April 2019
Federal Land Transfers (FLTs) are typically complex, multi-agency transactions that occur with varying frequency nationwide. Some State Departments of Transportation (DOTs) perform FLTs frequently, while others are rarely, if ever, involved in the process. Between fall 2018 and spring 2019, the Federal Highway Administration's (FHWA's) Office of Real Estate Services (HEPR) conducted two surveys—one geared toward FHWA Division Offices and one directed toward Federal partners—to update its understanding of the current state of the FLT practice, specifically challenges and potential solutions. This report summarizes results from the survey of FHWA Division Offices.
The majority of FHWA's Division Offices, including the three Federal Lands Highway Divisions (FLHD), provided responses to the survey, with most of them indicating having been involved in at least one FLT during the last six years. According to respondents, the FLT activities that are generally the most challenging are early communication and coordination with controlling agencies and preparing highway easement deeds. Regarding the former, some controlling agencies may not include phone or contact information for specific people who would or should be involved with a FLT. Additionally, there may be multiple layers of contacts; sometimes the office and individual serving as the point of contact (POC) varies not only by agency but also within subdivisions of an agency. Regarding highway easement deed preparation, one respondent said the process can be lengthy, especially when local public agencies are involved. Others described the significant legal review involved with preparing the deed and how that increases the task's degree of difficulty. In some cases, the State DOT may rely on the State Attorney General's Office to conduct legal sufficiency reviews, which can slow the process, particularly when the State DOT's counsel will not review the deed itself until that step has happened. These challenges can be compounded when changes to a deed previously thought to be final are needed due to new information or changes late in the process.
Survey respondents' recommendations for ways to address these and other identified challenges include:
Federal Land Transfers (FLTs) are typically complex, multi-agency transactions that occur with varying frequency nationwide—although mostly in the western and central United States where the majority of Federal lands are located. Some State Departments of Transportation (DOTs) perform FLTs frequently, while others are rarely, if ever, involved in the process. The highly complex nature of the FLT process and the relative inexperience of some staff in carrying out the process present a number of challenges for the various partner agencies involved.
The last time the Federal Highway Administration (FHWA) explored the topic of FLTs at a national level was in the 2005 report "Synthesize Division Interagency Real Estate Agreements and Identify Practices for Improved Interagency Support." 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, including developing and administering two surveys—one geared toward FHWA Division Offices and one directed toward Federal partners, such as but not limited to the U.S. Fish and Wildlife Service (USFWS), the U.S. Forest Service (USFS), the U.S. Department of Agriculture (USDA), the Bureau of Land Management (BLM), the Bureau of Reclamation (BOR), the National Park Service (NPS), the Bureau of Indian Affairs (BIA), the General Services Administration (GSA), Department of Defense (DOD), Veterans Affairs (VA), and U.S. Army Corps of Engineers (USACE).
This report summarizes results from the survey of FHWA Division Offices. Fifty-three individuals, representing 53 Division Offices, responded to the survey. Three Division Offices did not respond.
According to survey responses, FHWA Division Offices have conducted numerous FLTs. Of the 53 Division Offices that responded, 43 (81 percent) have been involved with a FLT over the past 6 years. Of these Division Offices who have been involved in an FLT:
Ten respondents (19 percent) reported that over the last six years no real property has been acquired from a Federal agency. The states that have not conducted a FLT are mostly eastern (CT, RI, DE, NH, and NY) and midwestern (IA, IL, LA, and NE) states. Hawaii is the only western state where no FLTs have taken place in the past six years.
The FHWA Division Offices have conducted FLTs with numerous Federal agencies over the past six years (Table 1). Thirty-six (or 68 percent) have processed a FLT with the USFS, followed by 18 Division Offices that have processed a FLT with the NPS. Less than five States reporting having conducted FLTs with the GSA, BIA, or VA.
| Agency | Count |
|---|---|
| USFS | 36 |
| NPS | 18 |
| USACE | 14 |
| BLM | 14 |
| USFWS | 11 |
| DOD | 9 |
| BOR | 6 |
| USPS | 6 |
| GSA | 4 |
| BIA | 3 |
| VA | 1 |
Division Office respondents also identified which Federal agency is most frequently involved with FLTs in their states.
Forty respondents (87 percent) indicated that a single POC at the Division Office typically handles FLTs, compared with six (13 percent) who indicated that more than one person is involved. Of those Divisions Offices where more than one person is involved, the number involved ranges from two to four. Positions other than right-of-way (ROW) specialist that were identified as being involved are Technical Programs Manager (NJ) and Division Administrator, Associate Division Administrator, and Area Engineer (MI).1
Approximately half of respondents (52 percent) reported that a single POC at the State DOT typically handles FLTs. The remainder of respondents reported that multiple POCs at the State DOT are typically involved in FLTs. These respondents noted that the involvement of multiple POCs is usually because personnel at both Headquarters and District offices have roles in the FLT process. In other instances, State DOTs reported having several staff within their ROW Offices that could be assigned a particular FLT.
Some Federal agencies utilize FHWA as the land transfer agent in the state as allowed under 23 CFR 710.601. The USFS, the BLM, and the NPS are the top three Federal agencies that respondents reported as using or having used FHWA as the land transfer agency (Table 2 ).
| Agency | Count |
|---|---|
| USFS | 29 |
| BLM | 15 |
| NPS | 12 |
| USFWS | 7 |
| BOR | 4 |
| GSA | 4 |
| USACE | 4 |
| DOD | 2 |
| USPS | 1 |
| USDA | 1 |
| BIA | - |
| VA | - |
Respondents were asked to describe any scenarios from the last six years where a FLT process had begun but was not completed. Nine respondents identified instances where FLTs were unfinished or on hold and the reasons for that status. One (WV) noted that it had begun talks with USFS for an acquisition of several parcels as an early consult. The state DOT let the contract as a design-build, and the design time period went longer than planned due to design challenges. All parties agreed that the request for Letter of Consent and deed review should wait until design and any additional acquisition that the design-build occasioned was completed. This respondent expected the FLT delay to be resolved. Two other state DOTs (NC, VA) said that on several occasions the Federal agencies and state DOT together agreed to use permitting, Memoranda of Agreement (MOA), or other methods to encumber property in lieu of FLTs. Respondents also reported potentially more challenging issues, including:
Three respondents pointed out that typically the FLT process does not limit or constrain progress on a project, rather delays are mostly due to changing project priorities or funding limitations separate and apart from the land transfer.
Respondents were asked to describe how clear they believed the FLT process to be. Half of the individuals who responded to this question (22) reported that the FLT process is somewhat clear/somewhat easily understood. No respondents reported that the FLT process is unclear/difficult to understand (Table 3).
| Count | |
|---|---|
| The FLT process is very clear. It is easily understood. | 13 |
| The FLT process is somewhat clear. It is somewhat easily understood. | 22 |
| The FLT process is somewhat unclear. It is somewhat difficult to understand. | 10 |
| The FLT process is unclear. It is difficult to understand. | 0 |
Respondents were also asked to rank the following potential FLT issues from least to most challenging:
Generally, respondents indicated that recording the highway easement deed, identifying the controlling agency, and completing the title report or title information were less challenging activities in the FLT process. More challenging activities were early communication and coordination with the controlling agency, preparing the highway easement deed, and demonstrating compliance with NEPA, Section 4(f), Section 106 and related environmental regulations. By and large, these views were similar across regions; however, states within the Western Federal Lands Highway Division (WFLD) footprint find preparing the highway easement deed less challenging than counterparts in central and eastern regions, while similarly states within the Eastern Federal Lands Highway Division (EFLD) footprint find completing the title report or title information more challenging than colleagues in other regions. Table 4 illustrates relative perceptions of FLT activities across the country. The subsections that follow provide more detail on challenges respondents said they have faced; the discussions only reflect responses from states that indicated they had had an issue(s) in the past—not states that noted no particular problem.
| Less Challenging | → More Challenging | |||||||||
|---|---|---|---|---|---|---|---|---|---|---|
| All | A | B | C | D | E | F | G | H | ||
| Eastern Federal Lands States | A | B | D | F | C | G | H | |||
| E | ||||||||||
| Central Federal Lands States | C | B | E | A | D | F | G | H | ||
| Western Federal Lands States | D | B | G | C | H | E | F | |||
| A | ||||||||||
| A | Recording the deed | ||||||||
|---|---|---|---|---|---|---|---|---|---|
| B | Identifying the controlling agency | ||||||||
| C | Completing title report or title information | ||||||||
| D | Preparing accurate legal description and plan or plat | ||||||||
| E | Preparing the FLT application | ||||||||
| F | Early communication/coordination with the controlling agency | ||||||||
| G | Preparing highway easement deed | ||||||||
| H | Demonstrating compliance with NEPA, Section 4(f), Section 106, etc. | ||||||||
With few exceptions, responses suggest that staff do not usually encounter difficulty with identifying the controlling agency. However, several respondents (e.g., CA, NC, NE, OR, UT, WY) did indicate that they faced challenges with identifying the correct point of contact within the controlling agency, especially in field offices (Table 5).
| Count | |
|---|---|
| It is very easy to identify the correct POC | 7 |
| It is somewhat easy to identify the correct POC | 15 |
| It is somewhat difficult to identify the correct POC | 13 |
| It is very difficult to identify the correct POC | 4 |
Some controlling agencies may not include phone or contact information for specific people who would or should be involved with a FLT (UT). Over 60 percent (24 respondents) reported that the level of difficulty with identifying the correct POCs varies among Federal agencies. In some agencies the POC is housed within a subdivision of an agency (e.g., the USFS contact may be at the region, forest, or district level) (ID), which can add to the challenge of identifying the correct individual.
Other challenges related to identifying the controlling agency that were cited include:
Respondents did not provide much detail on challenges associated with completing the title report or title information and preparing accurate legal descriptions. One respondent did note that record-keeping practices or complex historic acquisition activities can sometimes complicate acquiring title information (TN). Other respondents noted that agencies may have few, if any, staff with the capability to confirm legal descriptions (UT) or work on the title report (WA).
Two respondents (WA, NC) noted that ensuring the application package is complete and can pass legal review can be challenging. Another (MS) noted that preparing operating plans and stipulations that the USFS requires can add time to project delivery. FHWA's Central Federal Lands Highway Division (CFLD) noted that once the FLT application is prepared there is sometimes anxiety regarding whether the controlling agency is reviewing the application in a timely manner.
One respondent (MA) said that the process to prepare and record the highway easement deed can be lengthy, especially when local public agencies (LPAs) are involved. Many LPAs may be inexperienced in the process and thus underestimate the financial resources and time needed to successfully deliver a project involving a FLT. Other respondents (AZ, OR, CFLD) described the amount of legal review that goes into preparing the deed increases the degree of difficulty tied to the task. In some cases, the state DOT may rely on the State Attorney General's Office to conduct legal sufficiency reviews, which can slow the process when a state DOT's counsel will not review the deed itself until that step has happened. These challenges can be compounded when several drafts of a deed are necessary before all agencies sign off. Additional challenges that respondents identified associated with preparing highway easement deeds are when new information is discovered (WV) or questions repeatedly asked (PA) late in the process that requires changes to a deed that all parties previously thought to be final.
One respondent (MT) noted that utilizing a template for the preparation of the highway easement deed can help facilitate the effort; others, however, noted that deed templates can require information on items that are no longer relevant (e.g., design, environmental review) at the time the deed is recorded (SD, MS) or that many agencies may not have pre-approved highway easement deeds at all (OH).
Respondents offered thoughts on other challenges they have experienced during the FLT process, including:
Nearly half of respondents (46 percent) at some point had gone the full four-month period after requesting a Letter of Consent without receiving a response from the controlling agency. Most of these respondents resolved the situation by continuing to follow up with the controlling agency until they received a response or setting up coordination meetings. However, several Division Offices reported executing and recording the easement without ever receiving a letter of consent from the controlling agency. Specific situations include:
Respondents were given the opportunity to describe communication issues they currently face during the FLT process. The questionnaire sought to tease out any differences between FHWA's communication with other Federal agencies and FHWA's internal communications or communications with State DOTs regarding FLTs.
Respondents said they had faced the following challenges from time to time when interacting with other Federal agencies about FLTs:
Communication between the FHWA Division Office and State DOT during the FLT process is generally good according to respondents. However, when there are issues they are typically related to:
Respondents were asked about tools and resources they were aware of and use when undertaking a FLT. Their responses supplement the resources inventoried and described in an accompanying literature review.
Less than half of respondents (36 percent) said that they always consult the FHWA's 2009 manual when an FLT occurs. Twenty-two percent of respondents said they rarely consult the manual. Similarly, almost half of respondents (49 percent) reported that they always consult a state-specific process as outlined in their state's ROW Manual or other resource when an FLT occurs, while 24 percent rarely consult a state-specific resource for FLTs (Table 6).
| FHWA's 2009 FLT Manual | State-specific Resource | |
|---|---|---|
| Always consult | 15 (37%) | 20 (49%) |
| Sometimes consult | 17 (41%) | 11 (27%) |
| Rarely consult | 9 (22%) | 10 (24%) |
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. The agreement grants 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, FHWA and FS entered into a MOU that addresses the transfer of property within the National Forest System for highway purposes. All requests for transfer of property for which the USFS 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.
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. Eighteen respondents indicated their Division Office/State DOT has state-specific FLT MOUs. The majority of these were with the U.S. Forest Service (16 respondents)2, followed by BLM (8 respondents), NPS (1 respondent) and USDA (1 respondent).
Respondents reported using several methods to track FLTs within their offices. Systems that the Division Offices commonly used to track FLTs include: Network database/SharePoint site (9 respondents); project files (8 respondents); and Excel spreadsheet (6 respondents). Five respondents reported that the State DOT is responsible for tracking; five others reported that the Division Office tracks FLTs.
Respondents were asked for their ideas for ways to improve the FLT process, including ways to reduce risk associated with processing FLTs and streamline how they are done.
Other suggestions were:
The FHWA's Office of Real Estate Services (HEPR) is working to facilitate information sharing related to the acquisition of real property interests for roadways, including land conveyed from Federal agencies via the Federal Land Transfer (FLT) process. An HEPR team seeks your insight to fully understand the state of the practice, including challenges and best practices, regarding FLTs. Your responses will help FHWA develop information and tools that will enhance the abilities of FHWA, Federal Land Management Agencies, and State Departments of Transportation (DOTs) to efficiently and effectively complete the FLT process.
Instructions: FHWA Division Office staff and Office of Federal Lands Highway staff should complete the multiple-choice and open-ended questions to the best of your ability. Coordinate with the appropriate State DOT personnel, as appropriate, to provide responses and any supplementary information that could be helpful to others involved with FLTs. Narrative responses are welcomed wherever you believe additional clarification would be helpful. Only one response per office is necessary.
1. Contact Information
Name:
Office:
Position:
Email:
Phone:
2. Over the last six years, with which Federal agencies has the Division Office or DOT been involved with a FLT? Please check all that apply:
_____ Bureau of Land Management
_____ Bureau of Indian Affairs
_____ Bureau of Reclamation
_____ Department of Defense
_____ General Services Administration
_____ National Park Service
_____ U.S. Forest Service
_____ U.S. Fish and Wildlife Service
_____ U.S. Army Corps of Engineers
_____ Veterans Affairs
_____ Other (Please specify): __________
_____ No real property has been acquired from a Federal agency
3. Please provide any points of contact you customarily work with on FLTs at these agencies (Name/Agency/Title/Address/etc.):
4. Of the Federal agency checked in question 2, which is most frequently involved with FLTs in your state? (Please specify) _____________________
5. Please describe any scenario from the last six years where a FLT process began but was not completed. Why was it not completed? If not applicable, enter N/A. _____________________
6. Which Federal agencies utilize FHWA as the land transfer agent in your state as allowed under 23 CFR 710.601? (Check all that apply)
_____ Bureau of Land Management
_____ Bureau of Indian Affairs
_____ Bureau of Reclamation
_____ Department of Defense
_____ General Services Administration
_____ National Park Service
_____ U.S. Forest Service
_____ U.S. Fish and Wildlife Service
_____ U.S. Army Corps of Engineers
_____ Veterans Affairs
_____ Other (please specify): __________
7. How frequently has your Division Office been involved with FLTs? Please provide counts as available data allow.
_____ 2018
_____ 2017
_____ 2016
_____ 2015
_____ 2014
_____ 2013
If these data are not available, approximately how many FLTs has FHWA been involved with annually over the last six years (e.g., none, 1-3/yr, 4-6/yr, 7-9/yr, more than 10/yr)?
8. Does a single point of contact at the Division Office typically handle FLTs?
Y ___ N ___
If yes, please list the office and position for the single POC: _______
9. If no to question 8, approximately how many people are involved: _______
10. Does a single point of contact at the State DOT typically handle FLTs?
Y ___ N ___
If yes, please list the office and position for the single POC: _______
11. If no to question 10, approximately how many people are involved: _______
Challenges
12. How would you describe the clarity of the FLT process?
___ The FLT process is very clear. It is easily understood.
___ The FLT process is somewhat clear. It is somewhat easily understood.
___ The FLT process is somewhat unclear. It is somewhat difficult to understand.
___ The FLT process is unclear. It is difficult to understand.
13. Please rank the FLT process steps from most challenging (1) to least challenging (8).
____ Identifying the controlling agency
____ Early communication/coordination with the controlling agency
____ Preparing the FLT application
____ Preparing accurate legal description and plan or plat
____ Demonstrating compliance with NEPA, 4(f), Section 106, etc.
____ Completing title report or title information
____ Preparing Highway Easement Deed
____ Recording the Deed
14. Describe any challenges associated with identifying the controlling agency.
15. Describe any challenges associated with preparing FLT applications.
16. Describe any challenges associated with completing the title report or title information.
17. Describe any challenges associated with preparing or recording the Highway Easement Deed.
18. In the past, some practitioners indicated that select projects involving FLTs completed under a right of entry permit may not have ever had the Highway Easement Deed executed. How significant a challenge is this for your Agency today?
___ All Highway Easement Deeds are recorded at the appropriate registry of deeds office.
___ Most highway easement deeds are recorded at the appropriate registry of deeds office.
___ Some highway easement deeds are recorded at the appropriate registry of deeds office.
___ Unsure
Elaborate as necessary: _________________________________
19. Please describe any other aspects of the FLT process that present particular challenges in your state.
20. Has your office ever gone the full four-month period after requesting a Letter of Consent without receiving a response from the controlling agency?
Y ___ N ___
If yes, how was the situation resolved?
21. Do you consult FHWA's 2009 FLT Manual when a FLT occurs?
___ Always consult ___ Sometimes consult ___ Rarely consult
22. Do you consult a state-specific process as outlined in your state's ROW Manual or other resource when a FLT occurs?
___ Always consult ___ Sometimes consult ___ Rarely consult
23. Generally, how difficult is it to identify the point(s) of contact (POC) at Federal agencies who coordinate FLTs?
___ It is very easy to identify the correct POC.
___ It is somewhat easy to identify the correct POC.
___ It is somewhat difficult to identify the correct POC.
___ It is very difficult to identify the correct POC.
24. Does the level of difficulty identifying the correct POCs vary among Federal agencies?
Y ___ N ___
If yes, please elaborate:
25. Please describe any issues that currently exist regarding communication with Federal agencies other than FHWA during the FLT process.
26. Please describe any issues that currently exist regarding communication within the FHWA Division Office or state DOT during the FLT process.
27. Please indicate with which agencies the FHWA Division Office or state DOT have a state-specific Memorandum of Understanding (MOU) regarding FLTs (vs. the national MOUs that exist between FHWA and Forest Service, and FHWA and the Bureau of Land Management)?
_____ Bureau of Land Management
_____ Bureau of Indian Affairs
_____ Bureau of Reclamation
_____ Department of Defense
_____ General Services Administration
_____ National Park Service
_____ U.S. Forest Service
_____ U.S. Fish and Wildlife Service
_____ U.S. Army Corps of Engineers
_____ Veterans Affairs
_____ Other [please specify]: __________
28. How are FLTs tracked in your office?
29. In your view, what is needed to reduce risk with FLT and streamline FLT process in your State?
30. What tools or guidance intended to improve the FLT process would be helpful?
31. In your view, what is needed to improve the quality of FLTs in your State?
32. Would you be interested in attending a meeting with other transportation agencies and Federal partners in your region to discuss FLT topics in more depth?
Y ___ N ___
1 Note: only two Division Offices provided detail on the additional staff involved in the process.
2 One of these is standard operating procedures between the Idaho Division Office and the USFS regional office. To date, legal staff in the USFS regional office have decided to not sign off on any kind of MOU, regardless of its content or purpose.
