When the Governor announced formation of the 21st Century Infrastructure Commission almost two years ago, SEMCOG was very supportive of the effort. The basic concept that we need to do a better job of coordinating and cooperating when planning projects in the public right-of-way was an easy one for us to get behind.
There are numerous right-of-way issues, and each is extremely important in its own way:
- We need to do massive amounts of work on our roadways.
- We need to better document the location and condition of our buried public infrastructure including water, sewer, and stormwater systems.
- We are in the process of evolving our communication technology that includes buried lines, lines on utility poles, and wireless towers.
The challenge is that each infrastructure component comes with its own funding source, and decisions are made by multiple public and private entities on how and when construction is to take place. All too often, we are stumbling over each other in the right-of-way when an autonomous decision to replace one type of infrastructure disrupts another.
This is why SEMCOG is participating in a pilot project to collect information on road, water, sewer and stormwater lines in a common geographic information system (GIS) database. The idea is simple – if we are getting ready to do some major work on a roadway, we should know what needs to be done on the infrastructure that is buried underneath or next to that roadway as well. The last thing anyone wants to do is to dig up a relatively new road because a water line needs to be replaced.
SEMCOG is currently working with nearly 50 communities in the region to establish this common database. It’s the first step in creating a statewide database that will assist everyone responsible for infrastructure projects in making future financial decisions.
Only public infrastructure is included in the database at this point, but we know we must also include private data to maximize effectiveness. This would include natural gas, and electrical, phone/cable/internet lines -above or below ground-that are using the road right-of-way.
Anyone who has worked on a public infrastructure project understands that there are many situations where the placement of private infrastructure can cause problems. If a road is being widened, chances are good that the sewer and water lines need to be moved and private utility services must be relocated as well. This situation can create a lot of conflict, which is being reflected in recent discussions in the state legislature. Unfortunately, those discussions are pushing us further away from the elements necessary for an integrated use of the pubic right-of-ways.
House Bills 5096-5098 are currently being discussed in the House Communications and Technology Committee. The bills look to eliminate barriers to telecommunication and video providers when installing more lines in our state. However, in trying to achieve the short-term goal of installing this infrastructure, the bills ignore the long-term objective of organized right-of-ways. Under these bills, providers cannot be required to perform any kind of topographical, boundary, environmental, or other kind of survey, study, inspection, or analysis in connection with a permit to use the public right-of-way. Without basic planning, all kinds of problems can occur. What happens if drilling strays onto private property, or up to or under the road? What is the risk of drilling through a sewer or water line?
One of these bills requires local governments to notify cable or video providers at least one year in advance of a construction project that will require telecommunication lines to be moved. There is an exception if the construction is required due to an act of God or if you didn’t know money was available for the project a year out. In this case, the legislature is trying to instill the concept of keeping everyone informed of actions that could impact another user of the right-of-way, even if the legislation only requires that communication go in one direction. This also is an example of where a common database can be invaluable. But since the legislation does not require precise information, the local government may not know if the cable line is a problem until the digging begins.
The House bills also focus on limiting fees charged for inspecting the lines. Under the current law, fees are restricted to amount to no more than the cost associated with the inspection, and local governments may not profit from any fees collected for inspections. The new legislation would severely limit the amount that is collected, which means that the community taxpayers must make up the difference, as opposed to those who use the service.
In addition to the House bills, the Senate is considering bills that deal with the use of the public right-of-way. Senate Bills 636 and 637 were scheduled for a hearing last week. SB 636 is similar to the House bill that prohibits the requirement that surveys or other studies be performed for a permit.
SB 637 deals with small wireless communications facilities deployment as wireless technology is evolving. While there will still be tall cell towers, the future may involve many more cells that are located much closer to the ground. These new small wireless devices-described as being about two feet tall and a foot wide-will likely be much more prevalent around our landscape than current cell towers. Some believe that these new devices may be a part of autonomous vehicle control systems in the future, and a thoughtful change may be required in how they are regulated by local governments.
SB 637 set out to eliminate many of the local government requirements that these new small cell towers must follow, including any zoning approval process. The legislation views the approval process for these new devices to be similar to the minimal approvals needed to place a new electrical pole, in contrast to the lengthier process for current cell tower approvals.
In addition, the legislation takes further steps to allow these devices to be placed on public utility poles, such as street lights. Once again, state and local governments must consider that evolving technology bears new considerations. Remember when local governments required permits for satellite dishes when they were six feet in diameter and located in the backyard? They later found that the basis for the ordinance held little meaning when the “dish” shrank to 12 inches and was located on a roof or the corner of the house.
SB 637 may loosen the strings a bit more than what is comfortable for local governments. Again, the ability to collect inspection fees is being tightly restricted. While local governments are expected to offer the use of their assets at no cost to the private sector, there are restrictions in the law that will prohibit local government from requesting that the private company offer some services to benefit the community in return.
In yet another example of administrative procedures working against an asset management approach, the Department of Environmental Quality has floated an outline of a new lead and copper rule for public water systems. Given the Flint crisis, the DEQ wants to get the “lead out” of our water lines. The rules prescribe a timeline by which local governments must identify lead or copper water pipes that use lead solder at the joints within the public system. The proposed rules go even further and require lead issues to be identified in lines on private property that travel from the water main to the home or building. The proposal would require local governments to replace these lines in a relatively short period of time. It is anticipated that these rules would cost local governments billions to implement.
These lines are generally buried under other infrastructure in urban areas. At a bare minimum, lines cross the roads for each house along a route. Virtually every downtown area is at risk of being excavated because of the presence of lead pipes or solder. Streets, curbs, and sidewalks could be torn up, even if they had been recently replaced. This could be required by the rule even if proper anti-corrosive water treatment has resulted in coated pipes that do not leach lead into the water supply.
For coordinated infrastructure concepts to have any meaning, we need to make sure that all users follow the same rules. Our right-of-ways are becoming much more congested, especially with private users. The state constitution anticipated the need for someone to take charge and maintain order in a congested world. Article VII Section 29 reads in part: “No person, partnership, association or corporation, public or private, operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any county, township, city or village for wires, poles, tracks, conduits, or other utility facilities, without the consent of the duly constituted authority of the county, township, city or village.”
Local governments are responsible for the public right-of-ways. That responsibility is becoming much more complicated.
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