Tenn. Comp. R. & Regs. 1680-06-03-.08

Current through December 10, 2024

Section 1680-06-03-.08 - VEGETATION CONTROL

(1) Definitions.

(a) For the purpose of T.C.A. § 54-21-116, "generally visible" or "general visibility" is defined as capable of being visible to occupants of vehicles using the main traveled way for some of the distance between the point where such capacity occurs and the location perpendicular to the outdoor advertising device.

(b) For the purpose of T.C.A. § 54-21-116, "clearly visible" or "clear visibility" is defined as capable of advising of the message.

(2) Administration.

(a) T.C.A. § 54-21-116 is construed as being in contemplation of an increase in the amount or size of vegetation within those adjacent portions of the right-of-way from which the face of an outdoor advertising device is capable of being visible to occupants of vehicles using the main traveled way existing on the date of erection of the outdoor advertising device, whereby such visibility becomes less than general visibility.

(b) When applications are made for vegetation control permits, the area of general visibility on the date of erection will be reviewed to determine whether such an increase in the amount and size thereof has occurred since the date of erection to warrant the issuance of a permit to attain clear visibility for an adjacent area of up to five hundred feet (500') within the area of general visibility. Vegetation that, on the date of erection of the outdoor advertising device, blocked the view of the outdoor advertising device, in whole or in any part, for a distance not to exceed five hundred yards (500 yds.), to occupants of vehicles using the main traveled ways, is not eligible for removal under a vegetation control permit.

(c) The vegetation control permit will authorize the permittee to remove, block cut, or trim vegetation located on the right-of-way adjacent to the outdoor advertising device, and replace the vegetation as directed, whenever the vegetation prevents clear visibility for a distance not to exceed five hundred yards (500 yds.) to occupants of vehicles using the main traveled ways of the controlled systems. The maximum area to be controlled shall not exceed five hundred feet (500').

(d) Each vegetation control permit will be subject, at a minimum, to the following conditions:

1. Permittee shall obtain any permits or approvals required by any regulatory agency having jurisdiction under federal, state, or local law over any work to be performed on the highway right-of-way, including without limitation any permits required under water quality regulations.

2. Normally, the permittee will be authorized to remove or control vegetation only through the use of mechanical methods; provided, however, that beginning on March 1, 2024, the Department may authorize the use of herbicides in specific circumstances, subject to strict conditions, including but not limited to the requirements that the use of any herbicide may be allowed only between March 1 and October 15 of each year and must be performed by a person who has a valid current pesticide applicator certification in the applicable service category for right-of-way pest control and has, or works under the direct supervision of a person who has, a valid current pest control operator license from the Tennessee Department of Agriculture.

3. Permittee shall notify any utility company that may be affected by the work, as required by law, including without limitation compliance with the Underground Utility Damage Prevention Act, T.C.A. §§ 65-31-101, et seq, if applicable.

4. Permittee shall comply with the provisions of the Manual on Uniform Traffic Control Devices, as adopted in TDOT Rule Chapter 1680-03-01, applicable to work being performed adjacent to highways.

5. Parking on or working from the shoulder of the highway may be authorized only by special written permission from the Department. If authorization has been granted, a Shoulder Permit shall be attached to Vegetation Control Permit. Permittee's work forces must be present at all times any equipment is located on the shoulder.

6. There shall be no overnight parking of equipment on highway right-of-way, and no equipment shall be parked on the shoulder of the highway when the permittee's work forces are not present.

7. If the highway right-of-way is access-controlled, the permittee shall not obtain access to the right-of-way across the access control boundary, and the permittee shall not cut, remove, or damage any access control fence; provided, however, that the applicant may request the Department to permit a break in access control to obtain access to the right-of-way. If the applicant requests a break in access control, the applicant shall include as a part of the vegetation control permit application a written proposal, with photographs, showing why the break in access control is needed, how the applicant will obtain access to the property outside the access control fence, and the proposed extent and duration of the break in access control. The applicant will not be granted a break in access control for the purpose of obtaining access to the property outside the access control fence. The permittee will be required to provide a temporary barrier to protect access control when not on the job site and will be required to restore the access control fence to the Department's specifications promptly upon completion of the vegetation control work. In the event that the permittee, or the permittee's agent or representative, does unauthorized damage to a fence or any other public property in the work area, the permittee shall immediately repair or replace the same at the permittee's expense.

8. Any drainage tiles, culverts, or other drainage infrastructure must remain free and clear of cut brush, pulverized debris, or disturbed soil.

9. If any work authorized under the permit results in the exposure of bare soil on the state highway right-of-way, the permittee shall install erosion prevention and sediment control measures, including at a minimum the spreading of grass seed and straw on the soil. A mixture of native grasses or native plant seeds is recommended to promote native habitat restoration. Sowing of noxious weed seeds is strictly prohibited.

10. Trash and litter shall be picked up and removed from the highway right-of-way before mowing or bush-hogging; provided, however, if the permittee discovers hazardous waste that cannot be taken to a landfill but instead requires specialized disposal (e.g., automobile batteries, tires, paint, medical waste, drug paraphernalia, etc.), the permittee shall promptly notify the Department and cease any mowing or bush-hogging in the area where such waste is present.

11. Upon completion of the work, all trimmed or cut vegetation, brush, limbs, or large debris must be removed from the highway right-of-way. Permittee may be allowed to use chippers and grinders to reduce trimmed and cut vegetation into pulverized material and left on the highway right-of-way. Large piles of pulverized material are to be spread across the ground in a thin layer. Any large limbs or debris remaining in whole or only partially ground up shall be removed from the highway right-of-way. All authorized vegetation removal shall be cut to ground level. Stumps above ground level must be removed by permittee.

12. The Department reserves the right to add special permit conditions based on the particular circumstances existing at the vegetation control site. However, the Department will not add general permit terms and conditions applicable to all permits beyond the items identified in this subsection (d) without first publishing the proposed permit condition on the Department's Outdoor Advertising Office website and allowing at least thirty (30) days for public comment.

(e) Vegetation control permits issued pursuant to the Billboard Regulation and Control Act of 1972 shall be reinstated under the Outdoor Advertising Control Act of 2020. Alternatively, the owner of the device may apply for a new vegetation control permit, and the Department shall issue the permit in accordance with T.C.A. § 54-21-116 and this rule.

(3) Application for Vegetation Control Permit.

(a) No person shall begin to cut, trim, or remove vegetation located on the right-of-way adjacent to outdoor advertising device without first obtaining a vegetation control permit from the Department's Outdoor Advertising Office. Vegetation control permits issued pursuant to the Billboard Regulation and Control Act of 1972 shall be reinstated under the Outdoor Advertising Control Act of 2020. Alternatively, the owner of the device may apply for a new vegetation control permit, and the Department shall issue the permit in accordance with T.C.A. § 54-21-116 and this rule.

(b) Before applying for a vegetation control permit, the applicant must verify that the issued tag for the permitted outdoor advertising device is posted on the device and visible from the main traveled way. Applications for devices without a visible tag will not be approved and the application fee will not be returned. A new replacement tag must be requested and posted on device before the applicant reapplies for a vegetation control permit.

(c) The following procedure will be followed in order to apply a permit for a vegetation control permit:

1. Request a vegetation control application form;

2. Return completed application to Outdoor Advertising Office, Department of Transportation, Right-of-Way Division, Suite 400, James K. Polk Building, 505 Deaderick Street, Nashville, TN 37243, and enclose a check or money order made payable to the Tennessee Department of Transportation in the amount of one hundred dollars ($100.00) for each sign face as a non-refundable application fee; and

3. Attach the following additional information:

(i) An 8"x10" or larger photograph showing the area in which vegetation control is proposed;

(ii) A scale drawing showing vegetation proposed to be cut, trimmed, or removed, and labeling such vegetation;

(iii) A written proposal;

(iv) A scale drawing showing the proposed replacement vegetation plan;

(v) If applicable, a written proposal, with photographs, showing why a break in access control is needed, how the applicant will obtain access to the property outside the access control boundary, and the proposed extent and duration of the break in access control; and

(vi) If applicable, a written proposal in support of a request to use a herbicide, with the reason for requesting the use, the proposed location for herbicide use, the herbicide application plan, the name and pesticide applicator certification number of the person who will apply the herbicide, and the name and pest control license number of the person having supervisory responsibility for the herbicide application.

(d) The Department shall use best efforts to process an application for a permit, in accordance with this rule, within no greater than thirty (30) days after a completed application is received, as follows:

1. If the application is incomplete or defective on its face, the Department shall notify the applicant in writing no later than fifteen (15) days after receipt of the filed application of its incomplete or defective status and indicate the information or documentation that is needed to complete or correct the application.

2. If a decision to approve or deny the application cannot be made within thirty (30) days after receipt of the completed or corrected application, the Department shall contact the applicant prior to the expiration of the thirty (30) days to provide an explanation of the reasons why additional time is needed to process the application.

(e) If the application for the vegetation control permit is approved, the Department will send the applicant a written notice of approval, which shall identify the conditions applicable to the permit. The applicant shall notify the Department's Outdoor Advertising Office of the date on which the applicant wishes the permit to be issued. In addition, the applicant must provide the following:

1. A check or money order in the amount of one hundred fifty dollars ($150.00) per sign face made payable to the Tennessee Department of Transportation for supervision of the work; provided, however, that:

(i) One (1) vegetation control permit fee must be waived for those owners who voluntarily remove a nonconforming outdoor advertising device. If the nonconforming outdoor advertising device to be removed is not at least one hundred fifty square feet (150 sq. ft.) in size, two (2) nonconforming outdoor advertising devices must be removed to authorize waiver. The latter applies only when the outdoor advertising device around which control is to occur is larger than three hundred square feet (300 sq. ft.);

(ii) This waiver shall not be used as evidence in any future eminent domain proceeding relating to nonconforming outdoor advertising devices;

2. A surety bond (on a form provided by the Department) in the amount of five thousand dollars ($5,000) for each separate vegetation control permit; or in the alternative, the applicant may provide a running surety bond to cover multiple active vegetation control permits or vegetation maintenance permits at the applicable amount for each permit up to the maximum capacity of the bond; and

3. A certificate of insurance in the amount of not less than three hundred thousand dollars ($300,000) for each person injured and one million dollars ($1,000,000) for each occurrence, with such insurance to remain in full force and effect until work has been completed and approved by the Department.

(f) The permittee shall complete the authorized vegetation control within the time period specified in the permit, and in any event, the permittee shall complete the vegetation control within one (1) year after the date on which the application was approved; otherwise, the application approval and permit is void. Furthermore, the applicant shall abide by all conditions imposed by the Department, as set forth on the face of the permit, or incur permit revocation and other consequences of law. (See illustrations in Rule 1680-06-03-.09, Appendix.)

(g) The Department will accept applications and issue vegetation control permits to allow vegetation control activities on a year-round basis; provided, however, if replacement vegetation is required, a vegetation control permit may be issued only between October 1 and April 15. If the Department authorizes the use of any herbicide as a method of vegetation control, the vegetation control permit may be issued only between March 1 and October 15.

(4) Application for Vegetation Maintenance Permit.

(a) If a vegetation control permit has been issued for an outdoor advertising device, the holder of the permit may apply each subsequent year for a vegetation maintenance permit to provide annual maintenance at any one (1) location that is consistent with the original vegetation control permit.

(b) Before applying for a vegetation maintenance permit, the applicant must verify that the issued tag for the permitted outdoor advertising device is posted on the device and visible from the main traveled way. Applications for devices without a visible tag will not be approved and the application fee will not be returned. A new replacement tag must be requested and posted on device before the applicant reapplies for a vegetation maintenance permit.

(c) The following procedure shall be followed to apply for a vegetation maintenance permit:

1. Request a vegetation maintenance application form;

2. Return completed application to Outdoor Advertising Office, Department of Transportation, Right-of-Way Division, Suite 400, James K. Polk Building, 505 Deaderick Street, Nashville, TN 37243, and enclose a check or money order made payable to the Tennessee Department of Transportation in the amount of fifty dollars ($50.00) as a non-refundable fee; and

3. Attach the following information:

(i) Copy of the original issued vegetation control permit or copy of last issued vegetation maintenance permit;

(ii) An 8"x10" or larger photograph showing the area in which vegetation control is proposed;

(iii) A scale drawing showing vegetation proposed to be cut, trimmed, or removed, and labeling such vegetation;

(iv) A written proposal;

(v) A scale drawing showing the proposed replacement vegetation plan;

(vi) If applicable, a written proposal, with photographs, showing why a break in access control is needed, how the applicant will obtain access to the property outside the access control boundary, and the proposed extent and duration of the break in access control; and

(vii) If applicable, a written proposal in support of a request to use a herbicide, with the reason for requesting the use, the proposed location for herbicide use, the herbicide application plan, the name and pesticide applicator certification number of the person who will apply the herbicide, and the name and pest control license number of the person having supervisory responsibility for the herbicide application.

(d) If the application for a vegetation maintenance permit is approved, the Department will send the applicant a written notice of approval, which shall identify the conditions applicable to the permit. Prior to issuance of the permit, the applicant must provide the following:

1. A surety bond (on a form provided by the Department) in the amount of two thousand five hundred dollars ($2,500) for each separate vegetation maintenance permit; or in the alternative, the applicant may provide a running surety bond to cover multiple active vegetation control permits or vegetation maintenance permits at the applicable amount for each permit up to the maximum capacity of the bond; and

2. A certificate of insurance in the amount of not less than three hundred thousand dollars ($300,000) for each person injured and one million dollars ($1,000,000) for each occurrence, with such insurance to remain in full force and effect until work has been completed and approved by the Department.

(e) Furthermore, if a vegetation maintenance permit is issued, the applicant shall abide by all conditions imposed by the Department, as set forth on the face of the permit, or incur permit revocation and other consequences of law. The vegetation maintenance permit will be subject, at a minimum, to the following conditions:

4. Permittee shall comply with the provisions of the Manual on Uniform Traffic Control Devices, as adopted in TDOT Rule Chapter 1680-03-01, applicable to work being performed adjacent to highways.

6. There shall be no overnight parking of equipment on highway right-of-way, and no equipment shall be parked on the shoulder of the highway when the permittee's work forces are not present.

7. If the highway right-of-way is access-controlled, the permittee shall not obtain access to the right-of-way across the access control boundary, and the permittee shall not cut or remove any access control fence; provided, however, that the applicant may request the Department to permit a break in access control to obtain access to the right-of-way. If the applicant requests a break in access control, the applicant shall include as a part of the vegetation maintenance permit application a written proposal, with photographs, showing why the break in access control is needed, how the applicant will obtain access to the property outside the access control fence, and the proposed extent and duration of the break in access control. The applicant will not be granted a break in access control for the purpose of obtaining access to the property outside the access control fence. The permittee will be required to provide a temporary barrier to protect access control when not on the job site and will be required to restore the access control fence to the Department's specifications promptly upon completion of the vegetation control work. In the event that the permittee, or the permittee's agent or representative, does unauthorized damage to a fence or any other public property in the work area, the permittee shall repair or replace the same at the permittee's expense.

8. Any drainage tiles, culverts, or other drainage infrastructure must remain free and clear of cut brush, pulverized debris, or disturbed soil.

10. Trash and litter shall be picked up and removed from the highway right-of-way before mowing or bush-hogging; provided, however, if the permittee discovers hazardous waste that requires specialized disposal (e.g., automobile batteries, tires, paint, medical waste, drug paraphernalia, etc.), the permittee shall promptly notify the Department and wait for further instructions before mowing or bush-hogging in that area.

12. The Department reserves the right to add special permit conditions based on the particular circumstances existing at the vegetation control site. However, the Department will not add general permit terms and conditions applicable to all permits beyond the items identified in this subsection (e) without first publishing the proposed permit condition on the Department's Outdoor Advertising Office website and allowing at least thirty (30) days for public comment.

(f) The Department will accept applications and issue vegetation maintenance permits on a year-round basis. If the Department authorizes the use of any herbicide as a method of vegetation control, the vegetation maintenance permit will only be issued between March 1 and October 15.

(5) Enforcement of Vegetation Control

(a) The Commissioner may revoke, suspend, or modify any vegetation control permit or vegetation maintenance permit for cause, including violation of any terms or conditions of the permit.

(b) If, before obtaining an outdoor advertising device permit and a vegetation control permit, vegetation located on state highway right-of-way is removed, cut, or trimmed, and application is subsequently made for an outdoor advertising permit, then the Commissioner may deny the permit.

(c) If, before applying for a vegetation control permit, vegetation located on state highway right-of-way is removed, cut, or trimmed in the vicinity of an outdoor advertising device, which action was reasonably calculated to afford greater visibility of the outdoor advertising device, then the Commissioner may revoke the outdoor advertising device permit or permits for the affected outdoor advertising devices.

(d) Prior to invoking this section, the Commissioner or the Commissioner's designee shall advise the affected outdoor advertising device permit applicant or holder, whichever is appropriate, that a preliminary determination of illegality has been made. The party so advised must be given the opportunity to request a hearing to be conducted pursuant to contested case provisions of the Uniform Administrative Procedures Act, compiled in Tennessee Code Annotated, Title 4, Chapter 5, before the Commissioner may make a final determination of illegality.

Tenn. Comp. R. & Regs. 1680-06-03-.08

Transfer from chapter 1680-02-03 and amendments filed February 14, 2024; effective 5/14/2024.

Authority: T.C.A. §§ 54-21-111, 54-21-116, and 54-21-117.