Directional drilling by state
Directional Drilling Insurance in New Hampshire
What New Hampshire law actually does to a fiber bore — a contract rule borrowed almost word for word from Massachusetts, sitting above a dig law that is nothing like its neighbor’s: a hundred-foot trigger, white premarking, and a missing ticket that becomes prima facie negligence.
New Hampshire borrowed its indemnity rule from the state next door. RSA 338-A:2 and the Massachusetts section it follows use the same model language almost word for word, so the scope question that occupies most of these pages — whether a statute written around buildings reaches a bore under a road — is settled the same way in both. If you work both states, that half of your subcontract analysis travels.
The dig law does not travel at all, and that is the reason for this page. Massachusetts and New Hampshire diverge completely once you leave the contract: the trigger here is a distance rather than a job description, you mark the ground before you call rather than after, and a missing ticket is prima facie evidence of your negligence. RSA 338-A asks who caused it and RSA 374 asks where you were standing. The work being done there is covered on the Directional Drilling Insurance pillar and the pollution liability page.
Boring in New Hampshire? The ticket duty attaches at 100 feet from a facility, whatever the bore intends to approach.
Get a Free QuoteA rule borrowed from across the border
RSA 338-A:2 was enacted in 2004 and tracks the Massachusetts provision closely enough that the two should be read as one drafting family — a point worth knowing before assuming a New England subcontract needs separate analysis in each. It reaches any provision for or in connection with a contract for construction and six further categories of work — reconstruction, installation, alteration, remodeling, repair, demolition or maintenance — and then keeps going. The clause that matters to a bore crew is the one that follows: “… including without limitation, excavation, backfilling or grading, on any building or structure, whether underground or above ground, or on any real property, including without limitation any road, bridge, tunnel, sewer, water, or other utility line.” The ellipsis stands for the seven categories just named.
Three phrases do the work. Including without limitation appears twice, so neither list is exhaustive. Whether underground or above ground disposes of the argument that the section contemplates surface construction. And or other utility line is a category, not an enumeration — it follows sewer and water rather than excluding what is unlike them.
A directional bore installing conduit in a road right-of-way is inside that language on its face, so this page carries no paragraph saying the boundary is unsettled. It is worth being accurate about how unusual that is: it is not unique. Our Massachusetts page reaches the same conclusion from the same words. What is unusual is the pairing — two adjacent states sharing a settled contract rule while their dig laws have almost nothing in common.
The test is who caused it
What 338-A:2 voids is a provision requiring any party to indemnify any person or entity for injury to persons or damage to property not caused by the party or its employees, agents, or subcontractors.
That is a causation test applied to you. It does not ask whether the party you are indemnifying was solely negligent, or negligent in whole or in part — the two formulations that decide the question in most other states. It asks whether the harm was caused by you, your employees, your agents, or your subcontractors. Harm you did not cause cannot be shifted onto you by contract.
The practical consequence for a bore crew is that your own subcontractors are inside the protected circle. A clause making you answer for damage caused by a party genuinely outside your control runs against the section; a clause making you answer for your own sub does not, because a sub’s conduct is expressly within the causation the statute attributes to you.
What the section does not address. It says nothing about insurance. It neither preserves the validity of insurance contracts, as many states expressly do, nor voids a requirement that you procure coverage for someone else, as Montana and Louisiana do. We are not going to tell you what that silence implies for an additional-insured endorsement in a New Hampshire subcontract, because the section does not speak to it and reading a carve-out out of silence is how contractors end up priced against a rule nobody wrote.
One neighboring provision is worth knowing. RSA 338-A:1 makes any agreement whereby an architect, engineer, surveyor or their agents or employees is held harmless or indemnified for damages arising out of circumstances giving rise to legal liability by reason of negligence on the part of those persons against public policy, void and wholly unenforceable. It is drafted more absolutely than 338-A:2, and on a build with an engineering firm in the chain both sections can be in play at once.
One hundred feet, and the clock behind it
The duty in RSA 374:51(I) attaches by geometry: no person shall perform an excavation within 100 feet of an underground facility, except in an emergency, without first giving notification. In an emergency, notification is given at the earliest practicable moment.
That is worth pausing on, because it is not how most states express the trigger. The obligation does not depend on whether the bore is expected to come near a line — it depends on whether the work is within a hundred feet of one. On a build in a developed corridor almost everything is.
The window. Under 374:51(II) notice to the damage prevention system must be given at least 72 hours before the proposed excavation, not including Saturdays, Sundays and legal holidays, and no more than 30 days before it. Under 374:51(VI) the notification is valid for 30 calendar days from the date and time the system confirms it. Under RSA 374:49 the system itself operates during regular business hours throughout the year, except Saturdays, Sundays and legal holidays — so the 72 hours are business hours in a business-day system, and a Thursday call does not produce a Sunday start.
Blasting is noticed separately. Under 374:51(VII), an excavator who knows blasting will be required must tell the system when giving notice of the excavation, and must give at least 24 hours notice before any blasting, not counting weekends and legal holidays. Where an unanticipated obstruction prevents further excavation without blasting, separate notice must be given not less than 4 contiguous hours in advance, excluding the hours of 4:00 p.m. to 6:00 a.m. on weekdays and all of Saturdays, Sundays and legal holidays. On a rock-shelf route that is a scheduling constraint measured in hours rather than days.
Mark it before you call it
New Hampshire asks for a step before the ticket. Under RSA 374:51(IV) the excavator must premark the area prior to complying with the notification requirement — identifying the perimeter of the proposed excavation site by marking it in white paint, stakes, or other suitable white markings on non-paved surfaces. Premarking that interferes with traffic or pedestrian control, or that is misleading to the general public, is not acceptable.
And then the exemption that covers most fiber work. Premarking is not required on any continuous excavation over 100 feet in length, or on a pole replacement within 5 feet of an existing location. But the obligation does not disappear — where the exemption applies, the excavator must communicate the perimeter by a description of the area or construction plans, or by an on-site meeting with affected operators, or by other suitable means acceptable to the parties. Under 374:51(V) the excavator must identify which of those methods it is using when it gives notice.
A linear route is over a hundred feet almost by definition, so for most bores in this state the real obligation is not paint. It is a documented route description or a site meeting, chosen and declared at the time of the call — and it is the kind of obligation that is easy to satisfy and easy to leave no record of.
Once the operator has marked, RSA 374:53 puts the markings in your care: once an operator has marked the location of its facilities in the area of an excavation, the excavator is responsible for maintaining the markings. The same section relieves an operator of locating facilities it does not own — which, it says, may include facilities running from a house to a garage or other outbuilding.
Prima facie negligence, and what answers it
RSA 374:55(I) is the provision that should shape how a New Hampshire crew keeps its records. Proof that an excavation has been made without compliance with the notice requirement of RSA 374:51, and that damage to an underground facility has occurred, is prima facie evidence in any court or administrative proceeding that the damage was caused by the negligence of the excavator.
Be precise about what that is. It is an evidentiary rule, not a conclusion. Prima facie evidence establishes the fact unless it is answered, so the practical effect is that the contractor arrives already carrying the burden of coming forward. It is a lighter provision than a statute that deems the conduct negligent outright, and it is a heavier one than a rule making the missing ticket merely relevant.
What answers it is contemporaneous and documentary: the ticket and its confirmation time, the premarking method declared under 374:51(V) and the evidence that it was performed, the photographs of what was marked, and the depth and alignment records for the shot. None of that can be assembled after a claim arrives.
When the operator owes you
RSA 374:55 allocates in both directions, and the pivot is whether the line was marked.
Toward the operator. Under 374:55(IV), if underground facilities are damaged because an operator did not mark them as required by RSA 374:53, the operator is subject to penalties, is liable for damage sustained to its facilities, and in addition is liable for any damages incurred by the excavator as a result of the operator’s failure to mark. That final clause is the one contractors overlook. Standby time, remobilization, the schedule consequences of a strike on an unmarked line — those are damages incurred by the excavator, and the statute makes the operator answerable for them.
Toward you. Under 374:55(V), if marked facilities are damaged, the excavator is subject to penalties and liable for the cost of repairs. Under 374:55(VI) an excavator who damages a facility and fails to notify the operator, or backfills without permission as RSA 374:54 requires, is subject to penalties as well — and 374:54 is unambiguous that the excavation shall not be backfilled without first receiving permission from the operator whose facility was damaged.
Under 374:55(VII) either side can start the process: any excavator or operator which suffers damage resulting from a violation may petition the department to initiate an enforcement action. A contractor holding a good marking record is not limited to defending one.
A program or a penalty
Under RSA 374:55(VIII) a party that does not comply with RSA 374:51 through 374:54 is required either to complete an underground facility damage prevention program approved by the department, or to pay a civil penalty of up to $500. The penalty rises to up to $5,000 where the party previously violated those sections within the prior 12 months, or where the violation results in bodily injury or property damages exceeding $50,000, excluding utility costs.
The election is the interesting part. For a first, low-consequence lapse the statute offers training instead of money, which means the cheapest outcome available to a crew is one it has to actively take up. The escalator is what to plan against: a second lapse inside a year, or one expensive strike, moves the ceiling by a factor of ten.
And RSA 374:56 supplies the remedy that is not money at all. Where a person is making or proposes to make an excavation in a negligent or unsafe manner which may result in damage to an underground facility, the operator which owns or maintains that facility may commence an action for a temporary restraining order or injunction to prevent the excavation. Note the threshold: the section reaches work that may result in damage, and it reaches a proposal as well as work under way.
One clear answer and one open question
The contractors who reach us in New Hampshire are usually mid-project, holding a certificate a prime has refused and an agent who cannot explain why re-issuing it will not help. The unusual thing about this state is that the contract question has a clear answer and the field question does not. Because RSA 338-A:2 names utility lines and turns on who caused the harm, the subcontract analysis here is short — while RSA 374:55(I) means the field record is doing the heavy lifting the contract does not have to. Put the effort into the ticket and the premarking method, not into the clause.
Pollution liability is outside RSA 374 entirely. The chapter governs damage to facilities and the penalties for causing it; drilling fluid surfacing into a river, a wetland or a storm drain is an environmental loss the general liability form excludes. Contractors equipment matters because an injunction under RSA 374:56 can stop work on a proposal alone, and because 374:55(IV) addresses what an operator owes you rather than anything about your own machine. General liability is specified against the contract — and here the statute has already narrowed what that contract can lawfully ask of you.
The hundred-foot trigger and the premark-then-call order in RSA 374 describe fieldwork. They do not describe a licensing position, the New Hampshire markets or a traveling payroll, and those are on our New Hampshire fiber contractor insurance page.
Why Fiber Optic Guard Insurance
What we actually do on a New Hampshire file: read the indemnity clause against a causation test rather than a sole-negligence one, because 338-A:2 asks only whether the harm was caused by you or your subs; check whether an engineering firm in the chain brings 338-A:1 into play, since that section is drafted absolutely; confirm the ticket exists wherever the work runs within 100 feet of a facility, whatever the bore intended to approach; make sure the premarking method for a run over 100 feet was declared at the time of the call and evidenced afterwards, because that is the obligation most crews satisfy without recording; and build the marking file to answer 374:55(I) and to support a claim under 374:55(IV) if the line was never marked at all. If your contract carries a broad indemnity clause, send it — in this state we can usually tell you where it stands.
Learn more
The operating model and its coverage
Other fiber operating models
New Hampshire
Primary sources cited on this page
Frequently asked questions about New Hampshire directional drilling insurance
Does New Hampshire’s anti-indemnity statute apply to a fiber bore?
Yes, and this is one of the few states where that sentence can be written without qualification. RSA 338-A:2 applies to any provision in a contract for construction and related work — the section lists seven categories and then continues "… including without limitation, excavation, backfilling or grading, on any building or structure, whether underground or above ground, or on any real property, including without limitation any road, bridge, tunnel, sewer, water, or other utility line." The full enumeration is quoted further up this page; the ellipsis here stands in for it. Read the three open-ended phrases: "including without limitation" appears twice, "whether underground or above ground" removes the surface question, and "or other utility line" is a category rather than a list. A directional bore placing conduit in a road right-of-way is inside that language without an analogy having to be drawn. Most states in this country describe their covered work as a building, a structure, an appurtenance and an appliance, and leave a contractor guessing whether linear utility work qualifies. New Hampshire does not.
What exactly does RSA 338-A:2 void?
A provision that requires any party to indemnify any person or entity for injury to persons or damage to property not caused by the party or its employees, agents, or subcontractors. The test is causation by you, not the degree of fault of the party you are indemnifying. That is a different rule from the sole-negligence line several states draw, where a broad clause survives as soon as the contractor is even minimally at fault. Here the question is simply whether the harm was caused by you, your employees, your agents, or your subcontractors. If it was not, a clause making you pay for it is void. Note also what the section does not say: it is silent on insurance. It does not preserve insurance contracts the way many states expressly do, and it does not void an insurance-procurement requirement the way Montana and Louisiana do. We are not going to tell you what that silence means, because the section does not say.
Is there a separate rule for designers in New Hampshire?
There is, and it sits in the section immediately before. RSA 338-A:1 provides that any agreement or provision whereby an architect, engineer, surveyor or his agents or employees is sought to be held harmless or indemnified for damages and claims arising out of circumstances giving rise to legal liability by reason of negligence on the part of any said persons is against public policy, void and wholly unenforceable. That is a flat prohibition on indemnifying a design professional for its own negligence, and it is drafted more absolutely than 338-A:2 — "void and wholly unenforceable" rather than simply void. On a fiber build with an engineering firm in the chain, the two sections do different work and a subcontract may run into both.
Does New Hampshire’s damage prevention law cover buried fiber?
Expressly. RSA 374:48(VII) defines an underground facility as any property which is buried, placed below ground, or submerged on a public way, private property, right-of-way, easement, public street, or other public place and is being used or will be used for the conveyance of cable television, electricity, gas, sewerage, steam, telecommunications, or water. Telecommunications and cable television are both named. RSA 374:48(IV-a) then defines an operator to include any public utility as defined by RSA 362:2 or RSA 362:4 and any cable television system as defined by RSA 53-C:1. The work is named on the other side too: RSA 374:48(III) defines excavation to include drilling, grading, boring, milling, trenching, tunneling, and cable or pipe plowing, among other operations. Drilling, boring and cable plowing are the three terms that describe a fiber build.
How much notice does New Hampshire require before a bore?
The trigger is a distance and the clock is 72 hours. Under RSA 374:51(I), no person shall perform an excavation within 100 feet of an underground facility, except in an emergency, without first giving notification; in an emergency, notification is given at the earliest practicable moment. Under 374:51(II), notice to the damage prevention system must be given at least 72 hours before the proposed excavation, not including Saturdays, Sundays and legal holidays, and no more than 30 days before. Under 374:51(VI) the notification is valid for 30 calendar days from the date and time the system confirms it. The 100-foot trigger is the part crews from other states misjudge: the duty attaches by proximity to a facility rather than by the character of the work, so a bore that never intends to approach a line still requires a ticket if it runs within that radius.
What is premarking, and does it apply to a long bore?
Premarking is a step New Hampshire requires before you call, and the exemption for long runs is the part worth knowing. Under RSA 374:51(IV), prior to complying with the notification requirement an excavator must premark the area — identifying the perimeter of the proposed site by marking it in an appropriate manner in white paint, stakes, or other suitable white markings on non-paved surfaces. No premarking is acceptable if the marks interfere with traffic or pedestrian control or are misleading to the general public. Premarking is not required on any continuous excavation over 100 feet in length, or any pole replacement within 5 feet of an existing location — but where that exemption applies the excavator must instead communicate the perimeter by a description of the area or construction plans, or hold an on-site meeting with affected operators, or another suitable means acceptable to the parties. A linear fiber route is almost always over 100 feet, so for most bores the obligation is not white paint but a documented communication of the route, and under 374:51(V) the excavator must identify which method it is using when it gives notice.
What happens if I dig without notice and hit something?
The statute decides the negligence question before anyone argues it. RSA 374:55(I) provides that proof that an excavation has been made without compliance with the notice requirement of RSA 374:51, and that damage to an underground facility has occurred, shall be prima facie evidence in any court or administrative proceeding that the damage was caused by the negligence of the excavator. Read that as an evidentiary rule rather than a conclusion: prima facie evidence establishes the point unless it is met, so the burden of coming forward shifts to the contractor. It is not a finding that cannot be answered, and it is not the same as a statute that deems the conduct negligent outright — but it means the file starts against you, and what answers it is the contemporaneous record of what the crew actually did.
Can the operator ever owe me?
Yes, and New Hampshire states it more directly than most. Under RSA 374:53 an operator must mark the location of its underground facilities within 72 hours after receipt of notice, not including Saturdays, Sundays, and legal holidays. Under RSA 374:55(IV), if underground facilities are damaged because an operator did not mark as required, the operator is subject to penalties, is liable for damage sustained to its own facilities, and in addition is liable for any damages incurred by the excavator as a result of the operator’s failure to mark. That last clause runs toward the contractor: standby time, remobilization, and the consequences of a strike caused by an unmarked line are damages incurred by the excavator. Note the counterweight in the same section — 374:55(V) provides that if marked facilities are damaged, the excavator is subject to penalties and liable for the cost of repairs. The allocation turns on whether the line was marked, which is why the marking record is the document that decides the money.
How large are New Hampshire’s penalties?
Modest in dollars, and structured as an election rather than a flat fine. Under RSA 374:55(VIII), any excavator or operator that does not comply with RSA 374:51 through 374:54 is required either to complete an underground facility damage prevention program approved by the department, or to pay a civil penalty of up to $500. The penalty may be up to $5,000 if the party previously violated those sections within the prior 12 months, or if the violation results in bodily injury or property damages exceeding $50,000, excluding utility costs. Homeowners excavating on their own property, and legal occupants of residential property excavating at their primary residence with the owner’s permission, are outside the paragraph. Separately, RSA 374:56 lets an operator that owns or maintains a facility commence an action for a temporary restraining order or injunction against a person making or proposing to make an excavation in a negligent or unsafe manner which may result in damage — a remedy that stops the work rather than pricing it.
Insure your New Hampshire bores on a record the statute already asked for
Send the route, the ticket, and the subcontract. In New Hampshire the clause is usually the easy half.
Get a Free Quote