Texas Register, Volume 38, Number 9, Pages 1269-1452, March 1, 2013 Page: 1,318
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Texas Historical Commission
Earliest possible date of adoption: March 31, 2013
For further information, please call: (512) 463-1858
SUBCHAPTER E. MEMORANDA OF
UNDERSTANDING WITH OTHER STATE
13 TAC 26.25 - 26.27
The new sections are proposed under 442.005(b), (h), (q),
and (r); and 442.007(e) of the Texas Government Code and
191.052 of the Texas Natural Resources Code which provides
the THC with the authority to promulgate rules and conditions to
reasonably effect the purposes of this chapter.
No other statutes, articles, or codes are affected by the proposal.
'26.25. Memorandum of Understanding with Texas Department of
(a) Purpose and Authority. This section contains the memo-
randum of understanding (MOU) entered into by the Texas Histori-
cal 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 Trans-
portation Code, 201.607. The purpose of this MOU is to provide a
formal mechanism for expediting THC review of TxDOT's transporta-
tion projects that potentially pose adverse effects on cultural resources.
This MOU supersedes the previous MOU made effective on June 8,
(1) Except as provided in subsection (e) of this section, 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 at TxDOT's
(2) Federally funded, licensed or permitted projects may
follow the procedures of this section only if doing so would not conflict
with environmental rules promulgated by the lead federal agency.
(c) Programmatic Agreements.
(1) Provisions of this MOU may be implemented, in part,
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),
(2) With respect to federally funded projects, instead of the
procedures set forth in this MOU, THC and TxDOT shall use the appli-
cable procedures outlined in their First Amended Programmatic Agree-
ment Among the Federal Highway Administration, the Texas Depart-
ment of Transportation, the Texas State Historic Preservation Officer,
and the Advisory Council on Historic Preservation Regarding the Im-
plementation of Transportation Undertakings (PA-TU) and its succes-
sors to provide for innovation and efficiency in the timely development
of TxDOT's transportation projects considerate of their impacts on cul-
(3) TxDOT and THC will seek to revise the existing PA,
amended in 2005, to reflect the streamlined procedures contained in
(d) 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, sal-
vage, archeological survey, testing, excavation and study of state antiq-
uities landmarks including prehistoric and historic archeological sites,
and the preservation, protection, stabilization, conservation, rehabili-
tation, restoration, reconstruction, or demolition of historic structures
and buildings designated as a state antiquities landmark (or listed in the
National Register of Historic Places (NRHP)).
(2) Area of potential effects (APE)--The geographic space
or spaces within which an undertaking may cause changes in the char-
acter or use of historic properties, if any such properties exist.
(A) The area of potential effects for archeological prop-
erties will be confined to the limits of the proposed project right of
way (including permanent and temporary easements), utility reloca-
tions 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 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 lo-
cations specifically designated by TxDOT.
(3) Cultural resources--A general term referring to build-
ings, structures, shipwrecks, objects, sites, and districts more than 50
years of age with the potential to have significance in local, state, or
(4) Effect--Alteration to the characteristics of a historic
property qualifying it for formal designation as a landmark.
(5) Eligibility--A property's eligibility for designation as a
landmark, as set forth in this chapter.
(6) Emergency Permit--A permit that may be used by Tx-
DOT under certain emergency circumstances for the purposes of per-
forming investigations prior to formal application for an antiquities per-
(7) Historic property--Any prehistoric or historic district,
site, building, structure, or object that meets the requirements for des-
ignation as a landmark as set forth in this chapter.
(8) Minor widening--Roadway projects resulting in pave-
ment 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 ma-
terial sources (e.g., base material, borrow and sand pits) and other sites
used by a construction contractor for a specific project.
(10) State Antiquities Landmark (SAL)--Both Archeolog-
ical and Non-archeological historic properties that are designated or
eligible for designation as landmarks as defined in Chapter 191, Sub-
chapter D of the Texas Natural Resources Code and identified in accor-
dance with this chapter.
(11) THC--Texas Historical Commission.
(12) Transportation enhancement--An activity that is listed
under 23 United States Code 101(a)(35), relates to a transportation
38 TexReg 1318 March 1, 2013 Texas Register
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Texas. Secretary of State. Texas Register, Volume 38, Number 9, Pages 1269-1452, March 1, 2013, periodical, March 1, 2013; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth308911/m1/50/: accessed June 19, 2019), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.