CHAPTER
En 1500 LICENSES FOR CROSSINGS OF PUBLIC WATERS
OR STATE LAND
PART En 1501 PURPOSE AND APPLICABILITY
En 1501.01 Purpose. The purpose
of En 1500 pursuant to the mandate
of RSA 371:22 is to protect
the public against any substantial impact to the public rights in public waters
or state-owned lands as a result of the exercise of any license issued under
RSA 371:17. Nothing in this part is to be construed to supersede, overrule,
or replace any other law, rule, or regulation, including that of any state or federal
permitting authority, including but not limited to the authority of the New
Hampshire Department of Environmental Services (NHDES) regarding Statutory
Permit Notification (SPN) and Shoreland Permit by Notification (PBN), and of
the U.S. Army Corps of Engineers (ACOE) regarding navigable waters.
Source. #13939, eff 4-26-24
En 1501.02 Applicability. En 1500 shall apply
to:
(a) Public utilities within the meaning
of RSA 362:2;
(b) Rural electric cooperatives for which a certificate of deregulation is on file pursuant to RSA
301:57;
(c) Municipal corporations and county corporations regardless of whether
operating within their corporate limits; and
(d) Every other corporation or other entity,
and every individual desiring to cross any public water
or land for any purpose set forth in RSA 371:17.
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PART En 1502 DEFINITIONS
En 1502.01
"Abutter" means
a person who is the
owner of land encumbered by any crossing of public
waters, or the border of which adjoins any crossing of public waters.
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En 1502.02 "Application" means an application for a license
for the purposes
set forth in RSA 371:17
as set forth herein, and includes further submissions made in response to
requests by the department.
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En 1502.03 "Application for communication line crossing license" means an application for a license for
the purposes set forth in RSA 371:17 involving only a communication line
crossing.
En 1502.04 "Attaching entity" means a natural person or an
entity with a statutory or contract right to attach a facility of any type to a pole, including, but not limited
to, telecommunications providers, cable television service providers, incumbent local exchange
carriers, excepted local exchange carriers, wireless service providers, information service providers,
electric utilities, and governmental entities.
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En 1502.05 "Commission" means
the public utilities commission.
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En 1502.06 "Communication
line" means a utility line and any associated conductors and supporting or containing structures, equipment, and apparatus that is used for the purpose of public or private data signal or other communications
service.
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En 1502.07
"Conduit" means a duct or tube used to protect
and route an electric supply
or communication line.
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En 1502.08 "Construction" means the installation or
modification of any pipeline, cable,
or conduit, or a line of
poles or towers or other structures, or any wires or fixtures thereon, but does
not include temporary construction as specifically defined herein.
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En
1502.09 "Crossing" means the area
traversed over, under, or across any public water or any state-owned land by
a pipeline, cable, conduit, or a line of poles, towers, or other
structures and wires and fixtures,
but does not include activities that otherwise would be subject to RSA 371:17
but for the fact that the location of
such activities is subject to the jurisdiction of the New Hampshire department
of Transportation (DOT) regarding accommodation of utilities within highway and
railroad rights-of-way, as set forth in the DOTs Utility Accommodation Manual,
dated October, 2017.
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En 1502.10
"Crossing license" means a
permission to cross public water or state-owned land for purposes set forth in
RSA 371:17 by virtue of and in strict conformity with the terms and other
conditions set forth in a decision by the department granting an application submitted
hereunder or in a decision of the commission prior to July 1, 2021.
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En 1502.11 "Department" means the department of energy as established by RSA 12-P:1.
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En 1502.12
"Division" means the department of energy, division of
enforcement as established by RSA
12-P:8.
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En 1502.13
"Electric
supply lines" means wires, conductors, and cables used to
transmit electric energy.
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En 1502.14
"Emergency" means a situation
requiring immediate action in order to comply with the duties of good practice
regarding safety or reliability of service.
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En 1502.15
"Emergency
construction or modification" means construction or modification of an existing
crossing in conformity with the lawful duty of a utility, other license holder, or attaching entity to
perform same on an emergency basis.
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En 1502.16 "Frac-out plans" means a plan setting
forth measures to prevent and
respond to mud or other releases into ground or surface water during
directional bore operations.
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En 1502.17
"Limited
maintenance" means necessary maintenance that does not involve
construction or modification of any pipeline,
cable, or conduit, or a line of poles, towers, or other structures, or any
wires or fixtures thereon, and is completed
without any alteration of the crossing profile in any way.
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En
1502.18 "Maintenance" means
actions necessary to preserve the good condition of a pipeline, cable, or
conduit, or a line of poles or towers or other structures, or any wires or fixtures
thereon, or to return same to good condition.
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En 1502.19
"Modification"
means any alteration of any pipeline,
cable, or conduit, or a line of poles, towers, or other structures, or any wires or fixtures thereon that is not within the
definitions of limited maintenance or temporary construction.
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En 1502.20
"Optical
Ground Wire" (OPGW) means wire that combines the functions
of grounding and communications.
En 1502.21
"Overlash" means the tying or
lashing of an attaching entitys
additional fiber optic
cables, or similar incidental equipment to the attaching entitys own existing
communications wires, cable, or supporting strand already attached to poles.
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En 1502.22
"Overlash communication line crossing" means a crossing
not involving the
construction or modification of any utility line other than the construction or
modification of a communication line by means of overlash
on an existing, licensed crossing.
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En 1502.23
"Pipeline"
means an apparatus for transmission of liquid or gas, including but not limited to natural gas or other
petroleum products, water, or sewer.
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En 1502.24
"Public
waters" means all ponds of more than 10 acres, tidewater bodies, and such
streams or portions thereof identified in the official list of public waters maintained
pursuant to RSA 271:20 and Env-Wr 900.
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En
1502.25 "Shield wire crossing" means a crossing
involving the construction or modification of only OPGW or shield wire or both within an
existing, licensed crossing, provided that the OPGW or shield wire or both are
located above the conductors. This crossing definition shall include OPGW.
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En 1502.26
"Static
shield wire" means wire installed to protect electric transmission lines
from lightning.
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En 1502.27 "Support structure" means a pole, tower, or other
structure to which a utility
line is attached as part of a
crossing.
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En 1502.28
"Temporary construction" means
construction that is required for road and bridge projects as lawfully directed
by the state of New Hampshire, provided that when temporary construction is no
longer required, any affected pipeline, cable,
or conduit, or a line of
poles or towers or other structures, or any wires or fixtures thereon are
returned to its original configuration within a reasonable time within 30 days.
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En 1502.29
"Utility"
means a "public utility" as
defined in RSA 362:2, including a rural electric
cooperative for which a certificate of deregulation is on file with the
commission pursuant to RSA 301:57.
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En 1502.30
"Utility line" means the pipeline, cable, communication line, or conduit, or a line of poles, towers, or other structures and wires and fixtures thereon, regardless of whether it is owned
or utilized by a utility, other entity, or individual.
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PART En 1503 LICENSE APPLICATION
En
1503.01 When a License Application is
Required. Anyone identified in En
1501.02 desiring to cross any public water or land for purposes set forth in
RSA 371:17 shall submit an application in advance directed to the department of
energy director of enforcement division. The application need not be in any
particular form, but shall contain the supporting information specified herein
for the relevant type of crossing. Further submissions shall be made upon
request by department staff in order to permit the department to consider the
safety and reliability of the proposed crossing based on relevant department
rules, federal rules, and the industry safety and reliability codes referenced
herein.
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En
1503.02 Exceptions to License
Requirement.
(a) Notwithstanding En 1503.01, an application shall
not be required with respect to limited maintenance or temporary construction
provided that notification is given to the department within a reasonable time
not to exceed 7 days after the inception of such activities and provided
further notification also is given to the department within 7 days of
completion.
(b) Notwithstanding En 1503.01, an application shall
not be submitted in advance of emergency construction or modification provided
that notice is given to the department within a reasonable time not to exceed 7
days after the inception of work and provided further that an application is
filed within 90 days after completion.
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En 1503.03 Contents of Application for Electric Supply
or Communication Lines
Crossing License. An application shall include:
(a) Specification of the location
of any public waters or any lands owned by this state that are the subject of the application;
(d) Identification including a detailed
description of any existing utility line and any contemplated construction or modification of utility lines that are the
subject of the application, including the
precise locations of existing and intended support structures, all as specified
within a stated reasonable tolerance, which shall not be exceeded, during
construction;
(e) In the event construction or modification is
contemplated as to any existing, unlicensed utility line, state after due
diligence the history of such unlicensed line and the reasons why it was not
licensed previously, as well as the bases for the division to issue a license
as to such utility line in accordance with RSA 371:17;
(g)
Wire specifications and loading condition
information necessary to establish maximum
sag for the crossing span
that is the subject of the application, accompanied by visual depictions
including, but not limited to, a profile view and cable schedule;
(h)
Identification and depiction
of the location of support
structures and max sag conditions for all crossing
spans;
(i)
Identification and depiction of all conductors and wires as needed to
show the minimum clearance at maximum
sag conditions in reference to crossings of state-owned land or crossings of public waters, accompanied by flood elevation data based on
FEMA flood map data for each
crossing span used in calculating clearance;
(j) A statement
confirming compliance with applicable national
electrical and other
relevant safety codes;
(k) A
statement confirming compliance with any applicable New Hampshire department of
environmental services (NHDES) wetland,
shoreland, and other applicable statutory
permitting requirements and notifications;
(l) A statement confirming compliance with any applicable U.S. Army Corps
of Engineers (ACOE) regulations, including all
applicable licensing, permitting or notification requirements;
(m) Specification of all relevant support
structures, facilities, and equipment, including but not limited to, poles, conductors, wires, and appurtenances thereto necessary to permit the division to act
upon the application;
(n) Specification of all other relevant geographic information, including without
limitation, flood elevations
and other flood data, flood maps, rights-of-way, easements, and other property
rights, necessary to permit the division to act upon the application;
(o) Tables, maps, and prints, including without
limitation an overview
map, and all other
relevant information and data necessary to permit the division to act
upon the application;
(1) All relevant conduit
information;
(2) All relevant trenching
information including, without
limitation, depths, widths,
and distances; and
(3) All other relevant information that would be
required in an application for pipeline crossing license pursuant to En 1503.02
for the purposes of (p), the term "conduit" shall be interchangeable with the terms
"pipelines" and "casings," and the term "trenching" shall
be interchangeable with the term "boring";
(q) A statement
of why the license for which an application is submitted is necessary in order to meet the reasonable requirements of
service to the public;
(r) A statement of why the license for which an application is submitted may be exercised
without substantially affecting the public rights in public waters or
state-owned land; and
(s) A list identifying all abutters as reflected
by record ownership at the registry of deeds, which shall be filed with the division
separate from, but contemporaneously with the submission of, the application and shall be sufficient to enable the division to effectuate notice by certified mail of a license
issuance and of a right to appeal.
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En 1503.04 Contents of Application for Pipeline Crossing
License. An application shall include:
(a) Specification of the location
of any public waters or any lands owned by this state, or both that are the subject
of the application;
(b) Specification by means of coordinates and
geographic description of the location of any existing and any proposed
pipelines that are the subject of the application;
(c) Identification of the most recent
license for any existing pipeline that is the subject of the
application;
(d) Identification, including a detailed description, of any existing and any
proposed pipelines and casings involved in the crossing, including types and
diameters, intended pipe bend radii and stress capabilities along
with allowable stress levels, as well as the maximum
allowable and intended
operating PSIG;
(e) Tables, maps, and prints, including without
limitation an overview
map and depictions of the
profile of the pipeline, and an aerial view showing the entry and exit points
of the directional bore and all other relevant information and data necessary
to permit the division to act upon the application;
(f) Identification including a detailed
description of any existing, unlicensed pipeline, whether or not construction
or modification of such is contemplated, that is within the relevant public
water or land of this state that is the subject of the application and that
would require a license were it to be constructed at the time of the
application, stating after due diligence the history of any such unlicensed
pipeline and the reasons why it was not licensed
previously, as well as the bases for the division
to issue a license as to such
pipeline in accordance with RSA 371:17;
(g) Specification of all relevant land and water measurements,
including but not limited to, the precise locations of the boring entry and
exit points specified within a reasonable tolerance, which shall not be
exceeded, relevant angles and
distances, depths of boring, and the
minimum depths to be maintained below ground level or the bed of the public water sufficient to permit the division to act upon the application;
(h) Identification and description of the trenchless boring or trenching methods to be utilized
sufficient to enable the division
to determine that there shall be no surface water impacts;
(i) Specification of all depths, widths,
and distances of any trenchless
boring or trenching;
(j) A
statement confirming that notice shall be given to the division
at least 7 days before trenchless boring or trenching commences
and again the day before boring or trenching actually commences;
(k) A statement confirming the use of qualified
contractors pursuant to the Natural Gas Pipeline Safety Act, 49 U.S.C. § 60101, et seq.
and all regulations promulgated thereunder, as well as compliance with N.H. Code Admin. Rules Puc 506.01,
Pipeline Safety Standards;
(l) A statement confirming the use of aboveground pipeline
markers to identify
the pipeline location with appropriate warnings and company
contact information on each side of the crossing;
(m) A statement confirming that any gas mains shall be locatable
for future excavations, and the type of
tracer wire or other suitable equivalent means of tracing to be utilized;
(n) Frac-out plans, the submission of which may
be delayed until no later than 30 days before commencement of construction,
shall include:
(1) A statement
confirming the utilization of continuous monitoring for possible hydro
fracture situations during
the boring operation and specification of methods to be utilized;
(2) A statement
confirming the utilization of immediate
containment measures in the event of a hydro fracture,
specification of the methods to be utilized for such containment, and
confirmation that the division and NHDES shall be notified immediately in such
a hydro fracture event;
(3) A statement
confirming the clean-up procedures to be implemented in the event of a hydro
fracture occurrence and that the necessary equipment and personnel shall be on site prior to and throughout the boring operation; and
(4) Description
of measures taken in advance of any hydro fracture, including without
limitation, staffing and equipment on site to prevent or respond to a frac-out
event;
(o) A statement confirming compliance with applicable
national gas and other relevant
safety codes;
(p) A
statement confirming compliance with any applicable New Hampshire department of
environmental services NHDES wetland, shoreland, and other applicable statutory permitting
requirements and notifications;
(q) A statement confirming compliance with any applicable U.S. Army Corps
of Engineers (ACOE) regulations, including all
applicable licensing, permitting or notification requirements;
(r) Identification of all precautions to be followed
to ensure safety
to the public during and after the contemplated construction or
modification of utility lines;
(s) A statement confirming ownership and responsibility for ongoing maintenance of the pipeline upon completion;
(t) A description of any plan as to which the license for which an application is submitted is a part, and include a detailed statement
of why the construction is necessary to fulfill a need for the
public, the utility, its ratepayers, or otherwise is required by law, or
otherwise is necessary to meet the reasonable requirements of service to the
public;
(u) A discussion of any viable
short or long-term alternatives to the proposed construction;
(v) A statement of why the license for which an application is submitted may be exercised without substantially affecting
the public rights in public waters or state-owned lands;
(w) A description of any existing pipeline and
any contemplated construction or modification
of pipelines that are
the subject of the application, sufficient to enable the division to analyze whether the contemplated construction or modification would be necessary in order to meet the reasonable requirements of
service to the public;
(x) A description of any existing pipeline and
any contemplated construction or modification
of pipelines that are
the subject of the application, sufficient to enable
the division to analyze whether any substantial impact
to the public rights in public waters or state-owned lands would result from
the contemplated construction or modification; and
(y) A
list identifying all abutters, which shall be filed with the division separate
from, but contemporaneously with the submission of, the application and shall be sufficient to enable the division
to effectuate notice by certified mail of a license issuance and of a right to
appeal.
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En 1503.05
Contents of Application for Overlash Communication Line Crossing License. An application for an overlash communication line crossing license need not
include all items specified in En 1503.03, but shall include the following:
(a) Identification of any previous
order granting a license for any existing
utility line that is the subject of the application;
(b) Specification of the location
of any public waters or any state-owned lands that are the
subject of the application;
(c) Specification of the location
of any existing support structures and any proposed communication lines that are the
subject of the application;
(d) Identification, including a detailed
description, of any proposed communication lines and supporting
appurtenances that are the subject of the application;
(e) A description of any existing
communication lines and any contemplated attachment by means of overlash
that is the subject of the application;
(f) Specification of all relevant measurements,
including but not limited to, relevant heights, depths, distances, spans, sags and sag capabilities, and clearances of relevant waters,
land, and support structures necessary to permit
the division to act upon the application;
(g) Wire specifications and loading condition
information necessary to establish maximum
sag for the crossing span that
is the subject of the application, accompanied by visual depictions including,
but not limited to, a profile view and cable schedule;
(h) Identification and depiction of the location
of support structures and max sag conditions for all
crossing spans;
(i) Identification and depiction of all
conductors and wires as needed to show the minimum clearance at maximum sag conditions in reference to crossings of state-owned land or crossings of public waters, accompanied by flood elevation data based on
FEMA flood map data for each
crossing span used in calculating clearance;
(j) A statement confirming compliance with all applicable national
electrical, gas, or other relevant
safety codes, as well as all environmental, safety, and other standards and reviews under federal and state law;
(k) Identification of all precautions to be followed
to ensure safety
to the public during and after
the contemplated attachment or modification of communication lines;
(l) A statement confirming compliance with other applicable state and federal
laws and regulations including, without
limitation, Puc 1303, access to poles, and Puc 1304, dispute resolution;
(m) A detailed statement of why the license for which an application is submitted is necessary in order to meet the reasonable
requirements of service to the public;
(n) A detailed statement of why the license for which an application is submitted may be exercised without substantially affecting
the public rights in public waters or state-owned lands; and
(o) A
list identifying all abutters, which shall be filed with the division separate
from, but contemporaneously with the submission of, the application and shall be sufficient to enable the division
to effectuate notice by certified mail of a license issuance and of a right to
appeal.
Source.
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En 1503.06 Contents of Application for OPGW or Static
Shield Wire Crossing
License. An application for OPGW or static
shield wire crossing license need not include all items specified in En 1503.03,
but shall include the following:
(a) Identification of any previous
order granting a license for any existing
utility line that is the subject of the application;
(b) Specification of the location
of any public waters or any state-owned lands that are the
subject of the application;
(c) Specification of the location
of any existing support structures and any proposed communication lines
that are the subject of the application;
(d) Identification, including a detailed
description, of any proposed communication lines supporting appurtenances that are the subject of the
application;
(e) A statement confirming compliance with all applicable national electrical and other relevant
safety codes, as well as all environmental, safety, and other standards
and reviews under federal law;
(f) Identification of all precautions to be followed
to ensure safety
to the public during and after
the contemplated attachment or modification of communication lines;
(g) A detailed statement
of why the license for which an application is submitted is necessary in order to meet the reasonable
requirements of service to the public;
(h) A detailed statement of why the
license for which an
application is submitted may be
exercised without substantially affecting the public rights in public waters or state-owned lands; and
(i) A list identifying all abutters, which shall
be filed with the division separate from, but contemporaneously with the submission of, the application and shall be sufficient to enable the division
to effectuate notice by certified mail of a license issuance and of a right to
appeal.
Source.
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PART En 1504 ACTION
UPON APPLICATION FOR CROSSING
En 1504.01 Action
Upon Filing of Application for Crossing License.
(a) The department shall assign a number to each application and upon
review shall communicate with the applicant regarding any perceived omissions
or other defects, as well as regarding any questions and any perceived grounds
for denial.
(b) The department shall condition any license
issued under this paragraph in any manner necessary to assure that the
license is likely to be exercised safely so as to avoid substantially affecting the public rights in public
waters or state-owned lands.
(c) Using a non-adjudicative process, the
department of energy shall reject incomplete or improperly filed applications unless an application is cured upon request by the department, and shall, also using a non-adjudicative process,
issue or deny the license
within 90 days of
receiving a complete application and all information subsequently requested of
an applicant.
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En
1504.02 Action Upon Request for
Decision Within 30 Days. Notwithstanding
the foregoing, the department shall issue or deny a license within 30 days of
receipt of a written request therefor from an applicant made 90 or more days
after the filing of an application. The departments non-receipt of information
requested of an applicant shall be a consideration in any decision made
pursuant to such a request for a decision within 30 days.
PART En 1505 NOTICE
OF DECISION AND OF RIGHT TO APPEAL
En 1505.01
Notice of License Issuance
and Right to Appeal by Persons Directly Affected. The division shall give notice of the
issuance of a license:
(a) Directly to the
applicant;
(b) By publication on its website,
(c) Directed to the attorney general;
and
(d) By regular
or certified mail to abutters or their representatives as identified by the applicant, notifying them of the rights of
appeal in RSA 371:20.
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En 1505.02
Notice of Denial of License.
The division
shall give notice of a license denial directly
to the applicant, notifying it of the rights of appeal in RSA 371:20.
Source.
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APPENDIX A
|
Rule |
Specific State Statute the Rule
Implements |
|
En 1501.01 En 1501.03 |
RSA 12-P:5, RSA 362:2, RSA 371:17, 22 |
|
En 1502.01 En 1501.30 |
RSA 12-P:5, RSA 12-P:8, RSA 271:20, RSA 362:2, RSA 371:17 |
|
En 1503.01 En 1503.06 |
RSA 12-P:5, RSA 371:17 |
|
En 1504.01 En 1504.02 |
RSA 12-P:5 |
|
En 1505.01 En 1505.02 |
RSA 12-P:5, RSA 371:20 |
APPENDIX B
DOCUMENTS INCORPORATED BY
REFERENCE
FEDERAL STANDARDS AND FORMS
|
Rule |
Title |
Publisher: How to Obtain; and Cost |
|
En 1502.09 |
Utility Accommodation Manual |
The New Hampshire Department of Transportation ("DOT"), available from DOT |