Section 2: Acquisition Procedures for Federal Lands (by State)

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Procedure

The Department should negotiate directly with any other Federal agency, unless the Federal agency requests the negotiations be handled through the FHWA. The ROW Program Office in Austin makes all requests to the FHWA. Federal right of way acquisition must be initiated at the earliest possible point in project development.

TxDOT's application to FHWA includes the following information:

  • The purpose for which the lands are to be used.
  • The estate or interest in the land required by State statute.
  • The Federal project number.
  • The name of the Federal Agency with jurisdiction over the land and identity of the installation or activity in possession of the land.
  • A map showing the survey of the lands to be acquired.
  • A property description of the lands to be acquired.
  • A statement of compliance with the National Environmental Policy Act (42 U. S. C. 4332, et seq. ), the Historic Preservation Act (16 U. S. C. 470(f)), and provisions for Preservation of Parklands (49 U. S. C. 1653(f)), if applicable.
  • Five white prints (folded 8 1/2 inches x 11 inches) showing the survey of the lands desired, properly located on the ground by an RPLS and, if applicable, control of access lines affecting the property with a legend. The area to be transferred must be outlined in red on the survey copies and the parcel numbers and acreage involved must be indicated.
  • Five copies of the property description of the desired land either in terms of public land surveys or by metes and bounds, including described acreage. Each description bears a parcel number and, if available, a deed reference setting forth the source of title to the federal agency exercising supervision and control of the lands and the acreage contained within the tract.

When negotiating through FHWA, deeds for conveyance of right of way owned by the United States are prepared by the ROW Program Office in Austin, unless FHWA, at its discretion, chooses to prepare them. Such deeds should contain any clauses required by FHWA and the agency involved. When the ROW Program Office in Austin prepares the deed, it is submitted to FHWA for review and execution. Following execution, TxDOT records the deed in the appropriate land record office and advises FHWA of the recording data.

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Property Adjustment Work on Federal Lands (for State)

Often, in acquiring right of way across federal properties, the federal agency requests property adjustment work. Since the State can not condemn land owned by a Federal agency, acquisition by negotiation is mandatory. If negotiation is not possible, the project must be altered to eliminate the federal right of way parcel. TxDOT policy allows property adjustment work if it is necessary due to the highway improvement. Also, there may be no conflict with applicable State law. If property adjustments are required, the parcel is appraised and the approved value is the basis for determining the limits of State cost participation.

When adjustments are necessary, there should be agreement with the Federal Agency regarding adjustments to be performed. If the Department requests negotiation assistance from the ROW Program Office in Austin, include an adjustment work description and cost estimate with the written request. Submit a drawing showing the location and general details of the adjustment work when the extent of work is not apparent from the right of way map. The ROW Program Office in Austin will then make application for the right of way and notify the Department regarding adjustments the State is able to perform.

To obtain federal participation, adjustment work must be included in the construction contract, which requires Design Division approval. Alternately, adjustment work may be accomplished by preparing a separate PS&E package. Bids may be taken by the Department if the estimated cost is under $25,000, or by the ROW Program Office in Austin if the estimated cost is $25,000 or more. When separate bids are taken, usual procedures will be followed through the contract award. Regardless of how the adjustment is handled, the PS&E needs to bear the signature of the authorized Federal agency representative. The cost of such adjustment work is charged to the right of way project.

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Forest Service Lands

All right of way transfers for federal-aid transportation projects involving Forest Service lands are accomplished using Highway Easement Deeds rather than Special Use Permits. This is in agreement with the FHWA and the USDA Forest Service. Procedures must be in agreement with memoranda issued by FHWA and furnished by the ROW Program Office in Austin.

If the Department can not negotiate directly with the Forest Service, the land transfer request must be processed through FHWA if the highway is on the Federal highway system or if the project is to be constructed using Federal funds. Requirements for the application, maps, and property descriptions to be submitted to the ROW Program Office in Austin are included previously under the Procedure subsection.

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Lands under Jurisdiction of Corps of Engineers

In acquiring right of way across lands under U. S. Army Corps of Engineers jurisdiction, negotiate directly with the Corps unless they request FHWA assistance. In requesting negotiation assistance from the ROW Program Office in Austin, submit nine copies of the maps and property descriptions, prepared as outlined under the Procedure subsection.

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Lands under Jurisdiction of Bureau of Land Management (BLM)

If the Department can not negotiate directly with the BLM, right of way needed from the BLM is acquired through FHWA with the ROW Program Office in Austin initiating the conveyance request. In addition to submission requirements described under the Procedure subsection, four copies of a letter or legal-sized plat showing the needed parcel must be attached to the highway easement deed to be executed by FHWA. This plat size facilitates handling and recording.

Due to the extended time required to obtain such an easement, the conveyance request must be made as soon as right of way requirements are known. If the Bureau of Land Management has a local office convenient to the district, then discuss highway design and acquisition with that office before making formal application for FHWA assistance.

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Lands under Jurisdiction of U. S. Fish and Wildlife Service (USFWS)

Lands under jurisdiction of USFWS, such as National Wildlife Refuge property, may be eligible for a right of way easement to be granted (typically, for a 50-year term). Refer to 50 CFR, Part 29, Subpart B - Rights of Way/General Regulations. These regulations require that a letter application be sent to the Regional Director of the USFWS.

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