Senate Bill No. 195–Committee on Commerce and Labor

 

February 16, 2001

____________

 

Referred to Committee on Transportation

 

SUMMARY—Revises provisions governing issuance of certain permits to occupy or encroach upon state highways or rights of way. (BDR 35‑932)

 

FISCAL NOTE:            Effect on Local Government: No.

                                    Effect on the State: Yes.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to public utilities; requiring the director of the department of transportation to adopt regulations governing the issuance to certain public utilities of a permit to disturb, dig up, cross, encroach upon or use a state highway or right of way for certain purposes; requiring the director to approve or deny an application for such a permit within a certain period; prohibiting the director from imposing certain conditions upon the issuance of the permit; requiring the planning division of the department of transportation to design certain plans in a manner that ensures the efficient maintenance and use of certain facilities located within the boundaries of a state highway or right of way; authorizing certain public utilities to repair or maintain a facility without obtaining a permit from the director under certain circumstances; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1    Section 1. Chapter 408 of NRS is hereby amended by adding thereto

1-2  the provisions set forth as sections 2 to 5, inclusive, of this act.

1-3    Sec. 2.  As used in subsection 1 of NRS 408.100, subparagraph (2) of

1-4  paragraph (a) of subsection 1 of NRS 408.233, NRS 408.423 and section

1-5  5 of this act, unless the context otherwise requires, the words and terms

1-6  defined in sections 3 and 4 of this act have the meanings ascribed to

1-7  them in those sections.

1-8    Sec. 3.  “Facility” means any property used by a public utility to

1-9  provide services to the customers of the public utility, including, without

1-10  limitation, any pole, wire, cable, conduit, instrument, appliance, fixture

1-11  or equipment.

1-12    Sec. 4.  “Public utility” means:

1-13    1.  A telephone company or any other business that provides

1-14  telecommunication or related services to the general public;

2-1    2.  A person who engages in the business of supplying electric

2-2  distribution or transmission service;

2-3    3.  A person who owns, operates or controls a plant or equipment or

2-4  any portion of a plant or equipment within this state for the delivery or

2-5  furnishing of:

2-6    (a) Natural gas to other persons; or

2-7    (b) Water for business, manufacturing, agricultural or household use

2-8  or sewerage service for other persons; or

2-9    4.  A community antenna television company as defined in NRS

2-10  711.030.

2-11    Sec. 5.  1.  The director shall adopt regulations governing the

2-12  manner in which a public utility may submit an application for a permit

2-13  pursuant to the provisions of NRS 408.423.

2-14    2.  If a public utility submits to the director an application specified in

2-15  subsection 1, the director shall, within 10 days after the public utility

2-16  submits the application:

2-17    (a) Publish or cause to be published a notice of the application in a

2-18  newspaper of general circulation in the county in which the state

2-19  highway or right of way is located or, if there is no such newspaper, in a

2-20  newspaper of general circulation in this state; and

2-21    (b) If the department maintains a website on the Internet, post the

2-22  notice on that website.

2-23    3.  A notice published pursuant to the provisions of subsection 2 must

2-24  include the name of the public utility and a statement setting forth the

2-25  purpose for which the public utility submitted the application.

2-26    4.  The director shall approve or deny the application within 20 days

2-27  after it is submitted to him. If the director denies the application, he shall

2-28  notify the applicant of that fact in writing. The written notice must

2-29  include the reasons for denying the application.

2-30    5.  If the director fails to approve or deny the application within 60

2-31  days after it is submitted to him, the application shall be deemed

2-32  approved.

2-33    6.  The director shall not impose a condition upon the issuance of a

2-34  permit specified in subsection 1 that:

2-35    (a) Requires the facility for which the permit is issued to be installed,

2-36  improved, repaired or maintained in a capacity specified by the director;

2-37    (b) Requires the public utility to dedicate, donate or otherwise provide

2-38  a facility for another person or any public agency of:

2-39      (1) The Federal Government; or

2-40      (2) This state or any political subdivision or local government of

2-41  this state;

2-42    (c) Requires the public utility to provide to the department proof of

2-43  title to or any interest in any real property other than real property

2-44  owned, leased or used by the public utility;

2-45    (d) Limits the use of the facility; or

2-46    (e) Limits the number of applications for a permit that the public

2-47  utility may submit to the director pursuant to the provisions of NRS

2-48  408.423.

3-1    7.  A permit issued to a public utility pursuant to the provisions of

3-2  NRS 408.423:

3-3    (a) Confers upon the holder of the permit a license to occupy the state

3-4  highway or right of way to the extent of the interest of the state or the

3-5  department in the state highway or right of way; and

3-6    (b) Does not confer upon the holder of the permit any right or interest

3-7  in fee to the state highway or right of way.

3-8    8.  If the director issues a permit to a public utility pursuant to the

3-9  provisions of NRS 408.423, the public utility shall indemnify the state

3-10  and the department from any claim of or damage incurred by a person

3-11  claiming ownership or any other estate in fee of the state highway or

3-12  right of way.

3-13    Sec. 6.  NRS 408.100 is hereby amended to read as follows:

3-14    408.100  Recognizing that safe and efficient highway transportation is

3-15  a matter of important interest to all the people of [the] this state, and that an

3-16  adequate highway system is a vital part of the national defense, the

3-17  legislature hereby determines and declares that:

3-18    1.  An integrated system of state highways and roads and the efficient

3-19  use of state highways and rights of way for public purposes, including

3-20  the construction and maintenance of a facility, is essential to the general

3-21  welfare and economic progress of [the] this state.

3-22    2.  Providing such a system of facilities, its efficient management,

3-23  maintenance and control is recognized as a problem and as the proper

3-24  prospective of highway legislation.

3-25    3.  Inadequate highways and roads obstruct the free flow of traffic,

3-26  resulting in undue cost of motor vehicle operation, endangering the health

3-27  and safety of the citizens of [the] this state, depreciating property values,

3-28  and impeding general economic and social progress of [the] this state.

3-29    4.  In designating the highways and roads of [the] this state as provided

3-30  in this chapter, the legislature places a high degree of trust in the hands of

3-31  those officials whose duty it is, within the limits of available funds, to plan,

3-32  develop, operate, maintain, control and protect the highways and roads of

3-33  this state, for present [as well as for] and future use.

3-34    5.  To this end, it is the express intent of the legislature to make the

3-35  board [of directors of the department of transportation] the custodian of the

3-36  state highways and roads and to provide sufficiently broad authority to

3-37  enable the board to function adequately and efficiently in all areas of

3-38  appropriate jurisdiction, subject to the limitations of the constitution and

3-39  the legislative mandate proposed in this chapter.

3-40    6.  The legislature intends:

3-41    (a) To declare, in general terms, the powers and duties of the board , [of

3-42  directors,] leaving specific details to be determined by reasonable

3-43  regulations and declarations of policy which the board may [promulgate.]

3-44  adopt.

3-45    (b) By general grant of authority to the board [of directors] to delegate

3-46  sufficient power and authority to enable the board to carry out the broad

3-47  objectives [contained] set forth in this chapter.

3-48    7.  The problem of establishing and maintaining adequate highways

3-49  and roads, eliminating congestion, reducing accident frequency and taking

4-1  all necessary steps to ensure safe and convenient transportation on [these]

4-2  those public ways is no less urgent.

4-3    8.  The legislature hereby finds, determines and declares that this

4-4  chapter is necessary for the preservation of the public safety, the promotion

4-5  of the general welfare, the improvement and development of facilities for

4-6  transportation in [the] this state, and other related purposes necessarily

4-7  included therein, and as a contribution to the system of national defense.

4-8    9.  The words “construction,” “maintenance” and “administration” used

4-9  in section 5 of Article 9 of the constitution of the State of Nevada are broad

4-10  enough to be construed to include and as contemplating the construction,

4-11  maintenance and administration of the state highways and roads as

4-12  established by this chapter and the landscaping, roadside improvements

4-13  and planning surveys of the state highways and roads.

4-14    Sec. 7.  NRS 408.233 is hereby amended to read as follows:

4-15    408.233  1.  The primary responsibilities of the planning division are

4-16  to:

4-17    (a) Develop and coordinate balanced transportation policy and planning

4-18  which are consistent with the social, economic and environmental goals of

4-19  [the] this state. The plan must be designed to [meet] :

4-20      (1) Meet the present and future needs of [the] this state and local

4-21  areas of [the] this state for adequate, safe and efficient transportation

4-22  facilities and services at a reasonable cost to the taxpayer[.] ; and

4-23      (2) Ensure the efficient maintenance and use of facilities located

4-24  within the boundaries of state highways and rights of way.

4-25    (b) Coordinate local plans for balanced transportation facilities and

4-26  services and assist in application for federal grants which must be

4-27  submitted through an appropriate or designated state agency. The facilities

4-28  and services may include, but are not limited to, highways, pathways and

4-29  special lanes for bicycles, railways, urban public transportation and

4-30  aviation. The authority and duties of the department [with respect] relating

4-31  to aviation are limited to areas outside the jurisdiction of any airport

4-32  authority.

4-33    2.  The planning division, in cooperation with other state agencies and

4-34  with agencies of local government, shall:

4-35    (a) Establish planning techniques and processes for all modes of

4-36  transportation at an appropriate level, according to the requirements of

4-37  [the] this state and local areas of [the] this state.

4-38    (b) Prepare, revise when appropriate, provide supporting information

4-39  for and assist in carrying out the transportation plan by providing

4-40  assistance in the development of the department’s capital program for all

4-41  modes of transportation.

4-42    (c) Test and evaluate the policies, plans, proposals, systems, programs

4-43  and projects of the department within the framework of the goals of the

4-44  department.

4-45    (d) Conduct research in planning techniques, travel needs,

4-46  transportation potential for [the] this state, investigating, testing and

4-47  demonstrating methods and equipment suitable for application to the

4-48  problems of transportation facing [the] this state.

4-49    3.  The department shall not operate any railroad or airport.

5-1    Sec. 8.  NRS 408.423 is hereby amended to read as follows:

5-2    408.423  1.  [No] Except as otherwise provided in this section, a state

5-3  highway or right of way [may] must not be disturbed, dug up, crossed,

5-4  encroached upon or otherwise used for the laying or re-laying of pipelines,

5-5  ditches, flumes, sewers, poles, wires, approach roads, driveways, railways ,

5-6  facilities or for any other purpose, without the written permit of the

5-7  director . [, and then only] Except as otherwise provided in section 5 of

5-8  this act, all such work must be conducted in accordance with the

5-9  conditions and regulations prescribed by the director[. All such work must

5-10  be done] and under the supervision and to the satisfaction of the director.

5-11  All costs of replacing the highway in as good condition as [previous to its

5-12  being] before it was disturbed must be paid by the [persons] person to

5-13  whom or on whose behalf [such] the permit was given or by the person by

5-14  whom the work was [done.

5-15    2.  In case of] conducted.

5-16    2.  If an immediate necessity therefor[,] occurs, a city or town may dig

5-17  up a state highway without a permit from the director, or if an emergency

5-18  occurs that impairs the health and safety of the general public, a public

5-19  utility may repair or maintain a facility located within the boundaries of

5-20  a state highway or right of way without such a permit, but in such cases

5-21  the director must be first notified and the highway or right of way must be

5-22  replaced forthwith in as good condition as before at the expense of [such]

5-23  the city or town[.] or public utility.

5-24    3.  The department shall charge each applicant a [reasonable] fee for all

5-25  administrative costs incurred by the department in acting upon an

5-26  application for a permit, including any costs for the preparation and

5-27  inspection of a proposed encroachment. The fee must not exceed the cost

5-28  incurred by the department for acting upon the application.

5-29    Sec. 9.  NRS 408.487 is hereby amended to read as follows:

5-30    408.487  1.  In all cases of highways constructed, reconstructed or

5-31  improved under the provisions of this chapter which are located or

5-32  relocated over privately owned property the department may acquire, in the

5-33  name of the state, [either] in fee or in any lesser estate or interest, any real

5-34  property or interest therein and any personal property which it considers

5-35  necessary.

5-36    2.  The property which may be acquired for those purposes includes,

5-37  but is not limited to, real property, interests therein, improvements located

5-38  thereon and personal property for any of the following purposes:

5-39    (a) For rights of way for [both] present and future needs for highways of

5-40  all types, including highways constructed within towns and cities.

5-41    (b) For exchanging the property or interests therein for other property or

5-42  interests therein required for highway purposes to avoid the payment of

5-43  excessive compensation or damages.

5-44    (c) For sites on which to relocate structures which are within the right of

5-45  way of a projected highway.

5-46    (d) For sites for storage, communications and maintenance and for

5-47  administrative, recreational and historical purposes and necessary

5-48  appurtenances in connection with those sites.

6-1    (e) For the extraction of material, including rock quarries, gravel pits,

6-2  sand or earth borrow pits, or other roadway material[; also] , and to obtain

6-3  water from any source for any purpose which may be necessary [for the

6-4  construction and maintenance of] to construct and maintain the highways

6-5  and their appurtenances.

6-6    (f) For the culture and support of trees and other flora which will benefit

6-7  the highways in any way, including the increasing of the scenic beauty of

6-8  the highways.

6-9    (g) For drainage in connection with any highway.

6-10    (h) For the maintenance of an unobstructed view of any portion of a

6-11  highway [so as] to promote the safety of the traveling public.

6-12    (i) For the placement of directional signs and other signs, construction

6-13  of fences, curbs, barriers, and obstructions as may be necessary for the

6-14  safety and convenience of the traveling public.

6-15    (j) For constructing and maintaining highway cut and fill slopes.

6-16    (k) For public parks, playgrounds, recreational grounds and sites

6-17  adjoining highway or freeway rights of way , [;] acquisition of sites to

6-18  replace housing , [;] and acquisition and rehabilitation, relocation and

6-19  construction of housing to replace other housing acquired.

6-20    3.  For the purposes of subsection 2, the construction, improvement,

6-21  maintenance or repair of a facility by a public utility within the

6-22  boundaries of a highway or right of way that is located on property

6-23  acquired for a purpose set forth in that subsection shall be deemed to

6-24  serve a public purpose and to promote the health, safety and general

6-25  welfare of the residents of this state.

6-26    Sec. 10.  NRS 704.805 is hereby amended to read as follows:

6-27    704.805  1.  Any public utility may bring a civil action for damages

6-28  against any person who willfully and knowingly obtains, attempts to obtain

6-29  or solicits, aids or abets another to obtain any service provided by the

6-30  public utility by:

6-31    (a) Opening, breaking into, tapping or connecting with any pipe, flume,

6-32  ditch, conduit, reservoir, wire, meter or other apparatus owned or used by

6-33  another person;

6-34    (b) Bypassing any meter or other instrument used to register the

6-35  quantity consumed or supplied; or

6-36    (c) Altering, disconnecting, removing, injuring or preventing the action

6-37  of any meter or other instrument used to register the quantity consumed or

6-38  supplied,

6-39  and recover a sum equal to treble the amount of the actual damages, plus

6-40  all reasonable costs and expenses incurred by the public utility because of

6-41  that conduct, including the cost of equipment, investigating the matter and

6-42  expert witnesses and attorney’s fees.

6-43    2.  There is a rebuttable presumption that the person responsible for

6-44  payment for the delivery of the service of a public utility to any premises

6-45  caused or had knowledge of any act specified in subsection 1 if he:

6-46    (a) Is the occupant of the premises; or

6-47    (b) Has any access to the system for delivery of the service to the

6-48  premises.

7-1    3.  The presumption provided in subsection 2 only shifts the burden of

7-2  going forward with the evidence and does not shift the burden of proof to

7-3  the defendant.

7-4    4.  A person who willfully or negligently injures or destroys the

7-5  property of a public utility which is used in the actual production,

7-6  distribution or delivery of the service provided by the public utility is liable

7-7  to the public utility for the cost of the repair or replacement of the property

7-8  injured or destroyed, including the direct and indirect costs attributable to

7-9  the repair or replacement but subtracting the value, if any, of salvage.

7-10    5.  [Nothing in] The provisions of this section [abridges or alters] do

7-11  not abridge or alter any other right of action or remedy available to a

7-12  public utility before or after July 1, 1985.

7-13    6.  As used in this section[, “direct] :

7-14    (a) “Direct and indirect costs attributable to repair or replacement”

7-15  include, but are not limited to, costs for:

7-16    [(a)] (1) Labor;

7-17    [(b)] (2) Materials;

7-18    [(c)] (3) Supervision of employees;

7-19    [(d)] (4) Supplies;

7-20    [(e)] (5) Tools;

7-21    [(f)] (6) Taxes;

7-22    [(g)] (7) Transportation;

7-23    [(h)] (8) General and administrative expenses;

7-24    [(i)] (9) Allocable benefits for employees;

7-25    [(j)] (10) Allowances for meals; and

7-26    [(k)] (11) Any other related expenses.

7-27    (b) “Person” includes a government, governmental agency or political

7-28  subdivision of a government.

7-29    Sec. 11.  This act becomes effective upon passage and approval.

 

7-30  H