Flowchart 4A: Environmental and Right-of-Way Options

Completion of NEPA for ROW includes at least the signed "top part" or Box B of the Form 128; or a signed ROD or FONSI for an EIS/EA.

This is the typical process for authorized ROW activities, to have the NEPA completed first.

Advancement of ROW purchase can occur prior to NEPA being complete in certain circumstances. First you must select which NEPA level your project is under: is it a Categorical Exclusion, an Environmental Assessment, or an Environmental Impact Statement.

Once all resources that could be impacted have been inspected and impacts have been assessed for the project, the region planning environmental manager (and FHWA area engineer, if applicable) approves the top of Form 128 (Parts A and B). Upon completion of Parts A and B of Form 128, funds for right-of-way acquisition can be obligated and negotiations for right-of-way acquisition can proceed.

In this situation, an environmental review of the project and the ROW parcels designated for acquisition has been completed but the top part of the Form 128 is not yet signed because of an outstanding project clearance. In this case the CDOT environmental manager may state in an email or letter that: 1) environmental issues would not prevent the project from moving forward, 2) the ROW parcel(s) to be acquired under early acquisition is common to all alternatives (if applicable), 3) the ROW is being purchased with non-federal funds, and 4) the ROW parcels identified for acquisition including temporary easements do not have any outstanding environmental issues (i.e., all clearances of environmental issues "on those parcel areas" for which early acquisition has been identified have been completed).

Acquiring the property using state funds can proceed prior to completing an EA or EIS as long at the property is not a Section 4(f) property according to the Department of Transportation Act, and "The State determined, and the FHWA concurs, that the action taken did not influence the environmental assessment for the project including (i) the decision on need to construct the project, (ii) the consideration of alternatives; and (iii) the selection of the design or location (23CFR710.501 (b)(5)).

ROW acquisition can proceed prior to completing an EA or EIS if it can be conducted under a Categorical Exclusion (CE) d12 for acquisition of land for Hardship or Protective Purposes. This is allowed under MAP-21, which requires the use of state funds up front but allows federal reimbursement at a later date for the ROW parcel purchase. However, in order to get federal participation, CDOT needs to follow the guidelines laid out under 23 CFR 710.501 "Early Acquisition" and in 23 USC § 108 "Advance Acquisition of Real Property" for this use of federal funds that dictate how ROW plans are to be prepared, that this ROW acquisition "project" is in the STIP, etc.

See the CDOT ROW Manual for the definition of Hardship and Protective Buying.