Part 2.
TEXAS HISTORICAL COMMISSION
Chapter 26.
PRACTICE AND PROCEDURE
The Texas Historical Commission (THC) proposes to repeal §§26.1
- 26.13, 26.17, 26.18, 26.20 - 26.22, 26.24, 26.25 and 26.27 of Chapter 26,
concerning the Rules of Practice and Procedures. New Sections 26.1 - 26.13,
26.16 - 26.22, 26.24 and 26.25 will replace the repealed sections and they
are contemporaneously proposed in this issue of the
Texas Register
. Section 26.15 is being amended to delete language concerning
Parks and Wildlife's MOU, because it is being proposed under new Section 26.16.
The amendment and the new sections are necessary to delete obsolete language
and to replace references to the "committee" with references to the "commission."
These changes will make the rules more current and efficient.
F. Lawerence Oaks, Executive Director, has determined that for the first
five-year period the rules are in effect there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
rules.
Mr. Oaks has also determined that for each year of the first five-year
period the rules are in effect the public benefit anticipated as a result
of the repeals and the replacement of the existing rules will be an increased
efficiency and effectiveness in the implementation of the Antiquities Code
of Texas. There will be no effect on small businesses or micro-businesses.
There are no anticipated economic costs to persons who are required to comply
with the rules as proposed.
Comments on the proposal may be submitted to F. Lawerence Oaks, Executive
Director, Texas Historical Commission, P. O. Box 12276, Austin, Texas 78711.
Comments will be accepted for 30 days after publication in the
Texas Register
.
13 TAC §§26.1 - 26.13, 26.17, 26.18, 26.20 - 26.22, 26.24, 26.25, 26.27
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Historical Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under Section 442.005(q),
Title 13, Part 2 of the Texas Government Code, which provides the Texas Historical
Commission with the authority to promulgate rules and conditions to reasonably
affect the purposes of this chapter.
The repeals implement Sections 442.005(b), 442.009(r), 442.007(c) and 442.007(e)
of the Texas Government Code.
§26.1. Object.
§26.2.Scope.
§26.3.Compliance with Rules and Regulations.
§26.4.Amending of Rules.
§26.5.Definitions.
§26.6.Antiquities Advisory Board.
§26.7.Specific Criteria for Evaluating Historic Structures.
§26.8.Criteria for Evaluating Archeological Sites.
§26.9.Criteria for Evaluating Caches and Collections.
§26.10.Criteria for Evaluating Shipwrecks.
§26.11.Location and Discovery of Cultural Resources and Landmarks.
§26.12.Designation Procedure.
§26.13.Designation of Private Property.
§26.17.Issuance and Restriction of Permits.
§26.18.Permit Monitoring.
§26.20.Archeological Permit Categories.
§26.21.Application for Archeological Permit.
§26.22.Historic Structures Permits.
§26.24.Reports Relating to Archeological Permits.
§26.25.Reports Relating to Historic Structures Permits.
§26.27.Disposition of Archeological Artifacts and Data.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on May 9, 2002.
TRD-200202881
F. Lawrence Oaks
Executive Director
Texas Historical Commission
Earliest possible date of adoption: June 23, 2002
For further information, please call: (512) 463-5711
13 TAC §§26.1 - 26.13, 26.15 - 26.22, 26.24, 26.25
The new and amended rules are proposed under Section 442.005(q),
Title 13, Part 2 of the Texas Government Code, which provides the Texas Historical
Commission with the authority to promulgate rules to reasonably affect the
purposes of this chapter.
No other statutes, articles or codes are affected by these new and amended
rules.
§26.1.Object.
As authorized in Title 9, Chapter 191 (Section 191.052), of the Texas
Natural Resources Code, the Texas Historical Commission, hereafter referred
to as the commission, is specifically empowered to adopt rules and conditions
related to the enforcement of the Antiquities Code of Texas.
§26.2. Scope.
State Archeological Landmarks include sites, objects, buildings, structures
and historic shipwrecks, and locations of historical, archeological, educational,
or scientific interest including, but not limited to, prehistoric American
Indian or aboriginal campsites, dwellings, and habitation sites, aboriginal
paintings, petroglyphs, and other marks or carvings on rock or elsewhere which
pertain to early American Indian or other archeological sites of every character,
treasure imbedded in the earth, sunken or abandoned ships and wrecks of the
sea or any part of their contents, maps, records, documents, books, artifacts,
and implements of culture in any way related to the inhabitants, prehistory,
history, government, or culture in, on, or under any of the lands of the State
of Texas, including the tidelands, submerged land, and the bed of the sea
within the jurisdiction of the State of Texas. Sections 191.091 and 191.092
of the Antiquities Code provide that archeological sites and historic structures
on lands belonging to state agencies or political subdivision of the State
of Texas are State Archeological Landmarks or may be eligible to be designated
as landmarks. Also protected under the Antiquities Code of Texas (Section
191.094) are specially designated landmarks on private property. The commission
is further empowered to provide for a system of permits and contracts for
the study of archeological sites, historical structures and objects. Sections
191.002, 191.021, 191.051, 191.0525, 191.053, 191.054, 191.091, 191.092, 191.095,
and 191.098 of the Antiquities Code of Texas specifically discuss the interests
of the State of Texas in the recordation, protection, preservation, and study
of archeological sites and historic structures in and on public lands, and
under the public seas and waterways in the State of Texas. The State of Texas
considers that all publicly owned archeological sites and historic structures
have some intrinsic historic value, and the Antiquities Code provides some
level of protection for those sites or structures regardless of their size,
character, or ability to currently yield data that will contribute important
information on the history or prehistory of Texas. Additionally, these publicly
owned archeological sites and historic structures are protected from vandalism,
or other actions meant to take, alter, or destroy them, and information directly
related to the specific location of archeological sites is restricted from
open records requests. All cultural resources are not equally significant
to the history and prehistory of Texas. Some archeological sites may not possess
research value sufficient to warrant long-term preservation or investigations
beyond survey level recordation. Some historic structures retain minimal integrity
due to damage or deterioration. Therefore, the issue of whether cultural resources
are significant and warrant preservation, and/or further research (such as
archeological testing and data recovery level investigations), is addressed
through official landmark designation, permit issuance and regulation. Official
State Archeological Landmark designation is an administrative procedure that
provides for public notice of sites and structures being considered for designation,
and allows the land-owning or controlling public agency and the public the
opportunity to have input into the designation process. The permit issuance
and regulation procedures provide for an investigative and consultative process
that allows the commission, land-owning agency, project sponsor, principal
investigator, or project architect, and investigative firms or other professional
firms, a system by which sites and structures can be documented and assessed
to determine whether further investigations, or official landmark designation
is necessary, and if appropriate work is proposed
§26.3.Compliance with Rules.
(a)
If the permittee, project sponsor, principal investigator
or other professional personnel and investigative firm or other professional
firm fails to comply with any of the rules and regulations of the commission
or any of the terms of the specific permit involved, or fails to properly
conduct or complete the project, or fails to act in the best interest of the
state, or fails to meet terms and conditions of defaulted permits, the commission
may cancel the permit and notify the permittee of such cancellation by registered
letter, mailed to the last address furnished to the commission by the permit
applicant. When determined to be appropriate and upon notification of cancellation
the permittee, project sponsor, principal investigator or other professional
personnel, and investigative firm or other professional firm shall, in the
case of ongoing projects, cease work immediately, remove all personnel and
equipment, and vacate the area or site within 24 hours. A permit which has
been canceled can be reinstated by the commission if good cause is shown within
30 days.
(b)
A principal investigator, or project architect, and investigative
firm or other professional firm shall not proceed with an investigation without
applying for, and having been issued, an appropriate permit by the commission,
or without having been officially authorized by the commission to proceed
prior to issuance of an emergency permit. Failure to do so may result in the
principal investigator, project architect, investigative firm, or professional
firm being censured and denied issuance of permits for a six-month period.
The commission will send a letter of reprimand to the principal investigator
and/or investigative firm for each application offense. More than one permit
application offense in one calendar year could result in permit censuring
for a period of six months for each offense. If the commission determines
that more than one permit application offense has occurred in one calendar
year, it may direct the staff to censure the principal investigator or other
professional personnel, investigative firm or professional firm in question.
The censured parties will then be ineligible to be issued a permit for a period
of six months for each offense. Any decisions relative to permit censuring
can be appealed to the State Office of Administrative Hearings (SOAH), and
a formal evidentiary hearing on the matter will be set.
(c)
Project sponsors and permittees shall not encourage principal
investigators, project architects, or investigative firm or other professional
firms to perform investigations on public lands in the State of Texas without
a properly issued permit, and such investigations proceeding with the knowledge
of the project sponsor and/or permittee would constitute a violation of the
Antiquities Code of Texas. This action may result in the denial of a permit
and compromise authorization for a development project to proceed relative
to jurisdiction under the Antiquities Code of Texas. The commission may also
require that the investigations performed without a permit be performed again
under a properly issued permit.
(d)
The rules and standards that must be followed in relationship
to the curation of artifacts recovered under the jurisdiction of the Antiquities
Code can be found under Title 13, Part 2, Chapter 29 of the Texas Administrative
Code (print copies available from the commission or also online at www.thc.state.tx.us).
§26.4. Amendment of Rules.
The rules and regulations of the commission may be amended with the
approval of a majority of the commission members.
§26.5.Definitions.
The following words and terms, when used in this chapter and the Antiquities
Code of Texas, shall have the following meanings unless the context clearly
indicates otherwise.
(1)
Antiquities and Artifacts--the tangible objects of the
past that relate to human life and culture. Examples include, but are not
limited; projectile points, tools, documents, architectural features, landscapes,
art forms, and technologies.
(2)
Antiquities Advisory Board--a ten-member board that assists
the Texas Historical Commission in reviewing matters related to the Antiquities
Code of Texas.
(3)
Applicant--the controlling agency, organization, or political
subdivision having administrative control over a publicly owned landmark or
the owner of a privately owned landmark. Only the applicant may be issued
a historic structures permit.
(4)
Appropriate historical or archeological authorities--for
purposes of implementing the Antiquities Code of Texas, the commission is
the statutorily created body responsible for protecting and preserving State
Archeological Landmarks, Texas Natural Resources Code of 1977, Title 9, Chapter
191.
(5)
Archeological site--any place containing evidence of human
activity, including but not limited to the following:
(A)
Habitation sites. Habitation sites are areas or structures
where people live or have lived on a permanent or temporary basis. Standing
structures may or may not be present. Habitation sites may also contain evidence
of activities that are listed in the following as site types in the non-habitation
category.
(i)
Campsites.
(I)
Native American open campsites were occupied on a temporary,
seasonal, or intermittent basis. Evidence of structures may or may not be
present. Native American campsites may have accumulations of shell or burned
rock as well as hearths, hearth fields, bedrock mortars, burials, and/or scatters
or accumulations of ceramics, stone debitage, flaked tools, and grinding stones.
Campsites vary in size from a few square meters to several hectares. Additionally,
Native American sites near missions, forts, and trading posts were of varying
degrees of permanence with the site generally being continuously occupied;
but not necessarily by the same group or tribe.
(II)
Rock shelters, in general, are a special kind of campsite.
These sites are located in caves or under rock overhangs and have been occupied
either temporarily, seasonally, or intermittently. Many articles of perishable
materials such as clothing, basketry, sandals, and matting may be preserved.
Shelter sites include not only the shelter area itself, but also the area
of debris accumulation located in the immediate vicinity that is the result
of activity by those occupying the rock shelter. Associated hearths, burials,
bedrock mortars, dumps, etc., may be present. Rock shelters vary in size from
an area large enough to accommodate only one person to areas of several hundred
meters in the largest dimension.
(III)
Non-Native American campsites are the cultural remains
of activities by people who are not Native American. Examples are sites that
represent the activities of railroad workers, military units, settlers, slave
quarters, wagon trains, shepherd shelters, line camps, buffalo hunter camps,
cavalry campgrounds, trail drive camps, camps at river fords, candelilla wax
camps, WPA and CCC camps and work sites.
(ii)
Residence sites.
(I)
Residence sites are those where routine daily activities
were carried out and which were intended for year-round use. A greater degree
of permanence is implied in a residence site than a campsite; therefore, structural
evidence in the form of post molds, foundations, and so forth is more likely
to be present. Examples include remains of cabins, dugouts, farmhouses, ranch
headquarters, plantation residences, slave quarters, and urban homes, as well
as teepee rings, pueblos, subterranean pithouses, and Caddoan houses constructed
by Native Americans.
(II)
Residence sites resulting from Native American activities
may include additional features and structures, including hearths, retaining
walls, enclosures, compounds, patios, burials, cemeteries, mounds, platforms,
and borrow areas, as well as scatters and accumulations of stone debitage,
ceramic sherds, burned rock, flaked tools, grinding tools, grinding stones,
and bedrock mortars.
(III)
Non-Native American sites may include, in addition to
the main structure, outbuildings, water systems, trash dumps, garden areas,
driveways, and other remains that were an integral part of the site when it
was inhabited. Examples of structures or structural remains which might be
present in addition to the residence include, but are not limited to, barns,
silos, cisterns, corrals, wells, smokehouses, stables, gazebos, carriage houses,
fences, walls, corn cribs, gins or mills, cellars, kitchens, and bunkhouses.
Family cemeteries are often associated with early historic sites.
(B)
Non-habitation sites. Non-habitation sites result from
use during specialized activities and may include standing structures. Descriptions
of each kind of site are given.
(i)
Rock art and graffiti sites consist of symbols or representations
that have been painted, ground, carved, sculpted, scratched, or pecked on
or into the surface of rocks, wood, or metal. Names, dates, symbols, and representations
or likenesses of people, animals, plants, lines, shapes or objects are common
elements in such sites.
(ii)
Mines, quarry areas, and lithic procurement sites are
those from which raw materials such as flint, clay, coal, minerals, or other
materials were collected or mined for future use. Sites where flint was obtained
can be identified by the abundance of flint flakes, broken tools, and flint
cobbles. Historic mines often have associated structures such as head frames,
support timbers, and transportation facilities.
(iii)
Game procurement and processing sites are areas where
game was killed or butchered for food or hides. Remnants of structures such
as game runs, hunting blinds, and fish weirs, as well as stone, bone, and
metal tools, may be present in association with animal remains. Often the
animal remains form a bone bed with cultural material dispersed sparsely among
the bones.
(iv)
Engineering structures such as aqueducts, irrigation canals
and ditches, earthen mounds, ramps, platforms, terraces, dams, bordered and
leveled fields, constructed trails, bridges, tunnels, shafts, roads, rock
fences, dams, lighthouses, and railroad, streetcar, and thoroughfare systems
are the most common, but not the only kinds of engineering structures.
(v)
Cemeteries and burials, marked and unmarked, are special
locales set aside for burial purposes. Cemeteries contain the remains of one
or more persons. Burials may contain the remains of one or more individuals
located in a common grave in a locale not formerly or subsequently used as
a cemetery. The site area encompasses the human remains present and also gravestones,
markers, containers, coverings, garments, vessels, tools, and other goods,
which may be present. Cemeteries and burials whether prehistoric or historic,
that are publicly owned are protected under the Antiquities Code. Cemeteries
are considered historic if interments within the cemetery occurred at least
fifty (50) years ago. Individual burials within a cemetery are not considered
historic unless the interments occurred at least fifty (50) years ago.
(vi)
Fortifications, battlefields, training grounds and skirmish
sites include fortifications of the historic period and the central areas
of encounters between opposing forces, whether a major battleground or areas
of small skirmishes. Trenches, mounds, walls, bastions, and other fortifications
may be present. Trash dumps will also be considered a part of the site. Included
here are battlefields of the Civil War, the Texas War for Independence, the
Mexican War, and skirmish sites between non-Native American and Native American
forces. Standing structures may or may not be present.
(vii)
Public service and ceremonial sites include, but are
not limited to, kivas, temple mounds, shrines, missions, churches, libraries,
museums, educational institutions, courthouses, fire stations, and hospitals.
Standing structures may or may not be present.
(viii)
Commercial business structures and industrial structures
and sites where products or services are produced, stored, distributed, or
sold include, but are not limited to, markets, stores, shops, banks, hostels,
stables, inns, stage stops, breweries, bakeries, factories, kilns, mills,
storage facilities, and railroad, bus and tramway depots. Trash or dump deposits,
outbuildings, wells, cisterns, and other features associated with the principal
structures are considered to be parts of these sites.
(ix)
Monuments and markers include structures erected to commemorate
or designate the importance of an event, person, or place, and may or may
not be located at the sites they commemorate. Included in this category are
certain markers erected by the Texas Historical Commission and county historical
commissions, and markers and statuary located on public grounds such as courthouse
squares, parks and the Capitol grounds. Examples of such sites constructed
by Native Americans are medicine wheels that will be included in this category
upon identification.
(x)
Shipwrecks by definition, Texas Natural Resource Code,
Section 191.091, include the wrecks of naval vessels, Spanish treasure ships,
coastal trading schooners, sailing ships, steamships, and river steamships,
among others.
(6)
Archeological Survey Standards for Texas--Minimum survey
standards developed by the commission in consultation with the Council of
Texas Archeologists.
(7)
Board--the Antiquities Advisory Board.
(8)
Building--A building is a structure created to shelter
any form of human activity, such as a courthouse, city hall, church, hotel,
house, barn, or similar structure. Building may refer to a historically related
complex such as a courthouse and jail or a house and barn.
(9)
Commission--the Texas Historical Commission and its staff.
(10)
Committee, or Antiquities Committee, or Texas Antiquities
Committee--as redefined by the 74th Texas Legislature within Section 191.003
of the Antiquities Code means the Texas Historical Commission and/or staff
members of the Texas Historical Commission.
(11)
Contract archeologist--a professional archeologist who
performs or directs archeological investigations under contract.
(12)
Council of Texas Archeologists--a non-profit voluntary
organization that promotes the goals of professional archeology in the State
of Texas.
(13)
Council of Texas Archeologists Guidelines--professional
and ethical standards which provide a code of self regulation for archeological
professionals in Texas with regard to field methods, reporting, and curation.
(14)
Conservation--scientific laboratory processes for cleaning,
stabilizing, restoring, preserving artifacts, and the preservation of buildings,
sites, structures and objects.
(15)
Cultural resource--any building, site, structure, object,
artifact, historic shipwreck, landscape, location of historical, archeological,
educational, or scientific interest, including, but not limited to, prehistoric
and historic Native American or aboriginal campsites, dwellings, and habitation
sites, archeological sites of every character, treasure embedded in the earth,
sunken or abandoned ships and wrecks of the sea or any part of the contents
thereof, maps, records, documents, books, artifacts, and implements of culture
in any way related to the inhabitants' prehistory, history, natural history,
government, or culture. Examples of cultural resources include Native American
mounds and campgrounds, aboriginal lithic resource areas, early industrial
and engineering sites, rock art, early cottage and craft industry sites, bison
kill sites, cemeteries, battlegrounds, all manner of historic buildings and
structures, local historical records, cultural landscapes, etc.
(16)
Curatorial facility--a museum, school of higher education,
institution, or governmental agency that engages in the permanent curation,
conservation, storage, and/or displays of archeological or other cultural
artifacts.
(17)
Data recovery--an excavation mode of archeology and a
form of mitigation. The evidence from a skillfully accomplished archeological
excavation provides a detailed picture of the human activities at the site;
emphasis is placed on evidence rather than artifacts. In data recovery, the
archeological deposits are removed by digging and so destroyed. The destruction
can be justified only if:
(A)
it is done with such care that antiquities and cultural
and environmental data in the area excavated are discovered, and if possible,
preserved, however faint the surviving trace may be;
(B)
appropriate information has been accurately recorded, whether
its importance is immediately recognized or not, to remain available after
the site has disappeared; and
(C)
the record and results of the investigation are made available
through publication.
(18)
Default--failure to fulfill all conditions of a permit
or contract, issued or granted to permittee(s), sponsors, and principal investigator
or other professional personnel and professional firms.
(19)
Defaulted permit--a permit that has expired without all
permit terms and conditions having been met.
(20)
Department of Antiquities Protection (DAP)--means the
Division of Archeology (AD) of the commission.
(21)
Designated historic district--areas of archeological,
architectural, or historical significance indicated by: listing in, or determination
of eligibility for listing in, the National Register of Historic Places; designation
as State Archeological Landmarks, or determination of eligibility for designation
as State Archeological Landmarks; or identified by State agencies or political
subdivisions of the State as historically sensitive sites, districts, or areas.
This includes historical designation by local landmark commissions, boards,
or other public authorities, or through local preservation ordinances.
(22)
Discovery--the act of locating, recording, and reporting
a cultural resource.
(23)
Eligible--landmarks that are located in, on, or under
the surface of any land belonging to the State of Texas or to any county,
city, or political subdivision of the state are eligible for designation.
In order to be designated, buildings and structures must be listed in the
National Register of Historic Places.
(24)
Environmental data--presently available information as
well as data derived as an adjunct to an archeological investigation, which
includes, but is not limited to, area drainage, physiography, surface and
subsurface geology, soils, flora, fauna, climate, the alteration of prehistoric
and historic landforms, and so forth. The implications of present and/or hypothetical
microenvironments should be presented when sufficient data allow for such
inferences. The above elements of the environment through time must be considered
during attempts to reconstruct past technological subsistence and settlement
patterns.
(25)
Emergency Permit--a permit that authorizes investigations
to be performed prior to the formal application for those investigations.
This permit will only be issued under emergency conditions when cultural resources
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 findings.
(26)
Historic Landscape--a geographic area, associated with
a historic event, activity, or person or exhibiting other cultural or aesthetic
values.
(27)
Historic property--a district, site, building, structure
or object significant in American history, architecture, engineering, archeology
or culture.
(28)
Historic time period--for the purposes of State Archeological
Landmark designation, this time period is defined as extending from A. D.
1500 to 50 years before the present.
(29)
Integrity--the authenticity of a property's historic identity,
evidenced by the survival of physical characteristics that existed during
the property's historic or prehistoric period.
(30)
Intensive Survey--a field survey examination to determine
the number and extent of the cultural resources present and their scientific
importance. Shovel testing may be required to locate archeological sites when
the ground surface is obscured or to determine the horizontal limit of buried
archeological deposits.
(31)
Investigation--archeological or architectural activity
including, but not limited to: reconnaissance or intensive survey, testing,
or data recovery; preservation of rock art; underwater archeological survey,
test excavation, or data recovery excavations; monitoring; measured drawings;
or photographic documentation.
(32)
Investigative firm--a company or scientific institution
that has full-time experienced research personnel capable of handling investigations
and employs a principal investigator and/or project architect. The company
or institution holds equal responsibilities with the principal investigator
or project architect to complete requirements under an Antiquities Permit.
(33)
Land owning or controlling agency--any state agency or
political subdivision of the state that owns or controls the land(s) in question.
(34)
Landmark--means state archeological landmark.
(35)
Mitigation--the amelioration of the potential total or
partial loss of significant cultural resources. For example, mitigation for
removal of a deteriorated historic building feature might include photographs
and drawings of the feature, and installing a replacement that matches the
original in form, material, color, etc. Mitigation for the loss of an archeological
site might be accomplished through pre-planned data recovery actions, to preserve
or recover an appropriate amount of data by application of current professional
techniques and procedures, as defined in the permit's scope of work. Following
archeological mitigation or data recovery investigation, a clearance letter
may be issued by the commission that authorizes destruction of all or part
of an archeological site without an Antiquities Permit.
(36)
Monitoring--the on-site presence of a professional archeologist
or architect to observe construction activities that could or will alter cultural
resources, and to report findings and effects.
(37)
National Register--the National Register of Historic Places
is a register of districts, sites, buildings, structures, and objects significant
in American history, architecture, archeology, and culture maintained by the
Secretary of the Interior. Information concerning the National Register is
available through the commission (print copies available from the commission
or also online at www.thc.state.tx.us).
(38)
Nonpublic interior spaces--are insignificant spaces exempt
from the authority of the Antiquities Code. The interior spaces to be considered
public and therefore not exempt are those spaces that are or were accessible
to the public (lobbies, corridors, rotundas, meeting halls, courtrooms, offices
of public officials, public employees and services, etc.), and those that
are important to the public because of any significant historical, architectural,
cultural, or ceremonial value.
(39)
Normal maintenance or repair--any work performed on the
materials, features or landforms of cultural resources that does not have
the potential to cause removal, damage or alteration to the integrity, form
or appearance of the material, feature or landform, is considered to be normal
maintenance and repair and therefore exempt from the notification requirement.
For example, permanent masonry damage can result from use of inappropriate
cleaning methods, such as sandblasting, high pressure water cleaning or the
use of unsuitable chemicals, or from use of damaging repointing techniques
and materials. Replacing historic windows damages the historical integrity
of a building and painting previously unpainted surfaces constitutes alteration.
Such work is not considered normal maintenance or repair. Cleaning surfaces
with non-corrosive mild solutions and low-pressure water, repainting window
frames or doorways with similar paints, or minor repairs such as replacing
putty on windows are examples of normal maintenance and repair.
(40)
Permit Application Offense--failure to properly apply
for a permit and/or receive authorization for an emergency permit by the commission,
prior to the actual performance of an archeological investigation or other
project work.
(41)
Permit censuring--a restriction in the ability of a principal
investigator or other professional personnel and/or an investigative firm
or other professional firm to be issued a permit under the auspices of the
Antiquities Code of Texas.
(42)
Permittee--the landowning or controlling individual or,
public agency and/or a project sponsor that is issued an Antiquities Permit
for an archeological investigation or other project work.
(43)
Political subdivision--a local government entity created
and operating under the laws of this state, including a city, county, school
district, or special district created under the Texas Constitution, Article
III, Section 52(b)(1) or (2), or Article XVI, Section 59.
(44)
Prehistoric time period--for the purpose of State Archeological
Landmark designation, a time period that encompasses a great length of time
beginning when humans first entered the New World and ending with the arrival
of the Spanish Europeans, which has been approximated for purposes of these
guidelines at A. D. 1500.
(45)
Preservation--the act or process of applying measures
necessary to sustain and protect the existing form, integrity and materials
of a cultural resource. Preservation consists of maintenance and repair of
materials, features or landforms of cultural resources, rather than extensive
replacement and new construction. Also, the conservation of buildings, sites,
structures and objects.
(46)
Professional firm--A company or scientific institution
that has professional personnel who meet the required qualifications for specific
types of work. The company or institution holds equal responsibilities with
a project architect or other professional personnel to complete requirements
under an Antiquities Permit.
(47)
Professional personnel--appropriately trained specialists
required to perform adequate archeological and architectural investigations
and project work. These personnel include the following:
(A)
Principal investigator. A professional archeologist with
demonstrated competence in field archeology and laboratory analysis, as well
as experience in administration, logistics, personnel deployment, report publication,
and fiscal management. In addition to these criteria the principal investigator
shall:
(i)
hold a graduate degree in anthropology/archeology, or closely
related field such as geography, geology, or history, if their degree program
also included formal training in archeological field methods, research, and
site interpretation from an accredited institution of higher education; and/or
be registered as a professional archeologist by the Register of Professional
Archeologists (RPA); and/or have successfully completed investigations under
an Antiquities Permit; and/or hold an active permit not in default, prior
to the date that these rules become effective;
(ii)
have at least twelve months of full-time experience in
a supervisory role involving complete responsibility for a major portion of
a project of comparable complexity to that which is to be undertaken under
permit;
(iii)
have demonstrated the ability to disseminate the results
of an archeological investigation in published form conforming to current
professional standards;
(iv)
remain on-site a minimum of 25% of the time required for
the field investigation, and whose names must appear on the project report;
(v)
provide a field archeologist to supervise the field investigation
in his or her absence; and
(vi)
testify concerning report findings in the interest of
controversy or challenge.
(B)
Professional archeologist. One who has a degree in anthropology,
archeology or a closely related field if that degree also included formal
training in archeological field methods, research, and site interpretation,
conducts archeological investigations as a vocation, and whose primary source
of income is from archeological work. Qualifications for specialized types
of professional archeologists are listed below.
(i)
Prehistoric Archeologist. One who is a professional archeologist
and, in addition, meets the following conditions:
(I)
has been trained in the field of prehistoric archeology;
(II)
has a minimum experience of two comprehensive archeological
field seasons of three to six months in length on archeological site(s) that
contain prehistoric (pre-16th century) archeological deposits; and
(III)
has published the results of those prehistoric archeological
investigations in scholarly journals or publications.
(ii)
Historic archeologist. One who is a professional archeologist
and, in addition, meets the following conditions:
(I)
has been trained in the field of historical archeology;
(II)
has a minimum experience of two comprehensive archeological
field seasons of three to six months in length on archeological site(s) that
contain historic (post-16th century) archeological deposits; and
(III)
has published the results of those historical archeological
investigations in scholarly journals or publications.
(iii)
Underwater archeologist. One who is a professional archeologist
and, in addition, is a competent diver with a minimum of two full seasons
in underwater archeological testing or excavation projects. Training and experience
sufficient for safe and proficient use of the specialized underwater remote
sensing survey, excavation and mapping techniques, and equipment are required.
(iv)
Underwater archeological surveyor. One who has training
and experience sufficient for safe and proficient supervision of appropriate
remote sensing survey equipment operation, as well as for interpretation of
survey data for anomalies and geomorphic features that may have some probability
of association with submerged aboriginal sites and sunken vessels. This individual
may represent the archeological interests on board the survey vessel in the
absence of an underwater archeologist, as defined in subparagraph (B)(iii)
of this definition.
(C)
Project architect. A professional who is a licensed architect
and has had full-time experience in a supervisory role on at least one historic
preservation project. The project architect must be involved, at a minimum,
in 25% of the time required to develop plans and specifications and manage
project work for an historic structures permit project and, when not involved
with the project, must assign a qualified preservation specialist to supervise
the preservation project.
(i)
A preservation specialist may serve in the place of the
project architect if: all responsibilities of a project architect under this
title will be fulfilled by the project preservation specialist; and all education
and experience criteria for a preservation specialist are met.
(ii)
A project engineer may serve in the place of the project
architect if: the scope of project work is limited to structural stabilization
and repair; all responsibilities of a project architect under this title will
be fulfilled by the project engineer; and all education and experience criteria
for a project engineer are met.
(iii)
A landscape architect may serve in the place of the project
architect if: the project scope is limited to landscape architecture; all
responsibilities of a project architect under this title will be fulfilled
by the project landscape architect; and all education and experience criteria
for a project landscape architect are met.
(iv)
A project contractor may serve in the place of a project
architect if: the project scope of work is limited to the demonstrated professional
expertise of the contractor; all responsibilities of a project architect under
this title will be fulfilled by the project contractor; and all the requirements
for a project contractor are met.
(D)
Preservation specialist. One who has a professional degree
in architecture or a state license to practice architecture, plus one of the
following:
(i)
at least one year of graduate study in architectural preservation,
American architectural history, preservation planning, or closely related
field, or
(ii)
at least one year of full-time professional experience
on historic preservation projects to include experience on projects similar
to the project to be permitted; detailed investigations of historic structures;
preparation of historic structures research reports; and preparation of plans
and specifications for preservation projects.
(E)
Project contractor. A professional who has the appropriate
training, certifications and/or licenses for the type of project work specified
in the permit application and at least one year of demonstrable full-time
experience in applying the methods and practices of the proposed work on historic
preservation projects similar to the project to be permitted.
(F)
Project engineer. A professional who is a licensed engineer
and has had full-time experience in a supervisory role on at least one historic
preservation project similar to the project to be permitted.
(G)
Project landscape architect. A professional who is a licensed
landscape architect and has had full-time experience in a supervisory role
on at least one historic preservation project similar to the project to be
permitted.
(H)
Historian. The minimum professional qualifications are
a graduate degree in history or closely related field; or a bachelor's degree
in history or a closely related field plus one of the following:
(i)
at least two years of full-time experience in research,
writing, teaching, interpretation, or other demonstrable professional activity
with an academic institution, historical organization or agency, museum, or
other professional institution; or
(ii)
substantial contribution through research and publication
to the body of scholarly knowledge in the field of history.
(I)
Geomorphologist or geoarcheologist. A person who holds
a graduate degree in geology, geomorphology, archeology, or other closely
related field, and has had sufficient training to adequately evaluate the
sedimentology, stratigraphy, and pedology of deposits in the field and be
competent to describe and analyze the deposits using standard terminology
and methods. This person should also have general archeological experience
in the area in which the investigations are to occur.
(48)
Project--Activity on a cultural resource including, but
not limited to: investigation, survey, testing, excavation, restoration, demolition,
scientific or educational study.
(49)
Project sponsor--an individual, institution, public agency,
or company paying costs of archeological investigation or other project work.
(50)
Public agency or agencies--any state agency or political
subdivision of the state.
(51)
Public lands--non-federal, public lands that are owned
or controlled by the State of Texas or any of its political subdivisions,
including the tidelands, submerged land, and the bed of the sea within the
jurisdiction of the State of Texas.
(52)
Reconnaissance--a literature search and record review
plus an on-the-ground surface examination of selected portions of an area
adequate to assess the general nature of the resource probably present. This
level of investigation is appropriate to preliminary planning decisions and
will be of assistance in determining viable project alternatives. A reconnaissance
can be used to help determine whether an Intensive Survey is warranted.
(53)
Recorded archeological site--sites that are recorded,
listed, or registered with an institution, agency, or university, such as
the Texas Archeological Research Laboratory of the University of Texas at
Austin.
(54)
Register of Professional Archeologists--a voluntary national
professional organization of archeologists which registers qualified archeologists.
(55)
Rehabilitation--the act or process of making possible
a compatible use for a property through repair, alterations, and additions
while preserving those portions or features which convey its historical, cultural,
or architectural values.
(56)
Research design--a written theoretical approach and a
plan for implementing fieldwork that also explains the goals and methods of
the investigation. A research design is developed prior to the implementation
of the field study and submitted with a completed Archeological Permit Application.
(57)
Restoration--a treatment, defined in the Secretary of
the Interior's Standards for the Treatment of Historic Properties, as the
act or process of accurately depicting the form, features, and character of
a property and its setting as it appeared at a particular period of time by
means of the removal of features from later periods in its history and reconstruction
of missing features from the restoration period.
(58)
Rock art--all manner of carvings, scratchings, and paintings
on rock which relate to human life and culture, including, but not limited
to, Native American pictographs and petroglyphs, historical graffiti and inscriptions,
and religious and genealogical records.
(59)
Ruins--a historic or prehistoric site, composed of both
archeological and structural remains, in which the structure is in a state
of collapse or deterioration to the point that the original roof and/or flooring
and/or walls are either missing, partially missing, collapsed, partially collapsed,
or seriously damaged through natural forces or structural collapse. Ruins
are considered archeological sites, and historic structures recently damaged
or destroyed are not classified as ruins.
(60)
Scope of work--a summary of the methodological techniques
used to perform the archeological investigation or outline of other project
work under permit.
(61)
Significance--a trait attributable to sites, buildings,
structures and objects of historical, architectural, and archeological value
which are state archeological landmarks and eligible for official designation
and protection under the Antiquities Code of Texas. Significance is a trait
attributable to properties listed or determined eligible for listing in the
National Register of Historic Places.
(62)
Site--any place or location containing physical evidence
of human activity. Examples of sites include: the location of prehistoric
or historic occupations or activities, a group or district of buildings or
structures that share a common historical context or period of significance,
and designed landscapes such as parks and gardens.
(63)
Sponsor--an agency, individual, institution, investigative
firm or other professional firm, organization, corporation, subcontractor,
and/or company paying the costs of archeological investigation or other project
work, or that sponsors, funds or otherwise functions as a party under a permit.
(64)
State agency--a department, commission, board, office,
or other agency that is a part of state government and that is created by
the constitution or a statute of this state. The term includes an institution
of higher education as defined by the Texas Education Code, Section 61.003.
(65)
State Archeological Landmark--any cultural resource located
in, on, or under the surface of any land belonging to the State of Texas or
to any county, city, or other political subdivision of the state, or a site
officially designated as a landmark at an open public hearing before the commission.
(66)
State Historic Preservation Officer--the official within
each state authorized by the state, at the request of the Secretary of the
Interior, to act as liaison for purposes of implementing the National Historic
Preservation Act. In Texas, the Executive Director of the commission is designated
as the State Historic Preservation Officer.
(67)
Structure--A structure is a work made up of interdependent
and interrelated parts in a definite pattern of organization. The term "structure"
is used to distinguish from buildings those functional constructions made
usually for purposes other than creating human shelter. Constructed by man,
it is often an engineering project. Examples of structures include bridges,
power plants, water towers, silos, windmills, grain elevators, etc.
(68)
Testing--applying current scientific or archeological
techniques to investigate and evaluate one or more cultural resources. Testing
must be accomplished in such a way as to recover archeological, historical
and scientific data through detailed examination of a representative sample
of the site or sites, or building conditions. Testing must result in the recovery
of data, specimens, and samples relating to the total cultural content of
the archeological site or sites, or in the least damage possible to the building.
Results of testing are utilized in making significance determinations relative
to the potential need for additional investigations or the preservation of
the remaining portions of the archeological site, or in making decisions regarding
appropriate restoration or other treatment of the cultural resource.
§26.6.Antiquities Advisory Board.
As provided for by the 74th Texas Legislature, within Section 442.005(r)
of the Government Code of Texas (relating to the statutes of the Texas Historical
Commission), the commission is authorized to create an Antiquities Advisory
Board (hereafter referred to as the board). The board makes recommendations
to the commission on issues related to the Antiquities Code of Texas. The
board is composed of the following ten membership positions: the governor-appointed
professional archeologist, historian, and architect members of the commission,
a representative of the Texas Archeological Society (TAS) who is nominated
in consultation between TAS and the commission, a representative of the Council
of Texas Archeologists (CTA) who is nominated in consultation between CTA
and the commission, a state agency archeologist who is nominated in consultation
between state agencies that employ archeologists and the commission, two historians
nominated by the commission from the discipline of Texas history, and two
historic architects nominated by the commission, in consultation with the
Texas Society of Architects, from the discipline of historic architecture.
The chairman of the board is appointed by the chairman of the commission,
from one of the three commission members that serve on the board. The vice
chair will be elected each year by the board from within their membership.
The non-governor appointed archeologists, historians and historic architects
serve two-year terms that expire on February 1, of either odd or even numbered
years, as determined by the commission. If the Governor does not appoint a
professional archeologist, architect, or historian to the commission, the
chairman of the commission will appoint such individuals to serve on the board
from either other commission members or the general public. These appointed
board members will serve two year terms or until they are replaced by qualified
governor-appointed commissioners. The board shall convene immediately prior
to each quarterly meeting of the commission unless otherwise requested by
the board chair, and board meetings shall conform to the Texas Open Meetings
Act, Chapter 551 of the Texas Government Code and the Administrative Procedure
Act, Texas Government Code 2001. All recommendations made by the board are
brought to the commission by the board chairman, or one of the other commission
members who serve on the board. The board will accomplish its specific duties
in the following manner.
(1)
Consider and discuss all proposed State Archeological Landmark
nominations and any non-adjudicative issues or disputes specifically related
to Antiquities Code and associated permitting issues that are brought before
them by the commission, or members of the board, or the public.
(2)
Function as preliminary mediators for the commission unless
otherwise directed by the commission, or refused by a complainant(s).
(3)
Vote on final recommendations related to appropriate issues
of concern and present those recommendations to the commission.
(4)
Conflicts of interest.
(A)
Any member of the board who has a conflict of interest
related to an issue that comes before the board shall recuse himself/herself
from voting and participating in the discussion on that issue. Prior to any
deliberations concerning the issue in which a member of the board has a conflict
of interest, the member with a conflict shall announce, for the record, that
such a conflict exists and physically absent and recuse himself/herself from
the decision-making process and not vote on that matter. Board minutes must
indicate which member recused himself/herself and the reason(s) for the recusal.
(B)
For the purpose of these rules a conflict of interest would
result if a vote by a member of the board is likely to result in a financial
benefit or personal gain for the following individuals:
(i)
the member of the board;
(ii)
any person of the member's immediate family, which includes
spouse and any minor children;
(iii)
a business partner of the member; or
(iv)
any organization for profit in which the member, or any
person of clauses (ii) and (iii) of this subparagraph, that is serving or
is about to serve as an officer, director, trustee, partner, or employee.
A financial benefit includes, but is not limited to, grant money, contract,
subcontract, royalty, commission, contingency, brokerage fee, gratuity, favor,
or any other things of real or potential value.
(5)
The board shall follow parliamentary authority according
to Robert's Rules of Order, Newly Revised, except where specifically provided
for otherwise in these rules.
§26.7.Criteria for Evaluating Historic Structures.
Historic structures may be designated as State Archeological Landmarks,
provided that the following conditions are met:
(1)
the structure, or building is listed in the National Register
of Historic Places; and
(2)
the structure, or building fits within at least one of
the following criteria:
(A)
is associated with events that have made a significant
contribution to the broad patterns of our history;
(B)
is associated with the lives of persons significant in
our past;
(C)
is important to a particular cultural or ethnic group;
(D)
is the work of a significant architect, master builder,
or craftsman;
(E)
embodies the distinctive characteristics of a type, period,
or method of construction, possesses high aesthetic value, or represents a
significant and distinguishable entity whose components may lack individual
distinctions;
(F)
has yielded or may be likely to yield information important
to the understanding of Texas culture or history.
§26.8.Criteria for Evaluating Archeological Sites.
The commission uses one or more of the following criteria when assessing
the appropriateness of official landmark designation, and/or the need for
further investigations under the permit process:
(1)
the site has the potential to contribute to a better understanding
of the prehistory and/or history of Texas by the addition of new and important
information;
(2)
the site's archeological deposits and the artifacts within
the site are preserved and intact, thereby supporting the research potential
or preservation interests of the site;
(3)
the site possesses unique or rare attributes concerning
Texas prehistory and/or history;
(4)
the study of the site offers the opportunity to test theories
and methods of preservation, thereby contributing to new scientific knowledge;
(5)
the high likelihood that vandalism and relic collecting
has occurred or could occur, and official landmark designation is needed to
insure maximum legal protection, or alternatively further investigations are
needed to mitigate the effects of vandalism and relic collecting when the
site cannot be protected.
§26.9.Criteria for Evaluating Shipwrecks.
Shipwrecks may be considered significant and be recognized or designated
as State Archeological Landmarks provided that the following conditions are
met
(1)
the shipwreck is located on land owned or controlled by
the State of Texas or one of its political subdivisions; and
(2)
the shipwreck is pre-twentieth century or is otherwise
historically significant and is 50 years old or older in age; and
(3)
the remains consist of a shipwreck sunken, abandoned, or
a wreck of the sea, or are represented by the ship's contents or related embedded
treasure.
§26.10.Criteria for Evaluating Caches and Collections.
Caches and collections may be considered significant and be recognized
or designated as State Archeological Landmarks, provided that at least one
of the following conditions is met:
(1)
the cache or collection was assembled with public funds
or taken from public lands;
(2)
preservation of materials is adequate to allow the application
of standard archeological or conservation techniques;
(3)
the cache or collection must be of research value, thereby
contributing to scientific knowledge; or
(4)
the cache or collection is of historic value or contributes
to a theme.
§26.11.Location and Discovery of Cultural Resources and Landmarks.
The Texas Natural Resource Code of 1977, Title 9, Heritage, Chapter
191, Antiquities Code of Texas, Section 191.002 (concerning Declaration of
Public Policy), declares that 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. Section
191.051 of the Antiquities Code (concerning Powers and Duties In General)
directs the commission to provide for the discovery and/or scientific investigation
of publicly owned cultural resources. Section 191.174 of the Antiquities Code
(concerning Assistance from State Agencies, Political Subdivisions, and Law
Enforcement Officers), further directs the commission, state agencies, political
subdivisions of the state, and law enforcement agencies to work together to
locate and protect cultural resources when deemed prudent, necessary, and/or
in the best interest of the state. To achieve these mandates, the commission
reviews construction plans for projects on public lands prior to development
to determine the project's potential impact to cultural resources, and invokes
its power to issue and supervise Antiquities Permit investigations in accordance
with Section 191.054 of the Antiquities Code (concerning Permit for Survey
and Discovery, Excavation, Restoration, Demolition, or Study). These mandates
and the review of construction plans that may adversely affect both archeological
sites and historic structures are accomplished in the following manner.
(1)
Project notification. As provided for in Sections 191.0525
and 191.054 of the Antiquities Code (concerning Notice Required and Permit
for Survey and Discovery, Excavation, Restoration, Demolition, or Study),
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 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 historic structure(s) involved in
the project work.
(2)
Project review. Once the commission receives a complete
notification a response will be provided within 30 days (unless otherwise
provided for within Section 191.0525) of receipt of the review request. The
commission shall review submitted documentation and notify the public agency
if historic structures involved in the work are landmarks eligible for 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
30 days, the public agency may proceed without further notice to the commission.
Expedited reviews (24 hours) will be accommodated on a case-by-case basis
in emergency situations.
(3)
Project coordination. If a survey investigation or review
of project work is required, appropriate professional personnel will perform
the investigations or work under an Antiquities Permit in accordance with
Sections 26.17-18, 26.20-22, and 26.24-25 of this title.
(4)
Construction discovery. Anyone working on public lands
who discovers archeological sites or historic structures which may qualify
for designation as a State Archeological Landmark according to the criteria
listed in Sections 26.7-26.11 of this title (relating to Criteria for Evaluating
Historic Structures; Criteria for Evaluating Archeological Sites; Criteria
for Evaluating Caches and Collections; and Criteria for Evaluating Shipwrecks)
shall report such discovery to the state agency or political subdivisions
owning or controlling the property and to the commission. Upon notification,
the commission staff may initiate designation proceedings if it determines
the site to be a significant cultural or historical property and/or the commission
staff may issue a permit for mitigative archeological investigations or any
other investigations. 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.
§26.12.Designation Procedures for State Archeological Landmarks.
(a)
Nomination. Any group or individual, public or private,
and public agencies may submit a property in public ownership to the commission
for official designation as a State Archeological Landmark. The nomination
must be submitted to the commission on a form approved by the commission,
and the commission will determine whether the nomination is in order and acceptable,
and when the nomination will be placed on the agenda of one of the commission's
public meetings.
(1)
Any third-party private individual or a private group that
desires to nominate a building or site owned by a political subdivision as
a State Archeological Landmark must complete and return to the commission
a nomination form, and must give notice of the nomination at the individual's
or group's own expense, in a newspaper of general circulation published in
the city, town, or county in which the building or site is located. If no
newspaper of general circulation is published in the city, town, or county,
the notice must be published in a newspaper of general circulation in an adjoining
or neighboring county that is circulated in the county of the applicant's
residence. The notice must:
(A)
be printed in 12-point boldface type;
(B)
include the exact location of the building or site; and
(C)
include the name of the group or individual nominating
the building or site.
(D)
An original copy of the notice and an affidavit of publication
signed by the newspaper's publisher must be submitted to the commission with
a nomination form. The commission will not consider a site owned by a political
subdivision for designation as a State Archeological Landmark unless the notice
and affidavit required by this section are attached to a nomination form.
This notification must be received by both the commission and the public agency
a minimum of 60 days prior to a regularly scheduled public meeting of the
commission at which the nomination may be considered. All decisions regarding
when a nomination will be considered by the commission will be made by the
executive director of the commission.
(2)
If the commission's staff wishes to nominate a site or
historic building or structure for State Archeological Landmark designation
it must give the public agency that owns the property a written notification
that a nomination will be considered by the commission at one of its regularly
scheduled public meetings. This notification must be received by the public
agency a minimum of 15 days prior to the regularly scheduled public meeting
of the commission at which the nomination is scheduled to be presented. The
commission must also send the public agency complete site information on the
proposed nomination.
(b)
Evaluation. The commission's staff will review the property
and determine if it is eligible according to the criteria for evaluation specified
in Sections 26.7-26.10 of this title (relating to Criteria for Evaluating
Historic Structures; Criteria for Evaluating Archeological Sites; Criteria
for Evaluating Caches and Collections; and Criteria for Evaluating Shipwrecks).
(c)
Interim protection and notification. Once a valid nomination
for a landmark building or structure has been received and the commission's
staff determines the property is eligible for designation, no project work
may be undertaken on the property without a permit issued by the commission
unless or until the commission denies the nomination or designation. Information
regarding this protection will be included in the commission's notice on the
nomination to the property owner.
(d)
Presentation of nominations. Following staff evaluation
and recommendations, nominations will be presented to the Antiquities Advisory
Board. Written notice of the presentation will be sent to the owner. The Antiquities
Advisory Board will review each nomination, the staff recommendations related
to each nomination, and any testimony given by the owner of the property and
the public at large. The Antiquities Advisory Board will then pass on its
recommendations regarding each nomination to the commission. The chair of
the Antiquities Advisory Board, or one of the other commission members who
serve on the board, will present the nomination and recommendations to the
commission at one of its public meetings.
(e)
Comment period. No vote on final designation may be taken
by the commission for a minimum period of 30 days, during which time all concerned
parties may present evidence in support of or against designation of the property.
Comments should address the property's merits in light of the criteria specified
in Sections 26.7-26.10 of this title (relating to Criteria for Evaluating
Historic Structures; Criteria for Evaluating Archeological Sites; Criteria
for Evaluating Caches and Collections; and Criteria for Evaluating Shipwrecks).
(f)
Presentation of designation and designation vote. After
the minimum comment period of 30 days has elapsed, the commission may consider
the property for designation at one of its public meetings. The owners of
the property will be informed of the agenda by written notice at least 15
calendar days in advance of the meeting date. Anyone may present evidence
or testify at the meeting when the final decision is to be made. The commission
may then vote to designate, to deny designation, to request further information,
or to make any other appropriate decision.
(g)
Additional evidence. If designation of a property is denied,
interested parties may present additional evidence at any time for the commission's
reconsideration. The evidence will be considered by the commission at one
of its meeting dates.
(h)
Additional hearings. Any owner of a property designated
as a State Archeological Landmark who is aggrieved by the designation procedure
as applied to his or her property will receive a full evidentiary hearing
upon request, or the formal designation can be removed by action of the commission.
(i)
Notification of designation. Written notification of the
commission's decision on designation of a property as a State Archeological
Landmark will be forwarded to the owner.
(j)
Listing of State Archeological Landmarks. If a property
is officially designated as a State Archeological Landmark, the property will
be listed in the commission's inventory and may be marked with the standard
State Archeological Landmark marker, if deemed appropriate by the commission.
A current list of all historic structures, sites, and objects so designated
will be maintained in the office of the commission.
(k)
Privileged information. The location of designated archeological
sites is not public information. However, inquiries as to the status of specific
sites may be disclosed to qualified professionals (as determined under Title
13, Part 2, Chapter 24 of the Texas Administrative Code).
§26.13.Designation of Private Property.
Cultural resources of national, state, or local significance in private
ownership may be nominated by individuals or institutions holding title to
the property on which the resources are located. Nominations must be made
on a commission-approved form. By signing and submitting an approved form,
the owner agrees that if the property in question is designated as a State
Archeological Landmark, he or she will file a notice of the designation with
the deeds clerk of the county where the property is located and pay any filing
fees required. After filing of the designation form, the commission may provide
the owner of the landmark with one cast aluminum marker. The owner will be
responsible for prompt and permanent placement of the marker or markers on
the site in such a way as not to damage the resource. A site or structure
on privately owned property, which is designated as a State Archeological
Landmark is afforded the same protection under the Code as resources on public
property. The nomination and designation hearing process for the designation
of privately owned sites or buildings will follow the same basic procedures
set forth in Section 26.12 of this title (relating to Designation Procedures
for State Archeological Landmarks).
§26.15.Memoranda of Understanding and Agreement.
(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 [
(1) - (2)
(No change.)
[(3)
Texas Parks and Wildlife Department (TPWD).]
[(A)
General Provisions. By means of this Memorandum of Understanding
(MOU), the TPWD is able to provide legal notification of pending development
projects, and perform construction monitoring, archeological surface reconnaissance,
and intensive cultural resource surveys (including shovel tests and limited
mechanical subsurface probings) on all properties owned or controlled by TPWD.
An Antiquities Permit will be issued for each year that this agreement is
in effect, with the stipulation that the following guidelines are to be observed.
Failure to follow the guidelines could result in cancellation of the annual
permit at the discretion of the Department of Antiquities Protection (DAP).
The results of the investigations will be evaluated at the end of each permit
period. New permits will be automatically issued to TPWD by DAP by January
15 of each calendar year assuming all conditions of the agreement have been
met. The MOU may be amended upon the agreement of TPWD and DAP. This MOU voids
all previously issued blanket permits or memoranda between DAP and TPWD.]
[(B)
Conditions and Exceptions for all TPWD lands.]
[(i)
Construction projects in or on lands owned or controlled
by TPWD, that are more than an acre in size (not counting well pads that may
be smaller than one acre) and involve new construction techniques (i.e., bulldozing,
root plowing, disking, construction projects, etc., where similar activities
have not occurred before), need to be reviewed by DAP prior to development,
and archeological surveys may be necessary.]
[(ii)
Large scale (over ten acres; total or cumulative effect)
disking and/or plowing projects or other traditional land use techniques,
in areas that have been previously disked or plowed (including revegetation
and fire line projects), need to be reviewed by DAP prior to development,
and archeological surveys may be deemed necessary.]
[(iii)
New or replacement fence line construction projects
do not need to be reviewed by DAP if construction involves hand clearing of
vegetation, and there is no new development of fence line roads or fire breaks
that involve ground disturbing activities, such as bulldozing. New bulldozing
or disking related to fence line construction needs to be reviewed by DAP,
and archeological surveys may be deemed necessary.]
[(iv)
Road grading/maintenance for erosion control, etc., on
existing roads does not need to be reviewed by DAP, if there are no recorded
or known archeological sites that the roads pass through, or are close by,
and if maintenance does not involve widening or lengthening of the existing
road. However, any new construction along existing roads, such as disking
for fire lines, mechanical brush clearing, and burning, etc., needs to be
reviewed by DAP prior to development, and archeological surveys may be deemed
necessary.]
[(v)
Prescription burns and hand clearing of any kind does
not need to be reviewed by DAP, but associated fire line construction that
falls under clause (ii) of this subparagraph will need to be reviewed.]
[(vi)
Any areas or projects that have been previously cleared
by DAP for development do not need to be reviewed by DAP again, as long as
any future proposed developments are similar to those cleared in the past.
As an example, any area that was previously cleared by DAP for developments
(such as disking) does not need to be reviewed again for future disking in
that same area. However, if the area was cleared for disking but is now going
to be bulldozed or otherwise deeply excavated, that proposal will need to
be reviewed by DAP, and archeological investigations may be deemed necessary.]
[(vii)
Any time that archeological deposits or other cultural
resources (such as historic home sites or ranching facilities, pictographs,
etc.) are discovered on TPWD lands, they must be reported to DAP and the office
of the Cultural Resource Administrator of the Public Lands Division, in order
to maintain a central repository of archeological information. The Public
Lands Division and the Wildlife Division will report according to the provisions
set forth in the following sections.]
[(C)
Public Land Division's Responsibilities.]
[(i)
The Public Lands Division (PLD) and its employees must
comply with the conditions and exceptions in subparagraph (B) of this paragraph.]
[(ii)
TPWD Resource Specialists (RSs) employed by PLD, and
any Austin-based archaeological field investigators or contracted investigators,
assigned to each proposed archeological clearance project must meet DAP requirements
for a Principal Investigator as listed in §26.5 of this title (relating
to Definitions).]
[(iii)
Informed in writing by RSs, the Cultural Resource Administrator
(CRA) is responsible for sending DAP advanced (30-day) written notification
of proposed development projects that require review under subparagraph (B)
of this paragraph. The notification letter must include information on the
type of project development being undertaken, the kind of archeological investigation
proposed, a project location map plotted on a copy of a USGS 7.5' topographic
quad map, and the expected dates of the field work. DAP is responsible for
responding in writing within 30 days of receipt of each review request. If
PLD does not hear from DAP within that period of time, PLD may proceed with
the proposed development project in question, without further notice to DAP.
Only in an emergency situation can a notification be made by phone, with a
written notification to follow.]
[(iv)
The annual permit authorizes construction monitoring,
surface reconnaissance, and intensive cultural resource surveys of certain
areas and projects. If proposed areas of intensive surveys are to be performed
by only one qualified RS, those surveys should not exceed 200 acres. Intensive
surveys larger than 200 acres will require project-specific permits. Advanced
archeological investigations, such as archeological testing or mitigative
archeological excavations, are not covered under the annual permit, and any
such investigations deemed necessary by DAP or TPWD will require project-specific
permits regardless of whether a qualified RS performs the investigations or
they are contracted out with other professional archeologists. Reconnaissance
level surveys may exceed 200 acres but such investigations may not be used
in place of intensive surveys, thus no construction clearance can be issued
relative to this level of investigation.]
[(v)
All survey level investigations must meet or exceed common
archeological standards as described in §26.20 of this title (relating
to Archeological Permit Categories) and the Council of Texas Archeologist's
Guidelines. Limited mechanical (backhoe, etc.) methods can be employed to
determine if buried cultural deposits exist and to gain geoarcheological (geomorphological)
data.]
[(vi)
Routed through the CRA, RSs will send a concise interim
report to DAP notifying it of the findings of the investigations if construction
clearance is desired. The interim report will contain information on the basic
scope of work, findings, conclusion, a project map (showing the investigation
area and any cultural site locations recorded), copies of State Site Survey
forms, a project development clearance request (when appropriate), and any
recommendation for further work. When appropriate, DAP will grant clearance
when report findings have been submitted and approved.]
[(vii)
DAP is responsible for responding in writing to the
interim report within 30 days of receipt of each report. If PLD does not hear
from DAP within that period of time, it may proceed with the proposed development
project in question, without further notice to DAP.]
[(viii)
If a qualified RS identifies no cultural sites located
in a proposed construction area or anticipates no damage to cultural properties,
TPWD may proceed with planned improvements once cleared by DAP. When the RS
or contract archeologist identifies cultural materials that should receive
some measure of protection, warrant further investigation, or are considered
eligible for official State Archeological Landmark designation, and adverse
impacts to the site can be avoided during construction, he/she will clearly
mark the site so that development will not impact it. If vegetation clearing
is necessary on the cultural site, it will be done by hand or in a fashion
that inflicts no damage to the cultural site. Any on-site decisions made by
an RS, regarding protective measures for a cultural site, will be respected
by TPWD employees and contractors. Decisions will be based upon the need to
conserve cultural sites and proceed with construction in a timely manner.]
[(ix)
If the RS, CRA, or DAP believe that further investigations
are necessary prior to or during a development project, those arrangements
must be agreed upon and investigations performed before any further site development
may proceed.]
[(x)
By February 1 of each year, RSs are responsible for providing
the CRA with a draft annual report for their region, which constitutes a concise
summary of their investigations during the previous year, with supporting
documents. In case of an RS's vacancy, the regional director for that region
will be responsible for submitting a draft annual report and supporting documents
to the CRA.]
[(xi)
The draft annual report of the past year's investigations
will be compiled and edited by the CRA, who will submit the report to DAP
by April 1 of the following year. Each project investigation report within
the annual report will be concise and informative, and include the same levels
of data required under §26.24 of this title (relating to Reports Relating
to Archeological Permits).]
[(xii)
Copies of State Site Survey forms, field notes, maps,
sketches, and daily logs will be submitted to DAP along with the draft annual
report. Where duplicates are impractical, originals may be submitted.]
[(xiii)
Once the draft annual report is approved by DAP, TPWD
will submit 20 copies of the final annual report to DAP no later than 90 days
after TPWD has received DAP's approval of the draft annual report. The final
annual report should be in a format that conforms to Section 26.24(a) of this
title (relating to Reports Relating to Archeological Permits).]
[(xiv)
While this MOU is primarily concerned with the proper
administration of archeological resources, it is understood that TPWD expects
its RSs to help manage the historic architectural resources on TPWD properties.
Because of this, each RS should notify the CRA and the Architecture, Engineering,
and Landscape Architecture Branch of TPWD of proposed or potential impacts
to historic structures. TPWD is then responsible for notifying the Division
of Architecture of the Texas Historical Commission. RSs will not be responsible
for reporting architectural projects within their annual report]
[(xv)
All other conditions listed in the permit form remain
unaltered by these additional guidelines]
[(D)
Wildlife Division's Responsibilities.]
[(i)
The Wildlife Division (WD) and its employees must comply
with the conditions and exceptions in subparagraph (B) of this paragraph.]
[(ii)
As defined within subparagraph (B) of this paragraph,
WD is responsible for all notifications related to applicable development
projects and all requests for reviews should be received by DAP from the administrative
office of WD in Austin 30 days prior to the proposed start of any such proposed
development project. If an emergency situation exists, the notification may
be made by phone, with a written notification to follow. DAP is responsible
for responding in writing within 30 days of receipt of each review request.
If WD does not hear from DAP within that period of time, it may proceed with
the particular proposed development project in question without further notice
to DAP.]
[(iii)
All project reviews or clearance requests from Wildlife
Management Area (WMA) staff, or Regional Offices of the WD, should direct
their requests through the Administrative Office of WD in Austin and not directly
to DAP. If an emergency situation exists, the notification may be made directly
to DAP by phone, with a written notification to follow.]
[(iv)
If an area cannot be avoided and DAP determines or concurs
that an archeological survey or other investigation is needed related to a
proposed development project, WD must have those investigations done by a
qualified professional archeologist as defined in §26.5 of this title
(relating to Definitions), under a project specific Antiquities Permit. If
an RS performs investigations for WD, those findings are to be reported in
the Public Lands annual report. If at such time in the future WD hires its
own staff archeologist, he or she could perform investigations under an annual
permit.]
[(v)
All archeological investigations performed within WMA's
must meet or exceed common archeological standards as described in §26.20
of this title (relating to Archeological Permit Categories), and the Council
of Texas Archeologist's Guidelines. Limited mechanical (backhoe, etc.) methods
can be employed during a survey level investigation to determine if buried
cultural deposits exist, and to gain geoarcheological (geomorphological) data.]
[(vi)
All clearance requests and/or report productions standards
related to WD project specific permit investigations will follow normal permit
procedures as defined in §26.24 of this title (relating to Reports Relating
to Archeological Permits).]
§26.16.Memoranda of Understanding with the 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 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.
(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)
General Provisions.
(A)
TPWD shall:
(i)
notify the Texas Historical Commission (THC) of pending
construction and maintenance projects in accordance with all applicable provisions
of this section;
(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
(iii)
notify THC when cultural resources are discovered on
TPWD lands.
(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.
(C)
This MOU may be revised and amended upon the agreement
of TPWD and THC.
(2)
Scope of TPWD Annual Antiquities Permit Archeological Investigations.
(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.
(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.
(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.
(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).
(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).
(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)
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 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;
(ii)
impacts a total or cumulative surface area greater than
10 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;
(iv)
is grading or maintenance of a road when the road and/or
its ditches will be lengthened or widened;
(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
(vi)
is any type of project not described in Section 26.16(c)(3)(B).
(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 surface area of one acre
or less;
(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;
(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;
(iv)
is grading or other maintenance of a road when the road
and/or its ditches will not be lengthened or widened; 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. 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.
(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)
Procedures for Proposed Projects.
(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:
(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)
the project location plotted on a copy of a USGS 7.5'
topographic quadrangle map, showing 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 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 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 Archeological Landmark designation under Section 26.8
of this title (concerning 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.
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 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.
(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)
THC Review of Reports on Archeological Investigations.
(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:
(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)
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;
(iv)
a summary of the scope, findings, and conclusions of the
archeological investigations;
(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);
(vi)
a project approval request or recommendations for further
work, as appropriate.
(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.
(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.
(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.
(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.
§26.17.Issuance and Restrictions of Archeological Permits.
(a)
Review by controlling entities. It is the responsibility
of the permit applicant to obtain all necessary permissions and signatures
prior to submitting an archeological permit application.
(b)
Special regulations. When a permit is issued, it will contain
all special regulations governing that particular investigation; it must be
signed by the director of the Archeology Division of the Texas Historical
Commission, or his or her designated representative.
(c)
Permit period. No permit will be issued for less than one
year, nor more than ten years, but may be issued for any length of time as
deemed necessary by the commission in consultation with the principal investigator,
sponsor, and permittee.
(d)
Transferal of permits. No permit issued by the commission
will be assigned by the permittee in whole or in part to any other institution,
museum, corporation, organization, or individual without the consent of the
commission.
(e)
State site survey forms. Standard state site survey forms
and/or TexSite electronic forms for all sites recorded as a result of activities
undertaken through an Antiquities Permit will be completed and submitted to
the Texas Archeological Research Laboratory at the University of Texas in
Austin, upon the completion of field work.
(f)
Permit expiration. The expiration date is specified in
each permit and is the date by which all terms and conditions must be completed
for that permit. It is the responsibility of the permittee(s), sponsors, investigative
firms, and principal investigators prior to the expiration date listed on
the permit to meet any and all permit submission terms and conditions.
(1)
Expiration notification. Principal investigators will be
notified 60 days in advance of permit expiration.
(2)
Expiration extension. Principal investigators must complete
and submit a Permit Extension Form to the commission if they desire an extension
of the final due date for the completion of an Antiquities Permit that was
issued to them. The Archeology Division (AD) of the commission will review
the submitted Permit Extension Form, determine whether an extension is warranted
and extended the permit completion due date once for no less than one year
and no more than ten years as deemed appropriate. In addition, and upon review
and recommendations by the Antiquities Advisory Board, the commission may
by a majority vote of its members, approve or disapprove an additional extension
of the final due date of an Antiquities Permit, beyond the single extension
that the AD staff of the commission is authorized to issue under Section 26.17(f)(2)
of this title, provided that the following conditions are met:
(A)
the principal investigator (PI), and/or the investigative
firm listed under an Antiquities Permit must provide written documentation
to, and give an oral presentations before, the Antiquities Advisory Board
justifying why an additional permit due-date extension is warranted;
(B)
the justification for the additional extension must show
that the additional extension is needed due to circumstances beyond the control
of the PI. Examples include, but are not limited to: funding problems, death
of the PI, and artifact curation problems.
(g)
Expiration responsibilities. Investigative firms must insure
that a principal investigator is assigned to a permit at all times, regardless
of whether the permit is active or has expired. Both the principal investigator
and investigative firm should insure that a new principal investigator is
assigned to the permit, if for any reason the original principal investigator
must leave the project. The assignment of a new principal investigator must
be approved by the commission and agreed to by both the original and the new
(proposed) principal investigator.
(h)
Permit amendments. Proposed changes in the terms and conditions
of the permit must be approved by the commission.
(i)
Permit cancellation. The commission may cancel an Antiquities
Permit as long as one or more of the following conditions are met:
(1)
the death of the principal investigator;
(2)
failure of the project sponsor to fully fund investigation;
(3)
cancellation of the project by the sponsor or permittee
prior to the completion of the archeological field investigations;
(4)
violation of Section 26.3 of this title (relating to Compliance
with Rules) and/or;
(5)
destruction of the permit area or associated cultural resources
due to natural causes, prior to the substantive completion of the field investigations
being performed under the permit.
(j)
Permit censuring. The commission may censure a principal
investigator and/or investigative firm if it is found that two or more permit
application offenses have occurred in one calendar year. Permit application
offenses result when investigations are performed without first obtaining
a permit from the commission. Permit censuring will render a principal investigator
and investigative firm ineligible for issuance of another permit for six months
after a finding by the board that two or more permit application offenses
have occurred in one calendar year.
§26.18.Issuance and Restrictions of Historic Structure Permits.
(a)
Review by controlling entities. It is the responsibility
of the permit applicant to obtain all necessary permissions and signatures
prior to submitting a permit application for work on historic buildings, structures
and their sites.
(b)
Special regulations. When a permit is issued, it will contain
all special regulations governing the project work; it must be signed by the
either the Texas Historical Commission's executive director, the director
of the Division of Architecture, or their designated representative.
(c)
Permit period. No permit will be issued for less than one
year, nor more than ten years, but may be issued for any length of time as
deemed necessary by the commission in consultation with the project architect
and permit applicant.
(d)
Transferal of permits. No permit issued by the commission
will be assigned by the applicant in whole or in part to any other institution,
museum, corporation, organization, or individual without the consent of the
commission.
(e)
Permit expiration. The expiration date is specified in
each permit and is the date by which all project work must be complete, including
submission of the required completion report and fulfillment of all terms
and conditions of the permit. It is the responsibility of the permit applicant,
project architect and professional firm to meet any and all permit terms and
conditions prior to the expiration date listed on the permit.
(1)
Expiration notification. The project architect will be
notified 60 days in advance of permit expiration.
(2)
Expiration extension. The project architect must provide
a written request to the commission if an extension of the final due date
for completion of the Antiquities Permit is desired. The request must detail
the reason(s) an extension is necessary and state when completion of the Antiquities
Permit requirements is expected. The Division of Architecture (DoA) of the
commission will review the extension request to determine whether an extension
is warranted and extend the permit completion due date once for no less than
one year and no more than ten years as deemed appropriate. If a second extension
is subsequently requested, the Antiquities Advisory Board will review the
request and make a recommendation to the commission regarding further extension.
The commission may, by a majority vote of its members, approve or disapprove
a second extension of the final due date of an Antiquities Permit, beyond
the single extension that the DoA staff of the commission is authorized to
issue under Section 26.18(e)(2) of this title, provided that the following
conditions are met:
(A)
the project architect and/or the professional firm listed
under the Antiquities Permit must provide written documentation to the Antiquities
Advisory Board and give an oral presentation justifying why an additional
permit due-date extension is warranted;
(B)
justification for the additional extension must show that
the additional extension is needed due to circumstances beyond the control
of the project architect or professional firm. Examples include, but are not
limited to: funding problems or death of the project architect.
(f)
Expiration responsibilities. Professional firms must insure
that a project architect is assigned to a permit at all times, until all obligations
under the permit have been fulfilled, regardless of whether the permit is
active or has expired. Both the project architect and professional firm should
insure that a new project architect is assigned to the permit, if for any
reason the original project architect must leave the project. The assignment
of a new project architect must be approved by the commission and agreed to
by both the original and the new (proposed) project architect.
(g)
Permit amendments. Proposed changes in the terms and conditions
of the permit must be approved by the commission. This includes changes in
the permitted project plans and specifications that could affect the integrity
of the structure, building or site.
(h)
Permit cancellation. The commission may cancel an Antiquities
Permit as long as one or more of the following conditions are met:
(1)
the death of the project architect;
(2)
failure of the permit applicant to fully fund the permitted
project work;
(3)
project work undertaken does not comply with the terms,
conditions and approved project documents under the permit; and/or
(4)
violation of Section 26.3 of this title (relating to Compliance
with Rules).
§26.19. Permit Monitoring.
Any member or agent of the commission and any officer in charge of
land owned or controlled by the State of Texas may, at any time, visit the
cultural resource undergoing permitted project work, or area or site being
investigated under permit. Such a representative of the state may examine
the permit as well as the ongoing areas of work, the field records, materials,
and specimens being recovered.
§26.20.Archeological Permit Categories.
Several categories of permits oriented toward specific types of investigation
are issued by the commission.
(1)
Reconnaissance survey. This permit category is for the
purpose of location, inventory, and assessment of cultural resources of a
specific area by conducting archival searches and by searching for sites.
Reconnaissance is limited to recording site locations, mapping, photographing,
controlled surface sampling, and possible limited shovel testing. A reconnaissance
survey does not take the place of an intensive survey, but a reconnaissance
survey can be used to determine whether an intensive survey will be warranted.
Specific requirements may be required by the commission as part of the permit.
(2)
Intensive survey. This permit category is for the purpose
of an intensive 100% pedestrian survey of a project or permit area. Components
of an intensive survey may include, but are not limited to, archival research,
pedestrian survey, shovel and/or mechanical subsurface probing, surface artifact
inventories, site recordation, and site assessment. Such a survey can be performed
in many ways but must, at a minimum, conform to the Archeological Survey Standards
for Texas, which are available through the commission and the Council of Texas
Archeologists. Construction clearance may be granted relative to this level
of investigation and specific requirements may be required by the commission
as part of the permit.
(3)
Testing. This permit category is for the purpose of detailed
subsurface examination of cultural resources including systematic test excavations
of a particular site or area. Testing must be oriented toward sampling a representative
portion of a particular site or sites in all environmental contexts and may
be conducted to determine if a landmark contains significant materials. Construction
clearance may be granted relative to this level of investigation. Specific
requirements may be required by the commission as part of the permit.
(4)
Monitoring. Unless otherwise specifically authorized by
the commission, this permit category is for the purpose of having a professional
archeologist on-site to observe construction activities that may or will damage
cultural resources and for them to report findings and impacts to sites to
the commission. Monitoring may be conducted during or after other phases of
archeological investigation and may not involve the need for a separate permit.
However, if monitoring is the only investigation deemed necessary relative
to a construction activity, then a monitoring permit will be required. If
previously unrecorded and significant archeological deposits are recorded
during a monitoring investigation, then construction activities in the immediate
area of the find must stop and the principal investigator shall notify the
Archeology Division within 24 hours. Specific requirements of monitoring may
be required by the commission as part of the permit.
(5)
Data recovery. This permit category is for the purpose
of full investigation and extensive excavation of particular archeological
site or sites. Data recovery must be based on a research design approved by
the commission. Construction clearance may be granted relative to this level
of investigation. Specific requirements may be required by the commission
in the permit.
(6)
Alternative mitigation. When mitigation of an archeological
site by data recovery is not appropriate, a permit may be issued for an alternative
form of mitigation, as approved by the commission. Alternative forms of mitigation
may include, but not be limited to: monitoring of a proposed construction
project to record and report the discovery of unanticipated important archeological
deposits; conducting archival and historical research to document the significance
of the site; capping or burying in place important archeological deposits
if deemed appropriate by the commission; and protecting significant remaining
portions of a site by donation of the undisturbed area to a nonprofit organization,
state agency, or a political subdivision of the state. A permit issued for
a mitigation alternative may require additional conditions including studies,
investigations, or other actions as deemed necessary by the commission, and
will be specified in the terms and conditions of the permit.
(7)
Preservation of rock art. This permit category is for the
purposes of preserving, removing, recording, and copying all manner of rock
art. Preservation techniques which involve application of brushes, heat, chemicals,
water, chalk, petroleum products, or other preparations to the rock surfaces
are prohibited unless specifically authorized by the commission. Specific
requirements may be included by the commission as part of the permit.
(8)
Underwater survey. Underwater resources include shipwrecks
and drowned prehistoric and historic sites. Surveys for these cultural resources
are conducted with electronic instrumentation including the proton magnetometer,
side scan and subbottom sonar, and positioning systems. In some instances
divers using scuba gear are used to search for and examine a specific site
or structure. Work is conducted under the direct supervision of an underwater
archeologist or under a survey technician reporting to an underwater archeologist
who is responsible for the quality of the work. Data acquired are to be rendered
to the commission along with an analysis and report. Specific requirements
may be required by the commission as part of the permit.
(9)
Underwater test excavations. Significant magnetic and/or
acoustic anomalies discovered during survey must be tested by excavation under
the direct supervision of an underwater archeologist in order to determine
the cause of the anomalies. Inspection by divers, coring, or other appropriate
means must be used to test the nature of suspected prehistoric or historic
sites. In the case of magnetic anomalies, sediment must in many cases be removed
to allow identification, approximate dating, and determination of importance
of objects and sites found. Any artifacts recovered from state lands are property
of the State of Texas. Extensive recovery during testing is discouraged. Accepted
standards for provenience control and archeological data recovery must be
maintained. Data must be analyzed and rendered to the commission in a written
report. Proper conservation of any artifacts recovered must be carried out.
Specific requirements may be required by the commission as part of the permit.
(10)
Underwater excavations. In order to fulfill justified
research objectives, or if damage to significant historic and prehistoric
sites cannot be avoided, a full-scale underwater archeological excavation
must be carried out under the direct supervision of an underwater archeologist.
The intensive investigation and excavation this calls for must include documentary
research and, for shipwrecks, detailed magnetometer work. Excavations must
be supported by adequate equipment and supplies to insure proper recording,
preservation, and the recovery of the maximum amount of data. Thorough analysis
and a complete report are required. Proper antiquities conservation is required
for all artifacts, and all specimens recovered are state property. Specific
requirements may be included by the commission as part of the permit.
(11)
Destruction. Under exceptional circumstances, when all
preservation alternatives have been exhausted and the public welfare clearly
requires destruction of a State Archeological Landmark, the commission may
issue a destruction permit after thorough mitigation has been accomplished.
Following any permitted archeological investigation, a clearance letter may
be issued by the commission that authorizes destruction of all or part of
a cultural resource without issuing an Antiquities Permit for destruction.
(12)
Annual permit. A public agency, or institution, may be
granted an Annual Permit, allowing for survey, recording, study, protection,
stabilization, or conservation projects that cover a number of similar investigations
at different locations. The annual permit will be issued for a specific period
of time and can be developed by the public agency or institution, and the
commission either under the auspices of a Memorandum of Understanding (MOU)
or by means of a letter agreement. Annual Permits can also be used to govern
the survey, recording, study, protection, stabilization, and conservation
projects related to designated State Archeological Landmarks, or eligible
landmarks. The Annual Permit will adhere to, but not be limited to, the commission's
rules and regulations. The standards described in an Annual Permit will be
administered by a qualified archeologist on the staff of, or contracted by,
that public agency or institution. The commission will be informed through
an annual report of all projects completed under the guidance of the Annual
Permit with details adequate to confirm compliance.
(13)
Emergency permit. A permit that may be authorized by the
commission for the purposes of performing investigations prior to formal application
for a permit. Any of the above-referenced 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 the formal issuance of the permit. Legitimate emergency
conditions include those situations 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.
§26.21.Application for Archeological Permits.
(a)
Justification for investigation. Investigations undertaken
on publicly owned cultural resources or to locate or discover such resources
must be oriented toward solving a particular research problem, preparation
of a site for public interpretation, or for the purpose of salvaging information
and specimens from a site threatened with immediate destruction.
(b)
Eligibility for application. Permits to conduct investigations
of any nature on State Archeological Landmarks or for the discovery of potential
landmarks, or on lands owned or controlled by agencies or political subdivisions
of the state will be issued exclusively by the commission under the conditions
provided in the Antiquities Code and in these rules and regulations.
(1)
Permits may be issued by the commission to scientific and
educational institutions, nonprofit corporations and organizations, investigative
firms, and governmental agencies which have demonstrated their ability to
carry out proper archeological investigations through their own staffs, including
one or more professional archeologists who can serve as principal investigators,
and who will supervise the project, or through a contract with a professional
archeologist who can serve as a principal investigator. Permits may also be
issued to individuals and private corporations who:
(A)
retain a professional archeologist who can serve as a principal
investigator for the investigations, and can be in direct charge of the project
from field investigation through preservation of collections and analysis
of data to reporting of results; and
(B)
if required by the commission or the terms or conditions
of a Memorandum of Understanding, provide proof that adequate funds, equipment,
facilities, and personnel are available to properly conduct the investigation
as proposed to the commission, and to report the results. The commission may
require a performance bond to be posted as part of the application process.
(2)
State or local archeological societies and archeological
stewards wishing to conduct investigations on State Archeological Landmarks
must have a principal investigator and be limited to non-compliance, investigation
activities.
(3)
Principal investigators holding one or more defaulted permits
are not eligible for additional permits until all terms and conditions of
defaulted permits are met.
(4)
Principal investigators and investigative firms that are
currently censured due to permit application offenses are not eligible to
be issued a permit. Once the censure period has lapsed the censured principal
investigator or investigative firm will be eligible to be issued a permit.
(5)
No permits will be issued if the principal investigator
and/or investigative firm cannot commit to on-site performance of, or on-site
direction of the permitted investigations by the principal investigator.
(c)
Application for permit. Permit application forms may be
obtained from the commission, through a direct mail request or on-line at
www.thc.state.tx.us. Any institution, corporation, organization, museum, investigative
firm, or individual desiring a permit for investigations must file a completed
application with the commission prior to the proposed beginning date of the
project. Special circumstances may require that a permit be issued on short
notice when a site is threatened with immediate destruction. When a permit
is issued for emergency salvage of a site threatened with destruction, the
same rules and regulations apply as with all permits. The permit application
should include:
(1)
a statement of the purpose of the investigation;
(2)
an outline of the proposed work and research design;
(3)
the proposed beginning date for the fieldwork and the length
of time, which will be devoted to the entire project;
(4)
name, address, and telephone number of the principal investigator,
sponsor, and landowning or controlling agency;
(5)
an accurate plotting of the particular site or area to
be investigated on a 7.5' USGS quadrangle map and locational data indicating
the universal transverse mercator (UTM) coordinates;
(6)
the name of the facility where the specimens, material,
and data will be kept during analysis of results of the investigation; and
(7)
evidence of adequate funds, personnel, equipment, and facilities
to properly complete the proposed investigation.
(d)
Research design. Research designs prepared prior to implementation
of a field study and submitted with an Archeological Permit Application Form
are essential to the success of scientific objectives, resource management
decision-making, and project management. The following points should be considered
during formulation of a research design.
(1)
Research designs present the essential objectives of a
project or study and the means by which those objectives will be attained.
As such, the research design is an efficient means of communicating with resource
managers and the professional community at large.
(2)
The research design provides a logical basis for detailed
project planning and assessment of resource significance.
(3)
Research designs may contain a wide range of theoretical
and methodological approaches. Similarly, research designs may address general
research objectives, as well as more focused types of problem orientation.
The following criteria shall be met.
(A)
Care should be taken to link the research design to existing
topical and geographical bodies of data.
(B)
The nature of the resources under investigation should
be considered.
(C)
The need to address a wide range of cultural and scientific
resources should be considered.
(D)
Applied research that addresses cultural resource management
and impact-related issues should be recognized as necessary and incorporated
into research designs whenever possible.
(E)
The skills of the investigative personnel must be appropriate
to the project goals and specifications in the research design. In many cases
it may be desirable to include provisions for consultants with special expertise.
(4)
Research designs should not be conceived as rigid, unchanging
plans. Although research designs may place relatively greater emphasis on
certain kinds of scientific questions and certain kinds of data collection,
as circumstances warrant, the investigator is not relieved of responsibility
to recognize other research. Whether such alternative questions and data warrant
changes in the ongoing investigation is a question that should be explicitly
addressed and answered in the context of pertinent resource management objectives
and research goals. It is expected that research designs will be modified
as projects develop. A conscious effort should be made to modify research
designs to exploit new information efficiently. It is to be expected that
some research objectives will, for many reasons, prove less productive than
anticipated, while other objectives will become more important than anticipated
or perhaps materialize for the first time. The crucial objectives in the modification
process are:
(A)
demonstrated progress in solving stated problems; and
(B)
subsequent modification of a research design on the basis
of explicit, rational decisions intended to attain stated goals.
§26.22.Application for Historic Structure Permits.
(a)
Permit application procedure.
(1)
Applicant qualification. Only the controlling agency, organization,
or political subdivision having administrative control over a publicly owned
landmark or the owner of a privately owned landmark (applicant) may be issued
an architectural permit.
(2)
Notification. The commission must be notified of any anticipated,
planned or proposed work to a State Archeological Landmark, including publicly
owned buildings or structures that are eligible to be designated as landmarks.
Such notice should be made early enough to allow adequate time to prepare
the formal application as described in paragraph (6) of this subsection. The
notification must include a brief written description of the project and at
least one photograph of the structure or affected portion of that structure.
The commission staff will provide the applicant with the appropriate permit
application form and notify him or her of the necessary attachments or application
reports within 30 days of receipt of notification.
(3)
Normal maintenance or repair. Work that does not have the
potential to cause removal, damage or alteration to the integrity, form or
appearance of the materials, features or landform of the historic structure
and its site, is considered to be normal maintenance and repair, and therefore
exempt from the required notification process. For example, permanent masonry
damage can result from use of inappropriate cleaning methods, such as sandblasting,
high pressure water cleaning or the use of unsuitable chemicals, or from use
of damaging repointing techniques and materials. Replacing historic windows
damages the historical integrity of a building and painting previously unpainted
surfaces constitutes alteration. Such work is not considered normal maintenance
or repair. Cleaning surfaces with non-corrosive mild solutions and low-pressure
water, repainting window frames or doorways with similar paints, or minor
repairs such as replacing putty on windows are examples of normal maintenance
and repair.
(4)
Interior spaces. Nonpublic interior spaces are exempt from
the authority of the Antiquities Code. The interior spaces to be considered
public and therefore not exempt are those spaces, which are or were accessible
to the public (lobbies, corridors, rotundas, meeting halls, courtrooms, offices
of public officials, public employees and services, etc.), or those that are
important to the public because of any significant historical, architectural,
cultural, or ceremonial value.
(5)
Advance review. For more complex projects, it is advisable
that the commission staff be consulted early in the planning or design process
in order to avoid delays in issuing the final permit.
(6)
Formal application. The project professional personnel
must be a project architect who has the required experience on historic structures
in the type of project work proposed, has submitted a resume and completed
application form along with any required attachments or application reports
at least 60 days prior to commencement of work or issuance of bid documents,
whichever comes first. All applications must be submitted with original signatures
on forms approved by and available from the commission (print copies available
from the commission by mail or online at www.thc.state.tx.us).
(7)
Emergency application. If emergency preservation or hazard
abatement work must be performed quickly in a crisis situation or due to extenuating
circumstances, the minimum 60 day submission requirement may be waived with
approval from the commission staff if all required project documents and a
valid permit application have been received.
(8)
Attachments. All permit applications must be accompanied
by plans, specifications, and other documents prepared for the project that
adequately describe the full scope of work. In addition, 4 by 6 inch color
photographs of the overall structure and all areas of proposed work are required.
(9)
Application reports. See Section 26.25(a) of this title
(relating to Reports Relating to Historic Structures Permits) for a discussion
of each type of report. In the case of more complex projects, one or more
of the following reports may be required to be submitted with the permit application:
(A)
historic structure report;
(B)
historical documentation;
(C)
architectural documentation; and/or
(D)
archeological documentation.
(10)
Project reports. Depending upon the scope of work, one
or more of the following reports may be required as a condition of a permit
to be prepared during the course of a project and to be submitted upon completion
of that project prior to expiration of the permit. All historic structures
permits, except for new structures permits, require a completion report. Any
other required reports will be specified when the permit is issued. See Section
26.25(b) of this title (relating to Reports Relating to Historic Structures
Permits) for a discussion of each type of report:
(A)
architectural documentation;
(B)
archeological and historical documentation;
(C)
curation report; and/or
(D)
completion report.
(11)
Issuance of permit. Contract documents must not be issued
for bidding purposes before a permit has been issued by the commission. If
no response has been made by the commission within 60 days of receipt of any
permit application, the permit shall be considered to be granted.
(b)
Permit categories for historic structures. All work done
on historic structures and their sites will be reviewed, and issued permits
when appropriate, in accordance with one or more of the following treatments.
These treatments are based on the Secretary of the Interior's Standards for
the Treatment of Historic Properties, which are available in printed form
by mail or online from the commission at www.thc.state.tx.us.
(1)
Preservation is defined as the act or process of applying
measures necessary to sustain the existing form, integrity, and materials
of a cultural resource, including preliminary measures to protect and stabilize
the building, structure or site.
(2)
Rehabilitation is defined as the act or process of making
possible a compatible use for a property through repair or alteration while
preserving those portions or features of the property which are significant
to its historical, architectural, and cultural values.
(3)
Restoration is defined as the act or process of accurately
depicting the form, features, and character of a property and its setting
as it appeared at a particular period of time by means of the removal of features
from later periods in its history and reconstruction of missing features from
the restoration period.
(4)
Reconstruction is defined as the act or process of depicting,
by means of new construction, the exact form, features, and detailing of a
non-surviving site, landscape, building, structure, or object for the purpose
of replicating its appearance at a specific period of time and in its historic
location. Reconstruction of a non-surviving cultural resource, or any part
thereof within the described limits of a designated State Archeological Landmark,
will be reviewed and permitted in light of its impact on the historical, architectural,
or and cultural integrity of that site.
(5)
Architectural Investigation/Hazard Abatement. If the applicant
can demonstrate that careful investigation of a structure through controlled
dismantling, or sampling and testing of historic material or later modifications
will contribute to the understanding of that structure's history, or of the
history and culture of Texas in general, a permit for architectural investigation
may be issued. If hazardous materials exist in a historic structure, and must
be abated or removed in a project unrelated to other preservation, restoration
or rehabilitation work, then a permit for hazard abatement may be issued.
These types of permits do not indicate approval for rehabilitation, demolition
or any other type of work, but may require replacement of removed materials
or curation of selected samples.
(6)
Relocation. Under most circumstances, a permit to relocate
a structure from its original site will not be issued unless the commission
has been satisfied that there is a real and unavoidable threat to the structure's
existence, and that the applicant has made a thorough effort to find the means
to preserve the structure on its original site. If relocation is unavoidable,
the structure should be relocated to a site that resembles its original setting
as closely as possible. A relocation permit will require thorough documentation
of the relationship between the structure and its existing site, and documentation
of the proposed new site and placement of the structure to demonstrate that
the new site and setting are comparable to the original. An archeological
investigation of both the old and new site locations may also be required.
(7)
Demolition. Under most circumstances, a permit to demolish
a structure will not be issued unless the commission is satisfied that there
is a necessity due to deterioration of the structure that constitutes a threat
to the health, safety, or welfare of citizens, or a real and unavoidable threat
to the structure's existence. The applicant must show that he or she has made
a thorough effort to find the means to preserve the structure on its original
site or, failing that, to relocate the structure to another site with a comparable
setting. The applicant must show evidence that he or she has, in good faith,
conducted a feasibility study and obtained estimates from appropriate professionals,
invited and considered alternative suggestions and proposals, and otherwise
explored all reasonable possibilities. A demolition permit will require thorough
documentation of the structure and its relationship to its existing site,
as well as archeological investigation, as defined and required by the commission.
(8)
New construction. Any new construction to be built within
the described limits of a State Archeological Landmark must be reviewed and
permitted in light of its impact on the historical, architectural, and cultural
integrity of that cultural resource and its site. The applicant must submit
plans, elevations, and sections that adequately describe the full scope of
the project and its relationship to the existing structure and site.
(c)
Standards for the treatment of historic properties. The
Secretary of the Interior's Standards for the Treatment of Historic Properties
(1995, and subsequent revisions) are hereby adopted by reference by the commission
and shall be considered to be a part of these rules for practice and procedure.
Copies of these standards are available in printed form from the commission
and online at www.thc.state.tx.us. Failure to comply with these standards,
failure to complete any required reports, or failure to complete a project
according to the approved plans, specifications, addenda, or other terms of
a permit shall be considered grounds for refusing the services of any architect,
contractor, or craftsman for future permits.
§26.24.Reports Relating to Archeological Permits.
(a)
A report should meet the Council of Texas Archeologists
(CTA) Guidelines for Cultural Resources Management Full Reports, available
from the commission or from the Council of Texas Archeologists.
(1)
The report must also contain:
(A)
a title page that includes: the name of the investigation
project, the name of the principal investigator and investigative firm, and
the Antiquities Permit number;
(B)
an abstract containing descriptions of the findings, a
list of the sites recorded and a clarification concerning which artifacts
were curated and where they are or will be curated;
(C)
specific recommendations of which sites merit official
designation to State Archeological Landmark status; which sites appear to
be eligible for inclusion in the National Register of Historic Places; and
which sites will be adversely affected by a proposed project.
(2)
Two copies of the draft permit report must be submitted
to the commission for review prior to the production of the final report.
The draft report does not have to be bound, but should contain all of the
basic content elements required for the final report. The final report must
also contain any revisions in the draft that are required in writing by the
commission.
(3)
Upon completion of a permitted project, and at no charge
to the commission, the permittee, sponsor, or principal investigator shall
furnish the commission with 20 copies of the final report, a completed Abstracts
in Texas Contract Archeology Summary Form, and when appropriate, a Curation
Form (print copies available from the commission or also online at www.thc.state.tx.us).
(b)
When Antiquities Permit investigations result in negative
findings, the report standards shall meet the CTA Guidelines for Cultural
Resources Management Short Reports. The principal investigator, investigative
firm, state agency, and/or the political subdivision shall furnish the commission
with 20 copies of the Short Report at no charge to the commission along with
a completed Abstracts in Texas Contract Archeology Summary Form (print copies
available from the commission or also online at www.thc.state.tx.us).
§26.25.Reports Relating to Historic Structure Permits.
(a)
Application reports. It is important in the case of complex
projects to ensure the historical accuracy and/or appropriateness of the project
by gathering and assessing important information relating to the property
through investigation, research, and documentation. When the scope of a project
indicates it is advisable, one or more of the following application reports
may be required to be submitted as a part of the permit application. A permit
may not be issued before all required application reports have been received.
All application reports must be prepared under the supervision of professionally
qualified individuals as specified in Section 26.5 of this title (relating
to Definitions).
(1)
Historic structure report.
(A)
Purpose. This report should be utilized to evaluate the
existing conditions of the structure, to establish preservation objectives
for the property, and to schedule the accomplishment of these preservation
objectives. The applicability of the various areas for research and analysis
will vary, depending upon the preservation objectives and the physical condition
of the historic property.
(B)
When required. When a proposed rehabilitation, restoration,
or reconstruction project involves fabricating significant missing architectural
or landscape features, recapturing the appearance of a property at one particular
period of its history, removing later additions or significant changes to
the building for rehabilitation, a historic structure report must be completed
prior to application for a historic structure Antiquities Permit.
(C)
Minimum report requirements. Documentation must include
the following:
(i)
written explanation and evaluation of existing conditions;
(ii)
photographic documentation of the existing conditions
(preferably black and white 8 by 10-inch photographs);
(iii)
written explanation of preservation objectives and intended
modifications to the structure; and
(iv)
architectural drawings of the existing condition and a
schedule of objectives.
(2)
Historical documentation.
(A)
Purpose. Historical research and documentation are required
in order to understand the changes to a historic property over time and to
better support proposed project work. Documentation of cultural resources
that will be lost or damaged due to rehabilitation, relocation or demolition
will preserve a record of the cultural resource.
(B)
When required. When a proposed rehabilitation, restoration,
or reconstruction project involves fabricating significant missing architectural
or landscape features, or removing later additions to recapture the appearance
of a property at one particular period of its history, historical documentation
must be done. Historical documentation is required for all relocation or demolition
permits.
(C)
Minimum report requirements. Historical documentation must
include the following:
(i)
name of original architect and date of construction;
(ii)
history of the use of and known modifications to the structure;
(iii)
brief history including information on important historical
events or persons associated with the structure; and
(iv)
copies of extant historic plans and photographs of the
building or structure and site, or documentation of the specific historic
features, areas or materials to be affected by proposed restoration or reconstruction
work; and
(v)
oral history documentation to support proposed restoration
or reconstruction work, or to document historic structures and buildings proposed
for relocation or demolition.
(3)
Architectural documentation.
(A)
Purpose. Investigation and documentation of physical evidence
regarding architectural design and technology enables the study of the structure
in question and its comparison with other structures of the period, type,
or region. This information is important to support decisions regarding proposed
project work, and in conjunction with historical and archeological documentation
for the synthesis and study of all related materials.
(B)
When required. Architectural documentation must precede
any work that will damage, alter, obscure or remove significant architectural
configurations, elements, details, or materials. Documentation that meets
the required standards must be submitted for rehabilitation and restoration
projects that will significantly alter a structure or other cultural resource,
and for all relocation and demolition permits.
(C)
Minimum report requirements. Architectural documentation
must include the following:
(i)
a thorough explanation of the reasons for the proposed
work, including the purposes and objectives of the proposed changes;
(ii)
photographs of the existing conditions of the overall
building or structure and site, including photographs of all areas where work
is proposed, with each view clearly labeled and keyed to a plan indicating
the location and direction of the view;
(iii)
measured drawings of the existing building or structure
and site. If the proposed damage, alteration, obscuring or removal of significant
materials, features or areas will be relatively small within the overall scope
of project work, then with the approval of the commission the measured drawing
documentation may be limited to the specific materials, features or areas
involved.
(D)
Documentation standard required. All documentation of existing
conditions must meet the Secretary of the Interior's Standards and Guidelines
for Architectural and Engineering Documentation (available online at www.thc.state.tx.us),
sometimes referred to as Historic American Buildings Survey (HABS) standards.
The commission will assign the level of documentation required (levels I-IV)
based on the project work proposed and the significance of the cultural resource.
(4)
Archeological documentation.
(A)
Purpose. Almost all standing structures have an archeological
component, and archeological remains exist in urban areas as well as rural
areas. The information available from archeological investigations in and
around a structure is important in conjunction with architectural and historical
documentation for the synthesis and study of all related material.
(B)
When required. When development or historic preservation
treatment of a historic property makes disturbance of the earth unavoidable,
the specific areas affected may need to be tested archeologically to determine
if the undertaking will disturb or destroy archeological remains, including
subsurface features of an aboveground structure. If the exploratory tests
indicate the area has archeological value and if the development plans cannot
be altered, the archeological data directly affected by the project are to
be recovered.
(b)
Project reports. When the situation indicates it is advisable,
one or more of the following project reports may be required to be compiled
during the course of a project and submitted along with the completion report.
All project reports must be compiled under the supervision of professionally
qualified individuals as specified in Section 26.5 of this title (relating
to Definitions).
(1)
Architectural documentation. When investigation and documentation
is not possible prior to commencement of work because of physical obstruction,
or when previously obscured conditions are subsequently discovered, architectural
documentation may be required during the course of a project (see paragraph
(3) of this subsection).
(2)
Archeological documentation. When investigation and documentation
are not possible prior to commencement of work because of physical obstruction,
or when previously obscured evidence is subsequently discovered, archeological
documentation may be required during the course of a project. Archeological
documentation may be required for relocation or demolition permits (see paragraph
(4) of this subsection).
(3)
Curation report.
(A)
Purpose. Materials or artifacts original to the structure
or otherwise significant to the structure's evolution are important to the
understanding of Texas culture and history.
(B)
When required. When materials or artifacts original to
the structure or otherwise significant to the structure's history are removed
during the course of a project, selected samples must be curated at the site
or at a site approved by the commission, and a curation report must be filed.
(C)
Minimum report requirements. Documentation must include
the following:
(i)
photo documentation of the structural or architectural
elements to be removed in their original position and in storage;
(ii)
written documentation of the existing condition of the
elements prior to removal; and
(iii)
written documentation of the storage (preservation) efforts,
including the method and location of storage and any conservation efforts
made.
(4)
Completion report.
(A)
Purpose. When work is done to a historic structure, it
is important to record the changes that take place so that the structure's
historic evolution might be completely documented for future study.
(B)
When required. All historic structures permits, except
for new structures permits, will require completion reports.
(C)
Minimum report requirements. Written documentation must
include the following:
(i)
title page, including:
(I)
project name;
(II)
city, county;
(III)
permit number;
(IV)
date of report;
(ii)
text, including:
(I)
property name and location;
(II)
primary personnel (names, titles, addresses, and telephone
numbers), including:
(-a-)
owner;
(-b-)
lessee;
(-c-)
architect;
(-d-)
engineer;
(-e-)
contractor;
(-f-)
consultant(s);
(-g-)
others;
(III)
scope of work (major categories with corresponding costs);
(IV)
project dates (beginning and ending);
(V)
project narrative, including:
(-a-)
description of work and description of anticipated future
work (if any) ;
(-b-)
description of special products, materials, and/or building
techniques;
(-c-)
description of intended use of the property; and
(VI)
labeled photographs with index: minimum 4 by 6 inch clear
color prints; digital prints must be equivalent in quality and clarity to
clear prints from 35mm film negatives;
(-a-)
before construction conditions;
(-b-)
during construction;
(-c-)
after construction is complete.
(D)
Photographic record. The photographic documentation is
a significant part of the record of the project work. Each view, before, during,
and after, should be of the same area, to clearly illustrate the project work
as it progresses.
(E)
Report submittal. Submit one copy of the required completion
report with original photographic documentation; photo copies are not acceptable.
All completion reports must be submitted unbound. Submit copies to the commission.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed
with the Office of the Secretary of State on May 9, 2002.
TRD-200202882
F. Lawrence Oaks
Executive Director
Texas Historical Commission
Earliest possible date of adoption: June 23, 2002
For further information, please call: (512) 463-5711
Chapter 111.
RULES AND REGULATIONS OF THE BOARD
§§26.17, 26.20, and 26.21 of this title (relating
to Issuance of Permits, Archeological Permit Categories, and Application for
Archeological Permit)
]
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 the impact of the project on the cultural resource(s)
[
; and fiscally appropriate and cost-effective means to mitigate the
effect 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. [
The committee may also require a performance
bond to be posted prior to issuance of an antiquities permit.
] Memoranda
of Understanding between the [
committee
]
commission
and other public agencies follow.
Part 7.
STATE PRESERVATION BOARD