013.05.17 Ark. Code R. 004
LAND AND WATER CONSERVATION FUND STATE ASSISTANCE PROGRAM
FEDERAL FINANCIAL ASSISTANCE MANUAL
PREFACE
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:
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.
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.
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
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, 4 3 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
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)
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
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
Indian Tribes Indian
Trust Resources
Intergovernmental Review of Federal Program Executive Order 12372
Single Point of Contact (SPOC) List for E.O. 12372
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
Minority Business Development Agency of the Department of Commerce
Minority Business Enterprises (MBEs), Executive Order 11625
Minority Business Enterprise Development, Executive Order 12432
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, 4 3 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
Office of Federal Contract Compliance Programs (OFCCP)
Rehabilitation Act of 1973, as amended, Section 504 43 CFR 17, Subpart B
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
Title IX of the Education Amendments of 1972 at 4 3 CFR 41 Tribal Historic Preservation Officers (THPO)
Uniform Administrative Requirements for Grants and Cooperative Agreements for State and Local Governments
43 CFR 12
4 3 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
Wetlands Protection, Executive Order 11990
Wild and Scenic Rivers Act
Women Business Enterprises (WBEs), Executive Order 12138
Reflecting the goals of the LWCF Act, the goals of the LWCF State Assistance Program are to:
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).
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.
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.
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).
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:
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.
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.
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.
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.
The LWCF Act explicitly requires the SCORP to include the following:
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.
The objectives of the SCORP and its associated planning process are to:
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).
Amendments to the Plan may be submitted at any time. Amendments will follow the same review and approval procedures as the original Plan.
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.
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.
"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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
No approval will be given for the development of facilities on leased land except for property either:
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:
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."
New marinas receiving LWCF assistance shall also be subject to the following provisions:
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.
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.
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.
-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.
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.
NEPA requires all federal agencies to:
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:
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).
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:
The scope of the environmental review determines the resources that must be screened for possible environmental impacts resulting from the LWCF proposal.
The NEPA analysis pathway options available to States are:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Use of NEPA categorical exclusions does not exempt the proposal from compliance with this section.
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.
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).
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).
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
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.
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.
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.
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.
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.
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)
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.
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.
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.
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.
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.
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:
For details on enforcement of related civil rights requirements, refer to:
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:
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:
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.
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.
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.
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.
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.
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.
Prior to submitting an application to NPS for LWCF acquisition and/or development assistance, the following conditions must be met:
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:
- 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:
- 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).
- 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
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:
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.
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:
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.
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:
- 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.
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.
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.
First two digits: State Identification Number as follows:
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)
08-00004.1 (first amendment for project 08-00004).
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.
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.
Submission of inspection reports to the NPS will be made on the following basis:
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 4 3 CFR Part 12 .100 -.510.
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.
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
The State shall require all project sponsors to adopt all of the above standards.
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:
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.
This section prescribes project closeout procedures in accordance with 43 CFR Part 12.
The following are minimum requirements of the closeout procedures:
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.
Property acquired or developed with LWCF assistance shall be operated and maintained as follows:
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.
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:
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.
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).
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:
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.
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:
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.
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.
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.
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.
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.
The formal conversion proposal submission to NPS must include the following items:
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).
Because small conversion proposals are less complex, NPS review and decision can be facilitated when:
The State's proposal must include:
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.
Such proposals are not routine and must include sufficient evidence to justify why such a delay is necessary.
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.
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.
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:
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:
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.
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.
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.
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:
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.
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
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:
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.
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 4 3 CFR 1 2 .100 -.510, until compliance or remedial action has been accomplished by the State to the satisfaction of NPS.
013.05.17 Ark. Code R. 004