Header:
TEXAS ADMINISTRATIVE CODE
TITLE 13. CULTURAL RESOURCES
PART 2. TEXAS HISTORICAL COMMISSION
CHAPTER 26. PRACTICE AND PROCEDURE
SUBCHAPTER E. MEMORANDA OF UNDERSTANDING WITH OTHER STATE AGENCIES
Date:
03/20/2014
Document:
§ 26.25. Memorandum of Understanding with Texas Department of Transportation
(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 transporta-tion projects that potentially pose adverse effects on cultural resources. This MOU supersedes the previous MOU made effective on June 8, 2004.
(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 Chap-ter 2 (relating to Environmental Review of Transportation Projects); or
(B) any other type of project coordinated at TxDOT's request.
(2) Federally funded, licensed or permitted projects may follow the procedures of this section only if doing so would not conflict with environmental rules promulgated by the lead federal agency.
(c) Programmatic Agreements.
(1) Provisions of this MOU may be implemented, in part, through a Programmatic Agreement (PA) among the Federal Highway Administration (FHWA), the Texas State Historic Preservation Officer (TSHPO), the Advisory Council on Historic Preservation (Council), and TxDOT.
(2) With respect to federally funded projects, instead of the procedures set forth in this MOU, THC and TxDOT shall use the applicable procedures outlined in their First Amended Programmatic Agreement Among the Federal Highway Administration, the Texas Department of Transportation, the Texas State Historic Preservation Officer, and the Advisory Council on Historic Preservation Regarding the Implementation of Transportation Undertakings (PA-TU) and its successors to provide for innovation and efficiency in the timely development of TxDOT's transportation projects considerate of their impacts on cultural resources.
(3) TxDOT and THC will seek to revise the existing PA, amended in 2005, to reflect the streamlined procedures contained in this MOU.
(d) 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 pre-historic and historic archeological sites, and the preservation, protection, stabilization, conservation, rehabilitation, restoration, reconstruction, or demolition of historic structures and buildings designated as a State Antiquities Land-mark (or listed in the National Register of Historic Places (NRHP)).
(2) Area of potential effects (APE)--The geographic space or spaces within which an undertaking 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 pro-ject-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 for all non-federal undertakings will be confined to the limits of the proposed project right of way (including permanent and temporary easements), utility relocations, and project-specific locations specifically designated by TxDOT.
(3) Cultural resources--A general term referring to buildings, structures, shipwrecks, objects, sites, 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 An-tiquities 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 pur-poses 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 re-quirements 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 Landmark (SAL)--Both Archeological and Non-archeological historic properties that are des-ignated or eligible for designation as landmarks as defined in Subchapter D of the Antiquities Code of Texas (Texas Natural Resources Code, Chapter 191) and identified in accordance with this chapter.
(11) THC--Texas Historical Commission.
(12) Transportation enhancement--An activity that is listed under 23 United States Code § 101(a)(35), relates to a transportation project, and is eligible for federal funding under 23 United States Code § 133.
(13) 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 is also a trans-portation project.
(14) TxDOT--Texas Department of Transportation.
(e) Coordination Responsibilities.
(1) Texas Department of Transportation. The coordination responsibilities of TxDOT under this MOU are defined as follows.
(A) Except as provided in subsections (g) and (t) of this section, or other provisions of this chapter that exclude projects from coordination requirements, TxDOT shall coordinate review of transportation projects for which TxDOT is the project sponsor under 43 TAC § 2.7 (relating to Project Sponsor) with THC for both archeological resources and cemeteries, and non-archeological historic properties, as described in this MOU.
(B) 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 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.
(C) 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 is the responsibility of the project sponsor and not of TxDOT (see Texas Natural Resources Code § 191.0525), except as provided under subparagraph (E) of this paragraph. The project sponsor is responsible for coor-dinating directly with THC for such work, using the terms of this MOU to the extent THC determines appropriate. Ex-amples of projects that will be coordinated by the non-TxDOT project sponsor directly with THC include but are not limited to: (i) on-system highway projects funded entirely with local funds; (ii) utility relocations or installations within TxDOT right-of-way sponsored by other entities; and (iii) driveway and access connections sponsored by other entities.
(D) 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.
(E) In accordance with subsection (h) of this section, TxDOT may coordinate projects sponsored or funded by an-other entity under this MOU by agreement with the non-TxDOT project sponsor, and TxDOT will provide notice to THC when it coordinates such projects.
(2) THC. The coordination responsibilities of THC under this MOU are to conduct any review required by this sec-tion 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 an manner that most efficiently streamlines THC's effective review and early coordination.
(f) 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 set forth in this chapter; or the Secretary of the Interior's Profes-sional Qualification Standards (36 C.F.R. Part 61, Appendix A).
(2) TxDOT has the right to perform cultural resource investigations using staff or consultants who meet the pro-fessional 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.
(g) Projects Excluded from Review for Archeological Resources and Cemeteries.
(1) Routine roadway maintenance projects and projects with minor levels of ground disturbance, by their nature and definition, do not have the potential to affect historic properties, and do not require review of their potential project impacts on archeological resources or cemeteries by THC under this chapter or under this MOU. Such projects include vegetation control, traffic control, routine painting and striping, and other activities with less than 100 cubic yards of ground disturbance below the original grade. The following activities also do not require review of their po-tential 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;
(E) crack seal, overlay, milling, grooving, resurfacing, and restriping;
(F) replacement, upgrade, and repair of safety barriers, ditches, storm drains, and culverts;
(G) intersection improvements, including repair or replacement of overpasses, that require less than 0.5 acres of additional right of way at each intersection;
(H) placement of riprap to prevent erosion of waterway banks and bridge piers provided no ground disturbance is required;
(I) all maintenance work between a highway and an adjacent frontage road;
(J) installation of noise barriers or alterations to existing publicly owned buildings less than 50 years old, to provide for noise reduction except in potential or listed National Register districts;
(K) driveway and street connections;
(L) all work within interchanges and within medians of divided highways;
(M) all work between the flowlines of the ditches and channels and above the original line and grade;
(N) ditch and channel maintenance, provided removal of fill is above the original line and grade;
(O) repairs needed as a result of an event, natural or man-made, which causes damage to a designated state highway, resulting in an imminent threat to life or property of the traveling public or which substantially disrupts or may disrupt the orderly flow of traffic and commerce;
(P) the installation and modification of sidewalks (including the addition of American with Disabilities Act (ADA) ramps) except: (i) sidewalk installations where the depth of impact exceeds one foot; (ii) sidewalk and ADA ramp pro-jects within the historic districts in the following cities or towns: Goliad, Rio Grande City, Roma, San Antonio, San Elizario, and San Ygnacio; and (iii) sidewalk or ADA ramp projects within the limits of the following cities or towns: Anahuac, Nacogdoches, San Patricio, and Socorro;
(Q) design changes for projects that have completed all applicable review and consultation where the new project elements comprise only one or more of the activities listed in this section; or
(R) other kinds of undertakings jointly agreed to in writing by THC and TxDOT.
(2) Projects that are exempt from project-specific review for compliance with this chapter and review under this MOU, as specified in paragraph (1) of this subsection, are also exempt from compliance with other THC rules regarding project-specific investigations or coordination for potential impacts to cemeteries promulgated under Texas Health and Safety Code, § 711.012(c), unless one of the following two conditions is present:
(A) pavement would be extended to within 15 feet of the boundary of a known cemetery founded earlier than 1955; or
(B) another project element would directly affect known burials.
(h) Procedures for Project Coordination when the Project Requires Review for Archeological Resources and Cem-eteries.
(1) For projects subject to review for archeological resources 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.
(2) 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.
(3) TxDOT will submit a quarterly report of projects evaluated and approved internally to THC.
(4) TxDOT will submit projects to THC for review when TxDOT staff finds the project may affect archeological his-toric 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.
(5) In its request for review, TxDOT will make one or more of the following findings, determinations, and recom-mendations:
(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 potential 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 re-solving 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 re-view.
(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 own-ership 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. The 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 resources 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 with the project in accordance with the procedures required in this MOU.
(i) Background Studies for Archeological Resources and Cemeteries.
(1) For projects subject to review for archeological resources and cemeteries under this MOU, based on the re-sults 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 re-search 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.
(j) Permits for Archeological Resources 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 ad-ministration, 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) When conditions of natural disasters, man-made disasters, or post-review discovery necessitate immediate ac-tion, TxDOT may initiate work under an emergency permit without having first requested and received the permit number subject to 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 neces-sitate 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 notifica-tion under paragraph (4) of this subsection.
(9) 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 infor-mation 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.
(10) 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.
(11) The inspection of a project APE or proposed APE for purposes of evaluating the kind of archeological investi-gation 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.
(12) 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.
(k) Surveys for Archeological Resources 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 that TxDOT performs under this MOU do not require subsurface investigation if it can be demonstrated 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 or with other appropriate methods, except as pro-vided 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.
(l) Archeological Eligibility Testing Phase.
(1) 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, surface collection, and geophysical prospection in order to characterize the distribution of arche-ological 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.
(2) Data from test excavation projects shall be made available to qualified researchers.
(m) 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.
(n) 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 mate-rials at a state-certified facility.
(o) Archeological Sites found after Award of Contract.
(1) When previously unknown archeological remains are encountered after award of a construction contract, TxDOT will immediately suspend construction or any other activities that would affect the site.
(2) TxDOT will inform THC of the discovery of previously unknown archeological remains and invite THC to ac-company TxDOT staff (or consultants) to the location within ten business days of the discovery.
(3) TxDOT, in consultation with THC, will evaluate the need, if any, for further investigations.
(4) If TxDOT determines that the discovery is an unrecorded archeological site, then TxDOT or its consultants shall complete an electronic TexSite archeological site survey form.
(5) If TxDOT determines that the site does not warrant further investigations because it is not a historic property, construction will resume. TxDOT will document its findings.
(6) If TxDOT determines that the site warrants further investigation because the site may be a historic property, TxDOT will take one of the following three actions, as appropriate:
(A) a permit amendment will be sent to THC for the additional work, if an existing permit for the project is still open;
(B) a notification for a new permit will be sent to THC; or
(C) TxDOT will perform necessary investigations under an emergency permit.
(7) Upon completion of the investigation in accordance with any applicable permit terms, construction may pro-ceed as planned.
(p) Standard Treatments for Particular Resource Types.
(1) Isolated wells or cisterns unassociated with other remains will be treated as follows:
(A) 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.
(B) Isolated wells or cisterns that pre-date 1900 A.D. require documentation of their location, construction, and condition. Upon completion of the documentation, these features may be backfilled and capped. These activities do not constitute an adverse effect.
(2) Burnt rock midden features that have not been obviously destroyed by modern disturbances will be treated as follows:
(A) the feature will be trenched to expose a cross-section;
(B) the exposed profiles will be documented, focusing on the identification of any internal structure;
(C) column samples will be taken from the exposed profile in order to collect samples for flotation and dating from each deposit recognized in the profile;
(D) deviations from this standard approach may be undertaken if TxDOT coordinates an alternate approach with THC; and
(E) any additional work on the feature will be determined in consultation between TxDOT and THC, based on the results of the trenching.
(q) 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.
(2) Artifact curation.
(A) TxDOT or its permitted contractor may temporarily house artifacts and samples during laboratory analysis and research, but upon completion of the analysis, artifacts and accompanying documentation must be transferred to a permanent curatorial facility in accordance with the terms of the antiquities permit.
(B) Artifacts and samples will be placed at an appropriate artifact curatorial repository which fulfills the applicable requirements of Chapter 29 of this title, as approved by THC. When appropriate, TxDOT will consult with THC to identify for disposal collections or portions of collections that do not have identifiable value for future research or public interpretation. Final approval regarding the disposition of collections will be made by THC.
(C) TxDOT is responsible for the curatorial preparation of all artifacts to be submitted for curation so that they are acceptable to the receiving curatorial repository and fulfill the applicable requirements of this chapter and Chapter 29 of this title, as approved by THC.
(r) Documentation for Archeological Resources and Cemeteries.
(1) Projects subject to review for archeological resources and cemeteries under this MOU will be documented by TxDOT in the manner described in this section. Documentation for each such project will include, at a minimum:
(A) a description of the project, defining the APE or the investigated portion of the APE in three dimensions;
(B) a project location map, plotting the project location on 7.5' Series USGS quadrangle maps;
(C) information regarding the setting that is relevant for the assessment of the integrity of any archeological sites within the APE;
(D) information on previously recorded archeological sites in the project location;
(E) description and justification of the level of effort undertaken for the investigation; and
(F) results and recommendations.
(2) All TxDOT survey and testing reports will also include:
(A) description and justification of field methods, including the sampling strategy;
(B) description and quantification of any archeological materials identified;
(C) accurate plotting of any sites found on 7.5' Series USGS quadrangle maps;
(D) submission of electronic TexSite archeological site survey forms to the Texas Archeological Research Labora-tory; and
(E) recommendations regarding whether any site merits further investigation.
(s) Quarterly Reports for Archeological Resources and Cemeteries. Quarterly reports will be submitted by TxDOT to THC within 60 business days after the end of the calendar quarter, listing all projects for which TxDOT has docu-mented that no historic properties or cemeteries are present in the project's area of potential effect, and those pro-jects that will have no adverse effects on archeological historic properties or cemeteries.
(t) Projects Excluded from Review for Non-Archeological Historic Properties.
(1) For the purposes of this subsection, the term historic properties will refer only to non-archeological historic properties.
(2) Based on previous coordination outcomes, TxDOT and THC agree that the following types of routine roadway projects listed in subparagraphs (A) - (I) of this paragraph pose limited potential to affect historic properties:
(A) maintenance, repair, installation, or replacement, of transportation-related features, including fencing, signage, traffic signals, railroad warning devices, safety end treatments, cameras and intelligent highway system equipment, bridges, railroad crossings, picnic areas, rest areas, roadside parks, lighting, curbs and gutters, safety barriers, ditches, storm drains, culverts, overpasses, channels, rip rap, and noise barriers;
(B) maintenance, repair, or replacement of roadway surfacing, including crack seal, overlay, milling, grooving, re-surfacing, and restriping;
(C) maintenance, repair, reconfiguration, or correction of roadway geometrics, including intersection improve-ments and driveway and street connections;
(D) maintenance, repair, installation or modification of pedestrian and cycling-related features, including American with Disabilities Act ramps, trails, sidewalks, and bicycle and pedestrian lanes;
(E) maintenance, repair, relocation, addition, or minor widening of roadway, highway, or freeway features, in-cluding turn bays, center turn lanes, shoulders, U-turn bays, right turn lanes, travel lanes, interchanges, medians, and ramps;
(F) maintenance, repair, replacement, or relocation of features at crossings of irrigation canals, including bridges, new vehicle crossings, bank reshaping, pipeline and standpipe components, canal conversion to below-grade siphons, and utilities;
(G) repairs needed as a result of an event, natural or man-made, which causes damage to a designated state highway, resulting in an imminent threat to life or property of the traveling public, or which substantially disrupts or may disrupt the orderly flow of traffic and commerce;
(H) design changes for projects that have completed all applicable review and consultation where the new project elements comprise only one or more of the activities listed in this paragraph; and
(I) other kinds of undertakings jointly agreed to in writing by THC and TxDOT as not requiring review.
(3) For projects described in paragraph (2)(A) - (I) of this subsection, TxDOT qualified professional staff shall de-termine whether additional evaluation is required due to direct effects to historic properties. If no such evaluation is deemed necessary, such projects are determined to pose no effect on historic properties and do not require review by THC under this chapter or under this MOU.
(4) For review-exempt projects, documentation shall be limited to that maintained in TxDOT's official project files. THC may audit TxDOT files for specific projects upon request.
(u) Procedures for Project Coordination when the Project Requires Review for Non-Archeological Historic Proper-ties.
(1) Historic properties. For the purposes of this subsection, the term historic properties will refer only to non-archeological historic properties.
(2) Internal Review Projects. For projects subject to review for historic properties under this MOU, TxDOT qualified professional staff shall determine the presence or absence of historic properties in the area of potential effects. Such efforts should focus on the types of historic properties within public rights-of-way and other sensitive areas, including but not limited to historic bridges, historic road corridors, historic roadside parks and rest areas, historic Depression Era masonry culverts, historic districts, historic courthouse squares and other historic commercial zones. Project activities that TxDOT determines will have no effect or no adverse effect on historic properties may be internally reviewed by TxDOT and are approved for construction. Documentation for such projects will be maintained in official TxDOT project files and regularly reported to THC in accordance with paragraph (4)(A) of this subsection.
(3) Coordinated Projects. Projects subject to review for historic properties under this MOU that are determined by TXDOT qualified professional staff to pose an adverse effect on historic properties shall require individual THC review according to the following procedures:
(A) THC will respond within 20 calendar days of receipt of TxDOT's request for review by indicating whether an affected historic property will require a historic structures permit for an SAL, or whether THC intends to initiate an SAL nomination for the affected property. If THC does not respond within 20 calendar days, TxDOT may assume THC's concurrence with its determinations, and TXDOT may proceed with the project to construction;
(B) in accordance with Texas Government Code § 442.008 and § 17.2 of this title (relating to Review of Work on County Courthouses), TxDOT will notify THC of any work affecting a county courthouse or its surrounding site, up to and including the curb. THC will respond within 20 calendar days of receipt of TxDOT's notification by indicating whether a historic structures permit for an SAL or additional consultation pursuant to a preservation covenant or easement will be required; and
(C) state-funded projects coordinated under this MOU that may subsequently require a federal permit or change to federal funding, and that involve a direct taking of a historic property, must be individually coordinated with THC in order to satisfy federal regulations under 23 C.F.R. Part 774 and 36 C.F.R. Part 800. Procedures outlined in the 2005 PA-TU or subsequent agreements will govern such coordination.
(4) Documentation. For projects that are internally reviewed or individually coordinated under paragraphs (2) and (3) of this subsection, TxDOT will comply with the following project documentation requirements:
(A) for projects that are internally reviewed under paragraph (2) of this subsection, TxDOT will submit to THC a quarterly report of internally approved projects within 60 business days after the end of the calendar quarter. THC may audit TxDOT files for specific projects submitted in the quarterly report. Quarterly report documentation will include: (i) project description and scope; (ii) project location map with delineation of the APE and location of historic properties; (iii) methodology used to identify historic properties; (iv) photographic and descriptive information for each identified property; (v) description of public involvement activities; (vi) justification for findings of historic prop-erties, including setting, integrity, and contextual information; and (vii) justification of effects on historic properties, including evaluations, reports, and other information relevant to the findings by TxDOT; and
(B) for projects that are individually coordinated under paragraph (3) of this subsection, documentation submitted to THC will include the items listed in subparagraph (A)(i) - (viii) of this paragraph, and a description of efforts to avoid or minimize harm, mitigation, and commitments.
(v) Denial of Access. In cases where access to private land for conducting investigations is denied prior to the ap-proval of the environmental review document, TxDOT will make a commitment to complete appropriate investigations once access is obtained, but prior to any construction related impacts.
(w) MOU to Govern TxDOT Procedures. TxDOT satisfies applicable THC requirements if it utilizes the procedures of this MOU in lieu of other THC procedures. In cases where TxDOT is utilizing this MOU in lieu of other THC procedures, TxDOT must follow the requirements of this MOU.
(x) Project-Specific Agreements. Any project-specific agreements reached between TxDOT and THC regarding the evaluation or treatment of project effects shall be honored by both parties and shall supersede the requirements of this MOU. TxDOT and THC may deviate from the terms of the agreement only when both parties concur that the agreement requires revision.
(y) Continuous Improvement Agreement. TxDOT and THC agree to collaborate on improvements to their programs and development of innovative solutions for expedited review procedures. Such mechanisms may include using project outcomes to refine approaches to resource identification, evaluation, treatment methods, programmatic mit-igation measures and interagency agreements that facilitate early coordination, and streamlining and expedited review of TxDOT's transportation projects.
(z) THC Review of TxDOT Project Files. THC may review TxDOT project files for specific undertakings carried out under this MOU. THC may recommend process improvements based on issues identified during the review.
(aa) Dispute Resolution. THC and TxDOT staff will be responsible for attempting to resolve any conflict between THC and TxDOT that results from the implementation of this section before elevating to agency management.
(bb) Review of MOU. This MOU shall be reviewed and updated as provided by law or by agreement between the parties. THC and TxDOT agree to convene every four years to review, update, or extend this agreement.
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