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Executive Summary

A. Project Background

When highways are required to cross lands owned by the United States and managed by any of several Federal Land Resource Agencies, a highway easement can be granted to convey the required rights necessary to build and maintain the road under authority in Title 23 USC Section 317. The process to convey an interest in land held by the Federal government is referred to as a Public Land Transfer or Federal Land Transfer even though full fee simple title to the land to be used by the highway is rarely conveyed.

Federal Land Transfers are typically complex, multi-Agency transactions. In addition, except for some parts of the western United States, Federal Land Transfers are rare. Thus, it is possible that realty staff members in a state or Federal Agency will work on only one or two of these transfers over the course of their careers, thus limiting the extent to which any staff member has the opportunity to develop significant expertise in this area.

The low-volume, highly complex nature of the Federal Land Transfer process, along with the relative inexperience of many staff in processing these requests, presents a number of challenges for the various partner Agencies. During discussions at the Interagency meetings and at other forums over the last several years, representatives from several Agencies have identified as an opportunity area the potential to streamline the Interagency Agreement process for Federal Land Transfers and to better leverage best practices in this area nationally. It is believed that there are opportunities nationally to simplify, streamline, and better standardize the process; to adopt best practices that may be working well in one part of the country on a wider scale; and to assess opportunities for applying greater use of technology to support the process.

B. Project Objectives and Approach

In response to these potential opportunities to improve the Federal Land Transfer process, the Federal Highway Administration (FHWA) awarded a task order contract to Dye Management Group, Inc. in September 2004 to analyze the Interagency Agreement process nationally, identify best practices, and develop recommendations for improving the process on a national basis. FHWA, the U.S. Fish and Wildlife Service (USFWS), the U.S. Forest Service (USFS), the Bureau of Land Management (BLM), the Bureau of Reclamation (BOR), the National Park Service (NPS), and the Bureau of Indian Affairs (BIA) actively participated in the project effort, and a number of state departments of transportation were invited to participate in the workshops conducted nationally.

This task order addresses FHWA’s Vital Few Goal for Environmental Stewardship and Streamlining and also Executive Order 13274 which fosters Interagency cooperation and collaboration in the decision-making process. Thus, to the extent possible, the intent for this task order is to leverage the FHWA’s Office of Project Development and Environmental Review’s (HEPE) success in using collaborative problem solving and interest-based negotiation methods between Agencies to streamline its environmental review and approval process.

This study of Federal Land Transfers and the Interagency Agreements supporting this process was conducted by first reviewing the project approach and outcomes of the FHWA Environmental Streamlining initiatives to assess the applicability to this effort and by reviewing the existing Federal Land Transfer Memorandums of Understanding (MOU), Memorandums of Agreement (MOA), and other relevant documentation. Detailed stakeholder interviews were then conducted with staff from various Federal Agencies, and six stakeholder workshops were conducted nationally to document issues, identify best practices, and assess opportunities for improving the process.

C. Findings and Recommendations

Through the analysis activities, the team identified a number of opportunity areas, as well as best management practices that might have applicability for wider use nationally. The team then utilized these opportunity areas and best management practices as the basis for developing a series of specific recommended actions for streamlining and further standardizing the Federal Land Transfer process. These opportunity areas, best practices and recommended next steps are summarized below.

1. Opportunity Areas

The research identified a number of opportunity areas for improving the Federal Land Transfer process including the following:

• Lack of timely notification of pending Federal Land Transfers and not involving impacted Agency realty staff early in the process.
• Difficulty in identifying the appropriate Agency contacts at both the headquarters and field levels to address Federal Land Transfer issues.
• Difficulty in easily finding and accessing resource material and guidance about the Federal Land Transfer process.
• Communication challenges between the various Agencies or between different units of the same Agency involved in the Federal Land Transfer process.
• Limitations with existing national MOUs and MOAs.
• The potential number of highways that still requires easements to be prepared and recorded to perfect title.

2. Best Management Practices

The detailed stakeholder interviews and the participants in the stakeholder workshops identified a number of techniques currently utilized in one or more regions or states that may have applicability nationally for optimizing the Federal Land Transfer process. These best practices included the following elements:

• Using a centralized and/or dedicated resource for processing Federal Land Transfers to provide a central point of contact as well as to allow individuals to develop specialized knowledge about the transfer process.
• Developing detailed documentation of the procedures for executing a Federal Land Transfer and providing these procedures in a format that is easily accessible to staff from all of the impacted Agencies.
• Utilizing interagency initiatives that seek to establish a community of practices and promote sharing of best practices information among Agencies. An example of such an initiative is the General Services Administration’s (GSA) Government-wide Real Property Information Sharing (GRPIS) Program, which highlights best practices, policies and success stories from across the Federal government in the area of property management.
• Establishing a dedicated and focused project team that remains involved throughout the project life cycle for expediting the Federal Land Transfer process and troubleshooting issues that arise during the project. This team should include realty staff as team members as early in the process as possible when it is anticipated that a Federal Land Transfer will be required.
• Establishing regional or local MOUs or MOAs to supplement any national agreements.
• Developing an MOU/MOA to address recording of easements on existing highways, similar to the 2001 California MOU developed by FHWA, USFS, and the California Department of Transportation (CalTrans).
• Providing regular opportunities for Interagency communication that are not project specific in order to discuss issues with the transfer process.
• Funding resource Agency positions to allow for focused effort on Federal Land Transfers.

3. Recommended Next Steps

Based on both the potential opportunity areas and the best management practices identified by interviewees and workshops participants, the Dye Management Group, Inc. project team has defined a number of recommended next steps for streamlining and standardizing the Federal Land Transfer process. These recommended actions include the following:

• Enhancing communication and coordination between and within Agencies.
• Encouraging early involvement in the project development life cycle of all impacted Agency realty resources.
• Updating existing national MOUs and MOAs to ensure consistency with specific Agency policies and guidance.
• Developing a regional MOU/MOA template.
• Providing access to sample deeds, which can be utilized to help develop deed templates at the local level.
• Establishing a Web portal for sharing and accessing guidance documents and other resource material related to Federal Land Transfers. This portal would include a detailed procedures manual incorporating the steps to drive Interagency communication and early project involvement. It would also provide access to the newly developed standard deed template and regional MOU/MOA template.
• Evaluating increased utilization of centralized and/or dedicated resources for processing Federal Land Transfers.
• Establishing a model regional MOU based on the 2001 California MOU to strengthen procedures for ensuring the recording of deeds on a go-forward basis.
• Developing an overview workshop on the Federal Land Transfer process.

D. Implementation Strategy

To implement these recommended next steps, it is proposed that a national Interagency task force of field and headquarters staff be established. This task force would guide a consultant in the initial implementation of the most critical recommendations over a 12- to 15-month period.

E. Anticipated Benefits

Anticipated benefits from the implementation of the recommended next steps in this report include the following:

• Reduced time and cost to process Federal Land Transfers through:
  • Greater standardization of the Federal Land Transfer process through use of templates for MOUs and deeds.
  • Improved access to information.
  • Focused effort of specialized resources more experienced with Federal Land Transfers.
• Reduced project risk through:
  • More effective Interagency communication.
  • Enhanced communication between Agencies and units within the same Agency.
  • Earlier involvement of realty staff in the project development process.
  • More predictable time frames and process for completing Federal Land Transfers.
  • Improved accuracy of deed recording through a focused effort to complete the recording process going forward and a standardized approach for cleaning up existing deeds.

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