Right of Way, Utility and Railroad Certification

General
Issues involving the need for right-of-way acquisition, railroad coordination and utility relocations are identified during the Preliminary Design phase and usually are involved with construction projects. Ideally, all right of way is acquired, utilities adjusted and all necessary coordination with affected railroads is completed before construction begins. This gives the contractor unrestricted access to the project and minimizes the potential for delays during construction. The
LGPM Guide
provides a discussion of exceptions to this timeline. Detailed information regarding right-of-way acquisition, railroad coordination and utility relocation is contained in
Chapter 6 – Right of Way and Utilities
and
Chapter 7 – Plans, Specifications & Estimate (PS&E) Development
.
Since the timing for obtaining railroad permits can be quite extensive, it is not recommended that any project proceed to advertisement for letting without all required railroad permits in hand. Federal-aid projects require a statement, often referred to as the railroad certification, from TxDOT and the LG confirming the appropriate railroad coordination has taken place. This statement is required for all federal-aid highway construction projects, including projects not involving a railroad.
Encroachments are features within the right of way that are privately owned. Encroachments may remain if approved in writing. Otherwise they must be removed before construction is completed and the work accepted.
“Buy America” provisions apply to utility relocations on all federal-aid or on-system state projects. This topic is described in more detail in
Chapter 7
of this Manual and the
LGPM Guide
.
Federal Requirements
  1. 23 CFR §635.307
    – Prior to authorization to advertise for receipt of bids, right-of-way clearance, utility and railroad work must be so coordinated with the physical construction that no unnecessary delay or cost for the physical construction will occur. Right-of-way clearance, utility and railroad work performed separately from the contract for the physical construction of the project are to be accomplished in accordance with provisions of the applicable federal regulation.
  2. 23 CFR §635.309
    – Requires a request for authorization to advertise for receipt of bids that include the following statements or certifications for all design-bid-build projects.
    1. Either all right-of-way clearance, utility and railroad work has been completed or all necessary arrangements have been made for it to be undertaken and completed as required for proper coordination with the physical construction schedules.
    2. Either all individuals and families have been relocated to decent, safe and sanitary housing or the state has made available to relocatees adequate replacement housing in accordance with the provisions of current FHWA directive(s). Additional required information is outlined.
    3. Either right of way has been acquired or will be acquired in accordance with the current FHWA directive(s) covering the acquisition of real property or that acquisition of right of way is not required.
    4. Statements relative to relocation advisory assistance and payments.
    5. The provisions of
      23 CFR §645.119(b)
      have been fulfilled where utility facilities are to use and occupy the right of way.
  3. 23 CFR §635.309(p)
    – Requires the following certifications accompany a request to authorize final design and construction for design-build projects.
    1. Either all right-of-way, utility and railroad work has been completed or all necessary arrangements will be made for the completion of right-of-way, utility and railroad work.
    2. If right-of-way, utility and/or railroad services are to be included as part of the design-builder’s scope of work, then the request for proposals document must include: (1) a statement concerning scope and current status of the required services; and (2) a statement requiring compliance with the
      Uniform Relocation and Real Property Acquisition Policies Act of 1970
      , as amended, and
      23 CFR Part 710
      .
  4. 23 CFR §710.403(a)
    – Requires all real property within a federal-aid facility to be devoted to highway use unless alternate use has been approved. Approval for encroachments to remain may be given only if the encroachment does not interfere with the safe, free flow of traffic.
State Requirements
  1. 43 TAC §15.56
    – Requires projects be designed in accordance with TxDOT procedures, standards and guidelines.
  2. Based on precedents set in case law, the state prohibits an encroachment to exist without formal agreements with the owner of the encroachment. For more information, see TxDOT’s
    Right of Way Manual, Volume 2, Chapter 5, Section 21
    .
Required Practices
In general, the LG is responsible for right-of-way, railroad and utility coordination. The
LGPM Guide
provides the required practices and the LG and TxDOT responsibilities associated with this coordination.