| (a) Introduction. It is the public policy and in the
interest of the State of Texas to locate, protect, and preserve archeological
sites and historic properties situated on public lands. Furthermore,
it is in the public interest to enter into agreements to provide for
timely and efficient construction of transportation facilities, reservoirs,
public buildings, parks, and infrastructure. Memoranda of Understanding
(MOU) and Memoranda of Agreement (MOA) are formal agreements which
provide for the preservation of environment and cultural resources;
wise, productive use of the cultural and natural resources; good stewardship
of publicly owned landmarks; and protection of public and private
investment in historic preservation.
(b) Primary Considerations and Stipulations. All agreements
are subject to this chapter. Primary considerations in the development
of permit specific memoranda shall include the significance of the
cultural resource(s), and the nature of the impact of the project
on the cultural resource(s). The memoranda will stipulate basic information
related to the data recovery program for each permitted project, including,
but not limited to: the significance of the area to be excavated;
the methods and techniques to be employed; the coordination of the
excavation with project construction schedules; and the estimated
budget for all phases of work related to the investigation, including
artifact analysis and report production. Memoranda of Understanding
between the Texas Historical Commission (THC) and the Texas Parks
and Wildlife Department (TPWD) follow.
(c) TPWD will comply with the provisions of this section.
For the purpose of this section, "TPWD lands" means lands owned or
under the control of TPWD.
(1) General Provisions.
(A) TPWD shall:
(i) require that all archeological investigations on
TPWD lands are conducted under Antiquities Permits obtained by persons
who meet THC requirements for principal investigator as listed in §26.4
of this title (relating to Professional Qualifications and Requirements);
(ii) notify the THC of pending construction and maintenance
projects in accordance with all applicable provisions of this section;
(iii) perform and report on construction monitoring,
archeological surface reconnaissance, and intensive cultural resource
surveys on TPWD lands, in accordance with all applicable provisions
of this section; and
(iv) notify THC when cultural resources are discovered
on TPWD lands.
(B) THC will issue an annual Antiquities Permit for
investigations on TPWD lands to the TPWD Cultural Resources Program
Director by January 15th of each year that this MOU is in effect,
upon a finding by THC of successful completion by TPWD of the annual
Antiquities Permit issued two years before that date.
(C) This MOU may be revised and amended upon the agreement
of TPWD and THC.
(2) THC Archeological Review of Proposed Projects on
TPWD Lands.
(A) Projects reviewed by THC. Construction or maintenance
projects on TPWD lands that impact the ground surface or subsurface
shall be submitted for THC review prior to project inception, when
the project:
(i) impacts a total or cumulative area of potential
effect greater than ten (10) acres and involves construction or maintenance
activities in areas where similar activities have not occurred before;
(ii) consists of disking, plowing, or other periodic
activities impacting a total or cumulative area of potential effect
greater than 120 acres, even if similar activities have occurred in
that area before;
(iii) is new or replacement fence construction that
involves new fence line roads, fire lanes, bulldozing, or other ground-disturbing
activities aside from post holes and impacts a total or cumulative
area of potential effect greater than ten (10) acres;
(iv) is grading or maintenance of a road or fire break
when the road or fire break, water diversion features, and/or its
ditches will be lengthened, widened, or deepened beyond previous disturbance
from construction and/or maintenance holes and impacts a total or
cumulative area of potential effect greater than ten (10) acres;
(v) involves activities related to prescription burning
of any kind that disturb the ground surface or subsurface in areas
larger than ten (10) acres where similar activities have not occurred
before; or
(vi) is any type of project not described in subparagraph
(B) of this paragraph.
(B) Projects not reviewed by THC. Construction or maintenance
projects on TPWD lands that result in no impact to the ground surface
or subsurface will not be reviewed by THC prior to project inception.
In addition, construction or maintenance projects on TPWD lands that
result in impact to the ground surface or subsurface will not be reviewed
by THC prior to project inception when the project:
(i) impacts a total or cumulative area of potential
effect of five acres or less;
(ii) consists of disking, plowing, or other periodic
activities impacting a total or cumulative area of potential effect
of less than 120 acres where similar activities have occurred before;
(iii) is new or replacement fence construction that
does not involve new fence line roads, fire lanes, bulldozing, or
other ground disturbing activities aside from post holes and impacts
a total or cumulative area of potential effect greater than ten (10)
acres;
(iv) is grading, disking, or other maintenance of a
road or fire break when the road or fire break, related water diversion
features, and/or its ditches will not be lengthened, widened, or deepened
beyond previous disturbance from construction and/or maintenance holes
and impacts a total or cumulative area of potential effect greater
than ten (10) acres; or
(v) is prescription burning or hand clearing of any
kind that does not disturb the ground surface, historic structures,
and/or rock art.
(C) Prior THC approval of ground-disturbing projects.
Projects that involve continuing impacts of the same nature and extent
approved by THC need not be reviewed again if no archeological sites
have been recorded within those project areas. THC will review continuing
impacts of the same nature and extent in areas where archeological
sites are present at 10 year intervals from the original date of approval
to proceed.
(D) TPWD review of projects. TPWD will review all projects
that have the potential to impact cultural resources. Notwithstanding
the provisions of this subparagraph, TPWD may elect to initiate archeological
investigations when proposed projects have the potential to impact
cultural resources, on the recommendation of the Cultural Resources
Program Director.
(E) TPWD will provide cultural resources training to
State Parks and Wildlife Management Area personnel. On the direction
of the Cultural Resources Program Director (CRPD), Wildlife Facilities
Coordinator (WFC), or their designees, TPWD personnel who have received
cultural resources training within the past 5 years may observe construction
and maintenance activities, to ensure that cultural resources are
considered during TPWD activities. If any archeological sites are
revealed by such activities, TPWD personnel will report them to the
CRPD, WFC, or their designees.
(3) Procedures for Proposed Projects.
(A) Notification to THC of proposed projects. TPWD
shall send THC written or electronic notification no less than 30
days in advance of proposed projects that require review under paragraph
(2)(A) of this subsection, and/or Section 106 of the National Historic
Preservation Act (16 U.S.C. §470f). In rare cases when a response
from THC is needed in less than 30 days, notification may be made
by telephone or electronic mail, with a written or electronic notification
to follow. Project review requests concerning Wildlife Management
Areas shall be directed to THC through the WFC or their designee,
and project review requests concerning State Parks and other TPWD
properties shall be directed to THC through the CRPD or their designee.
Each notification must include information on:
(i) the type of project that is proposed, including
the nature and extent of its impacts;
(ii) any prior impacts that have affected the project
area;
(iii) locational data for the project area and any
known archeological sites in the vicinity; and
(iv) any known archeological sites and/or archeological
investigations within the proposed project area.
(B) THC response to project review requests. THC shall
respond in writing (hard copy or electronic format) to each project
review request within 30 days of its receipt. Archeological investigations
may be deemed necessary by THC as a result of this review. If THC
does not respond to TPWD within that period of time, TPWD may proceed
with internal authorization of the proposed project without further
notice to THC.
(C) THC approval of proposed projects. When THC concurs
with a finding of a qualified TPWD archeologist or archeologist contracted
by TPWD that no archeological sites are located in a proposed construction
area or that a proposed project will not adversely impact cultural
resources, TPWD may proceed with the project on receipt of written
concurrence (hard copy or electronic format) from THC.
(D) Archeological site evaluation. When a qualified
TPWD archeologist or archeologist contracted by TPWD identifies an
archeological site or sites in a proposed project area, he or she
will evaluate whether each site appears to merit official State Antiquities
Landmark designation under §26.10 of this title (relating to
Criteria for Evaluating Archeological Sites).
(E) Protection of significant sites. If adverse impacts
to an archeological site(s) can be avoided during construction, the
archeologist will mark the site in the field and TPWD personnel will
not damage that area or a TPWD archeologist will provide GIS data
to field staff who will mark the archeological site for protection.
If TPWD conducts vegetation clearing on significant archeological
sites, it shall be done by hand to avoid damage to the site. On-site
decisions made by TPWD archeologists regarding protective measures
for archeological sites will be respected by TPWD employees and contractors,
and will balance the need to conserve significant sites with timely
project completion.
(F) Mitigation of impacts to significant sites. If
an archeological site that merits official State Antiquities Landmark
designation would be adversely impacted by a proposed project, TPWD
will propose mitigation measures and request THC consultation and
recommendations. If TPWD or THC ascertains that further investigations
are necessary prior to or during a construction or maintenance project,
these investigations must be performed before the project may proceed.
(G) Archeological site discovery. Whenever cultural
resources are discovered on TPWD lands, they will be reported to the
CRPD, WFC, or their designees, who will report this information to
THC and maintain central repositories of cultural resource information.
(4) THC Review and Coordination of Third Party Projects
on TPWD Lands.
(A) TPWD will ensure that archeological investigations
conducted on TPWD lands on behalf of other entities promote the identification
and conservation of cultural resources.
(B) TPWD will require principal investigators conducting
archeological investigations on TPWD lands on behalf of third parties
to obtain individual Antiquities Permits for those investigations.
(C) THC will notify TPWD if they should become aware
of proposed archeological investigations on lands that TPWD manages,
but are owned by another entity, and/or that are sponsored by an entity
other than TPWD.
(D) THC shall issue Antiquities Permits to entities
conducting archeological investigations on TPWD lands on behalf of
third parties, only after receiving written (hard copy or electronic
format) notice that TPWD has approved the research designs, scopes,
methods, and reporting requirements for those permits, and the CRPD,
WFC, or their designee has signed the Landowner's Certification on
those permit applications.
(E) THC will notify TPWD prior to granting permit extensions.
(F) TPWD will require that background research for
archeological projects on TPWD lands is conducted at the TPWD Archeology
Laboratory in Austin prior to the field investigations, unless otherwise
stipulated.
(G) TPWD will review all reports or sections of reports
for archeological investigations on TPWD lands, regardless of whether
those projects extend beyond TPWD boundaries. The CRPD, WFC, or their
designee will provide written (hard copy or electronic format) comments
on draft reports within 30 days to the principal investigator, and
principal investigators shall provide revised draft reports to TPWD
in which TPWD comments are addressed. After TPWD concurs that those
comments have been addressed, TPWD will submit reports to THC for
review, under a cover letter from the CRPD, WFC, or their designee
notifying THC that those draft reports have been reviewed and approved
by TPWD. In all phases of investigations, third parties will communicate
with THC only through CRPD, WFC, or their designee.
(5) Scope of TPWD Annual Antiquities Permit Archeological
Investigations.
Cont'd... |
