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FHWA Washington Division > Environment > Section 4 (f) Training > Section 7

Post-Completion Compliance - Legal Protection

Post-Completion Compliance Responsibilities

Post-completion compliance responsibilities apply to each area or facility for which Land and Water Conservation Fund assistance is obtained, regardless of the extent of program participation in the assisted area or facility and consistent with the contractural agreement between National Park Service and the State.

The State is responsible for compliance and enforcement of these provisions for both State and locally sponsored projects. Responsibilities cited in Title 36, Part 59 in the U.S. Code of Federal Regulations apply to the area described on the 6(f)(3) boundary map and/or as described in other project documentation approved by the Department of the Interior.

TITLE 36, CHAPTER 1, PART 59 - Land and Water Conservation Fund Program of Assistance to States; Post-Completion Compliance Responsibilities :

You can also read more about post-completion compliance responsibilities in the LWCF Stewardship booklet

Legal Protection for Grant-Assisted Recreation Sites

Section 6(f)(3) of the LWCF Act

Section 6(f)(3) of the LWCF Act contains strong provisions to protect Federal

http://www.nps.gov/ncrc/programs/lwcf/protect.html

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investments and the quality of assisted resources. The law is firm but flexible. It recognizes the likelihood that changes in land use or development may make some assisted areas obsolete over time, particularly in rapidly changing urban areas. At the same time, the law discourages casual "discards" of park and recreation facilities by ensuring that changes or "conversions from recreation use" will bear a cost - a cost that assures taxpayers that investments in the "national recreation estate" will not be squandered. The LWCF Act contains a clear and common sense provision to protect grant-assisted areas from conversions.

SEC. 6(f)(3) No property acquired or developed with assistance under this section shall, without the approval of the Secretary, be converted to other than public outdoor recreation uses. The Secretary shall approve such conversion only if he finds it to be in accord with the then existing comprehensive statewide outdoor recreation plan and only upon such conditions as he deems necessary to assure the substitution of other recreation properties of at least equal fair market value and of reasonably equivalent usefulness and location.

This "anti-conversion" requirement applies to all parks and other sites that have been the subject of Land and Water grants of any type, whether for acquisition of parkland, development or rehabilitation of facilities. In many cases, even a relatively small LWCF grant (e.g., for development of a picnic shelter) in a park of hundreds or even thousands of acres provides anti-conversion protection to the entire park site.

To ensure the continued effectiveness of Section 6(f)(3) protection, several management tools have been developed to monitor and correct changes in assisted sites from year to year. For example, the NPS requires on-site inspections of all grant-assisted areas and facilities at least once in every five years most of which are conducted by cooperating state agencies.

Another important tool to ensure good communication between grantors and grantees is the "6(f)(3) project boundary map." With each application, the grantee submits a dated project boundary map showing the park area to be covered by Section 6(f)(3) anti-conversion protections. This map need not be a formal survey document, but it contains enough site-specific information to serve several purposes:

z it ensures that both the grantee and the administering agency agree on the proper boundaries of the covered site at the time of project approval;

z it provides location, size indicators and a picture of key facilities and landmarks to help later project inspectors better identify and evaluate the site.

Sometimes the protective provisions of LWCF grants result in "win-win" solutions to the problems of changing parks and changing communities. An example of this is Shoreline Park in Long Beach, California.

After using a sizable LWCF grant for basic development of the 20 acre park, the community felt that the park was not meeting its full potential. It was decided to replace the park with a commercial aquarium, amphitheater and shopping mall, and to build a new community park elsewhere in the neighborhood. National Park Service and the State worked closely with Long Beach. Within a short time, a new 24 acre site was identified.

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Shoreline Park never succeeded in meeting its usage goals, because of reduced population in the downtown areas. Thanks to common sense replacement provisions, the park site will effectively be relocated and Long Beach residents will be able to enjoy new recreation opportunities as well as a viable tourist and convention site that will aid downtown economic recovery.

The conversion was approved, with the result that the "anti-conversion" mandate of the law, instead of being a negative, helped bring business leaders and community park users together for an improved Science Center AND an entirely new public recreation opportunity in the form of the riverfront park.

If you have concerns about threats to a park area that you think might have received a LWCF grant, contact one of the National Park Service field offices or your State Agency, as listed in the "Contact List." Administrators have databases of grant-assisted sites that will help them to determine whether Fund protections apply; also some States have their own grant programs that afford similar protection.

§ 51.103

preference by operation of law, the Director will permit the concessioner to exercise a renewal preference for the contract subject to and in accordance with the otherwise applicable right of preference terms and conditions of this part, including, without limitation, the requirement for submission of a responsive proposal pursuant to the terms of an applicable prospectus. The Director, similarly, will permit any holder of a 1965 Act concession contract that a court of competent jurisdiction determines in a final order is entitled to a renewal preference, for any reason, to exercise a right of preference in accordance with the otherwise applicable requirements of this part, including, without limitation, the requirement for submission of a responsive proposal pursuant to the terms of an applicable prospectus.

§ 51.103 Severability.

A determination that any provision of this part is unlawful will not affect the validity of the remaining provisions.

Subpart M—Information Collection

§ 51.104 Have information collection procedures been followed?

• (a) The Paperwork Reduction Act provides that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB Control Number. The information collection for submission of proposals in response to concession prospectuses contained in this part have been approved by the Office of Management and Budget as required by 44 U.S.C. 3501 et seq. and assigned clearance number 1024–0125, extended through May 30, 2000. An information collection for proposed transfers of concession operations is covered by OMB Approval No. 1024–0126 effective through August 31, 2002.

• (b) The public reporting burden for the collection of information for the purpose of preparing a proposal in response to a contract solicitation is estimated to average 480 hours per proposal for large authorizations and 240 hours per proposal for small authorizations. The public reporting burden for

36 CFR Ch. I (7–1–03 Edition)

the collection of information for the purpose of requesting approval of a sale or transfer of a concession operation is estimated to be 80 hours. Please send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Information Collection Officer, National Park Service, 1849 C Street, Washington, DC 20240; and to the Attention: Desk Officer for the Interior Department, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503.

(c) Additional reporting and record-keeping requirements were identified in subpart F regarding appeal of a preferred offeror determination, subpart G regarding leasehold surrender interest and in subpart K regarding record-keeping that are not covered under OMB approval. An emergency information collection request to cover these requirements has been prepared and submitted to OMB for approvals. These additional information collection requirements will not be implemented until OMB approves the emergency request. The Director will publish a F EDERAL R EGISTER notice when OMB has approved these requirements.

PART 59—LAND AND WATER CONSERVATION FUND PROGRAM OF ASSISTANCE TO STATES; POSTCOMPLETION COMPLIANCE RESPONSIBILITIES

Sec.

59.1 Applicability.

59.2 Information collection.

59.3 Conversion requirements.

59.4 Residency requirements. 59.5–59.6 [Reserved]

A UTHORITY : Sec. 6, L&WCF Act of 1965 as amended; Pub. L. 88–578; 78 Stat. 897; 16

U.S.C. 4601–4 et seq.

S OURCE : 51 FR 34184, Sept. 25, 1986, unless otherwise noted.

§ 59.1 Applicability.

These post-completion responsibilities apply to each area or facility for which Land and Water Conservation Fund (L&WCF) assistance is obtained, regardless of the extent of participation of the program in the assisted area

National Park Service, Interior

or facility and consistent with the contractural agreement between NPS and the State. Responsibility for compliance and enforcement of these provisions rests with the State for both State and locally sponsored projects. The responsibilities cited herein are applicable to the area depicted or otherwise described on the 6(f)(3) boundary map and/or as described in other project documentation approved by the Department of the Interior. In many instances, this mutually agreed to area exceeds that actually receiving L&WCF assistance so as to assure the protection of a viable recreation entity. For leased sites assisted under L&WCF, compliance with post-completion requirements of the grant ceases following lease expiration unless the grant agreement calls for some other arrangement.

§ 59.2 Information collection.

The information collection requirements contained in § 59.3 have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1024– 0047. The information is being collected to determine whether to approve a project sponsor’s request to convert an assisted site or facility to other than public outdoor recreation uses. The information will be used to assure that the requirements of section 6(f)(3) of the L&WCF Act would be met should the proposed conversion be implemented. Response is required in order to obtain the benefit of Department of the Interior approval.

§ 59.3 Conversion requirements.

• (a) Background and legal requirements. Section 6(f)(3) of the L&WCF Act is the cornerstone of Federal compliance efforts to ensure that the Federal investments in L&WCF assistance are being maintained in public outdoor recreation use. This section of the Act assures that once an area has been funded with L&WCF assistance, it is continually maintained in public recreation use unless NPS approves substitution property of reasonably equivalent usefulness and location and of at least equal fair market value.

• (b) Prerequisites for conversion approval. Requests from the project spon

§ 59.3

sor for permission to convert L&WCF assisted properties in whole or in part to other than public outdoor recreation uses must be submitted by the State Liaison Officer to the appropriate NPS Regional Director in writing. NPS will consider conversion requests if the following prerequisites have been met:

1. (1) All practical alternatives to the proposed conversion have been evaluated.

2. (2) The fair market value of the property to be converted has been established and the property proposed for substitution is of at least equal fair market value as established by an approved appraisal (prepared in accordance with uniform Federal appraisal standards) excluding the value of structures or facilities that will not serve a recreation purpose.

3. (3) The property proposed for replacement is of reasonably equivalent usefulness and location as that being converted. Dependent upon the situation and at the discretion of the Regional Director, the replacement property need not provide identical recreation experiences or be located at the same site, provided it is in a reasonably equivalent location. Generally, the replacement property should be administered by the same political jurisdiction as the converted property. NPS will consider State requests to change the project sponsor when it is determined that a different political jurisdiction can better carry out the objectives of the original project agreement. Equivalent usefulness and location will be determined based on the following criteria:

   • (i) Property to be converted must be evaluated in order to determine what recreation needs are being fulfilled by the facilities which exist and the types of outdoor recreation resources and opportunities available. The property being proposed for substitution must then be evaluated in a similar manner to determine if it will meet recreation needs which are at least like in magnitude and impact to the user community as the converted site. This criterion is applicable in the consideration of all conversion requests with the exception of those where wetlands are proposed as replacement property. Wetland areas and interests therein which have been identified in the wetlands provisions of the Statewide Comprehensive Outdoor Recreation Plan shall be considered to be of reasonably equivalent usefulness with the property proposed for conversion regardless of the nature of the property proposed for conversion.

   • (ii) Replacement property need not necessarily be directly adjacent to or close by the converted site. This policy provides the administrative flexibility to determine location recognizing that the property should meet existing public outdoor recreation needs. While generally this will involve the selection of a site serving the same community(ies) or area as the converted site, there may be exceptions. For example, if property being converted is in an area undergoing major demographic change and the area has no existing or anticipated future need for outdoor recreation, then the project sponsor should seek to locate the substitute area in another location within the jurisdiction. Should a local project sponsor be unable to replace converted property, the State would be responsible, as the primary recipient of Federal assistance, for assuring compliance with these regulations and the substitution of replacement property.

   • (iii) The acquisition of one parcel of land may be used in satisfaction of several approved conversions.

4. (4) The property proposed for substitution meets the eligibility requirements for L&WCF assisted acquisition. The replacement property must constitute or be part of a viable recreation area. Unless each of the following additional conditions is met, land currently in public ownership, including that which is owned by another public agency, may not be used as replacement land for land acquired as part of an L&WCF project:

   • (i) The land was not acquired by the sponsor or selling agency for recreation.

   • (ii) The land has not been dedicated or managed for recreational purposes while in public ownership.

   • (iii) No Federal assistance was provided in the original acquisition unless the assistance was provided under a program expressly authorized to match or supplement L&WCF assistance.

36 CFR Ch. I (7–1–03 Edition)

• (iv) Where the project sponsor acquires the land from another public agency, the selling agency must be required by law to receive payment for the land so acquired.

• In the case of development projects for which the State match was not derived from the cost of the purchase or value of a donation of the land to be converted, but from the value of the development itself, public land which has not been dedicated or managed for recreation/conservation use may be used as replacement land even if this land is transferred from one public agency to another without cost.

1. (5) In the case of assisted sites which are partially rather than wholly converted, the impact of the converted portion on the remainder shall be considered. If such a conversion is approved, the unconverted area must remain recreationally viable or be replaced as well.

2. (6) All necessary coordination with other Federal agencies has been satisfactorily accomplished including, for example, compliance with section 4(f) of the Department of Transportation Act of 1966.

3. (7) The guidelines for environmental evaluation have been satisfactorily completed and considered by NPS during its review of the proposed 6(f)(3) action. In cases where the proposed conversion arises from another Federal action, final review of the State’s proposal shall not occur until the NPS Regional office is assured that all environmental review requirements related to that other action have been met.

4. (8) State intergovernmental clearinghouse review procedures have been adhered to if the proposed conversion and substitution constitute significant changes to the original Land and Water Conservation Fund project.

5. (9) The proposed conversion and substitution are in accord with the Statewide Comprehensive Outdoor Recreation Plan (SCORP) and/or equivalent recreation plans.

6. (c) Amendments for conversion. All conversions require amendments to the original project agreements. Therefore, amendment requests should be submitted concurrently with conversion requests or at such time as all details of the conversion have been worked out

National Park Service, Interior

with NPS. Section 6(f)(3) project boundary maps shall be submitted with the amendment request to identify the changes to the original area caused by the proposed conversion and to establish a new project area pursuant to the substitution. Once the conversion has been approved, replacement property should be immediately acquired. Exceptions to this rule would occur only when it is not possible for replacement property to be identified prior to the State’s request for a conversion. In such cases, an express commitment to satisfy section 6(f)(3) substitution requirements within a specified period, normally not to exceed one year following conversion approval, must be received from the State. This commitment will be in the form of an amendment to the grant agreement.

(d) Obsolete facilities. Recipients are not required to continue operation of a particular facility beyond its useful life. However, when a facility is declared obsolete, the site must nonetheless be maintained for public outdoor recreation following discontinuance of the assisted facility. Failure to so maintain is considered to be a conversion. Requests regarding changes from a L&WCF funded facility to another otherwise eligible facility at the same site that significantly contravene the original plans for the area must be made in writing to the Regional Director. NPS approval must be obtained prior to the occurrence of the change. NPS approval is not necessarily required, however, for each and every facility use change. Rather, a project area should be viewed in the context of overall use and should be monitored in this context. A change from a baseball field to a football field, for example, would not require NPS approval. A change from a swimming pool with substantial recreational development to a less intense area of limited development such as a passive park, or vice versa, would, however, require NPS review and approval. To assure that facility changes do not significantly contravene the original project agreement, NPS shall be notified by the State of all proposed changes in advance of their occurrence. A primary NPS consideration in the review of requests for changes in use will be the consistency

§ 59.4

of the proposal with the Statewide Comprehensive Outdoor Recreation Plan and/or equivalent recreation plans. Changes to other than public outdoor recreation use require NPS approval and the substitution of replacement land in accordance with section 6(f)(3) of the L&WCF Act and paragraphs (a) through (c) of this section.

[51 FR 34184, Sept. 25, 1986, as amended at 52 FR 22747, June 15, 1987]

§ 59.4 Residency requirements.

• (a) Background. Section 6(f)(8) of the L&WCF Act prohibits discrimination on the basis of residence, including preferential reservation or membership systems, except to the extent that reasonable differences in admission and other fees may be maintained on such basis. This prohibition applies to both regularly scheduled and special events. The general provisions regarding nondiscrimination at sites assisted under Interior programs and, thereby, all other recreation facilities managed by a project sponsor, are covered in 43 CFR part 17 which implements the provisions of Title VI of the Civil Rights Act of 1964 for the Department.

• (b) Policy. There shall be no discrimination for L&WCF assisted programs and services on the basis of residence, except in reasonable fee differentials. Post-completion compliance responsibilities of the recipient should continue to ensure that discrimination on the basis of residency is not occurring.

• (c) Fees. Fees charged to nonresidents cannot exceed twice that charged to residents. Where there is no charge for residents but a fee is charged to nonresidents, nonresident fees cannot exceed fees charged for residents at comparable State or local public facilities. Reservation, membership, or annual permit systems available to residents must also be available to nonresidents and the period of availability must be the same for both residents and nonresidents. Recipients are prohibited from providing residents the option of purchasing annual or daily permits while at the same time restricting nonresidents to the purchase of annual permits only. These provisions apply only to the approved 6(f)(3) areas applicable to the recipient. Nonresident

§§ 59.5–59.6

fishing and hunting license fees are excluded from these requirements.

§§ 59.5–59.6 [Reserved]

PART 60—NATIONAL REGISTER OF HISTORIC PLACES

Sec.

60.1 Authorization and expansion of the National Register.

60.2 Effects of listing under Federal law.

60.3 Definitions.

60.4 Criteria for evaluation.

60.5 Nomination forms and information collection.

60.6 Nominations by the State Historic Preservation Officer under approved State Historic Preservation programs.

60.7–60.8 [Reserved]

60.9 Nominations by Federal agencies.

60.10 Concurrent State and Federal nominations.

60.11 Requests for nominations.

60.12 Nomination appeals.

60.13 Publication in the F EDERAL R EGISTER and other NPS notification.

60.14 Changes and revisions to properties listed in the National Register.

60.15 Removing properties from the National Register.

A UTHORITY : National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470 et seq., and E.O. 11593.

S OURCE : 46 FR 56187, Nov. 16, 1981, unless otherwise noted.

§ 60.1 Authorization and expansion ofthe National Register.

• (a) The National Historic Preservation Act of 1966, 80 Stat. 915, 16 U.S.C. 470 et seq., as amended, authorizes the Secretary of the Interior to expand and maintain a National Register of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering and culture. The regulations herein set forth the procedural requirements for listing properties on the National Register.

• (b) Properties are added to the National Register through the following processes.

• (1) Those Acts of Congress and Executive orders which create historic areas of the National Park System administered by the National Park Service, all or portions of which may be determined to be of historic significance consistent with the intent of Congress;

36 CFR Ch. I (7–1–03 Edition)

• (2) Properties declared by the Secretary of the Interior to be of national significance and designated as National Historic Landmarks;

• (3) Nominations prepared under approved State Historic Preservation Programs, submitted by the State Historic Preservation Officer and approved by the NPS;

• (4) Nominations from any person or local government (only if such property is located in a State with no approved State Historic Preservation Program) approved by the NPS and;

• (5) Nominations of Federal properties prepared by Federal agencies, submitted by the Federal Preservation Officer and approved by NPS.

§ 60.2 Effects of listing under Federallaw.

The National Register is an authoritative guide to be used by Federal, State, and local governments, private groups and citizens to identify the Nation’s cultural resources and to indicate what properties should be considered for protection from destruction or impairment. Listing of private property on the National Register does not prohibit under Federal law or regulation any actions which may otherwise be taken by the property owner with respect to the property.

• (a) The National Register was designed to be and is administered as a planning tool. Federal agencies undertaking a project having an effect on a listed or eligible property must provide the Advisory Council on Historic Preservation a reasonable opportunity to comment pursuant to section 106 of the National Historic Preservation Act of 1966, as amended. The Council has adopted procedures concerning, inter alia, their commenting responsibility in 36 CFR part 800. Having complied with this procedural requirement the Federal agency may adopt any course of action it believes is appropriate. While the Advisory Council comments must be taken into account and integrated into the decisionmaking process, program decisions rest with the agency implementing the undertaking.

• (b) Listing in the National Register also makes property owners eligible to be considered for Federal grants-in-aid for historic preservation.

Grant Projects

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