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Flexibilities in Right-of-Way

Shortening Project Delivery Toolkit

Flexibilities in Right-of-Way

Flexibility in Current Right-of-Way Practices and Procedures

The Right of Way (ROW) process is currently a major part of the project development process. Significant time savings can be achieved by employing flexibilities already provided for in statute and FHWA regulations. This initiative will underline opportunities for improved coordination of ROW activities with other key project development actions in preliminary design; land acquisition, relocation, utilities accommodation and to certify ROW for a project ; NEPA mitigation land needs; and a number of other areas where streamlined approaches may prove beneficial. The proposed initiative deals only with flexibilities allowed under existing regulations and statutes. Legislative changes required for additional flexibilities will need to be addressed separately.

The Right of Way Initiative is the Right Way to Go

The Right of Way (ROW) process is a major part of transportation project development. To make the process faster and easier, the "Flexibility in Current Right-of-Way Practices and Procedures" will assist transportation agencies in taking advantage of the many areas of flexibility already allowed under FHWA regulations and statutes.

Before building a highway project, land and property must be acquired. ROW practices and procedures determine how Federal, State, and local agencies can acquire this land and property. Throughout the ROW process, Federal, State, and local agencies must:

  • Fulfill legal requirements intended to protect property owners and tenants
  • Maintain the integrity of the NEPA process

Coordinating ROW with Project Development. Coordinating ROW activities more successfully with other key project development actions can substantially shorten project delivery. Areas in which streamlined approaches can be employed include:

  • Preliminary design
  • Land acquisition, relocation, and utilities accommodation
  • NEPA mitigation land needs

This initiative deals only with flexibilities allowed under existing regulations and statutes. Additional flexibilities that require new legislative changes will need to be addressed separately.

Unnecessary Caution Causes Unnecessary Delays. To ensure compliance with all relevant regulations, transportation agencies often approach the ROW process cautiously. State DOTs, MPOs, and local agencies may move elements of a project through the ROW process sequentially rather than concurrently. This can significantly lengthen the highway project development process.

There are many reasons for this hesitation. Agencies can be reluctant to use unproven approaches for fear of not meeting NEPA and Uniform Act requirements. They may also fear incurring non-reimbursable expenses.

Advantages of "At-Risk" ROW Activities. There are several flexibilities that can be utilized to expedite the ROW acquisition process. It is important that State, MPO, and local agency ROW staff are well versed and trained in all applicable ROW regulations. When done correctly, the risk of incurring non-reimbursable expenses is negligible. The Federal Highway Administration (FHWA) stands ready to help with this and it is strongly advised that a State work with FHWA if it intends to pursue "at-risk" activities.

Shortening Project Delivery. This initiative can have a major impact on project delivery time. FHWA will ensure that State DOTs, MPOs, and local agencies are able to employ these ROW process flexibilities:

  • Appraisal Waiver valuations with clearly defined thresholds
  • Incentive Payments to Advance Acquisition and Relocation
  • Conditional ROW Certification
  • Appraisals and negotiations of property acquisition (up to $10,000) by the same individual
  • Functional Replacement in acquisition and relocation of Public Facilities
  • Advancement of a Project to Construction under Right-of-Entry for Federal Lands Transfer

Division Office and Resource Center Support. To implement the Flexibility in Current ROW Practices and Procedures initiative, the FHWA offers a range of services. The Office of Real Estate Services, FHWA Division Offices (DO) and the Resource Center (RC) will take the lead in promoting existing flexibilities to the State DOTs, MPOs, and local agencies. It will offer a range of presentations and training programs to ensure that ROW staff is well versed and trained.

Additional support will come from DOs who will work with States to clarify how to apply the flexibilities within existing Right-of-Way regulations and policies. These flexibilities are immediately available for use in the development and implementation of projects.

Injecting more flexibility into ROW practices and procedures is just one of the better, faster, smarter ways to conduct business championed by the Every Day Counts Initiative. It brings transportation agencies one step closer to FHWA's ultimate goal, as described by the Federal Highway Administrator, Victor Mendez: to cut project delivery time in half and more quickly advance innovation into daily practice.

Why are flexibilities needed in right-of-way (ROW) activities?

Right-of-way practices and procedures determine how Federal, State, MPO, and local agencies can acquire the land and property needed for transportation projects. The use of a streamline and concurrent ROW process will lead to better project decision-making and expedite the project delivery process.

What flexibilities can be incorporated into the ROW process?

The flexibilities are already available under federal, state, and local statues and regulations. Flexibilities include functional replacements, conditional right of way certifications, appraisal waiver, incentive payments to advance acquisition and relocation, appraisals and negotiations, and right-of-entry for federal land transfers.

How do these flexibilities affect project time?

Employing and coordinating the flexibilities already provided for in Statute and Federal Highway Administration (FHWA) regulations can save considerable time. A more streamlined ROW process will lead to better project decision-making and an improved and expedited project delivery. Some steps can be done concurrently. Other flexibilities include approaches to shorten existing steps.

What is functional replacement?

When publicly owned and publicly used land and facilities, such as fire stations or police departments, are needed for a highway project, the acquiring agency may replace the property instead of providing monetary compensation. The replacement property must provide equivalent functionality as the acquired property.

Are functional replacements possible on federal projects?

Yes. Use of functional replacement on a project with Federal participation must have concurrence by FHWA.

Can the same person now appraise a property and negotiate its sale?

The Federal regulations implementing the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, allow the same person who appraised, conducted the appraisal review, or made an appraisal waiver determination to negotiate the acquisition of a property whose value is $10,000 or less.

What are the advantages and disadvantages of the flexibility in appraising and negotiating?

Where projects have limited staffing or are in remote locations, considerable money can be saved. A State DOT or local public agency can make more efficient use of its appraisal and acquisition staff and save travel money. The disadvantage is the possible public perception of conflict of interest. This is why some States and LPAs may choose not to use this flexibility.

What is a "conditional" right-of-way certification?

A "conditional" right-of-way certification is provided for in 23 CFR 635.309(c)(3). Sometimes called a "cert 3." This certification is used when some properties on the project that have not yet been acquired, which means the agency is in the process but does not yet have the right of occupancy and use for those properties. Cert 3 can also be used when some displaced persons remain on a project. This initiative provides training when these certifications may be used, helping DOTs, MPOs, and local agencies understand the risks and benefits.

What is a right-of-entry for Federal Land Transfers?

A right-of-entry is a right to enter and begin construction on property that will be acquired for a highway project. A right-of-entry may be requested from FHWA when the State or its nominee processes a Federal land transfer application through FHWA. If the right-of-entry is granted, the State may begin project construction immediately rather than waiting an extended period to execute a highway easement deed transferring the land to the State or nominee. This efficiency can significantly shorten project construction.

How are incentive payments used?

Incentive payments for relocation assistance and acquisition are a relatively new and exciting initiative for moving projects quickly through the right-of-way process. The purpose of incentive payments is to reduce overall project costs and delivery time in the right-of-way phase. Incentive can also minimize litigation and reduce other associated project costs. For example, offering an incentive for people to move early can cut project completion time.

What is Waiver Valuation?

Waiver valuation refers to the valuation process used and the product produced when the Agency determines that an appraisal is not required. The waiver valuation is an efficiency that allows State DOTs and local public agencies to maximize their appraisal staff's productivity. Instead of using an appraiser for low-value and uncomplicated appraisal assignments, an agency may use a qualified negotiator or other staff member to make a value determination.

What is the difference between a waiver valuation and an appraisal?

The requirements for a waiver valuation are less stringent than for an appraisal. The waiver provides significant cost savings, particularly when the acquiring agency has to depend on fee appraisers. The valuation thresholds for waiver determinations are $10,000. With Federal agency approval, the threshold is up to $25,000. Waivers apply to many parcels of land because agencies often acquire strips of property for highway widening or intersection improvements.

What flexibilities are available to coordinate ROW with project development?

This initiative supports the development of processes and agreements that minimize duplication of effort and reduce delays in project implementation. Areas in which streamlined approaches can be employed include preliminary design, land acquisition, utilities accommodation, and relocation project activities.

 ROW  EDC Exchange


Welcome to the Every Day Counts (EDC) Exchange – a series of information exchanges intended to introduce you to FHWA’s EDC Initiatives. The videos that you are about to view include introductions to the initiative as well as specific projects and examples of successful application of the initiative.

Video: Part 1 EDC Connect — April

Video: Part 2 EDC Connect — April

EDC Connect — April Transcript

EDC Connect — April Q&As

Additional Questions and Answers


Page last modified on August 14, 2013.
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