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Conversion of use guidelines


Section 6(f)(3) of the Land & Water Conservation Fund Act of 1965, as amended requires that 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.

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.

The responsibilities cited 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 National Park Service (NPS) acting on behalf of the U.S. Department of the Interior. This mutually agreed to area normally exceeds that actually receiving LWCF assistance in order to assure the protection of a viable recreation entity.

Local sponsors must consult early with the Department of Conservation & Recreation (DCR) when a conversion is under consideration or has been discovered. Early contact allows the DCR to consult with their NPS-LWCF manager from the beginning of the potential conversion process for guidance and to sort out and discuss details of the proposal to avoid mid-course corrections and unnecessary delays.

A critical first step is for the locality, DCR and NPS to agree on the size of the Section 6(f) park land impacted by any converting activity and the suitability of proposed replacement land prior to expenditure of resources on appraisals and required environmental review processes to be undertaken in accordance with NEPA.

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.

The NPS Regional Director has the authority to disapprove conversion requests and/or to reject proposed property substitutions.

Situations that trigger a conversion include but are not limited to:

Property interests are conveyed for private use or non-public outdoor recreation uses.

Non-outdoor recreation uses (public or private) are made of the project area, or a portion thereof, including those occurring on pre-existing rights-of-way and easements, or by a lessor.

Unallowable indoor facilities are developed within the project area without NPS approval, such as unauthorized public facilities and sheltering of an outdoor facility.

Public outdoor recreation use of property acquired or developed with LWCF assistance is terminated.

Situations that may not trigger a conversion if NPS determines that certain criteria are met include:

Underground utility easements that do not impact the use of the land and are restored to original surface conditions. Sponsors should consult with DCR to determine if proposed underground utility easements will trigger a conversion and what steps to follow.

Proposals to construct public facilities, such as recreation centers and indoor pool buildings, within a Section 6(f)(3) protected area where it can be shown there is a gain or increased benefit to the public outdoor recreational opportunity. These proposals must be reviewed by the NPS as a “public facility request”. Local sponsors should consult with the DCR early in the formative stages of developing proposals to construct indoor facilities on Section 6(f)(3) protected land to determine if the action will constitute a conversion of use.

Proposals for "temporary non-conforming uses," that is temporary non-recreation activities of less than a six-month duration within a Section 6(f)(3) protected area, must be reviewed and approved by DCR and the NPS.

Proposals to build sheltered facilities or to shelter existing facilities within a Section 6(f)(3) protected area provided they do not change the overall public outdoor recreation characteristics and otherwise meet the sheltering criteria of the program. Local sponsors must consult with DCR to determine the proper steps to follow.

Proposals for changing the overall outdoor recreation use of a Section 6(f)(3) area from that intended in the original LWCF project agreement. These proposals must be reviewed by DCR and the NPS before any changes are made.

Prerequisites to the NPS consideration of conversions

Formal requests for permission to convert LWCF assisted properties in whole or in part must be submitted in writing by the locality with jurisdiction over the LWCF area to DCR for review and approval prior to submission to the NPS by the State Liaison Officer (SLO).Requests must conform to the prerequisites set forth in 36 CFR 59.

Localities should consult with DCR early in the planning of activities that will trigger a conversion to allow DCR to consult with NPS prior to making the formal request to NPS. When unauthorized conversions are discovered, steps must begin immediately for resolving the impact.

All conversion proposals must prepare a Proposal Description and Environmental Screening Form (PDESF), environmental assessment, appraisals and metes and bounds maps as part of the conversion process. All expenses associated with the development of these documents are the sole responsibility of the project sponsor/locality with jurisdiction over the LWCF area.

The PDESF guides the development of the conversion proposal and includes the following prerequisites that must be met before NPS will consider the formal conversion request:

  1. All practical alternatives to the conversion have been evaluated and rejected on a sound basis.
  2. The fair market value of the property to be converted has been established and the property proposed for substitution is of at least equal fair market value as established by an approved appraisal (see appraisal guidance) excluding the value of structures or facilities that will not directly enhance its outdoor recreation utility.
  3. The property proposed for replacement is of reasonably equivalent usefulness and location as that being converted. Depending on the situation, and at the discretion of the NPS, the replacement property need not provide identical recreation experiences or be located at the same site, provided it is in a reasonably equivalent location. Generally, the replacement property should be administered by the same political jurisdiction as the converted property. Equivalent usefulness and location will be determined based on the following criteria:
    1. Property to be converted must be evaluated by the SLO/ASLO in order to determine what recreation needs are being fulfilled by the facilities which exist and the types of outdoor recreation resources and opportunities available. The property being proposed for substitution must then be evaluated in a similar manner to determine if it will meet recreation needs that are at least like in magnitude and impact to the user community as the converted site. This criterion is applicable in the consideration of all conversion requests with the exception of those where wetlands are proposed as replacement property.
      Wetland areas and interests therein shall be considered to be of reasonably equivalent usefulness as compared to the recreational usefulness of the property proposed for conversion if they have been identified in the wetlands provisions of the Statewide Comprehensive Outdoor Recreation Plan (SCORP) in accordance with Section 6(f)(3) of the LWCF Act as amended (36 CFR 59.3) by Section 303 of the Emergency Wetlands Resources Act of 1986.
    2. Replacement property need not necessarily be directly adjacent to or close by the converted site. This policy provides the administrative flexibility to determine location recognizing that the property should meet existing public outdoor recreation needs. While generally this will involve the selection of a site serving the same community or area as the converted site, there may be exceptions. For example, if property being converted is in an area undergoing major demographic change and the area has no existing or anticipated future need for outdoor recreation, then the project sponsor should seek to locate the substitute area at another location within the jurisdiction.
  4. The property proposed for replacement meets the eligibility requirements for LWCF assisted acquisition. The replacement property must constitute or be part of a viable recreation area. Viability and recreational usefulness is dependent upon the proposed outdoor recreation development plan and timetable for the development of the replacement parks. If full development of the replacement site(s) will be delayed beyond three years from the date of conversion approval, the conversion proposal shall explain why this is necessary. Unless each of the following additional conditions is met, land currently owned by another public agency may not be used as replacement land for land acquired as part of an LWCF project:
    1. The replacement land was not originally acquired by the sponsor or selling agency for recreation.
    2. The replacement land has not been previously dedicated or managed for recreational purposes while in public ownership.
    3. No federal assistance was provided in the replacement land’s original acquisition unless the assistance was provided under a program expressly authorized to match or supplement LWCF assistance.
    4. Where the project sponsor acquires replacement land from another public agency, the selling agency must be required by law to receive payment for the land so acquired.
  5. In the case of Section 6(f)(3) protected areas that are partially rather than wholly converted, the impact of the converted portion on the remaining area shall be considered. If such a conversion is approved, the unconverted area must remain recreationally viable or be replaced as well.
  6. All necessary coordination with other federal agencies has been satisfactorily accomplished including, for example, compliance with Section 4(f) of the Department of Transportation Act of 1966.
  7. The guidelines for environmental review under NEPA have been satisfactorily completed. In cases where the proposed conversion arises from another federal action NPS final review of the conversion proposal shall not occur until the NPS is assured all environmental review requirements for the other federal action have been met, e.g., Army Corps of Engineer permits.

The environmental review process must analyze not only the Section 6(f)(3) area proposed for conversion, but also the development of the replacement parkland. The purpose and scope of the environmental review must focus on the impacts on the “human environment” resulting from the loss of the Section 6(f)(3) parkland, impacts on any remaining Section 6(f)(3) parkland for partial conversions, and the development of new Section 6(f)(3) replacement park(s). The scope of the environmental review should not include impacts of the action precipitating the conversion on resources beyond the Section 6(f)(3) boundary, such as impacts of a new housing development or a school on a neighborhood.

The environmental analysis must be conducted in a neutral and factual manner and result in statements that reflect this same neutrality so the interested and affected public can focus on and understand the details of the proposed federal action of converting parkland including the replacement of new parkland according to 36 CFR 59. The environmental analysis documents should not include statements that promote or justify the action precipitating the conversion, such as proclaiming that the subject parkland is the best location for a new fire station.

For questions regarding the process, please contact DCR.

Conversion proposal documentation

The formal conversion proposal submission must include the following items:

A transmittal letter briefly describing the conversion proposal and requesting DCR and NPS review and approval.

PDESF including Step 4, the environmental screening form, and an environmental assessment document analyzing the entire conversion proposal (the converted parkland and the replacement parkland in one document). All associated expenses for the development of the PDESF and environmental assessment are the sole responsibility of the sponsor.

Appraisals to Uniform Appraisal Standards for Federal Land Acquisition (UASFLA) on the converted area and replacement area. (The appraisals are required to be sent to an independent appraiser for certification to UASFLA standards and concurrence with valuation of properties. All associated expenses for both the appraisals and the certification review are the sole responsibility of the sponsor.

Two Section 6(f)(3) metes and bounds map for both the remaining parkland resulting from a partial conversion, and for the replacement site(s).

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.

Discovering unauthorized conversions

When it is discovered that a Section 6(f)(3) area has been converted without NPS approval, a conversion of use process must be immediately initiated so that a conversion proposal can be submitted and reviewed by NPS for retroactive action. An unauthorized conversion causes the locality and the Commonwealth to be in violation of the Land & Water Conservation Act and places the Commonwealth’s eligibility for funding at risk .

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 both DCR and NPS to review the conversion proposal as set forth above including the provision of suitable replacement property.

Failure to take steps to enforce this procedure shall be considered cause for DCR/NPS to apply penalty options. Penalty options pursuant to 43 CFR Part 12.83, include withholding of payment of federal funds on active grants, withhold approval of further projects, and other action deemed appropriate under the circumstances.