The State DOT's application must include, at a minimum, the following information and certifications, see 23 CFR 710.601:
In addition to those mandatory requirements set forth above, the State DOT's application should include a complete title report or other acceptable title information, appropriate to satisfy the State DOT's requirements for acquiring right-of-way adequate to construct, operate and maintain the project facility. The information contained in the title report or other acceptable title information should identify ownership and control of the parcel(s) proposed for transfer and all encumbrances, points of contact at the State DOT and at the Controlling Agency, together with other relevant information such as, if applicable, a request for an interim right of entry.
Where a Federal land transfer request is for a nominee (e.g. local public agency such as city, town, or county), the application, and all subsequent actions in connection with the request, should be submitted by the State DOT to the FHWA Division on behalf of such nominee. In such situation, the application should include a statement signed by the State DOT identifying the specified nominee to receive the interest in the land. Additionally, in the event the proposed nominee is a private entity (e.g., when a public-private partnership is involved), the FHWA Division should consult with Headquarters to confirm whether the requested transfer is consistent with Section 107(d) or 317
Requests associated with material sites may raise additional issues that need to be considered. The following should be taken into account in evaluating a Federal land transfer request for a material site:
Maps and plats should be printed on paper of a size for attachment to the deed and satisfy applicable requirements for recording. Very large or bulky maps may be cut in sections for mounting, or reduced, provided the reduction is clear and legible. Plats that are illegible, too small, or not properly mounted should be returned to the State DOT for correction. The map or plat should show a survey of the requested land or should otherwise be sufficient to enable an engineer or surveyor to locate the land.
Maps, plats, and legaland narrative descriptions should be reviewed concurrently to determine that all courses, distances and reference points in the legaldescription are shown on the plat, so that the documents may be used independently. A metes and bounds description should be reviewed to make certain that the description yields an enclosed parcel.
Land descriptions may be by metes and bounds, a public land survey, or a legal subdivision description. The above types are preferred, but a centerline or other description is acceptable when allowed by State law and by the Controlling Agency or by the provisions of (d) below. The description should also include the tract number and total acreage of each parcel.
A road or trail in place is a sufficient boundary or monument for a right of way when there is agreement among the parties involved and such property description is not in conflict with State law. The use of a United States Geological Survey Map or an aerial photo is acceptable, instead of a centerline survey plat, for an existing road or trail. This procedure may be used for low risk boundary situations, not involving significant project expenditures, or when there is no dispute over ownership or land rights. The map or photo should be attached to the deed and a "CERTIFICATE OF RIGHT OF WAY DESCRIPTION STANDARD" (such as used by the Forest Service) may be included along with the title documents1.
The plat or map at a minimum must include the following information on all copies. Additional requirements to properly identify the parcel may exist within a particular State's law.
Land transfers for one project, under the administration of more than one agency, should be separately described and deeded, but processed in a coordinated manner. Land transfers for one project to more than one State DOT or nominee should also be separately described and deeded, but processed in a coordinated manner.
(a) Upon receipt of a State DOT's land transfer submission, the FHWA Division staff should undertake a preliminary review to see that it conforms to 23 CFR 710.601. If any items are missing or incomplete, the FHWA Division shall request these items from the State DOT.
(b) The submission from the State DOT should include an adequate number of copies, agreed upon between the FHWA Division Office and the State DOT, which meet the requirements of 23 CFR 710.601.
Before a transfer is made under Section 107(d) or 317, FHWA must make a written determination that the lands or interests in lands requested by the State DOT are reasonably necessary for the project. The determination is made by FHWA Division staff, as noted in Step 2 above. See FHWA Delegation and Organizational Manual.
If Section 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. 138 and 49 U.S.C. 303, applies to the parcel being transferred, Division staff must approve the use of Section 4(f) property under 23 CFR 774.3 before the transfer can be effected.2 The FHWA Division staff handling such issues should coordinate with the Division Environmental Specialist, and FHWA Counsel as necessary.
Most Federal land transfers being implemented under Section 317 or 107(d) are for Federal-aid highway construction projects that are subject to NEPA. For these transfers, FHWA must comply with the National Environmental Policy Act (NEPA) for the underlying transportation project itself and the NEPA documentation will identify significant impacts resulting from the acquisition of all of the right of way needed, including that proposed to be obtained using a Federal land transfer. FHWA and the State DOT should consider needs of the Controlling Agency to obtain environmental clearance. The needs are best protected by the Controlling Agency's being invited to be a Cooperating Agency in the FHWA NEPA process early in the project development process. If the Controlling Agency participates in FHWA's NEPA process, then the transfer will not typically involve an independent NEPA analysis by the Controlling Agency.
Where the transfer of Federal lands pursuant to Section 107(d) or 317 is merely a transfer of land for a project not otherwise subject to FHWA review under NEPA, the transfer may normally be processed as a Categorical Exclusion (CE) under the FHWA's regulations implementing NEPA. This generally occurs where the transfer is undertaken (1) to perfect title to an existing highway; (2) in connection with a base closure pursuant to BRAC; or (3) in connection with a project that will be constructed without Federal-aid highway funds. In these situations, the transfer may meet the criteria for a CE in Section 1508.4 of the Council on Environmental Quality's NEPA regulations (40 CFR 1508.4) and the FHWA regulation at 23 CFR 771.117(c)(5), and would not normally require any NEPA documentation. In these situations, the land transfer would not be followed by any subsequent FHWA action. In any case, in accordance with 23 CFR 710.601(d)(7), the application must contain a statement of compliance with NEPA.
Additionally, it should be noted that other environmental or permit laws and regulations may also apply, necessitating prior approvals by other agencies. Reference should be made to any applicable MOU, or other agreement, between FHWA and the Controlling Agency to determine the obligation, if any, of FHWA to furnish required environmental documentation.
The FHWA Division, or the State DOT through the FHWA Division, initiates the necessary correspondence with the Controlling Agency to request concurrence with transfer of the lands or interests in land requested by the State DOT. Alternatively, the State DOT may initiate the transfer process with the Controlling Agency directly. In such case, the State DOT should provide FHWA notice of such fact, together with copies of all accompanying documentation. In either event, the Controlling Agency should be provided a letter containing the following information in order to respond to the FHWA or State DOT request:
Federal Land Transfers for projects on the Interstate System do not technically require the consent of the Controlling Agency, because 23 U.S.C. 107(d), unlike 23 U.S.C. 317, simply directs the Controlling Agency to cooperate with the Secretary of Transportation to effectuate the transfer. Nonetheless, it is the FHWA's practice to request consent for all Federal Land Transfers as a matter of comity.
After the Division reviews the Controlling Agency's response to the requested transfer, the response and any conditions identified for the transfer will be forwarded to the State DOT for preparation or, if previously drafted, for revision of the deed.
The deed shall be prepared by the State DOT, include conditions required by the Controlling Agency, and comply with applicable State and local law. As required by 23 CFR 710.601(f), the deed shall include a certification by an attorney licensed to practice in the State that the deed is legally sufficient under State law. For example, in some states, the law does not require a deed to include both a legal description and a plat to be legally sufficient for the transfer of property. If the State DOT so requests, it will be sufficient for the deed to include just one of the exhibits, depending upon State requirements and those of the Controlling Agency. The deed is then forwarded to the FHWA Division for review and approval.
The FHWA Division reviews the deed for adequacy and make a determination that the legal description is complete and closes, see section 1.3 above, and the parcel is within the project right of way and is otherwise necessary for the Project. The FHWA Division then prepares a package of materials to forward to FHWA Counsel for legal review. Pursuant to 23 CFR 710.601(d), the submission shall include:
When received by the FHWA Counsel, the submission is reviewed for legal sufficiency as required by the FHWA Delegations and Organizations Manual, Chapter 4, Paragraph 78. The FHWA Counsel is responsible for verifying that all determinations required by Sections l07(d) and/or 317 have been made, that the appropriate interest is being transferred, and that clauses required by 49 CFR 21.7(a)(2), 23 CFR 710.601, Part 771, Part 774, and other law applicable to the specific transfer are addressed.
If the FHWA Counsel finds the deed to be legally sufficient, he or she concurs in writing.3
Under the FHWA Delegations of Authority for Sections l07(d) and 317, land transfers are effectuated by the FHWA Division Administrator signing the deed on behalf of the FHWA, subject to the prior concurrence of FHWA counsel described in (b) above. This authority may not be re-delegated.
The State DOT is responsible for having its appropriate management official sign acceptance of the land subject to the conditions and for recording the deed.
Certain Controlling Agencies may elect to utilize their own authority and procedures for effecting land transfers. When land transfers occur under the authority of the other Federal agency, FHWA would normally not be involved. If these authorities are in addition to the procedures involving the FHWA or are for land for a Federal-aid project, the transfer is effected in a manner acceptable to the FHWA. These agencies include Department of Defense military branches (Army, Navy, Air Force, Marines), the Department of Veterans Affairs, and others. See Section 1.9, infra. In those instances, a State DOT or its nominee may work directly with a Base Commander or local administrator to process the requested land transfer.
When authorities other than those under title 23, United States Code, are used, the State DOT should inform the FHWA Division of the land transfer. For material sites, a Controlling Agency may grant a permit, license, right of entry, or similar document to the State DOT, with conditions, in lieu of granting a land transfer. This procedure is acceptable for temporary uses, such as for material sites4 but not appropriate where permanent highway right of way is required, in which case a permanent interest in the property, by deed of easement or fee, should be pursued in accordance with the process set forth in this manual or the process of the Controlling Agency, if applicable. The legal sufficiency of such documents are governed by state law and State DOT should consult with its counsel as necessary to ensure that it is adequate for the intended purposes.
The land transfer procedures of various Controlling Agencies are discussed below and in the FHWA Program Development Guide at Chapters 14 and 16. The agencies listed here are the ones FHWA Divisions most often deal with.
The land transfer process shall be in compliance with any applicable MOU, or other agreement, between the State DOT and the Controlling Agency and/or FHWA. BLM and the Forest Service, for example, often have agreements with State DOTs that specify additional Federal Land Transfer procedures for a geographic area. It is recommended that consideration be given to development of such agreements, consistent with applicable Federal and State law, with Controlling Agencies within the geographical area of the State DOT.
The Forest Service is responsible for protection and multiple use management of National Forest System lands and resources. Requests for transfer of property pursuant to 23 U.S.C. 107(d) or 317, for which it is the Controlling Agency, must be consistent with the 1998 Memorandum of Understanding between the Forest Service and the FHWA,5 as amended, or such superseding MOU, or other agreement, as may be in effect at the date of the request. The State DOT may alternatively negotiate directly with the Forest Service to obtain the needed right-of-way pursuant to 43 U.S.C. 1761 or 16 U.S.C. 532-538.
The Forest Service authorized officer administering the needed land should be contacted early by the State DOT and FHWA Division to discuss the environmental review and, later, the transfer and, if appropriate, an interim right of entry. After FHWA's concurrence, the State DOT's application is submitted, if agreed upon, by the FHWA Division to the designated representative of the Forest Service, for concurrence in, and any conditions of the transfer. The Forest Service may also specify stipulations for its concurrence in the transfer.6 If so, it will secure from the State DOT, directly or through the FHWA Division, the State DOT's agreement to any required stipulations. The Forest Service then sends a letter of concurrence to the State DOT, through the FHWA Division, agreeing to an imminent appropriation and transfer, and, if applicable, granting an interim right of entry.
These transfers of interests in Forest Service lands are by Highway Easement Deed, which generally include previously agreed-upon stipulations, terms and conditions. Other stipulations, terms and/or conditions are permissible if concurred in by the FHWA, Forest Service and State DOT.
Bureau of Indian Affairs
Applications for right of way or interests in land on Indian lands are submitted directly to the Bureau of Indian Affairs (BIA) by the State DOT in accordance with 25 CFR Parts 162 and 169. The transfer is normally effected by the BIA pursuant to its own statutory authority. For purposes other than those specified in 25 CFR Parts 162 and 169, transfers are made under the provisions of Sections l07 (d) and 317.
Section 162.601 of 25 CFR provides, in part, that the Secretary of the Interior may grant leases on Government land and on individually owned Indian land on behalf of persons who are not of sound mind, orphaned minors, undetermined heirs; on unused lands of heirs or devisees who have not been able to agree upon the terms of a lease; and on an Indian's land when the Secretary has written authority to execute leases on the Indian's behalf; and on an Indian's land whose whereabouts are unknown. Applications for right of way across such lands should be submitted by the State DOT to the BIA to effect the transfer.
Section 169 of 25 CFR has procedures under which rights-of-way over Government, tribal, and individually owned land may be granted. Consent of the tribe or allottee may be required and 43 CFR Part 7 (Protection of Archaeological Resources) may apply. If such resources are present, the BIA issues a permit and obtains the consent of the Indian landholders.7
Bureau of Land Management.
The Bureau of Land Management (BLM) administers the majority of Federal lands (e.g., non-military Federal lands that are not part of a National Park, Monument, Wildlife Refuge, National Forest System, National Wild and Scenic Rivers System, or Western States water project). BLM jurisdiction may extend to certain mineral rights (oil, gas, coal) within the Federal land. It is therefore important to assess whether there needs to be coordination with BLM even where a title evaluation suggests another Federal agency is the Controlling Agency. See P.L. 94-579.
The State DOT submits its request to the FHWA Division which, by agreement, sends it to BLM.. The transfer is effected pursuant to Title 23 transfer provisions and the 1982 Interagency Agreement between BLM and the FHWA,8 and takes the form of a Highway Easement Deed between the State DOT and the FHWA.9 This procedure may not be appropriate for temporary use of land controlled by BLM.10 State DOTs may also negotiate directly with BLM to obtain the needed right-of-way pursuant to 43 U.S.C. 1761.
The BLM has informed FHWA that, as the steward of certain public lands, a request must identify the specific land parcels and their uses. The BLM typically will not grant an overall request to use BLM lands for borrow material without identifying the location and quantity of material to be used unless indicated by prior agreements. Under 30 U.S.C. 601, BLM may, in its discretion, transfer material without charge.
Bureau of Reclamation.
The Bureau of Reclamation (BOR) has jurisdiction over certain other Federal lands associated with water resource projects, in 17 western States. In transfers involving these lands, the request is submitted to the BOR, which, in some instances, coordinates the transfer decision with the BLM. The BOR should coordinate these transfers as the Controlling Agency unless it defers to BLM for a decision and subsequent transfer through the Division on behalf of BOR.11 For further information, please refer to the BOR website, www.usbr.gov.
National Park Service.
Application for right-of-way or interests in lands administered by the National Park Service (NPS), submitted pursuant to Section 107(d) or 317, are reviewed and processed in the normal manner as described in this manual and 36 CFR Part 14. Lands within the Wild and Scenic Rivers System administered by the National Park Service may be transferred pursuant to 16 U.S.C. 1284 (g).
Fish and Wildlife
Service Applications for rights-of-way or interests in lands under the control and supervision of Fish and Wildlife Service are submitted to the appropriate Regional Director of the Fish and Wildlife Service in accordance with the procedures set out in 50 CFR Part 29, Land Use Management, Subpart B.
Part 29 provides that where the land administered by the Secretary ofthe Interior, through the Fish and Wildlife Service, is owned in fee by the United States and the requested right of way is compatible with the objectives of the area, a permit or easement may be granted by the Regional Director. Generally, an easement or permit will be issued for a term of 50 years or for as long as it is used for the purpose granted. Both the statute (16 U.S.C. 668dd(d)(2)) and regulation (29.21-7(a)) require payment of a use and occupancy fee at fair market value of the property interest conveyed. The FWS has authority to waive the fee or accept compensation by other means, and has done so on occasions where the project benefited refuge lands.
Also, transfer agreements should recognize that unless otherwise stated, no interest granted gives the grantee any right to use or remove any material, earth, or stone except for the construction needs within the termini of the project in which the material is located.
(a) The military departments have statutory authority for granting rights-of-way over lands under their jurisdiction (10 U.S.C. 2668). This law provides for the granting of easements instead of fee estates. These departments may prefer to transfer an easement under their own authority.
Applications for transfers affecting lands under the control of the Army or the Air Force are submitted by the State DOT, after consultation with the Division, directly to the installation commander and to the District Engineer, Corps of Engineers pursuant to 10 U.S.C. 2668. As to Navy lands, the application is sent to the Public Works Officer of the Naval District involved. Where a satisfactory approval from the Navy is not readily obtained, the State DOT should submit its application, pursuant to Section 107(d) or 317, to the Division.
(b) Where the Controlling Agency of a base is in the process of closure of the facility pursuant to BRAC, a different process may be appropriate or required. Under BRAC the military is delegated the disposal activity of GSA. While typical requests for transfers, to the extent associated with an operational facility, are addressed through an easement, in cases of a facility undergoing a base closure, a fee interest should be sought, and may often be available as there is a desire on the part of the Controlling Agency to not retain reserved rights.12
Usually, the BRAC process establishes a Local Reuse Authority (LRA) that develops a plan for how the lands will be used and for what purpose and by whom. However, the disposition process that follows thereafter may differ for each base.
It is important that the FHWA Division, and the State DOT not ignore a BRAC notice. Upon receipt of such a notice, a timely assessment and response should be undertaken to address the transportation needs, if any, of the State DOT to acquire any portion of the property proposed for disposition.
The State DOT should communicate as early as possible with the appropriate representatives of the base and/or LRA regarding interest in base lands for highway improvements. In addition to the property interest often being different from that available for transfer within an operating base, the conveyance documentation will also likely differ in other respects.
Some items to keep in mind on BRAC Federal Land Transfers are:
The BRAC process provides for "public benefit conveyances" and "economic development conveyance" which terminology is not necessarily consistent with that associated with transfers of easements in operating bases for highway purposes under the usual Federal Land Transfer process. These matters should be addressed in negotiation of the conveyance documents. As examples, included are sample conveyance documents for acquisition of fee interest of property needed for highway purposes from bases undergoing closure pursuant to the Act referenced above.13
BRAC provides a special opportunity for appropriation of Federal land for transportation use. It requires special considerations in deed processing and wording. It is important to note that if Section 107(d) or 317 is used to transfer the land, then the land is transferred under such FHWA statutes and not under BRAC, but rather in consideration of, and coordination with BRAC.14
The United States Postal Service (USPS) will generally negotiate directly with the State DOT regarding land transfer issues associated with USPS land. If an issue arises regarding the payment of compensation for USPS land transferred to a State DOT for a Federal-aid highway project, it is FHWA's position that such transfers should generally not require compensation, although exceptions may be made by FHWA headquarters.15 Under the authority of 39 U.S.C. 411, reimbursement is not a required condition. See also Subpart 1.11(c). Unusual issues related to the transfer of USPS lands should be referred to the FHWA Counsel.
Under 38 U.S.C. 8124, the Veterans Administration (VA) is authorized to grant to any State, or political subdivision thereof easements in and rights-of-way over lands under the VA's supervision and control, with such terms and conditions as it deems advisable. Where the VA elects to grant an easement under its authority, the State DOT should submit its application to the VA.
Special conditions may apply as in 41 CFR 102-75, Real Property Disposal, in general, and specifically in Subpart B, Utilization of Excess Real Property, and Subpart C, Surplus Real Property Disposal.16 The General Services Administration may require the FHWA and the granting agency to agree on certain transfer conditions, such as the following: "In the event of a reversion, the State DOT shall be responsible for the protection and maintenance of the subject premises from the date of notice of intent to revert title until such time as a quitclaim deed or other approved document of transfer revesting title in the United States of America is recorded." GSA has authority to transfer land directly pursuant to 40 U.S.C. 319.
The Attorney General may transfer rights-of-way pursuant to 43 U.S.C. 931(a).
1 Appendix 7
2 On December 15, 2008, the United States District for the Southern District of Florida issued an order deciding that a Section 4(f) review under 49 U.S.C. 303 is triggered only when the Secretary undertakes to "approve" a transportation project or when the Department funds a project and that no such review is required where FHWA acts merely as a land transfer agent, pursuant to 23 U.S.C. 317. Miccosukee Tribe of Indians of Fla. v. United States, No. 08-21703 (S.D. Fla. Dec. 15, 2008).
3Also see footnote 8 and Appendix 4
4 Appendix 8
5 Appendix 9
6 Stipulations are requirements imposed on the State DOT or its nominee by the Controlling Agency that do not run with the land and are not included in the deed. The Forest Service Handbook defines "stipulations" (FSH 2709.12, s. 21.22) and confirms that while intended to be binding on the State DOT, they are not included in the Highway Easement Deed.
7 For further guidance in issues involving acquisition of interests over Native American lands, see "The Acquisition of Easements over Native American Lands for Transportation Projects" at: www.fhwa.dot.gov/real_estate/practitioners/uniform_act/acquisition/acqeas/index.cfm.
8 Appendix 10
9 Appendix 11
10 Temporary uses such as the use of a site for construction equipment, maintenance, or for gathering borrow materials may be more conducive to a permitting process, rather than with a recorded deed and land transfer.
11 See BLM/BOR Memorandum of Understanding at Appendix 12.
12 In this instance, consideration should be given to potential exposure resulting from the environmental condition of the property (see Bullet No. 3 below)
13 Appendix 13
14 In the event that issues arise, it is suggested that you consult with HEPR and FHWA Counsel
15 But see Appendix 14
16 See Appendix 15 GSA Checklist, Report of Excess Real Property, and Title Report.
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