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Official Opinion 93-3

Official Opinion 93-3

February 1, 1993
To: 

Commissioner

Department of Transportation

Re: 

Authority of the Department of Transportation to Expend Federal Money on Transportation Enhancement Projects

Your recent letter requests my official opinion on whether the Department of Transportation is authorized to expend federal funds on Transportation Enhancement projects as defined in Section 1007(c) of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA).  From discussions with your staff it is my understanding that these federal funds are included in the funds authorized for expenditure in the State of Georgia by the Secretary of Transportation. For the reasons which follow, it is my official opinion that the Code of Public Transportation, O.C.G.A. § 32-1-1, et seq., does not provide the Department of Transportation with the authority to expend these Transportation Enhancement funds on transportation enhancement activities unless those activities are for public road or other transportation purposes.

Transportation enhancement [*2]  activities are defined by 23 U.S.C. § 101(a) as follows:

The term 'transportation enhancement activities' means, with respect to any project or the area to be served by the project, provision of facilities for pedestrians and bicycles, acquisition of scenic easements and scenic or historic sites, scenic or historic highway programs, landscaping and other scenic beautification, historic preservation, rehabilitation and operation of historic transportation buildings, structures or facilities (including historic railroad facilities and canals), preservation of abandoned railway quarters (including the conversion and use thereof for pedestrian or bicycle trails), control and removal of outdoor advertising, archaeological planning and research, and mitigation of water pollution due to highway runoff.

The State of Georgia is authorized to receive "any of the federal aid funds apportioned by the federal government under 23 U.S.C. and to receive any other federal funds apportioned to the State of Georgia for public road and other public transportation purposes" by O.C.G.A. § 32-5-1(a).  The Department of Transportation is "the proper agency of the state to discharge all duties imposed [*3]  on the state by any act of Congress alloting federal funds to be expended for public road and other transportation purposes. . . ." O.C.G.A. § 32-2-2(a)(7).

Clearly some transportation enhancement activities are currently authorized by state law and could be accomplished using a combination of motor fuel tax funds and federal funds. For example, the Department could acquire scenic easements, since a "scenic easement" is a right included in the definition of "public road" by O.C.G.A. § 32-1-3(24) and therefore is among those "public road purposes" for which the Department could expend motor fuel tax funds.  O.C.G.A. § 32-3-1(a).

Other transportation enhancement activities, such as the control and removal of outdoor advertising, also come within the statutory authority of the Department, pursuant to O.C.G.A. § 32-6-70, et seq., although there are restrictions on the use of state funds for such activities.  See O.C.G.A. §§ 32-6-82, 86.  Provision of facilities for pedestrians and bicycles might also be accomplished, within the limitations described in Op. Att'y Gen. 73-133, which prohibit the use of motor fuel tax funds for such purposes.  Whether or not certain transportation [*4]  enhancement activities -- the acquisition of scenic or historic sites, scenic or historic highway programs, landscaping and other scenic beautification, preservation of abandoned railway corridors (including the conversion and use thereof for pedestrian or bicycle trails), archaeological planning and research, and mitigation of water pollution due to highway runoff -- may be authorized by the powers currently given the Department of Transportation by the Code of Public Transportation will depend on the particular factual circumstances involved with each proposed activity.

However, your question in particular relates to the "historic preservation, rehabilitation and operation of historic transportation building structures or facilities (including historic railroad facilities and canals)." While circumstances may exist in particular cases which would bring such "transportation enhancement activities" within the scope of the powers granted the Department of Transportation, I do not think that the Department, as a general rule, has authority to participate in such activities.

The Department is given authority to acquire property for "present or future public road or other transportation [*5]  purposes." O.C.G.A. § 32-3-1(a).  Those activities which might constitute "public road" purposes are defined in O.C.G.A. § 32-1-3(24), and that extensive list does not include historic preservation, rehabilitation or operation of historic transportation buildings, structures or facilities.  O.C.G.A. § 32-1-3(18) states:

'Other transportation purposes' or 'other public transportation purposes' means any transportation facility designed to transport people or goods, including but not limited to railroads, port and harbor facilities, air transport and airport facilities, mass transportation facilities, as defined in paragraph (2) of subsection (a) of Code Section 32-9-1, and transportation projects, as defined by subsection (h) of section 2 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended.

The statutory references contained in this definition are to the Department's authority with regard to mass transportation projects, contained in O.C.G.A. § 32-9-1, et seq., and to the Metropolitan Atlanta Rapid Transit Authority, created by Ga. L. 1965, p. 2243.  However, nothing with the definition of "other transportation purposes" or "other public transportation purposes"  [*6]  would extend to the preservation, rehabilitation and operation of a historic transportation building or structure, where the operation of that building or structure would not be in connection with the operation of a transportation facility.

For these reasons it is my official opinion that the Department of Transportation may expend federal and state funds on transportation enhancement activities as defined in 23 U.S.C. § 101(a) in those instances where the Code of Public Transportation gives the Department of Transportation the authority to expend such funds, but it is my official opinion that the Department of Transportation has no authority to expend federal or state money on historic preservation, rehabilitation and operation of historic transportation buildings, structures or facilities (including historic railroad facilities and canals) where such buildings, structures or facilities are not being acquired for transportation purposes.

Prepared by:

George P. Shingler

Senior Assistant Attorney General