EP 1165-2-1
30 Jul 99
construction areas, and permanent structures. Further, for the
reservoir itself, land is acquired in fee up to the maximum flowage
line (the top of controlled storage, including flood control, plus a
reasonable freeboard to safeguard against the adverse effects of
saturation, wave action and bank erosion). Where this is insufficient
to provide a minimum of 300 feet horizontally from the conservation
pool (all planned storage except that which is exclusively for flood
control) fee acquisition is increased to that extent. Fee title is
also required for separable areas used for recreation (At multiple
purpose reservoir projects Federal participation in recreation
facilities may extend to separable lands); access to the lake; and
land required for fish and wildlife mitigation and enhancement.
Easement interests may be acquired in lieu of fee title for areas in
the upper reaches of the project above the conservation pool if
financially advantageous and not required for fish and wildlife or
recreation purposes. Also, easements are generally acceptable for
rights-of-way for the relocation of public highways, public utilities,
and railroads. Lands downstream from the dam may be acquired in fee
or easement for operational purposes. A real estate interest will be
obtained in those areas downstream of a spillway where spillway
discharge could create or significantly increase a hazardous
condition. (ER 1110-2-1451; Chapter 2, ER 405-1-12)
b. Acquisition. Section 103(i) of WRDA 1986 (Public Law
99-662) assigns responsibility for lands, easements, rights-of-way,
relocations dredged material disposal areas (LERRD) to non-Federal
interests (subject to cost sharing limits). Interpretation of the
Act, however, allows for several possibilities as to which partner
(Corps or non-Federal sponsor) actually carries out acquisition of the
required real estate interests or holds title to those interests. The
possibilities range from non-Federal interests performing all aspects
of required acquisitions to acceptance of their request that the
Federal Government perform all real estate acquisition for the
project. Provided the Corps and the sponsor agree, the Corps may
acquire the required lands, easements, rights-of-way and dredged
material disposal areas on behalf of the sponsor, subject to advance
receipt of payment from the sponsor. The authority for Corps
acquisition stems from the project authority itself and the Civil
Functions Appropriations Act of 1938, approved 19 July 1937 (50 Stat.
515, 518; 33 U.S.C. 701h) which authorizes the Secretary of the Army
to receive states and political subdivisions funds to be expended in
connection with funds appropriated for authorized flood control
projects, whenever the expenditures may be considered as advantageous
to the public interest. Acquisition generally starts at the damsite
and moves progressively upstream. Required real estate interests for
authorized fish and wildlife mitigation shall be acquired before any
project construction commences or concurrently with real estate
interests for other project functions, whichever ASA(CW) deems
appropriate. Project lands may be acquired from landowners by
purchase, condemnation or donation. In most cases the sponsor (or the
Corps, if the Corps has accepted the effort) should be able to
negotiate an agreement satisfactory to the landowners. Prior to
closing, title evidence is reviewed, title clearance is completed and
an inspection is made of the premises. At closing, a deed to the
sponsor (or the United States) is accepted and payment of the purchase
price is made to the landowner. If agreement with the owner cannot be
reached on a mutually acceptable price or if a title defect cannot be
readily resolved, condemnation proceedings will be filed by the
sponsor in the appropriate state court (or, if the Corps is acquiring
the land, the United States Department of Justice institutes
condemnation proceedings in Federal District Court). The landowner
will be paid or reimbursed for expenses incurred by the landowner in
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