| (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.
(b) Applicability.
(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
local funds;
(B) utility relocations or installations within TxDOT
right-of-way sponsored by other entities; and
(C) driveway and access connections sponsored by other
entities.
(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
Antiquities Landmark.
(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
chapter.
(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;
Cont'd... |
