April 2019
In fall 2018, the Federal Highway Administration's (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 Federal Land Transfer (FLT) practice. As part of the effort, FHWA administered two surveys—one geared toward FHWA Division Offices and one directed toward Federal partners. This report summarizes results from the survey of Federal partners. Eighteen individuals, representing seven agencies responded to the survey: the U.S. Fish and Wildlife Service (USFWS), the U.S. Forest Service (USFS), the Bureau of Land Management (BLM), the Bureau of Reclamation (BOR), the National Park Service (NPS), the General Services Administration (GSA), and the U.S. Coast Guard (USCG).1
Survey respondents from the BLM, GSA, USFS, USFWS, and USCG indicated that their agencies have authorities to directly transfer the property rights for federal lands to state agencies for highway purposes, and that the decision on whether to directly transfer property rights or to do so through FHWA is made on a project-by-project basis. The one survey respondent from the NPS said the agency does not have the authority to transfer property rights to state agencies.
Two respondents from the BLM provided detailed responses regarding BLM's policy for transfer property rights to state agencies for highway purposes. The respondents noted that for the purposes of highway projects the agency does not transfer land ownership, rather the Federal Highway Administration/State Departments of Transportation (DOTs) acquires specific rights associated with use of those lands for highway purposes; there is not a title conveyance issued by the BLM to either entity. The use of the lands by FHWA/State DOT are recorded as a right-of-way by the BLM, but BLM retains ownership of the land itself, and thus BLM approval may be necessary for additional uses of or projects on the land.
One BLM survey respondent provided the following details regarding the process:
BLM's appropriation related activities with FHWA are conducted under 23 U.S.C. 317, the provisions of the national memorandum of understanding (MOU) and the right-of-way process is managed in accordance with 43 U.S.C. 1761 and the current procedures established under 43 CFR 2800. In practice, we receive a notice from FHWA of the intent to appropriate specific public lands in support of the FHWA goals/needs to support the federal highway system. The BLM prepares a response either to disagree based on public interest concerns or to issue a consent letter that identifies any specific conditions or concerns we may have regarding the appropriation of those lands. [These conditions are] primarily environmental issues - special status species habitat, etc. From that point ... the process continues with the FHWA completing the appropriate level of NEPA [analysis] for the project, issuing a license/authorization to the State DOT to complete the project, and notifying the BLM of the actual location and boundary of the ROW. We use the information provided by FHWA to create a right-of-way case file that identifies the State DOT as the holder and record the facility on the Master Title Plat. The right-of-way is typically recorded under a 30-year term and is subject to periodic compliance inspections. The right-of-way grant recognizes the State DOT authority to operate and maintain the facility within the boundary of the appropriation without additional coordination with the BLM.
The BLM Field Manager/Realty Specialist at the field office is the main point of contact for the FLT process. The field office Realty Specialist facilitates the FLT between the field office, the legal review, and BLM's Headquarters office teams.
Respondents were asked to describe how clear they believed the FLT process to be. The majority of respondents reported that the FLT process is either somewhat clear/somewhat easily understood (3) or that is somewhat unclear/somewhat difficult to understood (4). No respondents reported that the FLT process is very clear/easy to understand (Table 1).
| Count | |
|---|---|
| The FLT process is very clear. It is easily understood. | 0 |
| The FLT process is somewhat clear. It is somewhat easily understood. | 3 |
| The FLT process is somewhat unclear. It is somewhat difficult to understand. | 4 |
| The FLT process is unclear. It is difficult to understand. | 1 |
Survey respondents reported that the specific aspects of the FLT process that create the most challenges include:
Survey respondents also identified specific issues that currently exist regarding communication between their agency and transportation agencies during the FLT process:
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:
The NPS added that additional training, as well as the availability of more template documents would help its staff with the FLT process. The BOR suggested that all stakeholders "work toward consistency in agency processes, including using similar nomenclature, timelines, and [procedures for] transparency with the public."
The Federal Highway Administration's (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, other Federal agencies, and State Departments of Transportation (DOTs) to efficiently and effectively complete the FLT process.
Instructions: Federal staff should complete the multiple-choice and open-ended questions to the best of your ability. Narrative responses are welcomed wherever you believe additional clarification would be helpful.
1. Contact Information
Name ______________________
Agency ______________________
Position _______________________
Email Address ________________________
Phone ________________________
2. Does your agency have the authority to directly transfer the property rights for federal lands to state agencies for highway purposes? [If no, skip to Q2]
Y ___
N ___
3. Does your agency elect to directly transfer those rights or to proceed through FHWA?
____ Directly transfers rights
____ Proceeds through FHWA
____ The decision is made on a project-by-project basis
4. Does your agency have its own agency-specific FLT procedures?
Y ___
N ___
If yes, please specify web address where procedures can be found online (if applicable):
5. What statute(s) does your agency use to provide authority to make land available and complete FLTs?
6. Approximately how many FLTs have occurred between your office/unit and a state transportation agency (or FHWA) annually over the last six years? Please provide counts as available data allow.
_____ 2018
_____ 2017
_____ 2016
_____ 2015
_____ 2014
_____ 2013
If these data are not available, approximately how many FLTs has your agency 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)?
7. Does a single point of contact at your office/unit typically handle FLTs?
Y ___
N ___
If yes, please list the office and position for the single POC: _______
8. If no to question 7, which positions are involved?
9. Please identify the individual at your agency's National/Headquarters office who is responsible for FLTs (e.g., name/title/email).
10. In your view, what aspects of the FLT process cause the most issues or problems?
11. 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.
12. 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: _________________________________
13. Please describe any issues that currently exist regarding communication between your agency and transportation agencies during the FLT process.
14. Please describe any issues that currently exist regarding communication within your agency during the FLT process.
15. What are your ideas for reducing FLT risks and/or streamlining the FLT process?
16. 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 Office of Management and Budget approval under the Paperwork Reduction Act was not necessary because information was collected only from Federal employees.
