Does a Kentucky water district have to follow call-before-you-dig rules when other utilities cross its easement?

Plain-English summary

Kentucky's Underground Facility Damage Prevention Act is the "call before you dig" law. Before excavating, you have to notify the owners of underground facilities (gas, water, cable, fiber), they mark where their lines are, and you have to hand-dig or use other careful methods near those marked lines. There is an exception: an operator digging on its own easement does not have to follow the Act, but that exception drops away when another operator's facilities cross the easement.

The East Logan Water District asked whether it qualifies for that exception when repairing its water lines. The Attorney General said no, on the facts presented. The District's water lines run in non-exclusive easements (typically 20 feet wide), and a local telephone cooperative has buried fiber optic cables in the same area. Sometimes those cables run parallel to the water lines, but in places they sit directly on top of the water lines or cross from one side to the other.

The opinion focused on the word "crossed." Giving the statute its common, ordinary meaning, "cross" means to move or extend from one side to another. Since the fiber optic cables move from one side of the District's easement to the other, the easement is "crossed by another operator's facilities," and the KRS 367.4915(1) exemption does not apply. The District admitted it does not have an exclusive easement. So even though hand-digging near the fiber is more expensive, the District must comply with the Act's requirements when it excavates.

What this means for you

Water districts and utility operators

Under this opinion, the "own easement" exemption in KRS 367.4915(1) does not apply when another operator's facilities cross your easement. On the facts presented, the District had to follow the Act, including hand-digging or nonintrusive methods near marked lines.

Excavation contractors

The opinion turns on whether another operator's lines "cross" the easement. Where fiber or other facilities move from one side of the easement to the other, the exemption is unavailable and the call-before-you-dig requirements apply.

Telecommunications companies

For operators whose lines share a corridor with a water district, the opinion confirms that the crossing of those lines is what removes the digging party's exemption and triggers the Act's protections for the crossed facilities.

Common questions

Q: Does a water district have to call before it digs on its own easement?
A: Not if it has an exclusive easement with no other operator's facilities crossing it. But this opinion concluded that where another operator's lines cross the easement, the KRS 367.4915(1) exemption does not apply and the Act's requirements do.

Q: What does "crossed by another operator's facilities" mean?
A: The opinion gives "cross" its ordinary meaning: to move or extend from one side to another. Fiber optic cables moving from one side of the easement to the other meet that definition.

Q: Does it matter that hand-digging is more expensive?
A: No. The opinion acknowledges the cost but says the express terms of the statute control, so the District must comply when its easement is crossed by another operator's facilities.

Q: What does the District have to do when the exemption doesn't apply?
A: The opinion points to KRS 367.4911(10): when excavating within the approximate location of underground facilities, the District must hand-dig or use nonintrusive means to avoid damage.

Background and statutory framework

The Underground Facility Damage Prevention Act of 1994 (KRS 367.4901 et seq.) requires notice before excavation (KRS 367.4911(1)), marking of facilities, and hand-digging or nonintrusive methods near marked lines (KRS 367.4911(10)). KRS 367.4915(1) exempts "[e]xcavation by an operator on its own easement except where that easement is crossed by another operator's facilities." East Logan Water District (a KRS Chapter 74 district) asked whether the exemption applied where a telephone cooperative's fiber optic cables share and cross its non-exclusive easement. Both the water lines and the cables are "underground facilities" under KRS 367.4903(1). Applying the ordinary-meaning rule (Blackwell v. Blackwell, quoting Bailey v. Reeves) to the word "cross," the opinion concluded the exemption does not apply and the District must comply with the Act.

Citations and references

Statutes:
- KRS 367.4915(1) (own-easement exemption); KRS 367.4901 (purpose)
- KRS 367.4911(1), (10), (1)(a) (notice; hand-dig; notification center)
- KRS 367.4905 to 367.4917 (Act requirements); KRS 367.4903(1) (underground facility)

Cases:
- Level 3 Commc'ns, LLC v. TNT Constr., Inc., 220 F. Supp. 3d 812 (W.D. Ky. 2016)
- Blackwell v. Blackwell, 372 S.W.3d 874 (Ky. App. 2012)
- Bailey v. Reeves, 662 S.W.2d 832 (Ky. 1984)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2021-13.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
December 15, 2021
OAG 21-13
Subject: Whether the East Logan Water District is exempt, under KRS 367.4915(1), from the requirements of the Underground Facilities Damage Prevention Act of 1994 when it excavates within an easement crossed by another operator's facilities.
Requested by: Amy L. Brooks, Counsel for East Logan Water District
Written by: Carmine G. Iaccarino; Jeremy J. Sylvester, Assistant Attorneys General
Syllabus: Under the circumstances described here, KRS 367.4915(1) does not exempt the East Logan Water District from the requirements of the Underground Facilities Damage Prevent Act of 1994 when it excavates within an easement crossed by another operator's facilities.

Opinion of the Attorney General

The Underground Facility Damage Prevention Act of 1994 is intended to prevent damage to underground facilities, including cable, gas, and water lines, to promote public and workplace safety, and to protect consumer services. KRS 367.4901. In essence, the Act requires that before a person starts digging he notify the owners of any underground facilities of the intended work. KRS 367.4911(1). After being notified, the owners must mark the location their underground facilities. To avoid damage to those facilities, excavators must hand dig or use other non-intrusive means when excavating near those marked facilities. KRS 367.4911(10). To facilitate this process and communication between the owner of the facilities and the excavator who intends to dig near or around those facilities, a person can call a company like 811 before they dig. [811 is a nonprofit organization established to provide a communication link between excavators and operators of underground utilities.] See KRS 367.4911(1)(a) ("Contacting the applicable protection notification centers shall satisfy this requirement."). But sometimes, a person need not call 811 before they dig. [The failure to comply with the statutory requirements can lead to costly claims, especially in the context of fiber optic cables being severed. See, e.g., Level 3 Commc'ns, LLC v. TNT Constr., Inc., 220 F. Supp. 3d 812 (W.D. Ky. 2016).] There are exceptions to the Act's requirements. See KRS 367.4915.

The East Logan Water District ("District"), a water district created by the Logan County Fiscal Court under KRS Chapter 74, asks whether some of its excavation activities are exempt under KRS 367.4915(1). Under that provision, the requirements of KRS 367.4905 to 367.4917 do not apply to "[e]xcavation by an operator on its own easement except where that easement is crossed by another operator's facilities." KRS 367.4915(1).

In determining whether this statutory exception relieves the District of its obligations under the Act, facts matter. Here, the District explains that its water lines generally lie in non-exclusive easements that are 20 feet wide. Generally, those easements center on the District's buried water lines; that is, the easement extends 10 feet on either side of the water line. When the water line is within 10 feet of a roadway, however, the easement extends 20 feet from the roadway. In some cases a local telephone cooperative has buried fiber optic cables close to the District's water lines. Although the cables generally run parallel with the water lines, in some locations, the wire has been laid over the top of the District's water lines and, in other locations, the cable crosses over or under the water line from one side of the water line to the other. Of course, both the District's water lines, and the telephone cooperative's fiber optic cables, are underground facilities under the Act. KRS 367.4903(1).

Whether the exemption in KRS 367.4915(1) applies to the District matters because when excavating "within the approximate location" of underground facilities, the District must "hand-dig or use nonintrusive means to avoid damage to the underground facility." KRS 367.4911(10). According to the District, it is expensive to use nonintrusive excavation when repairing its water lines crossed by fiber optic cable. Regardless of those costs, however, the express terms of KRS 367.4915(1) apply only when an operator excavates on "its own easement," and then only when no other operator's facilities cross the easement. This makes sense. To serve the purposes and objectives of the Act, see generally KRS 367.4901, its requirements are necessary when excavating near and around other underground facilities.

Here, the District admits that it does not have an exclusive easement. Its water lines are run in areas in which other utility facilities, here, fiber optic cables, are also run. The fiber optic lines may be buried on top of the District's water lines, or run roughly parallel with those lines, or sometimes run back and forth over the top or underneath those lines. In those instances, KRS 367.4915(1) has no application, because the District's "easement is crossed by another operator's facilities." "[W]e must afford the statute's words their common, ordinary, and everyday 'meaning unless to do so would lead to an absurd or wholly unreasonable conclusion.'" Blackwell v. Blackwell, 372 S.W.3d 874, 877 (Ky. App. 2012) (quoting Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky.1984)). By common and ordinary understanding, "cross" means to move or extend from one side to another. Cross, The American Heritage Dictionary (2nd College Ed. 1985). Here, the District explains that the fiber optic cables "move or extend from one side to another." Thus, the exemption does not apply. KRS 367.4915(1).

The General Assembly intended that the requirements of the Act would help prevent damage to underground facilities and associated interruption of consumer services, including the delivery of water and internet. For these reasons, it is the Attorney General's opinion that, based on the facts set forth above, the District must comply with the Act's requirements and that KRS 367.4915(1) does not apply to exempt the District's excavating activities from those requirements.

Daniel Cameron
ATTORNEY GENERAL
Carmine G. Iaccarino
Jeremy J. Sylvester
Assistant Attorneys General