Who would a State DOT or its nominee Local Public Agency contact when their agency requires a Federal Lands Transfer for a Federal-Aid transportation project?
If you are a Local Public Agency, contact your State DOT. If unsure who to contact at the State DOT, begin with your State Right-of-Way Director. If you are a State DOT, contact your Federal Highway DO.
When do I contact the Controlling Agency if an interest in Federal lands is required for a Federal-Aid project?
You should contact the Controlling Agency as soon as possible. This may be as early as during the statewide transportation planning process or during the NEPA scoping phase. Early coordination with the Controlling Agency is key in order to avoid unnecessary project delays.
Where can I find FHWA's FLT manual?
The Manual for FLTs for Federal-Aid Projects is available here.
How long is the typical FLT process?
The length of the FLT process depends on many factors, including early coordination and properly identifying who in the Controlling Agency has the authority to execute the required documents. The process has taken as little as 1 week to as long as several years, but 2-4 months is typical. Early and continued coordination among all parties is the key factor. If there is a question regarding the status of the FLT, continue to coordinate with the FHWA Division Office to determine the status.
I work at a Controlling Agency (Federal agency). With whom do I talk about FLTs, FHWA staff or State DOT staff?
Both; however, begin by contacting your counterpart at the FHWA DO. They can provide information regarding FLTs and explain the process. The FHWA DO can also assist by contacting the appropriate State DOT staff. This contact will hopefully lead to an ongoing collaborative relationship and improve the processing of future FLTs.
What if the Controlling Agency does not send the Letter of Consent within four months?
If the Controlling Agency fails to either 1) issue the letter of consent, or 2) respond with viable reasons for not consenting within the required timeframe (typically 4 months), the FHWA may proceed to effectuate the transfer after the legal sufficiency review is completed. (23 U.S.C. 317(b), 23 U.S.C. 107(d)). However, early coordination is key and the FHWA may extend the reply period for good cause at the timely request of the Controlling Agency (23 CFR 710.601(e)).
Which agency's FLT process do we follow?
An eligible acquiring agency may file an application with FHWA under authority 23 CFR 710.601 or the applicant can apply directly to the Controlling Agency(CA) if the CA has its own statutory authority with regulations which allow conveyance of an interest in its land.
The acquiring agency should be definitive its choice of agency authority, as once the process is implemented a change in agency authority may result in additional requirements and also result in project delays.
What is the purpose and need for the project? (clarification: Why does the SDOT need the Federal Agency's property?)
The Purpose and Need is an integral part of the Environmental Evaluation process. Before a project moves forward, the reasoning for the project and the P&N must be identified and analyzed in the approved Environmental Document for the project.
How do NEPA activities influence the FLT process? When in the NEPA process should a potential FLT be discussed?
The NEPA analysis is a fundamental requirement before a project can move forward to the final design, right-of-way, and construction phases. At the earliest possible point in the NEPA process, if not before, the presence of Federal lands in the project study area must be identified; when that has been done, the Controlling Agency should be notified as soon as possible and coordination initiated.
What is the difference between the Federal-Aid highway program and the Federal Lands Highway program?
While both are FHWA programs, the Federal-Aid highway program is carried out by the State DOT and local public agencies working under State DOT oversight. Under the Federal Lands Highway program, the FLHD acts as a State DOT working directly with the Controlling Agency and the appropriate local agency of government when the project is located on Federal lands.
If a State DOT decides to work directly with a Controlling Agency, what impacts might that have as compared to working through FHWA?
Federal Agencies charged with protection and utilization of lands under their jurisdiction have the authority to charge a fee for the land (either as rent or purchase) and cost of transfer. However, under FHWA authority, the cost of any interest in the lands needed for highway use is considered a public purpose and the fee is typically not charged to the State DOT. The FHWA's involvement can reduce or eliminate the staff charges for transfer. Finally, while 23 U.S.C. 317 provides a 4-month time frame for a Controlling Agency to respond to a request for a Letter of Consent, there typically is not a statutory time frame for the Controlling Agency to process a direct request from the State DOT for consent to the transfer.
What are the advantages of the FLT beyond the stipulated 4-month response time?
The Federal Land Transfer sets out a series of processes that define the procedures that allow parties participating in the conveyance to understand how agencies will cooperate and arrive at a conclusion resulting in the transfer of property. The process identifies which parties are responsible for each aspect of the FLT procedure.
What are the incentives for DOTs to participate?
The incentive to utilize the FLT process can be that there may be existing MOUs between FHWA and the Federal Land Management Agencies (FLMAs) involved the project. Also, following the FLT process provides clarity given the authority provided through 23 U.S.C.107(d) and 317 and set forth in 23 CFR 710.601, which assist State DOTs in obtaining property rights necessary for transportation projects on or eligible for the Federal-aid system.
How frequently are FLTs completed?
According to a 2019 FHWA survey of State DOTs, FHWA Division Offices, and FLMAs on the topic, there is a high frequency of State DOT's utilizing the FLT process. This information and reports have been included in the updated Realty website on the FLT landing pages.
The FLT is prevalent where Federal lands are prominent, particularly states located in the Western and Central United States. In States where there are minimal Federal lands that are affected by transportation acquisitions, FLTs may be less frequent, but the process would still utilized if land that the FLMA owns is affected.
What project types are best suited for/benefit from using the FLT process?
The FLT process outlines the steps to be followed on any transportation project where there is Federal-aid funding or the project may be eligible for Federal-aid funding.
The State DOT does have discretion to not use the FLT process and deal directly with the Controlling Agency if they have authority to transfer property. Such transfers must then follow the Controlling Agency's relevant CFRs and NEPA process.
