Date of enactment: December 6, 2023
2023 Senate Bill 270 Date of publication*: December 7, 2023
2023 WISCONSIN ACT 46
AN ACT to renumber 84.063 (1) (a) and 84.063 (1) (b); to amend 84.01 (31) and 84.062 (1) (L); and to create 84.063
(1) (c), 84.063 (1) (e), 84.063 (1) (g) and 84.063 (4m) of the statutes; relating to: damages claims relating to delayed
relocation of utilities in a highway right−of−way and modifying administrative rules promulgated by the Department
of Transportation.
The people of the state of Wisconsin, represented in
senate and assembly, do enact as follows:
SECTION 1. 84.01 (31) of the statutes is amended to
read:
84.01 (31) ACCOMMODATION OF UTILITY FACILITIES
WITHIN HIGHWAY RIGHTS−OF−WAY. Notwithstanding ss.
84.06 (4), 84.063, 84.065, and 84.093, the department
may, upon finding that it is feasible and advantageous to
the state, negotiate and enter into an agreement to accept
any plant or equipment used for the conveyance, by wire,
optics, radio signal, or other means, of voice, data, or
other information at any frequency over any part of the
electromagnetic spectrum, or to accept any services asso-
ciated with the collection, storage, forwarding, switch-
ing, and delivery incidental to such communication, as
payment for the accommodation of a utility facility, as
defined in s. 84.063 (1) (b) (f), within a highway right−
of−way. Any agreement under this subsection is exempt
from ss. 16.70 to 16.75, 16.755 to 16.82, and 16.85 to
16.89, but ss. 16.528, 16.752, and 16.754 apply to such
agreement.
SECTION 2. 84.062 (1) (L) of the statutes is amended
to read:
84.062 (1) (L) “Project” means a project involving a
highway improvement, as defined in s. 84.063 (1) (a) (d).
SECTION 3. 84.063 (1) (a) of the statutes is renum-
bered 84.063 (1) (d).
SECTION 4. 84.063 (1) (b) of the statutes is renum-
bered 84.063 (1) (f).
SECTION 5. 84.063 (1) (c) of the statutes is created to
read:
84.063 (1) (c) “Contractor” means a person who is
seeking or has entered into a highway improvement con-
tract with the department under s. 84.06.
SECTION 6. 84.063 (1) (e) of the statutes is created to
read:
84.063 (1) (e) “Owner” means an owner of a utility
facility.
SECTION 7. 84.063 (1) (g) of the statutes is created to
read:
84.063 (1) (g) “Utility relocation delay” means a
change in operations of a contractor or the rescheduling
of work by a contractor that is caused by the uncompleted
relocation or adjustment of a utility facility located in the
right−of−way, regardless of whether the relocation or
adjustment of the utility facility is identified in a plan
under sub. (3).
SECTION 8. 84.063 (4m) of the statutes is created to
read:
* Section 991.11, WISCONSIN STATUTES: Effective date of acts. “Every act and every portion of an act enacted by the legislature over the governor’s
partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication.” − 2 −2023 Wisconsin Act 46 2023 Senate Bill 270
84.063 (4m) UTILITY RELOCATION DELAY DAMAGES
CLAIMS. (a) A contractor that incurs costs as a result of
a utility relocation delay may file a utility relocation
delay damages claim with the department.
(b) The department shall notify the owner of the rele-
vant utility facility upon receipt of a claim under par. (a).
The owner may respond to the claim by providing addi-
tional information related to the claim. The owner may
not request a contested case hearing under par. (d) 2.
unless the owner provides additional information under
this paragraph.
(c) The department shall consider all information
provided by the contractor under par. (a) and, if applica-
ble, the owner under par. (b). If the department deter-
mines that a utility relocation delay occurred, the depart-
ment shall compensate the contractor for costs incurred
as a result of the utility relocation delay. The department
may not impose liquidated damages for work required by
the contract that is not completed within the contract time
or within extra time allowed by the department as a result
of the utility relocation delay. The amount of compensa-
tion under this paragraph shall be calculated and paid in
accordance with the department’s standard specifications
for compensable delays.
(d) 1. If a utility relocation delay identified under par.
(c) was caused by an owner’s failure to complete a reloca-
tion in accordance with a work plan approved by the
department under sub. (3), the owner shall be liable to the
department for compensation paid to a contractor under
par. (c). An owner shall not be liable under this subdivi-
sion when the failure to complete a relocation is caused
by circumstances outside of the owner’s reasonable con-
trol, as determined by the department upon consideration
of any information provided by the owner to the depart-
ment under sub. (3) or this subsection, including a delay
caused by another owner identified in the work plan or
reliance on a 3rd party to identify and verify the location
of a utility facility requiring relocation. The department
may not assess against the owner any fees, costs, or
expenses in excess of the compensation paid under par.
(c). Subject to subd. 2., an owner shall make payment to
the department no later than 90 days after receiving
notice of the amount owed.
2. Within 90 days after receiving an assessment
notice under subd. 1., an owner may request a contested
case hearing under s. 227.42 to review the decision of the
department under subd. 1., and a hearing shall be sched-
uled if the owner previously responded to the claim as
provided in par. (b). Any amount that the owner owes to
the department under subd. 1. shall be stayed pending the
contested case hearing.
3. If an owner fails to make payment of amounts
owed to the department under this paragraph, the depart-
ment may seek remedy by filing a civil suit against the
owner.
(e) The department may not consider amounts paid
or owed under par. (d) when making a determination on
an owner’s permit application, amounts paid to the owner
under sub. (4) (a) or s. 84.09, or any other matter involv-
ing the owner.
SECTION 9. Trans 220.06 (7) (c) of the administrative
code is amended to read:
Trans 220.06 (7) (c) If the owner fails to provide a
work plan as provided in s. Trans 220.05, or fails to com-
plete the alteration or relocation of its facilities in accord-
ance with the work plan approved by the department as
provided in s. Trans 220.05, the owner shall be liable to
the contractor for all delay costs and liquidated damages
incurred by the contractor which are The department
shall compensate the contractor for any costs caused by
or which grow out of failure of the owner to carry out and
complete its work in accordance with the approved work
plan attributed to a utility relocation delay as defined in
s. 84.063 (1) (g), Stats., and may not impose liquidated
damages. The owner shall be liable, subject to the right
to appeal the decision of the department as provided
under s. 84.063 (4m) (d) 2., Stats., for compensation paid
by the department to a contractor under this paragraph for
a utility relocation delay, as defined in s. 84.063 (1) (g),
Stats., that was caused by the owner’s failure to complete
a relocation in accordance with the work plan approved
by the department as provided in s. Trans 220.05. The
owner shall not be liable to the department or any other
party for any delay if the owner’s failure to complete the
relocation in accordance with the work plan approved by
the department was due to circumstances outside of the
owner’s reasonable control.
SECTION 10.0Nonstatutory provisions.
(1) No later than 60 days after the effective date of
this subsection, the department of transportation shall
update its standard specifications for compensable
delays to conform with the requirements under s. 84.063
(4m).
(2) No later than 4 years after the effective date of this
subsection, the department of transportation shall submit
a report to the joint committee on finance detailing utility
relocation damages claims received by the department,
including total claims received, claims denied, payments
made to contractors, damages recovered from owners,
the length and impact of delays, and net expenditures by
the department. No later than 6 months after receipt of
the report under this subsection, the joint committee on
finance shall make a recommendation to the legislature
as to whether s. 84.063 (4m) should be amended or
repealed.