Early Acquisition and Uniform Act Questions & Answers

Posted 9/25/2012

Section 1521: Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 Amendments

Question UA-1: What are the changes to the Uniform Act in MAP-21 Section 1521?

Answer UA-1: Section 1521 of MAP-21 makes the following changes to the Uniform Act (42 U.S.C. 4601 et seq.):

• Replacement Housing Supplement for Displaced Homeowners: increases statutory limit from $22,500 to $31,000
• Replacement Housing Supplement for Displaced Tenants: increases statutory limit from $5,250 to $7,200
• In Lieu of Payment for Displaced Small Businesses: increases statutory limit from $20,000 to $40,000
• Business Reestablishment Payments for Displacement Businesses: increases statutory limit from $10,000 to $25,000
• Reduces the occupancy requirement to 90 days in order for homeowners to qualify for up to $31,000 in replacement housing payments and makes it applicable to all occupying homeowners. Homeowners will be eligible for benefits if they have occupied the dwelling at least 90 days before the initiation of negotiations.
• Provides authority for the FHWA, as the designated lead agency for implementation of the Uniform Act, to adjust, through regulation, the statutory benefit levels for replacement housing payments for homeowners and tenants, fixed payment for nonresidential moving expenses (In Lieu payment) and reestablishment for business. Specifies that the adjustments can be due to: increases in the cost of living, inflation, or other factors which indicate that the payments should be adjusted to meet the policy objectives of the Uniform Act.
• Requires that each Federal agency subject to the provisions of the Uniform Act provide FHWA, as the lead agency under Uniform Act, an annual summary report that describes the agency's real estate acquisition and relocation assistance activities conducted over the course of the year.
• Provides for enhanced lead agency services by requiring the lead agency and other Federal agencies subject to the Uniform Act to take certain steps to maintain and improve their capacity to manage and oversee their relocation and acquisition programs. It contains a requirement that each Federal agency, other than the lead agency, enter into an MOU with the lead agency, within one year, that:

"(1) provides for periodic training of the personnel of the Federal agency, which in the case of a Federal agency that provides Federal financial assistance, may include personnel of any non-Federal displacing agency that receives Federal financial assistance;

"(2) addresses ways in which the lead agency may provide assistance and coordination to the Federal agency relating to compliance with the Act on a program or project basis; and

"(3) addresses the funding of the training, assistance, and coordination activities provided by the lead agency."

Question UA-2: When do the new Uniform Act statutory benefit limits become effective?

Answer UA-2: The four new benefit levels are effective 2 years after the date of enactment of MAP-21 (as defined in MAP-21), which is October 1, 2014.

Section 1301(b)(4)(C) Uniform Act Relocation Streamlining Demonstration Program

Question UA-3: Section 1301(b)(4)(C) references a demonstration program to streamline the relocation process. What would be the purpose of the relocation streamlining demonstration program?

Answer UA-3: The purpose of the demonstration program would be to determine if some of the processes currently required when providing relocation assistance to displaced occupants can be streamlined in a way that accelerates project delivery by permitting a lump-sum payment for acquisition and relocation if elected by a displaced occupant, without reducing the benefits and protections currently provided to displaced occupants. This Section of MAP-21 is currently under review and further guidance will be provided in the future.

Section 1302 Advance Acquisition of Real Property Interests

Question AA-1: In general, how does Section 1302 of MAP-21 change 23 U.S.C. 108, which governs advance acquisitions (also referred to in Section 1302 as "early acquisitions")?

Answer AA-1: Section 1302 clarifies and expands the types of property interests that may be federally-funded under 23 U.S.C 108. Section 1302 also revises the conditions under which property may be acquired prior to the completion of the National Environmental Policy Act (NEPA) review of the project that could use the property. The conditions vary, depending upon whether the early acquisitions will involve Federal funding, or will be carried out entirely at State expense.

Question AA-2: When may SDOTs begin to use the new flexibilities?

Answer AA-2: The new provisions take effect on October 1, 2012. SDOTs should develop policies and procedures for using these flexibilities. As part of the certification under 23 U.S.C. 108(d), which requires the concurrence of the Secretary, the States will be expected to describe how the proposed early acquisition project satisfies the criteria listed in 23 U.S.C. 108(d)(3)(B).

Question AA-3: Does MAP-21 Section 1302 change the types of real property interests covered by 23 U.S.C. 108?

Answer AA-3: Yes. MAP-21 provides that federally-funded early acquisitions may include acquisition of any interest in land, a contractual right to acquire any interest in land, and any other similar action to acquire or preserve rights-of-way for a transportation facility. (23 U.S.C. 108 (d)(1))

Question AA-4: Are those displaced by a State's use of section 108(d) early acquisition flexibilities eligible for Uniform Act relocation assistance benefits and services?

Answer AA-4: Property owners who sell their property to an SDOT using the 23 U.S.C. 108(d) authorities and who are displaced as a result of that acquisition are displaced persons under the Uniform Act. Tenants who will be displaced as result of the acquisition of the property also are displaced persons so they are eligible as long as they meet the criteria.

Question AA-5: Does 23 U.S.C. 108 change when Federal reimbursement is available for an early acquisition?

Answer AA-5: Yes. Section 1302 amends 23 U.S.C. 108 to allow broader Federal-aid participation in acquisitions carried out prior to completion of NEPA for the planned or anticipated project for which the properties could be used. Section 108(c), as amended by MAP-21, sets out the conditions under which States that carry out early acquisitions entirely with State funds may later seek Federal-aid reimbursement for the costs of those acquisitions. Section 108(d), added by MAP-21, establishes the conditions and procedures under which States may obtain approval to undertake early acquisitions using Federal-aid funding.

Question AA-6: How does Section 1302 change the requirements that apply to Federal-aid reimbursements of 100% State-funded early acquisitions?

Answer AA-6: Section 1302 eliminated the requirement in former 23 U.S.C. 108(c)(2)(G) [now section 108(c)(3)(G)] that the Secretary and the EPA Administrator concur that the early acquisition did not influence the environmental review of the project, the decision about the need to construct the project, or the selection of the project design or location. As amended by MAP-21, the Secretary must make the determination.

Question AA-7: Are there requirements States must meet under new 23 U.S.C. 108(d) if they want to use Federal funds to carry out early acquisitions?

Answer AA-7: Yes. Before the Secretary authorizes the use of apportioned funds for early acquisition, the State must certify in writing to the items listed below. The Secretary must concur with the State's certification. The certification must specify that:

1. The State has authority to acquire the real property interest under State law; and
2. The acquisition of the real property interest-
   1. is for a transportation purpose;
   2. will not cause any significant adverse environmental impact;
   3. will not limit the choice of reasonable alternatives for the project or otherwise influence the decision of the Secretary on any approval required for the project;
   4. does not prevent the lead agency from making an impartial decision as to whether to accept an alternative that is being considered in the environmental review process;
   5. is consistent with the State transportation planning process under section 135;
   6. complies with other applicable Federal laws (including regulations);
   7. will be acquired through negotiation, without the threat of condemnation; and
   8. will not result in a reduction or elimination of benefits or assistance to a displaced person required by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.) and title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).

Question AA-8: Does 23 U.S.C. 108(d) proscribe the method of acquisition in any way when Federal funds are used to carry out the early acquisition?

Answer AA-8: Yes. Section 1302 in MAP-21 specifies that federally-funded acquisitions will be carried out through negotiation without the threat of condemnation. This requirement does not apply when a State does an early acquisition pursuant to section 108(c)(1).

Question AA-9: If a State wishes to use Federal funds to carry out early acquisitions under 23 U.S.C. 108(d), are the early acquisitions subject to planning or NEPA requirements?

Answer AA-9: Yes. The early acquisition must be consistent with the statewide planning process under 23 U.S.C. 135, and the early acquisition must be included as a project in the TIP/STIP under 23 U.S.C. 134 and 135. The "early acquisition project" may consist of the acquisition of a specific parcel, a portion of a transportation corridor, or an entire transportation corridor. The early acquisition also must be reviewed under NEPA, and the new statute provides that the early acquisition shall be treated as having independent utility for purposes of NEPA review.

Question AA-10: Does using Federal funds to carry out an early acquisition under 23 U.S.C. 108(d) affect how NEPA reviews are handled for future projects?

Answer AA-10: Section 108(d)(4)(B)(ii) expressly provides that the early acquisition "...shall not limit consideration of alternatives for future transportation improvements with respect to the real property interest."

Question AA-11: Does 23 U.S.C. 108(d) speak to how the early-acquired property is managed or used before completing the NEPA review for the larger project?

Answer AA-11: Yes. Real property interests acquired with Federal funds under the new 23 U.S.C. 108(d) may not be developed in anticipation of the project until all required environmental reviews for the project have been completed. This prohibition applies to demolition as well as other activities.

Question AA-12: How have the requirements changed with respect to repaying Federal funds?

Answer AA-12: The provisions in 23 U.S.C. 108(a)(2) are unchanged. However, MAP-21 added a new provision (section 108(d)(7)) that requires real property interests acquired early under section 108 be incorporated into a project eligible for surface transportation funds within the 20-year period allowed under section 108(a)(2). If that does not happen, then the Secretary must offset the amount reimbursed for the real property interests against funds apportioned to the State.