1. (a) Introduction. It is the public policy and in the interest of the State of Texas to locate, protect, and preserve archeological sites and other 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.

2. (b) Primary Considerations and Stipulations. All agreements are subject to Sections 26.17 - 26.22 of this title (relating to Issuance and Restrictions of Archeological Permits, Issuance and Restrictions of Historic Structure Permits, Permit Monitoring, Archeological Permit Categories, Application for Archeological Permits, and Application for Historic Structure Permits). Primary considerations in the development of permit specific memoranda shall include: the significance of the cultural resource(s); and the nature 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 commission and other public agencies follow.

   1. (1) Memorandum of Understanding with the Texas Department of Transportation.

      1. (A) Purpose.

         1. (i) It is the policy of the Texas Department of Transportation (TxDOT) to:

            1. (I) identify the environmental impacts of TxDOT transportation projects, to coordinate these projects with applicable state and federal agencies, and reflect these investigations and coordination in the environmental documentation for each project;
            2. (II) base project decisions on a balanced consideration of the need for a safe, efficient, economical, and environmentally sound transportation system;
            3. (III) receive input from the public through the public involvement process;
            4. (IV) utilize a systematic interdisciplinary approach as an essential part of the development process for transportation projects; and
            5. (V) strive for environmentally sound transportation activities through appropriate avoidance, treatment or mitigation, where feasible and prudent, in coordination with appropriate resource agencies.
         2. (ii) In order to pursue this policy, the Texas Department of Transportation and the Texas Historical Commission (THC) have agreed to develop this Memorandum of Understanding (MOU), which will supersede the MOU which became effective on October 16, 1992.
         3. (iii) It is the intent of this MOU to provide a formal mechanism by which THC may review TxDOT projects which have the potential to affect cultural resources within the jurisdiction of THC in order to assist TxDOT in making environmentally sound decisions, and to develop with TxDOT a system by which information developed by TxDOT and THC may be exchanged to their mutual benefit. Unless otherwise specified in this MOU, all definitions in 13 TAC Chapter 26, Rules of Practice and Procedures for the Antiquities Code of Texas, Texas Historical Commission, will be used.

      2. (B) Authority.

         1. (i) The Texas Transportation Code, §201.607, directs TxDOT to adopt MOU's with appropriate environmental resource agencies, including THC. The rules for coordination of state-assisted transportation projects found in §§2.40-2.51, of this title (relating to Environmental Review and Public Involvement for Transportation Projects), underline the need for and importance of comprehensive environmental coordination for all transportation projects.
         2. (ii) This MOU complements a Programmatic Agreement (PA) that TxDOT executed with the Federal Highway Administration (FHWA), the Texas State Historic Preservation Officer (TSHPO), and the Advisory Council on Historic Preservation (Council) in December of 1995. The PA delineates the process by which the signatory parties agree to carry out the National Historic Preservation Act, §106 (16 U.S.C. 470f) for federally assisted, permitted and licensed transportation projects within the state.

      3. (C) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

         1. (i) Antiquities Code of Texas (ACT)--The state statute that designates the Texas Historical Commission as the legal custodian of all cultural resources, historic or prehistoric, within the public domain of the state, the body which issues antiquities permits, in accordance with 13 TAC Chapter 26 and as provided in ACT §§191.054 and 191.091-098. The Texas Historical Commission assumed these responsibilities from the Texas Antiquities Committee which was abolished under Senate Bill 365, enacted by the 74th Legislature in 1995.
         2. (ii) Antiquities permit--A permit issued by the Texas Historical Commission in order to regulate the taking, alteration, damage, destruction, salvage, archeological survey, testing, excavation and study of state archeological landmarks including prehistoric and historic archeological sites, and the preservation, protection, stabilization, conservation, rehabilitation, restoration, reconstruction, or demolition of historic structures and buildings.
         3. (iii) Area of potential effects--The geographic area or areas within which an undertaking may cause changes in the character or use of historic properties, if any such properties exist, as defined in 36 CFR Part 800.
         4. (iv) Cultural resources--A general term referring to buildings, structures, objects, sites, and districts more than 50 years of age with the potential to have significance in local, state, or national history.
         5. (v) Eligibility--A site's eligibility for the National Register of Historic Places as set forth in 36 CFR Part 800, or for designation as a State Archeological Landmark, as set forth in 13 TAC Chapter 26.
         6. (vi) Historic property--Any prehistoric or historic district, site, building, structure, or object which is included or eligible for inclusion in the National Register of Historic Places, as defined in 36 CFR Part 800, or meets the requirements for designation as a State Archeological Landmark as set forth in 13 TAC Chapter 26. (This term is used interchangeably with significant properties and significant cultural resources.)
         7. (vii) National Register--The National Register of Historic Places (NRHP), which is the nation's inventory of historic places maintained by the U.S. Secretary of the Interior. (Historic properties included in or eligible for inclusion must meet National Register criteria for evaluation, as defined in 36 CFR Part 60.)
         8. (viii) State Archeological Landmark (SAL)--Archeological and historic properties as defined in Subchapter D of the Antiquities Code of Texas (ACT) and identified in accordance with 13 TAC Chapter 26.

      4. (D) Responsibilities.

         1. (i) Texas Department of Transportation. The responsibilities of TxDOT pertain primarily to its functions as a transportation agency, and include:

            1. (I) planning and designing safe, efficient, effective, and environmentally sensitive transportation facilities while avoiding, minimizing, or compensating for impacts to cultural resources to the fullest extent practicable;
            2. (II) the timely and efficient construction of transportation facilities, in a manner consistent with approved plans and agreements which TxDOT has executed regarding the protection of significant cultural resources; and
            3. (III) ongoing maintenance to provide safe, efficient, and environmentally sound transportation facilities for the traveling public.

         2. (ii) Texas Historical Commission. The responsibilities of THC relate primarily to its functions as a cultural resource agency, and include:

            1. (I) serving as the State Historic Preservation Office in Texas with responsibility under 36 CFR Part 800 - the regulations implementing §106 of the National Historic Preservation Act (16 U.S.C. 470f);
            2. (II) reviewing federally assisted, licensed, or permitted undertakings with the potential to affect properties included in or eligible for inclusion in the National Register of Historic Places;
            3. (III) providing assistance to agencies in their efforts to comply with the §106 process;
            4. (IV) regulating the disposition and management of State Archeological Landmarks which are affected by non-federal undertakings, as described in the Antiquities Code of Texas and 13 TAC Chapter 26; and
            5. (V) issuing permits for the taking, excavation, restoration, or study of State Archeological Landmarks as provided in ACT, §191.054 and §191.091-098.

      5. (E) Early project planning for cultural resources.

         1. (i) TxDOT is committed to performing early identification efforts for cultural resources located within the area of potential effects of proposed transportation projects and initiating THC coordination during the early planning stages of these projects, when the widest range of alternatives is open for consideration.
         2. (ii) TxDOT is committed to implementing, in consultation with THC, alternative methods, techniques, and other strategies that are reasonable and feasible and that will enhance efficiency in complying with cultural resource laws. These include, but are not limited to, a programmatic approach to coordination of selected types of cultural resources, geoarcheological research to reduce archeological liabilities, development of significance standards, and alternative mitigation strategies. When implemented, with the concurrence of THC, such alternative strategies will replace the procedures set forth in this MOU.
         3. (iii) TxDOT is also committed to providing the public and interested parties with opportunities to provide input and express their views concerning potential project impacts to historic properties, and will ensure that cultural resource issues are incorporated into its regular public participation programs carried out under the National Environmental Policy Act (42 USC 4321-4347 et seq.), and §§2.42-2.43 of this title (relating to Highway Construction Projects-Federal Aid, and Highway Construction Projects-State Funds), as far as practicable.

         4. (iv) Cultural resource investigations by consultants.

            1. (I) TxDOT has the right to perform cultural resource investigations using staff or consultants who meet the professional standards of 13 TAC Chapter 26, and as required by 36 CFR Part 800.
            2. (II) Cultural resource surveys, investigations, permit applications, and other work performed by consultants shall be coordinated with THC through TxDOT's Environmental Affairs Division.

      6. (F) Procedures for coordination regarding archeological resources. Survey and eligibility testing of archeological resources performed by the archeological staff of TxDOT's Environmental Affairs Division will not require an antiquities permit. All other archeological investigations shall require an antiquities permit. TxDOT and THC will consult to discuss the feasibility and benefits of TxDOT submitting a compilation of survey and test excavation results to THC in an annual or biannual report.

         1. (i) Identification.

            1. (I) TxDOT will undertake sufficient background research to determine which proposed projects require archeological surveys. Background research may include a search of records and files at THC and/or the Texas Archeological Research Laboratory (TARL), gathering information on soils, and a geomorphic history of the projects.
            2. (II) Based on the results of background research, TxDOT will identify projects requiring coordination and/or archeological investigation for archeological resources.
            3. (III) TxDOT will identify projects which are not believed to require individual coordination for archeological sites and will provide THC with a list of such projects on a monthly basis.

         2. (ii) Archeological surveys.

            1. (I) All projects, and portions of projects, recommended for survey by TxDOT during the initial phase of coordination will be subject to archeological survey using the methods agreed upon between TxDOT and THC in conformance with 36 CFR Part 800.
            2. (II) An archeological survey will be conducted by a TxDOT professional archeological staff member or other archeologist who meets the state and federal standards. Surveys may be limited to an evaluation of existing impacts or stratigraphic integrity when these are sufficient to determine that any sites present are unlikely to be eligible.

            3. (III) When the archeological survey has been completed, TxDOT will submit the results of the survey to THC in a report of investigations, and request THC's review of the report. With its request for review, TxDOT will include:

               (-a-) details of the results of the survey, including project description, anticipated project impact, and existing disturbance in the project area;

               (-b-) environmental data on topography, soils, land use, survey methodology, survey results, and recommendations;

               (-c-) the project location plotted on 7.5' Series USGS quadrangle maps;

               (-d-) descriptions of any sites found;

               (-e-) submission of electronic or paper copies of archeological site survey forms to TARL; and

               (-f-) recommendations regarding whether the site(s) merit archeological testing or archeological monitoring.

            4. (IV) THC will respond within 30 days of receipt of the TxDOT request for review of the survey results and recommendations. The response will include:

               (-a-) a statement of concurrence or non-concurrence with the results of the survey; and

               (-b-) any other comments relevant to the archeological resources which could be affected by the project.

            5. (V) TxDOT will include the results of the archeological survey and recommendations in the environmental document for the project, as far as practicable.

         3. (iii) Archeological eligibility testing phase.

            1. (I) All sites and portions of sites recommended for eligibility testing by THC will be subject to archeological testing, using the methods agreed upon in writing by TxDOT and THC.
            2. (II) THC may send a representative to observe any or all of the testing procedures.

            3. (III) At the completion of testing, TxDOT will prepare a formal report of the results of testing.

               (-a-) For sites affected by federal undertakings, the report will include recommendations regarding eligibility for the NRHP, as described in 36 CFR Part 800.

               (-b-) For sites affected by non-federal undertakings, the report will include recommendations regarding the significance of the site and whether designation as a State Archeological Landmark is warranted, in accordance with ACT, §§191.091-092, and 13 TAC Chapter 26.

            4. (IV) TxDOT will send the testing report to THC with a request for review.

            5. (V) In accordance with 36 CFR Part 800, THC will respond to the report within 30 days of receipt of TxDOT's request for review. The response will include:

               (-a-) a statement of concurrence or non-concurrence with the results of the archeological testing and recommendations contained in the TxDOT request for review; and

               (-b-) a determination of the site's eligibility for listing in the National Register of Historic Places, or for designation as a State Archeological Landmark.

         4. (iv) Archeological excavation/data recovery.

            1. (I) All sites and portions of sites determined to be eligible for the NRHP (for federal undertakings) or eligible for designation as a State Archeological Landmark (for non-federal undertakings) based on consultation with THC during the survey phase or testing phase, will be subject to data recovery in conformance with a data recovery plan approved by THC.
            2. (II) TxDOT, in consultation with THC, will develop a data recovery plan for each eligible site on a case-by-case basis, in accordance with 36 CFR Part 800 for federal undertakings and ACT §191 for non-federal undertakings. Final data recovery plans must be approved by THC prior to their implementation.
            3. (III) Results of data recovery will be published as required by 36 CFR Part 800 and/or ACT §191.
            4. (IV) All data recovery will be performed under an antiquities permit.

         5. (v) Archeological sites found after award of contract.

            1. (I) When previously unknown archeological remains are encountered after award of contract, TxDOT will immediately suspend construction or any other activities that would affect the site.
            2. (II) A TxDOT archeologist will examine the remains and report the findings to THC within 48 hours of the examination. The Federal Highway Administration (FHWA) and/or TxDOT will enter consultations regarding the disposition of the site or sites for federal undertakings, as required by 36 CFR Part 800, or as required by the Texas Antiquities Code for state funded projects.
            3. (III) TxDOT and THC will prepare a plan of action to determine eligibility or significance, and/or mitigate the effects on the site or sites.
            4. (IV) TxDOT may continue construction in the affected area upon approval of THC.

         6. (vi) Artifact recovery and curation.

            1. (I) Artifact recovery.

               (-a-) The type and quantity of artifacts to be recovered will be detailed in the scope of work and will be selected to address the research questions.

               (-b-) 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.

               (-c-) To ensure proper care and curation, recovery methods must conform to 36 CFR Part 800, 13 TAC Chapter 26, and Council of Texas Archeologists (CTA) guidelines, as applicable.

            2. (II) 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, all artifacts 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 the Texas Archeological Research Laboratory or some regional artifact curatorial repository which fulfills 36 CFR Part 79, the ACT, or CTA Curation Standards, as approved by THC. When appropriate, TxDOT will consult with THC to identify collections or portions of collections that do not have identifiable value for future research or public interpretation. This information may serve as the basis for future consultation between TxDOT and THC regarding the disposition of such collections or portions of collections. Final approval regarding the disposition of collections will be made by THC.

               (-c-) TxDOT is responsible for the curatorial preparation of all artifacts so that they are acceptable to the receiving curatorial repository and fulfill 36 CFR Part 79 and 13 TAC Chapter 26, as approved by THC.

      7. (G) Procedures for coordination regarding historic properties, early project development. For purposes of this subsection and subsections (H) and (I) of this section, the term historic properties will refer only to non-archeological historic properties.

         1. (i) Early in the project development process, TxDOT will determine whether federally assisted, licensed, or permitted transportation projects (federal projects) constitute undertakings under 36 CFR Part 800. In consultation with THC, it has been determined that certain types of projects do not require individual coordination and may be included in a monthly report. These projects involve culverts and other structures and objects which lack engineering, architectural or historical merit and projects which have a minimal potential to affect historic properties if such are present in the area of potential effects. TxDOT will notify THC of all such projects in a monthly report. The monthly report will include a summary of each project that is sufficient to allow THC to determine if more information is needed. THC will have 30 days to approve the monthly report or to request additional information concerning any of the projects on the list.
         2. (ii) Early in the project development process, TxDOT will review its non-federal transportation projects and other activities occurring on any of the lands of the State of Texas (state projects) to determine whether they have the potential to affect properties 50 years of age or older under the terms of the ACT, 13 TAC Chapter 26. Effects include the removal, alteration, or renovation of one or more contributing elements to a historic property. TxDOT will notify THC of state projects which will not have an effect on any properties 50 years of age or older in a monthly report. The monthly report will include a summary of each project that is sufficient to allow THC to determine if more information is needed. THC will have 30 days to approve the monthly report or to request additional information concerning any of the projects on the list.
         3. (iii) If TxDOT determines that a federal project constitutes an undertaking as defined in 30 CFR Part 800, or that a state project has the potential to affect a historic property, TxDOT will then individually coordinate the project with THC, except as noted in this MOU, in accordance with the provisions provided in subsequent sections of this agreement.

      8. (H) Identification and evaluation of historic properties.

         1. (i) For state and federal projects requiring individual THC coordination, TxDOT will identify properties 50 years of age or more that will be affected by state projects or that are located within the area of potential effects for federal projects. TxDOT will conduct a search of available records, including listings of Registered Texas Historic Landmarks, State Archeological Landmarks, and properties listed in the National Register as well as local historic property survey files on record at THC. THC will render all reasonable assistance to TxDOT in performing record searches on potentially historic properties.

         2. (ii) TxDOT will conduct field surveys for all projects except those which qualify for inclusion on a monthly list. These surveys will be conducted in order to locate properties 50 years of age or more or properties that may otherwise be eligible for inclusion on the National Register of Historic Places or which may qualify as SAL's. If no such properties are identified, the following procedures will apply.

            1. (I) For state projects, the project will be added to the monthly report coordinated with THC as described in this MOU.
            2. (II) For federal projects, TxDOT will inform THC in accordance with 36 CFR Part 800.

         3. (iii) If the identification efforts reveal properties 50 years of age or more, TxDOT will evaluate the significance of each property to determine if the property:

            1. (I) qualifies as a SAL as defined by ACT, §191.092, for state projects; or
            2. (II) is eligible for inclusion in the National Register, or is a contributing element of a National Register eligible or listed district, for federal projects.

         4. (iv) If a state or federal project has the potential to affect a bridge-class structure more than 50 years of age and the structure is included in the State Historic Bridge Inventory (SHBI) that has been formally accepted by THC, the following procedures apply.

            1. (I) If the structure has been determined not historically significant under the SHBI, TxDOT will coordinate with appropriate local entities to determine if the structure has local interest or significance. If no local interest or significance is identified, TxDOT will add the project to the monthly report. If TxDOT or THC identifies local interest or significance in these structures, TxDOT will individually coordinate the project with THC following the procedures set forth under this paragraph.
            2. (II) If the bridge-class structure has been determined historically significant under the SHBI, TxDOT will individually coordinate the project with THC following the procedures set forth under this paragraph.

         5. (v) If a state or federal project has the potential to affect a bridge-class structure more than 50 years of age that has not been included in a SHBI that has been formally accepted by THC, TxDOT will assess the significance of the structure to determine if it has potential engineering, architectural, or historic merit.

            1. (I) In consultation with THC, bridge-class structures of types determined to have no potential merit will include, but not be limited to, common-type structures with no distinguishing features and those structures which have been substantially altered or widened within the past 50 years. When TxDOT determines that a bridge has no potential engineering, architectural or historic merit, TxDOT will add the project to the monthly report.
            2. (II) When TxDOT determines that a bridge has potential engineering, architectural, or historic merit, TxDOT will individually coordinate the project with THC following the procedures set forth under this paragraph.
            3. (III) If a state or federal project has the potential to cause an adverse effect to properties 50 years of age or more, as far as practicable, TxDOT will seek information and input concerning the historic significance of these properties from local entities, such as county historical commissions, local governments, city preservation officers, and neighborhood associations, that are likely to have knowledge of, or an interest in these properties.
            4. (IV) TxDOT will coordinate with THC early in the project planning process to determine the historic significance of properties identified as 50 years of age or older that will be affected by state projects or that are located within the area of potential effects for federal projects. For state projects, TxDOT will initiate coordination with THC no later than 60 days prior to the contract bid opening for construction, as required by ACT, §191.098 and 13 TAC §26.22, or for federal projects, coordination for historic significance will follow 36 CFR Part 800 to ensure proper care and curation.

            5. (V) For each project coordinated with THC, TxDOT will provide:

               (-a-) a project description and scope;

               (-b-) a map showing the location of the project as well as all properties 50 years of age or older documented through identification efforts;

               (-c-) a statement detailing the efforts and methodology used to identify potentially historic buildings and structures in the project area;

               (-d-) documentation on each identified property, including at least one photograph of the property, the address if known, an architectural description, and date of construction (estimated or known), and any known local, state or national historical designations; and

               (-e-) a statement of historic significance for each identified property, including:

               (-1-) for a state project, whether the property qualifies as a SAL;

               (-2-) for a federal project, whether each property 50 years of age or more is eligible for inclusion in the National Register, including information as to whether the property is a contributing element of a National Register listed historic district or may be a contributing element of a potential National Register district;

               (-f-) results of any coordination with interested parties concerning the significance of identified properties; and

               (-g-) the results of TxDOT's historic significance evaluation for each identified property.

            6. (VI) THC will respond within 30 days of receipt of TxDOT's request for review of individual projects as follows.

               (-a-) For a state project, THC response will indicate whether the project will require an historic structures permit for a SAL or whether THC or another party intends to institute SAL proceedings for a property previously not designated a SAL in accordance with 13 TAC §§26.11, 26.12 and 26.22, and ACT, §191.098. If THC does not respond within 30 days, TxDOT will assume that THC has no objection, and TxDOT will proceed with the project without further coordination with THC regarding historic property issues.

               (-b-) For a federal project, all coordination with THC will follow the provisions of 36 CFR Part 800.

      9. (I) Assessing and mitigating effects. TxDOT will assess the effects of state and federal projects on properties determined to qualify as SAL's for state projects and on properties determined to be listed or eligible for inclusion in the National Register for federal projects. TxDOT will then consult with THC using the following procedures.

         1. (i) For a state project, TxDOT will consult with THC to determine if a historic structures permit is required for any proposed removals, alterations, or renovations to SAL's or to properties on which THC decides to institute SAL proceedings in accordance with 13 TAC §26.22 and ACT, §191.098.
         2. (ii) For a federal project, TxDOT will apply the criteria of effect and consult with THC for a determination of effect in accordance with the provisions set forth in 36 CFR Part 800.
         3. (iii) TxDOT will, to the maximum extent practicable, provide an early opportunity for the public and interested parties to receive information and to express their views on projects when a historic property may be negatively affected by a transportation project.

         4. (iv) TxDOT will also consult with THC to seek ways to avoid, minimize, or mitigate any negative effects on historic properties caused by federal and state projects in accordance with the following procedures.

            1. (I) State project. TxDOT shall take THC comments into account when projects will have an effect on properties that are determined to qualify as SAL's or other properties that are listed or determined eligible for listing in the National Register. TxDOT will apply for historic structure permits for all projects that alter, renovate, or remove SAL's or other properties on which THC has instituted SAL proceedings, following the procedures delineated in 13 TAC §26.22 and ACT, §191.098.
            2. (II) Federal project. TxDOT will follow the consultation procedures set out in 36 CFR Part 800.
      10. (J) Environmental document and public involvement. TxDOT will include information on its efforts to identify archeological sites and historic properties, to determine the effects of projects on archeological sites and historic properties, and to mitigate any negative effect on these sites or properties in the environmental document, if one is prepared, and will include this information in public involvement activities to the maximum extent practicable.

      11. (K) Dispute Resolution.

          1. (i) If THC and TxDOT cannot reach agreement on any plans or actions carried out pursuant to this agreement, THC and TxDOT will consult to resolve the objection.
          2. (ii) If THC and TxDOT cannot reach a compromise solution or otherwise resolve the objection through consultation, either TxDOT or THC may choose to invoke the dispute resolution provisions which are set forth in paragraph (3) of this subsection.

          3. (iii) When these dispute resolution provisions are invoked, if TxDOT and THC cannot resolve their disagreement, the two agencies will resolve their dispute in accordance with the procedures established under state and federal rules.

             1. (I) Federal undertakings will follow the dispute resolution procedures as stipulated in 36 CFR Part 800.
             2. (II) State projects will follow the procedures provided in 13 TAC Chapter 26.
      12. (L) Review of MOU. This memorandum shall be reviewed and updated by January 1, 2002, and by every fifth year from that date, as provided for in Transportation Code, §201.607.

   2. (2) Texas Water Development Board (TWDB).

      1. (A) Responsibilities. In a systematic manner, TWDB will conduct surveys for all types of archeological sites on lands belonging to or controlled by any county, city, or other political subdivision of the State of Texas which may be impacted by proposed development projects that are funded in whole or in part by TWDB. Where appropriate, all surveys shall consist of pedestrian surveys and sample subsurface probing (either shovel or mechanical testing, as appropriate) of proposed construction or development areas that may yield evidence of cultural resources (both historic and prehistoric), including areas that may receive direct impact from construction traffic.

         1. (i) TWDB shall comply with requirements for a principal investigator as listed in §26.5 of this title (relating to Definitions). Each individual, as principal investigator, shall be involved in at least 25% of the field investigation performed under the agreement.
         2. (ii) TWDB's staff archeologists will send the Department of Antiquities Protection (DAP) advance written notification of the following activities: proposed reconnaissance, 100% pedestrian surveys and/or sample subsurface probing investigations. The notification letters shall include information on the type of project development proposed to receive TWDB financial assistance, the kind of archeological investigation proposed, the principal investigator or co-principal investigators intending to conduct the investigation, and the expected dates of the field work.
         3. (iii) TWDB staff archeologists will send DAP a report within 30 days of the completion of each investigation, notifying DAP of the findings of the investigation. The report shall contain information on the basic scope of the work, findings, a project map showing any cultural site locations recorded, copies of all State Site Survey forms, a project development clearance request where appropriate, and any recommendations for further work. The report should conform with the guidelines for report preparation of the Council of Texas Archeologists. In cases where the scope and/or results of a particular investigation warrant a comparatively lengthy report requiring more than 30 days to prepare, TWDB staff archeologists will send a brief interim report notifying DAP of the findings of the investigation and proposed dates for the completion and submittal of the final report to DAP.
         4. (iv) DAP is responsible for responding to the report or the interim report, as appropriate, within 30 days of receipt of such report.
         5. (v) For projects involving federal funds, TWDB field investigations will be conducted, where applicable, in a manner consistent with the National Historic Preservation Act, §106, the Secretary of the Interior's Guidelines on Archeology and Historic Preservation, the Regulations of the Advisory Council on Historic Preservation (36 Code of Federal Regulations Part 800), and the Antiquities Code of Texas.
         6. (vi) A draft annual report summarizing the past calendar year's investigations under each yearly permit will be submitted to DAP by April 1 of the following year. Each project investigation report within the annual report will be concise, but informative, and include the same levels of data required under the provisions of §26.24 of this title (relating to Reports Relating to Archeological Permits).
         7. (vii) Once the draft annual report is approved by DAP, TWDB will submit 20 copies of the final annual report to DAP no later than 90 days after TWDB has received DAP's approval of the draft report. The final annual report should be in a form that conforms to §26.24(a) of this title (relating to Reports Relating to Archeological Permits).
         8. (viii) Copies of field notes, maps, sketches, and daily logs, as appropriate, will be submitted to DAP along with the annual report. Where duplicates are impractical, originals may be submitted for microfilming. Upon completion of microfilming, originals will be returned to TWDB.
         9. (ix) During preservation, analysis, and report preparation or until further notice by DAP, artifacts, field notes, and other data gathered during investigations will be kept temporarily at the TWDB. Upon completion of annual reports, the same artifacts, field notes, and other data will be placed in a permanent curatorial repository at the Texas Archeological Research Laboratory, the University of Texas at Austin, or other DAP-approved repository, at no cost to the TWDB.
         10. (x) Should the staff archaeologist positions at the TWDB be eliminated, TWDB remains responsible for contracting with an individual who meets the requirements of this subparagraph, to serve as principal investigator to complete the year-end report to the DAP.
         11. (xi) The TWDB and/or its applicants for financial assistance may find that a particular project is so extensive or under such constraints of time and need that it is more efficient and effective for the archeological or related investigations to be conducted by a qualified archeologist under contract to the applicant. In such instances, the investigations will require a project specific antiquities permit to be obtained by the contracting archeologist.

         12. (xii) The following general procedures shall apply for investigation of all projects, including, but not limited to, the construction of water treatment and storage facilities, wastewater and sludge treatment and disposal facilities, water distribution and wastewater collection facilities, flood control modifications, municipal solid waste facilities, and reservoirs proposed to receive financial assistance from TWDB. Subject to those exceptions outlined below, the complete project will be investigated.

             1. (I) Archival research will be conducted at the Texas Archeological Research Laboratory, the University of Texas at Austin, and other facilities, as appropriate, to determine what cultural resources have been previously recorded in the vicinity of all proposed project construction areas. If the project can be shown to be in areas which have been extensively disturbed by previous development and/or unlikely to contain intact or significant cultural resources, then, based upon this initial review and information provided by the applicant for financial assistance, TWDB may request the DAP to allow the project to proceed to construction without further investigation.
             2. (II) When field investigations are determined to be necessary by TWDB or stipulated by DAP review, the field methodology shall include pedestrian survey of all project areas unless preliminary inspection determines that a particular project area has been substantially altered or is physiographically situated such that it appears highly unlikely that significant cultural resources occur in the area. Appropriate to the type of project and location, TWDB archeologists may undertake limited subsurface probing in the form of mechanical or shovel testing in order to identify and/or evaluate buried cultural remains. When field investigations reveal that no significant cultural resources are located in the proposed project areas and, in the opinion of the principal investigator, no damage to significant cultural resources is anticipated, as reflected in a written report to DAP, the project implementation will be allowed to proceed, subject to DAP concurrence with the recommendation under clause (iv) of this subparagraph. In cases where historic and/or prehistoric cultural resources are found in the vicinity of proposed construction areas, the principal investigator will assess the significance of the resources and make recommendations for avoidance, testing, or mitigation of potentially significant resources, as appropriate, in the reports on the investigations. Decisions will be based upon the need to conserve cultural resources without unduly delaying the progress of project implementation.
         13. (xiii) TWDB will ensure that it does not release funds for political subdivision construction prior to disposition, or formally agreed to disposition, of archeological and/or historical resources in accordance with DAP-approved reports referenced in clauses (iii), (iv), (v), and (xi) of this subparagraph. Conditions of the TWDB financial assistance will provide, consistent with §26.11 of this title (relating to Location and Discovery of Cultural Resources and Landmarks), that if an archeological site is discovered during project implementation, work will cease in the area of the discovery, the site will be protected, and the discovery will be reported immediately to the Texas Historical Commission.
         14. (xiv) Any member or agent of DAP may, with timely notice to TWDB, inspect TWDB investigations in progress subject to the provisions of the MOU and the yearly permit issued to TWDB by DAP.
         15. (xv) Said yearly permit is authorization for reconnaissance and 100% pedestrian survey and/or limited subsurface probing of areas of less than 300 acres when one TWDB staff archeologist is to conduct the investigation. When investigations of areas greater than 300 acres are proposed, TWDB shall consult with DAP regarding the need for a project specific permit. The investigation of tracts larger than specified above may require project-specific antiquities permits regardless of whether the TWDB has them performed by staff archeologists or by contract with other qualified archeologists. The above limitations do not apply to proposed pipeline or other linear construction projects wherein the total area to be examined may cumulatively exceed the acreage limitations.
         16. (xvi) Advanced archeological investigations such as archeological testing or mitigative archeological excavations are not covered under the yearly permits, and any such investigation deemed necessary by DAP will require a project-specific antiquities permit.
         17. (xvii) All conditions listed in the permit form remain unaltered by these guidelines.
      2. (B) Permits. An antiquities permit is to be issued for each calendar year that this agreement is in effect with the stipulation that the responsibilities as outlined above are to be observed. Failure to comply with the provisions of this MOU could result in cancellation of the yearly permits at the discretion of DAP. The results of the investigations will be evaluated at the end of each permit period. A new permit will be automatically issued to TWDB by DAP by January 15 of each calendar year, assuming all conditions of the previous permit and this MOU have been met.
      3. (C) Term. This Memorandum of Understanding will remain in full force and effect until canceled by the written notice of either party. The MOU may be amended by mutual written agreement between TWDB and DAP.

Source Note:The provisions of this §26.15 adopted to be effective February 12, 1993, 18 TexReg 581; amended to be effective April 11, 1994, 19 TexReg 2196; amended to be effective May 15, 1995, 20 TexReg 3241; transferred effective August 30, 1995, as published in the Texas Register October 17, 1995, 20 TexReg 8442; amended to be effective June 26, 1996, 21 TexReg 5437; amended to be effective February 9, 2000, 25 TexReg 719; amended to be effective August 28, 2002, 27 TexReg 7789.