Questions in bold. Answers in normal print. Quotations from Guidance or Q&A in italics.
{Revisions for Statewide Administrative Costs, Equipment Purchases, and Military Museums.}
Q: Are Military bases, or reservations, eligible to receive TE funding through State DOT agencies? (Wyoming DOT)
A: Yes, the State DOT may have a subgrant to a military base, military reservation, and/or Indian reservation provided the project is an eligible TE activity and the facility will be open to the general public.
Q: Are there rules or guidance as to what percentage of State available TE funds can be used for DOT selected TE projects (vs. a competitive statewide project selection)?
A: No, there are no rules or guidance. This is a State decision.
Q: Can TE funds be used for TE program administration? Can TE funds be used for consultants? Can TE funds be used for educational/training/outreach activities (i.e., training local sponsors on project/funding requirements)?
A: TE funds cannot be used for TE program administration, for consultants to help administer the State's program, or to conduct general TE training. See FHWA Policy on Indirect Costs. Consultants may be hired to help administer the State's TE program using State funds.
A State may charge indirect costs to TE projects if it has an approved indirect cost rate.
A State may be reimbursed for direct costs incurred on individual TE projects (including management and administration of the specific TE project). {These costs must be direct costs for the individual TE project. A State may not combine management and administrative costs for more than one or all TE projects as a statewide TE program administration project.}
Q: Can TE funds be used for projects/products that are not associated with one specific TE activity? For example, a promotional video on TE (used in the education/training/outreach for TE) or economic impact studies on the benefits TE projects bring to communities? (Pennsylvania DOT).
A: No, this is equivalent to TE administrative, research, and/or training costs.
Q: There are States are still operating under the "direct relationship" clause in ISTEA TE guidance (April 24, 1992 FHWA Memoranda) that a project must be related by function, proximity, or impact in addition to being one of the eligible activities. In Virginia, the FHWA division office is suggesting that in cases where the eligible TE activity is only supported by a proximity relationship to surface transportation, that if the project also supports tourism, then the project is eligible for TE funding. Thoughts... (Virginia FHWA)
A: The "direct relationship" concept was used by FHWA in its guidance before TEA-21.
TEA-21 added the phrase "relates to surface transportation" to the definition of TE activities in 23 U.S.C. 101(a)(35). This change requires that TE activities "relate to, rather than have a direct link to, surface transportation" (House Report 105-85, p.497). Senators Chafee (RI) and Warner (VA) reiterated this intent in a letter to Secretary Slater (Nov 24, 1998), asking FHWA to replace the "direct relationship" requirement with the broader requirement envisioned in TEA-21.
The TE Guidance of December 17, 1999 states: "The program management information replaces two guidance memorandums issued by the FHWA on April 24, 1992 (Transportation Enhancement Activities) and June 6, 1995 (Eligibility of Historic Preservation Work for Transportation Enhancement Funding)." The "Project Linkage" guidance states in part:
Previous guidance called for a direct link to surface transportation. That guidance is hereby repealed. Congress provided that TE activities must "relate to surface transportation." This makes clear that TE projects are to have a relationship to surface transportation. This is a more flexible standard than the past. The nature of a proposed TE project's relationship to surface transportation should be discussed in the project proposal. For example, where runoff from an existing highway contaminates an adjacent water resource and a transportation enhancement activity is proposed to mitigate the pollution caused by the run off a clear highway or transportation relationship exists. Another example might involve the acquisition of a scenic easement. The acquisition would be in connection with the preservation of a scenic vista related to travel along a specific route. [bold added for emphasis]
For more information, see www.fhwa.dot.gov/environment/te/1999guidance.htm#project and TE Q&A #2 (www.fhwa.dot.gov/environment/te/qa_general.htm#q2).
Q: When ISTEA was renewed as TEA-21, the word "surface" was added to the description of eligible projects. This word eliminated marine and aviation transportation projects from competition. With the renewal of TEA-21, has there been any consideration of dropping the word surface? (New Jersey DOT).
A: The TE Guidance defining "relates to surface transportation" (www.fhwa.dot.gov/environment/te/1999guidance.htm#surface), states:
Surface transportation means all elements of the intermodal transportation system, exclusive of aviation. For the purposes of TE eligibility, surface transportation includes water as surface transportation and includes as eligible activities related features such as canals, lighthouses, and docks or piers connecting to ferry operations, as long as the proposed enhancement otherwise meets the basic eligibility criteria.
SAFETEA does not propose any change to the definition of TE activities. FHWA is not aware of proposals to delete "surface" in the definition.
Q: Please provide more guidance/clarification to the eligibility requirements for "historic preservation" projects. For example, in North Carolina they make an effort show that the historic preservation project has a clear link to transportation. And yet, it seems that other States stretch this link. What is the official policy? (North Carolina DOT)
A: FHWA's guidance for the surface transportation relationship (see above) is intended to reflect the broader emphasis enacted in TEA-21 and give States discretion in determining the relationship for individual projects.
Q: Can TE funds be used to create a State recognized trail/bike/pedestrian design handbook? This would help streamline the engineering/design/review process and potentially move more projects to construction and completion. (Pennsylvania DOT).
A: Yes, to the extent the handbook is "provision of safety and educational activities for pedestrians and bicyclists".
Comment: Perhaps there needs to be a clearer distinction between projects that should already be in place and funded with 'regular' funds such as sidewalks and bus shelters and what would qualify these projects as a true enhancement that goes above and beyond normal expectations, i.e., when the sidewalk is part of a streetscape improvement project or the sidewalk is given 'special treatment' (brick or other pavers). (Colorado FHWA)
Response: Pedestrian and bicycle projects are eligible under all Federal-aid highway funding categories, including TE funds. TE funds may be used for any new pedestrian or bicycle facility unrelated to a larger highway project.
TE funds cannot be used in place of other Federal-aid highway funds for activities carried out as part of a larger highway project, such as normal mitigation required for NEPA compliance, normal landscaping, and replacing existing sidewalks because of a highway widening project.[1] TE funds may be used to replace existing sidewalks with enhanced surfaces or landscaping.
If a larger highway project includes new pedestrian or bicycle facilities, the facilities should be constructed with regular highway funds as part of the larger highway project. However, the State may use TE funds for a new pedestrian or bicycle facility. TE funds also may be used to provide enhanced surfaces or landscaping.
Q: Are pullouts eligible for funding? For example, a pullout for a historical marker for safety reasons? What portion would be eligible? If they put anything besides transportation information, do the Sponsors need to pay that? How strict should the State be? (Louisiana DOT)
A: The TE Guidance states (www.fhwa.dot.gov/environment/te/1999guidance.htm#scenic): Activities eligible under the National Scenic Byways Program are generally eligible under TE activities. Pullouts, overlooks, and interpretive signing along scenic byways or historic roads generally are eligible under the National Scenic Byways Program and as TE projects.
Q: Can the welcome center and tourist centers be moved to the Scenic Byway Program especially since it must be along a Scenic Byway to be eligible and a Scenic Byway Program does exist? Can a State decide not to fund a certain TE eligible activities that are eligible for funding from other programs? (Louisiana DOT).
A: See above. A State may have more restrictive guidelines or criteria than the Federal guidelines, including deciding not to use TE funds for welcome and tourist centers.
Q: Clarification/guidance on eligibility determinations for scenic acquisition projects where much of the property is not visible from the transportation facility, or part of the property would be used for active recreation purposes. Guidelines for making the determination and justification that only part of the property would be eligible for TE. (Colorado FHWA)
A: In 2002, the FHWA division office provided the following feedback and advice to VDOT and a project sponsor when advancing TE projects in a scenic and historic district:
The purpose of the application should be the preservation and protection of the landmark district, including buildings and cultural landscapes. This particular landmark district, as a whole, meets the eligibility requirements. The landmark district already has been designated scenic/ historic. Evidence of the landmark district contributing to the traveler's visual experience, enhancing the traveler's experience, and its intrinsic characteristics (relationships to surface transportation) can be easily obtained.
The purpose will be accomplished through direct purchase of property up for sale (along with open space easements in perpetuity) or the purchase of preservation easements on properties not up for sale within the landmark district. These purchases act as "phases" of the project.
The nonprofit organization should have a public cosponsor to assure that there is continued responsibility on the part of a public agency for the project.
Applications will be submitted annually and will identify properties to be purchased outright or on which to acquire easements. These properties can be those up for sale, coming up for sale, or known to be available for sale.
Properties intended for resale once acquired with TE funds are not eligible.
Properties that, as a whole, are not visible from the public roads are not eligible unless development on that property would harm the historic viewshed.
Q: Some State TE eligibility guidelines are more restrictive than Federal guidelines, i.e., in terms of using TE funds for land conservation. At least one State requires that a trail or road must exist on the land being conserved in order to use TE funding. (The Trust For Public Land)
A: States may impose eligibility restrictions that are more restrictive than FHWA's restrictions.
Q: Are plazas eligible under streetscaping? How big? (Louisiana DOT)
A: A plaza or elements of a plaza may be eligible under multiple TE categories, such as facilities for pedestrians and bicyclists, landscaping, or historic preservation. It is not possible to establish nationwide size limitations, because each plaza has unique site characteristics.
A: This depends on the project. The resulting project must be open to the public. Some eligible projects include:
Developing a pedestrian or bicycle facility along a known Underground Railroad corridor.
Acquisition of a historic site that was significant in the Underground Railroad (many people fled there, transferred from one guide to another there, etc.).
Providing kiosks with information about the Underground Railroad.
Rehabilitation of a historic facility related to the Underground Railroad.
Ineligible projects include:
Acquiring a corridor along a river simply because people walked along it, without an intent to allow the corridor to be open for public use. (Solution: put in a pedestrian facility.)
Rehabilitating a barn simply because a few people used it a few times.
Providing funding for a facility that will remain closed to the public.
Q: Can TE funds be used for the acquisition of historic battlefields?
A: Historic battlefields may be eligible for TE funds under multiple categories, including:
provision of facilities for pedestrians and bicycles,
acquisition of scenic easements and scenic or historic sites,
scenic or historic highway programs (including the provision of tourist and welcome center facilities),
landscaping and other scenic beautification,
historic preservation,
rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals),
preservation of abandoned railway corridors (including the conversion and use thereof for pedestrian or bicycle trails),
archaeological planning and research,
establishment of transportation museums.
There must be a surface transportation relationship. For example:
Q: Can TE funds be used for statewide inventories of historic roads, road resources, and road networks?
A: Yes, as part of a State's scenic and historic highway program.
Q: Establishment of transportation museums is a broad category and a lot is left to interpretation. Example, would a classic car museum qualify? (Louisiana DOT).
A: A classic car museum may qualify as a transportation museum provided the museum meets the museum guidelines at www.fhwa.dot.gov/environment/te/1999guidance.htm#estab. In particular:
Transportation Museums established using TE funds must meet the following definition of a museum. The facility must; (1) be a legally organized not-for-profit institution or part of a not-for-profit institution or government-entity; (2) be essentially educational in nature; (3) have a formally stated mission; (4) have one full-time paid professional staff member who has museum knowledge and experience and is delegated authority and allocated financial resources sufficient to operate the museum effectively; (5) present regularly scheduled programs and exhibits that use and interpret objects for the public according to accepted standards; (6) have a formal and appropriate program of documentation, care, and use of collections and /or tangible objects; and (7) have a formal and appropriate program of presentations and maintenance of exhibits.
{Q: Are Military Transportation Museums eligible?
A: The Transportation Enhancement (TE) Guidance for Transportation Museums states: "TE funds are not to be used to preserve aircraft or create an airport or air museum. Objects or structures related to aviation are not normally eligible for TE funds." TE Q&A #24 states:
24. Can TE funds be used to restore military transport vehicles/vessels or create military museums?
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).
Therefore:
The Guidance gives the following specifications for a transportation museum:
Transportation Museums established using TE funds must meet the following definition of a museum. The facility must; (1) be a legally organized not-for-profit institution or part of a not-for-profit institution or government-entity; (2) be essentially educational in nature; (3) have a formally stated mission; (4) have one full-time paid professional staff member who has museum knowledge and experience and is delegated authority and allocated financial resources sufficient to operate the museum effectively; (5) present regularly scheduled programs and exhibits that use and interpret objects for the public according to accepted standards; (6) have a formal and appropriate program of documentation, care, and use of collections and /or tangible objects; and (7) have a formal and appropriate program of presentations and maintenance of exhibits.
Therefore:
A State may use TE funds for a museum on military surface transportation.
A military surface transportation museum may be located on or off a military base, provided it is open and easily accessible to the general public.
A military surface transportation museum may be operated by a legally organized not-for-profit entity or institution, or by a government entity, including the military.
Vehicles or other exhibits must not be in active military service.
TE funds are limited to the relative portion of the building, exhibit space, or exhibits related to surface transportation. For example, if a museum dedicates one fourth of its space to surface transportation, then TE funds may cover one fourth of the building construction costs. TE funds may be used for displays of military transport vehicles, or the military's role in road building. TE funds may not be used for displays of dress uniforms, living conditions, firearms, aircraft, or other items not related to surface transportation.}
Comment: More guidance/clarification is needed in regards to the use of TE funds for planning purposes (not statewide planning) rather than construction. The Q&As do not discuss this issue in depth. (Colorado FHWA)
Response: Project specific planning is eligible as part of the TE project costs for specific TE projects. General TE planning is not an eligible activity for TE funds, but may be eligible for metropolitan planning (PL) or statewide planning and research (SPR) funds.
Q: Is there some way to streamline the ROW acquisition process for Enhancement Projects? The basic problem is, for small projects like these, because the Sponsors must offer Fair Market Payment for purchase of the land, what is the incentive for landowners to donate? Lots of the Sponsors are small towns that are having difficulty coming up with the match requirements in addition to securing ROW, engineering fees, etc. It's just one more layer of bureaucracy. This is only in reference to sidewalks and/or bike paths. (Louisiana DOT)
A: There are ways to streamline TE projects. See
Acquisition of real property for TE projects is subject to the Uniform Act regarding acquisition procedures and relocation assistance. The ability to secure donations from property owners, rather than being paid fair market value, is left to the local project sponsor. Incentives, or any form of coercion to persuade donations from property owners is contrary to the Uniform Act and is not allowed. A local agency or qualified organization without the power of eminent domain is subject to the limited requirements set forth in 49 CFR 24.101(a)(2).
The State should advise the local project sponsors that donations of real property, funds, materials, or services provided by units of local government and private entities may be eligible for a credit toward the non-Federal share. To be eligible for a credit, the real property may not be part of a current transportation facility. 23 U.S.C. 323(c) provides for the allowance of a credit for donations of funds, materials, land, or services. The value of "other contributions" may be credited toward the non-Federal share of TE projects funded with TE funds. These include:
Such a credit may be allowed provided that appropriate documentation in support of the expenditures would be available for review as needed by the FHWA. Where the cost of these services is incurred prior to approval of the applicable TE project, only the value of expenses determined to be reasonable, in coordination with the FHWA division office, will be allowable toward the non-Federal share. In addition, if the costs incurred represent payment for consultant services, the credit will only be allowed if these consultant services have been secured in accordance with the requirements in 23 CFR 172.
Another alternative for the State to consider is allowing a limited number of TE projects to have 100 percent Federal funding, as provided under 23 U.S.C. 133(e)(5)(C). However, for a fiscal year, the ratio of Federal share to the non-Federal share for all TE funded projects must comply with the maximum Federal share provisions in 23 U.S.C. 120(b).
Q: Can structures rehabbed with TE funds be used for activities not consistent with the originally proposed use? We have a TE project (Macon Railroad Terminal) a 40,000 sq ft structure that was refurbished with TE funds. Now the sponsors want to lease out more than half the space for private sector uses (offices etc. to generate income for the City). We have advised the usual responses but would like more definitive discussion of this issue. What can they do and should we allow this type of use. I have advised them their best alternative would be to repay the TE funds then they could do more with FTA grant and use the facility any way they want. (Georgia FHWA)
[Related questions] Can the applicant use some of the income to pay for:
1. Maintenance of the private sector portion of the facility?
2. A property manager (private sector) to manage the facility for the applicant?
The TE Q&A #21 (www.fhwa.dot.gov/environment/te/qa_general.htm#q21) says:
Once a historic transportation building, structure, or facility is restored or rehabilitated can it be used for a contemporary use (non-transportation related) as long as the significant historic features are preserved and it remains open to the public on a not-for profit-basis?
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 nontransportation related activities and those not directly related to maintaining the historic structure, then TE funds cannot be used for that type of operating cost.
Paying for Maintenance: Revenue from the private sector portion must go toward maintaining and operating the private sector portion, and any excess should be used toward the public portion. However, TE funds must not be used to operate the private sector portion, or to perform routine maintenance (cleaning, painting, etc). However, since the portion of the building used by the private sector is probably important for the structural and historical integrity of the building, rehabilitation to maintain structural and historic integrity should still be eligible for TE funds.
Paying for a Property Manager: Perhaps the method to manage the building is split funding: the State may use TE funds to operate the public section open to the public for surface transportation purposes; this includes paying a private sector manager to manage the facility. However, the private sector would have to pay the share of time/salary/energy allocable to manage and operate the private sector portion.
Some TE projects, such as restored historic facilities, may have parts of the space appropriately used for activities which are leased for a fee. Examples are restaurants and leased offices in a portion of the historic building that would not necessarily be open to the public. 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 "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.
Q: Can the purchase of equipment used for TE projects be funded with TE? Louisiana is in the process of funding the establishment of a Statewide Wildflower Program with Enhancement monies. Would equipment purchase (tractors, laboratory equipment, vehicle for travel around State, etc.) be eligible for Enhancement funding? We are putting this under the landscaping category with the concurrence of our local FHWA because this will ultimately lead to viable Louisiana wildflower seeds being available for seeding our highway rights-of-way, but we need some guidance on how far to stretch it. There are other partners in this project with us. (Louisiana DOT)
A: TE funds may be used to purchase or lease equipment to accomplish an activity eligible for TE funding if the equipment is necessary for performance of the TE funded project, and provided the equipment is retained for use for TE eligible activities. Equipment used for activities not eligible for TE funding is not eligible. For example, the State may purchase a seed spreader for a State TE wildflower landscaping program (equipment used for a TE eligible activity). However, a State may not use TE funds to purchase a car for travel around the State to inspect TE projects (since TE program administration costs are not eligible). Before purchasing equipment, the State should evaluate whether or not using rental equipment or using a contractor would be more cost effective. Acquisition of equipment (i.e, useful life of 1 year or more and an initial acquisition cost of $5,000 or more) is a capital expense that requires prior approval of the FHWA, unless such prior approval is waived by the division office.
Equipment to Undertake a TE Project: A State may purchase or lease equipment needed to construct a TE project or to undertake a TE project. The provisions for equipment are found in 49 CFR 18.32. Purchased equipment must be retained for use in constructing or undertaking other TE eligible activities. After the equipment has served its useful life, the State may dispose of the equipment according to 49 CFR 18.32(b).
Equipment to Maintain a TE Project: In general, FHWA does not pay for routine maintenance, but FHWA may pay for preventative maintenance (23 U.S.C. 116). The TE Guidance states:
TE funds are generally not to be used for the operation and/or long term maintenance of eligible TE activities. The exception to this provision is the TE activity category defined in legislation as Rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals). A State may choose to participate in the operations of such facilities. Consistent with Section 101 of Title 23, the term operating costs is defined to mean all reasonable costs for the facility to function. These costs may include administrative costs, costs of utilities and rent, and other costs associated with the continuous operations of the facility. The determination of what constitutes reasonable costs should be by agreement between the State and the FHWA division office.
Under the provision of 23 U.S.C. 116, a State must maintain a project constructed with Federal-aid funds. Because of this provision, we encourage States to develop a plan of maintenance [or an agreement] for TE eligible activities. Strategies for the upkeep and maintenance of the public investment should be considered at the time of the TE proposal.
TE funds may be used to purchase or lease equipment for preventative maintenance. TE funds cannot be used for routine maintenance, therefore purchase or lease of equipment for routine maintenance is not eligible, with the exception of "rehabilitation and operation of historic transportation buildings, structures, or facilities". For example:
TE funds may be used to purchase or lease equipment to prevent slope erosion along highways as part of an overall TE project for mitigation due to highway runoff. TE funds may not be used to purchase or lease a lawn mower or a truck to move lawn mowers.
TE funds may be used for maintenance equipment for a historic railroad terminal, but not for a new scenic byway welcome center.}
Q: Related to above, projects where all project components will not be used solely for TE purposes. For example, purchase of audio-visual equipment for a transportation/natural history museum. The equipment will be shared by the museum for two or more purposes and only 1/4 of the museum is devoted to transportation. Another example, a bike path corridor planning project is funded with TE and include in the project is the purpose/need for computer equipment that would be used by the agency for other purposes after the TE project is finished. (Colorado FHWA)
A: The cost share for equipment purchases for TE projects should be limited to the pro rata share of the eligible activities. For the example above, one fourth of the AV equipment cost would be eligible for TE funds. TE funds are not an excuse to purchase computer equipment. The computer equipment cost is limited to the share of the burden incurred by the path project. If the bike project is expected to be one fourth of the work done on the computer, then the TE funds can cover one fourth of the computer cost.
Q: Can user fees be charged on TE funded trails? Other TE funded projects?
A: Yes. FHWA responded to this question in a letter to the Wisconsin Department of Natural Resources on April 26, 2002, and to Senator Feingold on November 5, 2002. In the Feingold letter, FHWA stated:
This review of our governing legislation (Title 23, United States Code) indicated that a State may charge a user fee or toll on a bicycle/pedestrian facility built with Federal-aid highway funds unless it is constructed on the right-of-way of a Federal-aid highway. We reached this conclusion based on the statutory definition of "highway." Section 301 of Title 23, United States Code, provides that "all highways constructed" with Federal-aid funds "shall be free from tolls of all kinds." In short, bicycle and pedestrian pathways on the right-of-way of a federally aided highway are subject to the same constraints on user fees and tolls that apply to the highway. However, a user fee may be charged on bicycle and pedestrian walkways built on their own right-of-way with transportation enhancement or other Federal-aid highways funds.
There is guidance for museum fees (see www.fhwa.dot.gov/environment/te/1999guidance.htm#estab): If entrance fees are charged for the museum a portion of the fee should be provided for the long term maintenance and operation of the facility.
There is no specific TE guidance on trail user fees, but the Recreational Trails Program (RTP) has relevant guidance:
The basis for charging user fees should be determined and specified in the project agreement between the State and the subgrantee. The income should be used to support the project or other projects eligible for assistance under the TE. States and project sponsors should consider:
The facility must be open to the public, not only club members or municipal residents.
The fee must be "reasonable" which would be determined in negotiation between the State and the project sponsor. The fee should not be set so high as to restrict general public access.
It may be appropriate for club members to receive a discount, since a portion of their membership may be counted toward use of the area, but the price differential should not be set so high as to restrict general public access.
Charging a fee to use a recreation area may eliminate landowner liability protection offered under State Recreational Use Statutes.
Comment: Provide additional distinction between Transportation Enhancements and Transit Enhancements and eligibility differences. (Colorado FHWA)
Response: The FHWA TE activities are 12 activities listed in 23 U.S.C. 101(a)(35). The Transit Enhancement activities are listed in 49 U.S.C. 5302(a)(15). See the following comparisons. See www.fhwa.dot.gov/environment/te/te_compared.htm for details on transit enhancements.
Transportation Enhancements: 23 U.S.C. 101(a)(35)
Transportation Enhancement Activities. The term "transportation enhancement activities" means, with respect to any project or the area to be served by the project, any of the following activities if such activity relates to surface transportation:
[Numbers are consistent with FHWA's interpretation of Congressional intent, but not codified.]
Transit Enhancements: 49 U.S.C. 5302(a)(15)
Transit Enhancement. The term "transit enhancement" means, with respect to any project or an area to be served by a project, projects that are designed to enhance mass transportation service or use and that are physically or functionally related to transit facilities. Eligible projects are:
[Letters are in codified in 49 U.S.C. 5302(a)(15).]
| Transportation Enhancements 23 U.S.C 101(a)(35) |
Transit Enhancements 49 U.S.C. 5302(a)(15) |
|---|---|
| Funding: 10 percent of Surface Transportation Funds and 10 percent of Minimum Guarantee and Revenue Aligned Budget Authority funds apportioned through STP (23 U.S.C. 133(d)(2)). | Funding: 1 percent of funds apportioned to urbanized areas with a population of at least 200,000 (49 U.S.C. 5307(k)). |
| Definition: The term "transportation enhancement activities" means, with respect to any project or the area to be served by the project, any of the following activities if such activity relates to surface transportation. | Definition: The term "transit enhancement" means, with respect to any project or an area to be served by a project, projects that are designed to enhance mass transportation service or use and that are physically or functionally related to transit facilities. |
| Provision of facilities for pedestrians and bicycles | *Pedestrian access and walkways *Bicycle access, including bicycle storage facilities and installing equipment for transporting bicycles on mass transportation vehicles *Enhanced access for persons with disabilities to mass transportation [see also below] |
| Provision of safety and educational activities for pedestrians and bicyclists | |
| Acquisition of scenic easements and scenic or historic sites | |
| Scenic or historic highway programs (including the provision of tourist and welcome center facilities). | |
| Landscaping and other scenic beautification | Landscaping and other scenic beautification, including tables, benches, trash receptacles, and street lights |
| Historic preservation | [See next item] |
| Rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals), | Historic preservation, rehabilitation, and operation of historic mass transportation buildings, structures, and facilities (including historic bus and railroad facilities) |
| Preservation of abandoned railway corridors (including the conversion and use thereof for pedestrian or bicycle trails | |
| Control and removal of outdoor advertising | |
| Archaeological planning and research | |
| Environmental mitigation to address water pollution due to highway runoff or reduce vehicle-caused wildlife mortality while maintaining habitat connectivity | |
| Establishment of transportation museums | |
| Bus shelters | |
| Public art | |
| Transit connections to parks within the recipient's transit service area | |
| Signage | |
| Enhanced access for persons with disabilities to mass transportation [see also above] |
Recommendations/guidance requested on utilization of performance-based criteria as a factor in determining the distribution of future TE funds. In essence, should underachievers be considered equally with achievers and overachievers? We (New Hampshire) have had numerous instances of program funds being awarded to local governments and the locals dropping the project, or deferring the project for lengthy periods of time. Other communities have plans on-the-shelf, and are ready to advertise and construct immediately upon receipt of the funds. [For the sake of the argument, assume all environmental and public involvement issues are resolved.] In between, are the communities that go through the normal design phase before advertising. If a community has a proven track record of ambivalence or dallying when it comes to the use of available funds, shouldn't they be given less consideration in the awarding of future program funds? How many States use this past performance criterion in their programs? How is it working? Does it penalize smaller and/or poorer communities that do not have the staffing or experience in program administration that larger, richer communities do? (New Hampshire FHWA)
Would like there to be more discussion (perhaps develop a document) on good/best practices related to the timely obligation of TE funds. Many States would like to improve upon their TE fund obligation rates. Are any States considering or using "design / build" procedures for any of their Federal-aid TE projects, e.g., bike/ped projects or historic preservation projects, etc? What are the pros/cons/opportunities/obstacles? Obviously, many of TE projects are relatively small in scope and dollar amount in comparison to our more typical road and bridge transportation projects. It would seem that a $1-2 million dollar TE project for a bike/recreation trail would lend itself rather well to our design/build procedures. These projects are of relatively small scale and one would think that there would be qualified firms that could do both phase II plans and the construction for such projects. If design/build could be employed by States on these types of TE projects, perhaps the States could obligate TE funds in a more timely and efficient fashion. (Illinois FHWA)
What public access should/needs to be provided if the project is funded with TE, i.e., scenic acquisition? What about parts of the property that are environmentally or archaeologically sensitive? Also, if a scenic easement is acquired how are existing uses, i.e., ranching protected while providing public access? What about other future uses that the landowner still may be able to pursue on the property in accordance with the easement language, especially if the uses are intended to be income generating? (Colorado FHWA)
We are having a conflict here in our office regarding landscaping and street trees. Our safety engineer is telling the State that landscaping and street trees are simply not allowed with Federal funds due to safety concerns. I have discussed the issues regarding current urban planning, and the use of street trees and landscaping to provide a perceived barrier for pedestrians, etc., and the fact that these are generally low speed areas, and areas that have either on-street parking, or wide shoulders for bike lanes. The feeling of the safety engineer is that trees and landscaping provide no real pedestrian safety, but they are a safety hazard for drivers who run off the road, they should be eliminated from all designs. So, what is happening, local agencies are submitting proposals for TE projects that include landscaping and street trees, and the State is approving them, but when it comes to our office for approval, the safety engineer is denying the design approval, and forcing them to take the landscaping and street trees out of the design. This appears to be a serious conflict between planning, TE eligibility, and design standards (from the design guidance issued by FHWA). Could someone clear this issue up for us here? I'm not an engineer, but I know we did a lot of this in Washington State, with real success... not so here. What's the difference? We are all using the same design guidance... is someone just taking this issue a step too far? Or are there REAL issues with respect to using TE funds or Federal funds in general for landscaping and street trees in urban areas? (Tennessee FHWA)
What is the Federal/State responsibility regarding the forgiveness of Federal funds spent on projects that are subsequently dropped? In our experience (New Hampshire), the vast majority of projects that are aborted by the local community after funds are allocated to them occurs before any Federal funds are expended. In those instances where Federal project funds have been expended, and the local government decide to drop the project; the issue becomes one of reimbursement for funds expended. Generally, if a project is dropped as the result of unanticipated environmental consequences, negative public response, or disproportionate unanticipated costs, funds theretofore expended can be forgiven. If, however, a community decides to arbitrarily drop a project as the result of revised political agendas, or the reshuffling of civic priorities, the issue of forgiveness is much more problematic. How are the States handling these issues? (New Hampshire FHWA)
[1] 23 U.S.C. 109(m) states: Protection of Nonmotorized Transportation Traffic. The Secretary shall not approve any project or take any regulatory action under this title that will result in the severance of an existing major route or have significant adverse impact on the safety for nonmotorized transportation traffic and light motorcycles unless such project or regulatory action provides for a reasonable alternate route or such a route exists.
