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PAG LIN
1 1 Section 1. NEW SECTION. 476.27 CROSSING – RAILROAD
1 2 RIGHT-OF-WAY.
1 3 1. DEFINITIONS. As used in this section unless the
1 4 context otherwise requires:
1 5 a. "Cross" or "crossing" means the construction,
1 6 operation, repair, and maintenance of reasonably necessary
1 7 facilities over, under, or across a railroad right-of-way by
1 8 public utilities.
1 9 b. "Direct expenses" includes, but is not limited to, the
1 10 following:
1 11 (1) The cost of inspecting the crossing site before,
1 12 during, or after construction.
1 13 (2) Administrative costs including the costs of entering
1 14 the new crossing on the railroad's books, maps, and property
1 15 records.
1 16 (3) All document and preparation fees associated with the
1 17 crossing.
1 18 (4) The cost of flagging related to crossing activities.
1 19 (5) Other reasonable costs incurred due to crossing
1 20 activities.
1 21 c. "Railroad" means the owner, operator, occupant,
1 22 manager, or agent of a railroad right-of-way or such person's
1 23 successor in interest.
1 24 d. "Railroad right-of-way" means right-of-way or other
1 25 interest in real estate that is owned or operated by a
1 26 railroad corporation, including an interurban railway, its
1 27 trustees, or successor in interest; or which is occupied or
1 28 managed by or on behalf of such corporation, trustees, or
1 29 successor in interest, including an abandoned railroad right-
1 30 of-way which has not otherwise reverted pursuant to chapter
1 31 327G; or other interest in a former railroad right-of-way that
1 32 has been acquired or is operated by a land management company
1 33 or similar entity.
1 34 e. "Special circumstances" means unique characteristics of
1 35 a parcel of property which materially increase the direct
2 1 expenses and damages associated with a crossing, or situations
2 2 in which a crossing involves a significant and imminent
2 3 likelihood of danger to the public health or safety, or is a
2 4 serious threat to the safe operations of the railroad or to
2 5 the current use of railroad right-of-way necessitating
2 6 additional terms and conditions associated with a crossing.
2 7 "Special circumstances" may include the parcel's relationship
2 8 to other property, the existence of unique topography or
2 9 natural resources, or other unusual characteristics or dangers
2 10 inherent in the particular crossing.
2 11 2. APPLICABILITY. Notwithstanding section 476.1 or any
2 12 other provision of this chapter which exempts a public utility
2 13 in whole or in part from regulation by the board, this section
2 14 applies to a public utility as defined in section 476.1 and
2 15 franchise cable television operators. This section is
2 16 applicable to both of the following:
2 17 a. A crossing existing on the effective date of this Act
2 18 if an agreement concerning such crossing does not exist, has
2 19 expired, or is terminated.
2 20 b. A crossing of a railroad right-of-way which crossing is
2 21 first constructed or operated on or after the effective date
2 22 of this Act.
2 23 3. RULEMAKING – CROSSING DAMAGES. The board shall adopt
2 24 rules pursuant to chapter 17A prescribing the terms,
2 25 conditions, and damages for a crossing. The rules shall
2 26 provide for a public utility to cross a railroad right-of-way
2 27 consistent with the public convenience and necessity, and the
2 28 provision of reasonable service to the public. However, the
2 29 rules shall not prevent a railroad and a public utility from
2 30 otherwise negotiating the terms and conditions covering a
2 31 crossing.
2 32 The rules shall address issues as the board deems
2 33 necessary, including both of the following:
2 34 a. The terms and conditions under which a public utility
2 35 may cross a railroad right-of-way. Such terms and conditions
3 1 shall include, but are not limited to, the following:
3 2 (1) A notice prior to the commencement of any crossing
3 3 activity, as well as relocation and removal activities
3 4 relating to public utility facilities located on railroad
3 5 right-of-way. The rules shall provide for immediate access to
3 6 a crossing for repair and maintenance of existing facilities
3 7 in case of emergency, provided notice is given as soon as
3 8 practical after such access occurs.
3 9 (2) A requirement that each party shall maintain and
3 10 repair its property within the railroad right-of-way.
3 11 (3) A requirement that each party shall determine the
3 12 amount and scope of insurance or self-insurance required to
3 13 cover risks associated with a crossing.
3 14 (4) A procedure to address the payment of costs associated
3 15 with the relocation of public utility facilities necessary to
3 16 accommodate railroad operations.
3 17 (5) Terms and conditions for securing the payment of any
3 18 damages by the public utility before it proceeds with
3 19 construction, but pending final determination of a claim or an
3 20 appeal pursuant to this section.
3 21 (6) Other terms and conditions necessary to provide for
3 22 the safe and reasonable use of a railroad right-of-way by a
3 23 public utility and consistent with rules adopted by the board.
3 24 b. The development of standard fees to cover the direct
3 25 expenses or damages of a railroad to be paid by a public
3 26 utility seeking to cross a railroad right-of-way. The fee
3 27 established by the board is intended to be a one-time charge
3 28 per crossing, however, the fee may be periodically reviewed by
3 29 the board.
3 30 4. DAMAGES UNDER SPECIAL CIRCUMSTANCES. If a railroad or
3 31 public utility believes that special circumstances exist for a
3 32 particular crossing, either party may petition the board for
3 33 relief. If a petition is filed, the board shall determine
3 34 whether special circumstances exist necessitating a
3 35 modification of the damages to be paid or the need for
4 1 additional terms and conditions. The board shall have the
4 2 authority to make all necessary findings of fact and
4 3 determinations related to the applicability of special
4 4 circumstances and any relief to be granted, and, except on the
4 5 issue of damages, its determination shall be considered final
4 6 agency action under chapter 17A. The board shall assess the
4 7 costs of administration of the requested action equitably
4 8 against the parties. A railroad or public utility that claims
4 9 to be aggrieved by such agency action may seek judicial review
4 10 as provided in subsection 5 or chapter 17A, as the case may
4 11 be.
4 12 5. APPEAL OF DAMAGES. A railroad or public utility that
4 13 claims to be aggrieved by the board's appraisement of damages
4 14 may appeal such appraisement to the district court in the same
4 15 manner as provided in section 6B.18 and sections 6B.21 through
4 16 6B.23. In any appeal of the appraisement, the public utility
4 17 shall be considered the applicant, and the railroad shall be
4 18 considered the condemnee. References in sections 6B.18 and
4 19 6B.21 to "compensation commission" mean the board as defined
4 20 in this chapter or appointees of the board. Unless
4 21 inconsistent with this section or the rules of civil
4 22 procedure, the appeal on the issue of damages shall otherwise
4 23 be conducted as provided in chapter 6B. An appeal for any
4 24 other issues shall be pursuant to chapter 17A.
4 25 6. AUTHORITY TO CROSS – EMERGENCY RELIEF. Pending board
4 26 resolution of a claim of special circumstances raised in a
4 27 petition, a public utility, upon securing the payment of any
4 28 damages, may proceed with the construction of a crossing in
4 29 accordance with the rules adopted by the board, unless the
4 30 board, upon application for emergency relief determines that
4 31 the proposed construction involves a significant and imminent
4 32 likelihood of danger to the public health or safety or is a
4 33 serious threat to the safe operations of the railroad or to
4 34 the current use of the railroad right-of-way, and necessitates
4 35 immediate intervention to prevent such crossing until a
5 1 factual determination is made.
5 2 EXPLANATION
5 3 This bill establishes a new Code section 476.27 relating to
5 4 public utilities crossing railroad rights-of-way. The bill
5 5 requires that the utilities board adopt rules prescribing the
5 6 terms, conditions, and damages for a crossing. The rules are
5 7 to provide for a public utility to cross a railroad right-of-
5 8 way consistent with the public convenience and necessity, and
5 9 the provision of reasonable service to the public. The bill
5 10 sets forth the issues which the board's rules are to address
5 11 including the terms and conditions under which a public
5 12 utility may cross a railroad right-of-way, and the development
5 13 of a standard fee to cover the direct expenses of a railroad
5 14 to be paid by a public utility seeking to cross a railroad
5 15 right-of-way which is to be a one-time charge per crossing.
5 16 The bill provides that the rules are not to prevent a railroad
5 17 and a public utility from otherwise negotiating the terms and
5 18 conditions covering a crossing. The bill provides for an
5 19 appeal process pursuant to Code chapter 17A if either the
5 20 railroad or the public utility believes that special
5 21 circumstances exist for a particular crossing. The bill
5 22 provides that the new Code section is applicable to existing
5 23 and future crossings.
5 24 LSB 5896SV 78
5 25 mj/cls/14.1
Text: SF02406 Text: SF02408 Text: SF02400 - SF02499 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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