This document summarizes information gathered from a comprehensive literature search and review on Federal Land Transfers (FLTs), focusing on resources published since 2005, which was the last time FHWA conducted research on the topic. Section 1 highlights resources developed at the national level to guide agencies through the FLT process. Section 2 provides general information on the State of the practice in FLTs. Section 3 describes State-specific information on FLTs, including a summary of memoranda of understanding (MOUs) that have been developed and unique requirements documented in State Department of Transportation (DOT) right-of-way (ROW) manuals. The final section offers a general reference of contact information for those involved with FLTs.
The Federal government owns roughly 640 million acres, about 28 percent of the 2.27 billion acres of land in the United States. Nearly all of that land (95 percent) is managed by four Federal Land Management Agencies (FLMAs)—the Bureau of Land Management (BLM), Forest Service (FS), Fish and Wildlife Service (FWS), and National Park Service (NPS)—and most of it is concentrated in the West, including Alaska. The Department of Defense (DOD) administers approximately two percent of all Federal land, with a number of government agencies managing the remaining acreage (CRS 2011).
Per authorities provided in 23 United States Code (U.S.C.) 317 and 23 Code of Federal Regulations (CFR) 710.601, property interest in Federal lands may be conveyed between a Federal agency (Controlling Agency) and a non-Federal roadway maintaining agency for the purposes of constructing, operating, and maintaining a highway facility. Although these transactions are referred to as "land transfers," the conveyances do not involve transfers of fee simple interest to the properties and generally compensation for land is not required.1 Only specific property rights for permanent or temporary use are transferred by highway easement with the underlying fee ownership remaining with the Federal agency. While State DOTs initiate FLTs by identifying property needs associated with proposed projects, typically FHWA and the FLMA put the transfers into force.2
Accordingly, both FHWA and its Federal partners have developed detailed references on conducting FLTs. FHWA's Manual for Federal Land Transfers for Federal–Aid Projects (2009 Manual) represents FHWA's guidance document for State DOTs when pursuing FLTs. Chapter 12.6 of the FHWA Office of Federal Lands Highway's (FLH) Project Development Manual complements the 2009 Manual and includes a flowchart of the FLT process, as well as agency-specific steps to follow when submitting a FLT application. Several of FHWA's Federal counterparts also have manuals or policy Statements describing their respective FLT procedures. The FS, for example, describes the FLT roles and responsibilities of its Regional Foresters and Forest Supervisors in Chapter 2730 of FS Manual 2700, while 340 FW 3, Rights-of-Way and Road Closings (1993) describes procedures for FS to follow in relation to rights-of-way and road closings and includes a sample FS easement.
BLM's Land Exchange Handbook provides specific guidance to BLM staff for the consideration of various different land exchanges. Regarding transactions with State agencies, it encourages the development of Statewide agreements or MOUs with BLM State Offices that establish goals, objectives, or procedures for land exchanges with BLM. Such agreements would reinforce the BLM/FHWA Interagency Agreement AA-851-IA2-40,3 which was signed July 27, 1982 and established the procedures for issuing BLM lands for highway ROWs and/or highway material purposes (more information below).
For the NPS, Director's Order #87D (2000) sets forth operational policies and procedures for responding to requests the NPS receives for the use of national park lands for non-NPS highway projects that are partially or fully funded under 23 U.S.C.4 At the U.S. Army Corps of Engineers (USACE), 10 U.S.C. 159, Section 2668 governs the easement evaluation process. Engineer Regulation 405-1-12 in the Real Estate Handbook includes USACE's regulations governing the process when a land transfer request is received. At the FWS, regulations at 50 CFR 29.21 governs the agency's issuance of ROW permits.
| Reference | Description |
|---|---|
| FHWA Right-of-Entry for FLT One-Pager | This document, produced as part of FHWA's "Every Day Counts Innovation Initiative," serves as a quick guide on FLTs, answering some of the more frequently asked questions from State DOTs. |
| FHWA FLT Webinar Training | On April 12, 2011, FHWA held a webinar-based training on the FLT process. The 90-minute presentation included a discussion of revisions that FHWA made to its Manual for Federal Land Transfers for Federal–Aid Projects in 2009. |
| Western Federal Lands Highway Sample ROW Plans, Plats, and Centerline Descriptions | This website provides sample ROW plan, plat, and centerline descriptions in format compatible with Microstation (.dgn). PDF versions are also available. |
In 1982, FHWA and BLM entered into an interagency agreement that set forth procedures for issuing BLM lands for highway ROWs and/or highway material purposes. Under the agreement, which is still in effect, the FHWA leads the FLT process. It is initiated when a State DOT submits a ROW application to FHWA, which then files the request with the BLM. The BLM may either agree to the appropriation or deny the transfer on the basis that it is "contrary to the public interest or inconsistent with the purposes for which such land or materials have been reserved." 23 U.S.C. § 317(b). The FHWA then makes the decision on whether to issue the ROW to the State, subject to BLM's consent (or nonresponse) and any conditions that BLM specifies, and will confirm reclamation at the end of the ROW term. The agreement limits the grant of authority to FHWA to administer the ROW for highway purposes and reserves to BLM the right to issue additional non-highway use authorizations, subject to FHWA consultation.
Similarly, requests for transfer of property for which the FS is the Controlling Agency shall be consistent with the 1998 MOU Regarding the Appropriation and Transfer of National Forest System Lands for Highway Purposes, as amended, that FHWA and FS signed. The national MOU sets the framework for FLTs with the FS.
In addition to the two national MOUs, a number of regional and State-based agreements are also in place (see more information in Section 3).
In 2005, FHWA funded the summary report "Synthesize Division Interagency Real Estate Agreements and Identify Practices for Improved Interagency Support" (2005) which noted that FLTs occur relatively infrequently, especially in non-Western States. The report also found some evidence suggesting that when a project entails a FLT, the project development process can be more challenging and/or slow. It described how the multi-agency nature of FLTs can create a complexity that many realty staff members are not used to dealing with due to FLTs' infrequency. The National Cooperative Highway Research Program (NCHRP) Report 771: Strategies to Optimize Real Property Acquisition, Relocation Assistance, and Property Management Practices supported this finding. One of the recommendations there was for practitioners to "include longer lead times (based on historical experience) in the project schedule if a Federal land transfer or other interagency coordination is expected, thus setting expectations within the State DOT that acquisition activities may take longer than normal for the project."
Accordingly, in 2010 FHWA formed a FLT Working Group to brainstorm and take on certain issues related to FLTs. The group prepared white papers on issues related to: (1) the National Environmental Policy Act process that some agencies had experienced for projects that require a FLT; and (2) on recovery of costs, such as fees for processing the transfer request, administrative costs, or staff time for conducting environmental analyses, that a controlling agency might seek. The Working Group stopped meeting in the mid-2010s, but its efforts highlighted a need for greater standardization of the FLT processes and more effective interagency communication.
During 2019 and 2020, FHWA sought to improve the amount of information available on the prevalence and frequency of FLTs in order that inferences about historical trends and other topics could be possible. FHWA distributed a survey to both state DOTs and FLMAs, compiling and summarizing their responses in two synthesis reports. Those reports are available here (Summary of Results from a Survey of Federal Agencies) and here (Summary of Results from a Survey of FHWA Division Offices). Based on input received from the surveys, FHWA worked with its FLMA partners to establish a FLT Interagency Committee (IAC). The FLT IAC meets approximately quarterly to share experiences and lessons learned during FLTs and to devise strategies for continuing to improve and advance the state of the FLT practice.
Just as Federal agencies have developed detailed references on conducting FLTs, many State DOTs have also developed guidance or documented agency-specific processes for carrying out FLTs. Of 39 State DOT ROW Manuals (or similar) reviewed, 29 included information on the FLT process.5 Among those manuals that include sections on FLTs, there is a broad range in the level of detailed information provided on the FLT process. Some ROW manuals provide general information about the FLT process or plainly refer practitioners to 23 CFR 710.601 or the FHWA's 2009 Manual. For example, the Louisiana Department of Transportation and Development's Real Estate Operations Manual offers the following information for FLTs:
When the Department requires the acquisition of right-of-way from United States Forest Service lands, the Real Estate Regional Manager or designee shall contact the Realty Officer at the LA Division of FHWA. The Real Estate Regional Manager and the Realty Officer will follow the Federal Land Transfer process described in the "Manual for Federal Land Transfers for Federal – Aid Projects", United States Department of Transportation.
Other State DOTs present detailed information on the steps involved in completing a FLT, including information on how the process differs depending on which Controlling Agency is involved. Examples include the ROW manuals from the California DOT (Caltrans), Montana Department of Transportation (MDT), and Utah DOT (UDOT). The Caltrans manual includes information on FLTs that occur with the General Services Administration (GSA). It also features the flowchart below, which outlines the responsibilities for the FLT process for various positions at Caltrans. In addition to the information in its ROW manual, Caltrans also has a separate document, the Caltrans Reference Guide for the Issuance of United States Department of Transportation Highway Easements or Special Use Permits (2010) that provides details on the FLT process for highway projects located on FS lands.
The MDT manual includes an extensive section on FLTs with the Bureau of Indian Affairs generally, and land acquisition procedures with distinct tribes, more specifically. The UDOT manual contains MOUs with BLM and the FS, as well as example land description, highway easement deeds, and other controlled access agreements. Similarly, Oregon DOT (ODOT) has developed a FLT checklist6 that enumerates the items and information that must be sent to ODOT's Headquarters office prior to staff submitting a letter of application to FHWA.
Utah DOT is not alone in having State-specific MOUs with Federal agencies regarding FLTs. At least nine State DOTs have MOUs with the FS; at least two State DOTs have MOUs with the BLM; and at least one State DOT has an MOU with both the FS and BLM together (see Table 1). One project-specific MOU among State DOT, FHWA, the County in which the project was located, and USACE was also found. Each of these are linked in the table below.
Federal Land Transfer (FLT) Process Flowchart District Federal Transfer Coordinator (FLTC) Responsibilities - Flow description
The table below provides general contact information for the Federal agencies involved with FLTs.
| Agency | Where FLT Applications Are Sent | Contact Information |
|---|---|---|
| BIA | The BIA supervises application for construction across Indian lands. All applications for use and occupancy of Indian lands are submitted by the Central Office to the Secretary of the Interior or his/her authorized representative acting under delegated authority. Inquiry should be made at the Indian Agency Area Field Office, or other office of the BIA having immediate supervision over the lands involved to determine the identity of the authorized representative of the Secretary. The application must be submitted in accordance with 25 CFR 169. | Regional Office Contacts |
| BLM | The primary POC for a FLT is the BLM field manager or district manager. | State Right-Of-Way Program Contacts |
| BOR | FLT requests are submitted to the BOR, which, in some instances, coordinates the transfer decision with the BLM. The BOR coordinates FLTs as the Controlling Agency unless it defers to BLM for a decision and subsequent transfer through the Division on behalf of BOR. | Regional Office Contacts |
| GSA | Per 40 U.S.C. 319, GSA has authority to transfer land directly. The primary POC is the GSA's Office of Real Property Utilization and Disposal staff. | Regional Office Contacts |
| Military Departments | Per 10 U.S.C. 266B, applications for transfers affecting lands under the control of the Army or the Air Force are submitted directly to the installation commander and to the USACE District Engineer. Applications for transfers affecting lands under control of the Navy are sent to the Public Works Officer of the appropriate Navy Region. | |
| NPS | FLT submissions affecting NPS lands should be sent to the NPS Regional Director, with a copy to the Chief of Lands and the Park Superintendent. | Regional Contacts |
| USDA FS | The Forest Director having jurisdiction over the needed land should be contacted early in the project development process to discuss the transfer. The land transfer request is submitted to the Regional Forester, or other designated representative of the FS for approval. | Regional Program Office Contacts |
| USFWS | Per 50 CFR 29, FLT application letters are submitted to the Regional Director of the USFWS. | Regional Office Contacts |
| VA | Application for ROW across lands under VA jurisdiction should be made pursuant to the provisions of 38 U.S.C. 8124. Applications should be directed to the Secretary of Veterans Affairs, | U.S. Department of Veterans Affairs 810 Vermont Avenue, NW Washington DC 20420 Information about the Secretary |
23 U.S.C. 317
23 U.S.C. 317 provides the authority for appropriation of lands or interests in lands owned by the United States, when identified as reasonably necessary for the right-of-way of any highway, or as a source of materials for the construction or maintenance of any such highway. The section provides for a filing and review process between the transportation agency and the land resource agency to identify any conditions that may apply to the land transfer. It also provides that any transfer shall revert to the resource agency when the transportation need no longer exists.
23 CFR 710.601
23 CFR 710.601 codifies 23 U.S.C. 317, establishing the procedures for agencies to follow when a FLT is to be conducted.
Arizona DOT. MOU Regarding the Construction, Operation and Maintenance of Highways in Arizona Crossing National Forest System Lands.
This MOU outlines policies and procedures for the Arizona DOT, FHWA Arizona Division, and the FS Southwestern Region to establish and improve cooperative working relationships.
Arizona DOT. MOU between AZDOT, FHWA Arizona, and BLM Arizona.
This MOU outlines policies and procedures for Arizona DOT, FHWA Arizona Division, and Arizona BLM to establish and improve cooperative working relationships for implementing the BLM/FHWA Interagency Agreement Number AA-851-IA2-40 of July 27, 1982.
Caltrans. MOU to Perfect Title along Segments of Existing Highways on Forest Service Lands in the State of California
This MOU establishes a process for its parties to follow to perfect title along previously unrecorded segments of highway existing on Forest Service lands in California.
Colorado DOT. MOU Related to Activities Affecting the State Transportation System, National FS Lands, and BLM National System of Public Lands in the State of Colorado
This MOU establishes procedures for coordinating activities affecting the State transportation system and lands that the FS and BLM administer within Colorado.
Congressional Research Service. 2017. Federal Land Ownership: Overview and Data.
This report discusses the conflicting public values concerning Federal lands that have raised many questions and issues, including the extent to which the Federal government should own land; whether to focus resources on maintenance of existing infrastructure and lands or acquisition of new areas; how to balance use and protection; and how to ensure the security of international borders along the Federal lands of multiple agencies.
Dye Management, Inc. 2005. Synthesize Division Interagency Real Estate Agreements and Identify Practices for Improved Interagency Support. FHWA-HEP-06-012.
This study of FLTs and the interagency agreements supporting them identifies opportunity areas for the FLT process, as well as best practices that the project team believed could have national applicability. Recommended next steps that originated from a series of stakeholder interviews and workshops nationwide are also provided.
FHWA. 2009. Manual for Federal Land Transfers for Federal-Aid Projects.
This manual represents FHWA's guidance document for State DOTs pursuing FLTs.
FHWA. 2011. FLT Webinar Training.
On April 12, 2011, FHWA held a webinar-based training on the FLT process. The 90-minute presentation included a discussion of revisions that FHWA made to its Manual for Federal Land Transfers for Federal–Aid Projects in 2009.
FHWA. 2012. Right-of-Entry for Federal Land Transfers Questions and Answers.
This is a one-page, quick reference that answers some of the more frequently asked questions regarding FLTs. It includes contact information at FHWA for obtaining more information.
FHWA. Western Federal Lands Sample ROW Plans, Plats, and Centerline Descriptions
This website provides sample ROW plan, plat, and centerline descriptions in format compatible with Microstation (.dgn). PDF versions are also available.
FS. 1993. 340 FW 3, Rights-of-Way and Road Closings.
The purpose of this policy is to set out the procedures to be followed by the USFWS in relation to rights-of-way and road closings in accordance with statutes, regulations, and policies.
FS. 2004. FS Manual 2700.
The FS Manual contains legal authorities, goals, objectives, policies, responsibilities, instructions, and guidance that FS line officers and primary staff need on a continuing basis to plan and execute assigned programs and activities.
National Cooperative Highway Research Program. 2014. Report 771: Strategies to Optimize Real Property Acquisition, Relocation Assistance, and Property Management Practices.
This report provided strategies for better integrated real property procedures and business practices in the project development and delivery process. Is also made suggestions to improve property management practices. Authors included a CD-ROM that contained a real property acquisition and relocation assistance model and reference work schedule.
NPS. 2000. Director's Order #87D.
The purpose of this Director's Order is to set forth NPS operational policies and procedures for responding to requests we receive for use of national park lands for non-NPS highway projects that are partially or fully funded under Title 23 of the United States Code.
Oregon DOT. MOU NFS 02-MU-11060000-111 between State of Oregon DOT and USDA FS Pacific Northwest Region.
This MOU documents the steps necessary to coordinate transportation activities of mutual interest between Oregon DOT and the FS involving highway highways on, or accessing, lands that FS manages. Its scope is limited to construction activities, maintenance, and operation of existing highways within the road easement or ROW.
South Carolina DOT. Forest Highway Statewide Agreement for the Administration of the Forest Highway Program in the State of South Carolina.
This agreement sets forth the general terms, conditions, and procedures, mutually acceptable to the FHWA and South Carolina DOT, for the cooperative planning, programming, surveying, designing, construction, and maintaining of Forest Highways in the State.
Vermont Agency of Transportation. MOU on Procedures Related to Highways over National Forest Lands
This MOU establishes procedures for coordinating the location, construction, maintenance, signing, access, protection and conservation of environment, control of pollution, and other matters related to State Highway use and occupancy of Nation Forest lands.
Virginia DOT. MOU for the Design and Construction of Transportation Improvements on Fort Belvoir and U.S. Route 1 between Telegraph Road & Mount Vernon Memorial Highway in Fairfax County, Virginia.
This agreement outlines what its parties agree to do regarding the design and construction of transportation improvements in Fairfax County, VA.
Washington DOT. MOU on Highways Over National Forest Lands.
This MOU documents the cooperation of the parties on transportation activities of mutual interest involving highway highways on, or accessing, lands that FS manages.
Wyoming DOT. MOU for Wyoming DOT Facilities on National Forest System Lands.
This MOU provides procedural guidance specific to project planning and design, environmental processing, Federal land appropriation, construction, and operation and maintenance of transportation facilities on FS lands in Wyoming. Direction is also included concerning the use and disposition of FS resources, signing, third party occupancy, and access control.
1 Some agencies may require fees to cover the cost of processing the transfer request.
2 Under other statutory authorities State DOTs can sometimes deal directly with the Federal agency controlling the land to be transferred.
3 For example, see Appendix D for MOU between BLM, FHWA, and Arizona DOT.
4 NPS Director's Order 87D, which covers Park Roads and Parkways, is currently being developed.
5 ROW Manuals (or similar) for the remaining States were not readily accessible and may be available only via direct communication.
6 Copy and paste the following link into an Internet browser: ftp://ftp.odot.state.or.us/techserv/geo-environmental/Material Sources/Resources/Federal_Land_Checklist_static.doc
