Open Letter To City Council: Contractual Violations With Scope Of Work Done On Cape’s Dam

Dear Mayor Guerrero and fellow City Council members,

Attached is a report form, with Executive Summary and additional Figures, concerning my findings of significant factual omissions and errors contained in Watershed Systems Group’s reports, dated June 24, 2015 and Oct 12, 2015, to the City of San Marcos (CofSM) on the efficacy of removing the CofSM-owned Capes Dam, located on the San Marcos River, about 1/4 mile downstream from I-35.

Other than the addition of the Executive Summary, Table of Contents, List of Figures, and new additional figures (all located at end of report) the report is unchanged from the text of the email I sent you on August 18, 2016, following the City Council meeting on Aug 16th.

I hope you will review the Executive Summary and the Figures carefully, as they show just how serious these omissions of facts and errors are, especially when betting everything that the removal of Capes Dam will not harm Federally-protected endangered species, and with no back-up plan to revert to, should the untested conclusions reached by Watershed Systems Group prove to be incorrect, and the populations of endangered Wild Rice and Fountain Darter are decimated, if not made extinct, by the removal of Capes Dam.

 

Contractual Violation

I have the contract the City of San Marcos signed with Watershed Systems Group on Dec 15, 2014 and noted the following contractual violation of the Study Area, which has not been complied with as per the terms of the Contract.

The Contract at the top of Attachment A “Scope of Work” clearly states, “This Agreement includes evaluating management alternatives for Capes Dam (Attachment D-Study Area) in San Marcos that range from rebuilding it, rebuilding it to half height, or complete dam removal.”

I have included the Contract’s Attachment D “The Study Area,” which contractually obligates Watershed Systems Group to study the area from Rio Vista Dam downstream to TPWD Fish Hatchery.

I have also attached (as a separate PDF) Watershed Systems Group’s limited, self-selected Study Area, which does NOT include the area from “Rio Vista Dam downstream to TPWD Fish Hatchery.” Watershed Systems Group’s Study Area doesn’t even identify where Capes Dam is, much less comply with the contractual terms to which they are obligated.

Because of this most basic violation by Watershed Systems Group of the contractual terms governing their contract with the City of San Marcos, all monies paid to Watershed Systems Group under this contract, including the original $10,000 payment, as well as any additional payments that may have been added under this contract, should be immediately refunded to the City of San Marcos.

This is why the type of independent peer review conducted herein, is so important for the City of San Marcos, to ensure CofSM is not defrauded of their contractual rights and forced to pay for work that does not address the primary concerns of the signed contract.

I call on Mayor Guerrero and the City Council to have an emergency meeting to discuss these most serious contractual violations by Watershed Systems Group and how the City of San Marcos intends to proceed from here, given that the studies performed by Watershed Systems Group fail to meet the basic requirements of the Study Area as set forth in the Dec 15, 2014 legal contract.

I also call on Mayor Guerrero and the City Council to immediately revoke, rescind and STOP all activity relating to the removal of Capes Dam,  including the

• May 3, 2016 “Information Sheet: Proposed Removal of a Dam” with TCEQ and
• May 18, 2016  “Sand and Gravel Permit” with TPW

As long as these two permits are in force, the City of San Marcos can continue work to remove Capes Dam and fill in the Mill Race – which is the stated objective of the TPW Sand and Gravel Permit.  See TWP Sand and Gravel Permit, Section III, #18 Intended final disposal area for removed materials: “Riverbank and fill in old millrace.”

FYI: The Mill Race is approximately 2,111 feet long, and approximately 10′ wide, 5′ deep on average.  I think you are going to need much more than the 292 cu yards of debris from Capes Dam to fill in a Mill Race occupying 3,909 cubic yards.  If anyone checks the City of San Marcos’ math on both of these permits, the numbers simply don’t add up.  But then given the quality of the reports upon which these two permits’ data is based, this is not surprising.

Finally, it needs to be noted that the Contractually-obligated Study Area in Attachment D to the CofSM Contract with Watershed Systems Group is not extensive enough to accurately make any deductions as to what water levels, etc will be once Capes Dam is removed. That is because while the Contractually-obligated Study Area does include the upstream, or headward boundary of Capes Dam (Rio Vista Dam, located 0.6 miles (1 km) upstream from Capes Dam), the Contractually-obligated Study Area does not include the downstream, or basinward boundary of Capes Dam (Cummings Dam, in Martindale, TX, located 3.4 (5.2 km) downstream from Capes Dam), making even the Contractually-obligated Study Area ill-defined for the purposes of scientific investigation, a fact which most scientists would have alerted his/her client(s) before accepting the work.

It is noted that a line is drawn on Attachment D across a bottom section of the San Marcos River opposite what is labeled the Millrace Headgate and it is marked “Extent of Capes Dam Influence.” I would find it most helpful if the CofSM employee (or contractor – whatever the relationship) prepared Attachment D,would explain what evidence they have to support that statement. All the hydrology classes I ever took stated that when considering removing a dam, you have to consider the nearest dams, both upstream & downstream, because those are the dam’s physical boundary conditions.  Drawing a line on a map and labeling it, doesn’t make it so.

Respectfully submitted,

Kelley Smoot Garrett

 

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