Chapter 5 - Stakeholder Management

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.
• 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 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 digital design data information. Before providing this information, an electronic release form must be signed by all parties as described in Section 5.10.

5.1 Public Engagement

Department Resources
Policy Implement O-03: Public Involvement Policy
Project Public Involvement Plan Worksheet

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
• 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 a documented public involvement process. 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 continuous public engagement opportunities within the project development process. This early and continuous 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 NEPA class of action identified in the Initial Environmental Evaluation
• Establishing how public comments will be collected and addressed
• 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 section and 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.

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
• 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) database 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 database 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

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. Projects to be constructed through Indefinite Delivery / Indefinite Quantity (IDIQ) construction contracts should provide this notification when a work order is assigned to a contractor. 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 affect 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
• 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 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, an 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.

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 full ADA accommodations policy for public involvement is included as Appendix A of DelDOT’s Policy Implement O-03 entitled DelDOT Public Involvement Policy. Additionally, 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:

Department Resources
Policy Implement O-03: Public Involvement Policy

5.2 Coordination with Municipalities

Section currently under development.

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 section 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 section’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 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 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 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 which is discussed in additional detail in Section 3.6. The design team should coordinate with the Environmental Stewardship section 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 section 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 is 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, archelogy 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 are used for 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 and/or memorandum of agreement (MOA) special conditions.

5.3.1 Planning and Environmental Linkage (PEL)

Planning and environmental linkage (PEL) strategies 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, and the public. 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 section.

5.3.2 National Environmental Policy Act (NEPA) Process

The National Environmental Policy Act (NEPA) 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 demands that agencies utilize a systematic interdisciplinary approach to balance infrastructure need 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 Council of Environmental Quality (CEQ) was established under NEPA to advise the President, develop environmental policies, and to oversee the implementation of NEPA. 40 CFR 1500 are the regulations that implement NEPA across the federal government and further requires that each federal agency adopt regulations that implement NEPA for their agency. 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 Federal Highway Administration (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.

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 effects 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 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.

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 section 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:

1. A categorical exclusion (CE),
2. An environmental assessment (EA), and
3. 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)

Categorical Exclusions (CEs) are defined in 23 CR 771.117(a) as actions that do not individually or cumulatively 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, either individually or cumulatively, 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).

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

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

• Programmatic Agreement,
• [DelDOT NEPA Categorical Exclusion Guidebook],
• CE Checklist Template FHWA Approval, and
• CE Checklist DelDOT Approval.

The programmatic agreement defines three available paths to a CEs approval:

1. Appendix A lists actions that qualify for a CE in accordance with 23 CFR 771.117(c). Approval of these activities is delegated to DelDOT’s Environmental Stewardship Manager and do not normally require any further NEPA approvals by the FHWA provided that the action meets the following conditions:
   1. Meets the definition of a CE,
   2. Does not exceed the thresholds provided in Section IV(A)(1)(b) of the programmatic agreement, and
   3. Does not include any unusual circumstances which would make CE approval inappropriate in accordance with 23 CFR 771.117(b).
2. Appendix B lists actions that qualify for a CE in accordance with 23 CFR 771.117(d). These actions require that DelDOT certify to the FHWA and provide appropriate documentation demonstrating that the project meets the definition of a CE. The FHWA has sole approval authority over these actions. The documentation submitted to the FHWA is to include this CE Checklist Form.
3. Actions outside of those listed in Appendix A and B or which exceed the threshold requirements provided in Section IV(A)(1)(b) of the programmatic agreement may still be processed as a CE. In these cases, DelDOT will certify to the FHWA and provide appropriate documentation demonstrating that the project meets the definition of a CE and that the action does not involve unusual circumstances that warrant the preparation of an EA or EIS. The FHWA has sole approval authority over these actions. The documentation submitted to the FHWA is to include this CE Checklist Form.

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)

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 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. A recommended format for an EIS is included in 40 CFR 1502.10; however, FHWA’s current policy on EISs encourages deviations from 40 CFR 1502.10 if it conveys information more effectively. An EIS must be completed within two-years of its start in accordance with 40 CFR 1501.10 and must be limited to 150 pages in length, in accordance with 40 CFR 1502.7.

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 should be developed using a tiered approach as discussed in 23 CFR 771.111(g) and 40 CFR 1502.20. 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 impact is unclear. An EA must be completed within one-year of its start in accordance with 40 CFR 1501.10 and must be limited to 75 pages in length, in accordance with 40 CFR 1502.5(f). 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. 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 section 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. 40 CFR 1508.1 defines impacts as “changes to the environment from the proposed action that are reasonably foreseeable” and establishes three different categories of impacts:

Department Resources
Public Involvement Policy

1. Direct effects, which are caused by the action and occur at the same time and place as the action.
2. Indirect effects, which are caused by the action but occur later in time or are farther removed in distance from the action.
3. Cumulative effects, which are caused by the incremental effects of the action when added to the impacts of other past, present, and future reasonably foreseeable actions regardless of what agency or person undertakes such actions. Cumulative effects can result from individually minor but collectively significant actions taking place over time.

The design team should work with the Environmental Stewardship section 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 follow the sequencing order established in 40 CFR 1508.1(s) which includes the following:

• Avoiding the impact altogether by not taking a certain action or parts of an action. 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 and its implementation. 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.
• Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.
• Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.
• Compensating/ Mitigating for the impact by replacing or providing substitute resources or environments. 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

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-003 entitled Public Involvement Policy and is discussed in more detail in Section 5.1.

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 section has been performed.

5.3.2.2.1.1 Environmental Justice

The concept of environmental justice, commonly referred to as EJ, has existed in statute since the passage of the Civil Rights Act of 1964 which prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. Environmental justice is a recognition that government programs, policies, and activities can disproportionately affect minority and low-income populations. Achieving environmental justice is important as it ensures full and fair participation by all potentially affected communities in the development, construction, operation, and maintenance of transportation facilities.

Executive Order 12898 was issued in 1994 to direct federal agencies to the greatest extent practicable, to identify and address disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations. The executive order requires each federal agency to develop an agency-wide environmental justice strategy to implement the goals of the executive order requirements. US DOT issued its environmental justice strategy in 1995 and the FHWA issued its own order in 1998 (Order 6640.23). US DOT and FHWA continuously review and update their environmental justice policies.

Environmental justice requires that agencies identify, evaluate, and then address actions that could lead to an inequitable distribution of benefits and burdens. DelDOT’s process for identifying environmental justice communities is documented within its DelDOT NEPA Categorical Exclusion Guidebook.

Department Resources
DelDOT NEPA Categorical Exclusion Guidebook

5.3.2.2.1.2 Historic Preservation

Numerous statutes exist to preserve historic and archeological resources. The most comprehensive of which is the National Historic Preservation Act 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) 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.

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 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. 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 – Additional Statutes Regarding Historic Preservation

Title	Reference
American 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 Part 10
Determination of Eligibility for Inclusion in the National Register of Historic	36 CFR 63
National Historic Landmarks Program	36 CFR 65

5.3.2.2.1.3 Publicly Owned Parkland and Other Publicly Owned Recreational Areas

Publicly owned parkland and recreational areas open to the public are protected under Section 4(f) of the DOT Act of 1966, which also includes wildlife and waterfowl refuges. 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). 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.

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 database of nonattainment areas for the criteria pollutants online in what is called the Green Book. Currently, New Castle County is designated as moderate – nonattainment for 8-hour Ozone O3.

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 Metropolitan Planning Organizations (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

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 X-XX 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.

Department Resources
Policy Implement D-03: Noise Policy Implement

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

Department Resources
FHWA Programmatic Agreement Regarding CEs

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 DelDOT and FHWA Programmatic Agreement establishes acquisition thresholds which would preclude DelDOT from approving the action without additional FHWA involvement. 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 cohesion – Impacts to community cohesion would include altering connectivity 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 environmental justice 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 follow:

• Conservation easements – 7 Del. C Chap 69 authorizes DNREC to enter into voluntary nonpossessory agreements with landowners to place development restricts 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 that DelDOT and other agencies 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 section 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. Additional information about obtaining water quality standards on a project level is provided in Section 4.8 and Section 4.9.

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 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 anadromons 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 with a continuous surface connection to a waterbody are protected under the federal Clean Water Act which is described more fully within Section 5.3.2.2.2.1. Additional federal protections may be provided for wetlands in coastal environments through the Coastal Zone Management Act of 1972 and the Coastal Barriers 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 Barriers Resources Act of 1982 and the Coastal Zone Management Act of 1972. The Coastal Barriers 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 protect, restore, and establish preservation and development responsibilities 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 Barriers 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 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:

1. 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.
2. Unique farmland, other than prime farmland that is used for production of specific high-value food and fiber crops.
3. 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

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.

5.3.2.3 Re-Evaluation

The FHWA may review DelDOT’s environmental document prior to granting any new approval related to an action in accordance with 23 CFR 771.129. A re-evaluation may be required if there are changes to the proposed action that could potentially result in significant new effects to the environment, unanticipated impacts become known, applicable regulations have changed, or there is a lapse in time from the approval of the decision document. 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 section 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 section as these changes may affect the permitting process. Communication between the design team and the Environmental Stewardship section is especially critical on DelDOT contracts which utilize alternative contracting methods like Design Build and Contract Manager/ General Contractor (CMGC) contracts where project impacts can change quickly.

Project permits are applied for during the design phase 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 section 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 section 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, the USACE maintains two types of 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 or water,
• A project creates 0.100 acres of wetland loss, or
• A project creates 0.030 acres of water loss.

The Environmental Stewardship section 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. 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 section 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 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 section 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 Subaqueous Lands (WLSL)

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

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

• Special Exemptions – These permits are intended to cover road or bridge maintenance work performed in non-State Mapped 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 section.
• 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 Mapped wetlands. This permit requires a public notice of 20-days.
• Water Quality – This permit type is typically issued with the Subaqueous Lands Permit.

All permanent impacts to State Mapped 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 a 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 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 permit from the city. The Environmental Stewardship section 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 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 by the Wetlands and Subaqueous Lands (WLSL) section like the permits discussed in Section 5.3.3.3. To obtain a consistency letter, DelDOT must submit the project plans and a project schedule to DNREC’s WLSL section. DNREC’s WLSL section 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 from 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 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 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. Additionally, an electronic file-sharing release waiver as described in Section 5.10 must also be completed by all parties.

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).
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, 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 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 ITS 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 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 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 Utility 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 on one of these two ways:

1. Miss Utility design tickets – Miss Utility was developed as a risk-based system to be performed prior to excavation. A Miss Utility 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 Miss Utility design ticket can be submitted at any point in the project development process. DelDOT will also file a Miss Utility 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”.
2. 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, Miss Utility 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 will 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 Utility 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 Utility 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
• 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.

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.

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 Utility 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 Utility 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
• 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

Once utility locations are determined, conflict points both aboveground and belowground can be determined, 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.

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

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 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 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 5.3.2.2.1.2 – Additional Statutes Regarding Historic Preservation

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 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 State 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. 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

A utility statement is included within a contract to summarize the existing utilities within the project area, establish temporary and permanent relocations, work responsibilities, maintenance of traffic requirements and 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. The bar chart should be accompanied by a disclaimer that states the following: “the purpose of the utility work sequencing and duration is to assist the Contractor in planning his work. The intent is not to provide a source for construction claims”.

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

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 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.

Department Resources
Right-of-Way Engineering Manual

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 of compensation can be made, coordination with affected property owners should occur as early as feasible in the project development process so that property owner concerns and requests can be addressed in the early phases. Meetings that occur between members of the design team and with 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)
• Acquisition support and right-of-way certification (Section 5.5.5)

5.5.1 Existing Right-of-Way Mosaic Creation

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:

Department Resources
Right-of-Way Engineering Manual

• 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.

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

5.5.1.1 Existing Right-of-Way Source Documents

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 database information – Each county in Delaware maintains its own GIS database with parcels within the jurisdiction mapped. These GIS databases are consumed into DelDOT Gateway which is DelDOT’s primary GIS database. 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 database 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. 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.

Department Resources
Right-of-Way Engineering Manual

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

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.
• 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

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.

Department Resources
RW2201: Existing ROW Mosaic Creation

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:

1. Reconstruct the existing right-of-way baseline geometry and stationing.
2. 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.
3. 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:

1. Plot the entire parcel limits based upon the interior angles included in the existing right-of-way source document.
2. 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.
3. Once the parcel is determined to be satisfactorily plotted, it can be rotated and fit into the existing right-of-way mosaic.
4. 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
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

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.

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, 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 Utility, 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 Federal Highway Administration 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

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.

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

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
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 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

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.

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

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. All acquisitions performed using federal funds 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

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

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 it is determined that a right-of-way revision may be needed, both the Team Support section as well as the Acquisitions, Relocations, and Settlements section should be alerted to pending change. The design team should contact other potentially affected support sections as well.

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

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.

5.5.4.4 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

Section currently under development.

5.7 Developer Coordination

Section currently under development.

5.8 Finance

Section currently under development.

5.8.1 Project Cost Increases

Section currently under development.

5.9 Hazardous Materials

Section currently under development.