1. (a) Introduction.

   1. (1) Whereas, the Texas Water Development Board (hereinafter TWDB) and the Texas Historical Commission (hereafter Commission) desire to enter into a memorandum of understanding (MOU) under which TWDB is granted permission under the Antiquities Code of Texas for ongoing, long-term surveys by TWDB staff archeologists for all types of archeological sites which relate to proposed development projects funded by the TWDB; and
   2. (2) Whereas, under the provisions of the Texas Natural Resources Code, the Commission is charged with the responsibility of the protection and preservation of the archeological and historical resources of Texas; and
   3. (3) Whereas, under the provisions of Texas Natural Resources Code, Chapter 191, Subchapter C, Section 191.051, Section 191.053, and Section 191.054, Commission may contract with or issue permits to other state agencies for the discovery and scientific investigation of archeological deposits; and
   4. (4) Whereas, under the provisions of Texas Water Code, Chapter 6, Section 6.104, TWDB may enter into a MOU with any other state agency and may adopt by rule any MOU between TWDB and any other state agency; and
   5. (5) Whereas, under the provisions of this MOU, an Antiquities Permit is to be issued by Commission to TWDB for each calendar year that this agreement is in effect, subject to fulfillment of certain stipulated conditions discussed within this section;
   6. (6) Now, therefore, the Commission and TWDB agree to enter into this memorandum of understanding to provide archeological surveys of all projects to be constructed with financial assistance from the TWDB.

2. (b) Responsibilities. The TWDB will conduct surveys in a systematic manner 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 must 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. (1) TWDB will comply with Texas Administrative Code requirements for a principal investigator as listed in Section 26.5 of this chapter. Each individual, as principal investigator, must be involved in at least 25% of the field investigation performed under the agreement.
   2. (2) TWDB's staff archeologists will send the Commission advance written notification of the following activities: proposed reconnaissance, 100% pedestrian surveys and/or sample subsurface probing investigations. The notification letters must 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. (3) TWDB staff archeologists will send the Commission a report within 45 days of the completion of each investigation, notifying the Commission of the findings of the investigation. The report must 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 45 days to prepare, TWDB staff archeologists will send a brief interim report notifying the Commission of the findings of the investigation and proposed dates for the completion and submittal of the final report to the Commission.
   4. (4) The Commission is responsible for responding in writing to the report or the interim report, as appropriate, within 30 days of receipt of such report.
   5. (5) For projects involving federal funds, TWDB field investigations will be conducted, where applicable, consistent with the National Historic Preservation Act, Section 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 Texas Antiquities Code.
   6. (6) A draft annual report summarizing the past calendar year's investigations under each yearly permit will be submitted to the Commission 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 rule provisions of Section 26.24 of this chapter.
   7. (7) Once the draft annual report is approved by the Commission, TWDB will submit 20 copies of the final annual report to the Commission no later than 90 days after TWDB has received Commission's approval of the draft report. The final annual report should be in a form that conforms to Section 26.24 of this chapter, pertaining to Archeological Permit Reports.
   8. (8) When requested by the Commission, copies of field notes, maps, sketches, and daily logs, as appropriate, will be submitted to the Commission along with the annual report. Where duplicates are impractical, originals may be submitted for scanning. Upon completion of scanning, originals will be returned to TWDB.
   9. (9) During preservation, analysis, and report preparation or until further notice by the Commission, 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 Commission approved repository.
   10. (10) Should the staff archeologist positions at the TWDB be eliminated, TWDB remains responsible for contracting with an individual who meets the requirements of subsection (b)(1) of this Section to serve as principal investigator to complete the year-end report to the Commission.
   11. (11) 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. (12) 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. (A) 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 Commission to allow the project to proceed to construction without further investigation.
       2. (B) When field investigations are determined to be necessary by TWDB or stipulated by the Commission's 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 limited manual excavations 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 the Commission, the project implementation will be allowed to proceed, subject to the Commission's concurrence with the recommendation under subsection (b)(4) of this section. 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.
       3. (C) 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 the Commission approved reports referenced in paragraphs (3), (4), (5), and (11) of this subsection. Conditions of the TWDB financial assistance will provide, consistent with Section 26.11(4) of this chapter, 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.
   13. (13) Any member or agent of the Commission 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 the Commission.
   14. (14) 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 the Commission 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.
   15. (15) 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 the Commission will require a project-specific antiquities permit.
   16. (16) All conditions listed in the permit form remain unaltered by these guidelines.
3. (c) 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 the Commission. 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 the Commission by January 15 of each calendar year, assuming all conditions of the previous permit and this MOU have been met.
4. (d) 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 the Commission.

Source Note:The provisions of this §26.15 adopted to be effective June 8, 2004, 29 TexReg 5608.