EP 1165-2-502
30 Sep 99
17. Real Estate Considerations. Because the real estate requirements for a project should be
tailored to the particular facts and circumstances of the project, the analysis of the nature and
extent of these requirements should be conducted by a district study team that includes Real
Estate, Project Management, Planning, Engineering, and other offices as necessary and with
appropriate non-Federal sponsor personnel. The analysis must be conducted in accordance with
Chapter 12 of ER 405-1-12, including consideration and identification of the specific interests,
estates, and acreage required. After coordination and consultation with the non-Federal sponsor,
the government must formally determine the lands, easements, rights-of-way, utility or public
facility relocations, and dredged or excavated material disposal areas (LERRD) required for the
implementation, operation, and maintenance of the project.
a. Regarding the acreage to be required, the district must identify the lands on which an
interest in real property must be provided by the non-Federal sponsor to support construction of all
project features, to support ongoing operation and maintenance responsibilities (including required
monitoring and inspections), and to comply with applicable principles of just compensation as to
owners of land affected by the construction, operation, and maintenance of the project. In
determining the acreage required to support operation and maintenance, acquisition may be
necessary solely to ensure that future development of land not otherwise required for the project
does not interfere with the purposes of the project. Except in circumstances involving land owned
by the United States that is managed by the Corps, or where the government can properly exercise
its navigation servitude rights, all land determined by the government to be required to support the
project must be provided by the non-Federal sponsor.
b. Complete and permanent control over the future use of lands required for an environmental
project or feature is typically required for the long-term implementation of such project or feature.
Therefore, the interest in real property generally necessary to support permanent environmental
features is fee simple, using the standard fee simple estates contained in Chapter 5 of ER 405-1-12.
However, a lesser interest -- that is, a specific type of permanent easement -- may be appropriate
depending upon the operational requirements of the project and other circumstances relevant to
project implementation, including landowner preference. The approving authority for an
environmental restoration decision document may approve the use of an interest less than fee as
coupled with use of an alternative standard estate when a justified proposal therefor is contained in
the Real Estate Plan (REP) of such decision document. All other proposals or requests for
approval of interests less than fee must be approved by HQUSACE in the manner described in
paragraph 12-9 of ER 405-1-12. In addition, all proposals or requests for approval of
non-standard estates must be approved by HQUSACE in the manner described in paragraph 12-10
of ER 405-1-12.
c. For projects involving modifications to existing Civil Works projects, where part of the land
comprising the existing project is also required for the project modification, the interests and
estates acquired or provided for the existing project must be analyzed for sufficiency and
availability for project modification purposes. When existing interests or estates are not of
sufficient nature or scope, or otherwise cannot be utilized to implement the project modification,
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