476.27 - PUBLIC UTILITY CROSSING -- RAILROAD RIGHTS-OF-WAY. - Iowa Statutes

476.27 PUBLIC UTILITY CROSSING -- RAILROAD RIGHTS-OF-WAY. 1. Definitions. As used in this section, unless the context otherwise requires: a. "Board" means the Iowa utilities board. b. "Crossing" means the construction, operation, repair, or maintenance of a facility over, under, or across a railroad right-of-way by a public utility. c. "Direct expenses" includes, but is not limited to, any or all of the following: (1) The cost of inspecting and monitoring the crossing site. (2) Administrative and engineering costs for review of specifications; for entering a crossing on the railroad's books, maps, and property records; and other reasonable administrative and engineering costs incurred as a result of the crossing. (3) Document and preparation fees associated with a crossing, and any engineering specifications related to the crossing. (4) Damages assessed in connection with the rights granted to a public utility with respect to a crossing. d. "Facility" means any cable, conduit, wire, pipe, casing pipe, supporting poles and guys, manhole, or other material and equipment, that is used by a public utility to furnish any of the following: (1) Communications services. (2) Electricity. (3) Gas by piped system. (4) Sanitary and storm sewer service. (5) Water by piped system. e. "Public utility" means a public utility as defined in section 476.1, except that, for purposes of this section, "public utility" also includes all mutual telephone companies, municipally owned facilities, unincorporated villages, waterworks, municipally owned waterworks, joint water utilities, rural water districts incorporated under chapter 357A or 504, cooperative water associations, franchise cable television operators, and persons furnishing electricity to five or fewer persons. f. "Railroad" or "railroad corporation" means a railroad corporation as defined in section 321.1, which is the owner, operator, occupant, manager, or agent of a railroad right-of-way or the railroad corporation's successor in interest. "Railroad" and "railroad corporation" include an interurban railway. g. "Railroad right-of-way" means one or more of the following: (1) A right-of-way or other interest in real estate that is owned or operated by a railroad corporation, the trustees of a railroad corporation, or the successor in interest of a railroad corporation. (2) A right-of-way or other interest in real estate that is occupied or managed by or on behalf of a railroad corporation, the trustees of a railroad corporation, or the successor in interest of a railroad corporation, including an abandoned railroad right-of-way that has not otherwise reverted pursuant to chapter 327G. (3) Another interest in a former railroad right-of-way that has been acquired or is operated by a land management company or similar entity. h. "Special circumstances" means either or both of the following: (1) The existence of characteristics of a segment of railroad right-of-way or of a proposed utility facility that increase the direct expenses associated with a proposed crossing. (2) A proposed crossing that involves a significant and imminent likelihood of danger to the public health or safety, or that is a serious threat to the safe operations of the railroad, or to the current use of the railroad right-of-way, necessitating additional terms and conditions associated with the crossing. 2. Rulemaking and standard crossing fee. The board, in consultation with the state department of transportation, shall adopt rules pursuant to chapter 17A prescribing the terms and conditions for a crossing. The rules shall provide that any crossing be consistent with the public convenience and necessity and reasonable service to the public. The rules, at a minimum, shall address the following: a. The terms and conditions applicable to a crossing including, but not limited to, the following: (1) Notification required prior to the commencement of any crossing activity. (2) A requirement that the railroad and the public utility each maintain and repair the person's own property within the railroad right-of-way, and bear responsibility for each person's own acts and omissions; except that the public utility shall be responsible for any bodily injury or property damage that typically would be covered under a standard railroad protective liability insurance policy. (3) The amount and scope of insurance or self-insurance required to cover risks associated with a crossing. (4) A procedure to address the payment of costs associated with the relocation of public utility facilities within the railroad right-of-way necessary to accommodate railroad operations. (5) Terms and conditions for securing the payment of any damages by the public utility before it proceeds with a crossing. (6) Immediate access to a crossing for repair and maintenance of existing facilities in case of emergency. (7) Engineering standards for utility facilities crossing railroad rights-of-way. (8) Provision for expedited crossing, absent a claim of special circumstances, after payment by the public utility of the standard crossing fee, if applicable, and submission of completed engineering specifications to the railroad. (9) Other terms and conditions necessary to provide for the safe and reasonable use of a railroad right-of-way by a public utility, and consistent with rules adopted by the board, including any complaint procedures adopted by the board to enforce the rules. b. Unless otherwise agreed by the parties and subject to subsection 4, a public utility that locates its facilities within the railroad right-of-way for a crossing, other than a crossing along the public roads of the state pursuant to chapter 477, shall pay the railroad a one-time standard crossing fee of seven hundred fifty dollars for each crossing. The standard crossing fee shall be in lieu of any license or any other fees or charges to reimburse the railroad for the direct expenses incurred by the railroad as a result of the crossing. The public utility shall also reimburse the railroad for any actual flagging expenses associated with a crossing in addition to the standard crossing fee. 3. Powers not limited. a. Notwithstanding subsection 2, rules adopted by the board shall not prevent a railroad and a public utility from otherwise negotiating the terms and conditions applicable to a crossing or the resolution of any disputes relating to such crossing. b. Notwithstanding paragraph "a", neither this subsection nor this section shall impair the authority of a public utility to secure crossing rights by easement pursuant to the exercise of the power of eminent domain. 4. Special circumstances. a. A railroad or public utility that believes special circumstances exist for a particular crossing may petition the board for relief. (1) If a petition for relief is filed, the board shall determine whether special circumstances exist that necessitate either a modification of the direct expenses to be paid, or the need for additional terms and conditions. (2) The board may make any necessary findings of fact and determinations related to the existence of special circumstances, as well as any relief to be granted. (3) A determination of the board, except for a determination on the issue of damages for the rights granted to a public utility with respect to a crossing, shall be considered final agency action subject to judicial review under chapter 17A. (4) The board shall assess the costs associated with a petition for relief equitably against the parties. b. A railroad or public utility that claims to be aggrieved by a determination of the board on the issue of damages for the rights granted to a public utility with respect to a crossing may seek judicial review as provided in subsection 5. 5. Appeals. a. A railroad or public utility that claims to be aggrieved by the board's determination of damages for rights granted to a public utility may appeal the board's determination to the district court in the same manner as provided in section 6B.18 and sections 6B.21 through 6B.23. In any appeal of the determination of damages, the public utility shall be considered the applicant, and the railroad shall be considered the condemnee. References in sections 6B.18 and 6B.21 to "compensation commission" mean the board as defined in this section, or appointees of the board. b. An appeal of any determination of the board other than the issues of damages for rights granted to a public utility shall be pursuant to chapter 17A. 6. Authority to cross -- emergency relief. Pending board resolution of a claim of special circumstances raised in a petition, a public utility may, upon securing the payment of any damages, and upon submission of completed engineering specifications to the railroad, proceed with a crossing in accordance with the rules adopted by the board, unless the board, upon application for emergency relief, determines that there is a reasonable likelihood that either of the following conditions exist: a. That the proposed crossing involves a significant and imminent likelihood of danger to the public health or safety. b. That the proposed crossing is a serious threat to the safe operations of the railroad or to the current use of the railroad right-of-way. If the board determines that there is a reasonable likelihood that the proposed crossing meets either condition, then the board shall immediately intervene to prevent the crossing until a factual determination is made. 7. Conflicting provisions. Notwithstanding any provision of the Code to the contrary, this section shall apply in all crossings of railroad rights-of-way involving a public utility as defined in this section, and shall govern in the event of any conflict with any other provision of law.          Section History: Recent Form 2001 Acts, ch 138, §1, 2; 2002 Acts, ch 1119, §62; 2004 Acts, ch 1049, §191; 2004 Acts, ch 1175, § 393