FTA Law: 49 U.S.C. 5323(q) Corridor Preservation for a Transit Project Federal transit law 49 U.S.C. 5323(q) explains how a recipient may acquire right-of-way before the completion of the environmental reviews for any project that may use the right-of-way if the acquisition is permitted under Federal law. Additionally, right-of-way acquired under this rule cannot be developed until all environmental reviews for the project have been completed. The Federal Transit Administration Guidance on the Application of 49 U.S.C. § 5323(q) to Corridor Preservation for a Transit Project (2020) provides background on this law as follows (p.3): “Section 20016 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) amended Federal transit law by adding a new provision at 49 U.S.C. § 5323(q) that allows the Federal Transit Administration (FTA), under certain conditions, to assist in the acquisition of right-of-way before the completion of the environmental review process under the National Environmental Policy Act (NEPA) for any transit project that eventually will use that right-of-way…MAP-21 did not, however, change the prohibition on the acquisition of real property that is not “right-of- way” prior to the completion of the environmental review process for the transit project unless conditions for certain exceptions (hardship and protective acquisitions) are met.” Allowable ROW acquisitions, as outlined in FTA Guidance on 49 U.S.C. 5323(q) (2020) include the following: • A pre-existing linear ROW, such as an existing railroad ROW needed for a transit project; • The existing median of a roadway; or • Non-linear parcels of real property interests that are assembled into ROW for a proposed BRT project or fixed guideway transit project. In the interim period between ROW acquisition and transit project construction, the ROW may be used for alternative uses, such as a walkway, bike path, or similar use, if those uses have independent utility from the transit project for which the ROW is being preserved. Proposed interim uses of the ROW that would require its modification are subject to their own environmental review (FTA Guidance on 49 U.S.C. 5323(q), 2020). If the ROW is to be acquired with FTA financial assistance, it is subject to FTA’s metropolitan and statewide planning requirements in 49 U.S.C. Chapter 53 and in 23 CFR part 450. FTA cannot fund a ROW-acquisition project unless it is included in the Metropolitan Transportation Plan (MTP). In addition, the metropolitan planning organization (MPO) must include the project in the Transportation Improvement Program (TIP) or it must be included in the Statewide Transportation Improvement Program (STIP). If the ROW is acquired without FTA financial assistance, project sponsors should still satisfy all FTA metropolitan and statewide planning requirements at the time of acquisition if they anticipate using FTA funds for the project that would use the acquired ROW (FTA Guidance on 49 U.S.C. 5325(q), 2020). Strategies and Case Examples A study of preserving rail corridors was conducted in 2008 by the Center for Transportation Research at the University of Texas (Loftus-Otway et al., 2008). This study presented several options for freight corridor preservation including rail banking or rails-to-trails, advance acquisition, shared corridor projects, linear corridor purchases, rail relocation, and partnerships. Below are some highlights of that research on relevant strategies.
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