Current through Register Vol. 49, No. 2, February 2024
This manual sets forth the administrative procedures and
requirements for Land and Water Conservation Fund (LWCF) federal assistance
(Catalog of Federal Domestic Assistance #15.916) to the States by the
Department of the Interior, National Park Service (NPS). It supersedes the
program's existing LWCF GRANTS MANUAL (NPS-34). It is also intended to serve as
a basic reference for those who are engaged in the administrative, financial
management and stewardship responsibilities of the LWCF State Assistance
Program.
It is the responsibility of the State, as primary grant
recipient, to comply with these requirements and all terms and conditions of
the grant agreement. The State's responsibility cannot be delegated nor
transferred.
Participation in the LWCF State Assistance Program is deemed to
constitute a public trust. As such, participants are responsible for the
efficient and effective management of funds in accordance with the approved
budgets, for promptly completing grant assisted activities in a diligent and
professional manner, and for monitoring and reporting performance.
The procedures and requirements contained herein are subject to
applicable federal laws and regulations, and any changes made to these laws and
regulations subsequent to the publication of this manual. In the event that
these procedures and requirements conflict with applicable federal laws,
regulations, and policies, the following order of precedence will
prevail:
4. Land and Water
Conservation Fund State Assistance Program Manual
The State bears primary responsibility for the administration
and success of each grant, including performance by third parties under
subagreements made by the State for accomplishing nonconstruction and
construction project objectives. The provisions included herein shall also be
applied by the State to subgrantees and contractors performing work under the
LWCF State Assistance Program.
This edition of the LWCF State Assistance Program Manual
supersedes all previous editions and amendments through Manual Release No. 151.
Subsequent updates shall be distinguished by the effective date denoted within
the footer appearing at the bottom of each chapter page. The Manual in effect
at the time a grant is awarded governs the project except for post-completion
requirements. A current version of the Manual can be found at the LWCF
Website.
A.
Background
The LWCF State Assistance Program was established by the LWCF
Act of 1965 (Section
6, Land and Water Conservation Fund Act of
1965, as amended; Public Law 88-578; 16 U.S.C. 4601-4 et seq.) to stimulate a
nationwide action program to assist in preserving, developing, and assuring to
all citizens of the United States of present and future generations such
quality and quantity of outdoor recreation resources as may be available and
are necessary and desirable for individual active participation. The program
provides matching grants to States and through States to local units of
government, for the acquisition and development of public outdoor recreation
sites and facilities. Grant funds are also available, to States only, for
fulfilling the statewide comprehensive outdoor recreation planning requirements
of the program.
The LWCF program was administered by the Bureau of Outdoor
Recreation (BOR) from its beginning in 1965 to 1978 when the Heritage
Conservation and Recreation Service (HCRS) was created. HCRS then administered
the program until 1981 when the LWCF was transferred to the National Park
Service.
Since the origin of the program in 1965, over $3.7 billion has
been apportioned to the 50 states, the District of Columbia, American Samoa,
Guam, Northern Mariana Islands, Puerto Rico and the Virgin Islands for
planning, acquisition, and development of outdoor recreation resources in the
United States. More than 40,000 projects have been approved to assist state and
local efforts to acquire land and develop facilities for public outdoor
recreation purposes. The federal investment has been matched by state and local
contributions for a total LWCF grant investment of over $7.4 billion. A
LWCF-assisted park is located in over 98 percent of counties in the United
States.
The income for the LWCF is provided largely from Outer
Continental Shelf mineral receipts. The amount available from the LWCF for
state grants is determined by the annual Congressional appropriation process.
This amount is supplemented by a guaranteed amount set aside each year in a
special Treasury account from other qualified off-shore revenues pursuant to
the Gulf of Mexico Energy Security Act,
Public
Law 109-432.
B.
Program Information
LWCF grants are provided to the States, and through the States
to local governmental jurisdictions, on a matching basis for up to fifty
percent (50%) of the total project-related allowable costs for the acquisition
of land and the development of facilities for public outdoor recreation and for
fulfilling the program's planning requirements. Grants to eligible insular
areas
(American Samoa, Guam, the Northern Mariana Islands, Puerto
Rico, and the Virgin Islands) may be for 100% assistance. Appropriations from
the LWCF may be made annually by Congress to the Secretary of the Interior who
apportions the funds to the States. Payments for all projects are made to the
state organization that is authorized to accept and administer funds paid for
approved projects. Local units of government participate in the program as
subgrantees of the State with the State retaining primary grant compliance
responsibility. Each State must have a "State Liaison Officer" (SLO) appointed
by the Governor or designated by the state legislature to administer the LWCF
program at the state level.
Information about the LWCF State Assistance Program including
contact information for National Park Service Regional Offices can be found on
the Web at www.nps.gov/lwcfor
contact lwcf.grants@nps.gov
C.
Internet Resources
This manual contains references to many laws, regulations,
forms, and other information sources relating to the LWCF State Assistance
Program that are available on the Internet. Text in this manual with a "dotted
underscore" indicates that further information is available on the
Internet.
The following is a list of Web links for these resources and
documents. Place your cursor over the desired reference and use the "control +
click" function to follow the link.
A
Administrative and Audit Requirements and Cost Principles for
Assistance Programs, 43 CFR 12(Title 43-Public Lands: Interior, Part 12)
Advisory Council on Historic Preservation (ACHP)
Americans with Disabilities Act (ADA) of 1990, Public Law
100-336
Americans with Disabilities Act (ADA) Accessibility Guidelines
at 28 CFR 36
Americans with Disabilities (ADA) Act Title II at 28 CFR
35
Appraisal Foundation
Archeology and Historic Preservation Act as amended, Public Law
93-291
Architectural Barriers Act of 1968 (ABA) Public Law
90-480
Audit Requirements for State and Local Governments, OMB
Circular A-133
C
Catalog of Federal Domestic Assistance (CFDA) #15.916
Civil Rights Act of 1964 Title VI
28 CFR
42.104(b)(2)
Community Development Block Grants (CDBG)
Construction Contractors-Affirmative Action Requirements, 41
CFR 60-4
Cost Principles for Nonprofit Organizations, OMB Circular
A-122
Cost Principles for State, Local and Indian Tribal Governments,
A-87
Council on Environmental Quality (CEQ)
CEQ Regulations for Implementing NEPA, 40 CFR 1500-1508
CEQ NEPA Guidance Crimes and Criminal Procedure, Fraud and
False Statements,18 U.S.C. Section
1001
D
Dayis-Bacon Act
Debarment and Suspension, Executive Order 12549
43CFR 12.100-510
List of debarred and suspended parties
Department of the Interior (DOI)
Department of the Interior (DOI) policy and procedures about
audits, Departmental Manual Part
360, Departmental Manual Part
361 DM 7.3
Department of Interior (DOI) policy and procedures for
implementing NEPA Departmental Manual Part
516 DM 1-6
Departmental Responsibilities for Indian Trust Resources,
Department of the Interior Manual (DM) Part
512 DM 2
Secretary of the Interior's Standards for Archeology and
Historic Preservation Projects
Secretary of the Interior
Department of Transportation Act of 1966, Section
4(f)
E
Emergency Wetlands Resources Act of 1986, Section
303
National Wetlands Priority Conservation Plan
Endangered Species Act (ESA) Section
7
Environmental Justice in Minority and Low-Income Populations,
Executive Order 12898
Department of the Interior Responsibilities for E.O. 12898,
Environmental Compliance Memorandum ECM95-3
Equal Employment Opportunity, Executive Order
11246
F
Federal Aid in Sport Fish Restoration Act (Wallop-Breaux Act or
Dingell-Johnson Act)
Federal Energy Regulatory Commission
Federal Highway Administration
Federal Insurance Administration of the Federal Emergency
Management Agency
Federal Surplus Property
Flood Disaster Protection Act of 1973, Public Law 93-234
Floodplain Management, Executive Order 11988
I
Indian Tribes Indian
Trust Resources
Intergovernmental Review of Federal Program Executive Order
12372
Single Point of Contact (SPOC) List for E.O.
12372
L
Labor Surplus Areas, Executive Order 12073
Land and Water Conservation Fund (LWCF) State Assistance
Program NPS Homepage
LWCF Website
Land and Water Conservation Fund (LWCF) Act of 1965, as amended
Public Law 88-578, 78 Stat. 897
16 U.S.C. 4601-4 et seq.
Section
6(b) of the LWCF
Act
Section
6(f)(1) of the LWCF
Act
Section
6(f)(3) of the LWCF
Act
LWCF Publications and Forms - link to LWCF web page for the
following:
Description and Notification Form
General Provisions
LWCF Logo
Project/Grant Agreement (Form NPS 10-902)
Project Amendment Form
Proposal Description and Environmental Screening Form (PD/ESF)
with NEPA Categorical Exclusions
Record of Electronic Payment Form
Standard Form (SF) 270, Request for Reimbursement for
Non-construction Grants
Standard Form (SF) 424, Application for Federal
Assistance
SF-424A, Budget Information Non-construction Programs
SF-424B, Statement of Assurances Non-construction
Programs
SF-424C, Budget Information Construction Programs
SF-424D, Statement of Assurances Construction Programs
LWCF Post-Completion Compliance,36 CFR Part
59
Limited English Proficiency, Executive Order
13166
M
Minority Business Development Agency of the Department of
Commerce
Minority Business Enterprises (MBEs), Executive Order 11625
Minority Business Enterprise Development, Executive Order
12432
N
National Environmental Policy Act (NEPA)
NEPA's Forty Most Asked Questions
National Historic Preservation Act (NHPA) of 1966, as amended,
Public Law 89-665
Section
106 of the NHPA at 36 CFR Part
800
National Flood Insurance Act of 1968
National Flood Insurance Program, Public Law 90-448 and
expanded by Public Law 93-234
National Flood Insurance Program, Federal Emergency Management
Agency
National Park Service
National Park Service Director's Order #12 and Handbook,
"Conservation Planning, Environmental Impact Analysis, and Decision
Making"
National Register of Historic Places
National Trails System Act, Public Law 90-543, as
amended
Section
8(a) of Public Law 90-543,
as amended
Nondiscrimination in Federally Assisted Programs of the
Department of the Interior Title 43, Part
17
Nondiscrimination on the Basis of Race, Color, National Origin,
43 CFR 17, Subpart A
Nondiscrimination on the Basis of Age at 43 CFR 17, Subpart
C
National Oceanic and Atmospheric Administration, U. S.
Department of Commerce, Comparative Climatic Data
O
Office of Federal Contract Compliance Programs
(OFCCP)
R
Rehabilitation Act of 1973, as amended, Section
504 43 CFR 17, Subpart B
S
Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users (SAFETEA-LU) Act.
Single Audit Act of 1984, Public Law 98-502
Small Business Administration
State Historic Preservation Officers (SHPO),
State Liaison Offices
T
Title IX of the Education Amendments of 1972 at 43 CFR 41
Tribal Historic Preservation Officers (THPO)
U
Uniform Administrative Requirements for Grants and Cooperative
Agreements for State and Local Governments
43 CFR 12
43
CFR 12.76 - Procurement
OMB Circular A-102
Uniform Appraisal Standards for Federal Land Acquisitions
(UASFLA)
Uniform Relocation Assistance and Real Property Acquisitions
Policy Act of 1970, as amended, Public Law 91-646 (Uniform Act)
Section
210
Section
305
Title II , Section
205 of the Uniform Act
Title III of the Uniform Act.
49 CFR Part
24
49 CFR
24.102(c)(2)(ii)
49 CFR 24.102(n)
(2)
Uniform Standards of Professional Appraisal Practice
(USPAP)
U. S. Department of Commerce's Minority Business Development
Agency (MBDA
U. S. Fish and Wildlife Service
U. S. Small Business Administration
W
Wetlands Protection, Executive Order 11990
Wild and Scenic Rivers Act
Women Business Enterprises (WBEs), Executive Order
12138
CHAPTER 1
- GENERAL PROGRAM INFORMATION
A.
Program Summary1.
Purpose. The Land and Water Conservation Fund (LWCF)
Act of 1965 ( Public Law 88-578, 78 Stat 897) was enacted "...to assist in
preserving, developing, and assuring accessibility to all citizens of the
United States of America of present and future generations and visitors who are
lawfully present within the boundaries of the United States of America such
quality and quantity of outdoor recreation resources as may be available and
are necessary and desirable for individual active participation in such
recreation and to strengthen the health and vitality of the citizens of the
United States by (1) providing funds for and authorizing federal assistance to
the States in planning, acquisition, and development of needed land and water
areas and facilities and (2) providing funds for the federal acquisition and
development of certain lands and other areas."
Reflecting the goals of the LWCF Act, the goals of the LWCF
State Assistance Program are to:
a.
Meet state and locally identified public outdoor recreation resource needs to
strengthen the health and vitality of the American People.
b. Increase the number of protected state and
local outdoor recreation resources and to ensure their availability for public
use in perpetuity.
c. Encourage
sound planning and long-term partnerships to expand the quantity and to ensure
the quality of needed state and local outdoor recreation resources.
The LWCF State Assistance Program provides matching grants to
States, and through the States to local governments, for the acquisition and
development of public outdoor recreation areas and facilities. Planning grants
are also available to the States to assist in the development of Statewide
Comprehensive Outdoor Recreation Plans (SCORP).
2.
Delegation of
authority. The LWCF Act authorizes the Secretary of the Department
of the Interior to provide financial assistance to States for outdoor
recreation purposes. Except for the apportionment of funds among States and the
approval of selected projects by the Secretary, this authority has been
delegated to the Director of the National Park Service (NPS).
3.
Appointment of State Liaison
Officer and alternate. To be eligible for assistance under the
LWCF Act, the governor of each State shall designate in writing a state
official, by name or position, to serve as its State Liaison Officer (SLO) who
has authority to accept and administer funds for purposes of the LWCF Program
and to perform the other functions set forth in this Manual. The designation of
the SLO may also be accomplished by state statute.
To facilitate the administration of the LWCF Program, a
concurrent designation (either by the Governor or state statute) of an
alternate(s) to act on behalf of the SLO is strongly encouraged.
If the SLO and alternate are gubernatorially appointed, a new
Governor, upon taking office, shall, re-designate, in writing, the sitting SLO
and alternate, or appoint new officials to represent and act for the State in
dealing with the LWCF program.
If state statute designates the SLO (and alternate) by
position, the appropriate NPS Regional Director shall be notified in writing by
the incumbent upon assuming the responsibilities of the position.
4.
Apportionment of
funds. LWCF monies are apportioned to the States by the Secretary
of the Department of the Interior each fiscal year in accordance with the
apportionment formula contained in the LWCF Act. This formula includes a factor
for equal distribution of a portion of the fund among the States, as well as
factors for distribution on the basis of population and need. Funds are
apportioned to the individual States, the District of Columbia, American Samoa,
Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands which
are collectively referred to as "the States" for the purposes of this program.
Funds may be made available through the States to political subdivisions of the
State and other appropriate public agencies, including recognized Indian tribes
which qualify for LWCF assistance.
5.
State planning and project
selection requirements. To be eligible for LWCF assistance for
acquisition and development grants, each State shall prepare a Statewide
Comprehensive Outdoor Recreation Plan (SCORP), and update it at least once
every five years. A SCORP program evaluates the demand and supply of public
outdoor recreation resources throughout a State, identifies capital investment
priorities for acquiring, developing, and protecting all types of outdoor
recreation resources, assures continuing opportunity for local units of
government and private citizens to take part in planning for statewide outdoor
recreation, and coordinates all outdoor recreation programs throughout the
State.
The State shall develop an Open Project Selection Process
(OPSP) that provides objective criteria and standards for grant selection that
are explicitly based on each State's priority needs for the acquisition and
development of outdoor recreation resources as identified in the SCORP. The
OPSP is the connection between the SCORP and the use of LWCF grants to assist
state efforts in meeting high priority outdoor recreation resource needs.
Planning grants and technical assistance are available through the LWCF program
to help the States develop and update their SCORP planning process.
6.
Acquisition and
development grants. LWCF assistance may be available 1) to acquire
lands and waters or interests in lands and water for public outdoor recreation,
and 2) to develop basic outdoor recreation facilities to serve the general
public. To be eligible for assistance, projects must be in accord with the
SCORP, be sponsored by a governmental agency, and meet other state and federal
requirements.
7.
Basis
for assistance. LWCF assistance is provided on a matching basis,
up to 50%, to individual projects which are submitted through the SLO to the
NPS for approval. Project costs shall be determined in accord with OMB
Circulars A-102 and A-87 and this Manual. All claims shall be subject to
verification by federal audit.
LWCF grants shall be made available on a 100% basis in accord
with Public Law 96-205 to the Insular Areas participating in the LWCF program
(i.e., American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the
Virgin Islands).
8.
Program administration. The SLO is responsible for
administration of the LWCF Program in his/her State. This includes:
implementation of an ongoing SCORP planning process; evaluation and selection
of projects in accord with an OPSP; assuring compliance of projects with the
requirements of this Manual and published regulations; preparation and
submission of applications and amendments; financial management of
apportionments and individual grant awards; inspection of project sites to
insure proper completion, operations, maintenance, stewardship of Section
6(f) parkland; and other
functions necessary for proper program administration and management.
9.
Conversion
policy. The LWCF Act requires the States to operate and maintain
by acceptable standards the properties or facilities acquired or developed for
public outdoor recreation use. Further, Section
6(f)(3) of the LWCF Act
requires that no property acquired or developed with LWCF assistance shall be
converted to other than public outdoor recreation uses without the approval of
the Secretary of the Department of the Interior, and only if he/she finds it to
be in accord with the then existing SCORP and only upon such conditions as
he/she deems necessary to assure the substitution of other recreation
properties of at least equal fair market value and of reasonably equivalent
usefulness and location (36 CFR 59).
B.
State Apportionment Formula and
Special Reapportionment1.
Apportionment percentage to states. The LWCF Act
creates a fund consisting of certain earmarked revenues from which the Congress
may annually appropriate money for public outdoor recreation purposes. As
provided in the annual appropriation act, funds shall be made available for
state and federal purposes with not less than 40 percent appropriated for
federal purposes.
2.
The amount apportioned is essentially a reserve.
Apportionment of funds to the States does not confer absolute entitlement to
such funds. The apportionment is evidence of a commitment by the Federal
Government to withhold from other uses a specified amount for a State for a
given period of time. To receive apportioned funds, the States must (a) prepare
and maintain a Statewide Comprehensive Outdoor Recreation Plan (SCORP) that has
been found by the NPS to be adequate for the purposes of the Act; (b) submit
and receive approval of projects requiring the use of apportioned funds; and
(c) request the Federal Government to obligate apportioned funds for use on
approved projects.
3.
Basis for apportionment. Apportionment of the
appropriation is made by the Secretary in accord with the legislative mandate
stated in Section
6(b) of the LWCF Act. The
amount apportioned to each State is the amount of new authority for obligation
each State will have in the fiscal year unless Congress or the President
decides later to defer or rescind some portion of the amount.
4.
Certificate of
apportionment. The Secretary will notify each State of its
apportionment following an appropriation of funds by the Congress.
5.
Reports on status of state
apportionment. The National Park Service will periodically notify
each State of the status of each fiscal year's apportionment. This financial
report shall include for each fiscal year: the total amount of current
apportionments (including adjustments), the total obligations, and the total
expenditures. The report will also notify the State of the balance remaining
available in each apportionment. The State is expected to maintain its own
accounting records on the status of apportionments.
6.
Availability of state
apportionment. The funds apportioned to a State will remain
available for obligation during the fiscal year that notification is given and
for two fiscal years thereafter. Any portion of an apportionment that remains
unobligated at the expiration of this three-year period is lost to the State
and shall revert to the Secretary's Contingency Reserve Fund for redistribution
on the basis of need as determined by the Secretary; the exception is those
supplemental funds distributed to the State pursuant to the Gulf of Mexico
Energy Security Act,
Public
Law 109-432, which remain available until
expended.
7.
Disposition of unexpended project balances into a Special
Reapportionment Account. Funds obligated for an approved project
will remain available for expenditure by the project sponsor until the project
is completed, has expired, is withdrawn, or is terminated.
Should total expenditures be less than the obligated amount,
the unexpended balance will revert to a "special reapportionment account" (SRA)
which may be reapportioned to the State. This special account containing
previously apportioned but unexpended funds does not confer entitlement to such
funds by the State. The Secretary, may, at his/her discretion, reapportion such
unexpended balances back to the respective State from which it came on the
basis of need. The determination of need for each State will be based on its
efficient management of LWCF obligations and expenditures, demonstrated need
for additional funding, and satisfactory compliance with all LWCF program
requirements.
The National Park Service must request SRA funds from its
Accounting Operations Center (AOC) within six (6) months from the end of the
fiscal year in which the reapportionment funds become available (by March 31 of
the following year). States must submit their SRA requests to the appropriate
regional office in sufficient time to allow for the request to be reviewed and
processed by this date. NPS will only process state requests for SRA funds
when:
a. a State has obligated all of
its available regular apportioned LWCF funds for the year in which monies were
deobligated, or
b. a State certifies that it has identified
eligible projects/amendments for LWCF assistance that remain unfunded and those
projects/amendments will fully obligate the available regular apportioned LWCF
funds as well as the Special Reapportionment funds being requested. Actionable
projects and amendments must be submitted to NPS for review and processing as
soon as possible to ensure that NPS has sufficient time to obligate funds by
the end of the current fiscal year (September 30). Projects for funding that
are not complete and fully documented will be returned to the State. A State
may request less than the full amount in its SRA account and may add SRA funds
to any remaining available regular apportionment to fund a project or project
amendment.
Any SRA funds not requested from AOC within six (6) months from
the end of the fiscal year in which the reapportionment funds become available
or any funds reapportioned but not obligated by the end of that fiscal year
will revert to the Secretary's Contingency Reserve Fund.
A State may not make more than one SRA request every three
months. Requests for SRA amounts of less than $5,000 shall not be processed
except in March for the balance carried over from the previous fiscal year.
Exceptions to the minimal request limitation may be allowed only when the
moneys will be immediately applied to an approvable grant application in the
hands of the NPS for which available funds are insufficient to cover the costs
of the project.
The procedure and timeframes for requesting SRA funds will be
communicated to the States on an annual basis and will include a review of each
State's identification and justification of need for SRA funds and state
compliance with all LWCF program requirements. Upon NPS approval, a Certificate
of Reapportionment will be issued to the State.
C.
Program Review of State
LWCF Program Administration1.
Purpose. In accordance with the LWCF Act ( Public Law
88-578, as amended), the NPS is responsible for continually monitoring each
State's effectiveness in administering the LWCF program.
While the review of a State's program is an on-going process,
it is measured over a three-year period with the NPS visits during that time to
the state offices. The state visit represents not only a fact-finding mission,
but an opportunity to address those problems, concerns, and issues involving
the State's program.
In assessing the present status of a State's LWCF program
administration, it provides a basis for improving overall coordination between
the State and NPS, insures that program administration is being carried out
consistent with program laws, regulations, and policies, and identifies areas
where improvements must be made. The state program reviews provide an
opportunity to improve program accountability and lessen vulnerability to
waste, fraud and abuse.
At a minimum, a program review must be conducted every three
years at the state office. Exceptions to this may be made during periods of low
or no funding and in the territories of American Samoa, Guam, the Northern
Mariana Islands, Puerto Rico, and the Virgin Islands, which may be reviewed
every five years at the discretion of the regional office because of their
small programs and remote locations. The Region may opt to conduct mini-reviews
as needed or during periods of low or no funding.
2.
State review
participants. The NPS review team may be any combination of a team
leader, State's project officer, a secondary project officer, a review
appraiser and/or any other person deemed appropriate by the review coordinator.
State participants should include the SLO, ASLO(s), SHPO, grant and planning
staffs, finance staff, appraisal staff, and any other appropriate persons with
connectivity to the State's LWCF program administration.
3.
Scope of the state
reviews. The visit to the state office provides the opportunity
for the NPS to:
a. Discuss the resolution of
issues noted in the previous program review report
b. Discuss new issues and/or non-compliance
affecting program administration
c.
Gain insight into state systems and operations
d. Provide technical assistance
e. Review randomly selected LWCF project
files for program compliance
f.
Review the adequacy of randomly selected LWCF associated appraisal
documents
g. Discuss any new or
proposed legislation affecting the LWCF program
h. Review key SCORP, OPSP, and eligibility
items
i. Assess whether adequate
staff exist to administer the LWCF program
j. Review obligation and expenditure
rates
k. Discuss coordination
between the state grant staff and the SHPO
l. Review State's application of indirect
cost rates.
m. Discuss or review
SLO/ASLO designations, post completion inspection agreement, waivers,
conversions, environmental review process, administrative and financial project
close out, and any other relevant LWCF administration matters
4.
Report. At a minimum, the report shall contain a
discussion of the following items:
a. Status
report on previous recommendations.
b. Major problem/opportunity areas identified
prior to and during the state visit.
c. Recommendations for improvements with
timeframe for state resolution.
d.
Follow-up actions to be undertaken by NPS.
5.
Distribution of the final
report. The report of findings shall be transmitted under a cover
letter to the Governor with courtesy copies provided to the SLO and ASLO(s) for
use and dissemination. A copy of the report and correspondence to the Governor
shall be sent to the NPS office in Washington, D.C.
6.
State visits. NPS
visits to state offices shall be conducted at least annually, when possible.
Visits may pertain to officially addressing the status of program review
findings; to provide the opportunity for face-to-face communication on program
administration, training, and current issues; and to provide direct technical
assistance.
D.
Annual Report
On an annual basis a report will be produced on the fiscal year
performance and accomplishments of the LWCF State Assistance Program. States
assist in its production by providing state-specific program accomplishments,
testimonials and images. A supply of the report is distributed to the States
and is posted on the LWCF State Assistance Program Website. A limited number of
hard copies are available to interested parties upon request until supplies are
exhausted.
CHAPTER
2
- STATEWIDE COMPREHENSIVE OUTDOOR RECREATION PLAN AND OPEN
PROJECT SELECTION PROCESS
A.
State Plan Preparation, Procedures, and Eligibility
1.
Purpose. This
section explains the objectives, eligibility requirements, and guidelines for
the preparation of Statewide Comprehensive Outdoor Recreation Plans (SCORP) and
the NPS review and approval process. The SCORP is required by Section
6(d) of the LWCF Act of
1965, as amended.
The guidelines are based on provisions of the LWCF Act, related
federal statutes, and determinations of the NPS regarding planning
considerations essential for effective administration of the LWCF
program.
The Governor and/or the officially designated State Liaison
Officer (SLO) are the officials authorized to act for the State, as specified
under the various provisions of this Part.
2.
Requirements of the LWCF Act
of 1965, as amended. The LWCF Act of 1965, as amended, requires a
SCORP from each State prior to consideration by the Secretary of the Department
of the Interior for financial assistance for acquisition and development
projects.
The LWCF Act explicitly requires the SCORP to include the
following:
a. The name of the state
agency that will have the authority to represent and act for the State in
dealing with the Secretary for purposes of the LWCF Act of 1965, as
amended;
b. An evaluation of the
demand for and supply of outdoor recreation resources and facilities in the
State;
c. A program for the
implementation of the plan;
d.
Certification by the Governor that ample opportunity for public participation
has taken place in plan development; and
e. Other necessary information, as may be
determined by the Secretary.
The SCORP shall take into account relevant federal resources
and programs and shall be correlated so far as practicable with other state,
regional and local plans.
3.
Goals and objectives of the
SCORP. The goals of the SCORP and its associated planning process
are to direct each State's use of its LWCF apportionment.
The objectives of the SCORP and its associated planning process
are to:
a. Fulfill the purposes of the
LWCF Act;
b. Provide each State the
maximum opportunity and flexibility to develop and implement its
plan;
c. Describe the role of the
LWCF in the State's provision of outdoor recreation resources and the State's
policies for use of its LWCF apportionment;
d. Provide a basis for determining each
State's LWCF eligibility; and
e.
Ensure relevant, influential and timely planning for the State's use of its
LWCF apportionment.
Each State is encouraged to conduct outdoor recreation planning
beyond the minimum required to maintain LWCF eligibility. Under Section
8(a) of Public Law 90-543,
as amended, and Section
11(a) of Public Law
90-542, as amended, respectively, the Secretary is directed to encourage States
to consider in their plans the needs and opportunities for establishing
recreation and historic trails, and wild, scenic and recreational river areas.
In addition, the plan must contain a wetlands component pursuant to Section
303 of the Emergency Wetlands Resources
Act of 1986 (see item 4.e below).
4.
Plan
requirements. The minimum requirements of the plan are:
a. The plan must describe the process and
methodology(s) chosen by the State to meet the guidelines as set forth in this
section.
b. The planning process
must include ample opportunity for public participation involving all segments
of the state's population.
c. The
plan must be comprehensive. The plan will be considered comprehensive if it:
(1) Identifies outdoor recreation issues of
statewide importance based upon, but not limited to, input from the public
participation program. The plan must also identify those issues the State will
address through the LWCF and those issues which may be addressed by other
means;
(2) Evaluates demand, i.e.,
public outdoor recreation preferences, but not necessarily through quantitative
statewide surveys or analyses; and
(3) Evaluates the supply of outdoor
recreation resources and facilities, but not necessarily through quantitative
statewide inventories.
d. The plan must have an implementation
program that identifies the State's strategies, priorities, and actions for the
obligation of its LWCF apportionment. The implementation program must be of
sufficient detail for use in developing project selection criteria for the
State's Open Project Selection Process (OPSP) so projects submitted to NPS for
LWCF funding will implement the SCORP.
e. The plan must contain or reference a
wetlands priority component consistent with Section
303 of the Emergency Wetlands Resources
Act of 1986. At a minimum, the wetlands priority component must:
(1) Be consistent with the National Wetlands
Priority Conservation Plan, prepared by the U.S. Fish and Wildlife
Service;
(2 ) Provide evidence of
consultation with the state agency responsible for fish and wildlife
resources;
(3 ) Contain a listing
of those wetland types which should receive priority for acquisition;
and
(4) Consider outdoor recreation
opportunities associated with its wetlands resources for meeting the State's
public outdoor recreation needs.
f. The plan may consist of a single document
or may be comprised of multiple documents as long as the guidelines as set
forth in this section are met.
5.
Plan cooperation.
An effective working partnership between each State and the NPS is necessary to
consult and coordinate on such elements as scheduling, planning methodology(s),
public participation, and the NPS assistance needed by the State. Each State is
strongly encouraged to consult and coordinate with the NPS on a regular basis,
especially at the start of its planning cycle, to ensure that the planning
process and its products are mutually acceptable.
6.
Submission of plan
documentation. The minimum documentation required to be submitted
by each State to NPS as evidence of conformance with this section is a new or
revised plan at least once every five years. The Plan must be approved by the
State Governor and contain a certification by the Governor that ample
opportunity for public participation has taken place in development of the
Plan. A total of three (3) copies of the Plan must be submitted to the NPS.
States are encouraged to post the Plan on the agency's Website and use other
means as appropriate to make it available to the public.
Amendments to the Plan may be submitted at any time. Amendments
will follow the same review and approval procedures as the original
Plan.
7.
State
LWCF eligibility related to planning. Each State will be deemed
eligible to participate in the LWCF State Assistance Program when its SCORP
meets the requirements of the LWCF Act. The Act requires an adequate and
approved SCORP prior to the consideration by the Secretary of financial
assistance for acquisition or development projects.
The State must produce a SCORP at least once every five (5)
years and implement its recommendations through the OPSP in order to maintain
the State's eligibility to participate in the LWCF Program. The State must
develop the SCORP in accordance with this Chapter and submit a draft for NPS
review. NPS Regional Director approval of a formal SCORP submission must occur
prior to the expiration of the State's current SCORP to maintain LWCF
eligibility.
Should the State fail to meet this deadline or if NPS finds
that the pending SCORP currently under review is inadequate, NPS will provide
written notification to the State's designated State Liaison Officer that it
must correct the identified deficiencies within ninety (90) days following the
last SCORP's expiration date, during which time NPS approval of acquisition and
development projects may continue. However, if the State fails to take
corrective action within the 90 days, the NPS Regional Director will suspend
the State's eligibility.
The State may appeal to the NPS Director, along with
appropriate justification, within 30 days following the Regional Director's
90-day notice. Appeals will be considered by the Director prior to the
termination of the 90 day notice of the State's eligibility. The decision of
the Director will be final.
8.
NPS actions during periods of
state ineligibility. During a period of state ineligibility, the
following apply:
a. Requests for project
approval received by the NPS, but not acted upon prior to the State's loss of
eligibility, will be returned to the State as inactionable. The State may not
submit projects to the NPS during a period of ineligibility.
b. Only requests for time extensions,
deobligations, reimbursements, changes in scope, and project completions will
be acted upon during a State's period of ineligibility. Amendments to increase
funds will not be acted upon during this period.
c. Waivers of retroactivity will not be
granted.
B.
Open Project Selection Process
1.
Purpose. The
purpose of this section is to establish requirements for the States to conduct
an open project selection process (OPSP) that will better assure equal
opportunity for all eligible project sponsors and all sectors of the general
public to participate in the benefits of the LWCF State Assistance Program and
to enable the States to affirmatively address and meet priority recreation
needs. OPSPs shall perform two essential functions:
a. Establishes a public notification process,
LWCF application assistance, and review systems that assure equitable
opportunities for participation in grant funding by all potentially eligible
applicants.
b. Provides objective
criteria and standards for project selection that are explicitly based on each
State's priority needs for parkland acquisition and outdoor recreation
development as identified in the SCORP. While it is recognized the SCORP may
cover policy, legislative, management and other matters that go beyond
priorities for capital funding and activities eligible for LWCF assistance, the
OPSP supplies the most visible connection between a State's planning efforts
and its use of LWCF grants to meet some of the high priority needs identified
through its SCORP program.
2.
Goals. The OPSP
developed by each State shall be designed to accomplish the following goals:
a. Provide for public knowledge of and
participation in the formulation and application of the project selection
process used by the State in allocating LWCF assistance;
b. Ensure all potential state and local
applicants are aware of the availability of and process for obtaining LWCF
assistance, and provide opportunities for all eligible agencies to submit
project applications and have them considered on an equitable basis;
c. Provide a measurable link, through
published selection criteria, to the specific outdoor recreation needs and
priorities identified in SCORP policies and implementation programs; and
d. Assure the distribution of LWCF
assistance is accomplished in a non-discriminatory manner, especially with
regard to minority, elderly, disabled, and other underserved populations and
ensure a fair and equitable evaluation of all applications for LWCF
assistance.
3.
Requirements for an OPSP. Each State shall, as a
condition of eligibility to receive assistance under the Fund program,
implement an OPSP that has the following components:
a.
Priority rating
system. Each State shall develop a priority rating system for
selecting projects that ensures the fair and equitable evaluation of all
projects and at a minimum:
(1) Places the
strongest possible emphasis on project selection criteria that conforms
directly to explicit priority needs identified by the SCORP process. Because
compatibility of projects funded with SCORP priorities is the primary measure
of responsive planning and selection processes, SCORP-related criteria should
be heavily-weighted to ensure that a) the rank ordering of projects closely
reflects their response to plan-identified needs, and b) no project without
measurable links to SCORP-identified priorities will be funded (see Section 2.c
above).
(2) Encourages public
participation in the formulation of grant proposals at the project sponsor
level.
(3) Recognizes the need for
accessibility of proposed projects, to the greatest extent practicable, to all
segments of the public including minority populations, the elderly, individuals
with disabilities, and other underserved populations.
(4) Requires project conformance to LWCF
eligibility and evaluation criteria in Chapter 3, Sections B and C.
b.
Project selection
process. Each State shall develop a project selection process that
evaluates and selects projects on the basis of quality and conformance with its
priority rating system. The practice of dividing a State's apportionment
between state and local projects may continue at the State's option. In this
case, the State's project selection process may involve a single competition
among all state and local projects or distinct processes and competitions for
each of the two categories (i.e., state projects and local projects). The
distribution of a State's apportionment strictly on the basis of geography or
location of political subdivisions is prohibited.
c.
Amendments to add funds to
existing projects. A State may honor requests to amend projects to
increase the cost of a state or locally sponsored project, including the
federal share, without further OPSP competition only
if the State has proposed, and the NPS approved, guidelines that are
incorporated in the OPSP to cover this contingency. If no procedure is
established, cost overrun projects must undergo OPSP competition to be amended
for additional funding.
d.
Recurring funding cycle. Each State shall institute a
recurring funding cycle to regularize the timing for receiving, evaluating and
selecting project proposals. The funding cycle must occur at least once every
two (2) years and may occur at any other regular interval within the fiscal
year as determined by the State. States shall clearly explain the funding cycle
to potential applicants, especially for a two-year call for applications. All
LWCF-funded projects submitted to NPS must have competed in such a funding
cycle, and documentation of a project's ranking in such regular competitions
must be available in state files.
e.
Applicant
notification. Each State shall inform all potential LWCF
applicants about the availability of LWCF funding through direct contact with
all potential sponsors or indirectly through state and local organizations. The
information supplied shall include the types of areas and facilities eligible
for funding, a statement of the State's overall objectives for use of funds
under the LWCF grants program, guidance on how to apply for LWCF assistance and
an explanation of how the State's OPSP works. Each State should also have
available for review by potential applicants a list of the criteria it will use
in selecting projects for priority funding during the current funding
cycle.
f.
Program
assistance. Each State shall, to the extent practicable, provide
assistance to any potential project sponsor who requests assistance with
project formulation, proposal preparation in obtaining the non-federal matching
share, and other matters necessary for participation with the
program.
g.
Underserved
populations. Each State shall encourage projects which directly
benefit minority and other underserved populations in the State. This may be
accomplished through the SCORP planning process, and shall, at a minimum,
reflect efforts to encourage applications from communities with significant
minority and other underserved populations. Since social conditions vary from
State to State, the design of the approach may be determined by each
State.
h.
Advisory
boards. The use of advisory boards, commissions or committees to
assist States in the selection of proposals to receive the available LWCF
monies is encouraged but not required. If advisory boards, commissions or
committees are utilized by a State, they must include representation of
minorities to the extent that such representation reasonably reflects the ratio
of minority to non-minority populations.
4.
Public
participation. Public participation programs developed by each
State in accordance with SCORP requirements shall include provisions for
insuring that the preparation and revision of project selection processes and
priority rating systems are subject to public review and comment (including
minority participation in this process) prior to their implementation. Use of
public meetings and review by special interest groups, advisory committees, and
park/recreation boards, commissions, or committees to assist in development of
selection processes are encouraged.
5.
NPS approval. New
or revised OPSPs must be submitted to the NPS for review, evaluation, and
approval before their use in state grant competitions.
6.
Process review and
updating. To ensure continuing close ties between a State's SCORP
program and its OPSP, States must review project selection criteria each time
that a new or amended SCORP is approved by the NPS. States must submit to the
NPS a revised set of OPSP criteria that conform to any changes in SCORP
priorities or submit an appropriate certification that no such revisions are
necessary. The NPS will evaluate such revised submissions or certifications in
the same manner as original submissions, and will ensure accurate conformity to
the SCORP and to the objectivity and public participation objectives of this
section before approving their use for LWCF project selection.
State implementation of OPSPs will also be reviewed, as part of
the NPS' periodic state program review process, to determine each State's
effectiveness in meeting the goals and requirements of this section. Failure by
any State to keep its selection process active and up-to-date in relation to
changing needs or conditions identified through its SCORP program may result in
that State's loss of eligibility for participation in the LWCF Program.
C.
Financial
Assistance for SCORP Development1.
Purpose. The purpose of this section is to specify
objectives and requirements governing use of planning grants from the LWCF.
Such grants are to be used for developing a SCORP.
2.
Use of LWCF planning
grants. Since planning grants are intended for developing a SCORP
as a decision-making and management tool, LWCF-assisted planning projects must
be aimed at either (1) solving a problem identified in the last approved SCORP
effort that addresses an outdoor recreation challenge or opportunity of
statewide importance or (2) developing new data and decision tools identified
as essential to completion of an upcoming SCORP.
3.
Pre-application
consultation. All planning grants should be the result of joint
consultations between the NPS and the State on priority needs, within the
context of a State's continuing and systematic outdoor recreation planning
process.
4.
Eligible
applicants. Only the State Liaison Officer is eligible to apply
for planning assistance from LWCF. Responsibility for executing a planning
project or a portion thereof may be subcontracted to an appropriate non-federal
governmental agency (general purpose or special purpose government unit) or to
another public or private planning organization. In all cases, however, the
State is obligated to supervise and to be responsible for all work performed,
and must be directly involved in production of the final products of the grant
and in the development of any policies or action options expected to result
from project work.
5.
Eligible planning projects. To be eligible for Fund
assistance, a planning project must have a clearly defined end product that
addresses needs, problems, or issues identified in a State's currently approved
SCORP of statewide importance, or is otherwise essential, in the judgment of
the State and the NPS, to production of an upcoming SCORP. It may be explicitly
identified as part of a future planning program contained in the current SCORP
or be logically implied, in the judgment of the NPS reviewers, by discussions
of planning needs in such current SCORP documents; or respond to a specific
planning deficiency identified by NPS as part of its periodic review of a
State's planning program and state SCORP submissions.
a. Projects may include surveys, planning
studies, data collection and analysis, public participation efforts, and other
activities essential to production of a SCORP.
b. Management studies related to improved
statewide financing, operation, maintenance, stewardship, or other use of
administrative resources to sustain outdoor recreation resources, including
evaluation of the overall capabilities of state and local governments to fully
protect and utilize their outdoor recreation investments, may be funded when
clearly related to a State's overall SCORP program and to meeting the
requirements of Section
6(f) 3 of the LWCF Act for
continued operation and maintenance of all Fund-assisted areas and
facilities.
c. Studies of natural,
ecological, or recreational resource areas, demonstration studies and topics of
statewide significance or national concern related to public outdoor recreation
are also eligible. These studies must meet the following criteria:
(1) The proposal must address a priority
problem of statewide significance identified in approved SCORP documents or be
essential for the development of decision-making information for an upcoming
SCORP. The study must go beyond "basic research" or simple data collection to
provide information likely to be used for state or local decision-making on
outdoor recreation issues and programs, so it may provide specific
recommendations for inclusion in the State's published SCORP.
(2) The proposal must include a justification
indicating how the study would contribute to the State's overall SCORP program
and future SCORP submissions. The proposal must also include evidence that the
study will further the overall purposes of the SCORP process and must include
an assessment of whether the monetary, personnel and other resources devoted to
the study will contribute to and not detract from the accomplishment of other
high priority planning objectives identified in SCORP submissions or in the
NPS' reviews of a State's continuing planning process.
(3) The study should include a public
participation program through which concerned public and private agencies or
organizations and interested citizens can be kept informed of, and allowed to
comment on, study objectives and results.
(4) Responsibility for the overall project,
as well as its different elements, must be clearly identified if more than one
agency is to be involved.
(5) When
public land protection measures are proposed, the study must include an
examination of the feasibility of any alternatives to fee simple acquisition of
the resources to be protected.
d. Studies or other investigations that are
primarily aimed at promoting tourism, other state and local economic
activities, or the promotion of private recreation expenditures through
recreation development are not eligible for planning grant assistance. However,
studies aimed at analyzing or documenting the contributions of outdoor
recreation resources to a State's economy or environment or at improving state
decisions on the appropriate public and private roles in the management of
various recreation resources may be eligible for funding when they meet other
appropriate criteria for eligibility as outlined elsewhere in this
section.
e. Detailed plans for
capital projects, sketch or site plans, individual area master plans, economic
feasibility studies, landscape designs, or architectural and engineering
studies are not eligible for planning grant assistance.
f. Planning proposals must take into account
past studies of the same or similar resources or programs to ensure that the
proposed efforts do not duplicate earlier research. They must consider any
relevant federal resources, plans, or programs and be correlated, so far as
practicable with other state, regional and local plans.
g. Two or more planning projects may be
carried out concurrently providing they do not duplicate one another. Work
items funded under an LWCF planning grant must not overlap with work items
assisted by another LWCF grant, or financially-assisted under other federal
programs, or otherwise accomplished with federal personnel or
resources.
h. When a grant proposal
involves funding of outdoor recreation planning elements as part of a larger
"consolidated and simplified" state planning process as authorized by Executive
Order 1237 2 Intergovernmental Review of Federal
Programs, particular assurance must be provided by the State that the LWCF
grant will be used for direct support of outdoor recreation planning work items
and not, either directly or indirectly, of non-recreation planning items, such
as housing, transportation, or general economic development.
i. Planning grants may not encompass any
costs for acquisition of land or interests in land or for development of new
facilities. Nor may land acquisition or development costs be used as any part
of a grantee's matching share of eligible planning costs.
6.
Available
funding. Up to 50% of the total cost of an eligible planning
project is available to a State, on a reimbursement basis, from its LWCF
apportionment account. However, grants to the Insular Areas may be made
available on a 100% basis. While there is no dollar limit on the amount of a
State's apportionment which can be used for planning grants, the National Park
Service reserves the right to limit the size of specific projects based upon
each State's planning needs and the relationship of planning costs to overall
funding resources. For this reason, NPS regional offices should consult with
the Washington program office before approving any planning grant or amendment
for which the total LWCF obligation will exceed $100,000 or five percent of a
State's most recent apportionment, whichever is greater.
7.
Allowable costs.
Project costs incurred to sustain an ongoing outdoor recreation planning
process are reimbursable as part of an approved planning project. These include
the preparation, publishing and distribution of appropriate documents, such as
core SCORP and OPSP documents, supplemental recreation policy or action plans
and related studies. Costs of data collection and processing, public
participation activities, special studies, etc. are also eligible for
assistance. Contracted professional services for eligible planning activities
may be allowed, if, in the National Park Service's judgment, overall
responsibility for planning policies and action recommendations is clearly
retained by the State Liaison Officer or other designated state agency. All
contracts awarded by a grantee must be in accord with the procurement standards
and procedures of the Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments, OMB Circular A-102
requirements at 43 CFR 12 Subpart C (see Chapter 7).
8.
Length of project
period. Planning projects should normally cover a period of two
years or less to ensure timely completion and close-out of complex work efforts
and reduce audit problems. In no case should a single planning grant include
elements from more than one complete SCORP cycle, except where costs of
publication and distribution of a SCORP document from a previous cycle may be
reasonably included as a public participation element in the next SCORP
cycle.
9.
Acknowledgement of assistance. When assistance from
the LWCF is provided for a project, the resulting document shall include the
following acknowledgement:
"The preparation (updating, revision) of this plan (study,
analysis, etc.) was financed in part through a planning grant from the National
Park Service, United States Department of the Interior, under the provisions of
the Land and Water Conservation Fund Act of 1965 ( Public Law 88-578, as
amended)."
This statement may be expanded at the State's discretion to
reflect the manner in which the non-federal share of the total cost was
financed.
10.
Executive Order 1237 2 intergovernmental review.
For those States participating in the intergovernmental review process, a copy
of the planning grant application must be submitted to a State's Single Point
of Contact (SPOC) or State Clearinghouse in accordance with the
intergovernmental review requirements of Executive Order 12372.
Submissions to the SPOC should normally consist of copies of
the material to be provided to the NPS in the application package, including a
notice of intent describing the project purpose, scope, cost, and beneficiaries
to allow the SPOC to provide potentially interested agencies with an
opportunity to comment on the proposed effort. States are responsible for
considering SPOC comments prior to submitting the planning grant formal
application to NPS in order to address comments as appropriate.
LWCF planning grant applications should include assurances that
the recreation planning objectives and products of the grant are in accord with
comprehensive state planning goals, as determined by the Governor or state
agency designated to coordinate overall planning.
11.
Project
application. The standard federal forms used for non-construction
assistance programs (SF-4 24, SF-424A and SF-424B) are used when
applying for LWCF planning assistance. They must be accompanied by the
appropriate required forms as follows:
a. LWCF
project agreement (Form NPS 10-902). A LWCF project agreement form must be
completed for all planning projects. For planning grants, the "Project Scope"
section of the agreement must also reference and incorporate a more detailed
narrative attachment which covers the following items:
(1) Identification of the objectives of the
grant, with reference to planning needs identified in existing SCORP documents
or other justification in terms of the project's compatibility with overall
SCORP program priorities.
(2) The
planning products that will result and how they will contribute to maintenance
of the SCORP program, and, if appropriate, the relationship of a new proposal
to other planning grants received by a State.
(3) The general approach to be used,
including a schedule of key events, the breadth of study coverage, and cost
estimates for each work item indicating how funds will be used by object class
(personnel, travel, equipment, consultant contracts, etc.).
(4) A discussion of the personnel,
organizations or outside consultants that may be used to implement the project,
with an explanation of any special knowledge or expertise which they will
provide.
b. Proposal
Description and Environmental Screening Form (PD/ESF) Cover Page (see Chapter
4).
c. Description and Notification
Form (DNF)
12.
NPS review. Project applications will be reviewed by
the NPS to determine if all planning assistance requirements have been met.
This evaluation will focus on the following specific criteria:
a. The project must be an integral part of
the SCORP process and clearly essential to maintenance of the SCORP as a
decision-making or management tool. If need for the project is not explicitly
identified in current SCORP documents, there must be mutual agreement between
the NPS and the State on the priority need for the project effort as part of a
State's overall recreation planning program.
b. Timing, scope, costs, and methodology of
the project must be appropriate to the planning benefits received and
complementary to any other planning efforts needed to address identified
deficiencies in a State's overall planning program.
c. Project work elements must be clearly
identified with reasonable scheduling, staffing, and cost estimates assigned to
each element.
d. Grant products
such as published plans, studies, new policies or procedures to be adopted,
reports, evaluations, or other documents must be explicitly
identified.
e. Both the agency
requesting the assistance and the project itself must be eligible for planning
assistance from the LWCF.
f. The
requirements of Executive Order 12372 relating to review and comment by a
participating state clearinghouse must have been completed if
applicable.
g. There must be no
duplication of federal assistance for work items funded under the
project.
13.
Amendments. Changes that materially alter the scope
and/or change the cost or the completion time of a project must be approved by
the NPS. When a State wishes to change its project, it should discuss the
proposed changes with NPS prior to submitting an amendment to the project
agreement. Amendments will be reviewed and processed following the same
procedures used for a complete planning project. Only those changes considered
to be major and substantive will be required to receive E.O.12372 clearinghouse
review if applicable.
14.
Financial procedures. Adequate financial records must
be maintained to support all the costs involved in a project. A documentation
"trail" adequate to withstand audit should be maintained. Generally accepted
accounting and auditing principles will apply to project records, accounts and
documentation. Such records must be in accord with the principles established
in OMB Circulars A-102 and A-87 for prevention of fraud, waste and abuse in
federal programs. Particular attention should be paid by the grantee to good
records of in- house personnel costs attributable to the planning grant. Time
distribution records must be maintained for each individual for whom LWCF grant
costs are to be claimed. Careful records of time spent on SCORP elements are
especially important when personnel are splitting their time between one or
more SCORP projects and other planning or administrative duties.
To guard against fraud, waste and abuse or possible
disallowance of legitimate grant costs, it is recommended that grantees
establish a separate tracking account for each planning grant. No grantee
reimbursement requests or electronic transfer of funds can be made without NPS
review of a progress report covering expenditures and accomplishments under the
grant for the requested reimbursement. Requests for reimbursement or electronic
transfer of funds may only be made for definable products or completion of
distinct planning elements.
15.
Reimbursements.
NPS will place a financial hold on all planning grants at the time of NPS
project approval. States using the SMARTLINK automated drawdown method (see
Chapter 7.E) must obtain NPS approval of their progress report BEFORE payments
are requested through the SMARTLINK system. Each SMARTLINK drawdown for
planning grants must be preceded by a reimbursement request (SF-270 Request for
Reimbursement for Non-construction Grants) and a progress report (see next
item) for NPS review. Upon approval, NPS will provide the State with a letter
authorizing a SMARTLINK drawdown for the approved reimbursement
amount.
16.
Progress
reports. Reports of progress toward the completion of a planning
project must accompany each payment request (see above.) However, at a minimum,
a progress report must be submitted to NPS within one year of project approval
with or without a payment request. Progress reports shall include:
a. A list of the major work items (elements)
agreed to in the project scope of the grant contract.
b. A narrative description of the status of
work for each item in the project.
c. Identification of any elements that are
behind schedule and why.
d. Actual
or projected completion dates for each work item.
e. If appropriate, evaluations of the success
or failure to date of the planning approaches used and of any effects of
project work to date on state policies or improved management of state
programs.
f. Estimated costs
incurred during the billing period for each work item.
g. Total costs incurred and total costs
previously billed for all parts of the project to date.
CHAPTER 3
-
ACQUISITION AND DEVELOPMENT PROJECT ELIGIBILITY
A.
General Project Criteria
1.
Purpose. The LWCF
Act authorizes the Secretary of Interior to provide financial assistance to
States for the acquisition and/or development of public outdoor recreation
areas and facilities found to be in accord with the Statewide Comprehensive
Outdoor Recreation Plan (SCORP). The States are encouraged to share the
benefits derived from the LWCF program among all state and local agencies
responsible for providing public outdoor recreation opportunities.
2.
Project sponsors.
Only States may apply directly to NPS for LWCF assistance. However, funds may
be made available through the States to political subdivisions of the state and
other appropriate public agencies. Proposed projects may be sponsored by a
state agency or a public agency of a subordinate unit of government. All
eligible project sponsors, including those that have other than public outdoor
recreation purposes, must be able to commit its resources to the perpetual
stewardship of the Fund-assisted public outdoor recreation area pursuant to
Section
6(f)(3) of the LWCF Act.
All project proposals submitted to the NPS must be recommended
by the State Liaison Officer (SLO). No grant or contract may be awarded to any
grantee or subgrantee or contractor of any grantee or subgrantee which has been
debarred or suspended under Executive Order 12549.
3.
Relation to
SCORP. Only project proposals in accordance with the SCORP and
reviewed through a State's Open Project Selection Process (OPSP) may be
considered. Project proposals may be submitted for approval only during the
time in which the State sustains its eligibility for participation in the LWCF
program. Projects received during a period of ineligibility will be returned to
the State as inactionable. This does not mean that the projects have been
disapproved nor prevents them from being resubmitted by the State as soon as
eligibility has been regained.
4.
Project proposals. The State has the initial
prerogative and responsibility for determining the scope and effort involved in
a project proposal. A project can be designed as follows:
1) acquisition and/or development work at one
site, or
2) acquisition and/or
development work, sponsored by a single state agency or local unit of
government, at several sites.
Project sponsors must complete an LWCF-assisted project as
quickly as possible, and, except in the most unusual circumstances, within the
NPS approved project period.
5.
Types of
projects.
a.
Acquisition. These include the acquisition of land and
waters or partial rights to them. There must also be public access, however,
access may be controlled, but not prohibited (see Chapter
8.B.).
b.
Development.
These include the development of certain outdoor recreation activities and
support facilities needed by the public for recreation use of an
area.
c.
Combination. When it is advantageous to do so, a State
may submit projects which combine acquisition and development.
6.
Multiple-purpose
projects. Multi-purpose projects which involve uses other than
outdoor recreation may be eligible for assistance under the Act as long as the
resulting Section
6(f)(3) boundary can
incorporate a viable public outdoor recreation area that includes the
Fund-assisted project and the outdoor resource it complements, such as a
Fund-assisted picnic area and a new public reservoir. The State must include a
careful and complete justification and explanation with each proposal. Two
general types of multiple-purpose projects are eligible for assistance:
a. Projects in which a specifically
designated portion of the multiple-purpose area or facility will be used
primarily for outdoor recreation and/or outdoor recreation support, such as
picnicking facilities adjacent to a new public reservoir. Fund assistance is
limited to the designated outdoor recreation area and/or facility and support
facility.
b. Projects that will
provide identifiable outdoor recreation benefits as a whole, as opposed to
specific segments of it. For example, a water impoundment constructed primarily
for flood control might also have important recreation benefits. In such a
case, at the discretion of NPS, assistance might be made available only for the
portion of the cost, on a pro rata basis, of the facility that is clearly
attributable to outdoor recreation above and beyond the facility's cost for its
non-recreation function. Section
6(f)(3) protection will be
applied to the entire viable outdoor recreation area regardless of the prorated
basis of federal assistance to include the entire multi-purpose facility unless
a smaller self-contained management unit is identified at project approval.
The proposal must fully disclose the nature and extent of other
uses and the relationship of the proposed outdoor recreation project to the
total area and development.
7.
Assistance from other
agencies. Project proposals submitted to the NPS for LWCF
assistance may also be submitted to other public agencies for aid. The state or
local matching share of an LWCF project may consist of other federal financial
assistance only where the statutory provisions of the subsequent federal grants
program explicitly allows recipients to use such assistance to match LWCF funds
(see Chapter
5.A.5). The LWCF application to NPS must
describe any financial assistance from other federal programs associated with
the project, whether serving as a financial match to LWCF funds, or providing
support outside of the LWCF project scope.
8.
Project sponsor ownership and
control of property. The project sponsor must possess sufficient
title and adequate legal control of the property that is to be placed under
Section
6(f) protection in order
to provide reasonable assurances that a conversion under Section
6(f)(3) of the LWCF Act
will not occur without its knowledge, state review and NPS decision. Such
assurances are contained in the General Provisions of the LWCF Project
Agreement.
The project sponsor is responsible for being knowledgeable
about all outstanding rights and interests held by others on lands to be
included within the Section
6(f)(3) boundary of a
proposed LWCF project. Reversionary rights and outstanding interests, should
they occur or be exercised, that results in private and/or non-recreation
activities on land within a Section
6(f) boundary and/or
results in activities that impact the public outdoor recreation utility of the
area, would trigger a conversion. In this case, the project sponsor would be
required to provide suitable replacement property
unless such activities qualify as exceptions as set
forth in Chapter
8 (e.g., underground utilities and
temporary non-conforming uses).
The State will consider proposals to place property with
outstanding rights or interests held by others under
6(f)(3) protection only
when it is assured that the possibility of the reversionary interest or
outstanding rights being exercised is remote and/or the project sponsor is
fully aware of its responsibility to replace these lands in accordance with
Section
6(f)(3) should the
outstanding rights, if exercised, result in a conversion. Prior to submitting
the formal project application, States are encouraged to consult with NPS on
complex property ownership and control issues.
The LWCF PD/ESF application narrative must describe all
easements, rights-of-way, leases, subsurface rights (e.g. mineral),
reversionary interests, and any other agreements that convey rights to
non-public and/or non-recreation interests to access or use the area proposed
for Section
6(f) (3) protection. An
application should contain an opinion from appropriate counsel stating the
local sponsor has the authority to enter into a grant contract that requires
the provision of replacement land if the outstanding rights or reversionary
interests are exercised in such a manner that results in a conversion. If a
local sponsor has no such authority, and the State does not agree to replace
the property at its expense, then the project is not eligible for LWCF
assistance.
When at the time of project application it is known that
outstanding property rights held by others are or will be exercised in the
foreseeable future and impact only a portion of the area to be protected under
Section
6(f), the impacted area
and access to it must be clearly excluded from the Section
6(f) map and accompanied
by an explanation of why it is not intended to be under the Section
6 (f) provision. The remaining project area
must meet all LWCF program criteria for eligibility and be a viable public
outdoor recreation area per Chapter 6.B.5.
Copies of the property titles, leases, easements, and other
appropriate documents must be on file at the state level and available for
federal inspection.
9. Use
of existing public land for matching purposes. Existing government-owned lands
cannot be used as a part of the non-federal matching share of a project unless
such land is to be acquired by the sponsoring agency from another agency and
there is a statutory requirement that the selling agency be reimbursed for the
value of the property. Further, property cannot be "donated" between a State
and its political subdivisions to serve as a match for grant
assistance.
B.
Criteria for Acquisition1.
Eligible types of projects. Acquisition of lands and
waters for public outdoor recreation, including new areas or additions to
existing parks, forests, wildlife areas, beaches, and other similar areas
dedicated to outdoor recreation may be eligible for assistance. Acquisition can
be by fee simple title or by whatever lesser rights will insure the desired
public use without diminishing the control and tenure of the project sponsor's
ability to enforce the Section
6(f)(3) provisions. Areas
acquired may serve a wide variety of public outdoor recreation activities
including but not limited to: walking and driving for pleasure, sightseeing,
swimming and other water sports, fishing, picnicking, nature study, boating,
hunting and shooting, camping, horseback riding, bicycling, snowmobiling,
skiing, and other outdoor sports and activities.
Natural areas and preserves may be acquired but must be open to
the general public for outdoor recreation use to the extent that the natural
attributes of the areas will not be seriously impaired or lost.
2.
Means of
acquisition. Acquisition of lands and waters, or interests
therein, may be accomplished through purchase, eminent domain, transfer, or by
gift.
3.
Acquisition of
existing structures and impoundments. Because of its statutory
emphasis on public outdoor recreation, LWCF funding may be used to acquire only
modest structures such as those to be used as park support facilities.
Consultation with the NPS regarding the eligibility of the structure for
acquisition assistance is encouraged prior to application submission. The
proposal description as part of the PD/ESF must describe all improvements to be
acquired and their proposed use.
4.
Acquisition of lesser interests. Proposed acquisitions
of interests in lands and waters of less than fee simple title, including
leasehold interests, are not eligible unless such lesser rights (e.g.,
permanent recreation use easements or similar devices) will insure the desired
perpetual public access and use pursuant to Section
6(f)(3).
5.
Acquisition involving
compatible resource management practices. Acquisition of land upon
which the project sponsor proposes natural resource management practices such
as timber management and grazing, not including agriculture, may be carried out
concurrently within the area if they are clearly described in the project
proposal, are compatible with and secondary to the proposed outdoor recreation
uses, and are approved by the NPS.
6.
Reservations and
rights. Reservations and rights held by others are permissible
only if it is determined that public outdoor
recreation purposes would not be affected. The project sponsor shall provide a
description of all outstanding rights and interests held by others and identify
them on the Section
6(f)(3) boundary map.
Further, the proposal narrative and environmental information submitted to the
NPS on the project in the PD/ESF must address any potential impacts to the
human environment including outdoor recreation by any outstanding rights and
interests, including if they are exercised. If public outdoor recreation is
impacted when any rights and interests are exercised, a conversion of parkland
under Section
6(f)(3) of the LWCF Act
will occur. See Chapter
3.A.8 for further guidance.
7.
Acquisition for delayed
outdoor recreation development.
a.
General. LWCF
assistance may be available to acquire property for which development of
outdoor recreation facilities is planned at a future date. In the interim,
between acquisition and development, the property should be open for those
public recreation purposes that the land is capable of supporting or that can
be achieved with minimum public investment. Non-recreation activities such as
agriculture occurring on the property at the time of acquisition may continue
for up to three (3) years. In this case NPS will place a financial hold on the
project precluding reimbursement until the non-recreation use is
terminated.
b.
Procedures. If planned development for public outdoor
recreation will be delayed for up to three years from the date of acquisition,
the project sponsor shall include the following information in the project
application:
(1) Why immediate acquisition of
the property is necessary.
(2) What
facilities will be developed and when such development will occur.
(3) What, if any, non-recreation uses will
continue on the property and when such non-recreation uses will be
terminated.
(4) The type of public
outdoor recreation access that will be provided during the interim
period.
(5) Assurance that any
income received by the project sponsor for the non-recreation activities will
be used in accordance with the provisions of Chapter
7.A.7.
(6) Assurance that the site will be available
for public outdoor recreation use and any non-recreation activity will be
terminated within 3 years from the date of acquisition.
c.
Extension of the 3-year
limit. Where public access for recreation purposes will be
provided during the interim period, the continuation of a non-recreation
activity beyond the 3-year limit may be extended by NPS. The State should
submit a written request and justification for such an extension to NPS before
the end of the 3-year period. This request should include:
1) a full description of the property's
current public outdoor recreation resources and the public's current ability to
use the property; and
2) an update
of the project sponsor's plans and schedule for developing outdoor recreation
facilities on the property. In granting such an exception, NPS recognizes that
certain non- recreation activities are compatible with limited public outdoor
recreation use of the property.
If an extension of the 3-year limit is granted, the project
sponsor cannot be reimbursed until all non-recreation activities have ceased.
NPS shall not grant an extension of the 3 year limit if public access to the
new outdoor recreation area is not present and NPS will proceed to terminate
the project for cause or convenience (see Chapter 7.G).
8.
Uniform
relocation and acquisition. All acquisitions with LWCF assistance
must be conducted in accordance with the applicable provisions of Public Law
91-646, the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, as amended. See Chapter
4 for further guidance.
9.
Acquisitions that will not be
assisted.a. Acquisition of
historic sites and structures will not receive LWCF assistance. Exceptions may
be made only when it is demonstrated clearly that the acquisition is primarily
for outdoor recreation purposes and the historic aspects are secondary to the
primary recreation purposes. This exclusion need not prevent the consideration
by States and the NPS of projects calling for acquisition of real property
interests contiguous to or near historic sites and structures that meet
priority outdoor recreation needs. Compliance with the National Historic
Preservation Act of 1966 is required for all acquisitions (see Chapter
4.C).
b. Acquisition of museums and sites to be
used for museums or primarily for archeological excavations will not receive
LWCF assistance.
c. Acquisition of
land to help meet a public school's minimum site size requirement as
established by state or local regulations will not receive LWCF
assistance.
d. Acquisition of areas
and facilities designed to be used primarily for semi-professional and
professional arts and athletics will not receive LWCF assistance.
e. Acquisition of areas and facilities to be
used solely for game refuges or fish production purposes will not receive LWCF
assistance. However, such areas and facilities may be eligible if they will be
open to the public for compatible recreation.
f. Acquisition of areas to be used mainly for
the construction of indoor facilities will not receive LWCF assistance. Also
prohibited are areas where existing indoor recreation facilities, if left in
place, will not leave sufficient area at the site for the development of
outdoor recreation facilities to justify the cost of the acquisition.
g. Acquisition of railroad "hardware,"
trestles, stations, yards, and the like will not receive LWCF assistance, if
such are to be used for the commercial operation of railroad trains.
h. Acquisition of sites containing luxury
lodges, hotels, motels, restaurants, and similar elaborate facilities that are
to be operated by the project sponsor or a concessionaire to provide food and
sleeping quarters will not receive LWCF assistance.
i. Acquisition of agricultural land primarily
for preservation in agricultural purposes will not receive LWCF
assistance.
j. Acquisition of
federal surplus property will not receive LWCF assistance unless legislatively
authorized in a specific situation.
C.
Criteria for Development
1.
Eligible types of
projects. LWCF financial assistance may be available for most
types of facilities needed for the use and enjoyment of outdoor recreation
areas. The LWCF Act specifies that development projects may consist of basic
outdoor recreation facilities to serve the general public provided the funding
of such a project is in the public interest and in accord with the Statewide
Comprehensive Outdoor Recreation Plan (SCORP). In addition, development
projects are subject to all other conditions, policies, and regulations of the
LWCF program, provisions of this Manual, and those guidelines that may be
developed by the NPS.
a.
Definition of eligible project scope. A development
project may consist of one improvement or a group of related improvements
designed to provide basic facilities for outdoor recreation, including
facilities for access, safety, health, and protection of the area, as well as
those required for the outdoor recreation use of the area. Furthermore, a
project may consist of the complete or partial development of one area, such as
a state park or a city playground, or it may consist of multiple sites such as
a series of developments on a number of geographically separated areas under
the same project sponsor such as picnic facilities in a number of parks, or the
construction of fishing piers on a number of lakes in the State. In all cases,
the project must be a logical unit of work to be accomplished within a specific
time frame.
Ineligible facilities to be funded through sources other than
the LWCF program may be included in the Section
6(f)(3) protected area so
long as they do not constitute a conversion and they qualify as an eligible
public facility (see Chapter
8.F).
Funding of development project proposals may cover
construction, renovation, site planning, demolition, site preparation,
architectural services, and similar activities essential for the proper conduct
of the project.
b.
Development project design requirements. Plans for the
development of land and/or facilities should be based on the needs of the
public, the expected use, and the type and character of the project area.
Facilities should be attractive for public use and generally be consistent with
the environment. Plans and specifications for improvements and/or facilities
should be in accord with established engineering and architectural practices.
Emphasis should be given to the health and safety of users, accessibility to
the general public, and the protection of the recreation and natural values of
the area. All facilities developed with assistance from the Fund must be
designed in conformance with the appropriate current design standards for the
Architectural Barriers Act of 1968 (ABA) ( P.L. 90-480 ), Section
504 of the Rehabilitation Act of 1973, as
amended, and the Americans with Disabilities Act.
2.
Ownership and control of
project lands. Facilities may be developed on land and water owned
in fee simple by the participating agency or where ownership of less-than-fee
interests such as easements provides permanent control of the property
commensurate with the proposed development. All less-than-fee interests must be
described in the PD/ESF and indicated on the Section
6(f) boundary map.
No approval will be given for the development of facilities on
leased land except for property either:
a. Leased from the Federal Government with no
less than 25 years remaining on the lease and is not revocable at will;
or
b. Leased from one public agency
to another for 25 years or more, provided that safeguards are included to
adequately ensure the perpetual use requirement contained in the LWCF Act. Such
safeguards may include joint sponsorship of the proposed project or other
agreement whereby the lessor land-owning agency would provide assurances that
it would assume compliance responsibility for the Section
6(f)(3) area in the event
of default by the lessee or expiration of the lease, and these assurances are
explicitly reflected in the project agreement. See Chapter
3.A.8 on project sponsor ownership and control
of property.
3.
Development project selection. In selecting
development projects for submission to NPS, the States should carefully review
and evaluate the project applications to filter out ineligible proposals. A
special effort should be made to eliminate questionable, elaborate or
borderline projects that raise serious questions concerning the project's cost,
use, priority, competition with the private sector, or inclusion of ineligible
facility types.
a.
Development
project criteria. In evaluating development project proposals, the
State and the NPS should give special attention to the degree to which the
project is in keeping with the original intent of the LWCF Act. The following
questions should be used as a general guide in evaluating a questionable,
elaborate or borderline proposal in relation to the original intent of the Act.
Essentially, to be eligible, one must be able to conclude that LWCF funds are
being used "in the public interest" and "in accord with the Statewide
Comprehensive Outdoor Recreation Plan" for the development of "basic outdoor
recreation facilities to serve the general public." The NPS reserves the right
to request from the State a written justification of eligibility if in its
judgment one is considered necessary.
A development project is considered to be questionable,
elaborate, or borderline with respect to the basic intent of the LWCF Act if
serious questions arise concerning the following eligibility issues and their
interrelationships:
(1)
Project cost. Consideration should be given to the
degree to which a significant portion of the State's annual apportionment is
requested for one project, for one project sponsor, or for one facility that
does not serve the full range of the general public. Does the project require
only a reasonable portion of the State's LWCF monies rather than a significant
portion which precludes the funding of more urgent recreation needs? Does the
cost of a facility significantly exceed the comparable price for similar
facilities? Is the project's cost comparable to other facilities of its type
and justifiable in terms of the quantity and quality of recreation the facility
will provide?
(2)
Population served. Consideration should be given to
the degree to which participation is limited by a facility's single purpose,
short season, cost of equipment, fee for participation, or its limited
accessibility to the general public. Will the project serve a reasonably large
number of people in its service area? Will it provide close-to-home recreation
and be accessible by public transportation? Will the project serve a wide range
of recreation interests and abilities including the elderly and individuals
with disabilities as well as the more active and highly skilled
recreationists?
(3)
SCORP priority. Does the project meet priority
recreation needs as defined in the Statewide Comprehensive Outdoor Recreation
Plan? Consideration should be given to a project's priority in the State's
Comprehensive Outdoor Recreation Plan, especially when the need for a
particular facility is not fully supported.
(4)
Competition with the private
sector. Consideration should be given to the degree to which the
private sector is already providing similar facilities of the type and quality
needed to meet identified recreation demands, and the user fee is low enough to
undercut private business, or the income is sufficient to justify private
investment, or the facility is located in a tourist market area. Can it be
shown that the project does not compete unfairly with the private
sector?
(5)
Eligibility
of facility types. Consideration should be given to the degree to
which the project involves questionable support, spectator or exhibit
facilities or does not clearly comply with the other eligibility criteria. Does
the project involve only LWCF-eligible outdoor recreation facilities?
(6)
Fees. Does the
project establish a reasonable fee structure that allows for broad public
participation perhaps by including free days or reduced rate days if necessary?
Is project income to the sponsor being directed to recreational
purposes?
(7)
Applicant's performance history. The past history of
the applicant for 1) adequately completing or carrying out previous
federally-assisted projects, 2) protecting existing recreation resources, 3)
operating and maintaining areas to acceptable standards, and 4) guiding new
developments and preserving lands for open space and outdoor recreation
purposes through the use of zoning and other rules, regulations and authorities
will be considered.
Grants may not be awarded to any applicant nor shall any
grantee or subgrantee make any award or permit (subgrant or contract) to any
party that is debarred or suspended or is otherwise excluded from or ineligible
for participation in federal assistance programs under Executive Order 12549,
"Debarment and Suspension."
b.
Boat and fishing access
facilities. For boat and fishing access facilities and related
support facilities that are eligible for funding under both LWCF and the
Dingell-Johnson (D-J) Act (also known as the Federal Aid in Sport Fish
Restoration Act and "Wallop-Breaux"), as amended, LWCF funding will not be
provided for facilities also eligible under Dingell-Johnson unless the State
Liaison Officer has undertaken an effort to coordinate all requests for such
facilities with the State official designated to administer D-J projects. Any
application for LWCF assistance for these facilities must include a statement
from the State Liaison Officer certifying such coordination has taken place.
The result of such effort would be that the application would be directed or
redirected toward whichever program is deemed more appropriate for assisting
the specific project considering cost, availability of funds, other project
components and additional factors deemed pertinent. D-J funds may not be used
in meeting the state matching share requirement of LWCF.
4.
Eligible recreation
facilities. Development projects eligible for LWCF assistance may
include but are not limited to the following facility types:
a.
Sports and
playfields. LWCF assistance may be available for fields, courts
and other outdoor spaces used in competitive and individual sports. This
includes fields for baseball, softball, soccer and football, tennis courts,
playgrounds and tot lots, golf courses, rifle/pistol ranges, trap/skeet fields,
archery ranges, rodeo arenas, inline hockey rinks, skate parks, running tracks,
and other similar facilities.
b.
Picnic facilities. LWCF assistance may be available
for tables, fireplaces, shelters, and other facilities related to family or
group picnic sites.
c.
Trails. LWCF assistance may be available for the
development and marking of overlooks, turnouts and trails for nature walks,
hiking, bicycling, horseback riding, exercising, motorized vehicles and other
trail activities.
d.
Swimming facilities. LWCF assistance may be available
for swimming beaches, outdoor pools, wave-making pools, wading pools, spray
pools, lifeguard towers, bathhouses and other similar facilities.
e.
Boating
facilities. LWCF assistance may be available for most facilities
related to motor boating, sailing, canoeing, kayaking, sculling and other
boating activities. These facilities include, but are not limited to, docks,
berths, floating berths secured by buoys or similar services, launching ramps,
breakwaters, mechanical launching devices, boat lifts, boat storage, sewage
pump-out facilities, fuel depots, water and sewer hookups, restrooms, showers,
electricity and parking areas. Assistance will not be provided for operational
equipment such as buoys, ropes, life jackets, or boats. Marinas are also
eligible for assistance and are subject to the following provisions regardless
of when LWCF assistance was provided:
(1) An
equitable method of allocating berth space shall be used in all marinas.
Allocation methods shall include:
(a) annual
or multi-year lotteries, or
(b)
posted waiting lists where berth space is filled in the order of receipt of
applications, or
(c) another method
selected by the applicant that responds to local conditions and equitably
allocates space among all parties on an annual or multi-year basis. In each
instance, adequate public notice shall be provided announcing the availability
of berth space and describing application procedures. The project sponsor shall
determine the most equitable method under which leaseholders may compete for
future berth space vacancies. For new marinas the project narrative shall
describe the allocation system to be used.
(2) Commercial charter fishing or sightseeing
boats are permissible marina leaseholders due to their potential for expanding
public waterfront access. However, these users should not occupy a significant
number of marina berths, so project sponsors should establish reasonable limits
on the number of berth spaces provided for such users.
New marinas receiving LWCF assistance shall also be subject to
the following provisions:
(3) Berth lease terms shall not be
transferable to any other party.
(4) Berth space for transient boaters shall
be provided.
(5) Marinas located in
urban areas shall include specific design provisions for non-boater public
access. To expand water-based recreation opportunities such access may be
provided in the form of walkways, observation points, fishing piers and/or
related facilities. Limited access to the actual marina berths may be
retained.
f.
Fishing/hunting facilities. LWCF assistance may be
available for trails, fishing piers and access points, initial clearing and
planting of food and cover, stream improvements, wildlife management areas,
fish hatcheries and other facilities necessary for public fishing or hunting.
In developing and evaluating fish hatchery proposals, only such areas and
facilities will be eligible if they will be open to the public for general
compatible outdoor recreation. States shall give priority to hatcheries that
provide urban fishing opportunities.
g.
Winter sports
facilities. LWCF assistance may be available for facilities such:
as ski trails; jumps; lifts; slopes; and snowmaking equipment used in downhill
skiing, cross country skiing, tobogganing, sledding, snowmobiling, and other
winter sports. Outdoor ice skating and ice hockey rinks are also
eligible.
h.
Camping
facilities. LWCF assistance may be available for tables,
fireplaces, restrooms, information stations, snack bars, utility outlets and
other facilities needed for camping by tent, trailer or camper. Cabins or group
camps of simple basic design and accessible to the general public in an
equitable manner are eligible. Group camps designated for specific groups or
for which specific groups will be given priority access are not eligible for
LWCF assistance (Chapter 8.B). Lodges, motels and luxury cabins are not
eligible for LWCF assistance.
i.
Exhibit facilities. LWCF assistance may be available
for outdoor exhibit or interpretive facilities that provide opportunities for
the observation or interpretation of natural resources located on the
recreation site or in its immediate surrounding areas. This includes small
demonstration farms, arboretums, outdoor aquariums, outdoor nature exhibits,
nature interpretive centers and other similar facilities. However, exhibit
areas will not be assisted if they function primarily for academic, historic,
economic, entertainment or other non-recreational purposes. This restriction
includes convention facilities, livestock and produce exhibits, commemorative
exhibits, fairgrounds, archeological research sites, and other non-recreational
facilities. The development of nature and geological interpretive facilities
that go beyond interpreting the project site and its immediate surrounding area
are not eligible for assistance.
j.
Spectator facilities. LWCF assistance may be available
for amphitheaters, bandstands and modest seating areas related to playfields
and other eligible facilities, provided the facility is not designed primarily
for professional or semiprofessional arts or athletics, or intercollegiate or
interscholastic sports. Seating provisions to accommodate persons with
disabilities should be provided. Assistance is not available solely to increase
seating capacity for a limited number of special events.
k.
Community
gardens. LWCF assistance may be available for land preparation,
perimeter fencing, storage bins and sheds, irrigation systems, benches,
walkways, parking areas and restrooms related to a community garden. In such a
project, community gardening must be clearly identified in the SCORP as a
needed outdoor recreation activity and must be accessible to the general public
in an equitable manner. Furthermore, LWCF assistance is not available for
fertilizer, seeds, tools, water hoses, nor gardens planned as commercial
enterprises.
l.
Renovated facilities. LWCF assistance may be available
for extensive renovation or redevelopment to bring a facility up to standards
of quality and attractiveness suitable for public use, if the facility or area
has deteriorated to the point where its usefulness is impaired, or outmoded, or
where it needs to be upgraded to meet public health and safety laws or
requirements. However, such renovation is not eligible if the facility's
deterioration is due to inadequate maintenance during the reasonable life of
the facility.
m.
Professional facilities. Areas and facilities designed
primarily for semi-professional or professional arts or athletics, such as
professional type outdoor theaters, professional rodeo arenas and other similar
facilities are not eligible for LWCF assistance.
n.
Accessible
facilities. LWCF assistance may be available for the adaptation of
new or existing outdoor recreation facilities and support facilities for use by
persons with disabilities. However, outdoor recreation facilities to be used
exclusively by disabled persons are not eligible unless such facilities are
available to the general public or are part of an outdoor recreation area that
serves the general public.
o.
Mobile recreation units. Mobile recreation units
including playmobiles, skatemobiles, swimmobiles, show wagons, puppet wagons
and porta-bleachers are not eligible for LWCF assistance.
p.
Zoo facilities.
Outdoor display facilities at zoological parks are eligible to receive LWCF
assistance provided they portray a natural environmental setting serving the
animal's physical, social, psychological and environmental needs, and is
compatible with the activities of the recreationist. Traditional outdoor caging
facilities and animal pens are not eligible although Fund assistance can
contribute to the renovation of such facilities to achieve a more natural
environmental setting as described above. Basic winter/adverse weather housing
quarters that are separate and distinct from enclosed viewing and display areas
and used in direct support of outdoor displays may also receive assistance.
Support facilities to serve the needs of the recreationist, such as walkways,
landscaping, comfort facilities, parking, etc. are also eligible. Other
enclosed or sheltered facilities such as indoor displays and permanent housing
are not eligible for Fund assistance.
5.
Guidelines for eligible
support facilitiesa.
Support facilities. LWCF assistance may be available
for support facilities needed by the public for outdoor recreation use of an
area, such as roads, parking areas, utilities, sanitation systems, restroom
buildings, simple cabins or trail hostels, warming huts, shelters, visitor
information centers, kiosks, interpretive centers, bathhouses, permanent
spectator seating, walkways, pavilions, snack bar stands, and equipment rental
spaces. When appropriate, support facilities may be sheltered from the elements
by providing a simple roof or cover. Informational materials and leaflets are
not eligible.
b.
Operation and maintenance facilities. Facilities that
support the operation and maintenance of the recreation resource on which they
are located are eligible, such as maintenance buildings, storage areas,
administrative offices, dams, erosion control works, fences, sprinkler systems
and directional signs. Regional and area wide maintenance facilities are
eligible provided the project sponsor agrees to include those park and
recreation areas served by the maintenance facility in the scope of the project
agreement and under the conversion provisions of Section
6(f)(3) of the Act.
Employee residences and furnishings are not eligible.
c.
Beautification.
The beautification of an outdoor recreation area is eligible provided it is not
part of a regular maintenance program and the site's condition is not due to
inadequate maintenance. This includes: landscaping to provide a more attractive
environment; the clearing or restoration of areas that have been damaged by
natural disasters; the screening, removal, relocation or burial of overhead
power lines; and the dredging and restoration of publicly owned recreation
lakes or boat basins and measures necessary to mitigate negative environmental
impacts.
d.
Indoor
facilities. LWCF assistance will not be provided for support
facilities or portions thereof that contribute primarily to public indoor
activities such as: meeting rooms; auditoriums; libraries; study areas;
restaurants; lodges; motels; luxury cabins; furnishings; food preparation
equipment; kitchens; and equipment sales areas. Bathhouses, public restrooms,
maintenance sheds, etc., are potentially eligible for LWCF assistance since
their basic function is to provide support for outdoor recreation
facilities.
e.
Pro rata
basis. Support facilities that exclusively serve ineligible
facilities are not eligible. However, if support facilities will serve both
eligible and ineligible facilities, as may be the case with roads and sewers,
assistance may be provided on a pro rata basis for that portion of the support
facility that will serve the eligible facilities, provided that the eligible
facilities are subject to the LWCF Act 6(f)(3 ) conversion provisions.
f.
Roads. Roads
constructed outside the boundaries of the recreation area or park are not
eligible, unless:
(1) They are, in fact,
access roads to a designated park and recreation area and not part of a state,
county or local road system extending beyond or through the boundaries of the
area.
(2) The access corridor is
owned or adequately controlled by the agency sponsoring or administering the
park or recreation area and included within the project's
6(f) (3)
boundary.
(3) The principal
objective is to serve the park and visitors. Any use or service to private
parties must clearly be incidental to the primary use of the access road for
recreation purposes in which case assistance may be granted on a pro rata
basis. Roads designed to serve undesignated recreation areas or federal areas
are not eligible.
g.
Equipment. Equipment required to make a recreation
facility initially operational, and certain supplies and materials specifically
required under State Health Department regulations may be eligible for
assistance.
h.
Must
serve viable outdoor recreation area. Development projects in new
or previously undeveloped recreation areas may not consist solely of support
facilities, unless they are required for proper and safe use of an existing
viable outdoor recreation area that does not require additional outdoor
recreation facilities (such as construction of restrooms at a public nature
study area), or unless necessary outdoor recreation facilities are being
developed concurrently with the LWCF assisted support facilities, or unless
necessary outdoor recreation facilities will be developed within a reasonable
period of time. In the latter two cases, the project agreement must include a
provision that the non-LWCF assisted outdoor recreation facilities are to be
completed within a certain time frame agreeable to the NPS, and if they are
not, the LWCF monies will be refunded.
i.
Energy conservation
elements. The energy conservation elements of an eligible outdoor
recreation facility and its support facilities are eligible for LWCF
assistance. This includes but is not limited to solar energy systems, earth
berms, window shading devices, energy lock doors, sodium vapor lights,
insulation and other energy efficient design methods and materials. In
addition, power systems that minimize or eliminate a facility's use of
petroleum and natural gas are eligible including, but not limited to,
windmills, on-site water power systems, bioconversion systems, and facilities
required for the conversion of existing power systems to coal, wood, or other
energy efficient fuels.
6.
Facility location
requirements. Development projects may be located on lands and
waters owned by (or leased to in accordance with Chapter 3.C.2) the project
sponsor that ensures perpetual public use. In certain situations, however, the
following conditions also apply:
a.
Public school grounds. Public outdoor recreation areas
and facilities for coordinated use by the general public and by public schools,
including colleges and universities, are eligible for LWCF assistance provided
such facilities are not part of the normal and usual program and responsibility
of the educational institution. Stadiums, stadium-like seating, and portable
bleachers are not eligible for LWCF assistance. Facilities needed to solely
meet the physical education and athletic program requirements of a school may
not receive LWCF assistance. This policy does not preclude exclusive school use
of certain facilities such as athletic fields, tennis courts, and swimming
pools, at certain times for instruction or competition provided the public
outdoor recreation use remains primary, and there is adequate public access at
other times.
The grant application must include a schedule of the time the
facility will be available to the public. Additionally, adequate signs must be
installed at the site, prior to final payment on the project, indicating when
the outdoor recreation facilities are available to the general public. Adequate
documentation must be provided in the LWCF application that indicates awareness
of an agreement to the Section 6(f) provisions of the LWCF Program by the
school entity sponsoring the project.
b.
Tourist areas.
Public outdoor recreation and support facilities may be located in primary or
potential tourist market areas, provided their primary purpose is for public
outdoor recreation as opposed to entertainment or economic development, and
provided they do not create unfair competition with the private
sector.
c.
Historic
sites. Outdoor recreation and support facilities may be located on
historic sites or in conjunction with historic structures. This includes picnic
areas, walkways and trails on a historic property as well as visitor centers
oriented to the outdoor facilities and environment. However, the restoration or
preservation of historic structures is not eligible. In all cases, the project
must be in accord with the National Historic Preservation Act of 1966 (see
Chapter
4.C).
d.
Utility sites.
Assuming grantees possess adequate control and tenure of land and specific
agreement from the utility company, outdoor recreation and support facilities
may be located on utility company lands such as rights-of-way, reservoir lands,
etc. unless the recreation resource management plan of the utility's license
application filed with the Federal Energy Regulatory Commission indicates the
facilities are to be provided at the sole expense of the licensee.
e.
Agricultural
lands. Outdoor recreation and support facilities, such as
demonstration farms and wildlife management and hunting areas, may be planned
by the project sponsor in conjunction with agricultural activities, provided
that the type and extent of the agricultural activity is limited to that
necessary to support the outdoor recreation activity.
7.
Guidelines for eligible
sheltered facilities. For LWCF assisted swimming pools and ice
skating rinks located in areas which meet the cold climatic criteria described
below, shelters of permanent construction may partially or completely enclose
these facilities to protect them against cold weather conditions and thereby
significantly increase the recreation opportunities provided:
a.
Funding
limitation. A qualified State may use up to 10 percent of its
annual apportionment for eligible sheltered facilities. The amount to be
charged against this allowance will be computed based upon the Fund assistance
provided for the entire enclosed facility, rather than the Fund assistance
provided only for the shelter.
If a State does not use the entire 10 percent of its fully
obligated fiscal year apportionment for sheltered facilities, the remaining
balance may be credited to subsequent apportionment allowances. For example,
where only 5 percent of a fully obligated fiscal year apportionment has been
used, the subsequent fiscal year apportionment allowance would be 10 percent
plus the 5 percent balance carried over from the previous fiscal year. A credit
may be carried for two subsequent fiscal years.
If a Fund-assisted swimming pool or ice skating rink without a
shelter is developed under a project approved after September 28, 1976, and a separate project is later
submitted to shelter the pool or rink, the combined amount of Fund assistance
provided for both the facility and its shelter will be credited against
available allowances. If the Fund-assisted pool or rink was developed under a
project approved prior to September 28, 1976, and a separate project is later
submitted to shelter the facility, only the Fund assistance provided for the
shelter will be credited against available allowances.
Also, Fund assistance may be used to develop a shelter for a
swimming pool or ice skating rink that was not constructed with Fund
assistance. In this case, only the cost of the shelter will be credited against
available allowances.
b.
Use of non-federal funds for the shelter. State or
local project sponsors may use their own funds to shelter existing or proposed
Fund-assisted swimming pools or ice skating rinks that are consistent with the
requirements described below. In such cases, Fund assistance provided to
develop the pool or rink will not be credited against available allowances.
Proposals to shelter eligible facilities with state or local funds will be
approved by the State Liaison Officer and the appropriate NPS office.
Where the state or locally funded shelter is constructed
concurrently with the Fund-assisted facility, the total project cost included
in the grant agreement will be that cost attributable to the pool or rink
facility only. LWCF assistance will only be used to fund outdoor recreation
facilities. Fund monies will not be used to cost share in indoor facilities
such as recreation centers. Engineering cost estimates and contract
specifications must separate the shelter costs from other project development
costs. When sheltering is to occur concurrently with the construction of the
funded facility, the NPS shall review the plans and cost accounts to ensure
that LWCF monies are not used in the sheltering.
Project sponsors may, without the use of LWCF monies, construct
public indoor facilities on a Fund assisted site when such facilities are
compatible with the outdoor recreation use of the site. NPS approval of such
public facilities must be obtained prior to construction in accordance with the
procedures contained in Chapter 8.G.
c.
Shelter
requirements. Any facility assisted from or eligible for
assistance from the LWCF and within a Section
6(f) boundary may be
sheltered or enclosed at the expense of the project sponsor. New sheltered
facilities may also be constructed at the project sponsor's expense, with NPS
approval regardless of prevailing climatic conditions. To be considered by NPS,
a proposal to shelter or enclose a facility must:
(1) Be transmitted to the NPS by the SLO
conveying the State's support of the proposal;
(2) Include a completed Proposal Description
and Environmental Screening Form (PD/ESF) (see Chapter
4 ) providing:
-an explanation of the recreation uses that could typically
occur outdoors with recreation use clearly being the overall primary
function;
-an explanation of how the proposal will not substantially
diminish the outdoor recreation values of a site;
-an explanation of how the proposed sheltered facility will be
compatible and significantly supportive of the outdoor recreation resources
present and/or planned;
-an explanation how the proposal will benefit the total park's
outdoor recreation use;
-the environmental screening form and selection of the
appropriate NEPA pathway per the PD/ESF. If the proposal is not eligible for a
categorical exclusion, the State/sponsor must produce an environmental
assessment and make it available for public comment per the LWCF NEPA process
(see Chapter
4 ).
-assurance that the facility will be under the control of the
public agency which sponsors and administers the original park areas. However,
operation of such facilities may be carried out by a contractor or
concessionaire provided that sufficient controls are maintained by the
sponsoring agency through a management contract or concession agreement to
ensure the maintenance of public recreation values and access by the general
public.
d.
Cold climatic criteria. Sheltered ice skating rinks
may be developed in communities where the mean annual total snowfall is at
least 24 inches or the normal daily mean
temperature for the coldest winter month is 30 degrees or less. Sheltered
swimming pools may be developed in communities where the normal daily mean
temperature for the month of June is 72 degrees or less. The official
references for making these determinations are the average temperature and the
snowfall tables found in Comparative Climatic Data for the United States
published by the National Oceanic and Atmospheric Administration, U. S.
Department of Commerce. If climatic data is not published for the community in
which the project is located, the project sponsor should contact the National
Climatic Center to obtain the required data. The National Climatic Center will
be able to provide a mean annual total snowfall figure, and figures for the
normal daily mean temperature, based on data collected at the closest official
weather recording station. A copy of the cold climatic data used to make the
determination of eligibility shall be included with all project applications. A
project sponsor eligible under the original climatic criteria, based on data
available as of September 26, 1976, would not become ineligible in a subsequent
year solely on the basis of a change in the data.
CHAPTER 4
-
PROPOSALS, ENVIRONMENTAL REVIEW/FEDERAL COMPLIANCE
A.
Proposal Development and Screening
for Environmental Impacts
States are responsible for ensuring, on behalf of the NPS,
proposals submitted to the NPS for federal decision, including new applications
and amendments for LWCF previously-approved projects such as conversions,
temporary non-conforming uses, and public facility exceptions, are developed in
accordance with all applicable federal, state and local laws and regulations.
This chapter presents the major federal laws and executive orders that govern
the way proposals must be developed for federal review and decision. The
General Provisions shall be attached to each LWCF grant agreement and
amendment. States are encouraged to consult with NPS during the proposal
development process for guidance on the compliance requirements in this
chapter.
The federal legislation that coordinates the consideration of
the potential for impacts to the human environment as a result of a federal
action is the National Environmental Policy Act. As described in the next
section, the NEPA process coordinates compliance with applicable
related federal, state, and local environmental requirements. To
facilitate and document this coordination, States must ensure that the LWCF
Proposal Description and Environmental Screening Form (PD/ESF) is completed and
accompanies each LWCF proposal submitted for federal review and
decision.
The PD (proposal description) portion of the PD/ESF identifies
and provides descriptive information about the proposal to the federal
decision-maker.
The ESF (environmental screening form) portion of the PD/ESF
serves as part of the federal administrative record required by NEPA and its
implementing regulations which supports a chosen NEPA "pathway" which must be
completed before final action can be taken by the NPS. It is intended that
States/project sponsors use the PD/ESF as early as possible in the state/local
project planning process. The ESF portion of the PD/ESF will administratively
document 1) a Categorical Exclusion recommendation or 2) the necessity of
further environmental review through an Environmental Assessment (EA) or
Environmental Impact Statement (EIS) as necessary. In the latter case, the EA
(or EIS) must accompany the State's LWCF proposal submission to the NPS. The
ESF can also be used to document previously conducted yet still valid
environmental analysis.
Upon the State's submission of the completed proposal with the
PD/ESF and the completed environmental documentation as necessary, NPS will
undertake an independent review of the final proposal and supporting
documentation, and take action as appropriate.
B.
National Environmental Policy
Act1.
Authorities and
guidance. The National Environmental Policy Act (NEPA) of 1969, as
amended, is landmark environmental protection legislation establishing as a
goal for federal decision-making a balance between use and preservation of
natural and cultural resources.
NEPA requires all federal agencies to:
1) prepare in-depth studies of the impacts of
and alternatives to proposed "major federal actions," and
2) use the information contained in such
studies in deciding whether to proceed with the actions; and
3) diligently attempt to involve the
interested and affected public before any decision affecting the environment is
made.
Federal actions are defined as projects, activities, or
programs funded in whole or in part under the direct or indirect jurisdiction
of a federal agency, including those carried out by or on behalf of a federal
agency; those carried out with federal financial
assistance; those requiring a federal permit, license, or
approval; and those subject to state or local regulation administered pursuant
to a delegation or approval by a federal agency. The LWCF is a federal
assistance program and thus all NPS LWCF decisions are subject to the
provisions of NEPA and associated guidance found in the:
a. Council on Environmental Quality (CEQ)
Regulations for Implementing NEPA, 40 CFR 1500-1508
b. NEPA's Forty Most Asked Questions,
CEQ
c. Department of Interior (DOI)
policy and procedures for implementing NEPA (Departmental Manual 516 DM
1-6)
d. National Park Service
(NPS), LWCF Program Manual, Chapter 4 (this chapter), including the Proposal
Description and Environmental Screen Form (PD/ESF) developed from NPS
Director's Order #12 and Handbook, "Conservation Planning, Environmental Impact
Analysis, and Decision Making."
2.
Compliance
coordination. For LWCF proposals, the NEPA process coordinates
compliance with related federal, state, and local environmental requirements as
applicable. At a minimum, compliance by the State/project sponsor with the
following federal laws and executive orders shall be coordinated during the
NEPA process and should be integrated into the NEPA document:
a.
National Historic Preservation
Act, Section
106, as amended. Section
106 of NHPA requires federal agencies to
consider the effects of their proposals on historic properties, and to provide
State Historic Preservation Officers (SHPO), Tribal Historic Preservation
Officers (THPO), and as necessary, the Advisory Council on Historic
Preservation a reasonable opportunity to review and comment on these actions.
Section
106 review and NEPA are two separate,
distinct processes. They can and should occur simultaneously, and documents can
be combined, but one is not a substitute for the other. They should, however,
be coordinated to avoid duplication of public involvement or other
requirements. The information and mitigation gathered as part of the Section
106 review must be included in the NEPA
document, and the Section
106 process must be completed by the
State/project sponsor before NPS can sign a categorical exclusion, a finding of
no significant impact (FONSI) or a record of decision (ROD). See Section C of
this chapter for further guidance on the Section
106 process.
b.
Endangered Species Act,
Section
7. Section
7 of the Endangered Species Act (ESA)
requires a federal agency consult with the U.S. Fish and Wildlife Service or
the National Marine Fisheries Service on any action that may affect endangered
or threatened species or candidate species, or that may result in adverse
modification of critical habitat. For LWCF purposes the State/project sponsor
must carry out this consultation and document that it has occurred. An EA or an
EIS may provide sufficient information to serve as a "biological assessment"
for Section
7 purposes. If a separate "biological
assessment" is prepared, it must be part of any NEPA document.
c.
Floodplain Management and
Wetland Protection, Executive Orders 11988 and 11990. Executive
Orders 11988 and 11990 direct the federal agency to avoid, to the extent
possible, the long and short term adverse impacts associated with modifying or
occupying floodplains and wetlands. They also require the federal agency to
avoid direct or indirect support of floodplain or wetland development whenever
there is a practical alternative. For LWCF purposes, the State/project sponsor
must comply with this executive order. If implementing the LWCF project would
result in an adverse impact to a federal or state regulated floodplain or
wetland, a statement of finding must be included in the EA or EIS documenting
the State/local sponsors coordination efforts with responsible state and
federal authorities, a description of affected floodplain and wetland
resources, alternatives considered to developing in the floodplain and/or
wetland, and actions to avoid, minimize and/or mitigate impacts.
d.
Environmental Justice in
Minority and Low-Income Populations, Executive Order 12898.
Executive Order 12898 directs federal agencies to assess whether their actions
have disproportionately high and adverse human health or environmental effects
on minority and low-income populations. For LWCF purposes, States/project
sponsors must specifically analyze and evaluate the impact of the LWCF proposal
on minority and low-income populations and communities, as well as the equity
of the distribution of the benefits and risks of the decision in the NEPA
document. If it does not apply, this should be noted in the "issues dismissed"
section of the NEPA document. See Department of Interior Environmental
Compliance Memoranda (ECM) 95 -3.
e.
Department of the Interior
Environmental Compliance Memorandum (ECM) 95 -2: ECM95 -2 requires bureaus to explicitly address
environmental impacts of their proposed actions on Indian Trust Resources in
any environmental document.
f.
Intergovernmental Review of Federal Programs, Executive Order
12372. For States that have selected to review the LWCF Program
under its own Intergovernmental Review Process under Executive Order 12372,
States may use this process for state and local government coordination and
review of proposed federal financial assistance. States may make efforts to
accommodate state and local elected officials concerns and comments that are
communicated through the designated single point of contact process. Comments
should be considered in a timely manner during the NEPA process and prior to
submission to NPS for federal review. The Intergovernmental Review Process does
not fulfill the State's/project sponsor's responsibility for providing a public
comment period (see Section 5.b(2) below) that provides the interested and
affected public opportunity to comment on the completed environmental review
documents.
3.
State responsibility. Using the PD/ESF for new
applications and certain amendments, the State must submit to NPS adequate
environmental documentation in order for NPS to determine whether a proposed
LWCF action is either categorically excluded from further environmental
analysis or requires an EA or an EIS. States are responsible for coordinating
the environmental review process including the production of environmental
assessments, and if necessary, environmental impact statements. States are also
responsible for ensuring the required public comment periods are offered in
accordance with the guidance found in Section 5.b(2) below.
CEQ encourages federal and state agencies to work together to
combine efforts to produce only one NEPA document, especially for those state
and local agencies that have their own requirements for impact analysis. Early
coordination is critical prior to the investment of extensive planning
resources and the commitment to a specific alternative. State and local
environmental impact analysis requirements may not meet the same needs as NPS
LWCF requirements, so States are urged to consult early in the process with
NPS.
When a State elects to use a state or local environmental
review process to meet the NEPA requirement, States shall provide the
environmental review guidance in this chapter, including the PD/ESF, to the
agency delegated the responsibility to conduct the environmental review to
ensure that the process meets these federal requirements.
Costs associated with conducting environmental reviews may be
eligible for LWCF assistance (see Chapter 5.A.3.b).
4.
NPS
responsibility. NPS is responsible for determining whether a
proposed LWCF action is either categorically excluded from further
environmental analysis or requires an environmental assessment (EA) or an
environmental impact statement (EIS). NPS also is responsible for ensuring the
adequacy of any required EA or EIS documents, and is solely responsible for
signing the decision documents. NPS serves as the lead agency in the
delegation, preparation and review of any EA or EIS for proposed LWCF actions.
As the lead agency, the NPS provides guidance to the States on how to develop
adequate environmental documentation according to the type of the state/local
proposal for federal assistance.
5.
Scope of environmental review. Early in the conceptual
development of an LWCF proposal, the State shall encourage LWCF project
sponsors to document their planning and analysis process, including all efforts
to reach out to the interested and affected public and agencies. The public and
agencies should be invited to provide input
early in
the planning process and
before any environmental
analysis formally begins so the sponsor can clearly communicate the purpose and
need for the project and give the public and agencies an opportunity to provide
any information that could be useful for scoping out the LWCF proposal and
considering its potential impact on resources. This scoping step in the
planning process will yield information for use in defining the scope of the
LWCF proposal and possible associated environmental impacts.
The LWCF PD/ESF shall be used by all potential LWCF project
sponsors and for any LWCF proposal requiring federal action. The PD/ESF is
designed for use as a tool during project scoping, planning, and proposal
development to document environmental information and consider the LWCF
proposal's possible environmental impacts at the time it is discussed,
presented, or discovered in the field rather than as a "compliance exercise"
after a decision is made and the application for federal assistance is being
prepared.
As a result of early project scoping and planning, the
State/sponsor develops a final proposal for possible federal assistance or
action, including a completed ESF. The scope of the environmental review under
NEPA, i.e., the extent of resources that may be affected by the project,
depends on the type of LWCF proposal under consideration as follows:
a.
New acquisition
projects. The scope of the environmental review shall include the
lands to be acquired and the proposed public outdoor recreation uses intended
for the property to be completed within three years from the date of
acquisition.
b.
Development projects. The scope of the environmental
review shall be the proposal to provide or improve facilities for public
outdoor recreation use and associated activities resulting from these
improvements.
c.
Section
6(f)(3)
Conversions. Pursuant to
36 CFR
59.3, the scope of the environmental review
for Section
6(f)(3) conversions is the
entire Section
6(f)(3) park proposed for
conversion, including for partial conversions, and lands proposed for
replacement including the proposed development for public outdoor recreation
use and associated activities. Resources beyond the existing Section
6(f)(3) area are not
subject to review unless required by other federal compliance
programs.
d.
Other LWCF
proposals. To determine the scope of the environmental review for
other types of LWCF proposals, consult your NPS Regional Office LWCF Program
Manager.
The scope of the environmental review determines the resources
that must be screened for possible environmental impacts resulting from the
LWCF proposal.
6.
NEPA pathway
options. The completed PD/ESF will guide the state/project sponsor
along the appropriate NEPA pathway to produce the level of environmental
analysis and documentation required for the proposed undertaking. The PD/ESF
will document and support the NEPA analysis pathway option chosen for the
proposal. States are required to include the completed PD/ESF with its formal
LWCF proposal submission to the NPS.
The NEPA analysis pathway options available to States
are:
a.
Categorical
Exclusion for which a record is needed. These Categorical
Exclusions (CE) are for federal actions that, under normal circumstances, are
not considered major federal actions and have the potential for minor or no
measurable impacts on the human environment. Prior to submitting a proposal to
the NPS for federal review and decision, it is the State's responsibility to
review the LWCF proposal to determine if the project meets the criteria for a
CE determination. If the LWCF proposal meets the criteria for a CE, the State
provides sufficient documentation on the PD/ESF to support the CE by indicating
that all potential impacts will be minor or less, and NPS agrees with the CE
selection, NPS will sign its own CE form signifying the proposal is
categorically excluded from further NEPA analysis.
A CE is not applicable if the ESF indicates that the proposal
may result in more than minor impacts on resources.
Note in addition to the CE criteria, the State must also
consult the list of exceptions to the CE criteria listed in the PD/ESF. These
exceptions describe additional circumstances that may be relevant for the
proposal and could result in adverse impacts on the human environment and,
therefore, preparation of an EA would be required.
b.
Environmental
Assessment. An Environmental Assessment (EA) is required when 1)
the significance of impacts on any resource is unknown, or 2) the proposed
action does not meet the criteria for CE and is not included in the list of
actions that normally require an EIS, or 3) the proposed action needs several
CE categories to fully describe the action, would involve one or more CE
criteria exceptions, or would involve unresolved conflicts concerning the use
of resources.
All Section
6(f)(3) conversions
require an EA except for the "small conversions" that qualify as a categorical
exclusion as specifically defined in Chapter
8.
(1)
EA format: The
following basic format for a LWCF EA is recommended. The content of each
chapter will vary depending on the type of LWCF proposal under analysis such as
new acquisition and development projects, Section
6(f)(3) conversions, and
other LWCF proposals described in the PD/ESF. In cases where the State/local
sponsor chooses to combine environmental review efforts to meet state and
federal requirements (see Section
2 above), the following information must be
included in the document in a way that allows the LWCF proposal to be readily
discernable, such as in a separate section in the larger, more comprehensive
document. The EA must be factual and written in an objective manner and with a
neutral tone. The EA should not promote a particular alternative or make a case
for the approval of the proposal. The information must be presented without
technical jargon and so it can be understood by the interested and affected
public.
Chapter 1
- Purpose, Need,
Background. This chapter describes the purpose of the EA so that the
interested and affected public, including other agencies and decision-makers,
understand the type and nature of the proposal that needs a federal LWCF
decision. This chapter needs to explain the EA will provide a framework for the
NPS to evaluate the environmental consequences of the proposed action on the
human environment, and must also include any information to help the interested
and affected public and decision-makers understand the context for the proposed
action, including a clear explanation of the role of the LWCF Act Section
6(f)(3) in the proposal
and the scope of the environmental review (see Item 5 above).
Chapter 2
- Description of
Alternatives. This chapter must provide enough information for the
interested and affected public and decision-makers to understand the proposed
alternative (federal approval of the LWCF proposal) and the no action
alternative. This chapter should lead off with an evaluation of all
alternatives considered and the reasons for selecting the proposed alternative
and rejecting the other alternatives.
At a minimum, the proposed alternative should be described in
detail along with the public outdoor recreation resources and opportunities
provided by the proposal including maps clearly depicting the creation of or
changes in the LWCF Section
6(f) boundary. New and/or
existing Section
6(f) parkland must be
described in detail. This chapter must include an explanation and status of any
other approvals, permits or other factors needed to implement the
proposal.
For Section
6(f)(3) conversions, this
chapter must include:
- a description of the Section
6(f)(3) parkland proposed
for whole or partial conversion, including associated outdoor recreation
facilities and opportunities;
- any Section
6(f)(3) parkland remaining
from partial conversions and remaining outdoor recreation facilities and
opportunities; and
- a description of the replacement parkland, including a
description of the planned development for public outdoor recreation use and
new outdoor recreation opportunities to be provided and timetable for
completion.
Chapter 3
- Affected Environment. The affected environment is a
detailed description of the current state of resources expected to experience
environmental impacts. Using the resource impact information documented on the
environmental screening form (ESF) and other means of collecting information
about affected resources, delineate an analysis area boundary for each resource
and describe its existing status (location, nature, condition, scope, size,
etc.). The existing status of these resources will serve as baseline
information upon which impacts will be compared in the next EA chapter.
This includes detailed description of any existing public
outdoor recreation resources and opportunities at the affected site(s)
including a clear depiction any existing Section
6(f) boundary.
This chapter must also describe the park/recreation area's
population service area and demographics, including information about minority
and low income populations pursuant to Executive Order 12898, Environmental
Justice in Minority and Low-Income Populations.
Also, this chapter must include a description of any existing
easements, right-of-ways, leases, and any other agreements about use of the
Section
6(f)(3) area. If the
proposal includes land with a history of contamination, this chapter should
describe the contamination and current condition/remediation status.
For Section
6(f)(3) conversions, this
chapter must include a description of the existing resources associated with
the Section
6(f)(3) parkland proposed
for whole or partial conversion, including associated outdoor recreation
facilities and opportunities and a description of the existing resources at the
replacement site(s). The description must include a detailed description of
existing outdoor recreation resources, facilities and opportunities for all
affected areas as well as the existing population served by the converted park
and the existing population to be served by the new replacement parks.
For conversions, resources beyond the existing and proposed
Section
6(f)(3) areas are not
subject to review unless required by other federal compliance programs.
Any resources and issues to be dismissed from further analysis
must be described in this chapter.
Chapter 4
- Environmental
Impacts. This chapter analyzes the degree to which the resources
described in Chapter
3 (above) will be impacted by the proposal.
The analysis should be presented for the interested and affected public,
agencies, and decision-makers to understand the potential for impacts, both
beneficial and adverse, and should include qualitative and quantitative data
that considers the context, intensity, duration, and timing of the potential
impacts. The presentation of data must be presented objectively, accurately,
and factually. Resource impacts within the proposed Section
6(f)(3) boundary must be
described including any future easements, right of ways, leases and agreements
about the use of the Section
6(f)(3) area.
This chapter must also include a detailed discussion of the
proposed impacts, both beneficial and adverse, on the provision of public
outdoor recreation for the populations served by the proposal including impacts
to minority and low income populations pursuant to Executive Order 12898,
Environmental Justice in Minority and Low-Income Populations, and a clear
depiction of any Section
6(f) boundary changes,
especially for expansion of existing Section
6(f) areas and
conversions, including a description of any easements, rights-of-way, leases,
and any other agreements about the use of the Section
6(f)(3) area as a result
of the proposal. If Chapter
3 (above) includes information that any of
the land resources in the proposal has a history of contamination, this chapter
must include information on the impacts of the proposal on this land
considering its status including the land's suitability to support healthy and
safe public outdoor recreation activities in perpetuity.
For Section
6(f)(3) conversions, an
analysis of impacts to the affected resources described in Chapter
4 must be presented in this chapter.
Resources beyond the existing and proposed Section
6(f)(3) areas are not
subject to review unless required by other federal compliance programs.
Chapter 5
- Coordination
and Consultation. This chapter must list persons, organizations and
agencies contacted for information and for identifying important issues,
developing alternatives, or analyzing impacts. Any scoping or other public
involvement efforts should also be detailed. A list of preparers and their
qualifications should be included as well.
(2)
Opportunity for public review
and comment. At a minimum, States are required to ensure the
interested and affected public has had an opportunity to review and provide
written comments on completed environmental assessments for LWCF proposals.
This public comment period shall be no less than 30 days. The notice an EA is
available for review shall be published in the local newspapers and community
notices, posted on the sponsoring agency's web site, and made broadly known to
the public in such a way that the interested and affected public has ample
notice of the public comment period. The State/project sponsor is responsible
for reviewing the public comments. These comments and the responses that
address all substantive comments are to be included in the proposal's
submission to NPS.
If the proposal is revised in response to substantive public
comments or for any other reason, States should consult with NPS to determine
if the public needs another opportunity to review the revised EA.
c.
Environmental Impact Statement. An Environmental
Impact State (EIS) is required when the potential for significant impact to the
human environment exists is indicated by an EA or through the PD/ESF. The State
should contact NPS for further guidance as soon as there is an indication that
an EIS may be required.
C.
National Historic Preservation Act,
Section
106 Process
1.
Purpose. The
purpose of this section is to provide overall guidance on the implementation of
the National Historic Preservation Act of 1966, as amended, ( P.L. 89-665 ) for
LWCF proposals requiring NPS review and decision.
Section
106 of the National Historic Preservation
Act (NHPA) requires federal agencies to take into account the effects of their
undertakings on historic properties and afford the Advisory Council on Historic
Preservation (Council) a reasonable opportunity to comment on such
undertakings. A historic property is a property listed in or eligible for
listing in the National Register of Historic Places. An undertaking is a
project, activity, or program in whole or in part under the direct or indirect
jurisdiction of a federal agency, including those carried out by or on behalf
of a federal agency; those carried out with federal financial assistance; those
requiring a federal permit, license or approval, and those subject to State or
local regulation administered pursuant to a delegation or approval by a federal
agency. Under Section
106, LWCF proposals requiring NPS review
and decision are undertakings.
The Section
106 process seeks to accommodate historic
preservation concerns with the needs of federal undertakings through
consultation among the agency official and other parties with an interest in
the effects of the undertaking on historic properties, commencing at the early
stages of project planning. The goal of consultation is to identify historic
properties potentially affected by the undertaking, assess its effects, and
seek ways to avoid, minimize, or mitigate any adverse effects on historic
properties.
2.
State responsibility. States shall conduct the Section
106 review process pursuant 36 CFR Part
800. Prior to formal proposal submission
to NPS for review and decision and pursuant to
36 CFR
800.2(a)(3), the State
Liaison Officer, or designee, is authorized by NPS to initiate the Section
106 consultation process with the State
Historic Preservation Office (SHPO), the Tribal Historic Preservation Office
(THPO), and other consulting parties to define the Area of Potential Affect
(APE) and to determine whether LWCF proposals have the potential to affect
historic properties within the APE. The APE is defined as the geographic area
or areas within which an undertaking may directly or indirectly cause
alterations in the character or use of historic properties, if any such
properties exist. The APE boundary may not be limited to the LWCF Section
6(f) boundary.
States are also responsible for performance by third parties
under sub-agreements made by States for accomplishing LWCF program objectives.
This responsibility includes compliance with all applicable federal laws,
executive orders and regulations, such as Section
106.
By submitting a LWCF proposal for NPS review and decision, the
State is making the following assurance and is also requiring this assurance be
provided by subgrantees:
The State shall assist the NPS in its compliance with
Section
106 of the National Historic Preservation
Act of 1966, as amended, by (a) consulting with the State Historic Preservation
Office and/or the Tribal Historic Preservation Office on the conduct of any
necessary investigations to identify properties listed in or eligible for
inclusion in the National Register of Historic Places that are within the
proposed area of potential effect of the proposed action (see 36 CFR Part
800 ), to conduct such investigations and
to notify the Federal grantor agency of the existence of any such properties,
and by (b) complying with all requirements established by the Federal grantor
agency to avoid or mitigate adverse effects upon such properties. The State
further agrees to require this assurance from local project
sponsors.
a.
SHPO
and THPO role. The SHPO reflects the interests of the State and
its citizens in the preservation of their cultural heritage. In accordance with
Section
101(b)(3) of the Act,
the SHPO advises and assists federal agencies in carrying out their Section
106 responsibilities and cooperates with
such agencies, local governments, and organizations and individuals to ensure
historic properties are taken into consideration at all levels of planning and
development. For LWCF proposals, the SHPO shall advise and assist the state
agency in its efforts to comply with Section
106.
When an Indian tribe has assumed the Section
106 responsibilities of the SHPO on
tribal lands pursuant to Section
101(d)(2) of the Act,
consultation for undertakings occurring on tribal land or for effects on tribal
land is with the THPO for the Indian tribe in lieu of the SHPO. See
36 CFR
800.3 for details on how to conduct the
Section
106 process with a THPO.
b.
Indian tribes and
Native Hawaiian organizations. States are responsible for making
reasonable and good faith efforts to identify Indian tribes and Native Hawaiian
organizations that shall be consulted in the Section
106 process. Consultation should
commence early in the planning process in order to identify and discuss
relevant preservation issues and resolve concerns about the confidentiality of
information on historic properties. States should seek assistance from the
SHPO, THPOs, Native Hawaiian organizations, tribes, other federal landholders,
and any party it deems appropriate to determine if the proposal has the
potential to affect tribal and Native Hawaiian resources. States should seek
further guidance from their NPS LWCF regional office in cases where the
consultation process is complex and assistance is needed to further define
these responsibilities and roles.
3.
NPS
responsibility. NPS provides guidance through this manual and
technical assistance to States in complying with the Section
106 process prior to a State's formal
submission of a LWCF proposal to NPS.
NPS receives and considers a State's Section
106 recommendations as part of a State's
formal LWCF proposal submission, and conducts further consultation if needed.
It shall be NPS policy to implement the Section
106 process in such a manner as best
serves the public interest and is consistent with the provisions of the Land
and Water Conservation Fund Act of 1965, as amended.
4.
Timing. States
are responsible for carrying out its responsibilities under these procedures as
early as possible during the formative stages of a proposal and as part of its
decision making process prior to formal submission to NPS for review and
decision.
5.
Coordination with NEPA. States should ensure that
potential affects on historic properties from the proposal are considered as
early as possible during the environmental review process pursuant to the NHPA
Section
800.8
and the National Environmental Policy Act (NEPA). The Section
106 process and the NEPA environmental
review process are two separate, distinct processes. They can and should occur
simultaneously, and documents can be combined, but one is not a substitute for
the other. They should, however, be coordinated to avoid duplication of public
involvement or other requirements. The Section
106 process shall be documented as part
of the LWCF PD/ESF (see next item and also Chapter
4.A). The State should ensure the
information and mitigation gathered as part of the
106 review is included in the NEPA
document to be submitted for NPS review and decision about the proposal's
potential for significant impact on the human environment.
Use of NEPA categorical exclusions does not exempt the proposal
from compliance with this section.
6.
Applying Section 106 to types
of LWCF proposals. A State shall complete a LWCF PD/ESF for each
proposal to be submitted to NPS for review and decision along with its
recommendation for a determination of effect and supporting documentation
appropriate for the type of proposal being submitted to NPS:
a.
New projects and amendments to
acquire and/or develop parkland. Prior to a State's submission of
a proposal for financial assistance (acquisition, development or combination
projects) and for amendments that involve 1) the acquisition of different
acreage from those identified in the original application or 2) a change in the
footprint of the development from that originally proposed within the APE, the
requirements of this chapter must be addressed.
b.
New acquisition projects and
amendments involving delayed development and interim uses
. In some instances LWCF grants are approved for the acquisition
of land on which non-LWCF assisted the development of outdoor recreation
facilities is planned at a future date. In the interim, between acquisition and
development, the property should be open for those public recreation purposes
that the land is capable of supporting or which can be achieved with minimum
public investment. Interim uses for such lands acquired for delayed development
may also include the temporary continuation of an existing use and
non-recreation uses, such as agriculture (see Chapter
3.B.7 for delayed development policy). Any
new planned or unplanned development and uses for the newly acquired property
during the three year period after acquisition is subject to compliance with
this chapter. Failure to protect historic properties constitutes grounds for
termination of a LWCF grant.
If appropriate, a special condition shall be placed in the LWCF
grant agreement/ amendment that requires further compliance prior to any ground
disturbing or demolition activities during this time period. Tracking Section
106 compliance will be the responsibility
of the State.
c.
Section
6(f)(3)
conversions. Section
106 process must be applied to the
Section
6(f)(3) protected area to
be converted as well as the acquisition and development of the replacement
parkland. For the area to be converted States may consider recently conducted
Section
106 reviews for applicability to the new
APE resulting from the proposal that will cause the conversion.
d.
Proposals for temporary
non-conforming uses, significant change in use, sheltering, and developing
public facilities. These proposals require the approval of the NPS
and must be reviewed according to the Section
106 process (see Chapter
8 ).
7.
Cost sharing.
Except as noted below, all costs incurred as a result of compliance with this
chapter, including pre-agreement costs associated with the identification and
evaluation of potential historic properties, are eligible project costs and may
be reimbursable.
a.
Acquisition
projects. Costs for mitigation actions related to an acquisition
project are not eligible for LWCF assistance.
b.
Development
projects. Costs incurred for mitigation actions or mitigation for
resources discovered during LWCF project development may be reimbursable
through the LWCF on a matching basis up to 50 percent provided that such
request is accompanied by evidence that sufficient and timely federal funding
for mitigation is otherwise unavailable. Mitigation shall be conducted in a
manner consistent with the Secretary of the Interior's Standards for Archeology
and Historic Preservation Projects. Since destruction of historic properties
constitutes an irreplaceable loss, failure to provide for necessary mitigation
constitutes grounds for denial of LWCF assistance.
8.
Compliance
procedures
a.
NPS
responsibility. The NPS is ultimately responsible for determining
whether a project proposal will affect a property in or eligible for listing in
the National Register.
b.
State responsibility. It shall be the responsibility
of the State to implement, or cause to be implemented, the provisions of this
part on behalf of and with the concurrence of NPS. The Section
106 Process is detailed in 36 CFR PART
800 Subpart B. States shall use 36 CFR
Part 800 Subpart B for detailed guidance on the Section
106 compliance procedure and its own
SHPO/THPO requirements. The requirement for States to consult with the
SHPO/THPO is independent of the State's Intergovernmental Review system (E.O.
12372). In summary, the State shall:
(1)
Determine scope of historic property identification including the Area of
Potential Affect (APE) for the proposed LWCF undertaking.
(2) Identify historic properties within the
APE.
(3) Evaluate any historic
properties for National Register eligibility.
(4) Recommend a determination of effect.
i.
No historic properties
affected. If the State finds either there are no historic
properties present or there are historic properties present, but the LWCF
undertaking will have no effect upon them as defined in
36
CFR 800.16(i), the State
shall provide adequate documentation of this finding to the SHPO/THPO and shall
notify all consulting parties they have 30 days to object to the finding. If no
objections are made, then the State may recommend a finding of "No Historic
Properties Affected" to NPS as part of its formal proposal submission.
If the SHPO/THPO or any consulting party objects to the
finding, then the State shall follow procedures according to
36 CFR
800.4(d)(1)(ii).
ii.
Historic
properties affected. If the State finds there are historic
properties that may be affected by the LWCF undertaking, the State shall notify
all consulting parties to invite their views on the effects and assess adverse
effects, if any, in accordance with
36 CFR
800.5.
(a)
No adverse effects on historic properties. If after
the State applies the criteria of adverse effects pursuant to
36 CFR
800.5(a)(1) it determines
the LWCF undertaking will have no adverse effect on historic properties
eligible for or listed on the National Register it shall notify all consulting
parties along with the documentation of the finding who have 30 days from
receipt to review the finding. If the SHPO/THPO has agreed with the finding or
has not provided a response, and no consulting party has objected, the State
may recommend a finding of "No Adverse Effect" as part of its formal proposal
submission to NPS.
Disagreement with "no adverse effects" finding. If within the
30-day review period any consulting party notifies the State in writing it
disagrees with the "no adverse effect" finding and specifies the reasons for
the disagreement, the State shall either consult with the party to resolve the
disagreement or request NPS seek Council review of the finding pursuant to
36 CFR
800.5. The State shall also concurrently
notify all consulting parties such a submission has been made and make the
submission documentation available to the public.
If within the 30-day review period the Council provides the
NPS, and if the Council determines the issue warrants it, the head of NPS, with
a written opinion objecting to the finding, NPS shall proceed according to
36 CFR
800.5(c)(3)(ii).
(b)
Adverse effects on historic
properties. When the potential for an adverse effect is found, the
consultation shall continue among the State, NPS, SHPO/THPO and consulting
parties to attempt to eliminate or mitigate the effect. The NPS, with the
assistance of the State, must follow procedures pursuant to
36 CFR
800.6.
c.
Formal submission
of State's proposal to NPS. NPS shall not accept a LWCF proposal
from the State for formal review and decision until the Section
106 process has been completed.
d.
Post review
discoveries. If historic properties are discovered or
unanticipated effects on historic properties found after the NPS has signed off
on the Section
106 process, the State, or subgrantee,
shall immediately halt construction activities and notify NPS. In consultation
with NPS, the State shall make reasonable efforts to avoid, minimize or
mitigate adverse effects to such properties and follow the procedures outlined
under
36 CFR
800.13(b).
e.
Data recovery.
When it is determined the project will have an adverse effect on a property in
or eligible for listing in the National Register, all feasible and practicable
alternatives to avoid or beneficially incorporate the historic properties into
the project should be considered. If NPS, in consultation with the Council and
the SHPO/THPO, determines there is no alternative but to recover the
scientific, prehistoric, historical or archeological data, such recovery shall
be conducted in accordance with
36 CFR
800.6 and pursuant to a Memorandum of
Agreement and be consistent with the Department of Interior "Statement of
Program Approach" for implementation of P.L. 93-291. In the event that timely
funding under P.L. 93-291 is unavailable, such data recovery costs may be
assisted in accordance with this section.
f.
Destruction of historic
properties prohibited. Destruction of any site or property on or
eligible for inclusion on the National Register prior to or in anticipation of
applying for LWCF assistance shall constitute grounds for denial of LWCF
assistance.
D.
Uniform Relocation Assistance and Real Property Acquisition Policies Act
of 1970
1.
Purpose. This section provides guidance for the
application of the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, as amended (Uniform Act) and its implementing regulations
found in the Code of Federal Regulations, Part
24 (49 CFR Part
24 ) to federally assisted projects
through the Land and Water Conservation Fund (LWCF).
The Uniform Act provides for the uniform and equitable
treatment of persons displaced from their homes, businesses, or farms by
federal and federally assisted programs and establishes uniform and equitable
land acquisition policies for federal and federally-assisted programs, such as
the LWCF
a.
Displaced
persons. The Uniform Act seeks to ensure that persons displaced as
a direct result of federal or federally assisted projects are treated fairly,
consistently, and equitably so such displaced persons will not suffer
disproportionate injuries as a result of projects designed for the benefit of
the public as a whole. In this regard, the provisions of the Uniform Act and
its implementing regulations apply to state and local government agencies
receiving federal financial assistance for public projects that require the
acquisition of real property regardless of funding source. The acquisition
itself does not need to be federally funded for the rules to apply. If federal
LWCF funds are used in any phase of the project, such as subsequent
LWCF-assisted development as described in Section
5 below, States must comply with the rules
of the Uniform Act.
b.
Real property acquisition. The Uniform Act seeks to
ensure that owners of real property to be acquired for federal and
federally-assisted projects are treated fairly and consistently, to encourage
and expedite acquisition by agreements with such owners, to minimize litigation
and relieve congestion in the courts, and to promote public confidence in
federal and federally-assisted land acquisition programs. See Section
4 below for further guidance on real
property acquisitions.
2.
State
responsibility. The States are responsible for implementing the
provisions of the Uniform Act pursuant to 49 CFR Part
24. The State Liaison Officers must keep
participating state agencies and local governments advised on, and assure
compliance with, all relocation and acquisition matters as they relate to the
Uniform Act and these procedures. For LWCF project approval, this State
assurance is incorporated into the general provisions included with every
project agreement:
The State will comply with the terms of Title II and
Title III, the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 ( P.L. 91-646 ), 94 Stat. 1894 (1970), and the applicable
regulations and procedures implementing such Act for all real property
acquisitions and where applicable shall assure that the Act has been complied
with for property to be developed with assistance under the project
agreement.
3.
State documentation requirements for displaced
persons. Except for Items "e" and "g" below, the State is required
to keep the following documentation in its own LWCF project files and make it
available upon request during program reviews, for audit purposes, and in
response to NPS information requests. The State must submit copies of the
"Statement of Difference in Value and Waivers" to the NPS prior to project
completion.
a. An estimate of the number of
individuals, families, businesses, and farms being displaced.
b. Appraisal documentation including review
material and the State's written approval of the appraisal report.
c. Copy of the written offer to purchase
including a statement of just compensation.
d. Relocation Plan, advisory services
program, and appeals procedure where displacement occurred.
e. Statement of difference in value if the
purchase price is greater than the approved appraisal of fair market
value.
f. Documentation showing the
owner or owner's designated representative has been given an opportunity to
accompany the appraiser during his inspection of the property.
g. Evidence that occupants of property
acquired were furnished at the time of initiation of negotiations adequate
information explaining their eligibility to payments under Title II of the
Uniform Act
h. Copies of waivers
where applicable.
i. Appropriate
claims forms and supporting documentation.
j. Evidence of purchase price and of
title.
4.
State relocation assistance advisory services. States
shall carry out a relocation assistance advisory program that includes, in
part, determining the relocation needs of each person to be displaced and
providing an explanation of payments and other assistance for which the person
may be eligible. All services required by Title II, Section
205 of the Uniform Act must be provided
by the state or local sponsor.
5.
Relocation benefits to displaced persons. The State
must make available relocation benefits to persons displaced from any site that
at the time of acquisition with or without LWCF assistance (or at any time
thereafter prior to actual displacement) was planned as the site of a federally
assisted project as follows:
a. If the
acquisition or displacement occurred within the two years preceding the time
the State submits its application for federal financial assistance to the NPS,
the State must provide the assurances required by Sections 210 and 305 of P.L.
646, unless the State can provide to the NPS documented evidence that at the
time of the acquisition and last displacement, planning activity to obtain the
particular federal assistance being applied for had not yet been
initiated.
b. When the acquisition
or displacement occurred more than two (2) years, but less than five (5) years
before the State submits an application for federal financial assistance, that
same assurance must be provided by the State, unless a written certification is
provided as part of the project application by the head of the State or local
government agency sponsoring the project. The certification will indicate,
under penalty for willful misstatement (18 U.S.C. Section
1001 ), that the state or local
government had not yet initiated planning activities for the application to
obtain federal assistance at the time of the acquisition and last known
displacement. The intent of this certification is for the State to provide an
affirmative demonstration the acquisition was not the first step in a logical
or foreseen planning of a project requiring federal financial
assistance.
c. If the acquisition
and last displacement occurred more than five (5) years before the State
applies for federal financial assistance, the State need not provide the
assurances required by Sections
210 and
305 of the Uniform Act nor the
certification discussed above, unless the NPS has evidence to indicate that at
the time of the acquisition and last known displacement, the state or local
government had initiated planning activity for the application to obtain the
particular federal assistance. In such case, Sections
210 and
305 assurances will be required. This is
because it is assumed after five (5) years it is unreasonable to assume there
was intent to seek financing of a development project at the time of
acquisition or intent to deny relocation benefits.
d. The States shall keep relocation
certifications and related records in its own LWCF project files and make them
available for inspection at the request of NPS.
6.
Displaced applicant appeals
process. Situations may occur when an applicant for payments under
the Uniform Act will be aggrieved by a displacing agency's determination as to
the applicant's eligibility for payment or the amount of the payment. Each
State shall establish procedures that provide for adequate review by the
involved state agency of the concerns of the person aggrieved. The procedures
should assure that aggrieved persons may have their applications reviewed by
the head of the state agency. The procedures should also provide for an appeals
process that can be followed should decisions remain disputed following review
by the head of the state agency.
7.
Real property acquisition
a.
Methods of
acquisition. Acquisition of land and water, or interests therein,
may be accomplished through direct voluntary purchase, gift, transfer, eminent
domain, or other means. The NPS encourages public policies and procedures for
the acquisition of real property that are fair and consistent, and directed
toward giving the property owner the full measure of compensation authorized by
law, promptly, with a minimum of inconvenience, and without prolonged
negotiation or costly litigation. Federally-assisted acquisitions shall be
guided by the policies found in Title III of the Uniform Act.
(1) The Federal Government will not obtain a
legal right or title to any area or facility acquired with LWCF assistance. The
State must have on file satisfactory evidence of the purchase price and a
description of the character and nature of the title received by the project
sponsor before requesting reimbursement from the NPS.
(2) Evidence of title, such as a written
statement by the State Attorney General, title insurance, or other means
considered reasonable and adequate, must also be available to the SLO before
requesting reimbursement from the NPS.
(3) Requests for payment certified by the SLO
will be acceptable evidence of the purchase price and that the State has on
file all the required documents, including those required by P.L.
91-646.
(4) A survey may be
required by the NPS to confirm the exact location and size of the tract being
acquired.
b. State
responsibility. The State will have responsibility for providing guidance to
appraisers on appraisal requirements for federally-assisted acquisitions, for
ensuring appraisals are reviewed by state-certified review appraisers pursuant
to the Uniform Appraisal Standards for Federal Land Acquisitions (UASFLA), and
for approving appraisals. The State must certify the appraisals meet the
federal appraisal standards as described in below. A certification statement is
included in the LWCF Proposal Description and Environmental Screening Form
(PD/ESF) for States to certify appraisals and waiver valuations.
NPS will conduct spot check reviews of appraisals as needed and
will review the State's LWCF appraisal review process as part of a state
program review to assure compliance with the LWCF requirements and federal
appraisal standards. The NPS may request appraisal review assistance from the
Department of the Interior's Appraisal Services Directorate (ASD) as needed.
When the appraisal review results in substantive concerns as to the adequacy of
an approved appraisal, the State Liaison Officer will be responsible for
providing NPS (or ASD) with supplemental appraisal documentation or a new
appraisal in accordance with the review findings. The value established by the
revised or new appraisal will be used as the basis for determining just
compensation and matching assistance.
c.
Appraisal
standards. The Uniform Appraisal Standards of Federal Land
Acquisitions (UASFLA), commonly referred to as the "Yellow Book," shall be used
by state and local appraisers in the preparation of appraisals for federal
LWCF-assisted acquisitions, donations if used for a federal match, and land
exchanges for conversions. Because the appraisals for federal government
acquisitions purposes, including federally-assisted acquisitions, are bound by
federal law relating to the valuation of real estate, it is necessary to apply
the UASFLA as warranted by the conditions of the federal appraisal assignment.
The federal standards (UASFLA) are considered "Supplemental
Standards" to the Uniform Standards of Professional Appraisal Practice (USPAP)
and are required to bolster the minimum level of documentation and yield
compliance with the unique and applicable appraisal methods and procedures that
have evolved from federal case law. The UASFLA 2000 edition is available from
on-line. USPAP is revised annually and can be found on the Appraisal
Foundation's website.
(1)
UASFLA and USPAP. Appraisal preparation, documentation
and reporting shall be in conformance with the UASFLA, which are generally
compatible with standards and practices of both the appraisal industry and the
Uniform Standards of Professional Appraisal Practice (USPAP). However, USPAP
compliance alone will not result in UASFLA compliance. The project sponsor must
recognize the differences between UASFLA and USPAP and ensure the appraiser
meets the higher standards of the UASFLA, except where noted below.
The UASFLA incorporates, by reference, most of the provisions
found in the USPAP, however, UASFLA is a more detailed and rigorous standard.
The UASFLA does deviate from the USPAP on certain occasions. Therefore, it may
be necessary to invoke USPAP's "Jurisdictional Exception Rule" when preparing a
UASFLA-complying report. This allows USPAP standards to conform to overriding
federal law relating to the valuation of real estate for LWCF
federally-assisted acquisition and LWCF Act Section
6(f)(3) conversion
purposes. Consult Part D-1 of the UASFLA for a discussion of the minor
conflicts between the 2000 edition of the UASFLA and the USPAP in effect as of
that same year.
The major difference between the USPAP and the UASFLA is the
UASFLA mandated procedure of valuing partial takings by utilizing the "before
and after" method of analysis. This method addresses the loss of market value
suffered by the large parcel as a result of the loss of the real property
rights in question. "Severance damages" and "special benefits" affecting the
remaining real property are automatically addressed through this appraisal
method. The USPAP provides no specific guidance with respect to this issue.
Lacking specific guidance, most USPAP appraisal reports simply address the
value of the real property rights acquired by the grantee and not the overall
diminution suffered (or, perhaps, enhancement realized) by the property from
which it was acquired. Thus, a landowner, under certain circumstances, may end
up "short changed" or unjustly enriched as a result of the lack of direction
given in the USPAP in an involuntary or condemnation type acquisition. The
reason for this UASFLA requirement is fairness to all concerned parties. Except
for appraisal problems associated with Section
6(f) conversion land
exchanges, the "before and after" method is required for LWCF
appraisals.
Appraisers are obligated to be familiar with the entire UASFLA
standard before bidding on an appraisal assignment and/or preparing the
appraisal report.
(2)
Specific UASFLA policies and guidance for LWCF appraisal
problems.
i. For the purpose of
the UASFLA compliance, any appraisal report, whether identified by the
appraiser as a self-contained report or a summary report, will be considered as
meeting the UASFLA requirements for a self-contained report if it has been
prepared in accordance with the UASFLA.
See Section A of the UASFLA for details on data documentation
and appraisal reporting standards. All appraisals are to include the required
certification statement found in Part A-4. UASFLA contains an Appraisal
Report Documentation Checklist located in Appendix A and a
Recommended Format for Federal Appraisal Reports in Appendix
B.
ii. The appraiser's
estimate of highest and best use must be an "economic" use. A non-economic
highest and best use, such as "conservation," "natural lands," "preservation,"
or any use which requires the property to be withheld from economic production
in perpetuity, is not a valid use upon which to estimate market value.
Therefore, any appraisal based on such a non-economic highest and best use will
not be approved for federal land acquisition purposes.
In this same regard, an appraiser's use of any definition of
highest and best use which incorporates non-economic considerations
(e.g., value to the public, value to the government, or
community development goals) will render the appraisal unacceptable for LWCF
purposes. (Section A-14 of the UASFLA)
iii. For acquisitions not associated with
Section
6(f) conversions and
replacement land, the "before and after" method of valuation is required if the
proposed acquisition is something less than the entire ownership. For example,
if the proposed acquisition is a 20-acre parcel and the larger property is a
100-acre property, the required method of analysis is to value the 100-acre
property in the "before" condition and then value the 80-acre parcel in the
"after" condition. The value of the acquisition is then determined by
subtracting the latter value estimate from the former value estimate.
Improvements that are unaffected by the partial acquisition, either positively
or negatively, need not be valued as long as the appraiser states that to be
the case and the property is not to be acquired through condemnation.
iv. The use to which the grantee will put the
property after it has been acquired is, as a general rule, an improper highest
and best use. It is the value of the land acquired that is to be estimated, not
the value of the land to the government. If it is solely the government's need
that creates a market for the land, this special need must be excluded from
consideration by the appraiser." (Section A-14 of the UASFLA).
v. The UASFLA contains a unique definition of
market value (Section A-9 of the UASFLA).
vi. The UASFLA contains a unique
certification statement (Section A-4 of the UASFLA).
vii. Estimates of "marketing time" and
"exposure time" are not appropriate and should not be reported in
UASFLA-complying reports. The exclusion of the estimate of "exposure time" may
be considered a Jurisdictional Exception to the USPAP. (See Sections D-1 and
A-9 of the UASFLA. However, the USPAP version effective July 1, 2006 no longer
specifies the reporting of exposure time in Standard 2, "Real Property
Appraisal Reporting," but does refer to the development of an opinion of
exposure time in the "Comment" following S.R. 1-2(c)(iv) as well as in SMT-6.
"Marketing time" is no longer mandated, to any extent, in the aforementioned
edition of the USPAP.)
viii.
Because Section
6(f) conversions are land
exchanges, the following policies shall apply:
(a) For partial takings, "part taken"
appraisals shall be prepared for the subject parcels rather than employing the
classic "before and after" appraisal methodology described above. This is
necessary to avoid consequential value distortions that would logically occur
as a result of appraisement of partial takings within parent parcels of greatly
differing sizes. For example, if a park (conversion) property under
appraisement is a five-acre tract within a 1,000-acre larger property and the
replacement property (non-park property) is a 5-acre tract within an otherwise
similar 8-acre larger parcel, an equal value conclusion would be extremely
improbable, and such an appraisal procedure might very well result in an "equal
value" exchange of a conversion property being several times the size, and
perhaps several times the value (if viewed from the perspective of being a
stand-alone parcel), of the replacement property.
(b) In order to determine the highest and
best use of the park property, the appraiser is to ignore the actual zoning of
the property if the zoning is a non-economic zoning established to recognize
the "open space" characteristics of the park or to foster the preservation of
the park. In this situation, the appraiser is to determine the most likely
zoning that would have come about under the hypothetical condition the park was
never created. In so doing, the appraiser will consider likely property uses
based upon all germane factors as well as the actual present zoning of
comparable, nearby, privately owned properties. Under this scenario, the cost,
risk and time associated with obtaining a zoning change would not be
appropriate. This procedure is necessary to avoid penalizing the conversion
property because it was taken out of private ownership and dedicated to a
non-economic use.
(c) The same
valuation method shall be used on both the converted parcel and the replacement
parcels.
ix. The owner
or the owner's designated representative must be given an opportunity to
accompany the appraiser during his or her inspection of the property. (Section
D-14 of the UASFLA)
d.
Appraisal value estimate under
$25,000. If the State determines an appraisal is
unnecessary because the valuation problem is uncomplicated and the estimated
value of the real property is $10,000 or less based on a review of available
data, the State may unilaterally waive the appraisal and instead prepare a
waiver valuation per
49 CFR
24.102(c)(2)(ii). The State
is permitted to raise the waiver valuation cap up to $25,000 provided the
acquiring agency offers the owner the option to have an appraisal, and the
owner elects to have the agency prepare a waiver valuation instead. Thus, the
State may increase the $10,000 cap to $25,000 with the consent of the
landowner.
The person preparing the waiver valuation must have sufficient
understanding of the local real estate market to be qualified, and shall not
have any interest, direct or indirect, in the real property being valued for
compensation. Further guidance on waiver valuations can be found on the Federal
Highway Administration's Website.
e.
Conflict of
interest. No person shall attempt to unduly influence or coerce an
appraiser, review appraiser, or waiver valuation preparer regarding any
valuation or other aspect of an appraisal, review or waiver valuation. Persons
functioning as negotiators may not supervise or formally evaluate the
performance of any appraiser or review appraiser performing appraisal or
appraisal review work, except that, for a program or project receiving federal
financial assistance, the federal funding agency may waive this requirement if
it determines it would create a hardship for the agency. [See
49 CFR 24.102(n)
(2).]
f.
Basis for LWCF matching
assistance. The project sponsor must secure at least one appraisal
by a qualified appraiser or document the value using the waiver valuation
method for each parcel to be acquired. Generally, the fair market value (FMV)
or waiver value will be used as the basic measure of LWCF assistance on
acquisitions. LWCF assistance shall be based upon evidence of this value.
Properly documented costs of severance damage may be matched.
Severance damage is the diminution in value of the remaining land due to the
particular land taken and is considered to be an inherent part of just
compensation.
The LWCF Act precludes using Fund assistance for incidental
costs relating to acquisition.
Settlement may occur after the LWCF project agreement has been
signed by NPS.
g.
Acquisition by donation. An appraisal prepared
according to the UASFLA or a waiver valuation is required for all projects
involving the donation of real property or interests therein for determining
the federal matching share. For guidance on waiver valuations for real property
with an estimated value under $25,000, see Item "d" above.
(1)
Partial donations/Acquisition
at less than just compensation. Only in unusual
circumstances (e.g. bargain sales, donations, etc.) will real property be
acquired at less than established just compensation as determined by an
approved appraisal. For partial donations, documentation must include evidence
the owner has been provided with a statement of just compensation. A written
statement by the owner that he is making a partial donation is also
required.
(2) To determine the
amount eligible for matching a LWCF project, an approved appraisal is still
necessary.
h.
When State request for LWCF assistance is different than appraised
value. An appraisal should be an acceptable estimate of property
value if competently compiled by a qualified appraiser. However, it cannot be
assumed to be an absolute statement of value. The approved appraisal value is
the basis for establishing the amount of just compensation offered to the owner
(seller) at the initiation of negotiations. The negotiation between a willing
seller and a willing buyer will often set a price that is higher than the
appraisal, and this market place value must be considered with the appraised
value in establishing the reasonable limits of LWCF assistance.
When the State believes the administrative settlement is an
adequate indication of market value, yet it is higher than the approved
appraised value, a detailed and well documented statement on this difference
with all pertinent appraisal documents must be submitted before reimbursement
is requested. This statement should explain why the appraisal may not reflect
the market value and what steps the project sponsor took to establish the
value, and include adequate market data to substantiate the value conclusion.
If the NPS agrees the administrative settlement represents a reasonable
estimate of the property, that amount will be eligible for assistance.
i.
Acquisition of
less-than-fee interests. In certain instances the purchase of less
than fee title may be permissible (see Chapter
3 ). The acquisition of easements,
rights-of-way, etc., will be viewed in the same light as full takings.
Documentation of value by appraisals will be the same. The project proposal
should adequately explain why lesser interests are to be acquired.
j.
Judicial
decisions. When lands are acquired through judicial proceedings,
the price determined by the court will be accepted by NPS in lieu of any
previous NPS or State approved appraised value.
k.
Responsibility for quieting
title or for replacement of properties acquired with defective
title. The State is responsible for quieting claims against title
and for replacing property found to have defective title with other properties
if this occurs after project completion pursuant to the LWCF conversion
provisions found in 36 CFR 59. If prior to project completion, the LWCF project
may be terminated for cause (see Chapter
7 ).
E.
Equal Employment Opportunity
Contract Compliance
For all LWCF grants involving federally assisted construction
contracts and subcontracts in excess of $10,000, the recipient must comply with
Executive Order 11246, as amended, and with the regulations of the Office of
Federal Contract Compliance Programs (OFCCP) of the Department of Labor at 41
CFR 60-4. In determining whether Fund-assisted construction contracts exceed
this dollar limit, the total amount of the contract awarded rather than the
amount of federal assistance shall apply.
F.
National Flood Insurance
Program1.
Scope. The Flood Disaster Protection Act of 1973 (
P.L. 93-234 ) requires the purchase of flood insurance as a condition of
receiving any federal financial assistance (including LWCF assistance) for
acquisition or construction purposes in special flood hazard areas located in
any community currently participating in the National Flood Insurance Program
authorized by the National Flood Insurance Act of 1968. These special flood
hazard areas are identified by the Federal Insurance Administration of the
Federal Emergency Management Agency.
2.
Improvements eligible for
flood insurance coverage
a.
Definitions. For the purposes of the National Flood
Insurance Program, the term "financial assistance for acquisition or
construction purposes" means any form of financial assistance that is intended
in whole or in part for the acquisition, construction, reconstruction, repair
or improvement of any publicly or privately owned building or mobile home, and
for any machinery, equipment, fixtures, and furnishings contained or to be
contained therein. The terms building and mobile home are further defined as
any walled and roofed structure that is principally above ground and affixed to
a permanent site. Structures and their contents that meet these definitions are
referred to as insurable improvements in this section.
b. Examples of insurable improvements for
which insurance is required include, but are not limited to the following:
1) restroom facilities;
2) administrative buildings;
3) bathhouses;
4) interpretive buildings;
5) maintenance buildings and sheds for
landscaping tools or other equipment;
6) sheltered facilities consisting of two or
more walled sides and a roof.
c. Examples of improvements for which
insurance is not required include, but are not limited to the following:
1) open picnic shelters;
2) permanently affixed outdoor play equipment
such as swings and slides;
3) sun
shades covering outdoor ice skating rinks;
4) outdoor swimming pools.
3.
Requirement for flood insurance
a. Flood insurance will be required for
insurable facilities located within special flood hazard areas for which the
Federal Insurance Administration has issued a flood hazard boundary map or a
flood insurance rate map. If the Federal Insurance Administration withdraws the
applicable map(s) for a special flood hazard area for any reason, the insurance
requirement is suspended for projects located in that special flood hazard area
that are approved during the period the map(s) is (are) withdrawn.
b. Communities identified as having special
flood hazard areas must qualify within one year of notification by the Federal
Insurance Administration. If an identified community has not qualified for the
program by the prescribed date, no financial assistance can be provided for
acquisition or development of insurable improvements. Such assistance will
remain unavailable until the community has qualified. Financial assistance for
non-insurable acquisition or development or for projects outside of the special
flood hazard areas is not affected by whether the community is qualified or not
qualified for flood insurance.
After a community has qualified for the flood insurance
program, financial assistance for acquisition or development of insurable
improvements will be predicated upon purchase of flood insurance for those
improvements by the project sponsor.
c. Flood insurance required by P.L. 93-234
must be carried on insurable improvements throughout their useful
life.
d. Flood insurance is not
required on any state-owned property that is covered under an adequate state
policy of self insurance. A revised list of States to which this exception
applies will be published periodically by the Federal Insurance Administration
of the Federal Emergency Management Agency.
4.
Amount of
insurancea. The amount of
insurance required by P.L. 93-234 is the lesser of (1) the development cost of
the insurable improvement or (2) the maximum limit of coverage made available
with respect to the particular type of facility under the National Flood
Insurance Act of 1968. The amount is based on the total cost of the insurable
improvement, not just the federal share.
b. Whenever flood insurance is available to
cover a facility during construction, the project sponsor will obtain such
coverage as soon as the facility becomes insurable. Coverage is usually
available as soon as construction progresses beyond the excavation
phase.
G.
Civil Rights
The States, as primary recipients of assistance, are
responsible for providing assurance that the applicant and all sub-recipients
will comply with all related federal civil rights requirements. This shall be
accomplished through:
1. Establishing
an open project selection process according to the standards of NPS;
2. Notifying NPS of any inconsistencies with
civil rights requirements having arisen from on-site state program reviews and
valid complaints registered with the Department, NPS, or the State where
impasses have been reached in resolving the compliance issue(s);
3. Cooperating with NPS toward seeking a
satisfactory resolution of any inconsistencies found, including efforts toward
seeking voluntary compliance, enforcement procedures and follow-up reviews;
and,
4. Assuring that each
sub-recipient/applicant is provided a copy of Title VI, 504/ADA Title II,
ADAAG, LEP, Title IX, and Age non-discrimination requirements.
For details on enforcement of related civil rights
requirements, refer to:
a. Title VI of
the Civil Rights Act of 1964 at 43 CFR 17, Subpart A
b. Section
504 of the Rehabilitation Act of 1973 at
43 CFR 17, Subpart B
c.
Non-Discrimination on the Basis of Age at 43 CFR 17, Subpart C
d. ADA Title II at 28 CFR 35
e. ADA Accessibility Guidelines at 28 CFR
36
f. Title IX of the Education Amendments of
1972 at
4
3 CFR 41
g. Limited English Proficiency (E.O.
1316 6) at
28 CFR
42.104(b)(2)
H.
Contracting
with Minority Business Enterprise and Women Business Enterprise Firms
It is the Federal Government's policy to award a fair share of
contracts to Minority Business Enterprises (MBEs) and Women Business
Enterprises (WBEs) pursuant to Executive Orders 1162 5, 12138, and 124 32. An MBE is a business concern that is
(1) at least 51 percent owned by one or more minority individuals, or, in the
case of a publicly owned business, at least 51 percent of the stock is owned by
one or more minority individuals; and (2) whose daily business operations are
managed and directed by one or more of the minority owners. Executive Order
11625 designates the following:
a.
Black American (with origins from Africa);
b. Hispanic American (with origins from
Puerto Rico, Mexico, Cuba, South or Central America);
c. Native American (American Indian, Eskimo,
Aleut, or native Hawaiian).
In accordance with
43
CFR 12.76 affirmative steps must be taken to
assure that MBEs/WBEs are utilized when possible as sources of supplies,
equipment, construction, and services.
The affirmative steps shall include the following:
1. Including qualified MBEs/WBEs on
solicitation lists
2. Assuring that
MBEs/WBEs are solicited once they are identified;
3. When economically feasible, dividing total
requirements into smaller tasks or quantities so as to permit maximum MBE/WBE
participation;
4. Where feasible,
establishing delivery schedules which will encourage MBE/WBE
participation;
5. Encouraging use
of the services of the U.S. Department of Commerce's Minority Business
Development Agency (MBDA) and the U. S. Small Business Administration to
identify MBEs/WBEs, as required;
6.
If any subcontracts are to be let, requiring the prime contractor to take the
affirmative steps listed above.
CHAPTER 5
- COST PRINCIPLES
A.
General Cost Principles
1.
Basic concept.
Office of Management and Budget (OMB) Circulars A-102 (Uniform Administrative
Requirements for State and Local Governments as implemented in DOI Common
Rulemaking at 43 CFR 12, Subpart C) and A-87 (Cost Principles for State, Local
and Indian Tribal Governments) will be followed in determining the allowability
and allocability of costs. Each project represents a separate transaction for
purposes of determining the amount of the LWCF assistance.
2.
Relationship of project period
to eligible costs. To be eligible for matching assistance, costs
must have been incurred within the project period except for pre-award project
planning costs. The project period is the span of time stipulated on the
agreement during which all work to be accomplished under the terms of the
agreement must be completed. The LWCF does not reimburse obligations,
regardless of when they are assumed; it reimburses costs incurred during the
project period.
a.
Development
projects. Development costs are first incurred at the start of
actual physical work on the project site (such as the clearing of ground, the
beginning of construction of a building, or the delivery of material to the
site), and continue through the period the work is being done. Costs are not
incurred at some earlier time when contracts are signed, funds obligated, or
purchase orders issued, or at a later time when the ensuing bills are paid.
Physical work on the project site shall commence within one year of project
approval. When the project start will be delayed beyond the first year, the
State shall report the reasons for the delay on the annual consolidated
performance report along with a new physical start date. Any problems,
conditions, or delays which will impair the sponsor's ability to meet the
objectives of the grant award shall be immediately disclosed to the NPS and the
project amended or withdrawn as appropriate.
b.
Acquisition
projects. Since the transfer of ownership in real property can be
a protracted process which differs under various state laws and procedures, the
relationship of acquisition costs to project period is separated into two
elements: the date when the acquisition cost is incurred and the date when the
cost is eligible for reimbursement.
(1)
Acquisition costs are incurred on the date when the earliest of any of the
following transactions take place:
i. The
project sponsor accepts deed, lease or other appropriate conveyance;
ii. The project sponsor makes full payment
for the property;
iii. The project
sponsor makes first payment in a series of spaced or time payments;
iv. The project sponsor makes the first or
full payment as stipulated in an option agreement; (The cost of the option, if
included as part of the purchase price, is allowed as a retroactive
cost).
v. The project sponsor makes
first, partial, or full payment to an escrow agent.
(2) The transactions in (1) above will be
used to determine whether an acquisition cost is incurred within the project
period. Eligible acquisition costs (and retroactive option costs as
appropriate) will be reimbursed only after the project sponsor has made payment
and received satisfactory title to the property.
3.
Retroactive
costs. Costs incurred prior to NPS approval of a project, with the
specific exceptions stated below, are not eligible for matching funds. LWCF
assistance shall only be awarded to assist work not yet undertaken, rather than
to help pay for work already begun or completed. This applies to entire
projects.
a.
Waiver of
retroactivity. Retroactive costs will not be matched under
ordinary circumstances. Waivers will be made only when immediate action is
necessary and the time needed to process an application would result in a loss
of a significant opportunity.
(1)
Acquisition. The State will notify the NPS in writing
of the necessity to immediately acquire land prior to taking such action,
including a description of the resources to be acquired, the public outdoor
recreation uses proposed for the site, and justification for the proposed
action. At the time the formal acquisition project is submitted, the State
shall include all the necessary documentation required for new acquisitions
(see Chapter 6).
(2)
Development. The State will notify the NPS in writing
of the necessity to immediately develop an area prior to taking such action,
including a description of the planned development, the public outdoor
recreation uses proposed for the site, and a justification for the proposed
action. Waivers for development projects will not be approved unless
accompanied by a PD/ESF
and the proposal qualifies for
a categorical exclusion under NEPA (see Chapter 4).
If NPS grants a waiver, the retroactive costs will be eligible
for assistance if the agreement is later approved. Granting a waiver is only an
acknowledgement of the need for immediate action; it does not imply nor assure
NPS approval of the project. The retroactive costs are incurred at the
applicant's risk.
Under no conditions will a waiver of retroactivity be granted
during a period of State ineligibility.
Project proposals should be submitted for funding as soon as
possible after the granting of a waiver of retroactivity. In all cases,
however, projects for which a waiver has been granted will be submitted within
one fiscal year following the fiscal year in which the waiver was
granted.
b.
Pre-award project planning costs. It is recognized
that some costs must be incurred before a proposed project can be submitted to
the NPS with the required descriptive and cost data. Pre-award costs must be
described in the project application (SF-424 budget sheet and PD/ESF
narrative).
Therefore, for development projects, the costs of site
investigation and selection, site planning, feasibility studies, preliminary
design, environmental review, preparation of cost estimates, construction
drawings and specifications, and similar items necessary for project
preparation may be eligible for assistance, although incurred prior to project
approval. Similar costs may be allowable for acquisition proposals except those
relating to appraisals, surveys, and other incidental costs to the purchaser
that are precluded by the LWCF Act.
For SCORP related planning projects, the development of work
programs, cost estimates and budgets, workflow charts, and such other items
needed to develop a sound planning program project by outside consultants,
university personnel, or by appropriate state personnel may be allowable costs,
although incurred prior to project approval.
All such pre-award planning costs incurred within three years
prior to project submission to the NPS are allowable. Eligible SCORP planning
costs incurred beyond three years may be allowable provided the earliest date
from which they are incurred is identified in the project agreement. The State
must have on file and available for review sufficient information to justify
the amounts of such pre-award costs, to indicate the periods during which they
were incurred, and to justify their applicability to the particular
project.
c.
Donation project. Waiver requests involving real
property donations will, where possible, identify the additional acquisition or
development to be accomplished under the proposed project or projects. In any
event, a project agreement specifying the use of the donated value must be
entered into prior to the expiration of the waiver. Such request must included
appropriate documentation per Section 3.a above.
d.
Time amendment.
While the recommended initial project period for an LWCF grant is three years,
the maximum time period for an LWCF grant is five years from the date of
approval. If, however, during the conduct of a project it becomes apparent that
completion will not be possible within the project period (not to exceed five
years), the State shall submit an amendment to extend the project period. The
amendment should be submitted at least 30 days prior to the expiration date. A
period of 6 months shall be considered as the minimum time extension of a
project period when amending a project. Requests for project period extensions
submitted after the expiration date will not normally be approved, and costs
incurred after the expiration date will not be eligible for
assistance.
4.
Cost overruns and amendments of scope. During the
execution of a project there may be unforeseen delays, changes in
specifications, or rising costs of labor and supplies which cause the cost of
the project to be greater than the approved support ceiling. Or, as work
progresses, it may be necessary or desirable to alter the scope of the project
by adding, deleting or modifying some of its parts.
Where such changes fall outside the allowed scope flexibility
as explained in Chapter 6, the State is required to notify the NPS of such
changes and to submit an amendment as soon as possible to cover the
modification. All project scope changes and cost increases must be consistent
with the State's OPSP (see Chapter 2). It is recognized, however, that it will
not always be possible for the NPS to act in advance of the change, and any
costs thus incurred prior to their approval are done so at the project
sponsor's risk.
Proposed amendments to decrease the scope or to add a cost
overrun may be considered after the project period, if an earlier submission is
not possible, but only those costs incurred within the project period will be
eligible. No proposed amendments to add or substitute scope items will be
considered after the project period has expired. Amendment requests shall be
accompanied by the PD/ESF (see Chapter 4) according to the instructions on its
coversheet for the type of amendment being requested.
5.
Federal matching and
supplemental programs. Section
6(f) of the LWCF Act
prohibits the use of other federal financial assistance to pay the state or
local matching share of a LWCF grant. However, in those instances where the
statutory provisions of a subsequent federal grant-in-aid program explicitly
allow recipients to use such assistance to match LWCF funds as in Community
Development Block Grants (CDBG) and through the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) Act.
Section
6(f)(1) of the LWCF Act is
superseded and a matching arrangement is permissible.
B.
Sponsor Financial Obligations
1.
Matching share.
LWCF assistance shall not exceed 50 percent of the total eligible costs (except
as provided for the Insular Areas) and is provided primarily on a reimbursement
basis. In most cases the project sponsor will initially pay in full all costs
accrued during the project period. Reimbursement for the federal share is made
through the State.
Projects initially funded at less than 50 percent matching
share may not be amended to increase the federal share without an increase in
project scope and increase in total project cost.
2.
Applicability of
donations. The NPS encourages the donation of cash and in-kind
contributions including real property to project sponsors by private parties.
The value of the in-kind contributions may be used as all or part of the
project sponsor's share of the project cost. The method of valuation and
charges for volunteer services, material, and equipment must be documented and
approved by the State prior to the donations being applied to reimbursement
requests in order for such contributions to be considered as part of the
sponsor's matching share. Specific procedures for placing the value on in-kind
contributions from private organizations and individuals in accord with OMB
Circular A-102,
4 3 CFR 12, are set forth below:
a.
Valuation of volunteer
services. Volunteer services may be furnished by professional and
technical personnel, consultants, and other skilled and unskilled labor. Each
hour of volunteered service may be counted as matching share if the service is
an integral and necessary part of an approved project. Records of in-kind
contributions of personnel shall include time sheets containing the signatures
of the person whose time is contributed and of the supervisor verifying that
the record is accurate.
(1)
Rates
for volunteer services. Rates for volunteers should be consistent
with those regular rates paid for similar work in other activities of the
State. In cases where the kinds of skills required for the federally-assisted
activities are not found in the other activities of the grantee, rates used
should be consistent with those paid for similar work in the labor market in
which the grantee competes for the kind of services involved. The time of a
person donating services will be valued at the rate paid as a general laborer
unless the person is professionally skilled in the work being performed on the
project (i.e., plumber doing work on pipes, mason doing work on a brick
building). When this is the case, the wage rate this individual is normally
paid for performing this service may be charged to the project. A general
laborer's wages may be charged in the amount of that which the city or cities
in the immediate area pay their city employees for performing similar
duties.
(2)
Volunteers
employed by other organizations. When an employer other than the
grantee furnishes the services of an employee, these services shall be valued
at the employee's regular rate of pay (exclusive of fringe benefits and
overhead cost) provided these services are in the same skill for which the
employee is normally paid.
b.
Valuation of
materials. Prices assessed to donated materials included in the
matching share should be reasonable and should not exceed current market prices
at the time they are charged to the project. Records of in-kind contributions
of material shall indicate the fair market value by listing the comparable
prices and vendors.
c.
Valuation of donated real property. The value of
donated real property shall be established by an independent appraiser in
accord with the Uniform Appraisal Standards for Federal Land Acquisitions. The
State must review and approve donation appraisals. NPS will spot-check
(administrative review) appraisal reports for adequacy and consistency (see
Chapter 4).
d.
Valuation of donated equipment. The hourly rate for
donated equipment used on a project shall not exceed its fair-rental value.
Hourly rates in the annual edition of Rental Compilation or Rental Rate Guide
or similar publications that provide the national or regional average rates for
construction equipment may be used. Such publications are usually available
from contractor associations. Records of in-kind contributions of equipment
shall include schedules showing the hours and dates of use and the signature of
the operator of the equipment.
e.
Valuation of other charges. Other necessary charges
such as equipment use charges incurred specifically for an indirect benefit to
the project on behalf of the sponsor may be accepted as matching share provided
they are adequately supported and permissible under the law. Such charges must
be reasonable and properly justifiable.
f.
Documentation.
The basis for determining the charges for donated personal services, material,
equipment and land must be documented and must be approved by the State prior
to the request for payment that includes the value of the donation.
g.
Limits of the
valuation. In-kind contributions of real property donations are
eligible in a project only to the extent there are additional acquisition
and/or development costs to be met by the federal assistance requested for that
project that must be fully described and explained in the proposal.
Example: Land valued at $10,000 is donated to
the project sponsor who proceeds to develop the property for recreational use.
Development costs total $6,000. The actual total project cost is $16,000. But
because only $6,000 was actually spent, and since a grant in excess of that
would constitute a profit to the sponsor, the federal share is reduced
accordingly.
Sponsor's share (amount of the $10,000 donation applied
to the project):
|
$ 6,000
|
LWCF Assistance:
|
$ 6,000
|
Total:
|
$12,000
|
The amount of donation that is matchable is the value of the
donation or the amount of cash spent by the sponsor for additional acquisition
or development, whichever is less. Any portion of the value of a donation not
utilized by the project sponsor for matching in the project ($4,000 in the
above example) may be made available to subsequent projects if approved by NPS
and only for the fiscal year in which the donation is made plus one additional
fiscal year.
h.
Multi-site land donations. To be eligible for matching
assistance, in-kind contributions shall be applicable to a single project site.
However, a multi-site project involving land donations may be considered to the
extent that such is logical, reasonable, and more advantageous than the
application of the donation to a single site.
C.
Allowable Costs
1.
Determining amount of
costs.
a.
General. Subject to the guidelines given in this
section and in OMB Circular A-87, the rates, practices, rules, and policies of
the project sponsor, as consistently applied, shall generally determine the
amount of costs of each item charged to a project. In instances where the
sponsor has no such basis, that of the State shall apply.
b.
Ceiling on amount of cost
items. The amount of each item of cost that may be matched from
the LWCF shall not exceed the sponsor's actual cash outlay for that item, or
the fair market value of the item, whichever is less. An exception could be
land acquired at a price in excess of appraised value and supported by an
adequate statement on difference of value.
c.
Ceiling on total matching
share from the fund. The total matching amount made available for
an approved project shall not exceed the approved support ceiling.
2.
Guidelines for
determining allowable costs. The basic statement regarding the
principles and standards for determining costs applicable to this grants
program is found in OMB Circular A-87, "Cost Principles for State, Local and
Indian Tribal Governments."
3.
Costs of purchase of real property and of interests in real
property. Federal assistance may be used to pay a share of the
fair market value of real properties and of interests in real property
purchased by the project sponsor when determined by the NPS to be capital
costs. Incidental costs of acquisition may not be matched. However, interest
expenses awarded by the court as part of just compensation for acquisition in
eminent domain situations may be matched. Also, costs allowed under Section
211, P.L. 91-646, of the Uniform Relocation Assistance and Real Property
Acquisition Policies Act, may be matched.
The value of such properties or interests should be proposed by
the State. Steps shall be taken to assure actions in identifying property for
acquisition do not cause inflation of property values, and thereby increase the
cost of the project.
Although a project sponsor may pay a greater amount, LWCF
assistance will generally be computed on the fair market value as determined by
an acceptable appraisal. However, when a State feels the amount paid in excess
of the fair market value is justifiable, it should prepare, and submit to the
NPS, a detailed and well documented statement, including comparable sales and
other market data as necessary justifying the difference. If the statement is
found adequate, LWCF assistance may be computed on the full purchase
price.
Where a court award in condemnation cases exceeds the support
ceiling approved by the NPS, the NPS will not be obligated to pay on the higher
amount. The State may, however, submit an amendment for Service consideration
to increase the support ceiling to the amount of the court award.
Capital expenditures for acquisition of eligible leases,
easements, and other rights and interests in real property are eligible for
LWCF assistance.
4.
Cost of real property purchased from other public
agencies. The actual cost to the project sponsor of land purchased
from another public agency may be eligible for matching assistance, subject to
the following conditions:
a. The land was not
originally acquired by the other agency for recreation.
b. The land has not been managed for
recreational purposes while in public ownership.
c. No federal assistance was provided in the
original acquisition by the other agency to facilitate the basic project being
funded by LWCF assistance, unless the federal assistance was provided by an
eligible supplemental program, such as HUD's CDBG.
d. The selling agency is required by law to
receive payment for land transferred to another public agency. Examples would
be public school land that can be used for non-school purposes only through
payment to the school agency, or excess state prison lands that can be
transferred to local government use only on a purchase basis. The support
ceiling will be based on the price paid by the project sponsor for the property
or the fair market value, whichever is less. In some instances the selling
agency may be permitted a choice between various state laws would set the
selling price at different levels depending upon which law is chosen by the
agency. For example, various laws may be in force that would allow the agency
to transfer the real property to another public agency for fair market value,
for reimbursement of unpaid taxes, as a donation, or for other consideration.
LWCF assistance will be limited to the minimum amount for which the property
could be transferred legally and only in those instances for which there is an
attorney general's opinion or established case law.
e. The requirement of appraisal, history of
conveyances, and evidence of title are the same as normal purchases.
f. If the selling agency is federal, fair
market value is paid.
5.
Real property acquired by donation. The value of real
property donated to the project sponsor by private organizations or individuals
will be eligible for matching as determined by an appraisal. Donations required
by law or regulation are ineligible as the project sponsor's matching share.
The land acquired cannot be subject to any restrictions that might limit its
intended public recreation use.
6.
Master planning. Master planning of a recreation area
in whole or in part will be matchable as part of a development project if the
project includes actual development of at least equal cost to that of the
master plan.
7.
Miscellaneous allowable costs
a. Payment of premiums on hazard and
liability insurance to cover personnel and property directly connected with the
project is allowable.
b. Costs to
the project sponsor for work performed by another public department or agency
are allowable. This includes the costs of services provided by central service
type agencies to the sponsor's departments and need not be supported by a
transfer of funds between the departments involved.
c. Costs of printing and distributing the
Statewide Comprehensive Outdoor Recreation Plan, including a popular summary
version and other project related printing or reproduction costs are
allowable.
d. The costs of space in
privately owned buildings used for the benefit of the project is allowable
subject to the conditions stated in OMB Circular A-87 (see also the
requirements of OMB Circular A-122, Cost Principles for Nonprofit
Organizations). Also, project sponsors may be compensated for the use of
buildings, capital improvements, and equipment through use allowances or
depreciation.
8.
Non-allowable expenditures. These expenditures shall
not be included in the base for determining financial assistance:
a. Ceremonial or entertainment
expenses.
b. Expenses for
publicity.
c. Bonus payments of any
kind.
d. Charges for contingency
reserves or other similar reserves.
e. Charges in excess of the lowest responsive
bid, when competitive bidding is required by the NPS or the sponsor, unless the
NPS agrees in advance to the higher cost.
f. Charges for deficits or
overdrafts.
g. Taxes for which the
organization involved would not have been liable to pay.
h. Interest expenses, except those awarded by
the court as part of just compensation for acquisition in eminent domain
situations.
i. Charges incurred
contrary to the policies and practices of the organization involved.
j. Consequential damage judgments arising out
of acquisition, construction, or equipping of a facility, whether determined by
judicial decision, arbitration, or otherwise. Consequential damages are
damages, to adjoining property owned by other persons, which are caused by
noise, lights, vibration etc.
k.
Incidental costs relating to acquisition of real property and of interests in
real property, unless allowable under the Uniform Relocation Assistance and
Real Property Acquisition Policies Act, P.L. 91-646.
l. Operation and maintenance costs of outdoor
recreation areas and facilities.
m.
The value of, or expenditures for, lands acquired from the United States at
less than fair market value.
n.
Cost of discounts not taken.
o.
Equipment to be used for the maintenance of outdoor recreation areas and
facilities, including, but not limited to, automotive equipment, tractors,
mowers, other machinery, and tools.
p. Employee facilities, including residences,
appliances, office equipment, furniture, and utensils.
q. Donations or contributions made by the
sponsor, such as to a charitable organization.
r. Salaries and expenses of the Office of the
Governor, or of the chief executive of a political subdivision, or of the State
legislature, or of other similar local governmental bodies.
s. Fines and penalties.
t. Any excess of cost over the federal
contribution under one grant agreement is unallowable under other grant
agreements.
u. Any losses arising
from uncollectible accounts and other claims, and related costs.
v. Legal and professional fees paid in
connection with raising funds.
w.
Payments for lobbying in connection with the awarding, extension, continuation,
renewal, amendment, or modification of an individual LWCF grant or the
program.
CHAPTER 6
- APPLICATION AND EVALUATION
PROCEDURES
A.
Prerequisites for
Applying
Prior to submitting an application to NPS for LWCF acquisition
and/or development assistance, the following conditions must be met:
1. The State's Statewide Comprehensive
Outdoor Recreation Plan (SCORP) and the State's Open Project Selection Process
(OPSP) must meet the eligibility requirements of the Land and Water
Conservation Fund Act and this manual. Project applications must be received by
NPS while there is a sufficient period of eligibility remaining to permit
thorough processing of the applications. Applications that cannot be processed
prior to the revocation of eligibility will not be acted upon until the State's
eligibility has been reinstated.
2.
The State's apportionment and reapportionment balances from NPS must be
adequate to cover the proposed project to be activated.
3. The sponsoring agency must have developed
the plans for its proposed project to the point where the project scope can be
described and reasonable estimates of cost can be made.
B.
Application Process
The State prioritizes and selects eligible projects for LWCF
assistance through its Open Project Selection Process (OPSP, see Chapter 2) and
is responsible for ensuring the development of the project proposal and
completion of the federal grant application according to federal requirements.
States shall provide guidance to subgrantees to ensure all application
requirements are met.
Project applications should be submitted to the NPS at least 60
days in advance of the proposed acquisition or the beginning of construction
except in accordance with the retroactivity provisions (see Chapter 5.A.3) to
allow sufficient time for federal review of the proposal to determine its
eligibility and compliance with federal requirements.
Using the LWCF Proposal Description and Environmental Screening
Form (PD/ESF, see Chapter
4 ), the State develops the proposal for
the LWCF grant application. The State may delegate the completion of the PD/ESF
to the subgrantee. The PD/ESF guides the proposal development and upon project
approval, becomes a part of the federal administrative record.
The State shall be responsible for ensuring the proposal is
developed in accordance with applicable federal laws, executive orders and
circulars, including conducting required environmental reviews in accordance
with the National Environmental Policy Act (NEPA) as set forth in Chapter
4. The environmental review process may
involve producing documents for public review and comment, coordinating
compliance with applicable local, state and federal laws and regulations, and
acquiring other federal state and local approvals.
For project proposals and grant applications that are complex
in nature and/or have eligibility concerns, States are encouraged to consult
with NPS prior to formal project submission.
At the completion of proposal development, the State prepares
the required federal application documentation as described in Item 2 below and
submits the application package to the appropriate NPS regional office
requesting federal LWCF approval for the subject project.
All significant information must be disclosed in the
application and its supporting documents. Failure by the State to consider
information that might have a significant bearing on the eligibility of a
proposal might be cause for refusal, cancellation, or recovery of federal
assistance.
The project proposal, including all information required by the
NPS to be on file at the state level, is considered to be a public record.
Copies of proposals may be distributed by NPS to other public agencies for
information or comment.
The following documents comprise the federal application for
LWCF grant assistance and shall be coordinated by the State and submitted to
the NPS:
1.
Proposal
Description and Environmental Screening Form.
One
hand-signed copy. The PD/ESF (see Chapter
4 ) provides step-by-step guidance for
applicants to follow and complete while developing the grant proposal for
federal LWCF assistance. The PD/ESF includes specific guidance for:
- developing the project narrative;
- explaining how the proposal is in accord with the
SCORP;
- screening the proposal for potential environmental impacts in
order to determine the appropriate NEPA process to conduct:
1) recommendation for a categorical
exclusion,
2) production of an
environmental assessment, or
3)
production of an environmental impact statement. The environmental screening
step requires a State to follow the Section
106 of the National Historic Preservation
Act, as amended, in conjunction with the NEPA process (see Chapter
4.C);
- seeking agency comments through the Intergovernmental Review
of Federal Programs process, Executive Order 12372, if applicable; and
- certifying that any appraisals conducted for the federal
grant application meet the Uniform Appraisal Standards for Federal Land
Acquisitions (see Chapter
4.D).
2.
Federal Standard Form 424,
Application for Federal Assistance.
One hand-signed
copy, including supplemental SF-424 forms as required by type of
proposal:
- SF-424A Budget Information Non-construction Programs and
SF-424B Statement of Assurances Non-construction Programs; or
- SF-424C Budget Information Construction Programs and SF-424D
Statement of Assurances Construction Programs
3.
Project Agreement and General
Provisions.
Two hand-signed copies plus one copy.
This agreement establishes the framework for accomplishing the project to be
negotiated between the NPS and the State. The General Provisions are included
by reference, but one copy should be attached to a hand-signed copy of the
agreement. Execution of the agreement by the NPS constitutes its approval of
the project. The project agreement:
a. Binds
the Federal Government and the State to certain obligations through its
acceptance of federal assistance, including the rules and regulations
applicable to the conduct of a project under the Act and any special terms and
conditions to the project established by the NPS and agreed to by the State.
When the project sponsor is a local unit of government or an Indian Tribe, the
State Liaison Officer will make such arrangements with the sponsor as necessary
for the successful completion of the project and the enforcement of federal
laws and regulations.
b. Obligates
the United States to provide grants up to a designated amount for eligible
costs incurred on the project on the basis of information and cost estimates
contained in the proposal. This amount is the "support ceiling" and may vary as
a percentage of total eligible costs, but in no event will it exceed 50 percent
of the total cost indicated on the agreement forms.
c. Sets forth methods of costing, accounting,
incurrence of costs, and similar matters.
d. Sets a timeframe for completing the
project. Project periods should approximate three years and shall not exceed
five years. The date of NPS approval is the beginning of the project period,
unless the NPS has granted a waiver of retroactivity and as such, the date of
project approval is the date NPS approved the waiver. The termination date is
the date by which the project must be completed.
e. Describes the scope of the project
including what is to be done and how it will be accomplished. For acquisition
projects the number of acres to be acquired and the type of conveyance will be
specified. For development projects, the project scope will be defined by each
primary facility group shown in the DNF (see below). Facilities listed under
each primary facility group are included in the project scope by
definition
4.
Description and Notification Form. One
copy. The DNF will be used to provide data input for the NPS LWCF
database system. The State shall submit a DNF for each project.
5.
Section
6(f) boundary
map.
One copy, hand-signed and dated. The Section
6(f) map shall clearly
delineate the area to be included under the conversion provisions of Section
6(f)(3) of the LWCF Act.
An acceptable Section
6(f) map is required for
all development and combination projects prior to NPS approval, and for
acquisition projects, prior to reimbursement. NPS will contact the State about
any needed changes to the map.
Prior to the date of final reimbursement for development and
combination projects, the State and NPS may mutually agree to alter the Section
6(f) boundary to provide
for the most satisfactory unit intended to be administered under the provisions
of Section
6(f)(3). For acquisition
projects, Section
6(f) protection is
afforded at the time LWCF reimbursement is provided.
No changes may be made to the
6(f) boundary after final
reimbursement unless the project is amended as a result of an NPS approved
conversion.
At a minimum, the Section
6(f) boundary must
encompass a viable public outdoor recreation area that is capable of being
self-sustaining without reliance upon adjoining or additional areas not
identified in the scope of the project. Except in unusual cases where it can be
shown a lesser unit is clearly a self-sustaining outdoor recreation resource,
the area subject to Section 6(f) protection will be the park, open space, or
recreation area being developed or expanded. Exceptions will be made only in
the case of larger parks where logical management units exist therein resulting
in smaller viable public outdoor recreation areas. In no case will the areas
covered by Section
6(f)(3) of the Act be less
than that acquired with LWCF assistance.
The Section
6(f)(3) boundary map
and/or attachments as appropriate shall depict the following:
a. Official park/site name, location, and
LWCF project number
b. Sufficient
detail so as to legally identify the lands to be afforded protection under
Section
6(f)(3) of the LWCF Act.
The following methods of identification are acceptable: deed references;
adjoining ownerships; adjoining easements and rights-of-way; public streets;
adjoining water bodies or other natural landmarks; metes and bounds; and
surveys. Where one or more of the above methods are not readily suited for
identifying the area, measurements from permanent locators may be used. A
formal survey is not required.
c.
All known outstanding rights and interests in the area held by others. Known
easements, deed/lease restrictions, reversionary interests, etc. are to be
documented, including any area(s) under lease, name(s) of lessor and lessee,
and term remaining on the lease(s).
When at the time of project application it is known that
outstanding property rights held by others are or will be exercised in the
foreseeable future and impact only a portion of the area to be protected under
Section
6(f), the impacted area
must be clearly excluded from the Section
6(f) map and accompanied
by an explanation of why it is not intended to be under the Section
6(f) provision. The
remaining project area must meet all LWCF program criteria for eligibility and
be a viable public outdoor recreation area. See Chapter
3 regarding outstanding rights and
interests.
d. Approximate
total acreage of the 6(f) area.
e.
North arrow.
f. Signature of the
SLO or alternate unless otherwise delegated to a member of his/her staff. A
delegation of signature authority for Section (f) maps must be on file with
NPS. Also, date of signature.
g. Up
to 11 inch x 17 inch format highly preferred for future administrative use such
as copying and scanning. Avoid use of color as the only means to delineate
areas.
6.
Location map. One copy. This map
shall clearly depict the location of and entrance to the site/outdoor
recreation/park area.
7.
Pre-award on-site inspection report. One
copy. The inspection shall be conducted in accord with the on-site
inspection agreement between the State and NPS. State may opt to use the
inspection report required for the PD/ESF.
8.
Other information
that has a significant bearing on the project.
C.
NPS Review Process
Upon receipt of the new grant application package, the NPS will
assign an official LWCF project number to the project (see Section F below) and
conduct an initial cursory review to determine if all required items are
included in the grant application package.
If items are missing or incomplete, NPS will return
the application package to the State for completion. If the new
grant application package is complete, the NPS will log in the formal receipt
of the application and conduct a detailed independent review of the proposal
and required documentation to determine if the proposal is eligible for LWCF
assistance, if the proposal has been developed in accordance with the National
Environmental Policy Act, the National Historic Preservation Act, and other
applicable laws and Executive Orders as outlined in Chapter
4, and meets the administrative
requirements contained in this manual. If needed, NPS will consult with the
State for additional information to better understand the proposal and to
fulfill compliance with all requirements.
The NPS will conduct an independent review of the proposed
project for federal assistance to determine how well it accomplishes the
purpose of the LWCF Act and meets program requirements. This evaluation
includes a consideration of the project's eligibility for assistance, its
technical adequacy, and its financial soundness. All projects submitted to the
NPS are evaluated to the extent information is made available in the
application. The extent of the NPS review will depend on the type of
application submitted and any certifications made by the State Liaison Officer.
As part of this review, the NPS will determine whether:
1. the proposal is in accord with the
Statewide Comprehensive Outdoor Recreation Plan and the Open Project Selection
Process (see Chapter
2 );
2. the proposal has been adequately reviewed
according to the Section
106 process of the National Historic
Preservation Act and the National Environmental Policy Act so the NPS can make
a decision about the potential for significant impacts to the human environment
as a result of providing federal assistance for the project (see Chapter
4 ); and
3. the project area is adequately described
in the signed and dated Section
6(f) boundary map and
represents an acceptable area to be covered by the provisions of Section
6(f)(3) of the LWCF Act.
Upon NPS approval of the project, an NPS-signed copy of the
approved project agreement will be sent to the State Liaison Officer as
notification of project approval.
D.
Amending Existing Projects
An amendment form is required to alter the signed agreement.
When the amendment is signed by the NPS, it becomes part of the agreement and
supersedes it in the specified matters. Amendments are required in the
following situations:
1.
Situations requiring amendment
a. To increase the total LWCF assistance for
a project.
b. To add a co-sponsor
or change project sponsors.
c. To
add or delete a Primary Facility Group of the project scope. Changes solely
involving facilities within a Primary Facility Group may be made without an
amendment. However, changes involving facilities in different Primary
Facilities Groups will require an amendment. Facilities not listed in a Primary
Facility Group but named in the scope narrative of the project agreement and/or
DNF will be treated as individual Primary Facilities Groups for amendment
purposes.
d. To increase or
decrease the acreage to be acquired by more than 10 acres or 20 percent,
whichever is greater. Any change in the location of the project site to be
acquired or developed shall require an amendment or submission of a new
project.
e. To extend the project
period. Projects may not be extended for less than six months.
f. To amend the project area due to a Section
6(f)(3)
conversion.
2.
Amendment documentation. The following items must be
submitted by the State to the NPS when requesting an amendment:
a.
Amendment to the Project
Agreement Form. Two hand-signed copies and 1
copy.
b.
Standard Form 424.
One hand-signed
copy, including supplemental SF-424 forms as required by type of
project amendment:
- SF-424A Budget Information Non-construction Programs
- SF-424C Budget Information Construction Programs
Describe only the changes. For
example, on the SF-424, Item 1, describe only the purpose of the amendment and
not the scope of the original project.
c.
SLO transmittal
letter. The letter must explain the changed conditions and how
they affect the project.
d.
Proposal Description and Environmental Screening Form.
One hand-signed copy. The PD/ESF must be tailored to type of
amendment.
e.
Revised
Section
6(f)(3) boundary
maps for conversion amendments and where the amended project scope
provides Fund assistance to areas not previously covered under Section
6(f).
f. Description and Notification Form.
E.
Withdrawal or Changes in Project Application
Prior to approval, an application or amendment may be changed
or withdrawn by a letter from the SLO to the NPS. A new project agreement may
be required if the change is significant.
An approved project can be withdrawn unilaterally by the State
at any time before the first payment on the project is made.
F.
Project Numbering System
NPS will assign a separate official project number to each new
project whether or not it is ultimately approved. A project number shall be
used only once and shall be the official method of identifying each project and
related project documentation.
1.
Assigning numbers to new projects: Each new project
will be assigned the 7-digit project identification number consisting of the
2-digit state number, followed by and separated by a dash, the 5-digit project
number. NPS shall permanently affix these numbers to the case file to serve as
a permanent reference number. Agreements, amendments, and all other
documentation relating to a given project, including letters and memorandum,
shall contain this number. A seven digit system shall be applied as follows:
First two digits: State Identification
Number as follows:
01 Alabama
02 Alaska
04 Arizona
05 Arkansas
06 California
08 Colorado
09 Connecticut
10 Delaware
11 Dist. of Columbia
12 Florida
13 Georgia
15 Hawaii
16 Idaho
17 Illinois
18 Indiana
19 Iowa
20 Kansas
21 Kentucky
22 Louisiana
23 Maine
24 Maryland
25 Massachusetts
26 Michigan
27 Minnesota
28 Mississippi
29 Missouri
30 Montana
31 Nebraska
32 Nevada
33 New Hampshire
34 New Jersey
35 New Mexico
36 New York
37 North Carolina
38 North Dakota
39 Ohio
40 Oklahoma
41 Oregon
42 Pennsylvania
44 Rhode Island
45 South Carolina
46 South Dakota
47 Tennessee
48 Texas
49 Utah
50 Vermont
51 Virginia
53 Washington
54 West Virginia
55 Wisconsin
56 Wyoming
60 American Samoa
66 Guam
69 Northern Mariana Islands
72 Puerto Rico
78 U.S. Virgin Islands
Next five digits. The Project Number
is serially assigned in chronological order as follows:
08-00004 (fourth project proposal received from the
State of Colorado)
2.
Assigning numbers to project
amendments. Amendment numbers shall be added immediately following
the project number by using a decimal point and appropriate number (beginning
with 1) in serial order. Whenever the original project agreement is altered,
the amendment number assigned to the executed amendatory document shall be
serially increased as follows:
08-00004.1 (first amendment for project
08-00004).
CHAPTER 7
- PROJECT ADMINISTRATION AND
FINANCIAL MANAGEMENT
A.
General
Administrative Requirements1.
General responsibility. It is the prerogative and
responsibility of the State, and the project sponsor to which the state
delegates responsibilities, to execute a project under the general guidelines
and rules established by the State, governed in general by the concepts, rules,
and guidelines set forth herein. The primary role of the NPS in project
administration is to be concerned with results, leaving to the States the
determination of means to achieve these results. Thus, the rules established in
this Part are minimal, being limited to those considered necessary for the NPS
to fulfill its obligations.
2.
Arrangements with sponsors. It is the responsibility
of the State to make suitable and adequate arrangements with other public
agencies to insure the successful performance of projects and the continued
operation and maintenance of aided facilities and properties for public outdoor
recreational use. The State shall be held responsible for all the actions of
project sponsors relating to the execution of projects and associated
post-completion responsibilities pursuant to Section
6(f)(3) of the LWCF Act
(see Chapter
8 ).
3.
Consideration of Federal
Acts. During preparation of an application and conduct of a
project, the sponsor shall comply with applicable federal laws, executive
orders, regulations, and circulars relating to the acquisition and development
of public properties (see LWCF Project Agreement General Provisions).
4.
Duration of
project. A project will continue in force until all work under a
grant is completed or until the project period of the approved project
agreement and all amendments thereto have expired, whichever comes
first.
5.
Execution of
project work. The State shall be responsible for insuring all
projects receiving financial assistance pursuant to the Act are carried through
to stages of completion acceptable to the NPS with reasonable promptness.
Failure to maintain satisfactory progress or failure to complete the project to
the satisfaction of the NPS may be cause for the NPS to withhold further
payments on any or all projects of a State or qualification of new projects
until the project provisions are satisfactorily met. LWCF assistance may be
terminated upon determination by the NPS that satisfactory progress has not
been maintained.
In the event that LWCF assistance should be terminated, the
State shall be required to bring the project to a state of usefulness so funds
invested shall not be lost. If the State cannot complete the project with its
own funds, it should submit a plan to the NPS for bringing the incomplete
project to a point where it is useful. The NPS will not require all parts of a
project be completed in such a case if a stage of reasonable usefulness can be
achieved short of completion.
6.
On-site inspections by the
Statea.
Responsibilities. It is the responsibility of the
State to administer a regular and continuing program of on-site inspections of
projects. The scope, timing and selectivity of these inspections will be
covered in an agreement to be negotiated by the NPS and the State. This
agreement will provide the basis for the conduct of pre-award, progress and
final on-site inspections as well as the associated reporting formats.
Properties and facilities acquired or developed with LWCF
assistance shall be available for inspection by the NPS at such intervals as
the Director shall require. Generally, the NPS inspections will be conducted on
a spot check basis in conjunction with the State Program Review.
b.
Reports. On-site inspection reports will be prepared
for all inspections conducted and will be included in the official project
files maintained by the State. The State is responsible for the preparation of
these reports except when joint inspections are conducted with the NPS in which
case the NPS will prepare the report and provide a copy to the State.
Submission of inspection reports to the NPS will be made on the
following basis:
(1) Pre-award on-site
inspection reports may be submitted as part of the LWCF PD/ESF (see Chapter 4).
States are encouraged to use the pre-award on-site inspection to generate
information for use in preparing the LWCF PD/ESF. The pre-award site inspection
shall be conducted by individuals knowledgeable about the resources of the
site.
(2) Progress inspection
reports may be combined with the annual performance report or submitted to the
NPS at the same time as the electronic fund transfer.
(3) Final inspection reports must be
submitted to NPS within 90 days after the date of completing a project and
prior to final reimbursement and administrative closeout.
(4) Post-completion site inspections must be
conducted within five years after the final project reimbursement and every
five years thereafter. Post-completion reports should be retained in the state
file, except for those inspections that discover post-completion compliance
problems such as park closures and non-recreation or private uses occurring
within the Section
6(f) boundary. The State
shall report to the NPS the project numbers of all sites inspected soon after
the inspection is conducted and forward to NPS only
the inspection reports for LWCF sites with problems as described
above.
7.
Income from properties acquired or developed with LWCF
assistance.
a.
During project period. In accord with OMB Circular
A-102, as implemented at 43 CFR 12, Subpart C, income earned by the
project sponsor during the project period from sources other than the intended
recreational use of the project shall be dispersed in one of the following
ways:
(1) Added to the funds committed to the
project and used to further eligible LWCF program objectives at the project
site. In this case a plan for the use of such monies shall be forwarded to NPS
for concurrence prior to grant approval. This plan shall detail the sources(s)
of the income and include the timeframe in which any non-recreational use(s)
shall cease. In no instance shall any non-recreational use continue beyond
three years (see Chapter 3).
(2)
Deducted from the total project cost for the purpose of determining the net
cost on which the federal share of the cost will be based. In this instance,
requests for payments must include identification of accrued amounts as credits
to the project. Examples of income that shall be dispersed in the above manners
include the rental of structures, the sale of timber and the lease or rental of
land Income earned by the project sponsor during the project period from the
intended recreational use of the project, such as entrance or user fees and
concessionaire operations may be disposed of at the sponsor's discretion. The
sponsor, however, is encouraged to use such income to further recreation
objectives related to the sponsor's public outdoor recreation
program.
b.
After the project period. Income earned by the project
sponsors after the project period, including from recreational use and land
management practices, may be disposed of at the sponsor's discretion. However,
the sponsor is encouraged to use such income to further recreation objectives
related to the facility when state and local laws allow. Exceptions include
those identified under paragraphs [d] and [e] below.
c.
Land management
practices. Land management practices such as the rental of
structures, the sale of timber and the lease or rental of land occurring during
or after the project period must be compatible with the outdoor recreational
use of the areas as described to the NPS. Any practice that alters the use or
purpose of the area is prohibited. Income from such land management practices
must be dispersed in accord with paragraphs [a] and [b] above.
d.
Sale of improvements or
structures. Income derived from the sale of improvements or
structures acquired with LWCF assistance shall be used to reduce the cost of
other LWCF-assisted projects of the project sponsor regardless of whether the
sale occurs during or after the project period. If the sponsor has no plans for
further LWCF-assisted facilities, then the income must be used to further
outdoor recreation development or acquisition at the site, at another
LWCF-assisted site, or at another outdoor recreation site operated by the
project sponsor. In this case, a letter indicating the intended use of the
funds shall be sent to the NPS for approval.
e.
Non-destructive mineral
extraction. Extraction of oil and gas from LWCF-assisted projects
involving the purchase of subsurface rights is allowable and will not
constitute a conversion under Section
6(f)(3) of the LWCF Act
provided the following conditions are met:
(1)
The extraction process does not reduce the recreation opportunities at the
site, nor detract from the recreation experiences.
(2) All income derived from the mineral
extraction by the project sponsor is used as follows:
i. to further outdoor recreation development
or acquisition at the project site or to reduce the total cost of other active
LWCF-assisted projects at the site (to be given priority); or,
ii. to reduce the total cost of other active
LWCF-assisted projects; or,
iii.
for outdoor recreation acquisition, development, or planning at other state
facilities or granted to local communities for such purposes; or,
iv. for any use that is consistent with an
outdoor recreation program, including operation and maintenance costs and any
related service or support facilities.
(3) Such income may not be used strictly for
the development of facilities that do not meet the eligibility guidelines for
LWCF assistance.
(4) The method of
allocating income and the uses to which it will be put shall be approved by the
NPS through a formal agreement with the State prior to the onset of extraction
activities.
8.
Title to properties acquired
or developed with LWCF assistance. Pursuant to 43 CFR Part
12, the Federal Government will not obtain
a legal right or title to any area or facility acquired or developed with
financial assistance received under the provisions of the Act.
9.
Safety and accident
prevention. In the performance of each project the State and other
participating organizations shall comply with all applicable federal, state,
and local laws governing safety, health, and sanitation. The State and other
participating organizations shall be responsible for assuring all reasonable
safeguards, safety devices, and protective equipment are provided, and will
take other needed actions reasonably necessary to protect the life and health
of employees on the job and the safety of the public, and to protect property
in connection with the performance of work on the project.
10.
Issuance of rules and
instructions. NPS may issue additional or modified rules,
instructions, interpretations, and guidelines from time to time as is necessary
for the effective conduct of assistance activities. Such changes will apply to
all projects for which agreements and amendments are signed after the effective
date of the changes. Whenever possible, sufficient lead time will be given
between the announcement and the effective date to avoid application to
projects already in process at the time of the announcement.
11.
Failure to comply with
federal laws and regulations. Pursuant to 43 CFR Part
12.83,
when the NPS determines a State has violated or failed to comply with
applicable federal law, or the regulations governing this program with respect
to a project, NPS may withhold payment of federal funds to the State on account
of such project, withhold funds for other projects of the State, withhold
approval of further projects of the State, and take such other action deemed
appropriate under the circumstances until compliance or remedial action has
been accomplished by the State to the satisfaction of NPS.
In addition, no grant or contract may be awarded by a grantee,
subgrantee, or contractor of any grantee or subgrantee to any party which has
been debarred or suspended under Executive Order 1254 pursuant to 43 CFR Part
12.100-.510.
12.
Appeals. Disagreements with any decision or action
concerning comprehensive plans, project proposals, valuations of properties and
personal services, and audit exceptions, which have not been resolved to the
satisfaction of the project sponsor, may be appealed in the following sequence:
a.
Local project
sponsors. Disagreements between local project sponsors and the
State Liaison Officer or state agreements not represented by the State Liaison
Officer may be appealed to the State's NPS Region and if not resolved to the
satisfaction of the sponsor, may be appealed to the Director and ultimately to
the Secretary, if necessary.
b.
State Liaison Officer. Disagreements between the State
Liaison Officer and the State's NPS Region may be appealed to the Director of
NPS and, if not resolved satisfactorily at that level, may be appealed to the
Secretary of the Department of the Interior.
B.
Procurement Standards
Projects or portions thereof may be undertaken through
contracts in accord with the procurement standards and guidelines set forth in
Uniform Administrative Requirements for Grants and Cooperative Agreements to
State and Local Governments, 43 CFR Part
12 except the provisions concerning the
Dayis-Bacon Act. This includes the procurement of supplies, equipment,
construction and services.
Grantees and subgrantees will use their own procedures that
reflect applicable state and local laws, provided the procurements conform to
the requirements of 43 CFR Part
12.1
- .52.
1.
Contracting with
small and minority firms, Women's Business Enterprise, and Labor Surplus Area
Firms. Affirmative steps must be taken by the project sponsor to
assure small and minority businesses and women's business enterprises are
utilized when possible. Affirmative steps shall include:
a. including qualified small and minority
businesses on solicitation lists;
b. assuring small and minority businesses are
solicited whenever they are potential sources;
c. when economically feasible, dividing total
requirements into smaller tasks or quantities so as to permit maximum small and
minority business participation;
d.
where the requirement permits, establishing delivery schedules that will
encourage participation by small and minority business;
e. using the services of the Small Business
Administration, the Minority Business Development Agency of the Department of
Commerce, and the Community Services Administration, as required; and
f. if any subcontracts are to be
let, requiring the prime contractor to take the affirmative steps in paragraph
[i] through [v] above;
2.
Labor surplus
areas. Project sponsors are encouraged to procure goods and
services from labor surplus areas.
C.
LWCF Acknowledgement Signs
1.
Permanent signs.
Permanent signs shall be installed to acknowledge the federal-state-local
partnership role in providing new high quality outdoor recreation areas and
facilities. States may determine the type, size and placement of the sign as
long as the LWCF logo is used (see #3 below).
2.
Temporary signs.
When significant acquisition, development, and/or combination projects totaling
$500,000 or more are initiated, States are required by law to place appropriate
temporary signage on or near the affected site, to the extent feasible, so as
to indicate the action taken is a product of funding made available through the
federal LWCF. Such signage shall indicate the percentage and dollar amounts
financed by federal and non-federal funds.
Publicizing an acquisition project by the installation of signs
prior to the completion of the acquisition, particularly those involving the
acquisition of several parcels, could seriously affect the negotiations for the
properties to be acquired. Therefore, signing of acquisitions projects should
be delayed until the acquisition of all parcels is completed and all
relocations have occurred. Also, the display of dollar amounts for acquisition
projects is optional where such display may be detrimental to the project or
future acquisitions.
For development and combination projects, such temporary
signage shall be placed at the initiation of construction and remain until
project is completed.
Unless precluded by local sign ordinances, temporary signs
shall be no less than 2 feet by 3 feet. The size of lettering should be based
on the amount of information placed on the sign. The selection of colors will
be at the discretion of the State; however, there should be sufficient contrast
between the background and the lettering to make the sign readily visible
without being intrusive. The sign should include the source, percent, and
dollar amount of all federal, state and/or local funds. The second line on the
temporary sign will indicate whether the project is acquisition, development,
or both. In addition to the NPS, the administrative acknowledgement may include
the state agency responsible for the LWCF program. Here is a suggested
format:
THE CITY OF XXXXX
Public Outdoor Recreation Site Development
Aided by the Federal
THE LAND AND WATER CONSERVATION FUND
Administered by the
National Park Service
U.S. Department of Interior
Funding
|
LWCF
|
50%
|
$250,000
|
State of XXX
|
25%
|
$125,000
|
City of XXX
|
25%
|
$125,000
|
Total Project
|
$500,000
|
Source of funding includes monies derived from Outer
Continental Shelf Federal Receipts
3.
Use of LWCF logo.
Use of the LWCF Logo on temporary and permanent project signs is required. NPS
encourages its use as a part of the acknowledgement of LWCF assistance at
entrances to outdoor recreation sites, at other appropriate on-site locations,
and in folders and park literature. The acknowledgement of LWCF assistance will
be checked during compliance inspections.
4.
Allowable costs.
Costs related to project acknowledgement are allowable costs as part of initial
capital investment and may be shared by LWCF assistance. Replacement costs as a
part of project operation and maintenance are not
allowable.
D.
Performance/Financial Management and Reporting.
1.
Purpose. This
section generally covers accounting, records, and reporting requirements. The
State shall require all project sponsors to adopt the standards
herein.
2.
Financial
responsibility. The State shall be responsible for the financial
management of approved projects. Appropriate internal controls must, therefore,
be adopted and installed to insure that the project is accomplished in the most
efficient and economical manner.
3.
Standards for grantee financial management systems.
State and local government systems for the financial management of LWCF
assisted activities shall be in accordance with 43 CFR 12(OMB Circular A-102),
and provide for:
a. accurate, current, and
complete disclosure of the financial results of each grant project;
b. records which identify adequately the
source and application of funds for grant-supported activities. These records
shall contain information pertaining to grant awards and authorizations,
obligations, unobligated balances, assets, liabilities, outlays, and
income;
c. effective control over
and accountability for all funds, property, and other assets. The grantee shall
adequately safe-guard all such assets and shall assure they are used solely for
authorized purposes;
d. procedures
for determining allowable and allocable costs in accordance with the provisions
of OMB Circular A-87 and these regulations;
e. accounting records that are supported by
source documentation. Separate project accounts shall be established and
identified by the number assigned to the project by the NPS;
f. Audits to be made by the State in
accordance with OMB Circular A-133 to determine, at a minimum, the fiscal
integrity of financial transactions and reports, and compliance with laws,
regulations, and administrative requirements. The State will schedule such
audits with the required frequency, usually annually, but not less frequently
than once every two years, considering the nature, size, and complexity of the
activity; and
g. a systematic
method to assure timely and appropriate resolution of audit findings and
recommendations.
The State shall require all project sponsors to adopt all of
the above standards.
4.
Monitoring and reporting of
financial and program performance. In accordance with 43 CFR Part
12 (Uniform Administrative Requirements
for Grants and Cooperative Agreements to State and Local Governments), the
following sets forth the procedures for monitoring and reporting financial and
program performance.
a. States shall
constantly monitor the financial and program performance of approved projects
to assure time schedules are being met, projected work units by time periods
are being accomplished, and financial targets and other performance goals are
being achieved.
b. For LWCF
reporting purposes, performance and financial reporting for all active grants
shall be accomplished by States in response to the NPS annual call for
performance/ financial information. NPS will incorporate the state
performance/financial information into one consolidated report for the entire
LWCF State Assistance Program. Sufficient space will be provided on the listing
of projects for the State to briefly report financial and performance status
for each active grant. The NPS shall notify States of the information needed,
reporting format and due dates. At a minimum, the report shall include:
(1) the status of the work required under the
project scope including the percent of work completed and percentage of costs
billed and whether the project will meet established target dates for
completion;
(2) other pertinent
information including, when appropriate, an analysis and explanation of cost
overruns, time schedule delays and other similar problems encountered and their
expected impact on the project; and
(3) a certification by the SLO noting the
information is correct and complete, and all expenditures are for the purposes
set forth in the grant agreement/amendment
c. If any performance review conducted by the
State discloses the need for change in the Project Agreement, the State shall
submit a request for an amendment at least 30 days prior to the project
expiration date.
d. The NPS shall
make site visits as frequently as practicable on a spot check basis to:
(1) review project accomplishments and
management control systems, and
(2)
to provide technical assistance as may be required.
5.
Financial
reporting. All recipients must comply with the reporting
requirements as set forth in this section and in 43 CFR 12 as
appropriate.
6.
Retention and custodial requirements for records. In
accordance with 43 CFR Part 12, the following policies will apply to records
maintenance:
a. Financial records, supporting
documents, statistical records, and all other records pertinent to a grant
program shall be retained for a period of three years after final payment on a
project. The records shall be retained beyond the 3 year period if audit
findings have not been resolved.
b.
State and local governments are authorized to substitute electronic copies in
lieu of original records.
c. The
Secretary of the Interior and the Comptroller General of the United States, or
any of their duly authorized representatives, shall have access to any books,
documents, papers, and records of the state and local governments and their
subgrantee that are pertinent to a specific project for the purpose of making
audits, examinations, excerpts and transcripts.
d. The NPS shall submit, after project
closeout and scanning, all copies of significant maps and records to the
Federal Archives Record Center for retention into perpetuity and for compliance
with Section
6(f)(3) of the LWCF Act
E.
Payments
1.
General. Grant payments will be made to States in a
manner that minimizes the time elapsing between the disbursement by the State
and the transfer of funds from the U.S. Treasury, whether such disbursement
occurs prior to or subsequent to the transfer of funds. Grant payments are made
through electronic fund transfer (EFT).
2.
Monitoring electronic
payments. Electronic Fund Transfer (currently SMARTLINK) is the
required method of payment for States. Upon completion of an electronic payment
on a given date, the State must concurrently (within 24 hours) submit a
completed "LWCF Record of Electronic Payment" form to NPS Accounting Operations
Division and copy the applicable NPS Office at the same time. Failure to adhere
to this requirement will result in removing the State from SMARTLINK and
placement on a "request for reimbursement" process through the NPS.
F.
Audits
1.
Purpose.
Recipients must comply with the audit provisions of the Single Audit Act of
1984 ( P.L. 98-502 ), and OMB Circular A-133, "Audit Requirements for State and
Local Governments". These requirements have been incorporated into Department
of Interior regulations at 43 CFR Part
12, Subpart F. In accordance with Circular
A-133, required audits shall be submitted to the federal audit clearinghouse
within the earlier of 30 days after receipt of the auditor's report or no later
than nine months following the end of the State's fiscal year.
2.
Exceptions. An
audit exception is a determination by an appropriate authority that an item
questioned by the auditor is not properly chargeable to the project agreement
and should be disallowed. The NPS determines the allowance or disallowance of
items questioned by the auditor. The NPS will be responsible for the review of
audit reports received from cognizant federal agencies and/or the Office of the
Inspector General (OIG), Department of the Interior pertaining to LWCF grants.
Each Regional Director will be responsible for advising the States of the audit
findings, together with recommendations and suggestions for overcoming the
deficiencies disclosed by the audit, and also advise the State of the
disallowance of any items.
The Departmental Manual [360 and 361 DM 7.3] requires the State
must formally respond to the OIG, through the Director of NPS, concerning audit
exceptions within 90 days of the issuance of the audit report. This initial
response should include:
a. whether
there is agreement with the audit findings and recommendations. If there is
non-concurrence, the specific reasons must be stated, and
b. recommendations or support documentation
for corrective action (resolution) of the audit exceptions.
All audit exceptions must be fully resolved within six (6)
months of the issuance of the audit report. If resolution of an audit exception
indicates the need for reimbursement of the federal share, then such
reimbursement must be made within 60 days after such resolution. After the six
(6) month period from the date of issuance of the audit report, unresolved
audit exceptions will be disallowed and reimbursement of the federal share must
be made within sixty (60) days. Reimbursement of the federal share may be
accomplished by electronic fund transfer.
G.
Project Termination/Grant
Closeout
This section prescribes project closeout procedures in
accordance with 43 CFR Part
12.
1.
Termination. The
termination of a project means the cancellation of federal assistance, in whole
or in part, under a project at any time prior to the date of completion.
a.
Termination by the
State. The State may unilaterally terminate the project at any
time prior to the first payment on the project. After the initial payment, the
project may be terminated, modified, or amended by the State only by mutual
agreement of the State and the NPS.
b.
Termination for
cause. The NPS may terminate any project in whole, or in part, at
any time before the date of completion, whenever it is determined the grantee
has failed to comply with the conditions of the grant. The NPS will promptly
notify the State in writing of the determination and the reasons for
termination, together with the effective date. Payments made to States or
recoveries by the NPS under projects terminated for cause shall be in accord
with the legal rights and liabilities of the parties.
c.
Termination for
convenience. The NPS or State may terminate grants in whole, or in
part, when both parties agree that the continuation of the project would not
produce beneficial results commensurate with the further expenditure of funds.
The two parties shall agree upon the termination conditions, including the
effective date and, in the case of partial termination, the portion to be
terminated. The project sponsor shall not incur new obligations for the
terminated portion after the effective date, and shall cancel as many
outstanding obligations as possible. The NPS may allow full credit to the State
for the federal share of the non-cancelable obligations, properly incurred by
the project sponsor prior to termination. An amendment to the project agreement
is required for all terminations for convenience.
2.
Suspension. The
suspension of a grant is an action by the NPS that temporarily suspends federal
assistance under the project pending corrective action by the project sponsor
or pending a decision to terminate the grant by the NPS.
3.
Grant closeout.
The State must ensure all agreed-upon work as described in the project
agreement is completed by the expiration date in the grant award document. The
closeout of a grant is the process by which the NPS determines that all
required work of a project and all applicable administrative actions, including
financial, have been accomplished.
The following are minimum requirements of the closeout
procedures:
a. During the active phase
of the project, the NPS will make prompt payments to the State for allowable
reimbursable costs until the project is administratively closed out.
b. Final payment will not occur until all
required final reports and documents have been approved by the NPS to assure
all aspects of the grant contract have been met.
c. Within 90 days after the date of
completing the project or the grant expiration date, whichever comes first,
both administrative and financial closeout of the grant must occur. During this
90 day period, the following documents are due to NPS before it can approve and
process final payment:
(1) a final letter or
report attesting to the completion of the project in accordance with the
approved project agreement/amendment;
(2) a final on-site inspection report for
development projects in accordance with the State's Inspection Agreement with
NPS;
(3) a completed Description
and Notification Form (DNF). This is only needed for projects where a change
has occurred since the submission of the original DNF. If there was a change in
scope not included in the grant agreement, then an amendment and revised DNF
are required;
(4) a completed site
plan (up to 14 inches x 17 inches in size) indicating the type and location of
Fund-assisted facilities and/or acquired properties along with the official
park or site name unless previously submitted or evident on the signed and
dated Section
6(f) map;
(5) a signed and dated Section
6(f)(3) project boundary
map if more accurate than the current one in the NPS file including the
delineation of any newly added parcels as a result of the project;
(6) if applicable, a completed certification
(PD/ESF page 12) by the SLO that the State has reviewed each appraisal
associated with this project per federal requirements;
(7) in consultation with NPS, other required
documentation not previously submitted; and
(8) Digital images of completed project
(optional). Best images are those of people enjoying the new outdoor recreation
resource.
b. The NPS
shall make a settlement for any upward or downward adjustments to the federal
share of costs after these reports are received. The project agreement, as
signed by the State and the NPS, establishes a total cost and support ceiling
for the project that is based upon the project sponsor's best estimate of
acquisition and development costs as foreseen at the outset of the project. As
the project proceeds, adjustments are sometimes required in accord with
changing processes, unforeseen problems or other conditions. When an upward
adjustment is required, an amendment must be executed. When actual project
costs are less than originally estimated, no amendment is necessary.
c. The NPS retains the right to recover an
appropriate amount after fully considering the recommendations on disallowed
costs resulting from the subsequent final audit.
CHAPTER 8
-
POST-COMPLETION AND STEWARDSHIP
A.
Purpose
Pursuant to Section
6(f)(3) of the LWCF Act
and
36 CFR
59.3, this chapter contains the requirements
for maintaining LWCF assisted sites and facilities in public outdoor recreation
use following project completion and to assure that LWCF-assisted areas remain
accessible to the general public including non-residents of assisted
jurisdictions. These post-completion responsibilities apply to each area or
facility for which LWCF assistance is obtained, regardless of the extent of
participation of the program in the assisted area or facility and consistent
with the contractual agreement between NPS and the State. Responsibility for
compliance and enforcement of these requirements rests with the State for both
state and locally sponsored projects. The responsibilities cited herein are
applicable to the area depicted or otherwise described on the 6(f)(3) boundary
map and/or as described in other project documentation approved by the
NPS.
B.
Operation and
Maintenance
Property acquired or developed with LWCF assistance shall be
operated and maintained as follows:
1.
The property shall be maintained so as to appear attractive and inviting to the
public.
2. Sanitation and sanitary
facilities shall be maintained in accordance with applicable health
standards.
3. Properties shall be
kept reasonably open, accessible, and safe for public use. Fire prevention,
lifeguard, and similar activities shall be maintained for proper public
safety.
4. Buildings, roads,
trails, and other structures and improvements shall be kept in reasonable
repair throughout their estimated lifetime to prevent undue deterioration and
to encourage public use.
5. The
facility shall be kept open for public use at reasonable hours and times of the
year, according to the type of area or facility.
6. A posted LWCF acknowledgement sign shall
remain displayed at the project site pursuant to Chapter
7.
C.
Availability to Users
1.
Discrimination on the basis of
race, color, national origin, religion, or sex. Under Title VI of
the 1964 Civil Rights Act property acquired or developed with LWCF assistance
shall be open to entry and use by all persons regardless of race, color, or
national origin, who are otherwise eligible. Title 43, Part
17 (43 CFR 17), effectuates the provisions
of Title VI. The prohibitions imposed by Title VI apply to park or recreation
areas benefiting from federal assistance and to any other recreation areas
administered by the state agency or local agency receiving the assistance.
Discrimination is also prohibited on the basis of religion or sex.
2.
Discrimination on the basis of
residence. Section
6(f)(8) of the LWCF Act
provides, with respect to property acquired and/or developed with LWCF
assistance, discrimination on the basis of residence, including preferential
reservation, membership or annual permit systems is prohibited except to the
extent reasonable differences in admission and other fees may be maintained on
the basis of residence.
Fees charged to nonresidents cannot exceed twice the amount
charged to residents. Where there is no charge for residents, but a fee is
charged to nonresidents, nonresident fees cannot exceed fees charged for
residents at comparable state or local public facilities. Reservation,
membership or annual permit systems available to residents must also be
available to nonresidents and the period of availability must be the same for
both residents and nonresidents.
These provisions apply only to the recreation areas described
in the project agreement. Nonresident fishing and hunting license fees are
excluded from these requirements.
3.
Discrimination on the basis of
disability. Section
504 of the Rehabilitation Act of 1973
requires no qualified person shall, on the basis of disability, be excluded
from participation in, be denied benefits of, or otherwise be subjected to
discrimination under any program or activity that receives or benefits from
federal financial assistance. The Americans with Disabilities Act of 1990 (
P.L. 100-336 ) simply references and reinforces these requirements for
federally-assisted programs.
4.
Reasonable use limitations. Project sponsors may
impose reasonable limits on the type and extent of use of areas and facilities
acquired and/or developed with Fund assistance when such a limitation is
necessary for maintenance or preservation. Thus, limitations may be imposed on
the numbers of person using an area or facility or the type of users, such as
"hunters only" or "hikers only." All limitations shall be in accord with the
applicable grant agreement and amendments.
D.
Leasing and Concession Operations
Within a Section
6(f)(3) Area
A project sponsor may provide for the operation of a Section
6(f)(3) area by leasing
the area/facility to a private organization or individual or by entering into a
concession agreement with an operator to provide a public outdoor recreation
opportunity at the Fund-assisted site.
As the principal grantee, the State is ultimately accountable
for assuring compliance with the applicable federal requirements, and,
therefore, the delegation or transfer of certain responsibilities to
subgrantees or lessees does not relieve the State of its compliance burden. As
the grant recipient, the State has agreed to provide suitable replacement
property should the public use of the leased or concessioned area/facility be
restricted or the outdoor recreation resource be compromised.
All lease documents and concession agreements for the operation
of LWCF-assisted sites by private organizations or individuals must address the
following:
1. In order to protect the
public interest, the project sponsor must have a clear ability to periodically
review the performance of the lessee/concessioner and terminate the
lease/agreement if its terms and the provisions of the grant agreement,
including standards of maintenance, public use, and accessibility, are not
met.
2. The lease/agreement
document should clearly indicate that the leased/concessioned area is to be
operated by the lessee/concessioner for public outdoor recreation purposes in
compliance with provisions of the Land and Water Conservation Fund Act and
implementing guidelines (36 CFR 59). As such, the document should require the
area be identified as publicly owned and operated as a public outdoor
recreation facility in all signs, literature and advertising, and is operated
by a lessee/concessioner as identified in the public information to eliminate
the perception the area is private.
3. The lease/agreement document should
require all fees charged by the lessee/concessioner to the public must be
competitive with similar private facilities.
4. The lease/agreement document should make
clear compliance with all Civil Rights and accessibility legislation (e.g.,
Title VI of Civil Rights Act, Section
504 of Rehabilitation Act, and Americans
with Disabilities Act) is required, and compliance will be indicated by signs
posted in visible public areas, statements in public information brochures,
etc.
E.
Conversions of Use
Property acquired or developed with LWCF assistance shall be
retained and used for public outdoor recreation. Any property so acquired
and/or developed shall not be wholly or partly converted to other than public
outdoor recreation uses without the approval of NPS pursuant to Section
6(f)(3) of the LWCF Act
and these regulations. The conversion provisions of Section
6(f)(3),
36 CFR Part
59, and these guidelines apply to each
area or facility for which LWCF assistance is obtained, regardless of the
extent of participation of the program in the assisted area or facility and
consistent with the contractual agreement between NPS and the State.
Responsibility for compliance and enforcement of these
provisions rests with the State for both state and locally sponsored projects.
The responsibilities cited herein are applicable to the area depicted or
otherwise described on the
6(f) (3) boundary map
and/or as described in other project documentation approved by the Department
of the Interior. This mutually agreed to area normally exceeds that actually
receiving LWCF assistance so as to assure the protection of a viable recreation
entity.
Local sponsors must consult early with the State LWCF manager
when a conversion is under consideration or has been discovered. States must
consult with their NPS-LWCF manager as early as possible in the conversion
process for guidance and to sort out and discuss details of the conversion
proposal to avoid mid-course corrections and unnecessary delays.
A critical first step is for the State and NPS to agree on
the size of the Section
6(f) park land impacted by
any non-recreation, non-public use, especially prior to any appraisal
activity. Any previous LWCF project agreements and actions
must be identified and understood to determine the actual Section 6(f)
boundary.
If the NPS is alerted or otherwise becomes aware of an ongoing
conversion activity that has not been approved, NPS shall request the State
Liaison Officer (SLO) to advise the project sponsor of the necessary
prerequisites for approval of a conversion and to discontinue the unauthorized
conversion activities. If the conversion activity continues, NPS shall formally
notify the State it must take appropriate action to preclude the project
sponsor from proceeding further with the conversion, use, and occupancy of the
area pending NPS independent review and decision of a formal conversion
proposal (see Section
10 below).
The NPS Regional Director has the authority to disapprove
conversion requests and/or to reject proposed property substitutions. This
approval is a discretionary action and should not be considered a right of the
project sponsor.
1. Situations that
trigger a conversion include:
a. Property
interests are conveyed for private use or non-public outdoor recreation
uses.
b. Non-outdoor recreation
uses (public or private) are made of the project area, or a portion thereof,
including those occurring on pre-existing rights-of-way and easements, or by a
lessor.
c. Unallowable indoor
facilities are developed within the project area without NPS approval, such as
unauthorized public facilities and sheltering of an outdoor facility.
d. Public outdoor recreation use of property
acquired or developed with LWCF assistance is terminated.
2. Situations that may not trigger a
conversion if NPS determines that certain criteria are met include:
a.
Underground utility
easements that do not impact the recreational use of the park and
is restored to its original surface condition (see Section F below).
b.
Proposals to construct public
facilities, such as recreation centers and indoor pool buildings,
within a Section
6(f)(3) protected area
where it can be shown there is a gain or increased benefit to the public
outdoor recreational opportunity. These proposals must be reviewed by the NPS
as a "public facility request" (see Section H below). The
State should consult with the NPS early in the formative stages
of developing proposals to construct indoor facilities on Section
6(f)(3) protected land
(see Section H below).
c.
Proposals for "temporary non-conforming uses," that is
temporary non-recreation activities of less than a six-month duration within a
Section
6(f)(3) protected area,
must be reviewed by the NPS (see Section
I below).
d.
Proposals to build sheltered
facilities or to shelter existing facilities within a Section
6(f)(3) protected area
provided they do not change the overall public outdoor recreation
characteristics and otherwise meet the sheltering criteria in Chapter
3. The NPS review and approval of such
proposals will not trigger a conversion (see Section J below).
e.
Proposals for changing the
overall outdoor recreation use of a Section
6(f)(3) area from that
intended in the original LWCF project agreement. These proposals
must be reviewed by the NPS (see Section L below).
3.
Prerequisites to the NPS
consideration of conversions. Formal requests from the project
sponsor for permission to convert LWCF assisted properties in whole or in part
to other than public outdoor recreation uses must be submitted by the State
Liaison Officer to NPS in writing and conform to the prerequisites set forth in
36 CFR 59.
States shall consult with NPS when conversions are proposed or
discovered and prior to making the formal request to NPS. States shall use the
Proposal Description and Environmental Screening Form (PD/ESF) to prepare its
conversion proposal (see Chapter
4 ). The PD/ESF guides the development of
the conversion proposal, including the incorporation of the following
prerequisites that must be met before NPS will consider the formal conversion
request:
a. All practical alternatives
to the conversion have been evaluated and rejected on a sound basis.
b. The fair market value of the property to
be converted has been established and the property proposed for substitution is
of at least equal fair market value as established by a state approved
appraisal (see Chapter
4 for appraisal guidance) excluding the
value of structures or facilities that will not directly enhance its outdoor
recreation utility.
c. The property
proposed for replacement is of reasonably equivalent usefulness and location as
that being converted. Depending on the situation, and at the discretion of the
NPS, the replacement property need not provide identical recreation experiences
or be located at the same site, provided it is in a reasonably equivalent
location. Generally, the replacement property should be administered by the
same political jurisdiction as the converted property. NPS will consider state
requests to change the project sponsor for any replacement property when it is
determined a different political jurisdiction can meet the criteria for
replacement properties. Equivalent usefulness and location will be determined
based on the following criteria:
(1) Property
to be converted must be evaluated in order to determine what recreation needs
are being fulfilled by the facilities which exist and the types of outdoor
recreation resources and opportunities available. The property being proposed
for substitution must then be evaluated in a similar manner to determine if it
will meet recreation needs that are at least like in magnitude and impact to
the user community as the converted site. This criterion is applicable in the
consideration of all conversion requests with the exception of those where
wetlands are proposed as replacement property.
Wetland areas and interests therein shall be considered to be
of reasonably equivalent usefulness as compared to the recreational usefulness
of the property proposed for conversion if they have been identified in the
wetlands provisions of the Statewide Comprehensive Outdoor Recreation Plan
(SCORP) in accordance with Section
6(f)(3) of the LWCF Act as
amended (
36 CFR
59.3 ) by Section
303 of the Emergency Wetlands Resources
Act of 1986.
(2)
Replacement property need not necessarily be directly adjacent to or close by
the converted site. This policy provides the administrative flexibility to
determine location recognizing that the property should meet existing public
outdoor recreation needs. While generally this will involve the selection of a
site serving the same community(ies) or area as the converted site, there may
be exceptions. For example, if property being converted is in an area
undergoing major demographic change and the area has no existing or anticipated
future need for outdoor recreation, then the project sponsor should seek to
locate the substitute area at another location within the
jurisdiction.
(3) Should a local
project sponsor be unable to replace converted property, the State would be
responsible, as the primary recipient of federal assistance, for assuring
compliance with these requirements and for the substitution of replacement
property.
(4) The acquisition of
one parcel of land may be used in satisfaction of several approved conversions
(see Section
6 below) and vice versa.
d. The property proposed for
replacement meets the eligibility requirements for LWCF assisted acquisition
(see Chapter
3 ). The replacement property must
constitute or be part of a viable recreation area. Viability and recreational
usefulness is dependent upon the proposed outdoor recreation development plan
and timetable for the development of the replacement parks. If full development
of the replacement site(s) will be delayed beyond three years from the date of
conversion approval, the conversion proposal shall explain why this is
necessary (see Chapter
3.B.7).
For proposed replacement property with a history of
contamination, proposals must address the nature of the contamination, how the
contaminated area has been or will be remediated, how the area will be
developed into a safe, public outdoor recreation area, and how provisions will
be put in place to monitor the new replacement parkland to ensure public health
and safety in perpetuity. Certain contaminated areas may not meet the equal or
greater recreational usefulness prerequisite for replacement land. Early
coordination with NPS for conversion proposals involving contaminated
replacement land, even if remediated, is required (see
3.4 below).
Unless each of the following additional conditions (also see
Chapter
3 ) is met, land currently owned by another
public agency may not be used as replacement land for land acquired as part of
an LWCF project:
(1) The replacement
land was not originally acquired by the sponsor or selling agency for
recreation.
(2) The replacement
land has not been previously dedicated or managed for recreational purposes
while in public ownership.
(3) No
federal assistance was provided in the replacement land's original acquisition
unless the assistance was provided under a program expressly authorized to
match or supplement LWCF assistance.
(4) Where the project sponsor acquires
replacement land from another public agency, the selling agency must be
required by law to receive payment for the land so acquired (see Chapter
3.A.9).
An exception may be made to this condition only in the case of
development projects for which the project sponsor's match was not derived from
the cost of the purchase or value of a donation of the land to be converted,
but from the value of the development itself. In this case, public land that
has not been previously dedicated or managed for recreation/conservation use
may be used as replacement land even if this land is currently owned by the
project sponsor or is transferred from one public agency to another without
cost.
e. In the
case of Section
6(f)(3) protected areas
that are partially rather than wholly converted, the impact of the converted
portion on the remaining area shall be considered. If such a conversion is
approved, the unconverted area must remain recreationally viable or be replaced
as well.
f. All necessary
coordination with other federal agencies has been satisfactorily accomplished
including, for example, compliance with Section
4(f) of the Department of
Transportation Act of 1966.
g. The
guidelines for environmental review under NEPA have been satisfactorily
completed and considered by NPS during its review of the proposed Section
6(f)(3) action. In cases
where the proposed conversion arises from another federal action, NPS final
review of the State's proposal shall not occur until the NPS is assured all
environmental review requirements for the other federal action have been met,
e.g., Army Corps of Engineer permits.
The environmental review process must analyze not only the
Section
6(f)(3) area proposed for
conversion, but also the development of the replacement parkland. The purpose
and scope of the environmental review must focus on the impacts on the "human
environment" resulting from the loss of the Section
6(f)(3) parkland, impacts
on any remaining Section
6(f)(3) parkland for
partial conversions, and the development of new Section
6(f)(3) replacement
park(s). The scope of the environmental review should not include impacts of
the action precipitating the conversion on resources beyond the Section
6(f)(3) boundary, such as
impacts of a new housing development or a school on a neighborhood.
The environmental analysis must be conducted in a neutral and
factual manner and result in statements that reflect this same neutrality so
the interested and affected public can focus on and understand the details of
the proposed federal action of converting parkland including the replacement of
new parkland according to 36 CFR 59. The environmental analysis documents
should not include statements that promote or justify the action precipitating
the conversion, such as proclaiming that the subject parkland is the best
location for a new fire station.
For detailed guidance on NEPA and how to conduct environmental
reviews for LWCF conversions, consult Chapter
4 of this manual, and the NPS.
h. Adherence to state
intergovernmental review procedures as appropriate (see Chapter
4 ).
i. The proposed conversion and substitution
are in accord with the SCORP.
4.
State preparation of
conversion proposal for NPS review: To avoid any unnecessary
delays, duplication of effort, and mid-course corrections, the States shall
consult with NPS early when conversions are proposed or discovered to ensure:
a. the extent of impact from the conversion
activity on Section
6(f)(3) protected area is
mutually agreed upon; and
b. the
acceptability of proposed replacement parkland has been explored prior to
State/local sponsor expenditure of resources on appraisals and the required
environmental review process to be undertaken in accordance with NEPA.
The State shall coordinate the development of the conversion
proposal including ensuring the project sponsor complies with applicable
federal, state and local laws, regulations and permit requirements. As the
proposal is developed, the State may enlist the assistance of NPS to provide
technical guidance as needed, especially for complex and controversial
conversions. A State's submission of a formal conversion request to NPS is a
State's endorsement of the conversion. If a State does not concur or endorse
the conversion, then the proposal should not be forwarded to NPS for formal
review and decision.
5.
NPS review of the State
conversion proposal. NPS will conduct an independent review of the
proposal using the conversion prerequisites and any other critical factors that
may have arisen during proposal development. If the State has adequately
addressed the prerequisites, and NPS finds no other reason to deny the request,
the NPS administrative record will be documented as such and an amendment will
be signed approving the conversion.
6.
Banking excess fair market
value of replacement land for future conversions. The acquisition
of one parcel of replacement land may be used in satisfaction of several
approved conversions.
Excess fair market value (FMV) of a replacement property can be
"banked" for a period not to exceed five years from the date of the initial
conversion amendment. During this time period, the same project sponsor may use
the remaining value to make up the FMV difference in cases where the subsequent
proposed replacement property satisfies the equal usefulness criterion but its
appraised FMV falls short of the equal fair market value requirement.
The initial replacement property with the excess fair market
value may not be used to satisfy the equal usefulness criterion for subsequent
conversions unless additional conversions are anticipated by the sponsor
at the time of the original conversion request and the
accompanying documentation clearly addresses how the replacement property would
satisfy the equal usefulness criteria for the original conversion as well as
those that are anticipated.
7.
Conversions on leased
land. Should a conversion occur on leased land during the term of
the lease, the State must comply with the conversion requirements of Section
6(f)(3) including the
provision of replacement land. In this instance, the conversion of the original
lease can be replaced with a leasehold interest for a period of time that is
not less than the time remaining on the original lease, and, which fulfills the
recreation commitment agreed to in the original lease agreement.
For existing projects that involve leases, the responsibility
for retaining the property in recreation terminates at the end of the lease
period unless the grant agreement calls for some other arrangement. Lease
agreements containing a renewal clause that can be exercised by the lessee must
be reviewed to ensure that Section
6(f)(3) compliance will
continue throughout the duration of the next lease period.
8.
Conversion proposal
documentation. A conversion requires an amendment to the original
project agreement. Therefore, the amendment should be submitted concurrently
with the formal conversion request or at such time as all details of the
conversion have been worked out with NPS.
The formal conversion proposal submission to NPS must include
the following items:
a. A transmittal
letter briefly describing the conversion proposal and requesting NPS review and
approval b. Standard Form 424 for amendments (see Chapter
7 )
c. PD/ESF including Step 4, the environmental
screening form, and an environmental assessment document analyzing the entire
conversion proposal (the converted parkland and the replacement parkland in one
document).
d. LWCF project
amendment form identifying changes to the original Section
6(f)(3) boundary caused by
the conversion and to establish a new 6(f) boundary around the replacement
site(s)
e. Signed and dated Section
6(f)(3) boundary map for
any remaining parkland resulting from a partial conversion, and for the
replacement site(s)
f. Description
and Notification Form (DNF)
Once the conversion has been approved by NPS, replacement
property should be immediately acquired and developed according to the
replacement proposal timetable. If development will be delayed beyond three
years from the date of NPS conversion approval, then a request for delayed
development beyond three years with a justification for the delay must be made
to NPS (See Chapter
3.B.7.c).
9.
Small
conversions. Small conversions are composed of small portions of
Section
6(f)(3) protected areas
that amount to no more than 10 percent of the 6(f) protected area or five
acres, whichever is less. States should consult with NPS prior to developing
the small conversion proposal.
Because small conversion proposals are less complex, NPS review
and decision can be facilitated when:
a. Minor or no environmental impacts would
occur on resources being removed from Section
6(f)(3) protection, on the
remaining Section
6(f)(3) area, and on the
contiguous new replacement parkland by placing it under Section
6(f)(3) protection per the
environmental screening form. This includes consideration of impacts to
historic resources per the Section
106 process of the National Historic
Preservation Act. The entire conversion proposal is categorically excluded from
further environmental review under NEPA (see Chapter
4 ).
b. The proposed conversion is not
controversial.
c. The replacement
property is contiguous to the original Section
6(f)(3) area.
The State's proposal must include:
d. Transmittal letter describing the entire
small conversion proposal.
e.
Standard Form 424
f. PD/ESF with
the portion for conversions completed indicating that a categorical exclusion
is justified.
g. LWCF project
amendment form.
h. Description and
Notification Form (DNF)
i. Revised
6(f) boundary map indicating the deletion of the small converted area and the
addition of the replacement property.
10.
Discovering unauthorized
conversions. When it is discovered that a Section
6(f)(3) area has been
converted without NPS approval, a conversion proposal must be submitted and
reviewed by NPS for retroactive action. .The NPS shall notify the State it is
in violation of the grant contract, program regulations, and law, and an
immediate resolution of the unapproved conversion must be expedited.
If it is discovered that an unauthorized conversion is in
progress, the State must notify the project sponsor to cease immediately until
the conversion process pursuant to
36 CFR
59.3 has been satisfactorily
completed.
Resolution of the conversion will require State and NPS review
of the conversion proposal as previously set forth in Section E.4 above
including the provision of suitable replacement property.
If the sponsor has already provided replacement property
without NPS approval, the eligibility of the replacement land must meet the
same Section
6(f)(3) requirements as if
it had not yet been acquired. It is incumbent upon the State to make the case
that the replacement land fully meets these requirements.
Failure by the State to take steps to follow this procedure
shall be considered cause for NPS to apply penalty options described in Section
N below.
11.
Conversions with delayed parkland replacement.
Exceptions to the immediate replacement requirement (see Section
8 above) will be allowed only when it is
not possible for replacement property to be identified prior to the State's
request for the conversion. An express commitment must be received from the
State to satisfy Section
6(f)(3) substitution
requirements within a specified period normally not to exceed one year
following conversion approval.
Such proposals are not routine and must include sufficient
evidence to justify why such a delay is necessary.
F.
Underground Utility Easements and
Rights-of-Way
The State may allow underground utility easements within a
Section
6(f)(3) area as long as
the easement site is restored to its pre-existing condition to ensure the
continuation of public outdoor recreational use of the easement area within 12
months after the ground within the easement area is disturbed. If restoration
exceeds the 12 month period, or the easement activities result in permanent
above-ground changes, NPS shall be consulted to determine if the changes will
trigger a conversion. If present or future outdoor recreation opportunities
will be impacted in the easement area or in the remainder of the Section
6(f)(3) area, a conversion
will be triggered.
G.
Commercial Signage in Section
6(f)(3) Areas
Commercial signs are only allowable within Section
6(f)(3) boundaries when
the advertising is attached to allowable park structures such as benches,
fencing, walls, and buildings and are not inconsistent with the park setting
and/or the built environment in which it is located (e.g., athletic fields).
Signs may face either outside or inside the park. Commercial advertising in the
form of a stand-alone structure such as a billboard that creates a footprint in
the park, or commercial signage permanently affixed to a natural feature within
the 6(f) area, is a conversion regardless of which direction it faces.
H.
Proposals to Construct
Public Facilities
Public facility requests will only be approved if the public
facility clearly results in a net gain in outdoor recreation benefits or
enhances the outdoor recreation use of the entire park, and the facility is
compatible with and significantly supportive of the outdoor recreation
resources and opportunities of the Section
6(f)(3) protected area.
The State shall use the PD/ESF to document its public facility proposal using
the following criteria and submit it along with a project amendment and a
recommendation for federal approval for NPS review and decision.
The NPS will consider requests to construct
sponsor-funded public facilities when the following
criteria have been met:
1. Uses of the
facility will be compatible with and significantly supportive of outdoor
recreation resources and uses at the rest of the site and recreation use
remains the overall primary function of the site. The proposed public facility
will include a recreation component and will encourage outdoor recreation use
of the remaining Section
6(f) area.
2. All design and location alternatives have
been adequately considered, documented and rejected on a sound basis.
3. The proposed structure is compatible and
significantly supportive of the outdoor recreation resources of the site,
whether existing or planned. The park's outdoor recreation use must continue to
be greater than that expected for any indoor uses, unless the site is a single
use facility, such as a swimming pool building, which virtually occupies the
entire site.
Examples of uses which would not ordinarily be approved
include, but are not limited to, a community recreation center which takes up
all or most of a small park site, clinics, police stations, restaurants
catering primarily to the general public, fire stations, professional sports
facilities or commercial resort or other facilities which:
(1) are not accessible to the general public;
or,
(2) require memberships; or,
(3) which, because of high user
fees, have the effect of excluding elements of the public; or,
(4) which include office, residential or
elaborate lodging facilities.
Restaurant-type establishments with indoor
dining/seating that cater primarily to the outdoor recreating
public must be reviewed under this public facility policy. Other park food
service operations such as snack bars, carry-out food service, and concession
stands with outdoor dining including pavilions and protected patios are
allowable without further NPS if the primary purpose is to serve the outdoor
recreating public.
4. Potential and future benefits to the total
park's outdoor recreation utility must be identified in the proposal. Any costs
or detriments should be documented and a net recreation benefit must
result.
5. The proposed facility
must be under the control and tenure of the public agency that sponsors and
administers the original park area.
6. The proposal has been analyzed pursuant to
NEPA, including providing the public an opportunity to review and comment on
the proposal if required as part of the NEPA review.
7. All applicable federal requirements for
approval are met.
8. The proposal
has been adequately reviewed at the state level and has been recommended by the
SLO.
I.
Requests
for Temporary Non-Conforming Uses Within Section
6(f)(3) Areas
All requests for temporary uses for purposes that do not
conform to the public outdoor recreation requirement must be submitted to and
reviewed by the State. The State, in turn, will submit a formal request to NPS
describing the temporary non-conforming use proposal.
Continued use beyond six-months will not be considered
temporary, but will result in a conversion of use and will require the
State/project sponsor to provide replacement property pursuant to Section
6(f)(3) of the LWCF
Act.
1.
Criteria. NPS will use the following criteria to
evaluate each request:
a. The size of the
parkland area affected by any temporary non-recreation use shall not result in
a significant impact on public outdoor recreation use. This means that the site
of the temporary activity should be sufficiently small to restrict its impacts
on other areas of a Fund-assisted park.
b. A temporary use shall not result in
permanent damage to the park site, and appropriate mitigating measures will be
taken to ensure no residual impacts on the site once the temporary use is
concluded.
c. No practical
alternatives to the proposed temporary use exist.
d. All applicable federal requirements for
approval are met.
e. The proposal
has been adequately reviewed at the state level and has been recommended by the
SLO.
2.
Required proposal documentation. The State's formal
proposal to NPS shall include:
a. SLO
recommendation;
b. PD/ESF providing
a complete description of the proposed temporary use, including:
(1) start and completion dates;
(2) identification of the portion of the site
affected, including a map showing the relationship of the temporary use site to
the full area protected under
6(f)(3) and a
justification of why the area needed is the minimum necessary for the proposed
use;
(3) an analysis of the
alternatives to the proposed use that were considered;
(4) a description of both immediate impacts
on the site as a result of the temporary use and any residual or long-term
impacts on the site's environment or on recreation use;
(5) a description of any appropriate
mitigation actions that may be necessary and a schedule for their
implementation; and,
c.
An acknowledgement by the SLO a full conversion will result if the temporary
use has not ceased after the maximum six-month period allotted.
J.
Sheltering
Facilities within Section
6(f)(3) Areas
NPS approval is required to shelter an existing facility
located within a Section 6(f)(3 ) protected area. See Section 3.C.7 for
further guidance.
K.
Obsolete Facilities
Project sponsors are not required to continue operation of a
particular recreation area or facility beyond its useful life. However, Section
6(f)(3) of the LWCF Act
requires project sponsors maintain the entire area within the Section
6(f)(3) boundary in some
form of public outdoor recreation use.
Notwithstanding neglect or inadequate maintenance on the part
of the project sponsor, a recreation area or facility may be determined to be
obsolete if:
1. reasonable maintenance
and repairs are not sufficient to keep the recreation area or facility
operating;
2. changing recreation
needs dictate a change in the type of facilities provided;
3. park operating practices dictate a change
in the type of facilities required; or,
4. the recreation area or facility is
destroyed by fire, natural disaster, or vandalism.
States may determine a facility is obsolete and permit its use
to be discontinued or allow a particular type of recreation use of the LWCF
assisted area to be changed provided that the project record maintained by the
State is documented by the sponsor with a justification statement for
determining obsolescence and the State concurs in the change. However, NPS
approval must be obtained prior to any change from one LWCF allowable use to
another when the proposed use would significantly contravene the original plans
for the area. See Section L below for further guidance.
If, in the judgment of the State, the facility is needed and
was lost through neglect or inadequate maintenance, then replacement facilities
must be provided at the current value of the original investment.
LWCF assistance may be provided to renovate outdoor recreation
facilities that have previously received LWCF assistance if the State
determines the renovation is not required as a result of neglect or inadequate
maintenance and the State documents the project record to that effect.
L.
Significant
Change of Use
Section
6(f)(3) of the LWCF Act
requires project sponsors maintain the entire area defined in the project
agreement in some form of public outdoor recreation use. NPS approval must be
obtained prior to any change from one eligible use to another when the proposed
use would significantly contravene the original plans or intent for the area as
described in the original LWCF project(s).
NPS approval is not required, however, for each and every
facility use change. Uses within a Section
6(f)(3) protected area
should be viewed in the context of overall use and should be monitored in this
context. A change from a swimming pool with substantial recreational
development to a less intense area of limited development such as a passive
park, or vice versa, would, for example, require NPS approval.
States shall notify NPS in writing of proposals to
significantly change the use of Section
6(f)(3) areas in advance
of their occurrence. NPS will expedite a determination of whether a formal
review and approval process will be required. A primary NPS consideration in
the review will be the consistency of the proposal with the Statewide
Comprehensive Outdoor Recreation Plan.
If the change in use proposal requires a formal review and
decision by NPS, the State shall complete the Proposal Description and
Environmental Screening Form (PD/ESF) found in Chapter
4.
Changes to other than public outdoor
recreation use constitute a conversion and will require NPS approval and the
substitution of replacement land in accordance with Section
6(f)(3) of the LWCF
Act
M.
Post-Completion
Inspections1.
Purpose. In order to determine whether properties
acquired or developed with LWCF
assistance are being retained and used for outdoor recreation
purposes in accordance with the project agreement and other applicable program
requirements, a state post-completion inspection is to be made within five
years after final billing and at least once every five years thereafter.
The following points should be taken into consideration during
the inspection of properties that have been developed for public use:
a.
Retention and
use. Is the Section
6(f)(3) boundary in tact
and the property being used for outdoor recreation purposes including those
intended through the projects funded with LWCF assistance?
b.
Appearance. Is
the property attractive and inviting to the public?
c.
Maintenance. Is
upkeep and repair of structures and improvements adequate? Is there evidence of
poor workmanship or use of inferior quality materials or construction? Is
vandalism a problem? Is the area being maintained?
d.
Management. Does
staffing and servicing of facilities appear adequate?
e.
Availability. Is
there evidence of discrimination? Is the property readily accessible and open
to the public during reasonable hours and times of the year?
f.
Signing. Is the
area properly signed to allow for user information and safety, and proper
acknowledgement of the federal Land and Water Conservation Fund?
g.
Interim use.
Where lands have been acquired but not yet developed, the inspection should
determine whether the interim uses of the property are in accordance with
agreements with the NPS.
2.
Reporting. Within
90 days of completion of an on-site inspection, States shall submit to NPS a
post-completion inspection report for only those projects which have compliance
problems. The report should include the date of inspection, description of the
finding, and a summary report of corrective actions taken or to be taken.
For all other sites inspected with no compliance problems, the
State shall only report to NPS the project number and date of inspection, and
shall retain the actual inspection report with the State LWCF project file.
States shall submit a report of all LWCF project sites inspected at least
annually and by September 30.
Post-completion inspection reports shall also be completed for
those projects in which the facilities have been deemed obsolete. The report
should include certification by the State Liaison Officer that the facility is
obsolete and that such obsolescence is not a result of neglect or inadequate
maintenance on the part of the project sponsor.
3.
Applicability.
The provisions of this section apply to the Section
6(f)(3) area encompassing
the area or facility assisted by the LWCF, regardless of the extent of LWCF
assistance in that area or facility. That is, in cases where assistance is
provided only for an acquisition, the entire park or recreational area
involved, including developments on the lands so acquired, are subject to the
provisions of this section. Where development assistance is given, the lands of
the park or recreation area identified on the Section
6(f)(3) boundary map are
subject to this section.
4.
State responsibility. Responsibility for enforcement
of the provisions of this chapter rests with the State. The NPS will inspect
LWCF assisted areas and facilities from time to time, but it shall conduct such
visits in concert or through consultation with the State agency or State
Liaison Officer.
5.
Costs. The costs of making post-completion inspections
by the State are allowable overhead charges for LWCF assistance and are
allowable costs covered by the indirect cost rate.
6.
NPS inspections.
Properties acquired or developed with LWCF assistance shall be available for
inspection by the NPS Director or other NPS representatives.
N.
Penalties for Failure to
Comply with Federal Laws and Regulations
Pursuant to 43 CFR Part
12.83,
when the NPS determines a State has violated or failed to comply with
applicable federal law, or the regulations governing this program with respect
to a project, NPS may withhold payment of federal funds to the State on account
of such project, withhold funds for other projects of the State, withhold
approval of further projects of the State, and take such other action deemed
appropriate under the circumstances, including debarment and suspension
pursuant to Executive Order 12549 at 43 CFR 12.100 -.510, until compliance or
remedial action has been accomplished by the State to the satisfaction of
NPS.