Texas Administrative Code › Title 43 - TRANSPORTATION › Part 1 - TEXAS DEPARTMENT OF TRANSPORTATION › Chapter 2 - ENVIRONMENTAL REVIEW OF TRANSPORTATION PROJECTS › Subchapter H - MEMORANDUM OF UNDERSTANDING WITH THE TEXAS HISTORICAL COMMISSION › Section 2.257 - Procedures for Project Coordination when the Project Requires Review for Archeological Sites and Cemeteries

Current through Reg. 49, No. 28; July 12, 2024
(a) For projects
				  subject to review for archeological sites and cemeteries under this MOU, TxDOT
				  will evaluate the APE for potential project effects to archeological historic
				  properties and to determine whether the APE contains cemeteries. TxDOT must
				  make reasonable efforts and act in good faith when complying with this
				  requirement.
(b) TxDOT may approve
				  projects to proceed to construction without review by THC when TxDOT staff
				  finds that the project will not affect archeological historic properties and
				  the project APE will not contain cemeteries.
(c) TxDOT will submit projects to THC for
				  review when TxDOT staff finds the project may affect archeological historic
				  properties or the project APE contains cemeteries. TxDOT may, at its
				  discretion, submit projects for THC review in cases where TxDOT staff finds
				  that the project will not affect archeological historic properties, and the
				  project APE does not contain cemeteries.
(d) In cases where TxDOT seeks comment from
				  THC on proposed identification or evaluation methods, TxDOT will recommend one
				  or more methods.
(e) In its request
				  for review, TxDOT will make one or more of the following findings,
				  determinations, and recommendations.
(1) In
				  cases where no archeological sites or cemeteries occur or are likely to occur
				  in some or all of the APE, TxDOT will propose a finding of no effect in those
				  portions of the APE and recommend that the project proceed to construction in
				  those portions.
(2) In cases where
				  an archeological site occurs within the APE but the portion of the site within
				  the APE does not have characteristics that qualify it as an archeological
				  historic property or is not likely to have such characteristics, TxDOT will
				  propose a determination that the portion of the site in the APE is not an
				  archeological historic property, find that the project will have no effect on
				  archeological historic properties at the site location, and recommend that the
				  project proceed to construction at the location of the site.
(3) In cases where the portion of a site
				  within the APE has characteristics that qualify it as an archeological historic
				  property, TxDOT will propose a determination that an archeological historic
				  property occurs within the APE.
(4)
				  In cases where the APE contains an archeological historic property or cemetery,
				  TxDOT will either propose a finding that the project will have no adverse
				  effect on the site or propose a finding that the project will have an adverse
				  effect on the site.
(5) If a
				  project will have an adverse effect on an archeological historic property or
				  cemetery within the APE, TxDOT will also recommend to THC an appropriate means
				  by which to resolve the adverse effect.
(A)
				  The resolution of adverse effects may take one of the following forms:
(i) the avoidance of the site during
				  construction;
(ii) an alternative
				  mitigation strategy, such as the preservation of a comparable site or the
				  re-analysis of an existing collection;
(iii) data recovery excavation or exhumation;
				  or
(iv) another form of resolution
				  approved by THC.
(B) In
				  cases where data recovery is the selected means for resolving adverse effects,
				  TxDOT will coordinate with THC at several stages during the data recovery
				  process according to each of the following procedures, unless TxDOT and THC
				  agree in writing to different procedures.
(i)
				  TxDOT will submit an initial data recovery plan as part of a permit application
				  for data recovery to THC for review.
(ii) TxDOT will submit a brief report,
				  documenting whether the fieldwork met the terms of the initial data recovery
				  plan and justifying any deviation, to THC for review. When appropriate, TxDOT
				  will recommend that the project be approved to proceed to construction and
				  destruction of any remaining portion of the site within the APE.
(iii) TxDOT will submit a revised data
				  recovery plan, based on a preliminary review of field data and recovered
				  materials, to THC for review. When appropriate, TxDOT will recommend that the
				  revised plan be adopted for the completion of data recovery analysis and
				  reporting.
(iv) TxDOT will submit a
				  draft data recovery report to THC for review. When appropriate, TxDOT will
				  recommend that the report be accepted in partial satisfaction of the terms of
				  the permit and in satisfaction of TxDOT's obligations for resolving the adverse
				  effects of the project on the site.
(v) TxDOT will ensure that data recovery
				  investigations do not begin before the State of Texas' legal right to ownership
				  of the artifacts to be recovered has been secured.
(6) THC will respond within 20
				  calendar days of receipt of the TxDOT request for review, in accordance with
				  and pursuant to the terms set out by an interagency contract executed by THC
				  and TxDOT. This final response will include:
(A) a statement of concurrence or
				  nonconcurrence with TxDOT's findings and recommendations;
(B) a determination of site eligibility for
				  all evaluated sites; and
(C) any
				  other comments relevant to the archeological sites or cemeteries which could be
				  affected by the project.