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FHWA Scan on Advance Acquisition and Corridor Preservation, Richmond, Virginia

September 21 and 22, 2005

The Office of Real Estate Services (HEPR) of the Federal Highway Administration (FHWA) sponsored a domestic Scan on the subject of Advance Acquisition and Corridor Preservation on September 21 and 22, 2005, in Richmond, Virginia. The purpose of the Scan was for State DOT officials to share experiences and best practices in the areas of Advance Acquisition and Corridor Preservation. Another purpose was for the FHWA to learn how it can remove constraints to the use of Advance Acquisition, streamline the Advance Acquisition process, and assist State Right-of-Way staff in their efforts to more effectively employ Advance Acquisition as a tool for preserving potential highway corridors.

Over 30 representatives from 14 States and the FHWA attended the full Scan. Scan activities included:

The program began with an overview of the Scan agenda by David Walterscheid, Realty Specialist with the HEPR. John Rollison, Special Assistant to the Commissioner of the Virginia Department of Transportation (VDOT), then welcomed the participants on behalf of the State of Virginia and briefly discussed Virginia's highway system and the importance of partnering with the FHWA to reduce the cost of highways in Virginia, in part through the use of Advance Acquisition. Irena Rico, Assistant Division Administrator for the FHWA's Virginia Division, also welcomed participants and urged State DOT participants to let the FHWA know how it can assist them in better utilizing Advance Acquisition and in streamlining the Advance Acquisition process. Janet Myers, Program Manager for the Office of Real Estate Services, observed that this Scan provides the states and the FHWA two days to think about how to improve the Advance Acquisition process and stated that she looked forward to hearing ideas from the States on their "future vision" for Advance Acquisition. Finally, Scan participants introduced themselves and briefly discussed Advance Acquisition activities within their states.

Group Discussion: Current Practices and Barriers to Effective Use of Advance Acquisition and Corridor Preservation

The first Scan activity was a group discussion on best practices in the area of Advance Acquisition and Corridor Preservation. Prior to the group discussion, David Walterscheid presented an overview of what is currently permitted under Federal statutes and regulations with respect to Advance Acquisition and Corridor Preservation, and provided participants with handouts outlining Federal laws and FHWA guidance on these topics. In particular, David discussed the various types of Advance Acquisition and the procedures for receiving credit or reimbursement for costs associated with purchasing parcels.

Two Scan participants from State DOTs were chosen to initiate the group discussion by giving brief, informal talks about their States' Advance Acquisition programs. The remainder of the participants were encouraged to ask questions and to provide input on Advance Acquisition in their own States along the way. Once the discussion leaders completed their talks, the floor was opened up for discussion by the full group on current practices in Advance Acquisition. The goal of this format was to encourage active dialogue among Scan participants.

The first discussion leader was Gerry Gallinger, Director of Real Estate Services for the Washington State Department of Transportation (WSDOT), who discussed current Advance Acquisition practices in Washington. Gerry identified funding as the key to the success of any Advance Acquisition program, observing that States need a dedicated source of funds that they can use for early acquisition of parcels. In Washington, the legislature established a revolving fund 15 years ago for the purpose of Advance Acquisition and appropriated $10 million to the fund. Several constraints exist to using the fund, according to Gerry. One constraint is that the project must be included in the State's six-year transportation plan, but cannot be more than 10 years away from construction. Once WSDOT commits to purchasing a parcel for a particular project, money is not withdrawn from the fund until the parcel is actually purchased. One challenge Washington faces is that it sometimes appears that the fund is flush with cash when in fact the money in the fund has already been committed. A few years ago, Gerry noted, the fund was raided to balance the State DOT budget and, as a result, the fund's balance fell below commitments to purchase. A participant from Minnesota commented that Minnesota also has an Advance Acquisition fund, which is administered through the Minneapolis-St. Paul MPO and can be replenished through the MPO's taxing authority. David Walterscheid observed that the FHWA once had a revolving fund for the purpose of Advance Acquisition, but that TEA-21 did away with that fund. Leonard Hill, Right-of-Way Manager for the Idaho DOT, commented that the FHWA fund did not function well and that what is needed is a source of Federal money up front for the purpose of Advance Acquisition.

The second discussion leader was Richard (Dick) Hunter, Chief of the Illinois Department of Transportation's Bureau of Land Acquisition, who discussed Corridor Preservation in Illinois. Dick stated that up to now Illinois has had sufficient State money for Advance Acquisition for Corridor Preservations purposes. Illinois has had a Corridor Preservation statute in place since 1970. Under the statute, once a corridor is established and recorded and the property owner is notified, the owner must give the State notice before making any improvements to the property. If the owner fails to provide such notice, the State has no obligation to pay for the improvements. The State DOT recently established two corridors west of Chicago in an effort to stay ahead of growth. Dick stated that local property owners are opposed to the corridors because they are opposed to commercial development in the area. Some property owners try to increase the value of their land by platting subdivisions as soon as they learn that a corridor mapping is in progress. Landowners have sued Illinois in state court to invalidate the Corridor Preservation statute. According to Dick state trial and appellate courts have upheld the statute so far, holding that the establishment of a highway corridor is not a taking. The Kelo case, which was recently decided by the U.S. Supreme Court, is causing increased discussion in Illinois about the topic of eminent domain. Dick conjectured that it would be very difficult in the current atmosphere for a State to pass a Corridor Preservation statute similar to that in Illinois. One glitch in Illinois' statute, according to Dick, is that while the State is required to provide notice to owners at the time a corridor map is recorded, it is not obligated to track subsequent property owners. As a result, subsequent owners may not be aware of the corridor mapping and/or the notice requirements for making improvements. Further, Illinois courts have held that said that a corridor map is not a cloud on title, therefore it is not clear whether sellers are required to notify buyers of the existence of such a map.

Scan participants directed a number of questions and comments toward Dick regarding Illinois' Corridor Preservation activities. Dick described the details of what is actually mapped and recorded. A Texas participant stated that Texas would look to the quality of the survey to determine whether a taking had occurred, noting that if a survey were performed that was sufficient to convey the property, then an issue would probably exist in that State as to whether a taking had occurred. Stuart Waymack, Director of Right-of Way and Utilities for the Virginia DOT, inquired as to what Illinois does with properties that it purchases prior to construction. Dick responded that to the extent possible Illinois tries to lease the properties out, however he noted that managing those properties effectively is a constant challenge. Another participant asked why Illinois does not request Federal participation in the Advance Acquisition process. Dick answered that Illinois uses State funds for Advance Acquisition, but still follows the Uniform Act because construction itself is usually Federally funded. However, using State money for acquisition speeds up the delivery process and allows parcels to be purchased within the State's desired time frames. David Walterscheid commented that States typically use State money for Advance Acquisition and Federal money for construction.

The discussion then turned to the topic of Hardship Acquisition. David Walterscheid briefly discussed the requirements for Hardship Acquisition. Several States noted that they take a liberal stance with respect to Hardship Acquisition, noting that it is a useful tool for eliminating problems in the future and that it is much easier to buy from property owners who want to sell than from those who do not. A participant from Indiana explained that it is not difficult for owners to document hardship if they try. A Texas participant commented that Texas treats person asking for Hardship Acquisition as willing sellers and the transaction as a voluntary acquisition. However, he noted, if the State cannot reach a deal on price, it does not invoke the condemnation process. Several participants commented that it appears that some States are conducting Hardship Acquisitions based on blight standards, not the hardship requirements. Janet Myers questioned whether there are risks associated with enlarging the Hardship Acquisition provision to capture blight and inquired as to what changes might be necessary to that provision to make it work better.

Several other topics were touched upon during the discussion. Leonard Hill mentioned the need for the laws pertaining to Advance Acquisition to distinguish between new and existing routes. Matt Delong, Administrator of the Real Estate Support Area for the Michigan DOT, stated that the rules need to consider the application of Advance Acquisition and Corridor Preservation to purchases for future safety projects. He also commented that Michigan would like to see full reimbursement by the Federal government when States buy parcels for risk management purposes. Stuart Waymack reemphasized the issue of the management of property once acquired and the fact that for Advance Acquisition to work, the FHWA needs to provide funds to the States up front. One issue that emerged from this discussion is to what extent the funding crunch facing States with respect to Advance Acquisition has to do with the management and/or allocation of funds as opposed to the amount of money available for Advance Acquisition. A conclusion that emerged is that the FHWA might wish to reexamine its policy and education function with respect to Advance Acquisition and Corridor Preservation with an eye towards increasing awareness of the value of Corridor Preservation among decision makers.

Group Discussion: New Concepts for Advance Acquisition and a "Future Vision" for Advanced Acquisition

The second group discussion was led by John Campbell and John Zimmerman, both from the Texas Department of Transportation's Right-of-Way Division (TxDOT). The topic of the discussion was cutting edge Advance Acquisition practices and the challenges associated with implementing those practices. John Campbell discussed the fact that Texas is a property rights State. This means that Texas courts typically favor property owners in takings actions. He commented that the Kelo case had an immediate impact on Texas and has made Right-of-Way acquisition in Texas more complicated. He discussed three strategies that Texas is following for integrating Right-of-Way and project development and delivery. The first is to identify critical parcels and issues related to Right-of-Way early in the project development process. The second is to perform Right-of-Way and other project development work concurrently, rather than in sequence. He observed, however, that doing so introduces the complexities of the public involvement and environmental processes into the Right-of-Way process. The third strategy is to utilize innovative project delivery methods, such as comprehensive development agreements, with the goal of obtaining Right-of-Way and environmental approvals earlier in the development process so that construction can begin immediately upon completion of project design.

John Campbell discussed several tools that Texas employs for Corridor Preservation. One tool that TxDOT plans to use is the option to purchase. Purchase options will allow TxDOT to secure the right to acquire certain properties before development occurs on those properties. John stated that such options would give Texas the right to be the first purchaser of the properties at issue. A Michigan participant commented that in Michigan purchase options grant the State the right of first refusal. John also stated that the property owner would be required to maintain the land in its current state of development. In essence, Texas would be purchasing the property owner's right to develop his or her property. One advantage of employing purchase options is that contentious items of negotiation can be settled up front. A drawback is that the State incurs an additional cost to secure the option on top of the ultimate purchase price. Later is the discussion, John Zimmerman fielded additional questions regarding how Texas plans to value such options and how long they would last. He responded that Texas is investigating methods for valuing purchase options, but that any valuation would necessarily rely on appraisals and would consider factors such as carrying costs, the length of the option, and how much the State determines it is worth to keep the parcel off the market. He noted that Texas has yet to actually purchase any options, but is in the process of negotiating two contracts. Another tool that Texas has for facilitating Corridor Preservation is a flexible takings acquisition program. Texas purchases commercial properties and either leases them back to their former owners or immediately demolishes improvements to avoid having to manage them. In the case of residential properties, it typically demolishes improvements rather than leasing the properties back. John Zimmerman noted that this frequently results in hardship requests from owners of neighboring properties.

John Zimmerman discussed a pilot program in Texas to receive project-wide clearance for Right-of-Way purposes only. Under this program, the State will acquire a group of parcels with Federal assistance using a limited Categorical Exclusion (CE) for the entire group. The pilot project involves acquiring 39 of 40 parcels needed for a project. Once the parcels are acquired, no construction will be permitted, other than utility relocation, until the environmental process is completed. The purpose of acquiring parcels as a group is only to secure title to the properties in an efficient manner for Corridor Preservation purposes. While environmental officials in Texas have approved acquiring the parcels as a group, FHWA Right-of-Way officials have yet to do so. Texas is looking for guidance from the FHWA as to whether it can engage in Advance Acquisition of more than a limited number of parcels.

The remainder of the discussion on practices in Texas dealt with public-private partnerships (PPPs). John Campbell discussed two tools available in Texas for facilitating transportation projects. The first is the regional mobility authority. Regional mobility authorities are quasi-public organizations, with their own power of eminent domain, established by the Texas legislature for the purpose of developing regional transportation infrastructure. The State also passed legislation creating the Trans-Texas Corridor, a proposed 4,000-mile multi-use, statewide network of transportation routes incorporating existing and new highways, railways and utility right-of-ways. Texas forged an agreement with a limited strategic partner to oversee procurement for the Trans-Texas Corridor. John stated that Uniform Act must be followed even where the State's private partner handles acquisition. In addition, while the State's partner may engage in negotiation on behalf of Texas, acquisition by eminent domain is still controlled by TxDOT. A Minnesota participant commented that Minnesota also employs design-build procedures and use consultants in the acquisition process, however the State retains approval and certification of all offers. John stated that there is a strong urge to outsource acquisition in Texas because acquisition is viewed as a choke point in the project development process. Tying the discussion back to the topic of Advance Acquisition, he mentioned that the State's private partner may eventually employ purchase options to secure title to properties where intense development is likely to occur, such as interchanges for all corridor alternatives.

The discussion concluded by focusing on question three of the Breakout Session Worksheet, namely, what is the States' "future vision" for Advanced Acquisition and Corridor Preservation? Scan participants identified over 30 points that they believed should be part of a future Advance Acquisition program. These points were consolidated into the following eight elements of a Vision for Advance Acquisition. From the perspective of Scan participants from State DOTs, a future Advance Acquisition process should:

  1. Provide a designated source of funds for Advance Acquisition. That source should be reliable in that it should be available when needed for Advance Acquisition purposes and should not be re-programmable to other uses. The source of funds should originate from the FHWA.

  2. Separate the Right-of-Way and environmental processes, without compromising the latter. Right-of-Way acquisition should be treated as a neutral event from an environmental point of view; no environmental review should be necessary so long as no dirt is turned. The EPA consent process should be either streamlined and delegated to the states (DEQ/DEP) or eliminated.

  3. Ensure that constitutional standards are met and address the issue of "necessity" raised in eminent domain situations.

  4. Facilitate acquisition from "willing sellers" by soliciting voluntary sales and responding to property owners who initiate such sales. Purchases from willing sellers should not be required to satisfy existing hardship or protective buy standards. The process should allow parcels to be acquired on a project-wide basis, rather than only on a parcel-by-parcel basis.

  5. Focus on creating a true Corridor Preservation capability. FHWA should advocate for Corridor Preservation by updating its own regulations and policies to create greater flexibility and encouraging the States to pursue Corridor Preservation as a legitimate goal and to enact appropriate legislation in furtherance of that goal.

  6. Provide notice of corridors to communities, developers and property owners through a Corridor Preservation mapping process. Such a process should give State DOTs a say in development decisions and encourage developers to coordinate their development and transportation needs (Right-of-Way, sound walls, etc.) with State DOTs.

  7. Offer flexibility, contain fewer detailed steps or requirements, and acknowledge that a single standard for all States is not feasible or effective.

  8. Treat acquisition for new alignments, changes to existing alignments, and safety purposes differently. Such a process should also deal with partial and complete acquisitions in different, but appropriate ways.

Presentation: Public-Private Partnerships and Right-of-Way Acquisition

Alla Shaw, Legal Counsel with the FHWA's Chief Counsel's Office, made a presentation on the topic of Public Private Partnerships (PPPs) on behalf of Mike Saunders, the FHWA's PPP program manager. The FHWA supports PPPs for several reasons. Transportation in the U.S. is suffering from rising congestion, increased demand for transportation infrastructure, rising costs of providing infrastructure, and relatively slow growth in tax revenues for transportation. At the same time, traditional highway funding methods are proving less effective than in the past. As a result, the FHWA projects that Federal, State and local highway revenues will be insufficient to meet the nation's estimated transportation infrastructure needs. The FHWA believes that PPPs, which allow for innovative contracting and financing mechanisms, are the key to meeting this funding challenge. Advantages of PPPs include the fact that they provide additional sources of funding for building transportation projects, save time and money, allow for more efficient allocation of risk, and provide a means to more effectively price current and future highways.

Ms. Shaw discussed several innovative techniques for financing transportation infrastructure, including GARVEES, State infrastructure banks, and the TIFIA program. She also discussed techniques recently enacted or expanded in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users [1] (SAFETEA-LU), including private activity bonds and toll credits. In addition to innovative financing initiatives, Ms. Shaw discussed other FHWA initiatives to foster PPPs, such as the creation on an intra-FHWA PPP Task Force, which has been tasked with studying ways to remove impediments to, and encourage the formation of, PPPs. The PPP Task Force was responsible for the development of the FHWA's PPP web page and for developing Special Experimental Project 15 (SEP-15). SEP-15 is intended to encourage experimentation in the development process for transportation projects. Specifically, it is aimed at finding ways to increase project management flexibility and innovation, improve efficiency, and promote timely project implementation and new revenue streams. Three applications have been accepted into the program so far, including two projects in Texas and one in Oregon. Finally, the FHWA also periodically sponsors workshops to bring together various Federal, State local and private entities to talk about PPPs.

In December 2004, the FHWA published its Report to Congress on Public-Private Partnerships. The goal of the Report was to identify impediments to the formation of large, capital-intensive highway and transit projects involving PPPs. Some of the topics discussed in the Report include the history of PPPs, the benefits of PPPs, impediments to the formation of PPPs under current law, recommendations of various organizations for removing those impediments, and DOT proposals to facilitate PPPs. The FHWA's newest initiatives include the preparation of detailed case studies of PPPs in the U.S. and abroad; model PPP legislation and contract documents, which will compare and contrast State laws pertaining to PPPs and PPP partnership agreements; and a Manual for using PPPs on Highway Project, which was in its final draft stage as of the date of the Scan. A link to this Manual, as well as so PPP case studies and sample agreements, can be found on the FHWA PPP Webpage (http://www.fhwa.dot.gov/ppp/).

Ms. Shaw also discussed PPPs as they relate to Right-of-Way acquisition. She observed that obtaining Right-of-Way at a reasonable cost and in a timely manner is the key to enabling transportation projects to move forward. However, Right-of-Way acquisition is subject to numerous Federal regulations that impede the ability of project sponsors to timely purchase the Right-of-Way they need. She stated that the FHWA has studied the issue of when the Uniform Act applies to private entities that purchase property eventually used in a Federally assisted highway project. The application of the Uniform Act to a private entity depends on the degree to which the entity's activities are attributable to a State or local government agency. The Uniform Act does not apply to independent acquisition and displacement activities of a private entity that do not involve the use of Federal funds. It does apply, however, when a private entity acts on behalf of a government agency by virtue of a formal or informal agreement to acquire property needed for a Federally funded project as a way of expediting the progress of the project. Factors to be considered in determining whether the Uniform Act applies to a private entity include:

Site Visit: The Pocahontas Parkway

The Pocahontas Parkway (Route 895) is an 8.8-mile roadway connecting I-95 in Virginia's Chesterfield County with I-295 in Henrico County near Richmond International Airport. Construction on the Parkway began in 1998 and the roadway opened in 2002. The Vietnam Veterans Memorial Bridge, which forms part of the Pocahontas Parkway, provides the region's third major James River crossing. The Parkway significantly reduces commuting distance and time for commuters between Chesterfield and Henrico counties and speeds transport to the airport for Chesterfield county residents.

The Parkway was the first project constructed under Virginia's Public Private Transportation Act of 1995, which allows for both private and public funding to meet the State's growing transportation needs. Under the act, the Virginia Department of Transportation (VDOT) can consider proposals from private entities to build highways or other transportation facilities with private money when the need arises, rather than wait until State or Federal funding are available. The Parkway was completed for $10 million below its original $324 million contract price. Only $27 million of the Parkway's price tag came from public funds. The vast majority of the funds were raised through the sale of private bonds, which are being repaid through tolls.

The entities involved in the construction of the Parkway included: 1) the Pocahontas Parkway Association, a not-for-profit private organization that facilitated the project's development and funding; 2) VDOT, which is responsible for the operation, maintenance, and inspection of the Parkway, and 2) Fluor Daniel and Morrison Knudsen, the engineering and construction firms responsible for the Parkway's construction.

According to Stuart Waymack, through the use of a public-private partnership, the roadway was built at least 15 years sooner than it would have been by using only public funds alone. In addition, while VDOT estimated it would take the State 75 months to construct the roadway, the State's private partners were able to complete construction in 48 months. Stuart stated that the Parkway has yet to achieve its anticipated traffic. As a result, tolls have been raised. In addition, the Parkway does not yet incorporate a connection to Richmond International Airport, however such a connection will be added in the future.

The final activity of the Scan was a breakout session. Each participant was provided with a Breakout Session Worksheet prior to the Scan. The breakout session focused on how to achieve the future vision for Advance Acquisition and Corridor Preservation identified on the first day of the Scan, in particular, 1) what legal constraints and/or other impediments exist to achieving this vision, 2) how the states might accomplish their vision without changing current laws, 3) if current laws and polices do have to be changed, what changes would be necessary, and 4) what the FHWA can do to assist in making the states' vision a reality. The states were also tasked with considering how their future vision can be achieved without compromising environmental standards and requirements.

Participants divided themselves into four groups and spent more than two hours pondering and discussing these questions, using the Breakout Session Worksheet and the various handouts provided by David Walterscheid as a guide. Following the discussions, a representative from each of the four groups presented the results and conclusions of that group's discussions to the full Scan audience.

John Campbell presented on behalf of the first group. John stated that his group's ideal system reflects the programmatic recognition that the acquisition of parcels for a project is an environmentally neutral event. This implies that acquisition itself does not impose any new conditions and that Right-of-Way acquisition can be carried out concurrently with the environmental process. Treating acquisition as an environmentally neutral event is appropriate for existing corridors and for acquisition from willing sellers. In the case of willing sellers, the State would not be using eminent domain, therefore they would not have to prove necessity. Finally, treating acquisition as environmentally neutral is only applicable to projects in the STIP.

Next, John addressed how the system envisioned by the group would function. The group decided that it would start off with a pilot project in order to estimate a baseline cost/benefit. It would then make a point of engaging Right-of-Way professionals at the beginning of project scoping and of keeping them engaged throughout the project. The group also would encourage a recommendation by the FHWA that the proceeds from surplus property sales be dedicated to the purchase of needed property. Although the group acknowledged that the FHWA cannot mandate such a policy, it felt that even a recommendation by the FHWA would give Right-of-Way professionals greater leverage. Finally, John stated that for the system envisioned by the group to function effectively, the FHWA would have to "reverse" the current reimbursable system to make Federal money available up front. The group also recommended that funds from underutilized categories, such as the enhancement program, be redirected towards Advance Acquisition.

John concluded by explaining that the group devised this approach because the inflexibility of the sequential nature of the environmental and Right-of-Way processes impedes project delivery. He stated that his group believes that it can achieve the system it envisions under current laws. According to John, the group's plan consists mostly of a practical suggestion for condensing project delivery by performing the environmental and Right-of-Way processes concurrently. The acquisitions envisioned under this plan would not turn any dirt or require any relocation. Rather, the group's vision involves only providing a more efficient and effective way to secure title to needed parcels.

The second group was represented by Matt DeLong. This group concluded that if an agency acquires a parcel that is incorporated into a Federal aid project, then the Federal government should pay all acquisitions costs, not only the full market value of the real property acquired. The future Advance Acquisition system envisioned by the group would also permit the agency acquiring the parcel to receive specific delegation authority from the State Department of Environmental Quality to receive reimbursement for the cost of acquiring the parcel instead of a credit. Such a system would also provide full reimbursement for strategic Advance Acquisitions prior to receiving a Categorical Exclusion, would contain different standards and guidelines for existing versus new alignments, and would offer full reimbursement for parcels for safety projects in advance of the actual project, provided that safety data demonstrated that the improvements were needed.

Another comment by the group was that the FHWA should put in place a mechanism to encourage or at least permit State DOTs to remove structures from parcels acquired before the environmental process has been completed to relieve states from property management responsibilities. The system envisioned by the group would attempt to identify parcels that will be total takes during the pre-design/scoping stage and to focus resources on those parcels as soon as possible. Finally, the group would like to see the FHWA establish an Advance Acquisition fund and requires the states to contribute monies obtained through leaseback agreements and from the sale of excess property to the fund. While the group acknowledges that the FHWA could not require the states to use the fund for Advance Acquisition, it suggests that the FHWA could "incentivize" the fund's use by providing a matching credit or other incentive that could be applied towards other more popular projects or activities outside of Right-of-Way, such a construction design, transportation enhancement, and so on.

Layne Patton presented for the third group. Group three approached the breakout group discussion differently. There were four states in the group: Arkansas, Minnesota, Oregon, and Washington. Each State in the group presented a particular issue or challenge that it faces and the group discussed how to address that challenge. Minnesota indicated that the Advance Acquisition process in that State was functioning very well and that it is not facing any major challenges at the present time. Oregon's main concern had to do with environmental documents. Oregon would like for the FHWA to approve Environmental Risk Assessments for Right-of-Way acquisition of select parcels prior to full environmental clearance. This would be similar to a "tiered" environmental document. It could be used when alignment decisions are limited or when certain parcels are needed in all or most alignments. Several states agreed that they would like Right-of-Way acquisition to be viewed as an environmentally neutral event. Minnesota shared a checklist (Programmatic Environmental Approval Form) that it uses to assist it in making a determination whether an acquisition fits within FHWA guidelines. Several states expressed an interest in using Minnesota's form as a model.

Washington's primary concern had to do with funding. The group concluded that the reimbursement system currently in place does not function very well. Instead of the current system, Advance Acquisition funds should be earmarked or apportioned to the states in a manner similar to that in which highway funds are apportioned. Under such a system, if the funds are not used by the State to which they were apportioned, then they would go back into the fund and other states would be able to apply for them. To achieve this vision, Advance Acquisition appropriations would have to be written into the next highway bill.

One of Arkansas' greatest concerns at the present time involves hardship acquisition and protective buying. Arkansas would like to see a relaxation of the criteria for reimbursement. States are currently reimbursed after the NEPA clearance and public involvement processes. The group concluded, however, that there is no reason why states should not be able to be reimbursed before public involvement. In addition, the group would like for all early acquisition categories to be rolled into a single category with a single set of criteria. Finally, the group concluded that the Code of Federal Regulations needs to be amended to allow more flexibility for states to determine necessity and to move forward with projects even when they do not have all required Right-of-Way.

Don Keith presented on behalf of the final group. Group four focused on its future vision for Advance Acquisition. In the case of new corridors, this vision recognizes a need to expand flexibility relative to hardship and/or protective buys to include reimbursement for critical parcels from willing sellers in advance of design and environmental approvals. In particular, the group stated that the language on "hardship" and "protective buying" in 23 C.F.R. 710 is too restrictive and needs to be amended to include willing sellers and the concept of critical parcels. The group also recognized a need for greater flexibility in the case of projects involving the widening and/or resurfacing of existing alignments. The group's future vision would employ a "tiered" environmental clearance approach, whereby a limited number of parcels could be processed using a group Categorical Exclusion. The group would not call such an acquisition "environmentally neutral," but stated that it would look to its actual effects of the acquisition, noting that an economic or social impact could be present even if no dirt has been turned.

The group suggested that a critical research study was necessary to look into the question of whether Right-of-Way acquisition is environmentally neutral and when Advance Acquisition is in the best interests of the public. Such a study could be carried out by either NCHRP or AASHTO. A comment was made that there will likely be some disagreement on the issue of whether Advance Acquisition is environmentally neutral. The group noted the benefit of meeting with property owners early and often, especially when a State is contemplating Advance Acquisition, in order to gauge their attitudes relative to early acquisition, obtain their input, and facilitate both context-sensitive solutions to design and the Categorical Exclusion process. Finally, the discussion turned to a proposal to include language on critical real property acquisition into SAFETEA-LU. The proposal would have allowed agencies to advance buy property necessary for the implementation of project goals. According to David Walterscheid, one version of the proposal, ultimately not included in SAFETEA-LU, stated that "the number of critical acquisitions shall be limited and shall not affect consideration of alternatives during the environmental review process." Participants discussed whether such language, if it had survived, would have been effective.

The purpose of this Scan was to foster peer-to-peer exchange of issues and ideas among State Right-of-Way officials in the area of Advance Acquisition and Corridor Preservation. Through activities including group discussions, a presentation, a site visit, and breakout discussions, Scan participants from 14 State DOTs discussed current practices in Advance Acquisition, including cutting edge practices employed in States such as Texas, their future vision for Advance Acquisition, and, finally, what changes would be necessary for their vision to be achieved.

Scan participants identified a number of issues they are facing with respect to Advance Acquisition and Corridor Preservation, including:

Scan participants also identified a number of possible topics and activities for discussion and evaluation by AASHTO and FHWA. In particular, AASHTO and FHWA should jointly:

  1. Evaluate takings issues in corridor preservation (e.g., when does a taking occur, how to avoid problems when at taking does occur, etc.);

  2. Evaluate options for improving the availability of funding for Advance Acquisition and Corridor Preservation (e.g., educating State DOT officials on the value of allocating funds for this purpose; earmarking income from property disposals, increasing Federal funding, etc.);

  3. Define what activities are permissible following Advance Acquisition, as part of property management or otherwise;

  4. Evaluate possibilities for the use of a tiered NEPA process and/or the development of a programmatic Categorical Exclusion category to address State Advance Acquisition needs, including the issue of whether acquisition should be characterized as an environmentally neutral event;

  5. Develop educational efforts to help State DOT officials understand the value of, and procedures for, Advance Acquisition and Corridor Preservation;

  6. Evaluate the potential for revising Advance Acquisition regulatory provisions to create more flexible criteria for acquisition for safety-related and existing alignment projects;

  7. Develop guidance on the use of purchase options to secure the right to acquire properties in advance of project construction;

  8. Evaluate regulations related to Advance Acquisition and hardship/protective acquisition to consider how to simplify them and improve flexibility;

  9. Evaluate options for increasing flexibility by allowing projects to proceed without first clearing all Right-of-Way.

The Scan on Advance Acquisition and Corridor Preservation was a success because it gave State Right-of Way practitioners the opportunity to discuss common issues, challenges and solutions with their peers from other States. Numerous participants stated that they planned to share the ideas, approaches, and tools discussed during the Scan with colleagues in their home States.

[1] Public Law 109-59.

Updated: 04/02/2013
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