If a Mississippi town owns underground utility lines, can its agent show up and verbally point them out instead of marking them?

Plain-English summary

The Town of Kilmichael owns underground utility lines (typically water and sewer for a small Mississippi municipality). When an excavator notifies Mississippi 811 of an upcoming dig, the town as the line owner has duties under the state's underground-utility-protection statute. The town's attorney asked whether an onsite meeting with the excavator, where the town's agent verbally points to where the lines run, satisfies those duties.

The AG: that approach satisfies one specific subsection (§ 77-13-9(2)), which lets an operator request to be present at the site and arrive within two working days as an alternative to marking. But it does not satisfy all of the town's duties under the chapter.

Other obligations include: marking duties under § 77-13-9(1) when notice is received; post-2010 installation requirements under § 77-13-9(5); membership in Mississippi 811, Inc. (the state's one-call notification system) under § 77-13-17(2) and (7); and providing enumerated information under those subsections. So a verbal-location-onsite practice handles the locate step, but it does not let a municipal owner skip the broader compliance framework.

The AG declined to address the second question (who is liable for damage). The AG's office does not opine on liability questions, citing the 1993 Hammack and 2007 Lawrence opinions. The opinion does point readers to §§ 77-13-5(1)(b), 77-13-7(3), and 77-13-13 as the statutory provisions speaking to the excavator's duties, leaving liability allocation to the courts.

What this means for you

If you run a small-town water and sewer department in Mississippi

The verbal-locate option is real and useful, especially for systems where lines are not formally mapped. To use it, you have to be present at the site within two working days of the 811 ticket and you have to actually be there when excavation starts. You also have to be a member of Mississippi 811 and provide the information the chapter requires. Standing by the dig and pointing is not a complete compliance program.

If your town has not formally joined Mississippi 811, fix that. § 77-13-17 makes membership mandatory for operators of underground utilities. Without membership you do not get tickets, and without tickets you cannot lawfully be the verbal-locate operator. The membership step is also where most documented compliance trips up small Mississippi municipalities.

If you are an excavation contractor or homeowner doing a dig

Call before you dig. 811 is the universal hotline. When the line owner shows up to verbally indicate locations rather than mark the ground, that is statutorily acceptable, but get the location explained clearly and document it (photos, written notes, or sketches). The contractor's duties under §§ 77-13-5(1)(b), 77-13-7(3), and 77-13-13 still apply: you must dig with care, follow the marks (or in this case the verbally indicated locations), and stop and notify if you encounter unmarked utilities.

If you are a municipal attorney advising a town's utility department

Build a written compliance checklist: 811 membership confirmed, contact info filed, ticket-handling procedure in place, response options (mark or verbal locate at site), post-2010 installation tracking, post-incident reporting protocol. A short, dated memo to the mayor and aldermen documenting the program is what saves the town later when something goes wrong.

If you are an insurance carrier or risk manager for a Mississippi town

The verbal-locate option creates evidentiary exposure. If a line is hit, the dispute will turn on what was said, where, and to whom. Photos and written confirmation at the site reduce that exposure. Consider requiring the operator to mark in flag or paint even when they choose the verbal route, just so the record is preserved.

Common questions

Q: What is Mississippi 811?
A: Mississippi 811, Inc. is the state's one-call notification center. Anyone planning to excavate calls 811, identifies the location, and the system notifies all registered utility operators with lines in that area. Operators then have a defined window (in Mississippi, two working days) to mark or otherwise respond. The system applies state-wide.

Q: Can the town just refuse to mark and refuse to come onsite?
A: No. § 77-13-9 imposes affirmative duties. The town must respond to a valid locate request. § 77-13-9(1) is the default (mark the lines). § 77-13-9(2) is the alternative (be onsite when the excavator starts). Inaction is not an option.

Q: What if the town does not know exactly where its old lines run?
A: That is a real problem in many small Mississippi systems. The verbal-locate option works only if the town knows the location. If it does not, the town has investigation and reporting duties under § 77-13-9(1). The post-2010 installation rules in § 77-13-9(5) require new construction to be tracked, which over time builds the as-built record. In the short run, towns with poor records may need to hire locators or use ground-penetrating radar before excavation.

Q: Can the AG say who pays if a line is hit?
A: No, and the opinion is explicit on that. Liability is a mixed question of law and fact, and AG opinions do not decide liability. The statutes (§§ 77-13-5(1)(b), 77-13-7(3), and 77-13-13) describe excavator duties, and § 77-13-9 describes operator duties. Whose duty was breached, and to what extent, is for a court to decide.

Q: Does this opinion apply to private utilities?
A: The chapter applies to "every entity or individual owning or operating underground utility lines or underground facilities." Private utilities (a phone company, a gas utility, a private water cooperative) have the same options under § 77-13-9 as a municipal owner. The opinion was directed at a municipal request, but the statutory analysis is operator-neutral.

Q: What about utilities installed before 2010?
A: § 77-13-9(5) imposes specific installation tracking requirements on facilities installed after 2010. Pre-2010 facilities do not have those installation-record obligations, but they still have the marking and 811 obligations.

Background and statutory framework

Mississippi's underground-utility-protection law sits in Title 77, Chapter 13. The chapter implements a one-call system: excavators notify 811, the system notifies all known operators with lines in the dig area, and operators respond by marking or by being present at the site. The statute distributes duties across operators and excavators to reduce hits on buried lines, which carry safety risks (gas explosions, sewer contamination) and financial risks (damage repair, service interruptions).

Key sections:

• § 77-13-5(1)(b) and § 77-13-7(3): excavator duties.
• § 77-13-9(1): operator's duty to mark.
• § 77-13-9(2): operator's option to be onsite within two working days as an alternative to marking.
• § 77-13-9(5): post-2010 installation tracking.
• § 77-13-13: excavator duty when locating utilities.
• § 77-13-17(2) and (7): operator membership in Mississippi 811 and required information disclosures.

The Greenlee opinion confirms that subsection (2) is a legitimate alternative to marking, which is meaningful for small operators that may lack the equipment or staff for routine marking. But the opinion is careful to note that (2) is one duty in a chapter full of duties.

Citations

• Miss. Code Ann. §§ 77-13-1 et seq. (regulation of excavations near underground utilities)
• Miss. Code Ann. § 77-13-5(1)(b) (excavator duties)
• Miss. Code Ann. § 77-13-7(3) (excavator duties)
• Miss. Code Ann. § 77-13-9(1) (operator duty to mark approximate location)
• Miss. Code Ann. § 77-13-9(2) (alternative onsite presence within two working days)
• Miss. Code Ann. § 77-13-9(5) (post-2010 installation requirements)
• Miss. Code Ann. § 77-13-13 (excavator duty when locating utilities)
• Miss. Code Ann. § 77-13-17(2) and (7) (Mississippi 811 membership and information disclosure)
• MS AG Op., Hammack (Oct. 13, 1993) (AG does not determine liability)
• MS AG Op., Lawrence (July 20, 2007) (AG does not speculate on liability)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/10/J.Greenlee-October-11-2022-Municipal-Responsibility-Regarding-Excavations-Involving-Underground-Utilities.pdf

Original opinion text

October 11, 2022

J. Lane Greenlee, Esq.
Attorney, Town of Kilmichael
Post Office Box 430
Winona, Mississippi 38967
Re:

Municipal Responsibility Regarding Excavations Involving Underground
Utilities

Dear Mr. Greenlee:
The Office of the Attorney General has received your request for an official opinion.
Questions Presented
1. If the Town of Kilmichael (the "Town") is the owner and/or operator of an underground
utility or facility, and its agent meets with the excavator at the site, is it sufficient under
Mississippi Code Annotated Section 77-13-9(2) to verbally indicate the location of the
utility lines, and does such action fulfill the Town's responsibility under E811 and its
enacting statutes?
2. If verbally indicating the location of the underground utility lines in lieu of marking is
sufficient, is it the excavator's responsibility to modify its plans in order to avoid the utility,
and if not, to then be responsible for any resulting damage to the utility?
Brief Response
1. While meeting with the excavator at the site and verbally indicating the location of the
utility lines satisfies the requirements of Section 77-13-9(2), it would not encompass all of
the Town's duties under Sections 77-13-1 et seq.
2. This office is unable to opine on questions of liability.

Applicable Law and Discussion
Mississippi Code Annotated Sections 77-13-1 et seq. govern the regulation of excavations near
underground utilities and facilities. The chapter places specific requirements on both excavators
and utility owners before any excavation around or near underground utilities or facilities
commences.
Every entity or individual owning or operating underground utility lines or underground facilities
is required to mark the approximate location of the underground lines and facilities in accordance
with Section 77-13-9(1) when notice is received of the pending excavation. With respect to your
first question, Section 77-13-9(2) provides, "[i]n lieu of such marking, the operator may request to
be present at the site upon commencement of the excavation, so long as the operator complies
within two (2) working days of the receipt of the notice." While meeting with the excavator at the
site and verbally indicating the location of the utility lines satisfies the requirements of Section 77-13-9(2), other sections of the chapter specify additional duties and responsibilities of underground
utilities and facilities owners and operators. See Miss. Code Ann. § 77-13-9(1) (requiring certain
investigation and reporting responsibilities for owners and operators of underground utility lines
or facilities); § 77-13-9(5) (specifying post-2010 installation requirements for all owners and
operators of underground utility facilities); §§ 77-13-17(2), (7) (requiring operators of
underground utilities or facilities to be members of Mississippi 811, Inc. and to provide
enumerated information).
As to your question about the responsibility for any damage to the utility lines, the Attorney
General cannot issue official opinions regarding liability. MS AG Op., Hammack at 2 (Oct. 13,
1993) ("We cannot by opinion determine liability."); MS AG Op., Lawrence at 1 (July 20, 2007)
(declining to speculate on questions of liability). However, the plain language of Sections 77-13-5(1)(b), 77-13-7(3), and 77-13-13 speaks to the duties and responsibilities of the excavator.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Gregory Alston
Gregory Alston
Special Assistant Attorney General