Q 1. Commercial use of space in a TE project. I believe there was a question last year about the commercial use of space in a TE funded project. The answer was to the effect that there could not be commercial use in a TE funded project (unless it was a nonprofit commercial). We have had a couple situations come up where we have funded a facility where there was not a nonprofit available, we allowed a small commercial operation with the provision that the fair market value of the rental space went into maintaining the facility. Is this a correct interpretation? (John Haynes, California, CalTrans)
A 1. Yes. See www.fhwa.dot.gov/environment/te/qa_general.htm#q17 for additional guidance.
A 2. There are many local and site-specific variables to consider when calculating Soft Match, so there is no single Federal formula. However, these are some factors to consider:
Q 3. TE funds to expand paved shoulders. A local agency wants to improve County Road 203. It is a 2-lane rural road with a 35 MPH speed limit. Currently, there is an 11.5-foot lane width, with very limited paved shoulders. Can they use TE funds to fund part of the project which will include 12-foot lane widths, and 3-foot wide paved shoulders? They are trying to avoid ROW acquisition, which is the reason for 3-foot shoulders. (James Horn, Colorado DOT)
A 3. TE funds cannot be used for regular highway projects (see www.fhwa.dot.gov/environment/te/qa_general.htm#q6). TE funds may be used for bicycle lanes, including shoulders for nonmotorized transportation. While a 0.9 m (3 ft) shoulder is substandard for a normal bicycle lane, the AASHTO Bike Guide states that any shoulder is better than no shoulder. If this is a highway project, not a bicycle project, then the State cannot use TE funds for it. This project might be eligible for STP funds if the project is on a Federal-aid system (arterial, urban collector, or rural major collector). But, if this project is intended principally to be a bicycle project, then it is eligible.
Q 5. Defining "maintenance". We know that TE funds cannot be used for maintenance items, but how is maintenance defined in this program? We have an application that includes rehabilitation of a bicycle/pedestrian bridge, which includes bridge painting. We normally consider bridge painting as a maintenance activity. We would like some clarification. (Linda Bailiff, Ohio DOT)
A 5. See Q&A #35, Maintenance vs Major Reconstruction, at www.fhwa.dot.gov/environment/te/qa_general.htm#q35. Bridge painting might be a major rehabilitation project rather than routine maintenance if it involves removing toxics (lead, asbestos, etc.) or repairing structural defects (removing rust or rot before repainting). Note: FHWA updated Q&A #35 on July 11, 2005. See also FHWA's Memorandum on Preventative Maintenance Eligibility, October 8, 2004, at www.fhwa.dot.gov/preservation/100804.cfm.
Q 6. Connecting projects to surface transportation. What degree of connection to surface transportation is needed for historic preservation projects such as Indian mounds, and civil war battlefields? (Ronda Britt, Georgia DOT)
A 6. [See also Q&A 9.] It is not possible to draw a fixed line on the degree of relationship to surface transportation. In a letter to the USDOT (November 24, 1998), Senators Chafee (RI) and Warner (VA) stated:
"...a project is eligible if it 'relates to surface transportation.' This is a broader requirement, which recognizes the important role historic preservation plays in improving the visual experience of the traveler and the aesthetic features of our neighborhoods."
A State must evaluate each potential historic preservation project individually to determine how it relates to surface transportation. FHWA developed the Guiding Principles and Questions for Transportation Enhancement Activities (www.fhwa.dot.gov/environment/te/principles_pt1.htm) to help potential project sponsors, States, and FHWA divisions resolve project eligibility questions. The guiding principles clarify general parameters of eligibility. The guiding questions help assess how a proposed project meets the principles, and help assess some aspects of project viability. Specific guiding principles and questions for historic preservation are at www.fhwa.dot.gov/environment/te/principles_pt2.htm#tea6.
Should not "Tourism" be added as the 13th Eligibility Activity? Although not originally intended under ISTEA, it seems that the language in TEA-21 expanded the second basic consideration for eligibility. Instead of an activity needing to have a "direct relationship" with surface transportation, the activity, under TEA-21, had only to "relate to" surface transportation. Tourism's relationship to surface transportation is by proximity (not always) and impact (the traveling public is drawn to the tourist attraction). This increase in traffic has an impact on the transportation system.
Q & A #31 states, "Should State DOTs and project proponents work closely with State Tourism Agencies in the implementation of TE activities?" Does this not infer that tourism has a transportation relationship? TEA-21 also defined TE projects as "...advancing America's economic growth ..." which is what tourism does for the community, and State, in which it is located.
In recent years, there has been a strong effort to get battlefields recognized individually as an eligible TE activity. It would be more appropriate to recognize tourism. It might be wise to limit the eligibility of tourist attractions to those of a historic nature such as battlefields (Civil War), historic buildings (James Madison's Montpelier), historic districts (Waterford National Historic Landmark District), and museums (The Mariners' Museum).
A 7. The 12 TE categories are established in law. The Congress would have to amend the TE definition to add a 13th category. However, tourism easily may relate to surface transportation under several TE categories. Many TE projects benefit community development and tourism.
Tourism activities must relate to scenic or historic highway programs and/or to surface transportation museums. For example, Montpelier and Waterford are along designated Virginia byways. Projects using TE funds at these locations should enhance the byways.
A battlefield should be eligible under several TE categories if:
Museums are not eligible simply because they attract tourists. The museum must relate to surface transportation in the sense of being a museum about surface transportation: highways, railroads, transit, trails, and canals; the equipment used to construct them; and the vehicles that use them. Surface transportation does not include aviation or ocean transportation.
A 8. Universities (either public or private) may be TE project locations, provided the general public has open access to use the pedestrian and/or bicycle facilities. The facilities should connect the campus to the surrounding community. If the facilities are internal within the campus, then they should have convenient connections to pedestrian and bicycle facilities integrating the campus with the surrounding community.
Universities may be project sponsors. They must use cost principles from OMB Circular A-21 (https://www.whitehouse.gov/omb/circulars_a021_2004). [See related Q&A 4.]
Q 9. TE Category #1: Transportation vs Recreation. Transportation vs recreation activities can be a confusing issue especially when we see what other States are funding. For bicycle and pedestrian facilities we consider connectivity, access to businesses, schools and other buildings, and going from point A to point B. Can you clarify the fine line for these facilities regarding transportation vs. recreation? (Linda Bailiff, Ohio DOT)
A 9. There is a restriction in 23 U.S.C. 217(i) that a bicycle project must be principally for transportation, rather than recreation, purposes. However, the restriction is only for bicycle projects, not for pedestrian projects or multiple use trail projects.
A facility serves a transportation purpose when it is used to get people from Point A to Point B, and could likely substitute for motor vehicle trips. Transportation includes going from home to work, home to school, home to shopping, home to a social or recreational activity, work to shopping, school to shopping, one social or recreational activity to another social or recreational activity, etc. Recreation trips also may occur on the same facility.
A facility is a recreation facility when the primary purpose is to use the facility itself. For example, a backcountry hiking trail is a recreational facility usually not eligible for TE funds.
Relates to Surface Transportation. TE projects must relate to surface transportation, even if they are not principally for transportation. There are situations where a backcountry hiking trail may relate to surface transportation, and may be eligible for TE funds. For example, Virginia funded a bridge for the Appalachian Trail (AT) across the James River, using old railroad piers: this took hikers off of a highway bridge. Connecticut funded a section of the AT to provide an accessible link from a trailhead. However, it is not appropriate to use TE funds along a remote section of the AT that is not accessible.
Equestrian use may serve a transportation purpose. In some communities, people use horses (or horses and buggies) for routine transportation. States should consider the transportation value of equestrian use. States should not eliminate existing recreational equestrian use: in fact, if there is existing legal recreational equestrian use, the equestrian use must be accommodated, or there could be a Section 4(f) violation.
Rail-trails may use TE funds even if almost all the use will be recreational. A rail-trail relates to surface transportation because the corridor served a surface transportation purpose in the past. It does not matter if all current or future use is recreational.
Q 10. TE Category #1: Replacing pedestrian signal heads. Is the replacement of existing pedestrian signals with LED countdown signals at intersections eligible? The potential sponsor cites safety for pedestrians as a justification to replace the existing signals. [Don Keith: I could see some justification under pedestrian safety. This is a definite maybe.] (Kathleen McNeill, Illinois DOT)
A 10. Yes, replacing existing pedestrian signals with LED countdown signals is eligible as a pedestrian facility. Changing pedestrian signals may trigger a requirement for installing an Accessible Pedestrian Signal. See http://mutcd.fhwa.dot.gov/HTM/2003r1/part4/part4e.htm (scroll to Section 4E06, Accessible Pedestrian Signals).
Q 11. TE Category #1: Pedestrian and Bicycle Bridges. TE funds and STP Flexible funds may be used for bicycle and pedestrian bridges. However, bridges are expensive, TE funds are limited, and STP Flexible Funds are usually committed for priorities other than TE projects. If the pending transportation bill (to replace TEA-21) is adopted, are there any circumstances under which it might be permissible to use Bridge funds for a bicycle and pedestrian bridge on which motorized vehicles will not be allowed? (Douglas Meller, Hawaii DOT)
A 11. States already have the flexibility to use any STP funds for nonmotorized bridges. States also may use Bridge funds, subject to Bridge program requirements. The Administration's SAFETEA proposed to allow more flexibility in the Bridge program, including for historic bridge projects. We will not know the final status until Reauthorization is enacted.
Q 12. TE Category #1: Surfaces. In Tennessee, we do facilities for pedestrians and bicycles, those facilities must be hard surfaced, the question is can the facility be made like a boardwalk just for the purpose of looks, not because of wetland area? (Lisa Dunn, Tennessee DOT)
A 12. There is no Federal requirement for a hard surface on TE-funded trails. The guideline is for a firm and stable surface. A boardwalk easily can be firm and stable. See the Access Board's Outdoor Developed Areas Report at www.access-board.gov/outdoor/outdoor-rec-rpt.htm, especially the sections on Trail Technical Provisions (16.2), surface (16.2.1), and boardwalks (16.2.3). The primary concern with boardwalks is to minimize openings. There is also concern with slip resistance, especially if the surface gets mildew, lichens, moss, etc.
Q 13. TE Category #1: State inspection standards for bicycle and pedestrian projects. Presently, Louisiana is using the same standards for construction inspection for sidewalks and bike path projects that are required for interstate projects. Have any other States written construction inspection guidelines specifically for Enhancement Projects? If so, I would like to get a copy of the guidelines and have a contact for questions. (Valerie Horton, Louisiana DOT&D)
A 13. This is appropriate to request through the TE Listserv.
Q 14. TE Category #4: Visitor and Welcome Center furnishings and amenities. Under eligible activity #4, local agencies can build visitor/welcome centers, are there any furnishings or other amenities allowed when constructing the visitor/welcome center, and if so, what? (Lisa Dunn, Tennessee DOT)
A 14. A visitor or welcome center for a scenic or historic highway must have some level of furnishings and amenities to function. The State should determine what level of furnishings and amenities are necessary, and at what point they become superfluous. The National Scenic Byways Program guidance (www.bywaysonline.org/grants/guidance/category_4) is general: it covers broad goals rather than listing specific eligible items. Parking, restrooms, maintenance rooms, information desks, etc., are necessary. If the visitor or welcome center is for a particular jurisdiction or an area (as well as a scenic or historic highway), then TE eligibility would be limited to the portion of the facilities and furnishings associated with the scenic or historic highway program(s).
A 15. The TE guidance states: "the extent of real property interest needed for the protection of the public interest in the expenditure of TE funds is somewhat dependent on the nature and magnitude of the expenditure." (see www.fhwa.dot.gov/environment/te/guidance.htm#general, second bullet). While this statement refers to real property, States should use the same principle for TE facilities. Generally, various kinds of construction will be expected to have an economic or useful life: perhaps 50 to 100 years for a building foundation or bridge pier, maybe 15 to 20 years for a roof or concrete trail, 10 years for a wood deck or asphalt trail, etc. The economic or useful life will vary from State to State, and depend on weather conditions, insect damage, etc.
Note: the National Scenic Byways Program considers "useful life" to be 20 years. However, each State should develop its own timeline based on the investment in the project.
Q 16. TE Category #5: Public art as scenic beautification. Are murals on walls of pedestrian underpasses and/or retaining walls are eligible for TE funding? What are the conditions or limitations? As I interpret our TE guidelines, this type of project might qualify under "landscaping or other scenic beautification." I know that this might be considered somewhat of a "stretch", however, if it could be demonstrated that the murals would improve the aesthetics of the transportation facilities, then I'd suggest we'd have a beautification end result. If the locals could integrate safety and/or community pride messages within the art murals, then we'd have a double bonus benefit. (Kathleen McNeill, Illinois DOT)
A 16. As you note, landscaping or other scenic beautification is eligible. Many places already have funded murals on highway underpasses, sound walls, and other locations. The murals have been effective to reduce graffiti, and can be a wise investment of funds to reduce highway maintenance costs. Please make sure that murals are unlikely to distract highway drivers: we don't want drivers to suddenly slow down to view murals, and cause highway crashes.
Q 17. TE Category #5: Artistic form liners. Are items such as form liners for concrete on either bridges or sidewalks eligible? The form liners would be for an artistic concrete finish on either the sides of bridges or on sidewalks. The different concrete finishes could be exposed aggregate, colored concrete, or inlaid mosaic tiles. (Kathleen McNeill, Illinois DOT)
A 17. The extra cost for an enhanced design above the cost of a conventional design is eligible for TE funds. However, a context sensitive design solution probably would be eligible using conventional program construction funds if the project is on a Federal-aid system (arterial, urban collector, or rural major collector).
Q 18. TE Category #5: Irrigation system. Would an irrigation system for landscaping and hanging planters be eligible? The irrigation system for the hanging planters will be routed to the baskets but it will be integrated into the poles. (Kathleen McNeill, Illinois DOT)
A 18. Yes, an irrigation system is allowed if part of an approved landscaping project using TE funds. However, is this a best use of TE funds? TE projects should be environmentally sustainable and strive for minimal maintenance requirements. If a project requires irrigation, then perhaps it is not suitable for the local environment.
Q 19. TE Category #5: Ornamental signs. Is ornamental signage for traffic signs eligible or even acceptable? The information on the sign will follow MUTCD standards but the potential sponsor would like the outside of the signs and bases to be ornamental. [Don Keith: Think this is a "stretch" and not an eligible use of TE funds under the beautification category. Don't think we want to sanction ornamental signage which could be distractive to the primary purposes of official signs.] (Kathleen McNeill, Illinois DOT)
A 19. Signs used as traffic control devices are controlled by the Manual on Uniform Traffic Control Devices (MUTCD: http://mutcd.fhwa.dot.gov/). The MUTCD places high value on traffic safety. It promotes standardization and uniformity to make sure signs are unambiguous. Traffic control signs and sign supports must conform to the MUTCD. Ornamental bases, posts, frames, borders, or other structural elements must not compromise the safety of pedestrians, bicyclists, or motorists. In particular, see sections 1A.01 (Purpose of Traffic Control Devices), 1A.03 (Design of Traffic Control Devices), 2A.06 (Design of Signs), 2A.15 (Sign Borders), and 2A.21 (Posts and Mountings). See also Tourist Oriented Directional Signs (Section 2G) and Recreational and Cultural Area Interest Signs (Section 2H).
In discussion with FHWA's Office of Operations, a sign frame on a traffic control devices would be considered a border that must comply with the MUTCD. Therefore, a traffic control device cannot have a supplementary ornamental frame around it.
If a community chooses to install ornamental signs, and complies with the MUTCD, the project should be part of a larger, approved TE project.
A 20. This has two possible answers, depending on State law.
1. From the Federal viewpoint: TE funds may be used for landscaping and scenic beautification. Because moving utility lines enhances the transportation landscape, TE funds may be used to relocate utility lines, except as noted in part 2 below!!!
2. However, Federal law and regulation (23 U.S.C. 123, Relocation of utility facilities, and 23 CFR 645, Utilities) recognize that some States, by State law or policy, prohibit using public funds to relocate utilities. In these States, it is illegal to use TE funds to relocate utilities.
THEREFORE: it depends on your State law whether or not you allow TE funds to be used to move utilities. From the Federal viewpoint, a State may use TE funds to relocate utilities. But each State must follow its own State law.
Q 21. TE Category #11: Fish Culverts. The State DOT has made a request to use TE funds to replace one or two perched culverts per year on selected streams with a threatened and endangered (T&E) minnow. The culverts would be replaced or repaired as a result of conservation measures recommended by Fish & Wildlife Service in the Section 7 Programmatic Biological Opinion. As the projects would not be undertaken for any other reason than to restore fish passage for the T&E species, would this be an eligible TE expense? (From Ginger Massie, South Dakota FHWA)
A 21. Q&A #22 addresses this: www.fhwa.dot.gov/environment/te/qa_general.htm#q22.
22. Can fish passages qualify for TE funds even though there is no direct traffic-caused fish mortality? The need for the traffic to cross the stream causes the need for a structure at the stream.
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.
Coordination with MPOs and RPOs for project selection and management
I would very much like to know how other States use their MPOs and RPOs in determining what projects to fund and in managing projects. North Carolina is considering taking more advantage of these organizations and we would like to know how other States do this. (From Ed Davis, North Carolina DOT)
This is appropriate for the TE Listserv.