Policy and Guidance
Transportation Enhancement Funding
Provision of Facilities for Pedestrians and Bicycles
Historic Preservation and TE Funds
Right of Way/Land Acquisition
Planning Process/Project Development
Comfort Stations and Parking Areas
Scenic Byways and Transportation Enhancements
Safety Rest Areas, Information and Welcome Centers
Maintenance vs Major Reconstruction
Landscaping and Scenic Beautification: Corridor Master Design
Transportation Enhancement Activities have some special characteristics, but they are still part of the FHWA's federal-aid highway program. The TE Guidance covers special characteristics and situations unique to enhancements. Otherwise, the general FHWA regulations on payment procedures, civil rights, planning, engineering and traffic operations, right-of-way, and environment apply. For more information on FHWA policies as applied to transportation enhancements, we recommend discussions with the FHWA transportation enhancements coordinator in the local FHWA division office, usually located in the State capital.
FHWA Division Office TE coordinators are encouraged to contact the FHWA headquarters' office to discuss unusual or unclear eligibility situations. Often TE issues affect multiple operating offices and require coordination to assure compliance with applicable laws and regulations. Also many streamlining measures maybe available to expedite TE projects that can be provided through TE coordinators. (If you need to know your state FHWA TE representative's contact information, just call NTEC at 1-888-388-NTEC). The FHWA regulations appear in title 23 of the Code of Federal Regulations (CFR). You can find the Code of Federal Regulations in any law library and 23 CFR can also be down loaded from the FHWA website at: http://www.fhwa.dot.gov/resources/legsregs/index.cfm.
Congress enacted this wording in TEA-21. The focus is now on a clear and credible description of how the proposed TE project relates to the surface transportation system. Surface transportation is defined to include all modes of travel with the exception of aviation and military transportation. The transportation is open to the general public and serves a transportation need for the general public. To determine a relationship to surface transportation a project proponent should ask themselves a number of questions about the proposal. For example, in what way(s) is the project related to surface transportation through present or past use as a transportation resource? Is there a direct connection to a person or event nationally significant in the development of surface transportation? What is the extent of the relationship(s) to surface transportation? What groups and individuals are affected by the relationship(s), when did the relationship(s) start and end or do the relationship(s) continue? Is a relationship substantial enough to justify the investment of transportation funds? The TE Guidance states that proximity to a transportation facility alone is not sufficient to establish a relationship. Transportation enhancements coordinators should encourage applicants to carefully think through this part of their application.
Yes. As noted in the TE Final Guidance, Federal funds from other federal agencies are eligible as a match for TE funds. As always, the project must be one of the 12 TE designated eligible activities and relate to surface transportation.
In accordance with the Legislative language in 23 U.S.C. 133(e)(5)(C)(ii)(I) - "Funds from other Federal agencies and the value of other contributions (as determined by the Secretary) may be credited toward the non-Federal share of the cost of a project to carry out a transportation enhancement activity".
No. There is no legislation that allows TE funds to be used as a match for other Federal funds except where explicitly stated in law.
The government-wide "common rule" for grants and cooperative agreements is implemented by DOT in 49 C.F.R. Part 18. This regulatory provision implements the Federal Grant and Cooperative Agreement Act of 1977 (31 U.S.C. 6301 et seq.) and provides as follows: A grantee may NOT use funds received under one federal grant to match funds under another federal grant program unless specifically authorized by law; nor may a grantee use the same grantee dollars to meet two separate matching requirements. See 49 C.F.R. 18.24(b)(1) &(3).
In order for TE funds to be used as a substitute for the non-federal match there must be clear statutory authority to permit such substitution. See 42 U.S.C. 5305(a) (HUD Community Block Grant Funds).
As an example, because of a lack of statutory authority, TE funds may not serve as the non-federal match to Corp of Engineer (COE) funds. Providing the Corp of Engineers is comfortable in relying upon 23 U.S.C. 133(e)(5)(C)(ii)(I)), COE funds may serve as the non-federal match to TE funds because of the authority in Title 23 which permits other federal funds to serve as the non-federal match for TE project funds.
While the TE-045 project relating to the TE program has concluded, similar flexible matching share polices were authorized by TEA-21. The value of other contributions may be considered to reduce the cost of the project. The remainder may be covered with 100% Federal dollars. Or the entire amount of project costs without reduction may be funded with 100% Federal funds. The difference is that by the end of the fiscal year the program for TE must balance out to the normal 80/20 split for funding. Before, a State's entire TE program could be funded at 100% Federal for the fiscal year. Under TEA-21 that provision is more limited due to the end of the fiscal year balance provision requirement.
TE funds are not allowed to be used for the preservation of transportation corridors for future highway development. TE funds are to be used only for the non-traditional projects identified in TEA-21. TE projects are nonmotorized transportation-related activities, except where specifically allowed in law. Exceptions are primarily limited to the rehabilitation and operation of historic transportation facilities, including historic railroad facilities, canals and water born vehicles.
The development of parks and related activities is not one of the 12 designated eligible TE activities. To be eligible for funding a project must be one of the 12 TE designated activities and relate to surface transportation. Part of the park proposal may include otherwise eligible activities (trails and paths). However, the purpose of the TE activity should be for transportation and not solely for recreation.
Where a regular highway project is being implemented sidewalks should be considered a legitimate cost and necessary component of the larger project. TE program funds should not be used as a replacement for normal Federal-aid project costs. Where a sidewalk is not otherwise planned or budgeted, the DOT may consider it as an eligible project.
The TE guidance recommends against funding statewide planning and related documents with TE dollars, except where specific language is provided in legislation, "archeological planning and research". Planning that is an integral part of the development of a project may be considered an eligible expenditure.
NOTE [added March 12, 2009]: The term "before a transportation enhancement project is approved" means "before a transportation enhancement project receives NEPA approval". This Q&A should be considered in context with the TE Guidance at www.fhwa.dot.gov/environment/te/1999guidance.htm#donations. FHWA expects to issue new guidance on Donations that will apply broadly across the Federal-aid highway program. This Q&A will be revised after that guidance is issued.
The TE Guidance does not specify a time limit as to how far in the past we can go in considering the value of such donations. As a general principle, the Guidance invokes a test of reasonability, as determined in coordination with the FHWA division office. For determinations of what donated items can be used for the local match and how they are valued, the FHWA division office must also be contacted. Determining whether a donation can be credited may also include an evaluation of whether its original acquisition is in accord with the The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and Title VI of the Civil Rights Act of 1964. Land donations must be clearly documented to support the value placed on them. To verify how to value donated services by private people to a government unit, see 23 U.S.C. 323(b) and Office of Management and Budget (OMB) Circular A-87, attachment B, item 11(i). To verify how to value donated services by private people to a private project sponsor, see OMB Circular A-122, Attachment B, item 12. OMB circulars are available on the World Wide Web at: http://www.whitehouse.gov/omb/circulars_default/. These Office of Management and Budget (OMB) circulars are also available through the FHWA division offices. The value of any donations should be reflected in the overall cost of the TE project. The FHWA Office of Finance and Budget issued a February 4, 1997 memo entitled "Donations to Federal-aid Projects," which gives a sample calculation of donation credits. It is available through the FHWA division offices. Refer to the TE guidance section "Summary of Requirements for Matching Funds."
Yes, property may be donated for use as part of a TE project. The value of the donated property may be credited toward the local match. Donated property must be used or incorporated into the project for which the value of the donation is taken. Property purchased prior to the project approval and then subsequently donated is allowable as long as the appropriate consideration to the Uniform Act is taken into account. The risk is that the property may never actually be used in the TE project and therefore no credit for the expenditure will be given. Cash reimbursement for property purchased prior to project approval is not allowed.
A number of questions have been raised as to whether a fee may be charged for access to any property or services provided through funds made available for a TE activity. Generally, fees should not be charged for access to activities or projects funded with TE funds. Examples of limited situations in which a minimal fee may be charged are discussed below.
Examples might include admission fees to a transportation museum, or to an interpretive movie shown at a tourist center, and a fee for a scenic ride on a restored historic train. A fee may be appropriate where the proceeds from the charge are not excessive for the general public, and are by agreement instituted for the maintenance and operation of the TE funded resource. If charging a fee is prohibited by a Federal, State or local law, the State may not charge a user fee. For example, if a tourist or welcome center is on an Interstate Highway, no fee could be charged (see 23 U.S.C. Section 111(a)). Collected fees should be applied for the maintenance and long-term upkeep of museums, trails, or other TE-funded sites.
Where a State or project applicant proposes to use TE funds to acquire real property and lease or rent space, or otherwise charge a fee for access to the property, 23 U.S.C. Section 156, (unless an exception is granted by the Secretary), requires that fair market value be charged and that the Federal share of net proceeds from the transaction be applied by the State toward Title 23 eligible projects (i.e., Federal-aid projects or State-funded projects that are eligible for Title 23 funding). The term "real property" refers to land and any improvements affixed to the land (i.e., the physical real estate), and all interests, benefits, and rights inherent (e.g., access control rights, air rights, etc.) in the ownership of the physical real estate. By agreement, provisions should also be made to have a portion of the funds used for the maintenance and operation of the TE funded resource.
TE funds can be used to reconstruct, refurbish, or rehabilitate an existing pedestrian/bicycle facility. This would include upgrading the structure to meet Federal, State and/or local responsibilities for compliance with ADA requirements (such as ramps, and/or other necessary design features.) This does not include maintenance and operation activities.
TE funds are not to be used for operations or maintenance of the facility. Where there is an uncertainty regarding whether or not a proposed action is considered an operation and/or maintenance activity, the determination should be cooperatively addressed by the State DOT and FHWA division office.
Snowmobiles may be used on TE funded trails only when snow conditions and State and or local regulations permit. In other words, a local ordinance must be in place allowing snowmobiles use. (23 U.S.C. 217 (h))
No. According to 23 U.S.C. 217(h), motorized vehicles (including ATVs) may not be permitted on trails and pedestrian walkways which use Federal aid highway funds (except snowmobiles, where specifically authorized by State or local ordinance, motorized wheelchairs, electric bicycles, and maintenance vehicles).
FHWA developed a Framework for Considering Motorized Use on Nonmotorized Trails and Pedestrian Walkways for exceptional circumstances when other reasonable options have been exhausted. [Paragraph added Feb 29, 2008]
TE funds cannot be used to fund bicycle facilities that are solely for recreational use. According to the language under 23 USC 217(i), "No bicycle project may be carried out under this section unless the Secretary has determined that such bicycle project will be principally for transportation, rather than recreation purposes". All bicycle projects funded with Federal aid must be primarily for transportation purposes. Bicycle transportation includes more than commuting; it also includes travel to shopping, civic or social events, bicycle tourism, travel to and through recreation areas, and other related uses. Mixed uses that include some recreation trips may also be allowed.
Section 217(i) only affects bicycle projects. It does not require a transportation purpose for pedestrian, equestrian, or any other use. See:
Ideally for joint use activities that are part of the initial proposal for TE funds, a partnership is suggested to allow federal funds to be used only for the portion of the restoration for public use. Privately or commercially used segments of a restoration should have private investment.
Before the TE project is approved, the sponsor, State DOT, and FHWA, if necessary, should reach a clear agreement on which areas are to be leased, what activities are appropriate, and how income generated by the facility is to be used. As the Guidance notes under the heading "Maintenance and Operations," the State is responsible for long-term maintenance and operation of TE activities. The category "Rehabilitation and operation of historic transportation buildings, structures, or facilities" is the only TE activity that specifically allows the use of federal-aid TE funds for operations. As part of their maintenance and operations responsibility, States are encouraged to develop maintenance plans for TE activities. In accordance with good business practices, these plans would include reserves for long-term maintenance and periodic repair. Part or all of the fees generated by the activity should be a component of the maintenance plan.
Congress introduced this terminology regarding tourist and welcome centers. This phrase can be interpreted broadly, however a clear linkage must be demonstrated. For example, if a tourist or welcome center provides substantial information about a particular scenic or historic highway program, or a scenic or historic site this could be considered part of the needed justification. Such information could include literature, directions, interpretive displays, or videos shown to the public. To clearly be consistent with the language the Congress provided, the tourist or welcome center should be within close proximity to the scenic of historic highway site. Close proximity should be determined to be within a reasonable walking distance. If visitors can park at the tourist and welcome center and walk to the scenic or historic site (i.e. on short connecting foot trails), see it from a vista at the tourist and welcome center or view some of its attributes, then there is clear linkage. For scenic sites, if the location proposed is on a designated scenic route, and the proposed building site itself contains some of the qualities that make the route scenic (special landforms, vistas, cultural resources, etc.) that can be viewed from the tourist and welcome center, then linkage may clearly be established. The placement of a visitor's information facility on a scenic or historic route would allow for a more direct connection and more easily satisfy the linkage requirements.
There is no provision for replication of a historic structure in the list of TE activities fundable with enhancement dollars. Rehabilitation and restoration of historic structures is a listed activity. Building a replica of a historic structure is not the equivalent of restoration of an existing structures. There is no terminology called reconstruction in the list of TE activities.
No. Establishing a transportation museum is not strictly tied to the historic nature of the structure it is housed in. Historic buildings may be restored that are not necessarily a museum where a relationship to transportation is shown and all other eligibility requirements are otherwise met.
A rehabilitated historic transportation building can be used for a contemporary use as long as the significant historic features are preserved and it remains open to the public on a not-for-profit basis. (In the case of a transportation museum, an entrance fee can be charged, however a portion of the fee should be provided for the long-term maintenance and operation of the facility.) It is not necessary to have this activity function as an active transportation facility, either past or current, to qualify as eligible. However, elements of the structure that is preserved must continue to have a relationship to surface transportation. Also if the TE funds are being used to preserve the historic features of the structure, then those characteristics that established it as a transportation facility and established its historicity must be maintained.
The operating portion of the "rehabilitation and operation of historic transportation buildings, structures, or facilities" should only be used to continue the functions of the historic structure as per the original project proposal and agreement. If the proposal is for non-transportation related activities and those not directly related to maintaining the historic structure, then TE funds cannot be used for that type of operating cost.
Congress included the language "vehicle caused wildlife mortality" in the category of TE funding. Fish ladders or passages ordinarily would not qualify, except as a part of a larger project addressing mitigation of water pollution to address highway runoff where the runoff contributes to the mortality of aquatic species.
Establishment of transportation museums is interpreted to mean funding of capital improvements. Capital improvements include the reconstruction, refurbishing, or rehabilitation of an existing museum that is clearly for a transportation purpose and meets all the criteria of a transportation museum.(See page 16-17 "Establishment of the Transportation Museums" of the Federal Transportation Enhancement Guidance.)Rehabilitation of an existing transportation museum would include upgrading the structure to meet state and/or local codes (i.e., fire sprinkler system or ADA ramps).
Establishment of a transportation museum is also interpreted to apply to the re-establishment of a closed transportation museum, where it no longer exists. Such a museum must also meet the minimum criteria, which defines a transportation museum as noted in the Federal TE Guidance.(For example, where a transportation museum has gone out of business, but the structure still exist.)
TE funds are not to be used for operations or maintenance of the facility.Where there is an uncertainty regarding whether or not a proposed action is considered an operation and/or maintenance activity, the determination should be cooperatively addressed by the State DOT and FHWA division offices.
TE funds may not be used in connection with active military vehicles/vessels, or those owned, maintained or otherwise controlled by the military with limited access to the general public. TE funds are intended to be used for the enhancement of transportation and transportation related activities for the general public. TE activities must be those listed in law, open to the general public, and responsibly maintained directly or in partnership with a public entity (specific Federal funds may be used to match Federal-aid highway funds).
Transportation museums may be defined as a complete structure or entity unto itself, or a wing attached to another facility that is dedicated to transportation.If the application for TE funds is for a wing dedicated to transportation, TE funds can be for establishing a portion of the facility as a transportation museum.
The TE guidance identifies 7 characteristics of a transportation museum. These are also characteristics that represent any museum.As long as a segment is added solely for transportation purposes, and meets the minimum requirements for a museum it can be considered a transportation museum under the TE definition in the guidance.There is no restriction in the federal TE guidance or legislation that requires transportation artifacts or designated areas to occupy greater than 50% of the total area of the museum (or any stated percentage) in order for it to be determined to be a transportation museum.Should a State decide to add such a restriction, it must be made clear that this restriction is not a federal requirement.
Artifacts scattered about a facility, that are not concentrated in a given area of the facility, and where such a facility is dedicated to a non-transportation purpose, then TE funds should not be used to support such artifacts because no transportation museum has been established.
A public agency that has condemnation authority can participate in the voluntary transaction process if they put in writing that they give up that right if negotiations with the property owner fail (per 49 CFR 24.101).
The 23 U.S.C. 323 requires land that is donated be incorporated into the project to be eligible for a match. If not part of project scope, a donation of the property should not be used as a match. Land does not have to be within highway right-of-way to be eligible for donation for a TE project.
There is no standard template for property acquisition or standard easement language. There is also no specific language for inclusion in easement agreements for TE funded projects. Appropriate language should be develop for the specific project circumstances in cooperation with the FHWA Division Office.
Yes, TE projects involving privately held property is allowed under the regulations and policies of the TE program. It requires extra care in the development of the project agreement to insure that there is public access to a TE restored property and that the term of public access is comparable to the nature and magnitude of the investment of public funds. A requirement is also needed to assure the protection of the investment and for future necessary maintenance.
STP TE funds may be sub-allocated to MPOs. Neither the TE Guidance nor the planning regulations prohibit the sub-allocation of transportation enhancement funds by the State.What is prohibited is the further sub-allocation of STP funds allocated to urbanized areas of 200,000 or more population (23 CFR 450.324(1)).
Yes, State DOTs and project proponents should seek opportunities to coordinate with State tourism officials to help maximize economic benefits of the TE activity. State tourism agencies may provide helpful information such as the identification of important area resources, assist in developing criteria for site selection, and offer suggestions towards implementation. States should consider including representation from the State tourism community as part of their TE advisory committee process. State tourism agencies should also be consulted with regard to the implementation of tourist and welcome centers.
As a stand-alone project neither a comfort station nor a parking area are eligible activities under the TE program. If, however, the parking area and the comfort station are essential parts of an eligible TE project activity such as a tourist and welcome center or a pedestrian/bike facility, then it can be funded as a subcomponent of the larger eligible activity. An example might be the location of a parking area and comfort station at a trailhead. State TE requirements must also be reviewed to determine if the proposed actions are eligible activities.
Either the local government or the sponsoring organization must accept responsibility for the long-term maintenance of this project.
The Scenic Byways Program and Transportation Program are able to fund many similar activities. Some of the similarities include:
Some differences include:
No, TE funds may not be used to fund safety rest areas and information centers. However, TE funds may be used to fund tourist welcome and information centers. To be eligible for funding a "tourist and welcome center" using TE dollars, there must be a direct link to a scenic or historic site. A facility built as a tourist and welcome center funded with TE dollars must have this direct link and have a relationship to surface transportation.
According to the FR 752.5, 752.7, and 752.11, safety rest areas and information centers are eligible project activities for federal-aid highway funding. However, this is different from the eligibility for TE activities. TE activities are a 10% set-aside of the STP funds. The definition and purposes of safety rest areas are different from the TE activity. The tourist and welcome centers may include some similar information as allowed by "information centers".
[Note: Each instance of the word "sidewalk" or "sidewalks" in this section was added July 11, 2005.]
TE funds may not be used for routine maintenance (except as explained in Maintenance and Operations). However, TE funds may be used for major resurfacing, rehabilitation, or reconstruction for trails, sidewalks, bridges, buildings, or other structures.
Highways, bridges, buildings, sidewalks, and trails all can be expected to have a useful life. While the Federal-aid highway program does not pay for routine maintenance on highways and bridges, FHWA has long recognized that major resurfacing, rehabilitation, and reconstruction projects are eligible for Federal-aid funds on highways and on bridges. Trails, sidewalks, bridges, buildings, or other structures potentially eligible for TE funds may be held to a similar standard.
Therefore, TE funds may be used for major resurfacing, rehabilitation, or reconstruction for trails, sidewalks, bridges, buildings, or other structures. This eligibility criteria holds whether or not a project has used Federal-aid funds in the past (TE or any other Federal-aid funds). This is also consistent with Q&A #13.
TE funds (or other Federal-aid funds) may not be used for routine maintenance (except as explained in Maintenance and Operations). Examples of routine maintenance include:
* NOTE [added April 15, 2004]: Some kinds of repainting are rehabilitation rather than routine maintenance:
TE funds also may not be used to repair a trail, sidewalk, bridge, building, or other structure that used Federal-aid funds, if the purpose is to correct substandard construction: the project sponsor should seek redress by other means.
As with other projects where States have eligibility questions, States should consult with their FHWA division offices on potential project applications for an eligibility determination until the State and Division have a track record of appropriate projects.
Use of User Fees
If a user fee is charged for a facility constructed, reconstructed, or rehabilitated with Federal-aid funds, then fee income must be set aside for maintenance and operation and in reserve for future major costs. The project sponsor should estimate the useful life of the facility and its components (for example: roof, heating, air system, water heater, pipes, wiring), and set aside sufficient funds to replace these in the future. See Q&A #12. The project agreement should establish the expected useful life for various components and how fee income is used. If a facility does not charge a user fee, then replacing the roof after the useful life of the roof would qualify as a reconstruction activity. See also Maintenance and Operations and General Real Estate Guidance for Enhancement Projects.
Yes. The basic eligibility principle for Category 5 is "enhance the aesthetic or visual character of a site, corridor, or community along a surface transportation facility." A Corridor Master Design can accomplish this effectively. The Corridor Master Design should be for a specific highway corridor, rather than an overall statewide or regional conceptual plan. It is not necessary for the corridor to be a designated scenic or historic highway, unless the State chooses to limit eligibility to scenic or historic highways under TE Category 4. The Corridor Master Design should simultaneously achieve four goals:
Efficient use of Enhancement funds. Instead of funding separate designs for the various transportation projects programmed for a single corridor, a single master design should specify the major visual elements for the corridor, such as landscaping, vegetation management (preference for the use of native plants and removal of invasive species), sound barrier walls, stormwater treatments, median barriers, guard rails, bridges, limiting light pollution, preserving historic or cultural features, etc. This can save millions of dollars in Enhancement funds by establishing one design for the corridor which can become a standard part of all projects on the corridor, rather than separate enhancement designs each time a project is initiated.
Achieve visual continuity. Instead of the visual confusion or clutter of many different treatments for these visual elements along a corridor, one coherent design should increase the legibility, and thus the safety and aesthetics, of the corridor.
Enhance the scenic beauty of that transportation corridor. A master design for the built environment and landscaping elements of transportation projects along a corridor transforms the jumble of ordinary built infrastructure into a coordinated aesthetic experience for the traveler.
Provide a timeframe for implementation. The master design should provide an appropriate timeframe for implementing the roadside treatments, considering development patterns and likely highway-related projects within the corridor over an explicit time period; the design should be specific and not be only a conceptual design.