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RULE §26.25Memorandum of Understanding with Texas Department of Transportation

  (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

    (C) posting notices with local churches.

  (4) An exhumation project is itself not a type of investigation that requires an outreach effort or curation of materials at a state-certified facility.

(n) Archeological Sites and Cemeteries found after Award of Contract.

  (1) When potential historic properties are identified during implementation of a TxDOT project or unanticipated effects on historic properties are determined, work in the immediate area of the discovery shall cease, and TxDOT shall be notified of the discovery; if appropriate, security measures will be initiated to protect the discovery.

  (2) TxDOT will notify the THC within 48 hours of the discovery.

  (3) For unanticipated discoveries of archeological materials that do not contain human burials, TxDOT will undertake each of the following additional actions:

    (A) TxDOT will verify that the discovery does not contain human burials. As necessary, TxDOT will obtain and perform this investigation under an emergency permit or other appropriate Antiquities Permit category.

    (B) Upon confirmation that the discovery does not contain human burials, TxDOT may allow construction at the site to proceed.

    (C) TxDOT shall complete or update a State of Texas Archeological Site Data Form based on the available information.

    (D) TxDOT will find that the property comprises an archeological historic property.

    (E) TxDOT will develop a mitigation proposal to resolve the adverse effects of the undertaking on the archeological historic property. This proposal shall not necessarily involve any further excavations at the historic property.

    (F) The level of effort described in the proposal shall be commensurate with the nature of the resource, based on the available information.

    (G) TxDOT will develop the proposal in coordination with THC and obtain the appropriate Antiquities Permit for this work.

  (4) For unanticipated discoveries involving human burials, TxDOT shall follow the applicable requirements of the Health and Safety Code, Title 1, Section 711.

    (A) Work may resume in areas outside the boundaries of the cemetery.

    (B) Work may resume in a cemetery area if that cemetery has been removed in compliance with the applicable requirements of the Health and Safety Code, Title 1, Section 711.

(o) Standard Treatments for Particular Resource Types. Isolated wells or cisterns unassociated with other remains will be treated as follows:

  (1) Isolated wells or cisterns that post-date 1900 A.D. do not warrant notification of THC or additional investigation. Removal or sealing of these features does not constitute an adverse effect.

  (2) Isolated wells or cisterns that pre-date 1900 A.D. require research and documentation of their location, construction, condition, and original context. Upon completion of the research and documentation, these features may be backfilled and capped. These activities do not constitute an adverse effect.

(p) Artifact Recovery and Curation.

  (1) Artifact recovery.

    (A) Artifacts or analysis samples (such as soil samples) that are recovered from survey, testing, or data recovery investigations by TxDOT or their contracted agents that address the research questions must be cleaned, labeled, and processed in preparation for long-term curation unless the artifacts or samples are approved by THC for discard under this chapter and Chapter 29 of this title (relating to Management and Care of Artifacts and Collections).

    (B) To ensure proper care and curation, recovery methods must conform to the applicable requirements of this chapter and Chapter 29 of this title.

    (C) Artifacts recovered from underwater testing and data recovery projects require conservation as stated in §26.15 of this title and the conservation facility must be included in the permit application and data recovery plan.

  (2) Artifact curation.


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