November 2011 - Parks & Recreation - 36

LAW REVIEW continued from page 33

According to the National Park Service (NPS) website, LWCF has appropriated over $3.6 billion for more than 40,000
projects to support acquisition of open
space for park lands or the development
of outdoor recreation facilities in every
U.S county, and almost all localities. LWCF
grants have been matched 50/50 by state
and local contributions, for a total LWCF
grant investment of $7.2 billion. States have
received about 8,300 grants and counties
some 5,300, while cities, towns, and other
local agencies matched more 26,000.
Of the total number of LWCF projects,
about 10,500 have helped states and localities to acquire some 2.6 million acres
of park land. Almost 29,000 projects have
been for the development of outdoor recreation facilities. Seventy-five percent
of the total funds obligated have gone
to locally sponsored projects to provide
close-to-home recreation opportunities.
In addition to thousands of smaller recreation areas, grants have helped to acquire and develop new parks of statewide
or national significance.
With or without future appropriations in
the federal budget, the LWCF legacy is under siege. Public recreation resource values and opportunities already acquired
through LWCF grants are constantly
threatened and may be lost through unauthorized conversions. Once acquired or
developed with LWCF assistance, sometimes years later, public park and recreation areas are often subject to increasing
political pressure to convert these lands
to other uses, in particular public and private economic development projects. Local community organizations and citizen
groups must, therefore, be vigilant and
knowledgeable in the LWCF law, regulations, and process to ensure the states
and NPS fulfill their contractual and legal
obligation to protect LWCF project public
outdoor recreation values in perpetuity. A
list of LWCF projects by state and county
is available at http://waso-lwcf.ncrc.nps.
gov/public/index.cfm
When public outdoor recreation resources have been acquired or developed with an LWCF grant, the LWCF

34	 Parks & Recreation   N O V E M B E R

LWCF has appropriated over $3.6 billion
for more than 40,000 projects to support
acquisition of open space for park lands or the
development of outdoor recreation facilities in
every U.S county, and almost all localities.
provides some procedural safeguards
against the threat of conversion to another use. In so doing, when land has been
acquired or developed with LWCF assistance, the LWCF may provide some leverage to park and recreation advocates to
challenge plans by their own local government to convert local park resources
to something inconsistent with the values
and terms of the original LWCF grant.
Section 6(f)(3) is a core compliance
provision of the LWCF. Section 6(f)(3) " ensures that once a property is assisted by
an LWCF grant, it shall be preserved in
perpetuity for public outdoor recreational
use-or replaced by a substitute property
of equal value, usefulness, and location " :
No property acquired or developed
with assistance under this section shall,
without the approval of the Secretary
[of the Interior], be converted to other
than public outdoor recreation uses.
The Secretary [of the Interior,
through the National Park Service] shall
approve such conversion ... only upon
such conditions as he deems necessary
to assure the substitution of other recreation properties of at least equal fair
market value and of reasonably equivalent usefulness and location. 16 U.S.C.
§ 460l-8(f)(3).

Once infused with a LWCF grant, the
benefited property is then governed by
LWCF post-grant processes found in
Title 36 of the Code of Federal Regulations, Part 59. Section 59.3 emphasizes
the centrality of LWCF § 6(f)(3). Section
59.3(c), more critically, details the procedural steps of conversion if a state wishes to designate a property for something
other than public outdoor recreation, notwithstanding the LWCF investment.
In such a contingency, the State must
evaluate " all practical alternatives to
the proposed conversion, " determine
the fair market values of the property to
be converted and the replacement

2 0 1 1    w w w . N R P A . O R G

property, and satisfy the criteria for replacement properties.

Finally, §59.3(d) reiterates that, even
with regard to proposed changes from
one LWCF-eligible use to another, changes to other than public outdoor recreation use within the context of the original
LWCF grant agreement require NPS approval and the substitution of replacement
land in accordance with Section 6(f)(3).

Keep the Promise
In the case of Brooklyn Heights Association v. National Park Service, 11-CV-226
(ENV)(VVP), 2011 U.S. Dist. LEXIS 74642
(E.D. N.Y. 7/11/2011), plaintiffs Brooklyn
Heights Association, Inc., the Fulton Ferry Landing Association, the New York
Landmarks Conservancy and the Preservation League of New York State (hereinafter referred to collectively as " BHA " )
alleged NPS had violated Section 6(f)
(3) of the LWCF in " revising " the original LWCF project map more than five
years after a LWCF State grant had been
awarded to develop a state park. This revision effectively removed historic structures, including the Tobacco Warehouse
and Empire Stores, from the procedural
requirements and safeguards under Section 6(f)(3) of the LWCF.
Located along the East River waterfront between the Brooklyn and Manhattan Bridges, Empire-Fulton Ferry State
Park (EFFSP) was established in 1978 and
completed in 1987 by the New York State
Office of Parks, Recreation, and Historic
Preservation (OPRHP). In 2001, OPRHP
had successfully applied for LWCF assistance to benefit EFFSP. The stated
purpose of the project was to make improvements to the " Cove Area " along the
waterfront, stabilizing the shoreline, preventing erosion, and constructing a new
path along the river. As of the 2001, the
LWCF project map for EFFSP included the
Tobacco Warehouse and Empire Stores.
November 2011 - Parks & Recreation

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