas
Gathering Systems $100.00/Parish
$1,500.00/Maximum (b) The above schedule shall not apply to longitudinal telecommunication facilities
operating within interstate or controlled access rights-of-way.
(2) The assistant secretary of project delivery or his duly authorized representative
may also assess reasonable operator's fees for rural water districts in connection with the
issuance of permits to defray the expense of inspections by the department's employees.
(3) As used in this Subsection, the term "rural water district" means a not-for-profit
entity whose purpose is to supply water to residents of rural, unincorporated areas which are
not served by parish or municipal water systems.
F. "Utility operator" as used in this Section shall mean any person, individual,
governmental agency, or political subdivision or its agent, joint venture, firm, partnership,
association, or corporation, including telephone or telegraph systems, fiber optic electronic
communication systems, cable television systems, natural gas and propane distribution
systems, or water or water systems, owning or operating a public utility which furnishes
service or material, or stores, transports, or transmits electric energy, steam, oil, gases, gas,
mixture of gases, petroleum, petroleum products, hazardous or flammable fluids, toxic or
corrosive fluids or gases.
G. All fees shall be deposited by the secretary of the Department of Transportation
and Development in the Right-Of-Way Permit Processing Dedicated Fund Account
established in the office of the treasurer pursuant to R.S. 48:381.1 and said fees shall be set
aside for the use of the Department of Transportation and Development to defray the
expenses of the right-of-way permit office connected with the issuance and processing
required for permitted activity within state roads and highways rights-of-way.
H. The secretary shall promulgate rules and regulations to effect the provisions of
this Section as they apply to the fees for utility rights-of-way.
I. The chief engineer, or his duly authorized representative, within the limitations
stipulated in R.S. 48:381 through 386, may issue such other regulations and impose such
other limitations as he believes are necessary and desirable.