Federal-aid Highway Program Authorization 2009:
Summary, Explanation, and Comments from Trails and Enhancements Conferences
Session Handouts: State Trail Administrators Meeting

Reauthorization Proposals
November 2008

The Federal-aid highway program is scheduled for reauthorization in 2009. Several proposals are being developed. The first section below links to several national proposals. The remainder of this discussion focuses on comments related to the Recreational Trails Program (RTP) and Transportation Enhancement (TE) Activities.

Recreational Trails Program: Based on input from States and trail interests, several ideas are presented for consideration in discussions about the RTP. See Draft Recreational Trails Program Ideas to Consider for Authorization.
Transportation Enhancement Activities: Based on input from States and TE interests, several ideas are presented for consideration in discussions about the TE Activities. See Draft Transportation Enhancement Activities Ideas to Consider for Authorization.

Refocus, Reform, and Renew the National Approach to Highway and Transit Systems in America

On July 29, 2008, the Secretary of Transportation announced a new framework to overhaul the way U.S. transportation decisions and investments are made. See New Approach for America's Transportation Future.

NOTE: Former Secretary of Transportation Mary E Peters announced a new framework for U.S. transportation decisions on July 29, 2008: information was available at www.fightgridlocknow.gov. The content from that website was removed late January 2009. [This section updated January 27, 2009.]

Press Release: www.dot.gov/affairs/dot10308.htm
Secretary's spoken comments: www.dot.gov/affairs/peters072908.htm
Secretary's video message: www.ost.dot.gov/video/reformproposal/s1reform.htm

National Surface Transportation and Revenue Study Commission

The National Surface Transportation and Revenue Study Commission released its Report to Congress on January 15, 2008, entitled Transportation for Tomorrow: Report of the National Surface Transportation Policy and Revenue Study Commission. The Congress created the Commission in 2005 because "it is in the national interest to preserve and enhance the surface transportation system to meet the needs of the United States for the 21st century." This report has recommendations for the future of the nation's surface transportation program. See www.transportationfortomorrow.org/. The US Department of Transportation Press Release replying to this Report is at www.dot.gov/affairs/dot0608.htm.

According to an analysis from the American Council of Snowmobile Associations:

No longer guarantee financial set-aside to recreational trails and scenic byways programs. It appears these projects would be forced to compete against projects we now know as Enhancement Projects.
Change Transportation Enhancements to a new Environmental Stewardship Program.
Increases the spending on surface transportation from $85 billion per year to $225 billion per year, increasing to $340 billion per year over time.
This report gives Congress a foundation to work from as they begin looking at the next reauthorization. Included in this recommendation is a tax increase of 25-40 cents per gallon.

American Association of State Highway and Transportation Officials

See State Transportation Officials Set Course for Federal Program Reform (October 24, 2008) at http://news.transportation.org/press_release.aspx?Action=ViewNews&NewsID=197.

Summary, Explanation, and Comments from Trails and Enhancements Conferences

The following section has comments from several conferences related to the Recreational Trails Program (RTP) and Transportation Enhancement (TE) Activities. Current legislation is posted at:

RTP legislation: www.fhwa.dot.gov/environment/rectrails/legislation.htm.
TE legislation: www.fhwa.dot.gov/environment/te/legislation.htm.

Federal Highway Administration Staff Analysis

Federal Highway Administration (FHWA) staff is aware of several legislative adjustments that would improve program delivery for the RTP and TE. FHWA seeks recommendations for:

Additions: more eligible categories, more clarifications, more requirements, etc.
Deletions: fewer eligible categories, fewer requirements, etc.
Process improvements.
Specific legislative language from other related Federal highway law, such as, under www.fhwa.dot.gov/environment/rectrails/guidance.htm (see below).
Other sections of Federal highway legislation:
- 23 U.S.C. 217: Bicycle Transportation and Pedestrian Walkways
- Anything else trail related?

Federal Share, Payments on Federal Projects, and Donations and Credits

Some sections of statutory law under Title 23 affect the RTP and TE, but some sections conflict with the RTP or TE legislation. Here is an explanation for three sections.

Link from RTP Guidance: www.fhwa.dot.gov/environment/rectrails/guidance.htm
Link from TE Guidance: www.fhwa.dot.gov/environment/te/guidance.htm

We hope that providing these statutory references will help you understand some flexibilities and inconsistencies in the Federal-aid highway program.

23 U.S.C. 120(k) and (l). Federal Share Payable:
www.fhwa.dot.gov/environment/rectrails/usc120_fedshare.htm
In general, 23 U.S.C. 120 applies to the entire Federal-aid highway program except where there is specific statutory language for a specific program. The RTP, TE, and Scenic Byways have their own Federal-aid requirements, creating conflicts with the broader Section 120, and particularly with §120(k) and (l). FHWA will offer amendments in the next reauthorization to make sure flexibilities available under section 120 also are available to the RTP and TE.

§120(k) allows Federal Land Management Agencies [but not all Federal agencies] to use their funds to match Federal-aid highway and transit program funds.
§120(l) allows Federal Lands Highway Program funds to match other Federal-aid highway and transit program funds.

HOWEVER:

RTP: The RTP Federal share is specified in 23 U.S.C. 206(f), as amended by SAFETEA-LU, see www.fhwa.dot.gov/environment/rectrails/news/dec2005/matchingfunds.htm. The conflict is that a Federal land management agency project sponsor can’t provide the full match: there still must be some State or local match. FHWA will propose an amendment in the next reauthorization to allow flexibilities available in §120(k) and (l).
Scenic Byways: 23 U.S.C. 162(f). Apparently, this has not been a problem for Scenic Byways grants.
TE: Section 120(k) and (l) can be used to allow Federal funds to match TE projects, however, 23 U.S.C. 133(e)(5)(C), Innovative Financing (www.fhwa.dot.gov/environment/te/legislation.htm#cost), creates a conflict.

Explanation. The original purpose of the Innovative Financing section in Section 1108(b) of TEA-21 in 1998 was to help all Federal agencies (not only Federal Land Management Agencies) to use their funds to match TE funds, which had not been allowed prior to TEA-21. It requires States to have a programmatic match, which means the overall Federal share cannot exceed the State’s normal Federal-aid share. If a State accepts funds from another Federal agency to match TE funds, then the State must find additional non-Federal share for other TE projects.

However, TEA-21 §1115(a) authorized allowing Federal land management agency funds and Federal Lands Highway Program funds to match Federal-aid funds, a more permissive authority than what had existed previously. The two TEA-21 amendments were not coordinated. FHWA will propose allowing full flexibility to use §120(k) and (l) without penalizing TE projects.

23 U.S.C. 132. Payments on Federal-aid projects undertaken by a Federal agency:
www.fhwa.dot.gov/environment/rectrails/usc132_payfed.htm
This provision allows a State to transfer Federal-aid highway program funds to a Federal agency in advance, which often is required for other Federal agencies (especially for the US Army Corps of Engineers). This provision applies to the entire Federal-aid highway program, including High Priority Projects, RTP, Byways, and TE. A State may allow an advance of funds to a Federal agency, but the State is not required to authorize the advance if it doesn’t want to do so for some reason. Some Federal land management agency staff want advances to be mandatory.

23 U.S.C. 323. Donations and Credits:
www.fhwa.dot.gov/environment/rectrails/usc323_doncred.htm
This provision allows (with restrictions) donations of property and also donations of funds, materials, or services. It applies to the entire Federal-aid highway program, except where there is specific statutory language for a specific program. Section 323 was amended in TEA-21 and again in SAFETEA-LU to facilitate "soft match" of materials and services. Some FHWA Divisions and State Departments of Transportation are using older program guidance based on TEA-21 rather than the amended provisions from SAFETEA-LU.

TE: use §323. See http://www.fhwa.dot.gov/environment/te/1999guidance.htm#donations.
RTP: The RTP has specific legislation on donations in 23 U.S.C. 206(h), (see www.fhwa.dot.gov/environment/rectrails/news/dec2005/matchingfunds.htm), which is mostly more permissive than §323, except the RTP’s requirements for right-of-way are somewhat more restrictive: it must be new right-of-way new to the project. The right-of-way restriction is intentional to avoid having claims that existing recreation or park lands are "donations" to a trail. FHWA does not anticipate an amendment for this section of the RTP.

Federal-aid Highway Program Reauthorization
Trail and Enhancement Comments from Trail Conferences

National Off-Highway Program Managers (NAOPM), March 2007
Held at the National Off Highway Vehicle Conservation Council Annual Conference
Comments for the Recreational Trails Program

40-30-30 split

Increase motorized share to 50% with remaining 50% dedicated to nonmotorized. If any part is not spent, it will not revert to other side (for example, from motorized to nonmotorized).
Change formula to 50% motorized, 25% diversified, 25% nonmotorized.
Diversified projects should have a motorized component to be eligible.
Diversified projects should be encouraged to have a motorized component with "preference" given to those that contain motorized component.
Do not reduce motorized or diversified levels.
Most comments reflect that motorized needs to be a higher percentage of the split or be emphasized more in the diversified projects. A moderate way to accomplish this may be to encourage a motorized component in diversified projects and or give preference to diversified projects that have a motorized component.

5% Education, 7% Administration takedowns

Increase education projects from 5% to 7%.
Leave administration cap at 7%.
Majority feel that education should be raised to a minimum of 7%.

Match

States should not be allowed to require a local match at a level higher than the Federal minimum match that is required.
5% non-Federal match is difficult to meet with Federal sponsored projects (Forest Service or BLM).
State match required should be similar to Federal match requirement with the 5% non-Federal match eliminated from Federal projects. A high local match prevents smaller OHV groups or nonprofits from being eligible to apply when high match percent is required.

Project eligibility

Continue to disallow law enforcement funding.
Don’t allow States to be limiting on what they fund, should give reasonable consideration for all categories that qualify for funding on the Federal level (example: some States will not allow for purchase or lease of maintenance equipment).
Current list of Federal eligible projects works well.
Majority feel that State project eligibility should closely mirror Federal project eligibility with no law enforcement funding.

International Association of Snowmobile Administrators (IASA), June 2007

The following is a summary of comments received from IASA members regarding reauthorization for the Recreational Trails Program. The one comment heard more than once related to the 40-30-30 requirement. A common comment was that the 40 percent diversified category should include at least some motorized projects. Here is a summary of different comments:

According to a study produced by the Coalition for Recreational Trails, more than $150 million was allocated to nonmotorized projects between 1993 and 2003. During that same time, only $55 million was allocated to motorized recreation. This raises a concern that not enough money is being distributed to motorized recreation within the 40/30/30 formula. Since motorized recreation provides the RTP’s funding source, one of two things should happen: a greater percentage should be allocated for motorized projects or the diversified funds should have some motorized requirement attached.
At least one State indicated the funding notification process is not timely enough. This may be a State-related issue; other States are informed well ahead of the timeframe that State indicated.
There is a concern with the current requirement that at least 5 percent of the programmatic share come from non-Federal sources. This has created challenges for our Federal agency partners who often find it difficult to produce the additional 5 percent. This is especially true when the project pertains to equipment purchases which are necessary to provide adequately groomed trails.
There is a concern with the States’ ability to simply eliminate any funding for one of the 40/30/30 categories without any affect to the other categories. In some States, where administrators do not look favorably upon either motorized or nonmotorized projects, there is an ability to "ignore" these projects by simply not funding them. The funds from that category simply disappear with no effect upon the other categories. The Federal Highway Administration should consider some type of penalty for not funding a category to its maximum amount.

Southeastern Equestrian Trails Conference, July 2007

Propose the same language as the 2003 SAFETEA Section 1611 proposal to recognize the possibility of equestrian use on or along shared use paths.
Protect existing equestrian use. Don’t allow agencies to remove existing equestrian use from nonmotorized transportation trails.
Equestrian use can be for transportation purposes. Trail links between equestrian trail systems eliminate the need for equestrians to load their horses on trailers.

Transportation Enhancement Program Managers, August 2007

For the most part, keep the 12 eligible categories unchanged.
Fish passages under highways should be eligible under the Environmental Mitigation category.
States should be authorized to use TE funds for State administrative costs: perhaps 1% or 2%.
TE managers did not support an additional category for education and training, pointing out that several TE categories already included education and training.
Funds should be set aside for FHWA administrative costs and to support the National Transportation Enhancements Clearinghouse using language similar to the RTP authorization.
FHWA staff will propose making matching shares more consistent with the rest of the Federal-aid highway program under 23 U.S.C. 120.
FHWA staff will propose amending 23 U.S.C. 217, Bicycle Transportation and Pedestrian Walkways, with language similar to the 2003 SAFETEA Section 1611 proposal, to give pedestrians the same rights as bicyclists.
FHWA staff will propose amending 23 U.S.C. 144(o) (Historic Bridges) with language similar to its 2003 SAFETEA Section 1812 proposal.

Rails-to-Trails Conservancy’s TrailLink Conference, August 2007

The Rails-to-Trails Conservancy (RTC) developed the 2010 Campaign for Active Transportation. This would earmark $2 billion for an expanded Nonmotorized Transportation Pilot Program in 40 cities at $50 million each. See www.railstotrails.org/whatwedo/trailadvocacy/2010Campaign.html.

RTC released its "Active Transportation for America" report on October 20, 2008.

Establish a funding program for National Scenic and Historic Trails to plan, implement, design, and develop National Scenic and Historic Trails. See "Fantasy Reauthorization Language" below.
FHWA-funded projects on or along a National Scenic or Historic Trail should be required to be coordinated with the Federal agencies that administer the trail, even if the project is not on Federal land. The Federal administering agency should have veto authority.
National Scenic and Historic Trails should have the same value and recognition as National Park units in consideration for Federal Lands or Federal-aid highway program funding.
Use the 40th and 50th Anniversary of the National Trails System Act to leverage funds.
Establish a National Scenic and Historic Trails Clearinghouse, based on the model of the America’s Byways Resource Center or the Pedestrian and Bicycle Information Center, or from a setaside from a funding category (Federal Lands, a new NSHT program, or TE or RTP).
Provide funds for law enforcement for National Scenic and Historic Trails to protect cultural sites, especially Native American sites.
Improve the method to transfer Federal highway program funds to Federal agencies under 23 U.S.C. 132 (Payments on Federal-aid projects undertaken by a Federal agency). Advances should be mandatory at the request of the Federal agency, and not subject to State discretion.
Allow transfers of Federal highway program funds directly to the State Department of Natural Resources rather than passing through the State Department of Transportation.
Reduce environmental compliance and engineering costs for trail projects, especially for nonprofit organizations.
Delegate trail project compliance responsibility to the States.

"Fantasy Reauthorization Language" from a conference participant
NATIONAL TRAIL PRESERVATION AND DEVELOPMENT VISITOR USE
PURPOSE: Promote the preservation and development for public use of the National Scenic and Historic Trails

Bullet Language for consideration:

Up to $5 million per trail per year over 5 years
Requires each trail to complete a development and land protection plan for each county that the trail passes. Each county trail plan will identify:
- Sites and historic trail segments with direct historic association to the trail.
- Visitor use and development opportunities, resource threats, facility development constraints, strategies for land protection, and preservation of historic sites, trail segments, and resources with direct association with the trail.
- Opportunities, alternatives, and a preferred concept for development of new or existing visitor facilities to allow public access and use of the trail and trail sites.
  - Visitor facility development should include the minimum development needed for visitor access, use, understanding, and appreciation of the trail.
  - Types of visitor facilities should include but not necessarily be limited to: retracement trails (NHTs), trailheads, parking areas, signing, visitor and interpretive centers, orientation, and wayside exhibit panels.
- Priorities for visitor facilities development projects
- Priorities for land protection and acquisition strategies
- Cost estimates for proposed visitor facility development
Each county plan will comply with the comprehensive management and use plan for each trail.
Each county plan will be updated at the end of each 5 year period.
Each county plan will be approved by the trail administering agency and recommended by...
Each trail administering agency will develop guidelines and standards for development of a common format for county trail plans and for minimally required trail wide facilities such as signing, wayside exhibits, common trail wide structures, and trail standards.

FACILITY DEVELOPMENT PROJECT FUNDING:

Only projects identified as part of an approved county NHT plan will be eligible for funding and will be funded according to priorities of each plan.
Funded projects will be challenge cost share and require a 50% match.
All projects will be funded based on each county plan priority and according to criteria established by each administering agency.
Funds authorized by this act may be used for completion of county trail plans on a maximum 50% match. The scope of each county plan should be approved by the trail administering agency prior to the start of planning to ensure compliance with agency trail plan guidelines.

State Trail Administrators Meeting, September 2007
Including ideas raised during the review of the draft meeting notes.

The State trail administrators do not want to change the 40-30-30 proportions for diverse, motorized, and nonmotorized trails.
State trail administrators want maximum flexibility for the States, with no added requirements or restrictions.
Some States want to reinstate the waiver provision from the 30 percent requirement for motorized projects. Other States said eliminating the waiver was the only way to guarantee that the motorized users who are paying for the program can be guaranteed a fair share.
State trail administrators oppose program proposals that may reduce funding available for the RTP.
There was unanimous agreement that RTP projects should be exempt from the metropolitan and statewide transportation programming processes (inclusion in the TIP and the STIP). For the RTP, the TIP and STIP processes are a bureaucratic, time-consuming exercise with no public benefit. The USDOT proposed eliminating this requirement in it 2003 SAFETEA Section 1606 proposal .
Most State trail administrators favor increasing the 5 percent available for education. The plurality favors raising the percentage to 7 percent, although many favor 10 percent. Several people noted this would remain a maximum, and each State is free to use less.
State trail administrators do not have consensus on whether or not the RTP permissible uses should be expanded to include local or regional trail planning or trail feasibility studies. Some said RTP funds should be used for on-the-ground trail facilities; planning should use other funds to demonstrate a local commitment. Others said planning studies could ensure trails were proposed where needed and in the correct locations. There are not a lot of funds available for planning or feasibility studies; the Land and Water Conservation Fund has not had reliable or steady funding for the past several years. LWCF funds cannot be used for trail master plans or feasibility studies.
State trail administrators opposed a proposal to allow routine law enforcement as an eligible activity.
FHWA will propose making matching shares more consistent with the rest of the Federal-aid highway program under 23 U.S.C. 120 .
FHWA may consider amendments under donations to be consistent with 23 U.S.C. 323.
RTP funds and obligation authority should be provided directly to the State agency that administers the RTP rather than passing through the State Department of Transportation.
The "transportation vs recreation" distinction for bicycle projects in 23 U.S.C. 217(i) should be eliminated.
If a payback provision is enacted, funds should return to the program from which they came: funds from an RTP project should be returned to the RTP; from a TE project should be returned to TE, etc.
If a trail constructed with RTP funds is converted to a non-trail use, then the converted mileage should be required to be constructed at the same or similar location at the sponsor’s cost. No new RTP funds should be available to build the replacement trail.

Other Issues

FHWA may consider amendments to deal with issues relating to:

Should Federal-aid highway program funds be restricted only to portions of a project that provide a general public benefit, rather than benefiting one or only a few private individuals?
Should there be a specific timeframe for public use, and how should it be calculated? Should this be delegated to the States or should there be a nationwide policy?
Should there be prorated payback provisions for projects that are converted to other uses? How should this be calculated?

Federal-aid Highway Program Authorization 2009: Summary, Explanation, and Comments from Trails and Enhancements Conferences Session Handouts: State Trail Administrators Meeting

Reauthorization Proposals November 2008