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Alternative Uses of Highway Right-of-Way

5 Conclusions and Recommendations

State DOTs are increasingly recognizing the threats climate change effects pose on transportation infrastructure, as well as the GHG mitigation potential that renewable energy and alternative fuel technologies present. Likewise, many utility companies have established renewable energy goals, often in response to state or regional GHG regulation. Together, DOTs and utility companies are beginning to capitalize on the opportunities that utilizing ROW presents to develop sustainable energy sources. Doing so not only reduces reliance on fossil fuels but can also promote energy security and conservation, and foster the creation of a local green job market. Such uses can also reduce highway maintenance and operational costs (in instances where a partner agency assumes maintenance responsibility) and generate additional revenue for transportation agencies. The following section describes best practices for both DOTs and FHWA to achieve desired outcomes in producing and distributing renewable energy and alternative fuels along the highway ROW, should a DOT decide to do so.

5.1 Best Practice Opportunities for DOTs

Use of the highway ROW to develop sustainable energy sources has only recently emerged as a viable solution to reduce the GHG emissions associated with transportation operations. The lessons that early adopters have learned and best practice recommendations presented below are intended to inform others seeking to pursue similar projects.

Consider revising state UAPs to include renewable energy.
DOTs interested in utilizing the ROW for renewable energy technologies or alternative fuel facilities should be proactive in their approaches to implementing these projects. State DOTs are encouraged to review their respective UAPs to ensure they are consistent with current needs and that the UAP definition of a utility includes or allows for renewable energy technologies.

Identify state statutory or regulatory constraints that preclude resource development and devise resolutions that would instead foster such development.
Attempts to accommodate renewable energy technologies and alternative fuel facilities in the ROW will likely expose legal constraints that limit opportunities for renewable resource development. A state's utility rules for net metering and feed-in tariffs, for example, may inadvertently and artificially restrict the most promising renewable energy sites on highway ROW. Some rules, such as those in Oregon, only allow consumers to offset load aggregated by meter and feeder across contiguously owned property and on the same rate schedule. Net metering may limit the amount of energy that a given site can generate. These restrictions could result in a greater number of smaller projects, a greater timeline to develop renewable energy resources (or a "solar highway" system), higher cost per kW installed, and/or decisions to pursue REC-based projects instead of those that would be net-metered.

According to some stakeholders interviewed, the development of an "administrative net metering" or feed-in tariff or process would greatly facilitate development of solar power projects in the ROW, ultimately resulting in lowered costs to the public. The tariff would allow an agency to offset its entire electricity load in a given utility's service area by utilizing the most promising ROW locations to their full capacities. While a state DOT might not necessarily take the lead on this action, its involvement and partnership with other agencies will likely be important.

Identify appropriate renewable energy technologies and potential sites through a statewide or regional feasibility study.
A systematic review of the alternative energy potential of the ROW and real estate holdings can provide agencies with a clear picture of the quantity and quality of alternative energy resources under its management and can help a DOT prioritize which technologies to pursue. The following geospatial information is helpful in conducting feasibility studies: transportation real estate holdings; ROW information, including width, slope, and directional orientation; proximity to electricity transmission lines; underlying natural resource constraints, such as presence of wetlands or rare species and their habitats; and renewable energy resource maps. Transportation agencies should work collaboratively with partner agencies to collect and develop the geospatial data deemed appropriate. Additionally, transportation agencies should collaborate with utility companies and public utility boards to share data/maps on subsurface utility facilities for any new renewable energy installations. This would mitigate issues when new transportation projects come along and would help outline potential future utility conflicts.

Review long range transportation plans to identify potential siting conflicts or to develop guidelines for how renewable energy and alternative fuel facility projects might be included in statewide transportation planning.
A Transportation Improvement Program (TIP) is a multi-year capital improvement program of transportation projects. Each metropolitan planning area develops a TIP, which is then incorporated into the statewide transportation improvement program (STIP). Transportation agencies also develop Long Range Transportation Plans (LRTP) that outline the vision for the region's or state's transportation system and services.75 In metropolitan areas, the LRTP indicates all of the transportation improvements scheduled for funding over the next 20 years. The Statewide LRTP may not be project specific, but will clearly detail the policy direction the State plans to take over the next 20 years.

The typical length of lease agreements (20 to 25 years) between the DOT and the utility/developer of the renewable energy project corresponds to the planning horizon of LRTPs. State DOTs should evaluate proposed renewable energy facilities for compatibility against metropolitan and statewide long range transportation plans and TIPs to determine whether proposed facilities conflict with future expansion of the transportation system or policy direction of the State or metropolitan region.

DOTs that are considering how renewable energy projects could be accommodated in highway ROW should integrate these considerations into the transportation planning processes at the state, regional, and corridor levels. This integration would enable states to address renewable energy projects in the ROW in a systematic process rather than on a case-by-case basis.

Develop an internal interdisciplinary team to address the unique issues renewable energy projects in the ROW present.
Renewable energy projects in the ROW differ from typical transportation projects in many ways. As such, these projects inevitably raise unique issues that standard operating procedures and policies may not address. Working through such issues requires a great deal of coordination and communication between departments within the DOT, including real estate services, maintenance, operations, safety, environment, planning and legal. It is important for representatives from each of the relevant departments to be involved early in the planning and decision-making process particularly for initial projects, when there is little to no precedent to rely upon. Developing a consistent internal message within the DOT is also an important factor in minimizing delays that can occur when different DOT offices have varying views or give conflicting direction to project partners. One DOT noted that having top management support that set a clear direction for all of the offices regarding the renewable energy project was "hugely beneficial" because it helped to eliminate any reluctance that may have existed. Furthermore, it is important for project sponsors to include a representative from the FHWA Division Office in these early to minimize the potential for delays.

Flexibility and creativity on the part of the DOT and its partners is necessary to devise solutions that meet the needs of all those involved. For example, DOTs might consider creating a full-time "energy manager" position when feasible. This person would serve as the primary lead and would be responsible for coordinating with the appropriate departments. Several DOTs that were interviewed indicated that the renewable energy learning curve for transportation agency staff is steep and that the dedicated attention of at least one staff member will contribute significantly to the DOT being able to implement a successful project, regardless of the success measure(s) chosen.

The approach to develop renewable energy projects in the ROW is largely dependent upon the specific context of the project, including the ownership and funding structure involved. At this time, there is no one definitive way to design and develop these projects. Similarly, the success of these projects can be defined in a number of ways including meeting policy objectives, having cost-neutral or positive return on investment, and level of public acceptance, among others. Even within a state, the model and approach followed may differ from project to project. A prototype model may emerge as DOTs' experiences in implementing renewable energy projects in the ROW evolve. Until then, however, DOTs and their partners will need to be flexible and creative when contemplating, implementing, and evaluating renewable energy and alternative fuel projects.

Create partnerships with external stakeholders.
It can be beneficial for DOTs to build partnerships with external stakeholders, such as utilities, public utility boards, banks, private energy developers, and alternative energy vendors. Building such relationships that avoid conflict of interest issues can be a valuable asset in educating the DOT and in facilitating issues that may arise later in project development and design. For example, Ohio DOT staff spoke with numerous stakeholders in the renewable energy field to learn about the technologies available and to ensure that the agency was obtaining the best value for its investments. The staff attended trade shows where they were able to network with representatives in the renewable energy industry.

State DOTs should also explore opportunities for public-private partnerships, especially in states where capital funding, and thus the means to undertake their own feasibility studies or renewable energy projects, is limited. Additionally, it is important to coordinate with the utility company early in the development of renewable energy projects where the local utility is not an active partner. This is particularly important if a proposed project does not have an identified customer for the electricity that will be produced.76

Specifically regarding wind energy project development, wind project proponents should first consult with the FAA, the Joint Program Office (JPO), and any local DOD installations about the siting of their project in order to avoid delays and unnecessary investigation expense. This should be a preliminary step in the development process. Early consultation with the FAA and JPO will allow project developers to evaluate whether their project site may potentially interfere with air defense radar and determine whether mitigation is necessary and possible.

Develop comprehensive value-based selection criteria for renewable energy and alternative fuel facility projects in highway ROW.
Renewable energy projects in the ROW can help agencies achieve their environmental and sustainability goals. When cost is the primary selection criteria used to award contracts, state-sponsored renewable energy projects could reward labor and environmental practices that are not in line with the overall sustainability and environmental goals that the project is intended to support. Outsourcing jobs and subsidizing such environmental practices may be unintended but foreseeable consequences of solely cost-based public investments. As a result, some states have utilized comprehensive value-based criteria to evaluate and award contracts for renewable energy projects. A state DOT may not necessarily take the lead on this action. Other agencies within a state may develop value-based selection criteria that the DOT could adapt to its needs.

When procuring the PV modules for its solar demonstration project, ODOT evaluated proposals using a set of value-based selection criteria (see Appendix E). In addition to corporate qualifications, technical characteristics of the proposed PV modules, and price, the selection criteria also included commitment to Oregon's Sustainability Policies, such as recycling of PV module materials after their useful life and the manufacturing locations of the PV modules. Careful consideration of the project's contribution to the state's overall public interests and values, not just direct costs, ensured that the demonstration project truly supported the state's sustainability goals.

5.2 Opportunities for FHWA

There are considerable economic, ecological, legal, and political uncertainties related to whether accommodating renewable energy technologies and alternative fuel facilities can be practical highway land management practices. FHWA is positioned to provide information and other assistance to DOTs that will better enable them to consider the implications and evaluate the feasibility of implementing renewable energy and fuel options in the ROW. Based on discussions with the stakeholders, FHWA will carefully consider the following next steps, although no commitments are made at this time:

Clarify its endorsement of using highway ROW to accommodate renewable energy technologies and alternative fuel facilities.
FHWA should make its position on accommodating renewable energy technologies and alternative fuel facilities in the ROW clear either in a policy, a directive, or a leadership statement. This activity would help establish continuity in decision-making when key personnel change. FHWA should also establish a point person within FHWA Headquarters whom Division Office staff can contact regarding alternative uses of the ROW.

Consider using pilot projects to identify any needed revisions or policies that restrict a DOT's ability to construct and operate renewable energy technologies and alternative fuel facilities in highway ROW.
Commercialization along the interstate highway system is restricted by Federal statute and regulation. States that receive Federal Interstate funding are prohibited from locating automotive service stations on the ROW of the Interstate System (23 USC 111). States are also prohibited from charging the public for goods and services at safety rest areas except for telephone and vending machines (23 CFR 752.5). Such restrictions limit the ability of the DOT to construct alternative fuel facilities in the highway ROW. FHWA should consider reviewing these regulations, perhaps in the context of a pilot project, to determine whether and how the regulations might be modified to better enable DOTs to accommodate alternative fuel facilities. FHWA should also ensure that new policies do not contradict existing policies and vice versa. Such activities would align with the January 2011 Executive Order to Improve Regulation and Regulatory Review, which encourages agencies to choose alternative regulatory approaches that maximize net benefits, including potential economic, environmental, public health and safety, and other benefits.

This action would likely be especially helpful for state DOTs considering highway ROW for siting EV and PHEV charging stations. Although most EV and PHEV owners will likely recharge their cars overnight at home, "range anxiety" among drivers is expected to remain a challenge until the connectivity of the charging network is improved. The ChargePoint America program, funded in part with a $15 million grant from the DOE, is working to address this issue to a degree through its plans to install 4,600 charging stations across the country. However, this and other similar and complementary efforts are necessary to help ensure the use of this potentially cleaner fuel source is maximized. Highway ROW may offer additional suitable locations, assuming regulatory barriers are addressed.

Finally, Federal regulations require that property purchased with Federal Highway funds must benefit the transportation system. This qualification may be an impediment to accommodating renewable energy and alternative fuel technologies in the ROW, particularly in situations where the DOT will not purchase the electricity generated by the renewable energy facility. FHWA should examine whether renewable energy activities within highway ROW could constitute a transportation use and, thus, be eligible for accommodation; the Agency should define or clarify how these activities are connected to the agency's responsibility to build and finance transportation infrastructure that supports the traveling public's needs. FHWA should also reconsider its environmental guidelines and scope of ROW acquisition for future projects, if renewable energy actions are considered authorized transportation uses. This would enable DOTs to routinely analyze future projects regarding their potential for renewable energy activities. Accordingly, there may be justification to acquire additional ROW to accommodate the energy purposes along with the highway use. The proposed activity may require revision to Title 23 U.S.C. and Title 23 CFR.

Work with AASHTO and other relevant partners to address patent issues for renewable energy projects in highway ROW.
Some existing patents could be detrimental to advancing the practice of accommodating renewable energy systems on highway ROW. Since it is unlikely that all utility companies will have necessary licenses, the geographic extent in which DOTs might install projects could be limited. For example, if only one utility company has a required license, that state's DOT might be reluctant to consider other solar projects in places outside of the licensed utility's service area. Presumably, some of the "avoided" regions could have the state's prime solar, wind, or geothermal resources and/or available ROW. FHWA should coordinate with AASHTO and other relevant partners to discuss potential patent issues that may exist related to implementing renewable energy systems in the ROW.

Coordinate early involvement with the U.S. Department of Energy to facilitate the development of renewable energy projects in the highway ROW.
FHWA should facilitate national-level coordination with the DOE to coordinate initiatives and funding in order to maximize Federal support of these projects. Because of the dual energy and transportation aspects of siting renewable energy projects in the highway ROW, both DOE and FHWA may frequently be involved in the NEPA process. Because each agency has different processes for carrying out its NEPA responsibilities, determining which agency will serve as the lead agency for NEPA will have implications for projects.77 For example, because ODOT received funding from the DOE for its Baldock project, the project was initially required to follow the DOE's NEPA regulations. However, lacking familiarity and experience with DOE's NEPA regulations, ODOT requested that it be allowed to follow FHWA's NEPA regulations. After a lengthy process, DOE allowed ODOT to follow FHWA NEPA regulations for research and development projects but did not extend the allowance to any potential future renewable energy projects. Similarly, the Ohio DOT essentially completed two NEPA processes, one for DOE and one for FHWA, for its wind project.

FHWA and DOE should coordinate to address the dual nature of these projects. Developing a memorandum of understanding or other agreement that clearly defines NEPA responsibility for renewable energy projects in the highway ROW would help to address DOTs' questions and concerns in this area. Additionally, because such projects support national energy and transportation goals, the two agencies should work together to leverage funding. Coordinating programs that support climate change, renewable resource development, electric vehicles, smart grid technologies, and sustainable transportation could enhance the value of each.

Evaluate the benefits of comprehensive value-based selection criteria for renewable energy and alternative fuel facility projects in highway ROW.
Procurement policies focused only on cost-based principles may fail to achieve the values Federal and state leadership has established. FHWA should research effective value-based selection criteria that DOTs can utilize when awarding contracts for renewable energy and alternative fuel facilities. FHWA could solidify its position as a leader in promoting a more sustainable transportation infrastructure development practice by assisting DOTs in developing comprehensive value-based selection criteria for renewable energy projects in highway ROW.

Analyze effective DOT practices in administering ROW access on routes controlled under the Highway Beautification Program.
FHWA has issued policy regarding the clearance of vegetation within the ROW that may be impairing the view of outdoor advertising signs from the travelled way.78 Some DOTs have had experience in allowing contractors ROW access on routes controlled under the Highway Beautification Program for this purpose. An analysis of experiences administering this type of program could relate to establishing and maintaining renewable energy or alternative fuel uses within highway ROW.

Consider the potential benefits of sponsoring research to evaluate rest areas and/or excess lands for renewable energy generation.
To date, there has been limited nationwide research on sustainable rest area design and operating practice or their environmental impact or carbon footprints. According to FHWA, the last exact count of rest areas occurred in 1972, when 1,214 rest areas were reported. A preliminary count made as a part of the research reported here indicates that there may be significantly more rest areas today. These facilities seem to offer some of the more immediate opportunities for accommodating renewable energy technologies and alternative fuel facilities in highway ROW given the facilities' potential sizes, setback from high-speed moving traffic, electricity needs, and potential electricity demands should EVs penetrate the fleet to a higher degree.

The proposed research should analyze available information for rest areas, such as square footage, date of construction, type of construction, use, and proximity to communications towers or other significant interferences and major electrical transmission lines that could provide convenient interconnections to the electricity grid. The analysis would result in development of a suitable site profile or guidance for different scales of renewable energy projects at rest areas. The site profile or guidance would be based upon a set of criteria that could include minimum requirements for natural resource availability; site acreage; distance from travel lanes, residences, and other development; construction access; and electrical interconnection points' as well as environmental and other pertinent constraints. The research would potentially help DOTs reduce life cycle cost for energy, conceptualize sustainable and renewable actions and features to rest areas, improve the visitor experience, and reduce GHG emissions.

Furthermore, previous FHWA ROW acquisition policy encouraged excess ROW acquisition to extend to natural topographical barriers or whole block acquisitions to mitigate environmental impacts, areas that may be located within or outside the typical ROW limits. According to the questionnaire distributed to FHWA Division Offices as a part of this research, 23 of the 39 respondents indicated that their excess ROW could potentially be used for renewable energy facilities. Alluding to a gap in state DOT property management tracking that has been noted elsewhere,79 Ohio and Oregon DOTs noted that they are undertaking GIS efforts to identify excess land parcels that are greater than five acres. The DOTs have found that at this time land parcels at least that size are needed to build renewable energy facilities at scales that make them economically feasible.

Other areas that may be suitable for renewable energy activities because of land use planning changes include scenic easements under the Highway Beautification program, state-owned borrow pits, waste areas, and banked mitigation lands. Such lands should also be inventoried and included in the assessment of DOT held property interests to help DOTs assess the magnitude of ROW they may have available for alternative uses.

Help build a community of practice that develops and provides training to ROW practitioners on accommodating alternative energy technologies and alternative fuel facilities in the ROW.
Technology and information transfer will be critical to helping transportation audiences in the future with renewable energy and alternative fuel resource development efforts they may envision. As such, FHWA should work with relevant partners to help build a community of practice that would be able to develop and provide training on accommodating alternative energy technologies and alternative fuel facilities in the ROW. The proposed community of practice would offer forums (deployed via in-person training courses and/or webinar presentations) for transportation practitioners to share challenges and lessons learned, as well as to ask questions of other DOTs, utilities, universities, and related stakeholders that have more experience. By undertaking this activity, FHWA could also help respective state DOTs establish champions for pursuing renewable energy and alternative fuel projects in the ROW should the DOT desire to do so.

Some strategic training topics that the community of practice should address include:

Potential next steps for FHWA are:


75 For more information on the LRTP process, see

76 Organizations such as the Electric Power Research Institute may be able to work with DOTs and FHWA Division Offices to identify utility partners to buy or distribute power.

77 In 1978, the CEQ issued Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act (40 CFR §§ 1500–1508) to assist Federal agencies in effectively implementing the environmental policy and "action forcing" provisions of NEPA (42 U.S.C. 4321). To address the NEPA responsibilities that CEQ established, FHWA issued regulations (23 CFR § 771), Environmental Impact and Related Procedures. The FHWA guidance complementing the regulations was issued in the form of a Technical Advisory (T.6640.8a), Guidance for Preparing and Processing Environmental and Section 4(f) Documents. The Technical Advisory provides detailed information on the contents and processing of environmental documents. The DOE's NEPA implementing procedures are described in 10 CFR 1021.


79 FHWA. 2010. Estimated Land for Carbon Sequestration in the National Highway System.

Updated: 03/31/2014
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