re) Cty of Dating February 3,2017 ‘Via CMRRR Number: 7013 3020 0001 1410 3379 and Regular Mail Mir. Rex Crosswhite Chief Counsel USS. Army Corps of Engineers, Fort Worth District 819 Taylor Street Fort Worth, TX 76102 Re: Modificetion of permits re the Trinity Standing Wave. Dear Mr. Crosswhite: 1am the City Attorney for the City of Dallas (“City”). Our office has been tasked with seeking recovery of damages from the design team sustained end to be sustained by the Cty of Dallas (CCity’) related to the Trinity Standing Wave. The feature is referenced as United States Army Corps of Engineers ("USACE") Project Number SWF-2007-00209. The City appreciates USACE’s patience, guidance, and cooperation as the City has attempted to work through the disappointing consequences related to the design flues of the Standing Wave. USACE is aware thatthe City hs received proposals to remove ot modify the Standing Wave at an estimated cost ranging between §2 and $8 million, However, before the final decision is made as to which course of action to pursue and construction begins and to filly exhaust the City’s efforts to mitigate damages, the City requests that USACE consider modifying the permit originally granted to the City to remove upstream navigsbility requirements. The reasons why the permit should be modified are explained below. ‘The Trinity River Under the Rivers and Harbor Aet of 1899 Section 10 of the Rivers aad Harbors Appropriation Act of 1899, 33 US.C. § 403, generally rokbits “eating an obstrction tothe navigable capacity of waters of te United States” unless spproved by Congress or by permit issued by USACE. (On Merch 20, 1999, USACE issued « statement listing the navigable waters ofthe United States ‘which included the following: “Trin River: From the point of intersection of Houston, Madison, and Walker counties ‘upsieam to Riverside Drive in Fort Worth, Tarrant County, Texas.” ‘As discussed in more detail below, because of that determination the City, though its contractor, ‘ought and obtained a permit forthe Trinity Standing Weve. To the bes ofthe City’s knowledge, ‘there has been no change by USACE in its detemination ofthe statu ofthis part of the Trinity River as being considered navigable waters of the United States. However through the de- authorization of proposed projects originally intended to create a river passage for commercial 1traffic between Dallas and Houston the Congress and USACE has recognized tht such passage ‘snot practical, economical, or feasible, Historical Use of the Trinity River! ‘tha been the dream of many Texass thatthe Trinity River could serve as commercial waterway ‘for Metroplex area to transport commerce to and ftom Houston and the Gulf of Mexico. But it remains and will forever remain just a dream. Repeated efforts to somehow fund the necessary efforts o stnighten, dredge, channelize, remove debris, construct locks and dams, and keep water ‘lowing in érought conditions have fled. ‘Lower portions ofthe Trinity River near the coast were used by small packet bosts to transport ‘goods during the colonial period of Texas history. However, that use didnot occur near Dallas. ‘The reported use ofthe Trinity River for commercial purposes near Dallas were sporadic and ‘unsuccessful. For example, in 1852, Jemes A. Smith built a fatbout, loaded it with cotton bales and left Dallas. Four months later head gone just 70 miles and later had to transport the cotion by wagon to Houston, In 1868, Job Boat No. | reached Dallas witha cargo, after voyage ofa year and four days from Galveston. In 1891 a group of Dallas citizens formed the Trinity River Navigation Company to promote river trafic. In 1093 the company's steamboat, the HA. Harvey, Jr, reached Dalles traveling fom Galveston into months and ten days. The saag bost Dallar fst cleared the way by removing soags, debris, and even using explosives to eliminate sand bars. The City bas been unable to Jocate any other stores or acoounts of say other commercial boat successfully making the journey. Daring the early 1900's, a series of locks and dams were proposed to make the Trinity River open to commercial trafic. In 1909, the fis lock end dam was bul southeast of dowalown Dallas near MeCommas Buf. Between 1909 and 1917, total of lock end dams were bil along the Trinity River, Constraction halted duriag Workd War I and never resumed. Work oficially ended with the River and Harbor Act of 1922. The chief of engineers’ report of 1921 had recommended tat the project te abandoned in part because the Tinty River lacked enough water to make the river St for navigation. "Tha histry i raw fom a sumber of sures. See Navigating the Trndy-A Dream That Endared for 130 Yeurs by Jackie MoBihancey; Dalle Coury “Hlattage Society. Legaie: A History Jounal for Dallas and North Central Teas, Voune 03, Number, Spring, 1991, periodical, 1991; Qoxashistorysut efn/ark/67531fmetath3S18fol//: accessed Jamary 20, 2017), University of North Texas Libraries, The Portal to Texas History, exashistorvsmt eds; editing Dallas Historical Society, ‘Upa Lazy Rive? “The Mississippi of Texas" Hometown by Handlebar, avaliable wl es neces Innpalonow vntsiverdallasorfhisoryAdditional studies, surveys, and related efforts to commercialize the Trinity River occured ‘thereafter. The at significant effort was inthe 1970's but a bond proposal was soundly rejected by the voters in Dallas and Tarrant Counties. At that time, it was estimated that it would require at least 1 billion to find the entire projec. Recent Use ofthe Trinity River More recent reports reflec tha the challenges end conditions onthe Trinity River remain the sane. In 2011 the Trinity River Authority's Clean Rivers Program performed a survey of the Trinity ‘River ftonm Fort Worth to Lake Livingston. A summary describes the problems with just geting to te river because of thick vegetation, boulders, and step banks often requiring thatthe boats be ‘winched in end out ofthe river. The summary recounted thatthe crews “dodged many natural and man-made obstructions” but the worst were the remnants of the locks and dams. ‘The old concrete structures make & waterfll to steep fora small boat to traverse, Each lock presented a different sot of challenges. One lock required tnking the boat apart and iting it over the lock and others required access poins in between since they were impossible to portage around. Exhibit 1) Elsewhere, the summary noted that whale the survey started on the West Fork ofthe ‘Teinty River near Interstate 820, “sauch of the segment upetesm of Greenbelt Road was not navigable ina boat, requiring the team to portage for mich ofthe fist eight miles." (Id). In. report prepared for Trinity River Authority, it was noted tha “acces to the main stem ofthe ‘Trinity River is difficult at best with only one public boat ramp along 246 river miles betwesn Dalla and Lake Livingston.” (Exhibit 2, RPS Espey Trinity River LoogeTerm Study, Nov.27, 2013). At Lake Livingston, there is adam which provides a complete obetrocton in the Trinity River, The City was unable to locate any locks as part of the dam and sssumes that portage is required to navigate around the dam. ‘Ove company providing canoe tours on the Trinity River provides the following description of ‘cureat conditions onthe Trinity River below the Standing Wave: ‘Thee are a number of navigation Jock and dam structures downstream of South Loop 12, ‘on the Main Stem, beginning with Lock and Dam #1 at MeCommas Binft. The lock area, ‘on river lefts often Blocked by logs or Sood debris, bat might be navigable at higher river level. The dem ruins on river right have been ran, with caution, saight over the drop. Lock snd Dam #2 is upstream of Belt Line Road it requires scouting and usually must be ‘portaged. Below Melly Bridge there are more structures, starting with a dam near the ‘mouth of Tea Mile Creek, which must be ported. (Exhibit 3, available at bitpfwww cannedallas.comy ‘In February 2016, pursuant tothe Water Resources Reform Development Act of 2014, USACE . Excerpt of RPS Espey Trinity River Long-Term Study, Nov. 27,2013, ‘Excerpt fom Trinity River Expeditions website, available at todo canoedallas com! 4, Excerpt of de-authorized projects under Water Resources Reform Development Act of 2014, available at ‘epultwwnw.uasce arn siVPortal/2/doceliv 2 Olspaf 5. Asie photoraph ofthe Standing Weve, sibmerzed 6. Map of Loc end Dams near Dallas 17. Asie Photogreph of Lock and Dam Number 1 8. Photograph of Lock and Dam Number | 9. Axil Photograph of Lock and Dam Numbers 2 10, Photograph of Lock and Dam Nmbers2 11. Ariel Photograph of Lock and Dam Number 4 12, Ariel Photograph of Lock and Daze Number 6 1, Ariel Photograph of demon Trinity River est of Riveceater Drive, Fort Worth, Texas 14, Asal Photographs of other dams on Trinity River within Fort Worth, Texas 15, Posting, available at htp:/wanw envgoad ventures com/s-swim-and-kaval-down-the= ‘thnusriver-and-dalae-wavel a16, Excerpt of Kayak Inetruction, Ine. website, available at Intpuleww kavakinctroct.com/description whitewater bir)