The ROW Encroachment Certification is required for each project. An encroachment is typically an instance of privately-owned improvements existing on the State’s project ROW. There are two requirements that must be met to properly address ROW encroachments:

Requirements for Federally Funded Projects

– In order to advance a federally funded project, encroachments must be addressed as outlined in the

Federal-Aid Policy Guide

, Section 1.23 (23 CFR 1.23). To meet these guidelines, the District can provide support documentation that leaving the encroachment in place will not impair the highway or interfere with the free and safe flow of traffic. When an encroachment is discovered on a project, this support documentation should be sent to DES with copies to CST and ROW. If this cannot be certified, then the encroachment must be addressed otherwise, which may involve removal or safety treatment, in order for the federal project to proceed and utilize federal funding.

Requirements Under State Law

– The state requirements are derived from broad state laws involving the use of public property for private use. The current TxDOT interpretation applies this to highway ROW. The interpretation is that TxDOT must have a formal agreement with the owner of the encroachment to allow the encroachment to exist in the ROW. The options to comply with the state law have been determined to be: (1) remove the encroachment; (2) sell the area of the ROW to the owner of the encroachment; or (3) lease the area of the ROW to the owner of the encroachment. To address these requirements, the District should work with the ROW with copies of this information sent to DES and CST. These options must be pursued even if approval has been obtained in compliance with the

Federal-Aid Policy Guide

as discussed above.