SB2789 104TH GENERAL ASSEMBLY

LRB104 17515 LNS 30942 b

104TH GENERAL ASSEMBLY
State of Illinois
2025 and 2026
SB2789

Introduced 1/13/2026, by Sen. Patrick J. Joyce

SYNOPSIS AS INTRODUCED:

220 ILCS 5/8-406	from Ch. 111 2/3, par. 8-406
605 ILCS 5/9-113	from Ch. 121, par. 9-113

Amends the Illinois Highway Code. Provides that a high voltage transmission line may be constructed, placed, or maintained across any public right-of-way or along any highway, federally aided State highway, controlled access highway, interstate highway, or roadway, except as deemed necessary by the Secretary of Transportation to protect public safety or ensure the proper function of the highway. Provides that in the case of the co-location of a high voltage transmission line with Department of Transportation highway right-of-way, the Secretary of Transportation shall engage in coordination activities with a utility or developer to review requested highway corridors for a possible permitted location of a high voltage transmission line. Provides that when a permissible route along a highway corridor has been identified by the Department and the utility or developer, the Department must engage in consultation with the utility or developer to develop a constructability report to be used by both parties when co-location projects are being planned and approved. Amends the Public Utilities Act. Establishes an order of priority when siting a location for a new electric transmission facility.

A BILL FOR

AN ACT concerning transportation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Public Utilities Act is amended by changing Section 8-406 as follows:

(220 ILCS 5/8-406) (from Ch. 111 2/3, par. 8-406)

Sec. 8-406. Certificate of public convenience and necessity.

(a) No public utility not owning any city or village franchise nor engaged in performing any public service or in furnishing any product or commodity within this State as of July 1, 1921 and not possessing a certificate of public convenience and necessity from the Illinois Commerce Commission, the State Public Utilities Commission, or the Public Utilities Commission, at the time Public Act 84-617 goes into effect (January 1, 1986), shall transact any business in this State until it shall have obtained a certificate from the Commission that public convenience and necessity require the transaction of such business. A certificate of public convenience and necessity requiring the transaction of public utility business in any area of this State shall include authorization to the public utility receiving the certificate of public convenience and necessity to construct such plant, equipment, property, or facility as is provided for under the terms and conditions of its tariff and as is necessary to provide utility service and carry out the transaction of public utility business by the public utility in the designated area.

(b) No public utility shall begin the construction of any new plant, equipment, property, or facility which is not in substitution of any existing plant, equipment, property, or facility, or any extension or alteration thereof or in addition thereto, unless and until it shall have obtained from the Commission a certificate that public convenience and necessity require such construction. Whenever after a hearing the Commission determines that any new construction or the transaction of any business by a public utility will promote the public convenience and is necessary thereto, it shall have the power to issue certificates of public convenience and necessity. The Commission shall determine that proposed construction will promote the public convenience and necessity only if the utility demonstrates: (1) that the proposed construction is necessary to provide adequate, reliable, and efficient service to its customers and is the least-cost means of satisfying the service needs of its customers or that the proposed construction will promote the development of an effectively competitive electricity market that operates efficiently, is equitable to all customers, and is the least cost means of satisfying those objectives; (2) that the utility is capable of efficiently managing and supervising the construction process and has taken sufficient action to ensure adequate and efficient construction and supervision thereof; and (3) that the utility is capable of financing the proposed construction without significant adverse financial consequences for the utility or its customers. In the siting of a new electric transmission facility, including a high voltage transmission line, it is the policy of this State that the following corridors must be used in the following order of priority: (i) existing utility corridors; (ii) highway (interstate, freeway, and State trunk) and railroad corridors; (iii) recreational trails, to the extent that the facilities may be constructed below ground and that the facilities do not significantly impact environmentally sensitive areas; (iv) new utility corridors. Permitting on a priority corridor shall be done to the greatest extent feasible that is consistent with economic and engineering considerations, reliability of the electric system, and protection of the environment.

(b-5) As used in this subsection (b-5):

"Qualifying direct current applicant" means an entity that seeks to provide direct current bulk transmission service for the purpose of transporting electric energy in interstate commerce.

"Qualifying direct current project" means a high voltage direct current electric service line that crosses at least one Illinois border, the Illinois portion of which is physically located within the region of the Midcontinent Independent System Operator, Inc., or its successor organization, and runs through the counties of Pike, Scott, Greene, Macoupin, Montgomery, Christian, Shelby, Cumberland, and Clark, is capable of transmitting electricity at voltages of 345 kilovolts or above, and may also include associated interconnected alternating current interconnection facilities in this State that are part of the proposed project and reasonably necessary to connect the project with other portions of the grid.

Notwithstanding any other provision of this Act, a qualifying direct current applicant that does not own, control, operate, or manage, within this State, any plant, equipment, or property used or to be used for the transmission of electricity at the time of its application or of the Commission's order may file an application on or before December 31, 2023 with the Commission pursuant to this Section or Section 8-406.1 for, and the Commission may grant, a certificate of public convenience and necessity to construct, operate, and maintain a qualifying direct current project. The qualifying direct current applicant may also include in the application requests for authority under Section 8-503. The Commission shall grant the application for a certificate of public convenience and necessity and requests for authority under Section 8-503 if it finds that the qualifying direct current applicant and the proposed qualifying direct current project satisfy the requirements of this subsection and otherwise satisfy the criteria of this Section or Section 8-406.1 and the criteria of Section 8-503, as applicable to the application and to the extent such criteria are not superseded by the provisions of this subsection. The Commission's order on the application for the certificate of public convenience and necessity shall also include the Commission's findings and determinations on the request or requests for authority pursuant to Section 8-503. Prior to filing its application under either this Section or Section 8-406.1, the qualifying direct current applicant shall conduct 3 public meetings in accordance with subsection (h) of this Section. If the qualifying direct current applicant demonstrates in its application that the proposed qualifying direct current project is designed to deliver electricity to a point or points on the electric transmission grid in either or both the PJM Interconnection, LLC or the Midcontinent Independent System Operator, Inc., or their respective successor organizations, the proposed qualifying direct current project shall be deemed to be, and the Commission shall find it to be, for public use. If the qualifying direct current applicant further demonstrates in its application that the proposed transmission project has a capacity of 1,000 megawatts or larger and a voltage level of 345 kilovolts or greater, the proposed transmission project shall be deemed to satisfy, and the Commission shall find that it satisfies, the criteria stated in item (1) of subsection (b) of this Section or in paragraph (1) of subsection (f) of Section 8-406.1, as applicable to the application, without the taking of additional evidence on these criteria. Prior to the transfer of functional control of any transmission assets to a regional transmission organization, a qualifying direct current applicant shall request Commission approval to join a regional transmission organization in an application filed pursuant to this subsection (b-5) or separately pursuant to Section 7-102 of this Act. The Commission may grant permission to a qualifying direct current applicant to join a regional transmission organization if it finds that the membership, and associated transfer of functional control of transmission assets, benefits Illinois customers in light of the attendant costs and is otherwise in the public interest. Nothing in this subsection (b-5) requires a qualifying direct current applicant to join a regional transmission organization. Nothing in this subsection (b-5) requires the owner or operator of a high voltage direct current transmission line that is not a qualifying direct current project to obtain a certificate of public convenience and necessity to the extent it is not otherwise required by this Section 8-406 or any other provision of this Act.

(c) As used in this subsection (c):

"Decommissioning" has the meaning given to that term in subsection (a) of Section 8-508.1.

"Nuclear power reactor" has the meaning given to that term in Section 8 of the Nuclear Safety Law of 2004.

After the effective date of this amendatory Act of the 103rd General Assembly, no construction shall commence on any new nuclear power reactor with a nameplate capacity of more than 300 megawatts of electricity to be located within this State, and no certificate of public convenience and necessity or other authorization shall be issued therefor by the Commission, until the Illinois Emergency Management Agency and Office of Homeland Security, in consultation with the Illinois Environmental Protection Agency and the Illinois Department of Natural Resources, finds that the United States Government, through its authorized agency, has identified and approved a demonstrable technology or means for the disposal of high level nuclear waste, or until such construction has been specifically approved by a statute enacted by the General Assembly. Beginning January 1, 2026, construction may commence on a new nuclear power reactor with a nameplate capacity of 300 megawatts of electricity or less within this State if the entity constructing the new nuclear power reactor has obtained all permits, licenses, permissions, or approvals governing the construction, operation, and funding of decommissioning of such nuclear power reactors required by: (1) this Act; (2) any rules adopted by the Illinois Emergency Management Agency and Office of Homeland Security under the authority of this Act; (3) any applicable federal statutes, including, but not limited to, the Atomic Energy Act of 1954, the Energy Reorganization Act of 1974, the Low-Level Radioactive Waste Policy Amendments Act of 1985, and the Energy Policy Act of 1992; (4) any regulations promulgated or enforced by the U.S. Nuclear Regulatory Commission, including, but not limited to, those codified at Title X, Parts 20, 30, 40, 50, 70, and 72 of the Code of Federal Regulations, as from time to time amended; and (5) any other federal or State statute, rule, or regulation governing the permitting, licensing, operation, or decommissioning of such nuclear power reactors. None of the rules developed by the Illinois Emergency Management Agency and Office of Homeland Security or any other State agency, board, or commission pursuant to this Act shall be construed to supersede the authority of the U.S. Nuclear Regulatory Commission. The changes made by this amendatory Act of the 103rd General Assembly shall not apply to the uprate, renewal, or subsequent renewal of any license for an existing nuclear power reactor that began operation prior to the effective date of this amendatory Act of the 103rd General Assembly.

None of the changes made in this amendatory Act of the 103rd General Assembly are intended to authorize the construction of nuclear power plants powered by nuclear power reactors that are not either: (1) small modular nuclear reactors; or (2) nuclear power reactors licensed by the U.S. Nuclear Regulatory Commission to operate in this State prior to the effective date of this amendatory Act of the 103rd General Assembly.

(d) In making its determination under subsection (b) of this Section, the Commission shall attach primary weight to the cost or cost savings to the customers of the utility. The Commission may consider any or all factors which will or may affect such cost or cost savings, including the public utility's engineering judgment regarding the materials used for construction.

(e) The Commission may issue a temporary certificate which shall remain in force not to exceed one year in cases of emergency, to assure maintenance of adequate service or to serve particular customers, without notice or hearing, pending the determination of an application for a certificate, and may by regulation exempt from the requirements of this Section temporary acts or operations for which the issuance of a certificate will not be required in the public interest.

A public utility shall not be required to obtain but may apply for and obtain a certificate of public convenience and necessity pursuant to this Section with respect to any matter as to which it has received the authorization or order of the Commission under the Electric Supplier Act, and any such authorization or order granted a public utility by the Commission under that Act shall as between public utilities be deemed to be, and shall have except as provided in that Act the same force and effect as, a certificate of public convenience and necessity issued pursuant to this Section.

No electric cooperative shall be made or shall become a party to or shall be entitled to be heard or to otherwise appear or participate in any proceeding initiated under this Section for authorization of power plant construction and as to matters as to which a remedy is available under the Electric Supplier Act.

(f) Such certificates may be altered or modified by the Commission, upon its own motion or upon application by the person or corporation affected. Unless exercised within a period of 2 years from the grant thereof, authority conferred by a certificate of convenience and necessity issued by the Commission shall be null and void.

No certificate of public convenience and necessity shall be construed as granting a monopoly or an exclusive privilege, immunity or franchise.

(g) A public utility that undertakes any of the actions described in items (1) through (3) of this subsection (g) or that has obtained approval pursuant to Section 8-406.1 of this Act shall not be required to comply with the requirements of this Section to the extent such requirements otherwise would apply. For purposes of this Section and Section 8-406.1 of this Act, "high voltage electric service line" means an electric line having a design voltage of 100,000 or more. For purposes of this subsection (g), a public utility may do any of the following:

(1) replace or upgrade any existing high voltage electric service line and related facilities, notwithstanding its length;

(2) relocate any existing high voltage electric service line and related facilities, notwithstanding its length, to accommodate construction or expansion of a roadway or other transportation infrastructure; or

(3) construct a high voltage electric service line and related facilities that is constructed solely to serve a single customer's premises or to provide a generator interconnection to the public utility's transmission system and that will pass under or over the premises owned by the customer or generator to be served or under or over premises for which the customer or generator has secured the necessary right of way.

(h) A public utility seeking to construct a high-voltage electric service line and related facilities (Project) must show that the utility has held a minimum of 2 pre-filing public meetings to receive public comment concerning the Project in each county where the Project is to be located, no earlier than 6 months prior to filing an application for a certificate of public convenience and necessity from the Commission. Notice of the public meeting shall be published in a newspaper of general circulation within the affected county once a week for 3 consecutive weeks, beginning no earlier than one month prior to the first public meeting. If the Project traverses 2 contiguous counties and where in one county the transmission line mileage and number of landowners over whose property the proposed route traverses is one-fifth or less of the transmission line mileage and number of such landowners of the other county, then the utility may combine the 2 pre-filing meetings in the county with the greater transmission line mileage and affected landowners. All other requirements regarding pre-filing meetings shall apply in both counties. Notice of the public meeting, including a description of the Project, must be provided in writing to the clerk of each county where the Project is to be located. A representative of the Commission shall be invited to each pre-filing public meeting.

(h-5) A public utility seeking to construct a high-voltage electric service line and related facilities must also show that the Project has complied with training and competence requirements under subsection (b) of Section 15 of the Electric Transmission Systems Construction Standards Act.

(i) For applications filed after August 18, 2015 (the effective date of Public Act 99-399), the Commission shall, by certified mail, notify each owner of record of land, as identified in the records of the relevant county tax assessor, included in the right-of-way over which the utility seeks in its application to construct a high-voltage electric line of the time and place scheduled for the initial hearing on the public utility's application. The utility shall reimburse the Commission for the cost of the postage and supplies incurred for mailing the notice.

(Source: P.A. 102-609, eff. 8-27-21; 102-662, eff. 9-15-21; 102-813, eff. 5-13-22; 102-931, eff. 5-27-22; 103-569, eff. 6-1-24; 103-1066, eff. 2-20-25.)

Section 10. The Illinois Highway Code is amended by changing Section 9-113 as follows:

(605 ILCS 5/9-113) (from Ch. 121, par. 9-113)

Sec. 9-113. (a) No ditches, drains, track, rails, poles, wires, pipe line or other equipment of any public utility company, municipal corporation or other public or private corporation, association or person shall be located, placed or constructed upon, under or along any highway, or upon any township or district road, without first obtaining the written consent of the appropriate highway authority as hereinafter provided for in this Section.

(b) The State and county highway authorities are authorized to promulgate reasonable and necessary rules, regulations, and specifications for highways for the administration of this Section. In addition to rules promulgated under this subsection (b), the State highway authority shall and a county highway authority may adopt coordination strategies and practices designed and intended to establish and implement effective communication respecting planned highway projects that the State or county highway authority believes may require removal, relocation, or modification in accordance with subsection (f) of this Section. The strategies and practices adopted shall include but need not be limited to the delivery of 5 year programs, annual programs, and the establishment of coordination councils in the locales and with the utility participation that will best facilitate and accomplish the requirements of the State and county highway authority acting under subsection (f) of this Section. The utility participation shall include assisting the appropriate highway authority in establishing a schedule for the removal, relocation, or modification of the owner's facilities in accordance with subsection (f) of this Section. In addition, each utility shall designate in writing to the Secretary of Transportation or his or her designee an agent for notice and the delivery of programs. The coordination councils must be established on or before January 1, 2002. The 90 day deadline for removal, relocation, or modification of the ditches, drains, track, rails, poles, wires, pipe line, or other equipment in subsection (f) of this Section shall be enforceable upon the establishment of a coordination council in the district or locale where the property in question is located. The coordination councils organized by a county highway authority shall include the county engineer, the County Board Chairman or his or her designee, and with such utility participation as will best facilitate and accomplish the requirements of a highway authority acting under subsection (f) of this Section. Should a county highway authority decide not to establish coordination councils, the 90 day deadline for removal, relocation, or modification of the ditches, drains, track, rails, poles, wires, pipe line, or other equipment in subsection (f) of this Section shall be waived for those highways.

(c) In the case of non-toll federal-aid fully access-controlled State highways, the State highway authority shall not grant consent to the location, placement or construction of ditches, drains, track, rails, poles, wires, pipe line or other equipment upon, under or along any such non-toll federal-aid fully access-controlled State highway, which:

(1) would require cutting the pavement structure portion of such highway for installation or, except in the event of an emergency, would require the use of any part of such highway right-of-way for purposes of maintenance or repair. Where, however, the State highway authority determines prior to installation that there is no other access available for maintenance or repair purposes, use by the entity of such highway right-of-way shall be permitted for such purposes in strict accordance with the rules, regulations and specifications of the State highway authority, provided however, that except in the case of access to bridge structures, in no such case shall an entity be permitted access from the through-travel lanes, shoulders or ramps of the non-toll federal-aid fully access-controlled State highway to maintain or repair its accommodation; or

(2) would in the judgment of the State highway authority, endanger or impair any such ditches, drains, track, rails, poles, wires, pipe lines or other equipment already in place; or

(3) would, if installed longitudinally within the access control lines of such highway, be above ground after installation except that the State highway authority may consent to any above ground installation upon, under or along any bridge, interchange or grade separation within the right-of-way which installation is otherwise in compliance with this Section and any rules, regulations or specifications issued hereunder; or

(4) would be inconsistent with Federal law or with rules, regulations or directives of appropriate Federal agencies.

(c-1) As used in this subsection, "high voltage transmission line" means an electric line and associated facilities having a design voltage of 100,000 or more.

A high voltage transmission line, under the laws of this State or the ordinance of any city or county, may be constructed, placed, or maintained across any public right-of-way or along any highway, federally aided State highway, controlled access highway, interstate highway, or roadway, except as deemed necessary by the Secretary of Transportation to protect public safety or ensure the proper function of the highway. If the Secretary of Transportation denies a high voltage transmission line co-location request, the reasons for the denial must be submitted for review to the chairs and ranking minority members of the committees with jurisdiction over energy and transportation and the Chair of the Illinois Commerce Commission within 90 days of the denial.

In the case of the co-location of a high voltage transmission line with Department of Transportation highway right-of-way, the Secretary of Transportation, or the Secretary's designee, shall, upon written request, engage in coordination activities with a utility or developer to review requested highway corridors for possible permitted locations of a high voltage transmission line. A project coordinator shall be assigned within 30 days of the written request. As part of this consultation, the Department must share all known plans with a utility or developer on potential future projects that could impact the placement of a high voltage transmission line.

When a permissible route along a highway corridor has been identified by the Department and the utility or developer, the Department must engage in consultation with the utility or developer to develop a constructability report to be used by both parties when co-location projects are being planned and approved. The report must be approved by both parties prior to the Department issuing a permit for use of the highway right-of-way. The constructability report shall be prepared by the utility or developer in consultation with the Department and shall include the terms and conditions for building the co-located project. Included within the report shall be an agreed upon timeframe for which there will not be any request by the Department for relocation of the high voltage transmission line. If the Department needs a high voltage transmission line in its right-of-way relocated, it shall give the high voltage transmission line owner a 10-year advance notice.

(d) In the case of accommodations upon, under or along non-toll federal-aid fully access-controlled State highways the State highway authority may charge an entity reasonable compensation for the right of that entity to longitudinally locate, place or construct ditches, drains, track, rails, poles, wires, pipe line or other equipment upon, under or along such highway. Such compensation may include in-kind compensation.

Where the entity applying for use of a non-toll federal-aid fully access-controlled State highway right-of-way is a public utility company, municipal corporation or other public or private corporation, association or person, such compensation shall be based upon but shall not exceed a reasonable estimate by the State highway authority of the fair market value of an easement or leasehold for such use of the highway right-of-way. Where the State highway authority determines that the applied-for use of such highway right-of-way is for private land uses by an individual and not for commercial purposes, the State highway authority may charge a lesser fee than would be charged a public utility company, municipal corporation or other public or private corporation or association as compensation for the use of the non-toll federal-aid fully access-controlled State highway right-of-way. In no case shall the written consent of the State highway authority give or be construed to give any entity any easement, leasehold or other property interest of any kind in, upon, under, above or along the non-toll federal-aid fully access-controlled State highway right-of-way.

Where the compensation from any entity is in whole or in part a fee, such fee may be reasonably set, at the election of the State highway authority, in the form of a single lump sum payment or a schedule of payments. All such fees charged as compensation may be reviewed and adjusted upward by the State highway authority once every 5 years provided that any such adjustment shall be based on changes in the fair market value of an easement or leasehold for such use of the non-toll federal-aid fully access-controlled State highway right-of-way. All such fees received as compensation by the State highway authority shall be deposited in the Road Fund.

(e) Any entity applying for consent shall submit such information in such form and detail to the appropriate highway authority as to allow the authority to evaluate the entity's application. In the case of accommodations upon, under or along non-toll federal-aid fully access-controlled State highways the entity applying for such consent shall reimburse the State highway authority for all of the authority's reasonable expenses in evaluating that entity's application, including but not limited to engineering and legal fees.

(f) Any ditches, drains, track, rails, poles, wires, pipe line, or other equipment located, placed, or constructed upon, under, or along a highway with the consent of the State or county highway authority under this Section shall, upon written notice by the State or county highway authority be removed, relocated, or modified by the owner, the owner's agents, contractors, or employees at no expense to the State or county highway authority when and as deemed necessary by the State or county highway authority for highway or highway safety purposes. The notice shall be properly given after the completion of engineering plans, the receipt of the necessary permits issued by the appropriate State and county highway authority to begin work, and the establishment of sufficient rights-of-way for a given utility authorized by the State or county highway authority to remain on the highway right-of-way such that the unit of local government or other owner of any facilities receiving notice in accordance with this subsection (f) can proceed with relocating, replacing, or reconstructing the ditches, drains, track, rails, poles, wires, pipe line, or other equipment. If a permit application to relocate on a public right-of-way is not filed within 15 days of the receipt of final engineering plans, the notice precondition of a permit to begin work is waived. However, under no circumstances shall this notice provision be construed to require the State or any government department or agency to purchase additional rights-of-way to accommodate utilities. If, within 90 days after receipt of such written notice, the ditches, drains, track, rails, poles, wires, pipe line, or other equipment have not been removed, relocated, or modified to the reasonable satisfaction of the State or county highway authority, or if arrangements are not made satisfactory to the State or county highway authority for such removal, relocation, or modification, the State or county highway authority may remove, relocate, or modify such ditches, drains, track, rails, poles, wires, pipe line, or other equipment and bill the owner thereof for the total cost of such removal, relocation, or modification. The scope of the project shall be taken into consideration by the State or county highway authority in determining satisfactory arrangements. The State or county highway authority shall determine the terms of payment of those costs provided that all costs billed by the State or county highway authority shall not be made payable over more than a 5 year period from the date of billing. The State and county highway authority shall have the power to extend the time of payment in cases of demonstrated financial hardship by a unit of local government or other public owner of any facilities removed, relocated, or modified from the highway right-of-way in accordance with this subsection (f). This paragraph shall not be construed to prohibit the State or county highway authority from paying any part of the cost of removal, relocation, or modification where such payment is otherwise provided for by State or federal statute or regulation. At any time within 90 days after written notice was given, the owner of the drains, track, rails, poles, wires, pipe line, or other equipment may request the district engineer or, if appropriate, the county engineer for a waiver of the 90 day deadline. The appropriate district or county engineer shall make a decision concerning waiver within 10 days of receipt of the request and may waive the 90 day deadline if he or she makes a written finding as to the reasons for waiving the deadline. Reasons for waiving the deadline shall be limited to acts of God, war, the scope of the project, the State failing to follow the proper notice procedure, and any other cause beyond reasonable control of the owner of the facilities. Waiver must not be unreasonably withheld. If 90 days after written notice was given, the ditches, drains, track, rails, poles, wires, pipe line, or other equipment have not been removed, relocated, or modified to the satisfaction of the State or county highway authority, no waiver of deadline has been requested or issued by the appropriate district or county engineer, and no satisfactory arrangement has been made with the appropriate State or county highway authority, the State or county highway authority or the general contractor of the building project may file a complaint in the circuit court for an emergency order to direct and compel the owner to remove, relocate, or modify the drains, track, rails, poles, wires, pipe line, or other equipment to the satisfaction of the appropriate highway authority. The complaint for an order shall be brought in the circuit in which the subject matter of the complaint is situated or, if the subject matter of the complaint is situated in more than one circuit, in any one of those circuits.

(g) It shall be the sole responsibility of the entity, without expense to the State highway authority, to maintain and repair its ditches, drains, track, rails, poles, wires, pipe line or other equipment after it is located, placed or constructed upon, under or along any State highway and in no case shall the State highway authority thereafter be liable or responsible to the entity for any damages or liability of any kind whatsoever incurred by the entity or to the entity's ditches, drains, track, rails, poles, wires, pipe line or other equipment.

(h) Except as provided in subsection (h-1), upon receipt of an application therefor, consent to so use a highway may be granted subject to such terms and conditions not inconsistent with this Code as the highway authority deems for the best interest of the public. The terms and conditions required by the appropriate highway authority may include but need not be limited to participation by the party granted consent in the strategies and practices adopted under subsection (b) of this Section. The petitioner shall pay to the owners of property abutting upon the affected highways established as though by common law plat all damages the owners may sustain by reason of such use of the highway, such damages to be ascertained and paid in the manner provided by law for the exercise of the right of eminent domain.

(h-1) With regard to any public utility, as defined in Section 3-105 of the Public Utilities Act, engaged in public water or public sanitary sewer service that comes under the jurisdiction of the Illinois Commerce Commission, upon receipt of an application therefor, consent to so use a highway may be granted subject to such terms and conditions not inconsistent with this Code as the highway authority deems for the best interest of the public. The terms and conditions required by the appropriate highway authority may include but need not be limited to participation by the party granted consent in the strategies and practices adopted under subsection (b) of this Section. If the highway authority does not have fee ownership of the property, the petitioner shall pay to the owners of property located in the highway right-of-way all damages the owners may sustain by reason of such use of the highway, such damages to be ascertained and paid in the manner provided by law for the exercise of the right of eminent domain. The consent shall not otherwise relieve the entity granted that consent from obtaining by purchase, condemnation, or otherwise the necessary approval of any owner of the fee over or under which the highway or road is located, except to the extent that no such owner has paid real estate taxes on the property for the 2 years prior to the grant of the consent. Owners of property that abuts the right-of-way but who acquired the property through a conveyance that either expressly excludes the property subject to the right-of-way or that describes the property conveyed as ending at the right-of-way or being bounded by the right-of-way or road shall not be considered owners of property located in the right-of-way and shall not be entitled to damages by reason of the use of the highway or road for utility purposes, except that this provision shall not relieve the public utility from the obligation to pay for any physical damage it causes to improvements lawfully located in the right-of-way. Owners of abutting property whose descriptions include the right-of-way but are made subject to the right-of-way shall be entitled to compensation for use of the right-of-way. If the property subject to the right-of-way is not owned by the owners of the abutting property (either because it is expressly excluded from the property conveyed to an abutting property owner or the property as conveyed ends at or is bounded by the right-of-way or road), then the petitioner shall pay any damages, as so calculated, to the person or persons who have paid real estate taxes for the property as reflected in the county tax records. If no person has paid real estate taxes, then the public interest permits the installation of the facilities without payment of any damages. This provision of this amendatory Act of the 93rd General Assembly is intended to clarify, by codification, existing law and is not intended to change the law.

(i) Such consent shall be granted by the Department in the case of a State highway; by the county board or its designated county superintendent of highways in the case of a county highway; by either the highway commissioner or the county superintendent of highways in the case of a township or district road, provided that if consent is granted by the highway commissioner, the petition shall be filed with the commissioner at least 30 days prior to the proposed date of the beginning of construction, and that if written consent is not given by the commissioner within 30 days after receipt of the petition, the applicant may make written application to the county superintendent of highways for consent to the construction. In the case of township roads, the county superintendent of highways may either grant consent for the construction or deny the application. The county superintendent of highways shall provide written confirmation, citing the basis of the decision, to both the highway commissioner and the applicant. This Section does not vitiate, extend or otherwise affect any consent granted in accordance with law prior to the effective date of this Code to so use any highway.

(j) Nothing in this Section shall limit the right of a highway authority to permit the location, placement or construction or any ditches, drains, track, rails, poles, wires, pipe line or other equipment upon, under or along any highway or road as a part of its highway or road facilities or which the highway authority determines is necessary to service facilities required for operating the highway or road, including rest areas and weigh stations.

(k) Paragraphs (c) and (d) of this Section shall not apply to any accommodation located, placed or constructed with the consent of the State highway authority upon, under or along any non-toll federal-aid fully access-controlled State highway prior to July 1, 1984, provided that accommodation was otherwise in compliance with the rules, regulations and specifications of the State highway authority.

(l) Except as provided in subsection (l-1), the consent to be granted pursuant to this Section by the appropriate highway authority shall be effective only to the extent of the property interest of the State or government unit served by that highway authority. Such consent shall not be binding on any owner of the fee over or under which the highway or road is located and shall not otherwise relieve the entity granted that consent from obtaining by purchase, condemnation or otherwise the necessary approval of any owner of the fee over or under which the highway or road is located. This paragraph shall not be construed as a limitation on the use for highway or road purposes of the land or other property interests acquired by the public for highway or road purposes, including the space under or above such right-of-way.

(l-1) With regard to any public utility, as defined in Section 3-105 of the Public Utilities Act, engaged in public water or public sanitary sewer service that comes under the jurisdiction of the Illinois Commerce Commission, the consent to be granted pursuant to this Section by the appropriate highway authority shall be effective only to the extent of the property interest of the State or government unit served by that highway authority. Such consent shall not be binding on any owner of the fee over or under which the highway or road is located but shall be binding on any abutting property owner whose property boundary ends at the right-of-way of the highway or road. For purposes of the preceding sentence, property that includes a portion of a highway or road but is subject to the highway or road shall not be considered to end at the highway or road. The consent shall not otherwise relieve the entity granted that consent from obtaining by purchase, condemnation or otherwise the necessary approval of any owner of the fee over or under which the highway or road is located, except to the extent that no such owner has paid real estate taxes on the property for the 2 years prior to the grant of the consent. This provision is not intended to absolve a utility from obtaining consent from a lawful owner of the roadway or highway property (i.e. a person whose deed of conveyance lawfully includes the property, whether or not made subject to the highway or road) but who does not pay taxes by reason of Division 6 of Article 10 of the Property Tax Code. This paragraph shall not be construed as a limitation on the use for highway or road purposes of the land or other property interests acquired by the public for highway or road purposes, including the space under or above such right-of-way.

(m) The provisions of this Section apply to all permits issued by the Department of Transportation and the appropriate State or county highway authority.

(Source: P.A. 102-449, eff. 1-1-22.)