FSH 2709.12 - ROAD RIGHTS-OF-WAY GRANTS HANDBOOK AMEMDMENT 2709.12-94-1 EFFECTIVE 6/22/94 CHAPTER 20 - DEPARTMENT OF TRANSPORTATION EASEMENTS 21 - HIGHWAYS ON FEDERAL-AID SYSTEM. If the project is on the Interstate System, 23 U.S.C. 107(d) specifically authorizes the conveyance to the State of a right to control access to the highway. However, the Forest Service may authorize the Department of Transportation to convey a right to control access on other highways under conditions that ensure adequate protection and utilization of the resources of National Forest System lands. 21.1 - Qualifications for Grant. The following qualifications under Sections 317 and 107(d) of the act must be met before the Federal Highway Administration can issue an easement: 1. The Federal Highway Administration must have determined that the land or interest in land owned by the United States is reasonably necessary for the highway right-of-way. 2. The project must be a part of the Federal-aid system. 3. The Forest Service must have agreed to the appropriation and transfer under conditions that are deemed necessary for the adequate protection and utilization of the National Forest. 4. The Forest Service has not certified to the Federal Highway Administration within 4 months of receiving the application from the Federal Highway Administration that the proposed appropriation of such land is contrary to the public interest or inconsistent with the purposes for which such lands have been reserved. The Federal Highway Authority has the authority under the act to appropriate the lands and transfer the right-of-way to the State if they have received no reply to the application before the expiration of the 4-month period. Conference and discussion with the State during the formative stages of the project (reconnaissance, P-line survey, environmental analysis, development of the stipulation provisions) reduce the time between receipt and agreement to the application to the minimum. In no event should the 4-month period expire without giving the Federal Highway Administration notice of agreement to or rejection of the application. 21.2 - Form of Documents. 21.21 - Easement. The easement format is shown as exhibit 01. The Department of Transportation has agreed to issue deeds in this format for rights-of-way to States or their nominees for highways on the Interstate System or other controlled-access highways and for other Federal-aid highways with the deletion of the access control references. Include all of the terms and conditions. These conditions normally apply in every case; any additions or deletions should be unnecessary. Make no changes without the Director of Lands' approval. A discussion of some of the conditions follows: 1. Condition 1. Refer any question on termination of term or terminable special-use permits on lands needed for Federal-aid highway purposes to the Washington Office Lands Staff. The State cannot and shall not take any action to terminate an existing permit issued by the Forest Service. This action is the responsibility of the Forest Service. Whether or not the permittee receives compensation from the State for damages to improvements or for the costs of moving these improvements depends on the kind of permit issued and the conditions stated therein. Some State laws require that the constructing State agency reimburse a permittee for any losses suffered. There is a well-established principle that the United States may not pay for the use of its own lands where such other use is under revocable authorization. The Federal Highway Administration has ruled that Federal funds can participate in any payment for equities in revocable permits only to the extent that State law requires such payment. 2. Condition 4. The described right-of-way to which this paragraph refers is the right-of-way shown on the plats, which are to be attached to the deed. Plainly indicate on the plat the right-of-way limits on either side of the highway centerline and monument them in accordance with stipulation provision number 10 (sec. 21.22, ex. 01). The approved plans referred to are the highway construction plans approved by the Regional Forester. The plans are approved only after a plan-in-hand inspection on the ground. Any additional requirements revealed by the inspection are either incorporated into the plans by the State or included in the written stipulation. The right-of-way plat attached to the deed may be a copy of the construction plan approved by the Regional Forester if it meets the requirements of the State for recording in the public records. Usually, the approved construction plan contains information unrelated to the area that is to be included in the right-of-way grant and, thus, may be an awkward size for recording purposes. When this is the case, request the State to prepare a right-of-way plat for attachment to the deed. 3. Condition 5. The final paragraph of this condition provides for the listing of all construction changes that require Regional Forester approval before taking effect, or for the listing of those changes that do not require approval. If all changes that require approval can be anticipated, use alternate 1 language in the letter of consent (sec. 21.23). If certain changes that do not require Regional Forester approval can be defined, use alternate 2 language. Do not use both. If the Regional Forester wishes to approve all changes before they are made, use neither alternative. In this case the provision shall read: Provided, that if it is subsequently deemed necessary that the approved plans, specifications, or stipulation be amended or supplemented, the Regional Forester and the Grantee shall approve any amendment or supplement before being placed in effect. 4. Condition 7. Do not include permanent material sites or maintenance sites outside of the normal right-of-way limits within the appropriation. Such uses are authorized by separate special-use authorizations (FSM 2710). 5. Conditions 9 and 10. The Federal Highway Administration includes an appropriate clause to ensure compliance with Title VI of the Civil Rights Act of l964 (78 Stat. 252). Do not include such a clause in the letter of consent. 6. Condition 11. When the State no longer needs the land, Section 317(c) of the act requires that it revert to the Secretary of the Department from which appropriated. It is not necessary to include this as a condition in the Regional Forester's letter agreeing to the appropriation and transfer. 21.21 - Exhibit 01 DEPARTMENT OF TRANSPORTATION HIGHWAY EASEMENT DEED THIS DEED, made this day of , 19 , by and between the UNITED STATES OF AMERICA, acting by and through the Department of Transportation, Federal Highway Administration, hereinafter referred to as the Department, and the , hereinafter referred to as the Grantee: WITNESSETH: WHEREAS, the Grantee has filed application under the provisions of the Act of Congress of August 27, 1958, as amended (23 U.S.C., Section 317 (and Section 107(d))1/), for the right- of-way of a highway over certain land owned by the United States in the State of , which is under the jurisdiction of the Department of Agriculture, Forest Service, and WHEREAS, this transfer is further authorized under the provisions of the Act of Congress approved October 15, 1966 (80 Stat. 931, 937, Section 6(a)(1)(A)). WHEREAS, the Federal Highway Administrator, pursuant to delegations of authority from the Secretary of Transportation, has determined that an easement over the land covered by the application is reasonably necessary for a right-of-way for (Identification of highway) ; and WHEREAS, the Department of Agriculture, acting by and through the Forest Service, has agreed to the transfer by the Department of an easement over the land to the Grantee; NOW THEREFORE, the Department as authorized by law, does hereby grant to the Grantee an easement for a right-of-way for the (construction)2/ operation and maintenance of a highway (including control of access thereto from adjoining lands)3/ and use of the space above and below the established grade line of the highway pavement for highway purposes on, over, across, in, and upon the following described land of the United States within the (National Forest)4/ (National Grassland)4/ ( )4/, County of , State of : Township Range Meridian 21.21 - Exhibit 01--Continued SECTION SUBDIVISION (In nonpublic-land-survey States the parcel description shall conform with State practice.) as shown on the following described plats: Drawing No. Date Number of Sheets marked exhibit A attached hereto and made part hereof. Subject, however, to the following terms, conditions, and covenants: 1. Outstanding valid claims, if any, existing on the date of this grant, and the Grantee shall obtain such permission as may be necessary on account of any such claims. 2. The Grantee and the Regional Forester shall make determination as to the necessity for archeological and paleontological reconnaissance and salvage within the right-of-way, and such reconnaissance and salvage to the extent determined necessary because of construction of the highway facility, is to be undertaken by the Grantee in compliance with the acts entitled An Act for the Preservation of American Antiquities, approved June 8, 1906 (34 Stat. 225, 16 U.S.C. 432-433), the Archaeological Resources Protection Act of 1979 (93 Stat. 721, 16 U.S.C. 470aa-470ll), and State laws where applicable. 3. 5/ Unless the Grantee and Regional Forester stipulate as to a shorter time, the easement herein granted shall terminate ten (10) years from the date of the execution of this deed by the United States of America in the event construction of a highway on the right-of-way is not started during such ten-year-period. 4. The easement herein granted is limited to use of the described right-of-way and the space above and below the established grade line of the highway pavement for the purpose of (construction)2/ operation and maintenance of a highway (in accordance with the approved plans described in the following condition number 5)2/ and does not include the grant of any rights for nonhighway purposes or facilities: Provided, That the right of the Forest Service to use or authorize the use of any portion of the right-of-way for nonhighway purposes shall not be exercised when such use would be inconsistent with the provisions of Title 23 of the United States Code and of the Federal Highway Administration regulations issued pursuant thereto or would interfere with the free flow of traffic or impair the full use and safety of the highway, and, in any case, the Grantee and the Federal Highway 21.21 - Exhibit 01--Continued Administration shall be consulted prior to the exercise of such rights; and Provided further, That nothing herein shall preclude the Forest Service from locating National Forest and other Department of Agriculture information signs on the portions of the right-of-way outside of construction clearing limits, (except that such signs shall not be located on the right-of-way of an Interstate System)1/. 5. 6/The design and construction of highway project(s) situated on this right-of-way will be in accordance with the provisions of Title 23, United States Code--Highways, and amendments; the Regulations for the Administration of Federal Aid for Highways, effective May 11, 1960; and amendments and established procedures for Federal-aid projects, including the requirements of Title 23, Code of Federal Regulations, part 771, and the construction specifications of the State highway department as approved by the Federal Highway Administration for use on Federal-aid projects. The Regional Forester will be provided an opportunity to review plans relative to effects, if any, that the project works as planned will have upon adequate protection and utilization of the land traversed by the right-of-way and adjoining land under the administration of the Forest Service for the purposes for which such land is being administered. Those features of design, construction, and maintenance of the highway facility and of use of the right-of-way that would have effect on the protection and utilization of the land under the administration of the Forest Service are to be mutually agreed upon by the Regional Forester and the Grantee by conference or other communication during the preparation of the plans and specifications for each construction project, and the plans shall be revised, modified, or supplemented to meet the approval of the Regional Forester, or when deemed appropriate, supplemented by written stipulation between the Regional Forester and the Grantee, prior to the start of construction. The final design and the construction specifications for any highway construction project on the right-of-way will be presented to the Regional Forester for approval; construction shall not begin until such approval is given: Provided, That if it is subsequently deemed necessary that the approved plans, specifications, or stipulation be amended or supplemented, any amendment or supplement (which affects alinement, subgrade, etc.)7/ shall be approved by the Regional Forester and the Grantee before being placed in effect (EXCEPT those changes affecting . . . )8/. 21.21 - Exhibit 01--Continued 6. Consistent with highway safety standards, the Grantee shall: a. Protect and preserve soil and vegetative cover and scenic and esthetic values on the right-of-way outside of construction limits. b. Provide for the prevention and control of soil erosion within the right-of-way and adjacent lands that might be affected by the construction, operation, or maintenance of the highway, and shall vegetate and keep vegetated with suitable species all earth cut or fill slopes feasible for revegetation or other areas on which ground cover is destroyed where it is deemed necessary during a joint review between the Regional Forester and the Grantee prior to completion of the highway and the Grantee shall maintain all terracing, water bars, leadoff ditches, or other preventive works that may be required to accomplish this objective. This provision shall also apply to slopes that are reshaped following slides which occur during or after construction. 7. The Grantee shall establish no borrow, sand, or gravel pits; stone quarries, permanent storage areas; sites for highway operation and maintenance facilities, camps, supply depots, or disposal areas within the right-of-way; unless shown on approved construction plans, without first obtaining approval of the Regional Forester. 8. The Grantee shall maintain the right-of-way clearing by means of chemicals only after consultation with the Regional Forester. Consultation must address the time, method, chemicals, and the exact portion of the right-of- way to be chemically treated. 9. and 10. (The Federal Highway Administration will include appropriate clauses to ensure compliance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252)). 11. When need for the easement herein granted no longer exists, the Grantee shall give notice of that fact to the Secretary of Transportation and the rights herein granted shall terminate and the land shall revert immediately to the full control of the Department of Agriculture. IN WITNESS WHEREOF, I, , Assistant Chief Counsel, pursuant to delegations of authority from the Secretary of Transportation, the Federal Highway Administrator, and Chief Counsel, Federal Highway Administration, by virtue of authority in me vested by law, have hereunto subscribed my name as of the day and year first above written. 21.21 - Exhibit 01--Continued UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL HIGHWAY ADMINISTRATION By Assistant Chief Counsel Witness: UNITED STATES OF AMERICA) ) ss: DISTRICT OF COLUMBIA ) I, , a Notary Public in and for the District of Columbia, do hereby certify that on this the day of , 19 , before me personally appeared , Assistant Chief Counsel, Federal Highway Administration, and acknowledged that the foregoing instrument bearing date of , 19 , was executed by in official capacity and by authority in vested by law, for the purposes and intents in said instrument described and set forth, and acknowledged the same to be free act and deed as Assistant Chief Counsel, Federal Highway Administration. Witness my hand and seal this day of , 19 . Notary Public (SEAL) My Commission expires . In compliance with the conditions set forth in the foregoing deed, the , certifies, and by the acceptance of this deed, accepts the right-of-way over certain land herein described and agrees for itself, its successors and assigns forever to abide by the conditions set forth in said deed. By STATE OF ) COUNTY OF ) 21.21 - Exhibit 01--Continued I, , a Notary Public in and for said County and State, hereby certify that , whose name as is signed to the foregoing conveyance and who is known to me, acknowledged before me on this day that, being informed of the contents of the conveyance, in capacity as such executed the same voluntarily on this day. Given under my hand and seal of office this day of , 19 . Notary Public (SEAL) My Commission Expires . 1/ Include where grant is for a highway on the Interstate System. 2/ Delete for existing highway. 3/ Include where grant is for a highway on the Interstate System or other controlled-access highway. 4/ Delete the one that does not apply or insert appropriate reference if neither National Forest nor National Grassland. 5/ Delete Clause 3 when easement is for an existing highway. 6/ Delete Clause 5 in its entirety when Clause 4 of the deed has been modified to provide for only the operation and maintenance of an existing highway. 7/ Include all items that require prior approval by Regional Forester. 8/ Include any anticipated changes in design or specifications that do not require approval of Regional Forester (sec. 21.21, Item 3, Condition 5).