This section introduces the Federal Land Transfer process that is described in greater detail in the following sections of this manual1.
When highways cross lands owned by the United States and administered by Federal Agencies (Controlling Agency), a property interest, generally by highway easement, can be conveyed to a State Department of Transportation (State DOT) or its nominee (i.e. city, county, town, public-private partnership) to grant the rights necessary to construct, operate and maintain the roadway. A property interest for a material site may also be conveyed to a State DOT or its nominee. Authority is provided through 23 U.S.C. 107(d) and 317 to the Secretary of Transportation, who has further delegated the authority to the Federal Highway Administration (FHWA) to effectuate the transfer. The process is referred to as a Federal Land Transfer.
The FHWA, pursuant to the process set forth in 23 CFR 710.601, assists State DOTs in obtaining property rights necessary for projects, including necessary material sites, on or eligible for the Federal-aid system. This process is optional as State DOTs can sometimes deal directly with the Controlling Agency under other statutory authorities.
When project development begins and potential right of way needs over Federal lands are identified, the first step is to identify the Controlling Agency with jurisdiction over those lands. Once the Controlling Agency is identified, it should be notified of the project's potential use of its land and should be invited to be a cooperating agency in the environmental process.
If the alternative selected at the conclusion of the environmental process does necessitate a Federal Land Transfer, the subsequent negotiation process for a Letter of Consent from the Controlling Agency and, as applicable, a right of entry will benefit if all parties involved in the transaction understand and have consideration for one anothers' missions. Likewise, follow-up after the project is completed is also essential to ensure that all required paperwork has been completed and the highway easement is properly recorded.
A Letter of Consent with a right of entry is often used for new location and upgrade projects to grant permission to enter on Federal Lands and construct the project. The scope of the letter generally includes the required terms and conditions identified by the Controlling Agency as necessary to protect its resources and mission from potential adverse impacts from the transportation use. These terms and conditions would be incorporated into the highway easement deed if applicable to the operation and maintenance of the facility.
FHWA's Federal Land Transfer regulation, 23 CFR 710.601, requires that the highway easement deed must contain an adequate description of the right of way, and must contain any required conditions to identify the limitations inherent in the land transfer. The highway easement deed must be recorded in the local land records.
During the design phase, if there are changes affecting parcels subject to the transfer, the Controlling Agency should review the changes and if appropriate, modify the mitigation measures to address additional or different impacts. Design changes that effect the location of the right of way limits or legal description of a recorded deed will require a deed amendment. For some projects, it will be beneficial to record the deed after construction is completed to avoid the necessity for deed amendments.
Title to Federal land is held by the United States of America, under the administration of a specified agency of the United States. The provisions of 23 U.S.C. 317 and 23 U.S.C. 107(d) authorize the Secretary of Transportation and, by delegation, the -FHWA to transfer Federal land under the administration of another Federal agency to a State DOT or its nominee. The FHWA does not take title to the land nor does it bring the land under its administration or control. It simply acts as a land transfer agent to transfer an interest in land from the United States to a State DOT. In its role as the land transfer agent of the United States, FHWA will need to balance its responsibility for stewardship of the Federal land with its responsibility to provide for a safe and efficient highway system.
The process through which transfers are implemented is set forth below. This manual includes various terms common to Federal land transfers pursuant to Section 107(d) and Section 317. Definitions of such terms are included in the Appendix. Also included in the Appendix are various other documents referenced below as well as sample documents associated with specific and hypothetical transfers of Federal lands associated with highway projects to be undertaken by a State DOT2.
The FHWA may determine, or concur in a determination by a State DOT, that land owned by the United States is reasonably necessary by a State DOT or its nominee for: (1) right of way or a material site for a project undertaken with Federal-aid highway funds; (2) certain highway projects eligible for Federal-aid under Chapters 1 and 2 of title 23, United States Code; and (3) certain highway-related transfers in conjunction with a military base closure under the base realignment and closure laws (BRAC)3. The FHWA may then arrange with the Controlling Agency to transfer to a State DOT or its nominee any part of the land or interests therein, owned by the United States, under the authority of Sections 107(d) or 317. Section 107(d) applies to the transfer of land for Interstate projects, while Section 317 can be used for land and materials for Interstate and certain other non-Interstate projects. The FHWA's regulations implementing Sections 107(d) and 317 can be found at 23 CFR 710.601.
Federal Land Transfer requirements are clearly applicable for projects undertaken with Federal-aid Highway funds. However, for the Federal Land Transfer provisions to apply to highway projects that are eligible for Federal-aid (but not being funded by Federal-aid), FHWA must determine that a strong Federal transportation interest exists for the transfer. Such determination should be made on a case-by-case basis by the Division in conjunction with the Headquarters Office of Environment, Planning, and Realty (HEPR).
The primary focus of this manual is on Federal land transfers involving grants to State DOTs under Chapters 1 of title 23, United States Code. The procedures for Federal Lands Highway projects funded under Chapter 2 may vary due to FHWA's more direct role in project development and construction contracting activities. The Office of Federal Lands Highway should be consulted to determine the requirements for a Federal Land Transfer for these projects.
Where authorized, the transfer of the land may also be accomplished directly by the Controlling Agency to the State DOT or its nominee, under the Controlling Agency's statutory authority.
The statutory and regulatory requirements and procedures governing the transfer of United States Government-owned lands for the purposes described above are set forth in this part of this manual. This manual does not address steps involved in the planning and project development process that occur prior to a request for a Federal land transfer (note that additional information on these requirements may be available at the FHWA - Planning, Environment and Realty website at http://www.fhwa.dot.gov/hep/).
The State DOT should contact the Controlling Agency to determine if such Controlling Agency has authority to directly transfer the necessary property rights, and if so, whether it elects to proceed directly. If the Controlling Agency has authority and elects to proceed directly, the State DOT may arrange for the transfer directly with the Controlling Agency and without FHWA involvement. In the event that the Controlling Agency does not have such authority, or elects to proceed through FHWA, the process below should be followed by a State DOT to request the transfer of land through the FHWA, except in situations where a Memorandum of Understanding (MOU) or other agreement has been executed between the State DOT, FHWA Division and Controlling Agency. In those situations, the steps outlined in the MOU should be followed to the extent applicable4. A Memorandum of Understanding that alters the steps below should be reviewed and approved by FHWA counsel.
The following steps provide an overview of the process to effectuate Federal Land Transfers unless otherwise determined by agreement between the FHWA Division Administrator and FHWA Counsel. Greater detail of the process steps begins at Section 1.2.
The State DOT files an application with the FHWA Division setting forth its need for the lands in accordance with 23 CFR 710.601. See also Federal Aid Policy Guide). Pursuant to 23 CFR 710.201(c), the application must comply with applicable provisions of the State DOT Right of Way Manual as approved by FHWA at the time of the request. While not required at this point, in order to expedite the process it is recommended that the State DOT prepare and include a draft deed with their application in coordination with the Controlling Agency. Additionally, where appropriate, the application should identify if an interim right of entry or temporary construction easement, and its terms, is being requested.
The FHWA Division (generally the Division Realty Specialist) reviews the application in accordance with the FHWA Delegation and Organizational Manual, FHWA Order M1100.1A, Part I, Chapter 5, relating to delegations of authority for real property acquisition, and determines the eligibility of the project for the proposed transfer, whether the land is reasonably necessary for the project, and the accuracy of the legal description. If the FHWA Division concurs in the proposed transfer and finds that the application and accompanying materials comply with the requirements, it will proceed to the next step. If any concerns have arisen, the FHWA Division is encouraged to consult with the appropriate FHWA Counsel.
The Controlling Agency will be asked to concur in the transfer and specify any conditions necessary for the adequate protection and utilization of the reservation in which the requested land is located or, if it objects to the request, to explain its objections and certify that the proposed appropriation is contrary to the public interest or inconsistent with the purposes for which such land has been reserved. This concurrence is usually in the form of a Letter of Consent further addressed in Step 4 below. The Controlling Agency may also provide the State DOT an interim right of entry, pending execution of the deed.
If the Controlling Agency concurs in the FHWA transfer, subject to conditions, the FHWA Division and the State DOT review the conditions, negotiate with the Controlling Agency, and reach a determination as to mutually acceptable conditions. This determination identifying the mutually acceptable conditions should be documented along with the Letter of Consent. The deed is then drafted or modified by the State DOT, alone or in conjunction with the Division. The deed shall contain the clauses required by FHWA as well as the agreed-upon conditions. The deed shall also contain clauses required by 49 CFR 21.7(a)(2) (relating to nondiscrimination) All deeds shall be certified by an attorney licensed within the State as being legally sufficient under State law, as required by 23 CFR 710.601(f). See also § 1.10(b) infra.
If it has not already done so, the State DOT submits the proposed deed to the FHWA Division staff, who, after initial review, see checklist at Appendix X, confirms the accuracy of the legal description and plan or plat, and forwards the entire package to the FHWA Counsel with comments and recommendations, if any, along with the State DOT's application submission, the Controlling Agency's Letter of Consent, and accompanying data, and requests a legal sufficiency finding.
The FHWA Counsel and the FHWA Division staff review the submitted documents and coordinate the resolution of any remaining issues with the State DOT and Controlling Agency, as appropriate. At the conclusion of this review, FHWA Counsel determines if the appropriate process has been followed and if the deed is legally sufficient under federal law and document such finding.5
Upon receipt of a finding of legal sufficiency, the FHWA Division staff transmits the deed to the State DOT for acceptance and signature by the appropriate State official. The State DOT then transmits the deed to the Division Administrator6 for execution. The fully executed deed should then be transmitted to the State DOT for recording.
Upon recordation, the State DOT should send a copy of the recorded deed to the FHWA Division and the Controlling Agency and coordinate distribution of copies to interested parties, if appropriate, and address any remaining administrative matters. The FHWA Division staff updates the appropriate FHWA Division log.7
1 For more information generally concerning the Federal land transfer process, see "Synthesize Division Interagency Real Estate Agreements and Identify Practices for Improved Interagency Support", Publication No. FHWA-HEP 06-012 at: http://www.fhwa.dot.gov/real_estate/practitioners/uniform_act/acquisition/interagency/.
2 Reference is also made to the CD "Division Office Right of Way Manual", furnished by the HEPR to Division Realty Officers, and including various information included in the Appendix to this Manual.
3 Title II of the Defense Authorization Amendments and Base Closure and Realignment Act (Pub. L. 100-526, 102 Stat. 2623), and the Defense Base Closure and Realignment Act of 1990 (Pub. L. 100-526, Part A of Title XXIX of 104 Stat. 1808); codified at 10 U.S.C. 2687.
4 See sample Memorandum of Understanding at Appendix 3
5 Appendix 4
5 By delegation of authority, the Division Administrator has authority to execute documents associated with transfer of Federal lands (e.g. see Memorandum regarding Delegation of Federal Land Transfers, dated July 30, 1998 attached as Appendix 5).
6 Appendix 6
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