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U.S. Department of Transportation U.S. Department of Transportation Icon United States Department of Transportation United States Department of Transportation

Public Roads - Spring 2024

Date:
Spring 2024
Issue No:
Vol. 88 No. 1
Publication Number:
FHWA-HRT-24-003
Table of Contents

Alternative Uses of the Right-of-Way

by Lindsey S. Svendsen and Maggie Duncan-Augustt
Truck with a mechanical mower mowing grass beside a roadway. Image: © EdVal / AdobeStock.com.
ROW are maintained by transportation facilities after the road project is completed.

Sometimes real property interests must be acquired to construct a transportation project. This property is generally referred to as the right-of-way (ROW), or real property interests. Real property, or real property interest, is any interest in land and any improvements on the land, such as temporary and permanent easements, air or access rights, and other contractual rights to acquire or preserve the ROW for a transportation facility. Government agencies that acquire real property for Federal-aid highway projects are required to manage the acquired property after the project is completed. Part of this responsibility includes inventorying their existing Federal-aid ROW. If ROW is no longer needed for the operation or maintenance of a project, or needed for a foreseeable future project use, an agency may determine that there is excess real property outside the final developed ROW that may be disposed of or made available for an alternative use. The ROW is intended for highway purposes (e.g., construction, operations, maintenance, and safety), and the temporary or permanent occupancy or use of ROW, including air space, for nonhighway purposes may only be approved if such occupancy, use, or reservation is in the public interest and will not impair the highway or interfere with the free and safe flow of traffic thereon. Individual State departments of transportation (DOTs) are responsible for their State’s ROW use, which, in certain circumstances, also needs Federal Highway Administration approval. These circumstances include, but are not limited to, nonhighway or alternative uses of the interstate ROW and requests for approval of less than fair market value determinations. State DOTs are responsible, by Federal regulation, for maintaining the acquired ROW and for clearing away any unauthorized uses (encroachments) that may interfere with the safety of motorists. The 23 Code of Federal Regulations (CFR) § 1.23, “Rights-of-way,” states, “all real property acquired for highway purposes within the boundaries of a federally-assisted highway project shall be devoted exclusively to public highway purposes.”

Wind turbines, electric power lines, and a field full of solar panels. Image: © Janne / AdobeStock.com.
ROW can be used for renewable energy facilities like solar panels, wind turbines, and electric power lines.

In certain situations, ROWs may be used for alternative, nonhighway purposes. Alternative use of the ROW must be in the public interest and cannot interfere with the free and safe flow of traffic. Private and public entities (e.g., State DOTs, local highway departments, and municipalities), due to a variety of factors, including availability and proximity to resources, have always been interested in available ROW for alternative uses. This interest has increased in recent years as State DOTs look for new ways to generate revenue and funds that can be used for Title 23 activities.

To provide clarification on ROW usage, FHWA released a memo in April 2021 titled “State DOTs Leveraging Alternative Uses of the Highway Right-of-Way Guidance.” Nic Thornton, director of FHWA’s Office of Real Estate Services, noted that the memo was intended to “provide information to the States as owners of the ROW, ensure the consistent application of the regulations across the country, and describe where flexibilities exist within the current regulatory framework to support the safe accommodation of certain alternative uses.” The memo discusses ROW’s use in supporting renewable energy and developing technologies, such as solar panels, electric vehicle charging stations, and wind turbines. Transportation is one of the largest contributors to greenhouse gas emissions, and renewable energy and developing technologies can aid in their reduction by providing electricity and power without burning any fuel or polluting the air. ROW can play a part in generating renewable energy for State DOTs and local agencies for the potential of lowering their bills—as some States have Power Purchase agreements that provide discounts on their energy bills—and, at the same time, create clean energy and/or reduce greenhouse gas emissions.

Electric vehicle charging station next to a highway. Image: © Sepla100 / AdobeStock.com.
ROW can be used for alternative, non-highway purposes such as fueling facilities.

Guidance Summary

The April 2021 memo guidance encourages collaboration between FHWA and State DOTs to keep their Utility Accommodation Policies (UAPs) updated and to develop practices that further broadband deployment initiatives. State DOTs work with their respective FHWA Division Offices on the adequacy of their UAPs and procedures. States must decide if they want utilities on highway right-of-way, including freeways, and if so to what extent and under what conditions. Whatever they decide must be documented in an FHWA-approved utility accommodation policy. For States that regulate broadband as a utility, the UAP authorizes the State DOT to comply within the UAP confines. This compliance allows for a streamlined approach for broadband deployment. The guidance also explains the process for addressing renewable energy, alternative fueling, electrical transmission and distribution, and broadband projects and introduces clean energy and connectivity (CEC) projects. CEC is an umbrella term meant to capture all of the various uses mentioned in the memo.

There are several key takeaways from the guidance, such as State DOTs are encouraged to address projects through utility accommodation, if possible. Meaning, if the State law considers things like renewable energy, alternative fueling facilities, or broadband to be utilities, then the ROW use can be accommodated as a utility, but if the State law does not consider them to be utilities, then the State may accommodate them as an alternative use of the ROW under the Federal regulation. The guidance also explains that even if the UAP does not include a certain activity as a utility, if the State law says a particular use is a utility, then it can be accommodated as a utility. The regulation, 23 CFR 645.209(m), states, “In determining whether a proposed installation is a utility or not, the most important consideration is how the [State transportation department] views it under its own State laws and/or regulations.” “Every State has different State laws and its own UAP, so it’s important to familiarize yourself with the content of both if you’re looking to pursue an alternative use or accommodation as a utility,” says Thornton. An example of this can be found in Arizona where the Arizona DOT worked with the Arizona FHWA Division Office by providing a determination letter for the consideration of broadband as a utility while also working to make legislative changes for broadband accommodation.

An aerial view of a cell phone tower over a forested area. Image: © steheap / AdobeStock.com.
State DOTs can use ROW to accommodate utilities like broadband towers.

The guidance also served as a reminder to States that fees charged for utility accommodation are at the discretion of the State, that each State should have a process for approving their State UAP, and that projects accommodated as a utility facility on the interstate ROW serving the public are not a prohibited commercial activity under 23 U.S. Code (U.S.C.) 111, unless the project also qualifies as an automotive service station or other commercial establishment under 23 U.S.C. 111. For example, while electric vehicle charging stations may be considered a utility, they also qualify as an automotive service station under 23 U.S.C. 111, so they may be installed in the interstate ROW, but fees may not be charged for their use.

The memo guidance made specific determinations in a few areas. For instance, FHWA determined that CEC projects and broadband are in the public interest and considers CEC projects to be acceptable alternative uses if they comply with relevant regulations and statutes. As stated in a separate part of the memo, FHWA determined that CEC projects qualify for an exception to charging fair market value because “CEC projects provide an opportunity to reduce carbon emissions and are an important tool to address climate change. FHWA has also determined that broadband installation can assist with equitable communications access [to underserved communities and rural areas]. These nonhighway alternative uses of highway ROW are in the public interest.”

The other two topics covered by the April 2021 guidance memo include encouragement for States to consider approving ROW use for alternative fuel facilities near travel centers and to employ carbon sequestration practices on their ROW. Carbon sequestration is the process of removing carbon dioxide from the atmosphere. Certain actions can aid in the carbon removal process, such as vegetation management practices, which can affect the amount of carbon taken from the atmosphere. Increasing mowing heights and planting native grasses can increase the amount of carbon absorbed from the atmosphere. These practices are consistent with maintenance and safety considerations and may be carried out by agreements for an alternative use of the ROW. All States must follow the National Environmental Policy Act (NEPA) guidelines for all alternative uses of ROW, including projects such as carbon sequestration.

A Monarch butterfly feeding on a flower. Image: © Ariel Bravy / AdobeStock.com.
ROW can provide habitats for Monarch butterflies.
Grass growing beside a roadway. Image Source: © bank215 / AdobeStock.com.
Native grasses planted in ROW absorb carbon from the atmosphere.

FHWA also encourages State DOTs to use ROW to develop habitat and forage for Monarch butterflies and other native pollinators. Tennessee DOT, for example, implemented Project Milkweed, which aims to restore and preserve the habitats of pollinating species like the Monarch butterfly by encouraging Tennesseans to plant milkweed (see the blurb in “Along the Road” in this issue of Public Roads).

Guidance Impact

As a result of this guidance, FHWA has seen the most interest in projects related to the memo for broadband use. The goal of the guidance is to provide State DOTs and other public agencies consistent information that will allow them to leverage their ROW, support developing technologies, and support and encourage renewable energy development. Supporting the uses described in the guidance can help reduce greenhouse gas, promote energy security by diversifying energy generation and delivery methods, foster the creation of a local green job market that enhances the viability of the Nation’s renewable energy industry, and reduce or eliminate ongoing maintenance expenses for State DOTs.

Lindsey Svendsen serves as the Property Management program lead for FHWA. She has a B.A. in history from Shippensburg University in Pennsylvania and a master’s in public policy from Pepperdine University in California.

Maggie Duncan-Augustt serves on the FHWA Property Management team and is the point of contact for the Division Field Services North. She has been with FHWA since 2007.

Disclaimer: Except for any statutes or regulations cited, the contents of this article do not have the force and effect of law and are not meant to bind the public in any way. This article is intended only to provide information to the public regarding existing requirements under the law or agency policies.

For more information, see https://www.fhwa.dot.gov/real_estate/ or contact Lindsey Svendsen, 202-366-2035, Lindsey.S.Svendsen@dot.gov, or Maggie Duncan-Augustt, 202-366-9901, Maggie.Duncan-Augustt@dot.gov.

Resources

“States DOTs Leveraging Alternative Uses of the Highway ROW Guidance” memo: https://www.fhwa.dot.gov/real_estate/right-of-way/corridor_management/alternative_uses_guidance.cfm.

“Renewable Energy in the Highway ROW”: https://www.fhwa.dot.gov/real_estate/right-of-way/corridor_management/alternative_uses.cfm.

“Quick Guide: Federal Highway Requirements for Renewable Energy Projects in Highway Right-of-Way”: https://www.fhwa.dot.gov/environment/sustainability/energy/publications/renew_energy_row_guide/index.cfm.

23 CFR § 1.23, “Rights-of-way”: https://www.ecfr.gov/current/title-23/chapter-I/subchapter-A/part-1/section-1.23.

“Alternative Uses of the Right-of-Way”: https://www.environment.fhwa.dot.gov/Pubs_resources_tools/publications/newsletters/2023-06-02_SIS_Alternative_Uses_of_the_ROW_508.pdf