How are property acquisitions and business relocations considered during the NEPA process?
If land is to be acquired for a transit project, the project’s NEPA documentation should contain a description of the land. In cases where an acquisition requires the displacement of businesses or individuals, there is a social impact that must be analyzed as part of the environmental documentation process. This analysis should identify the characteristics and needs of persons and businesses to be displaced, describe inventory availability of comparable replacement dwellings and sites, discuss potential relocation problems, and describe methods to mitigate adverse impacts.
At what point in the NEPA process may property acquisition or relocations occur?
Except in certain cases discussed below, an FTA grant applicant may not acquire (by any means, including through donation) real property or real property rights for a transit project until the NEPA process has been completed with a ROD, FONSI, or CE determination by FTA (23 CFR Part 771.113[a]). The reason for this prohibition is that the acquisition of property would prejudice the consideration of alternatives. Even if the property in question is needed for all of the “build” alternatives under consideration, the CEQ regulations require that the No Action (or No Build) alternative be given fair consideration. Property acquisition would bias consideration of the No Action alternative (40 CFR Part 1506.1).
Under what circumstances is the early acquisition of property allowed?
In certain exceptional circumstances, FTA may approve the acquisition of some land before the environmental documentation process has been completed.However, no project development may occur until the entire NEPA process has been completed.There are two categories of exceptions for FTA-funded projects that allow acquisition of property prior to conclusion of NEPA:
Hardship and Protective Buys: Normally, the acquisition of land for a transit project is considered part of the project and cannot be considered an action separate from the other project actions in the environmental review. However, USDOT has determined, and some court cases have confirmed, that there are two special cases where the greater public interest favors the separate consideration of a real property acquisition.These special cases are called hardship buys and protective buys. Hardship and protective buys may be evaluated as actions separate from the rest of the project and may proceed prior to the completion of the NEPA review of the project that would use the acquired property. As a separate action, the community and environmental impacts of the hardship or protective acquisition must be separately evaluated. Normally, a hardship or protective acquisition is a Categorical Exclusion (CE) under 23 CFR Part 771.117(d)(12).
Hardship acquisition is early acquisition of property by the grant applicant at the property owner's request to alleviate a particular hardship to the owner, in contrast to others, because of the owner’s inability to sell the property. A hardship acquisition is justified when the property owner can document on the basis of health, safety, or financial reasons that remaining on the property poses an undue hardship to the owner compared to others.
A protective acquisition is performed to prevent the imminent development of a parcel that is likely to be needed for the proposed transit project. Documentation must demonstrate that the developer has taken some concrete step (such as applying for a building permit) to develop the property, and that the imminent development of the property would preclude future transit use of that property. A protective acquisition is not permitted for the sole purpose of reducing the cost of the property for the proposed transit project.
To avoid undue prejudicing of the alternatives under consideration for the transit project, hardship and protective buying are permitted only for a particular parcel or a very limited number of parcels. The grant applicant performing a hardship or protective buy must comply with the Uniform Act and its implementing regulation.
Railroad Right-of-Way: The federal transit law enacted in 2005 (49 USC § 5324(c)) allows FTA to consider the acquisition of railroad right-of-way (ROW) by the transit agency to be a separate action from the future transit project that will ultimately be built on that ROW. These separate actions are evaluated in separate NEPA documents. The purpose of separating the acquisition of the railroad ROW from the future transit project on it is to preserve that ROW. Linear ROWs in urban areas suitable for transit are rarely found and, when one is available, it should be immediately preserved for a future transit project. As a separate action, the acquisition itself, if FTA funded, is subject to FTA environmental requirements and is usually a CE under 23 CFR Part 771.117(d)(13). The later transit project built on that railroad ROW, if FTA funded, would also be subject to FTA environmental requirements as a separate project.
The grant applicant acquiring the railroad ROW must comply with the Uniform Act and its implementing regulation if FTA funds will be used either for the acquisition or for the future transit project on the ROW. These and other requirements are set forth in greater detail in the FTA guidance on the acquisition of existing railroad ROW.
What mitigation is provided for relocation and property acquisition impacts?
Relocation and property acquisition impacts are mitigated by avoidance to the extent feasible. When that is not possible, just compensation in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 USC § 4601) (also known as the "Uniform Act”). The Uniform Act establishes a policy for the fair and equitable treatment of persons displaced as a result of federal and federally assisted programs.Federal regulations implementing the Uniform Act are contained in 49 CFR Part 24. Guidance on the Uniform Act as it pertains to FTA programs and projects is contained in Chapter II, Management of Real Property, Equipment and Supplies, of FTA Circular 5010.1C, Grant Management Guidelines(October 1, 1998).
FTA Webpage listing Federal laws and regulations governing the acquisition of real property