Excerpts from 23 CFR PART 710 QUESTIONS AND ANSWERS
Posted January 11, 2007
Q1. Do early acquisitions prior to NEPA clearance or acquisitions after NEPA clearance and project authorization, by local governments or private parties for federally funded projects need to conform to the Uniform Act requirements?
A1: Yes. To be eligible for reimbursement, 23 U.S.C. 108(c)(2)(A) requires that any land acquired, and relocation assistance provided, comply with the requirements of the Uniform Act.
Q2. What does "lawfully obtained" mean in order to be eligible for credit?
A2. To be eligible for credit, 23 U.S.C. 323(b)(1)(A) requires that the acquired land be "lawfully obtained." In such instances, if the property was acquired for a transportation purpose under the threat of eminent domain (subsequent to the Uniform Act), the requirements of the Uniform Act would apply. If the property was acquired by other means (e.g., local government acquisition via tax delinquency), it must have been acquired in accordance with the laws of the jurisdiction in which the property is located, and not be located within a current transportation facility.
Q3: Can a contribution of real property by a unit of local government be applied as a credit if ownership of the real property will remain with the unit of local government after completion of the project?
A3: Yes. For example, transportation enhancement projects can involve real property owned by units of local government and private entities. To be eligible for a credit, the real property may not be part of a current transportation facility or transportation enhancement already in use as such. The fair market value of the real property newly incorporated into the transportation project will be credited against the non-Federal share of the project. (23 CFR 710.507(c)).
Q4: Can the cost of determining the fair market value of real property applied as a contribution for credit by a unit of local government be applied to the credit?
A4: No, a credit sought by a unit of local government is restricted to the fair market value of the real property, funds, materials, or services incorporated into the project. See https://www.fhwa.dot.gov/real_estate/right-of-way/policy_and_guidance/qa710.cfm#q17.
Q5: Will the allowable credit for early acquisitions be the historic cost incurred or the current fair market value of the acquired property?
A5: The allowable credit for land acquired early (prior to NEPA clearance or project authorization) may be based on either the current fair market value or historic acquisition cost of such land. The method selected (i.e., current fair market value or historic acquisition cost) by the State or local unit of government must be used on a consistent basis and specified in the State's Right-of-Way Manual. The Manual may also specify certain criteria that would allow for use of the alternate method. For example, a State's Manual may require that historic acquisition costs be used as the primary basis for credit purposes and that current fair market value would be used in those instances where: (1) there has been a significant lapse in time since the property was acquired, or (2) there has been a significant change in market conditions (not caused by the project) since the property was acquired. See 23 CFR 710.201(c) and https://www.fhwa.dot.gov/real_estate/right-of-way/policy_and_guidance/qa710.cfm#q17.
Q6: Does Section 138 of Title 23 describe park land? Can public park land incorporated into a transportation enhancement project, which furthers the park use, qualify for credit?
A6: 23 U.S.C. 138, 49 U.S.C. 303, and 23 CFR 771.135 describe the national policy regarding the preservation of 4(f) lands (i.e., publicly owned park and recreation lands, wildlife and waterfowl refuges, and historic sites). Federally funded projects requiring the use of such lands will not be approved unless: (1) there is no feasible and prudent alternative to the use of such land, and (2) the action includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.
Q7: Can public owned right-of-way incorporated into a project qualify for credit?
A7: 23 U.S.C. 323(b)(1)(C) prohibits non-Federal share credits for the incorporation of lands described in 23 U.S.C. 138 (lands subject to Section 4(f)) into Federally funded projects.
Q8. Can land already used for the sponsor's TE project qualify for a credit?
A8. Credits are not available for lands acquired with any form of Federal financial assistance, or for lands already incorporated and used for transportation purposes. See 23 CFR 710.507(c). This includes land within the operating right-of-way limits of a transportation facility.