By Eileen Keiffer
The Washington State Legislature reconvened for a short session just two short weeks ago, on January 10. Two bills to watch closely this session are SB 5775, and companion bill HB 1722, relating to “microtrenching”—the act of excavating a trench no more than four inches wide and between 12-26 inches deep for purposes of installing a subsurface pipe or conduit. While the bills state a goal of accelerating the deployment of fiber installation to facilitate high speed internet, the bills would have the practical effect of preempting local authority over municipal rights-of-way.
As initially drafted, the bills would require cities and towns to allow microtrenching for the installation of underground fiber unless the city or town makes a written finding that allowing microtrenching for a fiber installation would inconvenience the public use of the rights-of-way or adversely affect public health, safety, and welfare. The bills would also require cities and towns to “adopt or amend existing policies, ordinances, codes, or construction rules to allow for microtrenching.”
In addition to imposing these new requirements, SB 5775 and HB 1722 could have other impacts on cities and towns, such as:
Potential creation of right-of-way maintenance issues. Because microtrenches are narrow cuts within streets and sidewalks, they are believed to potentially reduce or weaken the structural integrity of streets and sidewalks. AWC reports that microtrenching can also pose significant problems to other utilities, including impeding their installation and repair.
Limitations on restoration requirements to only that “commensurate with the impact to the local right-of-way.” This will undoubtedly create conflicts as to the scope of necessary restoration.
Restriction on the ability of cities and towns to impose fees on applications for permits to install fiber to only include the “reasonable costs” to process and issue the permit and inspect the installation, including any costs should the applicant elect to expedite processing and review.
We’ll be monitoring these two bills, as well as others, during the course of the session. The 2022 Legislative Session will end March 10. Stay tuned for further updates. In the meantime, if you have any questions about these bills or microtrenching, please consult your agency legal adviser or contact Eileen Keiffer at Eileen@madronalaw.com.