la-202609-cea49423cd: Department Relocation of Publicly Owned or Non-Profit Utilities

Department of Transportation and Development Office of Project Delivery Department Relocation of Publicly Owned or Non-Profit Utilities (LAC 70:II.Chapter 3) Notice is hereby given in accordance with the provisions of the Administrative Procedure Act, R.S. 49:950, et seq., and R.S. 48:381(C), and through the authority granted in R.S. 36:504, that the Department of Transportation and Development proposes to amend LAC 70: II. Chapter 3, Department Relocation of Publicly Owned or Non-Profit Utilities, Part II, Utilities, which governs the Department’s relocation of publicly owned or non-profit utilities and the provision of Utility Relocation Assistance Funding (URAF) when such utility is financially unable to bear its share of the cost of adjusting its facilities to accommodate a state highway project, including the financial information and certification an applicant utility must submit and the conditions under which the department may contract for the relocation work. The proposed amendments simplify these rules to comply with Plain Writing Act of 2010 (Public Law 111-274) for public understanding and clarify to remove unnecessary and obsolete regulations. Title 70 TRANSPORTATION AND DEVELOPMENT Part II. Utilities Chapter 3.Department Relocation of Publicly Owned or Non-Profit Utilities §301.Utility Relocation Assistance Funding A.The department shall pay to remove or relocate a utility installation when all of the following are true: 1.The utility installation is located on a state-owned right-of-way. 2.The utility installation is owned by a public municipality, parish or special district created by or pursuant to law or a non-profit water corporation or non-profit gas district. 3.The removal or relocation is necessary for the construction, repair, widening, relocation, or improvement of a state or an interstate highway. 4.Federal aid funds are available to reimburse the department for all costs it incurs in removing or relocating the utility installation. B.The department may contract itself, or through a separate public works contract, to complete the removal or relocation of a utility installation when all of the following are true: 1.The owner of the utility installation is a municipality, a parish, a special district created by or pursuant to law, a non-profit water corporation, or a non-profit gas district. 2.The removal or relocation is necessary for the construction, repair, widening, relocation, or improvement of a state highway or an interstate highway. 3.The owner of the utility is financially unable to pay its share of the cost of the removal or relocation. 4.After an examination of the owner of the utility’s financial accounts, a public accountant, the department, or the owner’s certified public accountant certifies that insufficient unencumbered funds are available to pay for the removal or relocation. 5.The owner of the utility installation agrees in writing, prior to the relocation of the utility installation, to allow the department, its contractor, or employees or agents thereof to modify the utility installation as part of the department’s construction project. 6.The owner of the utility installation agrees in writing, prior to the relocation of the utility installation, to accept ownership and maintenance of any utility installations newly constructed or modified as part of the department’s construction project, upon final acceptance of such construction project by the department. C.Procedure 1.The utility owner shall inform the appropriate district personnel, in writing that it is not financially able to pay the cost of removing or relocating its facilities and requests assistance. 2.The headquarters utility and permit engineer shall request the Department of Transportation and Development Audit Section to do an examination of the utility owner’s financial records to determine the utility owner’s eligibility for assistance. A public accountant, the department, or the utility owner’s certified public accountant may perform the examination. 3.DOTD’s Audit Section examines the utility owner’s records and informs appropriate department personnel of the utility owner’s eligibility for assistance. 4.If federal aid is anticipated for the project, the Federal Highway Administration is advised when URAF funds are approved for federal aid projects. 5.If the utility is eligible for assistance, agreements are executed between the owner of the utility and the department as necessary to facilitate the utility relocation. 6.If the utility owner does not qualify for assistance, the utility owner may request a second certification review. The department, at its sole discretion, will determine if a second certification review will be granted. The request for the second review should be addressed to the appropriate district utility specialist. 7.After the final amount of assistance is determined, the department shall bill utility owner in that amount. 8.Issuance of permits to the utility may remain suspended until the department notifies the utility and permit section that the utility owner has repaid the full amount to the department. The utility owner may repay this amount in the following ways: a.as a lump sum; b.in partial amounts; c.at the discretion of the department, an exchange for goods and/or services; d.or in any combination thereof. 9.The department shall make all necessary notifications of any payments as soon as they are received. The department shall also credit the Federal Highway Administration, at its participating percentage, for any funds that are repaid. D.Issuance of Permits 1.General issuance of permits may resume if the utility shows a good faith effort to repay this debt by making annual payments to the department of 5 percent of its gross income, or 10 percent of its outstanding URAF debt. The first payment must be made within one year of the date of invoicing of the utility owner by the department, and issuance of permits shall remain suspended until the first payment is made. The utility owner’s payments shall be due by January 15 of each year. The department may suspend issuance of permits to any utility that fails to submit payment by this date. Partial payments may be accepted as payment toward the total debt; however, issuance of permits may be suspended when a utility fails to make the required minimum payment. a.Exceptions. Since these options were not available prior to the promulgation of these rules, issuance of permits to utilities that have URAF agreements that were executed prior to January 1, 1993, may resume, if the utility begins to show a good faith effort to repay this debt, by making annual payments to DOTD of 5 percent of its gross income, or 10 percent of its outstanding URAF debt, by January 15, 1995. When issuance of permits is suspended because the utility failed to make the required minimum payment by the specified deadline, issuance may resume after the utility makes the minimum required payments on time for a period of three consecutive years, or by making a lump sum payment of 25 percent of the total remaining URAF funds owed to DOTD. 2.When in the best interest of the public, specific permits may be issued to utilities, without removing the general suspension, under the following circumstances: a.eminent danger to the public or to the highway as the result of a damaged or faulty facility that is located within highway right-of-way, such as: i.a leaking water or sewer line that is eroding the right-of-way; ii.a leaking or exposed gas line, at Department of Transportation and Development discretion, these facilities may be repaired or replaced with a similar facility of equal capacity; iii.insufficient right-of-way available to place distribution lines to serve properties adjacent to the highway. This may occur in highly urbanized areas where there is no room to place utilities between the edge of the highway right-of-way and an adjacent structure, and the adjacent property cannot be accessed through an alternate route. If the physical space is available, the utility shall use its expropriation rights to secure the necessary right-of-way for its facilities. E.This section applies to any and all qualifying utility relocations resulting from projects that receive federal or other required authorization after the effective date of this rule. Relocations resulting from projects authorized prior to that effective date remain governed by the rules in effect at the time of authorization. AUTHORITY NOTE:Promulgated in accordance with R.S. 48:381(C). HISTORICAL NOTE:Promulgated by the Department of Transportation and Development, Office of Engineering, LR 18:1415 (December 1992), amended by the Department of Transportation and Development, Office of Project Delivery, LR 52: §303.Additional Information to be Supplied by Applicants for Utility Relocation Assistance Funding (URAF) A.A copy of the utility owner's most recently completed audit report must be provided to the department. If no financial audit has been performed, the utility owner should initiate one. The certification process will not begin until this report is submitted. B.A copy of the utility owner's unaudited financial statements covering the period from the date of the last audited financial statements to the current date must be provided to the department. C.A copy of the utility owner's budget, including any amendments, for the current fiscal year must be provided to the department. D.A listing of encumbrances that are payable from the utility owner's current year earnings must be provided to the department. For the purpose of this certification, encumbrances are considered to be those items for which the utility owner has incurred an obligation to expend current year earnings, plus 10 percent of the current year's revenue as a reserve. E.A signed representation letter prepared on the utility owner's letterhead must be provided to the department. It must state: 1.that the utility owner is familiar with the provisions of R.S. 48:831; 2.that the utility owner has not violated any of the provisions of R.S. 48:381 in the past; 3.if the utility owner has received URAF assistance from the department in prior years, the utility owner must meet the following requirements: a.it must state that it has received prior URAF assistance; b.it must state that it has: i.not located facilities longitudinally in state highway right-of-way since last receipt of URAF assistance if a balance is outstanding; or ii.facilities have been placed longitudinally in highway right-of-way and URAF assistance have been reimbursed to the department. F.The utility owner is responsible for the presentation of the financial statements and other information provided and for insuring that the information is complete and accurate. G.The financial information provided must be taken from verifiable records. The budget information must be based on estimates derived from the financial statements. H.The utility owner must certify that it has no other unpaid obligations to the state of Louisiana. I.If the utility owner cannot provide the required audit for the URAF assistance, the utility owner may appeal to the department for review on a case by case basis, which entails a review of documentation with the Department of Transportation and Developments audit section. AUTHORITY NOTE:Promulgated in accordance with R.S. 48:381(C). HISTORICAL NOTE:Promulgated by the Department of Transportation and Development, Office of Engineering, LR 23:210 (February 1997), amended by the Department of Transportation and Development, Office of Project Delivery, LR 52: §305.Department Relocation of Publicly Owned or Non-Profit Utilities Repealed. AUTHORITY NOTE:Promulgated in accordance with R.S. 48:381(C). HISTORICAL NOTE:Promulgated by the Department of Transportation and Development, Office of Management and Finance, LR 42:2195 (December 2016), repealed by the Department of Transportation and Development, Office of Project Delivery, LR 52: Family Impact Statement In compliance with Act 1183 of the 1999 Regular Session of the Louisiana Legislature the impact of this proposed amendment on the family has been considered. The proposed amendments are not anticipated to have any foreseeable impact on any family as defined by R.S. 49:972(D) or on family formation, stability, and autonomy. Specifically, the implementation of the proposed amendments will have no known or foreseeable effect on: 1.The stability of the family. 2.The authority and rights of parents regarding the education and supervision of their children. 3.The functioning of the family. 4.Family earnings and family budget. 5.The behavior and personal responsibility of children. 6.The ability of the family or local government to perform his function. Poverty Impact Statement In compliance with Act 854 of the 2012 Regular Session of the Louisiana Legislature, the poverty impact of this proposed Rule has been considered. It is anticipated that these proposed Rule changes will have no impact on child, individual, or family poverty in relation to individual or community asset development as described in R.S. 49:973. Specifically, 1.The amendment of these rules will have no known or foreseeable adverse effect on household income, assets, and financial security. 2.The amendment of these rules will have no known or foreseeable adverse effect on early childhood development and preschool through postsecondary education development. 3.The amendment of these rules will have no known or foreseeable adverse effect on employment and workforce development. 4.The amendment of these rules will have no known or foreseeable effect on taxes and tax credits. 5.The amendment of these rules will have no known or foreseeable effect on child and dependent care, housing, health care, nutrition, transportation, and utilities assistance. Small Business Analysis The impact of the amendment of these rules on small businesses, as defined in the Regulatory Flexibility Act, has been considered. The proposed amendment of these rules is not expected to have a significant adverse impact on small businesses. The department, consistent with health, safety, environmental, and economic welfare factors, has considered and, where possible, utilized regulatory methods in amending these rules that will accomplish the objectives of the proposed statutes while minimizing the adverse impact of the rules on small businesses. Provider Impact Statement The amendment of these rules is not anticipated to have any known or foreseeable impact on a provider as defined by House Concurrent Resolution No. 170 of the 2014 Regular Session of the Louisiana State Legislature. Specifically: 1.The amendment of these rules does not have any known or foreseeable impact on the staffing level requirements or qualifications required to provide the same level of service. 2.The amendment of these rules does not have any known or foreseeable impact on the total direct and indirect effect on the cost to a provider to provide the same levels of service. 3.The amendment of these rules does not have any known or foreseeable impact on the overall effect on the ability of a provider to provide the same level of service. Public Comments Interested persons may submit written comments to Andrew Barry, General Counsel, Department of Transportation and Development, Office of General Counsel, P.O. Box 94245, Baton Rouge, Louisiana 70804-9245. Mr. Barry is responsible for responding to inquiries regarding this proposed Rule. The deadline for submitting written comments is at 4:30 p.m. on October 12, 2026. Public Hearing Interested persons may submit a written request to conduct a public hearing by U.S. mail to the Office of General Counsel, ATTN: Andrew Barry, General Counsel, P.O. Box 94245, Baton Rouge, Louisiana 70804-9245; however, such request must be received no later than 4:30 p.m. on October 12, 2026. If the criteria set forth in R.S. 49:961(B)(1) are satisfied, the Department of Transportation and Development will conduct a public hearing at 9:30 a.m. on October 27, 2026 in the Auditorium of the Department of Transportation and Development Headquarters, which is located at 1201 Capitol Access Road, Baton Rouge, LA. To confirm whether a public hearing will be held, interested persons should first call Andrew Barry at (225) 242-4665 after October 12, 2026. If a public hearing is to be held, all interested persons are invited to attend and present data, views, comments, or arguments, orally or in writing. Glenn Ledet, Jr. Secretary FISCAL AND ECONOMIC IMPACT STATEMENT FOR ADMINISTRATIVE RULES RULE TITLE: Department Relocation of Publicly Owned or Non-Profit Utilities I.ESTIMATED IMPLEMENTATION COSTS (SAVINGS) TO STATE OR LOCAL GOVERNMENT UNITS (Summary) The proposed rule change is not anticipated to have any costs or savings to state or local government units. The proposed rule change relocates and clarifies provisions that govern the relocation of publicly owned or non-profit utilities and the provisions of the Utility Relocation Assistance Funding (URAF). Further, the proposed rule change makes various technical changes to comply with the Plain Writing Act of 2010 for public understanding and removes unnecessary and obsolete regulations. II.ESTIMATED EFFECT ON REVENUE COLLECTIONS OF STATE OR LOCAL GOVERNMENTAL UNITS (Summary) The proposed rule change is not anticipated to impact state or local government revenue collections. III.ESTIMATED COSTS AND/OR ECONOMIC BENEFITS TO DIRECTLY AFFECTED PERSONS, SMALL BUSINESSES, OR NONGOVERNMENTAL GROUPS (Summary) The proposed rule change is not anticipated to impact individuals, small businesses, or non-governmental groups. IV.ESTIMATED EFFECT ON COMPETITION AND EMPLOYMENT (Summary) The proposed rule change is not anticipated to have any effect on competition or employment. Glenn Ledet, Jr.Patrice Thomas SecretaryDeputy Fiscal Officer 2609#028Legislative Fiscal Office