Chapter 5 - Stakeholder Management

The project development process requires the design team to coordinate their proposed solutions with numerous stakeholders throughout the life of the project. The performance of timely stakeholder coordination is invaluable as it can return critical information and offer unique perspectives that assist in identifying challenges and potential solutions and attainment of project buy-in and approvals when required. DelDOT describes its stakeholder coordination process as stakeholder management in recognition of the proactive approach the project team should adopt. This manual separates stakeholder management into four distinct components:

Identify stakeholders – The first step is to identify the people, groups, or organizations that could be impacted by or have an interest in the project. Each project will have a unique set of stakeholders that must be identified.
Plan stakeholder management – The next step in the stakeholder management process is to develop appropriate management strategies to effectively engage stakeholders throughout the project development process. This requires analyzing each stakeholder’s individual needs, interests, interdependencies, influence, and potential impact on project success.
Stakeholder engagement – Once a management plan has been created, the project team can implement their plan and begin communicating and working with the project stakeholders to meet their needs/ expectations, address issues as they occur, and foster a cooperative and engaging rapport. Stakeholder engagement is to be documented and saved appropriately in project files.
Monitor stakeholder engagement – The final step is to monitor the effectiveness of the project’s stakeholder management and to make adjustments as needed to ensure effective coordination.

This chapter categorizes several common groups of project stakeholders and highlights DelDOT’s preferred stakeholder management practices and procedures. In many cases, DelDOT has created subject matter expert support sections to help facilitate coordination with the stakeholders identified within this chapter. The design team is encouraged to coordinate their external stakeholder management activities through the subject matter expert support sections referenced throughout the chapter.

Project coordination will often times require the design team to provide files to project stakeholders. When applicable, the design team should be clear that the information that is being provided is subject to change and is further encouraged to place a transparent “DRAFT” watermark onto files when possible. Additionally, in cases where electronic design files are requested, it may be prudent to have the receiving party sign the electronic release form described in Section 5.10. Requiring a stakeholder to sign an electronic release form should be considered on a case-by-case basis depending on the information that is requested, the requesting entity, and the sensitivity of the requested information.

5.1 Public Engagement


Department Resources
Policy Implement O-03: Public Involvement Policy
Project Public Involvement Plan Worksheet
Policy Implement T-07: Safe Systems Approach
Strategic Highway Safety Plan website

Engaging with the public is a critical component of the project development process. Public engagement provides DelDOT an opportunity to disseminate project specific information and to solicit valuable input that can be used to refine proposed solutions to an identified transportation deficiency. Successful public engagement is achieved through a continuous process of activities and actions throughout the project development process. When performed properly, collaboration with the public can:

Provide information to the public regarding the purpose and need for a project,
Obtain different perspectives that can be incorporated into the decision-making process,
Empower the public to provide meaningful input,
Ensure that decisions consider and address public needs and preferences,
Build trust and meaningful relationships with community members that last beyond a single project,
Educate the public about the project alternatives and how the alternatives would meet the project’s purpose and need as well as their potential effect on the environment,
Provide information on the specific design constraints identified,
Provide a summary of how the project can be expected to impact the transportation network both during and after construction,
Inform the public on project schedules,
Increase the likelihood of producing public facilities which support community goals and that meet the needs of all modes of the travelling public, and
Solicit feedback while providing the public an opportunity to contribute input on all the above listed items.

The importance of performing public engagement is also recognized at the federal level with 23 CFR 450.210 and 23 CFR 771.111 requiring that state Departments of Transportation (DOTs) maintain documented public involvement procedures. DelDOT’s public involvement policy is contained within Policy Implement O-03 entitled DelDOT Public Involvement Policy. A key tenant of the federal requirements is that state DOTs provide early and continuing public engagement opportunities within the project development process. This early and continuing public engagement both encourages meaningful stakeholder participation and promotes cost-effectiveness as it ensures community values and needs are incorporated early in the project development process. Accordingly, the design team should take a proactive public engagement approach which includes developing a public involvement plan shortly after project initiation. The public involvement plan should be tailored to the individual project as reliance on a one-size-fits-all method of engagement is counterproductive to the goals of meaningful public involvement. DelDOT provides a standard Project Public Involvement Plan Worksheet to assist the design team in identifying and then developing the key components of their public involvement plan. The public involvement plan can include, but is not limited to, the following components:

Identifying public project stakeholders,
Documenting commitments made to stakeholders in previous project phases,
Defining key project messages,
Outlining the methods of stakeholder engagement to be employed,
Determining required engagement methods based on the National Environmental Policy Act (NEPA) class of action identified in the Initial Environmental Evaluation,
Establishing how public comments will be collected and addressed, and
Developing media outreach strategies where applicable.

The public involvement plan will be largely dependent on a project’s scope, number of stakeholders, complexity, issues of public concern, and the size and severity of its impact. The public involvement plan should be coordinated with DelDOT’s Division of Community Relations, as well as with DelDOT’s Environmental Stewardship Office (ESO) and Federal Highway Administration (FHWA) when necessary. After its initial creation, the public involvement plan should be periodically reviewed, especially following changes to the project scope, to determine if any revisions are necessary.

In accordance with Policy Implement T-07 entitled Safe Systems Approach, all public involvement documents utilized by DelDOT are required to include the calendar year statistics on Delaware’s traffic fatalities and information on the Safe System Approach. For weekly up-to-date statistics on traffic fatalities, charts are available on DelDOT’s Strategic Highway Safety Plan website. DelDOT’s Safe Systems Approach logo is provided on DelDOT’s website.

This section outlines the best practices and other associated considerations when planning and executing a project’s public involvement plan during the design phase of a project. It should be noted that this section does not cover DelDOT’s public involvement processes that occur prior to project initiation. More information on the public engagement strategies that DelDOT employs during the planning and programming phase, including for the development of the Capital Transportation Plan (CTP) and Long-Range Transportation Plan (LRTP), are included in Policy Implement O-03 entitled DelDOT Public Involvement Policy.

5.1.1 Project Initiation Letter


Department Resources
Public Involvement Initial Outreach Memorandum

Shortly after project initiation and before the start of any field survey activities, the design team should customize and then send DelDOT’s standard Public Involvement Initial Outreach Memorandum to all property owners and Homeowner Associations within or surrounding the logical project limits as well as to local municipalities and area legislators. The letter is intended to provide the project’s intended point of contact, a brief description of the project’s purpose and scope, a link to the project’s website, notification of potential upcoming site investigation activities that may be occurring in the near future, and an explanation of DelDOT’s right to enter private property to perform the necessary site investigations. In addition to this standard information, the project initiation letter can also be used to solicit public input on perceived transportation issues in the project area through use of either hard copy or online surveys. The project team is encouraged to file the project initiation letter distribution list so that it can be referenced and used as a starting point for future information distributions to the public.

5.1.2 Public Project Stakeholder Considerations

A public project stakeholder is any individual or entity with an interest or concern in a proposed action. DelDOT’s goal is to meaningfully engage with a broad spectrum of public project stakeholders that collectively represent the entire community. This engagement helps DelDOT understand stakeholder concerns, identify project opportunities, and explore alternatives in a collaborative way that serves to build public consensus. Public project stakeholders commonly include the following:

Property owners and/or residents,
Local businesses,
Civic and community associations,
Interest groups,
Public services including schools and hospitals,
Emergency responders,
Elected officials, and
Affected infrastructure users.

This subsection outlines DelDOT’s best practices and corresponding considerations associated with coordinating with various categories of public project stakeholders. Though considered a project stakeholder, coordination with public transportation operators is discussed in more detail in Section 4.6.

5.1.2.1 Legislative Coordination

Delaware has two statewide legislative bodies: the Delaware Senate and the Delaware House of Representatives. These two bodies are collectively known as the Delaware General Assembly. Members of the General Assembly are elected by constituents in legislative districts to represent them in matters of State government. Members of Delaware’s General Assembly are called legislators and can be classified as either a representative or a senator depending upon the legislative body they are a member of. Legislators can provide key insights into the districts they represent and provide an excellent mechanism for distributing information to the local population. DelDOT takes an active role in building strong relationships with legislators by providing them timely information about specific transportation projects and responding to their requests in an expedited manner. DelDOT utilizes a Legislative Liaison to facilitate coordination between DelDOT projects and legislators; all correspondences with legislators should be coordinated through DelDOT’s Legislative Liaison accordingly.

5.1.2.1.1 Legislative Briefings

Legislative briefings can be used to update legislators on project progress, which will allow them to keep their constituents informed. The briefings may be done either virtually or in-person based on the scope of the project as well as the legislator’s preference. Project Managers should offer to give legislative briefings at appropriate points in project development process which will vary based on the size, scope, complexity, and history associated with a project. Common milestones within the project development process to offer legislative briefings include before field survey work begins, during the alternatives analysis phase, during the preliminary design phase, and prior to any public workshop. The project team will also provide legislative briefings upon legislator request, ensuring they have the latest information to share with their constituents.

5.1.2.1.2 Quarterly Legislative Reports

DelDOT maintains a Quarterly Legislative Report (QLR) dataset that generates standardized legislative reports and populates information on to DelDOT’s project websites. During the design phase, these reports are typically generated quarterly, but they can also be generated on request and can be specialized for specific legislators or other purposes. These reports should be activated soon after project initiation, and prior to field survey work being performed. The QLR dataset is to be updated in coordination with DelDOT leadership once a month during both the design and the construction phase until the project is considered substantially complete.

5.1.2.1.3 Award Notification


Department Resources
Legislative Award Notification

The Project Manager should provide a notification to DelDOT’s Legislative Liaison by modifying DelDOT’s standard Legislative Award Notification form letter upon project award. The project team should coordinate on projects to be constructed through Indefinite Delivery / Indefinite Quantity (IDIQ) construction contracts to determine which team member should provide this notification when a work order is assigned to a contractor. The award notification should also be distributed by the design team to other key stakeholders, such as municipal officials. Additional information on developing and administering IDIQ contracts is included in Section 8.5.

5.1.2.2 Emergency Responders

DelDOT’s projects have the potential to affect all transportation network users including emergency responders who rely on it to provide critical services. As part of the project development process, the design team must consider a project’s potential impact to emergency operations within the project area. The design team should contact DelDOT’s Traffic Safety section and Division of Community Relations when it determines that a project’s potential effect should be coordinated directly with emergency responders. The design team along with the Traffic Safety section and Division of Community Relations will then work collectively to determine the coordination extent and methods in which the Emergency Services Community should be engaged during the project development process. The level of coordination required may range from simple notification and briefings to inclusion on other advisory committees or stand-alone emergency management services working group meetings. The factors that will dictate the level of coordination required include:

The scope of the project,
The nature and complexity of the work,
The need for partial or full roadway closures,
The proximity to emergency service facilities and hospitals, and
The proximity and schedules of other nearby projects and their associated scopes.

Once the appropriate level of coordination is determined, DelDOT will typically begin the coordination process by contacting the county’s Emergency Operations Center who will usually remain the primary emergency responder’s point of contact throughout the duration of the project.

5.1.2.3 Advisory Committees

The formation of stakeholder advisory committees can be beneficial on large, complex, controversial, or sensitive projects to directly obtain feedback and potentially recommendations, from a representative cross-section of stakeholders. The people who participate on the advisory committee may be selected at random, selected to represent a particular homogeneous group, or selected to provide expert opinion. If some form of an advisory committee was used in the planning phase prior to project development (whether organized by DelDOT, a metropolitan planning organization (MPO), or other agency), it is recommended that the group be maintained in the same or similar format during the design and construction phases. The design team should coordinate with the Division of Community Relations in cases where the design team believes that a new advisory committee should be formed during the design phase. The formation of an advisory committee during the construction phase of a project can also be considered for projects that are expected to involve major traffic impacts, and/or for groups of projects in the same area that will be in construction simultaneously.

A specific type of advisory committee called a Section 106 consulting party may be required when historic properties are affected by a project. Historic preservation requirements are discussed in more detail in Section 5.3.2.2.1.2.

5.1.2.4 Schools

Schools are a key stakeholder in the public engagement process. In addition to their primary function of providing educational services, schools typically act as a community center. Accordingly, school districts within the area of a project should be considered and coordinated with appropriately during the project development process. The coordination should focus on minimizing disruption to student transportation including bus services, walking facilities, and parent drop off as well as to other services offered to the community through the school.

5.1.2.5 Americans with Disabilities Act (ADA) Considerations

Title II of the Americans with Disabilities Act (ADA) requires that state and local governments provide individuals with disabilities an equal opportunity to benefit from all government programs, services, and activities. The project team must be cognizant of this requirement throughout the public engagement process. DelDOT’s ADA Title II Coordinator can be used as a resource to determine the ADA requirements associated with any individual component of a project’s public engagement process. Key considerations during the public engagement process include the following:

Public meetings – In-person meeting locations chosen must be accessible to all individuals, including those with disabilities. Virtual meetings must provide closed captioning and a call-in number. Notices provided in advance of the public meeting must utilize the latest Division of Community Relations language, notifying potential participants to request necessary accommodations/modifications in advance of the meeting.
Publicly available information – All material made available to the public must be provided in an accessible format. Among other requirements, all imagery must be provided with alternative text, and videos must be provided with narration.
Submitting comments – Consideration should be given to how comments can be submitted to DelDOT to ensure that all individuals are provided an opportunity to provide comments in a manner that is accessible to them.

5.1.2.6 Public Involvement for Traditionally Underserved Communities

Gathering public input from all affected users is critical to formulating transportation solutions that will meet the needs of all stakeholders. Unfortunately, government programs, policies, and activities have historically underrepresented, and in some cases, disproportionately affected several community groups. To ensure participation from all network users, it is vital that DelDOT and other transportation officials take proactive actions to engage these traditionally underserved populations.

Ensuring underserved populations have input into the transportation decision-making process requires a programmatic approach by the transportation agency. To this end, DelDOT has established inclusive practices and procedures within their public engagement strategies to ensure that these communities are properly engaged during the project development process. A key element of the engagement process that is performed at the project level is an investigation into the demographic data surrounding a project to understand the population groups that may be affected. This investigation is typically conducted at the project initiation phase by the Environmental Stewardship Office through use of the Initial Environmental Evaluation form discussed in more detail in Section 3.2.1.3. In cases where underserved communities are identified, the design team should coordinate with the Environmental Stewardship Office and DelDOT’s Division of Community Relations to determine appropriate strategies to employ to effectively engage these communities.

5.1.3 Public Engagement Methods


Department Resources
Public Engagement Frequently Asked Questions (FAQs)

Conducting meaningful public engagement requires that the project team seek public interaction at specific points in the project development process dependent on the project’s specific needs. The engagement methods used as well as their timing within the project development process should be considered during creation of the project’s public involvement plan. The first step in selecting the appropriate public engagement methods is determining the purpose and goal of the engagements. Once this is determined, the appropriate engagement methods for the project can be selected. Figure 5.1.3 provides a general guide on typical engagement methods for public outreach efforts based on project complexity and engagement purpose. Rarely will a project’s scope cleanly fit into the actions outlined in Figure 5.1.3. The project team must also consider the community’s characteristics to determine which engagement methods will be most effective and well received. Early consideration should also be given to the community’s primary language when developing public engagement material. Consequentially, there is no fixed public involvement format or schedule that can be applied to all projects. The most effective engagement methods to be employed must be determined on a project-by-project basis.

Figure 5.1.3 - Typical Engagement Methods

Figure 5.1.3 - Typical Engagement Methods

It is noted that an individual project may employ any combination of the engagement methods described within this section provided the federal requirements listed in Section 5.1.3.3.1 are met. It is often effective to layer engagement methods to ensure multiple avenues for the public to engage with the project team. This section outlines the engagement methods typically utilized by DelDOT and their corresponding considerations. All information prepared to supplement the public engagement method(s) chosen must be easy-to-understand, presented with non-technical language, and use clear visual aids.

The project team should always aim to be as transparent and forthcoming with information as possible while performing public engagement. Answers provided to inquiries are to be accurate and precise and are to avoid language that contains judgement, opinion, inaccuracies, conclusions, or other speculations. The message conveyed by the project team should be in words that the audience will understand. The project team should prepare for all planned public interactions by collectively anticipating what questions may come up during the engagement and by coordinating a consistent project team response. It is perfectly acceptable for the project team to not immediately have answers to all the public’s questions. In these cases, the project team is to collect the stakeholder’s contact information and is to follow up once the project team has an answer. DelDOT has developed a list of frequently asked questions (FAQs) that come up during the public engagement process as well as tips for responding to these frequently asked questions.

5.1.3.1 Project Websites


Department Resources
DelDOT’s Projects Webpage
DelDOT Website Standardized Information

Providing a project website is a relatively simple way of providing valuable information to the public as a project progresses. The project team is to consider creating a project website that will be located on DelDOT’s Projects webpage during the project initiation phase. When a website is desired to be created, it is typically generated automatically through the project number request process described in Section 3.3. Ideally, project websites should be created prior to the start of any field survey work.

DelDOT’s project websites utilize a common template and provides standardized information. Graphics and other additional content can be added at any point when they become available. Graphics placed on the project website typically include a colored depiction of the proposed transportation improvement transposed on top of aerial imagery with appropriately labeled roads and landmarks to help convey the project to the public. The graphics and other visual aids on the project website should be updated throughout the project development process when updated or new visualization aids are created. The design team should review the project website at every project submission milestone or every four months to ensure accuracy. Any materials conveyed to the public such as letters, handouts, workshop boards should include a Quick Response (QR) Code which will allow members of the public to access the project’s website quickly and conveniently.

Some projects may warrant the creation of a more complex and separate standalone website in addition to the website using the common DelDOT template. In such cases, additional coordination with DelDOT’s Division of Community Relations will be required.

5.1.3.2 Property Owner Meetings

Proactively meeting with individual or groups of affected property owners can be an extremely effective tool for the project team. The purpose of these meetings may vary, and may include an introduction to the planned activity, obtaining feedback on specific project features, a discussion of right-of-way and traffic impacts, or what to expect during construction. These meetings can give the project team a better understanding of the project’s purpose and need, provide an opportunity for the project team to explain potential project impacts, and allows the project team to obtain direct feedback and insight on the property owners’ concerns and wishes.

Determining the need for property owner meetings is typically left to the discretion of the project team; however, the project team should meet with all property owners that may be impacted significantly by an alternative prior to any public workshop. In these cases, the design team should coordinate with the Right-of-Way section to determine how contact should be made with the affected property owner. It is important to note that while the acquisition process, laws, and regulations may be discussed at this meeting, specific discussions of compensation cannot occur until the project’s Right-of-Way plans are finalized for all projects and NEPA is also completed for projects which use federal money. These discussions should only occur in the presence of a qualified member of DelDOT’s Right-of-Way section.

When the project team elects to conduct property owner meetings, it is ideal that they occur ahead of any planned public workshop so that the information exchanged as part of the property owner meeting can be incorporated into the material presented at the public workshop. For projects with extended schedules, it may be beneficial to perform subsequent property owner meetings after the initial property owner meetings, including when additional information needs to be exchanged during the design phase and potentially after award, to update residents.

It may also be necessary to convene small group meetings with multiple stakeholders who have similar specific issues or concerns that may not relate to the general public in the project area. A common group meeting that DelDOT will attend are community or homeowner association meetings when a project will have a direct impact on a community or have significant impacts on adjacent roadways either permanently or during the construction phase. Formation of a standing advisory committee as discussed in Section 5.1.2.3 may also be considered when a project will have a large impact to several communities or urban centers. Area legislators should be briefed and consulted prior to scheduling or attending any community meeting.

Property owner meetings will generally require the development of graphics which highlight and annotate specific elements of the project. As with other project-level graphics, these visualizations should provide a colored depiction of the proposed transportation improvement with an aerial background and appropriately labeled roads and landmarks to convey the project’s impact. Property owner meetings can be conducted at the project location, as a virtual meeting, or at a suitable venue located near the project.

5.1.3.3 Public Workshops


Department Resources
Documentation of Public Workshop Form

A public workshop is a meeting that is advertised and open to the public with the goal of providing information or soliciting feedback. Public workshops provide an opportunity for the public to engage in a free exchange of views and ideas and encourages public involvement in the decision-making process. Not all projects will require a public workshop. For some projects, providing information to the public through a project website or by other similar engagement methods may be sufficient. The type and frequency of public workshops will vary considerably from project to project and is highly dependent on the scope, number of stakeholders, size, complexity, issues of public concern, impacts, and in some cases the project’s funding source. All public workshops must be coordinated through DelDOT’s Division of Community Relations. The design team shall engage DelDOT’s Environmental Stewardship Office to coordinate any environmental related information that should be conveyed at that public workshop. Typical information presented at a public workshop includes the following:

The project’s purpose and need,
Project timeline,
Project alternatives under consideration or that were previously considered,
A description of the project’s design features,
The social, economic, cultural, environmental, and other impacts of the project,
The project’s consistency with the goals and objectives of any local urban planning efforts,
Previously obtained public feedback,
DelDOT’s relocation assistance program and right-of-way acquisition process,
DelDOT’s procedures for receiving both oral and written statements from the public,
Maintenance of traffic (MOT) planned during construction, and
The completed project’s anticipated impacts to travel times, roadway capacity, and infrastructure safety.

The project timeline presented at the public workshop should not be overly specific and allow for some schedule fluctuation. Materials presented at public workshops are to be made accessible to the public after the public workshop is held. This is typically done by posting the material to the project’s website. Additionally, a public comment period should be provided for 30 days after the public workshop. Public workshops conducted should be documented using DelDOT’s standard Documentation of Public Workshop form and filed for future reference.

Public workshops require frontend planning to ensure that the purposes of the meeting are met, and that valuable feedback is received. Considerations associated with public workshops are presented in the following subsections.

5.1.3.3.1 Federal Requirements

Public workshops may be required based on the scope of the project as well as the project’s funding source. 23 CFR 771.111(h)(2)(iii) requires one or more public hearings or the opportunity for hearing(s) for projects that:

Require a significant amount of right-of-way,
Substantially changes the layout or functions of connecting roadways or of the facility being improved,
Have a substantial adverse impact on abutting property,
Have a significant social, economic, environmental or other effect, or
When the FHWA determines that a public hearing is in the public interest.

The need for holding a public hearing is also directly related to the NEPA class of action as follows:

Environmental Impact Statement (EIS) – DelDOT projects will have at least one public hearing held during the public comment period on the Draft EIS (DEIS). The public hearing may be held no sooner than 15 days after the DEIS is available.
Environmental Assessment (EA) – All DelDOT projects that require an EA must offer the opportunity for a public hearing. This opportunity is to be advertised via the project website, any available project mailing/e-mail lists, and through at least one newspaper advertisement, for at least three weeks. A public hearing will be held if five or more individuals request it.
Categorical Exclusion (CE) – CE level projects are unlikely to require a public hearing. However, DelDOT may elect to provide a public hearing based on complexity of the project, public controversy involved with the project, or for other similar reasons.

Certain specific environmental impacts will also necessitate public meetings. Therefore, the need for and timing of public workshops should be closely coordinated with the Environmental Stewardship Office, the Division of Community Relations, and FHWA.

5.1.3.3.2 Format and Timing

A public workshop can be held in a variety of formats and can occur at various times within the project development process. The formats that DelDOT uses are described in the following subsections. The entire project team should collaborate to determine the time and the format that would be most beneficial to the project’s development. The optimal format and timing depend on numerous project specific factors. Elements to consider when determining the format and timing of public workshops include the following:

The project team must be cognizant of the federal requirements for holding a project-specific public workshop. The federal requirements for holding a public workshop are described in more detail in Section 5.1.3.3.1.
Consideration should be given to the number of workshops that will be required as part of the project development process. Knowing the number of workshops that will be held provides the project team a better understanding of when they should occur within the project development process to maximize workshop value.
- Small projects may only require one public workshop to make the public aware of the project and to solicit comments.
- Projects which will ultimately have several feasible alternatives which warrant presentation to the public for feedback will typically have multiple workshops. In these cases, an earlier workshop that is used to present alternatives is followed by a workshop that is used to present and solicit feedback on the alternative chosen.
- Very large and complex projects may require a public workshop at the very beginning of the project to explain the purpose and need of the project, future public involvement opportunities, the steps in the project development process, and the project’s overall schedule.
- Some projects may require multiple workshops to satisfy the environmental requirements described in Section 5.3. If timed strategically, one workshop may be used to satisfy multiple federal requirements, thereby reducing the number of required workshops.
The ideal timing of the public workshop is largely based on the level and type of information that the project team wishes to obtain through the public workshop.
- A public workshop at the earliest stage as possible is important on projects that are either controversial, have a degree of public opposition, have potential for substantial environmental impacts, or have a large effect on regional traffic patterns. A public workshop at this time provides an opportunity to involve the public in the upcoming project at the earliest possible point to obtain information on the project and roadway itself. These meetings should take place before the project design plans start to prevent the public perception that project staff have already decided the course of action. This fosters trust and openness between the project staff and the public. The goal of these meetings is to reach concurrence with the public on project scope before entering the investigation phase of the design process.
- On complex projects where screening of multiple alternatives is desired, the workshop should be held as soon as the preliminary alternatives are available for public review and comment. This is to occur as early as feasible and must occur prior to the preliminary plan submission milestone so the information obtained from the workshop can be readily incorporated.
- When the public workshop is intended to inform or obtain public feedback on just one alternative, the workshop is ideally held between the preliminary plan and semi-final plan submission milestones at a time when the information obtained from the workshop can be readily incorporated into the semi-final plan submission.
In general, an in-person format offers a better opportunity to exchange detailed information dynamically with the public. For this reason, this format is particularly beneficial when active and open-ended feedback from the public is desired.
Virtual formats offer convenience as the public can attend at times that are convenient for them; however, the information exchange is not as dynamic as that of an in-person event. Accordingly, virtual workshops are more effective at informing the public as opposed to actively interacting with the public.
Some communities may have a strong preference for utilizing either an in-person or virtual meeting format, and this should be considered when determining the format of the public workshop. Area legislators or an established advisory committee may have good insight on this topic.

Though not as commonly used as the formats described in the subsequent subsections, DelDOT may elect to use a virtual meeting platform to conduct a public workshop. In this format, the project team will typically provide a brief presentation to participants and then take questions from the virtual audience.

If it is decided that the workshop is to be held in-person, it should have a sign in sheet to serve as documentation of those who attended.

5.1.3.3.2.1 Virtual Public Workshop


Department Resources
Virtual Workshop Instructions

Virtual public workshops are conducted completely online allowing the public to review project plans and other information at a time that is convenient for them. Attendees can also provide comments per the instructions given in the virtual public workshop materials. Online survey questionnaires can also be used for this purpose. This format is commonly used on projects where the goal of the public engagement is to inform the community about the project and where significant feedback on the project is not anticipated. Instructions on preparing material for the workshop is included in DelDOT’s Virtual Workshop Instructions.

5.1.3.3.2.2 Hybrid Public Workshop


Department Resources
Virtual Workshop Instructions

As its name implies, a hybrid public workshop combines elements of a virtual public workshop with that of an in-person public workshop. In a hybrid public workshop, material is developed in the same manner as for a virtual public workshop but presented live by the project team at a specified time. The project team is also made available after the presentation to answer live questions from workshop participants as part of this format. This workshop format will also keep the virtual information available so that the public is able to view the material at times other than the scheduled date and time. This format is commonly used for medium or large and moderately complex projects when it is anticipated that the community may have some level of feedback on a project. Instructions on preparing material for the workshop is included in DelDOT’s Virtual Workshop Instructions.

5.1.3.3.2.3 In-Person Public Workshop

In-person public workshops are held at a designated location, on a specific date, and at a specific time. To ensure maximum public participation, public workshops must be held at times convenient for the intended audience and at accessible facilities close to the project’s location. Among the features which should be considered when evaluating a facility’s accessibility is the level of access from the parking area to the building entrance, access from the entrance to the meeting location, and access from the meeting location to an accessible bathroom. This public workshop format makes project information available to the public to review, ask questions, and provide comments. Occasionally, a presentation may be warranted, which would then happen at a published, designated time. This type of public workshop format may be used for a variety of projects of varying size and complexity and offers the advantage of allowing for dynamic face-to-face, in-person interaction.

5.1.3.3.2.4 In-Person Public Hearing

An in-person public hearing is similar to an in-person public workshop as they are both held at a designated location, on a specific date, and at a specific time. The difference between the two formats is that a public hearing is federally required for different actions and has more stringent format requirements that are dictated by the Code of Federal Regulations (CFR). The need for a public hearing is described within Section 5.1.3.3.1. The need for and timing of the public hearing should be closely coordinated with the Environmental Stewardship Office, the Division of Community Relations, and FHWA.

All public hearings must have an in-person option. A virtual option may be provided at the discretion of the Project Manager. Like public workshops, public hearings may utilize an open-house format or have one or more formal presentations, or both. Public hearings must provide the public an opportunity to provide formal comments and a court reporter is required to provide a transcript. The design team is to coordinate the court reporter through the Division of Community Relations. The transcript and any written comments received during the 30-day comment period will be submitted to FHWA and will be included in the project’s final NEPA documentation.

5.1.3.3.3 Visualizations

Visualizations should be prepared to assist workshop attendees in understanding the project which will then strengthen their participation. In addition to project specific visualizations, typical DelDOT visualization boards include a welcome board, the Safe Systems Approach board, a project purpose and need board, project schedule board, and a thank you board. DelDOT’s Safe Systems Approach logo is provided on DelDOT’s website. The following elements should be considered when developing meeting displays to ensure the visualizations presented are clear and informative:

A legend, scale, and north arrow.
Labels on streets and other key features or landmarks such as waterbodies, parks, schools, environmental features, etc.
Renderings that include a colored depiction of the proposed transportation improvements with an aerial background are preferable to engineering plans or cross sections for depicting key features of improvement alternatives.
Clear photos described with large captions, in lieu of text. When text is required, its use should be minimized.
Common language rather than technical terminology.
Colors that are easily distinguishable. Keep in mind that some workshop attendees may be color-blind.
For in-person meetings, make the displays large enough that multiple people can view them at once. The use of a roll-plan aerial could be beneficial for long corridor projects.
For in-person meetings, consider printing multiple displays if a large turnout is expected to allow for more effective viewing.
Consideration to how the display will look if viewed virtually on a tablet or a phone.

When deemed beneficial by the project team, additional visualization techniques such as traffic animations, artist’s renderings, 3-D flythroughs, and combinations of these techniques can be developed and presented as well.

5.1.3.3.4 Key Stakeholder Notification

It is a best practice to notify and offer to brief key project stakeholders as well as local elected officials, such as state legislators, prior to a workshop so that they can preview the information. This practice will ensure that the project’s key stakeholders are educated on the project and will be in better position to answer the questions they may receive.

5.1.3.3.5 Public Notification


Department Resources
Policy Implement O-03: Public Involvement Policy

Sufficient public notification in advance of the workshop is critical to ensuring public attendance. The public can be notified through a variety of methods, including virtual media notifications, websites, flyers sent through the United States Postal Service, notifications in local news media, and possibly even hand delivered notices. At a minimum, all property owners directly impacted by the proposed project should receive a direct notification regarding the workshop. These notices should be provided at least three weeks prior to the workshop. The notices should include all relative information including the date and time of the workshop, the format of the workshop, how to view virtual materials, how long virtual materials will be available to view, how to provide comments, and when comments are due. DelDOT maintains specific notification requirements for public hearings in its Policy Implement O-03 entitled DelDOT Public Involvement Policy.

5.1.3.3.6 Freedom of Information Act (FOIA)

29 Del. C. §10004 contains requirements for conducting open meetings. DelDOT’s Division of Community Relations will ensure that these requirements are met, however, the rest of the project team should understand that specific requirements exist pertaining to how public meetings must be conducted and documented.

5.1.3.3.7 DelDOT Attendance

Thought is to be given to the DelDOT staff that should represent the Department at a project’s public workshop. In addition to representation from the design team and the Division of Community Relations, representation from support sections such as Environmental Stewardship, Right-of-Way, Traffic, Construction, and other sections may be beneficial depending on the scope of the project.

5.1.3.3.8 Public Information Meetings

The project team may elect to hold a public workshop that is intended to inform the public rather than solicit feedback in cases where there has been no public involvement over a significant amount of time. If the intent of a public meeting is primarily to update the public on project information and not to elicit public feedback, then these meetings should be termed a “public information meeting” rather than a “public workshop”. These meetings are particularly beneficial when the project is moving into the construction phase to inform or simply remind the public of the latest proposed plans and provide updates regarding the project schedule. Public information meetings at this stage are especially valuable tools when significant traffic impacts are anticipated during construction. Another option to consider is to prepare updated project material, similar to what would be presented at a public information meeting, and distribute that information to known key stakeholders, area legislators, previously gathered mailing/e-mail lists, etc., and to post the information on the project’s website.

5.1.4 Night Work Surveys


Department Resources
Policy Implement C-10: Construction Night Work

Night work surveys may need to be distributed in accordance with the requirements contained in State Bond Bill epilogue language. Policy Implement C-10 entitled Construction Night Work describes DelDOT’s policy for notifying and obtaining approvals for when DelDOT reasonably expects the use of night work for any of its construction activities.

5.1.5 Public Engagement During Construction

Public engagement should continue throughout the construction phase of a project as well. Tasks that the design team will specifically be responsible for performing includes maintaining the project’s website with updated information and continuing to update the QLR dataset as described in Section 5.1.2.1.2. The design team will also work in conjunction with the Construction section and the Division of Community Relations to implement the public outreach requirements contained in the project’s Traffic Management Plan (TMP), keep advisory committee members informed and obtain feedback from the committee members, provide information needed to create DelDOT press releases, and evaluate the need for additional public outreach during the construction phase.

5.2 Coordination with Municipalities

While DelDOT has been designated jurisdiction over the large majority of roads within Delaware in accordance with 17 Del. C. § 131, other public entities including local municipalities and state and federal agencies own and maintain roads within the State. DelDOT may be required to interact with these other public traveled way owners as part of the project development process. These interactions are shaped by several factors including which agency is tasked with project administration responsibilities, funding sources, and project location relative to jurisdictional authority boundaries. Table 5.2 summarizes DelDOT’s potential roles and responsibilities on public transportation projects administered throughout the State. At a minimum, the design team will need to identify the entities that possess existing rights and maintenance responsibilities within the project limits. Once this is identified, the effects of a project on post-construction activities and maintenance should be assessed and coordinated as part of the project development process.

Table 5.2 – Summary of DelDOT’s Roles and Responsibilities on Public Transportation Projects within the State
Administering Agency	Condition	Discussion
DelDOT Administered	Entire project within DelDOT’s sole jurisdiction	DelDOT is mandated by law to maintain roadways within its jurisdiction. DelDOT is not required to obtain any project-level agreements with other public traveled way owners when the limits of a project do not extend outside of DelDOT’s jurisdiction.
DelDOT Administered	Portion or all of a project is outside of an area where DelDOT maintains sole jurisdiction	DelDOT may only perform projects in which they are mandated by law and legislatively authorized to perform. Since DelDOT is not mandated through state law to maintain public roadways outside its jurisdiction, an agreement is required with the pertinent public traveled way owner designated with jurisdiction.
Jointly Administered	All Projects	Projects may be jointly administered between DelDOT and another public traveled way owner. In these cases, at a minimum, DelDOT must obtain an agreement outlining funding, administration, and ultimate maintenance responsibilities between the two entities.
Other Public Owner Administered	Project uses state or federal funds	In accordance with 23 CFR 635.105, DelDOT is responsible for the construction of all Federal-aid projects within the State regardless of the administering agency. Therefore, DelDOT is required to perform project oversight to ensure that all activities meet the applicable state and federal requirements.
Other Public Owner Administered	Project does not use state or federal funds	DelDOT does not provide oversight to projects that are administered by public traveled way owners that do not use state or federal funds.

The majority of projects that DelDOT undertakes are solely administered by DelDOT; therefore, the focus of this section is on the coordination process for projects that are solely DelDOT administered.

Due to overlapping interests and priorities, specific agreements have been created over time between DelDOT and the other public traveled way owners in the State. Some of those agreements, such as town agreements, have become standardized over time with established understandings concerning assignment of maintenance responsibilities to the parties to the agreement. Other agreement types may need to be negotiated project-by-project. It is important to understand that right-of-way ownership and roadway maintenance are separate considerations. One entity can own the right-of-way while another entity maintains the roadway. Maintenance can be in its entirety, or in portions, or for certain assets within the public right-of-way.

The first step in coordinating with other public traveled way owners is researching and understanding what DelDOT’s obligations are within a project’s limits. Section 5.2.1 provides a description of the typical agreements that DelDOT maintains while Section 5.2.2 describes the tools that can be used to research DelDOT’s existing maintenance responsibilities within a project’s limits. Once the roles and responsibilities of the public traveled way owners within the project’s limits are understood, the design team will be tasked with assisting the rest of the project team in the development of any agreements that are required for the project. The agreement process and the design team’s role within the process is described in more detail in Section 5.2.3. This section does not address the utility coordination process for municipalities and other governmental owned utilities. DelDOT’s utility coordination process is outlined in Section 5.4.

5.2.1 Agreement Types


Department Resources
DelDOT Traffic Design Manual
DelDOT Development Coordination Manual

DelDOT will enter into agreements with various stakeholders including local municipalities, state and federal agencies, and private entities for a variety of purposes. These agreements play a vital role in establishing DelDOT’s authority and obligations within the State. Though the focus of this section is on agreements maintained with public traveled way owners, it is equally important that the project team research and understand DelDOT’s responsibilities regarding private infrastructure as well. This section describes several of the common agreement types that DelDOT utilizes as well as their relationship to the project development process. The list in this section should not be viewed as a complete listing of agreement types.

Town agreements – In accordance with 17 Del. C. §134 (a) of the Delaware Code, DelDOT must reach an agreement with municipalities prior to performing any work within their boundaries. This agreement is called a town agreement. Town agreements are also needed when a DelDOT project will detour vehicle, bicycle, or pedestrian traffic into municipal limits as well. Town agreements are also used to document ownership and maintenance responsibilities between DelDOT and the municipality. The development of a town agreement is considered a part of the project development process when they are required for a project.
Traffic signal agreements – A traffic signal agreement is the term that DelDOT assigns to agreements that allow the State to place and maintain traffic control devices along state-maintained roadways within another public traveled way owner’s jurisdiction and sometimes on private property. These agreements document initial approval as well as ownership and maintenance responsibilities between the parties. Traffic signal agreements are used for traffic control devices including, but not limited to, roadway lighting, signals, signage, and pedestrian crossings. The development of a signal agreement is considered a part of the project development process when they are required for a project. Additional information on traffic signal agreements is included in the DelDOT Traffic Design Manual and the DelDOT Development Coordination Manual.
Right-of-way use and occupancy agreements – Private use of the right-of-way is permitted only under very specific circumstances. When it is deemed appropriate to do so, DelDOT may enter an agreement with the private entity. These agreements are provided to accommodate private infrastructure within the State’s right-of-way and assume responsibility for their maintenance. These agreements are typically for a finite duration which will allow DelDOT to re-evaluate the right-of-way occupancy in the future. An example of a right-of-way use and occupancy agreement is an agreement between DelDOT and a private entity to allow the private entity to install a pedestrian bridge over a DelDOT roadway. Right-of-way use and occupancy agreements are typically developed outside of the project development process. These agreements are typically, approved, and managed by DelDOT’s Roadside Environmental Program within the Division of Maintenance and Operations.
Maintenance agreements – DelDOT will enter into agreements with public and private entities to establish maintenance roles and responsibilities between the parties. An example of a maintenance agreement is for landscaping installed within municipal limits as part of a DelDOT project. The development of maintenance agreements is considered a part of the project development process when they are required for a project. The design team must work with representatives from the Division of Maintenance and Operations on development of the agreement as well as with the Right-of-Way section to ensure acquisition of the necessary and appropriate property rights.
Interagency agreements – DelDOT will enter into agreements with other state agencies for a variety of reasons. A common reason is to assign the long-term maintenance of shared infrastructure like mill pond dams, tide gates, or boat ramps within the state right-of-way. These agreements are often termed memorandum of understanding (MOU), memorandum of agreement (MOA), or custodial agreement.
Joint use agreements – A joint use agreement lays out the terms and conditions for two entities to share the use of a single facility. An example of a joint use agreement is a shared stormwater management facility between DelDOT and either a public or private entity. The development of a joint use agreement is considered a part of the project development process when they are required for a project. The Division of Maintenance and Operations as well as the Right-of-Way section and other pertinent sections must be involved in the development of these agreements.
Transportation Alternatives Program (TAP) agreements – As their name implies, this agreement type is used by DelDOT’s TAP to outline the responsibilities of DelDOT, a project sponsor, and any other pertinent project stakeholders. The agreement summarizes the scope and limits of the project and assigns funding and future maintenance responsibilities to the parties to the agreement.

5.2.2 Maintenance Responsibility and Existing Agreement Assessment


Department Resources
Municipality Agreement Search
DelDOT Gateway

It is essential that the project team review the project’s limits to assess DelDOT’s jurisdiction and associated maintenance responsibilities within a project’s limits. This is typically a two-step process:

Assess whether the roadway is within DelDOT’s jurisdiction. This assessment entails reviewing the location to see if the project’s limits extend into a municipality or is owned by a separate state or federal agency.
Assess the project’s limits for existing agreements that DelDOT has entered into which will affect DelDOT’s responsibilities as part of the project. Few, if any, of these agreements are recorded with many of these agreements specifically stating they must not be recorded in any Recorder of Deeds Office. Therefore, these agreements primarily reside in the databases of the parties to the agreement.

At this time, there are two data repositories that can be used to search the project’s limits for pertinent existing agreements:

Municipality Agreement Search – This repository is located on DelDOT’s website and is therefore available to the public.
DelDOT Gateway – DelDOT contains several pertinent layers inside of its DelDOT Gateway GIS dataset. Table 5.2.2 summarizes the most applicable layers within DelDOT Gateway that can be used for this assessment. Section 3.7.1.1 has additional information on DelDOT’s Gateway dataset.

Table 5.2.2 – Maintenance Responsibility and Existing Agreement Layers
Gateway Layer	Information Description
Municipalities and Municipal Annexations	This layer shows the limits of the municipalities in Delaware. The layer also shows pending and approved annexations. Annexation is the general process that municipalities use to expand their boundaries into adjacent unincorporated areas.
Roadway Maintenance Responsibility	This layer shows the maintenance responsibility for the pavement of all roads in the State.
Infrastructure Agreements	This layer shows the location of the currently on-file infrastructure agreements in the State. This layer primarily contains information on agreements that DelDOT has made with municipalities for individual segments of the infrastructure network.

Not all of DelDOT’s agreements are included in these repositories. The above referenced repositories predominantly contain agreements that DelDOT has entered into with municipalities. Until additional datasets are developed, the project team is encouraged to research additional agreements which may exist within a project’s limits to assess DelDOT’s maintenance responsibilities and other relevant obligations. This additional investigation must be considered and conducted on a project-by-project basis but typically includes corresponding with the DelDOT maintenance district or section within DelDOT which may have jurisdiction over an asset.

Generally, within a municipality, DelDOT would be responsible for the pavement of a state-maintained roadway, but all other aspects of the right-of-way maintenance would be the responsibility of the municipality. However, this statement is a generality, and each past project has its own agreement that should be referenced when work occurs within a municipality, as actual terms may differ.

5.2.3 Agreement Development Process

Once DelDOT’s existing maintenance responsibilities have been determined in accordance with Section 5.2.2, the project team can assess a project’s scope and proposed work to determine if any agreements are required. In general, the design team will serve in a support role during the agreement development process. This may include developing displays to be included in the agreement and facilitating discussions between the parties. At a minimum, the party being given additional maintenance responsibility should be made aware of the new obligations. Additionally, the design team may be required to perform coordination activities between parties and to review any draft agreements for accuracy and consistency.

All agreements that DelDOT enters into must be written to clearly establish DelDOT’s legal authority to enter into the agreement. This will require citation of Delaware Code and potentially United States Code. This section’s subsections outline agreement development procedures for several of DelDOT’s more commonly used agreements. While agreements outside of those listed may be required as part of the project development process, DelDOT does not maintain well-defined processes for securing those agreements. In these cases, the project team will need to collaborate with the pertinent DelDOT subject matter experts to develop any required agreement on a project-by-project basis. At a minimum, new agreements that do not follow an approved standard agreement template should be reviewed by DelDOT’s Legal section.

5.2.3.1 Town Agreements


Department Resources
Right-of-Way Engineering Manual

The design team should alert DelDOT’s Team Support section as early as possible in the project development process when a project’s limits fall within municipal boundaries. Team Support is responsible for the development and ultimate filing of all executed town agreements. The Team Support section will utilize two different agreement formats depending on the scope of the work involved in a project:

Town agreement – This is the long-form version of the required agreement. It is used for projects that fall within municipal limits and where the project proposes right-of-way acquisition or realignment of a highway or bridge. This agreement is prepared once the project’s final right-of-way has been approved.
Letter agreement/ Electronic agreement – This is the short-form version of the required agreement developed to expedite the approvals needed for DelDOT to undertake construction work within municipal boundaries. It is used for projects that fall within municipal limits and where the project only proposes resurfacing existing highways or bridges and no new right-of-way is required.

Additional information on the town agreement process is included in DelDOT’s Right-of-Way Engineering Manual.

5.2.3.2 Traffic Signal Agreements


Department Resources
DelDOT Traffic Design Manual
DelDOT Development Coordination Manual

Traffic signal agreements are initiated by the DelDOT Traffic section for small-scale, Traffic section developed projects that involve the placement of a new or modified traffic control device. Additional information on the signal agreement process is included in the DelDOT Traffic Design Manual and in the DelDOT Development Coordination Manual.

5.2.3.3 Stormwater Management Joint Use Agreements

Stormwater management joint use agreements establish ownership and maintenance responsibilities. These agreements are implemented in cases where DelDOT discharges stormwater into an external entity’s stormwater management facility. To formalize these agreements, the design team must proactively coordinate with DelDOT’s Water Resources Engineer, NPDES Engineer, and Real Estate section. Stormwater management joint use agreements can be separated into two different categories:

Agreements with municipalities - In general, municipalities will assume maintenance responsibility for all BMPs constructed within their municipal limits for existing roadways; the only exception is in cases where the BMP is associated with a new DelDOT roadway. Maintenance responsibility for joint use facilities within municipal limits are typically captured in the project’s town agreement which is discussed in more detail in Section 5.2.3.1.
Agreements with private entities - The extent of DelDOT’s maintenance responsibilities when an agreement is needed with a private entity is typically determined by the percent discharge that DelDOT contributes to a facility during the ten-year storm event. DelDOT’s Water Resources Engineer, NPDES Engineer, and the DelDOT Maintenance and Operations District that will be performing the future system maintenance will coordinate to negotiate DelDOT’s future maintenance responsibilities with the private entity.

5.3 Environmental

All transportation projects will inherently affect the environment in which they are constructed. Accordingly, numerous agencies have been established, laws passed, and regulations adopted to govern a project’s potential impacts. A partial list of protected resources is provided in Section 5.3.2.2. This section establishes the processes and procedures that DelDOT employs to ensure that the State’s transportation needs are met in a way that minimizes impacts to the surrounding environment.

Assessing an action’s environmental effect is a complex task due to the intricacies involved with evaluating resource impacts and because the governing regulations and their associated interpretations are continuously evolving. To meet these challenges, DelDOT provides an Environmental Stewardship Office (ESO) which is staffed with subject matter experts who work to achieve DelDOT’s goal of minimizing the environmental impacts of the State's transportation system. The section ensures that DelDOT projects and maintenance activities account for and take actions that protect, restore, mitigate for, and enhance the environment. The group also maintains and manages DelDOT’s relationships with the governing agencies to expedite the environmental coordination process. The Environmental Stewardship Office’s specific role on an individual project will vary based on the project’s scope of work as well as what assignments have been delegated by DelDOT through professional service tasks. The activities that are normally overseen by this section within the project development process include, but are not limited to, the following:

Provide recommendations for proper assessment surveys (e.g., wetland delineations, architectural, and archeological surveys).
Jointly assess a project’s level of reasonably foreseeable environmental impacts with the design team.
Perform coordination with applicable resource agencies including routine communications and establishing project-specific meetings when needed.
Provide recommendations on ways to mitigate impacts to environmental resources.
Administer the National Environmental Policy Act (NEPA) process. See Section 5.3.2 for additional information.
Secure necessary project permits. See Section 5.3.3 for additional information.

Assessing a project’s reasonably foreseeable potential environmental impact should be performed as early as feasible in the project development process. This assessment is ideally performed during the project initiation phase as part of a project’s initial scoping. To aid in this assessment, the design team should request an initial environmental evaluation from the Environmental Stewardship Office through the process summarized in Section 3.2.1.3. The design team should also coordinate with the Environmental Stewardship Office during this early phase to discuss the infrastructure deficiencies being addressed and the current vision of the project’s purpose and need and associated scope before proceeding too far into the project development process. The Environmental Stewardship Office can provide insight and recommendations into any technical studies that may be required which will help inform the project’s scoping process. Determining and addressing environmental-related issues at this early stage through minor alignment shifts or other means will save time, reduce coordination efforts, and minimize potential future delays at later project stages.

The environmental coordination process will culminate in the creation of various deliverables that will memorialize the coordination process depending upon the task being undertaken and the funds being used. Deliverables created through the environmental coordination process include, but are not limited to, the following:

Technical reports – These will vary based on the project’s scope and potential impacts and could include wetland delineations, noise studies, archaeology reports, or other similar findings documents. Technical reports could include Planning and Environmental Linkage studies (PELs) which are further discussed in Section 5.3.1.
NEPA document – NEPA documents are discussed in more detail in Section 5.3.2.
Project permits – Project permits are discussed in more detail in Section 5.3.3.
Environmental Compliance (EC) plan sheets – The EC sheets are intended to highlight water, wetland, and natural feature compliance issues but can also be used for Section 106 commitments when appropriate. This deliverable is included within the project plans.
Environmental Statement – An environmental statement is provided for all advertised DelDOT contracts and all IDIQ contract work order locations. The statement is used to specify environmental compliance commitments, restrictions, and substantive permit conditions, and/or special conditions from Memorandum of Agreements (MOAs), or Project-Level Programmatic Agreements (PPAs).

All environmental related commitments made to project stakeholders throughout the project development process should be tracked in DelDOT’s Unifier software to ensure sufficient records are kept and accessible at the project-level.

5.3.1 Planning and Environmental Linkages (PEL)

Planning and environmental linkages (PEL) represent an integrated approach to transportation decision-making that consider environmental, community, and economic goals early in the transportation planning process, and then uses that information, analysis, and products developed to inform the environmental review process. As the name implies, the goal of PEL is to connect the analyses used to develop an agency’s planning deliverables discussed in Section 2.1 to the NEPA process so as to develop a more seamless decision-making process that minimizes duplication of effort, promotes environmental stewardship, and streamlines project delivery.

Transportation agencies can create PEL studies that document the project level planning and environmental analysis that has been conducted prior to the formal start of the NEPA process. Completed PEL studies are intended to be appended or incorporated by reference to a project’s formal NEPA document. Any PEL study incorporated by reference must be reasonably available for inspection by potentially interested persons within the time allowed for comment. When completed properly, the PEL study will reduce the unnecessary recreation of information that is more appropriately developed as part of the initial planning process. PEL studies are typically created through a collaborative effort involving transportation planners, NEPA practitioners, resource agencies, the public, and FHWA as appropriate. Performing a PEL study may be especially beneficial when multiple projects with potentially overlapping boundaries are planned so project study and planning efforts can be coordinated. PEL studies may be pursued on a project-by-project basis at the discretion of the design team in consultation with DelDOT’s Environmental Stewardship Office.

5.3.2 National Environmental Policy Act (NEPA) Process

The National Environmental Policy Act (NEPA) of 1969 ensures that actions that are performed by federal agencies or that utilize federal funds examine and consider the potential environmental effects of the proposed action. NEPA directs agencies to utilize a systematic, interdisciplinary approach in planning and decision-making with potential effects to the human and natural environment to reach a decision that is in the best overall public interest. The goal of NEPA is that all environmental investigations, reviews, and consultations be coordinated as a single and collaborative process and that compliance with all applicable environmental requirements be reflected in an environmental review document. NEPA requires a procedural process be performed and in and of itself does not mandate particular results or substantive outcomes. A project’s proposed purpose and need, scope, and potential resource impact will determine the level of analysis required. The United States Department of Transportation’s (US DOT’s) regulations are implemented through 23 CFR 771.

In general, DelDOT will coordinate and complete the NEPA process with the FHWA providing varying levels of input based on the class of action. It is DelDOT’s goal to conduct the NEPA process in an inclusive manner which allows the active participation of individuals, businesses, interest groups, resource agencies, and affected constituencies. The NEPA process should be made transparent by providing public knowledge of the final decisions and the process used. 23 CFR 630.106(a)(7) through 23 CFR 630.106(a)(9) outlines NEPA approval timing requirements within the project development process for design-build projects, Construction Manager/ General Contractor (CMGC) projects, and Indefinite Delivery/ Indefinite Quantity (IDIQ) projects.

The NEPA process includes the following key elements:

Identifying the project’s purpose and need, as well as a range of alternatives to consider.
Determining and documenting the foreseeable social, economic, and environmental impacts of the proposed transportation improvement. Resources to be considered are described in additional detail in Section 5.3.2.2. This task may require the completion of environmental stewardship or related engineering studies.
Coordinating with appropriate governing agencies.
Informing decision-makers and the public of the project’s scope and potential impacts (both positive and negative).
Mitigating for inescapable environmental impacts of a proposed action. These measures are to be incorporated into the action and documented in the environmental review document.
Documenting the analysis and decisions made.

The NEPA document should be written to:

Tell the story of the project development process.
Be readily understandable to all audiences, including those without technical expertise.
Provide key information in an easy-to-use format. This includes using concise writing, effective visual graphics, and utilizing appendices for supporting information.
Focus on significant issues and to discuss issues in proportion to their significance.
Demonstrate how the action will meet the pertinent legal requirements.
Identify methodologies used in the analysis.
Describe impacts associated with the action as well as all project commitments made.

To obtain NEPA approval, a project must show fiscal constraint and have an identifiable presence on the CTP.

5.3.2.1 Classes of Actions

Transportation projects vary in type, size and complexity, and potential to affect the environment. To account for this variability, 23 CFR 771.115 defines three classes of actions that prescribe the level of documentation required in the NEPA process. The classes of actions are determined by the level and significance of impact of the associated action. The design team must advise the Environmental Stewardship Office of any changes to a project’s scope which could have the potential to affect the class of action of the project. The three classes of action are:

A categorical exclusion (CE),
An environmental assessment (EA), and
An environmental impact statement (EIS).

The determination of the significance of an impact is a function of both context and intensity. Context requires that the significance of an action must be analyzed in several contexts such as society as a whole, the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. Intensity refers to the severity of the proposed impact.

It is noted that 23 CFR 771.115 allows a programmatic approach or agreement be made for any class of action.

5.3.2.1.1 Categorical Exclusions (CEs)


Department Resources
FHWA Programmatic Agreement Regarding CEs
DelDOT NEPA Categorical Exclusion Guidebook
CE Checklist Template FHWA Approval
CE Checklist DelDOT Approval

Categorical Exclusions (CEs) are defined in 23 CFR 771.117(a) as actions that normally do not have a significant environmental effect. CEs do not induce significant impacts to planned growth or land use for the area; do not require the relocation of significant numbers of people; do not have a significant impact on any natural, cultural, recreational, historic or other resource; do not involve significant air, noise, or water quality impacts; do not have significant impacts on travel patterns; or do not otherwise have any significant environmental impacts. Though the documentation required for a CE is less strenuous than the other defined classes of actions, almost all CEs will require some level of resource impact evaluation and agency coordination.

DelDOT and the FHWA maintain a programmatic agreement which establishes the responsibilities and obligations of both agencies to process and document CEs for Federal-aid highway projects. The programmatic agreement streamlines projects with minimal environmental impacts by authorizing DelDOT to determine and document whether these projects qualify for a CE on behalf of FHWA pursuant to 23 CFR 771.117(g).

The current programmatic agreement and associated documentation can be accessed at the following locations:

The programmatic agreement enables DelDOT to make a CE approval on behalf of the FHWA for qualifying actions listed in Appendix A (CEs established in 23 CFR 771.117(c)) and Appendix B (CEs established in 23 CFR 771.117(d)) of the programmatic agreement provided that the action does not exceed the threshold requirements in Section IV(A)(1)(b) of the programmatic agreement. In these cases, DelDOT is to process the CE using this CE Checklist Form. DelDOT may certify, but not approve, CEs through use of this CE Checklist Form in the following two conditions:

The action is listed in Appendix A or Appendix B of the programmatic agreement, but the thresholds provided in Section IV(A)(1)(b) of the programmatic agreement are exceeded.
The action is not listed in Appendix A or Appendix B of the programmatic agreement, but the action still meets the definition of a CE.

Under the conditions of the programmatic agreement, the FHWA is obligated to provide timely advice, technical assistance, and review of certified actions as requested.

5.3.2.1.2 Environmental Impact Statement (EIS)


Department Resources
Recommended EIS Format

An environmental impact statement (EIS) is to be prepared for projects that have significant environmental impacts. Examples of transportation actions that normally require an EIS are listed in 23 CFR 771.115(a). EISs require the performance of a formal scoping process in accordance with 23 CFR 771.123. The scoping process will be used to identify the project’s purpose and need, the range of alternatives and reasonably foreseeable impacts, and the significant issues to be prioritized and addressed in the EIS. The EIS must evaluate all reasonable alternatives to the proposed action and document the reasons why other alternatives, which may have been considered, were eliminated from detailed study. The EIS must summarize the studies, reviews, consultations, and coordination required by environmental laws or executive orders to the extent appropriate. EISs have traditionally followed a recommended format, however, FHWA encourages deviations from the recommended format if it conveys information more effectively. In accordance with 23 CFR 771.138(a)(1), an EIS is to be completed within two-years from publication of the notice of intent. Page limits for EISs are established in 23 CFR 771.138(b)(1).

The EIS process will ultimately culminate in approval of a combined Final EIS/ Record of Decision (ROD) (see 23 CFR 771.124) or a standalone ROD (see 23 CFR 771.127). When performed, EISs may be developed using a tiered approach as discussed in 23 CFR 771.111(g).Tiering an environmental analysis can help avoid duplication and help sharpen the focus on issues and effects. For transportation projects, the first tier would focus on broad programmatic, corridor, or system level issues such as general location, mode choice, and areawide air quality and land use implications of the major alternatives. The second tier would address site-specific details on a project's reasonably foreseeable impacts, costs, and mitigation measures after a tier I establishes parameters for a second tier analysis. EISs are rarely performed for transportation projects in Delaware. All Final EIS/ Record of Decision documents are to be posted to the project’s website until the project is constructed and open for operation.

5.3.2.1.3 Environmental Assessment (EA)

An environmental assessment (EA) is performed in consultation with the administering federal agency for actions which cannot be classified as either a CE (see Section 5.3.2.1.1) or an EIS (see Section 5.3.2.1.2) and the level of environmental impacts do not have a reasonably foreseeable significant effect on the quality of the human environment or for which the significance of the environmental impact is unknown. In accordance with 23 CFR 771.138(a)(2), an EA for a non-major project is to be completed within one-year of its class of action determination while EAs for major projects are permitted to take two-years. 23 CFR 771.138(b)(2) limits the length of EAs to 75 pages. The process for conducting an EA is described in detail in 23 CFR 771.119. EAs require consultation with interested agencies and other stakeholders as well as public involvement. If at any point during the EA process, the administering federal agency or DelDOT determines that the action is likely to have a significant impact on the environment, the preparation of an EIS as described in Section 5.3.2.1.2 will be required. If no significant impact is discovered during the EA process, DelDOT must provide the EA documentation to the administering agency and recommend the issuance of a Finding of No Significant Impacts (FONSI), which would serve as the project’s environmental documentation. When performed, EAs may be developed using a tiered approach as discussed in 23 CFR 771.111(g). Tiering an environmental analysis can help avoid duplication and help sharpen the focus on issues and effects. For transportation projects, the first tier would focus on broad programmatic, corridor, or system level issues such as general location, mode choice, and areawide air quality and land use implications of the major alternatives. The second tier would address site-specific details on a project's reasonably foreseeable impacts, costs, and mitigation measures after a tier I establishes parameters for a second tier analysis. EAs are rarely performed for transportation projects in Delaware. All final FONSI documents are to be posted to the project’s website until the project is constructed and open for operation.

5.3.2.2 Protected Resources

Protected resources, for the purpose of this manual, are defined as elements or features that contribute to the human and built environment or the natural environment and which are protected in some capacity by law, regulation, or other policy. This section is not intended to be an all-encompassing list of protected resources that must be considered during the project development process. The design team should work with DelDOT’s Environmental Stewardship Office to identify protected resources within a project’s vicinity and to determine the need and timing for any field or baseline studies to be completed as part of the environmental screening process.

Impacts to protected resources must be evaluated as part of the project development process. Impacts are defined as “changes to the environment from the proposed action that are reasonably foreseeable”. This includes impacts that occur at the same time and place of the action as well as those which occur later in time or farther removed from the action which are a result of the action. Additionally, impacts of other past, present, and reasonably foreseeable actions, regardless of what agency or person undertakes such actions, are to be considered as well.

The design team should work with the Environmental Stewardship Office to establish the environmental mitigation and subsequent commitments for a project. Typically, a project’s environmental commitments are agreed upon between DelDOT and the regulatory agencies during the NEPA process and in compliance with state and federal requirements. A project’s mitigation should adhere to the following sequencing order:

Avoiding the impact altogether by not taking a certain action or parts of an action by looking at practicable alternatives with less adverse impacts. This could include alignment shifts, grade changes or alternate locations of facilities to avoid protected resources.
Minimizing impacts by limiting the degree or magnitude of the action, if the impacts cannot be avoided. Minimization measures could include alignment shifts or design measures to reduce the footprint of an impact; time of year construction restrictions to avoid endangered species habitat during breeding season; or landscaping to serve as a visual screen.
Compensating for the impact by replacing or providing substitute resources or environments through compensatory mitigation. This could include adding to public parks and recreation areas to replace lost facilities or constructing wetland mitigation sites.

5.3.2.2.1 Human and Built Environment


Department Resources
Policy Implement O-03: Public Involvement Policy

Human and built environment resources are elements that are a direct result of some form of human intervention or creation and are therefore not naturally occurring. Performing public outreach during the planning and project development process is an integral part of assessing a planned action’s effect on the human and built environment and also in evaluating measures to avoid, minimize or mitigate the effect. DelDOT’s required level of public involvement during the project development process is detailed in DelDOT Policy Implement O-03 entitled Public Involvement Policy and is discussed in more detail in Section 5.1.

5.3.2.2.1.1 Community Cohesion

The concept of community cohesion asserts that programs and activities that receive government financial assistance provide just treatment and meaningful involvement of all people regardless of income, race, color, national origin, Tribal affiliation, or disability. Community cohesion is a recognition that government programs, policies, and activities can disproportionately affect minority and low-income populations. Achieving community cohesion is important as it ensures full and fair participation by all potentially affected communities in the development, construction, operation, and maintenance of transportation facilities. Community cohesion requires that agencies identify, evaluate, and then address actions that could lead to an inequitable distribution of benefits and burdens.

5.3.2.2.1.2 Historic Preservation

Numerous statutes exist to preserve historic and archaeological resources. The most comprehensive of which is the National Historic Preservation Act (NHPA) of 1966 which includes Section 106 (54 U.S.C. 306108). Section 106 requires federal agencies to consider the effects of their undertakings on historic properties and affords the Advisory Council on Historic Preservation (ACHP) and the public reasonable opportunity to comment on such undertakings. The regulations implementing Section 106 are contained in 36 CFR 800 and establishes procedures for how federal agencies meet their statutory responsibility. The 36 CFR 800 regulations require the agency responsible for the undertaking to consult with the State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), representatives of local government, and additional interested parties. The goal of the consultation process is to identify historic properties potentially affected by an undertaking, assess its effects on the properties, and seek ways to avoid, minimize, or mitigate these effects. Additional statutes and related regulations regarding historic preservation are included in Table 5.3.2.2.1.2. Table 5.3.2.2.1.2 is not intended to represent an inclusive list of statutes or regulations regarding historic preservation.

Table 5.3.2.2.1.2 – Additional Statutes and Regulations Regarding Historic Preservation
Title	Reference
Antiquities Act of 1906	54 U.S.C. 320301 – 320303
Archeological Resources Protection Act of 1979	54 U.S.C. 312501 – 312508 and 23 U.S.C. 305
Native American Grave Protection and Repatriation Act of 1990	25 U.S.C. 3001 – 3013
Native American Graves Protection and Repatriation Act Regulations – Disposition of Culturally Unidentifiable Human Remains	43 CFR 10
Determination of Eligibility for Inclusion in the National Register of Historic	36 CFR 63
National Historic Landmarks Program	36 CFR 65

Unmarked human burial and human skeletal remains found during either the design or construction phases are to be handled in accordance with 7 Del. C. Chap 54. No further disturbance of skeletal remains shall commence until coordination with the Cultural Resources staff within DelDOT’s Environmental Stewardship Office has been performed.

The proposed use of land from an historic resource on or eligible for the National Register will additionally require an evaluation and approval under Section 4(f) of the DOT Act of 1966. The regulatory requirements for 4(f) properties are contained in 23 CFR 774. Section 4(f) also applies to all archeological sites on or eligible for the National Register and which warrant preservation in place in accordance with 23 CFR 774.11(f). A 4(f) property will only be approved for use by FHWA if it is determined there is no feasible and prudent alternative and that the action includes all possible planning to minimize harm to the property, or FHWA makes a finding that the project has a de minimis impact on the property as defined by 23 CFR 774.17.

5.3.2.2.1.3 Publicly Owned Parkland and Other Publicly Owned Recreational Areas

Publicly owned park and recreation lands that are open to the public, as well as wildlife and waterfowl refuges, are protected under Section 4(f) of the Department of Transportation Act of 1966. The regulatory requirements for 4(f) properties are contained in 23 CFR 774. Coordination with the official or officials that own or administer (official with jurisdiction) the property is required in accordance with 23 CFR 774.5(b). Additionally, public notice and an opportunity for public review and comment must be provided. A 4(f) property will only be approved for use by FHWA if it is determined there is no feasible and prudent alternative and that the action includes all possible planning to minimize harm to the property, or FHWA makes a finding that the project has a de minimis impact on the property as defined by 23 CFR 774.17.

Recreational areas that received funding assistance through the Land and Water Conservation Fund (LWCF) Act of 1964 are additionally protected by Section 6(f) of the act. Section 6(f) contains strong provisions to protect federal investments but does allow for some flexibility. The regulatory requirements for 6(f) properties are contained in 36 CFR 59. Land that is proposed to be converted to another use must meet the conversion requirements of 36 CFR 59.3 to be considered.

5.3.2.2.1.4 Air Quality

The most comprehensive legislation related to air quality is the Clean Air Act of 1967, which has been amended many times since its initial adoption. The Clean Air Act defines the Environmental Protection Agency’s (EPA’s) responsibilities for protecting and improving the nation’s air quality as well as the stratospheric ozone layer to protect human health and the environment. The Clean Air Act established six criteria pollutants (carbon monoxide (CO2), lead (Pb), nitrogen dioxide (NO2), ozone (O3), particulate matter (PM–10 and PM2.5), and sulfur dioxide (SO2)) and required the creation of national ambient air quality standards (NAAQS) for those pollutants. The Clean Air Act also requires that each state develop and maintain a State Implementation Plan (SIP) that identifies and commits to attaining and then maintaining the NAAQs. In Delaware, the Delaware Department of Natural Resources and Environmental Control (DNREC) is responsible for preparing and updating the SIP in accordance with the procedures contained in 7 DE Admin. Code § 1132.

The Clean Air Act establishes three designations for areas based on ambient air quality conditions observed for the NAAQS criteria pollutants. These designations are instrumental in establishing a state DOT’s responsibilities under the Clean Air Act. The three designations established by the Clean Air Act are as follows:

Nonattainment area, which is any geographic region of the United States which has a pollutant that exceeds the established NAAQS.
Maintenance area, which is any geographic region of the United States previously designated as nonattainment and subsequently redesignated to attainment.
Attainment area, which is any geographic area where air pollution levels consistently stay below the established NAAQS and which are not considered Maintenance areas.

The EPA maintains a dataset of nonattainment areas for the criteria pollutants online in what is called the EPA's Green Book. Currently, New Castle County is designated as nonattainment for 8-hour Ozone O3 and maintenance for PM2.5.

The regulations implementing the Clean Air Act for transportation plans, programs, and projects are contained in 40 CFR 93. 40 CFR 93 works in combination with 23 CFR 450 to effectively integrate the transportation planning and air quality planning processes with the goal of reducing the severity and number of violations of the NAAQS. Under the regulations, a state’s transportation activities must conform to the SIP which means the actions cannot cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS or any other required interim emission reduction or milestone in any nonattainment or maintenance area.

The responsibility for ensuring conformity to the SIP is delegated to the MPOs in accordance with 23 CFR 450 and 7 DE Admin. Code § 1132. Additional information on the federal planning standards is contained in Section 2.1. Projects that are not exempt from conformity in accordance with 40 CFR 93.126 and that are found to be in violation of conformity standards may have federal funds withheld. The air quality analysis required during the project development process will vary considerably in content and level of detail from one project to another based on the project scope, size, geographic location, background conditions, and anticipated impacts.

5.3.2.2.1.5 Noise


Department Resources
Policy Implement D-03: Noise Policy Implement
Policy Implement C-10: Construction Night Work

The primary federal statutes governing highway traffic noise are the 1970 Federal-aid Highway Act and the Noise Control Act of 1972. The FHWA developed the procedures contained within 23 CFR 772 for abatement of highway traffic noise and construction noise in accordance with these governing statutes. In addition, DelDOT maintains Policy Implement D-03 entitled Noise Policy Implement which prescribes DelDOT’s procedures for noise studies and noise abatement measures for transportation projects defined as a Type I Project by the policy to help protect the public's health, welfare and livability, to supply noise abatement criteria, and to establish requirements for information to be shared with local officials.

Noise levels are protected at the state level as well by 7 Del. C. Chap 71 with the implementing regulations being contained in 7 DE Admin. Code § 1149. 7 DE Admin. Code § 1149 (4.2.4) includes specific provisions for construction noise. Additionally, municipalities or counties may have more restrictive protections for noise. DelDOT projects are additionally bound to the requirements contained in State Bond Bill epilogue language. Policy Implement C-10 entitled Construction Night Work describes DelDOT’s policy for notifying and obtaining approvals for when DelDOT reasonably expects the use of night work for any of its construction activities. Section 5.1 includes additional information on the procedures to be used when a project is considering the use of night work.

5.3.2.2.1.6 Hazardous Material

Hazardous material (commonly referred to as hazmat) waste sites pose liability and long-term maintenance and cost challenges in addition to their associated environmental factors that must be considered. Discovery of hazardous waste has the potential to delay project development or stop construction until the long, complex, and costly process of investigation, coordination, and analysis produces acceptable measures to control, contain, treat, monitor, and dispose of the hazardous material. Therefore, all reasonable efforts should be made during the planning and design phases to find and prepare mitigation strategies for known or suspected hazardous material sites.

The primary federal statutes pertaining to hazardous waste sites are the Resource Conservation and Recovery Act of 1976 (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). RCRA authorizes the United States EPA to control the generation, transportation, treatment, storage, and disposal of hazardous wastes. It is noted that RCRA addresses only active and future facilities and not abandoned or historical sites. CERCLA provides broad authority to the EPA to respond directly to releases or threatened releases of hazardous substances. Additionally, CERCLA assigns the liability for cleanup costs of contaminated sites to the responsible parties. Delaware’s regulations governing hazardous waste are primarily contained in 7 Del. C. Chap 60, 7 Del. C. Chap 63, 7 Del. C. Chap 91, 7 DE Admin. Code § 1302, and 7 DE Admin. Code § 1375. Additional information on the hazmat coordination process is contained in Section 5.9.

5.3.2.2.1.7 Land Use

The conversion of land to provide transportation facilities is generally considered an irreversible commitment as land dedicated to transportation is rarely changed to other uses during the life of the highway facility. Accordingly, government performed activities affecting transportation facilities have potential to have large effects to the immediate and surrounding land uses. The project team should assess an activity’s potential effects to the surrounding land use as part of their evaluation of an action’s impacts to the human and built environment. This assessment will require reviewing local and regional development trends and any pertinent state and/or local government plans or policies for land use and growth in the area to ensure consistency. Where possible, the distinction between planned and unplanned growth should be identified.

5.3.2.2.1.8 Right-of-Way

The human and built environment will be impacted by the size and level of right-of-way acquisitions that an action requires. For example, right-of-way effects on the human and built environment can range from small area temporary construction easements to total property acquisitions for permanent inclusion in operational right-of-way requiring property owner relocations. The primary statute governing right-of-way acquisition and relocation assistance is the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. This Act requires that relocation assistance be made available to all displaced persons without discrimination, so that they do not suffer a disproportionate burden as a result of a project designed for public benefit. The regulations implementing the Uniform Relocation Assistance and Real Property Acquisition Policies Act are contained in 49 CFR 24. Additional information about DelDOT’s right-of-way process is contained in Section 5.5.

5.3.2.2.1.9 Other Social Impacts

Additional impacts which could affect the social fabric and quality of life for the community surrounding a proposed project must also be considered. A project and its social effects could be considered beneficial or adverse depending on the existing community and its values as well as the scope of work proposed. The following are among the social impacts that should be evaluated:

Community – Impacts to community would include altering connections by separating, splitting, or isolating neighborhoods or communities. However, actions also have the potential to create new connections as well. Indicators of community cohesion may include observable interactions between individuals/groups or shared attitudes and beliefs.
Safety – Impacts to overall public safety include any project specific impacts of the action relating to the safety of motorists, bicyclists, pedestrians and all multi-modal users.
Economic – Impacts to the local or regional economy would include evaluating an action’s effect to future developments, tax revenues and public expenditures, employment opportunities, and retail sales. Additionally, changes in access control should also be evaluated due to its potential wide-reaching economic effects.
Access to services – Impacts to access to services would include actions that would create, remove, or alter travel patterns to services that include, but are not limited to, shopping areas, school districts, emergency services, churches, recreation area, or libraries. Access to services should be evaluated for all modes of transportation including multimodal and transit.

Performing the social impact assessment can be conducted through a combination of desktop reviews, field investigations, and coordination with local stakeholders. Identified social impacts should be evaluated to ensure community cohesion as discussed in Section 5.3.2.2.1.1.

5.3.2.2.2 Natural Environment

Natural environmental resources are elements or features within our environment that exist independent of human intervention. Natural environment resources are an integral part of our ecosystem as well as culture. The development of a well-justified purpose and need statement is imperative when effects to the natural environment are proposed. 23 CFR 777 establishes the policy and procedures for evaluating and mitigating adverse environmental impacts to wetlands and other natural habitat resulting from actions of Federal-aid projects.

Many natural environmental resources are protected under Section 4(f) of the DOT Act of 1966. The regulatory requirements for 4(f) properties are contained in 23 CFR 774. Coordination with the official with jurisdiction or officials that own or administer the property is required in accordance with 23 CFR 774.5(b). A 4(f) property will only be approved for use if it is determined there is no feasible and prudent alternative and that the action includes all possible planning to minimize harm to the property, or there is only a de minimis impact as defined by 23 CFR 774.17. DNREC maintains several programs that protect the natural, scenic, or open-space values of real property which may create 4(f) implications. These programs include the following:

Conservation easements – 7 Del. C. Chap 69 authorizes DNREC to enter into voluntary nonpossessory agreements with landowners to place development restrictions on their property.
Nature preserves – 7 Del. C. Chap 73 authorizes DNREC to acquire and hold property in trust for the benefit of the people. Property cannot be acquired through exercise of the power of eminent domain under this program.
Open space program – 7 Del. C. Chap 75 authorizes DNREC to acquire open space or to encourage the dedication of currently open space lands to private land preservation organizations. Property cannot be acquired through exercise of the power of eminent domain under this program.

A common mitigation strategy agencies may use to provide compensatory mitigation are mitigation banks. A mitigation bank is a wetland, stream, aquatic resource, or other natural habitat that has been restored, created, enhanced, or in exceptional circumstances, preserved, expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources. DelDOT will prioritize the creation of on-site mitigation but will use off-site project specific mitigation sites or mitigation banks when deemed necessary. DelDOT’s Environmental Stewardship Office is tasked with planning, protecting, creating, monitoring, and tracking the Department’s mitigation and mitigation bank sites.

5.3.2.2.2.1 Water Quality

The nation’s transportation infrastructure plays a prominent and unique role in managing and affecting water quality. Transportation owners are tasked with conveying drainage runoff within their facilities and typically the surrounding land uses as well. Additionally, transportation assets usually comprise a significant portion of the land within a watershed and therefore contribute directly to the watershed’s overall water quality.

The comprehensive federal law establishing water quality policy is the Clean Water Act of 1972 (33 U.S.C. 1251 et seq.). The Clean Water Act significantly reorganized and expanded upon the Federal Water Pollution Control Act of 1948. The Clean Water Act created national water quality criteria recommendations for pollutants in surface waters, required that all discharges of dredged or fill material into a water of the United States be regulated, and made it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained. The EPA’s National Pollutant Discharge Elimination System (NPDES) permit program is tasked with permitting the nation’s point source discharges while the United States Army Corps of Engineers permits discharges of dredged or fill material into a water. A point source discharge is considered any discrete conveyance such as a pipe or a man-made ditch. DelDOT achieves point source discharge compliance by maintaining a Municipal Separate Storm Sewer System (MS4) permits through DNREC where applicable in the state, and through meeting the stormwater management requirements described in Section 4.9. DNREC’s MS4 program operates under the provisions 7 DE Admin. Code § 7201 and the Clean Water Act. Additional information about obtaining water quality standards on a project level is provided in Section 4.9 and Section 4.10.

Additional federal water quality legislation includes the Safe Drinking Water Act of 1974 (42 U.S.C. 300 Part F) and the National Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 et. seq.). The Safe Drinking Water Act provides additional protections for the country’s drinking water supply while the National Wild and Scenic Rivers Act creates additional protections for designated rivers to preserve their outstanding natural, cultural, and recreational values in a free-flowing condition for the enjoyment of present and future generations. The National Wild and Scenic Rivers Act safeguards the special character of these rivers, while also recognizing the potential for their appropriate use and development. The act encourages river management that crosses political boundaries and promotes public participation in developing goals for river protection. In Delaware, there are nearly 100 miles of Wild and Scenic Rivers which includes the White Clay Creek.

Water quality is protected at the state level as described below:

7 Del. C. § 6003(7) and 7 Del. C. § 6071 provide protections for potential pollutant discharges into water bodies. 7 DE Admin. Code § 7201 contains the implementing regulations.
7 DE Admin. Code § 5101 regulates land development activities with the goal of reducing stormwater runoff potential, soil erosion, and nonpoint source pollution.
7 Del. C. Chap 72 requires that activities that use or change subaqueous land be permitted. 7 DE Admin. Code § 7504 contains the implementing regulations for enforcement of 7 Del. C. Chap 72.

5.3.2.2.2.2 Fish and Wildlife

The nation’s fish and wildlife are protected by numerous federal statutes. The legislation that shaped the current protection policy to protect fish and wildlife was the Endangered Species Act (ESA) of 1973 (16 U.S.C. 1531 et seq.). The act was passed by congress in recognition that our nation’s rich natural heritage is of “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people”. The Endangered Species Act creates a coordinated program to conserve imperiled species and the ecosystems upon which they depend through an interagency consultation process. The program is administered by the United States Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS). The USFWS has primary responsibility for terrestrial and freshwater organisms, while the responsibilities of NMFS are mainly marine wildlife such as whales and anadromous fish such as salmon. The regulatory requirements implementing the Endangered Species Act are contained in 50 CFR 402.

The Endangered Species Act allows the overseeing regulatory agency to list a species as either “endangered” or “threatened” thereby establishing protections for the species of fish, wildlife, or plant. The USFWS and NMFS will additionally designate “critical habitat” at the time of listing, when appropriate. Actions proposed by an agency must be reviewed to determine the presence or absence of listed and proposed threatened or endangered species and designated and proposed critical habitat in the project area. When a listed or proposed species or a designated or proposed critical habitat may be present in the project area, a biological assessment must be prepared in accordance with 50 CFR 402.12 to evaluate the potential effects of the action on the listed and proposed species and designated and proposed critical habitat and to determine whether any such species or habitat are likely to be adversely affected by the action. Actions prohibited by the act must be coordinated and ultimately permitted through interagency coordination.

There are several other federal statutes that protect the nation’s fish and wildlife in addition to the Endangered Species Act. A brief discussion of the most pertinent protections is provided below:

Magnuson-Stevens Fishery Conservation and Management Act of 1976 – This is the primary law governing marine fisheries management in federal waters of the United States. The law is intended to prevent overfishing, rebuild overfished stocks, increase long-term economic and social benefits, and ensure a safe and sustainable supply of seafood. Under the law, congress has established the Essential Fish Habitat (EFH) mandate which requires consultation be performed when a federal activity occurs in an area that could affect essential fish habitat. The statute is codified in 16 U.S.C. 1801 et seq.
Fish and Wildlife Coordination Act of 1934 – Legislation enacted to protect fish and wildlife when federal actions result in the control or modification of a natural stream or body of water. The statute is codified in 16 U.S.C. 661 et seq.
Migratory Bird Treaty Act of 1918 – This law makes it illegal to take possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to federal regulations. The statute is codified in 16 U.S.C. 703.
The Bald and Golden Eagle Protection Act of 1940 – This law makes it illegal for anyone to take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or any manner, any bald eagle or any golden eagle, alive or dead, or any part, nest, or egg thereof. The statute is codified in 16 U.S.C. 668 et seq.
Marine Mammal Protection Act of 1972 – This law prohibits, with certain exceptions, the creation of adverse effects to marine mammals in waters of the United States. The statute is codified in 16 U.S.C. 1361 et seq.

DNREC is empowered under 7 Del. C. § 102 to protect, manage, and conserve all forms of wildlife in the State of Delaware. Under their authority, DNREC has established additional state-listed endangered species in 7 DE Admin. Code § 3900 (16.0) as well as incorporated several of the federal protections into state law as well.

5.3.2.2.2.3 Wetlands

Wetlands are delicate natural resources which serve many important and beneficial functions for people, fish, and wildlife. Wetlands improve water quality, store flood waters, maintain surface water flow during dry periods, and create diverse creature habitat. Wetlands are protected under the federal Clean Water Act which is described more fully within Section 5.3.2.2.2.1. Wetlands are defined in 23 CFR 777.2. The federal definition for wetlands is subject to change; however, the definition of wetlands typically considers components of hydrology, hydric soils, and hydrophytic vegetation. Additional federal protections may be provided for wetlands in coastal environments through the Coastal Zone Management Act (CZMA) of 1972 and the Coastal Barrier Resources Act of 1982 which are described in more detail in Section 5.3.2.2.2.4. Additionally, Executive Order 11990 and DOT Order 5660.1A direct federal agencies to avoid new construction in wetlands unless there is no practicable alternative to the construction and the proposed action includes all practicable measures to minimize harm to the wetlands.

At the state level, wetlands are protected by the Delaware Wetlands Act (7 Del. C. Chap 66) and the Delaware Subaqueous Lands Act (7 Del. C. Chap 72). The administrative code implementing these regulations are contained in 7 DE Admin. Code § 7502 and 7 DE Admin. Code § 7504, respectively.

5.3.2.2.2.4 Coastal Locations

Delaware has an extensive coastline that is protected at both the federal and state level. The two pertinent federal laws establishing protections for coastal locations are the Coastal Barrier Resources Act (CBRA)of 1982 and the Coastal Zone Management Act (CZMA) of 1972. The Coastal Barrier Resources Act protects features within locations designated as “coastal barrier units” by prohibiting the expenditure of federal funds to develop these sensitive areas. Coastal barriers are considered landscape features that protect the mainland from the full force of wind, storm surges, or other tidal energy. The Coastal Zone Management Act encourages states to develop their own coastal management program to preserve, protect, develop, and where possible, to restore or enhance the resources of the nation’s coastal zones through financial incentives. States that have an approved coastal management program are permitted to review federal actions within the coastal area to ensure the action is consistent with the State’s coastal management program. The Coastal Barrier Resources Act is codified in 16 U.S.C. 3501 et seq. and the Coastal Zone Management Act is codified in 16 U.S.C. 1451 et seq. DNREC oversees Delaware’s Coastal Management Program.

At the state level, 7 Del. C. Chap 68 provides authority to the DNREC to enhance, preserve, and protect the public and private beaches of the State and 7 Del. C. Chap 70 empowers DNREC to permit industrial development within the State’s coastal zone. 7 DE Admin. Code § 5102 is the regulations implementing DNREC’s authority under 7 Del. C. Chap 68 while 7 DE Admin. Code § 101 is the regulations implementing DNREC’s authority under 7 Del. C. Chap 70. Additionally, Delaware Executive Order No. 42 requires that state agencies provide an opportunity for one another, federal agencies, and other interested parties to review and comment on proposed actions which may be of more than local interest.

5.3.2.2.2.5 Floodplains

Floodplains are areas of land adjacent to a waterbody that help mitigate the effects of flooding during an event by capturing and holding excess water. Executive Order 11988 directs federal agencies to avoid encroachments into floodplains unless there is no practicable alternative. FHWA’s procedures implementing Executive Order 11988 are contained in 23 CFR 650 subpart A. Encroachment, as defined by 23 CFR 650, is an action occurring within the 100-year floodplain limits as delineated in the National Flood Insurance Programs (NFIP) maps or by information developed by DelDOT if NFIP maps are not available.

5.3.2.2.2.6 Farmland

The Farmland Protection Policy Act (FPPA) of 1981 was created to minimize the extent to which federal programs contribute to the unnecessary and irreversible conversion of farmland to nonagricultural uses. Under the act, protected farmland includes:

Prime farmland that has the best combination of physical and chemical characteristics for producing food, feed, fiber, forage, oilseed, and other agricultural crops with minimum inputs of fuel, fertilizer, pesticides, and labor, and without intolerable soil erosion.
Unique farmland, other than prime farmland that is used for production of specific high-value food and fiber crops.
Farmland other than prime or unique farmland that has been determined by the appropriate state or local government with concurrence from the Secretary of Agriculture to be farmland of statewide or local importance.

Under the act, land subject to the requirements of the act does not need to be currently used for cropland. Instead, it can include forestland, pastureland, cropland, or other land, but not water or land already in or committed to urban development. The regulations implementing the statute are contained in 7 CFR 658.

3 Del. C Chap 9 permits the State of Delaware to acquire, maintain, and enforce agricultural land preservation easements. The administrative code implementing these regulations is contained in 3 DE Admin. Code § 701.

5.3.2.2.2.7 Forestland and Trees

There are no nationally protected forestlands in the State of Delaware; however, 3 Del. C. Chap 9 authorizes the State to create protections for forestlands. The administrative code implementing these regulations is contained in 3 DE Admin. Code § 702.

17 Del. C. § 201 et seq., commonly referred to as the “Tree Bill”, provides protection to trees throughout the State. The Tree Bill requires that DelDOT make every reasonable effort to preserve large, mature trees and to only remove, cut, or clear the minimum number of trees and shrubs that are necessary to complete a project in a manner that is consistent with safe design practices. Additionally, the Tree Bill requires performance of a tree survey prior to construction to determine the number trees that will be removed, cut, or cleared on projects on new alignment or where the roadway is widened by the addition of one or more through travel lanes on all expressway, arterial, or collector type roads. The result of the tree survey determines the project’s mitigation requirements under the Tree Bill. For purposes of the tree survey, only trees that are four inches or larger in diameter at four feet above the ground are considered. Additional information on landscaping is included in Section 4.15.

5.3.2.3 Re-Evaluation


Department Resources
FHWA Programmatic Agreement Regarding CEs

NEPA documents and previous decisions and determinations are to be periodically re-evaluated within the project development process in accordance with 23 CFR 771.129. Re-evaluations are to occur prior to new approvals (e.g. authority to undertake final design, authority to acquire a significant portion of the right-of-way, or approval of the plans, specifications and estimates), amending any previously approved aspect of an action, and after federally prescribed timeframes are exceeded. Re-evaluations are performed to assess whether the approved environmental document remains valid for the requested action or if additional analysis and/or documentation is necessary. During a re-evaluation, attention is given to determine what changes have occurred in the project and the study area including changes in the design or scope of a project that may result in environmental impacts not previously evaluated, new or modified laws and regulations, new information or circumstances that may result in environmental impacts not previously evaluated, or any new information in general. The finding or conclusion of a re-evaluation is that the NEPA decision or documentation is valid or that additional analysis is required. Categorical exclusion re-evaluations are to be performed by DelDOT’s Environmental Stewardship Office staff in accordance with the DelDOT and FHWA programmatic agreement for categorical exclusions. When necessary, supplemental EISs are to be completed in accordance with 23 CFR 771.130.

5.3.3 Project Permitting

Project permits or other similar agreements are required from regulatory agencies when a project’s scope will impact certain protected environmental resources. DelDOT obtains project permits by submitting permit applications and other necessary information to the governing regulatory agency for review. The regulatory agency will review the submitted material to ensure a project’s compliance with the applicable laws and regulations and will also provide required contract stipulations. The permits required for a project are determined by project location, affected resources, funding sources used, and the specific work activities associated with the impact. The design team should coordinate with DelDOT’s Environmental Stewardship Office throughout the project development process to identify the permits and approvals required for each individual project. All changes in project scope should be communicated to the Environmental Stewardship Office as these changes may affect the permitting process. Communication between the design team and the Environmental Stewardship Office is especially critical on DelDOT contracts which utilize alternative contracting methods like Design Build and CMGC contracts where project impacts can change quickly.

For projects which receive federal funding, project permits are applied for only after the NEPA document described in Section 5.3.2 is approved. It is typical to apply for the project’s required permits only after all comments made at the Final Plan Submission have been adequately addressed and construction methods understood. Applying at this point in the project development process reduces the likelihood of time-consuming permit modifications which also have the effect of reducing the regulatory agency’s trust in DelDOT’s submittals. This section provides a discussion on the common environmental permits that DelDOT will obtain for their projects.

5.3.3.1 United States Army Corps of Engineers (USACE)

Permits from the United States Army Corps of Engineers (USACE) are needed when their jurisdictional waters or wetlands are impacted either permanently or temporarily by a project. The Environmental Stewardship Office can assist in determining which wetlands and waterways are considered under the jurisdiction of the USACE. The permit required from the USACE is dependent on the project’s scope as well as the project’s level of impact. The Environmental Stewardship Office will collaborate with the design team to determine the permit required for a project.

Information required to process USACE permits include complete project plans and mitigation plans when required. The need for mitigation as well as associated mitigation considerations are contained in Section 5.3.3.1.1. It is important to note that the mitigation plan must be complete at time of application and that construction of the mitigation site and the project causing the impact must be planned to occur concurrently.

In general, most DelDOT projects fall within the two types of USACE permits:

Reporting permits – Reporting permits are required to formally notify the USACE through a Pre-Construction Notification (PCN) prior to a project’s construction occurring. These permit types typically require processing times exceeding six months.
Non-reporting permits – Non-reporting permits are usually appliable for small-scale maintenance projects. These permits do not require a PCN. These permits have a shorter processing time of approximately one to two months.

Additional information about applicable water quality protections and wetland protections is included in Section 5.3.2.2.2.1 and Section 5.3.2.2.2.3, respectively.

5.3.3.1.1 Mitigation Requirements

In order to avoid project delays, the design team should determine if a mitigation site will be required as early in the project development process as possible. Mitigation site development requires performing a site search, finding a willing seller, collection of data to determine viability of mitigation at a location, and then the mitigation site design.

Mitigation is required to obtain the necessary USACE permit under the following circumstances:

A project creates a permanent loss of over 0.100 acres of combined wetlands and water,
A project creates 0.100 acres of wetland loss, or
A project creates 0.030 acres of water loss.

The Environmental Stewardship Office will coordinate potential mitigation sites directly with the USACE. The locating of and then the design of the mitigation site must consider the following elements:

Mitigation must be “in-kind”. For example, tidal wetland impacts must be mitigated by creation of tidal wetlands.
The mitigation site must be located within the same watershed.
Mitigation ratios vary depending upon the quality of the resource impacted as well as the severity of the impact and are determined by the USACE. Typically, DelDOT projects will replace at a ratio of 1:3 meaning DelDOT will create three acres for every one acre impacted.

5.3.3.2 United States Coast Guard (USCG)

Coordination with the United States Coast Guard (USCG) is required when a navigable waterway is impacted. Typically, navigable waterways are tidal waterways since they have connection to a larger body of water that can be used for the transportation of commerce. The coordination process begins by the Environmental Stewardship Office completing and submitting a Coast Guard Bridge Questionnaire. The USCG will review the submitted questionnaire and determine the subsequent coordination and permits required. Coordination possibilities include the following:

No permit required, however, DelDOT must submit the USCG a Bridge Maintenance Plan when 60 days out from project construction.
Advanced USCG approval and DelDOT must submit the USCG a Bridge Maintenance Plan when 60 days out from project construction.
A USCG Bridge permit is required. Unlike other permits, the USCG will not review the permit application until NEPA and all other necessary permits have been processed. Also, unlike other permits, the USCG permit application will be completed by the design team instead of the Environmental Stewardship Office as the permit application consists of mostly engineering, hydraulic, and proposed horizontal and vertical clearances associated with the location. The USCG can take up to 180-days to review a complete permit application. Incomplete permit applications which require subsequent submittals from DelDOT will reset the 180-day review period. Therefore, it is critical to coordinate with the USCG throughout the project development process to ensure an efficient review and approval process.

5.3.3.3 DNREC Wetlands and Waterways

All projects that impact a State Regulated wetland will require a permit from DNREC. DNREC’s original mapping to create the State Regulated wetland boundaries was performed in the 1980s based on aerial footage. Due to the limitations of the existing State Regulated wetland dataset, boundaries within the project limits will need to be confirmed through coordination with the DelDOT Environmental Stewardship Office.

Permits for impacts to State Regulated wetlands will be processed through DNREC’s Wetlands and Waterways section. DNREC’s Wetlands and Waterways section maintains many different permit types. DelDOT’s Environmental Stewardship Office will coordinate with DNREC to determine the appropriate permit for a project. The design team must provide DelDOT’s Environmental Stewardship Office an updated and accurate set of plans so that the section can process the DNREC permit. The most common DNREC Wetlands and Waterways permits that DelDOT utilizes includes the following:

Special Exemptions – These permits are intended to cover road or bridge maintenance work performed in non-State Regulated wetlands. This includes repair, rehabilitation, and retrofitting work. Special Exemptions do not require the submission of a full permit application and can instead be performed through email by the Environmental Stewardship Office.
Letter of Authorization – This type of permit is required when a project creates only temporary impacts to wetlands or waterways. This permit type does not require public notice. Examples of work which can be permitted via a Letter of Authorization permit include pile jacketing projects and small pipe replacements.
Subaqueous Lands – This permit type is required when permanently impacting State Regulated wetlands. This permit requires a public notice of 20-days.
Water Quality – This permit type is typically issued with other DNREC Wetlands and Waterways permits.

All permanent impacts to State Regulated wetlands will require mitigation in some form. Typically, the mitigation that is required to obtain the USACE permit described in Section 5.3.3.1 will satisfy DNREC’s mitigation requirements. If the project is under the USACE mitigation threshold, and only DNREC mitigation is required, then DNREC will typically accept an in-lieu fee for these impacted wetlands. The fee is determined by DNREC based on the quality of wetlands being impacted and is therefore, a project-by-project consideration.

5.3.3.4 New Castle County

A New Castle County floodplain permit is required when a project is located within a designated FEMA (Federal Emergency Management Agency) floodplain in New Castle County. To obtain a New Castle County Floodplain permit, DelDOT must submit the project plans, a cover sheet, a permit fee, and a completed Hydrologic and Hydraulic analysis report to the County for review. Additional information about floodplains is included in Section 5.3.2.2.2.5.

5.3.3.5 City of Wilmington

Projects that fall within the limits of the City of Wilmington will require a floodplain permit from the city. The Environmental Stewardship Office will require project plans from the design team in order to process this permit application.

5.3.3.6 DNREC Coastal Zone Management Act (CZMA)

Projects may need to obtain a Coastal Zone Management Act (CZMA) consistency letter from DNREC depending on the project’s location and potential coverage under a separate USACE permit. DNREC’s CZMA consistency letters are processed through the Division of Climate, Coastal, and Energy (CCE). To obtain a consistency letter, DelDOT must submit the project plans and a project schedule to DNREC’s Division of CCE . DNREC’s Division of CCE has up to 180 days for review once provided the required information. Additional information about coastal zone protections is included in Section 5.3.2.2.2.4.

5.4 Utilities

In addition to providing for the movement of people, goods, and services, transportation corridors also commonly accommodate public utilities in recognition that their provision is in the public interest. The coexistence of public utilities and transportation facilities within limited space creates the need for coordination when actions are proposed that could potentially affect the other entities within the transportation corridor. The process within this manual describes DelDOT’s project development process where DelDOT coordinates its actions with the potentially affected utilities. Similar to DelDOT’s project development process, utility owners must coordinate their actions with DelDOT through the utility construction permitting process. The utility construction permitting process occurs outside of DelDOT’s project development process and is therefore not detailed within this manual.

The means by which utility infrastructure crosses or otherwise occupies the right-of-way can considerably affect the highway, its safe operation, aesthetic quality, and maintainability. It is essential that the services provided by the transportation network and the utilities be balanced and compatibly designed and operated to ensure maximum public benefit. This balance can become particularly challenging along corridors within or approaching metropolitan areas where space becomes increasingly limited. Joint highway and utility planning and development efforts are encouraged to effectively manage these challenges. 23 CFR 645.211 and 23 CFR 645.215 require that each state department of transportation submit a utility accommodation plan in recognition of the important role that state Departments of Transportation play in providing for and regulating utilities within the public right-of-way.

While the Delaware Code allows public utilities and privately or individually owned facilities within the public right-of-way, it also delegates DelDOT the sole legal authority and responsibility to regulate the use of all utilities within the rights-of-way of highways and streets maintained by DelDOT. In accordance with 2 DE Admin. Code § 2401 (5.2), the public utility owner must obtain a master franchise agreement for each county in which it wishes to place utility facilities. The master franchise agreement serves as the legal instrument which establishes the rights of the utility owner and its associated requirements for maintaining facilities within the State’s right-of-way. Master franchise agreements require that all necessary future relocations or adjustments caused by a DelDOT project be performed by the affected utility owner unless one of the conditions for reimbursement described in Section 5.4.4 are met. In accordance with 2 DE Admin. Code § 2401 (5.3), privately or individually owned facilities that wish to occupy or cross the State’s right-of-way must obtain a Use and Occupancy Agreement.

5.4.1 Utility Coordination Process


Department Resources
Utility Coordination Submission Checklist
Utility Process Flow Chart

DelDOT and utility owners must exchange information regarding location, construction timing, and method of installation throughout the coordination process. Early, on-going, and consistent communication with utility owners throughout the project development process is critical to ensuring on-time project delivery. DelDOT’s Utilities section is staffed with subject matter experts who serve to oversee the utility coordination process. DelDOT’s Utilities section regularly meets with and directly coordinates with the utility owners within DelDOT’s right-of-way. Each DelDOT project will be assigned a specific Utility Coordinator by the Utilities section to oversee the utility coordination process. The project’s Utility Coordinator is typically assigned based on county but will also be influenced by the section’s workload. DelDOT’s Utilities Engineer will notify the Project Manager once the project’s Utility Coordinator is assigned. The Utility Coordinator’s role will vary in accordance with the specific parameters of the project; accordingly, the Project Manager and Utility Coordinator should discuss project roles and responsibilities as early as feasible to ensure efficient performance.

The specifics of the utility coordination process will be unique to each project and will depend on the circumstances associated with the project. The commonality of the utility coordination process is proactive engagement and the performance of coordination activities as early as possible in the project development process to avoid project delays caused by utility coordination. The utility coordination process can generally be broken down into the following components:

Locating utilities – The first step in utility coordination is determining which utilities may be affected by a project. Once the utilities in the project area are identified, additional investigation may be performed, at the discretion of the project team, in order to more accurately locate the existing utilities. Locating existing utilities is further discussed in Section 5.4.2.
Conflict assessment – Once the existing utilities have been located, the proposed work can be evaluated to determine potential conflicts which will need to be mitigated as part of the project development process. Sufficient time must be allotted to allow both the design team and the affected utility owners to assess and plan any required mitigation. The need for additional real estate acquisition should be given special attention during this assessment in order to provide adequate time for the acquisition process. Additional discussion on assessing conflicts is provided in Section 5.4.3.
Determining reimbursement and work responsibilities – In general, the owners of the utility within the State’s right-of-way are responsible for making all necessary relocations and adjustments caused by a DelDOT project and their associated work is not reimbursable; however, there are exceptions which are described in Section 5.4.4. Reimbursable work costs are to be accounted for within a project’s budget as early as possible in the project development process. More information about estimating this cost is included in Section 6.5.
Creation of utility deliverables – The utility coordination process is to result in the creation of the deliverables described in Section 5.4.5. The deliverables are intended to establish the mitigation work that will be performed as well as describe the responsibilities of all entities involved with the required work.

In most cases, the components of the utility coordination process will overlap in time and occur simultaneously within the overall utility coordination process. The design team must allot sufficient time for the performance of each component of the utility coordination process. Additionally, the design team must also allot an appropriate amount of time for the following:

Material procurement – Time may be required for material procurement especially when required materials are subject to Buy America provisions.
Scheduling – Utility owners have finite resources and their own priorities and budgets. The utility owners will require time to fund and schedule the work required from impacts of the proposed construction.

A recommended utility coordination process based on submittal milestones is provided in DelDOT’s Utility Coordination Submission Checklist, however, the utility coordination process should be viewed as a dynamic process that will vary depending on numerous project-specific factors. Accordingly, not all submissions listed in the checklist will be necessary for each project, while in other cases, additional submittals or re-submittals may be required based on the project’s individual need. In addition to this checklist, the DelDOT Utilities section also maintains a Utility Process Flow Chart which generally describes DelDOT’s coordination process.

5.4.1.1 The Utility Permit Application (UPA)


Department Resources
Utility Permit Application
Utility Coordination Submission Checklist

DelDOT and the utility owners routinely exchange information through the Utility Permit Application (UPA) website. The design team should work with the DelDOT Utilities section’s assigned Utility Coordinator to determine responsibility for placing deliverables onto the UPA. Utility owners will respond to DelDOT deliverables placed on the UPA by providing the information outlined in Section 5.4.1.5 to the design team. The design team should review the information provided and incorporate it into their subsequent deliverables. The design team should alert DelDOT’s Utility Coordinator when discrepancies are found in the information provided so remedial action can be taken. DelDOT’s Utility Coordination Submission Checklist provides a base framework of the deliverables that should be provided through the UPA to the utility owners.

5.4.1.2 Supplying Electronic Files

Utility coordination may require that electronic design files be exchanged with both public or private utility owners that have above or belowground infrastructure located within the limits of the project. In these occurrences, DelDOT’s policy is to only share the files included in Table 5.4.1.2 unless specifically requested otherwise.

Table 5.4.1.2 – Electronic File Availability for DelDOT Design Data
Data Type & Format	File Description
FS.DGN	This file contains the existing topographic information within the project limits that has been exported to a two‐dimensional (2D) design file in the MicroStation design file format (DGN).
AL.DGN	This file contains the horizontal and vertical alignment information within the project limits that has been exported to a two‐dimensional (2D) design file in the MicroStation design file format (DGN).
RW.DGN	This file contains the existing right‐of‐way, and proposed right‐of‐way (if available) information within the project limits in the MicroStation design file format (DGN).
PC.DGN	This file contains the proposed construction line work within the project limits in the MicroStation design file format (DGN).
UT.DGN	This file contains existing and proposed utility information within the project limits that has been exported to a two‐dimensional (2D) design file in the MicroStation design file format (DGN).
Contract Plans (PDF)	These files consist of the contract plan sheets at the most current plan milestone in the Adobe Portable Document File format (PDF). Plans that are still in the design phase should clearly be identified with a “Draft” watermark.

5.4.1.3 Coordination Meetings

Coordination meetings with the utility owners can be an extremely beneficial tool for exchanging information. Coordination meetings can either include all the affected utility owners or just select utility owners at the discretion of the assigned DelDOT Utility Coordinator and the Project Manager. Other stakeholders should be invited as determined necessary by the Utilities section and the Project Manager. These meetings can occur at various times within the project development process with topics varying accordingly. The coordination meeting can either be held at the project location, as a virtual meeting, in-person in a group setting, or any combination thereof dependent on the topics that will be discussed at the meeting. Meeting topics could include the following:

General project information – Project goals, objectives, and general project timing can be discussed to establish general context for additional coordination meeting discussion topics.
Utility corridor identification – Establishing general locations for relocated utility facilities is a key consideration in the utility coordination process. 2 DE Admin. Code § 2401 establishes pertinent lateral and vertical offset requirements for utility facilities. The design team and the utility owners will need to coordinate corridor layouts to ensure efficient future operation and maintenance.
Conflict points – Identified conflicts between proposed construction features and existing utilities can be discussed and resolutions agreed upon.
Constructability – Utility relocation timing, seasonal work restrictions, construction sequencing, the feasibility of utility outages, work responsibilities, maintenance of traffic (MOT) requirements, work hour restrictions, clearing needs, and any required advanced work (such as clearing and grubbing) can be discussed.
Review of deliverables – Recent or upcoming deliverables can be reviewed and discussed to further the coordination process.
Power service locations – Identification of existing and proposed services for all DelDOT signals, lighting, and intelligent transportation management systems (ITMS). Power service requests are discussed in more detail in Section 5.4.1.4.

Updated deliverables and meeting minutes should be distributed after coordination meetings to document the discussion and the decisions made. When materials are distributed after the meeting, the project team should provide a date on which comments are expected back. The date chosen should allow enough time so that the affected stakeholders have adequate time to review and perform the necessary follow-up items but not so much time that it causes delays in the rest of the project development process.

5.4.1.4 Power Service Request


Department Resources
DGM 1-27: Electric Power Service Request for Roadway Lighting, Traffic Signals and ITS Equipment

A power source is required for the operation of certain DelDOT infrastructure including roadway lighting, traffic signals, and ITMS equipment. When required, the design team must identify power sources during the project development process to minimize later delays during construction. DelDOT maintains specific guidance for performing this coordination on capital projects in DGM 1-27 entitled Electric Power Service Request for Roadway Lighting, Traffic Signals and ITS Equipment.

5.4.1.5 Composite Utility Map

A composite utility map displaying the entire project limits with existing and proposed right-of-way, utility, and roadway features can be created to aid in the coordination process. The amount of detail shown in the composite utility map should be commensurate with the project’s scope and milestone submission. The map can be provided in either DGN format or KMZ format and include the utilities color-coded in accordance with American Public Works Association (APWA) color-coding standards. The composite utility map is most beneficial when created and provided before other submittals are required in the project development process which will show the location of the existing and proposed utilities within the project’s limits.

5.4.1.6 Utility Company Design and Markup Responsibility

The affected utility owner is responsible for all design associated with their required adjustments and relocations while the DelDOT design team is responsible for incorporating the information provided by the utility owners into the project. The utility owner will review project milestone submissions and provide markups, comments, or additional information on the following elements:

Verification of the presence and location of existing facilities regardless of whether or not designation was performed.
Information on any other utility owners attached to its poles in the area.
Proof of compensatory interests when the proposed work could be considered as reimbursable. See Section 5.4.4 for more information.
Suggested design modifications that would eliminate relocations.
List of stations and offsets where test holes are requested.
Description of utility relocations along with estimated timeframe for construction.
Locations of additional right-of-way or easements necessary for facility relocation.
Identification of any third-party permits that may be required.
Known or anticipated upcoming utility facility work in the project area.
Conditions or situations in which the utility owner’s work is dependent upon. This could include sequencing of utility relocation or work that will need to be performed by DelDOT’s contractor including clearing and grubbing or furnishing of borrow.
Any work or outage restrictions.
Joint use or third-party installation requirements.
General comments on any potential problems that could affect the project schedule or plan development.

5.4.2 Locating Existing Utilities

Determining the presence and proximity of the existing utilities within the project area is the first step to understanding the potential effects that a project will have on them. The discipline of engineering that manages risks associated with utility mapping at appropriate Quality Levels is called subsurface utility engineering (SUE). Performance of SUE provides valuable subsurface infrastructure information that enables the design team to make informed decisions, coordinate utility adjustments or relocations, and minimize project risks associated with utilities.

SUE is a professional engineering service which utilizes different means and methods to locate and map underground utilities. As a professional service, deliverables provided to DelDOT from a SUE company are required to be signed and sealed by a registered professional engineer. The American Society of Civil Engineers (ASCE) has developed National Consensus Standard, ASCE/UESI/CI 38-22, titled Standard Guideline for Investigating and Documenting Existing Utilities which is recognized as the consensus industry standard for defining a professional’s standard of care and level of responsibility for SUE work. It is a combination prescriptive and performance standard. As a prescriptive standard, it sets forth a series of minimum actions necessary to achieve Utility Quality Level documentation. As a performance standard, it describes the significant professional judgement exercised by the SUE professional to determine the appropriate timing, sequencing, location, and scope of utility investigation effort to achieve the goal of reduced utility conflicts during project delivery. SUE assigns Quality Levels that define the level of uncertainty of a utility’s location and existence and reflect the professional opinion on the reliability of utility information provided. The Quality Level assigned is determined by the means and methods used to obtain the information among other things. The SUE levels are cumulative meaning that in order to meet the highest quality standard, all proceeding Quality Level methods must have been exercised.

Studies and DelDOT’s experience have shown that performing the appropriate amount of SUE provides significant return on investment by reducing unneeded utility relocation expenses and construction delays and damages which thereby reduces overall project costs. The appropriate level of SUE required is typically determined by the scope of the project, the existing site constraints present, the number and type of existing utilities within the project area, and the tolerable level of risk associated with not having precise horizontal or vertical locations of existing utility facilities. The Project Manager and the DelDOT Utility Coordinator will need to work collectively to determine the level of SUE required and the appropriate entity to perform the SUE work for each project. The desired SUE work can either be performed under DelDOT’s Indefinite Delivery / Indefinite Quantity (IDIQ) project development professional service agreements or can be performed under the DelDOT Utilities section’s professional service agreements. Only one entity should be assigned the responsibility for performing the SUE work on a project due to the professional liability associated with providing the deliverables.

All completed SUE deliverables are to be uploaded to the UPA upon completion. The design team is to review the completed SUE work and bring all discrepancies discovered to the attention of the DelDOT Utility Coordinator. The design team and DelDOT Utility Coordinator are to reach resolution on each discrepancy identified. The design team and the DelDOT Utility Coordinator are not to change any SUE deliverable without consulting the entity that performed the SUE work. Once all discrepancies are resolved, the design team is to incorporate the SUE work into their project files. Care should be taken to ensure that the plans only reflect the highest available Quality Level for each utility line. DelDOT’s CADD standards for depicting utility Quality Levels are included in Section 6.4.

ASCE 38-22 defines four Quality Levels for collected utility data and outlines the requirements, relative accuracy, and methods involved in achieving each level. The recognized ASCE Quality Levels for SUE mapping are described in the following subsections.

5.4.2.1 Existing Utility Records (QL-D)

The lowest ASCE Quality Level is Quality Level D (QL-D). Quality Level D relies exclusively on existing utility records such as GIS data, circuit diagrams, valve guides, record drawings, field notes, and discussions with utility owners to determine utility location. Quality Level D information is limited in terms of comprehensiveness and accuracy and is primarily useful for project planning and route selection activities. DelDOT typically obtains Quality Level D information in one of these two ways:

Delmarva811 design tickets – Delmarva811 was developed as a risk-based system to be performed prior to excavation. A Delmarva811 design ticket can be filed at any time to obtain a list of utility owners that potentially have facilities within the project area as well as to request as‐builts and/or facility maps be submitted by the utility owners. A Delmarva811 design ticket can be submitted at any point in the project development process. DelDOT will also file a Delmarva811 design ticket when there has been a two-year or longer lapse of time between existing utility investigative efforts. The design ticket number is to be recorded in the UPA under “Shared Discussion”. Any information submitted by utility owners in response to the design ticket is to be uploaded to the UPA under “Utility Company Documents”.
Utility owner markups to plan submittals – Utility owners are to provide markups showing their existing facilities as well as their as‐builts and/or facility maps upon receipt of DelDOT plans. The information provided by the utility owner is considered Quality Level D in the event that no field survey was collected and provided to the utility owners ahead of their review.

This Quality Level investigation does not require performance by a SUE professional, however, if Quality Level B or Quality Level A information is requested, the SUE consultant selected for the work must perform this level of investigation ahead of their subsequent Quality Level B or Quality Level A investigative work.

5.4.2.2 Topographic Field Survey (QL-C)

Quality Level C information is obtained when Quality Level D information is correlated to topographic aboveground survey collected for visible utility features. Amongst other features present, visible features include manholes, utility poles, valve boxes, meters, fire hydrants, and utility boxes.

5.4.2.3 Utility Designation (QL-B)

Quality Level B information is typically referred to as utility designation. Utility designation is obtained through surface geophysical techniques which rely on either inductive or conductive methods to horizontally locate the utility facilities. Inductive methods induce a current along a utility while conductive methods directly connect to the utility. Utility designation utilizes single or multi-frequency electromagnetic units, ground penetrating radar, sonde or sonic equipment, and other instruments tailored to project materials and site conditions. These tools indirectly survey utilities by transmitting/ receiving signals that indicate subsurface anomalies likely representing utilities. To be considered Quality Level B, the information must be supported by Quality Level D and C information and must be guaranteed by a professional engineer. Performance of designation addresses problems caused by inaccurate utility records, abandoned or unrecorded facilities, and lost references. The designation process includes field marking the utility locations at ground level for subsequent survey to the tolerances described in in Section 3.7.2.1. The utility designation results in a file that can be referenced into a project’s base mapping and which is later reproducible in the field. Designation provides a comprehensive assessment of the existing utilities and can be used to guide subsequent physical exposure activities.

Existing site conditions may limit the accuracy or potentially, the availability to perform utility designation. Factors affecting the quality of utility designation include the following:

Non-conductive material – Best designation results are obtained when a utility is conductive and can be connected to directly with electronic detection equipment. Challenges arise when non-conductive lines are placed using directional bore methods without tracer wire. In these cases, Delmarva811 will also only be able to mark the line from records instead of electronic detection methods. Different methods can be used to mitigate this challenge, including the following:
- If the line is accessible (i.e. communications/electric conduit, gravity sanitary sewer) a conductor could be inserted into the line from the access point. A signal will be introduced at that point and traced out.
- If the line is a non-metallic water pipe, a pulse can be induced on the fluid within the pipe which can be used to determine the line’s location. This method will not provide as accurate of information as if the facility was directly traceable.
- Ground penetrating radar can be used to locate existing non-conductive materials. This method does not provide as accurate of results as if the facility was directly traceable and is further limited by increased depth, existing compacted soil, and elevated water tables.
- Continuously performed test holes along the line can be performed as a final alternative.
Site access – The performance of designation may be limited based on the level of access available to the utilities. This would include utilities placed within wetlands or other natural features or where access is prevented through man-made barriers.
Utility depth – In general, the deeper the utility the less accurate the designation information. Elevated groundwater tables and tightly compacted soils could also decrease designation accuracy.
Number of utilities in the area – A large number of utilities within a limited area or other roadside features, like guardrail or metal drainage pipe, can also lead to decreased designation accuracy.

5.4.2.3.1 Utility Designation Requests


Department Resources
Utility Designation Request Form
2010 CADD Standards Manual

Utility designation can be requested through DelDOT’s Utilities section or can be performed under the design team’s professional service agreement. The design team should discuss the appropriate agreement to perform the utility designation under with the project’s DelDOT Utility Coordinator when designation is desired. The design team will need to complete DelDOT’s Utility Designation Request Form and provide the following items to the SUE company to process the request when utilizing the DelDOT Utilities section’s professional services agreements:

A PDF of the survey control sheet,
FS file in dgn format,
HV file in dgn format,
UT file in dgn format,
AL file in dgn format, and
PC file in dgn format.

Additional description on the CADD files required for designations is contained in the DelDOT’s 2010 CADD Standards Manual.

5.4.2.4 Test Holes (QL-A)

The highest-level SUE information is obtained by performing test holes and is termed Quality Level A. Test holes involve use of non-destructive digging equipment which minimizes the potential for damage to an existing utility to determine the precise horizontal and vertical position of underground utilities, as well as the type, size, condition, material, and other characteristics by exposing the utility. Due to the cost of test holes, this technique should be used judiciously at the critical points where exact locations are required. Test hole accuracy is generally considered to be accurate to within 0.04 feet. Test holes at specific locations may be requested by the utility owners through the coordination process. It is important for the design team to coordinate proposed locations and needs prior to sending a test hole request.

The nondestructive excavation method typically used is vacuum removal. In accordance with 2 DE. Admin. Code § 2401 (4.8.2.12.2) hydro excavation of test holes is not permitted within the right-of-way. SUE equipment can typically go as deep as needed, however, water table, soil structure/stability, rocks, and size and composition of the utility facility often become the factors that limit the depth of the exploration.

Prior to mobilization to perform test holes, the locations that are to be investigated should be assessed for any potential hazmat so that proper precautions can be taken. Additional information on the resources available to conduct this assessment is included in Section 5.9.

5.4.2.4.1 Test Hole Requests


Department Resources
Utility Test Hole Request Form
2010 CADD Standards Manual

Test holes can be requested through DelDOT’s Utilities section or can be performed under the design team’s professional service agreement. The design team should discuss the appropriate agreement to perform the test holes under with the project’s DelDOT Utility Coordinator when test holes are desired. The design team will need to complete DelDOT’s Utility Test Hole Request Form and provide the following items to the SUE company to process the request when utility the DelDOT Utilities section’s professional services agreements:

A plan showing the location of each proposed test hole location,
FS file in dgn format,
HV file in dgn format,
UT file in dgn format,
AL file in dgn format, and
PC file in dgn format.

Additional description on the CADD files required for test holes is contained in the DelDOT’s 2010 CADD Standards Manual.

5.4.3 Conflict Assessment


Department Resources
Utility Conflict Matrix Worksheet (UCM)
Utility Conflict Matrix Worksheet User Guide

Once utility locations are determined, conflict points both aboveground and belowground can be evaluated and ultimately resolved. The design team and utility owners should partner to perform this critical activity aimed at eliminating, minimizing, and mitigating project risks. The project’s proposed drainage and other underground features should be assessed in relation to the location of the existing utilities to identify potential conflict points. Proposed aboveground features must be evaluated for conflicts with existing and relocated features for conflicts. The project team must also identify potential conflicts that performance of the proposed work will create. For example, adequate space must be provided from aerial facilities to allow for construction of all proposed project elements.

The project team should strive to avoid utility impacts whenever feasible due to the project related risks associated with utility impacts, however, avoidance will not always be possible and must be considered on a site-specific basis. When utilities must be impacted by the proposed construction, attempts should be made to minimize the impact so that the utility can remain in place with only minimal impact or adjustments being required. The project team must also consider the future maintenance implications when evaluating whether an existing utility should remain in place or be relocated. DelDOT’s Utilities section will make all final determinations regarding whether existing utilities can remain in place or must be relocated. Utilities that will be required to relocate as part of the project, if not previously notified, should be notified as soon as possible so that relocation design can commence. The necessary relocation designs will be instrumental in establishing additional property rights that will need to be acquired as part of the project. Accordingly, draft relocation plans and any associated additional real estate requirements must be completed prior to final right-of-way to facilitate an efficient acquisition process.

DelDOT projects are to utilize DelDOT’s standard Utility Conflict Matrix Worksheet (UCM) to document conflict point determination, analysis, and ultimate resolution. DelDOT also maintains a Utility Conflict Matrix Worksheet User Guide to assist in effective and uniform usage of the UCM. The UCM serves to highlight the conflicts that must be mitigated, and which conflicts need additional information such as test holes before a resolution can be determined. When available, the project’s current version of the UCM will be distributed with each submission to the utility owners through the UPA. DelDOT’s Utility Coordinator will review the UCM before each submission and may require corrections prior to distribution.

5.4.4 Utility Company Reimbursement

In general, when utilities are affected by DelDOT projects, the utility owner is responsible for making all necessary relocations and adjustments and their associated work is not reimbursable, however, there are exceptions. Effort is to be made as early in the project development process as possible to determine the utility work that may be reimbursable due to the time required to evaluate the proof of compensatory interest and to create the necessary reimbursement agreements. An executed reimbursement agreement which outlines the obligations and responsibilities of each party must be in place before any design or construction work begins for all or part of the eligible utility adjustments. The agreement must also be in place prior to issuance of the utility statement. The project team will be required to estimate the utility reimbursement cost and account for that cost within the project budget prior to the utility providing an estimate. The project team will be required to estimate all reimbursable costs including the design, inspection, and construction costs. Additional information on estimating this cost is included in Section 6.5.

Compensable utilities are to prepare an estimate for preliminary engineering to design the adjustment and/or relocations upon receipt of the executed agreement. The utility owner will ultimately be required to provide DelDOT a utility PS&E (plans, specifications, and estimate) package with marked color plans indicating existing facilities to remain, existing facilities to be removed, proposed reimbursable relocations, and proposed non‐reimbursable relocations at the date indicated by DelDOT’s Utilities section. In accordance with 2 DE Admin. Code § 2401 (6.5), utilities are required to use the procedures established for reimbursement which are included in 23 CFR 645 Subpart A and further described in FHWA’s Program Guide entitled Utility Relocation and Accommodation on Federal-aid Highway Projects.

Table 5.4.4 identifies and describes the circumstances in which utility relocation work in the State is reimbursable.

Table 5.4.4 – Circumstances for Utility Reimbursement
Application	Authority Source	Discussion
Advanced Relocations	17 Del. C. §143 (f)	DelDOT may reimburse nonmunicipal or other nongovernmental public utilities for increased expenses incurred when requiring the utility to alter or relocate their facilities in advance of construction. These costs can include expenses for the maintenance of traffic, tree and vegetation removal, grubbing, grading, test holes, and surveying which would have otherwise been performed by the State’s contractor.
Utilities Located Outside of the Public Right-of-way	Delaware Power & Light Co. v. Terry, 194 A.2d 553 (Del. Ch. 19630.)	Rather than being in DelDOT’s right-of-way, some public utilities elect to obtain rights to be on private lands outside of the public right-of-way. In instances when these facilities are affected, DelDOT must reimburse the utilities for their relocation.
Temporary Relocations	17 Del. C. §143 (g)(1)d	DelDOT must reimburse nonmunicipal or other nongovernmental public utilities in cases where DelDOT requests a temporary alteration or relocation of the public utility facility due to a DelDOT project.
Second Relocation within 10 Years	17 Del. C. §143 (g)(1)a	DelDOT must reimburse nonmunicipal or other nongovernmental public utilities in cases where DelDOT requires a second alteration or relocation of the same public utility facility within 10-years from the date of completion of the initial alteration or relocation.
Second Relocation Due to Alteration of State’s Plans	17 Del. C. §143 (g)(1)b	DelDOT must reimburse nonmunicipal or other nongovernmental public utilities in cases where DelDOT alters its plan of construction for the project at any time before its completion, in a manner that requires the public utility to alter or relocate its facility that has already been fully or partially altered or relocated in connection with the project.
Municipality or any other Government Owned Utility Relocations	17 Del. C. §143 (b)	DelDOT is required to make all necessary alterations or relocations of facilities owned and/or operated by a public utility of a municipality or of any governmental body or political subdivision of the State.
Relocations Performed by the State’s Contractor	17 Del. C. §143 (h)	DelDOT may identify specific facility alteration or relocation items which are beneficial to be performed by the DelDOT’s contractor or subcontractor instead of by the public utility. As part of the agreement, the public utility must agree to reimburse DelDOT or DelDOT’s contractor or subcontractor for the construction items.
Projects funded by at Least 90% Federal Money	17 Del. C. §132 (b)(5)	DelDOT is required to reimburse a public utility owner for the expense of a relocation of public utility facilities necessitated by any project where the State is to be reimbursed by at least 90% of the cost of such project from federal funds or by the federal government or any agency thereof, such expense to be the amount paid by such owner properly attributable to such relocation after deducting therefrom any increase in the value of the new facilities and any salvage value derived from the old facilities.
Relocations Requiring Unique Materials	17 Del. C. §143 (e)	DelDOT may reimburse a public utility when a relocation requires the procurement of unique materials or supplies in advance of the construction contract. DelDOT may additionally fully or partially reimburse the utility when the unique material or supplies must be stored for more than 60 days prior to its incorporation into the construction work.
Additional Expenses Incurred Due to Enhancement	17 Del. C. §143 (j)	DelDOT may reimburse nonmunicipal or other nongovernmental public utilities for additional expenses incurred due to the enhancement of the public utility’s facilities, if, in the judgment of DelDOT, the enhancement will result in net cost savings to DelDOT, will expedite the project, or will otherwise result in increased public benefit and convenience.
Relocations Providing Major Economic Developments	17 Del. C. §143 (c)(2)a	DelDOT may reimburse a nonmunicipal or other nongovernmental public utility up to 50 percent of the cost of the public utility facility’s alteration or relocation when required for a major economic development project in which the public utility’s cooperation is critical to accomplishing the project in a timely manner.
Recovery from Natural Disasters	17 Del. C. §143 (c)(2)b	DelDOT may reimburse a nonmunicipal or other nongovernmental public utility up to 50 percent of the cost of the public utility facility’s alteration or relocation to aid in recovery from natural disasters such as storms or floods.
Relocations Providing Compelling Benefit to the Traveling Public	17 Del. C. §143 (c)(2)c	DelDOT may reimburse a nonmunicipal or other nongovernmental public utility up to 50 percent of the cost of the public utility facility’s alteration or relocation when determined to have a compelling benefit to the traveling public.
DelDOT Project Cancellation or Non-Commencement	17 Del. C. §143 (g)(1)c	DelDOT is required to reimburse a nonmunicipal or other nongovernmental public utility for the cost of altering or relocating its facilities when DelDOT cancels or does not commence a highway construction, reconstruction, relocation, raepair, or maintenance project within a period of two-years from the date of authorization.

5.4.4.1 Vertical Adjustment of Nonmunicipal Utility Covers


Department Resources
DGM 3-1: Documenting and Paying for Non-Municipal Utility cover Vertical Adjustments

In accordance with DelDOT DGM 3-1 titled Documenting and Paying for Non-Municipal Utility cover Vertical Adjustments, DelDOT is permitted to identify specific utility facility alteration or relocation work to be performed by DelDOT’s contractor or subcontractor instead of by the public utility in accordance with 17 Del. C. §143(h). Pursuant to 17 Del. C. §143(j), DelDOT recognizes the benefits of having non-municipal or other nongovernmental public utility at-grade facilities (i.e. manhole covers, valve box covers, junction well covers, etc.) adjusted to final grade by the State’s contractor concurrent to DelDOT projects. Therefore, DelDOT projects that require vertical adjustments of nonmunicipal utility covers are to prioritize making the vertical adjustments of nonmunicipal utility covers required by the project with the State’s contractor at no cost to the utility because of the cost savings realized.

5.4.5 Utility Coordination Deliverables and Approvals

The DelDOT Utilities section will review and approve the disposition of all utilities within the project limits. At its discretion and in accordance with 2 DE Admin. Code § 2401, DelDOT may allow existing utilities to remain in place provided they are not in conflict with the proposed construction and their eventual location will not create a hazard for the traveling public when future maintenance is required. The Utilities section will also review and approve the methods of installing and/ or attaching the utility and the timing of any proposed adjustments and/or relocations.

When relocation is required, the proposed design must be performed in accordance with the requirements in 2 DE Admin. Code § 2401. This entails the use of sound engineering principles as well as consideration of the implications to public safety, economic benefits to the State, the visual quality of the highway, efficiency of future maintenance, and the integrity of the roadway or highway structure.

The utility coordination process will result in the development of varying deliverables depending on an individual project’s scope and scale. The Project Manager should coordinate the deliverables that will be required on an individual project with the project’s assigned DelDOT Utility Coordinator.

5.4.5.1 Utility Agreement

The DelDOT Utilities section will prepare a utility agreement when it is determined that a utility owner and DelDOT will need to exchange monies as part of a project. The agreement serves as the legal instrument between the utility owner and DelDOT and establishes the utility work required along with its terms and conditions, in accordance with the Delaware Code. This agreement is commonly referred to as a ‘letter agreement’ as DelDOT maintains a templated letter which summarizes State law, Court of Chancery decisions, and the pertinent requirements within 23 CFR 645 to which the work and subsequent payment will be handled. In accordance with 23 CFR 645.113 (c), the agreement must be supported by plans, specifications when required, and itemized cost estimates of the work agreed upon, including appropriate credits to the project, and is sufficiently informative and complete to provide a clear description of the work required.

5.4.5.2 Adjustment and Relocation Plans

All DelDOT contracts must provide sufficient detail to adequately describe all work that the contractor is obligated to perform, including any necessary utility-related adjustments and relocations. The amount and complexity of information required to be included in the contract will dictate the format in which this deliverable is ultimately provided. The Project Manager, the DelDOT Utility Coordinator, and the appropriate DelDOT Construction group should collectively collaborate to reach consensus on plan format. In accordance with DelDOT policy, all third-party plans incorporated into a DelDOT contract must be signed by that Engineer of Record. Three common formats for including utility adjustments and relocations in a contract are described below:

Include required work within other contract plan sheets – This format is typically used when relocations and adjustments are not extensive and can be clearly displayed with other proposed elements in the contract.
Create utility relocation sheets within the contract plans – When the utility work required on a project becomes extensive, the utility work can be separated into its own plan sheets to provide a clear presentation of the contract’s work.
Create separate utility relocation plans – The primary benefit to packaging the utility relocation plans separately from the rest of the contract work is to create a clear division between separately signed and sealed plans. This format is most beneficial when complex utility plans are included within the contract but have been developed and then signed and sealed by an entity separate from DelDOT or its design consultant.

The contract must also depict the required utility work that will be performed by entities other than the contractor including by the utility owners. Assigning responsibility and showing approximate proposed utility placement in the adjustment and relocation plans will facilitate more effective coordination during the construction phase which serves to minimize potential project delays and claims.

Creation of this deliverable will also enable efficient right-of-way reviews by visually depicting the proposed utility features with other plan elements like signal poles, light poles, drainage features, structures, and clear zone.

5.4.5.3 Utility Statement


Department Resources
Full Sample Utility Statement
No Utility Impacts Sample Utility Statement

A utility statement is included within a contract to summarize the existing utilities within the project area, establish temporary and permanent relocations, work responsibilities, utility outage restrictions, and associated conditions. Inclusion of a utility statement is required in accordance with 23 CFR 635.309 when the project is federally funded. The utility statement also includes a utility relocation bar chart outlining the anticipated timing of utility relocations within a project along with the anticipated schedule of the proposed DelDOT improvements by phase. Utility statements will not be issued by the DelDOT Utilities section until all required utility agreements have been fully executed for the project.

DelDOT’s Utilities section will oversee utility statement development for projects that are designed by in-house DelDOT staff. The DelDOT Utilities section may allow the utility statement to be developed by a professional services vendor that is tasked with other design services on a project. Therefore, the Project Manager should coordinate with the DelDOT Utilities section to determine utility statement development responsibilities on projects that utilize professional service vendors for project design. DelDOT maintains two form utility statements for vendors. The Full Sample Utility Statement is to be used on typical projects which have utilities and utility impacts while the No Utility Impacts Sample Utility Statement is to be used when there are no anticipated utility impacts. The text within the form statements are color coded to provide instruction:

Text highlighted in yellow are meant to be updated based on the project and utilities involved.
Text highlighted in cyan are notes to aid in the development of the statement and should be deleted by the preparer.
Text highlighted in green in the Full Sample utility Statement is to be deleted prior to signature.
Text that is not highlighted is template language and should remain unchanged.

Utility statements prepared by a professional services vendor are to be submitted upon completion to the DelDOT Utilities section in both Microsoft Word format and as a signed PDF. The DelDOT Utilities section will use the Microsoft Word document to make minor formatting changes when needed. The DelDOT Utilities section will notify the vendor to all changes to the statement.

5.4.5.4 Utility Relocation Checklist


Department Resources
Utility Relocation Checklist

The design team is to complete DelDOT’s Utility Relocation Checklist and provide it to the DelDOT Utility Coordinator for additional completion. A checklist should be created for each individual utility identified in the project utility statement. The checklist is an internal document that is intended to document impacts to each utility owner even if there are no anticipated impacts from the construction. The checklist is also used to justify and obtain approval for advanced relocation work when sought.

5.5 Right-of-Way


Department Resources
Right-of-Way Engineering Manual

Government possession of land, property, or an interest therein possessed for, or devoted to, transportation purposes is commonly called right-of-way. DelDOT and all other public transportation organizations must assess their existing right-of-way during the project development process and obtain any additional right-of-way necessary to construct and then maintain their infrastructure network when it is determined that the existing property rights are insufficient. The right for government to obtain and hold property rights is implicit in the Fifth Amendment of the United States Constitution and is explicit in 17 Del. C. § 137 of the Delaware Code. Many provisions and procedures have been established at both the federal and state level to prevent abuse of the government’s power to acquire property rights. This subsection summarizes the processes and best practices that DelDOT has adopted to ensure that all applicable requirements are met.

Central to DelDOT’s right-of-way verification and acquisition process is the development and approval of final right-of-way plans. In accordance with 17 Del. C. § 137 of the Delaware Code, no acquisition of real property or property rights may commence until approval of final right-of-way plans is received. It is noted that 17 Del. C. § 137 of the Delaware Code does allow for property acquisition prior to approval of final right-of-way plans; however, its use in the DelDOT project development process is rare and therefore, not detailed within this manual. DelDOT’s program for acquiring property rights prior to approval of final right-of-way plans is commonly referred to as the Advanced Acquisition Program and its policies and procedures are contained in 2 DE Admin. Code § 2406 of the Delaware Administrative Code. At the federal level, the Code of Federal Regulations dictates NEPA approval be obtained prior to the use of any federal funds for right-of-way acquisitions unless property is acquired through the Advanced Acquisition Alternatives established in 23 CFR 710 Subpart E.

DelDOT’s Right-of-Way Engineering Manual defines standards and processes that should be followed in the preparation of right-of-way plans for all existing, new or modified rights-of-way and/or existing rights-of-way maintained by DelDOT. The DelDOT Right-of-Way Engineering Manual is referenced throughout this subsection accordingly.

Though no offers or discussion of compensation can be made, coordination with potentially affected property owners should occur as early as feasible in the project development process so that property owner concerns can be understood in the early phases. Meetings that occur between members of the design team and with potentially affected property owners should include a representative from DelDOT’s Right-of-Way section. Additional information about DelDOT’s public engagement process is included with Section 5.1.

This section has been divided into five distinct processes related to DelDOT’s right-of-way mosaic creation, verification, and acquisition processes:

Existing right-of-way mosaic creation (Section 5.5.1),
Evaluation and determination of property rights to be acquired (Section 5.5.2),
Determination of proposed right-of-way monumentation (Section 5.5.3),
Right-of-way approval process (Section 5.5.4), and
Acquisition support and right-of-way certification (Section 5.5.5).

5.5.1 Existing Right-of-Way Mosaic Creation


Department Resources
Right-of-Way Engineering Manual

The first step in DelDOT’s right-of-way process is determining the required level of right-of-way verification based on the right-of-way verification tiers defined by DelDOT. DelDOT’s tiers are based upon a project’s potential impact to the existing right-of-way. Sometimes projects are initiated with scopes that fall between the tiers. In these situations, the Chief of Right-of-Way should be consulted if applicability under a specific tier is unclear. DelDOT’s tiers are fully described in the DelDOT Right-of-Way Engineering Manual and briefly described below:

Tier 1 – This tier consists of projects that do not have impacts outside of DelDOT’s existing right-of-way. Research for projects within this tier typically includes review of the DelDOT Roadway Maintenance Inventory, archived plans, and comparison to field evidence to verify that all proposed work will occur within DelDOT’s existing right-of-way. The objective for projects within this tier is to determine DelDOT’s existing right-of-way with reasonable accuracy for the purposes of the work being performed.
Tier 2 – This tier consists of projects that have minor impacts outside of DelDOT’s existing right-of-way at isolated locations within the project. This tier requires research to establish the existing right-of-way at the isolated locations, as well as establishing ownership and all rights that may be involved with the area that is to be impacted by the proposed improvement.
Tier 3 – This tier consists of projects that will have major impacts outside of DelDOT’s existing right-of-way. This tier requires that research be performed to establish ownership and all rights that may be involved with the area that is to be impacted by the proposed improvement and to create an archivable record of the proposed acquisitions. Tier Three projects generally require the most complex levels of right-of-way verification.

After determining the level of existing right-of-way verification required for the project, the source documents needed for verification can be obtained. Section 5.5.1.1 describes the most commonly utilized source documents for establishing existing right-of-way as well as the request process for obtaining the information. Section 5.5.1.2 outlines the typical existing property rights that DelDOT may own, and Section 5.5.1.3 provides the best practice to follow when establishing the existing right-of-way.

5.5.1.1 Existing Right-of-Way Source Documents


Department Resources
Initial Project Research Request Memo
Right-of-Way Engineering Manual
DelDOT Gateway
Instructions for Obtaining Historic Plans Through DelDOT Gateway

Many sources of information are available to assist the project team in assessing DelDOT’s existing right-of-way. In general, projects that are developed by staff internal to DelDOT will obtain the necessary existing right-of-way source documents through the use of DelDOT’s Initial Project Research Request Memo which is further described in Section 3.7.4, while projects developed under professional service agreements are responsible for performing their own research to establish the existing right-of-way. While DelDOT’s Right-of-Way Engineering Manual provides a comprehensive discussion of the source documents available to assist in researching DelDOT’s existing right-of-way, the most common source documents are highlighted below:

GIS dataset information – Each county in Delaware maintains its own GIS dataset with parcels within the jurisdiction mapped. These GIS datasets are consumed into DelDOT Gateway which is DelDOT’s primary GIS dataset. DelDOT Gateway is more fully discussed in Section 3.7.1.1. Information from this source is most applicable for high-level preliminary investigation and should be verified by other source documents.
DelDOT’s Roadway Maintenance Inventory – Listed by maintenance road number, this dataset provides basic information about roadways maintained by DelDOT at the time the inventory was performed. Reliance on this data is most applicable to routine maintenance and repair work in rural areas where other forms of existing right-of-way documentation are limited.
Historic plans – Historic construction and right-of-way plans are available from a variety of sources including DelDOT Gateway. Instructions for obtaining historic plans through DelDOT Gateway have also been developed. DelDOT Gateway is more fully discussed in Section 3.7.1.1. Reliance on DelDOT archived plans to determine the existing right-of-way is most applicable where physical features shown on the archived plans still exist and can be found in the field. Historic plans are also available through DelDOT’s Online Archive, DelDOT’s Records Center, and the State of Delaware archives. Except for routine maintenance work, should utilize DelDOT historic plans as a starting point.
Plats – Some parcels have existing plats that can be referenced to assist in establishing the existing right-of-way. Examples of plats that can be used to assess DelDOT’s existing right-of-way include boundary surveys, minor or major subdivisions of land, site plans, and microfilms. These source documents are helpful in finding dedications and reservations that may have taken place during the land development process. Reliance on this information is most applicable where physical features shown on the plans still exist and can be found in the field. Caution must be used to verify the recorded plan has not expired.
Recorded deeds – Each county government in Delaware maintains recorded deeds for their jurisdiction. Deeds identify the current owner of lands adjacent to DelDOT’s right-of-way, provides a description of the parcel boundary, and the location and type of property corners. This information can help locate field evidence, such as property corners that may provide evidence of the existing right-of-way limits. DelDOT also maintains as-acquired deeds from previous projects that can be used as source documents in the right-of-way mosaic creation and verification process. Deeds may also include deed restrictions or covenants that will need to be considered through the project development process as well. The information contained within as-acquired deeds supersedes any discrepancies discovered between the as-acquired deed and the historic plans as the as-acquired deed contains the limits of the land rights that were actually purchased.
Will records – Property rights are occasionally transferred through will records.

Once obtained, the source documents used to establish the existing right-of-way should be added to the Project’s 280_Existing_Property_Rights folder using the file naming convention described in Chapter II, Section A.5 of DelDOT’s Right-of-Way Engineering Manual.

5.5.1.2 Common Existing Land Rights and Restriction Types


Department Resources
Right-of-Way Engineering Manual

The project team will encounter many different types of land rights and restrictions as part of their existing right-of-way research. DelDOT’s procedures and preferences for displaying these land rights and restrictions in the existing right-of-way mosaic is included in the Right-of-Way Engineering Manual and in Section 6.4. A description of the most common land right types and restrictions that the project team will encounter are summarized below:

Fee Simple – This is the greatest possible interest in land. Fee simple land rights are typically called “FEE” and within DelDOT are typically referred to as right-of-way. A fee simple interest in land may be owned by DelDOT or other entity.
Easement – A legal right to use land for a specific limited purpose while the legal title of the land remains the underlying landowner’s. Easements may be owned by DelDOT or other entity. Easements can either be permanent or temporary and can convey numerous different rights. Additional information on easements is included in DelDOT’s Right-of-Way Engineering Manual. A specific type of easement that the project team should be aware of are tax ditch easements due to the coordination process required through the Team Support section. The coordination process is described in the DelDOT Right-of-Way Engineering Manual.
Right-of-way by permanent easement – Land rights that DelDOT owns through a perpetual easement in which the underlying fee simple ownership has not been changed. Mechanisms which have allowed DelDOT to acquire land through right-of-way by permanent easement include King’s Roads and Highways, Statute Law, 20-year Law, and Dirt Road Easements. Right-of-way by permanent easement is further defined in the DelDOT Right-of-Way Engineering Manual.
Covenant – A binding agreement concerning the use of land. Covenants can either require the landowner to perform an action or prohibit the landowner from performing certain actions. Various preservation or mitigation programs may protect land through covenants.
Right-of-way dedications – Land that is granted to DelDOT as either fee simple or a lesser property interest depending on the language of the dedication. Right-of-way dedications are typically made during the development coordination process. Dedications that are made through recorded plats should be treated as a permanent easement where the existing owner maintains the existing fee interest unless the dedication specifies the dedication as a fee simple dedication. Dedications made through a recorded deed are assumed to be dedicated to DelDOT as fee simple dedications.
Right-of-way reservation – A commitment by DelDOT for future property rights acquisition, in exchange for an agreement by the owner to refrain from further developing the property within the reserved area. Right-of-way reservations typically occur through the development coordination process.
Denial of access – DelDOT can prohibit access to a state-maintained roadway through placement of a denial of access along a boundary line. DelDOT is permitted to restrict access to state-maintained highways in accordance with 17 Del. C. § 146.

A more comprehensive discussion on the land rights and restrictions that the project team may encounter is included within DelDOT’s Right-of-Way Engineering Manual.

5.5.1.3 Existing Right-of-Way Mosaic Creation


Department Resources
RW2201: Existing ROW Mosaic Creation

Once the existing right-of-way source documents are obtained, an existing right-of-way mosaic showing all existing property rights along a project corridor can be created commensurate with the project’s tier described in Section 5.5.1. The existing right-of-way mosaic should include the existing right-of-way baseline, DelDOT right-of-way, parcels, easements, access restrictions, and other property interests within the project limits. Mosaics are to be constructed by utilizing interior angles between bearings and not constructed from the bearing directions themselves. The reason being that magnetic north changes over time in what is called magnetic declination.

Utilization of monumentation is critical to properly establish the existing right-of-way mosaic. Monumentation is primarily set to establish existing property corners and existing roadway right-of-way baselines but can be used for various other purposes as well. Accordingly, monuments assist in both establishing the existing the right-of-way baseline and adjacent property sidelines. Ideally, initial research regarding the existence and location of monuments is performed prior to performance of a project’s topographic field survey and provided to the field surveyors so that the maximum monumentation can be recovered in the field. It is important to note that monumentation that is included in the project’s source documents may not have been set in field for a variety of reasons or may have been removed or otherwise disturbed in the field, therefore not all monuments noted in the source documents may be recoverable. While monumentation should take priority, the location of concrete curbs, concrete roadways, fences, and other relevant field evidence can be useful in establishing the existing right-of-way mosaic as well.

All discrepancies discovered through the mosaic creation process should be resolved in accordance with Section 5.5.1.3.4 and documented in accordance with Section 5.5.1.3.5. The process for creating the mosaic through OpenRoads Designer is described in RW2201 entitled Existing ROW Mosaic Creation.

5.5.1.3.1 Existing Right-of-Way Baseline Creation

The first step in the right-of-way mosaic creation process is establishing the existing right-of-way baseline as all other existing property rights will typically be based off this feature. This task is usually accomplished by recreating the right-of-way baselines from the most recent archived plans. However, in some instances, right-of-way baselines outside of those contained in the most recent archived plans will need to be researched and recreated to establish the full extent of DelDOT’s existing right-of-way. The process for recreating existing right-of-way baselines is as follows:

Reconstruct the existing right-of-way baseline geometry and stationing.
Review the archive plans for monumentation found during the topographic field survey for precise offset and alignment information. If only one precise offset and station is provided, then the baseline will only need to be rotated about the provided station and offset and not shifted. Shifting and rotating is not typically required if more than one precise offset and station is provided as the baseline will be held by multiple monuments.
If no precise offset and station information is provided, the baseline will need to be rotated and/or shifted to obtain a best fit with the found monumentation and other evidence along the corridor. When this step is required, the design team will need to determine the appropriate offset width for each monument along the corridor to ensure accuracy. It is also good practice to reference the most recent aerial photography into the mosaic as a general guide in the placement and rotation of the baseline.

It is noted that for roadways that only have dirt road projects as archived plans, the right-of-way baseline should be established as a best fit of found improvements called for in the archived plans, the centerline of the road as originally constructed and acquisition deeds prior to any improvements, including curves wherever necessary. The stationing from the dirt road projects should not be used (typically given in miles, not feet). Note, permanent easements for dirt road projects only provide the offset from the centerline and the adjoining owners. Daylight easements are usually separate deeds. None of these documents typically include full descriptions of the acquisitions.

5.5.1.3.2 Existing Boundary Line Creation

Boundary lines can be established once the existing right-of-way baseline has been set. For purposes of this manual, boundary lines are further categorized into frontage, sideline, government, easement, dedication, and reservation. Guidance for creating each of these boundary lines are provided in the order in which they are typically created.

5.5.1.3.2.1 Frontage Boundary Lines

The first boundary line that can be set is the frontage along the right-of-way baseline. This boundary line is set based on the archived plans and then confirmed with the deeds and plats along the corridor. The frontage boundary is typically an even offset from the existing right-of-way baseline and can therefore be created by paralleling the existing right-of-way baseline to the dimension specified in the pertinent existing right-of-way source document.

5.5.1.3.2.2 Parcel Sideline Boundary Lines

Once the frontage is established, the parcel sideline boundaries can be set so that areas can be determined for compensation when required within the project’s scope. Before starting this task, the design team should assess the existing monumentation and right-of-way baseline to decide the appropriate location to begin creating the parcel sidelines. Locations that are ideal starting points are either at found property corners which are called out in the existing right-of-way source documents or at beginning or end points of curvature in the existing right-of-way baseline. Parcel boundaries are established through the following process:

Plot the entire parcel limits based upon the interior angles included in the existing right-of-way source document.
Assess any closure errors in the existing parcel. If the closure errors are minor, force the closure errors to the back of the parcel and note the errors as described in Section 5.5.1.3.4. If the closure errors are more than minor, additional research should be performed to determine if an error exists in the existing right-of-way source document. This could entail researching prior deeds or evaluating the deed’s bearings and distances for errors.
Once the parcel is determined to be satisfactorily plotted, it can be rotated and fit into the existing right-of-way mosaic.
Periodically assess the existing right-of-way mosaic to determine if any shifts or rotations to the existing right-of-way baseline should be incorporated to better fit the found monumentation.

5.5.1.3.2.3 Government Boundary Lines


Department Resources
Right-of-Way Engineering Manual

Relevant government boundary lines including hundred, town, county, and state, should be included in the existing right-of-way mosaic. Information on the presence of government boundary lines should also be included in the project’s right-of-way plans as described within DelDOT’s Right-of-Way Engineering Manual.

5.5.1.3.2.4 Easement, Dedication, and Reservation Boundary Lines

The existing right-of-way source documents should be reviewed for the presence and associated boundaries of any existing easements, dedications, reservations, or other restrictions. These features are to be included in the existing mosaic to assist in the acquisition process. Including these features into the mosaic is usually performed last in the existing right-of-way mosaic creation process as they are typically offset from features created in previous steps or from physical features like a utility line or stormwater management facility.

The design team should also pay special attention to the presence of any blanket easements that may exist on a property. Blanket easements provide blanket access to the entire property and are typically included in the notes of recorded plats or in the written description in deeds. The presence of blanket easements is to be noted in the existing right-of-way mosaic.

5.5.1.3.3 Ownership Verification


Department Resources
Chain of Title Tracking
Sample Chain of Title Tracking

Ownership of parcels and existing easements is to be researched and then documented during the existing right-of-way mosaic creation process. When needed, the design team can utilize DelDOT’s chain of title tracking spreadsheet to assist in tracking and verifying ownership information. DelDOT also maintains a sample chain of title tracking spreadsheet online for reference as well.

5.5.1.3.4 Resolve Discrepancies

Discrepancies between the existing right-of-way source documents will most likely be discovered while creating the existing right-of-way mosaic. The design team should work to resolve these discrepancies by performing additional research and through use of judgement. When deemed necessary, the design team can engage DelDOT’s subject matter experts for guidance and to reach consensus on discovered discrepancies prior to a formal submission. The resolution to all discrepancies discovered will need to be documented in accordance with Section 5.5.1.3.5. Discrepancies that may be encountered as part of the existing right-of-way creation process could include the following:

Inaccurate bearings and distances in the existing right-of-way source documents,
Closure errors in deeds and plats,
Gaps and/or overlap in deeds and plats, and
Inaccurate monumentation.

5.5.1.3.5 Document Mosaic Creation Process

DelDOT requires that the process used to establish the existing mosaic be documented for review purposes as well as to create an archivable record on how the mosaic was created. The format of the documentation required is based on whether the project was developed by staff internal to DelDOT (see Section 5.5.1.3.5.1) or by staff working under a professional services agreement (see Section 5.5.1.3.5.2). The documentation at a minimum should include the following:

The relevant contract number(s) that were utilized to establish all existing right-of-way baselines for the current contract.
The relevant found monumentation utilized in establishing the existing right-of-way baselines in the current contract. References are to be made to the general vicinity of the found monumentation to simplify the review process.
A list and description of the discrepancies discovered in the existing right-of-way mosaic source documents and their associated resolutions.
A list of all other adjustments or layout decisions that were made to establish the existing right-of-way mosaic. This could include junior/senior rights as parcels were subdivided from the main parcel of interest.

5.5.1.3.5.1 Projects Developed by Staff Internal to DelDOT


Department Resources
Best Practices for Documenting the Existing Right-of-Way Baselines and Existing Right-of-Way Mosaic

Projects that are developed by staff internal to DelDOT are to follow DelDOT’s Best Practices for Documenting the Existing Right-of-Way Baselines and Existing Right-of-Way Mosaic guidelines. These guidelines require that the necessary documentation be placed directly into the project’s RW DGN file.

5.5.1.3.5.2 Projects Developed Under a Professional Services Agreement


Department Resources
Survey Report Guidance
Sample Survey Report

Projects that are developed under a professional services agreement are to create a Survey Report. Additional Survey Report Guidance and a sample survey report are provided for reference. The Survey Report should include all pertinent background information on how the existing right-of-way mosaic was established including detailed notes written during the creation of the right-of-way mosaic. In addition to the documentation requirements presented in Section 5.5.1.3.5.1, Survey Reports are to include a discussion of each easement found on each parcel.

5.5.2 Determination of Property Rights to be Acquired


Department Resources
Parcel Impact Form

Once the existing right-of-way mosaic is established, the proposed work can be assessed in comparison to DelDOT’s existing rights to determine the land rights DelDOT will need to acquire to build and then maintain the project. 17 Del. C. § 137 of the Delaware Code allows DelDOT to acquire land rights ranging from fee simple absolute to lesser interest as DelDOT deems appropriate. Care is to be taken during the project development process to minimize the amount of acquisition required as much as practical. This section outlines the typical land rights that DelDOT will acquire as part of its project development process and guidance on appropriate usage and considerations.

All acquisition areas must be justified with the need included within the contract plans. The need is typically represented graphically but may be accomplished through use of notes if the need for the acquisition needs clarification.

It is recommended that the project team coordinate with the affected property owners through the project development process to understand owner concerns and incorporate remedies to those concerns. However, not all concerns may be able to be fully addressed before acquisition commences which may then require subsequent revisions. Additional information about supporting the acquisition process is contained in Section 5.5.5.

It is recommended that the design team, with the support of the Right-of-Way section, coordinate with the affected property owners through the project development process to understand owner concerns and incorporate remedies to those concerns. Property owner interactions should be documented in the project files and included in the project’s parcel impact forms which are discussed in more detail in Section 5.5.5.1.1. Not all concerns may be able to be fully addressed before acquisition commences, which may then require subsequent revisions. Additional information about supporting the acquisition process is contained in Section 5.5.5.

5.5.2.1 Fee Simple Right-of-Way

Fee simple right-of-way is the greatest possible interest in land that DelDOT can acquire. In DelDOT, fee simple right-of-way is typically referred to as “right-of-way”. A project’s proposed right-of-way should include all land needed for features such as roadways, bridge related structures, utilities, sidewalk, shared use path, traffic equipment, ITMS, lighting, drainage, stormwater facilities, guardrail, landscaping, etc. Access to all features of the improvements should also be considered as part of the fee simple right-of-way to allow safe access for construction and maintenance of the facilities.

5.5.2.2 Permanent Easement

Though right-of-way acquisition is generally preferable to an acquisition of a permanent easement, there may be times where DelDOT will acquire the necessary land rights as a permanent easement (PE) instead. A permanent easement provides DelDOT certain rights to the land, as described in the permanent easement agreement, while the property owner retains the underlying fee simple ownership of the land. DelDOT’s standard permanent easement agreement provides the rights to install and maintain the transportation related improvements within the permanent easement and includes restrictions on what the owner of the underlying land may do within the permanent easement. Examples of typical facilities placed in a proposed permanent easement includes drainage facilities, a guy wire for a utility pole, an access road to a utility, or to provide access for equipment to make future bridge repairs, inspections, or maintenance. Though not preferrable, a permanent easement can be used in place of DelDOT’s typical right-of-way acquisition in cases where the property owner would like to retain the underlying ownership rights. Reasons an existing landowner may want to maintain existing land rights include the following:

Zoning regulations are typically based on parcel size. In some cases, selling the land as fee simple right-of-way would limit the future development potential of a parcel.
Set-back distances are typically defined from the right-of-way line by local land use agencies. In these cases, selling the land as fee simple right-of-way would limit future expansion on the parcel.
The landowner is permitted to sell the underlying land in the future.

Though rare, DelDOT may acquire aerial easements for above ground utilities or for canopies of structures where it is beneficial to accommodate commercial parking or other site improvements below the aerial line. As their name implies, aerial easements only provide the right to construct maintain, repair, and replace overhead facilities and does not provide rights to maintain any non-aerial facilities. Concurrence with DelDOT’s Utilities, Team Support, and Right-of-Way sections is required prior to obtaining an aerial easement.

Existing permanent easement areas which will be affected by a project should be researched to verify the rights that DelDOT owns to ensure its intended use is covered by the existing easement. For example, the recorded document for the permanent easement could limit the use of the area specifically to drainage. If the area is needed for other uses, such as utilities, sidewalk, etc., then the permanent easement agreement must be amended in a new recorded document to expand DelDOT’s rights to include all required uses.

It is also DelDOT’s preference to acquire through permanent easement any grading areas steeper than 3:1 within the project which would otherwise be outside of DelDOT’s proposed permanent access. Acquisition of a permanent easement will enable the owner to retain ownership of the land but will allow DelDOT to maintain the slope as needed.

5.5.2.3 Temporary Construction Easement

A temporary construction easement (TCE) is an agreement granting temporary use of an area on a private property for access, grading, etc. The temporary construction easement provides the working room for the contractor to complete the work. The agreement is effective for the duration cited in the temporary construction easement agreement. Proposed DelDOT grading that is steeper than 3:1 should be acquired as a permanent easement as described in Section 5.5.2.2.

5.5.2.4 Right to Enter


Department Resources
Right-of-Way Engineering Manual

Delaware code provides DelDOT the right to enter onto private property to maintain, repair, or reconstruct to current standards an existing publicly financed transportation asset. This authority is referred to as a Right to Enter (RTE). The use of DelDOT’s authority is made on a case-by-case basis considering the scope of the project with concurrence from the DelDOT Chief of Right-of-Way. The Right to Enter authority does not apply to new facilities. Additional information, considerations, and procedures associated with using DelDOT’s Right to Enter authority is included in DelDOT’s Right-of-Way Engineering Manual.

5.5.2.5 Denial of Access

DelDOT is permitted to prohibit access to a state-maintained roadway through placement of a denial of access along a boundary line in accordance with 17 Del. C. § 146. The FHWA has jurisdiction over denial of access to the Interstate system and controlled access roads built with federal funds in accordance with FHWA’s Interstate Access Policy. Collaboration is required through DelDOT’s Traffic Engineering and Development Coordination sections when the design team determines that a denial of access should be considered to improve traffic operations and traffic safety within the scope of a project.

5.5.3 Determine Proposed Right-of-Way Monumentation


Department Resources
Right-of-Way Engineering Manual

Monumentation locations are established after the existing mosaic and required property rights are determined. Monumentation aids in future establishment of the right-of-way corridor. DelDOT’s Right-of-Way Engineering Manual contains DelDOT’s practices for setting monumentation.

5.5.4 Right-of-Way Approval Process


Department Resources
Right-of-Way Engineering Manual
Right-of-Way Plan Submission Checklist
Construction Plan Submission Checklist
Top Comments

In accordance with 17 Del. C. § 137, DelDOT projects must obtain final right-of-way approval before acquisitions can take place unless advanced acquisitions are performed. DelDOT uses a standard review and approval process as described in this section to ensure accuracy and that the land needed for a project is justified based on engineering need.

Existing right-of-way disposition and proposed right-of-way needs can either be captured as a standalone right-of-way plan set, within standalone right-of-way plat(s), or as right-of-way plans included as part of the construction plan set. Additional information on these formats is contained in DelDOT’s Right-of-Way Engineering Manual and in Section 6.4. The timing of these deliverables within the project development process and the information to be included to obtain right-of-way approval are documented in DelDOT’s Right-of-Way Plan Submission Checklist and DelDOT’s Construction Plan Submission Checklist. DelDOT provides a list of the top comments it makes during the right-of-way approval process for the design team’s reference.

The review and approval period can be divided into existing right-of-way mosaic verification described in Section 5.5.4.1 and proposed right-of-way verification described in Section 5.5.4.2. DelDOT’s Team Support section oversees the right-of-way review and approval process.

5.5.4.1 Existing Right-of-Way Mosaic Verification


Department Resources
Existing Right-of-Way Concurrence Meeting Agenda
Existing Right-of-Way Mosaic Verification Process

The Project Manager is to coordinate with the Team Support section to add the project to DelDOT’s recurring Right-of-Way Concurrence Meeting upon completion of the Survey Plan review period. Typical discussion items as well as material required to be provided to the Team Support section ahead of this meeting are included in DelDOT’s standard Existing Right-of-Way Concurrence Meeting Agenda. The purpose of this first concurrence meeting is to focus on the establishment of the right-of-way baseline, right-of-way mosaic, project schedule, and other significant findings ahead of further project development activities. An overview of this process is provided in a flowchart outlining DelDOT’s Existing Right-of-Way Mosaic Verification Process.

5.5.4.2 Proposed Right-of-Way Verification


Department Resources
Semi-Final Plan Review Concurrence Meeting Agenda
Final Right-of-Way Memo

Once the Semi-Final Right-of-Way Plan review is complete, the Project Manager will coordinate with the Team Support section to add the project to DelDOT’s recurring Right-of-Way Concurrence Meeting. Typical discussion items and material required to facilitate discussion at this meeting are included in DelDOT’s standard Semi-Final Plan Review Concurrence Meeting Agenda. The Semi-Final Plan Review Concurrence meeting is focused on the acquisitions associated with the project.

Once the comments from the Semi-Final Plan review and concurrence meeting are addressed, the design team can submit Revised Semi-Final Right-of-Way plans. The design team is to verify current parcel ownership and any boundary changes or outsales within two weeks prior to the revised submission and include documentation and a discussion for any changes. This submission should also include updated construction plans and updated parcel impact forms (see Section 5.5.5.1.1) and property descriptions (see Section 5.5.5.1.2). The design team is also encouraged to submit a draft Final Right-of-Way Memo with this submission so its technical contents can be reviewed concurrently with the rest of the submission. The Team Support section will review the submission and provide comments for the design team to address. The Revised Semi-Final Right-of-Way plans submission and review period will repeat until all comments have been sufficiently addressed.

After all comments from the Team Support section have been addressed, the right-of-way plans are considered Final. At this point the design team is to complete the Right-of-Way QC/QA Standard Certification Memo described in Section 6.6. Once the memo is complete, the design team is to sign and seal the right-of-way plans and submit all final deliverables with all previous revisions included to the Team Support section. The Team Support section will forward these deliverables to the Right-of-Way section to begin the acquisition process.

5.5.5 Acquisition Support and Right-of-Way Certification

In Delaware, acquisitions are permitted to commence once final right-of-way approval is obtained; however, no federal funds can be used before NEPA is approved. 29 Del. C. Chapter 95adopts the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, commonly referred to as the “Uniform Act”. Therefore, all acquisitions, regardless of funding source, must be done in compliance with the Uniform Act and its implementing regulations contained in 49 CFR 24.Additionally, each state department of transportation is required to maintain a Right-of-Way Manual detailing their acquisition process in accordance with 23 CFR 710. The acquisition process concludes once all required land rights required to construct and maintain the project have been acquired. The design team will act in a support role during the acquisition process. This section describes the support that the design team will provide ahead of and during the acquisition process.

5.5.5.1 Support Documents


Department Resources
Right-of-Way Plan Submission Checklist
Construction Plan Submission Checklist

The design team will prepare several standard deliverables during the project development process and will be tasked with providing additional support as needed to DelDOT’s Right-of-Way section during the acquisition phase. All acquisition support documents are to be developed within the project development process as outlined in DelDOT’s Right-of-Way Plan Submission Checklist and DelDOT’s Construction Plan Submission Checklist as applicable.

5.5.5.1.1 Parcel Impact Forms


Department Resources
Parcel Impact Form

The Parcel Impact Form contains information that assists the Right-of-Way section in the review of right-of-way plans and with the appraisal and acquisition processes. The form is filled out for each parcel which requires acquisition. The form summarizes the acquisition required on the parcel as well as provides a description of any impacted item(s) on the parcel. Impacts during construction and for the final improvement conditions should both be described when applicable. Site features included within the acquisition limits that are not to be disturbed are to be listed on the Parcel Impact Form as well. Prior property owner meetings should also be noted and described. The timing of the need for any temporary construction easement should be noted on the form.

5.5.5.1.2 Property Description


Department Resources
RW2022: Proposed ROW Acquisition Creation
Legal Description Instructions

A property description which defines the boundaries of the acquisition is required for each proposed acquisition. The process for creating a Property Description Report is described in RW2022 entitled Proposed ROW Acquisition Creation . For projects developed by staff internal to DelDOT, the Property Description Report is submitted to the Team Support section in a format that can be edited. The Team Support section will send to the Acquisitions, Relocations and Settlements section to then create a Legal Description for the property. For staff working under a professional service agreement, the property description should be submitted in the format of a legal description. A legal description defines the boundary lines of lands, and the boundaries are described as metes and bounds. Metes are the bearing directions and distances from point to point along the boundary, while bounds are a more general description of where the metes are located, such as along the property line of adjacent lands/owner, a road right-of-way, a certain watercourse, or other physical feature. A description of any physical feature located at the start and/or end of a boundary line, and any features located in between, are included, such as a found concrete monument, capped iron pin set, etc. Instructions on converting the property description to be a legal description is included in DelDOT’s Legal Description Instructions.

5.5.5.1.3 Additional Support Documents


Department Resources
Right-of-Way Engineering Manual

Additional support documents that will require design team generation may be required throughout the appraisal and acquisition processes. These support documents are typically created to aid in understanding of a project’s potential impact. Additional information on potential additional support documents that may be required is included in DelDOT’s Right-of-Way Engineering Manual.

5.5.5.2 Right-of-Way Stakeout


Department Resources
Survey and GPS Control Request

It is commonly requested during the property acquisition process that the acquisition limits be staked. Staking the acquisition limits helps the property owner visualize a project’s potential effects. Right-of-Way stake out is performed through use of DelDOT’s Survey and GPS Control Request form.

5.5.5.3 Right-of-Way Revisions


Department Resources
Right-of-Way Engineering Manual
ROW Revision Approval Request
ROW Approved Revision

Occasionally, changes will need to be made to the final right-of-way plans based on property owner negotiations, design changes, or other reasons. The following changes made to the final right-of-way plans will require the processing of a revision:

Changes to the plans that will affect the proposed metes and bounds of a proposed property acquisition.
Changes to the plans that will affect the rights to be acquired during a proposed property acquisition.

Plan revisions should be executed expeditiously so as not to delay a project’s acquisitions. As soon as the design team anticipates a right-of-way revision, they should alert the Team Support section, the Acquisitions, Relocations, and Settlements section, and any other affected support sections to the pending change.

Right-of-way revisions are to be developed in accordance with the guidance contained in Section 6.4 and in the DelDOT Right-of-Way Engineering Manual. Once drafting of the revision is complete, the revision should be distributed in accordance with DelDOT’s ROW Revision Approval Request memo to the staff indicated in DelDOT’s distribution list. The most recent construction plan set should be distributed with all revised right-of-way plan sheets. If the construction plans cannot be submitted based on extenuating circumstances, those circumstances are to be communicated to the Team Support section to determine an appropriate path forward before submitting. The Team Support section will either approve the draft revision or make comments on the revision which will require a resubmittal and re-review of the revision. Once it is determined that the revision needs no corrections, the “Revision” signature block can be signed thus completing the revision. Upon the completion of the right-of-way revision, the design team will provide the finalized ROW Approved Revision memo to the Team Support section and subsequently to the Acquisitions, Relocations, and Settlements section.

5.5.5.4 Right-of-Way Certification

Prior to advertisement of a project using federal funds, DelDOT must issue a statement certifying that all right-of-way clearance work has been completed or that all necessary arrangements have been made for the project to be undertaken and completed in accordance with 23 CFR 635.309(b). This statement is issued by DelDOT’s Chief of Right-of-Way and is referred to in DelDOT as the Right-of-Way Statement or the Right-of-Way Certification. 23 CFR 635.309(c) outlines three levels of potential right-of-way clearance. It is DelDOT’s goal to only use level one certifications (23 CFR 635.309(c)(1)), however, DelDOT may issue level two and level three statements (23 CFR 635.309(c)(2) and 23 CFR 635.309(c)(3)) at their discretion. Level two and level three statements are commonly referred to as stipulated statements. Even though Right-of-Way Statements are only required for federally funded projects, DelDOT will typically issue Right-of-Way statements on state funded projects as well.

5.6 Railroad


Department Resources
Railroad Coordination Manual

Railroads provide a crucial service by efficiently moving both people and goods within the State and throughout the region. DelDOT’s infrastructure network crosses numerous rail lines throughout the State; therefore, regardless of project scope, DelDOT’s projects will inevitably impact railroads. All projects that propose work within railroad right-of-way or which have the potential to affect railroad operation are required to be coordinated with the affected railroad stakeholders. Additionally, safety is a critical and tangible concern when work around a railroad is required. For these reasons, the project team should strive to minimize impacts to rail right-of-way and rail operations caused by DelDOT projects, however, that will not always be possible.

In Delaware, coordination responsibilities are divided between freight and excursion rail and passenger rail applications. Freight and excursion rail coordination is overseen by DelDOT’s Railroad Coordination section within DelDOT’s Traffic Engineering section, while passenger rail coordination is overseen by the Delaware Transit Corporation (DTC) which is an operating division of DelDOT.

DelDOT maintains master agreements with the railroad owners and operators within the State that largely establish the railroad coordination process. DelDOT’s master agreements dictate the creation of individual agreements at the project level. These project-level agreements are generally based on project phase and serve to outline the project scope, project schedule, responsibilities of involved parties, estimated costs for necessary services, and method(s) of payment that will be used. The typical project phase agreements required as part of the project development process are design phase or preliminary engineering agreements and agreements covering the construction phase. The preliminary engineering phase agreement will cover railroad review services, providing any required track protective services, and any other services that will be required prior to construction. The agreement covering the construction phase will be used to establish the work and services that the railroad will be required to perform during the construction phase like providing track protective services, reviewing working drawings, answering Requests for Information (RFIs), attending meetings, and performing any necessary construction, relocation, and/or modification of railroad facilities and/or infrastructure work. In all cases, the coordination process must conclude in an agreement being reached with the railroad that will allow for the completion of all project related work proposed. Federal requirements for the construction phase agreement are included in 23 CFR 646.216(d). Additional information on the agreement types that DelDOT maintains for freight and excursion rail applications is included in DelDOT’s Railroad Coordination Manual. It is noted that master agreements may assign different terminology to these agreements. For example, passenger railways refer to these agreements as project initiations or PIs.

The railroad coordination process can be a highly complex and time-consuming endeavor. Additionally, railroads are entitled to reimbursement in accordance with the controlling master agreement for the services they provide, which will typically be funded through the project. For these reasons, it is critical that any necessary coordination with railroads be identified early in the project development process and that appropriate time and resources be allocated and accounted for in both the project’s schedule and budget. The design team is encouraged to coordinate a project’s schedule and budget with the railroad section tasked with coordination to ensure sufficient funds for each funding phase and to verify that a project’s proposed schedule provides sufficient time for rail coordination when railroad work is required. DelDOT has limited control over railroad procedures; however, by following the guidance within this Project Development Manual, railroads will be provided the information that they require to expeditiously reach agreement with DelDOT and to ensure project schedules and budgets are adhered to.

Though not always feasible, effort should be made to coordinate planned railroad and DelDOT projects and maintenance activities to reduce cost and impacts to the traveling public.

5.6.1 Design Team Notification to DelDOT Railroad Section

The need for the design team to coordinate with the railroad section tasked with coordination responsibility is a function of both distance and railroad application. DelDOT projects that have work occurring within 130 feet from the centerline of the outermost track of a freight or excursion railroad is to contact the DelDOT Railroad Coordination section at DOT_railroad@delaware.gov. DelDOT projects that have work occurring within 25 feet from the centerline of the outermost track measured either vertically or horizontally of a passenger railroad is to contact DTC’s Al Loyola and David Campbell at Albert.Loyola@delaware.gov and David.Campbell@delaware.gov. The section tasked with railroad coordination responsibility should be contacted by the design team as soon as it is determined that there is potential for contract work to occur within the envelopes established.

The section designated with railroad coordination responsibility will review the potential project related impact and will determine the next appropriate steps in the coordination process. The section designated with railroad coordination responsibility will also work with the design team to determine all entities that may be affected or have prior rights including leased lines or operating rights that are affected by the project. Before contacting any railroad, the coordinating section will request that the DelDOT design group prepare a graphical display, a written project scope, and project schedule. The coordinating section will review the information provided by the design team and may request that changes be made or that additional information be provided before contact is made with the appropriate railroads.

5.6.2 DelDOT Notification to Railroad

All initial railroad contact on a project must be made through the railroad section designated with railroad coordination responsibility. Railroads can be large companies with many divisions; therefore, it is critical that the initial contact be clear, concise, and directed to the appropriate railroad representative to ensure swift agreement development. The initial notification is to result in the development of a preliminary engineering agreement for the railroad to perform design phase coordination services which are described in more detail in Section 5.6.3. It is noted that the coordinating section may delegate future communication and coordination responsibilities to other members of the project team, including the design team, at their discretion as a project progresses.

Similarly to DelDOT, railroads typically designate one representative to coordinate with the DelDOT project team as well as their internal railroad divisions. Adequate time should be allotted by the project team to account for anticipated response times that are common with railroads due to the number of internal divisions within the railroad that require coordination. For example, for passenger rail, typical communications will require approximately 30 to 60 days while formal reviews of agreements or other similar documents will take approximately 5 months for a response.

5.6.2.1 DelDOT Notification to Freight or Excursion Rail


Department Resources
Railroad Coordination Manual

The DelDOT Railroad Coordination section will provide notification to the affected freight or excursion railroad and request the railroad to develop a cost estimate for the railroad’s design phase expenses that will be associated with the project. At the same time, the DelDOT Railroad Coordination section will begin preparing a draft agreement that will cover the design phase activities that will be required. The design team is to review the activities included within the draft agreement to ensure accuracy with the project’s scope. When necessary, DelDOT or the affected railroad may request a meeting to discuss a project’s scope. Once the project team is satisfied with the railroad’s cost estimate, it will be included into the previously drafted agreement and sent to the affected railroad for review and signature. Additional information on this process is included in DelDOT’s Railroad Coordination Manual.

5.6.2.2 DelDOT Notification to Passenger Rail

The passenger railroad will review the information submitted by DelDOT and will initiate a project or PI (project initiation) under the master agreement. When necessary, the host railroad will request additional information or potentially an informational meeting before creating the draft PI. Once complete, the passenger railroad will send the draft PI to DelDOT for review and approval.

5.6.3 Design Phase Coordination

In general, host railroads will review contract plans and specifications as they are developed to examine the general arrangement, design and details of the project for potential impact on operations, and to ensure that work is developed in accordance with applicable railroad standards. The design phase services will also include any railroad protective services that may be required to perform any needed existing site investigations described in more detail in Section 3.7. DelDOT’s Railroad Coordination section will send milestone submittals to the impacted freight and excursion railroads at all DelDOT milestone submittals. Passenger railroads will typically request a review of the contract documents at the 30%, 60%, and/or 100% completion milestones. Railroads or the DelDOT project team may request a project review meeting to discuss railroad comments as part of the coordination process.

5.6.4 Construction Phase Agreement Development

An agreement between DelDOT and the railroad is required before any work is performed on railroad right-of-way or adjustments are made to railroad facilities. The federal requirements for an agreement are established in 23 CFR 646.216(d). In general, agreements are used to describe the scope and schedule of the work, responsibilities of the parties involved, and the method(s) of payment. The DelDOT Railroad Coordination section will develop the draft construction phase agreement for freight and excursion applications while the passenger rail company will develop the draft agreement for passenger railroad applications. This section outlines several elements of the agreement and their associated considerations.

5.6.4.1 Division of Construction Work

Railroad agreements must define the division of work to be performed as part of a project. 23 CFR 646 recognizes four acceptable methods of dividing the construction work:

Railroad force account,
Contracting with the lowest qualified bidder based on appropriate solicitation,
Existing continuing contracts at reasonable costs, or
Contract without competitive bidding, for minor work, at reasonable costs.

For freight and excursion railroads, DelDOT will primarily have all work that is required within railroad right-of-way be performed under railroad force account. DelDOT will request a cost estimate for the force account work at the Semi-Final milestone submission. For passenger rail, DelDOT will generally defer the division of work to the affected railroad.

5.6.4.2 Cost Sharing

Cost sharing between the entities involved in a project will vary and usually be a function of the master agreement requirements, federal cost sharing requirements, and project type. Federal funding and cost sharing stipulations and reimbursement procedures are included in 23 CFR 646 and 23 CFR 140 Subpart I, respectively. Unlike other states, Delaware does not have any laws or regulations that stipulate cost share or funding requirements for work involving railroads.

5.6.4.3 Right-of-Way

DelDOT may acquire land rights of nonoperating railroad right-of-way as part of the project development process; however, this will take an extended period of time and should be looked upon as a last resort. Instead, all project impacts and needs should be coordinated through the project’s rail agreement. Right-of-way acquisitions required will be conducted through the DelDOT Real Estate section and must follow the Uniform Act.

5.6.4.4 Future Maintenance Obligations

The construction phase agreement should clearly establish the future maintenance obligations of all parties to the agreement. For freight and excursion rail, it is typical that DelDOT will assume future maintenance responsibility for the pavement within the crossing and the pavement markings and warning signage upstream of the crossing while the railroad will be given responsibility for maintaining all protective devices directly at the crossing.

5.6.5 Agreement Modification

Executed agreements may require changes throughout the life of the agreement. The process for making changes to the executed agreement is typically included in the master agreement. In all cases, the design team should begin the coordination process by contacting the section designated with railroad coordination responsibility.

5.6.6 Railroad Statement and Contract Language

23 CFR 635.309(b) requires that DelDOT provide a statement that all railroad work has been completed or that all necessary arrangements have been made for it to be undertaken and completed as required by the advertised construction schedule. DelDOT satisfies this requirement through issuance of a railroad statement which is prepared by the DelDOT Railroad Coordination section. Though the railroad statement is a federal requirement, it is DelDOT’s practice to include a railroad statement on all advertised projects.

Projects that affect or could affect railroads or railroad operations must also consider the need to add additional contract requirements summarizing the contractor’s responsibilities and associated work stipulations related to railroads. The required contract language is typically developed by the DelDOT Railroad Coordination section and then provided to the design team for review. The design team and the DelDOT Railroad Coordination section must work collaboratively to ensure accuracy of the language and compliance with all controlling federal or state law as well as to any pertinent railroad master agreement requirements. The design team should also provide the draft contract language to DTC’s Finance department and Contracts section for review when the project affects or could affect passenger railroad or passenger railroad operations.

5.6.7 Railroad Coordination Considerations

The railroad coordination process is a complicated task with many design, practical, and legal considerations involved. This section provides a listing of several of the more common considerations involved with railroad coordination. This section should not be considered as a complete listing of all relevant considerations associated with railroad coordination.

5.6.7.1 Federal Agency Involvement

FHWA serves as the primary administering agency for the majority of DelDOT’s program. Projects involving rail may require coordination with additional federal agencies outside of the typical oversight provided by the FHWA. The two federal agencies that are most commonly involved in the DelDOT project development process when rail work is included are the Federal Railroad Administration (FRA) and Federal Transit Administration (FTA). The FRA is tasked with promulgating and enforcing rail safety regulations while FTA is tasked with overseeing grants to state and local transit providers that either develop new transit systems or improve, maintain, or operate existing systems. Depending on a project’s circumstances, either or both of these agencies may be involved in the review and approval process.

5.6.7.2 Indemnification

Railroads will often ask the State to indemnify them (assume their risk). In accordance with 10 Del. C. Chapter 40, the State and its public officers or employees are provided sovereign immunity except as otherwise provided by the Constitutions or laws of the United States or of the State of Delaware. Therefore, neither DelDOT nor its employees may sign an agreement of any kind to indemnify a railroad. All railroad requests for indemnification are to be brought to the immediate attention of DTC’s Finance department, Risk Management section, and Contracts section and the DelDOT Railroad Coordination section for consideration on additional action.

5.6.7.3 Entering Railroad Property Prior to Construction

DelDOT’s master agreements with the railroads typically dictate that DelDOT obtain a permit prior to entering railroad property. Obtaining an entry permit is atypical in the DelDOT project development process as 17 Del. C. § 132(c)(13) of the Delaware Code permits DelDOT to enter onto private property to conduct, surveys, repairs, reconstruction, and operation of publicly financed improvements. The need to obtain a permit for entry should be discussed with the section tasked with railroad coordination responsibility when entry on to the railroad’s right-of-way is required and prior to any existing site investigations being performed within the vicinity of the railroad’s right-of-way.

Some railroads will also require that the personnel entering onto a railroad’s right-of-way be safety certified. Additionally, the railroad may also require railroad protective services be provided depending upon the scope of the investigation being performed. Additional information on railroad protective services is provided in Section 5.6.7.4 while DelDOT’s existing site investigation practices are further detailed in Section 3.7.

5.6.7.4 Railroad Protective Services

Activities that occur near rail lines may require protective services so that the work can occur safely. Work that places an individual or an item in such proximity to a rail line that the equipment or the individual could be struck by a moving train or on-track equipment is commonly referred to as “fouling a track”. 49 CFR 214 prescribes minimum safety standards for roadway workers and allows for railroads to adopt more stringent operating rules. Railroad flagging and track outages are two common protective services that may be required either during the design phase or during the construction phase. The need for protective services should be coordinated through the section designated with coordination responsibility and with the railroad to ensure compliance with the railroad’s requirements. Track protective services are costly; therefore, its need should be considered as early as feasible in the project development process. Any necessary track outages to passenger rail within the State must also be closely coordinated with DTC so its impacts can be mitigated.

5.6.7.5 Insurance

Railroads have specific insurance requirements for contractors and potentially for consulting firms that perform design or engineering services within or near their rail right-of-way. The railroad will communicate their insurance requirements to DelDOT through the rail coordination process. The project team is to verify that all entities performing professional services including existing site investigations have proper insurance and that all advertised contracts include clear insurance provisions that meet the railroad’s requirements. 23 CFR 635.105(c) requires that the contractor furnish evidence of satisfactory insurance before performance of work. This construction phase verification will be handled through the Contract Administration section as part of the contract award process. 23 CFR 646 Subpart A describes the provisions under which federal funds may be applied to the cost of insurance associated with a project.

5.6.7.6 Railroad Invoices

Railroads will submit invoices to DelDOT in accordance with the terms within their master agreement. Freight and excursion rail invoices will be reviewed and approved by DelDOT’s Railroad Coordination section while passenger rail invoices will be sent to the design team Project Manager for review and approval.

5.6.7.7 Crossing Surface Upgrades

The DelDOT Railroad Coordination section will review departmentwide milestone submittals and will make recommendations to improve existing railroad crossing surfaces when warranted. The section’s recommendation will be based on the condition of the existing rail crossing, the project’s scope, as well as the proximity of the project’s work to the crossing. By including crossing surface upgrade work within an adjacent project, DelDOT is able to reduce costs and impacts to the traveling public.

5.6.7.8 Railroad Drainage

Railroads typically have strict requirements and policies which will prevent a DelDOT project from draining onto railroad property. The design team should review a project’s drainage patterns as early as feasible in the project development process to ensure that a project is not adding additional drainage discharge onto a railroad’s right-of-way. In cases where this requirement cannot be met, the individual railroad’s policies and standards should be referenced and reviewed to ensure conformance.

5.6.7.9 Signalization Interconnection

Roadway traffic control signals and railroad grade crossing warning systems can be interconnected so that the approach of a train will cause the traffic signals to permit roadway traffic to clear the crossing before the arrival of a train or initiate other appropriate phasing. Coordinating the roadway traffic control signals and railroad grade crossing warning systems is based on many site-specific factors. DelDOT’s Railroad Coordination section will review the location as part of the departmentwide review and will make a recommendation to DelDOT Traffic and to the railroad company when it believes that signalization interconnection is warranted at a given location.

5.6.7.10 Railroad Design

23 CFR 646.216 outlines three acceptable methods in which required railroad related preliminary engineering and engineering services may be performed. These include performance by:

The State or railroad's engineering forces
An engineering consultant selected by the State after consultation with the railroad, and with the State administering the contract
An engineering consultant selected by the railroad, with the approval of the State and with the railroad administering the contract

The preliminary engineering agreement between the railroad and DelDOT will outline the division of engineering work to be performed. In almost all cases, the railroad company will perform all necessary track design. However, there may be cases where the design team may need to reference track design standards as part of their work. Railroad design practices are generally based on those recommended by the American Railway Engineering and Maintenance of Way Association (AREMA). The AREMA Manual is available online. In addition, individual railroad companies have also developed standards and design practices on their own.

5.7 Developer Coordination


Department Resources
Statewide Plan Review Map

The land use along DelDOT’s roadways is constantly evolving as land developments are continually being planned, designed, permitted, and constructed. The design team should monitor development activities within, or near, DelDOT project limits so that design and construction can be coordinated to minimize impacts to the travelling public and to ensure efficient use of funds and resources. The design team’s coordination with adjacent property development projects is typically moderated through DDelDOT’s Development Coordination section.

The Development Coordination section reviews and approves Record Plans and Entrance/ Construction Plans for development projects proposing access and improvements to DelDOT’s transportation network. When development plans (Record and Entrance/ Construction), the Development Coordination section Subdivision Reviewer should determine if there are any active or planned DelDOT projects in the vicinity of the development project and should begin the coordination process with the pertinent design team. In all cases, the Development Coordination section should distribute via the Planning Development Coordination Application (PDCA), the development plans to various designated representatives within design groups throughout DelDOT who can further coordinate any potential overlaps within their individual groups. The design team can also take a proactive approach when deemed appropriate by contacting the Subdivision Reviewer listed in Development Coordination’s Statewide Plan Review Map to determine if any active development projects are currently in the Development Coordination section’s review and approval process within the vicinity of a planned DelDOT project.

5.7.1 Access Management Authority


Department Resources
Development Coordination Manual

Transportation authorities across the country perform access management by controlling access to and from abutting properties to preserve or improve facility service and to reduce crash frequency and severity. Proper access management is achieved when roadway entrances and exits are located at points best suited to fit traffic and land-use needs and are designed to enable vehicles to enter and leave the roadway with minimum interference on through traffic. Conversely, in areas where development has been permitted to occur haphazardly, interference from the roadside can become a major factor in reducing roadway capacity, increasing crash potential, and inhibiting the mobility function of the facility.

In recognition of the importance of and benefit realized by properly controlling access to roadways, 17 Del. C. § 146 authorizes DelDOT to adopt standards and regulations for the location, design, construction, reconstruction, maintenance, use and control of vehicular and pedestrian access to and from any state-maintained highway. Furthermore, 17 Del. C. § 146 makes it unlawful to construct or modify access to a state-maintained roadway without first having complied with DelDOT’s standards and regulations for obtaining a permit to perform the work. DelDOT’s implementing regulations are contained in 2 DE Admin. § 2309 which is also known as the Development Coordination Manual. While DelDOT does control access to state-maintained highways, it does not control land use or zoning which instead is overseen by municipal or county level government.

5.7.2 Coordination Considerations


Department Resources
Development Coordination Manual
Development Coordination website

DelDOT’s Development Coordination section utilizes several processes detailed in the Development Coordination Manual and posted on the Development Coordination website to regulate access along DelDOT’s roads. This subsection summarizes several elements of the development coordination process that are most relevant to the project development design team and provides supplemental information describing best practices and strategies associated with the coordination process.

DelDOT and a developer may enter into an agreement in accordance with 17 Del. C. §132 (c) (9) when both parties mutually agree to conditions beyond the original scope of a project. In these cases, DelDOT and the developer should formally document the terms and conditions of their agreement. Depending on the complexity of the agreement, the Development Coordination section may implement a letter agreement or detailed phasing notes as to be placed on the development project’s Record and Entrance/ Construction plans. The agreement terms and format will be coordinated with the DelDOT project and the development project through the Development Coordination section. The design team should work expeditiously with the Development Coordination section to provide the technical and design information needed to complete the agreement.

5.7.2.1 Exchange of Funds

It may be necessary to exchange funds throughout the development coordination process. Which party is to receive funds and the specific requirements associated with the exchange of funds will vary based on proposed scopes and timing between the two activities. When DelDOT is to provide funds to the developer, the funds are typically exchanged as part of the right-of-way funding phase. When a developer is to provide funds to DelDOT, they can either be received as a reimbursement or as a contribution as described in Section 5.7.2.1.1 and Section 5.7.2.1.2, respectively. Regardless of how funds are provided to a DelDOT project, the Project Manager should coordinate as needed with the Division of Finance and Development Coordination section so that they are prepared to receive, and ultimately use, the funds as they are intended.

It should be noted that reaching agreement on financial and design responsibilities may be a lengthy process and therefore, ample time should be allotted to completing the letter agreement during the coordination process.

5.7.2.1.1 Reimbursement

It may be beneficial for DelDOT to design and/or construct a portion of the developer’s required roadway improvements or for the developer to design and/or construct a portion of DelDOT’s work. Determining the entity that will perform the design and/or construction activities and which will be responsible for reimbursement is typically a function of scope and improvement timing relative to each other. The developer providing funds to DelDOT to design and/or construct a portion of its proposed work is considered a project reimbursement. When necessary, DelDOT provides their reimbursement to the developer through the right-of-way funding phase, unless otherwise documented within a letter agreement or phasing notes.

5.7.2.1.2 Contribution


Department Resources
Process for Determining Developer Contributions to DelDOT Capital Projects

Developer projects that require a Traffic Impact Study (TIS), Traffic Operational Analysis (TOA), or Area-wide Study Fee may be required to contribute financially to a DelDOT capital project listed in the CTP that adds capacity within the region via a contribution in accordance with DelDOT’s published Process for Determining Developer Contributions to DelDOT Capital Projects policy.

5.7.2.2 Electronic Design Data Coordination

Electronic design data may need to be exchanged as part of the development coordination process. This process should commence by first exchanging draft contract plans in PDF format. After this initial exchange, the complexity, detail, and specificity of the information to be exchanged can be increased at the discretion of the DelDOT and developer design teams. In general, the information that must be exchanged as part of this process will be commensurate with the scale and scope of the proposed work. Before any electronic design data files are exchanged, an electronic release form must be signed by all parties as described in Section 5.10.

Electronic design data files will typically be exchanged through use of DelDOT’s PDCA portal to ensure one repository of information accessible to all parties and to accommodate exchange of larger file sizes. All CADD files exchanged should be in the file format utilized by the originating design team and all necessary conversions should be performed by the entity receiving the electronic design data files. Additionally, it is DelDOT’s preference that all CADD files exchanged be provided in a two-dimensional (2D) design file. Achieving this preference may require that some three-dimensional (3D) design files be converted to a 2D design file format before exchange. However, it should be noted, that there may be cases where 3D design files will need to be exchanged to obtain the desired coordination results.

5.7.2.3 Eminent Domain Authority

DelDOT has the authority to obtain property rights for its projects as described in Section 5.5. In accordance with 17 Del. C. § 507, DelDOT has the ability to extend this authority in a limited capacity to developer required improvements as well. DelDOT’s regulations implementing this authority are contained 2 DE Admin. § 2308.

5.7.2.4 Contingency Planning

Land development activities are highly dependent on market conditions. Accordingly, land development activities may become stalled and approvals sunset. The design team should create contingency plans if project compliance in any way relies on developer performed activities like building a shared use best management practice (BMP) or upgrading required pedestrian facilities.

5.8 Finance

Delivering transportation infrastructure improvement projects requires the use of funding for various activities throughout the project development process. Additionally, once constructed, DelDOT will expend financial resources to maintain its infrastructure. DelDOT has many other financial obligations outside of the examples included here. DelDOT is able to meet its financial obligations by receiving funds through a multitude of sources. Funding can also come with specific requirements on how it may be used. DelDOT’s departmentwide budget management is overseen by its Division of Finance. The division is tasked with developing and managing the operating and capital budgets, maintaining financial statements, collecting all revenues, paying vendors, and maintaining compliance with generally accepted accounting principles and with all applicable state and federal laws and regulations.

While the Division of Finance manages DelDOT’s money at the department level, it is the Project Manager’s responsibility to oversee and manage finances at the project-level, including understanding the sources of funding being utilized and the specific rules and requirements associated with each type of funding. Managing a project’s finances will require the Project Manager to provide clear communications and accurate financial information to the Division of Finance to ensure efficient use of DelDOT funds both at the project-level and from a departmentwide perspective. Proper project financial management is critical to ensuring on-time project delivery which in turn builds trust and goodwill with the public. On the contrary, poor project fiscal management can lead to project delivery delays and inefficient use of public funds. Several sections throughout DelDOT utilize dedicated staff within their section or division to process and compile information before it is passed to the Division of Finance.

Many accounting controls and restrictions have been put into place both at the state and federal level to ensure financial integrity. At the state level, DelDOT’s accounting processes are dictated by the State of Delaware’s Office of Management Budget (OMB) manual entitled Budget and Accounting Policy Manual. Federal controls of the financial process are typically dictated by the United States Code and the Code of Federal Regulations. The source of a project’s funding may dictate performance of certain tasks within the project development process while other tasks may be able to be omitted. Additional discussion on these tasks and their performance requirements within the project development process based on funding source is included within the pertinent sections of this manual. All federally participating phases of a project are required to meet three requirements before work commences:

The project must have an identifiable presence in the STIP (see more information in Section 2.1.4.2),
The action must have a NEPA document prepared and approved (see more information in Section 5.3.2), and
Authorization must be received from FHWA and the project agreement executed (i.e. FMIS approval).

This manual predominantly applies to projects which are funded through the Capital Transportation Program; therefore, the manual primarily focuses on procedures associated with the capital transportation budget. A simplified overview of DelDOT’s finance process is shown below in Figure 5.8.

Figure 5.8 - DelDOT's Finance Process

5.8.1 Accounting Programs


Department Resources
Design Resource Center (DRC)

DelDOT and its partners use different accounting programs to communicate financial need and record financial information. This section provides a brief listing and description of the accounting programs used by DelDOT and its partners:

Unifier – Unifier is the primary tool that the Project Manager uses to communicate project related financial information including but not limited to funding sources, amounts, and codes to the Division of Finance. Unifier is first introduced into the project development process as part of the project number request process discussed in more detail in Section 3.3. The Project Manager will be required to make updates to the project estimate throughout the life of the project through Unifier. DelDOT maintains many Unifier-related instructions and tutorials on its Design Resource Center (DRC) website.
FACTS (Funds Allocation for Capital Transportation System) – A DelDOT financial tool that allows the Division of Finance and the Project Manager to track estimates, authorizations, obligations, and expense information on a detailed project level. FACTS is also used to interface and communicate between financial programs.
FSF (First State Financials) – The official accounting system used by the State of Delaware. DelDOT is required to report its financial information out to the State of Delaware’s accounting program.
FMIS (Fiscal Management Information System) – DelDOT is required to provide program and project-specific information about the Federal-aid Highway Program to the FHWA. This information is communicated by Division of Finance staff entering information into FHWA’s FMIS program.

5.8.2 Budgeting Basics

This section outlines general considerations associated with DelDOT’s budgeting process from a departmentwide perspective. DelDOT’s Project Managers, as well as the entire design team, are encouraged to have a working knowledge of departmentwide finance processes to create a deeper understanding of the importance and overall significance of prudent management of funds at the project-level. DelDOT’s budget is based on State fiscal year which extends from July 1st to June 30th while the federal budget is based on the federal fiscal year which extends from October 1st to September 30th.

5.8.2.1 Expenses and Revenues

At its most rudimentary, budgeting is a process of projecting expenditures and revenues to determine availability of funds for investments or other discretionary type spending. DelDOT’s budgeting process is no different. Figure 5.8.2.1 provides an overview of DelDOT’s budgeting process.

Figure 5.8.2.1 – DelDOT Budgeting Overview

DelDOT receives revenue from both state and federal sources. State sources of revenue are listed and described in Table 5.8.2.1-a. State sources of revenue are deposited into Delaware’s Transportation Trust Fund which is established in 2 Del. C. Chap 14. The money in the Transportation Trust Fund is then used to fund DelDOT’s operations and capital expenditures. The amount of money available from federal sources is dictated by the in-effect authorization act (e.g. IIJA/BIL, FAST, MAP-21, SAFETEA-LU, etc.) which defines the available funding programs and establishes maximum funding levels. Federal transportation funds can be provided either as an apportionment or an allocation. An apportionment is money that is distributed to states through a formula prescribed within statute. Allocations do not have a legislatively mandated distribution formula and may be made at any time during the federal fiscal year. Allocations are typically divided among states with qualifying projects through general administrative criteria provided in law. Federal funds received typically have spending stipulations which are described in more detail in Section 5.8.2.2. Federal funds provided to the states are furnished through the Federal Highway Trust Fund which itself is comprised of revenues collected by the United States Treasury from federal taxes on gasoline, tire sales, and other items.

Table 5.8.2.1-a – State Sources of Revenue
Funding Source	Funding Description
Tolls	DelDOT collects tolls on several of its roadways within the State. Delaware’s toll roads include I-95, I-295, SR 1, and US 301.
Department of Motor Vehicles (DMV) Revenues	All DMV fees collected in Delaware are deposited into the Transportation Trust Fund. Fees collected include a vehicle document fee, title fee, registration fee, plate transfer fee, late renewal fee, and temporary tag fee.
Motor Fuel Tax	Delaware collects a motor fuel tax on each gallon of gasoline sold within the State.
Fare Box	DTC collects a fee from the riders it services. This fee is called the “fare box”. Fare box proceeds are contributed directly to the Transportation Trust Fund.
Bond proceeds	2 Del. C. Chap 14 provides DelDOT the authority to sell bonds. The proceeds collected from the sale of bonds is then deposited into the Transportation Trust Fund.
Interest	The money in the Transportation Trust Fund collects interest throughout the year. This interest then becomes a revenue stream that is available for use.
Miscellaneous	TeDelDOT is credited funds for various other miscellaneous purposes not listed elsewhere within this table such as reimbursement from insurance companies for damages to roadway assets from crashes, property leases, etc.

DelDOT’s cost to operate the existing transportation system are referred to as operating expenses by the Division of Finance. DelDOT’s categories of operating expenses are listed and described in Table 5.8.2.1-b. Money that is left from revenue received after expenses are paid is the amount of money that is available to dedicate to DelDOT’s capital transportation program.

Table 5.8.2.1-b – DelDOT Operating Expenses
Operating Expenses	Expenditure Description
DTC Operations	DelDOT subsidizes DTC’s operations throughout the State. DTC’s fares provide a source of revenue for the State; however, the expenses of DTC’s operations are higher than the revenue it produces.
Debt Service	Under 2 Del. C. Chap 14, DelDOT is able to sell bonds to raise revenue. Bonds sold require future repayment with additional interest. Debt service is the amount of money that DelDOT pays in interest and in principle on the bonds it has sold.
Personnel Salary	Unlike other state agencies, DelDOT employees are not paid from the State’s General Fund. Instead, DelDOT employees are paid directly through the Transportation Trust Fund.
Snow/ Storm	DelDOT reserves operating funds each year to pay for work required to prepare for snow and other storms as well as to perform cleanup after the weather event.
DelDOT Operating Expenses	DelDOT’s operating expenses include costs outside of capital costs that are required to keep its infrastructure open and operational. These costs include operations like mowing or routine maintenance like pavement patching, pothole patching, or repairing damaged infrastructure. DelDOT’s operating expenses for routine maintenance are not eligible for Federal-aid Highway Program reimbursement.

5.8.2.2 Budgeting Process

DelDOT maintains both an operating budget as well as a program for making capital investments known as the Capital Transportation Program or the CTP. The improvement projects that DelDOT undertakes are budgeted within the CTP; therefore, the CTP is the focus of this section. The CTP is a staged, multi-year, statewide intermodal program which outlines planned expenditures by fiscal year. The Delaware Code requires that the CTP cover 6-years and be updated at least every 2-years. The first year of the CTP is considered DelDOT’s annual capital budget which must be submitted to the General Assembly for review and approval. Under law, DelDOT cannot undertake, or commit to, capital projects in excess of the amounts specifically authorized by the General Assembly. The development and requirements of the CTP are described in additional detail in Section 2.1.4.2. The CTP is grouped into four funding categories:

Road Systems – Improvements to the State’s roads and bridges.
Grants and Allocations – Includes the Community Transportation Fund (CTF), which is allocated by legislators for various projects in their districts; Municipal Street Aid to assist local towns and the Transportation Infrastructure Investment Fund (TIIF) to promote economic development.
Transit Systems – Investments in transit services including buses, maintenance and other facilities, transit shelters, and other assets supporting all modes of operation.
Support Systems – All other investments to the transportation network including facilities, equipment, information systems, etc.

Though the CTP is only required to be formally updated every 2-years, projections and updates to State of Delaware revenues are continuously made to ensure uninterrupted delivery of the CTP and all other state programs. Revenue and expenditure forecasts are conducted throughout the fiscal year for both the General Fund and the Transportation Trust Fund by the Delaware Economic and Financial Advisory Council (DEFAC) which is overseen by the State of Delaware’s Division of Finance. In addition to the expected program funding that DelDOT receives, DelDOT can also apply for grants, receive federally redistributed funds (see Section 5.8.2.4), or receive project contributions from other state agencies or municipalities which would affect the CTP. Additionally, money received from federal sources are subject to the rules under the in-effect authorization act. Rules within the authorization act typically place requirements on how the funds can be used, length of time over which the funds may be used, as well as required state matches. If the rules within the authorization-act are not met, then the project is not eligible for federal funding under the program. The majority of federal programs utilize a funding split of 80 percent federal for a 20 percent state match. All project funding sources and associated project splits are identified and coded by the Division of Finance.

5.8.2.3 Project Phases

As an accounting tool, DelDOT and federal administering agencies divide projects into funding phases. Funding phases are based on work performed within the phase in relation to project development milestones as well as the entity managing the phase funds. The funding phases that DelDOT utilizes are defined in its CTP as follows:

PD (Project Development) – This phase includes the initial planning, initial environmental efforts (such as purpose and need, alternatives analysis), organizing and coordination for a capital project. For simplicity, the PD phase of a project is often combined with the PE phase.
PE (Preliminary Engineering) – This phase includes various studies (environmental, traffic, soil, etc) and the detailed design of a project, which ultimately results in Plans, Specification and Estimate (PS&E) package which is used to procure a project contractor.
ROW (Right-of-Way) – This phase is used for the purchase of land and easements, in addition to the cost of moving and relocating buildings, businesses and persons.
C (Construction) – This phase includes physical construction by the contractor and administration of the contract, and quality assurance. This is inclusive of Construction Engineering and Inspection, Utilities, Traffic, Rail Road and Environmental activities.
Other – Miscellaneous work, such as, workforce development and training, Disadvantaged Business Enterprise (DBE) and On the Job Training (OJT) Supportive Services, Summer Transportation Institutes.
Planning – Feasibility studies and system planning work including Statewide Planning & Research (SPR), Local Transportation Assistance (LTAP) and Metropolitan Planning Organization (MPO) programs.
Maintenance – Activities associated with the maintenance and initial operation of the project.
Procurement – For purchasing goods or services under the Capital Program, such as, transit buses.
Program Funding – This phase provides planned resources to designated programs within the Capital Transportation Program. Funding within this program will be administered through various capital projects and activities.

The costs within the general construction phase will be separated into several unique construction related phases prior to contract award. Once these costs are separated, the construction phase will only include funds that are dedicated to the project’s general contractor. The unique construction related phases that are separated from the general construction phase include the following:

Construction Engineering – This phase is used to pay for services required from the Engineer of Record during the construction administration of a project. This includes attending meetings, reviewing requests for information (RFIs) and shop drawings, and processing revisions or other contract changes.
Construction Inspection – DelDOT will inspect contract work and materials during the construction phase of the project. The purpose of these inspection activities is outlined in DelDOT’s Standard Specifications. This phase is used to pay for inspection services that are not otherwise accounted for within DelDOT’s operating budget.
Contingency – Money in this phase is set aside to pay for unaccounted for costs.
Utilities – This phase is used to reimburse utility owners when work is not included within another phase of the project. For example, if utility cover adjustments are paid for under the construction phase, a separate utility phase is not required.
Traffic – DelDOT advertises IDIQ agreements for performing traffic related work. DelDOT also advertises material procurement contracts to obtain various traffic equipment. Costs associated with paying for the work performed by DelDOT’s IDIQ Traffic Contractor and for DelDOT Traffic supplied materials are paid for under the traffic funding phase.
Rail Road – This phase is used to pay for services required of the railroad during the project development process. Services can be performed both during the project’s design and construction phases. Services could include review services, time for attending meetings, providing flagging or other protection services, or for performance of work required because of the project’s impact.
Environmental – This phase is used to pay for environmental mitigation or monitoring services that are not included within another phase of the project.

It is noted that the FHWA’s funding phases differ from that of DelDOT’s. FHWA’s funding phases consist of PE (Preliminary Engineering), ROW (Right-of-Way), Construction, SPR (State Planning and Research), and Other. Though it is not the design team’s responsibility to apply federal phase codes to DelDOT’s planned expenditures, the design team should strive to make their communications as clear as possible so the Division of Finance can properly code the expense to the correct federal phase.

5.8.2.4 Obligation Plan and Redistributions

Obligation is defined as the federal commitment to reimburse for the federal share of an approved project’s eligible costs. Most of the programs under the Federal-aid Highway Program permit obligation of federal funds without the need for further legislative approval through a concept known as contract authority. In general, reimbursement commitment occurs when the project is approved by FHWA by executing the project agreement through FHWA’s FMIS system.

The obligation plan is a four-year listing of federally funded projects summarized from the first four years of the CTP showing the State project number, FHWA/FTA program name, project title, and FHWA/FTA funds to be obligated. If the funds on the obligation plan are not assigned and spent within the established timelines, DelDOT may have to release its authority to be reimbursed. Therefore, it is critical that the 4‐year obligation plan be maintained as new projects are considered for the CTP or changes are considered for existing projects. Near the end of the federal fiscal year, FHWA will perform an August redistribution of funds where state DOTs are given access to any anticipated unused obligation limitation, allowing them to commit additional funds beyond their initial share by the end of the fiscal year on September 30th. This reallocation allows DelDOT and other state DOTs to potentially secure additional funds which can serve to advance programmed projects. Project Managers should be aware of this available funding and are to inform their section and/or division’s leadership of potential project or program advancement opportunities.

5.8.3 Establishing Project Funding

DelDOT utilizes purchase orders to pay its vendors. DelDOT follows specific steps in setting up purchase orders to ensure compliance with the governing state and federal budgeting requirements. This section summarizes the steps that are to be followed to setup a project’s funding. The process is described in text and visually summarized in Figure 5.8.3. The process described within this section applies to all funding phases but is typically most relevant to the first funding phase of a project.

Figure 5.8 - Establishing Project Funding

Estimate – The first step in setting up project funding is to enter the project estimate into Unifier. This is typically first performed as part of the Project Number Request (PNR) process described in Section 3.3. However, the project estimate will need to be updated whenever the overall phase estimate amount changes.
Authorization – The next step is to receive authorization. Authorization at the state level consists of the cost limit being approved by the General Assembly through the annual Bond Bill. All state authorization is given at the start of a new phase. Authorization at the federal level is provided by the in-effect federal authorization act. Authorization approval for the phase is provided through FMIS approval. Federal obligation is also provided at the time of federal authorization approval through the concept of contract authority, which is a type of federal budget authority that allows FHWA to obligate funds without waiting for an annual appropriation through a legislative action.
Spend plan – A spend plan is required so the Division of Finance understands how much money will be spent on each phase over the duration of the project. Spend limits are set after authorization is provided.
Allotment – An allotment establishes the funding in the accounting system and is necessary for processing eventual project purchase orders. Allotment requests cannot exceed authorization for a particular phase on the project. Allotments are completed by project funding phase.

5.8.4 Purchase Orders

A purchase order is a document that holds a specific sum of allotted money to be paid to a specific vendor for a specific project or purchase. Purchase orders can only be processed after a project’s funding has been set up in accordance with the procedures listed in Section 5.8.3. Purchase orders are established only after a proposal, contract, or other requisition has been submitted and that exact value encumbered. Encumbering is an accounting procedure that sets aside funds for commitments related to unperformed contracts for goods and services with a specific vendor which thereby ensures the availability of funds when payment is requested. Notices to proceed (NTPs) are issued by DelDOT’s Division of Finance’s Contract Administration section only after purchase orders have reconciled in FACTS and in FSF.

Purchase orders for professional services can either be created through new task proposals or can be created through supplemental task proposals. Additionally, purchase orders can be modified throughout their lives when required based on the project’s needs. Selection of a project funding mechanism is a choice that is left to the Project Manager and is typically a function of tracking preference. If applicable, the Project Manager can coordinate with their section’s finance representative to determine how to best fund the professional service. Regardless of the mechanism chosen, the associated documentation is to be sufficient to allow for proper tracking. The methods for creating new and altering existing purchase orders are described below:

New task – New tasks are the first professional services provided by a vendor for an individual project or phase of a project. Accordingly, new tasks can either be used to advance a project to the next funding phase or to the next project milestone. Tasks are numbered in sequential order under the parent agreement. The decision to utilize professional services for performing elements of the project development process is typically made during the project initiation phase. Additional discussion on obtaining professional services and considerations associated with professional services is provided in Section 3.4. New tasks are initiated by the Project Manager requesting a draft scope of work and blank person-hour estimate from the vendor. The new task proposal is then reviewed in accordance with the procedures outlined in Section 5.8.4.1. New task proposals are to be submitted for processing in accordance with Section 5.8.4.3 once deemed acceptable.
Supplemental task – Supplemental tasks are used to provide additional funding for previously unforeseen work or to move a project to the next funding phase or project milestone. Supplemental task proposals create new purchase orders in the State’s financial system. Supplementals are named by using the prefix of the original task number and then adding a letter sequentially for each supplemental processed. For example, the third supplemental to task 6 under a parent agreement would be termed Task 6C. Since supplementals create new purchase orders, the task should be tracked separately from previously processed purchase orders. Supplemental tasks are initiated by the Project Manager requesting a draft scope of work and blank person-hour estimate from the vendor. The supplemental task proposal is then reviewed in accordance with the procedures outlined in Section 5.8.4.1. Proposals for supplemental tasks are to provide a table showing the project’s entire upset limit with all previously processed task proposals and purchase order modifications included. Supplemental task proposals are to be submitted for processing in accordance with Section 5.8.4.3 once deemed acceptable.
Purchase Order Modifications – Existing purchase orders can be modified through a process known as a purchase order modification. Purchase order modifications can either be used to take a project to the next project milestone or to supplement a purchase order with additional funds for work that was previously unforeseen but within the original scope. Purchase order modifications cannot be used to establish funds in a new or funding phase other than the original purchase order. Purchase order modifications are initiated by the Project Manager requesting a draft scope of work and blank person-hour estimate from the vendor. Purchase order modifications are named by using the prefix of the original task or supplemental task and adding a hyphen and number sequentially for each purchase order modification processed. For example, the second purchase order modification to supplemental Task 6C under a parent agreement would be termed Task 6C-2. The purchase order modification proposal is then reviewed in accordance with the procedures outlined in Section 5.8.4.1. The proposal should outline the additional work being performed, state the existing task number which is being modified, and provide a summary table showing how the task funding has been modified, including through previously processed purchase order modifications. Purchase order modification proposals are to be submitted for processing in accordance with Section 5.8.4.3 once deemed acceptable.
Reallocations – Money within an existing purchase order can be redistributed provided that the fixed fee and total task upset limit do not change. Reallocating money within an existing purchase order requires the prime vendor to send a memo to the Project Manager detailing the proposed reallocation. Reallocations typically include redistributions between subconsultants or between the prime vendor and a subconsultant or converting a direct expense to direct labor and overhead. The memo is to state that all affected parties are aware of the reallocation and consent to it. Section 5.8.4.2 provides a description of the costs included within a cost plus fixed fee professional services task. After approval, the Project Manager will need to send the memo to their section’s staff designated with overseeing invoice processing who will then further distribute to DelDOT’s Division of Finance.

Purchase order modifications and supplemental tasks that are required due to vendor performance of previously unauthorized work, work required to meet schedules due to a vendor's inadequate assignment of personnel or planning, work deemed unacceptable, and work required to correct a vendor's errors or omissions, may not be eligible for an adjustment in the fixed fee. Including additional fixed fee will be at the Project Manager's discretion based upon the vendor’s presentation of information.

The project team will also initiate the establishment of a purchase order at contract award by submitting a recommend to award letter to the Division of Finance. Bid analysis and award or rejection are discussed in more detail in Section 7.4. DelDOT’s Construction section will establish the contract’s purchase order and issue contractor NTP.

5.8.4.1 Cost Plus Fixed Fee Proposal Review

The Project Manager should review cost plus fixed fee professional service proposals upon receipt to ensure the scope of the work and tasks within the blank person-hour estimate are accurate and in line with the Project Manager’s expectations. The Project Manager will communicate all comments on the draft scope of work and blank person-hour estimate to the vendor until all comments are sufficiently addressed. At this point, the Project Manager will prepare an independent person-hour estimate for the project that must be signed and dated. The vendor will then submit their person-hour estimate to the Project Manager who will then compare the estimates. The acceptability of the vendor’s proposal will be based on the following two guidelines:

For projects with a DelDOT estimate of less than 500 person-hours, if the vendor is within 15% of the DelDOT estimate (either above or below), the proposal will be acceptable.
For projects with a DelDOT estimate of 500 person-hours or more, if the vendor is within 10% of the DelDOT estimate (either above or below), the proposal will be acceptable.

If the differences between the vendor’s proposal and DelDOT’s independent person-hour estimate exceed these percentages (either above or below), a negotiation meeting should be held to resolve the differences. The negotiation meeting should result in a fair number of person-hours and the vendor should resubmit the proposal based on the negotiated hours. The documentation of the negotiation meeting should be saved within the project files. In addition to reviewing the submitted person-hours, the Project Manager should also ensure that appropriate level staff are being assigned to the activities included within the vendor’s proposal.

5.8.4.2 Financial Information in a Cost Plus Fixed Fee Professional Services Proposal

The professional services agreement under which the proposal is submitted to DelDOT dictates the format of the proposal. DelDOT’s professional service agreements are typically cost plus fixed fee. Cost plus fixed fee reimburses the selected vendor for direct and indirect costs attributable to the project plus a negotiated amount for profit (fixed fee). During the negotiating phase, limits are agreed to on all cost elements which when totaled are referred to as the total upset limit. Other methods of compensating for professional services include lump sum, cost per unit of work, and specific rates of compensation. Professional service proposals that are based on the cost plus fixed fee method will include the following costs:

Direct labor – This is the cost of the salaries of the personnel that are planned to be directly chargeable to the project. Rates are non-negotiable unless they have been capped by DelDOT. Hours are reviewed and agreed upon as part of the proposal review process presented in Section 5.8.4.1.
Overhead – Considers the vendor’s expenses that are not directly attributable to a project. Overhead expenses include costs incurred related to maintaining and operating a business and not allocable to a specific project. Vendors are required to have an independent auditor complete a Federal Acquisition Regulation (FAR) compliant indirect cost rate review and submit the report to DelDOT’s Division of Finance once a year for approval. Once approved, this rate cannot be changed without submission of additional documentation and approval of the Audit Management section.
Fixed fee – The allowable fixed fee is intended to compensate the vendor for contingencies, interest on invested capital, readiness to serve, disallowed overhead items, and profit. This fee is negotiable but becomes fixed once agreed upon. The fixed fee varies with the scope, complexity, and duration of the project with its parameters being defined in the parent agreement.
Direct expense – Direct expenses are fees anticipated for the work which are billed at actual cost to DelDOT. Direct expenses can include mileage, living and travel expenses when away from the home office on project-related business, printing, cost of materials directly assignable to the project, postage, parking fees, subconsultants, or other similar items.

5.8.4.3 Proposal Submittal Process


Department Resources
Funding Increase Request Form
Funding Request Form

Once the task proposal is considered acceptable, the Project Manager will need to assess the project’s authorized funding to determine whether processing the vendor proposal will require additional authorized funding. When additional funds are required, the Project Manager will need to complete and submit the Funding Increase Request Form as further described Section 5.8.7. Once the project’s authorized funding has been assessed and the necessary steps performed, the Project Manager can submit the proposal and a completed Funding Request Form to the appropriate Department mailboxes as shown in Table 5.8.4.3 for processing. The Project Manager should also attach the funding increase request email to the funding request email in cases where additional authorized funds were required to expedite the process. The subject line of the email sent to Department mailboxes shown in Table 5.8.4.3 should be the Agreement number, task number, and then supplemental number if applicable. The body of the email submitted should include the following text: “The attached proposal has been reviewed and found acceptable. Please proceed with the NTP process”. If the proposal being submitted is for a purchase order modification, the email should also make it clear that the proposal is to be processed as a purchase order modification. Several DelDOT sections, including the Traffic section and Utilities section, delegate these funding assessments and processing activities to dedicated section staff members.

Table 5.8.4.3 – Department Mailboxes for Proposal Processing
Department Mailbox	When to Include on Funding Request Email
DOT.AuditManagement@Delaware.gov	Include on all Funding Requests
DOT.ProfServices@Delaware.gov	Include on all Funding Requests
DOT_TransSolutions_Funding_requests@Delaware.gov	Include on all Transportation Solutions Funding Requests

5.8.4.4 Purchase Order Termination

DelDOT may elect to terminate a professional services task before completion at its discretion. Reasons for terminating a professional services task could include the project being cancelled or delayed, re-assignment of the project to internal DelDOT staff, or poor task performance. Task termination is initiated by the Project Manager notifying the vendor to the change so that discussion can occur on a logical termination point. In some cases, termination may be immediate while in other cases, it may be advantageous to advance a project to an interim milestone before termination. The Project Manager and the vendor will also need to agree on a percent completion of the scope of services so that the fixed fee amount that the vendor is entitled to can be determined. The vendor’s next invoice to the Project Manager is to show the invoice as the final invoice and include the amount of fixed fee agreed upon with the Project Manager. From this point, the Project Manager will process the invoice as outlined in Section 5.8.5 and provide notification that the purchase order is to be closed upon payment. Upon receipt, DelDOT’s Division of Finance will close the existing purchase order, thereby terminating the professional services task.

5.8.5 Invoices

The Project Manager will receive invoices from vendors over the course of the project’s life. Payments for invoices are processed via payment vouchers submitted through both DelDOT’s and the State’s financial systems. Invoices are paid from the project’s assigned spend, thereby reducing the project’s spend balance. A project’s spend balance is calculated by subtracting a project’s expenditures from its assigned spend. Spend can be transferred from one project to another provided there is no change in total project spending amounts and that the money transferred is of similar funds. Once invoices are paid, they are considered project expenditures.

5.8.5.1 Processing Invoices


Department Resources
Invoice Circulation Tracking Checklist and Consultant Agreement Payment Approval Check List Form
Professional Services Procurement Manual

Project Managers are responsible for ensuring prompt payment for professional services performed. In accordance with 29 Del. C. § 6516, DelDOT has a 30-day window to get invoices processed and paid to the vendor starting from the date the Project Manager receives a valid invoice. Once the invoice is received, an Invoice Circulation Tracking Checklist and Consultant Agreement Payment Approval Check List Form should be added to the front of the invoice if not included by the vendor. The Project Manager should review the invoice for the following:

Ensure the invoice format meets DelDOT’s standard invoice format per DelDOT’s Professional Services Procurement Manual.
Ensure that the project number, agreement number, and invoice number are consistent and accurate throughout the entire invoice.
Ensure that all work performed by the vendor is within scope, directed by the Project Manager, or otherwise authorized. Work that is not authorized may not be compensable depending upon the circumstances of the unauthorized work. Providing compensation for unauthorized work is at the discretion of the Project Manager.
Ensure hours seem reasonable for the work completed according to the progress report.
Ensure the hours and any direct expenses charged are within the invoice period.
Ensure the invoice period is within the period of performance for the project and that the agreement is still active.
Ensure percent complete is reasonable compared to the work completed in the progress report.
Ensure total billing is below the task upset limit. Invoices submitted without funding in place will require an After the Fact Waiver. After the fact waivers are to be avoided due to the significant amount of time and resources required to process.
Ensure total fixed fee billed is below the task upset limit and is in-line with the percentage of task complete.
Ensure values in the tables match from page to page and the calculations are accurate, including rounding errors down to $0.01.
Ensure verified payroll records are included.
Ensure direct expenses are acceptable and properly documented in accordance with DelDOT’s Professional Services Procurement Manual.

It is noted that some Project Managers use spreadsheets or other tools to track submitted invoices. This is not a mandatory practice but can be beneficial in assisting the Project Manager track their project and ensure sufficient funding as part of their role in invoice processing.

If any adjustments to the vendor’s invoice need to be made, the Project Manager is to send the invoice back to the vendor with an explanation of the discrepancies. Any prior discrepancies should be noted in the comments section of the Invoice Circulation Tracking Check List when the approved invoice is submitted for processing.

The Project Manager will also need to review the invoice to determine if it is the last invoice on the purchase order or on the parent agreement. When the invoice is designated as such, it should be indicated on the tracking checklist as this will help expedite the closeout process. The closeout process is discussed in more detail in Section 5.8.12.

To process the invoice, the Project Manager should follow the circulation process that is shown in the invoice circulation tracking sheet. Once circulation has completed, the invoice is to be sent to DelDOT’s DOT_TransSolutions_Payment@delaware.gov mailbox. In addition, final invoices should be sent to the DOT.auditmanagement@delaware.gov mailbox as well.

On occasion, the invoice processing task may uncover missing invoices. In these occurrences, the Project Manager, the vendor, and the necessary Division of Finance staff will need to work collectively to ensure that the balances between the groups are consistent.

5.8.5.2 Fiscal Year End

DelDOT’s finance system will shut down for a period of approximately 3-weeks from roughly mid-June to early-July corresponding to the end and beginning of the State of Delaware’s fiscal year. Project Managers should remind their consultants of this shut down so that their billing cycles can be adjusted as needed.

5.8.6 Communication Methods


Department Resources
Unifier Training Outline
Tutorial Video

The Project Manager will need to communicate their project’s financial needs to the Division of Finance throughout the life of the project to ensure funds are available to perform the work. The Project Manager is encouraged to keep consistent communication with the Division of Finance throughout the project development process accordingly. Ensuring consistency in communication is critical due to the magnitude of correspondences the Division of Finance receives. Communication on a project commonly occurs through several established methods, and includes the following:

Project estimate updates in Unifier – Project estimates are entered into Unifier. The estimate information is then exported out of Unifier into DelDOT’s accounting programs. Therefore, entering estimate information into Unifier is the first step in communicating overall project financial need to the Division of Finance. Project estimate updates should occur at each milestone submittal. The project estimate should also be reviewed periodically during the CTP development process to ensure accuracy; accordingly, CTP estimate updates will be periodically requested by the Division of Finance throughout the life of a project. Reviewing estimates during CTP development will ensure enough money is available for the project while not jeopardizing available funding on other projects. DelDOT maintains written procedures for updating a project’s information in its Unifier Training Outline and maintains a tutorial video on the subject on its Youtube channel.
Spend updates – Periodically throughout the course of the project development process, the Project Manager will review the actual rate of project expenditures compared to the expected expenditure rate to evaluate the accuracy of the project’s spend plan. After their review, the Project Manager can recommend that money be moved up or moved back in the spend plan. This practice of reviewing and making recommendations on project funding is known as making spend updates. DelDOT sections typically use different spend update intervals based on the amount, complexity, typical schedule, and budget of projects being managed by the section. Spend updates are most commonly performed monthly. Conducting spend updates also provides a good opportunity for the Project Manager to review the project’s overall budget to determine if the project will require additional funding or if the project has a surplus amount of funds.

5.8.7 Project Cost Increases


Department Resources
Policy Implement C-06: Increase in Project Cost Estimates
Funding Increase Form
Unifier Training Outline

Project cost increases can occur throughout the project development process. When a Project Manager becomes aware that a project’s cost estimate has increased, they should explore all possible financial solutions such as by transferring funds within their program’s direct control or by utilizing financial contingencies already built into a project’s budget. If the Project Manager determines that they either don’t have the necessary funds or authority to transfer funds to account for a project cost increase, they must complete a funding request increase, except in cases where the increased cost estimate is associated with an advertisement and/or award. In these instances, funding adjustments will be processed by the Division of Finance when the project is PS&E’d or when a recommendation to award letter is received.

DelDOT Policy Implement C-06 entitled Increase in Project Cost Estimates, describes DelDOT’s funding increase process and establishes when the Project Manager must obtain concurrences prior to submitting a request to increase funding. Funding increase concurrences may be obtained and documented via email. Once necessary concurrence is obtained, the Project Manager is to submit a completed Funding Increase Form and its associated concurrence to the Division of Finance via the DOT_Finance_Funding_Requests@delaware.gov mailbox for processing. At this point, the Project Manager and the design team will act in a support role to the Division of Finance to coordinate any necessary actions.

Increasing project cost estimates for projects listed in the CTP will require either a STIP modification or a STIP amendment be processed. STIP modifications and STIP amendments are described in more detail in Section 5.8.7.1. Project cost increases to projects listed in the CTP are financed through a contingency fund that DelDOT maintains to accommodate unplanned project cost increases associated with projects which are already included within the CTP. The contingency fund acts as a revolving fund drawing down from an original amount established in the CTP to pay for unforeseen expenses and is replenished by projects that will not or cannot spend as quickly as originally planned. DelDOT’s Contingency Management Team (CMT) is tasked with managing the contingency fund. DelDOT’s contingency fund is more fully described in Policy Implement C-06.

Once a project increase is approved, the Project Manager will need to update the project’s estimate in Unifier so that the change is propagated throughout the rest of DelDOT’s accounting software. Unifier updates are more thoroughly described in DelDOT’s Unifier Training Outline.

5.8.7.1 STIP Modifications and Amendment Procedures


Department Resources
Memorandum of Understanding (MOU)

The Statewide Transportation Improvement Program (STIP) is a federally required planning document that serves to establish a state DOT’s capital project programming. The STIP is required to be formally approved by both the FHWA and Federal Transit Administration (FTA) in accordance with the requirements and process established in Section 2.1. On occasion, the STIP may need to be altered for various reasons. In accordance with 23 CFR 450.218(n), a state may advance a project in any of the first four-years of the STIP in place of another project at any time under procedures agreed to by the State, MPOs, and public transportation operators. A revision to the STIP is also subject to the approval of the FHWA and FTA. Changes to the STIP can be classified as either STIP modification or STIP amendment based on the size of the change. STIP modifications are considered minor revisions that do not require public review and comment, a redemonstration of fiscal constraint, or a conformity determination provided the project is not categorized as regionally significant. STIP amendments are considered major revisions and require public review and comment and a redemonstration of fiscal constraint. If an amendment involves “non-exempt” projects in nonattainment and maintenance areas, a conformity determination is required. DelDOT maintains a Memorandum of Understanding (MOU) with Wilmington Area Planning Council (WILMAPCO), Dover/ Kent County MPO (DKCMPO), Salisbury/Wicomico MPO (SWMPO), Sussex County, FHWA, and FTA which further outlines STIP modification and amendment procedures.

5.8.8 Grants

Opportunities to receive financial grants which supplement DelDOT’s expected funding are possible throughout the life of the project. Grant opportunities will typically be communicated from the Division of Finance or through DelDOT’s leadership team to the design team. A major source of grants is through the United States Department of Transportation (US DOT) which provides a website to assist grantee hopefuls find grant opportunities. Grants require that perspective grantees submit a package of information which is then evaluated for merit and competes for award against submittals from other perspective grantees. Submittal requirements and evaluation criteria vary by grant program and potentially by program year. The Division of Finance must be notified by the design team whenever a grant is pursued. All grant submittals should be tailored to the merit criteria of the individual grant. Several best practices are provided herein for consideration:

Read and assess the Request for Applications (RFA) carefully. Pay close attention to the eligibility requirements as well as submission deadlines.
Participate in all offered question and answer sessions. Participation may provide insight into the grantor’s goals.
Create a tentative submission schedule. Consider meeting with internal and potentially external stakeholders to brainstorm ideas and gain development commitments.
Develop emphasis points before beginning the writing process. Allow stakeholders to review and comment on emphasis points.
Discretionary grants often come with reporting requirements, performance measures, and strict delivery requirements. The project team is encouraged to review these requirements within the application to ensure that adequate staffing can be committed to meet the grant’s delivery requirements.
Write concisely, specifically, and clearly. Use templates if provided by the grantor. Stick to the emphasis points and write to the evaluation criteria. Use visual aids as allowed to break up text.
Provide adequate time for multiple proofreads. Read the application aloud. Check all attachments before submitting.

5.8.9 Emergency Procedures


Department Resources
Memorandum of Understanding (MOU)

Natural disasters or catastrophic network failure from an external cause may lead to the need for the creation of an immediate project. Federal Emergency Relief program funding through the in-effect federal authorization act provides funds for emergency repairs and permanent repairs to Federal-aid highways typically either at a 100% or 90% federal share. The Emergency Relief program is established under 23 U.S.C. 125 with implementing regulations included 23 CFR 668. Additionally, FHWA provides an Emergency Relief Manual for reference as well. As with other activities, these projects require an identifiable presence in the STIP, NEPA document prepared and approved if using federal funds, and FMIS approval if using federal funds. DelDOT’s Memorandum of Understanding (MOU) with Wilmington Area Planning Council (WILMAPCO), Dover/ Kent County MPO (DKCMPO), Salisbury/Wicomico MPO (SWMPO), Sussex County, FHWA, and FTA outlines procedures for including projects on the STIP that are a result of a State Declared Emergency. By their nature, emergency projects are time sensitive. The project team should immediately notify the Division of Finance and the Environmental Stewardship Office as soon as it is determined that an emergency project or repair exists that requires non-operating funds. The design team should also work expeditiously to determine an approximate project cost so that funding arrangements can be made.

5.8.10 Inactive Federally Participating Projects

In accordance with 23 CFR 630.106(a)(5), DelDOT is required to review the status of its federally participating projects which haven’t had an expenditure in over 12 months. DelDOT’s Division of Finance will reach out to Project Managers for an update on these inactive projects accordingly.

5.8.11 Federal Funds Expenditure Time Limits

A federally participating project must be authorized and must have a project agreement in order for costs associated with the work to be eligible for reimbursement. Agreement provisions for Federal-aid Highway Program projects are contained in 23 CFR 630.112. Among the standard provisions is a requirement that actual construction occur by the close of the 20th fiscal year following the fiscal year in which the right-of-way phase is initially authorized. Violation of this time limit would require the State to reimburse the FHWA the sum or sums of federal funds paid. DelDOT may request a time extension in these cases, but approval is subject to FHWA’s judgement as to whether the delay was considered reasonable.

5.8.12 Closeout


Department Resources
Project Closeout Guidelines for Project Managers

All purchase orders using federal funds must be closed out upon completion in accordance with 2 CFR 200.344. Regardless of funding source, closeout activities should be approached proactively by the project team to allow funds to be unencumbered from completed tasks and then reprogrammed to other active projects. Closeout is an important and complex task as it requires performance of activities by multiple sections throughout DelDOT. To ensure expedient closeout, DelDOT has developed guidance entitled Project Closeout Guidelines for Project Managers which outlines procedures, best practices, and other considerations associated with closeout.

In addition to closing out tasks whose work is complete, the Project Manager must also closeout tasks where DelDOT has decided to terminate the professional service before its completion. As with many other activities in the project development process, it is imperative that the Project Manager continually perform the updates and tracking described throughout this manual to communicate critical information to DelDOT’s Division of Finance and other affected sections so closeout can occur expeditiously.

5.9 Hazardous Materials

Work involving existing structures and land disturbing activities like digging, drilling, excavating, grading, clearing, earth moving, filling, or performing any subsurface work creates the potential for exposing hazardous materials, commonly referred to as hazmat. In addition to the risks posed to public health, the environment, and project timing, DelDOT can be exposed to substantial liability under federal statute when hazmat contaminated land is purchased. Hazmat investigation and remediation can add significant cost and duration to a project. Typically, avoiding hazmat is in the best interest of the public; however, this is not always possible within the scope of a project. Additionally, experience has shown that minor hazmat within a project’s limits can be dealt with in a relatively predictable and efficient manner when discovered early enough in the project development process. For these reasons, the presence of hazmat should be proactively investigated during the project development phase.

Numerous federal, state, and sometimes even local laws and regulations exist that govern the handling, transportation, and disposal of hazmat due to the risks involved. The two most prominent laws controlling hazmat at the federal level are the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Resource Conservation and Recovery Act of 1976 (RCRA). CERCLA and RCRA are codified into the United States Code in 42 U.S.C 9601 et seq. and 42 U.S.C. 6901 et seq., respectively. The comprehensive hazmat legislation dictating the project development process at the state level is the Hazardous Substance Cleanup Act (HSCA). The regulatory language implementing HSCA is contained in 7 DE Admin. Code § 1375. Additional information about the governing laws and regulations related to Hazmat is contained in Section 5.3.2.2.1.6. There are also both federal and state hazmat cleanup programs that can be considered when remediation is required. DNREC operates several programs under the HSCA umbrella; however, DelDOT primarily utilizes the Voluntary Cleanup Program (VCP), the Brownfield Development Program, the Soil Reuse Program, and the PCB (Polychlorinated Biphenyl) Program.

DelDOT’s Hazmat section is tasked with overseeing DelDOT’s Hazmat Compliance Program. The Hazmat section is managed by the Hazmat Program Manager and utilizes professional service agreements that provide the qualified and licensed staff necessary to operate the Hazmat Compliance Program. In general, projects that involve right-of-way acquisition, more than minimal excavation within its scope, or demolition or rehabilitation to existing bridges are to follow the process outlined within this manual. The DelDOT Hazmat section follows a stepped three-phase approach within the project development process to ensure compliance and to limit contract risk related to hazmat. The design team should work proactively with the Hazmat section to plan and fund any necessary investigation and remedial activities as soon as it is determined that hazmat may be encountered. DelDOT’s hazmat process is summarized visually in Figure 5.9.

Though lessened, there is still risk that hazmat will be discovered during construction activities even when the procedures in this manual are followed. These occurrences are outside the scope of this manual and are to be immediately brought to the attention of the DelDOT Hazmat section and other regulatory agencies as required.

Figure 5.9 - DelDOT Hazmat Coordination Process

5.9.1 Phase 1 – Preliminary Assessment


Department Resources
DelDOT Gateway

The first step in DelDOT’s hazmat process is to perform a preliminary site assessment investigation which primarily relies on record searches of the project area to evaluate for the presence of contamination. When present within the project area, these known sites will be at different stages in the investigation and cleanup process with varying amounts of information accordingly. Some sites may be at the beginning of the investigation phase and have only limited information whereas at other sites the remedy, like a cap, may already be in place and functioning.

As part of their work, the design team should perform a desktop level screening as early as feasible during the project development process to help inform the design team’s early decisions. In addition to archive plans, several datasets are available to assist in conducting this screening. Table 5.9.1 lists and summarizes the most pertinent datasets that can be referenced by the design team. The design team’s dataset review should be supplemented by reviewing the project area for known potential hazmat applications which may not be documented in the existing hazmat datasets. Common applications which may include hazmat in Delaware, and which may not be part of an existing dataset include:

Timber piles which may have been creosote treated,
Parts of I95 bridges and overpasses which may include asbestos conduit, and
Existing railroad lines.

Table 5.9.1 – Hazmat Datasets
Owning Entity	Dataset	Information Contained
EPA	Superfund National Priories List (NPL) Where You Live Map	Shows current, deleted, and proposed NPL sites. The dataset contains information on the owning entity, a narrative of the location, as well as milestone dates associated with the location’s listing.
DelDOT	DelDOT Gateway	DelDOT Gateway contains two relevant layers. The layer entitled “DelDOT Owned DNREC Impaired Sites” which shows current or past hazmat locations which DelDOT owns. The layer entitled “DNREC Environmental Permitting and Monitoring” allows users to navigate and search records within DNREC’s various environmental control programs, permits, and facilities.

The DelDOT Hazmat section will also independently perform a phase 1 assessment in addition to the screening efforts conducted by the design team. The Hazmat section’s phase 1 assessment may include dataset research, record checks, site visits, consultation with others that may have knowledge to assist in the evaluation of the site for the possible presence of hazmat within the project limits. The actual activities performed during the phase 1 assessment will be at the discretion of the DelDOT Hazmat Program Manager and will be in conformance with the procedures of the United States EPA recognized American Society for Testing and Materials (ASTM) International Standards for meeting compliance in ASTM E1527 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. The Hazmat section’s assessment is typically initiated by the design team’s first plan submission. The Hazmat section will communicate the results of their assessment through comments on the plan deliverables. If the phase 1 investigation reveals no evidence of potential hazmat, then the assessment process is complete. If there is evidence of potential hazmat, the project can either be adjusted to avoid the hazmat or additional analysis can be performed through a phase 2 investigation.

5.9.2 Phase 2 – Site Investigation

If the phase 1 investigation determines that there may be a potential for hazmat within the project area, a phase 2 assessment to confirm or refute the presence of contamination in that localized area may be conducted at the joint discretion of the Hazmat Program Manager and the design team. The decision to perform a phase 2 analysis and its scope will be influenced by numerous factors including but not limited to the site hydrogeology, nature of the substance released, impact to adjacent lands, impact to ground water and surface water, site geography, land use, and proposed use of the site for the transportation project. A phase 2 assessment will utilize the information that was gathered during the phase 1 assessment to perform additional field investigations to determine the limits, nature, site specific risks, and extent of any hazmat. The phase 2 investigation serves to inform the project team on the scale and scope of the remediation that will be needed if the hazmat is impacted. The scope of the phase 2 investigation should be considered flexible and be tailored to meet the needs of a project. The actual activities performed will be at the discretion of the DelDOT Hazmat Program Manager based on prior site investigation experience as well as experience with coordinating with regulatory agencies. The activities performed will be in conformance with the procedures of the United States EPA recognized in ASTM E1903 Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Process.

This phase can commence once proposed features are able to be laid out relative to the existing site and its potential hazmat. This phase is typically initiated once plans that show proposed features are distributed for review. The DelDOT Hazmat section will evaluate and make investigation technique recommendations when warranted. The site investigations may require the exchange of electronic files between the design team and the entity that will perform the site investigation. When the exchange of electronic files is required, DelDOT’s policy is to only share the files included in Table 5.9.2 unless specifically requested otherwise. Additionally, the notification procedures within Section 3.7 are to be followed when it is determined that it is necessary to leave the public right-of-way to perform existing site investigations.

Table 5.9.2 – Electronic File Availability for DelDOT Design Data
Data Type & Format	File Description
FS.DGN	This file contains the existing topographic information within the project limits that has been exported to a two‐dimensional (2D) design file in the MicroStation design file format (DGN).
AL.DGN	This file contains the horizontal and vertical alignment information within the project limits that has been exported to a two‐dimensional (2D) design file in the MicroStation design file format (DGN).
RW.DGN	This file contains the existing right‐of‐way, and proposed right‐of‐way (if available) information within the project limits in the MicroStation design file format (DGN).
PC.DGN	This file contains the proposed construction line work within the project limits in the MicroStation design file format (DGN).
UT.DGN	This file contains existing and proposed utility information within the project limits that has been exported to a two‐dimensional (2D) design file in the MicroStation design file format (DGN).
Contract Plans (PDF)	These files consist of the contract plan sheets at the most current plan milestone in the Adobe Portable Document File format (PDF). Plans that are still in the design phase should clearly be identified with a “Draft” watermark.

If no evidence of contamination is discovered during the investigation, then the hazmat investigation process is complete. If contamination is discovered, the project team can move into phase 3 of the hazmat process or perform a redesign to avoid the hazmat.

5.9.3 Phase 3 – Remedial Design and Implementation

Once the necessary site investigations are complete and it is determined that remediation activities should proceed, the scope of the effort can be established. For the project team, this phase includes planning the remediation work, obtaining approvals from regulatory agencies, preparing the contract language to dictate and control the remediation work, and ultimately either performing or overseeing the remediation work. In addition to these technical considerations, the project team must also work to setup any necessary funding during this phase.

5.9.3.1 Remediation Design

DelDOT’s Hazmat section will coordinate directly with the necessary regulatory agencies to obtain the necessary hazmat remediation approvals. The Hazmat section will begin the remediation design effort by investigating on-file information for the site. When needed, this coordination may result in the development of a corrective action work plan (or similar document) to guide the remedial actions in accordance with 7 DE Admin. Code § 1375. The remedial design plans will include documentation of any immediate dangers and the determination of soil and/or water contaminant treatment levels and exposure pathways and any/all requirements per established state and federal regulations. The time required to design and obtain approval for any necessary remediation will vary based on the scale and complexity of the required work. The recommended remedial action can either be considered active or passive remediation and could include:

Material contaminant mass or toxicity reduction,
Material isolation,
Material treatment,
Mitigation of contaminated vapors,
Material removal and disposal,
Material cleanup,
Monitoring of hazardous substances released into the environment during the work,or
Any other actions that may be necessary to prevent, minimize, or mitigate harm or risk of harm to the public health or welfare of the environment.

When necessary, DelDOT’s Hazmat section will develop a site-specific Contaminated Materials Management Plan (CMMP) that addresses the management of the anticipated hazmat. The Contaminated Materials Management Plan will include the following:

The procedures to be used to excavate and stage the contaminated material,
The licensed treatment/disposal facility where DelDOT will ship the contaminated material,
The method the material will be transported to the treatment/disposal facility, and
Any additional health and safety requirements for site personnel.

During this phase, the design team should coordinate with rest of the project team to determine the appropriate timing of the remediation work relative to the project’s construction phase.

5.9.3.2 Remediation Implementation

Once the remediation has been adequately planned and the necessary approvals and permits are obtained, the final step of remediation implementation can be performed. Ideally, the remediation should be performed prior to construction to reduce risk and minimize exposure; however, performing the remediation during the design phase and prior to a contract’s award is not always feasible. Regardless of when the work is performed, DelDOT’s Hazmat section will monitor the remediation to meet reporting requirements and to ensure target clean-up goals in compliance with applicable state and federal regulations are being met.

5.9.3.2.1 Remediation Performed Prior to the Construction Phase

DelDOT’s Hazmat section will oversee all remediation work when it is performed prior to the construction phase. In these cases, the remediation work will be funded through a project’s PE phase. The Project Manager is to coordinate the remediation timing and funding requirements with the Hazmat Program Manager to ensure accurate project schedules and adequate project funding.

5.9.3.2.2 Remediation Performed During the Construction Phase

When hazmat remediation is performed during the construction phase, it is critical that the contract be written to clearly explain the work expectations between the various entities involved. In the majority of cases when the remediation is performed during the construction phase, the Hazmat section will utilize entities contracted directly through the Hazmat section to perform the remediation work. This is done to ensure that qualified and certified individuals are handling the hazmat. Regardless of the entity performing the work, the project’s Contaminated Materials Management Plan is to be advertised with the contract when it is developed.

DelDOT’s typical practice for performing hazmat remediation within the construction phase of a project is summarized in special provision item 202560 entitled “Contaminated Material”. For contaminated solids, item 202560 requires that the contractor excavate and then provide a suitable storage location on site for the State’s hazmat contractor to remove and dispose of the contaminated material. In certain optimal conditions, the contractor and the State’s hazmat contractor can coordinate so that the material can be live loaded at the site. The State’s hazmat contractor will be tasked with transporting the hazmat material and disposing of it in accordance with the appliable laws and regulations. DelDOT may also elect to perform air monitoring during any excavation activities at the site to identify and mitigate fire, explosion, or vapor hazard. Item 202560 is a non-pay item special provision and will be added to DelDOT contracts during the project development process at the discretion of the Hazmat section. When needed, the Hazmat section will work with the rest of the design team to modify item 202560 to meet an individual project’s needs.

Even when all appropriate procedures to identify and characterize contamination have been followed, it is still possible that previously unknown hazmat be discovered during the course of construction. This can occur simply because it is not always possible to predict what will be found in the subsurface based on limited sampling. For this reason, the Hazmat section will recommend including the 202560 special provision item on any contract with the potential for significant excavation to protect DelDOT and the contractor in the event that previously unidentified hazmat is found during the course of construction.

5.10 Electronic File Release


Department Resources
Electronic Release: In-house Performed for Design
Electronic Release: Consultant Performed Design

Project coordination will often require the design team to provide digital design data information to project stakeholders. An Electronic File Sharing Release form may need to be completed depending on the entity requesting the electronic information. Guidance on when to complete the release is included throughout the manual. DelDOT maintains two standard Electronic File Sharing Release forms based on whether the entity performing the design task is internal to DelDOT or if it is being performed by staff working under a professional services agreement. The Electronic File Sharing Release should be completed by the entity requesting the electronic files and signed in the order presented in the form. The DelDOT signature included on the release is to be the developing section’s Assistant Director’s.

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