About Land Exchanges
Public Land Exchanges Defined
Land exchanges are a valuable tool for land management agencies to acquire important and threatened resource lands while conveying public lands that have become difficult, if not impossible, to manage. As a result of reduced appropriations for Land and Water Conservation Fund purchases, land exchanges are a vital way Federal agencies can acquire land while at the same time disposing of property that has few public benefits. In addition, land exchanges offer local communities the opportunity to direct future growth and preserve private lands containing significant local natural, historic and recreational resource values. Land exchanges can be cost effective and offer win-win opportunities for the public.
The Land Exchange Process
The Federal land exchange process is designed to insure that the exchange is in the public interest and the appraised values are approximately equal. The public interest determination and valuation processes proceed along separate but parallel tracks.
Federal land exchanges, whether undertaken by the Forest Service, Bureau of Land Management, or other Federal agency, have similar although not identical processes. Land exchanges and conveyances involving State lands tend to follow different processes depending on the State. The following is a brief summary of the Federal land exchange process.
The formal exchange process begins the submission of an exchange proposal. While not part of the formal process, informal conferences should be held with the agency prior to submission of the proposal. Items for discussion include the structure of the proposed exchange, the agency’s willingness to process the exchange and the responsibilities of the various parties.
Following submittal, both the Forest Service and BLM require preparation of feasibility analyses addressing the environmental, technical, political issues associated with the proposed exchange. If the Feasibility Analysis concludes that the proposed exchange is likely to serve the public interest, the exchange is allowed to move forward through the balance of the exchange process.
Following approval of the Feasibility Analysis the proponent and the Federal agency execute a non-binding Agreement to Initiate (functional equivalent of a letter of intent) which identifies the lands to be considered for exchange, a timetable for the transaction and a division of responsibilities.
Initial public comment regarding the exchange then begins with a legal notice announcing the proposed exchange. This notice is published in local newspapers and is sent to local and State public officials, including county commissioners, the Congressional delegation, authorized users and others. Comments on the proposed exchange may be submitted to the agency by any person up to 45 days following the initial date of publication.
An environmental analysis of the proposed exchange is then prepared to satisfy the Federal agencies’ obligations under the National Environmental Policy Act (NEPA). This analysis, developed using various environmental reports, agency studies, and public comments discloses the environmental, social and economic impact of the proposed transaction.
Valuation proceeds along on separate but parallel track. FLPMA requires that the value of exchanged lands be equal, adjusted for any difference in value by cash equalization payments up to 25% of the value of the Federal lands to be disposed. Agency regulations require that values for exchange purposes be determined by appraisals prepared in conformance with the uniform Appraisal Standards for Federal Land Acquisitions which was most recently updated in 2016.
Once the public interest determination and valuation processes are completed, the agency issues its Decision. The Decision explains the agency decision to proceed with or deny the exchange. Copies of the Decision are sent to State and local government officials, authorized users of the selected Federal lands, the Congressional delegation and interested parties.
Following a decision to proceed with the land exchange, the agency and proponent may enter into a binding Exchange Agreement. The Exchange Agreement identifies the properties to be exchanged, encumbrances, cash equalization payments that may be required to complete the exchange, the agreed upon values of the involved lands, a description of the goods and services, and other responsibilities of the proponent and the agency.
Final title reports are then requested and closing documents are prepared.
KEY LAWS and REGULATIONS
General Exchange Act of 1922
Provides the general authority for the Forest Service to convey and acquire lands within the boundaries of National Forests.
Federal Land Policy and Management Act of 1976 (FLPMA)
Governs land exchanges with the Federal government. FLPMA authorizes the Secretary of the Interior to acquire land by exchange and to dispose of a tract of public land by exchange. FLPMA requires that the values of the lands exchanged be equal. If the values are not equal, they may be equalized by a cash payment up to 25% of the value of the Federal lands to be disposed, as by appraisals.
Uniform Appraisal Standards for Federal Land Acquisition
The values of the lands involved land exchanges and other acquisitions are determined by appraisals prepared in accordance with these guidelines which were most recently updated in 2016.
Federal Land Exchange Facilitation Act of 1988 (FLEFA)
The purpose of the Act, implementing rules of which were promulgated in 1994, is to facilitate and expedite land exchanges under the authority of the Secretary of Agriculture and the Secretary of the Interior by streamlining and improving the procedures for exchanges. The Act endorses the long-standing policy that a land exchange is an important tool to consolidate landownership for purposes of more efficient management; to secure important objectives of resource management, enhancement, development and protection; and to fulfill other public needs.
Federal Land Transaction Facilitation Reauthorization Act of 2018 (FLTFA)
The Federal Land Transaction Facilitation Reauthorization Act of 2018 (FLTFA), permanently reauthorized this program which provides for the sale or exchange of lands owned by the Bureau of Land Management (BLM) that have been identified for disposal under BLM’s land use plans. The proceeds of these sales contribute to an account for the purchase of high-priority conservation lands within or adjacent to BLM, U.S. Forest Service, National Park Service and U.S. Fish and Wildlife Service lands in the eleven contiguous western states and Alaska, and for administrative costs of BLM land sales. The reauthorized Act places an emphasis on wildlife-dependent recreation in support of sportsmen and women in land acquisitions, requires BLM to create and maintain a publicly-available database of all lands available for disposal, and creates additional flexibility to more effectively and efficiently fund conservation in the Western States.
National Environmental Policy Act of 1969 (NEPA)
NEPA and its implementation guidelines issued by the Council on Environmental Quality establish a framework within which the potential impacts (environmental, social and economic) of a given project are fully disclosed. Depending on the nature of the given exchange and the level of effort required to fully assess its potential impacts, the documentation required under NEPA can either take the form of a full Environmental Impact Statement (EIS), an Environmental Assessment (EA) or a Categorical Exclusion (CE).
Endangered Species Act of 1973
The ESA affords protection against Federal actions that jeopardize Federally listed threatened, endangered or candidate species. Presence of any of these species (plant or animal) can effect the determination of the exchange’s public benefit.
National Historic Preservation Act of 1966 (NHPA)
This Act was established to identify, preserve and protect historical and cultural properties of significant importance to the Nation’s heritage. NHPA requires Federal agencies to establish and implement a program to comply with the Act and take into account the effects of its actions on cultural properties. Even cultural resources that have not yet been discovered (such as archaeological sites), but that possess significance, are subject to review.
Executive Order 11988 "Floodplain Management" and Executive Order 11990 "Protection of Wetlands"
These Executive Orders require Federal agencies to minimize adverse impacts from occupying, destroying, or modifying floodplains and wetlands. These Executive Orders also discourage Federal actions that support development within floodplains and wetlands.
Resources Conservation and Recovery Act of 1976 (RCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980
These laws require Federal agencies to evaluate properties for the presence of hazardous substances and to clean up any contaminated Federal parcel before it is exchanged.
Forest and Rangeland Renewable Resources Planning Act of 1974
This Act requires the Forest Service to develop land and resource management plans for each unit of the National Forest System.
National Forest Management Act of 1976
NFMA requires that every Forest Service revise its land and resource management plan every ten to fifteen years.
Why use WLG?
Knowledge and experience conducting public land exchanges. Land exchanges are complex, time consuming and expensive processes. As an experienced third party facilitator, we provide our clients with sufficient information upon which to make an informed business decisions regarding a land exchange or other public lands-related transactions.
Working with the client, we:
Educate a proponent on the issues and process of public land exchanges;
Outline the relevant technical, environmental and political factors;
Identify the expectations and stumbling blocks of the proposal;
Present a budget and timetable for carrying out the exchange; and,
Determine the probability that the exchange can be successfully completed.
Capacity to Manage the Project
As a third party facilitator who has developed in-depth expertise in managing the exchange process, Western Land Group can judge the multiple and time consuming tasks associated with processing an exchange. Experience in planning and implementing public information programs; working with elected officials; reviewing appraisals and surveys; identifying and resolving technical encumbrances; arranging for, and in some cases drafting environmental assessments; and closing real estate transactions are all tasks that require expertise.
Close working relationships with applicable agencies
A general decline in Federal funding has resulted in a decrease in staff and resources available to process exchanges. Many costs and functions previously undertaken by the agency have fallen to exchange proponents. Western Land Group has cultivated close working relationships with these governmental agencies at all levels and throughout the western United States. Having done so, WLG is in a position to insure the exchange process is carried out in a fair and timely manner.