SECTION 26.25. Memorandum of Understanding with Texas Department of Transportation

(a) Purpose and Authority. This section contains the memorandum of understanding (MOU) entered into by the Texas Historical Commission (THC) and the Texas Department of Transportation (TxDOT) in accordance with Texas Government Code, §442.005 and §442.007; Texas Natural Resources Code, §191.0525(f); and Transportation Code, §201.607. The purpose of this MOU is to provide a formal mechanism for expediting THC review of TxDOT's transportation projects that potentially pose adverse effects on cultural resources. This MOU supersedes the previous MOU made effective on May 20, 2013.

(b) Applicability.

(1) Except as provided in paragraph (2) of this subsection, this section generally applies to:

(A) a transportation project for which an environmental review is being or will be performed under 43 TAC Chapter 2 (relating to Environmental Review of Transportation Projects); or

(B) any other type of project coordinated by TxDOT in compliance with the requirements of this section.

(2) Work in TxDOT right-of-way that is not associated with a project for which TxDOT is the project sponsor under 43 TAC §2.7 (relating to Texas Department of Transportation, Environmental Review of Transportation Projects, General Provisions) is the responsibility of the project sponsor and not of TxDOT (see Texas Natural Resources Code §191.0525). The project sponsor is responsible for coordinating directly with THC for such work. Examples of projects that will be coordinated by the non-TxDOT project sponsor directly with THC include but are not limited to:

(A) on-system highway projects funded entirely with local funds;

(B) utility relocations or installations within TxDOT right-of-way sponsored by other entities; and

(C) driveway and access connections sponsored by other entities.

(3) TxDOT transportation projects may be coordinated with THC outside the terms of this MOU with notification of THC.

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

(1) Antiquities permit--A permit issued by THC in order to regulate the taking, alteration, damage, exhumation, destruction, salvage, archeological survey, testing, excavation and study of State Antiquities Landmarks including prehistoric, historic and underwater archeological sites, and the preservation, rehabilitation, restoration, reconstruction, architectural investigation, hazard abatement, relocation, demolition, or new construction related to historic structures and buildings designated as a State Antiquities Landmark).

(2) Area of potential effects (APE)--The geographic space or spaces within which a project may cause changes in the character or use of historic properties, if any such properties exist.

(A) The area of potential effects for archeological properties will be confined to the limits of the proposed project right of way (including permanent and temporary easements), utility relocations designated by TxDOT, and project-specific locations designated by TxDOT. The area of potential effects also extends to the depth of impacts caused by the undertaking.

(B) The area of potential effects for non-archeological historic properties will be confined to the limits of the proposed project right of way (including permanent and temporary easements), utility relocations designated by TxDOT, and project-specific locations designated by TxDOT.

(3) Cultural resources--A general term referring to cemeteries; buildings; structures; objects; archeological sites, including shipwrecks; and districts more than 50 years of age with the potential to have significance in local, state, or national history.

(4) Effect--Alteration to the characteristics of a historic property qualifying it for formal designation as a State Antiquities Landmark.

(5) Eligibility--A property's eligibility for designation as a State Antiquities Landmark, as set forth in this chapter.

(6) Emergency Permit--A permit that may be used by TxDOT under certain emergency circumstances for the purposes of performing investigations prior to formal application for an antiquities permit.

(7) Historic property--Any prehistoric or historic district, site, building, structure, or object that meets the requirements for designation as a State Antiquities Landmark as set forth in this chapter.

(8) Minor widening--Roadway projects resulting in pavement profile widened to less than double their original width, resulting from adding travel/center-turn lanes or paved shoulders.

(9) Project-specific location--The location of specific material sources (e.g., base material, borrow and sand pits) and other sites used by a construction contractor for a specific project.

(10) State Antiquities Landmarks (SAL)--Both Archeological and Non-archeological historic properties that are designated as landmarks as defined in Subchapter D of the Antiquities Code of Texas (Texas Natural Resources Code, Chapter 191), or treated as landmarks under the interim protection described in §26.8(d) of this title (relating to Designation Procedures for Publicly Owned Landmarks), and identified in accordance with this chapter.

(11) THC--Texas Historical Commission.

(12) Transportation project--A project to construct, maintain or improve a highway, rest area, toll facility, aviation facility, public transportation facility, rail facility, ferry, or ferry landing. A transportation enhancement project funded under 23 USC 133(h) is also a transportation project.

(13) TxDOT--Texas Department of Transportation.

(d) Coordination Responsibilities.

(1) TxDOT. The coordination responsibilities of TxDOT under this MOU are defined as follows.

(A) All coordination required by this MOU shall be conducted by or through TxDOT's Environmental Affairs Division or its successor as established by TxDOT administration, unless the Environmental Affairs Division (or its successor) and THC agree in writing to allow other appropriate organizational units of TxDOT or other entities approved by the respective agencies to conduct the coordination.

(B) TxDOT shall not be a signatory to any permit issued by THC to another entity for work on a project funded or sponsored by such other entity.

(2) THC. The coordination responsibilities of THC under this MOU are to conduct any review required by this section in an efficient manner, to provide timely feedback to TxDOT about projects coordinated under this section, and to apply any funding provided by TxDOT solely to the review of TxDOT's projects in a manner that most efficiently streamlines THC's effective review and early coordination.

(e) Qualifications of Staff and Use of Consultants.

(1) All cultural resource investigations executed under the terms of this MOU shall be implemented by staff who meet the requirements for Professional personnel as designed and set forth in this chapter; or the Secretary of the Interior's Professional Qualification Standards 36 C.F.R Part 61, Appendix 6) and qualified and eligible to receive an Antiquities Permit..

(2) TxDOT has the right to perform cultural resource investigations using staff or consultants who meet the professional standards cited in paragraph (1) of this subsection.

(3) Cultural resource surveys, investigations, permit applications, and other work performed by consultants shall be coordinated with THC by or through TxDOT's Environmental Affairs Division, or its successor as established by TxDOT administration, unless it and THC agree in writing to allow other appropriate organizational units of TxDOT or other entities approved by the respective agencies to coordinate the work.

(f) Projects Excluded from Review for Archeological Sites and Cemeteries.

(1) Projects with ground disturbance of less than 100 cubic yards of impacts to undisturbed sediments, by their nature and definition, do not have the potential to affect historic properties. Such projects do not require review of their potential project impacts on archeological resources or cemeteries by THC under this chapter or under this MOU. The following list provides examples of activities with this low level of new disturbance that do not require review of their potential impacts on archeological resources or cemeteries under this chapter or under this MOU:

(A) installation, repair, or replacement of fencing, signage, traffic signals, railroad warning devices, safety end treatments, cameras and intelligent highway system equipment;

(B) projects involving purchase or acquisition of land without associated ground-disturbing activities;

(C) routine structural maintenance and repair of bridges, highways, railroad crossings, picnic areas, and rest areas;

(D) in-kind repair, replacement of lighting, signals, curbs and gutters, and sidewalks;

(E) crack seal, overlay, milling, grooving, resurfacing, and restriping;

(F) replacement, upgrade, and repair of safety barriers, ditches, storm drains, and culverts;

(G) intersection improvements, including repair or replacement of overpasses, that require less than 0.5 acres of additional right of way at each intersection;

(H) placement of riprap to prevent erosion of waterway banks and bridge piers provided no ground disturbance is required;

(I) all maintenance work between a highway and an adjacent frontage road;

(J) installation of noise barriers or alterations to existing publicly owned buildings less than 50 years old, to provide for noise reduction except in potential or listed National Register districts;

(K) driveway and street connections;

(L) all work within interchanges and within medians of divided highways;

(M) all work between the flowlines of the ditches and channels and above the original line and grade;

(N) ditch and channel maintenance, provided removal of fill is above the original line and grade;

(O) repairs needed as a result of an event, natural or man-made, which causes damage to a designated state highway, resulting in an imminent threat to life or property of the traveling public or which substantially disrupts or may disrupt the orderly flow of traffic and commerce;

(P) the installation and modification of sidewalks (including the addition of American with Disabilities Act (ADA) ramps) except:

(i) sidewalk installations where the depth of impact exceeds one foot;

(ii) sidewalk and ADA ramp projects within the historic districts in the following cities or towns: Goliad, Rio Grande City, Roma, San Antonio, San Elizario, and San Ygnacio; and

(iii) sidewalk or ADA ramp projects within the limits of the following cities or towns: Anahuac, Nacogdoches, San Patricio, and Socorro;

(Q) routine maintenance projects;

(R) vegetation control

(S) traffic control; and/or

(T) routine painting and striping.

(2) Design changes for projects that have completed all applicable review and consultation where the new activities would have less than 100 cubic yards of impacts to undisturbed sediments do not require additional review or coordination. or

(3) Projects that are exempt from project-specific review for compliance with this chapter and review under this MOU, as specified in paragraphs (1) and (2) of this subsection, are also exempt from compliance with other THC rules regarding project-specific investigations or coordination for potential impacts to cemeteries promulgated under Texas Health and Safety Code, §711.012(c), unless one of the following two conditions is present:

(A) pavement would be extended to within 15 feet of the boundary of a known cemetery founded earlier than 1955; or

(B) a project element would directly affect known burials.

(g) Procedures for Project Coordination when the Project Requires Review for Archeological Sites and Cemeteries.

(1) For projects subject to review for archeological sites and cemeteries under this MOU, TxDOT will evaluate the APE for potential project effects to archeological historic properties and to determine whether the APE contains cemeteries. TxDOT must make reasonable efforts and act in good faith when complying with this requirement.

(2) TxDOT may approve projects to proceed to construction without review by THC when TxDOT staff finds that the project will not affect archeological historic properties and the project APE will not contain cemeteries.

(3) TxDOT will submit projects to THC for review when TxDOT staff finds the project may affect archeological historic properties or the project APE contains cemeteries. TxDOT may, at its discretion, submit projects for THC review in cases where TxDOT staff finds that the project will not affect archeological historic properties, and the project APE does not contain cemeteries.

(4) In cases where TxDOT seeks comment from THC on proposed identification and/or evaluation methods, TxDOT will recommend one or more methods.

(5) In its request for review TxDOT will make one or more of the following findings, determinations, and recommendations:

(A) In cases where no archeological sites or cemeteries occur or are likely to occur in some or all of the APE, TxDOT will propose a finding of no effect in those portions of the APE and recommend that the project proceed to construction in those portions.

(B) In cases where an archeological site occurs within the APE but the portion of the site within the APE does not have characteristics that qualify it as an archeological historic property or is not likely to have such characteristics, TxDOT will propose a determination that the portion of the site in the APE is not an archeological historic property, find that the project will have no effect on archeological historic properties at the site location, and recommend that the project proceed to construction at the location of the site.

(C) In cases where the portion of a site within the APE has characteristics that qualify it as an archeological historic property, TxDOT will propose a determination that an archeological historic property occurs within the APE.

(D) In cases where the APE contains an archeological historic property or cemetery, TxDOT will either propose a finding that the project will have no adverse effect on the site or propose a finding that the project will have an adverse effect on the site.

(E) If a project will have an adverse effect on an archeological historic property or cemetery within the APE, TxDOT will also recommend to THC an appropriate means by which to resolve the adverse effect.

(i) The resolution of adverse effects may take one of the following forms:

(I) the avoidance of the site during construction;

(II) an alternative mitigation strategy, such as the preservation of a comparable site or the re-analysis of an existing collection;

(III) data recovery excavation or exhumation; or

(IV) another form of resolution approved by THC.

(ii) In cases where data recovery is the selected means for resolving adverse effects, TxDOT will coordinate with THC at several stages during the data recovery process according to the following procedures, unless TxDOT and THC agree in writing to different procedures:

(I) TxDOT will submit an initial data recovery plan as part of a permit application for data recovery to THC for review.

(II) TxDOT will submit a brief report, documenting whether the fieldwork met the terms of the initial data recovery plan and justifying any deviation, to THC for review. When appropriate, TxDOT will recommend that the project be approved to proceed to construction and destruction of any remaining portion of the site within the APE.

(III) TxDOT will submit a revised data recovery plan, based on a preliminary review of field data and recovered materials, to THC for review. When appropriate, TxDOT will recommend that the revised plan be adopted for the completion of data recovery analysis and reporting.

(IV) TxDOT will submit a draft data recovery report to THC for review. When appropriate, TxDOT will recommend that the report be accepted in partial satisfaction of the terms of the permit and in satisfaction of TxDOT's obligations for resolving the adverse effects of the project on the site.

(V) TxDOT will ensure that data recovery investigations do not begin before the State of Texas' legal right to ownership of the artifacts to be recovered has been secured.

(F) THC will respond within 20 calendar days of receipt of the TxDOT request for review, in accordance with and pursuant to the terms and conditions set out by an interagency contract executed by THC and TxDOT. This final response will include:

(i) a statement of concurrence or nonconcurrence with TxDOT's findings and recommendations;

(ii) a determination of site eligibility for all evaluated sites; and

(iii) any other comments relevant to the archeological sites or cemeteries which could be affected by the project.

(6) If THC does not respond within 20 calendar days, TxDOT may assume that THC concurs with TxDOT's findings, determinations, and recommendations and may proceed in accordance with the procedures required in this MOU.

(h) Background Studies for Archeological Sites and Cemeteries.

(1) For projects subject to review for archeological sites and cemeteries under this MOU, based on the results of background research, TxDOT will identify projects or portions of projects' APEs that require archeological field investigation.

(2) Eligibility determinations that TxDOT performs under this MOU will not require field investigations if sufficient background information exists to demonstrate that the portion of the site to be affected does not have potential research value.

(3) Determinations that TxDOT makes under this MOU regarding the presence of cemeteries in project APEs may be made through the use of maps, project-area photographs, or other background research.

(i) Permits for Archeological Sites and Cemeteries. THC shall issue antiquities permits for reconnaissance survey, intensive survey, monitoring, eligibility testing, exhumations, and emergencies to archeological staff at TxDOT under the following terms:

(1) The archeological staff of TxDOT's Environmental Affairs Division, or its successor as established by TxDOT administration, oversees the work.

(2) The work shall be completed in accordance with the provisions of the MOU.

(3) THC shall not require TxDOT to submit an antiquities permit application.

(4) In lieu of a permit application, TxDOT archeological staff shall notify THC in writing (by email or letter) of:

(A) the principal investigator;

(B) the investigation type and scope of work;

(C) the county in which the project will occur;

(D) the project name or identifier (site trinomial, if applicable); and

(E) the period of time for which the permit is desired.

(5) TxDOT staff may initiate work following notification of THC.

(6) THC shall issue a permit number within five business days of receiving the notification.

(7) TxDOT may revise the type of investigation based on observations made during the conduct of work as long as TxDOT provides to THC notification of the change prior to submission of the report.

(8) TxDOT may determine the appropriate amount of time a Principal Investigator will be in the field for a project based on the complexity of the project. TxDOT Principal Investigators will document their estimated proportion of field time in the corresponding reports of investigations.

(9) When conditions of natural disasters, man-made disasters, or post-review discovery necessitate immediate action, TxDOT may initiate work under an emergency permit without having first requested and received the permit number subject to each of the following conditions:

(A) TxDOT staff shall only conduct work under an emergency permit when archeological deposits are discovered during development or other construction projects or under conditions of natural or man-made disasters that necessitate immediate action to deal with the situation and findings.

(B) TxDOT will provide notification to THC to obtain the permit number within five working days of initiating the work.

(C) All categories of investigations can be authorized under an emergency permit, but an emergency permit will only be issued under emergency conditions where the investigations must be initiated or performed prior to notification under paragraph (4) of this subsection.

(10) THC shall consider the work conducted under the permit completed upon receipt of:

(A) one unbound report;

(B) two tagged pdf format reports on an archival quality CD or DVD, one containing all maps and locational information and one with maps and locational information redacted;

(C) a shape file of the project area subject to investigation; and

(D) a completed abstract form.

(11) The number of defaulted permits accrued by particular TxDOT staff while working for TxDOT shall not affect the issuance of additional permits to other TxDOT staff by THC for TxDOT projects.

(12) The inspection of a project APE or proposed APE for purposes of evaluating the kind of archeological investigation that may be required (scoping) shall not constitute an activity that requires a permit from THC when that activity does not result in a report to be coordinated under the terms of the MOU.

(13) All types of archeological investigations conducted by TxDOT but not covered by this section shall require submission of an antiquities permit application and adhere to the terms of the permit and this chapter with the exception that any permit issued to TxDOT under this paragraph, including data recovery permits, shall not include a requirement for project-specific outreach to be completed as part of the scope of work. TxDOT shall conduct public outreach at a program level regarding its activities under this MOU as specified in subsection (s).

(j) Surveys for Archeological Sites and Cemeteries.

(1) Surveys may be limited to an evaluation of existing impacts or stratigraphic integrity when these activities are sufficient to determine that any sites present are unlikely to be eligible.

(2) Eligibility determinations made by TxDOT under this MOU will not require further investigation if TxDOT demonstrates that the portion of the site to be affected is not likely to have sufficient integrity to be eligible.

(3) For portions of the APE where deposits may retain sufficient integrity for sites to be eligible, TxDOT survey methods will conform with THC's Archeological Survey Standards, underwater survey standards promulgated in 13 TAC 28 (relating to Historic Shipwrecks), or with other appropriate methods, except as provided in subparagraphs (A) and (B) of this paragraph:

(A) TxDOT reserves the right to depart from published survey standards in cases where it deems appropriate.

(B) THC reserves the right to review non-standard procedures for their adequacy.

(4) Survey methods will be considered adequate for the identification of burials and cemetery boundaries when the portions of the APE within 25 feet of a known cemetery have been investigated and the survey included scraping to a depth adequate to determine whether grave shafts or burials occur in the APE.

(5) A survey to identify burials does not comprise an activity with the potential to cause an adverse effect to a historic property.

(k) Archeological Eligibility Testing Phase.

(1) Each of the following methods will be employed for test excavations:

(A) Mechanical trenches will be excavated and profiles documented in order to characterize the area's potential for archeological deposits with sufficient integrity to be eligible to occur at the site.

(B) The extent of the site within the APE will be sampled through some combination of shovel-testing, column sampling, augering with an auger diameter of not less than 12 inches, surface collection, and geophysical prospection in order to characterize the distribution of archeological materials across the site.

(C) Additional units will be excavated and screened to evaluate site areas that appear to have the best potential for yielding important data with good integrity, based on the results of previous work.

(D) The materials analyzed will comprise those materials most likely to contribute important information about prehistory or history.

(E) TxDOT reserves the right to depart from these methods in cases where it deems appropriate and shall justify deviations in the report.

(F) Testing procedures conducted for underwater archeological investigations shall be coordinated and approved by THC Marine Archeology Program (MAP)

(2) Data from test excavation projects shall be made available to qualified researchers.

(l) Archeological Excavation and Data Recovery.

(1) When appropriate and established in the final research design approved by THC, TxDOT will develop public educational outreach projects for significant data recovery investigations.

(2) Data from data recovery projects shall be made available to qualified researchers.

(3) Research designs for underwater excavation and data recovery shall be reviewed and approved by the THC MAP.

(m) Exhumation.

(1) Exhumation is a form of investigation to resolve the adverse effects of a project on a cemetery.

(2) Exhumation efforts may be staged as a separate phase of work from burial identification. Following procedures set forth in Texas Health and Safety Code, Chapter 711, exhumation may begin once any required notifications of next of kin or other procedures required by Texas Health and Safety Code, Chapter 711 have been conducted.

(3) The following tasks represent a sufficient, reasonable and good faith effort to identify remains and any next of kin associated with burials in unknown or abandoned cemeteries:

(A) making inquiries through the local County Historical Commission;

(B) posting notices with local news outlets; and

(C) posting notices with local churches.

(4) An exhumation project is itself not a type of investigation that requires an outreach effort or curation of materials at a state-certified facility.

(n) Archeological Sites and Cemeteries found after Award of Contract.

(1) When potential historic properties are identified during implementation of a TxDOT project or unanticipated effects on historic properties are determined, work in the immediate area of the discovery shall cease, and TxDOT shall be notified of the discovery; if appropriate, security measures will be initiated to protect the discovery.

(2) TxDOT will notify the THC within 48 hours of the discovery.

(3) For unanticipated discoveries of archeological materials that do not contain human burials, TxDOT will undertake each of the following additional actions:

(A) TxDOT will verify that the discovery does not contain human burials. As necessary, TxDOT will obtain and perform this investigation under an emergency permit or other appropriate Antiquities Permit category.

(B) Upon confirmation that the discovery does not contain human burials, TxDOT may allow construction at the site to proceed.

(C) TxDOT shall complete or update a State of Texas Archeological Site Data Form based on the available information.

(D) TxDOT will find that the property comprises an archeological historic property.

(E) TxDOT will develop a mitigation proposal to resolve the adverse effects of the undertaking on the archeological historic property. This proposal shall not necessarily involve any further excavations at the historic property.

(F) The level of effort described in the proposal shall be commensurate with the nature of the resource, based on the available information.

(G) TxDOT will develop the proposal in coordination with THC and obtain the appropriate Antiquities Permit for this work.

(4) For unanticipated discoveries involving human burials, TxDOT shall follow the applicable requirements of the Health and Safety Code, Title 1, Section 711.

(A) Work may resume in areas outside the boundaries of the cemetery.

(B) Work may resume in a cemetery area if that cemetery has been removed in compliance with the applicable requirements of the Health and Safety Code, Title 1, Section 711.

(o) Standard Treatments for Particular Resource Types. Isolated wells or cisterns unassociated with other remains will be treated as follows:

(1) Isolated wells or cisterns that post-date 1900 A.D. do not warrant notification of THC or additional investigation. Removal or sealing of these features does not constitute an adverse effect.

(2) Isolated wells or cisterns that pre-date 1900 A.D. require research and documentation of their location, construction, condition, and original context. Upon completion of the research and documentation, these features may be backfilled and capped. These activities do not constitute an adverse effect.

(p) Artifact Recovery and Curation.

(1) Artifact recovery.

(A) Artifacts or analysis samples (such as soil samples) that are recovered from survey, testing, or data recovery investigations by TxDOT or their contracted agents that address the research questions must be cleaned, labeled, and processed in preparation for long-term curation unless the artifacts or samples are approved by THC for discard under this chapter and Chapter 29 of this title (relating to Management and Care of Artifacts and Collections).

(B) To ensure proper care and curation, recovery methods must conform to the applicable requirements of this chapter and Chapter 29 of this title.

(C) Artifacts recovered from underwater testing and data recovery projects require conservation as stated in §26.15 of this title and the conservation facility must be included in the permit application and data recovery plan.

(2) Artifact curation.

(A) TxDOT or its permitted contractor may temporarily house artifacts and samples during laboratory analysis and research, but upon completion of the analysis, artifacts and accompanying documentation must be transferred to a permanent curatorial facility in accordance with the terms of the antiquities permit.

(B) Artifacts and samples will be placed at an appropriate artifact curatorial repository which fulfills the applicable requirements of Chapter 29 of this title, as approved by THC. When appropriate, TxDOT will consult with THC to identify for disposal collections or portions of collections that do not have identifiable value for future research or public interpretation. Final approval regarding the disposition of collections will be made by THC.

(C) TxDOT is responsible for the curatorial preparation of all artifacts to be submitted for curation so that they are acceptable to the receiving curatorial repository and fulfill the applicable requirements of this chapter and Chapter 29 of this title, as approved by THC.

(q) Documentation for Archeological Sites and Cemeteries.

(1) Projects subject to review for archeological sites and cemeteries under this MOU will be documented by TxDOT in the manner described in this section. Documentation in the project file for each such project will include, at a minimum:

(A) a description of the project, defining the APE or the investigated portion of the APE in three dimensions;

(B) a project location map, plotting the project location on 7.5' Series USGS quadrangle maps;

(C) information regarding the setting that is relevant for the assessment of the integrity of any archeological sites within the APE;

(D) information on previously-recorded archeological sites in the project location;

(E) description and justification of the level of effort undertaken for the investigation; and

(F) results and recommendations.

(2) All TxDOT survey and testing reports will also include:

(A) description and justification of field methods, including the sampling strategy;

(B) description and quantification of any archeological materials identified;

(C) accurate plotting of any sites found on 7.5' Series USGS quadrangle maps;

(D) submission of electronic TexSite archeological site survey forms to the Texas Archeological Research Laboratory; and

(E) recommendations regarding whether any site merits further investigation.

(r) Quarterly Reports for Archeological Sites and Cemeteries. Reports will be submitted by TxDOT to THC at least once per quarter, within 60 business days after the end of the calendar quarter. The report will list all projects for which TxDOT has documented that no historic properties and cemeteries are present in the project's area of potential effect, and those projects that will have no adverse effects on archeological historic properties and cemeteries.

(s) Public Outreach Regarding Archeological Sites and Cemeteries

(1) TxDOT will conduct programmatic outreach in order to:

(A) broaden understanding of Texas archeology and history and TxDOT's role in studying these topics;

(B) capitalize on partnerships to reach more stakeholders and maximize outreach success;

(C) create opportunities to do outreach using content from many different projects; and

(D) use outreach to establish and maintain a link between TxDOT's public involvement and consultation efforts.

(2) The outreach program will take the following forms:

(A) TxDOT will develop and implement a communications plan;

(B) TxDOT will increase stakeholder outreach by conducting studies of existing and potential audiences, sharing information and opportunities with partners, partnering with other agencies on educational and outreach activities, and participating in conferences and events to raise awareness of TxDOT's work;

(C) TxDOT will create special projects or campaigns to support the goals of the program;

(D) TxDOT will streamline public involvement by working with other internal offices to identify and engage with parties who may wish to engage in consultation on FHWA undertakings under Section 106 of the National Historic Preservation Act; and

(E) TxDOT will monitor the effectiveness of its efforts and make appropriate adjustments to achieve the outreach goals.

(t) Projects Excluded from Review for Non-Archeological Historic Properties.

(1) For the purposes of this subsection, the term historic properties will refer only to non-archeological historic properties.

(2) Based on previous coordination outcomes, TxDOT and THC agree that the following types of routine roadway projects pose limited potential to affect historic properties:

(A) maintenance, repair, installation, or replacement, of transportation-related features, including fencing, signage, traffic signals, railroad warning devices, safety end treatments, cameras and intelligent highway system equipment, non-historic bridges, railroad crossings, lighting, curbs and gutters, safety barriers, ditches, storm drains, non-historic culverts, overpasses, channels, rip rap, and noise barriers;

(B) maintenance and in-kind repair of designated historic bridges, picnic areas, rest areas, roadside parks, and culverts;

(C) maintenance, repair, or replacement of roadway surfacing, including crack seal, overlay, milling, grooving, resurfacing, and restriping;

(D) maintenance, repair, reconfiguration, or correction of roadway geometrics, including intersection improvements and driveway and street connections;

(E) maintenance, repair, installation or modification of pedestrian and cycling-related features, including American with Disabilities Act ramps, trails, sidewalks, and bicycle and pedestrian lanes unless on historic properties protected as SAL, county courthouse, or by preservation easement or covenant.;

(F) maintenance, repair, relocation, addition, or minor widening of roadway, highway, or freeway features, including turn bays, center turn lanes, shoulders, U-turn bays, right turn lanes, travel lanes, interchanges, medians, and ramps;

(G) maintenance, repair, replacement, or relocation of features at crossings of irrigation canals, including bridges, new vehicle crossings, bank reshaping, pipeline and standpipe components, canal conversion to below-grade siphons, and utilities;

(H) repairs needed as a result of an event, natural or man-made, which causes damage to a designated state highway, resulting in an imminent threat to life or property of the traveling public, or which substantially disrupts or may disrupt the orderly flow of traffic and commerce;

(I) design changes for projects that have completed all applicable review and consultation where the new project elements comprise only one or more of the activities listed in paragraph (2) of this subsection; and

(J) other kinds of undertakings jointly agreed to in writing by THC and TxDOT as not requiring review.

(3) For projects described in paragraph (2)(A) - (J) of this subsection, TxDOT qualified professional staff shall determine whether additional evaluation is required due to direct effects to historic properties. If no such evaluation is deemed necessary, such projects are determined to pose no effect on historic properties and do not require review by THC under this chapter or under this MOU.

(4) For review-exempt projects, documentation shall be limited to that maintained in TxDOT's project files. THC may audit TxDOT files for specific projects upon request.

(u) Procedures for Project Coordination when the Project Requires Review for Non-Archeological Historic Properties.

(1) Historic properties. For the purposes of this subsection, the term historic properties will refer only to non-archeological historic properties.

(2) Internal Review Projects. For projects subject to review for historic properties under this MOU, TxDOT qualified professional staff shall determine the presence or absence of historic properties in the area of potential effects. Such efforts should focus on the types of historic properties within public rights-of-way and other sensitive areas, including but not limited to historic bridges, historic road corridors, historic roadside parks and rest areas, historic Depression Era masonry culverts, historic districts, historic courthouse squares and other historic commercial zones. Project activities that TxDOT determines will have no effect or no adverse effect on historic properties may be internally reviewed by TxDOT and are approved for construction.

(3) Coordinated Projects. If TxDOT qualified professional staff determines that a project requires individual coordination with THC for a courthouse review, easement review, or antiquities permit or due to a potential adverse effect on historic properties, TxDOT shall submit that project to THC:

(A) THC will respond within 20 calendar days of receipt of TxDOT's request for review, in accordance with the terms set out by an interagency contract adopted by THC and TxDOT, by indicating whether an affected historic property will require a historic structures permit for an SAL, whether THC intends to initiate an SAL nomination for the affected property, or whether additional consultation pursuant to a preservation easement or covenant will be required. If THC does not respond within 20 calendar days, TxDOT may assume THC's concurrence with its determinations, and TXDOT may proceed with the project to construction; and

(B) in accordance with Texas Government Code §442.008 and §17.2 of this title (relating to Review of Work on County Courthouses), TxDOT will notify THC of any work affecting a county courthouse or its surrounding site, up to and including the curb. THC will respond within 20 calendar days of receipt of TxDOT's notification by indicating whether a historic structures permit for an SAL or additional consultation pursuant to a preservation covenant or easement will be required;

(4) Documentation. For projects that are internally reviewed or individually coordinated under paragraphs (2) and (3) of this subsection, TxDOT will comply with the following project documentation requirements:

(A) For projects that are internally reviewed under paragraph (2) of this subsection, TxDOT shall retain all documentation in the project file and will provide documentation to the THC upon request with memos and basic project information submitted through the THC's electronic review and compliance (eTRAC) system or other means as appropriate.

(B) For projects that are individually coordinated under paragraph (3) of this subsection, documentation submitted to THC will include:

(i) project description and scope;

(ii) project location map with delineation of the APE and location of historic properties;

(iii) methodology used to identify historic properties;

(iv) photographic and descriptive information for each identified property;

(v) justification for findings of historic properties, including setting, integrity, and contextual information;

(vi) justification of effects on historic properties, including evaluations, reports, and other information relevant to the findings by TxDOT; and

(vii) a description of efforts to avoid or minimize harm, mitigation, and commitments.

(v) Project File. TxDOT's Environmental Compliance and Oversight System (ECOS) is the project file of record for each project coordinated under this MOU.

(w) Denial of Access. In cases where access to private land for conducting investigations is denied prior to the approval of the environmental review document, TxDOT will make a commitment to complete appropriate investigations once access is obtained, but prior to any construction related impacts.

(x) MOU to Govern TxDOT Procedures. TxDOT satisfies applicable THC requirements if it utilizes the procedures of this MOU in lieu of other applicable THC procedures. In cases where TxDOT is utilizing this MOU in lieu of other THC procedures, TxDOT must follow the requirements of this MOU.

(y) Project-Specific Agreements. Any project-specific agreements reached between TxDOT and THC regarding the evaluation or treatment of project effects shall be honored by both parties and shall supersede the requirements of this MOU. TxDOT and THC may deviate from the terms of the agreement only when both parties concur that the agreement requires revision.

(z) Continuous Improvement Agreement. TxDOT and THC agree to collaborate on improvements to their programs and development of innovative solutions for expedited review procedures. Such mechanisms may include using project outcomes to refine approaches to resource identification, evaluation, treatment methods, programmatic mitigation measures and interagency agreements that facilitate early coordination, and streamlining and expedited review of TxDOT's transportation projects.

(aa) THC Review of TxDOT Project Files. THC may review TxDOT project files for specific undertakings carried out under this MOU. THC may recommend process improvements based on issues identified during the review.

(bb) Dispute Resolution. THC and TxDOT staff will be responsible for attempting to resolve any conflict between THC and TxDOT that results from the implementation of this section before elevating to agency management.

(cc) Review of MOU. This MOU shall be reviewed and updated as provided by law or by agreement between the parties. THC and TxDOT agree to convene every four years to review, update, or extend this agreement.

Source Note: The provisions of this §26.25 adopted to be effective August 16, 2018, 43 TexReg 5199