Federal highway law allows a State or other project sponsor to treat the acquisition of right-of-way itself as the purpose of the project. The acquisition could take the form of a fee purchase of the land, or could merely be an easement interest that prevents development until the State has had the time needed to determine exactly what is required for the transportation project. In order to receive Federal approval for such an acquisition program, it is necessary to comply with the normal steps that precede Federal project approval. However, the restriction on early acquisition set forth above does not apply if the acquisition occurs after compliance with NEPA.
Indeed, the purpose and need of such a project would be substantially different from the transportation project that might ultimately use that right-of-way. Since the purpose of the acquisition is to preserve the status quo, existing land uses typically would not change. Moreover, should the sponsor decide not to proceed with the project, the land could be disposed of with no impact on the existing environment. Thus, while the environmental document must generally address what might ultimately happen in the corridor because that is what justifies the acquisition project in the first place, the actual environmental impact of such a land acquisition may be quite small.
While the government would have to satisfy NEPA (with an Environmental Impact Statement (EIS), Environmental Assessment (EA)/Finding of No Significant Impact (FONSI), or Categorical Exclusion (CE)) before beginning any specific transportation project, it would not be required to complete NEPA before merely acquiring the right-of-way or a legal interest (such as an easement) in the right-of-way. This would be particularly the case where the underlying land use following land acquisition is not changed until the nature of the ultimate transportation improvement is determined. On the other hand, the inevitability of significant environmental impacts of some kind flowing from the project that will be implemented eventually may make it prudent to prepare a NEPA document.