This toolkit section provides example work process flowcharts that various agencies have developed to guide their staff through the Federal Land Transfer documentation process.
FHWA Process Flowcharts
FHWA's General FLT Process for Highway Projects
Federal Lands Highway Division FLT Process
Western Federal Lands Highway Division FLT Process
Other Agencies' Process Flowcharts and State Example
Caltrans FLT Process
U.S. FWS Right-of-Way Application Process
NPS's Process to Request Transfer of NPS Lands for Highway Purposes
Bridge on the Natchez Trace Parkway. Source: FHWA Eastern Federal Lands Highway Division
General FLT Process for Highway Projects
The State entity using Federal highway funds for highway and related transportation projects will complete the National Environmental Policy Act (NEPA) process, preliminary engineering, and plans and title work. If the project traverses any portion of lands under the jurisdiction of a Controlling Agency, the following steps, which are all taken from Section 1.1 of FHWA's Manual for Federal Land Transfers for Federal-Aid Projects (FLT Manual), will typically happen after the pre-application, early coordination occurs.
STEP 1. The State DOT makes application to FHWA for a transfer of Federal lands for the highway project
The State DOT files an application with the FHWA Division setting forth its need for the lands in accordance with 23 CFR 710.601. (See also Federal Aid Policy Guide). Pursuant to 23 CFR 710.201(c), the application must comply with applicable provisions of the State DOT Right-of-Way Manual as approved by FHWA at the time of the request. While not required at this point, in order to expedite the process, it is recommended that the State DOT prepare and include a draft deed with their application in coordination with the Controlling Agency. Additionally, where appropriate, the application should identify if an interim right of entry or temporary construction easement, and its terms, is being requested.
STEP 2. The FHWA Division Office reviews the application to ensure the eligibility of the project for the transfer, that it is reasonably necessary, and that the supporting documentation, plans, title, legal description—is adequate.
The FHWA Division (generally the Division Realty Specialist) reviews the application in accordance with 23 CFR 710.601 and the FHWA Delegation and Organizational Manual. A determination is made concerning the eligibility of the project for the proposed transfer, whether the land is reasonably necessary for the project, and the accuracy of the legal description. If the FHWA Division concurs in the proposed transfer and finds that the application and accompanying materials comply with the requirements, it will proceed to the next step. If any concerns have arisen, the FHWA Division is encouraged to consult with the FHWA Counsel, as appropriate.
STEP 3. When the application is complete, FHWA sends a letter to the Controlling Agency requesting a Letter of Consent (LOC) and Right of Entry (ROE).
The Controlling Agency will be asked to concur in the transfer and specify any conditions necessary for the adequate protection and utilization of the reservation in which the requested land is located. This concurrence is usually in the form of a Letter of Consent further addressed in Step 4 below. The Controlling Agency, depending on its authority and practice, may also provide the State DOT an interim right of entry, pending execution of the deed. If the Controlling Agency objects to the request, it will explain its objections and certify that the proposed appropriation is contrary to the public interest or inconsistent with the purposes for which such land has been reserved.
STEP 4.If the Controlling Agency consents to the transfer, the LOC is sent back to FHWA with ROE and any conditions required for adequate protection and use of the property to be transferred.
If the Controlling Agency concurs in the FHWA transfer, subject to conditions, the FHWA Division and the State DOT review the conditions, negotiate with the Controlling Agency, and reach a determination as to mutually acceptable conditions. This determination identifying the mutually acceptable conditions should be documented along with the Letter of Consent. The deed is then drafted or modified by the State DOT, alone or in conjunction with the Division. The deed shall contain the clauses required by FHWA as well as the agreed-upon conditions. The deed shall also contain clauses required by 49 CFR 21.7(a)(2) (relating to nondiscrimination). All deeds shall be certified by an attorney licensed within the State as being legally sufficient under State law, as required by 23 CFR 710.601(g). See also § 1.10(b) of FHWA's Federal Land Transfer Manual
STEP 5. FHWA sends the LOC w/ROE to the State DOT and requests the preparation of the Highway Easement Deed (HED) for the transfer.
If it has not already done so, the State DOT submits the proposed deed to the FHWA Division, who, after initial review confirms the accuracy of the legal description and plan or plat. The Division then forwards the entire package to the FHWA Counsel with comments and recommendations, if any, along with the State DOT's application submission, the Controlling Agency's Letter of Consent, and accompanying data, and requests a legal sufficiency finding.
STEP 6. FHWA Counsel, after consultation with State DOT legal counsel, reviews the HED and makes a legal sufficiency determination.
The FHWA Counsel and the FHWA Division review the submitted documents and coordinate the resolution of any remaining issues with the State DOT and Controlling Agency, as appropriate. At the conclusion of this review, FHWA Counsel determines if the appropriate process has been followed and if the deed is legally sufficient under Federal law and documents such finding.1
STEP 7. Upon the FHWA Counsel's determination of legal sufficiency, the State DOT delivers the HED to the FHWA Division Office for execution by the designated signatory.
Upon receipt of a finding of legal sufficiency from FHWA Counsel, the FHWA Division transmits the deed to the State DOT for acceptance and signature by the appropriate State official. The State DOT then transmits the deed to the FHWA Division Administrator2 for execution. The FHWA Division Office should then transmit the fully executed deed to the State DOT for recording.
STEP 8. The FHWA Division Office returns the signed HED to the State DOT for recordation. The State DOT proves copies of the recorded deed to FHWA and the FLMA.
Upon recordation, the State DOT should send a copy of the recorded deed to the FHWA Division and the Controlling Agency and coordinate distribution of copies to interested parties, if appropriate, and address any remaining administrative matters. The FHWA Division updates the appropriate FHWA Division log
Federal Lands Highway Division FLT Process
Federal Lands Highway Division FLT Process
State coordinates with Controlling Agency to determine appropriate land transfer process.
If the Controlling Agency has the authority and has elected to transfer the property directly, then that agency's process for federal land tranfers is followed.
If the Controlling Agency does not have authority or has elected to transfer through FHWA, then the state prepares a federal land transfer application that includes a plat and legal description, demonstrates compliance with NEPA, 4(f), and Section 106, and has a title report or title information.
The state submits the application to FHWA.
FHWA sends the request for letter of consent and right of entry to controlling agency. The agency has four months to respond.
The Controlling Agency sends a Letter of Consent to FHWA, specifying conditions, if any. If the controlling agency grants a right of entry, the state may begin construction. If not, the state must wait until the deed is executed.
The state prepares a Highway Easement Deed.
The state reviews for legal sufficiency.
The state submits the Highway Easement Deed to FHWA.
FHWA legal counsel reviews for legal sufficiency.
FHWA Division Administrator signs Highway Easement Deed and returns to state for recording.
State records Highway Easement Deed.
The state sends copies of the recorded deed to FHWA and the Controlling Agency.
Construction may begin.
Western Federal Lands Highway Division FLT Process
Western Federal Lands Highway Division FLT Process
Footprint memo is received for Federal lands and preliminary right of plan is complete.
Right-of-way plans are updated and federal land transfer deed exhibits are created.
Letter of Consent package is prepared using a template letter and highway easement deed.
Federal Land Management Agency (FLMA) and County/State approval process occurs. The MOU allows 120 days.
The FLMA and County/State submit review comments. At this point an interim letter of consent may be recevied. If it is, a request for a final Letter of Consent package is prepared. The approval process in the MOU allows for a 120-day timelime to submit comments.
The Federal Lands Highway deed exhibits are revised based on requests and comments received.
The FLMA reviews and issues a Letter of Consent. The Letter of Consent must be received before sign-off.
After sign-off, the Highway Easement Deed is finalized. This process is as follows:
1a. Western Federal Lands Highway prepares the final Highway Easement Deed.
2a. The deed is internally routed for signature.
3a. The deed package is signed and submitted to the maintaining agency using a template letter.
4a. The maintaining agency signs and records the deed.
5a. The highway easement deed copies are sent to the FLMA and to the internal record to file.
Example of a State FLT Process: California DOT FLT Process
California DOT FLT Process
Phase 1. Initial discussions with local office of granting federal agency (GFA).
Federal Land Transfer Coordinator (FLTC) discusses proposed project with local GFA.
FLTC and Design Engineer determine real property requirements.
District right-of-way (ROW) engineer prepares location and parcel maps, with "draft" federal land transfer (FLT) deed and/or legal description.
FLTC and local GFA review maps, impacted resources, and all temporary/permanent property rights needed.
Resolution of all issues, now ready to get letter of consent (LOC).
Phase 2. Obtaining LOC
FLTC prepares FLT package as per RWPH section 8.18.19.02 requesting LOC via GFA.
FLTC electronically transmits FLT package to GFA with signed cover letter (cc: to FHWA and local GFA).
GFA issues LOC with stipulations. GFA sends LOC to FLTC with cc: to FHWA.
Time to prepare DOT easement deed.
Phase 3. Processing/Recording DOT easement deed.
FLTC requests that District ROW Engineer prepare "Final" DOT Easement Deed with specific stipulations identified in LOC.
ROW Engineer transmits the DOT Easement Deed with stipulations to FLTC.
FLTC sends DOT Easement Deed package to headquarters ROW to facilitate legal sufficiency review and signature by headquarters legal.
After headquarters leagal approves and signs off as to legal sufficiency of the DOT Easement Deed, headquarters ROW FLTC forwards to FHWA ROW.
FHWA ROW reviews DOT Easement Deed and forwards to FHWA legal counsel for review.
After FHWA legal counsel review and approval, FHWA California Division Administrator executes DOT Easement Deed and returns to FHWA ROW.
FHWA ROW returns executed DOT Easement Deed to District FLTC.
USFWS Right-of-Way Application Processing Flowchart for Refuge System Lands
Pre-application meeting. Application requirements, cost recovery, and estimated processing time are reviewed.
USFWS receives the application and reviews for completeness.
If incomplete, additional information is requested.
If complete, the project leader acknowledges receipt of the complete application. If the application is for an existing permitted use, then for NEPA purposes it is a Categorical Exclusion (CatEx) or Environmental Assessment and the project leader asks whether the use is compatible with refuge purposes and whether the Refuge Director has approved the FONSI or CatEx. If the application is not for an existing permitted use, then NEPA scoping begins and the NEPA process continues until a FONSI or Record of Decision. In parallel to these activities, the project leader is drafting a compatibility determination.
Are changes needed to make the use compatible? If yes, the project leader consults with the applicant about potential changes to make the use compatible. If no, there is a public notice and comment period.
The compatibility determination is made. If the use is not compatible, a decision letter denying the application with appeal rights is prepared. If the use is compatible, the project leader submits the package to the Realty Office for permit processing.
The Realty Office prepares the draft permit in consultation with the project leader and the applicant.
Is it possible to determine fair market value with a waiver valuation? If no, the applicant works with AVSO to contract for an appraisal, and the applicant obtains an AVSO-approved appraisal. If yes, the Realty Office uses waiver valuation to determine fair market value.
The Realty Office then finalizes the permit.
A letter transmits the final permit for signature and request for fair market value, monitoring fee, bonding, and cost recovery, if applicable.
The permit is received and executed. Funds are received and then deposited into the MBCF. The permit is entered into LRS. Payment to the field office for processing and monitoring costs occurs.
In parallel to step 11, the executed permit is returned to the applicant.
The proces is complete, and compliance inspections throughout term of permit are conducted.
Process to Request Transfer of National Park Service Lands for Highway Purposes
DOT provides documentation regarding any existing land rights and a description of the project
NPS determines whether a project is inconsistent with the purposes for which the park was established or would obviously cause impairment or derogation of park resources or values
If Inconsistent, NPS to issue Letter of Summary Denial
Sent by Regional Director
Listing objections and reasons for denial
If additional information is needed for NPS to make a decision, continue to 4(f) and NEPA evaluation stage
Preliminary Evaluation Prior to Official Request
FHWA (in consultation with NPS) prepares draft 4(f) evaluation
Environmental Analysis (NEPA, National Historic Preservation Act (NHPA), Clean Air Act)
NPS to consult with DOT and FHWA to review environmental and cultural impacts (NEPA, NHPA) resulting from the proposed use of parkland.
If clear that proposed use is inconsistent with the park's purposes and values, NPS to send letter of denial to terminate process
If review does not result in finding that the proposed use is inconsistent, DOT to proceed with finalization of documents.
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FHWA to Send Official Request for Letter of Consent to NPS Requesting the Land for Highway Purposes
Opportunity for NPS to review documentation one more time including the Highway Easement Deed
4 month clock begins upon Regional Director's receipt of Official Request for LOC
Park superintendent to initiate Letter of Denial or Consent indicating:
Agreement to consent to terms of HED with or without mitigation measures
Conditional denial pending further consideration of possible modification of the proposed project
Denial with no chance of modification, specifying reasons
Regional Director to sign Letter to FHWA, FHWA conveys decision to DOT
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FHWA to Send Official Request for Letter of Consent to NPS Requesting the Land for Highway Purposes
Opportunity for NPS to review documentation one more time including the Highway Easement Deed
4 month clock begins upon Regional Director's receipt of Official Request for Letter of Consent
Park superintendent to initiate Letter of Denial or Consent indicating:
Agreement to consent to terms of HED with or without mitigation measures
Conditional denial pending further consideration of possible modification of the proposed project
Denial with no chance of modification, specifying reasons
Regional Director to sign Letter to FHWA, FHWA conveys decision to DOT
1 Appendix 4 of FHWA's Manual for Federal Land Transfers for Federal-Aid Projects.
2 By delegation of authority, the Division Administrator has authority to execute documents associated with transfer of Federal lands (e.g. see Memorandum regarding Delegation of Federal Land Transfers, dated July 30, 1998 attached as Appendix 5).
