SECTION 26.7. Location and Discovery of Cultural Resources and Landmarks

(a) It is the public policy and in the interest of the State of Texas to locate archeological sites and other cultural resources, in, on, or under any land within the jurisdiction of the State of Texas per Texas Natural Resources Code, §191.002.

(b) The commission shall provide for the discovery and/or scientific investigation of publicly owned cultural resources in accordance with Texas Natural Resources Code, §191.051.

(c) The commission, state agencies, political subdivisions of the state, and law enforcement agencies shall work together to locate and protect cultural resources when deemed prudent, necessary, and/or in the best interest of the state per Texas Natural Resources Code, §191.174.

(d) To achieve these mandates, the commission shall review construction plans for projects on public lands prior to development to determine the project's potential impact to cultural resources, and invoke its power to issue Antiquities Permits and supervise Antiquities Permit investigations in accordance with Texas Natural Resources Code, §191.054. These mandates and the review of construction plans that may adversely affect archeological sites and historic buildings or structures are accomplished in the following manner.

(1) Project notification. As provided by Texas Natural Resources Code, §§191.0525, 191.054, 191.093, and 191.098, public agencies shall notify the commission before groundbreaking on public land or construction projects that could take, alter, damage, destroy, salvage, or excavate archeological sites, historic buildings or structures, designated historic districts, or other cultural resources or landmarks on non-federal public land in Texas. The notification must contain a brief written scope of work and a copy of the appropriate topographical quadrangle map with clearly marked project boundaries and photographs of the buildings or structures involved in the project work.

(A) State agencies.

(i) State agencies, other than institutions of higher education, shall furnish the commission with documentation of each building possessed by the agency that is 45 years old or older, pursuant to Texas Natural Resources Code, Chapter 31 (General Land Office), §31.153. After an agency's initial report, it must annually furnish documentation on each building that was acquired after the date of the previous submission and is 45 years old or older on the date of the current submission, or is possessed by the agency and has become 45 years old since the date of the previous submission.

(ii) State agencies must send advance notification at least 30 days prior to any groundbreaking per §191.0525, or at least 60 days prior to altering, renovating, or demolishing a building that is 50 years old or older per §191.098 of the Texas Natural Resources Code.

(iii) Once the commission receives a complete notification, a response will be provided within 30 days of receipt of the review request, or within 15 days of receipt for project locations regarding oil, gas, or other mineral exploration, production, processing, marketing, refining, or transportation facility or pipeline projects. The commission shall review submitted documentation and notify the state agency if archeological sites or historic buildings involved in the work are landmarks or are eligible for landmark designation, and/or of the possible need for a survey to locate cultural resources situated in the proposed development tract. The commission may also issue advisory comments if a building is historically significant but not eligible for landmark designation. If the commission does not respond within the specified timeframe, the state agency may proceed without further notice to the commission. Expedited reviews may be accommodated on a case-by-case basis if warranted.

(B) Political subdivisions.

(i) Political subdivisions must send advance notification at least 30 days prior to any project that may affect potential or designated archeological sites if the project affects a cumulative area larger than five acres or disturbs a cumulative area of more than 5,000 cubic yards, whichever measure is triggered first, or if the project is inside a recorded archeological site or designated historic district.

(ii) Once the commission receives a complete notification, a response will be provided within 30 days of receipt of the review request, or within 15 days of receipt for project locations regarding oil, gas, or other mineral exploration, production, processing, marketing, refining, or transportation facility or pipeline projects. The commission shall review submitted documentation and notify the public agency if archeological sites involved in the work are landmarks or are eligible for landmark designation, and/or of the possible need for a survey to locate cultural resources situated in the proposed development tract. If the commission does not respond within the specified timeframe, the public agency may proceed without further notice to the commission. Expedited reviews may be accommodated on a case-by-case basis if warranted.

(C) Categorical exclusions. Since many activities conducted on non-federal public land have little, if any, chance to damage cultural resources, the following activities do not require notification:

(i) water injection into existing oil and gas wells;

(ii) upgrading of electrical transmission lines when there will be no new disturbance of the existing easement;

(iii) seismic exploration activity when there is no ground penetration or disturbance;

(iv) building and repairing fences that do not require construction or modification of associated roads, fire breaks, or previously disturbed ground;

(v) road maintenance that does not involve widening or lengthening the road;

(vi) installation or replacement of meter taps;

(vii) controlled burning of fields;

(viii) animal grazing;

(ix) plowing, if the techniques are similar to those used previously;

(x) installation of monuments and sign posts unless within the boundaries of designated historic districts;

(xi) maintenance of existing trails;

(xii) land sales and trades of land held by the permanent school fund and permanent university fund;

(xiii) permanent school fund and permanent university fund leases, easements, and permits, including mineral leases and pooling agreements, in which the lessee, grantee, or permittee is specifically required to comply with the provisions of this chapter;

(xiv) oil, gas, or other mineral exploration, production, processing, marketing, refining, or transportation facility or pipeline project in an area where the project will cross state or local public roads, rivers, and streams, unless they contain a recorded archeological site or a designated state land tract in Texas' submerged lands; and

(xv) maintenance, operation, replacement, or minor modification of an existing oil, gas, or other mineral exploration, production, processing, marketing, refining, or transportation facility or pipeline.

(D) Emergency situations. Advance notification is not required for immediate remediation of a fire, spill, or other emergency associated with an existing facility located on state or local public lands if the emergency requires an immediate response. Notification of actions taken in response to an emergency must be submitted within 15 days of the action. If cultural resources were affected by the emergency or remediation measures, or may be affected by any long-term actions, the commission will respond in accordance with paragraph (2) of this subsection.

(2) Project coordination. If a survey investigation or review of project work is required, professional personnel meeting the applicable requirements of §26.4 of this title (relating to Professional Qualifications and Requirements) will perform the investigations or work under an Antiquities Permit in accordance with §§26.13 - 26.18 and §§26.20 - 26.24 of this title.

(3) Construction discovery. Any person working on public lands who discovers an archeological site that may qualify for designation as a landmark according to the criteria listed in §§26.10 - 26.12 of this title shall cease work and report such discovery to the state agency or political subdivision owning or controlling the property and to the commission. Upon notification, the commission staff will respond within two business days. The commission may initiate designation proceedings if it determines the site to be a significant cultural or historical property, and/or may issue a permit for mitigative archeological investigation or any other investigation. The cost of a proper investigation, excavation, or preservation of such a landmark or potential landmark will be borne by the owner or developer of the property rather than by the commission.

(4) Discovery of Unverified Cemeteries. Section 711.0111 of the Health and Safety Code of Texas requires that any person that discovers an unverified cemetery shall file a notice and evidence of the discovery with the commission on a form provided by the commission. Section 711.0111 also requires that any person that discovers an unverified cemetery shall concurrently provide a notice of the filing with the landowner on record in the county appraisal district on whose land the unverified cemetery is located. The commission shall evaluate the notice and evidence submitted with the notice, and consider the response of the landowner, if any is received not later than the 30th day after notice, and shall determine whether there is enough evidence to support the claim of the existence of a cemetery. If the commission determines that sufficient evidence supports a determination the commission shall notify the landowner and may file notice of the existence of the cemetery under §711.011 of the Health and Safety Code. If a notice of existence has already been filed under §711.011 and the commission has determined that there is not sufficient evidence of a cemetery the commission will file an amendment with the county clerk to remove the dedication.

Source Note: The provisions of this §26.7 adopted to be effective May 20, 2013, 38 TexReg 2980; amended to be effective December 31, 2017, 42 TexReg 7383