This Stewardship and Oversight Plan outlines the roles and responsibilities of both the Federal Highway Administration (FHWA) and the Tennessee Department of Environment and Conservation (TDEC) in the accomplishment of oversight and administration of the Recreational Trails Program, an assistance program of the FHWA.
The purpose of the Plan is to provide guidance in clarifying actions, preventing misinterpretations, and avoiding time delays. The Stewardship and Oversight Plan is intended to be a living document that can be modified when needed to incorporate additional legislation, additional processes, or other changes to improve program and project delivery in the State of Tennessee. The Stewardship and Oversight Plan will be reviewed approximately once every two years, and upon enactment of a transportation authorization bill, by TDEC and FHWA to determine if any changes need to be made.
While TDEC can assume the responsibility for FHWA in many Title 23 USC actions, some Title 23 USC requirements remain FHWA responsibilities. These program elements include, but are not limited to:
2. Delegation of Authority to Local Agencies
The TDEC may, pursuant to 23 CFR §1.11 and §635.105, delegate certain Federal-aid project authorities to a well-qualified and suitably equipped local public agency. The TDEC is responsible for ensuring that appropriate procedures and guidelines are in place to facilitate the compliance of local public agency administered Federal-aid projects. FHWA will review and approve these practices and procedures for Federal-aid projects. The TDEC will determine if the local agency is well qualified and adequately staffed to administer projects before delegation of any activities. The TDEC will review the local agency’s ability to administer Federal-aid projects or specific activities on a case-by-case basis, and the extent of delegation will be dependent on their current staffing level and experience, and past performance. An Agency Agreement will be executed between TDEC and the local agency to outline the responsibilities of both TDEC and the local agency.
The TDEC retains responsibility under Federal law and regulations for all delegated activities. The TDEC will have written procedures established for the local agency that provide the necessary processes, approvals, oversight, and review that ensures the delegated projects receive adequate supervision and inspection, and are completed in conformance with approved plans and specifications and applicable federal requirements. While TDEC will offer any training, advice, or other assistance as may be needed by a local agency to aid it in successfully completing its Federal-aid project, it is understood that the project is implemented by the local agency, with TDEC oversight. As such, if the local agency is not following prescribed requirements, TDEC’s recourse would be, in consultation with FHWA, to remove Federal-aid funds from the project. FHWA will approve all TDEC processes, training materials, and any other activity that uses Recreational Trails Program funds.
The following program elements will not be delegated to local agencies:
3. Overview of the Recreational Trails Program (From the FHWA web site, FHWA guidance and TDEC guidance)
The Recreational Trails Program (RTP) provides funds to the States to develop and maintain recreational trails and trail-related facilities for both nonmotorized and motorized recreational trail uses. Examples of trail uses include hiking, bicycling, in-line skating, equestrian use, cross-country skiing, snowmobiling, off-road motorcycling, all-terrain vehicle riding, four-wheel driving, or using other off-road motorized vehicles.
The RTP is an assistance program of the U.S. Department of Transportation's Federal Highway Administration (FHWA). Each State administers its own program, usually through a State resource or park agency. In Tennessee, the Tennessee Department of Environment and Conservation, Recreation Educational Services Division administers the program, and has developed procedures to solicit and select projects for funding. TDEC also has a State Recreational Trail Advisory Committee, the Commissioner’s Council on Greenways and Trails, to assist with the program.
Recreational Trails Program funds may be used for:
Types of trail projects that are eligible for funding include:
FHWA encourages States to enter into contracts and cooperative agreements with qualified youth conservation or service corps.
States must use 30 percent of their funds for motorized trail uses, 30 percent for nonmotorized trail uses, and 40 percent for diverse trail uses. Diverse motorized projects (such as snowmobile and motorcycle) or diverse nonmotorized projects (such as pedestrian and equestrian) may satisfy two of these categories at the same time. States are encouraged to consider projects that benefit both motorized and nonmotorized users, such as common trailhead facilities. Tennessee gives credit in their selection criteria to projects that benefit multiple trail uses.
Recreational Trails Program funds may not be used for:
These funds are intended for recreational trails; they may not be used to improve roads for general passenger vehicle use or to provide shoulders or sidewalks along roads unless the shoulders or sidewalks are necessary to complete a trail link.
A project proposal solely for trail planning would not be eligible (except a State may use its administrative funds for statewide trail planning). However, some project development costs may be allowable if they are a relatively small part of a particular trail maintenance, facility development, or construction project. States may allow some project development costs to be credited toward the non-Federal share.
Tennessee makes grants to municipal, county, State, and Federal government agencies. Tennessee also makes grants to private organizations that have 501(c)(3) status, but these projects must take place on publicly held land.
In Tennessee, the governor has appointed TDEC-RES to be the agency responsible for administering apportionments under the Recreational Trails Program. TDEC is also responsible for assuring that all Federal-aid projects with RTP funds administered by local agencies comply with all Federal and State requirements (23 USC §206(c)).
Some funds for motorized trails are credited to the Tennessee Wildlife Resources Agency (TWRA). This agency uses the funds to develop motorized trails and to administer and enforce the provisions of the Tennessee Off-Highway Vehicle Act. A 2010 Memorandum of Agreement (MOA) between TWRA and TDEC For the Operation of an Off-Highway Vehicle Grant Program establishes an amount of $225,000 of RTP funds to be awarded to TWRA in FY 2011 - 2012, with that amount increasing in subsequent years based on the average consumer price index, but not to exceed 75% of the total motorized funds received from the RTP. If TWRA desires to receive additional funds over the limits set in the MOA, they may apply for and be awarded grants in addition to the maximum amounts.
4. Regulations and Guidance
Note that the provisions of the Davis-Bacon Act, rules on the procurement of professional services, and the convict labor provisions of 23 USC §114 are only applicable on projects that are within the right-of-way of a Federal-aid highway, and not to non-highway projects or to projects outside of a Federal-aid highway. A Federal-aid highway is defined as a highway on the Federal-aid highway system (the National Highway System (NHS) and interstates) and all other public roads not classified as local roads or rural minor collectors.
5. Required Contract Provisions
For projects to be constructed within the Federal-aid right-of-way, all associated contracts will include the Federal Highway Administration’s Form FHWA-1273, which lists contract provisions that are required to be included in all Federal-aid highway contracts. For projects to be constructed outside of the Federal-aid right-of-way, the following provisions from the Form FHWA-1273 are applicable to projects funded under the Recreational Trails Program, and shall be included in all construction contracts:
6. Other Federal Requirements
These Federal requirements are in addition to those listed on Form FHWA-1273:
7. Changes under MAP-21
The Moving Ahead for Progress in the 21st Century Act (MAP-21) was enacted on October 1, 2012. Funding surface transportation programs at over $105 billion over Fiscal Years 2013 and 2014, MAP-21 is the first long-term highway authorization enacted since 2005. Funding for the RTP will be a set-aside from the Transportation Alternatives Program for those States that choose not to opt out of the program. The Governor may opt out of the RTP by notifying FHWA not later than 30 days prior to apportionments being made in any fiscal year. Under MAP-21, States will receive funding equal to the amount apportioned to the State for the RTP in FY 2009. For Tennessee, the amount to be apportioned per year will be approximately $1,640,613. Other than the amount of the apportionment, MAP-21 leaves the Recreational Trails Program unchanged.
8. Rescissions of Federal-aid Funds
Several Federal legislative acts have rescinded Federal-aid highway program funds. FHWA issues Notices to the States to comply with these acts (see www.fhwa.dot.gov/legsregs/directives/; go to the N4510 series). The Tennessee Department of Transportation (TDOT) is responsible for complying with these rescissions, which may affect the RTP. TDEC will coordinate rescissions of RTP funds with TDOT.
Section 2: Responsibilities
1. FHWA Responsibilities
The FHWA is ultimately accountable for all Federal-aid highway projects. The FHWA Tennessee Division will fulfill its stewardship role at a project level as follows:
The FHWA will manage and provide oversight of Tennessee’s Federal-Aid programs in various ways. Some of the methods used include:
Opt out Provision - On or about August 1st of each year, the FHWA will send a letter to the Commissioners of both TDOT and TDEC to inquire if the State desires to opt out of the RTP. If the State chooses to opt out, this agreement is no longer in effect.
2. TDEC Responsibilities
According to 23 USC §206(c)(1), the governor has designated the Tennessee Department of Environment and Conservation (TDEC) as the agency responsible for administering apportionments made to the State. The Recreation Educational Services (RES) division manages the grants for TDEC.
TDEC hereby advises FHWA that it wishes to assume project oversight responsibilities in accordance with the following:
For those projects that TDEC has agreed to assume oversight responsibility, TDEC will follow all applicable FHWA policies, regulations, Title 23, and non-Title 23 requirements as if FHWA were involved.
Section 3: Stewardship roles and responsibilities for specific program areas
1. State Advisory Committee
TDEC agrees to continue the State Recreational Trails Advisory Committee that represents both motorized and nonmotorized recreational trail users, and agrees to certify each year that the Committee shall meet not less often than once per fiscal year. The Tennessee RTP advisory committee is the TDEC Commissioner’s Council on Greenways and Trails (the Council). TDEC agrees to invite the FHWA program manager for the Recreational Trails Program to attend the meetings as an Ex-Officio member, and agrees to supply meeting information to the program manager by handouts, mail or electronically.
The major functions provided by the Council include setting goals and priorities for projects and providing direction and review for the RTP grant process.
2. Tennessee Department of Transportation Involvement
As with FHWA, TDEC agrees to invite a representative of the Tennessee Department of Transportation (TDOT) to be an Ex-Officio member on the Commissioner’s Council on Greenways and Trails and to supply that person with all Council information via handouts, mail or electronically. TDOT has received quarterly reports concerning greenway and trail activities and accomplishments. TDEC agrees to meet monthly with TDOT to discuss and resolve bicycle and pedestrian issues that impact greenways and trails.
3. Project Eligibility
TDEC determines project eligibility by referencing the most currently available Recreational Trails Program guidance provided by FHWA. TDEC uses this guidance in the creation of each grant cycle application. TDEC also references Title 23 United States Code (23 USC), Section 206 - Recreational Trails Program. FHWA has the final authority to make determinations of project eligibility, and will reject authorization of funds to any project it deems ineligible. On projects for which eligibility is unclear, TDEC agrees to collaborate early in the process with the FHWA RTP program manager to determine eligibility.
4. Diverse, Motorized, and Nonmotorized Minimum Requirements
For the apportionments made to a State for a fiscal year to carry out the RTP;
TDEC agrees to provide documentation to FHWA demonstrating that the 40-30-30 requirements are met or that the State has set aside, for future obligation, the amount of funds necessary to meet the requirements. This will be done every two years, with each new grant cycle.
5. State Recreational Plan
23 USC §206(d)(1)(B) notes that funds apportioned to a State to carry out the Recreational Trails Program shall be obligated for recreational trails and related projects that are identified in, or further a specific goal of, a recreational trail plan. TDEC agrees to develop and maintain this plan. Currently, this is the “Tennessee 2020: Vision for Parks, People & Landscapes”, which may be found on line at http://www.tn.gov/environment/recreation/plan/.
6. Project Applications
State, Federal, and local government agencies are eligible to apply for funding through the Recreational Trails Program. Private organizations may apply in partnership with a government agency. These partnerships must be official and in writing. Private applicants may be considered without a public partner if there are insufficient applications submitted within a specific category.
TDEC agrees to maintain the grant application for RTP funds on the TDEC - RES web site.
Once the applications are received by TDEC, a committee chooses the recipients by reviewing the applications received against an established criteria listed in the open project selection process.
7. Grant Contract
Once the grantees are chosen, they will contract with TDEC in order to receive the allocated grant funds. These contracts are developed by the RES Grants Administrator. Except for budget revisions, any change to any part of a grant requires a contract amendment.
In most cases, the grantee will have no more than three years from the approval date of the grant contract to complete the scope of a development project. Construction must begin within 180 days of the signing of the contract.
A mandatory workshop is required for all grant recipients.
8. Matching Funds Requirements
An RTP grant provides 80% of the total project cost, requiring a 20% matching share from the applicant. Eligible matching sources are as follows:
The RTP continues to allow other Federal program funds to provide the non-Federal share, and RTP funds may be used to match other Federal funds. There is a requirement that 5% of the project funds must come from a non-federal source. Only planning and environmental assessment costs incurred less than 18 months prior to project approval may be counted toward the non-Federal share. Other costs incurred prior to project approval may not be used as a match. The value of donations for a match is determined by the nature of the donation. If it is land, for example, it is determined by a fair market value land appraisal. If it is materials, the value is determined by the normal rate for the particular material in that area. If it is routine (non-professional) labor, it is valued at federal minimum wage. TDEC will specify to FHWA the source of the non-Federal matching funds on each RTP project. This will be shown on the obligating POFA document.
9. Environmental Process
In accordance with 23 USC §139, the FHWA is the lead federal agency in integrating the full range of environmental requirements under a single, unified process that results in effective and sound transportation decisions. These laws and regulations include NEPA and implementing regulations of the Council on Environmental Quality (CEQ) 40 CFR §1500 and FHWA 23 CFR §771; Section 4(f) of the Department of Transportation Act and implementing regulations (23 CFR §774); Section 106 of the National Historic Preservation Act and implementing regulations (36 CFR §800); Section 404 of the Clean Water Act; and Section 7 of the Endangered Species Act, as well as others. The Recreational Trails Program is legislatively exempt from Section 4(f) requirement.
For all projects that require an action be taken by FHWA, the Tennessee Division and TDEC will work together to ensure compliance with NEPA and other applicable laws. The level of involvement is commensurate with the level of the environmental impacts or project complexity and will depend on the project environmental documentation class.
Recreational Trails Program projects must document compliance with the National Environmental Policy Act (NEPA) and other Federal environmental laws and executive orders. Each project is reviewed individually to ensure it does not have a significant impact on the environment.
Environmental documentation for recreational trails projects is generally in the form of Categorical Exclusions (CE), and most often fits under 23 CFR §771.117(c)(3), construction of bicycle and pedestrian lanes, paths, and facilities. The actions described in this section normally do not require approval by FHWA.
Technical studies required to complete the CEs are submitted to TDEC by the grantees. After receipt of all applicable studies, TDEC then prepares the final environmental documentation. The CEs are stored in TDEC’s project files, and are subject to FHWA review at any time. FHWA has provided a standard template to be used for preparation of environmental documentation for the “c list” CEs. In addition, a random sampling of TDOT and TDEC CEs are reviewed once per year.
Many RTP projects are exempt from air quality conformity requirements under the Clean Air Act Amendments of 1990. New parking areas or motorized trails within air quality nonattainment or maintenance areas may be subject to the air quality conformity rule, and must be identified in a conforming transportation plan and Transportation Improvement Program. All projects in a PM 2.5 non-attainment or maintenance area must undergo a PM 2.5 hot-spot analysis, which includes an interagency consultation. TDEC coordinates this review with the TDOT environmental section.
Grantees generally choose consultants to prepare the required environmental documentation. TDEC requires that grantees use their own locally adopted consultant procurement process. If there is not a locally adopted procurement process, the State’s process must be used. Per state law, professional services do not have to be bid.
10. Public Input
TDEC requires the applicants to hold public input meetings as part of the grant application process. Public meetings are to be held as part of the schematic design process.
11. Project Authorization
The TDEC grant cycle occurs every other year, and TDEC agrees to forward a funding list to FHWA. Once the environmental process is completed and approved for projects on the funding list, TDEC will send an RTP obligation form (POFA) for project authorization to the FHWA Division Office. Authorization is completed by the Financial Team, and the project is entered into the Fiscal Management Information System (FMIS). Projects will not be advertised nor will force account work begin prior to FHWA project authorization.
12. Right-of-Way Issues
The majority of projects involving RTP funds do not require the acquisition of right-of-way. Most projects are on land that is already publicly owned, or are in easement situations.
TDEC agrees to ensure that for projects that do involve the Uniform Act, the procedures are being followed. TDEC agrees that a yellow book appraisal is required, and that a certified state appraiser reviews the appraisal. TDEC agrees to provide the landowner with written documentation stating that their property cannot be taken by condemnation and written documentation and that they can receive fair market value for the land to be acquired.
To protect property acquired or developed with RTP funds, the grantee will record the Notice of Limitation of Use (NLU) against the deed prior to requesting reimbursement. This protects the property for public outdoor recreation use. A 25 year commitment is required if the project is located on private lands that includes an easement or lease.
13. Grant Management and the use of Force Account
RTP projects not located within a public highway right-of-way, must use procurement procedures under 49 CFR §18.36. Procurement for an RTP project within a public highway right-of-way must use procedures under 23 CFR Parts 635 and 636, including projects that are administered by an agency other than the TDOT. Where Parts 635 and 636 mention State, State Transportation Department, or STD, this may be interpreted as meaning the State agency administering the RTP. TDEC will review and approve all force account work.
14. Design Issues
Design standards for most projects conform to the agency specifications for the specific type of trail development or maintenance project being undertaken. Agencies with design standards include the U.S. Forest Service, National Park Service, Tennessee State Parks and the Tennessee Division of Forestry. TDOT bicycle and pedestrian trail standards are used for greenway trails. The TDOT Bicycle Path and Walking Path Standards is a one-page document that only specifies pavement thicknesses and path widths. FHWA refers to several manuals and guides at www.fhwa.dot.gov/environment/recreational_trails/guidance/manuals.cfm.
RES also references design guidelines developed by other organizations such as equestrian guidelines from Clemson University, the International Mountain Bicycling Association (IMBA), Appalachian Trail Conservancy (ATC), and the Student Conservation Association (SCA) when those types of trail projects are developed. TDEC also refers applicants to their “Pathways to Trail Building” booklet for design ideas and techniques.
All designs are submitted to TDEC for approval. Prior to beginning construction, there is a preconstruction meeting between the grant recipient and the principal Parks and Recreation Technical Assistance Service (PARTAS) consultant for the project. Design and construction issues are discussed at this meeting. Progress inspections are performed throughout the process. If any changes are made to the design, a request for a project scope change has to be submitted and approved. No final reimbursement or closeout will occur until the project passes a final inspection conducted by the principal PARTAS consultant.
15. Trail Accessibility
RES stipulates that all grantees have their facilities comply with Americans with Disabilities Act (ADA) standards and specifications. If non-compliance is found through project inspections, the grantee is contacted and required to bring the item in question into compliance. Some trails, particularly backcountry trails, are not possible to construct to ADA compliance. TDEC agrees to seek opportunities to construct trails that can be used by the disabled, and agrees that barriers should not be erected.
TDEC includes representative ADA specification drawings for restrooms and trailhead support facilities in the grant application manual. TDEC references the Department of Justice - Americans with Disabilities Act Accessibility Guidelines (DOJ - ADAAG) specifications when questions concerning accessibility are asked. A section on ADA accessible trails is included in TDEC’s “Pathways to Trail Building”.
FHWA recognizes the need for the transportation system to be accessible to all users, and has issued a memorandum entitled “Clarification of FHWA’s Oversight Role in Accessibility”, located at www.fhwa.dot.gov/civilrights/memos/ada_memo_clarificationi.cfm.
The grant applicant requests all environmental clearances and permits as part of the application process. Permits are not often required; however, when they are, the project cannot proceed until they are acquired.
17. Construction Monitoring and Inspection
TDEC reviews the contracts, gives written concurrence on the contracts and concurs in the award of the projects.
Project inspections are performed by the PARTAS consultant. All projects receive project inspections. The consultant prepares written inspection reports, and these reports are included in the project file. Types and frequency of inspections are as follows:
Upon completion of the project, the grantee submits a Project Completion Certification Form (PCC), which triggers the final inspection.
A computer reminder alerts the RES staff that the 5-year inspections are due, and an arrangement is made for the inspections to be carried out.
18. Other Construction Issues
Materials are discussed at the pre-design conference. TDEC uses the latest requirements in the selection of materials for trails projects. TDEC also reviews the materials selection when they develop the grant contract. Also, the grantee’s contract states that the grantee shall comply with the applicable Federal statutes, including the Buy America provision.
It is uncommon for an RTP project to be in a Federal-aid highway right-of-way, but Davis Bacon Act rates will be checked when this occurs.
Recreational trail projects are closed out in accordance with 49 CFR §18.50 and §19.70 and the Tennessee Division’s “Procedures for Project Closeout” (P-27).
FHWA encourages States to use the Youth Conservation Corps program to assist with construction of projects.
19. Civil Rights
TDOT is responsible for the State’s oversight of the Disadvantaged Business Enterprise (DBE) program for all Federal-aid transportation funds received in the State. There is no need for special DBE compliance under the RTP as a separate program. TDEC places an emphasis on contacting and contracting with DBEs at the grant workshops and in the grant manual. Small business participation is also an item of discussion in the pre-design conference.
The RTP is a small program, and its DBE numbers would likely be quite small as compared to the overall TDOT budget. Generally on RTP projects, there is only one contractor, with no sub-contractors, or the project is constructed with local city or county employees by force account.
20. Financial Issues
Under 23 USC §118(b)(2), the “period of availability” for obligation of apportioned funds is four fiscal years: the current year, plus 3 years. The funds are treated in a “first in, first out” manner; older year funds are considered obligated before newer year funds. The unobligated balance of funds will be withdrawn if the unobligated balance exceeds the sum of the apportionments issued for the current fiscal year and the three prior fiscal years.
A State may use up to 7% of its RTP apportionments for administrative costs, and up to 5% for educational programs. Administrative costs include costs to administer the program, including staff time, meetings of the advisory committee, attendance at meetings or conferences, newsletters and websites, supplies/equipment, travel, and statewide trail planning. Educational costs include educational programs that promote safety and environmental protection as they relate to the use of recreational trails. This includes development and operation of trail safety and environmental education programs, and the production of trail-related educational materials. TDEC agrees to provide FHWA with a funding list near the beginning of each two-year grant cycle.
TDEC submits a Federal-Aid Project Approval and/or Authorization form (POFA) to FHWA for authorization of funds. Financial transactions are processed directly thru the Financial Team at the Tennessee Division Office of FHWA. TDOT is not involved in the financial transactions with this program. At TDEC, the Grants Administrator tracks the available funds.
Some funds for motorized trails are credited to the Tennessee Wildlife Resources Agency (TWRA). This agency administers and enforces the provisions of the Tennessee Off-Highway Vehicle Act (TCA Section 70-9-101 to Section 70-9-107).
Cost principals are obtained from 2 CFR §225 (formerly OMB Circular A-87), “Cost Principals for State, Local, and Indian Tribal Governments”.
TDEC’s Division of Internal Audit conducts audits on grantees.
The grantee is responsible for maintaining an accounting of the project according to the “Accounting Manual for the Recipients of Grant Funds in the State of Tennessee”.
Each RTP project has a binder or CD located in the TDEC RES office that contains the applications, inspection reports, receipts, Notice of Limitation of Use (NLU), scoring, maps and correspondence associated with the grant. Project information may also be kept on RES’ Grants Database. When the grant is closed it goes into permanent files and/or is placed on microfilm. Invoices are disposed of 3 years after project close-out. These project files are subject to FHWA inspection at any time.
Each project requires a Maintenance Plan to assure that projects are managed in a safe and attractive manner. Maintenance Plans are turned in as part of the grant application.
TDEC and FHWA agree to meet quarterly to discuss any issues related to the RTP. TDEC and FHWA agree to respond to all inquiries within 5 days of receipt. Phone calls, US mail, email, and face to face meetings are all acceptable forms of communication.
Section 4: Implementation of the Oversight Agreement:
FHWA and TDEC enter into this agreement to conduct project oversight activities for the Recreational Trails Program in accordance with the above stipulated agreement elements and parameters.
The Stewardship and Oversight Plan outlines responsibilities and accountability for FHWA and TDEC. The purpose of the Plan is to clarify actions, prevent misinterpretations, and avoid time delays. The Stewardship and Oversight Plan is intended to be a living document that can be modified when needed to incorporate additional legislation, additional processes, or other changes to improve program and project delivery in the State of Tennessee. The Stewardship and Oversight Plan will be reviewed approximately once every two years, and upon enactment of a transportation authorization bill, by TDEC and FHWA to determine if any changes need to be made.
The Division Administrator of FHWA Tennessee Division or the Commissioner of TDEC may initiate amendments to this Agreement and/or changes to the Stewardship and Oversight Plan should essential modifications become apparent to either party.
Pamela M. Kordenbrock
Federal Highway Administration
Robert J. Martineau, Jr.
Tennessee Department of
Environment and Conservation