Part 2.
TEXAS HISTORICAL COMMISSION
Chapter 26.
PRACTICE AND PROCEDURE
13 TAC §26.14
The Texas Historical Commission proposes the creation of
a new §26.14 of Chapter 26 (Title 13, Part II of the Texas Administrative
Code) relating to the Memoranda of Understanding between the Texas Historical
Commission and the Texas Department of Transportation.
The creation of this new section was undertaken to update, streamline,
and renew the memoranda of understanding between Texas Historical Commission
and Texas Department of Transportation and the action removes or replaces
outdated terms and references.
F. Lawerence Oaks, Executive Director, has determined that for the first
five-year period this new section is in effect there will be no new fiscal
implications for state or local government as a result of enforcing or administering
the rule.
Mr. Oaks has also determined that for each year of the first five year
period the new rule section is in effect the public benefit anticipated will
be an increased efficiency and effectiveness in the implementation of the
Antiquities Code of Texas. Additionally, Mr. Oaks as determined that there
will be no negative effects on small businesses.
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
.
This new section is proposed under §442.005(q), Title 4,
Chapter 442 of the Texas Government Code and §191.052, Title 9, Chapter
191 of the Texas Natural Resources Code, which provides the Texas Historical
Commission with the authority to promulgate rules and conditions to reasonably
effect the purposes of these chapters.
§26.14.Memorandum of Understanding with Texas Department of Transportation.
(a)
Purpose.
(1)
It is the policy of the both the Texas Historical Commission
and the Texas Department of Transportation (TxDOT) to:
(A)
identify the environmental impacts of TxDOT transportation
projects, to coordinate these projects with applicable state and federal agencies,
and reflect these investigations and coordination in the environmental documentation
for each project;
(B)
base project decisions on a balanced consideration of the
need for a safe, efficient, economical, and environmentally sound transportation
system;
(C)
receive input from the public through the public involvement
process;
(D)
utilize a systematic interdisciplinary approach as an essential
part of the development process for transportation projects; and
(E)
strive for environmentally sound transportation activities
through appropriate avoidance, treatment or mitigation, where feasible and
prudent, in coordination with appropriate resource agencies.
(2)
In order to pursue this policy, the Texas Department of
Transportation and the Texas Historical Commission (THC) have agreed to adopt
this new Memorandum of Understanding (MOU), which will supercede the MOU,
which became effective on December 13, 1998.
(3)
This MOU is entered into by THC and TxDOT pursuant to the
Government Code, §§442.005 and 442.007, Natural Resources Code, §191.0525(f),
and Transportation Code, §201.607 to adequately provide for coordination
of projects with THC. It is the intent of this MOU to provide a formal mechanism
for THC review of TxDOT projects that have the potential to adversely affect
cultural resources in order to assist TxDOT in making environmentally sound
decisions, and to develop with TxDOT a system by which information developed
by TxDOT and THC may be exchanged to their mutual benefit. This MOU also provides
for an efficient and streamlined review of TxDOT projects in keeping with
state and national initiatives for environmental streamlining.
(b)
Authority.
(1)
Texas Transportation Code, §201.607, directs TxDOT
to adopt MOUs with appropriate environmental resource agencies, including
THC. The rules for coordination of state-assisted transportation projects
found in 43 TAC Subchapter 2, §§2.40-2.51 of the Transportation
Code (relating to Environmental Review and Public Involvement for Transportation
Projects), underline the need for and importance of comprehensive environmental
coordination for transportation projects.
(2)
The Texas Transportation Code, §201.607(a)(5) also
authorizes and contemplates other agreements necessary for the effective coordination
of the review of the historic or archeological effect of highway projects.
(3)
Provisions of this MOU may in part be implemented through
a Programmatic Agreement (PA) among the Federal Highway Administration (FHWA),
the Texas State Historic Preservation Officer (TSHPO), the Advisory Council
on Historic Preservation (Council), and TxDOT. TxDOT and THC will seek to
revise the existing PA, executed in 1995, to reflect the streamlined procedures
contained in this MOU.
(c)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Antiquities Code of Texas (ACT)--The state statute (Natural
Resources Code, Chapter 191) that designates the Texas Historical Commission
as the legal custodian of all cultural resources, historic or prehistoric,
within the public domain of the state, and as the body that issues antiquities
permits, in accordance with this Chapter.
(2)
Antiquities permit--A permit issued by the Texas Historical
Commission in order to regulate the taking, alteration, damage, destruction,
salvage, archeological survey, testing, excavation and study of state archeological
landmarks including prehistoric and historic archeological sites, and the
preservation, protection, stabilization, conservation, rehabilitation, restoration,
reconstruction, or demolition of historic structures and buildings designated
as a State Archeological Landmark or listed in the National Register of Historic
Places.
(3)
Area of potential effects--The geographic area or areas
within which an undertaking may cause changes in the character or use of historic
properties, as defined in 36 CFR Part 800, if any such properties exist.
(A)
The area of potential effects for archeological properties
on federal undertakings will be confined to the limits of the proposed project
right of way (including permanent and temporary easements), utility relocations,
and project-specific locations designated by TxDOT.
(B)
Unless TxDOT and THC in consultation determine a need for
a wider area of potential effects, the area of potential effects for other
properties on federal undertakings will be:
(i)
300 feet beyond the proposed right of way for projects
constructed on new location;
(ii)
150 feet beyond the proposed right of way for projects
constructed in existing transportation corridors, including abandoned railroad
lines.
(C)
The area of potential effects for all non-federal undertakings
will be confined to the limits of the proposed project right of way (including
permanent and temporary easements), utility relocations, and project-specific
locations specifically designated by TxDOT.
(4)
Cultural resources--A general term referring to buildings,
structures, objects, sites, and districts more than 50 years of age with the
potential to have significance in local, state, or national history.
(5)
Eligibility--A property's eligibility for the National
Register of Historic Places as set forth in 36 CFR Part 60 and 36 CFR Part
800, or for designation as a State Archeological Landmark, as set forth in
this Chapter (§§26.7-26.10).
(6)
Historic property--Any prehistoric or historic district,
site, building, structure, or object which is included or eligible for inclusion
in the National Register of Historic Places, as defined in 36 CFR Part 800
and 36 CFR Part 60, or meets the requirements for designation as a State Archeological
Landmark as set forth in this Chapter (§§26.7-26.10).
(7)
Historic-age property--Any site, building, structure, or
object that will be 50 years old or older in age at the time of the award
of the construction contract.
(8)
Impact Evaluation--Field inspection by a qualified archeologist
to determine the extent to which physical conditions affect the eligibility
of known or unknown archeological deposits within the area of potential effects
of the proposed project.
(9)
National Register--The National Register of Historic Places
(NRHP), which is the nation's inventory of historic places maintained by the
U.S. Secretary of the Interior. (Historic properties included in or eligible
for inclusion must meet National Register criteria for evaluation, as defined
in 36 CFR Part 60.)
(10)
Project specific location--The location of specific material
sources (base material, borrow, sand pits, etc.) and other sites used by a
construction contractor for a specific project.
(11)
Quarterly report--A report that TxDOT submits to THC 20
days after the end of each quarter listing all projects for which TxDOT has
documented that no historic properties are present in the project's area of
potential effect, and those where the projects will have no adverse effects
on historic properties as determined by background research and/or, field
investigation and project review, as appropriate, that is used to fulfill
TxDOT's reporting requirements under this MOU.
(12)
State Archeological Landmark (SAL)--Archeological and
historic-age properties that are designated or eligible for designation as
landmarks as defined in Subchapter D of the Antiquities Code of Texas (ACT)
and identified in accordance with this Chapter.
(13)
State Historic Bridge Inventory--An ongoing evaluation
effort to determine the eligibility of historic-age bridges in the state.
(d)
Responsibilities.
(1)
Texas Department of Transportation. The responsibilities
of TxDOT pertain primarily to its functions as a transportation agency, and
include:
(A)
planning and designing safe, efficient, effective, and
environmentally sensitive transportation facilities while avoiding, minimizing,
or compensating for impacts to cultural resources to the fullest extent practicable;
(B)
the timely and efficient construction of transportation
facilities, in a manner consistent with approved plans, agreements and commitments
that TxDOT has executed regarding the protection of historic properties;
(C)
ongoing maintenance to provide safe, efficient, and environmentally
sound transportation facilities for the traveling public;
(D)
coordinating projects with THC through TxDOT's Environmental
Affairs Division or its successor as established by TxDOT administration;
and
(E)
provide funding to THC to enable THC to implement measures
to facilitate early coordination, streamlining and expedited review of TxDOT's
transportation projects.
(2)
Texas Historical Commission. The responsibilities of THC
relate primarily to its functions as a cultural resource agency, and include:
(A)
serving as the State Historic Preservation Office in Texas
with responsibility under 36 CFR Part 800--the regulations implementing Section
106 of the National Historic Preservation Act (16 U.S.C. 470f);
(B)
reviewing federally assisted, licensed, or permitted undertakings
with the potential to affect properties included in or eligible for inclusion
in the National Register of Historic Places;
(C)
providing assistance to agencies in their efforts to comply
with the Section 106 process;
(D)
regulating the identification, disposition and management
of State Archeological Landmarks which are affected by non-federal undertakings,
as described in the ACT and this Chapter (§§26.17-26.20);
(E)
issuing permits for the taking, excavation, restoration,
rehabilitation, or study of State Archeological Landmarks as provided in ACT
(§§191.054 and 191.091-098); and
(F)
applying TxDOT's funding solely to the review of TxDOT's
projects in a manner that most efficiently streamlines THC's effective review
and early coordination.
(e)
Early project planning for cultural resources.
(1)
TxDOT and THC agree that routine roadway maintenance projects,
by their nature and definition, do not require review by THC under 36 CFR
Part 800 or this Chapter. Such projects include, but are not limited to:
(A)
installation, repair, or replacement of fencing, signage,
traffic signals, railroad warning devices, safety end treatments, cameras
and intelligent highway system equipment;
(B)
landscaping;
(C)
routine structural maintenance and repair of bridges, highways,
railroad crossings, and rest areas;
(D)
in-kind repair, replacement of non-historic lighting, signals,
curb and gutter, sidewalks;
(E)
crack seal, overlay, milling, grooving, resurfacing, and
restriping;
(F)
replacement, upgrade, and repair of safety barriers, ditches,
storm drains, and culverts constructed after the depression-era period (i.e.
after 1945);
(G)
intersection improvements that require no additional right
of way;
(H)
placement of riprap to prevent erosion of waterway banks
and bridge piers provided no ground disturbance is required;
(I)
all maintenance work between a highway and an adjacent
frontage road;
(J)
installation of noise barriers or alterations to existing
publicly owned buildings less than 50 years old, to provide for noise reduction
except in potential or listed National Register districts;
(K)
driveway and street connections;
(L)
all work within interchanges and within medians of divided
highways;
(M)
acquisition of scenic easements unless the acquisition
is from a historic property; and
(N)
other kinds of undertakings jointly agreed to in writing
by THC and TxDOT.
(2)
TxDOT is committed to performing early identification efforts
for cultural resources located within the area of potential effects of proposed
transportation projects and initiating THC coordination during the early planning
stages of these projects, when the widest range of alternatives is open for
consideration.
(3)
TxDOT is committed to implementing, in appropriate cases
and as a part of early project planning and coordination, alternative methods,
techniques, and other strategies that are reasonable and feasible and that
will enhance efficiency in complying with cultural resource laws. These include,
but are not limited to, programmatic approaches to coordination of selected
types of cultural resources, evaluation of existing conditions affecting the
integrity of cultural resources, geoarcheological research to assist in early
planning and to reduce archeological liabilities, development of significant
eligibility standards with THC, and development and implementation of alternative
mitigation strategies. TxDOT may seek to utilize alternative strategies for
procedures set forth in this MOU. Upon the written concurrence of THC, TxDOT
may implement the alternative strategy in lieu of the procedures specified
in this MOU.
(4)
TxDOT is also committed to providing the public and interested
parties with opportunities to provide input and express their views concerning
potential project impacts to historic properties.
(A)
TxDOT will ensure that cultural resource issues are incorporated
into its regular public participation programs carried out under the National
Environmental Policy Act (42 USC 4321-4347 et seq.), and §§2.42-2.43
of the Transportation Code (relating to Highway Construction Projects-Federal
Aid, and Highway Construction Projects-State Funds), as far as practicable.
(B)
TxDOT will also ensure that federally recognized Indian
tribes (as specified in 36 CFR 800) are provided early project information
and information on Native American sites that will be affected by TxDOT projects
in order to provide comments.
(C)
If concerns related to historic and archeological issues
arise after the NEPA public involvement process is complete, or if new information
about historic or archeological issue is found, TxDOT and THC shall independently
re-evaluate their findings
(5)
Cultural resource investigations by consultants.
(A)
TxDOT has the right to perform cultural resource investigations
using staff or consultants who meet the professional standards of this Chapter
(§26.5), and as required by 36 CFR Part 800.
(B)
Cultural resource surveys, investigations, permit applications,
and other work performed by consultants shall be coordinated with THC through
TxDOT's Environmental Affairs Division or its successor as established by
TxDOT administration.
(f)
Procedures for coordination regarding archeological resources.
Provided the work is completed in accord with the provisions of this MOU,
survey and eligibility testing of archeological resources performed by the
archeological staff of TxDOT's Environmental Affairs Division is authorized
under this MOU and will not be considered an operation that might require
an antiquities permit under ACT, §§191.054 or 191.131. All other
archeological investigations shall require an antiquities permit.
(1)
Identification.
(A)
TxDOT will undertake sufficient background research to
determine which proposed projects require archeological surveys. Background
research may include a search of records and files at THC and/or the Texas
Archeological Research Laboratory (TARL), gathering information on soils,
a geomorphic history of the projects, Texas Historic Sites Atlas, and impact
evaluations.
(B)
Based on the results of background research, TxDOT will
identify projects requiring archeological investigation for archeological
resources.
(C)
TxDOT will prepare a list of projects, which do not require
individual coordination for archeological sites, and will provide THC with
a list of such projects, including those where impact evaluations were performed,
on a quarterly basis or upon request by THC.
(D)
Eligibility determinations that TxDOT performs under this
MOU may not require field investigations if sufficient background information
exists to demonstrate that the portion of the site to be affected does not
have potential research value.
(E)
Eligibility determinations that TxDOT performed under this
MOU may be based on impact evaluations if it can be demonstrated that the
portion of the site to be affected does not have sufficient integrity to be
eligible.
(2)
Archeological surveys.
(A)
All projects, and portions of projects, recommended for
survey by TxDOT during background research will be subjected to archeological
survey using the methods in conformance with 36 CFR Part 800 and THC's Archeological
Survey Standards, or with other appropriate methods. TxDOT reserves the right
to depart from published survey standards in cases where it deems appropriate.
THC reserves the right to review non-standard procedures for their adequacy.
(B)
An archeological survey will be conducted by a TxDOT professional
archeological staff member or other archeologist who meets the state and federal
standards. Surveys may be limited to an evaluation of existing impacts or
stratigraphic integrity when these are sufficient to determine that any sites
present are unlikely to be eligible.
(C)
When the archeological survey has been completed, TxDOT
will submit the results of the survey to THC:
(i)
as part of a quarterly list of investigations where no
sites were found, where sites were found but were not recommended for further
work, or upon request by THC; or
(ii)
as an individual report when sites are present and recommended
for further work; or
(iii)
as an individual report when no further work is recommended,
but THC comment is a desirable element of TxDOT's NEPA compliance.
(D)
All TxDOT survey reports will include:
(i)
details of the results of the survey, including project
description, anticipated project impact, and existing disturbance in the project
area;
(ii)
environmental data on topography, soils, land use, survey
methodology, survey results, and recommendations;
(iii)
the project location plotted on 7.5' Series USGS quadrangle
maps;
(iv)
descriptions of any sites found;
(v)
submission of electronic and paper copies of archeological
site survey forms to TARL; and
(vi)
recommendations regarding whether the site(s) merit archeological
testing or archeological monitoring.
(E)
THC will respond within 20 days of receipt of the TxDOT
request for review of any survey results and recommendations. The response
will include:
(i)
a statement of concurrence or non-concurrence with the
results of the survey and its recommendations; and
(ii)
any other comments relevant to the archeological resources,
which could be affected by the project.
(F)
TxDOT will summarize the results of the archeological survey
and recommendations in the environmental document for the project, as far
as practicable.
(3)
Archeological eligibility testing phase.
(A)
All sites and portions of sites recommended for eligibility
testing by THC will be subject to archeological testing, using the methods
agreed upon in writing by TxDOT and THC.
(B)
THC may send a representative to observe any or all of
the testing procedures.
(C)
At the completion of testing, TxDOT will prepare a formal
report of the results of testing.
(i)
For sites affected by federal undertakings, the report
will include recommendations regarding eligibility for the NRHP, as described
in 36 CFR Part 60 and 36 CFR Part 800.
(ii)
For sites affected by non-federal undertakings, the report
will include recommendations regarding the eligibility of the site for designation
as a State Archeological Landmark, in accordance with ACT, §§191.091-092,
and this Chapter (§26.8).
(iii)
TxDOT may submit interim reports on testing to expedite
project review, provided such reports contain sufficient information on which
to base recommendations of eligibility and, if relevant, additional work.
Interim reports shall not be substituted for final report.
(D)
TxDOT will send the testing report to THC with a request
for review.
(E)
In accordance with 36 CFR Part 800, THC will respond to
the report within 20 days of receipt of TxDOT's request for review and in
accordance with 36 CFR Part 800. The response will include:
(i)
a statement of concurrence or non-concurrence with the
results of the archeological testing and recommendations contained in the
TxDOT request for review; and
(ii)
a determination of the site's eligibility for listing
in the National Register of Historic Places, or for designation as a State
Archeological Landmark.
(F)
When appropriate, TxDOT will work with THC and Principal
Investigators to develop public educational outreach projects associated with
significant test level investigations.
(4)
Archeological excavation/data recovery.
(A)
All sites and portions of sites determined to be eligible
for the NRHP (for federal undertakings) or eligible for designation as a State
Archeological Landmark (for non-federal undertakings) based on consultation
with THC, will be subjected to data recovery in conformance with a data recovery
plan that has the concurrence of THC when avoidance is not feasible and provided
that they are not eligible for preservation in place.
(B)
TxDOT, in consultation with THC, will develop a data recovery
plan for each eligible site on a case-by-case basis, in accordance with 36
CFR Part 800 for federal undertakings and ACT for non-federal undertakings.
Final data recovery plans must be approved by THC prior to their implementation.
(C)
Results of data recovery will be published as required
by 36 CFR Part 800 and/or ACT. To expedite transportation project planning,
design, and construction, interim reports on data recovery may be used for
consultation to determine whether fieldwork commitments have been fulfilled.
Interim reports shall not be substituted for final reports.
(D)
All data recovery will be performed under an antiquities
permit.
(E)
When appropriate, TxDOT and THC may agree to substitute
alternative mitigation in lieu of data recovery.
(F)
When appropriate, TxDOT will work with THC and Principal
Investigators to develop public educational outreach projects associated with
significant data recovery investigations.
(5)
Archeological sites found after award of contract.
(A)
When previously unknown archeological remains are encountered
after award of contract, TxDOT will immediately suspend construction or any
other activities that would affect the site.
(B)
TxDOT will inform THC and, if appropriate, federally recognized
tribes, of discovery of previously unknown archeological remains and invite
them to accompany TxDOT staff (or consultants) to the location within 48 hours
of the discovery.
(C)
TxDOT will evaluate the need, if any, for further investigations
upon visiting the location of the discovery.
(D)
If TxDOT determines that the discovery is an unrecorded
archeological site, then TxDOT shall complete a State of Texas Archeological
Site Data Form.
(E)
If TxDOT determines that the site does not warrant further
investigations, will write to THC and, if appropriate, federally recognized
tribes outlining reasons and requesting their concurrence within one business
day of the visit to the discovery location. The THC and, if appropriate, federally
recognized tribes will have two business days to respond. No response will
be deemed to represent concurrence and construction will resume.
(F)
If TxDOT determines that the site warrants further investigation,
a scope of work for investigations will be developed within 24 hours of the
visit to the site. The scope of work will be submitted to THC and appropriate
federally recognized tribes who will have one business day to review and comment
on the scope of work. No response will be deemed to represent concurrence
and the scope shall be implemented. If comments are received, TxDOT and, if
appropriate, FHWA shall take into account those comments and carry out the
final scope of work. Upon completion of the approved work, construction may
proceed as planned. A report of the investigations will be completed within
the timeframe established by the scope of work and copies provided to all
consulting parties.
(G)
The procedures in this subsection shall be used to satisfy
the permit requirements of this Chapter, for emergency permitting under §26.20(13)
when conditions of natural or man-made disasters necessitate immediate action.
(6)
Artifact recovery and curation.
(A)
Artifact recovery.
(i)
The type and quantity of artifacts to be recovered during
testing and data recovery will be detailed in the scope of work and will be
selected to address the research questions.
(ii)
Artifacts or analysis samples (such as soil samples) that
are recovered from survey, testing, or data recovery investigations by TxDOT
or their contracted agents that address the research questions must be cleaned,
labeled, and processed in preparation for long-term curation unless the artifacts
or samples are approved by THC for discard under this Chapter (§26.27).
(iii)
To ensure proper care and curation, recovery methods
must conform to 36 CFR Part 800, and this Chapter (§26.27).
(B)
Artifact curation.
(i)
TxDOT or its permitted contractor may temporarily house
artifacts and samples during laboratory analysis and research, but upon completion
of the analysis, artifacts and accompanying documentation must be transferred
to a permanent curatorial facility in accordance with the terms of the antiquities
permit.
(ii)
Artifacts and samples will be placed at an appropriate
artifact curatorial repository which fulfills 36 CFR Part 79, or the ACT,
as approved by THC. When appropriate, TxDOT will consult with THC to identify
for disposal collections or portions of collections that do not have identifiable
value for future research or public interpretation. Final approval regarding
the disposition of collections will be made by THC.
(iii)
TxDOT is responsible for the curatorial preparation of
all artifacts to be submitted for curation so that they are acceptable to
the receiving curatorial repository and fulfill 36 CFR Part 79 and this Chapter
(§26.27), as approved by THC.
(g)
Early project development procedures for coordination regarding
non-archeological historic properties. For purposes of this subsection and
subsections (h), (i) and (j) of this section, the term historic properties
will refer only to non-archeological historic properties.
(1)
TxDOT and THC agree (for federal and non-federal projects)
that certain types of undertakings do not require individual coordination.
These undertakings are projects where no historic properties are present,
or where the undertakings will have a minimal potential to affect historic
properties if such are present in the area of potential effects. TxDOT will
document these undertakings and include them in a quarterly report to THC
unless they are the subjects of individual coordination with THC.
(A)
Examples of such undertakings include:
(i)
construction of bicycle and pedestrian lanes, paths and
facilities if not located in a listed or eligible National Register historic
district;
(ii)
road widening within existing or minimal new right of
way if not located in a listed or eligible National Register historic district;
(iii)
correction of roadway geometric and intersections within
existing or minimal new right of way;
(iv)
bridge deck rehabilitation and stabilization; and
(v)
other classes of undertakings jointly agreed to in writing
by THC and TxDOT.
(2)
Early in the project development process, TxDOT will determine
whether federally assisted, licensed, or permitted transportation projects
(federal projects) constitute undertakings with the potential to affect historic
properties. In consultation with THC, it has been determined that individual
coordination with THC is not necessary for projects where background research
indicates that no historic properties are present or where they are present
but the project will not have the potential to affect them. TxDOT will maintain
documentation of efforts taken to reach this conclusion, and will include
these projects in the quarterly report, or provide documentation upon request
by THC.
(3)
Early in the project development process, TxDOT will review
its non-federal transportation improvements occurring on any lands of the
State of Texas (non-federal projects) to determine whether they have the potential
to affect historic properties under the terms of ACT and this Chapter. Effects
include the removal, alteration, or renovation of one or more contributing
elements to a historic property. TxDOT and THC agree that individual coordination
with THC is not necessary when no historic properties are present or when
the project does not have the potential to adversely affect historic properties,
provided TxDOT has complied with the provisions of this MOU. TxDOT will maintain
documentation of efforts taken to reach this conclusion, and will include
these projects in the quarterly report or provide documentation upon request
by THC.
(4)
If TxDOT determines that a project has the potential to
affect a historic property, TxDOT will then individually coordinate the project
with THC, in accordance with the provisions provided in this MOU.
(h)
Identification and evaluation of historic properties.
(1)
For non-federal and federal projects requiring individual
THC coordination, TxDOT will identify historic properties within the project's
area of potential effects. TxDOT will conduct a search of available records,
including listings of the Texas Historic Sites Atlas, Recorded Texas Historic
Landmarks, State Archeological Landmarks, and properties listed in the National
Register. THC will render all reasonable assistance to TxDOT in performing
record searches on historic properties.
(2)
TxDOT will conduct field surveys for all projects that
may have historic-age properties within their area of potential effects. These
surveys will be conducted in order to determine if historic properties are
present.
(3)
If the identification efforts reveal historic-age properties,
TxDOT will evaluate the eligibility of each property to determine if the property:
(A)
qualifies as a SAL as defined by ACT (§191.092) for
non-federal projects; or
(B)
is eligible for inclusion or listed in the National Register,
for federal projects.
(4)
If a non-federal or federal project has the potential to
affect a historic-age bridge-class structure the following procedures apply
unless the structure is of a categorically excluded type as defined by SHBI
criteria. Categorically excluded structures are generally not eligible bridges
that have been widened, non-depression era simple span concrete box culverts
and timber stringer bridges. There are exceptions to these exclusions and
other categorically excluded structures may be added by written agreement
between TxDOT and THC in the future.
(A)
If a non-federal or federal project has the potential to
affect a historic-age bridge-class structure that has not been included in
the SHBI, as formally accepted by THC, TxDOT will assess the eligibility of
the structure in consultation with THC.
(B)
If a historic-age bridge-class structure has been determined
not eligible, either under the SHBI or in individual consultation with THC,
TxDOT will coordinate with appropriate local entities to determine if the
structure has local interest or significance.
(i)
If no local interest or significance is identified, TxDOT
will add the project to the quarterly report.
(ii)
If TxDOT or THC identifies local interest or significance
in a structure, TxDOT will re-assess the eligibility with THC. If TxDOT and
THC concur that the bridge-class structure is still not eligible, TxDOT will
document the project in the quarterly report.
(C)
If a historic-age bridge-class structure has been determined
eligible, either under the SHBI or in individual consultation with THC, TxDOT
shall follow the procedures outlined in subsection (i) below, regarding assessing
and mitigating effects on historic properties.
(D)
If TxDOT has reason to believe that a bridge-class structure
is no longer eligible, TxDOT will consult with THC to re-assess the eligibility.
(E)
If TxDOT and THC concur that the bridge-class structure
is no longer eligible, TxDOT will document the project in the quarterly report.
(i)
Assessing and mitigating effects on historic properties.
TxDOT will assess the effects of projects on properties that qualify as SALs
for non-federal projects and on properties determined to be listed or eligible
for inclusion in the National Register for federal projects. TxDOT will then
consult with THC using the following procedures.
(1)
For a non-federal project, TxDOT will consult with THC
to determine if a historic structures permit is required for any proposed
removals, alterations, or renovations to SALs or to properties for which THC
will initiate an SAL nomination in accordance with this Chapter (§26.12)
and ACT (§191.098).
(2)
For a federal project, TxDOT will apply the criteria of
effect and in cases of a determination of adverse effects, will consult with
THC in accordance with the provisions set forth in 36 CFR Part 800.
(3)
For a project involving a bridge-class structure that TxDOT
and THC concur is eligible, TxDOT shall evaluate the preservation options
in the following order of preference: full vehicular use; reduced level of
vehicular use, non-vehicular use at original site; relocation for vehicular
use; relocation for non-vehicular use; or demolition. TxDOT will document
the evaluation of each preservation option including identification of the
preferred option with supportive reasoning, and will submit the documentation
to THC.
(A)
When an eligible bridge-class structure will be retained
for non-vehicular use at the original site or relocated, TxDOT will provide
THC with an agreement signed by the bridge-class structure owner that includes
language that ensures maintenance of the bridge-class structure, and provides
THC the opportunity to review and concur that current and future proposed
work on the bridge-class structure, beyond normal maintenance, complies with
the Secretary of the Interior's Standards for Rehabilitation.
(B)
Upon receipt of complete documentation THC shall have 20
days to review and comment on the project. TxDOT shall take THC comments into
account in making decisions on the project involving the bridge-class structure.
(4)
TxDOT will, to the maximum extent practicable, provide
an early opportunity for the public and interested parties to receive information
and to express their views on projects when a historic property may be negatively
affected by a transportation project.
(5)
TxDOT will also consult with THC to seek ways to avoid,
minimize, or mitigate any negative effects on historic properties caused by
federal and non-federal projects in accordance with the following procedures.
(A)
Non-federal project. TxDOT shall take THC comments into
account when projects will have an adverse effect on historic properties.
(B)
Federal project. TxDOT will follow the consultation procedures
set out in 36 CFR Part 800.
(j)
Project documentation by TxDOT.
(1)
THC may audit TxDOT project file for specific undertakings
submitted in the quarterly report. Projects involving non-archeological properties
that are submitted individually to THC or included in the quarterly report,
will be documented by TxDOT and will include:
(A)
a project description and scope, including project drawings,
photographs, reports and other information where needed to clearly describe
the proposed project;
(B)
a map showing the location of the project and all historic-age
properties within the APE of the project;
(C)
a statement of the efforts and methodology used to identify
historic-age properties in the project area;
(D)
documentation on each identified property, including at
least one photograph of the property, the address if known, an architectural
description, date of construction (estimated or known), an integrity assessment,
and any known local, state or national historical designations;
(E)
the results of any coordination with interested parties
concerning the eligibility of identified historic-age properties; and
(F)
the results of TxDOT's determination of eligibility for
each identified historic-age property.
(G)
TxDOT's assessment of potential project effects on historic
properties, including evaluations, reports and other documentation relevant
to the determination of effect.
(2)
If the project is submitted to THC for review of non-archeological
properties, THC will respond within 20 days of receipt of complete documentation
and TxDOT's request for review as follows.
(A)
For a non-federal project, THC's response will indicate
whether the project will require a historic structures permit for an SAL,
whether THC intends to initiate SAL nomination of a property not previously
designated as an SAL, or if THC has knowledge that another party intends to
initiate SAL nomination in accordance with §§26.11, 26.12 and §26.22
of this Chapter, and ACT, §191.098. If THC does not respond within 20
days, TxDOT will assume that THC concurs with TxDOT's determination regarding
historic-age property eligibility or project effects, and TxDOT will proceed
with the project in accordance with the procedures required in this MOU.
(B)
For a federal project, all coordination with THC will follow
the provisions of 36 CFR Part 800 and the PA between TxDOT, FHWA and THC.
(3)
Projects involving archeological properties that are submitted
individually to THC or included in the quarterly report will be documented
by TxDOT in the manner described in this subsection. THC may audit TxDOT project
files for specific undertakings submitted in the quarterly report. For archeology,
project documentation will consist of a statement for "no survey" or a report
of an archeological impact evaluation or an archeological survey report. Each
project file at a minimum will include:
(A)
a description of the project;
(B)
project location map;
(C)
information about soils and geology in project location,
as appropriate;
(D)
information on previously recorded archeological sites
in project location;
(E)
level of effort for identification of archeological sites;
and
(F)
results and recommendations.
(k)
Environmental document and public involvement. TxDOT will
summarize information on its efforts to identify archeological sites and historic
properties, to determine the effects of projects on archeological sites and
historic properties, and to mitigate any negative effect on these sites or
properties in the environmental document, if one is prepared, and will include
this information in public involvement activities to the maximum extent practicable.
(l)
Denial of access. In cases where access to private land
for conducting archeological survey is denied prior to the approval of the
environmental document, TxDOT will make a commitment to complete testing,
evaluation of site eligibility, or data recovery prior to any construction
related impacts.
(m)
MOU to govern TxDOT procedures. TxDOT satisfies applicable
THC requirements if it utilizes the procedures of this MOU in lieu of other
THC procedures. In cases where TxDOT is utilizing this MOU in lieu of other
THC procedures, TxDOT must follow the requirements of this MOU.
(n)
THC audit. THC may audit TxDOT project files for specific
undertakings carried out under this MOU.
(o)
Annual meeting. TxDOT and THC staff will meet annually
to discuss topics of mutual interest.
(p)
Dispute Resolution.
(1)
If THC and TxDOT cannot reach agreement on any plans or
actions carried out pursuant to this MOU, THC and TxDOT will consult to resolve
the objection.
(2)
If THC and TxDOT cannot reach a compromise solution or
otherwise resolve the objection through consultation, either TxDOT or THC
may choose to invoke the dispute resolution provisions which are set forth
in paragraph (3) of this subsection.
(3)
When these dispute resolution provisions are invoked, if
TxDOT and THC cannot resolve their disagreement, the two agencies will resolve
their dispute in accordance with the procedures established under state and
federal rules.
(A)
Federal undertakings will follow the dispute resolution
procedures as stipulated in 36 CFR Part 800.
(B)
Non-federal projects will follow the appeal procedures
provided in Title 13, Part 2, Chapter 27 of the Texas Administrative Code.
(q)
Review of MOU. This memorandum shall be reviewed and updated
as provided by law or by agreement between the parties.
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 February 13, 2004.
TRD-200401070
F. Lawerence Oaks
Executive Director
Texas Historical Commission
Earliest possible date of adoption: March 28, 2004
For further information, please call: (512) 463-5711