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 (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 of 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 the Texas Parks and Wildlife Department follow.

3. (c) Texas Parks and Wildlife Department (TPWD) will comply with the provisions of this section. For the purpose of this section, "TPWD lands" means lands owned or under the control of TPWD.

   1. (1) General Provisions.

      1. (A) TPWD shall:

         1. (i) notify the Texas Historical Commission (THC) of pending construction and maintenance projects in accordance with all applicable provisions of this section;
         2. (ii) perform and report on construction monitoring, archeological surface reconnaissance, and intensive cultural resource surveys on TPWD lands, in accordance with all applicable provisions of this section; and
         3. (iii) notify THC when cultural resources are discovered on TPWD lands.
      2. (B) THC will issue an annual Antiquities Permit to TPWD by January 15th of each year that this MOU is in effect, upon a finding by THC of successful completion by TPWD of the annual Antiquities Permit issued two years before that date.
      3. (C) This MOU may be revised and amended upon the agreement of TPWD and THC.

   2. (2) Scope of TPWD Annual Antiquities Permit Archeological Investigations.

      1. (A) Archeological investigations. The annual permit authorizes construction monitoring, surface reconnaissance, shovel testing, rock art recording and conservation, and intensive cultural resource surveys of TPWD lands up to 200 acres.

         1. (i) Reconnaissance surveys as defined in Section 26.5 of this title (concerning Definitions) conducted under the annual permit may exceed 200 acres, but such investigations may not be used to obtain project approval from THC.
         2. (ii) Limited backhoe or other mechanical excavations may be used during survey-level investigations to determine whether buried cultural deposits exist, and to obtain geoarcheological (geomorphological) data.
         3. (iii) The following investigations are not authorized under this permit. Intensive surveys covering over 200 acres and/or advanced archeological investigations such as testing or data recovery as defined in Section 26.5 of this title (concerning Definitions) will not be conducted under this permit. Architectural investigations are not authorized under this permit, but will be conducted in accord with Sections 26.5, 26.7, 26.18, 26.22, and 26.25 of this title (concerning Definitions, Criteria for Evaluating Historic Structures, Issuance and Restrictions of Historic Structure Permits, Application for Historic Structure Permits, and Reports Relating to Historic Structure Permits).
      2. (B) Qualifications. Investigations will be conducted under the supervision of qualified TPWD archeologists or archeologists contracted by TPWD who meet THC requirements for principal investigator as listed in Section 26.5 of this title (concerning Definitions).
      3. (C) Standards. All archeological investigations performed on TPWD lands must meet archeological standards as described in Section 26.20 of this title (concerning Archeological Permit Categories).

   3. (3) THC Archeological Review of Proposed Projects on TPWD Lands.

      1. (A) Projects reviewed by THC. Construction or maintenance projects on TPWD lands that impact the ground surface or subsurface shall be submitted for THC review prior to project inception, when the project:

         1. (i) impacts a total or cumulative surface area greater than one acre and involves construction or maintenance activities including but not limited to bulldozing, root plowing, disking, construction projects, etc., in areas where similar activities have not occurred before;
         2. (ii) impacts a total or cumulative surface area greater than 10 acres, even if similar activities have occurred in that area before;
         3. (iii) is new or replacement fence construction that involves new fence line roads, fire lanes, bulldozing, or other ground-disturbing activities aside from post holes;
         4. (iv) is grading or maintenance of a road when the road and/or its ditches will be lengthened or widened;
         5. (v) is prescription burning or hand clearing of any kind that disturbs the ground surface in areas larger than one acre where similar activities have not occurred before; or
         6. (vi) is any type of project not described in Section 26.16(c)(3)(B).

      2. (B) Projects not reviewed by THC. Construction or maintenance projects on TPWD lands that result in no impact to the ground surface or subsurface will not be reviewed by THC prior to project inception. In addition, construction or maintenance projects on TPWD lands that result in impact to the ground surface or subsurface will not be reviewed by THC prior to project inception when the project:

         1. (i) impacts a total or cumulative surface area of one acre or less;
         2. (ii) consists of disking, plowing, or other periodic activities impacting a total or cumulative area of up to 10 acres where similar activities have occurred before;
         3. (iii) is new or replacement fence construction that does not involve new fence line roads, fire lanes, bulldozing, or other ground disturbing activities aside from post holes;
         4. (iv) is grading or other maintenance of a road when the road and/or its ditches will not be lengthened or widened; or
         5. (v) is prescription burning or hand clearing of any kind that does not disturb the ground surface, historic structures, and/or rock art.
      3. (C) Prior THC approval of ground-disturbing projects. Any areas impacted by projects that have been approved by THC do not need to be reviewed by THC again if the proposed impacts are of the same nature and extent as those approved within the last ten (10) years.
      4. (D) TPWD review of projects. TPWD will review all projects that have the potential to impact known cultural resources. Notwithstanding the provisions of this subparagraph, TPWD may elect to initiate archeological investigations when proposed projects have the potential to impact cultural resources, on the recommendation of the Cultural Resources Program Director.

   4. (4) Procedures for Proposed Projects.

      1. (A) Notification to THC of proposed projects. TPWD shall send THC written notification no less than 30 days in advance of proposed projects that require review under Section 26.16(c)(3)(A). In rare cases when a response from THC is needed in less than 30 days, notification may be made by telephone, with a written notification to follow. Project review requests concerning Wildlife Management Areas shall be directed to THC through the Wildlife Facilities Coordinator (WFC), and project review requests concerning State Parks and other TPWD properties shall be directed to THC through the Cultural Resources Program Director (CRPD). Each notification must include information on:

         1. (i) the type of project that is proposed, including the nature and extent of its impacts;
         2. (ii) any prior impacts that have affected the project area;
         3. (iii) the project location plotted on a copy of a USGS 7.5' topographic quadrangle map, showing any known archeological sites in the vicinity; and
         4. (iv) any known archeological sites and/or archeological investigations within the proposed project area.
      2. (B) THC response to project review requests. THC shall respond in writing to each project review request within 30 days of its receipt. Archeological investigations may be deemed necessary by THC as a result of this review. If THC does not respond to TPWD within that period of time, TPWD may proceed with internal authorization of the proposed project without further notice to THC.
      3. (C) THC approval of proposed projects. When THC concurs with a finding of a qualified TPWD archeologist or archeologist contracted by TPWD that no archeological sites are located in a proposed construction area or that a proposed project will not adversely impact cultural resources, TPWD may proceed with the project on receipt of written concurrence from THC.
      4. (D) Archeological site evaluation. When a qualified TPWD archeologist or archeologist contracted by TPWD identifies an archeological site or sites in a proposed project area, he or she will evaluate whether each site appears to merit official State Archeological Landmark designation under Section 26.8 of this title (concerning Criteria for Evaluating Archeological Sites).
      5. (E) Protection of significant sites. If adverse impacts to an archeological site(s) can be avoided during construction, the archeologist will mark the site in the field and TPWD personnel will not damage that area. If TPWD conducts vegetation clearing on significant archeological sites, it shall be done by hand to avoid damage to the site. On-site decisions made by TPWD archeologists regarding protective measures for archeological sites will be respected by TPWD employees and contractors, and will balance the need to conserve significant sites with timely project completion.
      6. (F) Mitigation of impacts to significant sites. If an archeological site that merits official State Archeological Landmark designation would be adversely impacted by a proposed project, TPWD will propose mitigation measures and request THC consultation and recommendations. If TPWD or THC ascertains that further investigations are necessary prior to or during a construction or maintenance project, these investigations must be performed before the project may proceed.
      7. (G) Archeological site discovery. Whenever cultural resources are discovered on TPWD lands, they will be reported to the CRPD or WFC, who will report this information to THC and maintain central repositories of cultural resource information.

   5. (5) THC Review of Reports on Archeological Investigations.

      1. (A) Interim reports. When TPWD seeks project approval from THC as a result of archeological investigations conducted on TPWD lands under the annual Antiquities Permit, the CRPD or WFC may send THC a concise interim report on the findings of the investigations. The interim report will contain information on:

         1. (i) the type of project that is proposed, including the nature and extent of its impacts;
         2. (ii) any prior impacts that have affected the project area;
         3. (iii) the project location plotted on a copy of a USGS 7.5' topographic quadrangle, showing the area of archeological investigations and any archeological sites encountered;
         4. (iv) a summary of the scope, findings, and conclusions of the archeological investigations;
         5. (v) evaluations of each archeological site's suitability for official State Archeological Landmark designation under Section 26.8 of this title (concerning Criteria for Evaluating Archeological Sites);
         6. (vi) a project approval request or recommendations for further work, as appropriate.
      2. (B) THC review of interim reports. THC shall respond in writing to interim reports within 30 days of receipt. When appropriate, THC will concur with the report findings and recommendations after review. If THC does not respond to TPWD within that period of time, TPWD may proceed with internal authorization of the proposed project without further notice to THC.
      3. (C) Draft reports. TPWD archeologists and archeologists contracted by TPWD who conduct investigations under the annual Antiquities Permit shall provide the CRPD with concise, informative draft reports with supporting documents. All interim reports described in Section 26.16(c)(5)(A) will be expanded into draft reports meeting the requirements of Section 26.24 of this title (concerning Reports Relating to Archeological Permits). The archeologist will submit copies of State of Texas Archeological Site Data Forms for the sites described in the report to the CRPD along with each draft report.
      4. (D) Draft annual Antiquities Permit report. The TPWD draft annual Antiquities Permit report on each year's investigations will be compiled and edited by the CRPD, who will submit the report to THC for review by May 1 of the following year. THC shall provide comments in writing on the draft annual report within 30 days of receipt. If THC does not respond to TPWD within that period of time, TPWD may proceed with publication of the final annual report without further notice to THC.
      5. (E) Final annual Antiquities Permit report. The final TPWD annual Antiquities Permit report shall be in a format that conforms to Section 26.24 of this title (concerning Reports Relating to Archeological Permits). Upon approval of the draft annual Antiquities Permit report by THC, TPWD will submit 20 copies of the final report to THC no later than 120 days after TPWD has received THC approval.

Source Note:The provisions of this §26.16 adopted to be effective August 28, 2002, 27 TexReg 7789.