Colorado DOT

HANDBOOK ON HAYING IN RIGHTS-OF-WAY
UNDER RULE 2 CCR 601-16
Edition - April 2, 2003

1.1 The Applicant must submit the application form. Remind them to read the terms and conditions on page two of the application. By submitting the application they understand and agree to the terms and conditions in the Rules under which a permit may be issued.

1.2. All information on the application is required. If an incomplete application is received by mail it should be returned along with any payment to the applicant with a request for complete information. A sample form letter can be found at the end of this document requesting additional information or completion of the form.

1.3 The applicant must be the adjacent landowner for the entire area of ROW being requested. If the applicant is not the landowner the permit will not be issued. If the applicant requests a stretch of ROW but does not own the continuous adjacent property the application must be modified and only that stretch of ROW actually abutting the property owned by the applicant may be granted.

1.4 The application must contain the landowner's signature. Even if the landowner is not the one who will actually do the harvesting the landowner's signature is required. Contact information is requested for the person who will harvest if not the same as the landowner. Proof of ownership of the land is required. This may be submitted in one of several acceptable ways: 1). A copy of the property deed, 2) A certified statement by the Clerk & Recorder in the applicable county; 3) a copy of the County Assessor's property ownership map.

1.5 The region or field office will keep the application for processing, remit the appropriate application fee via the Region Business Office, and assign a sequential application number using the approved numbering system. Once approved the office must keep on file the original application materials and a copy of the permit issued. If issued, send copies of the application and permit to HQ Safety and Traffic.

1.5.1 An application log should be kept in each Region. All documents should use the assigned application number for tracking fees, permits, reviews, and correspondence with the applicant. The application number becomes the permanent permit number if issued. See section 3.0 for more on the denial process.

1.5.2 The coding for Haying Permits is Revenue Source Code 4408 and Sub Revenue Code 29.

1.6 An environmental clearance (Form 128) statement is required. The Department has 45 days to process the application and obtain the environmental clearance for the right of way referenced in the application. It will be helpful to inform the applicant of this timeline.

1.7 If the application involves the interstate system, FHWA approval must be secured prior to issuance of the permit. Once the Environmental Clearance (Form 128) is completed, a package including the following must be submitted to the Property Management Section for coordination of their approval: 1) the environmental clearance (Form 128); 2) a copy of the existing row plans for the requested gate onto the interstate right of way; 3) specifications of the proposed gate; 4) the proposed opening width; and 5) and additional terms or conditions not already part of the harvesting rules the Region may be proposing as part of the approval. The Property Management Section will forward the request for approval to FHWA and secure the necessary concurrence. Once approved, the Property Management Section will assign a "P" number to the approval for tracking purposes and forward it to the Region to complete the permit process.

1.7.1 An access permit will be required for any new gated opening in the row fence.

1.7.2 For all other state highways, FHWA approval is already secured.

1.8 You must calculate and collect the fee. The fee is $100 per mile for the 5 year permit, with no pro-ration for areas less than one mile of right-of-way requested, regardless of whether the application is for both sides or one side of the ROW. An application for 2.3 miles would be rounded up to 3 miles. Don't forget that if the applicant is not the adjacent property owner for the entire area being applied for, you must revise the permit so it only allows harvesting on that portion of the row they have contiguous ownership for.

Examples for calculating the fee:

Example 1: The applicant owns the property abutting 1 mile of right-of-way on both sides of the State Highway and applies for a permit to Harvest on both sides. The Application Fee would be $100.00.

Example 2: The applicant owns the property abutting 3 miles of right-of-way on only one side of the highway and applies for a permit to Harvest on the side owned by the applicant. The Application Fee would be $300.00.

1.9 The Department will only accept payment in the form of certified checks or cash for the fees as required by the Rules.

1.10 Fees must be remitted to your Business office in the same manner as fees for Access Permits.

1.11 Proof of Liability Insurance is required at the time application for a permit is made. The amounts of required insurance are set forth in section 5.0 below. No permit will be issued with out the Insurance Liability Certificate! If the certificate

provided is for a period of only one year, it is the permit holder's responsibility to provide proof of continuation of coverage over the 5 year term of the permit. Permit holders should be told that the permit will be revoked if the insurance lapses.

Section 2.0 Permit Renewal

2.1 Applications for renewal of Harvesting permits may be made by the applicant every five (5) years.

2.2 The Permit Renewal fee will be the same as the original Application Fee, calculated on a per mile basis with no prorating any portion less than a full mile. Fees are non-refundable.

2.3 The Department will typically grant or deny a renewal application within fourteen days (14) of receipt of the renewal application. If the Department deems a new environmental clearance (Form 128) is necessary, the Department has 45 days to process the renewal application.

2.4 All applications for permit renewals shall be mailed to the State of Colorado, Department of Transportation, Traffic Section where the original permit was issued.

Section 3.0 - Permit denial, Rvocation, Suspension, and Appeal Process

3.1 The Department may deny a permit application or renewal application, or may revoke or suspend a permit. The provisions of C.R.S. § 43-1-210.5, § 24-4-104, and the Rules apply to the denial of an original application or renewal application, or a permit revocation, or suspension of operations. You must provide a written Notice letter such as the ones in the back of this guidebook that contain a statement outlining the applicant's right to a hearing. The statute and the Rules require it.

3.1.1 The Legal Service Unit of Staff Maintenance can assist by providing word templates of the sample notice letters attached at the end of this booklet and they can answer questions about the appeal process. Contact the Legal Service Unit at Headquarters at 303-757-9843 or 303-757-9718 if you need assistance.

3.2 Denial of Permit Application

3.2.1 A permit application will be denied if the applicant fails to meet any provision of the rules.

3.2.2 A permit application must be acted upon promptly. Promptly is not defined in the Rules but a Notice of Denial should be sent as soon as you know the grounds for which the permit is being denied.

3.2.3 The Notice must clearly state the grounds for denial, including which requirement or criteria of the Rules or statute the applicant has failed to meet. A Notice letter is sent to the applicant. Such written notice must be sent to the applicant by first class mail.

3.2.4 The applicant has 60 days to request a hearing. The request must be made in writing and must be received by the Department no later than 60 days after receipt by applicant/ permittee of the notice or no hearing will be granted.

3.2.5 If an appeal letter is received in the allotted 60 days it should be sent via fax or US Mail to the Legal Services Unit of Staff Maintenance at Headquarters. The Legal Services Unit will coordinate with the Attorney General's Office to grant or deny the hearing.

3.3 Denial of Permit Renewal or Permit Revocation

3.3.1 A permit may be revoked or renewal of a permit may be denied if it is determined that a permittee is no longer entitled to the permit under the Rules and specifically if the permittee is no longer the adjacent landowner.

3.3.2 The permit holder should be informed it is their obligation to remove the gate to the ROW at their own expense and restore the fence to its original condition. They have 30 days to do so or the Department will remove the gate, restore the fence and bill the permit holder.

3.3.3 Please note there is a provision that allows the permit holder to appeal within 60 days, but the rule states the gate must be removed within 30 days. It is acceptable if the gate was already removed by the Department after the 30 day deadline stated in the notice. However once an appeal is received no further action should take place until the appeal is resolved.

3.3.4 If an appeal letter is received in the allotted 60 days it should be sent via fax or US Mail to the Legal Services Unit of Staff Maintenance at Headquarters. The Legal Services Unit will coordinate with the Attorney General's Office to grant or deny the hearing.

3.3.5 Revocation (vs. suspension) of a permit may be used in the following instances:

3.3.5.1 For violations of the terms and conditions on the part of the permit holder and when the permit is being cancelled; the permit holder shall no longer continue the activity to harvest in the ROW.

3.3.5.2 When conditions have changed and the Department desires to cancel the permit. For example when construction will alter the area extensively and render the ROW unsuitable or unsafe for harvesting; if the environmental clearance is changed; etc.

3.4 Permit Suspension

3.4.1 A permit can be suspended at any time if the Department finds that the permit holder has violated any conditions of the permit, if a change occurs along the ROW such as the beginning of construction, or for other reasons as may from time to time occur. A suspension is generally issued when the harvesting activity needs to cease for a period of time, but where the Department is not seeking to permanently revoke the permit use entirely.

3.4.2 Terms of a suspension should be spelled out in the Notice letter. For example, you may state "harvesting activity must cease until you are notified by this office that you may resume." You may state a time frame for the suspension such as "harvesting activities must cease while drainage is installed during the month of August, 2005."

3.4.3 If the Department wants to notify the permit holder that harvesting operations must cease until a certain condition is met, be sure to state what that condition is. For example "Harvesting operations must stop until you provide proof of current insurance. If no proof of insurance is received within 10 days you will be sent a notice of revocation." In this case you are notifying the permit holder that you do not intend to permanently cancel his/her permit, however if the condition is not met you will take further steps to do so.

3.4.4 If you are unclear whether to issue a Notice of Revocation or Notice of Suspension call the Legal Services Unit for direction. The Legal Services Unit can be reached at 303-757-9843 or 303-757-9718.

Section 4.0 Terms and Conditions

4.0 The Permittee must agree to the following terms and conditions for use of this permit. To be eligible to obtain a permit to harvest hay and grasses from the State Highway Rights-of-way, the following requirements must be met:

4.1 All operations shall be done in accordance with the requirements and guidelines set forth in the Rules. Harvesting through the use of mechanical means is the only agricultural use permitted. No animals shall be permitted on the State Highway Rights-of-way for grazing or other purposes. No plowing, tilling or disturbing the soil in any fashion, planting any seeds or seedlings, spraying any pesticides or herbicides or conducting any irrigation of any type shall be allowed by a permit on the Department's State Highway Rights-of-way.

4.2 A copy of the permit shall be available on the work site at all times.

4.3 Access to the permitted State Highway Right-of-way shall be from the Adjacent Landowner's property only. No exceptions are to be made here.

4.4 Access to the permitted Harvesting area for all State Highways including Interstate and controlled access highways is limited to the use of gates provided by the permittee in the State Highway Right-of-way fence via the adjacent property. If no gate exists, one may be installed by the permittee at a location designated by the Department, at the permittee's expense, and shall meet the Department current standards. The gate becomes the property of the Department. The Department shall provide a lock for any gate installed. The permittee shall coordinate access through the gate with the Department's local maintenance patrol. The gate shall not be used for any other purpose than Harvesting as authorized by a permit.

4.4.1 Under no circumstances may the permittee enter or leave the permitted Harvesting area using the main traveled-way of the State Highway.

4.4.2 The removal of fences to facilitate ingress and egress to the State Highway Right-of-way is strictly prohibited.

4.4.3 The Department is not responsible for providing access roads outside the State Highway Right-of-way line.

4.4.4 The permittee shall be responsible for keeping all livestock off of the Department's State Highway Rights-of-way at all times.

4.5 Parking, loading and/or off-loading of equipment on the paved shoulders of the State Highway is prohibited.

4.6 While operating on State Highway Rights-of-way, Harvesting equipment shall display flashing yellow lights and slow-moving vehicle placards.

4.7 All traffic rules shall be complied with in conjunction with the Harvesting operation. Permit holder is not allowed to access the state highway under any circumstances from the harvest area.

4.8 Harvesting shall be continuous within the permitted area. Selective Harvesting will not be allowed; however, selective baling will be permitted except where environmental restrictions have been placed in effect. Harvesting shall be conducted to a minimum of six inches. All weeds should be cut within the harvest area, but weed residue may be left on the ground.

4.9 Operations will be permitted only when soil is dry enough to prevent rutting to or damage to the rights-of-way.

4.10 Operations will be permitted during daylight hours only.

4.11 When the Department determines the Harvesting operation is creating an undue safety hazard, all operations will cease until further notice upon verbal notification to the permittee. The permittee shall cease harvesting operations anytime that dust and debris is blowing onto the highway impairing visibility and traction for motorists until conditions improve. The permit shall be suspended by CDOT anytime that fire bans are put into effect by the proper fire authority, state Office of Emergency Management or the Governor.

4.12 The area of the State Highway Right-of-way which may be Harvested by permit is limited to the area from the right-of-way line fence up to fifteen (15) feet from the edge of the roadway shoulder pavement and the areas inside interchanges, if access to the interchange area can be gained without crossing any highway or ramp. Access to interchange areas must occur from the land owner's property. All Harvesting operations must be conducted at least fifteen (15) feet from the nearest paved portion of the State Highway.

4.13 Permittee must cut the native grasses and weeds around signs, improvements, and appurtenances as closely as possible.

4.14 Harvesting of the State Highway Rights-of-way by the permittee is done with the full knowledge that the vegetation may contain chemical residue of automotive emissions and chemical herbicides used for vegetative control.

4.15 Upon completion of operations, the State Highway Right-of-way shall be left in a clean and neat condition.

4.16 All hay to be removed shall be baled.

4.17 All bales within thirty (30) feet of the traveled-way shall be removed immediately.

4.18 All bales shall be removed within ten (10) days, or they will be removed by the Department without compensation to the permittee.

4.19 Unattended equipment must be parked as near as possible to the right-of-way fence line, and may not be left unattended within thirty (30) feet of the traveled-way under any circumstances. All equipment shall be removed from the State Highway Right-of-way at the end of each day of Harvesting. Equipment may not be stored overnight on the State Highway Right-of-way.

4.20 Any permit issued under the rules becomes null and void at any time the Abutting land changes ownership.

4.21 Any lessee or contractor of the Adjacent Landowner, performing work under a permit issued in accordance with the Rules is subject to the all provisions of the Rules.

4.22 The permittee is responsible to ensure no damage occurs to existing utility and other installations that may be present on the State Highway Right-of-way during Harvesting.

4.23 The Department reserves the right to issue utility permits allowing installation of utilities in the State Highway Rights-of-way. The permittee shall not interfere with these installations which will take precedence over any Harvesting activity. Any utility installation may destroy significant portions of any individual year's crop. Neither the Department nor the utility company shall have any liability to the permittee for such damage.

4.24 The Department does not guarantee any specific yield of hay or grasses in any given growing season whether impacted by utility installations, construction, drought or any other contributing factor.

4.25 The permittee (including the permittee's lessee or contractor) shall coordinate all Harvesting activity with the Department's local maintenance patrol. Traffic control in the form of "Shoulder Work Ahead" or "Mowing Operations Ahead" signs is required. The Department will provide and install such signs upon 48 hours notification to the appropriate maintenance patrol.

4.26 The local maintenance patrol or Supervisor shall monitor the harvesting operation for compliance with the rules, the permit and any environmental restrictions and shall be empowered to order an immediate cessation of all harvesting activities and the right-of-way cleared should any infractions be noted.

4.27 The permittee shall not allow any person onto the State Highway Rights Of Way that is not contributing to the actual harvesting operation.

4.28 The permittee is responsible to ensure no damage or disturbance occurs to any existing survey monuments that may be present on the right-of-way during harvesting.

Section 5.0 Insurance and Liability Requirements

5.1 Each permittee must provide Comprehensive General Public Liability (PL), and Property Damage (PD) Insurance (minimum) on both the permittee and any and all lessees and/or contractors the permittee may use for Harvesting hay.

5.1.1 Combined single limit - $600,000 written on an occurrence basis.

5.1.2 Any aggregate limit will not be less than $1 million.

5.1.3 Permittee must purchase additional insurance if claims reduce the annual aggregate below $600,000.

5.1.4 Certificates of Insurance to be provided to the Department prior to issuance of a permit.

5.1.5 Insurance shall include a provision naming the Department as an "Additional Insured" on the Insurance Certificate.

5.1.6 Insurance shall include a provision preventing cancellation without 60 days prior notice by certified mail to the Department and must be in effect for the entire period of the Harvesting operation.

5.2 The permittee is responsible for reimbursing the Department for the repair of any damage to fences, signs, delineators, guardrails, landscape plantings, or any other State Highway improvements resulting from Harvesting operations by the permittee.

5.3 The permittee, his successors, or assigns shall hold the Department, its officers, or employees harmless from all costs, liabilities, expenses, suits, judgments, claims or actions brought by any person against the Department, its officers, or employees as a result of, or in connection with the permit, or the operation and performance hereunder by the permittee, his agents, or employees.

5.4 All risk of injury or damage to permittee, property of permittee or others which may result from debris, foreign objects, or chemical contamination resulting from handling or feeding of Harvested hay is assumed by the permittee. The Department shall not be liable for the quality of the Harvested hay or grasses obtained through this permit.

5.5 The permittee is responsible for reimbursing the Department for the repair and resurvey of any damage and disturbance to any survey monuments resulting from harvesting operations by the permittee.

Section 6.0 Forms Appendix & More Information

6.0 The Appendix includes the forms, templates and sample letters for most all actions. However, these forms are subject to revision. All form updates and additional materials are easily available from the CDOT Internal Web site for Harvesting.

Attached is the form containing terms and conditions of the Permit.

Terms and Conditions of Permit

Permittee agrees to the following terms and conditions for use of this permit. To be eligible to obtain a permit to harvest hay and grasses from the State Highway Rights-of-way, the following requirements must be met:

1. All operations shall be done in accordance with the requirements and guidelines set forth herein. Harvesting through the use of mechanical means is the only agricultural use permitted by this permit. No animals shall be permitted on the State Highway Rights-of-way for grazing or other purposes. No plowing, tilling or disturbing the soil in any fashion, planting any seeds or seedlings, spraying any pesticides or herbicides or conducting any irrigation of any type shall be allowed by this permit or rules on the Department's State Highway Rights-of-way.
   
2. A copy of the permit shall be available on the work site at all times.
   
3. Access to the permitted State Highway Right-of-way shall be from the Adjacent Landowner's property only.
   
4. Access to the permitted Harvesting area for all State Highways including Interstate and controlled access highways is limited to the use of gates provided in the State Highway Right-of-way fence via the adjacent property. If no gate exists, one may be installed by the permittee at a location designated by the Department, at the permittee's expense, and shall meet the Department current standards. The gate becomes the property of the Department. The Department shall provide a lock for any gate installed. The permittee shall coordinate access through the gate with the Department's local maintenance patrol. The gate shall not be used for any other purpose than Harvesting as authorized by the permit.
   1. Under no circumstances may the permittee enter or leave the permitted Harvesting area using the main traveled-way of the State Highway.
   2. The removal of fences to facilitate ingress and egress to the State Highway Right-of-way is strictly prohibited.
   3. The Department is not responsible for providing access roads outside the State Highway Right-of-way line.
   4. The permittee shall be responsible for keeping all livestock off of the Department's State Highway Rights-of-way at all times.
      
5. Parking, loading and/or off-loading of equipment on the paved shoulders of the State Highway is prohibited.
   
6. While operating on State Highway Rights-of-way, Harvesting equipment shall display flashing yellow lights and slow-moving vehicle placards.
   
7. All traffic rules shall be complied with in conjunction with the Harvesting operation. Permittees are not allowed to access the state highway under any circumstances from the harvest area.
   
8. Harvesting shall be continuous within the permitted area. Selective Harvesting will not be allowed; however, selective baling will be permitted except where environmental restrictions have been placed in effect. Harvesting shall be conducted to a minimum of six inches. All weeds should be cut within the harvest area, but weed residue may be left on the ground.
   
9. Operations will be permitted only when soil is dry enough to prevent rutting to or damage to the rights-of-way.
   
10. Operations will be permitted during daylight hours only.
    
11. When the Department determines the Harvesting operation is creating an undue safety hazard, all operations will cease until further notice upon verbal notification to the permittee. The permittee shall cease harvesting operations anytime that dust and debris is blowing onto the highway impairing visibility and traction for motorists until conditions improve. The permit shall be suspended by CDOT anytime that fire bans are put into effect by the proper fire authority, state Office of Emergency Management or the Governor.
    
12. The area of the State Highway Right-of-way which may be Harvested by permit is limited to the area from the right-of-way line fence up to fifteen (15) feet from the edge of the roadway shoulder pavement and the areas inside interchanges, if access to the interchange area can be gained without crossing any highway or ramp. Access to interchange areas must occur from the land owner's property. All Harvesting operations must be conducted at least fifteen (15) feet from the nearest paved portion of the State Highway.
    
13. Permittee must cut the native grasses and weeds around signs, improvements, and appurtenances as closely as possible.
    
14. Harvesting of the State Highway Rights-of-way by the permittee is done with the full knowledge that the vegetation may contain chemical residue of automotive emissions and chemical herbicides used for vegetative control.
    
15. Upon completion of operations, the State Highway Right-of-way shall be left in a clean and neat condition.
    
16. All hay to be removed shall be baled.
    
17. All bales within thirty (30) feet of the traveled-way shall be removed immediately.
    
18. All bales shall be removed within ten (10) days, or they will be removed by the Department without compensation to the permittee.
    
19. Unattended equipment must be parked as near as possible to the right-of-way fence line, and may not be left unattended within thirty (30) feet of the traveled-way under any circumstances. All equipment shall be removed from the State Highway Right-of-way at the end of each day of Harvesting. Equipment may not be stored overnight on the State Highway Right-of-way.
    
20. Any permit issued under these rules becomes null and void at any time the Abutting land changes ownership.
    
21. Any lessee or contractor of the Adjacent Landowner, performing work under a permit issued in accordance with these Rules is subject to the all provisions of these Rules.
    
22. The permittee is responsible to ensure no damage occurs to existing utility and other installations that may be present on the State Highway Right-of-way during Harvesting.
    
23. The Department reserves the right to issue utility permits allowing installation of utilities in the State Highway Rights-of-way. The permittee shall not interfere with these installations which will take precedence over any Harvesting activity. Any utility installation may destroy significant portions of any individual year's crop. Neither the Department nor the utility company shall have any liability to the permittee for such damage.
    
24. The Department does not guarantee any specific yield of hay or grasses in any given growing season whether impacted by utility installations, construction, drought or any other contributing factor.
    
25. The permittee (including the permittee's lessee or contractor) shall coordinate all Harvesting activity with the Department's local maintenance patrol. Traffic control in the form of "Shoulder Work Ahead" or "Mowing Operations Ahead" signs is required. The Department will provide and install such signs upon 48 hours notification to the appropriate maintenance patrol.
    
26. The local maintenance patrol or Supervisor shall monitor the harvesting operation for compliance with these rules, the permit and any environmental restrictions and shall be empowered to order an immediate cessation of all harvesting activities and the right-of-way cleared should any infractions be noted.
    
27. The permittee shall not allow any person onto the State Highway Rights Of Way that is not contributing to the actual harvesting operation.
    
28. The permittee is responsible to ensure no damage or disturbance occurs to any existing survey monuments that may be present on the right-of-way during harvesting.

INSURANCE AND LIABILITY REQUIREMENTS

1. Each permittee must provide Comprehensive General Public Liability (PL), and Property Damage (PD) Insurance (minimum) on both the permittee and any and all lessees and/or contractors the permittee may use for Harvesting hay;
   1. Combined single limit - $600,000 written on an occurrence basis.
   2. Any aggregate limit will not be less than $1 million.
   3. Permittee must purchase additional insurance if claims reduce the annual aggregate below $600,000. d. Certificates of Insurance to be provided to the Department prior to issuance of a permit. e. Insurance shall include a provision naming the Department as an "Additional Insured" on the Insurance Certificate. f. Insurance shall include a provision preventing cancellation without 60 days prior notice by certified mail to the Department and must be in effect for the entire period of the Harvesting operation.
      
2. The permittee is responsible for reimbursing the Department for the repair of any damage to fences, signs, delineators, guardrails, landscape plantings, or any other State Highway improvements resulting from Harvesting operations by the permittee.
   
3. The permittee, his successors, or assigns shall hold the Department, its officers, or employees harmless from all costs, liabilities, expenses, suits, judgments, claims or actions brought by any person against the Department, its officers, or employees as a result of, or in connection with the permit, or the operation and performance hereunder by the permittee, his agents, or employees.
   
4. All risk of injury or damage to permittee, property of permittee or others which may result from debris, foreign objects, or chemical contamination resulting from handling or feeding of Harvested hay is assumed by the permittee. The Department shall not be liable for the quality of the Harvested hay or grasses obtained through this permit.
   
5. The permittee is responsible for reimbursing the Department for the repair and re-survey of any damage and disturbance to any survey monuments resulting from harvesting operations by the permittee.

To provide Feedback, Suggestions or Comments for this page contact Kathleen Facer kathleen.facer@fhwa.dot.gov.