Date: June 21, 1994 (As amended 4/14/2008)
Series: Real Property
Part 342: Realty Operations
Originating Office: Division of Realty
5.1 Purpose. The basic methods of acquiring real property rights for Service programs are discussed in 341 FW 2, Preacquisition Planning. The purpose of this non-purchase chapter is to discuss the procedures involved in using the various non-purchase methods of acquiring real property rights for program use.
5.2 Scope. This chapter covers procedures for obtaining land control by methods other than purchase, including donation, exchange, transfer, withdrawal, permit, and cooperative agreement. Land control by purchase is covered in 342 FW 3, Negotiations.
5.3 Policy. Service policy concerning acquisition of real property rights is discussed in 341 FW 1, Policy and Preapproval Planning. Policy refinements as they apply to the various methods of acquisition are included in the appropriate sections for donation, exchange, transfer, withdrawal, permit, and cooperative agreement. It is a requirement that projects using the methods of land control discussed herein receive consideration and approval in accordance with 341 FW 1 before acquisition can proceed.
5.4 Objectives. The objectives of this chapter are to provide information specific to the various non-purchase methods of acquisition and to describe the procedures involved in using them.
5.5 Authorities. The basic authorities applicable to the acquisition methods discussed herein are listed in 340 FW 1, Policies, Authorities, and Responsibilities.
5.6 Donation. Lands and interests therein may be acquired for Service programs by donation. The most common reasons for landowners to donate lands are that they want to benefit conservation programs and/or to receive tax benefits. In the area of tax benefits, it is not uncommon for a donor to spread the donation over several years by donating a portion of the property, or an undivided interest in the entire property each year. It is a requirement that donations receive consideration and approval in accordance with 341 FW 2 before acquisition can proceed.
A. Special Considerations for Accepting Donations. In considering the acceptance of lands and interests by donation, special consideration must be given to the following:
(1) Conditions the donor wants, if any. These may include restrictions as to the type of use or access that may restrict or defeat a program purpose. Some examples may include reservation of hunting rights or no hunting, no development, no vehicular access or access reserved to the donor, timbering or no timbering, etc. Restrictions or reservations must be considered and negotiated on a case by case basis and must be allowable under the acquisition authority used.
(2) Costs necessary to develop, manage, and maintain the property to meet objectives, satisfy special conditions, and to make revenue sharing payments. Such costs should be commensurate with benefits received (accruing to the public).
(3) Significant future problems of Service administration if a donation is accepted, subject to conditions imposed by the donor such as no hunting, no public access, etc.
B. Methods of Donation. A number of methods are available whereby
title to land and interests may be transferred to the
(1) Donation deed without any reservations by the donor(s). Here, the transfer of title is immediate, the Service has full control, and revenue sharing payments begin at once.
(2) Donation deed with life-use reservation by donor. Title transfer is immediate, but Service control cannot interfere with the donor's rights to continue to use all or a portion of the property in accordance with the terms of the deed. Revenue sharing payments begin at once.
(3) Donation deed with reservation of life estate. Such a deed
conveys to the
(4) Donation by bequest (Will). In contrast to deeds, which take effect
in the donor's lifetime, a will takes effect only at the donor's (testator's)
death. A deed is non-revocable by the grantor, whereas a will can be changed by
the testator at any time before his/her death. Upon the testator's death, the
C. Acceptance. When the acquisition of title has been approved by the Regional or Field Solicitor, a donation of lands or interests therein may be accepted by the Regional Director.
D. Reversion of Title. It is not uncommon for donation conveyances to include a reversionary clause should the land cease to be used for the purpose it was donated or for a violation of other conditions required by the donor.
A reversionary clause consists of wording in the conveyance to the
E. Appraisal of Donated Lands. Real property (fee title) donated by
deed or will to the Service must be appraised during
the fiscal year in which control passes to the
F. Non-Program Property.
(1) The Fish and Wildlife Act of 1956, as amended by the Fish and Wildlife Improvements Act of 1978, provides authority to accept gifts of real or personal property either for use in a Service program or with the expectation it will be sold and the money deposited as donated funds for use by the Service for authorized fish and wildlife programs or services. Since the property is not to be held in inventory for program purposes, it can be considered a categorical exclusion to National Environmental Protection Agency (NEPA) requirements. However, the Director's approval is required before acceptance. A memorandum describing the property, terms of donation, and problems involved in resale when requesting approval will generally suffice.
(2) In disposing of real property donated for conversion to fish and wildlife use, first consideration should be given to exchange. Parcels can be exchanged for property for any authorized program use such as fish hatcheries, administrative sites, research facilities, refuges, and waterfowl production areas. If exchange is not practical, property (having a value of more than $15,000) is to be reported as excess to the GSA for disposal with instructions that the net proceeds from sale are to be returned to the Fish and Wildlife Service in accordance with the Act. The Service has authority to dispose of real property having a value of $15,000 or less.
(3) As a general policy, donated non-program real property should not be retained by the Service for more than one year. By statute, it will be subject to revenue sharing payments if it is held by the Service at the end of the fiscal year. Therefore, prompt reporting to GSA for disposal is essential.
A. Definition. Exchange is a valuable method to acquire land or
interests in land for Service programs. A landowner may be willing to exchange
land or interests for land or interests of the
B. Exchange Approval. The Director's approval is required for the acquisition of lands or interests by exchange in accordance with 341 FW 1. The Director's approval is also required for the disposal of lands or interests using a similar, or what might be considered, a "reverse acquisition process." Regional Directors may approve exchanges of 16.19 hectares (40 acres) or less of equal value. This may be on a case by case basis or on an overall project basis. In the case of the Waterfowl Production Area program, the Regional Directors may approve.
C. Divestiture Requirements. Before divesting any lands of the United
States, it is essential that the requirements of the National Historic
Preservation Act of 1966 (16 U.S.C. 470 et seq.); the Archeological and
Historic Preservation Act of 1974 (16 U.S.C. 469 et seq.); the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (94 Stat. 2767
et seq.); the Resource Conservation and Recovery Act (98 Stat. 3221 et seq.)
and Executive Orders 11988 (Floodplains Management) and 11990 (Protection of
Wetlands) be complied with. Executive Orders 11988
(Floodplain Management) and 11990 (Protection of Wetlands). Service
policy is included in 613 FW 1 and 2 (Natural Resources Protection). As to
lands or interests in lands being conveyed out of
D. Exchange Approval Thresholds.
(1) Regional Directors must approve in writing proposed land exchanges valued below $500,000.
(2) The Director must approve in writing proposed land exchanges valued at $500,000 or more. In addition, we must give the House and Senate Committees on Appropriations advance notice of exchanges valued between $500,000 and $2,000,000.
(3) For land exchanges where the estimated value of the Federal lands to be exchanged is greater than $2,000,000, we must give the House and Senate Committees on Appropriations 30 days to examine the proposed exchange before it is consummated.
E. Exchange Authorities. See 340 FW 1.
F. Exchange of Products for Land. In addition to land exchange authority, the National Wildlife Refuge System Administration Act provides for the acquisition of land or interests in land in exchange for the right to remove products from acquired or public lands on refuges. The most common product used for exchange is timber. However, there have been cases where grazing privileges have been used. Also, sand and/or gravel may be considered as products for purposes of exchange. An exchange for products is processed in much the same manner as an exchange for land. Government owned improvements (for off-site removal) are considered to be interests in property and may be exchanged.
G. Acquired Land Used for Exchange. Acquired lands may be defined as
lands granted or patented out by the sovereign and re-purchased by the
H. Withdrawn (Refuge)
(1) When public lands have been withdrawn for the National Wildlife Refuge System, and are to be exchanged for private lands, the exchange authority according to a change in Bureau of Land Management (BLM) procedures is the National Wildlife Refuge System Administration Act (NWRSAA); for Alaskan lands, the Alaska National Interest Lands Conservation Act (ANILCA) and the Alaska Native Claims Settlement Act (ANCSA) are the exchange authorities. When acquired, using NWRSAA as the authority, the private lands assume the identity of acquired lands. The refuge withdrawn public lands must be conveyed by patent (initial conveyance from the sovereign) by the BLM. The withdrawal order may have to be revoked or modified to show that the withdrawn lands disposed of no longer have public domain status.
(2) For the most part, an exchange involving withdrawn public land is handled in much the same manner as an exchange using acquired land. An exchange agreement may be negotiated based on Service appraisals. Such an agreement should be for an extended period of time (1 to 2 years) and may not be accepted by the Regional Director until the public land has been reported by BLM as free and clear of adverse claims and suitable for exchange (encumbrances that may affect value are outstanding mining claims, rights-of-way, oil and gas leases, and pending applications under the public land laws). In order to make this determination, BLM must publish a notice in a newspaper, having general circulation in the area, once a week for 3 consecutive weeks. When the title to the land conveyed to the United States has been approved by the Regional/Field Solicitor, the case file should be furnished to BLM with a request that a patent be issued. In the exchange process using public land it is important to coordinate with BLM from the beginning. The Service may be required to reimburse BLM for costs in processing an exchange.
I. Bureau of Land Management (BLM) - Public Lands Used for Exchange.
(1) When it is desirable to use unappropriated
public lands administered by the BLM for exchange for lands within the boundary
of a unit of the National Wildlife Refuge System, BLM should be requested to
make the exchange under authority of the National Wildlife Refuge System
Administration Act (NWRSAA) of 1966, as amended (16 U.S.C. 668dd(b)(3)). For
conservation areas in
(2) If the Federal Land Policy Management Act of 1976 (FLPMA) is used (at the insistence of BLM), note that section 206 was amended by the Federal Land Exchange Facilitation Act of 1988. Some points to remember when using FLPMA are:
(a) The Federal lands or interests exchanged must be located in the same state as the non-Federal lands or interests to be acquired.
(b) Lands or interests acquired take on the identity (character) of public lands and automatically become a part of the unit (refuge) upon acquisition.
(c) All patents or titles to be issued for lands or interests to be acquired or transferred out shall be issued simultaneously after assurance the United States will receive acceptable title.
(d) The Secretary may temporarily segregate Federal interests under consideration for exchange from appropriation under the mining laws, not to exceed 5 years.
(e) The Secretary may exchange lands or interests for those of approximately equal value in cases where the combined value of the Federal ownership is not more than $150,000 (value determined without formal appraisals based on a statement of value can be made by a qualified appraiser and approved by an authorized officer).
(f) The Secretary and the other party involved may mutually agree to waive an equalization payment if the public interest will be better served and the amount is not more than 3 percent of the Federal lands or $15,000, whichever is less.
(3) A thorough knowledge of the differences that exist between the NWRSAA and FLPMA is essential when completing exchanges in order to follow proper procedures.
(4) For the most part, an exchange involving unappropriated public land is processed by the BLM. However, in most cases the Service is the initiating party and as such will have to see that the vendor carries out the necessary actions to satisfy BLM's requirements as set out in 43 CFR 2200. This would include assisting the landowner in determining which public land might be available for exchange, preparation of the exchange proposal, preparing appraisals of the selected and offered lands when agreed to by BLM (BLM may elect to do the appraisals), securing the necessary title evidence, and preparing the conveyance documents. A preliminary estimate of the value of the offered and selected lands should be made prior to the exchange proposal being filed with BLM to determine if the value of the offered and selected lands is approximately equal. The actual appraisal should not be made until the selected lands have been determined by BLM to be suitable of exchange, that is, free and clear of encumbrances that would defeat the exchange.
(5) The exchange proposal should be coordinated with BLM from the beginning. The Service may be required to reimburse BLM for its costs under this procedure and the BLM lands will be conveyed by patent.
J. Reservations and Exceptions.
(1) The acquisition of land by exchange is subject to the same
reservations and exceptions as for fee title purchase. As to the lands being
disposed of by exchange, provision must be made in the agreement and deed for
the exception of all rights not owned by the
(2) Mineral rights may be reserved by the
(3) It is Service policy to reserve subsurface rights in exchanges only when such rights are required to protect the integrity of a particular refuge unit. The use of mineral reservations to equalize values or produce income is not a program purpose and is not permitted. The decision to reserve mineral rights, when disposing of acquired lands by exchange, will be made by Regional Directors based on the above policy.
5.8 Transfer. Lands and/or improvements may be acquired for Service programs by reassignment from the heads of other bureaus and offices in the Department and from other Federal agencies through transfer by GSA. Also, in certain instances lands may be transferred between heads of agencies. An agency is a Department in the executive branch of government or an independent agency such as T.V.A., N.A.S.A., etc. It is a requirement that transfers receive consideration and approval in accordance with 341 FW 1 and 2 before acquisition can proceed.
A. Authority. See 340 FW 1.
B. Available Property. When land and/or improvements (excluding public domain lands) are no longer needed by a bureau or office within the Department, it becomes "available" for reassignment and is screened among the other bureaus or offices within the Department for continued use in Departmental programs. Reassignments can be made directly from the head of one bureau or office to the head of the other. Accountability is then assumed by the latter without involving the GSA in the process. See 41 CFR 114-47.203-1 for regulations. Subject to the prior project approval by the Director, Regional Directors may accept such transfers.
C. Excess Property. When land and/or improvements are no longer needed by an agency of the Federal Government in its programs, it is reported to the GSA as "excess" to its needs. GSA then circulates a notice of excess property to Federal agencies to determine if there is any further Federal need for the property. Such notices usually provide for a period of 30 days for agencies to express an interest in the property. If there is no further Federal interest, GSA declares the property as "surplus" and it is then available for transfer to non-Federal governmental entities or for sale to private parties. The Fish and Wildlife Service, through the Regional Directors, may request a transfer of excess land under two authorities depending on the program for which the land is requested.
(1) For programs other than migratory bird management, the transfer should be requested under the Federal Property and Administrative Services Act. A completed GSA Form 1334 (available in Realty office) should be completed as shown in Illustration 1 and included with the application for transfer. If the transfer is being requested without reimbursement, a Certificate of Non-funding (Illustration 2) documenting that the Service does not have funds available or that the Service must divert funds from other programs must be signed by the Assistant Director - Policy, Budget and Administration and furnished to GSA with the application for transfer. See 41 CFR 101-47.203-7 for regulations.
(2) If the transfer is being requested for the national migratory bird management program, the transfer should be requested under Public Law 80-537 which allows for transfer without reimbursement. Application is generally made by letter and P.L. 80-537 (16 U.S.C. 667d) should be cited as the authority for non-reimbursement.
(3) When a transfer is approved by GSA, GSA must furnish a letter of transfer to the Regional Director for acceptance on behalf of the Service. Usually the holding agency will also furnish a letter of transfer of custody and accountability for acceptance on behalf of the Service. The real property records for the property should be requested promptly from the holding agency.
D. Special Law Property. In some instances, lands can be transferred to the Service by agencies other than through GSA. Three examples are:
(1) Lands for which Congress authorized acquisition for refuge
purposes in connection with specific Corps of Engineers Water Resource Projects
may be transferred by letter at the Assistant Secretary level, or if necessary,
from the Secretary of the Army to the Secretary of the Interior. Examples are
the Big Stone National Wildlife Refuge in
(2) Lands for which acquisition was authorized by Section 8 of the
Colorado River Storage Project Act may be transferred to the Service for refuge
purposes. Such transfers have historically been made by Public Land Order
establishing the refuge. Examples are the Seedskadee
National Wildlife Refuge in
(3) The Food Security Act of 1985, and the Consolidated Farm and Rural Development Act, as amended (in conjunction with the Fish and Wildlife Act of 1956), permit the Service to accept transfer of conservation easements and fee title on parcels principally for the preservation of wetlands, endangered species habitat, and floodplain areas. The lands or interests acquired will be administered in accordance with the NWRSAA (16 U.S.C. 668dd).
5.9 Withdrawal. Administrative control of lands for Service programs
may be obtained by withdrawal and reservation from the public domain. "
A. Authority. FLPMA (43 U.S.C. 1714), as amended.
B. Degree of Property Control.
(1) For management as a unit or part of a unit of the National Wildlife Refuge System, it is Service policy to request a withdrawal from operation of the public land laws including the mining laws but not the mineral leasing laws. The effect of this language or similar wording is to place administrative jurisdiction over the lands in the Service under the terms of NWRSAA in accordance with Title 50, Code of Federal Regulations. Also, the lands are closed to mining except for valid existing rights (mining claims existing before the withdrawal is made). As to mineral leasing, the Service has adequate control under regulations (43 CFR 3101.3-3, 3400.2, and 3501.2-6) and the compatibility requirement of NWRSAA. It is policy not to withdraw lands from operation of the mineral leasing laws so that the United States may recover its share of oil and gas that is being drained because of operations on adjoining lands (43 CFR 3100.2).
(2) BLM has adopted a policy to discourage secondary withdrawals. However, there may be situations where needed public lands are already withdrawn for another Federal project or use, but may be able to accommodate management of the wildlife resources (refuge) by the Service. If the primary agency gives written concurrence, the Service may overlay the withdrawal for refuge management, subject to the program use of the primary agency. Federal water resource projects and Coast Guard light stations are the most common situations where a secondary withdrawal may be used. In a secondary withdrawal situation, real property reporting and custodial responsibilities remain with the primary holding agency.
(3) Where control of public land is needed for administrative type use such as administrative sites, short term research projects, etc., control through cooperative agreement or right-of-way under FLPMA may give the Service adequate use rights rather than going through an involved withdrawal process.
C. Withdrawal Procedure. Procedures leading to a withdrawal are covered by 43 CFR 2310.
(1) BLM has established the petition/application (single document) as the preferred submission format when agencies within the Department request withdrawals. The petition/application is to be submitted to the appropriate BLM State Office by the Regional Office for processing and approval. The approval has been delegated to the Assistant Secretary, Land and Minerals Management (except in the case of emergency withdrawals). When the approval has been obtained, the request becomes a valid withdrawal proposal. Close coordination between Regional Office and BLM State Office personnel is essential.
(2) The following guidelines are provided to assist in processing petition/applications:
(a) The Regional Office submits a petition/application in duplicate to the appropriate BLM State Office. No specific form is required, but it should contain at least the 14 items identified in 43 CFR 2310.1-2(c). When an application is submitted along with the petition, the 14 items required will take the place of the 5 items required for a petition. An additional item 15 should be added to address the preliminary identification of mineral resources in the area. This should include a brief discussion addressing the potential for mineral resources. See Exhibit 1 for discussion of items to be included.
(b) When the petition/application is approved, making it a withdrawal proposal, BLM will publish a notice of proposed withdrawal in the Federal Register. This will segregate the land from the public land laws, mining etc., for a period of up to 2 years while the withdrawal is being processed. If the withdrawal is not completed within the 2 year period, the segregation will end, but this will not cancel a withdrawal application. Segregation means the land will not be available to the public for the uses from which it is to be withdrawn. Also it is not available for Service management until the withdrawal is completed. The withdrawal process continues until the withdrawal is completed or rejected.
(c) During this process, the Regional Office should work closely with
5.10 Permit, Cooperative Agreement, No-Cost Lease, and General Plan. Land control for Service programs can be obtained through the use of a permit, cooperative agreement, or no-cost lease from another Federal agency, State or instrumentality thereof, State agency or corporation, or private party (including foundations, non-profit corporations, etc.). In such cases the Service obtains secondary control and the lands do not qualify for revenue sharing.
A. Authorities. The authorities listed below apply to permits, cooperative agreements, or no-cost leases. (See 340 FW 1 for more detailed information.)
(1) 16 U.S.C. 661-666c, the Fish and Wildlife Coordination Act of March 10, 1934, as amended.
(2) 16 U.S.C. 742a-742j, the Fish and Wildlife Act of 1956, as amended.
(3) 16 U.S.C. 1531-1543, the Endangered Species Act of 1973, as amended.
(4) 16 U.S.C. 3119, the Alaska National Interest Lands Conservation Act of 1980.
(5) 16 U.S.C. 715-715d, 715e, 715f-715r, the Migratory Bird Conservation Act of February 18, 1929, as amended.
B. Permit. Permits are most commonly used to obtain land control for Service programs from another Federal agency. The authority under which this is done is the Fish and Wildlife Act of 1956. A sample permit is provided in Illustration 3. A Memorandum of Understanding or Memorandum of Agreement may also be used in this situation. Illustration 4 provides an example.
C. Cooperative Agreement. A Cooperative Agreement is prescribed in the Fish and Wildlife Coordination Act as the method of transfer of administration on lands acquired or withdrawn for Federal water resource projects. Refuge use by the Service is subject to the primary project purposes of the Corps of Engineers, Bureau of Reclamation, etc. The Service exercises secondary control and such lands do not qualify for revenue sharing. Illustration 5 is a sample Cooperative Agreement.
D. No-Cost Lease. A no-cost lease (sometimes payment of $1.00 is
specified) may be used to establish land control for a Service program from a
private party, State or instrumentality thereof, or from a non-profit
conservation corporation or foundation. Here again, the Service would have
secondary control and the land would not qualify for revenue sharing. See
Illustration 6 for a sample lease.
E. General Plans.
(1) General plans are used to designate general land areas on Federal water resource projects (Corps of Engineers and Bureau of Reclamation) to be made available for wildlife management under the Fish and Wildlife Coordination Act. A general plan does not in itself convey management rights. This is done by permit or cooperative agreement.
(2) Such areas are made available to either States for management and conservation of fish and wildlife other than migratory birds, or to the Secretary of the Interior if the particular properties have value in carrying out the national migratory bird management program. In some cases and with the express approval of the Director of the Fish and Wildlife Service, areas having value of migratory birds may be made available to States. The Division of Habitat Conservation is generally responsible for the preparation of general plans.
(3) General plans are signed for Corps of Engineer projects by the head of the State wildlife agency, the Secretary of the Army, and the Secretary of the Interior, and also for Bureau of Reclamation projects by the head of the State wildlife agency, and the Secretary of the Interior.
For additional information regarding this Web page, contact Krista Holloway, in the Division of Policy and Directives Management, at Krista_Holloway@fws.gov