Right-of-Way Management: Regulatory Authority, Tools, and Other Assembly Required

 Alicia Turner, GBA’s Lead in Municipal Utility Coordination, was featured in the August edition of the APWA Reporter Magazine. 

Has your community experienced a city-wide fiber build? How does your city regulate individuals or companies working in the right-of-way (ROW)? Is risk mitigation important to your city’s administrator or council members? With the correct tools, programs, and processes, ROW management can address these concerns.

Right-of-way management is often used to describe an internal program or process and is typically housed within the public works engineering department. This could include utility coordination, asset management, Geographic Information Systems (GIS), infrastructure maintenance, permitting systems, inspection, and right-of-way restoration. Communities with populations of more than 100,000 typically allow these activities to serve as stand-alone programs. On the other hand, smaller cities may define right-of-way management as a best practice or strategy within an existing division. Regardless of agency size or departmental role, right-of-way management can improve existing services or be the foundation for establishing new ones.

ROW managers are often considered an extension of the city engineer. With municipal or state laws in place, the city engineer can authorize a designated representative to act on their behalf. Extending that regulatory authority to a ROW manager or utility coordinator allows the city engineer to focus on projects and other priorities needing their attention throughout the city. In recent years, right-of-way management has become a recurring topic and point of discussion in response to the laws, state statutes, and federal regulatory rulings passed down by lawmakers. When new bills are introduced at the state and federal levels, decisions are made, and regulatory rulings are executed on behalf of “all” stakeholders. Unfortunately, there is evidence to support that some lawmakers, with limited understanding of the purpose and importance of preserving public right-of-way, are supporting and passing legislation that restricts and diminishes local government’s regulatory authority and their ability to govern, protect, and preserve in the interest of public health, safety, and welfare for all. Some communities feel these directives have resulted in an unfunded mandate on an already taxed community with limited budgets, resources, and staffing. Since the pandemic, most agencies nationwide have had to adapt and learn to evolve with the challenging new landscape our public works departments operate in. While a few government agencies have attempted to push back on these laws and rulings, in recent years, the Supreme Court ruled in favor of the Federal Communications Commission (FCC) to remove barriers to broadband deployment. In my opinion, and as a former right-of-way manager in a major metropolitan area, unprecedented rulings that limit local government’s ability to make decisions are a real cause for concern for those tasked with regulatory authority in our communities.

With so many activities associated with ROW management, I am often asked how to prepare an agency for the changes lawmakers have already executed and how to begin facing the challenges ahead. If a new utility provider comes into your community to provide services, is your staff prepared to handle the volume of work generated because of their build? Unforeseen damage to city infrastructure and the costs associated with those repairs will ultimately fall on the backs of the cities to address if proactive measures aren’t considered in advance. If the necessary tools and resources are not readily available, and the city’s municipal code is outdated, inadequately written, or unenforceable, it is likely your community will feel the costs and consequences of inadequate oversight during third-party construction for years to come. An effective ROW management program can set expectations and ground rules for building out city infrastructure. It can help the community recover costs associated with regulatory authority, such as administrative activities, oversight, and field services required for the installation of new infrastructure your city will be responsible for maintaining long-term. If your city has a ROW program already in place, congratulations; your community is already off to a great start! I recommend you evaluate your community’s current programs, policies, laws, and agreements. Consider looking at other communities of comparable size that have recently experienced a city-wide third-party build in the public right-of-way. The lessons learned from those experiences provided valuable insight into our program’s strengths and weaknesses.

Communities motivated to minimize identified weaknesses are also typically communities motivated to mitigate risk. The number one tool used to mitigate risk in public right-of-way is regulatory authority. It effectively maintains, enforces, and safely governs the operations of all users occupying or working in public right-of-way. It is arguably the most critical component of right-of-way management. That authority allows an agency to enforce statutes, develop regulations to law, and assist the public to comply with those authorities. After 20+ years in this industry and from my experience, it continues to be the greatest foundation for establishing or improving upon an existing right-of-way management program. Once that foundation has been established, your ROW management program can be customized however necessary to suit your community’s needs.

Discuss with leadership the importance of addressing these issues while taking into consideration community concerns, budgets, and the resource availability needed to proactively execute the next steps necessary to protect your city’s infrastructure, community values, and vision. Implementing a right-of-way management program takes time, patience, and a true commitment to improving your communities overall. Educating staff, leadership, and the governing body on the importance and value of right-of-way management is vital and a key component to program success. When leadership and the governing body understand the long-term benefits gained from this investment, multiple departments, residents, and the traveling public will all benefit from your city’s efficient services.