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Federal–aid Highway Program Stewardship/Oversight Agreement

South Dakota attachment

Encroachments within the Right of Way

Required Actions

  • Approve State determination for the disposition of encroachments in the Right of Way. (23 CFR 1.23 & 23 CFR 710.403(a))
Disposition of Encroachments in the Right of Way
Due Date(s): Project by Project as required
Control Document: 23 CFR 1.23 & 23 CFR 710.403(a)
SDDOT agrees:
  • As early as possible before the SDDOT requests authorization for construction of a project the appropriate Area Office staff will conduct a survey of a prospective project to determine if any encroachments exist within the project rights of way.
  • The appropriate Area Engineer will determine as nearly as possible where the right of way boundary is located.
  • On maintenance type of projects (e.g. chip/sand/crack sealing, PCC Pavement repair, etc.) when it is not feasible to conduct a detailed encroachment survey, the Area Office staff might conduct a visual inspection in the rural areas, where there is less likelihood that encroachments exist, and a more detailed survey in urban and other higher risk areas.
  • All encroachments will be measured and photographed from the Right of Way line to determine the extent of the encroachment.
  • The Area Engineer will submit all the photographs and measurements along with their suggested disposition for the encroachment to the FHWA Realty Specialist.
  • The Region Engineer may allow an encroachment to remain if it is determined that it is in the public interest to remain, or the removal would pose an extreme hardship on the property owner. In addition, the encroachment must not impair the highway or interfere with the free and safe flow of traffic, and must be located outside the clear zone as defined in the most recent edition of the AASHTO Roadside Design Guide.
  • Permits for an encroachment to occupy the right of way will be issued by the Area Engineer or Region Engineer. All Revocable Occupancy Permits will be recorded by the County Register of Deeds as an encumbrance to the property to ensure that if a property is sold potential buyers are aware that an encroachment exists.
  • All property owners of those permitted encroachments will be notified by the Area Office staff that in the event that the encroachment needs to be replaced, upgraded, refurbished for any reason, including an act of God, it must be relocated and installed outside of the right of way.
  • Area Office staff will review the suggested dispositions and will recommend to FHWA to concur in the disposition.
FHWA agrees:
  • The Right of Way Officer will review the submission and consult with the appropriate Operations Engineer, Safety Engineer and Operations Team Leader.
  • The Right of Way Officer will either concur, or not-concur, in the request within 10 working days of receipt.
SDDOT Division Director of Operations
Todd D. Jorgensen   Date
FHWA Assistant Division Administrator


Firas Ibrahim
Office of Program Administration
E-mail Firas

Updated: 06/10/2011

United States Department of Transportation - Federal Highway Administration