>>> "Cathey, Cheryl L" <Cheryl.Cathey@illinois.gov> 11/9/2010 1:00 PM >>>
QUESTION:
A regulatory agency made the preliminary call that the Alaska DOT is an operator for work
authorized by a utility permit (sewer line installation in a state right-of-way unrelated to any
ADOT construction project). What mechanisms does your agency use such that your
agency is not deemed an operator under the construction general permit?
Background:
The Alaska DOT issued a utility permit to a local government for the installation of a
sanitary sewer system in a state right-of-way. Note that this work was NOT in
support of a state highway project. The City hired a contractor that apparently did
not satisfactorily manage sediment laden storm water at the site. Both the City and
their contractor received a notice of violation (NOV) from the state regulatory
agency (that has EPA’s delegated authority) for violations of the Clean Water Act.
What is interesting, and the reason for this poll, is that the state regulatory agency
(after discussion with the EPA) determined that the Alaska DOT meets the definition
of an Operator under the Construction General Permit and therefore should file a
NOI immediately for the CGP.
The Alaska DOT does not concur with this determination. The notion of being
deemed an Operator on several hundred SWPPP’s per year (for work unrelated to
the highway program) is not palatable or workable.
With that background, please advise if your agency has worked through the
challenge of being named an operator under the GCP for work authorized by a utility
permit that is not in support of a state transportation project. If so, please advise
how your agency worked through this challenge.
Indiana
Per our Legal Section, we don’t have to worry about such issues since we are not considered
an operator under Indiana’s Utility Statutes. NOIs are usually only filed before road
projects, not permits. This doesn’t mean that the issue won’t ever come up, but if it does
we should be covered, at least under current law.
This was a coordinated Permits/Utilities/Legal response.
If you have any additional questions, please give me a shout.
Bob
R.L. "BOB" Demuth
Manager Permit Section
IGC-North
100 N. Senate Ave Room N901
Indianapolis, IN 46204
317-234-6203 (Office)
317-519-1499 (Cell)
In Alabama, I am not aware of any time when the DOT was classified as an operator of a utility. The
language in our permit states that the utility has to handle erosion control and obtain all environmental
permits and be bonded for the work.
Robert G. Lee, P.E.
State Utilities Engineer
Alabama DOT
1409 Coliseum Blvd.
Montgomery, AL 36110
334.242.6155
---------------------------------------------------------------------------------------------North Carolina
Under the Merger 01process, NC permits all utility relocations on highway projects requiring NEPA and/or
standard Section 404 permit.
However, it is the utility company responsibility to secure all environmental required permits with regards
to encroachment (permit) submittals. The environmental permits are not made part of the utility company
encroachment submittal, review and/or approval by the NCDOT. As part of the NCDOT encroachment
approval process, special provisions or attached to the approved encroachment agreement indicating it’s
the utility company’s responsibility to secure all required permits.
If an acre or more is being disturbed as part of the utility installation, the NCDOT does require erosion
control plans to be provided by the utility company as part of their encroachment submittal.
Robert Memory, CPM
State Utility Agent
Utilities Unit
1555 Mail Service Center
Raleigh, NC 27699-1555
PH: 919-250-4128
FX: 919-250-4151
------------------------------------------------------------------------------------Texas Response:
Texas DOT has not encountered this issue to date, but has concerns as Texas has
approximately 15,000 utility permits a year.
thanks
jesse cooper
Jesse R Cooper, RPLS
MSU Section Director
ROW Division
TxDOT
(512) 416-2874
-------------------------------------------------------------------------------------------------
Washington State DOT incorporates the following language into its “Work By Utility” agreements:
For UTILITY work that requires permit coverage under the “CONSTRUCTION STORMWATER
GENERAL PERMIT - National Pollutant Discharge Elimination System and State Waste
Discharge General Permit for Stormwater Discharges Associated with Construction Activity”
(hereinafter “Construction Stormwater General Permit”), the UTILITY shall obtain said
permit coverage and shall comply with all requirements of the Construction Stormwater
General Permit. The UTILITY shall provide the STATE with documentation of coverage
under the Construction Stormwater General Permit within thirty (30) days of the date issued
by the State of Washington Department of Ecology. In the event that the STATE covers the
UTILITY work under the STATE’s Construction Stormwater General Permit coverage, the
UTILITY shall comply with all requirements of the Construction Stormwater General Permit
for the UTILITY work.
The UTILITY, on behalf of itself and its contractors, officers, officials, employees, and
agents, shall indemnify, hold harmless, and defend at its sole cost and expense the STATE,
its officers, officials, employees, and agents from any and all fines, costs, claims,
judgments, and/or awards of damages (to regulatory agencies, persons, and/or property),
arising out of, or in any way resulting from the UTILITY’s failure to (1) obtain coverage
under the Construction Stormwater General Permit for UTILITY work or (2) comply with the
Construction Stormwater General Permit’s requirements. Nothing in the Section is intended
to be construed as a requirement for an indemnification against the sole negligence of the
STATE.
Regards,
Ahmer Nizam
Manager - Utilities/Railroad/Agreements
HQ Design Office
Washington State Department of Transportation
PO Box 47329
Olympia, WA 98504-7329
(360) 705-7271
------------------------------------------------------------------------------------------New York State Highway Law requires: “The commissioner of transportation shall establish regulations
governing the issuance of highway work permits, including the fees to be charged therefore, a system
of deposits of money or bonds guaranteeing the performance of the work and requirements of
insurance to protect the interests of the state during performance of the work pursuant to a highway
work permit.” The relevant section of law in its entirety can be found at:
https://www.nysdot.gov/divisions/operating/oom/transportation-systems/traffic-operationssection/highway-permits/highway-law
NYSDOT’s utility highway work permit application may be found
at: https://www.nysdot.gov/divisions/operating/oom/transportation-systems/repository/perm32m.pdf
Insurance requirements indemnifying NYSDOT are contained in the following:
https://www.nysdot.gov/divisions/operating/oom/transportation-systems/repository/perm1.pdf
https://www.nysdot.gov/divisions/operating/oom/transportation-systems/repository/PERM17.pdf
Michael Mariotti, P.E.
Statewide Utilities Engineer
Statewide Value Engineering Coordinator
Statewide Rail Agreements Coordinator
Design Quality Assurance Bureau
tel.: (518) 485-8960
fax: (518) 457-6477
mmariotti@dot.state.ny.us
------------------------------------------------------------------------------------------------SCDOT has specific language in the encroachment permit issued to the utility company stating the utility
company is responsible for all stormwater permits and they for any issues which may arise with the
environmental agency.
Thanks,
Mark
---------------------------------------------------------------------------------Currently in Mississippi we require the Utility Company to obtain a Stormwater permit if one is required
for the work proposed that will affect our right of way. We ask for a copy of the permit issued by the
State Environmental Agency which is normally coverage under either the Small or Large Construction
General Permit. We also require submittal of an erosion control plan which must include both the area
of MDOT Rights-of-way affected and any adjacent property that could adversely affect our roadways or
drainage system. I agree with Alaska DOT that they should not be considered an operator for these
types of operations since the work is unrelated to the highway program. To my knowledge, the
Mississippi DOT has not been named an Operator thereby requiring coverage under a general permit for
encroachment type activities. If asked to do so, we would actively work to avoid this sort of
requirement. However, in an effort to avoid this sort of situation, we have made the MDOT permit
requirements more stringent by requiring submittal and subsequent concurrence of an erosion control
plan for any permitted activity that includes a disturbance of soil. We define the typical activities that
need erosion control plans as follows:
 Large Developments;
 Work that involves a significant disturbance of soil, particularly work involving significant
slope/grade changes;
 Major Utility installations;
 Construction activities including clearing, grading, filling and/or excavating
 All work that includes open trenching regardless of acreage disturbed.
I hope this information assists you. If you have any further questions, please let us know. Thanks, Celina
Celina M. Sumrall, P.E.
Assistant State Maintenance Engineer
Mississippi Department of Transportation
P.O. Box 1850, Jackson, MS 39215-1850
601-359-7111 (work)
769-233-4412 (cell)
601-359-7126 (fax)