SUBPART B - REAL PROPERTY ACQUISITION
APPLICABILITY OF ACQUISITION REQUIREMENTS

Non-Regulatory Supplement

1. ACQUISITION FOR ENVIRONMENTAL MITIGATION (49 CFR 24.101). Acquisition of a parcel for environmental mitigation must comply with the Uniform Act if the acquisition is for a Federal or Federally assisted project. The only minor deviation would be in the case of a Federal Emergency Management Agency (FEMA)-type emergency situation, when a displaced person must move before an offer is made. Even in this situation, all entitlements are preserved and Uniform Act requirements must be followed.

2. ACQUISITION FOR TRANSPORTATION ENHANCEMENT ACTIVITIES (23 USC 133(d)(5) AND 23 CFR 710.511).

   1. Applicability of certain requirements to third party sellers applies to situations where there is a two-step conveyance of real property: (1) from a private owner (the third party) to a qualified conservation organization, and (2) from that organization to an agency, for a Federal-aid transportation enhancement activity.

   2. Section 133 essentially removes the first conveyance from the coverage of the Uniform Act, except in two specific situations: (1) if the conservation organization acted on behalf of the agency receiving Federal-aid when it acquired the real property, or (2) if there was Federal approval of property acquisition prior to the involvement of the conservation organization.

   3. For the purposes of Section 133, the term "Federal approval of property acquisition" means the date of the approval of the environmental document, i.e., the Categorical Exclusion, the Environmental Assessment, or the Environmental Impact Statement, as appropriate. Similarly, the term "involvement of the conservation organization" means the date the organization makes a legally binding offer to acquire a real property interest, including an option to purchase, in the property.

   4. If either of the two situations described above exists, then the requirements of the Uniform Act apply to the third-party seller transaction. In the first situation, the requirements of the Act would apply, just as if the agency receiving the Federal-aid had carried out the acquisition. In the second, the limited requirements under 49 CFR 24.101(b)(2), for an agency or person without eminent domain authority, would apply.

3. APPLICATION OF THE UNIFORM ACT TO WETLANDS BANKING (49 CFR 24.101).

   1. Wetlands banks can be established by two types of entities: public agencies and private parties. The latter category includes both for-profit and nonprofit developers. One major difference between a private party and a public agency is that the latter typically has the power of eminent domain and can force a landowner to sell his or her real property if it is necessary for a public purpose. A private party does not normally have eminent domain authority and therefore cannot purchase property unless its owner agrees to sell.

   2. In the absence of a specific statutory exception, both public agency and private party acquisitions or displacements are covered by the Uniform Act when they are for, or the result of, a program or project undertaken by a Federal agency or receiving Federal financial assistance. Therefore, if Federal funds are used to acquire the real property or if the property is acquired with the intention of mitigating a current or future project's impact on wetlands, the Uniform Act applies.

   3. In addition, any real property in a wetlands bank acquired by a State Transportation Department that is eventually used to mitigate the impact of a Federal-aid highway project must have been acquired in conformance with the Uniform Act. Thus, if an agency is uncertain whether real property will be used for such mitigation, it must follow the Uniform Act or risk nonparticipation of Federal funds in the project.

   4. When an acquisition is undertaken by a private party that has no recourse to the power of eminent domain, then a simplified procedure (specified in 49 CFR 24.101(b)(2)) may be used. Essentially, this procedure requires the buyer to (1) inform the seller that it does not have eminent domain authority and (2) provide the seller with an estimate of the fair market value of the property. However, when a private party is acting as the agent or on behalf of a public agency with eminent domain authority, then it is as if the public agency were doing the acquisition and the full requirements of the Uniform Act apply. Also if a private party makes its first written offer to acquire property after the approval of the environmental document for a project, FHWA would consider the property to have been acquired with the intent of being used for mitigation on that project.

   5. Finally, when the Uniform Act is applicable to an acquisition, the relocation requirements of the Uniform Act also apply. Given the nature of parcels likely to be used for wetlands banking, occupancy by homes and businesses should be rare and, consequently, so should relocation. However, if there are displacements from a covered acquisition, the developer will have to meet the relocation requirements as well.

4. APPLICABILITY OF THE UNIFORM ACT TO FEDERAL-AID HIGHWAY PROJECTS (49 CFR 24.101(b)). The Uniform Act is to be applied to all persons whose property is acquired or who are displaced for a project if there is Federal funding in any part of the project.

5. APPLICABILITY OF THE UNIFORM ACT TO NONPROFIT ORGANIZATIONS (NPOs) (49 CFR 24.101(b)(2)).

   1. The acquisition activities of NPOs are subject to Uniform Act coverage if such activities are for a Federal or Federally assisted program or project. Pertinent considerations are (1) the intent of the NPO and the agency to ultimately convey property obtained by the NPO to the agency, and 2) the agency's intent to use the property conveyed for a Federal or Federally assisted project. If these two considerations determine that the property will ultimately be used for a Federal or Federally assisted project, then the Uniform Act applies.

   2. However, since an NPO does not have recourse to the power of eminent domain, the obligation imposed by the Uniform Act would be limited. The NPO must comply with 49 CFR 24.101(b)(2) in the acquisition of property and 49 CFR 24.2(a)(9)(ii)(H) in providing relocation assistance.

   3. The requirements for acquisition under Section 24.101(b)(2) are: (1) The owner must be advised that the property will not be acquired in the event negotiations fail to result in an amicable agreement, and (2) the owner must be advised of what is believed to be the fair market value of the property. The regulations do not require that relocation assistance be offered to an owner-occupant. However, any resulting displacement of a tenant is subject to the regulations in 49 CFR Part 24.

   4. An NPO that conveys land to an agency for a Federal or Federally assisted project is not an owner or displaced person, for the NPO is acting cooperatively with the agency to advance the program or project. However, if a qualified conservation organization is acquiring land for a transportation enhancement activity, 23 USC 133(d)(5) provides differing requirements. In such circumstances, the original acquisition is not subject to Uniform Act requirements unless the organization (1) is acting as an agent of a public agency, or (2) made an offer to purchase the property after the approval of the environmental document for the project. In those circumstances, the organization is treated as an owner of real property under the Uniform Act.

6. APPLICATION OF THE UNIFORM ACT TO TEMPORARY EASEMENTS (49 CFR 24.101(c)).

   1. The term "temporary easement" is frequently used to describe a number of instruments employed by acquiring agencies for a wide variety of purposes, some of which are not really temporary. A review of the specific use relating to a "temporary" easement is advised to determine the applicability of the Uniform Act and 49 CFR Part 24. Reliance on the name or title of the instrument as the determinant is not recommended. Supporting this approach is the principle that a temporary easement involves a taking of private property, albeit for a limited time. The factual circumstances related to a temporary taking determine the applicability of the Uniform Act and 49 CFR Part 24.

   2. An acquiring agency must comply with its own governing statutory and case law. When the easement causes a damage under state law, and the owner is entitled to payment of just compensation, the Uniform Act and its implementing regulations are applicable.

   3. Acquiring agencies have some discretion regarding a minimum payment or a donation (49 CFR 24.108) in this area, particularly in what is permissible under state law. An acquiring agency is not expected to exclude a temporary easement if the effect of the taking is significant. 49 CFR 24.101(b) allows discretion when takings have no long-term impacts.

7. ACQUISITION FROM A TENANT-OWNER (49 CFR 24.105). It is clearly the intent of the Uniform Act that tenant-owners of buildings, structures, or other improvements be given status equal to owners of real property and are thus entitled to an offer of just compensation. A written offer should be made directly to the tenant-owner for his or her property if the landowner's disclaimer of all interest in the tenant-owned improvements is obtained. Where separate offer letters are tendered to the fee owner and tenant owner, each would specify only the offer of just compensation for the respective ownership interests. If a disclaimer pursuant to Section 302(b)(2) of the Uniform Act cannot be obtained, separate offers to the parties for their respective interests need not be made if the agency attempted but failed to obtain a disclaimer from the landowner regarding the tenant's ownership interest. Payments may be made to tenant-owners only after the landowner has provided a disclaimer of all interest in the improvements of the tenant and, in consideration for any such payment, the tenant assigns, transfers, and releases to the acquiring agency all rights, title, and interest in the improvements.

8. GREATEST EXTENT PRACTICABLE UNDER STATE LAW (49 CFR 24.101(d)). If the State is not precluded by its law, compliance with the Uniform Act and the State Transportation Department (STD) model regulations is required. Exceptions are to be addressed in the State's Section 305 assurances.

9. SETBACK REQUIREMENTS (49 CFR 24.101). There are no Federal guidelines with respect to distance limitations between the highway right-of-way line and a dwelling.