(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 this chapter. 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 Texas Historical Commission (THC) and the Texas Parks and Wildlife Department (TPWD) follow.
(c) 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) require that all archeological investigations on TPWD lands are conducted under Antiquities Permits obtained by persons who meet THC requirements for principal investigator as listed in §26.4 of this title (relating to Professional Qualifications and Requirements);
      (ii) notify the THC of pending construction and maintenance projects in accordance with all applicable provisions of this section;
      (iii) 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
      (iv) notify THC when cultural resources are discovered on TPWD lands.
    (B) THC will issue an annual Antiquities Permit for investigations on TPWD lands to the TPWD Cultural Resources Program Director 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) 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 area of potential effect greater than ten (10) acres and involves construction or maintenance activities in areas where similar activities have not occurred before;
      (ii) consists of disking, plowing, or other periodic activities impacting a total or cumulative area of potential effect greater than 120 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 and impacts a total or cumulative area of potential effect greater than ten (10) acres;
      (iv) is grading or maintenance of a road or fire break when the road or fire break, water diversion features, and/or its ditches will be lengthened, widened, or deepened beyond previous disturbance from construction and/or maintenance holes and impacts a total or cumulative area of potential effect greater than ten (10) acres;
      (v) involves activities related to prescription burning of any kind that disturb the ground surface or subsurface in areas larger than ten (10) acres where similar activities have not occurred before; or
      (vi) is any type of project not described in subparagraph (B) of this paragraph.
    (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 area of potential effect of five acres or less;
      (ii) consists of disking, plowing, or other periodic activities impacting a total or cumulative area of potential effect of less than 120 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 and impacts a total or cumulative area of potential effect greater than ten (10) acres;
      (iv) is grading, disking, or other maintenance of a road or fire break when the road or fire break, related water diversion features, and/or its ditches will not be lengthened, widened, or deepened beyond previous disturbance from construction and/or maintenance holes and impacts a total or cumulative area of potential effect greater than ten (10) acres; 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. Projects that involve continuing impacts of the same nature and extent approved by THC need not be reviewed again if no archeological sites have been recorded within those project areas. THC will review continuing impacts of the same nature and extent in areas where archeological sites are present at 10 year intervals from the original date of approval to proceed.
    (D) TPWD review of projects. TPWD will review all projects that have the potential to impact 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.
    (E) TPWD will provide cultural resources training to State Parks and Wildlife Management Area personnel. On the direction of the Cultural Resources Program Director (CRPD), Wildlife Facilities Coordinator (WFC), or their designees, TPWD personnel who have received cultural resources training within the past 5 years may observe construction and maintenance activities, to ensure that cultural resources are considered during TPWD activities. If any archeological sites are revealed by such activities, TPWD personnel will report them to the CRPD, WFC, or their designees.
  (3) Procedures for Proposed Projects.
    (A) Notification to THC of proposed projects. TPWD shall send THC written or electronic notification no less than 30 days in advance of proposed projects that require review under paragraph (2)(A) of this subsection, and/or Section 106 of the National Historic Preservation Act (16 U.S.C. §470f). In rare cases when a response from THC is needed in less than 30 days, notification may be made by telephone or electronic mail, with a written or electronic notification to follow. Project review requests concerning Wildlife Management Areas shall be directed to THC through the WFC or their designee, and project review requests concerning State Parks and other TPWD properties shall be directed to THC through the CRPD or their designee. 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) locational data for the project area and 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 (hard copy or electronic format) 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.
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