SECTION 26.27. Memorandum of Understanding with Texas Parks and Wildlife Department

(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.

(b) Primary Considerations and Stipulations. All agreements are subject to this chapter. 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 Texas Historical Commission (THC) and the Texas Parks and Wildlife Department (TPWD) follow.

(c) 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) General Provisions.

(A) TPWD shall:

(i) require that all archeological investigations on TPWD lands are conducted under Antiquities Permits obtained by persons who meet THC requirements for principal investigator as listed in §26.4 of this title (relating to Professional Qualifications and Requirements);

(ii) notify the THC of pending construction and maintenance projects in accordance with all applicable provisions of this section;

(iii) 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

(iv) notify THC when cultural resources are discovered on TPWD lands.

(B) THC will issue an annual Antiquities Permit for investigations on TPWD lands to the TPWD Cultural Resources Program Director 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.

(C) This MOU may be revised and amended upon the agreement of TPWD and THC.

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

(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:

(i) impacts a total or cumulative area of potential effect greater than ten (10) acres and involves construction or maintenance activities in areas where similar activities have not occurred before;

(ii) consists of disking, plowing, or other periodic activities impacting a total or cumulative area of potential effect greater than 120 acres, even if similar activities have occurred in that area before;

(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 and impacts a total or cumulative area of potential effect greater than ten (10) acres;

(iv) is grading or maintenance of a road or fire break when the road or fire break, water diversion features, and/or its ditches will be lengthened, widened, or deepened beyond previous disturbance from construction and/or maintenance holes and impacts a total or cumulative area of potential effect greater than ten (10) acres;

(v) involves activities related to prescription burning of any kind that disturb the ground surface or subsurface in areas larger than ten (10) acres where similar activities have not occurred before; or

(vi) is any type of project not described in subparagraph (B) of this paragraph.

(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:

(i) impacts a total or cumulative area of potential effect of five acres or less;

(ii) consists of disking, plowing, or other periodic activities impacting a total or cumulative area of potential effect of less than 120 acres where similar activities have occurred before;

(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 and impacts a total or cumulative area of potential effect greater than ten (10) acres;

(iv) is grading, disking, or other maintenance of a road or fire break when the road or fire break, related water diversion features, and/or its ditches will not be lengthened, widened, or deepened beyond previous disturbance from construction and/or maintenance holes and impacts a total or cumulative area of potential effect greater than ten (10) acres; or

(v) is prescription burning or hand clearing of any kind that does not disturb the ground surface, historic structures, and/or rock art.

(C) Prior THC approval of ground-disturbing projects. Projects that involve continuing impacts of the same nature and extent approved by THC need not be reviewed again if no archeological sites have been recorded within those project areas. THC will review continuing impacts of the same nature and extent in areas where archeological sites are present at 10 year intervals from the original date of approval to proceed.

(D) TPWD review of projects. TPWD will review all projects that have the potential to impact 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.

(E) TPWD will provide cultural resources training to State Parks and Wildlife Management Area personnel. On the direction of the Cultural Resources Program Director (CRPD), Wildlife Facilities Coordinator (WFC), or their designees, TPWD personnel who have received cultural resources training within the past 5 years may observe construction and maintenance activities, to ensure that cultural resources are considered during TPWD activities. If any archeological sites are revealed by such activities, TPWD personnel will report them to the CRPD, WFC, or their designees.

(3) Procedures for Proposed Projects.

(A) Notification to THC of proposed projects. TPWD shall send THC written or electronic notification no less than 30 days in advance of proposed projects that require review under paragraph (2)(A) of this subsection, and/or Section 106 of the National Historic Preservation Act (16 U.S.C. §470f). In rare cases when a response from THC is needed in less than 30 days, notification may be made by telephone or electronic mail, with a written or electronic notification to follow. Project review requests concerning Wildlife Management Areas shall be directed to THC through the WFC or their designee, and project review requests concerning State Parks and other TPWD properties shall be directed to THC through the CRPD or their designee. Each notification must include information on:

(i) the type of project that is proposed, including the nature and extent of its impacts;

(ii) any prior impacts that have affected the project area;

(iii) locational data for the project area and any known archeological sites in the vicinity; and

(iv) any known archeological sites and/or archeological investigations within the proposed project area.

(B) THC response to project review requests. THC shall respond in writing (hard copy or electronic format) 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.

(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 (hard copy or electronic format) from THC.

(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 Antiquities Landmark designation under §26.10 of this title (relating to Criteria for Evaluating Archeological Sites).

(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 or a TPWD archeologist will provide GIS data to field staff who will mark the archeological site for protection. 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.

(F) Mitigation of impacts to significant sites. If an archeological site that merits official State Antiquities 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.

(G) Archeological site discovery. Whenever cultural resources are discovered on TPWD lands, they will be reported to the CRPD, WFC, or their designees, who will report this information to THC and maintain central repositories of cultural resource information.

(4) THC Review and Coordination of Third Party Projects on TPWD Lands.

(A) TPWD will ensure that archeological investigations conducted on TPWD lands on behalf of other entities promote the identification and conservation of cultural resources.

(B) TPWD will require principal investigators conducting archeological investigations on TPWD lands on behalf of third parties to obtain individual Antiquities Permits for those investigations.

(C) THC will notify TPWD if they should become aware of proposed archeological investigations on lands that TPWD manages, but are owned by another entity, and/or that are sponsored by an entity other than TPWD.

(D) THC shall issue Antiquities Permits to entities conducting archeological investigations on TPWD lands on behalf of third parties, only after receiving written (hard copy or electronic format) notice that TPWD has approved the research designs, scopes, methods, and reporting requirements for those permits, and the CRPD, WFC, or their designee has signed the Landowner's Certification on those permit applications.

(E) THC will notify TPWD prior to granting permit extensions.

(F) TPWD will require that background research for archeological projects on TPWD lands is conducted at the TPWD Archeology Laboratory in Austin prior to the field investigations, unless otherwise stipulated.

(G) TPWD will review all reports or sections of reports for archeological investigations on TPWD lands, regardless of whether those projects extend beyond TPWD boundaries. The CRPD, WFC, or their designee will provide written (hard copy or electronic format) comments on draft reports within 30 days to the principal investigator, and principal investigators shall provide revised draft reports to TPWD in which TPWD comments are addressed. After TPWD concurs that those comments have been addressed, TPWD will submit reports to THC for review, under a cover letter from the CRPD, WFC, or their designee notifying THC that those draft reports have been reviewed and approved by TPWD. In all phases of investigations, third parties will communicate with THC only through CRPD, WFC, or their designee.

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

(A) Archeological investigations. The annual permit authorizes construction monitoring, surface reconnaissance, shovel test excavation, controlled unit excavation up to 1 by 1 meter in horizontal dimension, mechanical testing, rock art recording and conservation, and intensive cultural resource surveys of TPWD lands up to 200 acres per project conducted during that calendar year.

(i) Reconnaissance surveys as defined in §26.15 of this title (relating to Archeological Permit Categories) conducted under the annual permit may exceed 200 acres per project.

(ii) Up to twelve (12) backhoe or other mechanical trench excavations may be used during survey-level investigations to determine whether buried cultural deposits exist, and to obtain geoarcheological (geomorphological) data.

(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 §26.15 of this title (relating to Archeological Permit Categories) will not be conducted under this permit. Architectural investigations are not authorized under this permit.

(B) Qualifications. Investigations will be conducted under the supervision of qualified TPWD archeologists or, at the discretion of the CRPD, archeologists contracted by TPWD who meet THC requirements for principal investigator as listed in §26.4 of this title. The CRPD, WFC, or their designees may designate qualified TPWD archeologists to serve as Principal Investigators for particular projects.

(C) Standards. All archeological investigations performed on TPWD lands must meet current professional archeological standards as promulgated by the Council of Texas Archeologists.

(6) THC Review of Reports on Archeological Investigations under annual Antiquities Permit.

(A) Archeological investigations conducted on TPWD lands under the annual Antiquities Permit that require THC review under paragraph (2)(A) of this subsection or other state or federal regulations will be reported in the annual Antiquities Permit report. At the discretion of the CRPD, additional investigations that do not require THC review may be included in the annual Antiquities Permit report, and will be clearly designated as such.

(B) 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, WFC, or their designees may send THC a concise interim report on the findings of the investigations. The interim report will contain information on:

(i) the type of project that is proposed, including the nature and extent of its impacts;

(ii) any prior impacts that have affected the project area;

(iii) locational data for the area of archeological investigations and any archeological sites encountered;

(iv) a summary of the scope, findings, and conclusions of the archeological investigations;

(v) evaluations of each archeological site's suitability for official State Antiquities Landmark designation under §26.10 of this title (relating to Criteria for Evaluating Archeological Sites); and

(vi) a project approval request or recommendations for further work, as appropriate.

(C) THC review of interim reports. THC shall respond in writing (hard copy or electronic format) 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.

(D) Draft reports. TPWD archeologists and archeologists contracted by TPWD who conduct investigations under the annual Antiquities Permit at the discretion of the CRPD shall provide the CRPD with concise, informative draft reports with supporting documents. All interim reports described in subparagraph (B) of this paragraph will be expanded into draft reports meeting the requirements of the Council of Texas Archeologists Guidelines for Cultural Resources Management Short Reports. The archeologist will submit shapefiles of areas investigated and copies of TexSite forms for the sites described in the report to the CRPD along with each draft report. All sites shall have trinomial designations assigned by the Texas Archeological Research Laboratory, The University of Texas at Austin.

(E) 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 or their designee, and the CRPD will submit the report to THC for review by May 1 of the following year. THC shall provide comments in writing (hard copy or electronic format) 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.

(F) Final annual Antiquities Permit report. The final TPWD annual Antiquities Permit report shall be in a format that conforms to §26.16(a)(1) of this title (relating to Reports Relating to Archeological Permits). Upon approval of the draft annual Antiquities Permit report by THC, TPWD will submit the final report to THC no later than 120 days after TPWD has received THC approval, and will distribute copies in accord with §26.16 of this title.

Source Note: The provisions of this §26.27 adopted to be effective May 20, 2013, 38 TexReg 2980; amended to be effective February 25, 2018, 43 TexReg 1045