Page 51 TITLE 23—HIGHWAYS § 108

1See References in Text note below.

(1) the Secretary has determined either that

the State is unable to acquire necessary lands

or interests in lands, or is unable to acquire

such lands or interests in lands with sufficient

promptness; and

(2) the State has agreed with the Secretary

to pay, at such time as may be specified by the

Secretary an amount equal to 10 per centum of

the costs incurred by the Secretary, in acquiring such lands or interests in lands, or such

lesser percentage which represents the State’s

pro rata share of project costs as determined

in accordance with subsection (c) 1 of section

120 of this title.

The authority granted by this section shall

also apply to lands and interests in lands received as grants of land from the United States

and owned or held by railroads or other corporations.

(b) The costs incurred by the Secretary in acquiring any such lands or interests in lands may

include the cost of examination and abstract of

title, certificate of title, advertising, and any

fees incidental to such acquisition. All costs incurred by the Secretary in connection with the

acquisition of any such lands or interests in

lands shall be paid from the funds for construction, reconstruction, or improvement of the

Interstate System apportioned to the State

upon the request of which such lands or interests in lands are acquired, and any sums paid to

the Secretary by such State as its share of the

costs of acquisition of such lands or interests in

lands shall be deposited in the Treasury to the

credit of the appropriation for Federal-aid highways and shall be credited to the amount apportioned to such State as its apportionment of

funds for construction, reconstruction, or improvement of the Interstate System, or shall be

deducted from other moneys due the State for

reimbursement from funds authorized to be appropriated under section 108(b) of the FederalAid Highway Act of 1956.

(c) The Secretary is further authorized and directed by proper deed, executed in the name of

the United States, to convey any such lands or

interests in lands acquired in any State under

the provisions of this section, except the outside

five feet of any such right-of-way in any State

which does not provide control of access, to the

State highway department of such State or such

political subdivision thereof as its laws may provide, upon such terms and conditions as to such

lands or interests in lands as may be agreed

upon by the Secretary and the State highway

department or political subdivisions to which

the conveyance is to be made. Whenever the

State makes provision for control of access satisfactory to the Secretary, the outside five feet

then shall be conveyed to the State by the Secretary, as herein provided.

(d) Whenever rights-of-way, including control

of access, on the Interstate System are required

over lands or interests in lands owned by the

United States, the Secretary may make such arrangements with the agency having jurisdiction

over such lands as may be necessary to give the

State or other person constructing the projects

on such lands adequate rights-of-way and control of access thereto from adjoining lands, and

any such agency is directed to cooperate with

the Secretary in this connection.

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 892.)

REFERENCES IN TEXT

Act of February 26, 1931, 46 Stat. 1421, referred to in

subsec. (a), is act Feb. 26, 1931, ch. 307, 46 Stat. 1421, as

amended, known as the Declaration of Taking Act,

which enacted sections 258a to 258e of Title 40, Public

Buildings, Property, and Works. For complete classification of this Act to the Code, see Tables.

Subsection (c) of section 120 of this title, referred to

in subsec. (a)(2), was struck out and a new subsec. (c)

was added by Pub. L. 102–240, title I, §1021(a), Dec. 18,

1991, 105 Stat. 1950.

The Federal-Aid Highway Act of 1956, referred to in

subsec. (b), is act June 29, 1956, ch. 462, 70 Stat. 374. For

complete classification of this Act to the Code, see

Tables. Section 108(b) of the Federal-Aid Highway Act

of 1956 is set out as a note under section 101 of this

title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 43 section 1770.

§ 108. Advance acquisition of rights-of-way

(a) For the purpose of facilitating the acquisition of rights-of-way on any Federal-aid highway in the most expeditious and economical

manner, and recognizing that the acquisition of

rights-of-way requires lengthy planning and negotiations if it is to be done at a reasonable

cost, the Secretary, upon the request of the

State highway department, is authorized to

make available the funds apportioned to any

State which may be expended on such highway

for acquisition of rights-of-way, in anticipation

of construction and under such rules and regulations as the Secretary may prescribe. The agreement between the Secretary and the State highway department for the reimbursement of the

cost of such rights-of-way shall provide for the

actual construction of a road on such rights-ofway within a period not exceeding 20 years following the fiscal year in which such request is

made unless a longer period is determined to be

reasonable by the Secretary.

(b) Federal participation in the cost of rightsof-way 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)(1) There is hereby established in the Treasury of the United States a revolving fund to be

known as the right-of-way revolving fund which

shall be administered by the Secretary in carrying out the provisions of this subsection. Sums

authorized to be appropriated to the right-ofway revolving fund shall be available for expenditure without regard to the fiscal year for which

such sums are authorized.

(2) For the purpose of acquiring rights-of-way

for future construction of highways and passenger transit facilities on any Federal-aid system and for making payments for the moving or

relocation of persons, businesses, farms, and

other existing uses of real property caused by

the acquisition of such rights-of-way, in addition to the authority contained in subsection (a)

of this section, the Secretary, upon request of a
§ 108 TITLE 23—HIGHWAYS Page 52

1See References in Text note below.

State highway department, is authorized to advance funds, without interest, to the State from

amounts available in the right-of-way revolving

fund, in accordance with rules and regulations

prescribed by the Secretary. Funds so advanced

may be used to pay the entire costs of projects

for the acquisition of rights-of-way, including

the net cost to the State of property management, if any, and related moving and relocation

payments.

(3) Actual construction of a project on rightsof-way, with respect to which funds are advanced under this subsection, shall be commenced within a period of not less than two

years nor more than 20 years following the end

of the fiscal year in which the Secretary approves such advance of funds, unless the Secretary, in his discretion, shall provide for an

earlier or later termination date. Immediately

upon the termination of the period of time within which actual construction must be commenced, in the case of any project where such

construction is not commenced before such termination, or upon approval by the Secretary of

the plans, specifications, and estimates for such

project for the actual construction of a project

on rights-of-way with respect to which funds are

advanced under this subsection, whichever shall

occur first, the right-of-way revolving fund shall

be credited with an amount equal to the Federal

share of the funds advanced, as provided in section 120 of this title, out of any Federal-aid

highway funds apportioned to the State in which

such project is located and available for obligation for projects of the type funded and the

State shall reimburse the Secretary in an

amount equal to the non-Federal share of the

funds advanced for deposit in, and credit to, the

right-of-way revolving fund.

(d) EARLY ACQUISITION OF RIGHTS-OF-WAY.—

(1) GENERAL RULE.—Subject to paragraph (2),

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 rights-of-way, acquired in advance of

any Federal approval or authorization, if the

rights-of-way are subsequently incorporated

into a project eligible for surface transportation program funds; and

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

(2) TERMS AND CONDITIONS.—The Federal

share payable of the costs described in paragraph (1) shall be eligible for reimbursement

out of funds apportioned to a State under this

title when the rights-of-way acquired are incorporated into a project eligible for surface

transportation program funds, if the State

demonstrates to the Secretary and the Secretary finds that—

(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 right-ofway 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 has

been completed for the project for which the

right-of-way was acquired by the State, and

the acquisition has been approved by the

Secretary under this Act,1 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, both the Secretary and the Administrator of the Environmental Protection

Agency have concurred 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.

(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.)

REFERENCES IN TEXT

The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, referred to in subsec. (d)(2)(A), is act Jan. 2, 1971, Pub. L. 91–646, 84 Stat.

1894, as amended, and which is classified principally to

chapter 61 (§4601 et seq.) of Title 42, The Public Health

and Welfare. For complete classification of this Act to

the Code, see Short Title note set out under section

4601 of Title 42 and Tables.

The Civil Rights Act of 1964, referred to in subsec.

(d)(2)(B), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241, as

amended. Title VI of the Act is classified generally to

subchapter V (§2000d et seq.) of chapter 21 of Title 42.

For complete classification of this Act to the Code, see

Short Title note set out under section 2000a of Title 42

and Tables.

The National Environmental Policy Act, referred to

in subsec. (d)(2)(F), probably means the National Environmental Policy Act of 1969, Pub. L. 91–190, Jan. 1,

1970, 83 Stat. 852, as amended, which is classified generally to chapter 55 (§4321 et seq.) of Title 42. For complete classification of this Act to the Code, see Short

Title note set out under section 4321 of Title 42 and

Tables.
Page 53 TITLE 23—HIGHWAYS § 109

This Act, referred to in subsec. (d)(2)(F), probably

means Pub. L. 102–240, Dec. 18, 1991, 105 Stat. 1914,

known as the Intermodal Surface Transportation Efficiency Act of 1991. For complete classification of this

Act to the Code, see Short Title of 1991 Amendment

note set out under section 101 of Title 49, Transportation, and Tables.

Section 7 of the Endangered Species Act, referred to

in subsec. (d)(2)(F), probably means section 7 of the Endangered Species Act of 1973, which is classified to section 1536 of Title 16, Conservation.

AMENDMENTS

1994—Subsec. (d)(2)(F). Pub. L. 103–429 substituted

‘‘section 303 of title 49’’ for ‘‘section 4(f) of the Department of Transportation Act’’.

1992—Subsec. (a). Pub. L. 102–388, §346(1), (2), substituted ‘‘Federal-aid highway’’ for ‘‘of the Federal-aid

highway systems, including the Interstate System,’’

and ‘‘which may be expended on such highway’’ for ‘‘for

expenditure on any of the Federal-aid highway systems, including the Interstate System,’’.

Subsec. (c)(2). Pub. L. 102–388, §346(3), inserted ‘‘and

passenger transit facilities’’.

Subsec. (c)(3). Pub. L. 102–388, §346(5), which directed

the substitution of ‘‘of the type funded’’ for ‘‘on the

federal-aid system of which such project is to be part,’’

was executed by making the substitution for ‘‘on the

Federal-aid system of which such project is to be a

part,’’ to reflect the probable intent of Congress.

Pub. L. 102–388, §346(4), substituted ‘‘project’’ for

‘‘highway’’ after ‘‘construction of a’’ in first and second

sentences.

1991—Subsecs. (a), (c)(3). Pub. L. 102–240, §1017(a), substituted ‘‘20’’ for ‘‘ten’’.

Subsec. (d). Pub. L. 102–240, §1017(b), added subsec. (d).

1976—Subsec. (a). Pub. L. 94–280, §115(b), inserted ‘‘unless a longer period is determined to be reasonable by

the Secretary’’ after ‘‘request is made’’ in last sentence.

Subsec. (c)(2). Pub. L. 94–280, §115(a), struck out

‘‘made pursuant to section 133 or chapter 5 of this

title’’ after ‘‘relocation payments’’ in last sentence.

Subsec. (c)(3). Pub. L. 94–280, §115(c), inserted ‘‘or

later’’ after ‘‘earlier’’ in first sentence.

1973—Subsec. (a). Pub. L. 93–87, §113(a), substituted

‘‘ten’’ for ‘‘seven’’ years in last sentence.

Subsec. (c)(3). Pub. L. 93–87, §113(b), substituted ‘‘ten’’

for ‘‘seven’’ years in first sentence.

1968—Subsec. (b). Pub. L. 90–495, §7(a), substituted

‘‘subsection (a) of this section’’ for ‘‘this section’’.

Subsec. (c). Pub. L. 90–495, §7(b), added subsec. (c).

1959—Subsec. (a). Pub. L. 86–35 increased from five to

seven years the period in which actual construction

shall commence on rights-of-way acquired in anticipation of such construction.

EFFECTIVE DATE OF 1991 AMENDMENT

Amendment by Pub. L. 102–240 effective Dec. 18, 1991,

and applicable to funds authorized to be appropriated

or made available after Sept. 30, 1991, and, with certain

exceptions, not applicable to funds appropriated or

made available on or before Sept. 30, 1991, see section

1100 of Pub. L. 102–240, set out as a note under section

104 of this title.

EFFECTIVE DATE OF 1968 AMENDMENT

Amendment by Pub. L. 90–495 effective Aug. 23, 1968,

see section 37 of Pub. L. 90–495, set out as a note under

section 101 of this title.

PRESERVATION OF TRANSPORTATION CORRIDORS REPORT

Section 1017(c) of Pub. L. 102–240 provided that: ‘‘The

Secretary, in consultation with the States, shall report

to Congress within 2 years after the date of the enactment of this Act [Dec. 18, 1991], a national list of the

rights-of-way identified by the metropolitan planning

organizations and the States (under sections 134 and 135

of title 23, United States Code), including the total

mileage involved, an estimate of the total costs, and a

strategy for preventing further loss of rights-of-way including the desirability of creating a transportation

right-of-way land bank to preserve vital corridors.’’

AUTHORIZATION OF APPROPRIATIONS TO RIGHT-OF-WAY

REVOLVING FUND; APPORTIONMENT; REVERSION OF

AMOUNTS NOT ADVANCED OR OBLIGATED

Section 7(c)–(e) of Pub. L. 90–495 provided that

$100,000,000 for the fiscal year ending June 30, 1970,

$100,000,000 for the fiscal year ending June 30, 1971, and

$100,000,000 for the fiscal year ending June 30, 1972, be

transferred from the highway trust fund to the rightof-way revolving fund established by subsec. (c) of this

section, authorized the Secretary to apportion these

funds and required that funds apportioned to a State

remain available for obligation for advances until Oct.

1 of the fiscal year in which the apportionment was

made and any funds not advanced or obligated by such

date revert to the right-of-way revolving fund for distribution to other States.

STUDY OF ADVANCE ACQUISITION OF RIGHTS-OF-WAY

Pub. L. 89–574, §10, Sept. 13, 1966, 80 Stat. 769, as

amended by Pub. L. 97–449, §2(a), Jan. 12, 1983, 96 Stat.

2439, directed the Secretary to make a full and complete investigation and study of the advance acquisition of rights-of-way for future construction of highways on the Federal-aid highway systems, with particular reference to the provision of adequate time for

the removal and disposal of improvements located on

rights-of-way and the relocation of affected individuals,

businesses, institutions, and organizations, the tax

status of such property after acquisition and before its

use for highway purposes, and the methods for financing advance right-of-way acquisition by both the State

governments and the Federal Government, including

the possible creation of revolving funds for such purpose. The Secretary was required to submit a report of

results of such study to Congress not later than July 1,

1967, together with his recommendations.

INCREASED LIMITATION PERIOD APPLICABLE TO CERTAIN

CONTRACTS

Section 2 of Pub. L. 86–35 provided that agreements

entered into before May 29, 1959 by the Secretary of

Commerce and a State highway department under authority of section 110(a) of the Federal-Aid Highway

Act of 1956, or section 108(a) of title 23 of the United

States Code shall be deemed to provide for actual construction of a road on such rights-of-way within a period of seven years following the fiscal year in which

such request was made.

§ 109. Standards

(a) IN GENERAL.—The Secretary shall ensure

that the plans and specifications for each proposed highway project under this chapter provide for a facility that will—

(1) adequately serve the existing and planned

future traffic of the highway in a manner that

is conducive to safety, durability, and economy of maintenance; and

(2) be designed and constructed in accordance with criteria best suited to accomplish

the objectives described in paragraph (1) and

to conform to the particular needs of each locality.

(b) The geometric and construction standards

to be adopted for the Interstate System shall be

those approved by the Secretary in cooperation

with the State highway departments. Such

standards, as applied to each actual construction project, shall be adequate to enable such

project to accommodate the types and volumes