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Council OKs Cape's Dam agreement with county

Wednesday, May 19, 2021

Leave out the science.

That’s what one San Marcos City Councilmember suggested when discussing the Cape's Dam Complex. During the recent city council meeting Tuesday, councilmember Melissa Derrick said during the approval of an interlocal agreement and a Memorandum of Understanding between the City of San Marcos and Hays County — to leave the science out of the discussion.

"I would like to strike one of the 'whereas.' Where it says, 'whereas the scientific community has also pointed out that the flow rate and the main channel of the San Marcos River in the Mill Race are important factors to consider in the protection of river wildlife, etc.' That is not the science for which a lot of scientists believe," Derrick said. "I think that we need to leave the science out of this."

Derrick said if they want to focus on preserving the history and making a park that's what it's about. 

"It's not about the science and people have all kinds of opinions. I don't want opinions to be in our 'whereas' when it's something that's important."

The council agreed and the motion passed 7-0.

Derrick also voiced concerns of the financial obligation, saying it didn't change anything, it just postponed things until such time the council wants to fund things they want. 

"Then we're all going to do our due diligence to bring in third party donations, that sort of thing, I would just like to ask Mr. Lumbreras since our grant staff has a lot of turnover, who will be responsible for coming up with our share of any third-party funding," Derrick said.

City Manager Bert Lumbreras, said they would pass it on to staff.

"I'm quite comfortable with this agreement from several aspects of it," Lumbreras said. "I think we've been clear that we are committing to bringing forward any consideration of any funding for this project, and we would be doing that at different intervals. As a matter of fact, the original agreement that Mr. (Mark) Kennedy had provided, I insisted that we include that in there because I know that this has been a huge project for the city council. I've been here almost four years and I think we've literally been dealing with this project for every aspect of those four years and longer.

"Without a doubt this is a big project," Lumbreras said. "Something that we are all invested in and we want to make sure we get the direction needed from council. ... Plus I'm limited in terms of what spending authority I would have so whatever has to happen council certainly has to weigh in. So, I'm comfortable from that standpoint but to answer your question Councilmember Derrick. Yes, we would task some of our staff. We would be working with any other individuals in the community that have invested interest that could provide us information about any other grant opportunities but our staff would be on point with that."

Derrick also asked if there was a staff member that could organize the efforts and who was going to pay  for it?

"This has to have a project that both the city of San Marcos, or Hays County would not have on staff, someone that we would term as our project manager, someone that would be tasked with having to kind of live and focus on this project from start to finish," Lumbreras said. 

He cited the city's bond projects as an example.

"We hired Jacobs to be our project managers and oversee all aspects of all of our bond projects and hold contractors accountable and kind of be our professionals on staff," he said. 

Lumbreras said the city is going to insist on the county participating as much as possible on any funding, including any services that need to move forward. 

"But I think they need to have some assurance that this project has an opportunity to move forward in some way for them to be able to consider that, and without having an agreement or, some commitment from the city then it's a little bit hard for them to step up and offer what they can do," he added. 

Derrick followed up asking if the Burdine Johnson Foundation was still with the project, that she needed to know if they still had, "skin in the game."

"The county has received no grants in support of analysis or dam rehabilitation or anything to do with the Cape's Dam project,"  Hays County General Counsel Mark Kennedy said. "The Burdine Johnson Foundation provides grant funds to the county, it does so in the form of a donation on the county commissioners court agenda. And there's typically a corresponding item of action for the court, the same agenda. If that happens, it would be sometime in the future."

Councilmember Maxfield Baker said he was surprised that during public comments the San Marcos River Foundation hasn't been approached for its input.

"I'm curious, what a 'Plan B' is for this venture should we not be able to proceed as ideally as it might be painted for us," Baker asked. "Hearing we don't have a clear spot to land the dam on the other side ... sounds pretty alarming. Isn't that something we should clear up before we enter a Memorandum Of Understanding. The permitting, none of that matters that we can't access the other side of the river for the rehabilitation, right? So why have we not cleared that up prior to signing an MOU."

Lumbreras said the city understood there are a number of stakeholders, including property owners that need to be brought to the table.

Kennedy said the county hasn't reached out to anyone because they want to make sure they have a collaborative effort moving forward with the city before that's done.

"Phase one is analysis and diligence, which would not require us to get on anyone's property except for the purposes of analysis, doing survey work etc," Kennedy said. "I did see that the river foundation is saying, no one can enter their property. We have landowners saying that to the county fairly frequently in other contexts, and sometimes a conversation has to be had about rights in that regard."

Baker asked if that was a threat of eminent domain. 

"I did not mention eminent domain," Kennedy said.

Baker said if the goal of the county is to rebuild the dam and they don't have a place to land that dam on the other side he didn't see any reason to move forward with an MOU until it's cleared up.

"I think if the idea is to use eminent domain to achieve that, I wholeheartedly think that's a poor decision," Baker added.

Kennedy said until some diligence is done, the county wouldn't be able to tell whether rehabilitation is possible.

"I don't think we know what access we need until some diligence is done," Kennedy said. "That will tell us whether rehabilitation is possible and how that would look. It could be that the diligence indicates the dam should be removed and that's the only way to achieve the balance of these values." 

Now the county does not believe that's true. 

"Based on what we've seen and heard to date, but we're going to keep the analysis wide open to see what options are available and which ones are the best," Kennedy said. "So, until that's done we just don't know what sort of access we need to either side of the river."

Councilmember Shane Scott agreed saying the city can only speculate at this point.

"We're speculating and we need to get facts," Scott said. "But as to the County, they can actually go on property to survey with notice anytime that they want too, that's a right."

Baker said he felt the council was prudent in making sure the Blanco Gardens and Walls Edition were included in the engagement on the subject and thinks it's necessary to add the river foundation to the discussion as well.

The council unanimously agreed. 

The amended MOU between the city and county was approved with a 5-2 vote.

San Marcos Record

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