An association reached out to our office when a contractor installing fiber-optic cables through a contract with a nearby school district, damaged their underground irrigation lines installed under a public right of way as a result of their excavation activities. The Association incurred thousands of dollars’ worth of damage as a result of the contractor’s activities. The Association made a written demand upon the contractor and the contractor denied any liability claiming that it had performed due diligence by notifying “811” of their excavation intent and received no information about the Association’s underground facilities.
While Colorado 811 and the statute that it derives its authority from have been around since 1986, in the grand scheme of things, the law is fairly new and relatively unknown.
Colorado 811 is a notification association and a nonprofit organization that connects owners of underground utilities with excavators to protect the infrastructure. All Utility owner(s), by law, are required to be members of Colorado 811 and register their underground utilities. The authority stems from the Excavation Requirements statute, C.R.S. 9-1.5-101 et. seq. which requires every owner/operator of an underground facility to join the notification association and provide all of the locations of any underground facilities that the member owns or operates. The purpose of the law is to reduce the likelihood of damage to an underground facility or injury to any person working at an excavation site.
Anyone looking to excavate must notify 811 of their excavation intent and would receive information about the registered underground facilities. Excavator liability occurs when they fail to provide proper notification or exercise reasonable care in the excavation. Excavators are then presumed liable for all costs and damage for repairs to the utility including costs and expenses of a suit including attorney fees.
There are exceptions to the notification requirement. The statute does not apply to any owner or occupant of real property under which the underground facilities are buried if the facilities are used solely to furnish service or commodities to the real property and no part of the facilities is located underneath a public street, county road, alley, or right-of-way dedicated to public use.
In the scenario above, because the irrigation lines were installed under a public right-of-way, the Association was responsible for registering them and becoming a member of Colorado 811. Since they failed to do so, it impacted their ability to go after the contractor for damages.
If you have questions about whether your association needs to register with 811, reach out to one of our attorneys at 303-432-9999 or [email protected].