§ 108. — Advance acquisition of real property.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 23USC108]
TITLE 23--HIGHWAYS
CHAPTER 1--FEDERAL-AID HIGHWAYS
SUBCHAPTER I--GENERAL PROVISIONS
Sec. 108. Advance acquisition of real property
(a) In General.--
(1) Availability of funds.--For the purpose of facilitating the
timely and economical acquisition of real property for a
transportation improvement eligible for funding under this title,
the Secretary, upon the request of a State, may make available, for
the acquisition of real property, such funds apportioned to the
State as may be expended on the transportation improvement, under
such rules and regulations as the Secretary may issue.
(2) Construction.--The agreement between the Secretary and the
State for the reimbursement of the cost of the real property shall
provide for the actual construction of the transportation
improvement within a period not to exceed 20 years following the
fiscal year for which the request is made, unless the Secretary
determines that a longer period is reasonable.
(b) Federal participation in the cost of rights-of-way acquired
under subsection (a) of this section shall not exceed the Federal pro
rata share applicable to the class of funds from which Federal
reimbursement is made.
(c) Early Acquisition of Rights-of-Way.--
(1) General rule.--Subject to paragraph (2), funds apportioned
to a State under this title may be used to participate in the
payment of--
(A) costs incurred by the State for acquisition of rights-
of-way, acquired in advance of any Federal approval or
authorization, if the rights-of-way are subsequently
incorporated into a project eligible for surface transportation
program funds; and
(B) costs incurred by the State for the acquisition of land
necessary to preserve environmental and scenic values.
(2) Terms and conditions.--The Federal share payable of the
costs described in paragraph (1) shall be eligible for reimbursement
out of funds apportioned to a State under this title when the
rights-of-way acquired are incorporated into a project eligible for
surface transportation program funds, if the State demonstrates to
the Secretary and the Secretary finds that--
(A) any land acquired, and relocation assistance provided,
complied with the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970;
(B) the requirements of title VI of the Civil Rights Act of
1964 have been complied with;
(C) the State has a mandatory comprehensive and coordinated
land use, environment, and transportation planning process under
State law and the acquisition is certified by the Governor as
consistent with the State plans before the acquisition;
(D) the acquisition is determined in advance by the Governor
to be consistent with the State transportation planning process
pursuant to section 135 of this title;
(E) the alternative for which the right-of-way is acquired
is selected by the State pursuant to regulations to be issued by
the Secretary which provide for the consideration of the
environmental impacts of various alternatives;
(F) before the time that the cost incurred by a State is
approved for Federal participation, environmental compliance
pursuant to the National Environmental Policy Act has been
completed for the project for which the right-of-way was
acquired by the State, and the acquisition has been approved by
the Secretary under this Act,\1\ and in compliance with section
303 of title 49, section 7 of the Endangered Species Act, and
all other applicable environmental laws shall be identified by
the Secretary in regulations; and
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\1\ See References in Text note below.
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(G) before the time that the cost incurred by a State is
approved for Federal participation, both the Secretary and the
Administrator of the Environmental Protection Agency have
concurred that the property acquired in advance of Federal
approval or authorization did not influence the environmental
assessment of the project, the decision relative to the need to
construct the project, or the selection of the project design or
location.
(Pub. L. 85-767, Aug. 27, 1958, 72 Stat. 893; Pub. L. 86-35, Sec. 1, May
29, 1959, 73 Stat. 62; Pub. L. 90-495, Sec. 7(a), (b), Aug. 23, 1968, 82
Stat. 818; Pub. L. 93-87, title I, Sec. 113, Aug. 13, 1973, 87 Stat.
257; Pub. L. 94-280, title I, Sec. 115, May 5, 1976, 90 Stat. 436; Pub.
L. 102-240, title I, Sec. 1017(a), (b), Dec. 18, 1991, 105 Stat. 1947;
Pub. L. 102-388, title III, Sec. 346, Oct. 6, 1992, 106 Stat. 1553; Pub.
L. 103-429, Sec. 3(2), Oct. 31, 1994, 108 Stat. 4377; Pub. L. 105-178,
title I, Secs. 1211(e)(1), 1301(a), June 9, 1998, 112 Stat. 188, 225.)
References in Text
The Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, referred to in subsec. (c)(2)(A), is act Jan. 2,
1971, Pub. L. 91-646, 84 Stat. 1894, as amended, and which is classified
principally to chapter 61 (Sec. 4601 et seq.) of Title 42, The Public
Health and Welfare. For complete classification of this Act to the Code,
see Short Title note set out under section 4601 of Title 42 and Tables.
The Civil Rights Act of 1964, referred to in subsec. (c)(2)(B), is
Pub. L. 88-352, July 2, 1964, 78 Stat. 241, as amended. Title VI of the
Act is classified generally to subchapter V (Sec. 2000d et seq.) of
chapter 21 of Title 42, The Public Health and Welfare. For complete
classification of this Act to the Code, see Short Title note set out
under section 2000a of Title 42 and Tables.
The National Environmental Policy Act, referred to in subsec.
(c)(2)(F), probably means the National Environmental Policy Act of 1969,
Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852, as amended, which is
classified generally to chapter 55 (Sec. 4321 et seq.) of Title 42, The
Public Health and Welfare. For complete classification of this Act to
the Code, see Short Title note set out under section 4321 of Title 42
and Tables.
This Act, referred to in subsec. (c)(2)(F), probably means Pub. L.
102-240, Dec. 18, 1991, 105 Stat. 1914, known as the Intermodal Surface
Transportation Efficiency Act of 1991. For complete classification of
this Act to the Code, see Short Title of 1991 Amendment note set out
under section 101 of Title 49, Transportation, and Tables.
Section 7 of the Endangered Species Act, referred to in subsec.
(c)(2)(F), probably means section 7 of the Endangered Species Act of
1973, which is classified to section 1536 of Title 16, Conservation.
Amendments
1998--Pub. L. 105-178, Sec. 1301(a), substituted ``Advance
acquisition of real property'' for ``Advance acquisition of rights-of-
way'' in section catchline.
Subsec. (a). Pub. L. 105-178, Sec. 1301(a), added subsec. (a) and
struck out former subsec. (a) which read as follows: ``For the purpose
of facilitating the acquisition of rights-of-way on any Federal-aid
highway in the most expeditious and economical manner, and recognizing
that the acquisition of rights-of-way requires lengthy planning and
negotiations if it is to be done at a reasonable cost, the Secretary,
upon the request of the State highway department, is authorized to make
available the funds apportioned to any State which may be expended on
such highway for acquisition of rights-of-way, in anticipation of
construction and under such rules and regulations as the Secretary may
prescribe. The agreement between the Secretary and the State highway
department for the reimbursement of the cost of such rights-of-way shall
provide for the actual construction of a road on such rights-of-way
within a period not exceeding 20 years following the fiscal year in
which such request is made unless a longer period is determined to be
reasonable by the Secretary.''
Subsecs. (c), (d). Pub. L. 105-178, Sec. 1211(e)(1), redesignated
subsec. (d) as (c) and struck out former subsec. (c) which related to
establishment and administration of right-of-way revolving fund.
1994--Subsec. (d)(2)(F). Pub. L. 103-429 substituted ``section 303
of title 49'' for ``section 4(f) of the Department of Transportation
Act''.
1992--Subsec. (a). Pub. L. 102-388, Sec. 346(1), (2), substituted
``Federal-aid highway'' for ``of the Federal-aid highway systems,
including the Interstate System,'' and ``which may be expended on such
highway'' for ``for expenditure on any of the Federal-aid highway
systems, including the Interstate System,''.
Subsec. (c)(2). Pub. L. 102-388, Sec. 346(3), inserted ``and
passenger transit facilities''.
Subsec. (c)(3). Pub. L. 102-388, Sec. 346(5), which directed the
substitution of ``of the type funded'' for ``on the federal-aid system
of which such project is to be part,'' was executed by making the
substitution for ``on the Federal-aid system of which such project is to
be a part,'' to reflect the probable intent of Congress.
Pub. L. 102-388, Sec. 346(4), substituted ``project'' for
``highway'' after ``construction of a'' in first and second sentences.
1991--Subsecs. (a), (c)(3). Pub. L. 102-240, Sec. 1017(a),
substituted ``20'' for ``ten''.
Subsec. (d). Pub. L. 102-240, Sec. 1017(b), added subsec. (d).
1976--Subsec. (a). Pub. L. 94-280, Sec. 115(b), inserted ``unless a
longer period is determined to be reasonable by the Secretary'' after
``request is made'' in last sentence.
Subsec. (c)(2). Pub. L. 94-280, Sec. 115(a), struck out ``made
pursuant to section 133 or chapter 5 of this title'' after ``relocation
payments'' in last sentence.
Subsec. (c)(3). Pub. L. 94-280, Sec. 115(c), inserted ``or later''
after ``earlier'' in first sentence.
1973--Subsec. (a). Pub. L. 93-87, Sec. 113(a), substituted ``ten''
for ``seven'' years in last sentence.
Subsec. (c)(3). Pub. L. 93-87, Sec. 113(b), substituted ``ten'' for
``seven'' years in first sentence.
1968--Subsec. (b). Pub. L. 90-495, Sec. 7(a), substituted
``subsection (a) of this section'' for ``this section''.
Subsec. (c). Pub. L. 90-495, Sec. 7(b), added subsec. (c).
1959--Subsec. (a). Pub. L. 86-35 increased from five to seven years
the period in which actual construction shall commence on rights-of-way
acquired in anticipation of such construction.
Effective Date of 1991 Amendment
Amendment by Pub. L. 102-240 effective Dec. 18, 1991, and applicable
to funds authorized to be appropriated or made available after Sept. 30,
1991, and, with certain exceptions, not applicable to funds appropriated
or made available on or before Sept. 30, 1991, see section 1100 of Pub.
L. 102-240, set out as a note under section 104 of this title.
Effective Date of 1968 Amendment
Amendment by Pub. L. 90-495 effective Aug. 23, 1968, see section 37
of Pub. L. 90-495, set out as a note under section 101 of this title.
Transition Provisions
Pub. L. 105-178, title I, Sec. 1211(e)(2), June 9, 1998, 112 Stat.
188, provided that:
``(A) In general.--Funds advanced to a State by the Secretary from
the right-of-way revolving fund established by section 108(c) of title
23, United States Code, prior to the date of enactment of this Act [June
9, 1998] shall remain available to the State for use on the projects for
which the funds were advanced for a period of 20 years from the date on
which the funds were advanced.
``(B) Credit to highway trust fund.--With respect to a project for
which funds have been advanced from the right-of-way revolving fund,
upon the termination of the 20-year period referred to in subparagraph
(A), when actual construction is commenced, or upon approval by the
Secretary of the plans, specifications, and estimates for the actual
construction of the project on the right-of-way, whichever occurs
first--
``(i) the Highway Trust Fund (other than the Mass Transit
Account) shall be credited with an amount equal to the Federal share
of the funds advanced, as provided in section 120 of title 23,
United States Code, out of any Federal-aid highway funds apportioned
to the State in which the project is located and available for
obligation for projects of the type funded; and
``(ii) the State shall reimburse the Secretary in an amount
equal to the non-Federal share of the funds advanced for deposit in,
and credit to, the Highway Trust Fund (other than the Mass Transit
Account).''
Preservation of Transportation Corridors Report
Section 1017(c) of Pub. L. 102-240 provided that: ``The Secretary,
in consultation with the States, shall report to Congress within 2 years
after the date of the enactment of this Act [Dec. 18, 1991], a national
list of the rights-of-way identified by the metropolitan planning
organizations and the States (under sections 134 and 135 of title 23,
United States Code), including the total mileage involved, an estimate
of the total costs, and a strategy for preventing further loss of
rights-of-way including the desirability of creating a transportation
right-of-way land bank to preserve vital corridors.''
Authorization of Appropriations to Right-of-Way Revolving Fund;
Apportionment; Reversion of Amounts Not Advanced or Obligated
Section 7(c)-(e) of Pub. L. 90-495 provided that $100,000,000 for
the fiscal year ending June 30, 1970, $100,000,000 for the fiscal year
ending June 30, 1971, and $100,000,000 for the fiscal year ending June
30, 1972, be transferred from the highway trust fund to the right-of-way
revolving fund established by subsec. (c) of this section, authorized
the Secretary to apportion these funds and required that funds
apportioned to a State remain available for obligation for advances
until Oct. 1 of the fiscal year in which the apportionment was made and
any funds not advanced or obligated by such date revert to the right-of-
way revolving fund for distribution to other States.
Study of Advance Acquisition of Rights-of-Way
Pub. L. 89-574, Sec. 10, Sept. 13, 1966, 80 Stat. 769, as amended by
Pub. L. 97-449, Sec. 2(a), Jan. 12, 1983, 96 Stat. 2439, directed the
Secretary to make a full and complete investigation and study of the
advance acquisition of rights-of-way for future construction of highways
on the Federal-aid highway systems, with particular reference to the
provision of adequate time for the removal and disposal of improvements
located on rights-of-way and the relocation of affected individuals,
businesses, institutions, and organizations, the tax status of such
property after acquisition and before its use for highway purposes, and
the methods for financing advance right-of-way acquisition by both the
State governments and the Federal Government, including the possible
creation of revolving funds for such purpose. The Secretary was required
to submit a report of results of such study to Congress not later than
July 1, 1967, together with his recommendations.
Increased Limitation Period Applicable to Certain Contracts
Section 2 of Pub. L. 86-35 provided that agreements entered into
before May 29, 1959 by the Secretary of Commerce and a State highway
department under authority of section 110(a) of the Federal-Aid Highway
Act of 1956, or section 108(a) of title 23 of the United States Code
shall be deemed to provide for actual construction of a road on such
rights-of-way within a period of seven years following the fiscal year
in which such request was made.
