December 09, 2019

Use of Drones on Construction Projects: Legal and Contractual Considerations

Jacqueline DeCamara and Daniel D. McMillan

Unmanned aerial vehicles (“UAVs” or “drones”) are being employed on construction projects in a variety of ways, and as technology advances and regulations become more user-friendly, the use of drones on construction projects will continue to increase.  So, it is important that construction lawyers become familiar with the use of drones, contracting and insurance considerations when drones are to be used on projects, and how data generated by drones can be used by counsel to prove or disprove construction claims.  To that end, this article explores some of the ways drones are being used for construction projects, highlights certain FAA regulations, and identifies other legal and contractual considerations associated with using drones on a construction site. 

Drone Use in Construction

On a construction site, drones can assist with pre-construction site review; aerial surveying and mapping; measurement of excavation depths and material stockpiles; monitoring and documenting jobsite progress; productivity, safety and security; and inspecting work that is difficult or dangerous for human inspectors to reach. Drones provide a bird’s eye view of expansive project sites that is not ascertainable from the ground.  Data taken by drones can be used to assist a design team in understanding the project site, orienting structures, and locating utilities.  Drones can also assist owners and contractors in inspecting both long horizontal projects, such as power lines, pipelines, and rail lines, as well as tall vertical structures, such as bridges and high rises.  Contractors and owners can use imagery and data collected by drones over time to visualize progress of work, monitor the location of workers and equipment, and assess and document the impact of weather, force majeure events, or accidents on the job site.

Drone software systems can provide convenient and time saving desk top or mobile device access to job site conditions and help facilitate rapid assessment and response to developments in the field.  In addition to GPS and high resolution cameras, drones can be equipped with advanced technologies, such as LiDAR (remote sensing pulsed laser to detect objects and measure distances), or thermal, moisture, or gas sensors. With the right software, users can integrate imagery and data into CAD, BIM or other 3D models or use drones in conjunction with other tools, such as land based 3-D laser surveying and equipment and inventory tracking devices.  After the construction project is completed, the imagery can be useful to construction counsel in post-project dispute resolution and for owners to promote sales and leasing of the completed project.

While drones have potential to improve efficiency and safety on construction projects, their use is regulated and carries risks both in the use of the drones themselves and compliance risks associated with statutory and regulatory restrictions on the use of drones.  Accordingly, it is important for construction lawyers and project management teams to understand the applicable laws, implement proper operational procedures, negotiate appropriate contractual provisions, and procure appropriate insurance coverage.

Highlights of FAA Regulations

In 2016, the Federal Aviation Administration (“FAA”) introduced regulations for the commercial use of small unmanned aircraft systems, 14 C.F.R. Part 107 (“Part 107”), that apply to commercially used unmanned aircraft weighing no more than 55 pounds. Part 107 was developed rather quickly in response to concerns about the burgeoning use of drones and safety issues.  The regulations continue to evolve, so construction lawyers and project participants should check regularly for updated Federal, state, and local regulations.  This section highlights several important provisions of Part 107, which must be followed, though operators may apply to the FAA for waivers of certain provisions.  As a general matter, however, if a contractor or owner is planning to use drones on a project and will need to obtain waivers from the FAA, that process typically takes months.

First, drones must be registered with the FAA and flight operation must be headed by a “remote pilot in command” (“RPIC”) who has been issued a remote pilot certificate by the FAA. The controls for the drone may only be operated by the RPIC or a person under the RPIC’s direct supervision where the RPIC can immediately re-take the controls. Drones may not be controlled from a moving vehicle, except in sparsely populated areas, and a drone’s groundspeed may not exceed 100 mph.  Flight altitude may not exceed 400 feet unless the drone is flying within 400 feet of a structure.  Significantly, drones may not fly over people unless those persons are directly participating in the operation of the drone or are located under a covered structure or vehicle that provides protection.  Thus, unless the FAA grants a waiver, the drone may not fly over project site workers or visitors.

Drone flights may only take place during the day; however, if the drone is equipped with  anti-collision lights, it may also fly during civil twilight.  The RPIC and the person operating the flight controls, or a “visual observer” (if one is used), must maintain an unaided visual line of sight with the drone in order to monitor it and its surrounding air space at all times.  Drones may only be flown when there is at least three miles of visibility from the