|(a) Purpose and Authority. This section contains the
memorandum of understanding (MOU) entered into by the Texas Historical
Commission (THC) and the Texas Department of Transportation (TxDOT)
in accordance with Texas Government Code, §442.005 and §442.007;
Texas Natural Resources Code, §191.0525(f); and Transportation
Code, §201.607. The purpose of this MOU is to provide a formal
mechanism for expediting THC review of TxDOT's transportation projects
that potentially pose adverse effects on cultural resources. This
MOU supersedes the previous MOU made effective on May 20, 2013.
(1) Except as provided in paragraph (2) of this subsection,
this section generally applies to:
(A) a transportation project for which an environmental
review is being or will be performed under 43 TAC Chapter 2 (relating
to Environmental Review of Transportation Projects); or
(B) any other type of project coordinated by TxDOT
in compliance with the requirements of this section.
(2) Work in TxDOT right-of-way that is not associated
with a project for which TxDOT is the project sponsor under 43 TAC §2.7
(relating to Texas Department of Transportation, Environmental Review
of Transportation Projects, General Provisions) is the responsibility
of the project sponsor and not of TxDOT (see Texas Natural Resources
Code §191.0525). The project sponsor is responsible for coordinating
directly with THC for such work. Examples of projects that will be
coordinated by the non-TxDOT project sponsor directly with THC include
but are not limited to:
(A) on-system highway projects funded entirely with
(B) utility relocations or installations within TxDOT
right-of-way sponsored by other entities; and
(C) driveway and access connections sponsored by other
(3) TxDOT transportation projects may be coordinated
with THC outside the terms of this MOU with notification of THC.
(c) Definitions. The following words and terms, when
used in this section, shall have the following meanings, unless the
context clearly indicates otherwise.
(1) Antiquities permit--A permit issued by THC in order
to regulate the taking, alteration, damage, exhumation, destruction,
salvage, archeological survey, testing, excavation and study of State
Antiquities Landmarks including prehistoric, historic and underwater
archeological sites, and the preservation, rehabilitation, restoration,
reconstruction, architectural investigation, hazard abatement, relocation,
demolition, or new construction related to historic structures and
buildings designated as a State Antiquities Landmark).
(2) Area of potential effects (APE)--The geographic
space or spaces within which a project may cause changes in the character
or use of historic properties, if any such properties exist.
(A) The area of potential effects for archeological
properties will be confined to the limits of the proposed project
right of way (including permanent and temporary easements), utility
relocations designated by TxDOT, and project-specific locations designated
by TxDOT. The area of potential effects also extends to the depth
of impacts caused by the undertaking.
(B) The area of potential effects for non-archeological
historic properties will be confined to the limits of the proposed
project right of way (including permanent and temporary easements),
utility relocations designated by TxDOT, and project-specific locations
designated by TxDOT.
(3) Cultural resources--A general term referring to
cemeteries; buildings; structures; objects; archeological sites, including
shipwrecks; and districts more than 50 years of age with the potential
to have significance in local, state, or national history.
(4) Effect--Alteration to the characteristics of a
historic property qualifying it for formal designation as a State
(5) Eligibility--A property's eligibility for designation
as a State Antiquities Landmark, as set forth in this chapter.
(6) Emergency Permit--A permit that may be used by
TxDOT under certain emergency circumstances for the purposes of performing
investigations prior to formal application for an antiquities permit.
(7) Historic property--Any prehistoric or historic
district, site, building, structure, or object that meets the requirements
for designation as a State Antiquities Landmark as set forth in this
(8) Minor widening--Roadway projects resulting in pavement
profile widened to less than double their original width, resulting
from adding travel/center-turn lanes or paved shoulders.
(9) Project-specific location--The location of specific
material sources (e.g., base material, borrow and sand pits) and other
sites used by a construction contractor for a specific project.
(10) State Antiquities Landmarks (SAL)--Both Archeological
and Non-archeological historic properties that are designated as landmarks
as defined in Subchapter D of the Antiquities Code of Texas (Texas
Natural Resources Code, Chapter 191), or treated as landmarks under
the interim protection described in §26.8(d) of this title (relating
to Designation Procedures for Publicly Owned Landmarks), and identified
in accordance with this chapter.
(11) THC--Texas Historical Commission.
(12) Transportation project--A project to construct,
maintain or improve a highway, rest area, toll facility, aviation
facility, public transportation facility, rail facility, ferry, or
ferry landing. A transportation enhancement project funded under 23
USC 133(h) is also a transportation project.
(13) TxDOT--Texas Department of Transportation.
(d) Coordination Responsibilities.
(1) TxDOT. The coordination responsibilities of TxDOT
under this MOU are defined as follows.
(A) All coordination required by this MOU shall be
conducted by or through TxDOT's Environmental Affairs Division or
its successor as established by TxDOT administration, unless the Environmental
Affairs Division (or its successor) and THC agree in writing to allow
other appropriate organizational units of TxDOT or other entities
approved by the respective agencies to conduct the coordination.
(B) TxDOT shall not be a signatory to any permit issued
by THC to another entity for work on a project funded or sponsored
by such other entity.
(2) THC. The coordination responsibilities of THC under
this MOU are to conduct any review required by this section in an
efficient manner, to provide timely feedback to TxDOT about projects
coordinated under this section, and to apply any funding provided
by TxDOT solely to the review of TxDOT's projects in a manner that
most efficiently streamlines THC's effective review and early coordination.
(e) Qualifications of Staff and Use of Consultants.
(1) All cultural resource investigations executed under
the terms of this MOU shall be implemented by staff who meet the requirements
for Professional personnel as designed and set forth in this chapter;
or the Secretary of the Interior's Professional Qualification Standards
36 C.F.R Part 61, Appendix 6) and qualified and eligible to receive
an Antiquities Permit..
(2) TxDOT has the right to perform cultural resource
investigations using staff or consultants who meet the professional
standards cited in paragraph (1) of this subsection.
(3) Cultural resource surveys, investigations, permit
applications, and other work performed by consultants shall be coordinated
with THC by or through TxDOT's Environmental Affairs Division, or
its successor as established by TxDOT administration, unless it and
THC agree in writing to allow other appropriate organizational units
of TxDOT or other entities approved by the respective agencies to
coordinate the work.
(f) Projects Excluded from Review for Archeological
Sites and Cemeteries.
(1) Projects with ground disturbance of less than 100
cubic yards of impacts to undisturbed sediments, by their nature and
definition, do not have the potential to affect historic properties.
Such projects do not require review of their potential project impacts
on archeological resources or cemeteries by THC under this chapter
or under this MOU. The following list provides examples of activities
with this low level of new disturbance that do not require review
of their potential impacts on archeological resources or cemeteries
under this chapter or under this MOU:
(A) installation, repair, or replacement of fencing,
signage, traffic signals, railroad warning devices, safety end treatments,
cameras and intelligent highway system equipment;
(B) projects involving purchase or acquisition of land
without associated ground-disturbing activities;
(C) routine structural maintenance and repair of bridges,
highways, railroad crossings, picnic areas, and rest areas;
(D) in-kind repair, replacement of lighting, signals,
curbs and gutters, and sidewalks;
(E) crack seal, overlay, milling, grooving, resurfacing,
(F) replacement, upgrade, and repair of safety barriers,
ditches, storm drains, and culverts;
(G) intersection improvements, including repair or
replacement of overpasses, that require less than 0.5 acres of additional
right of way at each intersection;
(H) placement of riprap to prevent erosion of waterway
banks and bridge piers provided no ground disturbance is required;
(I) all maintenance work between a highway and an adjacent
(J) installation of noise barriers or alterations to
existing publicly owned buildings less than 50 years old, to provide
for noise reduction except in potential or listed National Register
(K) driveway and street connections;
(L) all work within interchanges and within medians
of divided highways;
(M) all work between the flowlines of the ditches and
channels and above the original line and grade;
(N) ditch and channel maintenance, provided removal
of fill is above the original line and grade;
(O) repairs needed as a result of an event, natural
or man-made, which causes damage to a designated state highway, resulting
in an imminent threat to life or property of the traveling public
or which substantially disrupts or may disrupt the orderly flow of
traffic and commerce;
(P) the installation and modification of sidewalks
(including the addition of American with Disabilities Act (ADA) ramps)
(i) sidewalk installations where the depth of impact
exceeds one foot;
(ii) sidewalk and ADA ramp projects within the historic
districts in the following cities or towns: Goliad, Rio Grande City,
Roma, San Antonio, San Elizario, and San Ygnacio; and
(iii) sidewalk or ADA ramp projects within the limits
of the following cities or towns: Anahuac, Nacogdoches, San Patricio,
(Q) routine maintenance projects;
(R) vegetation control
(S) traffic control; and/or
(T) routine painting and striping.
(2) Design changes for projects that have completed
all applicable review and consultation where the new activities would
have less than 100 cubic yards of impacts to undisturbed sediments
do not require additional review or coordination. or
(3) Projects that are exempt from project-specific
review for compliance with this chapter and review under this MOU,
as specified in paragraphs (1) and (2) of this subsection, are also
exempt from compliance with other THC rules regarding project-specific
investigations or coordination for potential impacts to cemeteries
promulgated under Texas Health and Safety Code, §711.012(c),
unless one of the following two conditions is present:
(A) pavement would be extended to within 15 feet of
the boundary of a known cemetery founded earlier than 1955; or
(B) a project element would directly affect known burials.
(g) Procedures for Project Coordination when the Project
Requires Review for Archeological Sites and Cemeteries.
(1) For projects subject to review for archeological
sites and cemeteries under this MOU, TxDOT will evaluate the APE for
potential project effects to archeological historic properties and
to determine whether the APE contains cemeteries. TxDOT must make
reasonable efforts and act in good faith when complying with this
(2) TxDOT may approve projects to proceed to construction
without review by THC when TxDOT staff finds that the project will
not affect archeological historic properties and the project APE will
not contain cemeteries.
(3) TxDOT will submit projects to THC for review when
TxDOT staff finds the project may affect archeological historic properties
or the project APE contains cemeteries. TxDOT may, at its discretion,
submit projects for THC review in cases where TxDOT staff finds that
the project will not affect archeological historic properties, and
the project APE does not contain cemeteries.
(4) In cases where TxDOT seeks comment from THC on
proposed identification and/or evaluation methods, TxDOT will recommend
one or more methods.
(5) In its request for review TxDOT will make one or
more of the following findings, determinations, and recommendations: