(a) Purpose and Authority. This section contains the memorandum of understanding (MOU) entered into by the Texas Historical Commission (THC) and the Texas Department of Transportation (TxDOT) in accordance with Texas Government Code, §442.005 and §442.007; Texas Natural Resources Code, §191.0525(f); and Transportation Code, §201.607. The purpose of this MOU is to provide a formal mechanism for expediting THC review of TxDOT's transportation projects that potentially pose adverse effects on cultural resources. This MOU supersedes the previous MOU made effective on May 20, 2013.
(b) Applicability.
  (1) Except as provided in paragraph (2) of this subsection, this section generally applies to:
    (A) a transportation project for which an environmental review is being or will be performed under 43 TAC Chapter 2 (relating to Environmental Review of Transportation Projects); or
    (B) any other type of project coordinated by TxDOT in compliance with the requirements of this section.
  (2) Work in TxDOT right-of-way that is not associated with a project for which TxDOT is the project sponsor under 43 TAC §2.7 (relating to Texas Department of Transportation, Environmental Review of Transportation Projects, General Provisions) is the responsibility of the project sponsor and not of TxDOT (see Texas Natural Resources Code §191.0525). The project sponsor is responsible for coordinating directly with THC for such work. Examples of projects that will be coordinated by the non-TxDOT project sponsor directly with THC include but are not limited to:
    (A) on-system highway projects funded entirely with local funds;
    (B) utility relocations or installations within TxDOT right-of-way sponsored by other entities; and
    (C) driveway and access connections sponsored by other entities.
  (3) TxDOT transportation projects may be coordinated with THC outside the terms of this MOU with notification of THC.
(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 permit--A permit issued by THC in order to regulate the taking, alteration, damage, exhumation, destruction, salvage, archeological survey, testing, excavation and study of State Antiquities Landmarks including prehistoric, historic and underwater archeological sites, and the preservation, rehabilitation, restoration, reconstruction, architectural investigation, hazard abatement, relocation, demolition, or new construction related to historic structures and buildings designated as a State Antiquities Landmark).
  (2) Area of potential effects (APE)--The geographic space or spaces within which a project may cause changes in the character or use of historic properties, if any such properties exist.
    (A) The area of potential effects for archeological properties will be confined to the limits of the proposed project right of way (including permanent and temporary easements), utility relocations designated by TxDOT, and project-specific locations designated by TxDOT. The area of potential effects also extends to the depth of impacts caused by the undertaking.
    (B) The area of potential effects for non-archeological historic properties will be confined to the limits of the proposed project right of way (including permanent and temporary easements), utility relocations designated by TxDOT, and project-specific locations designated by TxDOT.
  (3) Cultural resources--A general term referring to cemeteries; buildings; structures; objects; archeological sites, including shipwrecks; and districts more than 50 years of age with the potential to have significance in local, state, or national history.
  (4) Effect--Alteration to the characteristics of a historic property qualifying it for formal designation as a State Antiquities Landmark.
  (5) Eligibility--A property's eligibility for designation as a State Antiquities Landmark, as set forth in this chapter.
  (6) Emergency Permit--A permit that may be used by TxDOT under certain emergency circumstances for the purposes of performing investigations prior to formal application for an antiquities permit.
  (7) Historic property--Any prehistoric or historic district, site, building, structure, or object that meets the requirements for designation as a State Antiquities Landmark as set forth in this chapter.
  (8) Minor widening--Roadway projects resulting in pavement profile widened to less than double their original width, resulting from adding travel/center-turn lanes or paved shoulders.
  (9) Project-specific location--The location of specific material sources (e.g., base material, borrow and sand pits) and other sites used by a construction contractor for a specific project.
  (10) State Antiquities Landmarks (SAL)--Both Archeological and Non-archeological historic properties that are designated as landmarks as defined in Subchapter D of the Antiquities Code of Texas (Texas Natural Resources Code, Chapter 191), or treated as landmarks under the interim protection described in §26.8(d) of this title (relating to Designation Procedures for Publicly Owned Landmarks), and identified in accordance with this chapter.
  (11) THC--Texas Historical Commission.
  (12) Transportation project--A project to construct, maintain or improve a highway, rest area, toll facility, aviation facility, public transportation facility, rail facility, ferry, or ferry landing. A transportation enhancement project funded under 23 USC 133(h) is also a transportation project.
  (13) TxDOT--Texas Department of Transportation.
(d) Coordination Responsibilities.
  (1) TxDOT. The coordination responsibilities of TxDOT under this MOU are defined as follows.
    (A) All coordination required by this MOU shall be conducted by or through TxDOT's Environmental Affairs Division or its successor as established by TxDOT administration, unless the Environmental Affairs Division (or its successor) and THC agree in writing to allow other appropriate organizational units of TxDOT or other entities approved by the respective agencies to conduct the coordination.
    (B) TxDOT shall not be a signatory to any permit issued by THC to another entity for work on a project funded or sponsored by such other entity.
  (2) THC. The coordination responsibilities of THC under this MOU are to conduct any review required by this section in an efficient manner, to provide timely feedback to TxDOT about projects coordinated under this section, and to apply any funding provided by TxDOT solely to the review of TxDOT's projects in a manner that most efficiently streamlines THC's effective review and early coordination.
(e) Qualifications of Staff and Use of Consultants.
  (1) All cultural resource investigations executed under the terms of this MOU shall be implemented by staff who meet the requirements for Professional personnel as designed and set forth in this chapter; or the Secretary of the Interior's Professional Qualification Standards 36 C.F.R Part 61, Appendix 6) and qualified and eligible to receive an Antiquities Permit..
  (2) TxDOT has the right to perform cultural resource investigations using staff or consultants who meet the professional standards cited in paragraph (1) of this subsection.
  (3) Cultural resource surveys, investigations, permit applications, and other work performed by consultants shall be coordinated with THC by or through TxDOT's Environmental Affairs Division, or its successor as established by TxDOT administration, unless it and THC agree in writing to allow other appropriate organizational units of TxDOT or other entities approved by the respective agencies to coordinate the work.
(f) Projects Excluded from Review for Archeological Sites and Cemeteries.
  (1) Projects with ground disturbance of less than 100 cubic yards of impacts to undisturbed sediments, by their nature and definition, do not have the potential to affect historic properties. Such projects do not require review of their potential project impacts on archeological resources or cemeteries by THC under this chapter or under this MOU. The following list provides examples of activities with this low level of new disturbance that do not require review of their potential impacts on archeological resources or cemeteries under this chapter or under this MOU:
    (A) installation, repair, or replacement of fencing, signage, traffic signals, railroad warning devices, safety end treatments, cameras and intelligent highway system equipment;
    (B) projects involving purchase or acquisition of land without associated ground-disturbing activities;
    (C) routine structural maintenance and repair of bridges, highways, railroad crossings, picnic areas, and rest areas;
    (D) in-kind repair, replacement of lighting, signals, curbs and gutters, and sidewalks;
Cont'd...