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Intensive Cultural Resources Survey of the 380.6-Acre Stockdick School Road Tract, Katy, Harris County, Texas
SFA ScholarWorks, 2020Co-Authors: Owens, Jeffrey D., Bludau, Charles E., Dalton, Jesse O.Abstract:Horizon Environmental Services, Inc. (Horizon) was selected by Berg-Oliver Associates, Inc. (BOA) on behalf of the Harris County Flood Control District (HCFCD) to conduct a cultural resources inventory and assessment for the proposed Stockdick School Road Project in Katy, Harris County, Texas (HCFCD Project No. U501-07-00-E001). The proposed undertaking would consist of constructing various storm water detention ponds and other drainage improvements within a non-contiguous 154.0-hectare (380.6-acre) tract located off either side of Grand Avenue Parkway (State Highway [SH] 99) in Katy, Harris County, Texas. The tract is bounded on the north by Stockdick School Road, on the west by Peek Road, on the south by Clay Road, and on the east by the Vineyard Meadow Tuscany residential Subdivision. Mayde Creek flows southeastward through the tract. For purposes of the cultural resources survey, the project area is assumed to consist of the entire 154.0-hectare (380.6-acre) tract. The proposed undertaking is being sponsored by HCFCD, a Political Subdivision of the state of Texas; as such, the project would fall under the jurisdiction of the Antiquities Code of Texas. In addition, the project would require the use of federal permits issued by the US Army Corps of Engineers (USACE), Galveston District, under Section 404 of the Clean Water Act (CWA). As such, those portions of the overall project area that fall within the federal permit area would also fall under the jurisdiction of Section 106 of the National Historic Preservation Act (NHPA). As the proposed project represents a publicly sponsored undertaking, the project sponsor is required to provide the applicable federal agencies, in this case the USACE, and the Texas Historical Commission (THC), which serves as the State Historic Preservation Office (SHPO) for the state of Texas, with an opportunity to review and comment on the project’s potential to adversely affect historic properties listed on or considered eligible for listing on the National Register of Historic Places (NRHP) under the NHPA and/or for designation as State Antiquities Landmarks (SAL) under the Antiquities Code of Texas. Between April 30 and May 5, 2020, Horizon archeologists Charles E. Bludau, Jr. and Luis Gonzalez conducted an intensive cultural resources survey of the project area. Jeffrey D. Owens acted as Principal Investigator, and the survey was conducted under Texas Antiquities Permit No. 9409. The purpose of the survey was to locate any significant cultural resources that potentially would be impacted by the proposed undertaking. Horizon’s archeologists traversed the project area and thoroughly inspected the modern ground surface for aboriginal and historic-age cultural resources. The project area consists of a vast tract that is roughly bisected by Mayde Creek, which flows southeastward through the approximate middle of the tract. Areas adjacent to the creek were largely undeveloped and covered in dense hardwood forests with a thick understory of shrubs, grasses, forbs, brambles, vines, and various grasses. Vegetation in the more open areas consisted of dense pasture grasses with isolated copses of hardwood trees. Whereas most of the project area is undeveloped and appears to be largely intact, various disturbances were observed. An Enterprise Crude Pipeline, LLC pipeline corridor passes northeast to southwest through the north-central portion of the project area; a Kinder Morgan Texas Pipeline, LLC pipeline corridor passes northeast to southwest through the central portion of the project area; and a transmission line passes northwest to southeast through the center of the project area. In the northwestern corner of the project area, immediately south of Stockdick School Road and east of Clay Road, a large section of land has been cleared and a number of underground utility lines have been installed. In the southwestern corner of the project area, north of Clay Road and east of Peek Road, a wide, contoured drainage channel has been constructed. Finally, Grand Avenue Parkway (SH 99) passes between the two sections of the project area located on either side of the highway. Visibility of the modern ground surface ranged from poor (\u3c20%) in more heavily vegetated areas to excellent (80 to 100%) in cleared areas. In addition to pedestrian walkover, the Texas State Minimum Archeological Survey Standards (TSMASS) call for excavation of a minimum of two shovel tests per 0.4 hectare (1.0 acre) for projects measuring 10.1 hectares (25.0 acres) or less in size plus one additional shovel test per 2.0 hectares (5.0 acres) above 10.1 hectares (25.0 acres). As such, a minimum of 121 shovel tests would be required within the 154.0-hectare (380.6-acre) project area. Horizon excavated a total of 164 shovel tests, thereby exceeding the TSMASS for a project area of this size. Shovel tests typically revealed sandy clay loam to sandy loam sediments overlying sandy clay. Mottling and iron staining were ubiquitous in shovel tests, suggesting that large portions of the project area are likely saturated on a seasonal or perennial basis. It is Horizon’s opinion that shovel testing was capable of fully penetrating sediments with the potential to contain subsurface archeological deposits. No cultural resources of prehistoric or historic age were recorded within the project area during the survey. A modern church or some other type of large community center is present in the northern portion of the project area off the southern side of Stockdick School Road. This structure was built at some time between 1973 and 1981; as such, the structure is not of historic age. Based on the results of the survey-level investigations documented in this report, no potentially significant cultural resources would be affected by the proposed undertaking. In accordance with 36 CFR 800.4, Horizon has made a reasonable and good-faith effort to identify historic properties within the project area. No cultural resources were identified within the project area that meet the criteria for designation as SALs according to 13 TAC 26 or for inclusion in the NRHP under 36 CFR 60.4. Horizon recommends a finding of “no historic properties affected,” and no further archeological work is recommended in connection with the proposed undertaking. However, human burials, both prehistoric and historic, are protected under the Texas Health and Safety Code. In the event that any human remains or burial objects are inadvertently discovered at any point during construction, use, or ongoing maintenance in the project area, even in previously surveyed areas, all work should cease immediately in the vicinity of the inadvertent discovery, and the THC should be notified immediately. Following completion of the project, project records will be permanently curated at the Texas Archeological Research Laboratory (TARL)
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Intensive Cultural Resources Survey for the Vail Divide Southern Extension Storm Water Detention Pond Project, Bee Cave, Travis County, Texas
SFA ScholarWorks, 2020Co-Authors: Owens, Jeffrey D., Dalton, Jesse O.Abstract:Horizon Environmental Services, Inc. (Horizon) was selected by Malone/Wheeler, Inc. on behalf of the Lake Travis Independent School District (LTISD) to conduct an intensive cultural resources inventory and assessment for the proposed construction of an approximately 0.4-hectare (1.0-acre) storm water detention pond. The proposed storm water detention pond would be located off the northwestern side of Hamilton Pool Road (a.k.a. Farm-to-Market Road [FM] 3238) near its intersection with the future right-of-way (ROW) of Vail Divide in western Bee Cave, Travis County, Texas. For purposes of the cultural resources survey, the project area is considered to consist of the entire 0.4-hectare (1.0-acre) storm water detention pond footprint. The proposed undertaking is being sponsored by LTISD, a Political Subdivision of the state of Texas; as such, the project falls under the jurisdiction of the Antiquities Code of Texas. At this time, no federal permits, funding, or licenses have been identified for the project. As the project represents a publicly sponsored undertaking with the potential to impact potentially significant cultural resources, the project sponsor was required to perform a cultural resources inventory and assessment of the project area. On June 24, 2020, Horizon archeological technician Jacob Lyons, under the overall direction of Jeffrey D. Owens, Principal Investigator, performed an intensive cultural resources survey of the project area to locate any cultural resources that potentially would be impacted by the proposed undertaking. The survey was conducted under Texas Antiquities Permit No. 9492. Horizon’s archeologist traversed the 0.4-hectare (1.0-acre) project area and thoroughly inspected the modern ground surface for aboriginal and historic-age cultural resources. The project area is situated on a limestone upland overlooking an unnamed tributary of Hickson Hollow. The project area has been heavily disturbed from prior construction, use, and maintenance of a gravel parking lot, a circular animal pen, several cinder block walls, and a well associated with a business (Bee Cave Acupuncture) that was formerly housed in a residential-style structure just northwest of the project area. Vegetation consisted of live oak, Ashe juniper, acacia, Roosevelt weed, prickly pear cactus, planted ornamental bamboo, and medium-high grasses. Visibility of the modern ground surface ranged from poor to good (30 to 60%) depending on the density of vegetative ground cover. Limestone gravels associated with a former parking lot that occupied most of the project area from the early 2000s until 2010, when the nearby structure that housed the Bee Cave Acupuncture business was abandoned, cover much of the project area. Exposures of limestone bedrock and gravels are present on the modern ground surface in the eastern corner of the project area, which was less disturbed by construction associated with the acupuncture business. In addition to pedestrian walkover, the Texas State Minimum Archeological Survey Standards (TSMASS) call for excavation of a minimum of two shovel tests per 0.4 hectare (1.0 acre) for projects measuring 10.1 hectares (25.0 acres) or less in size plus one additional shovel test per 2.0 hectares (5.0 acres) above 10.1 hectares (25.0 acres). As such, a minimum of two shovel tests would be required within the current 0.4-hectare (1.0-acre) project area. Horizon excavated a total of seven shovel tests during the survey, thereby exceeding the TSMASS requirements for a project area of this size. The pedestrian survey and shovel testing revealed heavily disturbed sediments containing abundant gravels from the former parking lot. Native sediments underlying the parking lot gravels and in less disturbed portions of the project area consist of shallow deposits of gravelly dark brown to pale yellowish-brown marly clay loam overlying either pale gray marly sandy clay or limestone bedrock at depths ranging from 5.0 to 35.0 centimeters (1.9 to 13.8 inches) below surface. It is Horizon’s opinion that shovel testing was capable of fully penetrating sediments with the potential to contain archeological deposits. No cultural resources of prehistoric or historic age were observed on the modern ground surface or within any of the shovel tests excavated within the project area. Prior to the mid-1990s, the project area was characterized by an undeveloped, lightly wooded scrubland setting. Between 1995 and 2002, a large house was constructed just outside the northwestern corner of the project area. It is unknown if this this house initially served as a residence, but by the early 2000s the structure was utilized as a commercial storefront for Bee Cave Acupuncture. At that time, the project area itself was devegetated and graded, and a circular cattle pen, various linear cinder block wall features, a water pump and network of polyvinyl chloride water pipes, and gravel driveways were added. In addition, a stock pond was created to the east of the project area in the eastern corner of the overall parcel. Between 2003 and 2005, the gravel driveways were expanded into a large gravel parking lot that covered most of the project area. The Bee Cave Acupuncture business moved to its current location on Bee Cave Parkway just north of the intersection of State Highway (SH) 71 in 2010, and the original structure has remained unoccupied ever since. All of the cultural features observed within the project area are modern. Based on the results of the survey-level investigations documented in this report, no potentially significant cultural resources would be affected by the proposed undertaking. In accordance with 36 CFR 800.4, Horizon has made a reasonable and good-faith effort to identify historic properties within the project area. No cultural resources were identified that meet the criteria for listing on the NRHP according to 36 CFR 60.4 or for designation as SALs according to 13 TAC 26. Horizon recommends a finding of “no historic properties affected,” and no further archeological work is recommended in connection with the proposed undertaking. However, human burials, both prehistoric and historic, are protected under the Texas Health and Safety Code. In the event that any human remains or burial objects are inadvertently discovered at any point during construction, use, or ongoing maintenance in the project area, even in previously surveyed areas, all work should cease immediately in the vicinity of the inadvertent discovery, and the Texas Historical Commission (THC) should be notified immediately. Following completion of the project, project records will be prepared for permanent curation at the Texas Archeological Research Laboratory (TARL)
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Intensive Cultural Resources Survey of the 6.4-acre Bonnie Reid Tract, Sugar Land, Fort Bend County, Texas
SFA ScholarWorks, 2020Co-Authors: Owens, Jeffrey D., Nunez Kathryn, Dalton, Jesse O.Abstract:Horizon Environmental Services, Inc. (Horizon) was selected by LJA Engineering, Inc. (LJA) on behalf of Fort Bend Levee Improvement District (LID) No. 7 to conduct an intensive cultural resources inventory and assessment of the 2.6-hectare (6.4-acre) Bonnie Reid tract in western Sugar Land, Fort Bend County, Texas. The tract is located at the southwestern corner of the intersection of Pecan Grove and Sartartia Road within an older rural residential Subdivision surrounded by modern residential Subdivisions. A small homestead complex owned and occupied by William and Bonnie Reid until recently is located in the north-central portion of the tract. For purposes of the cultural resources survey, the project area was considered to consist of the entire 2.6-hectare (6.4-acre) tract. The proposed tract would be developed into a storm water detention pond, and the maximum depth of impacts is anticipated to be 3.0 to 4.5 meters (10.0 to 15.0 feet) below surface. The proposed undertaking would be sponsored by Fort Bend LID No. 7, a Political Subdivision of the state of Texas; as such, the project would fall under the jurisdiction of the Antiquities Code of Texas. As the proposed project represents a publicly sponsored undertaking, the project sponsor is required to provide the Texas Historical Commission (THC), which serves as the State Historic Preservation Office (SHPO) for the state of Texas, with an opportunity to review and comment on the project’s potential to adversely affect historic properties listed on or considered eligible for listing on the National Register of Historic Places (NRHP) under the NHPA and/or for designation as State Antiquities Landmarks (SAL) under the Antiquities Code of Texas. At this time, no federal jurisdiction has been identified for the project. On June 10 and 11, 2020, Horizon archeologists Jesse Dalton and Jared Wiersema, under the overall direction of Jeffrey D. Owens, Principal Investigator, performed an intensive cultural resources survey of the project area to locate any cultural resources that potentially would be impacted by the proposed undertaking. The survey was conducted under Texas Antiquities Permit No. 9478. Horizon’s archeologists traversed the project area on foot and thoroughly inspected the modern ground surface for aboriginal and historic-age cultural resources. The project area is situated on the northern terraces of the Brazos River. Vegetation across the majority of the project area consists of an expansive, manicured grassy lawn dotted with occasional live oak trees associated with the Reid homestead in the north-central portion of the tract. The southern portion of the project area is heavily overgrown with dense brambles, vines, and tall grasses. Prior to the purchase and development of the property by the Reid family in 1970, the parcel was part of a larger farm and was characterized by active agricultural fields. Additional disturbances associated with residential landscaping were observed in the north-central portion of the tract surrounding the Reid homestead. Ground surface visibility was generally low (\u3c20%) due to dense vegetative ground cover. In addition to pedestrian walkover, the Texas State Minimum Archeological Survey Standards (TSMASS) require a minimum of two shovel tests per 0.4 hectare (1.0 acre) for projects measuring 10.1 hectares (25.0 acres) or less in size plus one additional shovel test per 2.0 hectares (5.0 acres) beyond the first 10.1 hectares (25.0 acres). As such, a minimum of 13 shovel tests would be required within the 2.6-hectare (6.4-acre) project area. However, the project area is situated on the terraces of the Brazos River and is characterized by the Pledger clay soil unit, a Quaternary-age clayey alluvial sediment with the potential to contain archeological deposits at depths exceeding those that can be reached in shovel tests. As such, Horizon conducted subsurface survey investigations by means of backhoe trenching rather than shovel testing. The TSMASS call for excavation of one backhoe trench per two shovel tests; as such, a minimum of seven backhoe trenches would be required within the 2.6-hectare (6.4-acre) project area. Horizon excavated a total of seven backhoe trenches during the survey, thereby meeting the TSMASS requirements for a project area of this size. Backhoe trenches revealed relatively consistent stratigraphic profiles consisting of a surficial black clay horizon that probably represents a former plowzone underlain by clay sediments ranging in hue from yellowish-red to brownish-red extending to the bases of the trenches. Calcium carbonate filaments increased in density with depth, suggesting that the clayey soil profile has remained relatively stable and been undergoing pedogenetic development for some time. While the full depth of alluvial sediments was not necessarily penetrated in backhoe trenches, the lack of any inclusions or anomalies suggestive of prehistoric cultural activity in trenches suggests that trenching was capable of adequately penetrating sediments with the potential to contain prehistoric and historic-age cultural resources. One newly recorded archeological site, 41FB365, was documented during the cultural resources survey of the Bonnie Reid tract. Site 41FB365 consists of a cluster of late 20th-century buildings located on a small rural residential tract at the corner of Pecan Grove and Sartartia Road in Sugar Land, Fort Bend County, Texas. The homesite was the residence of William and Bonnie Reid, who moved to Sugar Land from Oklahoma after getting married in 1960 to start a family. Currently, the homestead consists of four buildings, including a single-story, brick-clad house (Resource A); an open-bay garage with an attached storage shed (Resource B); a well pump house (Resource C); and a small equipment shed (Resource D). The only historic-age structure on the site is the house, which was constructed in 1970, and the various outbuildings were constructed over the following decade. No other historic-age structures are present on the site, and no archeological deposits associated with any historic-age occupations of the property were observed during the survey. Based on the largely modern character of the architectural features on the homestead, a lack of significant historical associations, and the absence of archeological deposits, the site is recommended as ineligible for inclusion in the NRHP and for designation as an SAL. Based on the results of the survey-level investigations documented in this report, no potentially significant cultural resources would be affected by the proposed undertaking. In accordance with 36 CFR 800.4, Horizon has made a reasonable and good-faith effort to identify historic properties within the project area. No cultural resources were identified within the project area that meet the criteria for designation as SALs according to 13 TAC 26 or for inclusion in the NRHP under 36 CFR 60.4. Horizon recommends a finding of “no historic properties affected,” and no further archeological work is recommended in connection with the proposed undertaking. However, human burials, both prehistoric and historic, are protected under the Texas Health and Safety Code. In the event that any human remains or burial objects are inadvertently discovered at any point during construction, use, or ongoing maintenance in the project area, even in previously surveyed areas, all work should cease immediately in the vicinity of the inadvertent discovery, and the THC should be notified immediately. Following completion of the project, project records will be permanently curated at the Texas Archeological Research Laboratory (TARL)
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Intensive Cultural Resources Survey of the Proposed Dripping Springs Wastewater System Improvements Project (EID 1), Dripping Springs, Hays County, Texas
SFA ScholarWorks, 2020Co-Authors: Sefton, Jahleen E., Owens, Jeffrey D., Dalton, Jesse O.Abstract:Horizon Environmental Services, Inc. (Horizon) was selected by the City of Dripping Springs to conduct an intensive cultural resources inventory survey and assessment of the proposed Dripping Springs Wastewater System Improvements Project (EID 1) in Dripping Springs, Hays County, Texas (USACE Project No. SWF-2020-00075). This survey represents the first phase of a larger project involving the proposed construction of wastewater system improvements in Dripping Springs. The current phase of the project would involve three separate components—the West Interceptor segment, which extends approximately 3.7 kilometers (2.3 miles) in length along Onion Creek west of Farm-to-Market Road (FM) 12; the Reclaimed Water Line segment, which extends approximately 1.3 kilometers (0.8 mile) in length between Needham Road and the intersection of FM 12 and FM 150; an approximately 2.3-hectare (5.7-acre) effluent pond located south of an existing water reclamation facility south of FM 150; and the proposed expansion of the existing water reclamation facility adjacent to the proposed effluent pond, which together cover 3.3 hectares (8.0 acres). The linear rights-of-way (ROW) of proposed pipeline segments would measure a maximum of 30.5 meters (100.0 feet) in width, and the proposed project components would cover a combined area of approximately 18.5 hectares (45.6 acres). The proposed undertaking would be sponsored by the City of Dripping Springs, a public Subdivision of the state of Texas. As a Political Subdivision of the state of Texas, the project would fall under the jurisdiction of the Antiquities Code of Texas (Natural Resources Code, Title 9, Chapter 191). In addition, the project would utilize funding provided by the Clean Water State Revolving Fund (CWSRF) program, which is a federal-state partnership between the US Environmental Protection Agency (US EPA) and the state of Texas. As the US EPA is a federal agency, the project would also fall under the jurisdiction of Section 106 of the National Historic Preservation Act (NHPA) of 1966, as amended. As the proposed project represents a publicly sponsored undertaking, the project sponsor is required to provide the Texas Historical Commission (THC), which serves as the State Historic Preservation Office (SHPO) for the state of Texas, with an opportunity to review and comment on the project’s potential to adversely affect historic properties listed on or considered eligible for listing on the National Register of Historic Places (NRHP) under the NHPA and for designation as State Antiquities Landmarks (SAL) under the Antiquities Code of Texas. From October 1 to 3, on November 4, and on November 22, 2019, Horizon archeologists Jesse Dalton, McKinzie Froese, Amy Goldstein, Elizabeth Sefton, and Jared Wiersema conducted an intensive cultural resources survey of the project area, including pedestrian walkover with shovel testing and backhoe trenching. The survey was performed under the supervision of Jeffrey D. Owens, who served as Principal Investigator, under Texas Antiquities Permit No. 9114. The purpose of the survey was to locate any significant cultural resources that potentially would be impacted by the proposed undertaking. Horizon’s archeologists traversed the project area on foot and thoroughly inspected the modern ground surface for aboriginal and historic-age cultural resources. Overall, vegetation across the entire project area generally consisted of short- to medium-length grasses interspersed with mature live oak and cedar trees, which afforded fair to good ground surface visibility (30 to 60%). Within the riparian zone of Onion Creek, vegetation consisted of tall, dense grass and mature honey mesquite, cedar, live oak, and hackberry trees, which provided poor ground surface visibility (\u3c30%). The West Interceptor segment runs along the gravelly terraces of Onion Creek. Topographically, this segment of the project area consists of steep limestone steps and rocky outcrops that give way to flat, open fields. The proposed interceptor crosses Onion Creek at three locations, and the lower stream terraces of the creek have extensive gravel bars and debris associated with high-energy flooding. Soil profiles typically consist of a shallow A horizon of hard, calcareous clay loam underlain by dense gravelly deposits; however, in the southeastern portion of the West Interceptor, deeper clayey loam alluvium underlain by limestone bedrock was encountered. The Reclaimed Water Line segment traverses the west-facing hillslopes of upland ridges east of Onion Creek. Approximately the southeastern half of this segment of the project area would be constructed within the existing ROW of FM 12 west of the roadway, and construction, use, and ongoing maintenance of the roadway and associated facilities has resulted in extensive prior disturbances. Evidence of ground disturbance resulting from land clearing for housing developments and a transmission line were also noted within the northwestern portion of the proposed Reclaimed Water Line segment. The far northwestern end of the proposed Reclaimed Water Line segment skims the edge of the floodplain associated with a tributary of Onion Creek. Sediments on the terraces of this stream channel consist of calcareous loamy alluvial deposits, while soils across the upland portions of the segment consist of shallow deposits of gravelly clay and clay loam underlain by naturally degrading limestone bedrock. The water reclamation facility expansion and effluent pond segment are located on the upper terraces northeast of Onion Creek. The water reclamation facility is an existing industrial facility surrounded by septic fields, and prior disturbances from construction, use, and ongoing maintenance of the facility are extensive. The proposed expansion area to the north of the existing facility is currently utilized as a septic field. Sediments within this segment of the project area consist of shallow, gravelly, calcareous loamy to clayey loam alluvium underlain by naturally degrading limestone bedrock. In addition to a pedestrian walkover, the Texas State Minimum Archeological Survey Standards (TSMASS) require a minimum of 16 subsurface shovel tests per 1.6 kilometers (1.0 mile) for each 30.5-meter- (100.0-foot-) wide transect (or fraction thereof) for linear surveys unless field conditions warrant more shovel tests (e.g., in cultural high-probability areas) or fewer shovel tests (e.g., on steep slopes, in areas with excellent ground surface visibility). For block-area surveys, the TSMASS require two shovel tests per 0.4 hectare (1.0 acre) for project areas between 1.2 and 4.0 hectares (3.0 and 10.0 acres) in size. As such, a minimum of 37 shovel tests would be required within the West Interceptor segment, 13 shovel tests would be required within the Reclaimed Water Line segment, and 16 shovel tests would be required within the proposed water reclamation facility expansion and effluent pond area, for a total of 66 shovel tests for the project area as a whole. Horizon excavated a total of 106 shovel tests during the survey, including 82 shovel tests within the West Interceptor segment, 13 shovel tests within the Reclaimed Water Line segment, and 11 shovel tests within the facility expansion and effluent pond area. The shovel tests within the proposed facility expansion and effluent pond area were not all excavated directly within the final proposed construction footprint as the boundaries of this portion of the project area had not been firmly determined at the time of the survey, and no shovel tests were excavated within the existing water reclamation facility due to the extent of observable prior disturbances within this area. Overall, Horizon exceeded the minimum number of shovel tests required for the project area as a whole, and it is Horizon’s opinion that shovel testing was capable of fully penetrating sediments with the potential to contain subsurface archeological deposits (with the exception noted below where backhoe trenches were excavated along a portion of the West Interceptor segment). In addition to shovel testing, Horizon excavated four backhoe trenches within the southeastern portion of the proposed West Interceptor segment. The trenches were excavated at roughly 100.0-meter (328.0-foot) intervals along the proposed centerline to depths ranging from 105.0 to 350.0 centimeters (41.3 to 137.8 inches) below surface. Sediments observed within trench profiles typically consisted of moderately deep deposits of grayish-brown fine clay loam over yellowish-brown fine sandy loam. Dense deposits of river cobbles and/or naturally degrading limestone bedrock were observed at the base of three of the four trenches, and it is Horizon’s opinion that backhoe trenching was capable of fully penetrating sediments with the potential to contain archeological deposits. One chert flake was recorded in a shovel test (ST AG30) at a depth of 0.0 to 30.0 centimeters (0.0 to 11.8 inches) below surface at the far northwestern end of the West Interceptor project segment. Supplemental delineation shovel tests excavated around this initial discovery failed to produce any additional evidence of prehistoric cultural activity at this location, so the chert flake was recorded as an isolated artifact occurrence but was not documented as an archeological site. No other cultural resources of prehistoric or historic age were recorded within the project area during the pedestrian survey, shovel testing, or backhoe trenching. Based on the results of the survey-level investigations documented in this report, no cultural resources would be affected by the proposed undertaking. In accordance with 36 CFR 800.4, Horizon has made a reasonable and good-faith effort to identify historic properties within the project area. No cultural resources were identified within the project area that meet the criteria for designation as SALs according to 13 TAC 26 or for inclusion in the NRHP according to 36 CFR 60.4. Horizon recommends a finding of “no historic properties affected,” and no further archeological work is recommended in connection with the proposed undertaking. However, human burials, both prehistoric and historic, are protected under the Texas Health and Safety Code. In the event that any human remains or burial objects are inadvertently discovered at any point during construction, use, or ongoing maintenance in the project area, even in previously surveyed areas, all work should cease immediately in the vicinity of the inadvertent discovery, and the THC should be notified immediately. Following completion of the project, all project records will be prepared for permanent curation at the Texas Archeological Research Laboratory (TARL)
Ellen P. Aprill - One of the best experts on this subject based on the ideXlab platform.
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Excluding the Income of State and Local Governments: The Need for Congressional Action
2018Co-Authors: Ellen P. AprillAbstract:This article, although more than 25 years old, has renewed importance in light of the 2017 tax legislation. The 2017 legislation introduced limits on the deductibility of state and local taxes as well as an excise tax applicable to various exempt organizations, including some governmental affiliates, on certain kinds of excess compensation. These legislative changes have focused attention on how the federal government categorizes state governmental entities and their affiliates. The many potential categories include states, their Political Subdivisions, integral parts of states or Political Subdivisions, governmental instrumentalities, entities with income derived from an essential governmental function, and governmental affiliates exempt under section 501(c)(3). The article describes the criteria for and the implications of each of these categories, including their eligibility for deductible contributions. It examines the legislative history of these various statutory provisions as well as administrative and judicial interpretations of them. It explains that, in exempting the income of states and Political Subdivisions, the Internal Revenue Service relies on an implied statutory immunity rather than on the now discredited doctrine of a constitutional intergovernmental immunity. The contrast between this implied statutory immunity and the history of section 115(1), the provision that excludes “income derived from . . . the exercise of any essential governmental function and accruing to a State or any Political Subdivision thereof,” demonstrates how the understanding of the federal taxing power over states, their Political Subdivisions, and their affiliates has changed dramatically since the early 20th century. The constitutional, statutory, administrative, and judicial issues raised by this piece can usefully inform current debates, such as proposals to allow credits against state taxes for contributions to charitable programs established by state governments.
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Section 4960’s Failure to Tax Governmental Entities
2018Co-Authors: Ellen P. AprillAbstract:New section 4960 imposes a 21% excise tax on certain organizations not subject to income tax, including organizations exempt under section 501(c)(3) and those for which income is excluded from taxation under section 115(1), if any of their five highest paid employees have annual compensation above $1 million. (It also imposes the tax on “excess parachute payments,” as defined in the statute.) In December, 2017, I wrote a blog post on “Medium: Whatever Source Derived,” arguing that, whatever the Congressional intent, the language of the statute did not reach states, their Political Subdivisions or integral parts of either. In particular, the post contrasted the basis of income tax exemption for states and their Political Subdivision to entities that fall under section 115(1). Section 115(1) excludes from gross income “income derived from...the exercise of essential governmental function and accruing to a state or any Political Subdivision thereof.” This provision, however, is not the basis for exempting from income tax the income of states and their Political Subdivisions. The IRS has long exempted states and their Political Subdivisions from income tax under a doctrine of implied statutory immunity, not under section 115(1). For many decades, the IRS has interpreted section 115(1) not refer to states and their Political Subdivisions, but only to organizations that are organized separately from a state or Political Subdivision and meet certain other requirements. The blog post is reprinted here as Part I of this piece. Professor Douglas Kahn of University of Michigan took issue with my position on the basis that the new section does apply to section 501(c)(3) organizations and that state universities are educational institutions. I responded to him in an article originally published in Tax Notes that constitutes Part II of this piece. It corrects an error in my earlier piece by acknowledging that some state universities have indeed received recognition under section 501(c)(3) from the IRS. Not all, however, have done so. Thus, I assert again my position that new section 4960 does not by its terms apply to entities free of income tax by virtue of their status as a state, Political Subdivision, or an integral part of either. Moreover, as the piece explains, those state universities that have received a section 501(c)(3) determination can, if they choose, relinquish their section 501(c)(3) status. The piece discusses the various options available to tax authorities and public universities confronting this new excise tax. Since publication of these pieces, Treasury and the Joint Committee of Taxation have acknowledged that a technical correction is need in order for section 4960 to apply to all governmental entities, as Congress intended. Technical corrections, however, are not anticipated any time soon. Even though not all public universities and other governmental entities are subject to the strictures of section 4960, guidance could specify that its excise tax applies to those that have sought section 501(c)(3) status. On the other hand, until there is a technical correction, out of considerations of federal-state comity and to avoid differential treatment of various state universities and other governmental entities, Treasury and the IRS could decide that such governmental entities with 501(c)(3) status are to be treated as exempt from this excise tax, on the model of the special treatment they currently receive in being exempt from the Form 990 filing requirement and from the intermediate sanctions excise tax regime. I do not envy Treasury and the IRS in having to make this difficult choice.
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A Typology of Governments and Governmental Affiliates
SSRN Electronic Journal, 2013Co-Authors: Ellen P. AprillAbstract:There is much confusion as to how states and their Political Subdivisions are categorized and treated for purposes of the federal income tax. Many assume that a constitutional doctrine of intergovernmental tax immunity requires the federal government to refrain from taxing states and their Political Subdivisions. However, Supreme Court in cases such as New York v. United States, 326 U.S. 572 (1946), and Garcia v. San Antonio Transportation District, 469 U.S. 528 (1985), has rejected this position. Others believe that these governmental institutions are exempt under Internal Revenue Code (IRC section 115(1), which excludes “income derived from any public utility or the exercise of any essential governmental function and accruing to a State or Political Subdivision thereof, or the District of Columbia.” In fact, however, the IRS does not treat IRC section 115 as the basis for exempting states and their Political Subdivisions. The IRS has concluded that the income of states and their Political Subdivisions are exempted from federal income tax under an implied statutory immunity. That is, these institutions are exempt from tax because, in general, no provision of the Internal Revenue Code taxes them at such. (There is one exception. IRC section 511(a)(2)(B) subjects state colleges and universities, however organized, to the unrelated business income tax.) Moreover, any institution that is an integral part of a state or local government is also free of income tax under this implied statutory immunity. To be an integral part, the institution must be subject to control or substantial involvement by governmental officers and have a financial commitment from a state or Political Subdivision. The IRS interprets IRC section 115 as applying to the income of an entity that is separate and distinct from a state or its Political Subdivision, that saves or makes money for the state or Political Subdivision, and whose assets revert to the state or Political Subdivision upon dissolution. In addition, the IRS balances public and private balancing in determining qualification for IRC section 115. In the view of the IRS, too much private benefit prevents IRC section 115 status, in the view of the IRS. As an example or entities that do qualify, many private ruling recognize IRC 115 status for pooled insurance funds of various Political Subdivisions. For particular purposes – special rules for social security tax and federal unemployment tax and eligibility for governmental pension plans, the Internal Revenue Code refers to the category of “instrumentality” of a state government or Political Subdivision. Status as an instrumentality does not in and of itself qualify an institution for exemption. Nonetheless, institutions that qualify as instrumentalities also generally qualify as IRC section 115 entities, although the IRS applies a different set of tests to these two categories. To complicate these matters further, a governmental institution can in many cases choose to quality for exemption under various categories of IRC section 501(c), including 501(c)(3). To qualify as an IRC section 501(c)(3) entity, the governmental institution must be deemed to be a separate entity and be a clear counterpart of a charitable, educational, or similar organization. Governmental institutions may choose to qualify under IRC section 501(c)(3) for a variety of reasons, including easier fundraising and eligibility for property tax exemptions. These five categories – Political Subdivision, integral part of a state or Political Subdivision, section IRC 115 entity, instrumentality, and IRC section 501(c) organization – form a complicated patchwork. A fire department, public library, hospital, or college may fall into one or several of these categories. Two articles of mine have discussed in detail the federal income tax treatment governments and their affiliates: The Integral, the Essential, and the Instrumental: Federal Income Tax Treatment of Governmental Affiliates, 23 J. Corp l L. 803 (1998), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=924607 and Excluding the Income of State and Local Governments: The Need for Congressional Action, 26 Ga. L. Rev. 421 (1992), reprinted at 6 Exempt Org. Tax Rev. 691 (1992). Here, I offer, for easy reference, a one-page table summarizing filing requirements, charitable percentage limits, key authorities, and qualification requirements for each of these five categories.
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The Integral, the Essential and the Instrumental: Federal Income Tax Treatment of Governmental Affiliates
2006Co-Authors: Ellen P. AprillAbstract:No provision of the Internal Revenue Code explicitly exempts states and their Political Subdivisions from federal income taxation. The IRS has concluded that states and their Political Subdivisions - which the IRS defines as entities with the sovereign powers of taxation, eminent domain, and police power - are free from federal income tax under an implied statutory immunity. That is, states and their Political subsidiaries are exempt because no provision of the Internal Revenue Code taxes them as such. States and their Political Subdivisions, however, are not the only governmental organizations that qualify for exemption. According to the IRS, if an organization or enterprise can qualify as an integral part of a state or Political Subdivision, it is also exempt on the basis of the implied statutory immunity. In addition, section 115, a relatively obscure provision of the Internal Revenue Code, excludes from federal tax "income derived from any public utility or the exercise of any essential governmental function and accruing to a State or any Political Subdivision thereof, or the District of Columbia." As interpreted by the IRS, however, section 115 does not afford the basis for exempting states and their Political Subdivisions from federal income tax. The IRS instead has concluded that section 115 applies to the income of an entity separate from a state or its Political Subdivision. For particular purposes, the IRS and the Internal Revenue Code also recognize "instrumentality" as a category of entities separate from, but affiliated with, state and local governments. Unlike section 115 entities, instrumentalities are not exempt from tax by virtue of their status, although they may qualify for exclusion of their income under section 115. Indeed, the tests for status as a section 115 entity and those for status as an instrumentality exhibit striking similarities. Thus, rarely would an instrumentality fail to qualify as a section 115 entity. This Article examines the tests for integral parts and for instrumentalities as well as those for section 115. It argues that the IRS could, and should, rationalize federal income tax treatment of governmental affiliates by promulgating regulations applicable to integral parts, section 115 entities, and instrumentalities. The long-standing tests for status as an instrumentality along with the statutory criteria for exemption of Workers' Compensation Act companies provide the model for the suggested regulations.
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The Integral, the Essential, and the Instrumental: Federal Income Tax Treatment of Governmental Affiliates
The Journal of Corporation Law, 1998Co-Authors: Ellen P. AprillAbstract:Ellen P. Aprill* I. INTRODUCTION A variety of entities enjoy exemption from federal taxation. Section 501(c) of the Internal Revenue Code, for example, exempts not only charitable, educational, religious, and scientific organizations under subsection 501(c)(3), but more than twenty additional categories covering such varied entities as labor unions, social clubs, and even cemeteries.1 Yet no provision of the Internal Revenue Code explicitly exempts states and their Political Subdivisions from federal income taxation. In our federalist system, "an indestructible Union, composed of indestructible States,"2 we would expect these governmental entities to be exempted from federal income tax, and the Internal Revenue Service (IRS) shares these expectations. The IRS has concluded that states and their Political Subdivisions-which the IRS defines as entities with the sovereign powers of taxation, eminent domain, and police power3-are free from federal income tax under an implied statutory immunity.4 That is, states and their Political subsidiaries are exempt because no provision of the Internal Revenue Code taxes them as such. States and their Political Subdivisions, however, are not the only governmental organizations that qualify for exemption. According to the IRS, if an organization or enterprise can qualify as an integral part of a state or Political Subdivision, it is also exempt on the basis of the implied statutory immunity.5 In addition, section 115, a relatively obscure provision of the Internal Revenue Code, excludes from federal tax "income derived from any public utility or the exercise of any essential governmental function and accruing to a State or any Political Subdivision thereof, or the District of Columbia."6 As interpreted by the IRS, however, section 115 does not afford the basis for exempting states and their Political Subdivisions from federal income tax. The IRS instead has concluded that section 115 applies to the income of an entity separate from a state or its Political Subdivision.7 Thus, the income of certain enterprises affiliated with state or local governments (along with state and local governments themselves) is exempt from federal income tax, either as integral parts of a state or Political Subdivision or under section 115 (as "section 1 IS entities"). IRS rulings recognize the close relationship between integral parts and section 115 entities by testing particular entities first under one doctrine and then under the other.8 At the same time, the IRS applies very different tests to the two categories. For example, examination of corporate governance is key to analysis under the integral part doctrine, but plays no role in section 1 IS rulings. For analysis under the integral part doctrine, the IRS emphasizes the initial source of funds. In contrast, for section 115 it considers the destination of funds upon dissolution. Further, the IRS balances private and public benefits for entities seeking section 115 status, but not for those seeking status as integral parts. For particular purposes, the IRS and the Internal Revenue Code also recognize "instrumentality" as a category of entities separate from, but affiliated with, state and local governments.9 Unlike section 115 entities, instrumentalities are not exempt from tax by virtue of their status, although they may qualify for exclusion of their income under section 115.(10) Indeed, the tests for status as a section 115 entity and those for status as an instrumentality exhibit striking similarities.11 Thus, rarely would an instrumentality fail to qualify as a section 115 entity. Moreover, both instrumentalities and section 115 entities can qualify for exemption under various categories of section 501(c), including section 501(c)(3). Other entities affiliated with governments may also qualify for exempt status under section 501(c)(3). To do so, the governmental institution must be a separate entity and a clear counterpart of a charitable, religious, or similar organization. …
Brian P. Keenan - One of the best experts on this subject based on the ideXlab platform.
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Subdivisions, Standing and the Supremacy Clause: Can a Political Subdivision Sue Its Parent State Under Federal Law
Michigan Law Review, 2005Co-Authors: Brian P. KeenanAbstract:INTRODUCTION 1899 I. SUITS BASED ON THE SUPREMACY CLAUSE ARE PERMITTED BECAUSE THE CASES IN THE TRENTON LINE WERE LIMITED TO THE CONSTITUTIONAL CLAUSES IN Q U ESTION 1905 II. EACH SUIT BY A Political Subdivision AGAINST ITS PARENT STATE SHOULD BE DECIDED ON THE CONSTITUTIONAL MERITS, NOT ON STANDING 1907 III. FEDERALISM SUPPORTS ALLOWING SUITS 1913 IV. A Subdivision'S NEED TO PROTECT ITSELF SUPPORTS ALLOWING SUITS 1919 V. THE NATURE OF THE SUPREMACY CLAUSE ALONE IS THE PROPER RATIONALE FOR ALLOWING Political SubdivisionS TO SUE THEIR PARENT STATES 1923 A. The Tenth Circuit's Rationale Misreads the Precedent.... 1923 B. The Fifth Circuit Comes Closer to the Mark, but Still Falls Short 1925 C. The Supremacy Clause Itself Provides the Rationale for Suits 1927 CONCLUSION 1928
Owens, Jeffrey D. - One of the best experts on this subject based on the ideXlab platform.
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Intensive Cultural Resources Survey of the 380.6-Acre Stockdick School Road Tract, Katy, Harris County, Texas
SFA ScholarWorks, 2020Co-Authors: Owens, Jeffrey D., Bludau, Charles E., Dalton, Jesse O.Abstract:Horizon Environmental Services, Inc. (Horizon) was selected by Berg-Oliver Associates, Inc. (BOA) on behalf of the Harris County Flood Control District (HCFCD) to conduct a cultural resources inventory and assessment for the proposed Stockdick School Road Project in Katy, Harris County, Texas (HCFCD Project No. U501-07-00-E001). The proposed undertaking would consist of constructing various storm water detention ponds and other drainage improvements within a non-contiguous 154.0-hectare (380.6-acre) tract located off either side of Grand Avenue Parkway (State Highway [SH] 99) in Katy, Harris County, Texas. The tract is bounded on the north by Stockdick School Road, on the west by Peek Road, on the south by Clay Road, and on the east by the Vineyard Meadow Tuscany residential Subdivision. Mayde Creek flows southeastward through the tract. For purposes of the cultural resources survey, the project area is assumed to consist of the entire 154.0-hectare (380.6-acre) tract. The proposed undertaking is being sponsored by HCFCD, a Political Subdivision of the state of Texas; as such, the project would fall under the jurisdiction of the Antiquities Code of Texas. In addition, the project would require the use of federal permits issued by the US Army Corps of Engineers (USACE), Galveston District, under Section 404 of the Clean Water Act (CWA). As such, those portions of the overall project area that fall within the federal permit area would also fall under the jurisdiction of Section 106 of the National Historic Preservation Act (NHPA). As the proposed project represents a publicly sponsored undertaking, the project sponsor is required to provide the applicable federal agencies, in this case the USACE, and the Texas Historical Commission (THC), which serves as the State Historic Preservation Office (SHPO) for the state of Texas, with an opportunity to review and comment on the project’s potential to adversely affect historic properties listed on or considered eligible for listing on the National Register of Historic Places (NRHP) under the NHPA and/or for designation as State Antiquities Landmarks (SAL) under the Antiquities Code of Texas. Between April 30 and May 5, 2020, Horizon archeologists Charles E. Bludau, Jr. and Luis Gonzalez conducted an intensive cultural resources survey of the project area. Jeffrey D. Owens acted as Principal Investigator, and the survey was conducted under Texas Antiquities Permit No. 9409. The purpose of the survey was to locate any significant cultural resources that potentially would be impacted by the proposed undertaking. Horizon’s archeologists traversed the project area and thoroughly inspected the modern ground surface for aboriginal and historic-age cultural resources. The project area consists of a vast tract that is roughly bisected by Mayde Creek, which flows southeastward through the approximate middle of the tract. Areas adjacent to the creek were largely undeveloped and covered in dense hardwood forests with a thick understory of shrubs, grasses, forbs, brambles, vines, and various grasses. Vegetation in the more open areas consisted of dense pasture grasses with isolated copses of hardwood trees. Whereas most of the project area is undeveloped and appears to be largely intact, various disturbances were observed. An Enterprise Crude Pipeline, LLC pipeline corridor passes northeast to southwest through the north-central portion of the project area; a Kinder Morgan Texas Pipeline, LLC pipeline corridor passes northeast to southwest through the central portion of the project area; and a transmission line passes northwest to southeast through the center of the project area. In the northwestern corner of the project area, immediately south of Stockdick School Road and east of Clay Road, a large section of land has been cleared and a number of underground utility lines have been installed. In the southwestern corner of the project area, north of Clay Road and east of Peek Road, a wide, contoured drainage channel has been constructed. Finally, Grand Avenue Parkway (SH 99) passes between the two sections of the project area located on either side of the highway. Visibility of the modern ground surface ranged from poor (\u3c20%) in more heavily vegetated areas to excellent (80 to 100%) in cleared areas. In addition to pedestrian walkover, the Texas State Minimum Archeological Survey Standards (TSMASS) call for excavation of a minimum of two shovel tests per 0.4 hectare (1.0 acre) for projects measuring 10.1 hectares (25.0 acres) or less in size plus one additional shovel test per 2.0 hectares (5.0 acres) above 10.1 hectares (25.0 acres). As such, a minimum of 121 shovel tests would be required within the 154.0-hectare (380.6-acre) project area. Horizon excavated a total of 164 shovel tests, thereby exceeding the TSMASS for a project area of this size. Shovel tests typically revealed sandy clay loam to sandy loam sediments overlying sandy clay. Mottling and iron staining were ubiquitous in shovel tests, suggesting that large portions of the project area are likely saturated on a seasonal or perennial basis. It is Horizon’s opinion that shovel testing was capable of fully penetrating sediments with the potential to contain subsurface archeological deposits. No cultural resources of prehistoric or historic age were recorded within the project area during the survey. A modern church or some other type of large community center is present in the northern portion of the project area off the southern side of Stockdick School Road. This structure was built at some time between 1973 and 1981; as such, the structure is not of historic age. Based on the results of the survey-level investigations documented in this report, no potentially significant cultural resources would be affected by the proposed undertaking. In accordance with 36 CFR 800.4, Horizon has made a reasonable and good-faith effort to identify historic properties within the project area. No cultural resources were identified within the project area that meet the criteria for designation as SALs according to 13 TAC 26 or for inclusion in the NRHP under 36 CFR 60.4. Horizon recommends a finding of “no historic properties affected,” and no further archeological work is recommended in connection with the proposed undertaking. However, human burials, both prehistoric and historic, are protected under the Texas Health and Safety Code. In the event that any human remains or burial objects are inadvertently discovered at any point during construction, use, or ongoing maintenance in the project area, even in previously surveyed areas, all work should cease immediately in the vicinity of the inadvertent discovery, and the THC should be notified immediately. Following completion of the project, project records will be permanently curated at the Texas Archeological Research Laboratory (TARL)
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Intensive Cultural Resources Survey for the Vail Divide Southern Extension Storm Water Detention Pond Project, Bee Cave, Travis County, Texas
SFA ScholarWorks, 2020Co-Authors: Owens, Jeffrey D., Dalton, Jesse O.Abstract:Horizon Environmental Services, Inc. (Horizon) was selected by Malone/Wheeler, Inc. on behalf of the Lake Travis Independent School District (LTISD) to conduct an intensive cultural resources inventory and assessment for the proposed construction of an approximately 0.4-hectare (1.0-acre) storm water detention pond. The proposed storm water detention pond would be located off the northwestern side of Hamilton Pool Road (a.k.a. Farm-to-Market Road [FM] 3238) near its intersection with the future right-of-way (ROW) of Vail Divide in western Bee Cave, Travis County, Texas. For purposes of the cultural resources survey, the project area is considered to consist of the entire 0.4-hectare (1.0-acre) storm water detention pond footprint. The proposed undertaking is being sponsored by LTISD, a Political Subdivision of the state of Texas; as such, the project falls under the jurisdiction of the Antiquities Code of Texas. At this time, no federal permits, funding, or licenses have been identified for the project. As the project represents a publicly sponsored undertaking with the potential to impact potentially significant cultural resources, the project sponsor was required to perform a cultural resources inventory and assessment of the project area. On June 24, 2020, Horizon archeological technician Jacob Lyons, under the overall direction of Jeffrey D. Owens, Principal Investigator, performed an intensive cultural resources survey of the project area to locate any cultural resources that potentially would be impacted by the proposed undertaking. The survey was conducted under Texas Antiquities Permit No. 9492. Horizon’s archeologist traversed the 0.4-hectare (1.0-acre) project area and thoroughly inspected the modern ground surface for aboriginal and historic-age cultural resources. The project area is situated on a limestone upland overlooking an unnamed tributary of Hickson Hollow. The project area has been heavily disturbed from prior construction, use, and maintenance of a gravel parking lot, a circular animal pen, several cinder block walls, and a well associated with a business (Bee Cave Acupuncture) that was formerly housed in a residential-style structure just northwest of the project area. Vegetation consisted of live oak, Ashe juniper, acacia, Roosevelt weed, prickly pear cactus, planted ornamental bamboo, and medium-high grasses. Visibility of the modern ground surface ranged from poor to good (30 to 60%) depending on the density of vegetative ground cover. Limestone gravels associated with a former parking lot that occupied most of the project area from the early 2000s until 2010, when the nearby structure that housed the Bee Cave Acupuncture business was abandoned, cover much of the project area. Exposures of limestone bedrock and gravels are present on the modern ground surface in the eastern corner of the project area, which was less disturbed by construction associated with the acupuncture business. In addition to pedestrian walkover, the Texas State Minimum Archeological Survey Standards (TSMASS) call for excavation of a minimum of two shovel tests per 0.4 hectare (1.0 acre) for projects measuring 10.1 hectares (25.0 acres) or less in size plus one additional shovel test per 2.0 hectares (5.0 acres) above 10.1 hectares (25.0 acres). As such, a minimum of two shovel tests would be required within the current 0.4-hectare (1.0-acre) project area. Horizon excavated a total of seven shovel tests during the survey, thereby exceeding the TSMASS requirements for a project area of this size. The pedestrian survey and shovel testing revealed heavily disturbed sediments containing abundant gravels from the former parking lot. Native sediments underlying the parking lot gravels and in less disturbed portions of the project area consist of shallow deposits of gravelly dark brown to pale yellowish-brown marly clay loam overlying either pale gray marly sandy clay or limestone bedrock at depths ranging from 5.0 to 35.0 centimeters (1.9 to 13.8 inches) below surface. It is Horizon’s opinion that shovel testing was capable of fully penetrating sediments with the potential to contain archeological deposits. No cultural resources of prehistoric or historic age were observed on the modern ground surface or within any of the shovel tests excavated within the project area. Prior to the mid-1990s, the project area was characterized by an undeveloped, lightly wooded scrubland setting. Between 1995 and 2002, a large house was constructed just outside the northwestern corner of the project area. It is unknown if this this house initially served as a residence, but by the early 2000s the structure was utilized as a commercial storefront for Bee Cave Acupuncture. At that time, the project area itself was devegetated and graded, and a circular cattle pen, various linear cinder block wall features, a water pump and network of polyvinyl chloride water pipes, and gravel driveways were added. In addition, a stock pond was created to the east of the project area in the eastern corner of the overall parcel. Between 2003 and 2005, the gravel driveways were expanded into a large gravel parking lot that covered most of the project area. The Bee Cave Acupuncture business moved to its current location on Bee Cave Parkway just north of the intersection of State Highway (SH) 71 in 2010, and the original structure has remained unoccupied ever since. All of the cultural features observed within the project area are modern. Based on the results of the survey-level investigations documented in this report, no potentially significant cultural resources would be affected by the proposed undertaking. In accordance with 36 CFR 800.4, Horizon has made a reasonable and good-faith effort to identify historic properties within the project area. No cultural resources were identified that meet the criteria for listing on the NRHP according to 36 CFR 60.4 or for designation as SALs according to 13 TAC 26. Horizon recommends a finding of “no historic properties affected,” and no further archeological work is recommended in connection with the proposed undertaking. However, human burials, both prehistoric and historic, are protected under the Texas Health and Safety Code. In the event that any human remains or burial objects are inadvertently discovered at any point during construction, use, or ongoing maintenance in the project area, even in previously surveyed areas, all work should cease immediately in the vicinity of the inadvertent discovery, and the Texas Historical Commission (THC) should be notified immediately. Following completion of the project, project records will be prepared for permanent curation at the Texas Archeological Research Laboratory (TARL)
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Intensive Cultural Resources Survey of the 6.4-acre Bonnie Reid Tract, Sugar Land, Fort Bend County, Texas
SFA ScholarWorks, 2020Co-Authors: Owens, Jeffrey D., Nunez Kathryn, Dalton, Jesse O.Abstract:Horizon Environmental Services, Inc. (Horizon) was selected by LJA Engineering, Inc. (LJA) on behalf of Fort Bend Levee Improvement District (LID) No. 7 to conduct an intensive cultural resources inventory and assessment of the 2.6-hectare (6.4-acre) Bonnie Reid tract in western Sugar Land, Fort Bend County, Texas. The tract is located at the southwestern corner of the intersection of Pecan Grove and Sartartia Road within an older rural residential Subdivision surrounded by modern residential Subdivisions. A small homestead complex owned and occupied by William and Bonnie Reid until recently is located in the north-central portion of the tract. For purposes of the cultural resources survey, the project area was considered to consist of the entire 2.6-hectare (6.4-acre) tract. The proposed tract would be developed into a storm water detention pond, and the maximum depth of impacts is anticipated to be 3.0 to 4.5 meters (10.0 to 15.0 feet) below surface. The proposed undertaking would be sponsored by Fort Bend LID No. 7, a Political Subdivision of the state of Texas; as such, the project would fall under the jurisdiction of the Antiquities Code of Texas. As the proposed project represents a publicly sponsored undertaking, the project sponsor is required to provide the Texas Historical Commission (THC), which serves as the State Historic Preservation Office (SHPO) for the state of Texas, with an opportunity to review and comment on the project’s potential to adversely affect historic properties listed on or considered eligible for listing on the National Register of Historic Places (NRHP) under the NHPA and/or for designation as State Antiquities Landmarks (SAL) under the Antiquities Code of Texas. At this time, no federal jurisdiction has been identified for the project. On June 10 and 11, 2020, Horizon archeologists Jesse Dalton and Jared Wiersema, under the overall direction of Jeffrey D. Owens, Principal Investigator, performed an intensive cultural resources survey of the project area to locate any cultural resources that potentially would be impacted by the proposed undertaking. The survey was conducted under Texas Antiquities Permit No. 9478. Horizon’s archeologists traversed the project area on foot and thoroughly inspected the modern ground surface for aboriginal and historic-age cultural resources. The project area is situated on the northern terraces of the Brazos River. Vegetation across the majority of the project area consists of an expansive, manicured grassy lawn dotted with occasional live oak trees associated with the Reid homestead in the north-central portion of the tract. The southern portion of the project area is heavily overgrown with dense brambles, vines, and tall grasses. Prior to the purchase and development of the property by the Reid family in 1970, the parcel was part of a larger farm and was characterized by active agricultural fields. Additional disturbances associated with residential landscaping were observed in the north-central portion of the tract surrounding the Reid homestead. Ground surface visibility was generally low (\u3c20%) due to dense vegetative ground cover. In addition to pedestrian walkover, the Texas State Minimum Archeological Survey Standards (TSMASS) require a minimum of two shovel tests per 0.4 hectare (1.0 acre) for projects measuring 10.1 hectares (25.0 acres) or less in size plus one additional shovel test per 2.0 hectares (5.0 acres) beyond the first 10.1 hectares (25.0 acres). As such, a minimum of 13 shovel tests would be required within the 2.6-hectare (6.4-acre) project area. However, the project area is situated on the terraces of the Brazos River and is characterized by the Pledger clay soil unit, a Quaternary-age clayey alluvial sediment with the potential to contain archeological deposits at depths exceeding those that can be reached in shovel tests. As such, Horizon conducted subsurface survey investigations by means of backhoe trenching rather than shovel testing. The TSMASS call for excavation of one backhoe trench per two shovel tests; as such, a minimum of seven backhoe trenches would be required within the 2.6-hectare (6.4-acre) project area. Horizon excavated a total of seven backhoe trenches during the survey, thereby meeting the TSMASS requirements for a project area of this size. Backhoe trenches revealed relatively consistent stratigraphic profiles consisting of a surficial black clay horizon that probably represents a former plowzone underlain by clay sediments ranging in hue from yellowish-red to brownish-red extending to the bases of the trenches. Calcium carbonate filaments increased in density with depth, suggesting that the clayey soil profile has remained relatively stable and been undergoing pedogenetic development for some time. While the full depth of alluvial sediments was not necessarily penetrated in backhoe trenches, the lack of any inclusions or anomalies suggestive of prehistoric cultural activity in trenches suggests that trenching was capable of adequately penetrating sediments with the potential to contain prehistoric and historic-age cultural resources. One newly recorded archeological site, 41FB365, was documented during the cultural resources survey of the Bonnie Reid tract. Site 41FB365 consists of a cluster of late 20th-century buildings located on a small rural residential tract at the corner of Pecan Grove and Sartartia Road in Sugar Land, Fort Bend County, Texas. The homesite was the residence of William and Bonnie Reid, who moved to Sugar Land from Oklahoma after getting married in 1960 to start a family. Currently, the homestead consists of four buildings, including a single-story, brick-clad house (Resource A); an open-bay garage with an attached storage shed (Resource B); a well pump house (Resource C); and a small equipment shed (Resource D). The only historic-age structure on the site is the house, which was constructed in 1970, and the various outbuildings were constructed over the following decade. No other historic-age structures are present on the site, and no archeological deposits associated with any historic-age occupations of the property were observed during the survey. Based on the largely modern character of the architectural features on the homestead, a lack of significant historical associations, and the absence of archeological deposits, the site is recommended as ineligible for inclusion in the NRHP and for designation as an SAL. Based on the results of the survey-level investigations documented in this report, no potentially significant cultural resources would be affected by the proposed undertaking. In accordance with 36 CFR 800.4, Horizon has made a reasonable and good-faith effort to identify historic properties within the project area. No cultural resources were identified within the project area that meet the criteria for designation as SALs according to 13 TAC 26 or for inclusion in the NRHP under 36 CFR 60.4. Horizon recommends a finding of “no historic properties affected,” and no further archeological work is recommended in connection with the proposed undertaking. However, human burials, both prehistoric and historic, are protected under the Texas Health and Safety Code. In the event that any human remains or burial objects are inadvertently discovered at any point during construction, use, or ongoing maintenance in the project area, even in previously surveyed areas, all work should cease immediately in the vicinity of the inadvertent discovery, and the THC should be notified immediately. Following completion of the project, project records will be permanently curated at the Texas Archeological Research Laboratory (TARL)
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Intensive Cultural Resources Survey of the Proposed Dripping Springs Wastewater System Improvements Project (EID 1), Dripping Springs, Hays County, Texas
SFA ScholarWorks, 2020Co-Authors: Sefton, Jahleen E., Owens, Jeffrey D., Dalton, Jesse O.Abstract:Horizon Environmental Services, Inc. (Horizon) was selected by the City of Dripping Springs to conduct an intensive cultural resources inventory survey and assessment of the proposed Dripping Springs Wastewater System Improvements Project (EID 1) in Dripping Springs, Hays County, Texas (USACE Project No. SWF-2020-00075). This survey represents the first phase of a larger project involving the proposed construction of wastewater system improvements in Dripping Springs. The current phase of the project would involve three separate components—the West Interceptor segment, which extends approximately 3.7 kilometers (2.3 miles) in length along Onion Creek west of Farm-to-Market Road (FM) 12; the Reclaimed Water Line segment, which extends approximately 1.3 kilometers (0.8 mile) in length between Needham Road and the intersection of FM 12 and FM 150; an approximately 2.3-hectare (5.7-acre) effluent pond located south of an existing water reclamation facility south of FM 150; and the proposed expansion of the existing water reclamation facility adjacent to the proposed effluent pond, which together cover 3.3 hectares (8.0 acres). The linear rights-of-way (ROW) of proposed pipeline segments would measure a maximum of 30.5 meters (100.0 feet) in width, and the proposed project components would cover a combined area of approximately 18.5 hectares (45.6 acres). The proposed undertaking would be sponsored by the City of Dripping Springs, a public Subdivision of the state of Texas. As a Political Subdivision of the state of Texas, the project would fall under the jurisdiction of the Antiquities Code of Texas (Natural Resources Code, Title 9, Chapter 191). In addition, the project would utilize funding provided by the Clean Water State Revolving Fund (CWSRF) program, which is a federal-state partnership between the US Environmental Protection Agency (US EPA) and the state of Texas. As the US EPA is a federal agency, the project would also fall under the jurisdiction of Section 106 of the National Historic Preservation Act (NHPA) of 1966, as amended. As the proposed project represents a publicly sponsored undertaking, the project sponsor is required to provide the Texas Historical Commission (THC), which serves as the State Historic Preservation Office (SHPO) for the state of Texas, with an opportunity to review and comment on the project’s potential to adversely affect historic properties listed on or considered eligible for listing on the National Register of Historic Places (NRHP) under the NHPA and for designation as State Antiquities Landmarks (SAL) under the Antiquities Code of Texas. From October 1 to 3, on November 4, and on November 22, 2019, Horizon archeologists Jesse Dalton, McKinzie Froese, Amy Goldstein, Elizabeth Sefton, and Jared Wiersema conducted an intensive cultural resources survey of the project area, including pedestrian walkover with shovel testing and backhoe trenching. The survey was performed under the supervision of Jeffrey D. Owens, who served as Principal Investigator, under Texas Antiquities Permit No. 9114. The purpose of the survey was to locate any significant cultural resources that potentially would be impacted by the proposed undertaking. Horizon’s archeologists traversed the project area on foot and thoroughly inspected the modern ground surface for aboriginal and historic-age cultural resources. Overall, vegetation across the entire project area generally consisted of short- to medium-length grasses interspersed with mature live oak and cedar trees, which afforded fair to good ground surface visibility (30 to 60%). Within the riparian zone of Onion Creek, vegetation consisted of tall, dense grass and mature honey mesquite, cedar, live oak, and hackberry trees, which provided poor ground surface visibility (\u3c30%). The West Interceptor segment runs along the gravelly terraces of Onion Creek. Topographically, this segment of the project area consists of steep limestone steps and rocky outcrops that give way to flat, open fields. The proposed interceptor crosses Onion Creek at three locations, and the lower stream terraces of the creek have extensive gravel bars and debris associated with high-energy flooding. Soil profiles typically consist of a shallow A horizon of hard, calcareous clay loam underlain by dense gravelly deposits; however, in the southeastern portion of the West Interceptor, deeper clayey loam alluvium underlain by limestone bedrock was encountered. The Reclaimed Water Line segment traverses the west-facing hillslopes of upland ridges east of Onion Creek. Approximately the southeastern half of this segment of the project area would be constructed within the existing ROW of FM 12 west of the roadway, and construction, use, and ongoing maintenance of the roadway and associated facilities has resulted in extensive prior disturbances. Evidence of ground disturbance resulting from land clearing for housing developments and a transmission line were also noted within the northwestern portion of the proposed Reclaimed Water Line segment. The far northwestern end of the proposed Reclaimed Water Line segment skims the edge of the floodplain associated with a tributary of Onion Creek. Sediments on the terraces of this stream channel consist of calcareous loamy alluvial deposits, while soils across the upland portions of the segment consist of shallow deposits of gravelly clay and clay loam underlain by naturally degrading limestone bedrock. The water reclamation facility expansion and effluent pond segment are located on the upper terraces northeast of Onion Creek. The water reclamation facility is an existing industrial facility surrounded by septic fields, and prior disturbances from construction, use, and ongoing maintenance of the facility are extensive. The proposed expansion area to the north of the existing facility is currently utilized as a septic field. Sediments within this segment of the project area consist of shallow, gravelly, calcareous loamy to clayey loam alluvium underlain by naturally degrading limestone bedrock. In addition to a pedestrian walkover, the Texas State Minimum Archeological Survey Standards (TSMASS) require a minimum of 16 subsurface shovel tests per 1.6 kilometers (1.0 mile) for each 30.5-meter- (100.0-foot-) wide transect (or fraction thereof) for linear surveys unless field conditions warrant more shovel tests (e.g., in cultural high-probability areas) or fewer shovel tests (e.g., on steep slopes, in areas with excellent ground surface visibility). For block-area surveys, the TSMASS require two shovel tests per 0.4 hectare (1.0 acre) for project areas between 1.2 and 4.0 hectares (3.0 and 10.0 acres) in size. As such, a minimum of 37 shovel tests would be required within the West Interceptor segment, 13 shovel tests would be required within the Reclaimed Water Line segment, and 16 shovel tests would be required within the proposed water reclamation facility expansion and effluent pond area, for a total of 66 shovel tests for the project area as a whole. Horizon excavated a total of 106 shovel tests during the survey, including 82 shovel tests within the West Interceptor segment, 13 shovel tests within the Reclaimed Water Line segment, and 11 shovel tests within the facility expansion and effluent pond area. The shovel tests within the proposed facility expansion and effluent pond area were not all excavated directly within the final proposed construction footprint as the boundaries of this portion of the project area had not been firmly determined at the time of the survey, and no shovel tests were excavated within the existing water reclamation facility due to the extent of observable prior disturbances within this area. Overall, Horizon exceeded the minimum number of shovel tests required for the project area as a whole, and it is Horizon’s opinion that shovel testing was capable of fully penetrating sediments with the potential to contain subsurface archeological deposits (with the exception noted below where backhoe trenches were excavated along a portion of the West Interceptor segment). In addition to shovel testing, Horizon excavated four backhoe trenches within the southeastern portion of the proposed West Interceptor segment. The trenches were excavated at roughly 100.0-meter (328.0-foot) intervals along the proposed centerline to depths ranging from 105.0 to 350.0 centimeters (41.3 to 137.8 inches) below surface. Sediments observed within trench profiles typically consisted of moderately deep deposits of grayish-brown fine clay loam over yellowish-brown fine sandy loam. Dense deposits of river cobbles and/or naturally degrading limestone bedrock were observed at the base of three of the four trenches, and it is Horizon’s opinion that backhoe trenching was capable of fully penetrating sediments with the potential to contain archeological deposits. One chert flake was recorded in a shovel test (ST AG30) at a depth of 0.0 to 30.0 centimeters (0.0 to 11.8 inches) below surface at the far northwestern end of the West Interceptor project segment. Supplemental delineation shovel tests excavated around this initial discovery failed to produce any additional evidence of prehistoric cultural activity at this location, so the chert flake was recorded as an isolated artifact occurrence but was not documented as an archeological site. No other cultural resources of prehistoric or historic age were recorded within the project area during the pedestrian survey, shovel testing, or backhoe trenching. Based on the results of the survey-level investigations documented in this report, no cultural resources would be affected by the proposed undertaking. In accordance with 36 CFR 800.4, Horizon has made a reasonable and good-faith effort to identify historic properties within the project area. No cultural resources were identified within the project area that meet the criteria for designation as SALs according to 13 TAC 26 or for inclusion in the NRHP according to 36 CFR 60.4. Horizon recommends a finding of “no historic properties affected,” and no further archeological work is recommended in connection with the proposed undertaking. However, human burials, both prehistoric and historic, are protected under the Texas Health and Safety Code. In the event that any human remains or burial objects are inadvertently discovered at any point during construction, use, or ongoing maintenance in the project area, even in previously surveyed areas, all work should cease immediately in the vicinity of the inadvertent discovery, and the THC should be notified immediately. Following completion of the project, all project records will be prepared for permanent curation at the Texas Archeological Research Laboratory (TARL)
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Redefining Trademark Alteration Within the Context of Aesthetic-Based Zoning Laws: A Blockbuster Dilemma
Vanderbilt Law Review, 2000Co-Authors: Jeffrey W. StrouseAbstract:I. INTRODUCTION In 1978, a Nevada Federal District Court permitted the Nevada Real Estate Advisory Commission to regulate the registered service mark1 of Century 21, a national franchisor of real estate brokerage firms.2 Prior to this state regulation, Century 21's mark occupied approximately 80 percent of the surface area of any given display, while the name of the local franchisee covered the remaining 20 percent.3 To prevent consumer confusion,4 the Commission required that the 80:20 ratio be changed to a 50:50 ratio, effectively making the franchisee's logo as large as its counterpart.5 Century 21 objected to this mandate, arguing in part that such a regulation would dilute its registered mark and thereby violate the Lanham Act.6 The Court rejected this argument by holding that the regulation fell squarely within the purposes of the Lanham Act.7 After the Nevada decision, other states adopted similar regulations.8 Ultimately, however, courts found these rules burdensome on the franchisor-franchisee relationship and invalidated the regulation.9 In addition, some states "considered and rejected such rules as being anticompetitive, arbitrary, and onerous."10 Subsequently, Congress amended the Lanham Act with the passage of sec1121(b).11 Section 1121(b) consists of two clauses: the first prohibits any state or Political Subdivision from "altering" a registered mark and the second forbids states from requiring additional marks from being incorporated into the original mark.12 While Congress's solution to the aftereffects of Century 21 apparently embodies both clauses of sec1121(b), the Ninth Circuit in Blockbuster Videos, Inc. v. City of Tempe described only the second clause as the remedy and thus rendered the first clause a rider.13 Effectively, the court not only expanded sec1121(b) beyond the facts of Century 21, but it left unclear the extent to which the Lanham Act preempts municipal zoning ordinances. This issue is especially poignant when municipalities enact aesthetic-based" zoning ordinances that deny exterior sign permits to vendors who desire to display their federally registered trademarks on their storefront signs.15 Invariably, such ordinances create a conflict between the federal government's interest in regulating trademarks and the states' traditional police powers in governing the use of property. As discussed in Part II, constitutional law generally recognizes "that a town, pursuant to its police power, may impose sign restrictions in order to regulate aesthetics."16 On the other hand, case law also weighs heavily in favor of protecting the value of registered trademarks.17 Whether the latter preempts the former depends, in part, on whether the clauses of sec1121(b) are read separately or together.18 Since judicial opinion remains divided over the answer to this question and until Congress acts to clarify this two-clause structure,19 this Note articulates a narrow interpretation of sec1121(b) and encourages that its application be restricted to situations that are substantially similar to Century 21. To that end, Part II of this Note explores the validity of municipal zoning power, and, in particular, discusses two overlapping constitutional issues within which this police power has evolved. Against this backdrop, Part III argues that sec1121(b) and its legislative history support limited preemption of aesthetic-based zoning laws.20 In addition, this section explains the shortcomings of the Ninth Circuit's statutory interpretation in Blockbuster Videos, Inc. u. City of Tempe. Finally, Part IV sets forth a definition of alteration that effectively prevents the application of sec1121(b) to marks that are incidentally affected by aesthetic-based zoning regulations.21 II. THE POWER TO ZONE: AN EVOLVING LICENSE In Blockbuster, although the Ninth Circuit never explicitly examined the evolution of municipal zoning power, its ultimate rejection of aesthetic-based zoning regulations reflected a traditional view. …