ACTION: Acquisition of Rights-of-Way Changes in the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA)

From: Associate Administrator for Program Development

To: Regional Federal Highway Administrators
Federal Lands Highway Program Administrator

The ISTEA contains provisions which expand the time period within which construction must be commenced on rights-of-way acquired with Federal funds and requirements for eligibility where right-of-way acquisition is undertaken in advance of Federal approval or authorization. The following information is provided for your interim use in ensuring that these provisions are implemented as mandated by Congress:

1. Commencement of construction: Section 1017(a) changes both 23 U.S.C. 108(a) and 108(c)(3) from a 10-year to a 20-year period within which construction must be commenced.

Comment: This change applies prospectively since 108(c) refers to State/Federal reimbursement agreements and 108(c)(3) refers to the approved advances of funds. Any existing agreements or advances would contain provisions for the current 10-year period. Both of these actions may, however, be amended for reasonable cause. The repayment period for revolving funds will continue to be 10 years in order to retain the purpose and effectiveness of the revolving fund. This and other features of the revolving fund program will be addressed in more formal guidance before requests for FY 1993 proposals are solicited.

2. Early acquisition of rights-of-way: Section 1017(b) provides for retroactive Federal reimbursement of the costs of rights-of-way acquired in advance of Federal approval or authorization if several conditions are demonstrated by the State to have been met.

Comment: The question of eligibility for right-of-way costs incurred prior to authorization and prior to the effective date of the ISTEA (December 18, 1991), has already been raised. The rule of statutory construction holds that statutory language applies prospectively unless specific language provides for retroactivity. Since there is no language for retroactive application, this provision can only apply to costs incurred after December 18, 1991, and then only if all of the other qualifying criteria is satisfied. One such criteria requires that the acquisition be certified by the Governor as consistent with a comprehensive and coordinated State land use, environment and transportation planning process. Although we are not aware of any State's current ability to meet this criteria, if a State does develop such ability, the terms and conditions specified in the statute would apply only to costs incurred after December 18, 1991.

3. Preservation of transportation corridors report - Within 2 years following enactment, and after consultation with the States, the Secretary shall report to Congress a national list of rights-of-way identified by MPO's and the States, under the provisions of sections 134 and 135 of Title 23, U.S.C., including total mileage, estimated total cost, and a strategy to prevent further loss of right-of-way, including the desirability of creating a transportation right-of-way land bank to preserve vital corridors.

Comment: This provision was effective December 18, 1991, which means guidance to FHWA field offices and to the States must be developed; consultation with the States and MPO's undertaken; data collected and analyzed; and a comprehensive report to Congress prepared in the remaining 23 months. This provision of the ISTEA does not require rulemaking. We are considering the possibility of working through TRB, AASHTO or a pooled fund study to gather data and prepare the required report.

This Policy Memorandum was Canceled June 23, 1999.

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