Eminent Domain Report

On November 24, 2014, the Federal Highway Administration (FHWA) published a proposed rule that would amend the regulations governing how Federal grant recipients acquire, manage, and dispose of real property.  Thus, the proposed rule, if it becomes final, has the potential to impact the daily operations of transportation agencies all across the United States.  Some of the more notable proposed revisions include:

• Broader authority for public agencies to proceed with construction contract bidding when the agency has not acquired all real property interests needed for the project;
• Three alternative methods for agencies other than State departments of transportation to establish approved right-of-way procedures;
• Clarifications regarding how the approved right-of-way manual is to be used, and the topics that it must cover;
• Simplifying the certification requirements for right-of-way activities related to design-build projects;
• Clarifying that a design-build contractor may begin construction before all acquisition and relocation activities have been completed so long as the construction activities "do not have a material adverse impact on the quality of life of those in occupied properties that have been or will be acquired";
• Broadening the ability for agencies to undertake early acquisitions and to seek reimbursement; and
• Simplifying the land transfer procedures that apply when land owned by a Federal agency is needed for a project.

The FHWA's stated intent behind the proposed rulemaking is to provide public agencies with greater flexibility to complete transportation projects, consistent with the mandate in MAP-21.