Memorandum

This guidance supersedes the February 6, 2006 Office of Real Estate Services guidance concerning the roles of Division office realty staff in the management of the right-of-way aspects of major projects. The Administrator's January 19, 2007 memorandum, Issuance of Major Project Guidance, provides guidance on compliance with the major project requirements set forth in Section 1904 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). The January 19, 2007 memorandum notes that feedback to the January 27, 2006 memorandum on Interim Major Project Guidance expanded the Federal Highway Administration's (FHWA) role beyond traditional oversight to ensure that FHWA is well positioned to make certain major projects are delivered in a manner that captures the public's trust and confidence in the State and Federal transportation agencies' ability to effectively and efficiently deliver a quality product. This major project guidance and associated documents can be found at http://www.fhwa.dot.gov/programadmin/mega/index.cfm.

A significant change from the interim guidance moves the requirement for submission of a project management plan from the beginning of the environmental phase to the end of the environmental phase. In order to insure that proponents'¹ project management and financial plans adequately address right-of-way project development activities and associated costs, it is recommended that Division realty staff:

1. Be included as a member of the Division office major projects team.

2. Assure that right-of-way activities identified in the project management plan are in compliance with applicable federal requirements including but not limited to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, its implementing regulation (49 CFR Part 24), and the approved State right-of-way manual.

3. Assure that right-of-way and related right-of-way project development processes are carried out in a manner consistent with the stated purpose of the project management plan.

4. Provide guidance concerning the right-of-way cost estimating process and its utilization. Information on right-of-way cost estimating is anticipated from a 2007 National Cooperative Highway Research Program study to (1) refine right-of-way related cost estimating and management processes that support right-of-way cost estimating; (2) develop methods and tools; and (3) provide direction on how to implement strategies, methods, and tools related to right-of-way cost estimating.

5. Assess the accuracy and reliability of the right-of-way cost estimate and updates. It is suggested that Division Office realty staff become familiar with Major Project Cost Estimating Guidance available at: http://www.fhwa.dot.gov/programadmin/mega/cefinal.cfm. As part of the environmental analysis, Division realty staff should require a right-of-way cost estimate for each project alternative, and should assure that a reliable right-of-way cost is provided for the preferred alignment. This evaluation can be completed by the Division realty staff or an entity independent of the State's project development team.

6. Evaluate the staffing capability of the State, or project proponent, to undertake the required right-of-way activity in compliance with the State's right-of-way manual and the project management plan. The review should consider whether the proponent is capable of meeting the obligations included in the project management plan consistent with the requirements in 23 CFR 710.201.

Major Projects - Project Management Plan

The project management plan should be reviewed to determine if it addresses right-of-way activities in a manner that reflects compliance with applicable law and approved procedures, and meets requirements of the major project guidance. The Major Project Plan should:

• Document the procedures and processes to effectively manage the scope, costs, schedules, quality of, and the federal requirements applicable to, the project.

• Define the roles and responsibilities, procedures and processes, so that the major project can be completed on time, within budget, with highest degree of quality, in a safe manner, and in a manner that maintains the public trust support, and confidence.

The project management plan should clearly define the project scope, including right-of-way. There should be a clearly identified organization that includes technical and functional support teams, such as right-of-way. The project management plan, and periodic updates, should
address policies and processes for appraisal, appraisal review, acquisition, relocation,
property management and demolition, construction/utility easements, scheduling and reporting. Right-of-way should be addressed in other sections, as appropriate, including sections on schedule and cost.

Major Project - Risk Management Tool

The "Risk Management Tool for Managing the Planning / Environmental Phases of Prospective Major Projects" found at http://www.fhwa.dot.gov/programadmin/mega/rmtools.cfm can be used as a tool by Division realty staff to assess risks of right-of-way activities, particularly during the environmental assessment phase. The tool reflects a risk management approach to issues, including evaluating cost estimates, to confirm that they are realistic and in "year of expenditure" dollars.

Right-of-Way Activities Prior to an Approved Project Management Plan and Finance Plan

The State DOT or project proponent has 90 days after the signed environmental document to submit the project management plan to the FHWA for approval. A draft plan should be submitted for review prior to approval of the environmental document. Two situations should be considered in addressing right-of-way activities prior to an approved major project plan. First, in advance of the signed environmental document, the proponent may pursue early acquisition (23 CFR 710.501) and/or protective buying and hardship acquisition (23 CFR 710.503). Second, following approval of the environmental document, but prior to the FHWA approval of the project management plan, the State DOT may request and receive authorization to undertake pre-acquisition activities, acquisition, and/or relocation.

While the January 19, 2007 project management plan guidance requires approval of the project management plan as a prerequisite to authorization of Federal-aid funds for right-of-way acquisition, the Division Administrator retains discretion to authorize right-of-way activities in advance of approval of the major project management or finance plan ², where appropriate. Approval of right-of-way activities is consistent with the major project planning requirements as right-of-way acquisitions are legally permitted to occur prior to the time required for submission of the project management and finance plans.

The major project guidance confirms that the change to the submission schedule for the project management plan is not intended to suggest that there is a decreased emphasis on good management of the project during the planning, environmental, and project development phases.

The Office of Real Estate Services Point of Contact (POC)for your Division is available to assist in evaluating cost estimating processes or discuss this guidance.

cc: Directors of Field Services

1 It is noted in the major project guidance that while generally the owner of the major project is the State Transportation Department (State DOT), major projects can be developed by other proponents. The obligation for submission of the project management plan is on the financial recipient. If the recipient is not the State DOT, it should document its roles and responsibilities and that management controls are in place.

2 Note that the finance plan is not required to be submitted until authorization for federal-aid funds for construction (generally after acquisition and relocation has occurred and right of way funds have been authorized).