SECTION 2.257. Procedures for Project Coordination when the Project Requires Review for Archeological Sites and Cemeteries

(a) 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.

(b) 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.

(c) 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.

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

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

(1) 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.

(2) 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.

(3) 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.

(4) 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.

(5) 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.

(A) 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.

(B) 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 each of 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.

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

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

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

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

(f) 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.

Source Note: The provisions of this §2.257 adopted to be effective August 15, 2018, 43 TexReg 5237