Initial findings of factual misrepresentations in Watershed Systems Group, Inc's reports to City of San Marcos

“Effects of changing height of Cape’s Dam on recreation, Texas wild rice and fountain darter habitat in the , Texas”

Prepared for: City of San Marcos

Prepared by: Dr. Thomas B. Hardy, Ph.D. Dr. Nolan Raphelt, Ph.D. Watershed Systems Group, INC San Marcos, Texas

Dated: June 24, 2015 October 12, 2015

Analysis of Watershed Systems Group's reporting submitted on August 22, 2016 by

Kelley Smoot Garrett B.Sci., Geological Sciences, 1982 with Honors and Special Honors University of Texas at Austin Executive Summary

A number of omissions of factual evidence occur in Watershed Systems Group's (WSG) reports to the City of San Marcos about removing Capes Dam, situated approximately 1400 ft downstream from I-35, on the San Marcos River, on land owned by the City of San Marcos.

These serious factual omissions, that render the studies' purported conclusions meaningless, include:

 Failure to identify and include proper physical boundary conditions in the reports' Study Area, the proper boundary conditions being the next dam located 0.6 mile upstream from Capes Dam (Rio Vista Dam, in City of San Marcos) and the next dam located 3.4 miles downstream (Cummings Dam, Martindale, TX);

 Failure to state the size of the Study Area, as well as failure to include a scale, a directional (North) arrow to orient the reader, and failure to identify the location of the subject of the study, Capes Dam, on Figure 1 (of both studies') Study Area.

 Failure by the City of San Marcos to accurately and completely fill out the statutorily-required Texas Commission on Environmental Quality (TCEQ) Information Sheet Proposed New Construction, Modification, Repair, Alteration, or Removal of a Dam, including the entire omission of Section 4: Hydrologic Information, such as Required Hydrologic Criteria of Percentage of Probable Maximum Flood.

 Failure by the City of San Marcos to accurately and completely fill out Texas Parks & Wildlife (TPW) Sand and Gravel Permit Application, despite having been signed & notarized by City of San Marcos City Manager Jared Miller, who acknowledged through his Affidavit “significant penalties for submitting false information, including the possibility of a fine and imprisonment.”

 Admission by the City of San Marcos in their filing TCEQ Information Sheet and TPW Permit that endangered species Texas Wild Rice and Fountain Darter will be endangered by the removal of Capes Dam, that both species will need to be permanently removed and relocated, from the wild where they now exist.

 In 2015, the National Academy of Sciences rebuked Watershed Systems Group co-author Thomas B Hardy for his contributions to the Area HCP (Habitat Conservation Plan) citing, “The HCP repeatedly refers to the two Hardy habitat suitability analyses with statements that are not easy to trace back to the reports.” The statements in questions concerned whether or not the referenced Hardy study identified suitable habitat for the endangered Fountain Darter.

 100% reliance on Watershed System Group's reports, as well as hypotheses of the US Fish and Wildlife Service (USFWS) that Texas Wild Rice and the Fountain Darter will not be harmed, so there is no back-up plan to handle the possibility that these untested hypotheses might be wrong, if these two Federally-protected endangered species are decimated by the removal of Capes Dam.  Use of out-dated aerial photography by Watershed Systems Group in describing the Study Area to disguise and hide from any reader/reviewer the existence of a 24-acre apartment complex with over 455,000 sq ft of improvements, valued on tax rolls at $44 Million and located wholly-within the Study Area. This massive apartment complex (The Woods of San Marcos) is built within the 100 year Flood plain, is immediately adjacent to the San Marcos River and drains completely into either the San Marcos River (above Capes Dam) or the Mill Race – and the Mill Race is listed on the TCEQ Information Sheet as being slated to be “filled in.” Filling-in any river's major drainage artery that receives 100% of rainwater run-off from an adjacent 24-acre complex is not consistent with sound river and flood water management principles.

 Watershed Systems Group graphical displays purporting to show three different outcomes due to three different scenarios of Capes Dam's height, which change the base image's scope and aspect ratio to present the three outcomes, are not scientific.

 Failure of Watershed Systems Group to use water boundary conditions of extreme flood and extreme drought to model what will happen when Capes Dam is removed. Watershed Systems Group only uses average conditions in two reports to the City of San Marcos. Using averages when discussing a river that can range from as low as 60 CFS in extreme drought to as high as 600+ CFS in extreme flood, is misleading and does not allow accurate models to be developed.

 Failure by Watershed Systems Group, USFWS, or any other entity urging the City of San Marcos to remove Capes Dam to either know or acknowledge that in January 2000 Capes Dam was breached, resulting in a mad scramble to save Texas Wild Rice from being decimated. The Texas Wild Rice taken from the San Marcos River in 2000 were evidently transported to the USFWS' Fish Hatchery and have apparently only been kept alive since 2000 in that laboratory setting. There is no indication that once USFWS removes Texas Wild Rice they transplant it elsewhere in the River, just into their concrete-lined trenches in their fish hatchery. There is no need for hypotheses or guess-work about what will happen when Capes Dam is removed, because there is a real-life example from 2000 as to what happens when Capes Dam is breached, during what was then a time of extreme drought.

 The use of a Public Engineer from South Dakota, with a Wyoming PE license to complete TCEQ's Information Sheet about Capes Dam, located in Texas, approximately 1,000 miles away, does not engender confidence that the omitted and incorrect data occurring on the statutorily-required TCEQ Dam Safety Program will be recognized by the out-of-state engineer whose license has been used to present the statistics. Table of Contents 1. Omissions of material facts ...... 5

2. Errors on the order of a magnitude or more...... 5

3. US Fish and Wildlife Service failure to reveal "Endangered Texas wild-rice will be removed from the work area and immediately downstream and transplanted in a suitable location." ...... 6

4. Visually deceptive display of data...... 7

5. Watershed Systems Group's Reports fail to show the location of Capes Dam...... 8

6. Watershed Systems Group's use of outdated aerial photograph to disguise existence of a 24 acre apartment complex immediately adjacent to Capes Dam...... 8

Flood Plain Discussion...... 9

A real-life San Marcos River example of what happens when Capes Dam is breached...... 11

Peer-Review...... 11

The Cost of Doing Nothing...... 11

Conclusions...... 12

Table of Figures Figure 1. Omission of 24-acre apartment complex, lack of directional arrow, lack of scale, and inadequately-sized Study Area chosen by Watershed Systems Group...... 14

Figure 2. What Watershed Systems Groups’ Study Area should have depicted & included...... 15

Figure 2a. An existing, properly delineated and keyed Study Area of the San Marcos River, published 2001 by USFWS...... 16

Figure 3. From Watershed Systems Group's June 24, 2015 report to City of San Marcos compares images of different aerial extent and scale...... 17

Figure 4. Watershed Protection Plan presented to City of San Marcos as part of development of The Woods Apartment Complex drains directly into the Mill Race...... 18 Contained with the two reports prepared for the City of San Marcos by Watershed Systems Group's (WSG) reports of June 24, 2015 and Oct 12, 2015 that I have had the opportunity to review, there are: 1. Serious omissions of material facts and physical structures located entirely within Watershed Systems Group's (WSG) self-selected, restricted Study Area which is not large enough to adequately include the bounding physical parameters that encompass Capes Dam. Without a sufficiently large enough area Study Area that must include the dam above Capes Dam (Rio Vista Dam) as well as the next downstream dam (Cummings Dam in Martindale) the study is rendered meaningless, right from the beginning. See Figures 1 and 2.

2. Errors on the order of a magnitude or more in the recitation of varying statistics on WSG's Reports that differ from what is supposed to be the same statistic on the City of San Marcos' Applications for Capes Dam to be removed. These statistics MUST stay the same and be consistent from WSG's Reports, to the Applications that the City of San Marcos has filed with TCEQ and TPW, not change from WSG's Reports to the City's Permits, as currently occurs for many of the required fields that these State Agencies (TCEQ and TPW) use to evaluate whether or not to approve the Application. How can these State Agencies make an appropriate decision (to remove Capes Dam) if the information they are receiving on their Permits and Applications forms does not match the figures WSG has used to derive their conclusions? The problem of mis-matching, or worse, completely omitted data (particularly the omission of 100% of "Section 4 Hydrologic Data" requested by TCEQ) is deeply troubling, because the same set of statistics used to present information to you, Mayor Guerrero and fellow Council Members, is NOT what is being used to fill out these required TCEQ and TPW permits. These are major discrepancies with serious financial and legal ramifications. The use of a Public Engineer from South Dakota, with a Wyoming PE license to complete TCEQ's Information Sheet about Capes Dam, located in Texas, approximately 1,000 miles away, does not engender confidence that the omitted and incorrect data occurring on the statutorily-required TCEQ Dam Safety Program will be recognized by the engineer whose license has been used to present the statistics. One explanation for the listing in all information requested in TCEQ's Section 4: Hydrologic Data with “N/A” is that to an engineer who is licensed in a state 1,000 miles away, the information is either “Not Available” or for all that engineer is being told, the information is “Not Applicable.” Evidently, the people who filled out this report for the City of San Marcos had to travel 1,000 miles to find an engineer willing to put his license on an application that omits such critical data, because no Texas engineer would be willing to be held responsible for the destruction he might cause by not completely entering all data required by state statute. If the City of San Marcos is sincerely and honestly committed -- as I believe all of you are, given the closing statements concerning this Agenda Item to Remove Capes Dam, that you wish to keep all options available, as studies are conducted to keep the Mill Race filled with water and available as a habitat (at the same time you take whatever decision you decide to take on whether or not to remove Capes Dam) - then the City of San Marcos must immediately disavow and revoke it's May 18, 2016 Sand and Gravel General (individual) Permit Application with Texas Parks & Wildlife, because under Section III: Description of Proposed Activity, #18: Intended final disposal area for removed materials: the response filled in is "Riverbank and fill in old millrace." 3. Mike Montagne of US Fish and Wildlife Service failure to reveal during Tuesday night's meeting that The City of San Marcos' TPW Sand and Gravel Permit Application specifically states (Item #22, Top of 2nd Page) "Endangered Texas wild-rice will be removed from the work area and immediately downstream and transplanted in a suitable location." This is the admission - contained with the City of San Marcos' Application to TPW - that removal of Capes Dam will harm an endangered specie - Texas Wild Rice. Because if removal of Capes Dam wasn't harmful to the Endangered Specie -- why would the Texas Wild Rice ever have to be moved? The Texas Wild Rice is ALREADY in a suitable environment -- that it has "chosen" by natural means and methods to live in. WHY would you want to stress an Endangered Plant Specie and force it's removal to any other area other than what that plant has naturally chosen and is currently located & thriving? This is a lapse of science as well as common sense. The knowledge of the danger to populations of Federally-protected Endangered Species created by the removal of Capes Dam is written into the City of San Marcos' Application to TPW for a Sand & Gravel Permit. The next sentence typed onto the City of San Marcos' Application to TPW for a Sand & Gravel Permit in #22, Page 2 reads: "The old mill race will be seined and all fish captured therein will be returned to the main channel." The Mill Race contains Fountain Darters (among the fish that currently have "chosen" the Mill Race through natural means and methods to live) therefore the removal of Capes Dam will stress and force the move of the Endangered Specie Fountain Darter from its naturally- chosen location - the Mill Race. City Manager Jared Mills had signed a notarized affidavit attached to this Sand & Gravel Application that states (emphasis added): I, Jared Miller, certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to ensure that qualified personnel gathered and evaluated the information submitted. Based on my inquiry of the person or persons who managed the system, or those persons directly responsible for gathering the information, this information is, to the best of my knowledge and belief, true, accurate and complete. I am aware that there are significant penalties for submitting false information, including the possibility of a fine and imprisonment for known violations.

It appears that whomever filled these forms out for the City of San Marcos, has gotten the City Manager to assume responsibility for their veracity. That leaves the City of San Marcos in a legally- exposed and vulnerable place, with the 1) documented changing of values, 2) the complete omission of values, as well as the 3) statements of misleadingly small and incorrect values, all of which occur on both TPW and TCEQ Applications. With an admission that the removal of Capes Dam will hurt and harm Endangered Species (Fountain Darter fish and Texas Wild Rice) included on the very application to TPW, and previously acknowledged by WSG (see Parks Advisory Board Minutes, August 20, 2015 Agenda Item #4 "Once the dam is removed the likelihood of there being any water in the mill race at any given time is very slim. This would not be good for the endangered species or the recreation aspect") there is ample warning that Federal Law protecting Endangered Species may be violated in the removal of Capes Dam. What is the City of San Marcos going to do, if Capes Dam is removed, and the populations of Fountain Darter and Texas Wild Rice are decimated? What if WSG reports' conclusions are wrong? Mike Montagne warned everyone in attendance at Tuesday night's meeting that if the City uses USFWS money to remove Capes Dam, then according to what I heard Mike Montagne respond when asked the question, evidently USFWS will fight the City of San Marcos if the City seeks to re-instate Capes Dam at a later date following the dams removal using USFWS money, IF the City later discovers that the USFWS' recommendation to remove Capes Dam was not a good way to protect Endangered Species. What course of action will be available to the City of San Marcos to avoid penalties under the law for reducing or perhaps decimating Federally-protected Endangered Species? Or absolute worse- case scenario, being responsible for the extinction of an endangered specie(s)? Evidently once property owners accept money from USFWS (or a grant, or assistance, or however the fact the evidently USFWS will pay to have Capes Dam removed from property owned by the City of San Marcos) then any attempt to rebuild a dam that was removed will be met with (legal-?) resistance from USFWS - even if Endangered Species' populations are being destroyed through dam removal - Could this be the upshot of what happens if things don't go as predicted in this theoretical study provided by Watershed Systems Group and supported by US Fish and Wildlife Service? If so, that's not a strategic position from which the City of San Marcos could readily negotiate in the event the removal of Capes Dam proves catastrophic to Endangered Specie(s). If the decision to remove Capes Dam is carried forward, I personally hope Mike Montagne is correct - but as Mr. Montagne admitted in Tuesday night's meeting, he didn't make inquiries and find out prior to submitting Applications if Capes Dam was eligible for the Historic Registry, he just checked "Unknown", and it is obvious when one observes the "completed" TCEQ Applications lacks all information in Section 4: Hydrologic Values requested by TCEQ on their Proposed...Removal of a Dam Information Sheet. Is it possible that Mr Montagne can be counted upon to have been diligent enough in his work and therefore have confidence derived from previously validated, peer-reviewed research? 4. The June 24, 2015 WSG Report contains a visually deceitful display of data. Figure 10 is particularly egregious as WSG purports that Figure 10 shows "Computed bed sheer stress at 300 cfs for each of the dam scenarios." The 3 dam scenarios are listed above each of the pictures, L to R: "Full Height", "Half Height", "Full Removal." See Figure 3. The 3 pictures are NOT at the same scale and aspect ratio and therefore cannot be used to make any meaningful comparison. The choice by WSG to create a display of data based on a reduction of the aerial extent of the image/data, while enlarging the image/data to take up the same space in display invalidates this comparison of 3 instances of Capes Dam height has also introduced additional variables into the comparison. This method of supposedly comparing 3 images that are of different variables has no basis in science. A scientist cannot simply reduce an image to 2 different percentages of the whole, skew them, and report "Here's my model of what is going to happen," because that's visual deception, not science. Changing additional parameters between the display images/data is invalid especially when the "scientist" does not disclose how he is manipulating images to the reviewer/reader. It would be invalid because of the altered parameters of scale and aspect ratio, but it's particularly egregious that it's not disclosed or acknowledged. 2015 Review by the Academy of Sciences of the Edwards Aquifer Habitat Conservation Plan (EAHCP) notes similar omissions and difficulties in confirming work performed in EAHCP by members of Watershed Systems Group: From "Ecological Modeling" section of Edwards Aquifer Habitat Conservation Plan (EAHCP), Page 93 (emphasis added): The HCP [Edwards Aquifer HCP, or Habitat Conservation Plan] repeatedly refers to the two Hardy [Dr. Thom Hardy, co-author of Watershed Systems Group's 2 reports sold to the City of San Marcos] habitat suitability analyses with statements that are not easy to trace back to the reports. The first habitat suitability analysis was included as Appendix H of the HCP, while the 2nd analysis was well documented in a separate report and was referred to repeatedly in the main text of the HCP. An example of a statement that the Committee was unable to find supporting analyses for was "A review of the Hardy (2010) fountain darter modeling shows that there would be sufficient quality and quantity of habitat in all four reaches at long-term average flows (i.e. , 225 cfs) to support the long-term biological goals for the fountain darter in the Comal system" (pp. 4-9, EARIP, 2012).

5. WSG in both their June 24, 2015 or Oct 12, 2015 Reports fail to show the location of the very subject of their Reports: Capes Dam in Figure 1: The Study Area. While a seemingly "small" omission the inability to locate the subject of the study on the main figure introducing the Study Area to any reviewer or reading is not insignificant. In a valid scientific paper, the Study Area must be properly defined so as to correctly locate the Study's main subject: in our case, Capes Dam. Inability to provide a map correctly identifying the Subject Matter of the study is a major failure resulting in poor quality research that cannot hope to accurately inform readers and reviewers, almost all of whom will not be as well-versed in the area or subject matter, as the authors. The only Figure or Map of either the June 24, 2015 or Oct 12, 2015 WSG study that actually has a label that identifies the location of Capes Dam is Figure 2 of WSG's Oct 12, 2015 report, titled, "Spatial location of Texas wild rive above and below Cape's Dam in the San Marcos River." Virtually all the Texas Wild Rice is located above Capes Dam, in the slower pools of water that cover acres, that collect upstream from Capes Dam. These are the stands of Endangered Specie Texas Wild Rice that the City of San Marcos' Application to TPW which clearly states"Endangered Texas wild-rice will be removed from the work area and immediately downstream and transplanted in a suitable location." Nowhere is it mentioned if a "suitable location" is in the wild in the San Marcos River, or off in a concrete-lined laboratory trench maintained by USFWS, albeit a concrete-lined trench filled with water from the San Marcos River. (Read the attached January 7, 2000 San Marcos Daily Record's recounting of the fate of Texas Wild Rice strands struggling to survive in the lowered water depths of the river, following a 2000 New Year's Day breach in Capes Dam. Most of the once Texas "Wild" Rice that had been naturally thriving in the San Marcos River evidently ended up in USFWS' laboratory following the 2000 breach of Capes Dam and have not (ever?) made it back into the "wild" of the San Marcos River. Evidently it's Permanent Life Support for Texas Wild Rice once it's removed from the river.) This Figure 2 of the Oct 12, 2015 WSG Report shows that existing stands of Texas Wild Rice MUST be moved, because they will no longer be IN the stream bed, because once the dam is removed the river will occupy a much smaller, narrower channel, that will be rocky, rapidly moving water in a sinuous line, not acres of slower-moving water, collecting in pools. Figure 2 of the Oct 12, 2015 WSG Report does not show what WSG and USFWS representative Mike Montagne insist it shows - it shows quite the opposite: removing Capes Dam will doom all Texas Wild Rice stands between Rio Vista Park (upstream boundary) and Cummings Dam in Martindale (downstream boundary), hence the need to move these Federally protected species, so they won't be killed once Capes Dam is removed. It's all written out, in the City of San Marcos' Application with TPW to remove Capes Dam. 6. In neither WSG report, both created in 2015, does the aerial photograph used in the Study Area depiction of Figure 1 disclose to readers and reviewers all existing buildings and roads wholly-located within the Study Area. The Study Area, as a matter of factual reality, in 2015 included The Woods Apartment Complex, covering 23.69 acres, with improvements of 455,226 square feet, and having a Market and Taxable value of $44 Million. While The Woods Apartment Complex is listed as having been completed in 2015, albeit late 2015, such a massive footprint would have been known about -- and therefore should have been included in ANY study area where The Woods Apartment Complex would become located by the time the study was delivered to its buyer (?), contractor (?) - whatever role, the City of San Marcos. (I couldn't find a listing from HaysCAD.com of how much property tax revenue the City of San Marcos collects annually from a commercial multi- family development worth $44 Million, such as The Woods Apartment Complex, but I suspect that revenue generated from The Woods Apt Complex in tax revenue to the City of San Marcos could pay for much of what needs to be done to restore Capes Dam within a few short years, if that is the direction the Council decides it wishes to follow.) Without disclosing to any viewer or reader that such a significant amount of buildings exist within the Study Area, with approximately 80+% of its 23.69 acres imperviously covered with buildings, pavement for roadways, parking, and sidewalks, surrounded by moats that all drain into the Mill Race or the San Marcos River (see Figure 4 presented at Jan 28, 2014 City of San Marcos Planning & Zoning Commission hearing for location of drains into Mill Race and the San Marcos River) stretching along approximately 50-60% of the (when viewed facing downstream) Left Bank of the San Marcos River and Left Bank of the Mill Chase contained wholly-within the Study Area, these two studies from Watershed Systems Group are seriously deceptive in their lack of presentation of all up-to-date, factual structures, that exist in reality, today, that must be considered when planning the future of Capes Dam and the San Marcos River. Capes Dam has existed for 150 years now, protecting through flood-control measures that only a dam can provide, the very area that The Woods Apartment Complex now sits on (as well as adjacent areas too. Is there realization that the primary reason human beings have built dams across rivers & streams is to control devastating flooding?) It is ironic that the very object - Capes Dam - that could help lessen future catastrophic flood events -- flood events that the Woods Apartment Complex creates by being sited entirely & wholly within the 100 Year Flood Plain of the San Marcos River -- is being proposed for removal by the same city that allowed The Woods Apt Complex to be built wholly-within the 100 Year Flood Plain.

Flood Plain Discussion When a city believes that a political process, an engineering design, a vote (whether by council, public voters, or committee or any other voting group), a proclamation, a gift of parkland in exchange for development rights, a governmental agency's (such as FEMA) decision or ruling -- or believe that any activity is going to remove land from being within a 100 Year Flood Plain, they are sadly mistaken. Rivers will have their way in their flood plains that the rivers have carved out for themselves and the only option that makes sense - every time, whether drought or flood - is to stay out of the river's way, first & foremost by never allowing any structure whatsoever to be built within a 100 Year Flood Plain, which unfortunately was already allowed to happen in the case of the Woods Apartment Complex. With the Woods Apt Complex lying entirely within the San Marcos River's 100 Year Flood Plain, this siting of large buildings damages the River's Flood Plain ability to its job, which is to lie empty and ready to accept flood waters when the need arises, and for the Flood Plain land to allow re-absorption of flood waters into the land, filtering the water, and not just have rain-water run-off go directly from The Woods Apt Complex storm sewers and moats into the San Marcos River and Mill Race (which is what the attached engineering document shows was approved by P&Z and subsequently Council & then built by the developer.) This type of direct rain-water run-off being dumped directly from storm sewers and moats into any river is so damaging to aquatic wildlife of all types. Rainwater run-off dumping from storm sewers, retention ponds, and moats into any river is highly likely to increase sediment deposition into the river bed. So the models of "de-sedimentation" for the San Marcos River that are predicted by WSG's "modeling" in the river channel could end up instead being swamped by the additional sediment that will be dumped into the San Marcos River and the Mill Race by the continued development & deforestation of the Left Bank of the River and the Mill Race through the occupation by a 23.69 acre intensive, multi-family development that is no where revealed, marked, or incorporated into any modeling performed by Watershed Systems Group (WSG) much less even noted in either their June 24, 2015 or Oct 12, 2015 reports - reports for which Watershed Systems Group received payment from the City of San Marcos to create and provide to the City. How much is a report worth, that omits a 23.69 acre development within it's own small chosen Study Area (total Study Area of approximately 200-250 acres - unknown because the authors did not bother to inform their readers with this most basic of information - size in acreage of their Study Area), that is immediately adjacent to the very Subject of the Report - Capes Dam - neither of which (Capes Dam or The Woods Apt Complex) are ever located on a Study Area diagram, or any subsequent diagram? Using out-of-date aerial photos to hide the existence of large buildings & parking lots relative to the Study Area size and that such buildings, parking lots, driveways and sidewalks are entirely lying within the Study Area is fraud-by-omission. In my opinion, as a geologist with over 35 years experience in Central Texas, the authors at WSG have presented a fraudulent display of their poorly-defined "Study Area" and fail to inform any reader or viewer that instead of the San Marcos River's 100 year Flood Plain being entirely un occupied (as is clearly depicted and indicated in the WSG studies) the Left Bank (facing downstream) of San Marcos River and Mill Race's 100 Year Flood Plain has been covered up with a massive apartment complex, built to satisfy the most ultra-dense of Multi-family housing permitted in San Marcos. All of this ultra-dense Multi-family housing is built entirely within the River's 100 Year Flood Plain immediately adjacent to the Mill Race, with all of this 23.69 acres of impervious cover's rainwater run-off dumping directly into either the Mill Race or The San Marcos River (upstream from Capes Dam.) How can any professional hydrologist, engineer, geologist, geographer, city planner, much less the Mayor and City Council, make any informed decision when the reports they have paid good money for contain such large omissions of obvious reality? The Woods Apartment Complex exists, and the effects of its existence are not even considered in WSG's reports, because WSG's reports hide the existence of these 2014-15 constructed apartments through the use of out-dated aerial photographs. In my opinion this could either be caused by 1) incompetence or 2) an attempt to deceive publicly-elected officials and City employees into approving far-reaching, vast policy measures that are evidently favored by the authors, but whose conclusions might not be reached if the effect of such a massive structure immediately adjacent to the San Marcos River and the Mill Race were included in WSG's two studies. A real-life San Marcos River example of what happens when Capes Dam is breached (much less entirely removed) Attached is a copy of the San Marcos Daily Record from January 7, 2000, when a breach in Capes Dam was created by an unknown event. (A transcript of the article is provided, followed by a copy of Front Page of the San Marcos Daily Record on this article's day of publication.) This historical, real- life example of what happens when Capes Dam is breached reveals the very important, real-life example that is not discussed or revealed in any of WSG's reports (emphasis added):  "A widening of last week's breach at Cape's Dam necessitated the relocation of more Texas Wild Rice plants on Thursday."  "The breach at Cape's Dam, which is located on the San Marcos River just downstream of IH 35, occurred on New Year's Eve. The breach lowered the river level all the way up stream to Rio Vista Dam." [Note: This is why WSG's omission of the boundary conditions of their Study Area hampers the efficacy of the conclusions reached.]  Dr. Bill Sewell of the US Fish & Wildlife Service said that part of the river is home to two of the six major wild rice stands remaining in the San Marcos River. “About 25 percent of the total rice in the river is in that section,” he said. [Note: "That section" being the river that lies between Rio Vista Dam and Capes Dam, the majority of which is not considered in WSG's small "Study Area."]  "Dr. Bill Sewell of the US Fish & Wildlife Service said that part of the river is home to two of the six major wild rice stands remaining in the San Marcos River. “About 25 percent of the total rice in the river is in that section,” he said." [Note: transplanted Texas Wild Rice is risky, and yet that's exactly what removal of Capes Dam demands: the transplanting of the remaining stands of naturally-occurring Texas Wild Rice.]  "Although the breach lowered the water level only inches, Power said that was enough to threaten their [Texas Wild Rice] survival. “it made the difference between the plants being in the water and being out of the water,” she said." [Note: WSG's studies indicate the water levels following Capes Dam removal will drop 6 inches. This breach in 2000 caused the water levels to drop all the way up to Rio Vista Dam - which is to be expected since its the upper-most boundary - and that a drop of "only inches" threatened the survival of a Federally-protected endangered species, Texas Wild Rice. Can we gamble that the same threat to Wild Rice won't happen again if Capes Dam is permanently removed?]

Peer-Review Any scientist presenting their paid-for work to a public entity that contains publicly-elected officials can and should expect to receive scrutiny as to their methods of collecting, mapping, visually displaying, and demonstrating basic data used in their reports. Nothing in this emailed report is intended to disparage or denigrate the authors of this report personally. A frank evaluation of the lack of transparency, the gross omission of factual data in the Study Area, and the basic inability to correctly delineate the Study Area, and all features within, including the Subject of the report, is a serious lapse of scholarship. Incorrect transference of critically important hydrologic information, physical measurements and boundary conditions (not just of the Study Area, but boundary conditions involving low & high rainfall amounts, as opposed to WSG's presentation which uses averages) disguise the hazards that are apparent to anyone living in Texas: extreme drought will give way to extreme floods - often in a matter of months. So the HIGH and the LOW water rainfall/run-off conditions must be presented, not averages.

The Cost of Doing Nothing If the City of San Marcos, owner of Capes Dam, does nothing, the dam will deteriorate and eventually fail. This process of dam failure is well along the way, given the breaches that have developed due to the high flood waters of 2015, both at Memorial Day, and Halloween. Letting Capes Dam deteriorate, erode, and eventually be carried off in a future flood events' waters could be one way of removing Capes Dam, without costing any money at all. But the same problem re-appears that was posited above: What if the removal or failure of Capes Dam proves to be fatal to the Endangered Species of Fountain Darter and Texas Wild Rice? What is the back-up plan that can be immediately instituted to avert disaster and destruction of Federally-protected endangered species? As I understand it, the City of San Marcos has no back-up plan, and that in itself could leave the City in a precarious legal & financial position that is not what I want to see my City be embroiled in. Careful planning & decision-making based on observable structural facts, that also present models for the lowest ever recorded level of water in the San Marcos River, to the highest ever recorded level of (flood) waters in & around the San Marcos River and its Flood Plain, are required. In my opinion, without a plan in place, immediately, to handle the results of Capes Dam's removal (however it occurs) the effects on Endangered Species of Fountain Darter and Texas Wild Rice - uniquely occurring in the San Marcos River - could turn out to be a one-way, fatal path towards their extinction.

Conclusions A river cannot be compartmentalized, with too-small boundaries selected for study, coupled with omissions of highly-dense, impervious cover structures dominating their Flood Plain. Under these omissions and errors a rational, much less scientific conclusion, cannot be reached. The omission of reality-based facts that represent 23.69 acres of housing development that are never disclosed to the reader or reviewer, is fundamentally not acceptable. How can anyone reach any type of a rational conclusion when so much data - of a very basic nature -- not technical or scientific data or technicalities - has been hidden from the consumers of these publicly-available reports, and evidently never considered within a so-called "scientific" report? The 1) documented changing of values, 2) the complete omission of values, as well as the 3) statements of misleadingly small and incorrect values that are currently written in the City of San Marcos' own Applications to TPW and TCEQ leave the City in a perilous position from which to maintain a meaningful negotiating stance should anything go wrong with what WSG and USFWS's admittedly experimental path that has not been demonstrated on an equivalent Central Texas river. And what is the path for the City of San Marcos if WSG and USFWS are wrong? There doesn't seem to be any path back to restoring Capes Dam that WSG or USFWS seem willing to allow the City of San Marcos to pursue. Imagine that - the City of San Marcos is being told it cannot take measures to re-instate Capes Dam should the City decide in the future to re-build Capes Dam. The City appears to have Zero options to return back to what the City knows works to protect Endangered Species is again a perilous legal & financial position for the City of San Marcos to follow, and yet that appears to be the only path that WSG and USFWS are willing to allow the City, even in the event their hypotheses proves incorrect, costing the extinction of Federally-protected Endangered Species. The rush to remove Capes Dam seems to focus on drought (which is not where we are right now) and ensuring as much water as possible is released downstream, as quickly as possible, no matter what the consequences to future flood events, Endangered Species, the City of San Marcos, its residents, or its sizeable visitors who return year after year to enjoy the acres of pools of water that only form because Capes Dam exists to tame the water between Rio Vista Park and Cummings Dam in Martindale. Such a head-long rush down an unknown path when historical newspaper articles clearly demonstrate the danger to Endangered Species, as well as recreation -- which includes swimming and fishing - two recreational activities completely omitted from the recreational considerations of WSG's reports - is irrational. A plan to handle the absence of Capes Dam, whether through deliberate removal or "benign" neglect, must be created immediately, to avoid the not-to-be-returned-from extinction of our unique, Federally-protected endangered species: The Fountain Darter fish and Texas Wild Rice. Respectfully submitted, Kelley Smoot Garrett 1550 Alpine Trail San Marcos, TX 78666 512 462 9670 [email protected]

Kelley is a December 1982 graduate of the University of Texas in Austin, graduating with a Bachelors of Science in Geology, with Honors and Special Honors. Her undergraduate thesis, overseen by UT's Jackson School of Geological Sciences' current Dean, Sharon Mosher, focused on Structural Geology and was entitled, "Micro-deformation mechanism in the Moine Thrust, Northwest Highlands, Scotland." Kelley worked as a petroleum geologist in West Texas and Asia from 1983-1996 when she return to Central Texas and began a second career in computer programming and IT management. Kelley worked for IT corporations including Dell, Apple, and Cisco Systems, as well as numerous states' agencies.

Kelley left employment in Nov 2012 to take care of her ailing mother, who has since died. She is currently enjoying her time at her home in the , keeping a respectful distance from a normally dry creek, that occasionally terrifically floods in heavy downpours, for which Central Texas holds 2nd place in world-wide records for the most amount of rainfall dumped in a single hour, and then over a 24-hour period, second only to India during its monsoon season. Figure 1. Omission of 24-acre apartment complex, lack of directional arrow, lack of scale, and inadequately-sized Study Area chosen by Watershed Systems Group. Figure 2. What Watershed Systems Groups’ Study Area should have depicted & included. Figure 2a: An existing, properly delineated and keyed Study Area of the San Marcos River, published 2001 by USFWS, one of whose co-authors, Kevin Mayes, is the 2015-2016 President of the not-for- profit Instream Flow Council which presented Thom Hardy, co-author of Watershed Systems Groups' reports to the City of San Marcos, a Lifetime Achievement Award in 2015. Figure 3. Figure 10 from Watershed Systems Group's June 24, 2015 report to City of San Marcos compares images of different aerial extent and scale to purportedly demonstrate changing dam height. Figure 4. Watershed Protection Plan presented to City of San Marcos as part of development of The Woods Apartment Complex drains directly into the Mill Race, slated to be fill-in as per City of San Marcos filing with Texas Parks & Wildlife, May 18, 2016.