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TITLE 13CULTURAL RESOURCES
PART 2TEXAS HISTORICAL COMMISSION
CHAPTER 26PRACTICE AND PROCEDURE
SUBCHAPTER EMEMORANDA OF UNDERSTANDING WITH OTHER STATE AGENCIES
RULE §26.25Memorandum of Understanding with Texas Department of Transportation

    (A) In cases where no archeological sites or cemeteries occur or are likely to occur in some or all of the APE, TxDOT will propose a finding of no effect in those portions of the APE and recommend that the project proceed to construction in those portions.

    (B) In cases where an archeological site occurs within the APE but the portion of the site within the APE does not have characteristics that qualify it as an archeological historic property or is not likely to have such characteristics, TxDOT will propose a determination that the portion of the site in the APE is not an archeological historic property, find that the project will have no effect on archeological historic properties at the site location, and recommend that the project proceed to construction at the location of the site.

    (C) In cases where the portion of a site within the APE has characteristics that qualify it as an archeological historic property, TxDOT will propose a determination that an archeological historic property occurs within the APE.

    (D) In cases where the APE contains an archeological historic property or cemetery, TxDOT will either propose a finding that the project will have no adverse effect on the site or propose a finding that the project will have an adverse effect on the site.

    (E) If a project will have an adverse effect on an archeological historic property or cemetery within the APE, TxDOT will also recommend to THC an appropriate means by which to resolve the adverse effect.

      (i) The resolution of adverse effects may take one of the following forms:

        (I) the avoidance of the site during construction;

        (II) an alternative mitigation strategy, such as the preservation of a comparable site or the re-analysis of an existing collection;

        (III) data recovery excavation or exhumation; or

        (IV) another form of resolution approved by THC.

      (ii) In cases where data recovery is the selected means for resolving adverse effects, TxDOT will coordinate with THC at several stages during the data recovery process according to the following procedures, unless TxDOT and THC agree in writing to different procedures:

        (I) TxDOT will submit an initial data recovery plan as part of a permit application for data recovery to THC for review.

        (II) TxDOT will submit a brief report, documenting whether the fieldwork met the terms of the initial data recovery plan and justifying any deviation, to THC for review. When appropriate, TxDOT will recommend that the project be approved to proceed to construction and destruction of any remaining portion of the site within the APE.

        (III) TxDOT will submit a revised data recovery plan, based on a preliminary review of field data and recovered materials, to THC for review. When appropriate, TxDOT will recommend that the revised plan be adopted for the completion of data recovery analysis and reporting.

        (IV) TxDOT will submit a draft data recovery report to THC for review. When appropriate, TxDOT will recommend that the report be accepted in partial satisfaction of the terms of the permit and in satisfaction of TxDOT's obligations for resolving the adverse effects of the project on the site.

        (V) TxDOT will ensure that data recovery investigations do not begin before the State of Texas' legal right to ownership of the artifacts to be recovered has been secured.

    (F) THC will respond within 20 calendar days of receipt of the TxDOT request for review, in accordance with and pursuant to the terms and conditions set out by an interagency contract executed by THC and TxDOT. This final response will include:

      (i) a statement of concurrence or nonconcurrence with TxDOT's findings and recommendations;

      (ii) a determination of site eligibility for all evaluated sites; and

      (iii) any other comments relevant to the archeological sites or cemeteries which could be affected by the project.

  (6) If THC does not respond within 20 calendar days, TxDOT may assume that THC concurs with TxDOT's findings, determinations, and recommendations and may proceed in accordance with the procedures required in this MOU.

(h) Background Studies for Archeological Sites and Cemeteries.

  (1) For projects subject to review for archeological sites and cemeteries under this MOU, based on the results of background research, TxDOT will identify projects or portions of projects' APEs that require archeological field investigation.

  (2) Eligibility determinations that TxDOT performs under this MOU will not require field investigations if sufficient background information exists to demonstrate that the portion of the site to be affected does not have potential research value.

  (3) Determinations that TxDOT makes under this MOU regarding the presence of cemeteries in project APEs may be made through the use of maps, project-area photographs, or other background research.

(i) Permits for Archeological Sites and Cemeteries. THC shall issue antiquities permits for reconnaissance survey, intensive survey, monitoring, eligibility testing, exhumations, and emergencies to archeological staff at TxDOT under the following terms:

  (1) The archeological staff of TxDOT's Environmental Affairs Division, or its successor as established by TxDOT administration, oversees the work.

  (2) The work shall be completed in accordance with the provisions of the MOU.

  (3) THC shall not require TxDOT to submit an antiquities permit application.

  (4) In lieu of a permit application, TxDOT archeological staff shall notify THC in writing (by email or letter) of:

    (A) the principal investigator;

    (B) the investigation type and scope of work;

    (C) the county in which the project will occur;

    (D) the project name or identifier (site trinomial, if applicable); and

    (E) the period of time for which the permit is desired.

  (5) TxDOT staff may initiate work following notification of THC.

  (6) THC shall issue a permit number within five business days of receiving the notification.

  (7) TxDOT may revise the type of investigation based on observations made during the conduct of work as long as TxDOT provides to THC notification of the change prior to submission of the report.

  (8) TxDOT may determine the appropriate amount of time a Principal Investigator will be in the field for a project based on the complexity of the project. TxDOT Principal Investigators will document their estimated proportion of field time in the corresponding reports of investigations.

  (9) When conditions of natural disasters, man-made disasters, or post-review discovery necessitate immediate action, TxDOT may initiate work under an emergency permit without having first requested and received the permit number subject to each of the following conditions:

    (A) TxDOT staff shall only conduct work under an emergency permit when archeological deposits are discovered during development or other construction projects or under conditions of natural or man-made disasters that necessitate immediate action to deal with the situation and findings.

    (B) TxDOT will provide notification to THC to obtain the permit number within five working days of initiating the work.

    (C) All categories of investigations can be authorized under an emergency permit, but an emergency permit will only be issued under emergency conditions where the investigations must be initiated or performed prior to notification under paragraph (4) of this subsection.

  (10) THC shall consider the work conducted under the permit completed upon receipt of:

    (A) one unbound report;

    (B) two tagged pdf format reports on an archival quality CD or DVD, one containing all maps and locational information and one with maps and locational information redacted;

    (C) a shape file of the project area subject to investigation; and

    (D) a completed abstract form.

  (11) The number of defaulted permits accrued by particular TxDOT staff while working for TxDOT shall not affect the issuance of additional permits to other TxDOT staff by THC for TxDOT projects.

  (12) The inspection of a project APE or proposed APE for purposes of evaluating the kind of archeological investigation that may be required (scoping) shall not constitute an activity that requires a permit from THC when that activity does not result in a report to be coordinated under the terms of the MOU.

  (13) All types of archeological investigations conducted by TxDOT but not covered by this section shall require submission of an antiquities permit application and adhere to the terms of the permit and this chapter with the exception that any permit issued to TxDOT under this paragraph, including data recovery permits, shall not include a requirement for project-specific outreach to be completed as part of the scope of work. TxDOT shall conduct public outreach at a program level regarding its activities under this MOU as specified in subsection (s).

(j) Surveys for Archeological Sites and Cemeteries.

  (1) Surveys may be limited to an evaluation of existing impacts or stratigraphic integrity when these activities are sufficient to determine that any sites present are unlikely to be eligible.

  (2) Eligibility determinations made by TxDOT under this MOU will not require further investigation if TxDOT demonstrates that the portion of the site to be affected is not likely to have sufficient integrity to be eligible.

  (3) For portions of the APE where deposits may retain sufficient integrity for sites to be eligible, TxDOT survey methods will conform with THC's Archeological Survey Standards, underwater survey standards promulgated in 13 TAC 28 (relating to Historic Shipwrecks), or with other appropriate methods, except as provided in subparagraphs (A) and (B) of this paragraph:

    (A) TxDOT reserves the right to depart from published survey standards in cases where it deems appropriate.

    (B) THC reserves the right to review non-standard procedures for their adequacy.

  (4) Survey methods will be considered adequate for the identification of burials and cemetery boundaries when the portions of the APE within 25 feet of a known cemetery have been investigated and the survey included scraping to a depth adequate to determine whether grave shafts or burials occur in the APE.

  (5) A survey to identify burials does not comprise an activity with the potential to cause an adverse effect to a historic property.

(k) Archeological Eligibility Testing Phase.

  (1) Each of the following methods will be employed for test excavations:

    (A) Mechanical trenches will be excavated and profiles documented in order to characterize the area's potential for archeological deposits with sufficient integrity to be eligible to occur at the site.

    (B) The extent of the site within the APE will be sampled through some combination of shovel-testing, column sampling, augering with an auger diameter of not less than 12 inches, surface collection, and geophysical prospection in order to characterize the distribution of archeological materials across the site.

    (C) Additional units will be excavated and screened to evaluate site areas that appear to have the best potential for yielding important data with good integrity, based on the results of previous work.

    (D) The materials analyzed will comprise those materials most likely to contribute important information about prehistory or history.

    (E) TxDOT reserves the right to depart from these methods in cases where it deems appropriate and shall justify deviations in the report.

    (F) Testing procedures conducted for underwater archeological investigations shall be coordinated and approved by THC Marine Archeology Program (MAP)

  (2) Data from test excavation projects shall be made available to qualified researchers.

(l) Archeological Excavation and Data Recovery.

  (1) When appropriate and established in the final research design approved by THC, TxDOT will develop public educational outreach projects for significant data recovery investigations.

  (2) Data from data recovery projects shall be made available to qualified researchers.

  (3) Research designs for underwater excavation and data recovery shall be reviewed and approved by the THC MAP.

(m) Exhumation.

  (1) Exhumation is a form of investigation to resolve the adverse effects of a project on a cemetery.

  (2) Exhumation efforts may be staged as a separate phase of work from burial identification. Following procedures set forth in Texas Health and Safety Code, Chapter 711, exhumation may begin once any required notifications of next of kin or other procedures required by Texas Health and Safety Code, Chapter 711 have been conducted.

  (3) The following tasks represent a sufficient, reasonable and good faith effort to identify remains and any next of kin associated with burials in unknown or abandoned cemeteries:

    (A) making inquiries through the local County Historical Commission;

    (B) posting notices with local news outlets; and

Cont'd...

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