Cambridge, MA
June 5-6, 2019
Vancouver, WA
June 12-13, 2019
The Federal government owns roughly 640 million acres, about 28 percent of the 2.27 billion acres of land in the United States. Four Federal land management agencies (FLMAs)—the Bureau of Land Management (BLM), Forest Service (FS), Fish and Wildlife Service (USFWS), and National Park Service (NPS)—manage nearly all of that land (95 percent), most of which 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.1
Per authorities provided in 23 United States Code (U.S.C.) 317, 23 U.S.C. 107(d), 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.2 Highway easement transfers only specific property rights for permanent or temporary use, with the underlying fee ownership remaining with the Federal agency. While State Departments of Transportation (SDOTs) initiate Federal Land Transfers (FLTs) by identifying property needs associated with proposed projects, typically the Federal Highway Administration (FHWA) and a Federal Land Management Agency (FLMA) complete the transfers.3
FLTs are typically complex, multi-agency transactions that occur with varying frequency. Some SDOTs perform FLTs often, while others rarely participate in this process. For this reason, the extent to which any staff member has the opportunity to develop significant expertise in this area may vary. The complex nature of the FLT process and the varying levels of experience among staff in carrying out the process present a number of challenges for the various partner agencies involved. In fall 2018, FHWA's Office of Real Estate Services (HEPR) began a multi-phase, inter-agency effort to update FHWA's understanding of the current state of the FLT practice.
As part of the initiative, HEPR organized two, 1.5-day interagency peer exchange meetings on FLTs—one in Cambridge, MA and one in Vancouver, WA. The purposes of the meetings were to add clarity to the FLT process and to identify specific opportunities to facilitate the process for practitioners. The meetings sought to:
Resulting actions from these Peer Exchanges will include the development of a list of resources that will increase the knowledge of realty staffs across the Federal government to navigate the FLT process. The meetings also served as the basis for an annual meeting about FLTs that FHWA aims to begin convening with its Federal partners.
FHWA invited a diverse set of stakeholders to each of the peer exchange. Agencies that had representatives participate are listed in the table below. Appendix A offers a complete list of participants along with their contact information.
| Cambridge, MA – June 5-6, 2019 | Vancouver, WA – June 12-13, 2019 | |||||
|---|---|---|---|---|---|---|
SDOT
|
USDOT
|
Controlling Agency
|
SDOT
|
USDOT
|
Controlling Agency
|
|
At both peer exchanges, an FHWA practitioner presented an overview of the FLT process from FHWA's perspective. To summarize, when an SDOT or another public agency within that State, such as a county, is using FHWA funds in a highway project, Federal law authorizes the FHWA to transfer Federal lands needed for the project to the State or their nominee (e.g., other State/local governments). The FHWA does not take title to the land nor does it bring the land under its administration or control. It simply acts as a land transfer agent to convey an interest in land from the United States to an SDOT or its nominee. The transfer is executed through a conveyance document, typically, a highway easement deed (HED). While a HED is the most commonly accepted instrument for conveying Federal land to the State or nominee, there have been only a few instances where other types of conveyance, such as by Quit Claim Deed, were utilized. Whichever form of conveyance is used, the signatory on that document is typically the FHWA Division Administrator.
The two relevant statutes that grant this right to FHWA are 23 U.S.C. 107(d) and 23 U.S.C. 317. Section 107(d) pertains specifically to the Interstate system, whereas Section 317 provides for the transfer for any type of highway. The regulations that implement the FLT process are located in 23 CFR 710.601.
There are eight primary steps in the FLT process:
Certain controlling agencies may elect to utilize their own authority and procedures for effecting land transfers. State DOTs must follow the controlling agency's regulations and the State DOT must continue to follow FHWA regulations ensuring the application is complete. FHWA will continue to provide review of the process if it is a Federal project.
The Alabama FHWA Division Office presented a recent FLT project example: a bridge replacement project on State Route 55 over the Yellow River in south central Alabama. Alabama DOT needed approximately 1.3 acres of USFS land for the project. One of the challenges that the Alabama Division Office encountered was identifying the correct point of contact at the USFS to send the FLT application. Alabama Division Office staff initially sent the application to the Regional Office, but after more than four months without a response, Alabama Division Office staff discovered that the correct contact was the Forest Supervisor. The Division Office recommended the following best practices to address this and other challenges often encountered during the FLT process:
The Alaska FHWA Division Office presented on the state of the practice on FLTs in Alaska. The Federal government owns more than 60 percent of the land area in Alaska. As a result, the Alaska DO has significant experience processing FLTs. On average, the Alaska Division Office processes five to eight FLTs per year; most FLTs are with the BLM or USFS. Some of the challenges that have led to delays in the processing of FLTs in Alaska Division Office include:
The Alaska Division Office and Alaska DOT staff have identified a number of older FLTs that practitioners never fully executed. As a result, the Alaska Division Office and Alaska DOT have had to dedicate resources to perfecting title, including revising deeds.
The Arkansas Division Office routinely processes FLTs with the USFS. The Arkansas Division Office and the USFS follow the November 1999 MOU between the FHWA and the USFS for these transfers. FLTs with the NPS follow the NPS Director's Order #87D: Non-NPD Roads dated December 2000.
During the NEPA process the ARDOT coordinates with the controlling agency about the FLT and most stipulations for the FLTs are agreed upon and documented during the NEPA process. This streamlines the approval process since most stipulations are previous established and included in the FLT deed prepared by ARDOT.
Caltrans presented the agency's FLT process. Caltrans is a NEPA Assignment State, meaning Caltrans performs the Federal responsibilities for environmental decisions and approvals under NEPA for highway projects in California that FHWA funds. FHWA has assigned these responsibilities to Caltrans pursuant to two MOUs.
Chapter 8 of the Caltrans Right-of-Way (ROW) manual outlines the FLT process (http://www.dot.ca.gov/hq/row/rowman/manual/). Caltrans has an FLT Coordinator (FLTC) in each of its 12 district offices and Headquarters. The District FLTC's are the primary points of contact with controlling agencies on FLT activities. The District FLTC is responsible for the full review, final approval, and transmittal of all FLT Requests to FHWA and the controlling agency, or "Granting Federal Agency (GFA)" in California. The FLTC initiates discussions/negotiations with the local office of the GFA that has jurisdiction over the required parcel(s). After all project-related issues and questions have been addressed/resolved with the GFA, the FLTC prepares a Cover Letter and FLT Application Package for transmission directly to the GFA. The application package includes the following information:
The FLTC electronically transmits the Cover Letter and FLT Application Package directly to the GFA, thereby requesting a LOC authorizing appropriation of the needed Federal lands for construction of the project under 23 U.S.C., Section(s) 317 and/or 107(d), or via alternate legal authorities cited by the GFA. The FLTC also sends an electronic, courtesy copy of the Cover Letter and FLT Application Package to the FHWA California Division Office. Caltrans encourages the FLT Coordinators to obtain a permit, right of entry, or other form of permission to facilitate project certification/construction activities if they expect that the GFA might delay the LOC's issuance for any reason.
When the GFA issues a LOC, it transmits the response directly back to the District FLTC, with a cc: to FHWA. Any issues, questions, or objections associated with LOC terms, conditions, and stipulations are addressed/resolved through direct contact between the District FLTC and the GFA and involved project stakeholders including the Design Engineer, Project Manager, and/or Environmental Specialist(s). After receipt of an approved LOC, the FLTC requests that a "Final" FLT Deed be prepared (including all terms, conditions, and stipulations identified in the LOC). Any maps suitable for recording with the FLT Deed are also prepared at this time, and must be identified as "Exhibits." Upon completion of above, the FLTC will submit the "Final" FLT Deed, LOC, FLT Application Package, and approved Environmental document to the Headquarters FLTC to obtain legal sufficiency review of the FLT Deed prior to its conveyance to FHWA. After legal sufficiency has been confirmed (by attorney signature on FLT Deed), the Headquarters FLTC personally transmits the "Original" FLT Deed to the FHWA California Division Office. FHWA's Sacramento Office reviews the above FLT Deed package and forwards it onto their Regional Legal Counsel for review. FHWA's Regional Legal Counsel reviews the entire submission and recommends approval by FHWA's California Division Administrator. FHWA then returns the executed FLT Deed to the District FLTC. The FLTC has the "Acceptance" of the FLT Deed executed by their District ROW Manager (in the presence of a Notary Public) and subsequently records the FLT Deed in all counties where the property is located. After recording, the FLTC retains the "Original" FLT Deed in the ROW Acquisition Parcel File and transmits a conformed copy to the District ROW Engineer, who will post all relevant information to District ROW Record Maps. The FLTC then sends a copy of the fully executed and recorded FLT Deed to the local office of the GFA having jurisdiction and sends an e-mail to FHWA California Division Office (Figure 1).
Caltrans also presented on its State-specific MOUs. In 1998, FHWA and the USFS signed an MOU to establish a process for FLTs called "Perfection of Title" whereby the FHWA may transfer National Forest System Lands to States for highway purposes. Prior to implementation of the MOU, Caltrans and the Forest Service entered into a pilot project on California State Highway 4. This precedent-setting project allowed unrecorded sections of the State highway system to be incorporated with other previously recorded highway segments resulting in one continuous easement for the State of California along a sixty-five mile tract within the Stanislaus and Toiyabe National Forests. The project utilized a simplified survey and legal description process based on the premise that the existing highway is a physical monument that can be referenced in the legal description.
Federal Land Transfer (FLT) Process Flowchart District Federal Transfer Coordinator (FLTC) Responsibilities - Flow description
The FHWA Indiana Division Office and the Indiana DOT (INDOT) presented lessons learned from its most recent experience with processing a FLT. Prior to this recent FLT few of the current staff had experience or knowledge of the FHWA FLT process. Staff identified the following lessons learned:
Mr. Layne Patton, retired from the FHWA Arizona Division Office in 2017, after an extensive 41- year career in the Real Estate Discipline, both public and private. Mr. Patton is a licensed Real Estate Broker in the State of Texas and previously held a Real Estate Residential Appraisers License form 1992 (licensing inception in Texas) to 2002 (during Federal service). He noted during his time as Realty Officer for Arizona and New Mexico that the states were able to establish working perimeters to facilitate a process of completing FLTs that were in various stages of incomplete actions (clean-up process). Additionally, he discussed the FHWA Arizona Division Office's roles in supporting the coordination between Arizona DOT and controlling agencies when FLTs occurred.
Mr. Patton described a multi-agency MOU between Arizona DOT, FHWA Arizona Division Office, and the USFS Southwestern Region MOU that motivated the ADOT and FHWA Division Office to establish a series of template forms to use during FLTs. The FHWA Arizona Division Office found that controlling agencies generally approved FLTs in a timely manner as long as the templates were used.
Mr. Patton also discussed Arizona's significant effort to "clean-up" FLTs from the past. The SDOT reviewed every parcel it had received from a Federal partner to ensure that it had recorded deeds for each. Arizona DOT created a spreadsheet of all parcels that could also track documents and dates when the deeds were recorded. In doing so, staff found 77 parcels for which Arizona DOT did not have deeds. Accordingly, over a period of nine years the SDOT worked with the USFS to finalize amended highway easement deeds for the parcels in question. This included meeting with each National Forest unit ahead of time to build consensus around what Arizona DOT wanted to do.
Mr. Patton also noted that title ownership is becoming increasingly prevalent in various legal proceedings. He encouraged practitioners to exert proper attention on this topic to ensure the proper SDOT ownership is acquired/maintained. This situation, in time, could delay or even stop projects and therefore should be addressed.
The New Hampshire DOT (NHDOT) presented on its experience with FLTs for projects located in the White Mountain National Forest (WMNF). In years past, NHDOT would request a Special Use Permit (SUP) from USFS to conduct routine maintenance of roads to and through the WMNF, and for individual construction projects. More extensive reconstruction projects could take months or even years to receive approval of the SUP. The NHDOT learned that by using a SUP, it was not acquiring the right type of easements. The NHDOT and the USFS embarked on an effort to address the problem. The two agencies developed a list of roadways through the WMNF that should be considered for a highway easement. FHWA's Eastern Federal Lands Highway Division (EFLHD) developed a detailed scope of work and cost estimate to complete the necessary FLT/highway easement deeds for roads within the WMNF. The three agencies FHWA, NHDOT, and USFS, signed an MOU that outlined how the process would work. The EFLHD aerial surveyed the limits of each roadway (25 sections totaling 227 miles including 25 miles of Interstate 93), and hired a local surveyor to survey the roadways, draft the metes and bounds, and record the deed and plans with the Registry. The work, which took over four years to complete, cost approximately $115,000.
The NHDOT also presented the ERROL 41069 project located within the Umbagog National Wildlife Refuge. The ERROL 41069 project, which involves stabilizing approximately 230 feet of riverbank along the Magalloway River, in an existing prescriptive easement over Umbagog lands, requires a new highway easement to relocate about 1600 feet of highway, two slope easements, two drainage easements, and a temporary construction easement within the Refuge. The NHDOT has been coordinating with the U.S. Fish and Wildlife Service (USFWS) on the FLT. As part of the FLT stipulations, the NHDOT will relinquish portions of an existing easement in the current project site that are still located within the Refuge. USFWS requested a land swap late in the process for a parcel abutting the Silvio Conte National Fish and Wildlife Refuge more than 30 miles away.
The FHWA Oregon Division Office presented the state of the practice of FLTs in Oregon. Oregon typically processes one to three FLTs per year, and most of its FLTs are with the USFS and BLM. During the project development process, Oregon DOT regional staff coordinate with the FLMA staff. If the early coordination is done successfully - meaning the agencies have had negotiations and come to an agreement about the project and the land transfer as part of project development and NEPA - then the FLT process is primarily about completing the appropriate paperwork. The FHWA Oregon Division Office streamlined the legal sufficiency review aspect of the FLT process; the FHWA Oregon Division Office only submits a deed to FHWA's Office of the Chief Counsel (HCC) for legal sufficiency review if the deed language varies from language that HCC preapproved.
The FHWA Oregon Division Office described the financial implications when a deed is not closed out before the transportation project is closed. Once the project accounting is closed out, the Oregon DOT cannot easily find funding to pay the costs associated with executing a deed, particularly if additional work, such as resurveying, is needed.
The Virginia DOT (VDOT) described how the agency processes FLTs. VDOT has worked with numerous Federal agencies, including the National Aeronautical and Space Administration (NASA), the Department of Defense, and the NPS, to utilize Federal land for its transportation projects. Since some Federal landowners cannot convey land, permanent easements or permits must suffice in some cases. Some Federal landowners will not convey property until after the project is complete. In such cases, VDOT often receives a Right of Entry, SUP, or License to provide temporary rights to allow VDOT to advertise and construct the project. Then the challenge becomes completing the negotiations by conveyance instrument.
VDOT is actively in negotiations with the King George County Park for a land transfer for the Nice Bridge project. The area of land identified for the project is parkland acquired through the National Park Service's Federal Lands to Parks Program. As a result, in order for the land to be converted to non-recreational land, the NPS, GSA, and DOI must approve the conversion and VDOT must find replacement parkland of equivalent usefulness and location and equal or better fair market value. It took a long time for VDOT and the County to come to an agreement on the replacement property to be used. VDOT and Maryland Transportation Authority and all the parties involved executed a MOA prior to the beginning of the project to agree to participate in the project and provide guidelines for the NPS replacement process.
Through its experience with processing FLTs, VDOT identified the following best practices:
The FHWA Washington Division Office and Washington DOT (WSDOT) presented an example of an FLT on a project that involved no FHWA funding. In order to process an FLT under 23 USC 317 if there is no FHWA funding in the project, FHWA must demonstrate that there is a "strong Federal transportation interest" in the project. The FHWA Washington Division Office and WSDOT described how they made this determination for the Wildcat Creek Bridge project. The Wildcat Creek Bridge is a multi-span bridge located in central Washington on US 12 (National Highway System). WSDOT was contemplating a speed reduction and one lane configuration for the bridge until additional repairs could be made or the bridge replaced. In determining whether there was a "strong Federal transportation interest" in the project, the FHWA Division Office considered the following: US 12 is an important high-speed two-lane rural highway for long-distance travel and is a valuable year-round mountain pass highway that provides a vital connection between the Yakima Valley and the I-5 corridor. US 12 also serves the irrigated agricultural and rural-residential land uses near Naches and throughout the Yakima Valley. It also provides connections to SR 410, Chinook Pass, Cayuse Pass, and Mount Rainier National Park. US 12 is a secondary freight route, but has an important statewide freight function as an alternative to I-90 Snoqualmie Pass and is one of only four cross State routes open year-round. It is also important for access to numerous recreational areas including national forest lands and wilderness areas as well as National Parks and National Monuments. Because of these factors, FHWA concurred with the determination that the project had a strong Federal transportation interest, and the FLT that was required for the project was processed through FHWA.
Like many other states, Washington is currently involved in perfecting title for a number of past projects. There are several reasons why the title was not perfected at the time the FLT was processed, such as the fact that the requirements for processing FLTs have changed over the past 40 years, so older land transfers may not comply with current requirements. WSDOT does not have funding available to address all title issues. In the mountainous areas, a survey may cost upwards of $75,000. Since the agency does not have non-project related funding to use for title perfection, it has been doing title perfection only when there is an active project in the area, and the title perfection is completed as part of the project.
The FHWA Wyoming Division Office described the state of the practice of FLTs in Wyoming. The FHWA Wyoming Division Office is involved in 8 to 12 FLTs per year, primarily with BLM and the USFS. The Wyoming DOT (WYDOT) and FHWA have MOUs in place with both BLM (2007) and USFS (2015). The BLM MOU outlines each aspect of the process, including scoping; NEPA; FLT application; the LOC; deed; and execution. The WYDOT drafts the LOC, which the Division Office signs before submitting it electronically to the FLMA. The WYDOT drafts the HED. It is submitted to FHWA legal for review and then executed by the Division Administrator.
A best practice from Wyoming is they have created maps that overlay the location of the WYDOT districts with the BLM field offices districts in order to assist with identifying the correct point of contact for each project. The Division Office, WYDOT, and the BLM are working through an update to the FLT MOU, with the goal of defining the process and procedures for all parties involved with Federal Land Transfers. The MOU update will include standardized deed formats and language in order to streamline the legal sufficiency review process. WYDOT also has a dedicated USFS liaison funded by FHWA. This position was originally created to support major transportation projects that required extensive and ongoing coordination with the USFS. The position was retained to support ongoing coordination between the State, Division Office and USFS, including the Federal Land Transfer process.
FHWA's Federal Lands Highway (FLH) Program comprises three division offices: Eastern, Central, and Western.4 The Western Federal Lands Highway Division covers Alaska, Idaho, Montana, Oregon, Washington, and Northwest Wyoming.
The FLH Program provides planning, project development, and construction for projects located in or that access Federal lands, including BLM, USFS, National Wildlife Refuge, and Tribal Lands. The FLH's have a detailed flowchart of the FLT process (Figure 2). The activities in orange are included in the project development schedule.
The FLH easement packet contains the following:
Request for Letter of Consent Stage (footprint and NEPA complete) *complete prior to sign-off Top of chart begins - Flow description
Bureau of Land Management (BLM) staff described the FLT process from the BLM perspective. BLM typically transfers rights to use BLM property for transportation projects through FHWA. BLM encourages the development of statewide agreements or MOUs with BLM State Offices that establish goals, objectives, and procedures for land exchanges with BLM. The agency recommends that the MOU outline the escalation process that will be used to resolve issues, as well as provide detailed information about coordination. The coordination information should include timeframes for regular, planned communication.
BLM also encourages DOTs to engage BLM early in the NEPA process if BLM land may be needed for a project. As part of the early coordination process, DOTs should review the applicable BLM resource management plan to identify land located with an area of special planning designation (i.e. wilderness areas, special recreation management areas, etc.). In addition to FLTs, the BLM also provides access to mineral material sites for use in Federal-aid highway projects.
Additional notes for coordinating with BLM on FLTs are:
The U.S. Forest Service staff described the FLT process from the USFS perspective. USFS has the authority to grant ROW for public highway and roads to public road agencies under the Forest Road and Trail Act of 1964 (FRTA). The USFS only uses FRTA authority when the road will not be under the Federal-aid system or the road is a Forest Highway defined under 23 USC Chapter 2. The USFS may also elect to convey Forest Service property through FHWA.
The USFS will convey property through FHWA under the following conditions:
It is USFS policy to respond to a LOC within 4 months. Early coordination and ongoing discussions between FHWA, the SDOT, and the USFS during all stages of project planning and development is important in reducing response time. In order to streamline review and approval of a LOC, the USFS recommends that, before FHWA or its agent submits a formal application for appropriation of NFS lands for highway purposes to the USFS, the USFS and FHWA/Agent should have documented agreement on the following:
The USFS uses a standard LOC consent format and language, which includes:
The specific staff position to submit the LOC varies for each USFS region. In some regions, the Regional Forester retains the authority to sign a LOC, while in other regions the Regional Forester has delegated the authority to each Forest Supervisor. A best practice is to reach out to the appropriate Regional Forester's Office and they will be able to identify the correct point of contact.
U.S. Fish and Wildlife Service (USFWS) staff described the FLT process from the USFWS perspective. USFWS does not have disposal authority and will typically only convey an easement interest by exchange. The agency issues ROW permits under 50 CFR 29.21. This regulation is currently being revised and will likely be published in the Federal Register later this year. The National Wildlife Refuge System Improvement Act of 1997 authorizes the USFWS to issue a ROW Permit only if the proposed use is determined to be compatible with other refuge uses and that the proposed use will not materially interfere with or detract from the fulfillment of the mission of the Refuge System or the purpose(s) of the refuge. Regulations at 50 CFR 26.41 establish the process for determining whether a proposed use is a compatible use. If a proposed use cannot be found to be compatible with the refuge purposes, that use cannot be allowed, and the USFWS will be unable to convey any right-of-way under 23 USC 107(d).
USFWS requires surveys for all of its ROW permits. The FHWA/SDOT surveyor needs to coordinate with the USFWS surveyor to ensure the survey meets USFWS standards.
Nationally, the USFWS has only issued a handful of ROW Permits annually. However, over the last ten years, this number has begun to increase exponentially. There is currently no national USFWS ROW coordinator and all requests fall to the individual USFWS Regions. Realty Specialists within the USFWS Regions have varying degrees of expertise issuing ROW Permits. The time it takes from initial request until a ROW Permit or Easement is issued is very dependent upon the time it takes to receive requested information from an applicant.
FWS Right-of-way Application Processing Flow Chart for Refuge System Lands - Flow description
The General Services Administration (GSA) provided an overview of the Office of Real Property Utilization and Disposal and described its role in real property disposal. The mission of GSA's Office of Real Property Utilization and Disposal, which is organized into 11 regions, is to lead the Federal Government in optimizing its real property portfolio through effective disposition and utilization. The Federal Property and Administrative Services Act gave the GSA the authority to be the Government's real property disposal agent. It has evolved from solely the Property Act disposal agent to a customer-centric government wide realty services provider, including services such as disposals, valuation, due diligence, marketing services, NEPA services, and training.
The official trigger for when the GSA gets involved in the disposal of Federal properties is when an agency submits a "report of excess." On average, it takes 6 to 12 months to dispose of property once GSA accepts a report of excess. The disposal process involves two concurrent steps for screening – one screening for Federal use and another screening for the Housing and Urban Development determination for McKinney suitability (use for homeless shelter programs).5 If the property is deemed not suitable for Federal use or McKinney, then it moves to surplus screening.
Under the public benefit conveyance program, State and local governments and certain nonprofits may acquire surplus property at discounts of up to 100 percent for various types of public use, including for highway or public road widening. In these circumstances, GSA would assign the property to FHWA, and FHWA would serve as the sponsoring agency. FHWA would review the SDOT application and FHWA would develop and sign the deed.
The GSA offers a 3-day training on real property utilization and disposal. Information about the training is available at https://disposal.gsa.gov/s/training.
The NPS staff described the FLT process from the NPS perspective. NPS's authority related to FLTs is located at 36 C.F.R. Part 14, Subpart D – Rights-of-Way under Title 23. The NPS Director's Order #87D: Non-NPS Roads, effective date December 14, 2000 is the NPS operational policies and procedures for responding to requests for use of NPS lands for non-NPS highway projects that are partially or fully funded under Title 23. Additionally, some parks have specific legislation that impacts how they are able to respond to requests for use of park lands.
A key consideration when requesting use of NPS land is Section 4(f). Section 4(f) applies to all NPS lands requested highway ROW purposes that would use funds obtained under Title 23. All lands within the NPS are considered Nationally Significant for 4(f) purposes.
The process to request a transfer of NPS lands for highway purposes is as follows:
FHWA Office of Chief Counsel staff presented legal considerations related to FLTs. FHWA plays a unique role in the Federal government in terms of land transfers. It is the only agency with the statutory authority to appropriate and transfer U.S. lands under other Federal agencies' jurisdictions. FHWA policy is to "balance its responsibility for stewardship of Federal land with its responsibility to provide for a safe and efficient highway system." FHWA has not delegated signature authority below the Division Administrator and legal sufficiency review, which FHWA's HCC does, is a prerequisite to having the Division Administrator sign the deed. HCC is also involved in resolving any legal issues with the SDOT and/or controlling agency counsel.
The following are items that the FLT Deed must include:
FHWA requires the following be included as attachments to the HED:
HCC strongly suggests the deed include the following language:
Throughout the peer exchange, participants identified and discussed both challenges encountered and best practices developed during the FLT process. The following two sections list these items, offering implementation suggestions where participants provided them.
FHWA plans to develop a clearinghouse webpage, or "Toolkit," for FLTs that is located on HEPR's website. The Toolkit will serve as a go-to repository for practitioners involved with FLTs. During the peer exchanges FHWA sought participants' input on components and characteristics they would like to see in the FLT Toolkit. This section summarizes their suggestions.
The participants also brainstormed specific resources they believed would be useful. The table below lists the resources identified.
| Detailed process flowchart | Provide detailed information organized by the steps involved in the FLT process, including activities that occur before the official start of the FLT process (i.e. early coordination, NEPA, etc.). For each step, provide agency-specific information. The flowchart should include estimated timeframes associated with each milestone, as well as steps that occur in advance of the official FLT process when FHWA and SDOTs initially engage controlling agencies. |
|---|---|
| Contact information for the FLMA staff that are involved in FLTs | Identify the point(s) of contact within each controlling agency and FHWA, including those at the staff level and those with FLT decision-making authority. In order to keep the information up-to-date, the contact information should minimize use of specific names and instead primarily list position titles. FHWA could also consider adding information about duties and functions of the job positions involved with FLTs at other agencies. |
| Examples/Templates | Provide examples of the following documents:
|
| Crosswalk of terminology and nomenclature by agency | FHWA, SDOTs, and the controlling agencies use different terms to describe similar concepts. The toolkit should provide a crosswalk of the different terms and nomenclature that each agency uses to help create a common language around FLT issues. Shared terminology is particularly important when developing interagency MOUs. |
| Case Studies | Provide case studies of FLT projects from different regions and that involved different controlling agencies. The case studies should highlight the challenges faced and successful practices. |
| FAQs | FHWA could consider include a Frequently Asked Questions section on the Toolkit website. Example questions that could be answered are:
|
| Agency-specific Manuals/Policies (Federal and State) |
|
| Checklist of steps necessary to complete a FLT | Provide a checklist of all the steps necessary to complete and information to collect throughout the FLT process. |
| Standard Form 299 | Standard Form 299: Application for Transportation and Utility Systems and Facilities on Federal Lands is the standard application to be filled out when an SDOT directly approaches a controlling agency to apply for a ROW on Federal lands. |
| Checklist for what to include in a HED | List typical deed requirements, noting that counties and states may require different information. (See Section 4 above for a list of requirements). |
| Legal references, by agency | Provide a list of legal citations for agencies' authorities to transfer Federal land. |
| Training resources | Provide basic FLT training modules, as well as topic-specific trainings resources. Recommended formats include:
|
| Metes and bounds closing tool | Link to an online property metes and bounds closing tool. |
Based on feedback collected at the peer exchanges as well as input gathered before the meetings, FHWA plans to form a FLT Working Group. FHWA anticipates the group will consist of volunteer subject matter experts from FHWA, SDOTs, and controlling agencies. The group would likely meet periodically via conference call to discuss current topics and developments related to FLTs. It may also meet annually or semi-annually in person at U.S. DOT Headquarters to share FLT experiences. Some peer exchange participants volunteered at the meetings to be on the Working Group; FHWA plans to seek additional volunteers in the near future. A key activity of the Working Group will be to ensure that the Toolkit features resources are relevant and up-to-date.
| Name | Organization | Phone | Peer Exchange | |
|---|---|---|---|---|
| Cecil Werven | BLM | cwerven@blm.gov | (406) 896-5322 | Vancouver |
| Diann Rasmussen | BLM | drasmuss@blm.gov | (503) 808-6397 | Vancouver |
| Stephen Fusilier | BLM | sfusilie@blm.gov | (202) 912-7148 | Vancouver |
| Thomas O'Neil | Caltrans | thomas.oneil@dot.ca.gov | (916) 653-0137 | Vancouver |
| Tammy Keeley | FHWA Alabama Division | Tammy.Keeley@dot.gov | (334) 274-6348 | Cambridge |
| Elizabeth Hoffman | FHWA Alaska Division | Elizabeth.Hoffman@dot.gov | (907) 586-7188 | Vancouver |
| David Blakeney | FHWA Arkansas Division | David.Blakeney@dot.gov | (501) 324-6438 | Cambridge |
| Melani Millard | FHWA California Division | Melani.Millard@dot.gov | (916) 498-5056 | Vancouver |
| Carolyn James | FHWA Headquarters | Carolyn.James@dot.gov | (202) 493-0353 | Cambridge & Vancouver |
| Diane Mobley | FHWA Headquarters | Diane.Mobley@dot.gov | (202) 366-1366 | Vancouver |
| Lavinia Thomas | FHWA Headquarters | Lavinia.Thomas@dot.gov | (410) 962-3527 | Cambridge |
| Nicholas Thornton | FHWA Headquarters | Nicholas.Thornton@dot.gov | (202) 366-1352 | Vancouver |
| Colleen Smith | FHWA Indiana Division | Colleen.Smith@dot.gov | (317) 226-5234 | Cambridge |
| Mark Hasselmann | FHWA Maine/New Hampshire Divisions | Mark.Hasselmann@dot.gov | (207) 512-4913 | Cambridge |
| Chris Woods | FHWA Oregon Division | Chris.Woods@dot.gov | (503) 316-2558 | Vancouver |
| Layne Patton | FHWA, retired | txlap54@gmail.com | (480) 639-9895 | Cambridge |
| Dave Leighow | FHWA Washington Division | David.Leighow@dot.gov | (360) 753-8655 | Cambridge & Vancouver |
| Walter Satterfield | FHWA Wyoming Division | Walter.Satterfield@dot.gov | (307) 771-2941 | Vancouver |
| Angela LaMonica | GSA | angela.lamonica@gsa.gov | (415) 522-3430 | Vancouver |
| Gabrielle Sigel | GSA | gabrielle.sigel@gsa.gov | (617) 565-5701 | Cambridge |
| Sara Massarello | GSA | sara.massarello@gsa.gov | (617) 565-7736 | Cambridge |
| Lynn Wilkins | INDOT | lwilkins@indot.in.gov | (317) 234-5229 | Cambridge |
| Jennifer Cherry | NPS | jennifer_cherry@nps.gov | (978) 970-5260 | Cambridge |
| Chip Johnson | NHDOT | john.johnson@dot.nh.gov | (603) 271-2707 | Cambridge |
| Stephen LaBonte | NHDOT | Stephen.LaBonte@dot.nh.gov | (603) 271-3222 | Cambridge |
| David Brown | Oregon DOT | David.t.brown@odot.state.or.us | (541) 388-6197 | Vancouver |
| Keith Benjamin | Oregon DOT | Keith.S.Benjamin@odot.state.or.us | (503) 986-6583 | Vancouver |
| Jonathan Bloomfield | USFWS | jonathan_bloomfield@fws.gov | (503) 231-2239 | Vancouver |
| Tom Geser | USFWS | tom_geser@fws.gov | (413) 253-8520 | Cambridge |
| Aaron Eklund | USFS | aaron.eklund@usda.gov | (503) 808-2473 | Vancouver |
| Erik Spillman | USFS | espillman@fs.fed.us | (503) 808-2478 | Vancouver |
| Tracy Kremer | USFS | tkremer@fs.fed.us | (505) 842-3445 | Vancouver |
| Daniel Boggs | VDOT | daniel.@vdot.virginia.gov | (804) 786-2917 | Cambridge |
| Carson Poe | Volpe Center | Carson.Poe@dot.gov | (617) 494-2765 | Cambridge |
| Gina Filosa | Volpe Center | Gina.Filosa@dot.gov | (617) 494-3452 | Cambridge & Vancouver |
| Tess Perrone | Volpe Center | Tess.Perrone@dot.gov | (617) 494-2709 | Vancouver |
| Heather Lindstrom | WSDOT | LindstH@wsdot.wa.gov | (360) 705-7359 | Vancouver |
| Hollie Rogge | WSDOT | roggeho@wsdot.wa.gov | (360) 705-7312 | Vancouver |
| Terry Meara | WSDOT | mearat@wsdot.wa.gov | (360) 705-7324 | Vancouver |
| Richard Vanderbeek | WFLHD | Richard.Vanderbeek@dot.gov | (360) 619-7682 | Vancouver |
| Sheryl Snyder, Realty Manager | WFLHD | Sheryl.Snyder@dot.gov | (360) 619-7946 | Vancouver |
| 8:15 | Welcome and Introductions
Federal Lands Research Effort
FLT Program Content |
|---|---|
8:45 |
FLT Process Overview
|
9:20 |
FHWA's Current Research Project
|
9:45 |
SDOTs and FHWA Division Presentation Briefs
|
|
Break |
11:15 |
Roundtable 1: FLT Challenges, e.g.,
|
1:00 |
Roundtable Results, Spotlights, and Q&A
|
1:45 |
FLMA Processes
|
|
Break |
2:45 |
Legal Considerations |
3:15 |
Flowchart Review and Exercise |
4:00 |
Recap of the Day's Discussions & Next Day Logistics |
4:30 |
Adjourn |
| 8:15 | Recap of Day 1 |
|---|---|
8:30 |
Roundtable 2: Brainstorming Resources |
9:15 |
Facilitated Discussion on Needed Resources and Information to be in a FLT Toolkit |
|
Break |
10:15 |
Final Questions
Final Remarks |
11:30 |
Adjourn |
1 https://www.gao.gov/products/GAO-11-377
2 Some agencies may require fees to cover the cost of processing the transfer request.
3 Under other statutory authorities, SDOTs can sometimes deal directly with the Federal controlling agency.
4 See https://flh.fhwa.dot.gov/about/ for more information about the FLH.
5 The McKinney-Vento Assistant Act is a public law that authorizes use of unutilized and underutilized public building and real property to assist the homeless and to make surplus personal property available to nonprofit agencies. The Department of Housing and Urban Development (HUD) administers five individual homeless assistance programs in accordance with the Stewart B. McKinney Homeless Assistance Act (Public Law 100-77) (42 USC 11411 and 11412).
