| (a) 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
requirement.
(b) 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.
(c) 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.
(d) In cases where TxDOT seeks comment from THC on
proposed identification or evaluation methods, TxDOT will recommend
one or more methods.
(e) In its request for review, TxDOT will make one
or more of the following findings, determinations, and recommendations.
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(A) 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.
(B) 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 each of 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.
(6) THC will respond within 20 calendar days of receipt
of the TxDOT request for review, in accordance with and pursuant to
the terms set out by an interagency contract executed by THC and TxDOT.
This final response will include:
(A) a statement of concurrence or nonconcurrence with
TxDOT's findings and recommendations;
(B) a determination of site eligibility for all evaluated
sites; and
(C) any other comments relevant to the archeological
sites or cemeteries which could be affected by the project.
(f) 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.
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