23 USC 108 - Advance acquisition of real property

View all text of Chapter 1 [§ 101 - § 190]

§ 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 interests 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 interests, 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 interests 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 real property interests 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)State-funded Early Acquisition of Real Property Interests.—

(1)In general.—A State may carry out, at the expense of the State, acquisitions of interests in real property for a project before completion of the review process required for the project under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) without affecting subsequent approvals required for the project by the State or any Federal agency.

(2)Eligibility for reimbursement.—Subject to paragraph (3), 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 real property interests, acquired in advance of any Federal approval or authorization, if the real property interests are subsequently incorporated into a project eligible for surface transportation block grant program funds; and

(B) costs incurred by the State for the acquisition of land necessary to preserve environmental and scenic values.

(3)Terms and conditions.—

(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 real property interest 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 of 1969 (42 U.S.C. 4321 et seq.) has been completed for the project for which the real property interest was acquired by the State, and the acquisition has been approved by the Secretary under this title, 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

(G) before the time that the cost incurred by a State is approved for Federal participation, the Secretary has determined 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.

(d)Federally Funded Early Acquisition of Real Property Interests.—

(1)Definition of acquisition of a real property interest.—In this subsection, the term “acquisition of a real property interest” includes the acquisition of—

(A) any interest in land;

(B) a contractual right to acquire any interest in land; or

(2)Authorization.—The Secretary may authorize the use of funds apportioned to a State under this title for the acquisition of a real property interest by a State.

(3)State certification.—A State requesting Federal funding for an acquisition of a real property interest shall certify in writing, with concurrence by the Secretary, that—

(A) the State has authority to acquire the real property interest under State law; and

(B) the acquisition of the real property interest—

(i) is for a transportation purpose;

(ii) will not cause any significant adverse environmental impact;

(iii) will not limit the choice of reasonable alternatives for the project or otherwise influence the decision of the Secretary on any approval required for the project;

(iv) does not prevent the lead agency from making an impartial decision as to whether to accept an alternative that is being considered in the environmental review process;

(v) is consistent with the State transportation planning process under section 135;

(vi) complies with other applicable Federal laws (including regulations);

(vii) will be acquired through negotiation, without the threat of condemnation; and

(viii) will not result in a reduction or elimination of benefits or assistance to a displaced person required by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.) and title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).

(4)Environmental compliance.—

(A)In general.—Before authorizing Federal funding for an acquisition of a real property interest, the Secretary shall complete the review process under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with respect to the acquisition of the real property interest.

(B)Independent utility.—The acquisition of a real property interest—

(i) shall be treated as having independent utility for purposes of the review process under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and

(ii) shall not limit consideration of alternatives for future transportation improvements with respect to the real property interest.

(5)Programming.—

(A)In general.—The acquisition of a real property interest for which Federal funding is requested shall be included as a project in an applicable transportation improvement program under sections 134 and 135 and sections 5303 and 5304 of title 49.

(B)Acquisition project.—The acquisition project may consist of the acquisition of a specific parcel, a portion of a transportation corridor, or an entire transportation corridor.

(6)Development.—Real property interests acquired under this subsection may not be developed in anticipation of a project until all required environmental reviews for the project have been completed.

(7)Reimbursement.—If Federal-aid reimbursement is made for real property interests acquired early under this section and the real property interests are not subsequently incorporated into a project eligible for surface transportation funds within the time allowed by subsection (a)(2), the Secretary shall offset the amount reimbursed against funds apportioned to the State.

(8)Other requirements and conditions.—

(A)Applicable law.—The acquisition of a real property interest shall be carried out in compliance with all requirements applicable to the acquisition of real property interests for federally funded transportation projects.

(B)Additional conditions.—The Secretary may establish such other conditions or restrictions on acquisitions under this subsection as the Secretary determines to be appropriate.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 893; Pub. L. 86–35, § 1, May 29, 1959, 73 Stat. 62; Pub. L. 90–495, § 7(a), (b), Aug. 23, 1968, 82 Stat. 818; Pub. L. 93–87, title I, § 113, Aug. 13, 1973, 87 Stat. 257; Pub. L. 94–280, title I, § 115, May 5, 1976, 90 Stat. 436; Pub. L. 102–240, title I, § 1017(a), (b), Dec. 18, 1991, 105 Stat. 1947; Pub. L. 102–388, title III, § 346, Oct. 6, 1992, 106 Stat. 1553; Pub. L. 103–429, § 3(2), Oct. 31, 1994, 108 Stat. 4377; Pub. L. 105–178, title I, §§ 1211(e)(1), 1301(a), June 9, 1998, 112 Stat. 188, 225; Pub. L. 112–141, div. A, title I, § 1302, July 6, 2012, 126 Stat. 528; Pub. L. 114–94, div. A, title I, § 1109(c)(5), Dec. 4, 2015, 129 Stat. 1343; Pub. L. 117–58, div. A, title I, § 11525(c), Nov. 15, 2021, 135 Stat. 607.)