**FHWA FINAL GUIDANCE**

**TRANSPORTATION ENHANCEMENT ACTIVITIES**

**23 U.S.C. AND TEA-21**

**December 17, 1999**

***TABLE OF CONTENTS***

Introduction\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
1

Policy\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
1

Background\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
2

Qualifying
Activities\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....
2

Transportation Enhancement and Environmental
Mitigation\...\...\...\...\...\...\...\...\...\...\...\... 3

Project
Linkage\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...
4

Surface
Transportation\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....
5

Functional
Classification\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....5

Summary of Streamlining
Measures\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
6

Summary of Requirements for Matching
Funds\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....
6

Advance Payment
Option\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...
8

Transferability of Transportation Enhancement
Funds\...\...\...\...\...\...\...\...\...\...\...\...\...\...\... 9

Public
Involvement\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
9

Implementing all Transportation Enhancement
Categories\...\...\...\...\...\...\...\...\...\...\...\...\...9

Planning
Process\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....
10

Project
Development\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....
10

Financial
Accounting\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
11

Monitoring Program
Accomplishments\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...
11

State Project Selection
Criteria\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
12

Maintenance and
Operations\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....
12

Grandfathering of the Eligibility
Guidance\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...
12

Provision of Safety and Educational Activities for Pedestrians and
Bicyclists\...\...\... 13

Scenic or Historic Highway
Programs\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....
13

Environmental Mitigation to Address Water
Pollution\...\...\...\...\...\...\...\...\...\...\...\...\...\...\... 14

Youth Conservation or Service
Corps\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....
16

Establishment of Transportation
Museums\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...
16

General Real Estate Guidance for Enhancement
Projects\...\...\...\...\...\...\...\...\...\...\...\...\..... 17

Transit Enhancements Provision of
TEA-21\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
19

TEA-21 Enhancements Compared-FHWA and
FTA\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\... 21

American with Disabilities Act (ADA) &
TE\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...22

Appendices (Copies of
Memorandums)\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....
24

TE Questions and
Answers\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....57

Index\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...65

**FHWA GUIDANCE**

**TRANSPORTATION ENHANCEMENT ACTIVITIES**

**23 U.S.C. AND TEA-21**

**December 17, 1999**

# Introduction

**IntroductionIntroductionIntroductionIntroductionIntroductionIntroductionIntroductionIntroductionIntroductionIntroductionIntroductionIntroductionIntroduction**

## On June 9, 1998, President Clinton signed into law the Transportation Equity Act for the 21^st^ Century (TEA-21). This legislation updates Titles 23 and 49 of the United States Code (U.S.C.) and builds on the major changes made to Federal transportation policy and programs addressed in the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). The legislation includes numerous provisions that address improvements and changes to the implementation of transportation enhancement (TE) activities.

On June 9, 1998, President Clinton signed into law the Transportation
Equity Act for the 21^st^ Century (TEA-21). This legislation updates
Titles 23 and 49 of the United States Code (U.S.C.) and builds on the
major changes made to Federal transportation policy and programs
addressed in the Intermodal Surface Transportation Efficiency Act of
1991 (ISTEA). The legislation includes numerous provisions that address
improvements and changes to the implementation of transportation
enhancement (TE) activities.On June 9, 1998, President Clinton signed
into law the Transportation Equity Act for the 21^st^ Century (TEA-21).
This legislation updates Titles 23 and 49 of the United States Code
(U.S.C.) and builds on the major changes made to Federal transportation
policy and programs addressed in the Intermodal Surface Transportation
Efficiency Act of 1991 (ISTEA). The legislation includes numerous
provisions that address improvements and changes to the implementation
of transportation enhancement (TE) activities.On June 9, 1998, President
Clinton signed into law the Transportation Equity Act for the 21st
Century (TEA‑21). This legislation updates Titles 23 and 49 of the
United States Code (U.S.C.) and builds on the major changes made to
Federal transportation policy and programs addressed in the Intermodal
Transportation Efficiency Act of 1991 (ISTEA). The legislation includes
numerous provisions that address improvements and changes to the
implementation of transportation enhancement activities.On June 9, 1998,
President Clinton signed into law the Transportation Equity Act for the
21st Century (TEA‑21). This legislation updates Titles 23 and 49 of the
United States Code (U.S.C.) and builds on the major changes made to
Federal transportation policy and programs addressed in the Intermodal
Transportation Efficiency Act of 1991 (ISTEA). The legislation includes
numerous provisions that address improvements and changes to the
implementation of transportation enhancement activities.On June 9, 1998,
President Clinton signed into law the Transportation Equity Act for the
21st Century (TEA‑21). This legislation updates Titles 23 and 49 of the
United States Code (U.S.C.) and builds on the major changes made to
Federal transportation policy and programs addressed in the Intermodal
Transportation Efficiency Act of 1991 (ISTEA). The legislation includes
numerous provisions that address improvements and changes to the
implementation of transportation enhancement activities.On June 9, 1998,
President William Clinton signed into law the Transportation Equity Act
for the 21st Century (TEA‑21). This legislation updates Titles 23 and 49
of the United States Code (U.S.C.) and builds on the major changes made
to Federal transportation policy and programs addressed in the
Intermodal Transportation Efficiency Act of 1991 (ISTEA). The
legislation includes numerous provisions that address improvements and
changes to the implementation of transportation enhancement
activities.On June 9, 1998, President William Clinton signed into law
the Transportation Equity Act for the 21st Century (TEA21). This
legislation updates Titles 23 and 49 of the United States Code (U.S.C.)
and builds on the major changes made to Federal transportation policy
and programs addressed in the Intermodal Transportation Efficiency Act
of 1991 (ISTEA). The legislation includes numerous provisions that
address improvements and changes to the implementation of transportation
enhancement activities.On June 9, 1998, President William Clinton signed
into law the Transportation Equity Act for the 21st Century (TEA21).
This legislation updates Titles 23 and 49 of the United States Code
(U.S.C.) and builds on the major changes made to Federal transportation
policy and programs addressed in the Intermodal Transportation
Efficiency Act of 1991 (ISTEA). The legislation includes numerous
provisions that address improvements and changes to the implementation
of transportation enhancement activities.On June 9, 1998, President
William Clinton signed into law the Transportation Equity Act for the
21st Century (TEA‑21). This legislation updates Titles 23 and 49 of the
United States Code (U.S.C.) and builds on the major changes made to
Federal transportation policy and programs addressed in the Intermodal
Transportation Efficiency Act of 1991 (ISTEA). The legislation includes
numerous provisions that address improvements and changes to the
implementation of transportation enhancement activities.On June 9, 1998,
President William Clinton signed into law the Transportation Equity Act
for the 21st Century (TEA21). This legislation updates Titles 23 and 49
of the United States Code (U.S.C.) and builds on the major changes made
to Federal transportation policy and programs addressed in the
Intermodal Transportation Efficiency Act of 1991 (ISTEA). The
legislation includes numerous provisions that address improvements and
changes to the implementation of transportation enhancement
activities.On June 9, 1998, President William Clinton signed into law
the Transportation Equity Act for the 21st Century (TEA21). This
legislation updates Titles 23 and 49 of the United States Code (U.S.C.)
and builds on the major changes made to Federal transportation policy
and programs addressed in the Intermodal Transportation Efficiency Act
of 1991 (ISTEA). The legislation includes numerous provisions that
address improvements and changes to the implementation of transportation
enhancement activities.On June 9, 1998, President William Clinton signed
into law the Transportation Equity Act for the 21st Century (TEA21).
This legislation updates Titles 23 and 49 of the United States Code
(U.S.C.) and builds on the major changes made to Federal transportation
policy and programs addressed in the Intermodal Transportation
Efficiency Act of 1991 (ISTEA). The legislation includes numerous
provisions that address improvements and changes to the implementation
of transportation enhancement activities.On June 9, 1998, President
William Clinton signed into law the Transportation Equity Act for the
21st Century (TEA21). This legislation updates Titles 23 and 49 of the
United States Code (U.S.C.) and builds on the major changes made to
Federal transportation policy and programs addressed in the Intermodal
Transportation Efficiency Act of 1991 (ISTEA). The legislation includes
numerous provisions that address improvements and changes to the
implementation of transportation enhancement activities.

# Policy

**PolicyPolicyPolicyPolicyPolicyPolicyPolicyPolicyPolicyPolicyPolicyPolicyPolicy**

Federal transportation policy, as reflected in the strategic goals of
the U.S. Department of Transportation (DOT), the Federal Highway
Administration (FHWA), and its Environmental Policy Statement, continues
to stress mobility, protection of the human and natural environment, and
community preservation, sustainability, and livability. The achievement
of these goals and objectives remains a high priority for the DOT.
TEA-21 continues the opportunities to achieve these priority efforts
through the further expansion and funding of the TE program activities
initiated under the ISTEA.

TE activities are a sub-component of the Surface Transportation Program
(STP). The policy and procedural requirements that apply to the STP
program also apply to the provisions for funding and implementation of
TE activities. The laws governing traditional Federal-aid projects
funded under Chapter 1 of Title 23 U.S.C., such as the National
Environmental Policy Act (NEPA) and related laws, apply to
transportation enhance­ments as well, except where the Congress expressly
provided additional streamlining provisions, innovative finance, and
cost sharing provisions solely for the TE activities.

Through the TE activities Congress provided innovative opportunities to
enhance and contribute to the transportation system. This is being
carried out in a non-traditional fashion through implementation of a
specific list of TE activities. The focus of these actions is to improve
the transportation experience in and through local communities. The FHWA
seeks to broaden TE program participation, and the rates of
implementation of transportation and community enhancing projects.
Therefore, it is the policy of the FHWA to foster and encourage
partnerships with State and local officials and public interest groups
to improve the delivery of these valuable transportation enhancements.
Where appropriate, public-private partnerships may also be encouraged.

**Background**

TEA-21 continued the provision in 23 U.S.C. 133(d)(2) requiring 10
percent of the STP funds be set-aside and be only available for TE
activities. The specific language reads:

> *"(2) For Transportation Enhancement Activities. -- 10 percent of the
> funds apportioned to a State under Section 104(b)(3) for a fiscal year
> shall only be available for transportation enhancement activities."*

Section 1201 of TEA-21, amending 23 U.S.C. 101(a)(35), defines further
TE activities. TEA-21 amended 23 U.S.C. 134(h), but it continues to
specify that TE activities must be considered for programming as part of
the development of metropolitan transportation plans and programs. In
addition, 23 U.S.C. 135(f) continues to specify that the statewide
transportation improvement program shall reflect the priorities for
programming and expenditure of funds, including transportation
enhancements. This document provides guidance concerning the
interpretation of the TE provisions and their implementation. 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). This guidance does not attempt to
address all the possible questions that have been or could be raised
concerning transportation enhancements. However, the guidance does
provide further information concerning the thought process to apply in
determining whether or not activities qualify for TE set-aside funds.

Much of this guidance particularly focuses on the provisions related to
TE activities as added to or amended by TEA-21. However, it does provide
brief summaries of relevant information detailed in other related
guidance memorandums. It does not seek to replace the guidance memo
where the memo remains current and the information valid.

Over the life of ISTEA, the FHWA had two basic requirements regarding
eligibility determinations. First, the proposed TE activity must be one
of the qualifying activities listed in the legislation. Secondly, the
activity must have a connection to transportation. These two basic
requirements continue under TEA-21. The Congress broadened the language
in TEA-21 addressing the connection to transportation. This is discussed
in the guidance on project linkage.

From time to time, State DOTs will need to coordinate with the FHWA on
specific eligibility determinations.

**Qualifying Activities**

The list of qualifying TE activities provided in 23 U.S.C. 101(a)(35) of
TEA-21 is intended

to be exclusive, not illustrative. That is, [only]{.underline} those
activities listed therein are eligible as TE

activities. They are listed below *(Items listed in italics are those
added by TEA-21):*

TE Activities Defined---

1\. Provision of facilities for pedestrians and bicycles.

*2. Provision of safety and educational activities for pedestrians and
bicyclists*.

3\. Acquisition of scenic easements and scenic or historic sites.

4\. Scenic or historic highway programs *(including the provision of
tourist and welcome center facilities).*

5\. Landscaping and other scenic beautification.

6\. Historic preservation.

7\. Rehabilitation and operation of historic transportation buildings,
structures, or facilities (including historic railroad facilities and
canals).

8\. Preservation of abandoned railway corridors (including the
conversion and use thereof for pedestrian or bicycle trails).

9\. Control and removal of outdoor advertising.

10\. Archaeological planning and research.

*11. Environmental* mitigation to address water pollution due to highway
runoff *or reduce vehicle-caused wildlife mortality while maintaining
habitat connectivity*.

*12. Establishment of transportation museums*.

Many projects are a mix of elements, some on the list and some not. Only
those project elements which are on the list may be counted as TE
activities. For example, a rest area might include a historic site
purchased and developed as an interpretive site illustrating local
history. The historic site purchase and development would qualify as a
transportation enhancement activity.

Activities which are not explicitly on the list may qualify if they are
an integral part of a larger qualifying activity. For example, if the
rehabilitation of a historic railroad station required the construction
of new drainage facilities, the entire project could be considered for
TE funding. Similarly, environmental analysis, project planning, design,
land acquisition, and construction enhancement activities are eligible
for funding.

The funded activities must be accessible to the general public or
targeted to a broad segment of the general public.

**Transportation Enhancement and Environmental Mitigation**

Congress included the language on transportation enhancements as a means
of stimulating additional efforts to create an improved transportation
environment and system, while making a contribution to the surrounding
community. This is to be done through implementation of the specific
activities listed in the legislation. Enhancement measures in the
activities listed, which go beyond what is customarily provided as
environmental mitigation, are considered as transportation enhancements.
However, transportation enhancement activities might consist of
activities not immediately connected to a nearby project being
mitigated. States may not use TE funds to finance normal environmental
mitigation work eligible under the regular federal-aid highway program.
The process of determining which activities will be considered as normal
mitigation and which will be considered TE activities may at times be
difficult. The process will likely require close coordination between
the State DOTs and their FHWA division offices on a case-by-case basis.

**Project Linkage**

To comply with Federal guidelines for eligibility there are two basic
considerations.

10 Is the proposed action one of the listed activities in the TE
definition in TEA-21?

20 Does the proposed action relate to surface transportation?

The definition of TE activities includes the phrase,

> *"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:\..."*

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.

Where a TE activity is for acquisition for scenic preservation purposes,
and proposes to contribute to the visual experience of the traveler, but
is a substantial distance away with respect to a highway or
transportation project, the TE activity must be determined to make a
substantial contribution to the scenic viewshed.

Given the nature of the list of eligible activities, it is not necessary
that each TE activity be associated with a specific surface
transportation project to be eligible for funding. Examples which
illustrate this include; the rehabilitation of a historic train
structure, the provision of a bike or pedestrian path, or the
establishment of a transportation museum.

Proximity to a highway or transportation facility alone is not
sufficient to establish a relationship to surface transportation.
Additional discussion, beyond proximity, is needed in the TE project
proposal to establish the relationship to transportation. For example,
an historic barn that happened to be adjacent to a particular highway
facility would not automatically be considered eligible for TE funds
simply because of its location; visibility to the traveler in a way that
substantially enhances the traveling experience could qualify. Specific
documentation of the enhanced experience is required; conversely, a
historic structure, such as the barn in the above example, could not be
disqualified from consideration because it was not adjacent to a
particular Federal-aid facility, as long as some other relationship to
surface transportation could be established.

It is not necessary to have a TE activity function as an active
transportation facility, either past or current, to qualify as an
eligible TE activity. For example, a scenic or historic site may have a
relationship to transportation but not function as a transportation
facility.

Once a relationship to surface transportation is established, TE
activities can be implemented in a number of ways. For example, they can
be developed as parts of larger joint development projects, or as
stand-alone projects.

Where questions arise, closer coordination with the FHWA division office
within each State will assist in the determination of a project's
relationship to surface transportation.

**Surface Transportation**

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.

**Functional Classification**

Section 133(c) of Title 23 U.S.C. includes a general limitation that STP
projects not be funded on "roads functionally classified as local or
rural minor collectors, unless such roads are on a Federal‑aid highway
system on January 1, 1991, except as approved by the Secretary." Given
the nature of many of the 12 categories of TE's, it is clear that the
location limitation of Section 133(c) cannot apply to them. Thus, on
October 25, 1999, the Secretary approved FHWA Administrator Wykle's
request for an exception in the law that would allow States more
flexibility in determining where they can use their TE funds. With the
Secretary excepting TEs from the general STP location restriction of §
133(c), the FHWA can now administer TE projects in a manner more
consistent with the apparent purpose of the TEs.

**Summary of Streamlining Measures**

A number of streamlining measures have been implemented to assist in the
effective and efficient delivery of TE projects. Several of the measures
were mandated by the National Highway Systems Designation Act of 1995.
TEA-21 also created opportunities to improve the delivery time for TE
activities.

10 Except in unusual circumstances, a TE project may be processed as a
categorical exclusion under the National Environmental Policy Act. The
project then does not have to be processed using an environment impact
statement.

20 Except for unusual circumstances, TE projects are not normally
required to undergo a Section 4(f) evaluation (FHWA memo of August 22,
1994).

3\. TE projects are subject to Section 106 of the National Historic
Preservation Act. However, the use of a Nationwide Programmatic
Agreement can streamline these historic preservation coordination
requirements (FHWA memo of June 11, 1997).

4 Program funds may be advanced to a local government through the
advanced payment option of TEA-21.

5\. States now have the option to fund individual projects up to 100
percent of the cost of the TE activity provided that on an annual basis,
TE projects as a group, comply with the Federal Share requirement.

6\. States may allow consideration of the value of services as part of
the non-federal match.

7 projects not located within the highway right-of-way may be procured
using State procedures and do not need to follow Federal bidding
procedures (FHWA memo November 12, 1996).

8\. The Davis-Bacon predetermined minimum wage applies to TE projects
greater than \$2,000. However, Davis-Bacon requirements do not apply to
TE projects located outside the highway right-of-way (FHWA memo July 28,
1994).

**Summary of Requirements for Matching Funds**

Most Federal-aid highway projects are funded with a maximum 80 percent
Federal contribution and require a 20 percent State and local match of
Federal funds as set forth in 23 U.S.C. 120(b). However, this maximum
share is adjusted for States with sub­stantial Federal land holdings. For
these States a sliding scale up to 95 percent Federal funding is
determined according to the percentage of Federal land holdings in the
State.

Language included in TEA-21 provides an important exception regarding
Federal share on TE projects. Section 1108(b)(2) of TEA-21 allows a
State to use TE funds for up to 100 percent of the cost of individual
projects without a corresponding match. However, for a fiscal year, the
ratio of Federal funds to State match for all TE funded projects must
comply with the maximum Federal share provisions in 23 U.S.C. 120(b).
The language in this Section of TEA-21 also provides some additional
innovative features.

Legislative language (23 U.S.C. 133(e)(5)):

*" (C) Cost Sharing. -*

*"(i) REQUIRED AGGREGATE NON-FEDERAL SHARE. --*

*The average annual non-Federal share of the total cost of all projects
to carry out transportation enhancement activities in a State for a
fiscal year shall be not less than the non-Federal share authorized for
the State under section 120(b).*

*"(ii) INNOVATIVE FINANCING. -- Subject to clause (I), notwithstanding
section 120---*

*"(I) funds from other Federal agencies and the value of other
contributions (as determined by the Secretary) may be credited toward
the non-Federal share of the costs of a project to carry out a
transportation enhancement activity;*

*"(II) the non-Federal share for such a project may be calculated on a
project, multiple-project, or program basis; and*

*"(III) the Federal share of the cost of an individual project to which
sub-clause (I) or (II) applies may be up to 100 percent."*

Important features of this Section of TEA-21;

Allows other Federal funds, (not other U.S. DOT funds), to be credited
toward the non-Federal share of the costs of a project.

Allows the **value** of other contributions (as determined by the
Secretary or his designee) to be credited toward the non-Federal share.

Allows the non-Federal share to be calculated on a project,
multiple-project, or program wide basis.

Allows the Federal share of the cost of a project to be funded with 100
percent Federal funds.

Makes it easier to utilize the advance payment option of Section
133(e)(3)(B) of Title 23. TEA-21 removed the requirement to have a
certified public involvement process in order to be able to use the
advance payment option provision. However, TEA-21 did not diminish the
importance of public involvement in the Federal-aid transportation
improvement process.

It is important to recognize that these provisions apply only to TE
activities identified in the legislation and funded from TE set-aside
funds.

23 U.S.C. 323(c) provides for the allowance of credit for donations of
funds, materials, land or services. TEA-21 goes on to allow the
consideration of the value of contributions. The value of "other
contributions" may be credited toward the non-Federal share of TE
projects funded with TE funds. These include:

1.  The value of local and State government services, materials, and
    land applied to the project.

2.  The costs of preliminary engineering prior to project approval.

    Such a credit may be allowed provided that appropriate documentation
    in support of such 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 allowed to be used toward the local match.
    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.

    In accordance with the provisions of 23 U.S.C. 120(j), a State may
    use toll revenues that are generated and used by public,
    quasi-public, and private agencies to build, improve, or maintain
    highways, bridges, or tunnels that serve the public purpose of
    interstate commerce as a credit toward the non-Federal share. Credit
    amounts are approved by FHWA and maintained by the State DOT.
    Establishment and use of toll credits is governed by separate
    implementing guidance. (See August 7, 1998 memorandum - Toll Credit
    for Non-Federal Share, Section 1111(c) of TEA-21, Implementing
    Guidance).

    **Advance Payment Option**

    Section 133(e)(3)(B) of Title 23 provides for an advance payment
    option for TE activities when necessary to make prompt payments for
    project costs. Since payments to States are governed by the Cash
    Management Improvement Act, this advance payment option is only
    available to local governments through the State DOT. The following
    procedures apply:

3.  Advances are limited to TE projects which are funded from the 10
    percent set-aside of STP funds for TE activities.

4.  The advance will be considered a working capital advance (see 49 CFR
    Part 18.21(e)) and limited to the estimated amount needed for one
    billing cycle. The local government will then bill the State for
    costs incurred. The advance will be netted out at the time of the
    final billing.

5.  To reduce administrative burden, projects with a Federal share under
    \$25,000 which will be completed in less than one year may receive
    an advance for the full amount of the Federal share.

6.  Agreements to provide for the use of this option should be developed
    through the cooperative efforts of the State and the FHWA division
    office.

    The requirement to have a certified public involvement process in
    order to receive advance payments was removed by TEA-21.

    **Transferability of TE Funds**

    TEA-21 added a provision permitting limited transfer of TE set-aside
    funds for use on other activities. In accordance with Section 1310
    of TEA-21, the maximum amount that a State may transfer of the
    State's set-aside under 23 U.S.C.133(d)(2) for a fiscal year, may
    not exceed 25 percent of (1) the amount of the set-aside, less (2)
    the amount of the State's set-aside for TE funding for fiscal
    year 1997. For example: State "A's" set-aside for TE in FY99 is \$2
    million. In FY97 it was \$1.8 million. Therefore, State "A" may
    transfer up to \$50,000 out of TE for use on other types of STP
    activities as identified in the TEA-21.

    The funding for TE activities primarily comes from the set-aside of
    10 percent of STP funds for activities listed in TEA-21. Therefore,
    the transferability of these funds must be consistent with the rules
    that apply to the STP. The transfer of TE funds must include
    consideration of the purposes of the set-aside and the categories of
    activities for which the funds are limited. TE funds may only be
    transferred to Interstate Maintenance, the Congestion Mitigation and
    Air Quality (CMAQ) Improvement Program, the National Highway Systems
    Program, Recreational Trails Program, and/or the Bridge Program.

    **Public Involvement**

    TEA-21 confirmed and continued the principle established in ISTEA
    that public involvement is an integral part of the Federal-aid
    planning, program, and project implementation process. Each State
    should develop and maintain a meaningful and inclusive public
    involvement process to select TE activities. This process should
    include regional, local agency, and citizen representation.
    Transportation enhancement activities involve somewhat different
    project goals and non-traditional partners. While many States use
    advisory committees to assist in the project selection and criterion
    development process for TE project activities, there may be other
    approaches that better achieve the appropriate participation needed.
    The FHWA strongly encourages the effective use of advisory
    committees or other such approaches to gather information and
    community feedback. Generally, public involvement should be
    encouraged at the metropolitan and local levels to foster improved
    communications and community compatibility. States should encourage
    effective public involvement in the correspondence, brochures, and
    guidance given to potential project sponsors. One of the criteria
    the State uses to rate projects when evaluating TE project proposals
    could be public involvement. Early and continuing public involvement
    in TE activities should also be sought to assure consistency with
    the requirements for public involvement in the metropolitan and
    statewide planning regulations, and with the National Environmental
    Policy Act (NEPA) project implementation guidance.

    **Implementing All TE Categories**

    In TEA-21 the Congress increased the number of eligible activities
    and added additional

    text to several of the ones that already had been included in the
    definition of transportation enhancement activities. Congress
    provided for each category to be considered separate and distinct
    from others. There must be sufficient opportunities for local
    communities to take advantage of a variety of TE options. Therefore,
    States are encouraged to avoid combining activity categories where
    such combinations eliminate the opportunity for fair and open
    competition based on the merits of the TE proposals. Where States
    previously have chosen to combine categories, program implementation
    of the categories of activities should clearly allow for fair
    consideration of all eligible activities as defined in the
    legislation.

    **Planning Process**

    The metropolitan and statewide planning processes should occupy a
    central role in the

    identification, planning, and funding of TE activities. In
    particular, the planning processes are the appropriate mechanisms
    for determining funding priorities among competing TE activities,
    including those not part of larger transportation projects. The FHWA
    field offices should strongly encourage the State and metropolitan
    planning organizations (MPOs) to seek out and fully integrate TE
    activities into both their plan development and programming
    processes. To be funded, TE activities must be included in the
    appropriate metropolitan and statewide transportation improvement
    programs.

    Given the widespread public interest in TE activities, they should
    be highlighted in public involvement activities implemented under
    the metropolitan and statewide requirements revised pursuant to
    TEA-21. Procedures for planning, programming, and developing TE
    activities are of particular concern to public interest
    organizations and members of the general public.

    **Project Development**

    Building on the work done in the planning process, State DOTs, MPOs,
    and FHWA field offices have a responsibility to actively pursue TE
    opportunities during the development of individual transportation
    projects. Accordingly, future environmental approvals should
    specifically take into consideration the potential for implementing
    transportation enhance­ment activities as part of these overall
    projects. During their involvement in these projects, FHWA field
    offices should promote TE activities as a means to more creatively
    integrate transportation facilities into their surrounding
    communities and the natural environment.

    When appropriate, TE activities may be developed in cooperation with
    other State and local agencies and with private entities. However,
    the State DOT or other eligible trans­portation agency shall remain
    responsible to the FHWA for the project. Further­more, TE activities,
    including stand‑alone TE projects, must comply with all applicable
    environ­mental and other Federal requirements. Even though the
    express purpose of the project is to enhance an element of the
    natural, cultural, or human environment, the impacts of the proposed
    action must be assessed to assure compliance with Federal and State
    requirements.

    **Financial Accounting**

    The funds made available solely for TE activities are derived from
    one primary source. The main source is the STP, of which 10 percent
    is available only for transportation enhancement activities. In
    addition, funds from the minimum guarantee allocation to the STP
    pool of funds impact the available totals for transportation
    enhancements. However, these adjustments are added to the total STP
    pool prior to the State apportionment and are therefore already a
    part of the STP totals.

    The FHWA Office of Budget and Finance has established appropriation
    code Q22 for TE activities and notified each State of the fiscal
    year's STP sub-allocation amounts available only for TE activities.
    While 10 percent of each year's STP apportionment may be obligated
    only for TE activities, the actual obligation can occur in a
    subsequent year. For example, if State "A" receives \$100 million in
    STP apportionments in FY2000, then \$10 million must be reserved for
    TE and cannot be used for any other purpose unless transferred to
    another program. However, the State may chose to obligate only \$8
    million for TE in FY2000, reserving \$2 million for TE obligations
    in subsequent years. The statute does not require that 10 percent of
    the funds for any given project be devoted to TE activities. There
    is also no requirement that STP funds used for TE activities be
    limited to only 10 percent. If a State chooses, STP funds beyond the
    10 percent set-aside are eligible for use on TE activities.

    23 U.S.C. 133(d)(2) specifies that the 10 percent of STP funds for
    TE activities are separate from the STP funds which are
    sub-allocated to the larger metropolitan areas and to other areas of
    the State. Accordingly, while the STP sub‑State allocation funds can
    be used for transportation enhancement activities, any such use
    would not count toward the 10 percent requirement. Under the
    transferability provisions initiated under ISTEA and continued into
    TEA-21, States may transfer funds into the STP State flexible
    account. It should be noted that funds transferred into that account
    are not subject to the 10 percent set-aside for TE.

    **Monitoring Program Accomplishments**

    Updated guidance for reporting and tracking project obligations
    through the FMIS system, as required by Title 23 Section 104(j) as
    amended by TEA-21 Section 1103(h), has been published. States may
    need to prepare an annual report on overall STP obligations. To
    cover this contin­gency, States should maintain records on: (1) the
    amounts obligated for TE activities using the STP TE appropriation
    code Q22 (counting toward the 10 percent requirement) and other STP
    funds (not counting toward the 10 percent requirement) or other
    non-STP funds, and (2) how obligations for TE activities are
    distributed among the 12 qualifying activities. A brief description
    of each specific TE action for which STP funds have been obligated
    is useful.

    **State Project Selection Criteria**

    In keeping with the flexibility afforded under the ISTEA and that
    continues under TEA-21, States have adopted a variety of processes
    for determining how to use the TE set‑aside funds. Some States
    utilize numerical point‑based systems.

    In accordance with the above guidance on eligibility, a project must
    first be shown to be one or more of the 12 activities identified in
    the legislation. It must then meet the test of a having a
    relationship to surface transportation in order to be considered for
    funding.

    Any additional State criteria must also be satisfied.. States are
    permitted to have additional criteria if they choose, or may have
    weighting systems of their own design.

    **Maintenance and Operations**

    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 for
    TE eligible activities. Strategies for the upkeep and maintenance of
    the public investment should be considered at the time of the TE
    proposal.

    **Grandfathering of the Eligibility Guidance**

    It is recognized that the States and FHWA field offices have been
    operating in good faith based on the general guidance that FHWA has
    issued on transportation enhancements. A number of States have
    published State guidance documents and have had calls for projects
    under the new provisions of TEA-21. To minimize the potential for
    reversing funding determinations, this program guidance will not
    apply retroactively to projects for which the State DOT has already
    notified project sponsors of a decision to fund the proposed work.
    However, all other projects should be developed consistent with the
    policy guidance provided in this package.

    **Provision of Safety and Educational Activities for Pedestrians and
    Bicyclists**

    The *"provision of safety and educational activities for pedestrians
    and bicyclists"* includes non-construction safety-related activities
    and the reasonable costs to provide safety and educational
    activities such as bike/pedestrian safety training, cost of
    facilitators and classes. It may also include related training
    materials such as brochures, videotapes, other training aids, as
    well as rent for leased space and limited staff salaries. Long term
    salary participation should be avoided. TE proposals should be
    written to reflect a definitive period for participation. Where
    salaries become an issue, they should be negotiated as part of the
    local buy-in to the project.

    The funded activities must be accessible to the general public or
    targeted to a broad segment of the general public. The activities
    must show a relationship to the surface transportation system, and
    as with all bicycle and pedestrian activities under the STP, bike
    and pedestrian projects using TE funds need **not** be located on
    Federal-aid highway routes, and may be non-construction activities.

    Project sponsors using TE funds are encouraged to integrate safety
    messages and educational opportunities for bicyclists and
    pedestrians into enhancement projects through the development of
    campaigns, programs, educational materials including maps and
    brochures, and pedestrian and bicycle enforcement activities.
    Project sponsors are encouraged to coordinate these activities with
    the National Highway Traffic Safety Administration and other modal
    administrations. This TE activity is not intended to replace or
    duplicate existing Section 402 funding opportunities for bicycle and
    pedestrian activities currently available through the State and
    Community Traffic Safety Program.

    **Scenic or Historic Highway Programs (including the provision of
    tourist and welcome centers)**

    ISTEA listed scenic or historic highway programs as an eligible
    funding activity. TEA-21 introduced the parenthetical *"including
    the provision of tourist and welcome centers"* and attached it to
    the scenic and historic highway programs activity. Although linked
    with scenic and historic highway programs, the eligibility for
    tourist and welcome centers warrants further discussion as a
    separate activity. Congress provided additional language to assist
    in interpreting its intent regarding this activity. The Conference
    Report language notes:

    *"In order to be eligible under the enhancement program, the tourist
    or welcome center (whether a new facility or existing facility) does
    **not** have to be on a designated scenic or historic byway, but
    there must be a clear link to scenic or historic sites."*

    The connection to a scenic site should take into account the
    intrinsic characteristics that make an area or site scenic as
    determined by a State or area commission, where one exists. Where
    these mechanisms are not available, the proposal should document
    those characteristics that give evidence of compliance with the
    provisions of the Conference Report language. While a tourist or
    welcome center does not have to be on a designated scenic or
    historic byway, many of the characteristics that determine what is
    scenic are similar to those of the scenic byways program. Activities
    eligible under the National Scenic Byways Program are generally
    eligible under TE activities. A historic site should have evidence
    of documented consultation and concurrence with the State Historic
    Preservation Officer or similar authority for determining the
    historicity of a particular site.

    The eligibility for TE funding for the provision of tourist and
    welcome centers applies to both existing and new centers. This means
    that TE funds may be used for the construction of a new facility
    and/or the restoration of an existing facility. This would include
    those related construction actions necessary to provide the
    facility, such as interior fixtures and parking areas. TE funds can
    be used to purchase and install items which support or interpret the
    scenic or historic highway program or site including brochure racks
    for interpretive materials or maps or kiosks. TE funds cannot be
    used for statewide programs, marketing, or promotion not related to
    the scenic or historic highway program. TE funds cannot be used for
    staffing, operating costs, or maintenance. TE funds should not be
    used to purchase items such as racks for advertising or brochures
    for local or national businesses.

    The intent is not to use the category to simply repair and restore
    what are clearly rest areas. The intent is to fund those activities
    clearly linked to scenic or historic programs or scenic or historic
    sites.

    The tourist or welcome center does not have to be immediately
    adjacent to an existing Federal-aid highway facility. However, where
    it is determined that a proposed tourist or welcome center would not
    be in connection with a particular Federal-aid highway facility, the
    requirement to demonstrate a relationship to surface transportation
    must still be taken into consideration. Additionally, evidence of a
    connection to a scenic or historic site must be established. An
    example could include efforts and materials to direct members of the
    traveling public to a specific local area site deemed to be of
    scenic or historic significance. The visitor or welcome center
    should be publicly owned and open to the public. Proposals for
    privately owned facilities to be used for a welcome or tourist
    center, and leased to a public entity, should be reviewed by the
    FHWA division office on a case-by-case basis.

    **Environmental Mitigation to Address Water Pollution due to Highway
    Runoff or Reduce Vehicle-Caused Wildlife Mortality While Maintaining
    Habitat Connectivity**

    TEA‑21 expanded the category under transportation enhancements that
    addresses environmental mitigation for water pollution due to
    highway runoff and added measures to reduce vehicle‑caused wildlife
    mortality while maintaining habitat connectivity. These activities
    can be either stand-alone projects or part of a larger existing or
    proposed project under the TE activities as long as such activity is
    related to surface transportation.

    Transportation enhancements are a means of promoting additional
    efforts, projects, and activities which relate to transportation but
    go beyond what is considered ordinary environmental mitigation for a
    project. As part of the NEPA process, all Federal‑aid transportation
    projects are required to provide environmental mitigation based on
    their impacts. Mitigation efforts include measures to avoid and
    minimize impacts. Where impacts are unavoidable, compensatory
    mitigation is provided. The TE program was created to expand on this
    concept. However, TE projects are not to replace mitigation
    currently eligible or required under regular Federal-aid funded
    projects. ISTEA and TEA-21 set aside TE funds to be used to rectify
    current or prior impacts from transportation facilities. Examples of
    such projects for the area of water quality improvement in this
    category of TE funding include:

    · Retrofitting an existing highway by creating a wetland to filter
    highway runoff based on the impacts from the road in terms of water
    pollution.

    · Improving streams and drainage channels through landscaping to
    promote filtering and improve the overall water quality conditions
    of receiving channels.

    · Providing payment in-kind for existing highway water quality
    impacts that warrant mitigation to regional or watershed-based
    planned improvement projects.

    This category in the TE program also addresses activities for the
    reduction of vehicle‑caused wildlife mortality while maintaining
    habitat connectivity. This funding category is not limited to
    threatened and endangered species, but includes any wildlife
    mortality directly caused by vehicles. It will be up to the States
    to recognize and develop a statement of purpose and need for such
    projects. This determination will vary from State to State. The
    criteria used to determine a need for a wildlife crossing or control
    project in a specific location are determined by the States based on
    migration patterns, habitat use and distribution, and crossing
    characteristics of the wildlife through data collection on safety of
    motorists, habitat fragmentation, and wildlife mortality.

    Examples of projects eligible for funding in this TE category
    include:

    · Projects designated as wildlife underpasses or overpasses

    · Measures at areas identified as crossings for wildlife, which
    include the necessary fencing and other markings and mitigation
    techniques associated with movement of wildlife across
    transportation corridors.

    · Bridge extensions to provide or improve wildlife passage and
    wildlife habitat connectivity.

    · Monitoring and data collection on habitat fragmentation and
    vehicle-related

    wildlife mortality.

    If a direct measure to reduce wildlife mortality at a highway
    crossing area is determined to be unfeasible (i.e., too expensive,
    geologically impossible, or unsafe for motorists), it might be
    possible to provide for the loss of wildlife due to vehicle
    collisions by developing new habitat resources, or improving
    existing habitat resources to support additional population numbers.
    The results could be deemed to be reducing the effects of the
    highway-related mortality on the long term population stability or
    public use benefits of wildlife. When considering this approach
    coordination with appropriate wildlife management agencies must be
    initiated. The decision to undertake this approach should be made in
    cooperation with and approved by the FHWA division office.

    **Youth Conservation or Service Corps**

    TEA-21 requires the U.S. DOT to encourage the use of youth
    conservation or service corps in the implementation of TE activities
    where appropriate.

    Legislation: TEA-21 §1108(g):

    \(g\) ENCOURAGEMENT OF USE OF YOUTH CONSERVATION OR SERVICE CORPS.
    --*The Secretary shall encourage the States to enter into contracts
    and cooperative agreements with qualified youth conservation or
    service corps to perform appropriate transportation enhancement
    activities under Chapter 1 of Title 23, United States Code.*

    The definition of a qualified youth conservation or service corps is
    taken from

    42 U.S.C. Sec. 12572, and 42 U.S.C. Sec. 12656

    Details describing the definitions and programs identified under the
    sections listed above are provided in the attached appendices.

    Service corps and youth conservation corps organizations have
    effectively worked with States, local governments, and communities
    to assist in transportation enhancement projects. The FHWA has
    tracked many of these efforts and will be working with our division
    offices to encourage States to consider agreements with these
    organizations for enhancement activities where appropriate. Corps
    organizations often are able to recruit, hire, train, and provide
    opportunities for economically and/or educationally disadvantaged
    young people.

    Where States and local officials are able to identify opportunities
    to enter into partnerships with these service organizations, they
    should fully consider the benefits to their own efforts and the
    benefits to the youth involved.

    **Establishment of Transportation Museums**

    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.

    Establishment of transportation museums is interpreted to mean
    funding of capital improvements. The funds are not intended to
    reconstruct, refurbish, or rehabilitate existing museums, nor
    portions of museums, that are not for transportation purposes. It
    does not cover operations or maintenance of the facility. The museum
    must be related to surface transportation. Establishment of
    transportation museums is interpreted to include the costs of the
    structure and the purchase of artifacts necessary for the creation
    and operation of the facility. Displays, segments of buildings, or
    objects not directly related to transportation should not be funded
    with TE funds. TE funds may be used to build a new facility, add on
    a transportation wing to an existing facility, or convert an
    existing building for use as a transportation museum.

    The museum must be open to the public and run by a public,
    non-profit or not-for-profit organization meeting the definition of
    museums stated above in this section. 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.

    The legislation governing the TE program specifically refers to TE
    activities "relating to surface transportation." Therefore, 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. Landscaping and other eligible TE activities
    may be appropriate for consideration for the road leading to an
    aviation facility.

    **General Real Estate Guidance for Enhancement Projects**

    Real estate and property management issues must be addressed in many
    of the proposed TE activities identified in TEA-21. Several of the
    listed activities involve possible property acquisition, restoration
    and rehabilitation of structures, and lease agreements. As noted
    earlier, to be eligible for enhancement funding, the proposed
    project needs to satisfy both the Federal and State criteria for an
    enhancement project. The purpose and the need for the project should
    be clearly documented.

    Property management issues to consider for transportation
    enhancement projects follow:

    · Prospective applicants such as conservation groups or individuals
    should have a public co-sponsor to assure that there will be
    continued responsibility on the part of a public agency for the
    project. Measures to maintain the public investment over time must
    be considered and should be included in project proposals and/or
    agreements.

    · The general rule of thumb for significant Federal-aid investments
    is that the public interest in and access to the activity should be
    in perpetuity. However, 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. For example, if the project were simply to provide a
    gravel parking lot to be used to enhance a transportation use on
    lands under state ownership, a limited property use agreement would
    be sufficient. An expenditure of \$5,000 for a gravel parking lot
    with an agreement that the lot would be retained in that use for 5-7
    years would seem to be reasonable.

    · The expenditure of \$1,000,000 to rehabilitate a historic train
    station would require a much longer time period to amortize the
    public investment. It would not be appropriate to spend the money to
    enhance the train station without a commitment that it would not be
    demolished, the historic integrity destroyed the next year, or the
    planned use for which the award was granted substantially changed.
    Major expenditures warrant that consideration be given to how,
    following the investment, the property will be maintained and what
    will be the source of financial resources for necessary repair,
    renewal and rehabilitation.

    It is important that the applicant discuss how and for what purposes
    the property will be utilized following the rehabilitation. Where
    properties are to be leased with the income going to the applicant,
    it is appropriate that consideration be given to a portion of the
    proceeds going to the future maintenance of the structure with
    accounting consideration to allow for reserve funds for
    replacements.

    · Where the primary purpose of the project is to enhance a historic
    transportation facility, coordination with the appropriate historic
    agencies can help to assure that protective language is included in
    any agreement before the project is authorized for federal funding.

    · The project agreement should clearly state the purpose of the
    project and outline how the property will be utilized and maintained
    in the future.

    · Protection of property rights for the continued use of a facility,
    or for use over a specified period of time, should be captured in
    the form of a legal document which can be recorded in the land
    records. These types of property reservations could be leases,
    easements or other evidence of a property interest recognized in the
    State in which the enhancement funds are to be utilized.

    · Reversionary clauses may be appropriate in some instances where
    the property is originally obtained at no cost from a Federal agency
    through a Federal land transfer. These clauses would assure that
    where the property is no longer needed for the purpose for which it
    was transferred it would be offered for return to the original
    owner.

    · Control of outdoor advertising is an eligible activity.
    Non-conforming signs may be acquired with Federal funds from the
    STP. Effective controls must be in place to prohibit new signs from
    being erected where those removed with Federal-aid were located.
    These funds may also be used for sign inventory management and
    development activities.

    · Acquisition of real property for TE projects is subject to the
    Uniform Act regarding acquisition procedures and relocation
    assistance. An 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).

    · TE projects can involve real property, funds, materials, or
    services provided by units of local government and private entities.
    A donation of this type may be eligible for a credit to the matching
    share. To be eligible for a credit, the real property [may
    not]{.underline} be part of a current transportation facility. The
    fair market value of the real property, materials, or services may
    be credited against the non-federal share of the project.

    **Transit Enhancements Provision of TEA-21**

    Information is provided to help understand the Transit enhancement
    provisions of TEA-21 at Section 3003 - Definitions, and any
    similarities the Transit enhancement provisions may have to the FHWA
    TE program of activities. Additional details on the FTA enhancement
    provisions are discussed in the appendices of this document.

    [TEA-21.]{.underline} TEA-21 created the \"transit enhancements\"
    provisions in the Urbanized Area Formula Program administered by the
    Federal Transit Administration (FTA). TEA-21 established the
    requirement that a minimum of one percent of the part of FTA\'s
    Urbanized Area Formula Program funding for urbanized areas with
    populations 200,000 and over must be made available for activities
    that are transit enhancements.

    [FTA\'s Urbanized Area Formula Program.]{.underline} Under the FTA
    Urbanized Area Formula Program (Title 49 U.S.C. Section 5307), over
    \$2 billion is apportioned annually to urbanized areas with
    populations of 200,000 and over for transit capital projects. In
    Fiscal Year 1999, \$2.3 billion was apportioned to urbanized areas
    with populations 200,000 and over. One percent of each urbanized
    area's apportionment, or a total of \$23 million, must be used for
    transit enhancements. Funds are available for obligation by FTA for
    the Federal fiscal year in which the funds are appropriated, plus
    three years. Thus, FY 1999 funds are available to be obligated by
    FTA through FY 2002.

    FTA makes grants in each urbanized area with a population 200,000
    and over to a \"designated recipient.\" A designated recipient is a
    public body that has the legal authority to apply for, receive, and
    dispense Federal funds in the urbanized area. There is usually one
    designated recipient in an urbanized area, but occasionally there is
    more than one. There are approximately 400 designated recipients of
    the FTA program. Recipients of FTA grant funds are referred to as
    \"grantees.\"

    [Eligible Transit Enhancements.]{.underline} The term \"transit
    enhancement\" means projects or project elements that are designed
    to enhance mass transportation service or use and are physically or
    functionally related to transit facilities. The following activities
    are the transit projects and project elements that qualify as
    transit enhancements. All must be related to or serve mass transit.

    · Historic preservation, rehabilitation, and operation of historic
    mass transportation buildings, structures, and facilities (including
    historic bus and railroad facilities);

    · Bus shelters;

    · Landscaping and other scenic beautification, including tables,
    benches, trash receptacles, and street lights;

    · Public art;

    · Pedestrian access and walkways;

    · Bicycle access, including bicycle storage facilities and
    installing equipment for transporting bicycles on mass
    transportation vehicles;

    · Transit connections to parks within the recipient\'s transit
    service area;

    · Signage; and

    · Enhanced access for persons with disabilities to mass
    transportation.

    [FTA Administration of the Enhancements Minimum-Expenditure
    Provision Requirements.]{.underline} One percent of the Urbanized
    Area Formula Program apportionment to each urbanized area with a
    population of 200,000 and over must be made available only for
    transit enhancements. When there are several grantees in an
    urbanized area, it is not required that each grantee spend one
    percent of its Urbanized Area Formula Program funds on transit
    enhancements. Rather, one percent of the urbanized area\'s funding
    must be expended on projects and project elements that qualify as
    enhancements.

+-----------------+-------------------------+-------------------------+
| **TEA-21        |                         |                         |
| Enhancements    |                         |                         |
| Compared---FHWA |                         |                         |
| and FTA**       |                         |                         |
+-----------------+-------------------------+-------------------------+
|                 | **FHWA Transportation   | **FTA Transit           |
|                 | Enhancement             | Enhancement             |
|                 | Activities**            | Activities**            |
+-----------------+-------------------------+-------------------------+
| How much        | FY 1999: \$632 million  | FY 1999: \$23 million   |
| guaranteed      |                         |                         |
| funding is      | FY 2000:\$639 million   | FY 2000: \$25 million   |
| provided for    | (estimate)              |                         |
| these programs? |                         | FY 2001: \$27 million   |
|                 | FY 2001:TBD             |                         |
|                 |                         | FY 2002: \$29 million   |
|                 | FY 2002:TBD             |                         |
|                 |                         | FY 2003: \$31 million   |
|                 | FY 2003:TBD             |                         |
+-----------------+-------------------------+-------------------------+
| Who distributes | State Department of     | "Designated recipient"  |
| funds?          | Transportation          | of Urbanized Area       |
|                 |                         | Formula Program funding |
|                 |                         | within each urbanized   |
|                 |                         | area, usually a local   |
|                 |                         | transit agency or the   |
|                 |                         | Metro­politan Planning   |
|                 |                         | Organization            |
+-----------------+-------------------------+-------------------------+
| What are        | List of eligible        | List of eligible        |
| eligible        | *highway* activities    | *transit* activities    |
| activities?     | provided at the front   | attached.               |
|                 | of the guidance.        |                         |
+-----------------+-------------------------+-------------------------+
| How are         | Varies. Generally,      | FTA grantee applies to  |
| enhancement     | applicants submit       | FTA Regional Office,    |
| funds applied   | request to State DOTs   | once the MPO has        |
| for?            | and MPOs.               | approved the projects   |
|                 |                         | in the local            |
|                 |                         | Transportation          |
|                 |                         | Improvement Program and |
|                 |                         | the State and FTA have  |
|                 |                         | approved the projects   |
|                 |                         | in the State            |
|                 |                         | Transportation          |
|                 |                         | Improve­ment Program.    |
+-----------------+-------------------------+-------------------------+
| Opportunity to  | Citizen Advisory Groups | Meet with local transit |
| Influence       | or other public         | authority and MPO; and  |
| Selection of    | involvement activities. | express interest to MPO |
| Enhancement     |                         | in opportunities (that  |
| Project         |                         | are required) for       |
|                 |                         | public involvement.     |
+-----------------+-------------------------+-------------------------+
| What is the     | 80/20 generally,        | 80/20, except for       |
| Federal share   | although indi­vi­dual     | bicycle projects giving |
| for activities? | projects may have a     | access to transit,      |
|                 | 100% Federal match so   | which are 95/5.         |
|                 | long as the State's     |                         |
|                 | overall Federal/local   |                         |
|                 | share is 80/20 for FY.  |                         |
|                 | 95/5 in States with     |                         |
|                 | heavy Federal Lands     |                         |
|                 | acreage.                |                         |
+-----------------+-------------------------+-------------------------+

**Americans with Disabilities Act (ADA) & TE**

The Americans with Disabilities Act of 1990 (ADA) is legis­la­tion which
prohibits dis­crimina­tion on the basis of disability. Other Federal laws
which affect the design, con­struc­tion, altera­tion, and opera­tion of
facilities include the Archi­tec­tural Barriers Act of 1968 (ABA), and the
Re­habili­ta­tion Act of 1973­­. These laws apply to all Federally funded
facilities. The ADA applies to facilities, both public (title II) and
private (title III), which are not Federally funded. Newly con­structed
and altered facilities co­vered by titles II and III of the ADA must be
readily accessible to and usable by people with dis­abili­ties.

The U.S. Department of Justice's (DOJ) regulations which implement title
II ­of the ADA (28 CFR part 35) describe the obligations of State and
local govern­ments for existing facilities and program operations. For
newly constructed or altered facilities, the DOJ regulations require
title II entities (State and local govern­ment entities) to comply with
either: the Uniform Federal Accessi­bility Stan­dards (UFAS), the standard
referenced in the ABA; or the Ameri­cans with Dis­a­bili­ties Act
Accessi­bility Guidelines (ADAAG), developed by the U.S. Archi­tec­tural
and Trans­por­ta­tion Barriers Com­pliance Board (the Access Board). Future
rulemaking is expected to eli­minate differences between UFAS and ADAAG.
Private sector entities, including lessees, con­cessionaires, and
con­trac­­tors to State and local govern­ments, are governed by the DOJ
title III imple­menting regulations (28 CFR part 36), which adopt ADAAG
as the standard for accessible design.

In July 1999, the U.S. Department of Transportation issued an
Accessibility Policy Statement pledging a fully accessible multi­modal
transportation system. Accessibility in Federally-assisted programs is
governed by the USDOT regu­lations (49 CFR part 27) imple­menting Section
504 of the Reha­bili­­tation Act (29 U.S.C. 794). The FHWA has specific ADA
policies for statewide planning in 23 CFR 450.220(a)(4), for
metropolitan planning in 23 CFR 450.316(b)(3), and for the NEPA process
in 23 CFR 771.105(f). These regulations require appli­ca­tion of the ADA
require­ments to Federal‑aid projects, including Transportation
Enhancement Activities.

ADAAG was intended to apply to all types of buildings and facilities.
Special application sec­tions apply to certain types of buildings and
facilities, such as restaurants, medical facilities, transient lodging,
and trans­por­tation facilities. However, some ADAAG requirements are not
realistic in the outdoor environ­ment because of conditions such as
existing terrain or weather. Recent actions by the Access Board include
proposed accessibility guidelines for play areas, and for certain
recreation facilities. The Access Board expects to issue proposed
guidelines for picnic and camping facilities, beach access routes, and
trails (including trails which may be funded under the TE program) in
early 2000. A committee was estab­lished in November 1999 to develop
guidelines for public rights-of-way, including streets and side­walks.

States must main­tain *program access* under the TE program. *Program
access* prohibits dis­cri­mina­­tion in programs, services, or activities.
Program access does not neces­sarily require ex­cessive retro­fitting of
existing facilities, if the program can be offered through alternative
methods. For example, a public meeting to discuss a TE project may be
moved from an inaccessible location to an accessi­ble loca­tion to
maintain program access.

Sponsors of TE projects should consider the potential uses of each
pro­ject, consider what is reason­able and feasi­ble, and provide for users
in an appro­priate manner. Some TE pro­jects may not require installa­tion
of accessible facilities, such as a project which consists solely of
acqui­si­tion of a scenic ease­ment. Others require full compliance with
ADAAG, such as a newly constructed inter­pre­tive center for a scenic
high­way. Parking, rest­rooms, water fountains, tele­phones, and similar
facili­ties built as part of a TE project must be accessible. Alterations
of historic facilities are covered under 28 CFR 36.405, which provides
some alter­na­tives within ADAAG. Some projects require planning and
coor­dina­tion to deter­mine the extent of program accessibility. For
example, it might not be possible to construct every trail seg­ment
accord­ing to ADAAG, but trail project sponsors must not install barriers
or other features which would make it more difficult for people with
dis­abilities to use the trail.

Technical reports on accessible designs for pedestrian and bicycle
facilities are available through FHWA division offices. FHWA and the
Access Board are developing best practices to apply the ADA to
side­walks, trails, and similar facilities which may use Federal
transportation funds.

***APPENDICES***

This section contains copies of current policy guidance memos as they
exist at publication of this guidance. Further updating of these memos
expected, as needed.

Youth Conservation or Service
Corps\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
25

Transit Enhancements Provision of
TEA-21\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...
31

Davis-Bacon for Transportation Enhancement Projects
Memorandum\...\...\...\...\...\...\...\...\...\.... 34

NEPA Requirement for Transportation Enhancement Activities
Memorandum\...\...\...\...\..... 36

Procurement of Transportation Enhancement Projects
Memorandum\...\...\...\...\...\...\...\...\...\...\... 38

Programmatic Agreement on Transportation Enhancements
Memorandum\...\...\...\...\...\...\...\... 40

Interim Guidance on Applying Section 4(f) on Transportation
Enhancement\...\...\...\...\...\...\... 41

> Projects and National Recreational Trails Projects

Uniform Act and Transportation
Enhancement\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....
50

Property Acquisition by Conservation Organizations for
Transportation\...\...\...\...\...\...\...\...\.... 52

> Enhancement Activities

Environmental Mitigation to Address Water
Pollution\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....
54

Request for Approval of
Exceptions\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....55

**Youth Conservation or Service Corps**

TEA-21 requires the U.S. DOT to encourage the use of youth conservation
or service corps. Legislation: TEA-21 §1108(g):

> \(g\) ENCOURAGEMENT OF USE OF YOUTH CONSERVATION OR SERVICE CORPS.
> *--The Secretary shall encourage the States to enter into contracts
> and cooperative agreements with qualified youth conservation or
> service corps to perform appropriate transportation enhancement
> activities under chapter 1 of title 23, United States Code.*

The definition of a qualified youth conservation or service corps is
taken from existing titles and chapters of the United States Code
(U.S.C.). These sections of the U.S.C. are provided below.

42 U.S.C. Sec. 12572

TITLE 42 ‑ THE PUBLIC HEALTH AND WELFARE

CHAPTER 129 ‑ NATIONAL AND COMMUNITY SERVICE

> SUBCHAPTER I ‑ NATIONAL AND COMMUNITY SERVICE STATE GRANT PROGRAM

Division C ‑ National Service Trust Program

Part I ‑ Investment in National Service

> Sec. 12572. Types of national service programs eligible for program
> assistance

\(a\) Eligible national service programs

The recipient of a grant under section 12571(a) of this title and each
Federal agency receiving assistance under section 12571(b) of this title
shall use the assistance, directly or through sub-grants to other
entities, to carry out full‑ or part‑time national service programs,
including summer programs, that address unmet human, educational,
environmental, or public safety needs. Subject to subsection (b)(1) of
this section, these national service programs may include the following
types of national service programs:

> \(1\) A community corps program that meets unmet human, educational,
> environmental, or public safety needs and promotes greater community
> unity through the use of organized teams of participants of varied
> social and economic backgrounds, skill levels, physical and
> developmental capabilities, ages, ethnic backgrounds, or genders.
>
> \(2\) A full‑time, year‑round youth corps program or full‑time summer
> youth corps program, such as a conservation corps or youth service
> corps (including youth corps programs under division I of this
> subchapter, the Public Lands Corps established under the Public Lands
> Corps Act of 1993 (16 U.S.C. 1721 et seq.), the Urban Youth Corps
> established under section 12656 of this title, and other conservation
> corps or youth service corps that performs service on Federal or other
> public lands or on Indian lands or Hawaiian home lands), that ‑
>
> \(A\) undertakes meaningful service projects with visible public
> benefits, including natural resource, urban renovation, or human
> services projects;
>
> \(B\) includes as participants youths and young adults between the
> ages of 16 and 25, inclusive, including out‑of‑school youths and other
> disadvantaged youths (such as youths with limited basic skills, youths
> in foster care who are becoming too old for foster care, youths of
> limited‑English proficiency, homeless youths, and youths who are
> individuals with disabilities) who are between those ages; and
>
> \(C\) provides those participants who are youths and young adults with
> ‑
>
> \(i\) crew‑based, highly structured, and adult‑supervised work
> experience, life skills, education, career guidance and counseling,
> employment training, and support services; and
>
> \(ii\) the opportunity to develop citizenship values and skills
> through service to their community and the United States.

\(3\) A program that provides specialized training to individuals in
service‑learning and places the individuals after such training in
positions, including positions as service‑learning coordinators, to
facilitate service‑learning in programs eligible for funding under part
I of division B of this sub-chapter.

\(4\) A service program that is targeted at specific unmet human,
educational, environmental, or public safety needs and that ‑

> \(A\) recruits individuals with special skills or provides specialized
> pre-service training to enable participants to be placed individually
> or in teams in positions in which the participants can meet such unmet
> needs; and
>
> \(B\) if consistent with the purposes of the program, brings
> participants together for additional training and other activities
> designed to foster civic responsibility, increase the skills of
> participants, and improve the quality of the service provided.

\(5\) An individualized placement program that includes regular group
activities, such as leadership training and special service projects.

\(6\) A campus‑based program that is designed to provide substantial
service in a community during the school term and during summer or other
vacation periods through the use of ‑

> \(A\) students who are attending an institution of higher education,
> including students participating in a work‑study program assisted
> under part C of title IV of the Higher Education Act of 1965 (42
> U.S.C. 2751 et seq.);
>
> \(B\) teams composed of such students; or
>
> \(C\) teams composed of a combination of such students and community
> residents.

\(7\) A pre-professional training program in which students enrolled in
an institution of higher education ‑

> \(A\) receive training in specified fields, which may include classes
> containing service‑learning;
>
> \(B\) perform service related to such training outside the classroom
> during the school term and during summer or other vacation periods;
> and
>
> \(C\) agree to provide service upon graduation to meet unmet human,
> educational, environmental, or public safety needs related to such
> training.

\(8\) A professional corps program that recruits and places qualified
participants in positions ‑

> \(A\) as teachers, nurses and other health care providers, police
> officers, early childhood development staff, engineers, or other
> professionals providing service to meet educational, human,
> environmental, or public safety needs in communities with an
> inadequate number of such professionals;
>
> \(B\) that may include a salary in excess of the maximum living
> allowance authorized in subsection (a)(3) of section 12594 of this
> title, as provided in subsection (c) of such section; and
>
> \(C\) that are sponsored by public or private nonprofit employers who
> agree to pay 100 percent of the salaries and benefits (other than any
> national service educational award under division D of this
> subchapter) of the participants.

\(9\) A program in which economically disadvantaged individuals who are
between the ages of 16 and 24 years of age, inclusive, are provided with
opportunities to perform service that, while enabling such individuals
to obtain the education and employment skills necessary to achieve
economic self‑sufficiency, will help their communities meet ‑

> \(A\) the housing needs of low‑income families and the homeless; and
>
> \(B\) the need for community facilities in low‑income areas.

\(10\) A national service entrepreneur program that identifies,
recruits, and trains gifted young adults of all backgrounds and assists
them in designing solutions to community problems.

\(11\) An inter-generational program that combines students,
out‑of‑school youths, and older adults as participants to provide needed
community services, including an inter-generational component for other
national service programs described in this subsection.

\(12\) A program that is administered by a combination of nonprofit
organizations located in a low‑income area, provides a broad range of
services to residents of such area, is governed by a board composed in
significant part of low‑income individuals, and is intended to provide
opportunities for individuals or teams of individuals to engage in
community projects in such area that meet unaddressed community and
individual needs, including projects that would ‑

> \(A\) meet the needs of low‑income children and youth aged 18 and
> younger, such as providing after‑school \'\'safe‑places\'\', including
> schools, with opportunities for learning and recreation; or
>
> \(B\) be directed to other important unaddressed needs in such area.

\(13\) A community service program designed to meet the needs of rural
communities, using teams or individual placements to address the
development needs of rural communities and to combat rural poverty,
including health care, education, and job training.

\(14\) A program that seeks to eliminate hunger in communities and rural
areas through service in projects ‑

> \(A\) Involving food banks, food pantries, and nonprofit organizations
> that provide food during emergencies;
>
> \(B\) involving the gleaning of prepared and unprepared food that
> would otherwise be discarded as unusable so that the usable portion of
> such food may be donated to food banks, food pantries, and other
> nonprofit organizations;
>
> \(C\) seeking to address the long‑term causes of hunger through
> education and the delivery of appropriate services; or
>
> \(D\) providing training in basic health, nutrition, and life skills
> necessary to alleviate hunger in communities and rural areas.

\(15\) Such other national service programs addressing unmet human,
educational, environmental, or public safety needs as the Corporation
may designate.

42 U.S.C. Sec. 12656

TITLE 42 ‑ THE PUBLIC HEALTH AND WELFARE

CHAPTER 129 ‑ NATIONAL AND COMMUNITY SERVICE

> SUBCHAPTER I ‑ NATIONAL AND COMMUNITY SERVICE STATE GRANT PROGRAM

Division J ‑ Miscellaneous

Sec. 12656. Urban Youth Corps

\(a\) Findings

The Congress finds the following:

> \(1\) The rehabilitation, reclamation, and beautification of urban
> public housing, recreational sites, youth and senior centers, and
> public roads and public works facilities through the efforts of young
> people in the United States in an Urban Youth Corps can benefit these
> youths, while also benefitting their communities, by ‑
>
> \(A\) providing them with education and work opportunities;
>
> \(B\) furthering their understanding and appreciation of the
> challenges faced by individuals residing in urban communities; and
>
> \(C\) providing them with a means to pay for higher education or to
> repay indebtedness they have incurred to obtain higher education.

\(2\) A significant number of housing units for low‑income individuals
in urban areas has become substandard and unsafe and the deterioration
of urban roadways, mass transit systems, and transportation facilities
in the United States have contributed to the blight encountered in many
cities in the United States.

\(3\) As a result, urban housing, public works, and transportation
resources are in need of labor intensive rehabilitation, reclamation,
and beautification work that has been neglected in the past and cannot
be adequately carried out by Federal, State, and local government at
existing personnel levels.

\(4\) Urban youth corps have established a good record of
rehabilitating, reclaiming, and beautifying these kinds of resources in
a cost‑efficient manner, especially when they have worked in partnership
with government housing, public works, and transportation authorities
and agencies.

\(b\) Purpose

It is the purpose of this section ‑

> \(1\) to perform, in a cost‑effective manner, appropriate service
> projects to rehabilitate, reclaim, beautify, and improve public
> housing and public works and transportation facilities and resources
> in urban areas suffering from high rates of poverty where work will
> not be performed by existing employees;
>
> \(2\) to assist government housing, public works, and transportation
> authorities and agencies;
>
> \(3\) to expose young people in the United States to public service
> while furthering their understanding and appreciation of their
> community;
>
> \(4\) to expand educational opportunity for individuals who
> participate in the Urban Youth Corps established by this section by
> providing them with an increased ability to pursue post-secondary
> education or job training; and
>
> \(5\) to stimulate interest among young people in the United States in
> lifelong service to their communities and the United States.

\(c\) Definitions

For purposes of this section:

\(1\) Appropriate service project

The term \'\'appropriate service project\'\' means any project for the
rehabilitation, reclamation, or beautification of urban public housing
and public works and transportation resources or facilities.

\(2\) Corps and Urban Youth Corps

The term \'\'Corps\'\' and \'\'Urban Youth Corps\'\' mean the Urban
Youth Corps established under subsection (d)(1) of this section.

\(3\) Qualified urban youth corps

The term \'\'qualified urban youth corps\'\' means any program
established by a State or local government or by a nonprofit
organization that ‑

> \(A\) is capable of offering meaningful, full‑time, productive work
> for individuals between the ages of 16 and 25, inclusive, in an urban
> or public works or transportation setting;
>
> \(B\) gives participants a mix of work experience, basic and life
> skills, education, training, and support services; and
>
> \(C\) provides participants with the opportunity to develop
> citizenship values and skills through service to their communities and
> the United States.

**Transit Enhancements Provision of TEA-21**

**Administered by the Federal Transit Administration**

[TEA-21.]{.underline} TEA-21 created the \"transit enhancements\"
provisions in the Urbanized Area Formula Program administered by the
Federal Transit Administration (FTA). TEA-21 established the requirement
that a minimum of one percent of the part of FTA\'s Urbanized Area
Formula Program funding for urbanized areas with populations 200,000 and
over must be made available for activities that are transit
enhancements.

[FTA\'s Urbanized Area Formula Program.]{.underline} Under the FTA
Urbanized Area Formula Program

(Title 49 U.S.C. Section 5307), over \$2 billion is apportioned annually
to urbanized areas with populations of 200,000 and over for transit
capital projects. In Fiscal Year 1999, \$2.3 billion was apportioned to
urbanized areas with populations 200,000 and over. One percent of each
urbanized area's apportionment, or a total of \$23 million, must be used
for transit enhancements. Funds are available for obligation by FTA for
the Federal fiscal year in which the funds are appropriated, plus three
years. Thus, FY 1999 funds are available to be obligated by FTA through
FY 2002.

FTA makes grants in each urbanized area with a population 200,000 and
over to a \"designated recipient.\" A designated recipient is a public
body that has the legal authority to apply for, receive, and dispense
Federal funds in the urbanized area. There is usually one designated
recipient in an urbanized area, but occasionally there is more than one.
There are approximately 400 designated recipients of the FTA program.
Recipients of FTA grant funds are referred to as \"grantees.\"

A designated recipient may allow another public agency to be the direct
applicant for Urbanized Area Formula Program funds. On occasion, a
grantee, whether a designated recipient or not, may choose to pass its
grant funds through to another agency to carry out the purposes of the
grantee\'s agreement with FTA. To do this, the grantee must enter into a
written agreement with the sub-recipient that assures FTA that the
grantee will be able to comply with its obligation to satisfy the
requirements of the grant agreement.

[Eligible Transit Enhancements.]{.underline} The term \"transit
enhancement\" means projects or project elements that are designed to
enhance mass transportation service or use and are physically or
functionally related to transit facilities. Following are the transit
projects and project elements that qualify as transit enhancements. All
must be related to or serve mass transit.

1.  Historic preservation, rehabilitation, and operation of historic
    mass transportation buildings, structures, and facilities (including
    historic bus and railroad facilities);

2.  Bus shelters;

3.  Landscaping and other scenic beautification, including tables,
    benches, trash receptacles, and street lights;

4.  Public art;

5.  Pedestrian access and walkways;

6.  Bicycle access, including bicycle storage facilities and installing
    equipment for transporting bicycles on mass transportation vehicles;

7.  Transit connections to parks within the recipient\'s transit service
    area;

8.  Signage; and

9.  Enhanced access for persons with disabilities to mass
    transportation.

[FTA Administration of the Enhancements Minimum-Expenditure
Provision]{.underline}

[Requirements.]{.underline} One percent of the Urbanized Area Formula
Program apportionment to each urbanized area with a population of
200,000 and over must be made available only for transit enhancements.
When there are several grantees in an urbanized area, it is not required
that each grantee spend one percent of its Urbanized Area Formula
Program funds on transit enhancements. Rather, one percent of the
urbanized area\'s funding must be expended on projects and project
elements that qualify as enhancements.

It will be the responsibility of the Metropolitan Planning Organization
for the urbanized area to determine how the one percent will be allotted
to transit projects. The one-percent is a minimum requirement; more than
one percent of an urbanized area\'s formula program funds may be
expended for transit enhancements. In fact, most of the enhancement
activities listed have long been eligible for funding under the
Urbanized Area Formula Program. However, one item - "operating costs for
historic facilities"---is only eligible for funding when classified as a
transit enhancement activity. (The Urbanized Area Formula Program does
not provide assistance for transit operating costs for areas with
populations 200,000 and over.)

[Project Budget.]{.underline} The project budget for each grant
application that includes a request for enhancement funds must identify
transit enhancements and use the specific budget activity line items
established by FTA for transit enhancements. Assistance with this step
is available from any FTA regional office (see regional office list
below).

[Enhancement Report.]{.underline} The recipient of a grant that contains
an enhancement project must submit a report to the appropriate FTA
regional office listing the projects or elements of projects carried out
with those funds during the previous fiscal year and the amount
expended. The report must be submitted in the Federal fiscal year\'s
final quarterly report.

[Bicycle Access.]{.underline} Projects providing bicycle access to
transit assisted with the FTA enhancement funding are assisted with a 95
percent Federal share. All other transit enhancement activities are
funded with a maximum 80 percent Federal share.

[Enhanced Access for Persons with Disabilities.]{.underline} The costs
of meeting transit requirements set forth by the Americans with
Disabilities Act of 1990 are eligible under all FTA programs.
Enhancement projects or elements of projects designed to enhance access
for persons with disabilities must go beyond the requirements attendant
to the Americans with Disabilities Act.

[FTA Web Site]{.underline}. Information about the Federal Fiscal Year
1999 funding for enhancements can be found on the FTA web site at
www.fta.dot.gov**[/library/]{.underline}****[legal/fr11698a.pdf]{.underline}**.
(Reader should scroll to page 19, for Table 4.)

[FTA Regional Offices]{.underline}. Telephones of the FTA Regional
Offices are listed below.

Region I, Cambridge, Mass., (617) 494-2055.

Region II, New York, NY., (212) 668-2170

Region III, Philadelphia, Pa., (215) 656-7100

Region IV, Atlanta, Ga., (404) 562-3500

Region V, Chicago, Ill., (312) 353-2789

Region VI, Ft. Worth, Tex., (817) 978-0550

Region VII, Kansas City, Mo. (816) 523-0204

Region VIII, Denver, Co. (303) 844-3242

Region IX, San Francisco, Cal. (415) 744-3133

Region X, Seattle, Wash. (206) 220-7954

![](media/image1.emf){width="0.38333333333333336in" height="0.45in"}
**Memorandum**

U.S. Department

of Transportation

Federal Highway Administration

Subject: **[INFORMATION:]{.underline}** Applicability of Date: July 28,
1994

Davis-Bacon For Transportation

Enhancement Projects

Reply to:

From: Acting Chief, Construction and Attn. of: HNG-22

> Maintenance Division

To: Mr. Andy Hughes Director,

Office of Engineering Services (HES-04)

Atlanta, Georgia

Your June 1 memorandum transmitted a request from the Alabama Division
Office for guidance on the applicability of Davis-Bacon (D-B) wage rates
to transportation enhancement projects. The following information is
provided in response to this request.

The D-B predetermined minimum wage must be paid to all covered workers
on Federal-aid projects exceeding \$2,000 that are located on a
Federal-aid highway. Title 23 defines a Federal-aid highway as any
highway eligible for Federal-aid, other than highways classified as
local roads or rural minor collectors. The D-B requirements do not apply
to force account work performed by highway agency forces.

The applicability of D-B to a transportation enhancement project is
dependent on the relationship or linkage of the project to a Federal-aid
highway. If the project is "linked" to a Federal-aid highway based on
[proximity]{.underline} or [impact]{.underline} (i.e., without the
Federal-aid highway the project would not exist), then D-B requirements
apply. Examples of such projects include the removal of outdoor
advertising, a wetland to filter highway drainage, etc.

If the project is not "linked" to a particular Federal-aid highway and
is eligible based solely on [function]{.underline} (i.e., a
transportation facility, such as an independent bike path, the
restoration of a railroad station, etc.), then the D-B requirements do
not apply. However, the D-B requirements apply to all projects greater
than \$2,000 that are physically located within the
[existing]{.underline} right-of-way of a Federal-aid highway, regardless
of the transportation enhancement characteristics.

Another D-B related issue, which has been raised on several occasions,
is the acceptability of using volunteer labor on transportation
enhancement projects. The Department of Labor states in its Field
Operations Handbook (§15e23): "There are no exceptions to D-B coverage
for volunteer labor unless an exception is specifically provided for in
the particular D-B Related Act under which the project funds are
derived." The D-B Related Act for the Federal-aid Highway Program (23
U.S.C. §113) is silent on this subject.

Therefore, on transportation enhancement projects subject to D-B
coverage, a contractor or subcontractor may not use volunteer labor. On
the other hand, a State highway or local government agency may use
volunteer laborers under their direct control as a force account effort.

If you have further questions on the matter, please contact Mr. Robert
S,

Wright of my staff at (202) 366-1558.

David R. Geiger

![](media/image1.emf){width="0.38333333333333336in"
height="0.41805555555555557in"} **Memorandum**

U.S. Department

of Transportation

**Federal Highway Administration**

Subject: **[ACTION:]{.underline}** NEPA Requirements Date: October 28,
1996

for Transportation Enhancement

> Activities (Reply Due: December 15)

From: Rodney E. Slater Administrator Reply to: HEP-30

Attn. of:

To: Regional Administrators

Section 316 of the National Highway System Designation Act of 1995 has
given us a mandate to further streamline the processing of
transportation enhancement activities (TEA) projects under the National
Environmental Policy Act of 1969 (NEPA). Accordingly, as part of the
stream­lining process, Section 316 of the 1995 act directs the Secretary
of Transportation to develop categorical exclusions under NEPA for
TEA\'S.

We already have considerable flexibility under the current regulation to
streamline the NEPA process for TEA\'S, consistent with the principles
of environmental protection and enhancement. For example, Section
771.117(c) identifies actions that, by their nature, meet the criteria
for CE\'s. Some of these actions cover TEA-type projects, namely
construction of bicycle and pedestrian lanes, paths, and facilities;
landscaping; acquisition of scenic easements; and such non-construction
activities as publication of a scenic byways brochure, a historic bridge
photobook, or a geographic information system for archaeological survey
of a transportation project. As the provision states, these actions
"normally do not require any further NEPA approvals\...\..."

Thus, the fact that a TEA project falls within one of these listings is
usually approval enough; NEPA documents and FHWA approval would be
required only if unusual circumstances are involved in the proposed
action or project. Such circumstances include the presence of
signifi­cant environmental impacts, substantial controversy on
environmental grounds, significant impact on properties protected by
Section 4(f) of the Department of Transportation Act of 1966 or Section
106 of the National Historic Preservation Act of 1966, or
inconsistencies with any Federal, State or local requirement relating to
the environment.

Under another provision, Section 771.117(d), additional TEA actions may
quality for a CE classification, but because of the greater possibility
of impacts with these projects, FHWA approval of the classification is
required. The list in this section consists only of examples to
illustrate the types of projects that may qualify; TEA\'s do not have to
match one of the examples to qualify for a CE classification. The
applicant (the State or other project sponsor) is respon­sible for
providing information to allow the FHWA to decide if a CE classification
is proper. It is important to state that because most TEA\'s are
small-scale projects, they should almost always be processed as a CE.
Only a modest amount of information is required to describe their
potential environmental impacts and to demonstrate that they do not have
significant impacts.

For types of projects not listed in Section 771.117(c) or covered by
Section 771.117(d), our approval of a CE classification under Section
771.117(d) can be accomplished on a project-by­-project basis or
programmatically. As discussed in the attached guidance memorandum dated
March 30, 1989, the programmatic approach allows a State transportation
department and the FHWA to concur in advance that additional types of
projects satisfy all the criteria for a CE classification. The use of
programmatic CE approvals has been an effective way of ensuring that the
letter and spirit of NEPA are satisfied in a way that reflects the
particular nature of the environment and the program in each State.

I urge you to review the extent to which each State in your region has
used the programmatic CE approach to ensure that TEA\'s receive the full
advantage of this option. You are encouraged to use the programmatic CE
process for TEA projects whether or not they are included in the lists
of example projects in the Section 771.117(c) or (d). When we modify 23
CFR 771, a section will be included to state that all TEA projects
normally should be processed as CE\'s. This change will be consistent
with Section 316 of the 1995 act.

To advise the Congress regarding the status of our streamlining efforts,
I request that you provide us a brief description, by December 15, of
any process used for streamlining NEPA approvals for TEA\'s in your
States. Please describe how the CE classification has been applied to
TEA projects under Section 771.117(c) and (d). Where programmatic
approvals have been used, we would like to know which types of projects
are covered, whether other types of projects have been proposed but not
approved, and the process for securing approvals, including the roles of
the State transportation department, the FHWA division office, and
project sponsors in assembling and reviewing environmental
documentation. We would also like to know about cases where a TEA
project required preparation of an EA or an EIS.

Attachment

![](media/image1.emf){width="0.38333333333333336in"
height="0.41805555555555557in"} **Memorandum**

U.S. Department

of Transportation

**Federal Highway Administration**

Subject: **[INFORMATION]{.underline}:** Procurement of Date: November
12, 1996

Transportation Enhancement Projects

From: Associate Administrator for From: Associate Administrator for
Reply to HNG-22

Program Development

To: Regional Administrators

In response to several inquiries from the field, we have decided to
authorize the State highway agencies (SHA\'s) to procure transportation
enhancement projects, not located within the highway right-of-way, under
the procedures of the "Common Rule." This decision is consistent with 49
CFR 18.36(j) and our treatment of other nontraditional programs funded
with Federal-aid funds, such as the Recreational Trails Program.

The Federal Highway Administration (FHWA) was one of the 23 Federal
Agencies that adopted the "Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments" (also
known as the Common Rule - 49 CFR 18). The FHWA adopted the Common Rule
on March 11, 1988. The Office of Management and Budget approved certain
exceptions to the Common Rule based on existing legislation specific to
each agency that adopted the rule.

One of the FHWA\'s exceptions to the Common Rule provides for
competitive bidding on highway construction projects. Specifically, 49
CFR 18.36(j) states:

*"23 U.S.C. 112(a) directs the Secretary to require the recipients of*
*highway construction grants to use bidding methods that are "effective*
*in securing competition.\" Detailed construction contracting*
*procedures are contained in 23 CFR part 635, subpart A."*

This exception to the Common Rule was developed prior to the passage of
the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 and
implementation of the transportation enhancement program established in
the ISTEA. Since that time, SHA\'s and local public agencies have
developed numerous enhancement projects that are transportation related,
but may not always be located within the highway right-of-way. Some of
these projects are relatively low cost (e.g., restoration of historic
railroad stations, hiking/bicycle paths, landscaping and scenic
beautification).

It is often not cost-effective to use the competitive bidding procedures
in 23 CFR 635A to procure such services for low cost projects. The
Common Rule offers more flexibility to the States with regard to the
method of procurement for such low cost projects. Therefore,
transportation enhancement projects not located within the highway
right-of-way may be procured under State procedures.

Highway related projects must still meet the linkage criteria noted in
our July 28, 1994, memorandum concerning the applicability of
Davis-Bacon to Transportation Enhancement Projects (copy attached). A
project would be highway related if it is "linked" to a Federal-aid
highway based on proximity or impact (i.e., without the Federal-aid
highway the project would not exist). For transportation enhancement
projects that are within the highway right-of-way, a contracting agency
will continue to follow the procedures in 23 CFR 635A.

We intend to address these and other FHWA Common Rule exceptions in a
future rulemaking.

Thomas J. Ptak

Attachment

> ![](media/image1.emf){width="0.38333333333333336in"
> height="0.3861111111111111in"} **Memorandum**

U.S. Department

of Transportation

**Federal Highway Administration**

Subject: **[INFORMATION:]{.underline}** Programmatic Agreement Date:
June 11, 1997

on Transportation Enhancements

From: Chief, Environmental Analysis Division Reply to

> Attn of: HEP-40

To: Regional Administrators

Federal Lands Highway Program Administrator

Attached for your information, consideration, and use by State DOT's is
a copy of the new programmatic agreement on transportation enhancements.
This nationwide agreement with the Advisory Council on Historic
Preservation and the National Conference of State Historic Preservation
Officers (SHPO's) is expected to reduce the time spent by State DOT's in
project review, consultation, and processing of transportation
enhancement activities. It will accomplish this by encouraging local
coordination and public participation, and reducing the need for
project-by-project coordination with out-of-State groups. In addition,
the agreement permits the SHPO and the State DOT to exercise judgment in
weighing the benefits of the project against minor, but measurable,
adverse changes to historic qualities. The net result as one State DOT
noted, will be to greatly assist in the implementation of the ISTEA, and
to reduce the time to process projects by 30 to 60 days.

The Acting Administrator has signed this nationwide programmatic
agreement on behalf of the FHWA. Individual States may activate this
programmatic agreement by sending concurrent letters of acceptance to
the three signatories and to the SHPO and the FHWA Division Office. The
FHWA Division Administrator will be the Agency official with
responsibility for ensuring that the agreement is carried out.

Use of this nationwide programmatic agreement is NOT mandatory. States
DO NOT have to adopt it for their enhancements projects. Many States
have already developed agreements that work for them; and those
agreements remain in effect. Some States may wish to adapt the approach
conveyed in this agreement and further tailor it for their specific
program needs. Please advise the State that if they choose to adapt this
agreement and create a new one, they will need to develop it in
consultation with the FHWA Division, the SHPO, and the ACHP.

If you have any questions please contact Mr. Bruce Eberle, FHWA Historic
Preservation Officer. He may be reached at (202) 366-2060.

James M. Shrouds

![](media/image2.emf){width="0.38333333333333336in"
height="0.41805555555555557in"} **Memorandum**

U.S. Department

of Transportation

**Federal Highway Administration**

Subject: [ACTION]{.underline}: Interim Guidance Date: Aug. 22, 1994

on Applying Section 4(f)

On Transportation Enhancement

Projects and National Recreational

Trails Projects

From: Director, Office of Environment Reply to

> and Planning Attn of: HEP-31

To: Regional Administrators

Federal Lands Highway Program Administrator

The Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), in
Section 1007(c), created "Transportation Enhancements" and identified 10
specific types of activities which could receive such funds. The ISTEA,
in Section 1302, also created the National Recreational Trails Funding
Program (often referred to as the Symms Act), which is designed to fund
"recreational" trails projects. The objective of both of these programs
is to enhance resources. In many cases, these two programs would be
considered to also fall under the strict interpretation of Section 4(f)
requirements since both programs, especially the National Recreational
Trails, could involve working on a 4(f) protected resource. This office
has received numerous regulation/policy interpretation requests on
whether and how to apply Section 4(f) to these two programs.

However, ISTEA and Section 4(f) are directed towards preserving,
protecting and enhancing Section 4(f) properties. The ISTEA, by its very
title, is looking for ways to make program and project delivery more
efficient. Thus, it is inconceivable that these two statutes, both of
which contain preservationist purposes should be interpreted in such a
manner that potential enhancement and trail project applicants would be
saddled with burdensome paperwork, a rigorous alternatives analysis
process, and circulation requirements which would substantially delay
project implementation when the sole purpose of the project is to
enhance or create a 4(f) protected resource. In keeping with the goals
of the current Administration and mandates from the National Performance
Review, this guidance will simplify project processing by streamlining
applicable environmental requirements and review times.

This office has determined that Section 4(f) should not be applied to
the National Recreational Trails Funding Program and that it should only
be applied to the "Transportation Enhancements" Program when certain
conditions are [not]{.underline} met by each project. The attached
interim guidance contains the basis for these determinations.

Because the Federal Transit Administration, the Federal Railroad
Administration, and the Federal Highway Administration are currently in
the early stages of issuing a Notice of Proposed Rulemaking to revise 23
CFR 771, which contains the Agency\'s environmental and 4(f)
requirements, we are issuing these determinations as an interim measure
until changes to 23 CFR 771 can be promulgated through the regulatory
rulemaking process. In order to ensure that other resource agencies,
organizations, and individuals with an interest in this area are aware
of these determinations, we will publish this interim guidance in the
*Federal Register* as a final policy interpretation. Once 23 CFR 771 has
been revised to address this subject, the interim guidance will become
null and void.

Kevin E. Heanue

Attachment

Section 4(f) Interim Guidance

on

Transportation Enhancement Activities

and the

National Recreational Trails Program

All of our current regulations, policy, and guidance on Section 4(f) has
been written to comply with 49 U.S.C. Section 303, which is the
recodified version of Section 4(f) of the 1966 DOT Act. Section 303
reads as follows:

It is the policy of the United States Government that special effort be
made to preserve the natural beauty of the countryside and public park
and recreation lands, wildlife and waterfowl refuges, and historic
sites.

The Secretary of Transportation shall cooperate and consult with the
Secretaries of the Interior, Housing and Urban Development, and
Agriculture, and with the States, in developing transportation plans and
programs that include measures to maintain or enhance the natural beauty
of lands crossed by transportation activities and facilities.

The Secretary may approve a transportation program or project requiring
the use of publicly owned land of a public park, recreation area, or
wildlife and waterfowl refuge, or land of an historic site of national,
State, or local significance (as determined by the Federal, State, or
local officials having jurisdiction over the park, recreation area,
refuge, or site) only if:

> \(1\) there is no prudent and feasible alternative to using that land;
> and
>
> \(2\) the program or programs includes all possible planning to
> minimize harm to the park, recreation area, wildlife and waterfowl
> refuge, or historic site resulting from the use.

Section 138 of Title 23 U.S.C. (which applies only to the Federal-aid
highway program), contains similar language, with one distinct
difference. The portion of Section 138 that parallels Section 303(c) has
an additional sentence at the end that reads, "In carrying out the
national policy declared in this section, the Secretary, in cooperation
with the Secretary of the Interior and appropriate State and local
officials, is authorized to conduct studies as to the most feasible
Federal-aid routes for the movement of motor vehicular traffic through
or around national parks so as to best serve the needs of the traveling
public while preserving the natural beauty of these areas."

Because the TE program and the National Recreational Trails Funding
Program are administered by the Federal Highway Administration (FHWA)
which is an Agency of the U.S. Department of Transportation, both are
subject to the provisions of Section 4(f) as programs or projects just
as the Federal-aid highway program is subject to these provisions. Thus,
determinations can be made at either the program or project level that
the provisions of Section 4(f) do not apply provided certain conditions
are satisfied. Because of past experience with highway projects having
impacts ranging from no impact to total acquisition, when the FHWA has
used a project level determination. Basically, a two-step process is
used when determining whether or not to prepare a Section 4(f)
evaluation for an individual project, and should one of the steps not be
satisfied, the provisions of Section 4(f) would not apply to the project
in question. This two-step process is as follows:

> 1\. First, it must be determined that we are in fact dealing with a
> resource that is protected by the provisions of Section 4(f). These
> resources are parks, recreation areas, wildlife/waterfowl refuges, and
> historic/archeological sites on or eligible for the National Register
> of Historic Places.
>
> 2\. Second, there must be a \"use\" of land from the Section 4(f)
> resource for a transportation facility/project. Title 23 CFR
> 771.135(p) defines "use" in three ways: (1) When land is permanently
> incorporated into a transportation facility, (2) When there is a
> temporary occupancy of land that is adverse in terms of the statute\'s
> preservationists purposes as determined by the criteria in paragraph
> (p)(7) of 23 CFR 771.135, and (3) When there is a constructive use of
> land.
>
> Note: At this point we are only dealing with whether we have a
> resource and whether we are \"using\" land from that resource. We are
> not dealing with the \"feasible and prudent\" alternative test.

The FHWA\'s Section 4(f) Policy Paper dated September 24, 1987, provides
additional information on implementing both of these steps on individual
projects. But, as stated earlier, should one or both of the above steps
receive a negative response, a 4(f) evaluation is not required. What is
required is that this fact be documented in the NEPA document for the
project in question. Although, the two new ISTEA programs have some
commonalities, they are quite different, Thus, the remainder of this
guidance will deal with how the two-step process should be implemented
for each of these new ISTEA programs.

[Transportation Enhancement Activities]{.underline}

Section 1007 of ISTEA established the Surface Transportation Program
(STP) Funds, of which the Transportation Enhancement Activities are a
part. Currently, only the following ten activities are eligible for
funding as transportation enhancements:

9.  Provision of facilities for pedestrians and bicycles.

2\. Acquisition of scenic easements and scenic or historic sites.

3\. Scenic or historic highway programs.

4\. Landscaping and other scenic beautification.

> 5\. Historic preservation.
>
> 6\. Rehabilitation and operation of historic transportation buildings,
> structures, or facilities (including historic railroad facilities and
> canals).
>
> 7\. Preservation of abandoned railway corridors (including the
> conversion and use thereof for pedestrian or bicycle trails).
>
> 8\. Control and removal of outdoor advertising.

9.  Archeological planning and research.

10. Mitigation of water pollution due to highway runoff.

While all of the above activities could potentially impact 4(f)
resources, we have determined that of these ten activities, six (TEA's
1, 2, 3, 4, 5, 6, and 9 as listed above) have the greatest likelihood of
impacting a 4(f) resource. This is because the resource to be enhanced
by the TEA project is in all likelihood a 4(f) protected resource.
Therefore, the first step of the two-­step process is usually satisfied,
the resource is a 4(f) protected property. The second step must then be
analyzed. Are we using the resource based on the three types of \"use\"
contained in 23 CFR 771.135(p)? Upon reviewing existing regulations,
policy, and guidance, we have determined that the question of \"use\"
for TEA's 1, 3, 9, 6, and 9 (as listed above) are already covered by
existing regulations, policy, and/or guidance. The applicable
regulation, policy, and/or guidance is as follows:

> 1\. Bicycle and pedestrian facilities (TEA #1) is covered by our May
> 23, 1977 memorandum (copy attached) titled, "Negative
> Declaration/Section 4(f) Statement for Independent Bikeway or Walkway
> Construction Projects." Although old, this memo is still valid.
>
> 2\. Historic highway programs and the rehabilitation/operation of
> historic transportation buildings, structures, or facilities TEA #3
> and 6 are currently covered by 23 CFR 771.135(f). This section of our
> regulation outlines conditions under which Section 4(f) would not
> apply to projects that restore, rehabilitate, or perform maintenance
> on transportation facilities that are on or eligible for the National
> Register of Historic Places. The term \"facilities\" is being broadly
> defined in this case to include buildings and structures, but they
> must have a transportation related history. The Scenic Highway Program
> (the other half of TEA #3) is merely a designation applied to existing
> facilities and does not grant Section 4(f) protection. Thus, a
> designation of scenic is an identification tool similar to
> designations such as a U.S. Route, State Route, "I", etc. and alone
> does not invoke Section 4(f). TEA #9, Archaeological planning and
> research, is covered by the provisions of 23 CFR 771.135(g), which
> state that 4(f) does not apply should an archaeological resource
> on/eligible for the National Register be important only for the data
> which it contains, thus, not warranting preservation in place.

Thus, only TEA #2 and 5 require some form of regulation/policy
interpretation at this time. TEA\'s #2 and 5 involve the acquisition of
scenic easements and scenic or historic sites, and the preservation of
historic structures, respectively. It should be noted that the simple
designation of something as scenic does not automatically grant it 4(f)
protection. This protection would only be granted if the scenic
designation is basically an adjective used to further describe a
resource already granted protection, such as a scenic trail or
historical scenic site. However, historic sites are 4(f) protected
resources, provided they are on or eligible for the National Register.
Thus, what must be analyzed is whether we are using land from the
resource in keeping with the three types of use in 23 CFR 771.135(p). We
have examined this matter extensively and render the following
determinations:

\(i\) Section 4(f) is invoked whenever Section 4(f) land is acquired for
permanent incorporation into a transportation facility. However, the
simple act of acquiring land/property does not automatically invoke
4(f). It is the change in land use from 4(f) protected to a
transportation facility that causes 4(f) to be invoked. If the
land/property is being acquired solely for the protection, preservation,
or enhancement of a scenic or historic site, the official with
jurisdiction has been consulted and concurs with the acquisition, and
conditions, such as historical covenants, deeding to other governmental
land management agencies, etc., are in place to provide long-range
protection. Then, the provisions of 4(f) do not apply since there is no
permanent incorporation of land into a transportation facility.

\(ii\) Generally, there will not be many instances of temporary
occupancy of scenic/historic land for these two TEA's. However, should
there be a temporary occupancy, as long as it can be documented that
this occupancy is not adverse in keeping with the provisions of 23 CFR
771.135(p)(7).\' Then, 4(f) does not apply.

\(iii\) Constructive use occurs when the proximity impacts from a
transportation project (the TEA in this case) substantially impairs the
activities, features, or attributes of an adjacent 4(f) protected
resource. Because constructive use deals with adjacent resources, it
must still be examined for these and other TEA's.[^1] However, we feel
this would be a very rare occurrence. Coordination with the official
with jurisdiction is required prior to making final determination on
temporary occupancy and construction use.

The following examples were developed to aid in making determinations on
whether there is a "use" of land from a 4(f) resource on a case-by-case
basis. These examples were developed in keeping with existing
guidance/policy and the three determinations made above.

> · A bikeway constructed in a park in a case where the bikeway is under
> the park agency\'s jurisdiction would not be a 4(f) use since the
> parkland is not permanently incorporated into a transportation
> facility, but continues to function as parkland.

· A bikeway constructed in a park in a case where the bikeway is not
under the park agency\'s jurisdiction would be a Section 4(f) use since
parkland would be permanently incorporated in a transportation facility.
In this case FHWA\'s May 23, 1977 memorandum titled, \"Negative
Declaration/Section 4(f) Statement for Independent Bikeway or Walkway
Construction Projects\" would apply.

· Acquisition of fee simple or easement interests in scenic or historic
sites would not as a general rule be a Section 4(f) use unless the site
were altered in an adverse way or the setting were disturbed in such a
way that resulted in the site being permanently incorporated into a
transportation facility, being temporarily and adversely occupied by a
transportation facility, or being constructively used by proximity
impacts from a transportation facility. Absent the above conditions,
acquisition of a property interest in a scenic or historic site would
not constitute a Section 4(f) use.

1.  Installation of interpretive facilities (signs, kiosks, etc.) for
    scenic or historic highways located within parks or refuges done at
    the request of the park or refuge manager, would not be a Section
    4(f) use since the improvements would be a park or refuge amenity
    rather than a feature of the transportation facility (i.e. the
    improvements support the park/refuge function, not the
    transportation function and are, therefore, more properly an element
    of the park or refuge rather than a permanently incorporated element
    of the transportation facility).

    · Rehabilitation of a historic transportation building structure, or
    facility would not be a Section 4(f) use (See 23 CFR 771.135(f))
    provided the proposed work would not adversely affect the historic
    qualities of the facility.

    · Preservation of a historic non-transportation property would
    typically not be a Section 4(f) use since the property would
    ordinarily not be permanently incorporated into a transportation
    facility, and temporary adverse occupancy and constructive use would
    generally not be an issue.

    · Archeological planning and research activities would not
    constitute a Section 4(f) use in those cases where the archeological
    field work is restricted to sites that are not being permanently
    incorporated into a transportation facility, or if permanently
    incorporated, are not important for preservation in place (See 23
    CFR 771.135(g)).

    [National Recreational Trails Funding Program (NRTFP)]{.underline}

    With the inclusion of this program in ISTEA, FHWA has the task of
    administering this recreational program at the Federal level. As
    stated earlier, FHWA has used a project level 4(f) determination for
    complying with the provisions of Section 303 of 49 U.S.C. and
    Section 138 of Title 23 U.S.C.. However, both of these sections
    allow a program level determination (see wording on pg. 1 for both
    of these laws). We do have some precedent in this area. The Great
    River Road, program was excluded from the provisions of Section 4(f)
    at the program level rather than requiring normal project level
    determinations. A determination was also rendered that 4(f) did not
    apply to projects involving the construction of access ramps to
    public boat launching facilities within 4(f) resources. In both
    cases, it was found that applying the test of \"feasible and prudent
    alternatives\" resulted in alternatives being developed that were
    impractical and unreasonable and that would result in positive
    benefits to the resource being precluded in order to totally avoid
    impacting the 4(f) resource. This is not in keeping with the goal
    and spirit of 4(f). Since the NRTFP is similar to these two programs
    for which 4(f) did not apply, we have determined that Section 4(f)
    does not apply to the NRTFP. This determination is based on the
    following facts and reasoning:

    1\. The NRTFP is officially designated a recreational program at the
    Federal level, and the projects to be funded under the program must
    be included in or shown to-further the goals of the Statewide
    Comprehensive Outdoor Recreational Plan (SCORP) which is reviewed
    and approved by DOI. Thus, all NRTFP projects are recognized as
    recreational projects at the Federal level.

    2\. Section 4(f) applies when there is a \"use\" of land from a
    Section 4(f) protected resource. \"Use\" is defined in 23 CFR as
    being \"(i) when land is permanently incorporated into a
    transportation facility; (ii) when there is a temporary occupancy of
    land that is adverse in terms of the statute\'s preservationist
    purposes \... ; (iii) when there is a constructive use of land\".
    None of these \"uses\" will occur under the NRTFP e.g., (1) land
    will not be permanently incorporated into a transportation facility
    since all facilities will officially be recreational facilities and
    seldom if ever will there be any transfer of land from one party to
    another, (2) since most projects will occur inside the boundaries of
    a 4(f) resource, the projects generally will not involve temporary
    occupancy of land. However, where temporary occupancy does occur,
    the program is intended to further and enhance, not hinder, the
    preservationist purposes espoused by Section 4(f), and (3)
    constructive use occurs when proximity impacts from transportation
    projects substantially impair 4(f) resources. Since NRTFP projects
    are recreational projects the provisions of \"constructive use\" do
    not apply.

    3\. Since most projects will occur within the boundaries of a 4(f)
    protected resource, owned in most cases by the funding applicant, it
    is unreasonable-to request that the applicant seek land outside his
    own property to perform a project. Therefore, the evaluation of
    prudent and feasible alternatives to performing the project within
    the applicant\'s property boundaries is unreasonable and
    impractical.

    4\. The final receiver of funds will in most cases be either a
    public recreational agency or a private recreational entity.
    Therefore, the funds have no transportation linkage other than the
    role FHWA plays in administering this recreational program.

    5\. Discussions have been held with other Federal agencies normally
    involved in the funding of trail projects such as the U.S. Forest
    Service, the National Park Service, and the Bureau of Land
    Management. Although they did express some concerns about overall
    program implementation, they were comfortable with the approach that
    4(f) should not be applied to this program.

    No further work is required by our region or division offices from a
    Section 4(f) standpoint for the NRTFP. However, it must be
    remembered that NEPA and other applicable Federal laws, such as the
    Clean Water Act, the National Historic Preservation Act, etc,, must
    still be complied with by the State/local applicant to obtain
    program funds. We suggest that this compliance be documented under
    our normal project development process using the NEPA document as
    the tool.

+-----------------------------------------------------------------------+
| **Memorandum**                                                        |
|                                                                       |
| ![](media/image2.emf){width="0.38333333333333336in"                   |
| height="0.5145833333333333in"}                                        |
|                                                                       |
| U.S. Department                                                       |
|                                                                       |
| of Transportation                                                     |
|                                                                       |
| **Federal Highway**                                                   |
|                                                                       |
| **Administration**                                                    |
|                                                                       |
| Subject: **[INFORMATION:]{.underline}** The Uniform Act and Date:     |
| November 1, 1996                                                      |
|                                                                       |
| Transportation Enhancements                                           |
|                                                                       |
| > Reply to                                                            |
|                                                                       |
| From: Associate Administrator for Attn of: HRE-01                     |
|                                                                       |
| Program Development                                                   |
|                                                                       |
| To: Regional Administrators                                           |
|                                                                       |
| New Federal-aid program partners, such as transportation enhancement  |
| sponsors, often view the Uniform Act as a complex set of              |
| requirements, though with an important purpose - to protect the       |
| rights of property owners and ensure equitable treatment for          |
| displaced persons. In order to relieve some of the concern about the  |
| complexity, we want to highlight the simplified acquisition           |
| procedures available under the Uniform Act regulations. The           |
| regulations \[49 CFR 24. 1 01 (a)(2)\] specifically allow so-called   |
| \"voluntary transactions\" by entities that lack condemnation         |
| authority, such as non-profit organizations.                          |
|                                                                       |
| The government-wide Uniform Act regulations have contained voluntary  |
| transaction provisions since 1989 in order to accommodate the program |
| needs of other Federal agencies. For example, the property needs of   |
| many Department of the Interior (DOI) programs do not rely on         |
| invoking eminent domain authority, which typically is a necessary     |
| option in the highway program where project alignment dictates        |
| specific parcels. Many, if not most, Federal-aid transportation       |
| enhancement activities are quite similar to these DOI acquisitions.   |
| Although they were not initially thought of in terms of the           |
| Federal-aid highway program, voluntary transaction procedures clearly |
| can be used to reduce the complexity of acquisitions, especially in   |
| certain transportation enhancement situations.                        |
|                                                                       |
| Voluntary transaction procedures may be used by a private entity if   |
| the acquisition\--and this is the key\--is, indeed, voluntary.        |
| Voluntary means that the owner is informed in writing by the private  |
| entity acquiring the property that it is unable to acquire the        |
| property if negotiations fail. In other words the potential buyer     |
| must convey clearly its intention to \"walk away\" if the owner does  |
| not agree to sell the property. When this condition is met, the       |
| acquiring entity then needs only to provide the owner with an         |
| estimate of the fair market value of the property. When these two     |
| conditions are met, no other Uniform Act requirements apply to the    |
| owner. If there are any tenants on the property, they remain eligible |
| for relocation assistance as if they were displaced under the threat  |
| of condemnation.                                                      |
+-----------------------------------------------------------------------+

+-----------------------------------------------------------------------+
| Federal-aid transportation enhancements embody the new partnerships   |
| we are striving to build under ISTEA and our strategic plan. We       |
| encourage you to ensure Division office staff and State partners are  |
| fully aware of the voluntary transaction procedures and encourage     |
| their use in acquiring property for transportation enhancements       |
| wherever appropriate.                                                 |
|                                                                       |
| Thomas Ptak                                                           |
+-----------------------------------------------------------------------+

> Cover page to FHWA Memorandum, \"Implementation Guidance - Section 315
> NHS Act\"
>
> Property Acquisition by Conservation Organizations
>
> for Transportation Enhancement Activities
>
> The Uniform Relocation Assistance and Real Property Acquisition
> Policies Act (the Uniform Act) provides protections and benefits for
> persons whose real property is acquired and/or who are displaced by a
> Federal or Federally-assisted program or project. It is one of the
> most fundamental and wide-ranging cross-cutting Federal funding
> requirements. Its roots lie in the Constitution itself, and it is a
> recognition of the vulnerability of the average person faced with
> government\'s power of eminent domain.
>
> In 1987, Congress expanded the Uniform Act\'s requirements beyond
> government agencies to apply to any person or organization acquiring
> property or causing displacement for a project receiving Federal
> financial assistance. This expansion meant that various persons and
> organizations that do not have eminent domain authority (the right to
> condemn property) must also comply with the requirements of the
> Uniform Act.
>
> [Voluntary Transactions]{.underline}
>
> FHWA, in its government-wide regulations implementing the Act,
> provided much simplified requirements for these \"voluntary
> transactions\" by such persons or organizations. When the acquisition
> of property meets the \"voluntary transactions criteria of the Uniform
> Act regulations, the person, organization, or government agency can
> considerably streamline the purchase of the property. The key to this
> expedited process is that the purchaser must not be able or willing to
> condemn the property is the owner refuses to sell it. Guidance on
> \"voluntary transactions\" is provided in the November 1, 1996
> Memo,\"The Uniform Act and Transportation Enhancements.\"
>
> [Conservation Organizations Exemption from Uniform Act]{.underline}
> (Section 315-N.S. Act)
>
> Section 315 of the N.S., which applies to transportation enhancement
> activities only, exempts qualified conservation organizations from the
> requirements of the Uniform Act. This allows conservation
> organizations more flexibility in acquiring property from third
> parties which subsequently is used in Federally-assisted projects.
>
> On February 20, 1996, guidance was issued on this new flexibility in
> applying the Uniform Act and the criteria for doing so, in the
> Memo,\"Implementation Guidance-Section 315 N.S. Act.\" Conservation
> organizations are not required to be covered by the Act expect in two
> statutorily­ prescribed circumstances: (1) where they are acting not
> for themselves but as the agent of a recipient of Federal funds, or
> (2) when Federal approval to acquire real property occurred before the
> involvement of the conservation organization. Section 315 allows
> conservation organizations to participate in transportation
> enhancement activities with a minimum of administrative burden while
> maintaining the fundamental protections of the Uniform Act.
>
> **Environmental Mitigation to Address Water Pollution due to Highway
> Runoff or Reduce Vehicle Caused Wildlife While Maintaining Habitat
> Connectivity**
>
> Examples of TE projects in this category:

Fletchers Creek Wetland Restoration, Millford, Connecticut. Minor
drainage improvements which involved the retrofitting of culverts and
tide gates to allow for additional tidal flow to enter the salt marshes
within Fletchers Creek to help restore the marshes which had been
degraded from the construction of a now abandoned service road and a
trolley line.

Kent's Hill Section Highway Runoff Mitigation Project, Reedfield, Maine.
This section of State Route 17 experienced road surface runoff that was
causing erosion and sedimentation problems that were impacting a wetland
and two lakes. The drainage section was very steep and roadside ditches
were deep and unsafe. The Department of Transportation was performing
emergency repair to the ditches after major storm events. The TE program
helped provide funds to construct two ponds, a dry pond, and a wet pond
and stabilize the steep slopes along the roadside.

\- Runoff Mitigation on Searles Prairie, Arkansas. Searles Prairie
Natural Area is a native tall grass prairie remnant located in northwest
Arkansas in the City of Rogers. The 10‑acre virgin prairie, which has
never been plowed, is located near Arkansas State Highway 62 and
Dixieland Road. With the increased development in the vicinity and the
scheduled road improvements this natural prairie area, which was located
in a natural low spot, was threatened with the potential of filtering a
large increase in surface runoff. The City of Rogers, working with the
Arkansas State Highway Department, developed a project that was financed
through the TE program. The project involved the building of an upstream
storm structure to intercept surface runoff and convey the runoff to
up-sized drainage pipes that diverted flow around the native tall grass
prairie to protect the highly valued natural prairie.

Cucumber Creek Nature Preserve Expansion, Oklahoma. A TE project was
completed in southeastern Oklahoma near State Highway 259 to improve the
water quality conditions in Cucumber Creek. To mitigate the impacts of
the existing highway runoff, the land between the highway and stream was
regraded and stabilized to prevent future erosion and pollution problems
in the creek.

> ![](media/image2.emf){width="0.38333333333333336in"
> height="0.5145833333333333in"}
>
> U.S. Department
>
> of Transportation
>
> **Federal Highway Administration**
>
> Subject: **[ACTION]{.underline}:** Request for Approval of Exceptions
> Date: July 28, 1999
>
> From: Kenneth R. Wykle Reply to
>
> Administrator Attn of: HCC-30
>
> RBlack, x61359
>
> To: The Secretary
>
> **[THROUGH:]{.underline}** The Deputy Secretary
>
> This memorandum requests that you approve an exception in the law that
> would allow States more flexibility in determining where they can use
> their Transportation Enhancement (TE) funds. A general provision of
> the Surface Transportation Program (STP) law restricts the classes of
> highway projects for which STP funds may be used, unless the Secretary
> approves an exception. Because TE projects are part of the STP, this
> general provision has the effect of restricting the use of TE funds.
> In many cases, these restrictions make no sense in light of the TE
> program mandate and the restriction undermines the effectiveness of
> the TE program. This memorandum requests that you except all TEs from
> this restriction.
>
> The STP was established by the Intermodal Surface Transportation
> Efficiency Act of 1991 (ISTEA) and continued by the Transportation
> Equity Act for the 21\" Century (TEA-21). The STP funds are available
> for 14 categories of eligible projects, 23 U.S.C. § 133(b). Section
> 133(c) includes the general limitation that STP projects not be funded
> on \"roads functionally classified as local or rural minor collectors,
> unless such roads are on a Federal-aid highway system on January 1,
> 199 1, and except as approved by the Secretary (emphasis added).
>
> One of the eligible categories is TE projects, defined by 23 U.S.C. §
> 101(35). The TE projects include provision of facilities for
> pedestrians and bicycles; landscaping and other scenic beautification;
> historic preservation; preservation of abandoned railway corridors;
> and environmental mitigation to address water pollution due to highway
> runoff. The definition of TE contains the requirement that each
> activity \"relate\[s\] to surface transportation.\"
>
> Because TEs are part of the STP, the general location restriction of §
> 133(c) applies to them; TE projects cannot be located on local or
> rural minor collector roads. Given the nature of many of the 12
> categories of TEs, however, it is clear that the location limitation
> of § 133(c) cannot apply to them. Provision of safety and educational
> activities for pedestrians and bicyclists, preservation of abandoned
> railway corridors, or archaeological planning and research are not
> tied to a location on a highway. Even for TE projects which could be
> connected to a particular highway, such as historic preservation and
> scenic enhancements, the location restriction of § 133(c) is often at
> odds with what the TE program seeks to accomplish. By granting a
> general waiver of TE projects, as permitted by § 133(c), the
> administration of TE projects would be greatly simplified and made
> consistent with the apparent purpose of the statute. The TE activities
> will still have to relate to surface transportation. This definitional
> provision cannot be waived and provides adequate protection against
> potentially inappropriate expansion of the TE program.
>
> **RECOMMENDATION:** I recommend that you approve the TE exception from
> the location of project limitation of § 133(c) of Title 23 of the
> United States Code, thereby giving the States increased flexibility in
> determining where their TE projects will be constructed.
>
> APPROVED: **X**
>
> DISAPPROVED:
>
> DATE: 10-15-17
>
> **Transportation Enhancement Q & A's**
>
> 1\. The TE Guidance provides a lot of information, but does not cover
> all aspects of transportation enhancements. Where should we go for
> FHWA policies on areas not discussed in the Guidance?
>
> Transportation Enhancement Activities have some special
> characteristics, but they are still part of the FHWA's federal-aid
> highway program. The TE Guidance covers special characteristics and
> situations unique to enhancements. Otherwise, the general FHWA
> regulations on payment procedures, civil rights, planning, engineering
> and traffic operations, right-of-way, and environment apply. For more
> information on FHWA policies as applied to transportation
> enhancements, we recommend discussions with the FHWA transportation
> enhancements coordinator in the local FHWA division office, usually
> located in the state capital.
>
> FHWA Division Office TE coordinators are encouraged to contact the
> FHWA headquarter's office to discuss unusual or unclear eligibility
> situations. Often TE issues affect multiple operating offices and
> require coordination to assure compliance with applicable laws and
> regulations. Also many streamlining measures maybe available to
> expedite TE projects that can be provided through TE coordinators. (If
> you need to know your state FHWA TE representative\'s contact
> information, just call NTEC at 1-888-388-NTEC). The FHWA regulations
> appear in title 23 of the Code of Federal Regulations (CFR). You can
> find the Code of Federal Regulations in any law library and 23 CFR can
> also be down loaded from the FHWA website at:
> http://www.fhwa.dot.gov/legsregs/legislat.html.
>
> 2\. The TE Guidance describes the new "relates to surface
> transportation" requirement. How will it change the TE application
> process?
>
> Congress enacted this wording in TEA-21. The focus is now on a clear
> and credible description of how the proposed TE project relates to the
> surface transportation system. Surface transportation is defined to
> include all modes of travel with the exception of aviation and
> military transportation. The transportation is open to the general
> public and serves a transportation need for the general public. To
> determine a relationship to surface transportation a project proponent
> should ask themselves a number of questions about the proposal. For
> example, in what way(s) is the project related to surface
> transportation through present or past use as a transportation
> resource? Is there a direct connection to a person or event nationally
> significant in the development of surface transportation? What is the
> extent of the relationship(s) to surface transportation? What groups
> and individuals are affected by the relationship(s), when did the
> relationship(s) start and end or do the relationship(s) continue? Is a
> relationship substantial enough to justify the investment of
> transportation funds? The TE Guidance states that proximity to a
> transportation facility alone is not sufficient to establish a
> relationship. Transportation enhancements coordinators should
> encourage applicants to carefully think through this part of their
> application.
>
> 3\. Under TEA-21, the value of donations of funds, materials, land or
> services made before a transportation enhancement project is approved
> can be credited towards the local match. Is there a limit as to how
> far in the past we can go in considering the value of such donations?
> How is their value calculated? Do you have an example of how to apply
> these credits?
>
> The TE Guidance does not specify a time limit as to how far in the
> past we can go in considering the value of such donations. As a
> general principle, the Guidance invokes a test of reasonability, as
> determined in coordination with the FHWA division office. For
> determinations of what donated items can be used for the local match
> and how they are valued, the FHWA Division Office must also be
> contacted. Determining whether a donation can be credited may also
> include an evaluation of whether its original acquisition is in accord
> with the Uniform Relocation Assistance and Relocation Act of 1970 and
> Title VI of the Civil Rights Act of 1964. Land donations must be
> clearly documented to support the value placed on them. To verify how
> to value donated services by private people to a government unit, see
> 23 U.S.C. 323(b) and Office of Management and Budget (OMB) Circular
> A-87, attachment B, item 11(i). To verify how to value donated
> services by private people to a private project sponsor, see OMB
> Circular A-122, Attachment B, item 12. OMB circulars are available on
> the World Wide Web at:
> [www.whitehouse.gov/WH/EOP/omb/html/circular.html]{.underline} *(you
> must use exact lower case and upper case)*. These Office of Management
> and Budget (OMB) circulars are also available through the FHWA
> division offices. The value of any donations should be reflected in
> the overall cost of the TE project. The FHWA Office of Finance and
> Budget issued a February 4, 1997 memo entitled "Donations to
> Federal-aid Projects," which gives a sample calculation of donation
> credits. It is available through the FHWA division offices. Refer to
> the TE guidance section "Summary of Requirements for Matching Funds."
>
> 4\. 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 etc., and leased offices in a
> portion of the historic building that would not necessarily be open to
> the public. How should states treat fees generated by activities in
> these spaces made available through TE funds?
>
> Ideally for joint use activities that are part of the initial proposal
> for TE funds, a partnership is suggested to allow federal funds to be
> used only for the portion of the restoration for public use. Privately
> or commercially used segments of a restoration should have private
> investment.
>
> Before the TE project is approved, the sponsor, state DOT, and FHWA,
> if necessary, should reach a clear agreement on which areas are to be
> leased, what activities are appropriate, and how income generated by
> the facility is to be used. As the Guidance notes under the heading
> "Maintenance and Operations," the state is responsible for long-term
> maintenance and operation of TE activities. The category
> "Rehabilitation and operation of historic transportation buildings,
> structures, or facilities" is the only TE activity that specifically
> allows the use of federal-aid TE funds for operations. As part of
> their maintenance and operations responsibility, states are encouraged
> to develop maintenance plans for TE activities. In accordance with
> good business practices, these plans would include reserves for
> long-term maintenance and periodic repair. Part or all of the fees
> generated by the activity should be a component of the maintenance
> plan.
>
> 5\. What is the meaning of "a clear link to scenic or historic sites."
>
> Congress introduced this terminology regarding tourist and welcome
> centers. This phrase can be interpreted broadly, however a clear
> linkage must be demonstrated. For example, if a tourist or welcome
> center provides substantial information about a particular scenic or
> historic highway program, or a scenic or historic site this could be
> considered part of the needed justification. Such information could
> include literature, directions, interpretive displays or videos shown
> to the public. To clearly be consistent with the language the Congress
> provided, the tourist or welcome center should be within close
> proximity to the scenic of historic highway site. Close proximity
> should be determined to be within a reasonable walking distance. If
> visitors can park at the tourist and welcome center and walk to the
> scenic or historic site (i.e. on short connecting foot trails), see it
> from a vista at the tourist and welcome center or view some of it's
> attributes, then there is clear linkage. For scenic sites, if the
> location proposed is on a designated scenic route, and the proposed
> building site itself contains some of the qualities that make the
> route scenic (special landforms, vistas, cultural resources, etc.)
> that can be viewed from the tourist and welcome center, then linkage
> may clearly be established. The placement of a visitor's information
> facility on a scenic or historic route would allow for a more direct
> connection and more easily satisfy the linkage requirements.
>
> 6\. Is reconstruction (i.e. building a replica) of historic
> transportation buildings an eligible TE activity?
>
> There is no provision for replication of a historic structure in the
> list of TE activities fundable with enhancement dollars.
> Rehabilitation and restoration of historic structures is a listed
> activity. Building a replica of a historic structure is not the
> equivalent of restoration of an existing structures. There is no
> terminology called reconstruction in the list of TE activities.
>
> 7\. If a town which has condemnation authority, is acquiring land for
> a TE project**,** can it use the \"voluntary transaction provisions\"
> if they are willing to state that they will not use condemnation to
> acquire the property.
>
> A public agency that has condemnation authority can participate in the
> voluntary transaction process if they put in writing that they give up
> that right if negotiations with the property owner fail (per 49 CFR
> 24.101).
>
> 8\. 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.
>
> 9\. Can a locality donate land which could reasonably be called part
> of a TE project, even though it is outside the normal highway ROW?
>
> The 23 U.S.C. 323 requires land that is donated be incorporated into
> the project to be eligible for a match. If not part of project scope,
> a donation of the property should not be used as a match. Land does
> not have to be within highway right-of-way to be eligible for donation
> for a TE project.
>
> 10\. Is the 100% federal share financing allowed on enhancement
> projects under TE-045 no longer available to States under TEA-21?
>
> While the TE-045 project relating to the TE program has concluded,
> similar flexible matching share polices were authorized by TEA-21. The
> value of other contributions may be considered to reduce the cost of
> the project. The remainder may be covered with 100% Federal dollars.
> Or the entire amount of project costs without reduction may be funded
> with 100% Federal funds. The difference is that by the end of the
> fiscal year the program for TE must balance out to the normal 80/20
> split for funding. Before, a State's entire TE program could be funded
> at 100% Federal for the fiscal year. Under TEA-21 that provision is
> more limited due to the end of the fiscal year balance provision
> requirement.
>
> 11\. Is there specific language required in an easement agreement
> where TE dollars are used to acquire the easement?
>
> FHWA's real estate staff has indicated that there is no standard
> template for property acquisition or standard easement language. There
> is also not specific language for inclusion in easement agreements for
> TE funded projects. Appropriate language should be develop for the
> specific project circumstances in cooperation with the FHWA Division
> Office.
>
> 12\. Could TE funds be used for planning documents even if the
> documents do not necessarily lead to a project?
>
> The TE guidance recommends against funding statewide planning and
> related documents with TE dollars, except where specific language is
> provided in legislation, \"archeological planning and research\".
> Planning that is an integral part of the development of a project may
> be considered an eligible expenditure.
>
> 13\. Is it true that we can only restore historic buildings to house
> museums?
>
> It is not true that we can only restore historic buildings to house
> museums. Establishing a transportation museum is not strictly tied to
> the historic nature of the structure it is housed in. Historic
> buildings maybe restored that are not necessarily a museum where a
> relationship to transportation is shown and all other eligibility
> requirements are otherwise met.
>
> 14\. Are TE project involving privately held property allowed under
> the regulations and policies
>
> of the TE program?
>
> Yes, TE projects involving privately held property is allowed under
> the regulations and policies
>
> of the TE program. It requires extra care in the development of the
> project agreement to insure
>
> that there is public access to a TE restored property and that the
> term of public access is
>
> comparable to the nature and magnitude of the investment of public
> funds. A requirement is also needed to assure the protection of the
> investment and for future necessary maintenance.
>
> 15\. 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.
>
> 16\. Are TE funds allowed to be used for traditional highway projects?
>
> TE funds are not allowed to be used for the preservation of
> transportation corridors for future
>
> highway development. TE funds are to be used only for the
> non-traditional projects identified in
>
> TEA-21. TE projects are non-motorized transportation-related
> activities, except where
>
> specifically allowed in law. Exceptions are primarily limited to the
> rehabilitation and operation
>
> of historic transportation facilities, including historic railroad
> facilities, canals and water born
>
> vehicles.
>
> 17\. Are snowmobiles allowed to be used on TE funded bike and
> pedestrian trails?
>
> Snowmobiles generally may not be used on TE funded trails specifically
> designated for
>
> pedestrian and bicycles. However, they may be used on TE funded trails
> where local ordinances
>
> specifically allow their use. In other words, a local ordinance must
> be in place allowing
>
> snowmobile use.
>
> 18\. May a State charge a user fee at a site in a program in which TE
> funds are involved?
>
> A number of questions have been raised as to whether a fee may be
> charged for access to any property or services provided through funds
> made available for a TE activity. Generally, fees should not be
> charged for access to activities or projects funded with TE funds.
> Examples of limited situations in which a minimal fee may be charged
> are discussed below.
>
> Examples might include admission fees to a transportation museum, or
> to an interpretive movie shown at a tourist center, and a fee for a
> scenic ride on a restored historic train. A fee may be appropriate
> where the proceeds from the charge are not excessive for the general
> public, and are by agreement instituted for the maintenance and
> operation of the TE funded resource. If charging a fee is prohibited
> by a Federal, State or local law, the State may not charge a user fee.
> For example, if a tourist or welcome center is on an Interstate
> Highway, no fee could be charged (see 23 U.S.C. Section 111(a)).
> Collected fees should be applied for the maintenance and long-term
> upkeep of museums, trails, or other TE-funded sites.
>
> Where a State or project applicant proposes to use TE funds to acquire
> real property and lease or rent space, or otherwise charge a fee for
> access to the property, 23 U.S.C. Section 156, (unless an exception is
> granted by the Secretary), requires that fair market value be charged
> and that the Federal share of net proceeds from the transaction be
> applied by the State toward Title 23 eligible projects (i.e.,
> Federal-aid projects of State-funded projects that are eligible for
> Title 23 funding). The term "real property' refers to land and any
> improvements affixed to the land (i.e., the physical real estate), and
> all interests, benefits, and rights inherent (e.g., access control
> rights, air rights, etc.) in the ownership of the physical real
> estate. By agreement, provisions should also be made to have a portion
> of the funds used for the maintenance and operation of the TE funded
> resource.
>
> 19\. Should State DOT's and project proponents work closely with State
> tourism agencies in the implementation of TE activities?
>
> Yes, State DOT's and project proponents should seek opportunities to
> coordinate with State tourism officials to help maximize economic
> benefits of the TE activity. State tourism agencies may provide
> helpful information such as; the identification of important area
> resources, assist in developing criteria for site selection, and offer
> suggestions towards implementation. States should consider including
> representation from the State tourism community as part of their TE
> advisory committee process. State tourism agencies should also be
> consulted with regard to the implementation of tourist and welcome
> centers.
>
> 20.What are the similarities and differences between Scenic Byways
> program and Transportation Enhancement program?
>
> The Scenic Byways Program and Transportation Program are able to fund
> many similar activities. Some of the similarities include:

1.  Activities eligible under the Scenic Byways program are generally
    eligible under TE activities where all applicable criteria have
    otherwise been met.

2.  The eligibility for TE funding for the provision of tourist and
    welcome centers applies to both existing and new centers. This means
    that TE funds may be used for the construction of a new facility
    and/or the restoration of an existing facility. This would include
    those related construction actions necessary to provide the
    facility, such as interior fixtures and parking areas.

3.  TE funds can be used to purchase and install items which support or
    interpret the scenic or historic highway program or site including
    brochure racks for interpretive materials, maps, or kiosks, markers,
    and scenic overlooks.

    Some differences include:

4.  TE funds cannot be used for statewide programs, marketing or
    promotion not related to the scenic or historic highway program.

5.  TE funds cannot be used for staffing, operating costs, or
    maintenance.

6.  TE funds should not be used to purchase items such as racks for
    advertising or brochures for local or national businesses.

> ***INDEX***
>
> Advance payment option 7, 8
>
> Americans with Disabilities Act (ADA) 22, 23, 32, 33, 40, 57
>
> Archaeological planning 3, 45, 55
>
> Aviation 5, 17, 58
>
> Bicycles 3, 13, 20, 21, 32, 36, 38, 45, 55, 57, 63
>
> Clear/direct link 4, 13, 14, 59
>
> Davis-Bacon 6, 34, 39
>
> Eligibility guidance 12
>
> Environmental mitigation 3, 4, 15, 54, 55
>
> Federal share/contribution 6, 7, 8, 21, 32, 61
>
> Fees 17, 59, 63
>
> FHWA Division Offices 4, 23, 57, 58, 59
>
> Financial accounting 11
>
> Habitat connectivity 3, 15, 54
>
> Highway runoff 3, 15, 45, 54, 55, 60
>
> Historic highway 13, 14, 45, 47, 59
>
> Historic preservation 3, 6, 14, 20, 31, 36, 40, 45, 49, 55
>
> Historic sites 3, 14, 43,45, 46, 47, 59
>
> Historic transportation buildings 3, 12, 45, 46, 59, 60
>
> Innovative financing 7
>
> Lease 13, 14, 18, 19, 35, 37, 40, 59
>
> Maintenance and operations 12, 59
>
> Matching funds 6, 59
>
> NEPA requirements 36
>
> Non-federal share 7, 8, 19, 61
>
> Outdoor advertising 3, 19, 34, 45
>
> Pedestrians 3, 13, 23, 45, 55
>
> Planning process 10
>
> Procurement 38, 39
>
> Programmatic Agreement 6, 40
>
> Project linkage 2, 4
>
> Project development 10, 49
>
> Property acquisition 18, 52, 61
>
> Proximity 4, 34, 39, 46, 47, 48, 58, 59
>
> Proximity impacts 46, 47, 48
>
> Public involvement 7, 8, 9, 10, 21
>
> Qualifying activities 2, 12
>
> Railway corridors 3, 45, 55
>
> Real estate guidance 18
>
> Rehabilitation 3, 4, 12, 18, 20, 22, 28, 29, 30, 31, 45, 47, 59, 60,
> 63
>
> Relationship to transportation 5, 62
>
> Rest areas 14
>
> Safety 3, 13, 15, 25, 26, 27, 28, 55, 63
>
> Scenic byways 14, 36
>
> Scenic Byways Program 14, 63
>
> Scenic beautification 3, 20, 31, 38, 45, 55
>
> Scenic easements 3, 4, 23, 36, 45, 46
>
> Scenic or historic highway programs 3, 13, 45
>
> Scenic or historic sites 3, 14, 45, 46, 47, 49, 59
>
> Scenic preservation 4
>
> Section 4(f) 6, 36, 41, 42, 43, 44, 45, 46, 47, 48, 49
>
> Selection criteria 12
>
> Service Corps 16, 25
>
> State and local match/share 6, 21
>
> Statewide programs 14
>
> Streamlining measures 6, 57
>
> Surface transportation 1, 4, 5, 12, 13, 14, 15, 17, 38, 41, 55, 56,
> 57, 58
>
> TE categories 10
>
> Tourist and welcome centers 13, 14, 59, 60
>
> Transit enhancements 19, 20, 21, 31, 32
>
> Transportation museum 3, 4, 17, 62, 63
>
> Uniform Act 19, 50, 52, 53
>
> User fee 63
>
> Value of other contributions 7, 61
>
> Visual experience 4
>
> Voluntary transactions 50, 52
>
> Water pollution 3, 15, 45, 54, 60
>
> Waterfowl refuge 43, 44
>
> Wildlife 15, 16, 54
>
> Wildlife crossing/passage/refuge 15, 43, 46, 47
>
> Wildlife mortality 3, 15, 16, 60
>
> Youth conservation 16, 25

[^1]:
    > Coordination with the official with jurisdiction is required prior
    > to making final determination on temporary occupancy and
    > constructive use.