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 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 are formal agreements which provide for the preservation of the environment and cultural resources; wise, productive use of the cultural and natural resources; good stewardship of publicly owned historic landmarks; and protection of public and private investment in historic properties.

2. (b) Primary Considerations and Stipulations. All agreements are subject to §§26.17, 26.20, and 26.21 of this title (relating to Issuance of Permits, Archeological Permit Categories, and Application for Archeological Permit). Primary considerations in the development of permit specific memoranda shall include: the significance of the cultural resource(s); the nature of the impact of the project on the cultural resource(s); and fiscally appropriate and cost-effective means to mitigate the effect 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. The committee may also require a performance bond to be posted prior to issuance of an antiquities permit. Memoranda of Understanding between the committee and other public agencies follow.

   1. (1) Texas Department of Transportation (TxDOT).

      1. (A) Need for agreement.

         1. (i) It is the practice of TxDOT to:

            1. (I) investigate fully the environmental impacts of TxDOT transportation projects, coordinate these projects with applicable state and federal agencies, and reflect these investigations and coordinations 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) complete public involvement and a systematic interdisciplinary approach as essential parts of the development process for transportation projects; and
            4. (IV) mitigate project impacts to provide environmentally sound roadway projects where such mitigation is feasible and prudent and where such mitigation is agreed upon by appropriate agencies.
         2. (ii) In order to pursue this policy, TxDOT, the Texas Historical Commission (THC), and the Texas Antiquities Committee (Committee) have agreed to develop the MOU, which will supersede TxDOT's MOU with the committee which became effective on January 5, 1972.
         3. (iii) Senate Bill 352, enacted by the 72nd Legislature, directs TxDOT to adopt a memoranda of understanding with applicable environmental resources agencies.
         4. (iv) The rules for coordination of state-assisted transportation projects developed by TxDOT, and published in the June 11, 1991, issue of the Texas Register (16 TexReg 3197) underline the need for and importance of comprehensive environmental coordination for all transportation projects.
         5. (v) It is the intent of this MOU to provide a formal mechanism by which THC and the committee may review TxDOT projects which have the potential to affect historic properties (cultural resources) within the jurisdiction of THC and the committee, and to develop a system by which information held by TxDOT, THC, and the committee may be exchanged to their mutual benefit.
         6. (vi) This memorandum supersedes that memorandum of understanding executed by TxDOT, THC, and the committee on January 31, 1992, and that memorandum of understanding is of no further force of effect.

      2. (B) 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)--Designates the Committee as the legal custodian of all cultural resources, historic and prehistoric, within the public domain of the State of Texas, and the body which issues antiquities permits, in accordance with this chapter and as provided in ACT, §§191.054 and 191.091-191.098.
         2. (ii) Antiquities permit--A permit issued by the committee in order to regulate site destruction, archeological testing, and archeological excavation.
         3. (iii) Archeological excavation (data recovery)--Use of field techniques, including those of archeological testing, but with the goal of addressing specific research issues identified with the site's historic context. Excavation (data recovery) is conducted under an approved data recovery plan developed in consultation with the state historic preservation officer and the Advisory Council on Historic Preservation, following the procedure set forth under 36 Code of Federal Regulations 800, for federal undertakings; or in consultation with the committee for non-federal undertakings, in accordance with this chapter.
         4. (iv) Archeological monitoring--Use of a professional archeologist present on-project when clearing and grubbing or other construction activities are being conducted. Should evidence of archeological remains be encountered, TxDOT will ensure that clearing and grubbing or other construction activities shall cease in the area of the archeological remains until these remains can be assessed and evaluated in accordance with appropriate state and federal laws and regulations.
         5. (v) Archeological resource/site--Locations where prehistoric or historic remains are found in a primary deposit, excluding extant standing structures dating from the historic time period. Note that archeological sites can be associated with a historic structure and historic structural ruins can be designated as archeological sites §26.5 of this title (relating to Definitions). However, an extant standing structure itself (as contrasted to a historic structural ruin) does not constitute an archeological site in the absence of other associated remains. Prehistoric ruins are considered to be archeological sites.
         6. (vi) Archeological survey--Archeological field methods used to locate archeological remains, including on-foot examination of the surface, shovel testing, and subsurface trenching by mechanical means where appropriate.
         7. (vii) Archeological testing--Use of field techniques including excavation of holes larger or deeper than those of a shovel test, and including mechanical trenching and removal of artifacts. Archeological field research limited to determination of eligibility for the National Register of Historic Places (NRHP) for federal undertakings, as defined in 36 Code of Federal Regulations 800, or determination of significance for non-federal undertakings, as defined in Chapters 26, 27, and 28 of this title (relating to Practice and Procedure; Procedure; and State Archeological Landmarks). The review agency will determine what level of testing is appropriate under the MOU. The committee will determine when test phase investigations warrant an antiquities permit.
         8. (viii) Committee--The Texas Antiquities Committee.
         9. (ix) Cultural resources--A general term synonymous with "historic properties."
         10. (x) Eligibility--A site's eligibility for the NRHP as set forth in 36 Code of Federal Regulations 800.
         11. (xi) Environmental documents--Decision-making documents which incorporate the results of environmental studies, coordination and consultation efforts, and engineering elements. Types of documents include categorical exclusion assessments, environmental assessments, and environmental impact statements.
         12. (xii) Historic property--Any prehistoric or historic district, site building, structure, or object included in, or eligible for inclusion in the NRHP, as defined in 36 Code of Federal Regulations 800.2.
         13. (xiii) Historic resource--A feature of the built environment which is potentially eligible for listing in the NRHP as defined in 36 Code of Federal Regulations 60.
         14. (xiv) Historic resource survey--Examination of the project for the presence of historic resources.
         15. (xv) Mechanical testing--Excavation with backhoe, Gradall, or other heavy equipment in order to locate archeological remains.
         16. (xvi) Project development--The planning process of a highway project, which includes engineering design as well as environmental studies and public involvement procedures. Project development generally includes all studies of a project prior to actual construction.
         17. (xvii) Review agency--The appropriate review agency for each particular circumstance. THC has jurisdiction over federal undertakings, as defined in 36 Code of Federal Regulations 800, and the Committee has jurisdiction over non-federal undertakings and the issuing of antiquities permits, as provided in ACT, §191.054 and §191.098.
         18. (xviii) Right-of-way--The land provided for a highway, usually including the roadway itself, shoulders, and areas between the roadway and adjacent properties.
         19. (xix) Shovel testing--Excavation of test holes which shall measure at least 35 centimeters in diameter and shall be excavated to a basal horizon or bedrock, or to a depth of at least one meter if a basal horizon or bedrock is not reached. This technique is used both in areas where surface visibility is low and in areas where the potential for archeological remains is high. Shovel testing is also used when surface indications of archeological remains are encountered in order to provide a preliminary determination of the depth of the cultural deposits.
         20. (xx) State archeological landmark--Archeological and historic properties as defined in the ACT, Subchapter D, and identified in accordance with Chapters 26 and 28 of this title (relating to Practice and Procedure and State Archeological Landmarks).
         21. (xxi) Subsurface survey--Mechanical or hand-dug probing of a site or project area during the survey phase to record or examine subsurface deposits for the collection of archeological or geomorphic data.

      3. (C) Responsibilities.

         1. (i) TxDOT.

            1. (I) The responsibilities of TxDOT pertain to its functions as a transportation agency, and include the following:

               (-a-) planning and designing safe, efficient, cost-effective, and environmentally sound transportation facilities, and avoiding, minimizing, or compensating for environmental impacts as far as practicable when they are anticipated to occur;

               (-b-) the timely and efficient construction of transportation facilities, executed in a manner consistent with approved plans or agreements which have been entered into by the department for the protection of the natural environment and cultural sites; and

               (-c-) the ongoing maintenance of these facilities to provide safe, efficient, and environmentally sound transportation facilities for the traveling public, and dedication to the protection of natural and cultural resources within the jurisdiction of TxDOT;

               (-d-) a commitment to the preservation and enhancement of the human environment.

            2. (II) Senate Bill 352 which became effective on September 1, 1991, directs TxDOT to adopt an MOU with each state agency that has responsibilities for the protection of the natural environment or for the preservation of historic and archeological resources.
         2. (ii) THC. THC, through the Office of the State Historic Preservation Officer (SHPO), regulates the disposition and management of historic properties which are affected by federal undertakings, as described in the National Historic Preservation Act, §106, and in 36 Code of Federal Regulations 800.

         3. (iii) The committee.

            1. (I) The committee regulates the disposition and management of archeological landmarks which are affected by non-federal undertakings, as described in the ACT and this chapter.
            2. (II) The committee issues permits for the taking, excavation, restoration, or study of state archeological landmarks as provided in ACT, §§191.054 and 191.091-191.098.

      4. (D) Provisions.

         1. (i) Procedures for coordination regarding archeological resources.

            1. (I) Initial coordination phase.

               (-a-) TxDOT may combine the initial coordination phase with the archeological survey phase in order to expedite project coordination. In these cases, the review agency will be afforded an opportunity to comment on both the survey methodology and survey results.

               (-b-) TxDOT will identify projects requiring coordination for archeological resources, as indicated by the level of project documentation. Such projects include:any project which, although classified as a categorical exclusion (CE), is judged to have the potential to affect archeological resources;all projects requiring issuance of a finding of no significant impact (FONSI), when such a project is judged to have the potential to affect archeological resources; andall projects requiring an environmental impact statement (EIS).

               (-c-) TxDOT will identify projects which are not believed to require individual coordination for archeological sites and will provide THC and the Committee with a list of such projects on a monthly basis.

               (-d-) TxDOT will begin coordination by conducting a search of the site files at the Texas Archeological Research Laboratory (TARL) as well as site files and survey records held at the THC and the Committee. THC and the Committee will render TxDOT all reasonable assistance in the search.

               (-e-) TxDOT will request a review of the project by the review agency. TxDOT will submit for review:plans, project descriptions, and other documentation required by the review agency for review;a statement detailing the result of the site files search, including information on any sites listed in the site files and occurring on or near the project, including a list of properties on or near the project which are listed in the NRHP, or are designated as state archeological landmarks (SALs); anda statement recommending which portions of the project are to be surveyed, the techniques to be used on each part of the project, and identifying the portions of the project which have high likelihood of yielding archeological remains.

               (-f-) The review agency will respond within 30 days of receipt of the TxDOT request for review of the project. The response will include:a statement of concurrence or nonconcurrence with the results of the site files check and the survey recommendations contained in the TxDOT request for review; andany other comments relevant to the archeological resources which could be affected by the project.

               (-g-) TxDOT will include the results of the site files search, survey recommendations, and comments received from the review agency in any environmental assessment or draft EIS written as part of the project, and will present findings at the public hearing, if such hearing is held.

            2. (II) Archeological survey phase.

               (-a-) All projects, and portions of projects, recommended for survey by TxDOT and for which concurrence has been obtained from the review agency during the initial phase of coordination will be the subjects of archeological survey using the methods agreed upon between TxDOT and the review agency.

               (-b-) An archeological survey will be conducted by a member of the TxDOT professional archeological staff or other archeologist approved by the review agency.

               (-c-) When the archeological survey has been completed, TxDOT will request a review of the results of the survey. With its request for review, TxDOT will include:a letter report or form detailing the results of the survey, including a discussion of any deviations from the methods agreed upon during the initial phase of coordination;the project location plotted on 7.5' Series USGS quadrangle maps;copies of archeological site survey forms for any new archeological sites discovered during survey;copies of archeological site survey forms for any previously recorded archeological sites;recommendations regarding archeological testing or archeological monitoring; andif deemed necessary, the review agency may request TxDOT to produce a formal report of findings made as a result of a survey phase investigation.

               (-d-) The review agency will respond within 30 days of receipt of the TxDOT request for review of the survey results and recommendations. The response will include:a statement of concurrence or nonconcurrence with the results of the site files check and the survey results contained in the TxDOT request for review; andany other comments relevant to the archeological resources which could be affected by the project.

               (-e-) TxDOT will include the results of the archeological survey and recommendations in the environmental assessment or final EIS, if one is prepared.

            3. (III) Archeological testing phase.

               (-a-) All sites and portions of sites recommended for testing by TxDOT, THC, or the Committee will be subjects of archeological testing, using methods agreed upon by TxDOT and the review agency.

               (-b-) The review agency may send a representative to observe any or all of the testing procedures.

               (-c-) At the completion of testing, TxDOT will prepare a formal report of the results of testing.For sites affected by federal undertakings, the report will include recommendations regarding eligibility for the NRHP, as described in 36 Code of Federal Regulations 800.For sites affected by non-federal undertakings, the report will include recommendations regarding the significance of the site and whether designation as an SAL is warranted, in accordance with ACT, §191.091 and §191.092, and Chapters 26, 27, and 28 of this title (relating to Practice and Procedure; Procedure; and State Archeological Landmarks).

               (-d-) TxDOT will send the testing report to the review agency with a request for review.

               (-e-) THC, in accordance with 36 Code of Federal Regulations 800, will respond to the report within 30 days of receipt of the TxDOT request for review. The response will include:a statement of concurrence or nonconcurrence with the results of the archeological testing and recommendations contained in the TxDOT request for review;a determination of the site's eligibility for listing in the NRHP; andany other comments relevant to the archeological site which has undergone archeological testing.

               (-f-) The Committee, in accordance with this chapter and the ACT, Chapter 191, will respond to the report within 60 days of receipt of the TxDOT request for review. The response will include:a statement of concurrence or nonconcurrence with the results of the archeological testing and recommendations contained in the TxDOT request for review;a determination of whether the site warrants designation as an SAL; andany other comments relevant to the archeological site which has undergone archeological testing.

               (-g-) TxDOT will include the results of the archeological survey and recommendations in the environmental assessment or final EIS, if one is prepared.

               (-h-) The Committee may require an antiquities permit be issued for some test phase investigations if the scope of the investigations warrants it. All testing performed by non-TxDOT staff archeologists must be performed under an antiquities permit.

            4. (IV) Archeological excavation/data recovery.

               (-a-) All sites and portions of sites determined to be eligible for the NRHP (for federal undertakings) or significant (for non-federal undertakings) based on consultation with the review agency during the survey phase or testing phase will be the subjects of data recovery.

               (-b-) TxDOT (or their contracted agent), in consultation with the review agency, will develop a suitable data recovery plan for each eligible or significant archeological site on a case-by-case basis, in accordance with 36 Code of Federal Regulations 800 for federal undertakings and the ACT, Chapter 191, for non-federal undertakings. Final data recovery plans must be approved by the review agency prior to their implementation.

               (-c-) Results of data recovery will be published as required by 36 Code of Federal Regulations 800 and/or the ACT, Chapter 191.

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

               (-a-) When previously unknown archeological remains are encountered after award of contract, TxDOT will immediately suspend construction that would affect the site.

               (-b-) A TxDOT archeologist will examine the remains and report the findings to the appropriate review agency. The Federal Highway Administration (FHWA) will enter consultations regarding the disposition of the site or sites for federal undertakings, as required by 36 Code of Federal Regulations 800.

               (-c-) TxDOT and the review agency will prepare a plan of action to determine eligibility or significance, and/or mitigate the effects on the site.

               (-d-) TxDOT may continue construction in the affected area upon approval of the review agency.

         2. (ii) Procedures for coordination regarding historic resources.

            1. (I) TxDOT will identify projects requiring coordination with the review agency for historic resources. Coordination will be required for:

               (-a-) any project which, although classified as a CE, is judged to have the potential to affect historical resources;

               (-b-) any project requiring the issuance of an FONSI, when such project is judged to have the potential to affect historic resources; and

               (-c-) all projects requiring an EIS.

            2. (II) TxDOT will identify which projects require individual coordination for historic resources. TxDOT will provide a list of those projects which do not require individual coordination to THC and the Committee on a monthly basis.
            3. (III) For projects requiring individual coordination, TxDOT will conduct a search of available records, references, and resources, including listings of Registered Texas Historic Landmarks (RTHLs), SALs, and properties listed in the NRHP, as well as local historic property survey files on record at THC. THC and the Committee will render all reasonable assistance to TxDOT in the search.
            4. (IV) TxDOT will conduct historic resources surveys to locate historic resources which are potentially eligible for inclusion in the NRHP.

            5. (V) For each project requiring individual historic resources coordination with the review agency, TxDOT will provide the following:

               (-a-) plans, project descriptions, and other documentation as needed;

               (-b-) a statement detailing the results of the records search; and

               (-c-) a summary of the results of the historic resources survey, describing all resources:listed in or potentially eligible for listing in the NRHP for federal undertakings; orwhich possess historical interest as defined by the ACT, §191.092, for non-federal undertakings.

            6. (VI) The review agency will respond within 30 days of receipt of the TxDOT request for review of the project. The response will be in accordance with 36 Code of Federal Regulations 800, ACT, Chapter 191, and this chapter.
            7. (VII) TxDOT will include information on historic resources in the environmental assessment or final EIS, if one is prepared.
            8. (VIII) All historic resources either listed in or determined eligible for listing in the NRHP (for federal undertakings) or designated SALs (for non-federal undertakings) which are affected by projects will be subject to mitigation of these effects.

            9. (IX) TxDOT, in consultation with the review agency, will develop a suitable mitigation plan:

               (-a-) in accordance with 36 Code of Federal Regulations 800 for historic resources listed in or determined eligible for listing in the NRHP for federal undertakings; or

               (-b-) in accordance with the ACT, Chapter 191, for historic resources designated as SALs for non-federal undertakings. Final mitigation plans must be approved by the review agency prior to implementation of mitigation efforts.

         3. (iii) Artifact recovery and curation.

            1. (I) Artifact recovery.

               (-a-) All artifacts or analysis samples (such as soil samples) that are recovered from survey, testing, or data recovery investigations by TxDOT or their contracted agents must be cleaned, labeled, and processed in preparation for long-term curation.

               (-b-) Recovery methods must conform to 36 Code of Federal Regulations 800, Committee rules, and/or Council of Texas Archeologists (CTA) guidelines to ensure proper care and curation.

            2. (II) Artifact curation.

               (-a-) TxDOT may temporarily house artifacts and samples during their laboratory analysis research, but all artifacts must be transferred to a permanent curatorial facility within a reasonable time period, to be decided by the review agency.

               (-b-) All artifacts and samples must be placed at the Texas Archeological Research Laboratory or some regional artifact curatorial repository which fulfills 36 Code of Federal Regulations 800, Committee rules, or CTA curation standards, as approved by the review agency.

               (-c-) TxDOT is responsible for the curatorial preparation of all artifacts so that they are acceptable to the receiving curatorial repository and fulfill 36 Code of Federal Regulations 79, Committee rules, or CTA curation standards, as approved by the review agency.

         4. (iv) Resolution of objections.

            1. (I) Should the reviewing agency timely object (within stipulated review period) to any plans provided for review or any actions proposed by TxDOT regarding:

               (-a-) any phase of coordination for archeological resources including initial coordination, survey, testing, excavation/data recovery, and reporting;

               (-b-) any phase of coordination for historic resources including initial coordination, historic resources survey, and mitigation; or

               (-c-) curation of site materials, documentation, and samples, TxDOT and reviewing agency shall enter into consultation to resolve the objection.

            2. (II) If the objection cannot be resolved through the consultation process, either TxDOT or the reviewing agency, at any time, may terminate consultation and invoke the provisions of subparagraph (E) of this paragraph.

      5. (E) Dispute resolution.

         1. (i) In such instances when TxDOT and the review agency are unable to reach a mutually agreeable plan of action regarding survey, testing, determination of eligibility or significance, or mitigation, a good-faith effort will be made to develop a compromise plan.

         2. (ii) If TxDOT and the review agency cannot arrive at a compromise plan, the dispute will be resolved in accordance with procedures established under state and federal rules.

            1. (I) Federal undertakings will follow the procedures provided in 36 Code of Federal Regulations 800, including consultation with the Advisory Council on Historic Preservation, if necessary.
            2. (II) Non-federal undertakings will follow the procedures provided in Chapters 26, 27, and 28 of this title (relating to Practice and Procedure; Procedure; and State Archeological Landmarks).
      6. (F) Review of MOU. This memorandum shall be reviewed and updated no later than January 1, 1997, and every fifth year after that date, as provided for in Senate Bill 352 and Texas Civil Statutes, Article 6673g, §3(d).

   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.

   3. (3) Texas Parks and Wildlife Department (TPWD).

      1. (A) General Provisions. By means of this Memorandum of Understanding (MOU), the TPWD is able to provide legal notification of pending development projects, and perform construction monitoring, archeological surface reconnaissance, and intensive cultural resource surveys (including shovel tests and limited mechanical subsurface probings) on all properties owned or controlled by TPWD. An Antiquities Permit will be issued for each year that this agreement is in effect, with the stipulation that the following guidelines are to be observed. Failure to follow the guidelines could result in cancellation of the annual permit at the discretion of the Department of Antiquities Protection (DAP). The results of the investigations will be evaluated at the end of each permit period. New permits will be automatically issued to TPWD by DAP by January 15 of each calendar year assuming all conditions of the agreement have been met. The MOU may be amended upon the agreement of TPWD and DAP. This MOU voids all previously issued blanket permits or memoranda between DAP and TPWD.

      2. (B) Conditions and Exceptions for all TPWD lands.

         1. (i) Construction projects in or on lands owned or controlled by TPWD, that are more than an acre in size (not counting well pads that may be smaller than one acre) and involve new construction techniques (i.e., bulldozing, root plowing, disking, construction projects, etc., where similar activities have not occurred before), need to be reviewed by DAP prior to development, and archeological surveys may be necessary.
         2. (ii) Large scale (over ten acres; total or cumulative effect) disking and/or plowing projects or other traditional land use techniques, in areas that have been previously disked or plowed (including revegetation and fire line projects), need to be reviewed by DAP prior to development, and archeological surveys may be deemed necessary.
         3. (iii) New or replacement fence line construction projects do not need to be reviewed by DAP if construction involves hand clearing of vegetation, and there is no new development of fence line roads or fire breaks that involve ground disturbing activities, such as bulldozing. New bulldozing or disking related to fence line construction needs to be reviewed by DAP, and archeological surveys may be deemed necessary.
         4. (iv) Road grading/maintenance for erosion control, etc., on existing roads does not need to be reviewed by DAP, if there are no recorded or known archeological sites that the roads pass through, or are close by, and if maintenance does not involve widening or lengthening of the existing road. However, any new construction along existing roads, such as disking for fire lines, mechanical brush clearing, and burning, etc., needs to be reviewed by DAP prior to development, and archeological surveys may be deemed necessary.
         5. (v) Prescription burns and hand clearing of any kind does not need to be reviewed by DAP, but associated fire line construction that falls under clause (ii) of this subparagraph will need to be reviewed.
         6. (vi) Any areas or projects that have been previously cleared by DAP for development do not need to be reviewed by DAP again, as long as any future proposed developments are similar to those cleared in the past. As an example, any area that was previously cleared by DAP for developments (such as disking) does not need to be reviewed again for future disking in that same area. However, if the area was cleared for disking but is now going to be bulldozed or otherwise deeply excavated, that proposal will need to be reviewed by DAP, and archeological investigations may be deemed necessary.
         7. (vii) Any time that archeological deposits or other cultural resources (such as historic home sites or ranching facilities, pictographs, etc.) are discovered on TPWD lands, they must be reported to DAP and the office of the Cultural Resource Administrator of the Public Lands Division, in order to maintain a central repository of archeological information. The Public Lands Division and the Wildlife Division will report according to the provisions set forth in the following sections.

      3. (C) Public Land Division's Responsibilities.

         1. (i) The Public Lands Division (PLD) and its employees must comply with the conditions and exceptions in subparagraph (B) of this paragraph.
         2. (ii) TPWD Resource Specialists (RSs) employed by PLD, and any Austin-based archaeological field investigators or contracted investigators, assigned to each proposed archeological clearance project must meet DAP requirements for a Principal Investigator as listed in §26.5 of this title (relating to Definitions).
         3. (iii) Informed in writing by RSs, the Cultural Resource Administrator (CRA) is responsible for sending DAP advanced (30-day) written notification of proposed development projects that require review under subparagraph (B) of this paragraph. The notification letter must include information on the type of project development being undertaken, the kind of archeological investigation proposed, a project location map plotted on a copy of a USGS 7.5' topographic quad map, and the expected dates of the field work. DAP is responsible for responding in writing within 30 days of receipt of each review request. If PLD does not hear from DAP within that period of time, PLD may proceed with the proposed development project in question, without further notice to DAP. Only in an emergency situation can a notification be made by phone, with a written notification to follow.
         4. (iv) The annual permit authorizes construction monitoring, surface reconnaissance, and intensive cultural resource surveys of certain areas and projects. If proposed areas of intensive surveys are to be performed by only one qualified RS, those surveys should not exceed 200 acres. Intensive surveys larger than 200 acres will require project-specific permits. Advanced archeological investigations, such as archeological testing or mitigative archeological excavations, are not covered under the annual permit, and any such investigations deemed necessary by DAP or TPWD will require project-specific permits regardless of whether a qualified RS performs the investigations or they are contracted out with other professional archeologists. Reconnaissance level surveys may exceed 200 acres but such investigations may not be used in place of intensive surveys, thus no construction clearance can be issued relative to this level of investigation.
         5. (v) All survey level investigations must meet or exceed common archeological standards as described in §26.20 of this title (relating to Archeological Permit Categories) and the Council of Texas Archeologist's Guidelines. Limited mechanical (backhoe, etc.) methods can be employed to determine if buried cultural deposits exist and to gain geoarcheological (geomorphological) data.
         6. (vi) Routed through the CRA, RSs will send a concise interim report to DAP notifying it of the findings of the investigations if construction clearance is desired. The interim report will contain information on the basic scope of work, findings, conclusion, a project map (showing the investigation area and any cultural site locations recorded), copies of State Site Survey forms, a project development clearance request (when appropriate), and any recommendation for further work. When appropriate, DAP will grant clearance when report findings have been submitted and approved.
         7. (vii) DAP is responsible for responding in writing to the interim report within 30 days of receipt of each report. If PLD does not hear from DAP within that period of time, it may proceed with the proposed development project in question, without further notice to DAP.
         8. (viii) If a qualified RS identifies no cultural sites located in a proposed construction area or anticipates no damage to cultural properties, TPWD may proceed with planned improvements once cleared by DAP. When the RS or contract archeologist identifies cultural materials that should receive some measure of protection, warrant further investigation, or are considered eligible for official State Archeological Landmark designation, and adverse impacts to the site can be avoided during construction, he/she will clearly mark the site so that development will not impact it. If vegetation clearing is necessary on the cultural site, it will be done by hand or in a fashion that inflicts no damage to the cultural site. Any on-site decisions made by an RS, regarding protective measures for a cultural site, will be respected by TPWD employees and contractors. Decisions will be based upon the need to conserve cultural sites and proceed with construction in a timely manner.
         9. (ix) If the RS, CRA, or DAP believe that further investigations are necessary prior to or during a development project, those arrangements must be agreed upon and investigations performed before any further site development may proceed.
         10. (x) By February 1 of each year, RSs are responsible for providing the CRA with a draft annual report for their region which constitutes a concise summary of their investigations during the previous year, with supporting documents. In case of an RS's vacancy, the regional director for that region will be responsible for submitting a draft annual report and supporting documents to the CRA.
         11. (xi) The draft annual report of the past year's investigations will be compiled and edited by the CRA, who will submit the report to DAP by April 1 of the following year. Each project investigation report within the annual report will be concise and informative, and include the same levels of data required under §26.24 of this title (relating to Reports Relating to Archeological Permits).
         12. (xii) Copies of State Site Survey forms, field notes, maps, sketches, and daily logs will be submitted to DAP along with the draft annual report. Where duplicates are impractical, originals may be submitted.
         13. (xiii) Once the draft annual report is approved by DAP, TPWD will submit 20 copies of the final annual report to DAP no later than 90 days after TPWD has received DAP's approval of the draft annual report. The final annual report should be in a format that conforms to §26.24(a) of this title (relating to Reports Relating to Archeological Permits).
         14. (xiv) While this MOU is primarily concerned with the proper administration of archeological resources, it is understood that TPWD expects its RSs to help manage the historic architectural resources on TPWD properties. Because of this, each RS should notify the CRA and the Architecture, Engineering, and Landscape Architecture Branch of TPWD of proposed or potential impacts to historic structures. TPWD is then responsible for notifying the Division of Architecture of the Texas Historical Commission. RSs will not be responsible for reporting architectural projects within their annual report.
         15. (xv) All other conditions listed in the permit form remain unaltered by these additional guidelines.

      4. (D) Wildlife Division's Responsibilities.

         1. (i) The Wildlife Division (WD) and its employees must comply with the conditions and exceptions in subparagraph (B) of this paragraph.
         2. (ii) As defined within subparagraph (B) of this paragraph, WD is responsible for all notifications related to applicable development projects and all requests for reviews should be received by DAP from the administrative office of WD in Austin 30 days prior to the proposed start of any such proposed development project. If an emergency situation exists, the notification may be made by phone, with a written notification to follow. DAP is responsible for responding in writing within 30 days of receipt of each review request. If WD does not hear from DAP within that period of time, it may proceed with the particular proposed development project in question without further notice to DAP.
         3. (iii) All project reviews or clearance requests from Wildlife Management Area (WMA) staff, or Regional Offices of the WD, should direct their requests through the Administrative Office of WD in Austin and not directly to DAP. If an emergency situation exists, the notification may be made directly to DAP by phone, with a written notification to follow.
         4. (iv) If an area cannot be avoided and DAP determines or concurs that an archeological survey or other investigation is needed related to a proposed development project, WD must have those investigations done by a qualified professional archeologist as defined in §26.5 of this title (relating to Definitions), under a project specific Antiquities Permit. If an RS performs investigations for WD, those findings are to be reported in the Public Lands annual report. If at such time in the future WD hires its own staff archeologist, he or she could perform investigations under an annual permit.
         5. (v) All archeological investigations performed within WMA's must meet or exceed common archeological standards as described in §26.20 of this title (relating to Archeological Permit Categories), and the Council of Texas Archeologist's Guidelines. Limited mechanical (backhoe, etc.) methods can be employed during a survey level investigation to determine if buried cultural deposits exist, and to gain geoarcheological (geomorphological) data.
         6. (vi) All clearance requests and/or report productions standards related to WD project specific permit investigations will follow normal permit procedures as defined in §26.24 of this title (relating to Reports Relating to Archeological Permits).

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.