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Manual for Federal Land Transfers for Federal-Aid Projects

3.0 Forms of Transfer

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  1. Transfers made under the provisions of Sections 107(d) and 317 need not be in any particular form so long as they comply with statutory and regulatory conditions unless otherwise provided in an agreement with the Controlling Agency. Section 107(d) provides for the FHWA to make such arrangements as may be necessary "to give" the State DOT, or its nominee, constructing the project adequate rights-of-way and control of access from adjoining lands. Section 317(b) is equally broad, although it does not specifically mention control of access. It recites that the "land and materials may be appropriated and transferred to the State transportation department, or its nominee, for such purposes and subject to the conditions so specified."

  2. The deed is prepared by the State, or the military unit with jurisdiction in the case of a BRAC-coordinated transfer, and certified by an attorney licensed within the state as being legally sufficient, as required by 23 CFR 710.601(f). Such attorney is typically an attorney working for the State DOT or for the State Attorney General, although qualified outside counsel may be used. It is recommended that the deed, at a minimum, include the following:

    • The statutory authority under which the transfer is authorized.
    • The identity of the Federal-aid, Interstate highway, or other project involved.
    • A determination that the lands or interests inlands described therein are reasonably necessary for the project.
    • A statement limiting the use to the transportation purpose for which the land is determined to be necessary.
    • A statement that the agency having jurisdiction over the land has concurred in FHWA's transfer of the lands or interests inlands to the State DOT unless such Controlling Agency failed to respond within the 4 month period.
    • An appropriate granting clause, specifying such things as: fee or easement, temporary or permanent, purpose/use for which the land is being transferred, etc.
    • A certification by an attorney licensed in the state that the deed is legally sufficient under state law.
    • Provisions addressing compliance by Grantee with Civil Rights requirements. See 49 CFR 21.7(a)(2).
    • A clause for reversion in the event that the property is no longer needed or being utilized for the transportation purpose for which it is being transferred, and also provides that the Grantee shall return land in a condition acceptable to the Controlling Agency. The deed conditions or stipulations may also specify acceptability.
    • A provision prohibiting the Grantee from assigning or transferring any interest in the property without the prior written consent of FHWA.
    • A clause setting out the time limit for initiation of construction no later than the time limit set pursuant to 23 CFR 630.112(c)(1).
    • All conditions required by the Controlling Agency and agreed upon by the FHWA Division and State DOT.
  3. Reference should be made to applicable terms and conditions of any MOU with the Controlling Agency if such MOU affects Federal land transfers.

  4. It is also recommended that there be a provision specifying that if the land is used for purposes other than for which it is determined necessary, it shall revert to the Controlling Agency. Such provision should further require that the State DOT be responsible for returning it in a condition acceptable to the Controlling Agency prior to or within a reasonable time frame after reversion and provide that upon request the State DOT shall execute and record an instrument terminating the easement in a form that would be effective under applicable State law.

  5. The conveying instrument for grants affecting lands is typically a highway easement deed, wherein the United States of America, acting through the FHWA, appropriates and transfers to the State DOT, the lands or interests in land described therein, subject to any specified conditions.1 The deed concludes with the FHWA Division Administrator's signature and the State DOT's acceptance of the transfer and certification that it accepts the right of way or other interest conveyed and agrees to abide by the conditions of the deed.

  6. Generally, the legal description, Exhibit "A," and the plat, Exhibit "B," will be attached to, and made a part of, the deed. In some jurisdictions, where the plat is not required, the instrument is legally sufficient and entitled to be recorded as a land record of the State, if a metes and bounds description, or other acceptable form of legal description is used. In other jurisdictions, a plat, citation to a recorded subdivision plat or other land map will suffice as the description, if the method used meets the requirements of State law.

  7. To protect the integrity of the highway system, the highway easement deed should include adequate stipulations to ensure the grantee has sufficient rights to construct, operate and maintain the transportation improvement in perpetuity.

  8. A subsequent transfer or assignment from the State DOT or its nominee to a third party requires prior written approval from FHWA. Where a request is received, the FHWA Division staff should forward the request with a recommendation to the FHWA Counsel to determine whether the transaction would remain consistent with Sections 107(d) and 317 (i.e., will the property continue to be operated and maintained as part of a Federal aid highway or, if a strong Federal interest exists, a Federal-aid eligible highway). Also, consideration should be given to the terms of the proposed transfer including but not limited to, the proposed use, protection afforded to the Federal interest, and acceptance of original terms and conditions. Any concerns should be raised to headquarters or the FHWA Counsel. The Controlling Agency should be provided notice and an opportunity to comment before FHWA approves an assignment. The transfer document must expressly include assignment of all conditions of the deed.

  9. The deed should include incorporation language with regard to any attachments to the deed (e.g. "Exhibit A, attached hereto and made a part hereof").

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3.1 Conditions of Transfer Imposed By Controlling Agency

  1. Under the provisions of Section 317(b), transfers of lands are subject to conditions which the Controlling Agency "deems necessary for the adequate protection and utilization of the reserve." If the Controlling Agency has not responded to the State DOT or FHWA Division within a period of 4 months after the filing of an application for the appropriation of lands, the FHWA Division may appropriate and transfer such lands to the State DOT without waiting for further response. The request for concurrence of the Controlling Agency should include notification of such possibility. All effort should be made to coordinate with the Controlling Agency before effecting a transfer and the FHWA Division should expressly notify the Controlling Agency of the intention to transfer the land at the expiration of the 4-month period prior to initiating a transfer.

  2. The standard practice of the FHWA is to concur in all reasonable conditions of transfer, unless redundant or inconsistent with other standard FHWA provisions. For example, a requirement that the State convey to the United States comparable lands might be deemed reasonable if the substitute lands are essential to enable the agency presently occupying the land to carry out its functions. If substitute lands are not required, but requested solely as compensation, the condition is not considered reasonable. Other conditions, as further described below, may involve providing payment of compensation or functional replacement of improvements. In such events, it is suggested that, where appropriate, the interest in the property described in the transfer request be a fee simple, subject to a reversion interest.

  3. It has long been the policy of FHWA that transfers are generally without the payment of compensation. This policy is supported by an opinion dated as far back as 1947, see Appendix 16, when the then Acting Attorney General stated "I concur in the conclusion of the General Counsel of the War Assets Administration that transfer of the land without monetary consideration is authorized by Section 17 of the Federal Highway Act...." 2 FHWA's position is reflected in 23 U.S.C. 101(b)'s policy statement that "it is in the national interest to preserve and enhance the surface transportation system to meet the needs of the United States for the 21st Century." However, FHWA recognizes that some Controlling Agencies may have statutory authority or be subject to a requirement to obtain compensation in the form of fees for certain costs associated with land transfers, such as for processing, monitoring, and rent or fair market value.3 State and local governments are exempted or may be waived from many fees if certain conditions are met (e.g.- BLM, FWS, and FS regulations contain exemptions and/or waivers for State and local governments, with varying degrees of agency discretion, when the transfer is for noncommercial uses or benefits the general public). Where exemption from or waiver of fees is not applicable, reasonable fees may be paid, consistent with applicable statutes and regulations, and any agreements between a Controlling Agency, the FHWA, or a State DOT. If the highway project is intended to improve access to or otherwise benefit the controlling agency's property (e.g., the majority of projects funded under Chapter 2 of title 23), the value of such improvements should be deducted from any fees that are paid.

  4. Various Federal or quasi-Federal agencies, such as the Tennessee Valley Authority or Bonneville Power Administration, may be required to receive compensation because they have fiduciary responsibilities to bondholders or other creditors or because funding of operational costs may be dependent, in whole or in part, on revenues received from real estate assets. In these circumstances, compensation may be a proper condition of transfer, if no other arrangements or conditions can be negotiated.

  5. A Federal agency is entitled to compensation for those appurtenances on its facilities that are to be removed or destroyed in connection with the transfer of its lands. Thus, a Federal agency could impose as a condition of transfer that the State provides substitute land and/or facilities (if any) comparable to those taken in conjunction with the transferred land. See paragraph (g) infra re: functional replacement. However, pursuant to 23 CFR 710.509 the substitute land and/or facilities must be essential for the continued operation of the remaining lands according to the purpose for which the land was reserved to the Controlling Agency. See paragraph (b) supra. The FHWA may concur in such a condition, provided the substitute land and/or facilities do not include an enhancement of the existing facilities. The Controlling Agency is to assume the cost of any enhancements or betterments.

  6. In calculating the value of facilities that must be replaced, there should be a deduction for the accrued depreciation of the oldfacility. When a satisfactory arrangement cannot be achieved with the Controlling Agency, the matter should be referred to FHWA Counsel. A military department may request that the State DOT pay the entire cost of replacing a facility (without enhancement or depreciation), since the department may not be able to use funds for construction without specific Congressional approval. Then the State DOT may agree to pay the replacement cost when there is a compelling need for the highway construction project at that location.

  7. Functional replacement of improvements may be required, if appropriate, under the circumstances. The costs of functional replacement incurred by the State DOT in connection with a Federal land transfer may be eligible for federal reimbursement as a cost of the Project. See 23 CFR 710.509. Functional replacement, if appropriate and requested by the Controlling Agency, is in lieu of payment in damages for the property interest being transferred.

  8. A review by the U.S. Property Review Board or the Federal Real Property Council is not required4. By letter of March 10, 1983, the Assistant to the President for Policy Development advised FHWA that highway conveyances under Sections 107(d) and 317 are exempt from review by the U.S. Property Review Board, and as such are not "public benefit discount conveyances" as described in Executive Order 12348 of February 25, 1982.5

  9. The Controlling Agency often includes a condition pertaining to reversion. Of course, a reversion, if the land is no longer needed by the State DOT, is specified in paragraph (c) of Section 317. See discussion in Subparts 1.13(a) and 1.14(i) and model language in 1.14(j). The reversionary clause should be a standard part of a transfer deed, whether or not included in the Controlling Agency's conditions. The Controlling Agency may require that, prior to reversion, the State DOT contact it for concurrence in the acceptable condition of the lands. This concurrence may be in the form of a written notification to the State DOT and presented to the Division at, or prior to, notification of the Division that the lands are no longer necessary for the intended purpose of the transfer.

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3.2 Delegations

  1. Certain functions, powers and duties vested in the Secretary of Transportation under title 23, United States Code, have been delegated to the Federal Highway Administrator, with authorization for successive delegations, pursuant to the authority of 49 U.S.C. 104 and 322(b), 49 CFR 1.4 and 1.48. Sections 107(d) and 317 have been specifically delegated to the Administrator by 49 CFR 1.48(c)(17) and (b)(3), respectively. Reservations and laws not delegated are contained in 49 CFR 1.44.

  2. Delegations of authority from the FHWA Administrator to subordinate officials are contained in the FHWA Delegation of Authority and Organizational Manual, FHWA Order M1100.1A, para. 12. As provided therein, the Division Administrator has authority to execute the deed, and such authority may not be re-delegated.

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3.3 Statutory Authority

  1. Section 317 set out below, vests in the Secretary of the U.S. Department of Transportation authority to transfer to a State DOT, or its nominee, any part of the lands or interests inlands owned by the United States, upon a determination that the property isreasonably necessary for the right of way, or as a source of materials for the construction and maintenance of a highway constructed on a Federal-aid system, or under the provisions of Chapter 2, Other Highways, of title 23, United States Code. Prior to recodification, section 317 was located at 23 U.S.C. 18. The authority can be traced back to section 17 of the Federal Highway Act of 1921, 42 Stat. 212, 216 (11/9/1921).

    "Section 317. Appropriation for highway purposes of lands or interests inlands owned by the United States

    1. If the Secretary determines that any part of the lands or interests in lands owned by the United States is reasonably necessary for the right- of-way of any highway, or as a source of materials for the construction or maintenance of any such highway adjacent to such lands or interests in lands, the Secretary shall file with the Secretary of the Department supervising the administration of such lands or interests in lands a map showing the portion of such lands or interests in lands which it is desired to appropriate.

    2. If within a period of four months after such filing, the Secretary of such Department shall not have certified to the Secretary that the proposed appropriation of such land or material is contrary to the public interest or inconsistent with the purposes for which such land or materials have been reserved, or shall have agreed to the appropriation and transfer under conditions which he deems necessary for the adequate protection and utilization of the reserve, then such land and materials may be appropriated and transferred to the State transportation department, or its nominee, for such purposes and subject to the conditions so specified.

    3. If at any time the need for any such lands or materials for such purposes shall no longer exist, notice of the fact shall be given by the State transportation department to the Secretary and such lands or materials shall immediately revert to the control of the Secretary of the Department from which they had been appropriated.

    4. The provisions of this section shall apply only to projects constructed on a Federal-aid system or under the provisions of chapter 2 of this title."

  2. The above authority was later supplemented by Section 107(d), below, granting the authority to transfer right-of­-way to a State, including control of access, over lands and interests in lands owned by the United States, required for Interstate System projects, and directing other Federal agencies to cooperate with the Secretary in this connection.

    Section 107. Acquisition of rights-of-way--Interstate System

    1. Whenever rights-of-way, including control of access, on the Interstate System are required over lands or interests in lands owned by the United States, the Secretary may make such arrangements with the agency having jurisdiction over such lands as may be necessary to give the State or other person constructing the projects on such lands adequate rights-of-way and control of access thereto from adjoining lands, and any such agency is directed to cooperate with the Secretary in this connection.

  3. There is case law finding that the provisions of sections 107(d) and 317 must be read together; thus, the concurrence of the Controlling Agency should be sought for transfers pursuant to 107(d) even though only 317 specifically requires seeking concurrence. See U. S. v. 10.69 Acres of Land, More or Less, in Yakima County, 425 F.2d 317, 318-21 (9th Cir. 1970).

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3.4 Statutory Interpretations and Precedents

  1. he FHWA Office of the Chief Counsel has had occasion to interpret various provisions of Sections 107(d) and 317. Representatives of other Federal agencies have been consulted on some of the interpretations. A number of these interpretations have been referenced earlier in sections of this manual. Others are as follows.

  2. In Section 3l7(a), the phrase "lands or interests in lands owned by the United States" includes any interest in land owned by the United States, including interests appurtenant to privately owned property. Examples include a leasehold interest, a reversionary interest, a mineral interest, an easement right in, on and below the surface and a right to control or restrict the use of land. These interests may be relinquished or terminated under the cited statutory authority, for highway purposes.

  3. The clause "for the right-of-way of any highway" in Section 317(a) is interpreted to mean "with respect to," or "in connection with," or "with regard to" an eligible highway. Accordingly, lands required as a maintenance site, stockpile site, or for scenic purposes, or for other construction projects and highway maintenance after the completion of the project, although not contiguous to the project, may be transferred under Section 317(a).

  4. The phrase "such highway adjacent to such lands or interests in land," appearing in the same section, is construed to mean "in the vicinity of" or "in the general area" of such land. Thus, land required as a source of borrow materials need not be contiguous to or actually abut the highway project. The land parcels may be, and very often are, located a considerable distance away from the project. This interpretation is supported by a decision of the Court of Appeals for the Ninth Circuit. The Court said that "adjacent to such land" must be given a broad interpretation and that 8 to 10 miles from the construction would be adjacent to, as contemplated in any reasonable interpretation of the statute. (Southern Idaho Conference Ass'n. of Seventh Day Adventists v. United States, 418 F.2d 411, 416 (9th Cir. 1969)).

  5. The words "as a source of materials" include either transfer of land outright for continuous and unlimited withdrawal of borrow material or the transfer of the right to enter upon the land for the purpose of extracting a specific quantity of materials during a period of time. However, in the case of BLM lands, the quantity of material needed should be specified so that BLM may plan other uses of the site. As a condition of transfer, BLM may seek to require the State DOT to maintain the site even though other entities have been granted use of the site and have caused the need for repair or maintenance. In such event, it is suggested that the terms of the condition be reviewed and negotiated to the extent necessary to ensure that it is reasonable.

  6. In Section 317(b), ­the words "under conditions" appearing in the clause "shall have agreed to the appropriation and transfer under conditions" do not include a condition whereby payment of a monetary consideration is required for the lands to be transferred. The following phrase "adequate protection and utilization of the reserve" can reasonably be interpreted to mean "adequate protection and utilization of the remainder lands". Under this interpretation, a monetary consideration may be required where a portion of a housing project or other facility is being transferred and such transfer will adversely affect the Controlling Agency's investment in the remainder property. The Controlling Agency should not be deterred in its mission or suffer a harm, without compensation, because of the transfer. However, any benefit from the road project should be accounted for in the compensation.

  7. The phrase "such land and materials may be appropriated and transferred" includes the conveyance of a determinable fee interest in the land, or such lesser interest as may be required by the State DOT. This would include a highway easement for highway purposes.

  8. The phrase "or its nominee," appearing at the end of Section 3l7(b), where lands may be transferred to the State DOT, has been interpreted to include an official authorized by State law, another State agency, a city, town, county, or other political subdivision of the State. The State DOT should identify its nominee in writing, either programmatically or on a project-by-project basis. 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 FHWA Counsel to confirm whether the requested transfer is consistent with Section 107(d) or 317.

  9. Section 3l7(c) provides that if, at any time, the need for such lands or materials no longer exists, notice shall be given by the State DOT to the FHWA. Further, there shall be an immediate and automatic reversion to the transferor agency. A quitclaim deed or notice, suitable for recording, shall be prepared by the State DOT or its nominee, stating that the need for the lands or materials no longer exists. Moreover, the FHWA's interpretation of Section 317(c) is that such reversion is immediate and effective when the land is no longer used for highway purposes, even if the State fails or refuses to give notice of that fact. Notwithstanding Section 317(c), GSA may require compliance with its regulation, 41 CFR Part 102-75, as noted in Subpart 1.8(d), supra. (23 CFR 710.601; Federal Aid Policy Guide).6 Some States do not recognize an immediate reversion and the deed might specify that grantee shall quitclaim the land back to the Controlling Agency.7 In all cases, the State DOT shall cooperate with the Controlling Agency to effectuate a reversion consistent with 23 CFR 601(h) and any applicable MOUs or state law requirements.

  10. With respect to the possibility of a reversion, a clause which may be used in an instrument of transfer and which is required in General Service Administration (GSA) conveyances is as follows:

    "In the event of a reversion, the acquiring agency [the State DOT] shall be responsible for the protection and maintenance of the subject Premises [land transferred] from the date of notice of intent to revert title until such time as a quitclaim deed revesting title in the United States of America is recorded."

    In drafting the deed, it is important to avoid conflicting provisions. The reversionary clause may require revision to be compatible with this GSA clause.

  11. Section 317 authorizes the transfer of any lands or "interests in lands" owned by the United States. Since the term "interest in lands" includes the control of access from adjoining lands, a transfer effected under Section 317 may properly include control of access to, from, and between the land transferred and remainder lands of the United States.

  12. Section 317 provides that the lands and materials transferred shall immediately revert to the agency from which the land was appropriated if at any time need for such property no longer exists. Since Section 107(d) has no such requirement, lands transferred for an Interstate project may possibly be given to the State outright, although this has not been done. Since Section 107(d) states that "the Secretary may make such arrangements with the agency having jurisdiction over such lands as may be necessary," it is the policy of the FHWA to include the standard reversionary provision in all Section 107(d) transfers. This policy fosters a consistent relationship with transferor agencies, whether the transfer is effected under Section 317 or Section 107(d). However, with the use of Sections 317 and 107(d) in conjunction with military base closures under BRAC, title 23 CFR 710.601(h) was amended to provide for alternative arrangements to a reversion.

  13. The provisions of Section 317 authorize the transfer of borrow material sites required for the construction or maintenance of projects on a Federal-aid system. Section l07 (d), applicable only to projects on the Interstate System, does not specifically authorize the transfer of borrow materials sites. However, since the provisions of Section 317 are also applicable to Interstate highway projects, the authority contained in both sections of the statute may be relied upon in effecting the transfer of borrow material sites required for such projects.

  14. It is the FHWA's position that Sections 107(d) and 317 were specifically enacted for highway purposes. Thus, these statutes take precedence over more general statutes, which may be considered inconsistent.

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3.5 Analysis of Sections 107(D) and 317

For purposes of comparison, the provisions and requirements of Sections 107(d) and 317 are summarized in a chart included as Appendix 18 of this manual. Column 1 lists the essential elements appearing in either or both of the sections. Column 2 sets forth the precise requirements of Section 107(d), and Column 3 sets out the precise requirements of Section 317. The chart may be used as an overall checklist during the preliminary review of a submission. For example, Item d, Column 3 discloses that a non-Federal-aid eligible project on a State highway system or on a county road would not come under the purview of Section 317. Also, Item k, Column 3 shows that the reversionary interest of the agency from which the interest in land was appropriated is mandatory under Section 317 transfers, but optional with respect to Section 107(d) transfers.

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3.6 Legislative History

  1. Section 317

    • Although sparse, the legislative history of Section 317 does provide clues to the meaning of such phrases as "appropriation of such land," "purposes for which such lands and interests have been reserved," "appropriation and transfer," and "protection and utilization of the reserve." The current Section 317 is a revision and recodification of Section 17 of the Federal Highway Act of November 9, 1921 (42 Stat. 212).

    • Paragraph 1 of Section 17 stated that if the Secretary determined that any part of the "public lands or reservations of the United States" was necessary for the right of way of any highway, etc., the Secretary could file with the Secretary of the department supervising the administration of such lands or "reservations" a map showing the portion of such lands which it desired to "appropriate." Thus, the classes of Government-owned property eligiblefor highway purposes under Section 17, paragraph 1, were apparently restricted to "public lands or reservations," such as unappropriated and unreserved public domain lands. This theory was reinforced by the basic provisions of paragraph 2, which included conditions peculiar to the control of public domain lands, such as filing of a map and determining whether the appropriation of the land was contrary to the public interest or inconsistent with the purposes for which such lands had been reserved. Others believed Congress never intended to impose any such limitation, and concluded that any and all classes of property owned by the United States came within the purview of the statute.

    • To clarify this ambiguity, in Section 317 Congress revised the wording of the former law, enlarged the authority vested in the Secretary and reenacted the law as revised. The revised version applies to "any part of the lands or interests in lands owned by the United States." The phrase "public lands" is omitted, however, for reasons not disclosed by the legislative history, the phrases peculiar to public domain land laws were not modified to agree with the expanded classification of property now eligible for transfer for highway purposes. It is clear, however, that any part of lands or interests in land owned by the United States, regardless of its character may be made available for highway purposes under Section 317.

    • In the absence of other information, a reasonable interpretation is accorded to the words "appropriate," "appropriation," "reserve" and "reservation," so that a meaningful application of these words is possible with respect to other than public domain lands. To achieve that result, "reserve" or "reservation" is interpreted to include "remainder lands" of the United States; and "appropriate" or "appropriation" is considered equivalent to "convey" or "grant" when applied to transfers of other than public domain lands.

    • The term "public lands" was discussed in a decision of the Ninth Circuit Court of Appeals. In that case, the traditional meaning of "public lands" was held to mean land subject to sale or other disposal under general laws Columbia Basin Land Protection Ass'n v. Schlesigner, 643 F.2d 585, 601-02 (9th Cir. 1981) (quoting Newhall v. Sanger, 92 U.S. 761 (1875). The Columbia Basincourt noted, "[t]his has been held to be the meaning habitually used inacts of Congress, unless a statute explicitly provides for a different meaning for the term." Id. at 602 (citing Bardon v. Northern Pacific Railroad Co., 145 U.S. 535, 543 (1892).

    • A more comprehensive description of the term, is contained in the legislative history of Public Law 85-337; 72 Stat. 27, approved February 28, 1958, pertaining to public lands withdrawals by the Department of Defense for defense purposes. (S. Rep. No. 85-857, reprinted in 1958 U.S.C.C.A.N. 2227, 2233). After defining the term generally, the Senate Report on the Bill includes the following comment:

    • In its technical, legal, or statutory sense, however, the term "public lands" by itself - employed interchangeably with the term "public domain lands" - is today used to embrace vacant, unappropriated, unreserved Federal real property; i.e., lands open to the public lands laws relating to settlement, entry, location, and sale, and authorizing entry for mining, mineral leasing, timber, and other materials removal, local public purposes, recreation, homesteading, etc. Such lands are administered by the Bureau of Land Management, Department of the Interior.

    • As indicated in the above excerpt, the clue to the definition lies in the fact that only those lands that are open to sale or disposition under the general land laws of the United States may properly be classified as public domain lands. Thus, virtually all classes of property owned by the United States came within the purview of the statute.

  2. Section 107(d)

    • The legislative history of 23 U.S.C. 107(d) is more informative. Section 107(d) is intended to supplement and expand the authority vested in the Secretary under Section 317. Here, rights of way over Government-owned lands, required for the Interstate System, are to be made available expeditiously and with few restrictions. Unlike Section 317, Congress did not include the 4-month waiting period after the filing of a request for the transfer, and a reversion is not necessarily required. When a land transfer is found necessary by FHWA, the Controlling Agency is "directed" to cooperate with the Secretary of Transportation. Moreover, Congress saw fit [in 107(d)]to include a provision whereby right of way transferred may include control of access, thereby preserving access control where the highway abuts the remainder lands of the United States.

    • Section 107(d), originally enacted as section 109(d) of the Federal-Aid Highway Act of 1956 (Public Law 84-627, 70 Stat. 374, 382, June 29, 1956) was restricted to the transfer of rights-of-way over "public lands or reservations of the United States." To remove the restriction, Congress revised, codified and reenacted the law as section 107(d) of title 23, United States Code (Federal-Aid Highway Act of 1958, Public Law 85-767, 72 Stat. 885, 892, August 27, 1958). The revised version omitted the phrase "public lands or reservations of the United States," and substituted in its place "lands or interests in lands owned by the United States." Thus, similar to Section 317, the provisions of Section 107(d) are now applicable to all classes of property owned by the United States, including public domain lands, regardless of how title to the property originally vested in the United States.

  3. The legislative histories of Sections 317 and 107(d) do not answer all questions on the meaning and intent of these sections. For instance: Is Section 317 applicable to transfers required for an Interstate project? Is Section 317 the sole authority for transfers relating to materials sources, or may Section l07 (d) be used for that purpose on Interstate projects? What significance, if any, should be assigned to the fact that Section 317 expressly provides for the transfer of source of materials, whereas Section 107(d) is silent on the subject? Some of these questions were explored and discussed above in greater detail in Subparts 1.14, 1.15, and 1.16 of this manual. It is the policy of the FHWA that, absent good legal reasoning to the contrary, such issues should be answered in a way favorable to the mission of the Federal-aid highway program. Issues should be evaluated by the FHWA Division Administrator and FHWA Division Realty Specialist, and referred to the FHWA Counsel and HEPR, as necessary.


1 See footnote 20

2 Appendix 16

3 See, for example, Appendix 19.

4 The U.S. Property Review Board was created by Executive Order 12348 on February 25, 1982. Executive Order 12512 of April 29, 1985, rescinded EO 12348. The Federal Real Property Council was created by Executive Order 13327, "Federal Real Property Asset Management," signed by President George W. Bush on February 4, 2004. Executive Order 13327 states: "The policy of the United States is to promote efficient and economical use of America's real property assets and to assure management accountability for implementing federal real property management reforms."

5 Appendix 17

6 But see Southern Idaho Conference Assn'n of Seventh Day Adventists v. United States, supra, where land reserved for a material site under 23 U.S.C. 317, remains a material site until it is specifically canceled by the Secretary.

7The State counsel certifying the deed should be aware of these matters and advise FHWA if the language stating an immediate reversion is included in the deed, but not recognized under State law.

To provide Feedback, Suggestions or Comments for this page contact Dave Leighow (david.leighow@dot.gov).

Updated: 07/18/2014
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