FSH 2709.12 - ROAD RIGHTS-OF-WAY GRANTS HANDBOOK 9/85 WO ROAD RIGHTS-OF-WAY GRANTS HANDBOOK 21.23 - Letter of Consent. Use the format in exhibit 1. After receiving the signed stipulation from the State when it is required, the Regional Forester shall prepare a letter of consent to the appropriation by the Department of Transportation and transfer of the use of the lands to the State for highway purposes. The consent letter shall set forth the first eight standard terms and conditions to be included in the Highway Easement Deed and shall include a copy of any signed stipulation. The first paragraph shall specify whether the Grantee has requested control of access. Write the letter to either the Regional Federal Highway Administrator or to the State, according to the procedures agreed to in the memorandum of understanding with the State. Send a copy of the letter of consent to the other agency. The Regional Forester must change the last sentence of the letter to authorize right of entry directly when the letter is addressed to the State. Exhibit 1 Letter of Consent 2730 November 20, 19XX Mr. D. J. Steele Regional Federal Highway Administrator 450 Golden Gate Avenue P.O. Box 36096 San Francisco, California 94102 Dear Mr. Steele: Application has been made for the appropriation and transfer of lands of the United States within the Plumas National Forest for right-of-way (including control of access)1/ for the reconstruction of State Route 21 (U.S. Highway 40A). The areas applied for are in the SWl/4NW1/4, Sec. 4; NEl/4NE1/4, NW1/4NE1/4, SW1/4NE1/4, Sec. 5; T. 22 N., R. 12 E., M.D.B.&M.: SW1/4SW1/4, Sec. 18; NW1/4NW1/4, SW1/4NW1/4, SE1/4NW1/4, NW1/4SW1/4, NE1/4SW1/4, SE1/4SW1/4, SE1/4SE1/4, Sec. 19; NW1/4SW1/4, SW1/4SW1/4, Sec. 29; NE1/4NW1/4, NW1/4NE1/4, SWl/4NE1/4, SE1/4NE/4, Sec. 30; NE1/4NE1/4, Sec. 31; NW1/4NW1/4,NE1/4NW1/4, SW1/4NW1/4, Sec. 32; T. 23 N., R. 12 E., M.D.B.&M., as shown on the plat title "State of California, Department of Public Works, Division of Highway," and marked "District II, Plumas County, Route 21, Section E, Sheets 1 and 2, Approved by H.S. Miles, District Engineer, on August 14, 19XX." 1_/ Include when grant is for interstate highway or other controlled accesss highway. Exhibit 1--Continued We agree to the appropriation and transfer of these lands under the provision of Section(s) (107(d) and)2/ 317 of the Act of August 27, l958, 72 Stat. (893,)2/ 916; 23 U.S.C. (107(d) and)2/ 317, under the following conditions to be included in the grant of Highway Easement Deed (and upon compliance with the enclosed Stipulation agreed to by the State on November 2, l964)3/. (1) . (Include here the first eight conditions as . they appear in the highway easement deed. . When consent is for existing highway, . insert only six conditions.) . . (6) or (8) You may authorize immediate entry under the above terms. Sincerely, JOHN W. JONES Regional Forester By Acting Enclosure 2/ Include when grant is for interstate highway. 3/ Include when stipulations are required. 21.3 - Procedure for Issuance. No special form of application is provided or necessary to initiate the appropriation and transfer of the required right-of-way to the State. The State Highway Department submits its request by letter to the Federal Highway Administration Division Engineer. The State Highway Department is required by 23 CFR 712.503 to include with the request a complete set of maps showing the final location of the highway construction project and a description of the lands to be occupied by the desired right-of-way and a complete legal description. The Division Engineer must determine whether the lands are reasonably necessary for the right-of-way of the highway project if the Engineer has been delegated the authority to make such a determination. Otherwise, the Engineer shall forward the State's application to the Regional Federal Highway Administrator for this determination. In either case, upon approval of the State's request by the Regional Federal Highway Administrator, the Administrator forwards the application to the Regional Forester for approval and agreement to the appropriation. By this time, certain preliminary studies, a review of the State's construction plans and specifications, and participation in the preparation of the EA or EIS for the entire project by the Forest Supervisor should have taken place already. Also, the right-of-way limits should have been determined and approved. The width should be sufficient to permit construction, operation, and maintenance of the highway in a safe and efficient manner. There is no standard width. Right-of-way limits may extend a short distance beyond construction or clearing limits, but they are not intended to include areas for scenic easements. The Forest Service shall control the use of scenic strips adjacent to the highway right-of-way in accordance with management plans for the area. A right-of-way strip of uniform width lends itself more readily to monumentation and administration, and therefore, a uniform width may be appropriate for the major portion of a project. When land uses are highly competitive, it may be necessary for the Forest Service to request the State to change an application for uniform width to one of variable width. Except for unusual circumstances, the side-lines of a variable width right-of-way should parallel the centerline and extend a minimum of 250 feet before changing width from centerline. Upon final review of the highway plans and specifications, the preparation of a site specific environmental assessment, and a determination that National Forest interests are protected adequately by specific design features of the highway project plans or are covered by the selected provisions to be included in the stipulation, the Regional Forester approves the plans, prepares the final draft stipulation, and submits it to the State for execution. 21.4 - Nondiscrimination in Federally Assisted Programs. The granting of a right-of-way by the Department of Transportation to a State road agency without charge constitutes Federal financial assistance to a primary recipient who shall extend the assistance to the public using the road. Because the Federal Highway Administration prepares and issues the Highway Easement Deed, it is responsible for including an appropriate clause or clauses in the deed to ensure compliance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. 2000d to 2000d-4). No reference to the requirements of the Civil Rights Act is necessary in the letter of consent. 22 - HIGHWAYS CONSTRUCTED UNDER PROVISIONS OF CHAPTER 2 OF THE FEDERAL HIGHWAY ACT. Forest highways and public lands highways to be constructed under the provisions of Chapter 2, Title 23 U.S.C. are the principal highways of concern to the Forest Service. 22.1 - Forest Highways 22.11 - State Constructs and Maintains. Whenever a State applies for a right-of-way for a forest highway project, follow the same procedures as in the case of other highways within the Federal-aid system (sec. 21). Usually, but not always, the Federal Highway Administration has completed the survey and design of a forest highway before entering into a construction contract with the State. Thus, the Regional Forester and the Federal Highway Administration have agreed to the location and design features necessary to protect, develop, and manage the National Forest resources at the time of receipt of the State's request for a right-of-way. 22.12 - State Operates and Maintains Existing Highway. Maintenance of forest highways is normally the responsibility of the State. The State may assume maintenance of a forest highway without any formal transfer of a right-of-way to the State by permit or easement. However, the law in most States requires highway departments to obtain grants of rights-of-way for any highways they maintain. Encourage State highway departments to make application for rights-of-way even though State statutes may not require it. Whenever a State applies for a permanent right- of-way for a forest highway, approve the grant of a highway easement deed. Special-use permits are not appropriate. In those cases where the Forest Service has completed and accepted the construction of the highway project, there is no requirement for the State to execute a stipulation. The highway easement deed provisions for such a road are somewhat different from those required when the State is constructing a new highway on the right-of-way. The form and conditions of the easement grant for an existing road are as shown in section 21.21, exhibit 1, with the appropriate modifications. 22.13 - Procedure for Issuance. Follow the procedures provided under section 21.3 with the following exception: When the application is for a right-of-way for a highway that has already been constructed and there are no plans for immediate reconstruction, there are no required provisions for review and approval of construction plans and specifications, nor are there required stipulations. A plat and description that identify the lands occupied by the highway and that show the limits of the right-of-way with appropriate ties to permanent land monuments are necessary with each application for grants of right-of-way for existing highways. 22.2 - Public Lands Highways. Follow the procedures in section 21 for other Federal-aid highways. 24 - HIGHWAYS ACROSS FORMER LAND UTILIZATION LANDS UNDER CONTRACT OF SALE 24.1 - Qualifications for Grant. Qualifications for the grant of an easement are the same as shown under section 21.1, except that these qualifications require the consent of the State agency that executed the sale agreement. To satisfy this requirement, have the State agency execute an amendment to the agreement of sale signifying such consent. The Regional Forester may request the appropriate language from the Washington Office. 24.2 - Form of Grant 24.21 - Easement. Easements granted across these lands will be in the format shown in section 21.21, exhibit 1, depending on the classification of the highway constructed or to be constructed upon the right-of-way. 25 - REPLACEMENT OF PRIOR GRANTS. In the past, some States have constructed highways on rights-of-way covered by special-use permits. Upon the request of the State, replace the permit with an appropriate easement under the provisions of 23 U.S.C. l07(d) and 317. 25.1 - Qualifications for Grant. If the highway is located on the Federal-aid system or has been constructed under the provisions of Chapter 2 of the Highway Act, the State may apply for a Department of Transportation grant. No other form of right-of-way is appropriate. 25.2 - Form of Easement. Grant the easement in the format shown in section 21.21, exhibit 1, with appropriate modifications. 25.3 - Procedure for Issuance. Process applications for rights- of-way grants to replace special-use permits in the same manner as rights-of-way requested under section 22.12. Limit approved widths to what is sufficient for operating and maintaining the existing highway; widths need not be the same as authorized previously by the special-use permit.