183 1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 2 SUGAR CANE GROWERS COOPERATIVE OF 3 FLORIDA, INC., ROTH FARMS, INC., and WEDGWORTH FARMS, INC., 4 and 5 FLORIDA SUGAR CANE LEAGUE, INC., 6 UNITED STATES SUGAR CORPORATION, and NEW HOPE SOUTH, INC., 7 and 8 FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038 9 ASSOCIATION, LEWIS POPE FARMS, 92-3039 W.E. SCHLECHTER & SONS, INC., and 92-3040 10 HUNDLEY FARMS, INC., 11 Petitioners, 12 vs. 13 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 14 Respondent, 15 and 16 MICCOSUKEE TRIBE OF INDIANS OF 17 FLORIDA, the UNITED STATES OF AMERICA, FLORIDA DEPARTMENT 18 OF ENVIRONMENTAL REGULATION, and FLORIDA WILDLIFE FEDERATION, 19 Intervenors. 20 . . . . . . . . . . . . . . . . . . . / 21 22 23 DEPOSITION OF RANDALL L. ARMSTRONG 24 February 12, 1993 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 184 1 2 DEPOSITION OF RANDALL L. ARMSTRONG 3 Taken in the above-styled cause, pursuant to 4 notice, at the Phoenix Environmental Group, Inc., 911 East 5 Park Avenue, Tallahassee, Florida, on February 12, 1993, 6 commencing at 8:30 a.m. 7 8 Reported by: 9 JERRY L. ROTRUCK 10 Certificate of Merit 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 185 1 APPEARANCES OF COUNSEL: 2 On behalf of the Petitioners Florida Sugar Cane League, Inc., United States Sugar Corporation and New Hope 3 South, Inc.: 4 William L. Hyde, Esq. Peeples, Earl & Blank 5 215 South Monroe Street Suite 350 6 Tallahassee, FL 32301 7 On behalf of the Intervenor United States of America: 8 Steve Bartell, Esq. U.S. Department of Justice 9 Environmental and Natural Resources Division General Litigation Section 10 601 Pennsylvania Avenue, N.W. Fifth Floor, Room 5613 11 Post Office Box 663 Washington, D.C. 20004-0663 12 (202) 272-4248 13 On behalf of the Intervenor Department of Environmental Regulation: 14 Keith C. Hetrick, Esq. 15 Donna LaPlant, Esq. Assistant General Counsel 16 State of Florida Department of Environmental Regulation 17 Twin Towers Office Building 2600 Blair Stone Road 18 Tallahassee, FL 32399-2400 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 186 1 INDEX TO WITNESS 2 RANDALL L. ARMSTRONG Page 3 Examination (continued) by Mr. Hetrick 188 4 5 6 7 INDEX TO EXHIBITS 8 No. Marked 9 4 202 10 5 217 11 6 223 12 7 226 13 8 283 14 9 290 15 10 297 16 11 299 17 12 303 18 13 314 19 14 318 20 15 323 21 16 323 22 17 332 23 18 337 24 19 354 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 187 1 S T I P U L A T I O N 2 IT IS STIPULATED AND AGREED by and between counsel 3 appearing for the respective parties as follows: 4 THAT the deposition of RANDALL L. ARMSTRONG was 5 taken by agreement for the purpose of discovery, for use as 6 evidence, and for such other purposes as may be permitted 7 by the Florida Rules of Civil Procedure and other 8 applicable law; 9 THAT all objections, except as to the form of the 10 question, are reserved until the trial of this cause; and 11 THAT by agreement of the witness and all parties, 12 reading and signing of the deposition was not waived. 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 188 1 D E P O S I T I O N 2 Whereupon, 3 RANDALL L. ARMSTRONG 4 was recalled as a witness, having been previously duly 5 sworn to speak the truth, the whole truth, and nothing but 6 the truth, was examined and testified as follows: 7 EXAMINATION (continued) 8 BY MR. HETRICK: 9 Q Mr. Armstrong, I believe you have in front of you 10 Rule 17-4.242. 11 A Yes. 12 Q If you could turn to 17-4.242, for your reference, 13 subsection (2), this deals with Outstanding Florida Waters. 14 A Which subsection? 15 Q Subsection (2) -- 16 A Yes. 17 Q -- would be the operative one we are going to work 18 with here. 19 A All right. 20 Q Are you familiar with this subsection on 21 Outstanding Florida Waters? 22 A Yes, I am. 23 Q Did you have any part in the development of this 24 section? 25 A Some. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 189 1 Q When did it initially come about? 2 A I believe in 1979. 3 Q First, can you tell me what the extent of your 4 involvement was in the development of this subsection? 5 A It was fairly limited at that point in time. I 6 think, as I mentioned yesterday, I was -- in a sense, I was 7 a user at that point in time, in that I was in a technical 8 assistance group that was involved in the use of the 9 Department's water quality standards or implementation of 10 the standards, and a lot of the discussions that went on 11 with our group centered around how would you use and apply 12 this information or this particular language that was being 13 drafted. I don't recall that I drafted any of this 14 proposed language for this section. 15 Q Can you explain to me in your own terms what the 16 concept of Outstanding Florida Waters is? 17 A The section -- this section of the rule 18 essentially sets up a higher degree of protection for 19 waters that are determined to be worthy of such additional 20 protection, either because of their particular attributes 21 or uses by the public. 22 Q What are the requirements for OFW designation? 23 A Well, the Environmental Regulation Commission has 24 to make a finding that the waters are worthy of such 25 designation, as I mentioned, either because of the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 190 1 attributes of a particular water body or the uses to which 2 the public puts those water bodies. 3 Q Maybe you can tell me, explain to me what the 4 attributes are that they might -- 5 A Well, it could be the particular quality of those 6 waters, it could be of an outstanding quality or have 7 outstanding, if you will, biological resources that the 8 Commission feels are worthy of additional protection. 9 Q What kinds of uses by the public might qualify for 10 such a designation? 11 A Well, one obvious one would be recreation, waters 12 that are -- may not have exceptional quality or, in fact, 13 they may be, but they may be highly used by the public for 14 recreation, for water sports, for fishing, activities such 15 as those. 16 Q What are the operative standards for OFW? 17 A Basically, that the quality of those waters should 18 be protected as is or as they existed when the waters were 19 designated and should not be allowed to be lowered to any 20 significant degree. 21 Q If you would look at the subsection under (2), you 22 will see (2)(a), and then number 2 at the bottom where it 23 says the proposed activity or discharge is clearly in the 24 public interest, and then beyond that is little a, 25 paragraph a and little paragraph b. What does it mean -- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 191 1 do you have that section? 2 A Yes, I do. 3 Q What does it mean for a Department permit to be 4 issued or complete on the effective date of an OFW 5 designation? 6 A Well, this particular section speaks to 7 activities, discharges, for example, that are already 8 permitted by the agency when the waters are designated, or 9 activities for which a permit has been applied for and the 10 application has been deemed complete by the Department. 11 Q What would be the effect of this particular 12 provision on a discharge that did not meet the requirements 13 or these requirements? 14 MR. HYDE: I am not sure I understand the 15 question, so I am going to object to its form. Which 16 section are you referring to? 17 MR. HETRICK: Sub (a) and (b), the ones we have 18 been discussing. 19 THE WITNESS: I am a little unclear on the 20 question, too. Maybe if you could restate it? 21 BY MR. HETRICK: 22 Q Let me just go down to sub (b), if you will, where 23 it begins with, "For the purpose of this section --" 24 A Yes. 25 Q " -- the term," quote, "`existing ambient water A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 192 1 quality,'" unquote, "shall mean the better water quality of 2 either that which could reasonably be expected to have 3 existed for the baseline year of an Outstanding Florida 4 Water designation, or," number 2, "that which existed 5 during the year prior to the date of permit application." 6 Then, "It shall include daily, seasonal and other 7 cyclic fluctuations, taking into consideration the effects 8 of allowable discharges for which Department permits were 9 issued or applications for permits were filed and complete 10 on the effective date of designation." 11 Have you interpreted this provision? 12 A Yes. 13 Q On how many occasions? 14 A I really couldn't tell you. I would say 15 frequently or numerous times. 16 Q Can you explain to me what this provision means? 17 A Basically, this provision refers to the quality of 18 the water within the Outstanding Florida Water that the 19 Department should strive to protect. It directs the 20 Department to establish as a goal, if you will, a water 21 quality goal or standard for that water body the quality 22 that existed during the baseline year, which is given to be 23 the year prior to designation, or the existing quality for 24 the year prior to the date of a permit application, 25 whichever is better. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 193 1 Q What level of effort would be required to be used 2 by the Department to use, quote, "the best scientific 3 information available"? What would they need to undertake, 4 what kinds of analysis? 5 A Maybe nothing. It would depend on how much 6 information was available as to what additional work the 7 Department might have to do or an applicant might have to 8 do, and the information may exist or may not. 9 Q What kinds of information? 10 A Primarily water quality information, since that is 11 really what this subsection speaks to. 12 Q Is 1979 the baseline year for all Outstanding 13 Florida Waters? 14 A No, it is not. 15 Q There are different baseline years? 16 A That is correct. 17 Q Are you familiar with what the baseline year is 18 for the Loxahatchee and Everglades National Park? 19 A I believe that both of those waters were in -- I 20 will say the original designation in 1979. I believe, as I 21 mentioned yesterday, I am not sure if any changes have been 22 made over the years to the boundaries of those OFWs. 23 Sometimes there are additions and modifications to the 24 boundaries during the course of rulemaking, and I couldn't 25 speak to whether the same exact designations are in place A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 194 1 or not as there were in those early years. 2 Q In the analysis of this provision, what does it 3 mean by the term, "it shall include daily, seasonal and 4 other cyclic fluctuations"? 5 A Water quality is not a static trait, it is 6 dynamic. Many of the parameters that can be used to 7 characterize a water body change in a daily, seasonal or 8 other cyclical fashion, and the rule directs the Department 9 to consider those changes. 10 A good example might be if a baseline year was 11 being analyzed that happened to be an extremely dry or 12 extremely wet year or perhaps an extremely cold or warm 13 year, the results of that baseline study might be somewhat 14 unusual, given the normal characteristics of the water 15 body, and it just directs the Department to consider those 16 factors in determining baseline quality. 17 Q Do you know how daily, seasonal and cyclic 18 fluctuations were taken into consideration with regard to 19 the designation of the Loxahatchee as an Outstanding 20 Florida Water? 21 A The designation of the water doesn't necessarily 22 involve the documentation of the baseline quality. In 23 fact, as it mentions, the existing quality the Department 24 would have to consider might be the year prior to receipt 25 of a permit application, so the designation is based on the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 195 1 attributes of the water -- 2 Q Right. 3 A -- the information that is available to the 4 Department and the Environmental Regulation Commission for 5 designation, and in all cases the baseline study for the 6 year prior to designation was not done. 7 Q With respect to the Loxahatchee, how did existing 8 ambient water quality take into consideration daily, 9 seasonal and other cyclic fluctuations? 10 A I don't know. 11 Q How about for the Everglades National Park? 12 A I don't know. 13 Q If we continue on after that, it says, "It shall 14 include daily, seasonal and other cyclic fluctuations, 15 taking into consideration the effects of allowable 16 discharges." 17 What is meant by the term, "allowable discharges"? 18 A I guess the opposite of that would be the 19 discharges that were illegal or should not have been 20 allowed by the Department during that period. 21 Q How would one determine whether a discharge would 22 be allowable during that period? 23 A Well, I think it would be a matter of determining 24 the types of discharges for which the Department would have 25 required a permit in that period, followed by a A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 196 1 determination of whether a continuing discharge that was 2 required to have had a permit did, in fact, have such a 3 permit or have an application on file at the time of 4 designation. 5 Q What does it mean by the term "Department permit" 6 there? 7 A It seems pretty self-explanatory. I am not sure I 8 understand your question. 9 Q It is a DER permit? 10 A Yes. 11 MR. HETRICK: Could we take a two-minute recess? 12 (Brief recess.) 13 BY MR. HETRICK: 14 Q Mr. Armstrong, back to that subparagraph (c) that 15 we have been working on, how would an existing discharge on 16 the date of designation be handled in determining ambient 17 water quality? 18 A How would it be handled? 19 Q Yes, or evaluated? 20 A I think the first question would be whether or not 21 that discharge would have required a Department permit. 22 That is what the test speaks to, to have a permit or an 23 application on file. 24 There were many activities that were going on that 25 were going on when waters were designated that didn't A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 197 1 require permits, but if it required a permit, then the 2 question would be whether that permit had been issued or 3 whether an application was complete for a new activity. 4 Q What if the activity was one that did not require 5 a permit? 6 A I don't believe the grandfathering provision would 7 speak to that. If it existed but did not require a permit, 8 then it would not in a sense be illegal and, therefore, the 9 quality that existed would take into consideration that 10 activity. 11 Q How would a discharge that had a permit be 12 evaluated in defining or determining existing ambient water 13 quality? 14 A Well, for purposes of this OFW section, if it was 15 an existing discharge and it had a permit, then that, then 16 the effects of that discharge on a water body would be 17 included in the baseline quality of the water body for 18 purposes of regulation by the Department. 19 Q So it would, in determining the existing ambient 20 water quality, then it would include the effects of the 21 discharge and not exclude the effects of the discharge? 22 A The permitted discharge. 23 Q The permitted discharge? 24 A That is correct. 25 Q What about for unpermitted discharges? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 198 1 A Well, I think the question was whether or not it 2 should have required a Department permit. As I said, there 3 were discharges when many of the OFW designations were done 4 that did not need a Department permit. They were perfectly 5 legal, and they were included in that water quality. 6 If the Department would have required a permit and 7 the permit existed, then the quality should have been 8 included in the background determination of the quality of 9 the OFW. 10 Q Then are you saying that that, in effect, would 11 mean they would look at -- if it was not a permitted 12 discharge and it should have been permitted, then they 13 would look at whether or not it was an allowable discharge? 14 A No. If it did not have a permit and it should 15 have been permitted, then -- I will put this -- if it 16 should have had a permit and did not, then it should not 17 be -- its effect should be removed from consideration of 18 the background work, the discharge should have been brought 19 into the permitting process, whether it would have required 20 it to be upgraded or not would be a separate test, or 21 removed, in fact. 22 Q Okay. 23 A I don't think the rules serve to grandfather in 24 unpermitted activities for which a permit should have been 25 required. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 199 1 Q Let's look at sub (d) for a moment. It is the 2 next one. 3 MR. HYDE: Just to be clear for the record, you 4 are talking about 17-4.242, paren (2), paren (d)? 5 MR. HETRICK: That is correct. 6 MR. HYDE: Okay. 7 BY MR. HETRICK: 8 Q Beginning with Rule 17-4.242, parens (2), if you 9 could just review that paragraph, referring to renewal 10 permits? 11 A I lost it. 12 Q Just paragraph (d). 13 MR. HYDE: Are you referring to a specific clause 14 in paragraph (d)? 15 BY MR. HETRICK: 16 Q I can read it. It is only five lines. 17 "Rule 17-4.242(2) shall not apply to any dredge or 18 fill activity or any discharge to an Outstanding Florida 19 Water permitted by the Department or for which a complete 20 permit application was filed on the effective date of an 21 Outstanding Florida Water designation, nor shall it apply 22 to any renewal of a Department permit where there is no 23 modification in the dredge and fill activity or discharge 24 which would necessitate a permit review." 25 Do you have that? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 200 1 A Yes, I do. 2 Q Could you just explain the meaning of that section 3 to me? 4 A Basically, what this subsection does is allow the 5 continuation of activities or discharges for which a permit 6 has been issued or had been issued on the effective date of 7 the rule or an application, complete application was on 8 file, as long as there are no modifications to the activity 9 or discharge that would necessitate a review of a new or 10 modified permit, for the purposes of a renewed or modified 11 permit. 12 Q So it contemplates activities that have permits 13 on the date of OFW designation or have complete permits on 14 that date? 15 A Well, it is discussing activities or discharges 16 that have permits or complete applications on the date of 17 designation. I think you used the term "contemplates." It 18 is speaking to that particular case. 19 Q One last thing, going back to sub (c), where we 20 were talking about allowable discharges, would you consider 21 allowable discharges to apply -- well, just to put it 22 bluntly -- to mean the same as having that permit if, in 23 fact, the actual permit is not on record when activity 24 should have been permitted? Maybe I asked you that 25 question. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 201 1 MR. HYDE: I am going to object to the form of the 2 question. I didn't understand it. 3 THE WITNESS: Please restate it if you could. I 4 am confused, also. 5 BY MR. HETRICK: 6 Q If you look at the term "allowable discharge" in 7 sub (c) -- I am going to strike that. 8 Well, let me just ask you, is allowable discharge 9 the same as having a permit, equivalent to having a 10 permit? 11 A I think for purposes of the language in sub (c) 12 that you are referring to, the sentence is speaking to 13 discharges for which a permit would be required or an 14 application is complete, but there are discharges and 15 activities that go on in waters that don't require permits, 16 and I don't think this subsection speaks to those. 17 There are many activities that are going on, man- 18 induced activities that the Commission has to take into 19 account in deciding whether to designate or not designate. 20 That doesn't mean that those activities are illegal because 21 they don't have a permit. One simply wasn't required. It 22 might be required in the future or it might not, but I 23 don't think that is what this subsection is speaking to. 24 MR. HETRICK: Okay. I will offer this as Exhibit 25 No. 4. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 202 1 (Whereupon, Exhibit No. 4 was marked for 2 identification.) 3 BY MR. HETRICK: 4 Q If you could review that document just briefly. 5 Do you recognize the document? 6 A Vaguely. 7 Q I guess my general opening question would be, can 8 you tell me what was going on in this document? 9 MR. HYDE: Could we have just a moment to review 10 this document? 11 MR. HETRICK: Sure. 12 MR. HYDE: It is the first I have seen it. Okay. 13 BY MR. HETRICK: 14 Q I just have some general questions about this, and 15 my first is, what was going on in this? 16 A The Department was involved in consideration of a 17 designation of a large portion of the waters in the Florida 18 Keys as Outstanding Florida Waters. The issue had come up 19 concerning the exemption of certain areas from designation, 20 and we were dealing with that issue as a general policy, 21 not just for the Keys, but omitting certain areas from 22 designation had been done by the Commission, and certain 23 other designations, and we were discussing options 24 concerning consideration of that policy, or at least those 25 types of recommendations to the Environmental Regulation A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 203 1 Commission. 2 Q On page 5 of this document, it refers to Key West 3 Sewage Outfall. Can you tell me specifically what was 4 going on with respect to Key West? 5 A The City of Key West operated a sewage collection 6 system that discharged essentially raw sewage south of the 7 city of Key West into the Atlantic Ocean. 8 Q Did the Key West sewage treatment plant have a 9 permit at the date of OFW designation? 10 A It did not. 11 Q Did this cause you -- how did this affect your 12 thinking about OFW designation at that time? 13 A Well -- 14 Q Did this cause you any concerns? 15 A It caused us concerns, yes. 16 Q What were the bases for these concerns? 17 A That there may be an area around the outfall in 18 which water quality had been degraded and therefore may not 19 be worthy of designation, and secondly, the outfall was, 20 the Department was in the process of bringing that outfall 21 under permit, and the effect of that effort was unknown at 22 that point in time. 23 Q How would the effect of existing unpermitted 24 sewage treatment plant flow be accounted for in defining 25 OFW ambient water quality? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 204 1 A How would it be accounted for? 2 Q Yes. 3 A I am not sure. 4 Q How would you evaluate that? 5 A Well, I think there are really two parts to the 6 answer to that question. One is, what is the quality that 7 existed, which we were charged with determining throughout 8 the Outstanding Florida Water, and the second would be what 9 is the anticipated future condition of that area. 10 In other words, is the Department expected to 11 bring that outfall under permit and therefore bring it into 12 compliance with standards, and those were the two issues 13 that I think the section speaks to. 14 Q Let me just ask you in respect to the anticipated 15 future condition, what was the result of your thinking on 16 that aspect of it? 17 A What was the -- 18 Q What was the anticipated future condition? 19 A That the outfall would be brought under permit, 20 and therefore the water quality should not continue to 21 degrade and, in fact, might improve, depending on what that 22 permit required. 23 Q This leads into my next question -- 24 MR. HETRICK: Could you read back the last part of 25 that question? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 205 1 (Whereupon, the court reporter read the requested 2 portion of the record.) 3 MR. HETRICK: I mean the answer to the question. 4 (Whereupon, the court reporter read the requested 5 portion of the record.) 6 BY MR. HETRICK: 7 Q So is the relevant water quality standard for the 8 discharge from the Key West STP after OFW designation, if 9 it had no permit on the date of that designation, a non- 10 degradation standard? 11 MR. HYDE: I object to the form of the question. 12 BY MR. HETRICK: 13 Q Let me ask it this way. What would be the 14 relevant water quality standards then from discharge from 15 the Key West STP after OFW designation if it had no permit 16 on the date of designation? 17 A If I recall, the Commission ultimately did exempt 18 the area around the outfall, so the OFW standard would not 19 be applied within that area of exemption. 20 Q In paragraph III, under subpart A of this memo, 21 did the Department identify -- I am sorry. Did the 22 Department adopt this approach outlined in the exemption? 23 MR. HYDE: What approach? 24 BY MR. HETRICK: 25 Q Well, what is identified in paragraph III. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 206 1 A Well, there is no approach recommended there. In 2 that paragraph, basically, what this language is speaking 3 to is what I just mentioned, that there are two issues 4 here. One is a technical issue, that some water quality 5 degradation had occurred, as is stated here, at least 6 partially abatable; and, secondly this is an activity, a 7 discharge for which a permit should have been required and 8 ultimately will be required, and that is not a technical 9 issue, that is a legal issue that the Department was 10 dealing with. 11 So I guess the point of this paragraph is that the 12 water quality in that area is expected to change or could 13 change as a result of the activities of the Department 14 bringing that under permit. 15 MR. HYDE: Let's go off the record for a moment. 16 (Discussion off the record.) 17 BY MR. HETRICK: 18 Q Mr. Armstrong, one of the purposes or the 19 fundamental purpose of this deposition is to find out your 20 ultimate opinions and the basis of your opinions as to what 21 you are going to testify to regarding the rules in this 22 case and how they may apply to the Everglades, so I am 23 going to ask you, what is your opinion about whether the 24 discharges from the S-5A and S-6 into the Loxahatchee and 25 the S-12 and S-333 in the ENP are grandfathered? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 207 1 MR. HYDE: Under what, under the OFW rule? 2 MR. HETRICK: Under the OFW rule. 3 THE WITNESS: It is my understanding based on the 4 facts that have been presented to me, and as I said 5 before, I have not done any independent analysis on my 6 own, but it is my understanding those discharges 7 existed when those areas were designated as Outstanding 8 Florida Waters and the Department permit was not 9 required for those discharges, and therefore I feel 10 that they were in place and considered by the 11 Commission in establishing the quality of those waters 12 as worthy of OFW designation. 13 Therefore, they weren't illegal in a sense that 14 there was not a permit required and had not been 15 obtained. I would consider them grandfathered based on 16 the facts that I understand the matter. 17 BY MR. HETRICK: 18 Q And those facts are as you have explained them? 19 A That they -- that is correct, that they existed 20 and a Department permit was not required for them at that 21 time, not unlike an urban stormwater pipe in any other area 22 of the state that existed when that area was designated as 23 an Outstanding Florida Water, there wasn't a Department 24 permitting process for those facilities, and they were 25 perfectly legal and did not require a permit in those days. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 208 1 Q In your view, does that mean that the Department 2 or the district could never require that nutrient 3 concentration levels or loading be reduced if, in fact, 4 those discharges were grandfathered? 5 A Not at all. 6 MR. HYDE: Was that question addressed to the 7 OFWs's standard or as a broad brush for any standard? 8 BY MR. HETRICK: 9 Q Well, let's take one at a time. With regard to 10 the OFW standard in particular? 11 A Maybe you had better restate the question as it 12 relates to an OFW. 13 Q Assume for the moment that we have discharges that 14 were considered grandfathered under the OFW rule, okay? 15 A All right. 16 Q Could the Department or district ever require that 17 nutrient concentration levels for loading be reduced under 18 that OFW rule? 19 A I think you may be asking two questions. I will 20 answer it this way. I think the Department could 21 subsequently require those discharges to come under permit. 22 Q Okay. Could they require -- 23 A For a couple of reasons. One would be if the 24 discharge concentrations or loadings were increasing and 25 the Department felt that that might constitute a violation A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 209 1 of the OFW requirements to maintain the quality that 2 existed, or, secondly, if the Department determined that 3 those discharges might be causing a violation of some other 4 Department rules, for example, a Class III water quality 5 standard that was not an OFW standard. 6 So the answer is the Department could subsequently 7 require a permit. 8 Q Would it have to require a permit in order to, if 9 the facility or the discharge, operative discharge was not 10 permitted in order to require that nutrient concentration 11 levels or loading be reduced if, in fact, they were 12 increasing, thereby causing a violation of Class III water 13 quality standards? 14 MR. HYDE: Object to the form of the question. I 15 think it was unclear as to what was being asked. 16 BY MR. HETRICK: 17 Q Do you understand the question? 18 A Let me try. 19 Q My question is merely towards the permit. 20 A Let me see if I understand it, and I will sort of 21 reask it in answering the question. 22 The question is, would the Department have to, I 23 think, would the Department have to require a permit to 24 require some reduction? 25 Q Sure. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 210 1 A That is the way the Department functions. The 2 Department couldn't send a letter and ask, it would have to 3 take some legally binding action, and that is what the 4 Department is in the business of doing, either taking 5 enforcement action or permitting action. So to require 6 some abatement of a discharge, that is the process that I 7 would expect the Department to use. 8 Q Is it correct to state, then, that OFW 9 designation does not, per se, authorize a continuing 10 violation of Class III water quality criteria? 11 A That is correct. 12 MR. HETRICK: Let's go off the record for a 13 minute. 14 (Discussion off the record.) 15 BY MR. HETRICK: 16 Q We are about finished with OFW, but I just want to 17 follow up on what we were just talking about. 18 The OFW designation does not authorize the 19 continuing violation of Class III water quality criteria. 20 In your opinion, if grandfathered discharges at the 1979 21 baseline levels are causing violations of dissolved oxygen, 22 would the Department have a right to take some action to 23 abate that condition? 24 A Yes. 25 Q If the discharges at the 1979 levels would be A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 211 1 causing imbalances in flora and fauna, would it be your 2 opinion that the Department would have a right to take some 3 action to abate that condition? 4 A Assuming that that constituted a violation of the 5 standards, yes. 6 Q I want to -- I have been talking about the 1979 7 levels, baseline levels, since we went back on the record 8 after that break. I can go back and reask these questions, 9 but my question specifically in talking about the 1979 10 baseline level referred to Loxahatchee and ENP. 11 Do you want me to go back and reask that question 12 in that context? I assume we are talking about -- 13 A I don't think it is necessary. If the Department 14 demonstrated that those discharges caused those violations, 15 then they could take action. 16 Q And the last question in this regard is if these 17 discharges at the 1979 levels are causing an increase in 18 nuisance species in either the Loxahatchee or the ENP, 19 which are OFWs, would the Department have the right to take 20 action to abate that condition? 21 A If those constituted violations of the standards, 22 yes. 23 Q And one last thing on OFWs. Are you familiar 24 with how the OFW baseline was determined for the 25 Loxahatchee and the ENP? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 212 1 A Vaguely. I remember lengthy discussions about it, 2 but I really don't know specifics off the top of my head. 3 Q Were you aware -- were you a decision-maker in 4 that determination? 5 A I don't believe I was. I remember the 6 discussions, but I don't think I played a major role in 7 that. 8 Q Let's just talk about antidegradation for a 9 minute. Back in -- and I believe that is subsection (1) of 10 17-4.242. You are familiar with that subsection? 11 A In general. 12 Q Did you participate in the drafting of that 13 section? 14 A No, I did not. 15 Q Can you explain to me in general what this 16 subsection (1) is talking about as far as antidegradation 17 is concerned? 18 A Well, I think it is an attempt by the Department 19 to recognize waters that might be -- that might have 20 quality that is better than the applicable standard, and it 21 sets forth the situations in which the Department might 22 serve to protect that higher water quality even though it 23 may be better than the standard. 24 Q Under that subsection (c), actually, it would be 25 paragraph c, where it says in addition to subsection (b) A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 213 1 above, do you see that? 2 A Yes. 3 Q It talks about proposed discharges. What is meant 4 by that term? 5 A I believe this subsection of the paragraph is 6 referring to a proposed discharge which would require 7 Department permit. 8 Q So, in essence, it is a non-permitted discharge? 9 A It could be a nonexistent discharge. It is just a 10 discharge for which a permit would be required, I believe 11 in a sense, in the way it is used here. 12 Q I want to go back to -- shift gears for a moment 13 and go back to Exhibit 3 from yesterday. 14 What was your position with the Department, Mr. 15 Armstrong, on this date, January 29th? 16 A I was the director of the Division of Water 17 Management. 18 Q I just want to be clear. I was a little confused 19 yesterday. 20 You had mentioned to me that the comments in this 21 memo were your staff comments, and I just want to make sure 22 I understand as we go through these documents, and maybe 23 the best way, I will go through some questions here, but 24 when your staff takes any kind of position on an issue when 25 you are with the Department, if you ever disagreed with A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 214 1 that position -- let's put it this way. Did you generally 2 discuss things in house to reach a consensus before you 3 would ever advise the Secretary as to what the position of 4 your division was? 5 A Generally. 6 Q You would not let your staff submit a memo on your 7 behalf unless you had had an in-house agreement as to what 8 your Division's position was on an issue, would you? 9 MR. HYDE: Do you mean in each and every 10 instance? 11 BY MR. HETRICK: 12 Q You wouldn't let your staff simply submit a 13 memorandum to the Secretary without them getting with you 14 to -- or put your name on a memo without them going through 15 you to sign off and get your permission and agreement as 16 division director, would you? 17 A I take that question a little differently. I 18 instructed my staff to send any information that they -- 19 that needed to go to the Secretary through me, so I 20 screened that information before it went to the Secretary. 21 Q And when your staff would reach conclusions or 22 develop a position of the division and you had this 23 consensus in house, this consensus building process in 24 house, when they adopted a position, it would be your 25 position? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 215 1 A No. 2 MR. HYDE: I object. That assumes facts not in 3 evidence. You are assuming there was a consensus in 4 the process in each and every instance, and I don't 5 think that is what the testimony is. 6 BY MR. HETRICK: 7 Q Well, I am just trying to find out -- and this 8 memo is a good example. The memo speaks for itself as far 9 as what was going on in this memo, but it was a memo from 10 yourself to the Secretary reporting on Sugar Interests' 11 Perspectives, on this 30-parts-per-billion standard in the 12 Everglades SWIM Plan, and as I understand this memo, and 13 correct me if I am wrong, there are issues that are 14 highlighted throughout this memo, and then there is some 15 kind of evaluation or response that the Department is 16 giving to the Secretary as to what the division's position 17 was on those issues, is that not correct? 18 A That is correct. 19 Q Now, you signed off on this. Would this have been 20 your division's position on this and would this, in fact, 21 have been -- in your professional capacity as division 22 director, would this, in fact, have also been your 23 position? 24 A This was the division's position, and as division 25 director, I was responsible for that. My position as a A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 216 1 professional was based on the information being presented 2 to me. I did not do an independent analysis of each of 3 those issues. 4 Q I understand that. 5 A But this was the division's position, and I was 6 director of the division. 7 Q It was not in your job responsibility to do an 8 independent analysis, was it? 9 A Or -- that is correct, and it certainly was not 10 possible to do that. 11 Q But then again, if you had questions about any of 12 the positions taken in this, or if you had disagreement, 13 you would have let your staff go ahead and submit this with 14 your name on it? 15 A No. 16 Q Until you arrived at a consensus position that 17 satisfied you, is that not correct? 18 A Well, you keep using the term "consensus 19 position." I had to feel comfortable with the position 20 that was being offered in the memorandum before I would 21 send it on to the Secretary. 22 Q That is what I am trying to -- 23 A The staff may not agree with it, or it may not 24 have consensus, but I was responsible for it in the 25 Secretary's eyes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 217 1 Q I want to go to Exhibit 5. 2 (Whereupon, Exhibit No. 5 was marked for 3 identification.) 4 MR. HYDE: Give us a moment to review this, too. 5 MR. HETRICK: Sure. 6 BY MR. HETRICK: 7 Q Have you reviewed this? 8 A Yes, I have. 9 Q Who is Katherine Gilbert? 10 A Katherine is a, I would say, a wetland ecologist, 11 probably more than a botanist, who works in the 12 Jurisdictional Evaluation Section of the Division of Water 13 Management. I believe she still works there. 14 Q Does she work in the Tallahassee office? 15 A Yes. 16 Q For DER? 17 A Yes. 18 Q If you will look on the first page -- well, first 19 of all, can you explain to me what was going on in this 20 memorandum, generally? 21 A Yes, I think I can. The South Florida Water 22 Management District had been presenting some preliminary 23 information to us dealing with their evaluation of the 24 Everglades for SWIM planning purposes. 25 The Secretary had asked us to look into the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 218 1 possibility, not the possibility, the potential options for 2 use of biological control of nutrients and, in particular, 3 nutrient removal by growth and culturing of certain crop 4 species. 5 Katherine, being a wetland ecologist, was asked to 6 look at that from a scientific point of view and give her 7 thoughts on that issue. 8 Q Did she draft any reports? 9 A She drafted this memorandum. I believe she did. 10 I assume she did. 11 Q The second sentence reads, "The high nutrient 12 concentrations in water entering the water conservation 13 areas north of Everglades National Park have had an 14 apparent negative effect on the vegetative communities of 15 the conservation areas as exhibited by the displacement of 16 sawgrass by cattails and disappearance of periphyton," and 17 there is a parentheses, "a basic component of the food 18 chain in the Everglades area." 19 Did you discuss this aspect of it with her? 20 A I don't believe that I did. 21 Q Did you have any opinions on that at the time? 22 A I don't believe that I did. 23 Q Did you -- do you agree with that statement or do 24 you disagree with that statement? 25 A Neither. I think this memorandum and my position A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 219 1 at this point in time was based on information, as the 2 first sentence states, that South Florida Water Management 3 District had been gathering. We had not done any 4 independent analysis, we, the agency or my staff, had not 5 done any independent analysis. 6 This statement is based on information that was 7 being presented to us by the water management district. To 8 my knowledge, it is. 9 Q Were any studies done by the South Florida Water 10 Management District that were being evaluated by Katherine 11 Gilbert at the time this memo was -- 12 A I don't believe so. 13 Q What was -- she was your -- were you responsible 14 for her? Did she work for you? 15 A Yes, she was in our division. 16 Q Well, in your professional capacity as her 17 supervisor, what was the basis for this statement that she 18 was making? 19 A My professional capacity, my understanding of the 20 basis of the statement was, the information, as I said, 21 that had been presented to us, to Katherine and myself and 22 others, by the water management district. We did no -- we 23 had not done any independent analysis. She was simply 24 restating facts that had been given her. 25 Q Would that information that had been presented to A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 220 1 her -- what kind of information was that? 2 A I don't know what written materials she might have 3 been supplied with, but at this point in time we had 4 received some briefings from South Florida Water Management 5 District staff, which I believe Katherine sat in on at 6 least one of those briefings. 7 She was asked to do an analysis of the vegetation 8 removal options based on the information that had been 9 presented to her by the water management district, and I 10 believe verbally, although she may have received some draft 11 documents for review. I don't recall any. 12 Q Do you have an opinion as to whether high nutrient 13 concentrations in water entering the water conservation 14 areas north of the Everglades National Park does, in fact, 15 have a negative effect on vegetative communities of the 16 conservation areas as exhibited by the displacement of 17 sawgrass? 18 A I don't have a personal view on that. 19 Q By cattails? 20 A No. 21 Q Do you have a professional opinion? 22 A I don't have opinions. I have information that 23 has been presented to me, and I don't have my own 24 professional, personal opinions. 25 Q Do you have an opinion as to whether nutrients A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 221 1 can cause -- excessive nutrients can cause low levels of 2 dissolved oxygen in a water body? 3 A Yes. 4 Q Do you have an opinion that the growth of cattails 5 is more conducive to an environment with low levels of 6 dissolved oxygen than sawgrass? 7 A No. 8 Q Just out of curiosity, why did she not send this 9 letter directly to Dale Twachtmann? 10 A As I stated before, I had instructed my staff not 11 to send any reports or memoranda to the Secretary without 12 sending them through me. That was one of the Secretary's 13 directives, and I agreed with him. 14 Q What was the purpose of that? 15 A Well, just to control the information going to the 16 Secretary. I was responsible for the work of the division, 17 and the Secretary wanted me to be aware of everything that 18 was going on in our division as best I could, and he held 19 me responsible for that work. 20 Q Would you turn to page 4, the second paragraph? 21 It talks about, the third sentence, which is about six 22 lines down, beginning middle part of it, it says, "Cattail 23 is a native plant. It has been distributed around the 24 world for eons. It is an opportunistic plan which responds 25 well to disturbance and high nutrient levels. There is A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 222 1 information that cattail is an invasive species, produces 2 high concentrations of organic matter, has little wildlife 3 or positive water quality value and can escalate mosquito 4 control problems." 5 Do you agree with that statement? 6 A I don't have an opinion. This is Katherine's 7 opinion. 8 Q And it is not your opinion? 9 A I have heard this kind of information presented 10 before. I can't say I have a personal or professional 11 opinion. I have not done these kinds of studies myself. 12 Q Well, would her report, which did go to the 13 Secretary, vary from your opinion as to a statement which 14 appears to be a fairly generic statement? 15 A Would -- I am sorry? 16 Q Would her opinion differ from your opinion in this 17 regard? 18 MR. HYDE: I think he has already answered that 19 question by saying he has no opinion in this regard, so 20 how could it be different from it? 21 THE WITNESS: Basically I was transmitting her 22 opinion to the Secretary, which I felt was based on her 23 professional experience in the specific field of 24 wetland ecology. 25 BY MR. HETRICK: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 223 1 Q If you had disagreed with this statement, would 2 this have made it to the Secretary? 3 A No, it would not. 4 ME. HETRICK: Let's go to Exhibit 6. 5 (Whereupon, Exhibit No. 6 was marked for 6 identification.) 7 MR. HETRICK: I apologize. 8 THE WITNESS: The page is difficult to read. 9 MR. HETRICK: We can read along, or I can tell 10 you what it says and we can agree what that page is 11 saying. 12 MR. HYDE: Wasn't this document attached to 13 another exhibit? 14 MR. HETRICK: No. 15 MR. HYDE: Okay. 16 BY MR. HETRICK: 17 Q Who is the person that wrote this memo? 18 A Dr. J. G. Thabaraj, who was the chief of the 19 Bureau of Water Analysis, I believe is the title at that 20 time. 21 Q This is dated August 17, 1981? 22 A I believe so. 23 Q Do you recall this memo at all? 24 A Vaguely. 25 Q What was your relation to his position at the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 224 1 time? 2 A I believe at that time I was the administrator of 3 the Water Quality Analysis Section. I reported to Dr. 4 Thabaraj. 5 Q I noticed you were CC'd on this memo? 6 A Yes. 7 Q I just had one question on this document. Would 8 you turn to page 3? 9 MR. HYDE: Was that August 17, 1981? 10 MR. HETRICK: That is correct. 11 BY MR. HETRICK: 12 Q I just have two questions. In general, do you 13 recall what was going on in this discussion? 14 A As I said, I vaguely recall the memorandum. I 15 believe yesterday we looked at some correspondence that 16 pertained to proposed nutrient standards submitted to the 17 Department by the Florida Game and Fresh Water Fish 18 Commission. I think that is what this memo -- apparently 19 this document referred to. 20 Q I just have on page 3, where it says Validity of 21 Uniform Standards, under a. it says -- well, right under, 22 it says, "Enough arguments could be made to invalidate the 23 concept of statewide uniform standards for nutrients and 24 chlorophyll. Some major points are listed below." 25 Under a., the caption is Variability of Response A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 225 1 to Nutrient Loading, and the first sentence underneath 2 that, "It is not the absolute concentration of a nutrient 3 per se, rather than its biological manifestation, that is 4 of primary concern." 5 Can you explain that statement to me? What was 6 going on then? 7 A I don't recall who wrote this paper. I can't 8 speak for that person. 9 Q I mean -- 10 A I can give you my opinion. 11 Q Yes. 12 A Well, I think what the author is probably 13 referring to is the fact that water bodies respond 14 differently to different nutrient concentrations, and it is 15 not the concentration of a nutrient that might cause a 16 problem; it is whether or not that nutrient or those 17 nutrients cause other problems or characteristics of a 18 water body to change. 19 Q Do you agree with that? 20 A Yes, in general, I think I do. 21 MR. HETRICK: That is all I have for that. Let's 22 take a little break. 23 (Brief recess.) 24 BY MR. HETRICK: 25 Q I am going to hand you what will be marked as A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 226 1 Exhibit No. 7. 2 (Whereupon, Exhibit No. 7 was marked for 3 identification.) 4 BY MR. HETRICK: 5 Q Mr. Armstrong, I have handed out what has been 6 marked as Exhibit 7. Do you recognize this document? 7 A Yes, I do. 8 Q This is the Frank Nearhoof report. Is that your 9 understanding? 10 A Yes, it is. 11 Q I am going to run through probably a series of 12 questions with this document, mostly in terms of the 13 Department's construction of certain rules, and see if you 14 agree or disagree with some of these documents. 15 First of all, have you reviewed this document 16 before? 17 A Yes, I have. 18 Q In great detail? 19 A No. 20 Q But you have read this document from cover to 21 cover? 22 A Yes. 23 Q What was your most recent reading of this 24 document, about how long ago? 25 A Six months, maybe a little longer. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 227 1 Q What was your purpose in that review? 2 A I was asked by Mr. Hyde to review it and give him 3 my thoughts on it. 4 Q Let's go to the Introduction, which is page 1. 5 A My pages are not numbered. Section 1, entitled 6 Introduction? 7 Q Right. 8 A Okay. 9 Q About seven lines down, two-thirds of the way in, 10 the sentence begins, "The Department has conducted an 11 extensive review of all available information pertaining to 12 nutrient-induced impacts to the Everglades." 13 During your tenure with the Department, had that 14 review begun? 15 MR. HYDE: I am going to object. I think this 16 assumes facts not in evidence. 17 First of all, this document was not prepared, I 18 believe, until well after Mr. Armstrong left the 19 Department, so unless the document is able to -- there 20 is some proof as to when these studies were actually 21 done, then I think it assumes facts that are not in 22 evidence. 23 MR. HETRICK: That is kind of what I am asking 24 him, whether or not any extensive review or whether or 25 not any review -- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 228 1 BY MR. HETRICK: 2 Q Let me phrase the question differently. 3 Was any review pertaining to nutrient-induced 4 impacts to the Everglades begun by the Department during 5 your tenure? 6 A Yes. 7 Q What -- do you recall what time frame, what year 8 those reviews began? 9 A There were reviews ongoing for a number of years, 10 Everglades issues which I believe included nutrient issues. 11 Q With regard to the Everglades? 12 A I think that is what I said. Nonetheless, I am 13 sure there were efforts underway in the Department over a 14 number of years. I was not directly involved, that I 15 recall, in those issues, or at least was not heavily 16 involved. In the months prior to my leaving the agency we 17 had begun reviewing the alleged nutrient impacts that were 18 being identified by the water management district through 19 the SWIM planning process, which is primarily what this 20 document speaks to. So the answer to your question is I 21 think those reviews had begun when I was still with the 22 agency. 23 Q Did you receive any preliminary reports as to -- 24 pertaining to what the nutrient-induced impacts were in the 25 Everglades at that time? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 229 1 A Yes. 2 Q Did you review any of those reports? Can you 3 identify any of those reports? 4 A Not specifically. We had begun to receive draft 5 outputs from the water management district, and I could not 6 off the top of my head identify specifically what those 7 documents were. We had also, as I mentioned previously, 8 begun to receive verbal briefings from water management 9 district staff during the few months before my departure 10 from the agency. 11 Q Did the Department reach any preliminary findings 12 as to nutrient-induced impacts on the Everglades during 13 your tenure? 14 A Well, the Department may have reached some 15 preliminary findings. I don't recall if we took any 16 official position on any of those issues. They were 17 discussed with water management district staff, primarily 18 at the staff-to-staff level. I don't recall any official 19 position on those issues. There may have been some. 20 Q Do you expect to offer any opinions or testimony 21 in this case pertaining to nutrient-induced impacts to the 22 Everglades? 23 A I do not. 24 MR. HYDE: Again, for the record, I think you 25 should be specific. When you say Everglades, what do A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 230 1 you mean? 2 MR. HETRICK: I apologize. Everglades Protection 3 Area. 4 BY MR. HETRICK: 5 Q Let's turn in your rule, you have 17-302 there? 6 A Somewhere. 7 Q Turn to -- I want you to refer to that, but I also 8 want you to keep Frank Nearhoof's, turn to page 3 on Frank 9 Nearhoof's report. 10 MR. HYDE: Which is page 3? 11 MR. HETRICK: Mine has page numbers on it. 12 THE WITNESS: Mine does, on page 3, at least. 13 MR. HYDE: Mine doesn't. 14 BY MR. HETRICK: 15 Q It should say Imbalances of Aquatic Flora and 16 Fauna. 17 A Yes. 18 Q Just for your reference, Mr. Nearhoof starts off 19 by saying, "Criterion 17-302.560(29)," and I wanted you to 20 be able to have that rule at your fingertips so that you 21 might be able to refer to that. Is it (27)? 22 MR. HYDE: It is (27) now. 23 BY MR. HETRICK: 24 Q (27). 25 A Yes, I have it. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 231 1 Q My questions in this context are how we construe 2 this provision, and we have already talked about imbalance 3 to some extent. Mr. Nearhoof starts off by quoting the 4 rule, which states, "Nutrients," and then, hyphen, "in no 5 case shall nutrient concentrations of a body of water be 6 altered so as to cause an imbalance in natural populations 7 of aquatic flora or fauna." 8 I want you to review the second -- the paragraph 9 right after that statement in Mr. Nearhoof's report and 10 tell me if you agree or disagree with any aspect of that 11 paragraph in the construction of this rule. 12 MR. HYDE: I would suggest you take as much time 13 as you need to do that. It is kind of difficult, in a 14 situation like this to be confronted with long 15 passages, it is difficult to make a snapshot judgment 16 based on one reading without an opportunity for 17 extended contemplation. I think it has to -- any 18 answers have to be subject to that understanding. 19 BY MR. HETRICK: 20 Q You can take as much time as you need. 21 A I have reviewed it. Would you restate the 22 question, please? Reask it. 23 Q Do you agree with that paragraph, or do you 24 disagree with any aspect of that paragraph in your 25 understanding of how the rule works and the Department's A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 232 1 procedure in following the rule and assessing imbalance? 2 A I am not sure if I necessarily disagree with it. 3 I am not sure exactly what was intended by portions of it. 4 In particular, the last sentence states, "The 5 Department's criterion regarding nutrient-induced 6 imbalances of flora or fauna was written as a narrative 7 rather than numeric criterion with the focus of maintaining 8 the assemblage of flora and fauna characteristic of the 9 ecosystem in question." 10 I am not sure I understand exactly what the author 11 meant by that statement. 12 Q What is causing your confusion? 13 A Well, the rule speaks to imbalance, not 14 maintaining an assemblage of flora or fauna, and I don't 15 know exactly what the author intended in that particular 16 description. 17 Q The next paragraph, beginning with, "The 18 Department uses the best available information," if you 19 could review that paragraph which extends into page 4, the 20 next page? 21 A The first sentence, excuse me, the whole 22 paragraph? 23 Q The entire paragraph, and just tell me what 24 aspects of that you disagree with or if you agree with the 25 whole thing, and if you prefer, we could take it sentence A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 233 1 by sentence. 2 A I have read it. 3 Q Do you agree with that paragraph? 4 A I don't have an opinion about much of it. It 5 speaks to what the Department is apparently doing at the 6 point in time when this document was written. I have no 7 knowledge of how this section was being applied at that 8 particular point in time. I do have some problems with 9 some of the language in the paragraph. 10 Q Which language? 11 A Well, reading on down, there is a discussion about 12 how the Department goes about analyzing in a technical 13 sense various factors, and as I said, I have no opinion as 14 to how the Department was applying or determining 15 compliance with this standard at the point in time of this 16 document being authored. 17 The author states in about the middle of the 18 paragraph at the top of page 4, "An ecosystem is determined 19 to be `imbalanced' when significant departures from the 20 expected biological operation of a system occur." 21 I don't -- I am not sure I understand what the 22 author means by "significant departures from the expected 23 biological operation." 24 The rule, the nutrient standard to which I assume 25 this section is still referring, speaks to imbalance in A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 234 1 natural populations of flora and fauna, not biological 2 operations. I am not sure if the author is using the terms 3 synonymously. 4 Q If I were using the terms synonymously, would you 5 agree with that, then? 6 MR. HYDE: It assumes a fact not in evidence. 7 BY MR. HETRICK: 8 Q It is a hypothetical. 9 A Could you restate the question? 10 Q If he was using the terminology "biological 11 operation" in terms of natural population, would you then 12 agree with that statement? 13 A Well, the rule says, an imbalance in natural 14 populations of aquatic flora and fauna. The statement 15 would then say, an imbalance would occur when significant 16 departures from the natural populations of flora and fauna 17 would occur, and again, I guess the question then would be 18 what would "significant departure" mean in the eyes of the 19 author. 20 I think the author seems to be trying to restate 21 the rule in his own words, and I can't say whether I would 22 agree or disagree. If that sentence read the same as the 23 standard, I guess I would agree that it accurately 24 reflected the standard, but I can't say exactly what the 25 author had in mind, so I really don't have -- I can't offer A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 235 1 an opinion about what he intended. 2 Q Can you offer an opinion in your own professional 3 judgment when an imbalance occurs? 4 MR. HYDE: Objection. I think the rule speaks for 5 itself. 6 BY MR. HETRICK: 7 Q Well, let me ask it this way. 8 MR. HYDE: It is an attempt to restate the rule, 9 and as such, it is an attempt to redefine the rule. 10 BY MR. HETRICK: 11 Q Do you agree with the sentence following that, 12 "This is determined by a combination of factors, including 13 professional judgment and measured differences between 14 suspected `imbalanced' and unimpacted or `control' sites"? 15 A Well, there are two statements there. One is, I 16 think there does have to be some professional judgment used 17 in determining what is an imbalance, because there are not 18 specific tests for measuring imbalance offered in the rule, 19 so in my opinion there would have to be professional 20 judgment involved. 21 One of the options available to a scientist would 22 be the comparison between the site to be studied or, as 23 this says, suspected imbalanced site and an unimpacted or 24 control site, if one is available. That is a standard 25 scientific technique that might be applicable. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 236 1 Q Yesterday we talked about imbalance. I believe 2 you testified, and correct me if I am wrong, that some 3 change in species composition can occur without there being 4 an imbalance, is that correct? 5 A I think that is correct. 6 Q How much change would have to occur for there to 7 be an imbalance? 8 A Well -- 9 Q What do you look at to determine change, is the 10 question. 11 A The change in species composition is really not, 12 in my opinion, it is not necessarily part of the test for 13 determining compliance with the nutrient standard. The 14 standard speaks to an imbalance in natural populations of 15 aquatic flora and fauna, so for those natural populations, 16 you would look at changes in flora and fauna. 17 I can't give you an answer as to what would 18 constitute an imbalance, sitting at the table. It would be 19 site-specific, and it would have to be based to a certain 20 extent on the judgment of the investigator. The rule does 21 not give specific criteria for determining when an 22 imbalance would occur and not occur. 23 Q Would the change have to be meaningful or 24 significant in order to cause an imbalance? 25 A I think I would agree with the term A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 237 1 "significant." I am not sure what you mean by 2 "meaningful," but there would have to be -- to cause an 3 imbalance, in my professional opinion, there would have to 4 be a significant change. Change alone is not necessarily 5 an imbalance. At some point, the degree of change would 6 have to be judged to be significant enough to constitute an 7 imbalance in those populations. That point is not well 8 defined. 9 Q Let's look at the last sentence in Mr. 10 Nearhoof's -- in that paragraph, where it says, "Imbalance 11 also includes situations when nutrient addition results in 12 the dominance of nuisance species or violation of numeric 13 standards." Do you agree with that statement? 14 A I don't think I do. 15 Q What do you disagree with? 16 A I think the term "imbalance" as used in the 17 nutrient standard has to be determined based on the natural 18 populations of flora and fauna. If nuisance species become 19 a problem or violations of other numeric standards become a 20 problem, those may constitute violations of the 21 Department's standards in and of themselves, but may not 22 constitute, necessarily, a violation of the nutrient 23 standard. 24 I think we may be talking about -- I think I would 25 say that in a situation where imbalance may have occurred, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 238 1 other violations may have occurred, but I don't think this 2 is stated properly, this sentence. 3 Q Can you tell me was meant by the term 4 "dominance"? Is that an operative term? 5 A I think it is used in a number of ways. I think 6 in some situations and circles it could mean any number 7 greater than 50 percent, or it could mean a number 8 sufficiently great enough to overshadow other 9 characteristics. I guess it would depend on the situation 10 and the type of use. 11 Q Does it have any operative meaning in the context 12 of a discussion of nuisance species? Is it a term of art? 13 A I guess it can be. 14 Q What would your understanding of that term be in 15 the context of a discussion of nuisance species? 16 A Well, I am not sure if you are referring to a 17 standard or a scientific investigation or -- there are all 18 sorts of discussions that could be taking place. 19 Q In the context of a nuisance species rule? 20 A Can we turn to that maybe and take a look at that 21 language? 22 Q 17-302.510, parens (5)(q). 23 A I have it. 24 Q Under that, it says, "Substances in concentrations 25 which result in the dominance of nuisance species, none A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 239 1 shall be present." 2 What is your understanding of the term 3 "dominance"? 4 A As used in this standard, I would say that it 5 refers to an abundance of or greater portion of nuisance 6 species than native species. The rule refers to any 7 substance that might cause that condition to occur. 8 Q When you say abundance, what do you mean by 9 abundance? Is it a greater than 50 percent standard or 10 not? 11 A No. I don't think I would necessarily restrict it 12 to greater than 50 percent. I think in the way the rule is 13 written, there may be other, there may be several 14 populations of native species. If the greater dominance or 15 the greater makeup of the community is nuisance species, 16 then it could constitute a violation of the rule. 17 Q What if it is equal? 18 A Well, the question is whether the nuisance species 19 dominate in the population. 20 Q Right, and my question is, if the native species 21 is equal to, at the time you are looking at a particular 22 body of water, equal to the presence of the nuisance 23 species, the same, 50-50, is there a dominance in that 24 situation? 25 MR. HYDE: I am going to object unless there is A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 240 1 some specification in the question as to geographic 2 extent. We are talking about a water body as a whole, 3 a portion of a water body? 4 BY MR. HETRICK: 5 Q Well, let's take the water body as a whole. 6 A I think I would say that if the nuisance species 7 constituted greater than 50 percent of the geographical 8 extent of the water body, then they would be dominant and 9 therefore be in violation of this section. If they were 10 less than the population or extent of native populations, 11 then it would not. 12 Q What if it is a portion of a water body? 13 A Well, there, as I read this section, it does not 14 necessarily refer to the entire water body. I believe this 15 section, and let me refer back, refers to surface waters, 16 general criteria, and as I understand these particular 17 portions of the standards, they are applied within water 18 bodies and not necessarily throughout an entire water body, 19 that is correct. 20 Q Is there any definition of body of water anywhere 21 in these rules that you recall? 22 A There are definitions of waters, if I recall. I 23 don't know if there is a definition of body of water. I 24 don't recall whether there is or not. 25 Q So this standard in subparagraph (27) could apply A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 241 1 to a portion of a body of water? 2 A I believe it could. 3 Q The next thing in Mr. Nearhoof's report is, 3.1.1 4 talks about Flow Pattern Description, and this is specific 5 to the Everglades. Are you familiar with flow patterns in 6 the Everglades? 7 A Just in a general sense. 8 Q Do you expect to offer any opinion or testimony 9 that would in some way entail an evaluation of the flow 10 patterns of water in the Everglades National Park? 11 A No. 12 Q How about in any of the WCAs? 13 A No. 14 Q The next section on page 5 deals with, it is 15 3.1.2, Evidence of Phosphorus Enrichment in Soil and Water 16 Chemistry. 17 Are you familiar with any evidence of phosphorus 18 enrichment in soil and water chemistry in the Everglades 19 Protection Area? 20 A Yes. 21 Q How are you familiar with phosphorus enrichment 22 in soil and water chemistry in the Everglades? 23 A Basically from my general knowledge of information 24 that I have that has been presented to me or that I have 25 heard being presented. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 242 1 Q Do you have any professional opinions on 2 phosphorus enrichment in soil and water chemistry of the 3 Everglades Park area? 4 A No, I do not. 5 Q Do you intend to offer any testimony which in any 6 way relates to specifically phosphorus enrichment in soil 7 and water chemistry of the Everglades Protection Area? 8 A No. 9 Q One more question on that. Would you say that -- 10 was there any evidence presented during your tenure at the 11 Department in the context of the draft SWIM plans that you 12 reviewed that showed -- well, that soil or H2O phosphorus 13 enrichment in the Everglades was cause for concern? 14 A Yes. 15 Q Was there ever any evidence during your tenure 16 with the Department that phosphorus enrichment in the 17 Everglades was indicated in surface water and sediment 18 data? 19 A Was there ever any evidence presented, is that -- 20 Q Presented. 21 A Yes. 22 Q Did you ever form any opinions during that time in 23 the context of your review of any of the draft SWIM plans 24 that that evidence was, in fact, substantiated? 25 A No. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 243 1 Q Did you ever have any reason to doubt any of that 2 evidence? 3 A Yes. 4 Q What were those reasons? 5 A There was also information presented alleging that 6 phosphorus may not have been the only cause of problems 7 within the Everglades, or may have been partially the 8 problem but not totally the problem. 9 I don't have an opinion on whether one position or 10 the other is correct. 11 Q Would hydroperiod have been one of those other 12 factors that was a concern? 13 A Yes, it was. 14 Q Do you intend to offer any opinion or testimony 15 that, well, that basically states that whether or not 16 hydroperiod or nutrients have a greater effect on causing 17 problems in the Everglades? 18 A No. 19 Q Page 7 of Mr. Nearhoof's report, it says here, 20 3.1.3, Microbial Community Impacts. 21 Do you have any knowledge of any microbial 22 community impacts in the Everglades park area? 23 A Yes. 24 Q What knowledge is that? 25 A As with other issues, as I stated before, I have A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 244 1 some knowledge of information that was presented to the 2 Department determining microbial impacts. 3 Q That was during your tenure with the Department? 4 A Yes, and my review of this document. 5 Q Do you intend offering any opinions or testimony 6 as to microbial community impacts in the Everglades Park 7 area? 8 A No. 9 Q On page 8, 3.1.4, Periphyton Impacts, do you have 10 any knowledge of any periphyton, well, phosphorus impacts 11 on periphyton in the Everglades? 12 A Yes. 13 Q And that was during your tenure with the 14 Department? 15 A And my review of this document. 16 Q Did you agree or disagree that there are 17 periphyton impacts -- I am sorry, phosphorus impacts on the 18 periphyton community? 19 A I don't have an opinion. 20 Q Do you expect to offer an opinion or any testimony 21 on that issue at all? 22 A No. 23 Q Page 9, 3.1.5 talks about Macrophyte Impacts. 24 Has any evidence been presented to you that 25 demonstrates that sawgrass has lower phosphorus A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 245 1 requirements than other marsh vegetation in general? 2 A I am sorry, could you repeat that question? 3 Q Sure. Has any evidence been presented to you 4 which demonstrates that sawgrass has lower phosphorus 5 requirements than other marsh type vegetation? 6 A Yes. 7 Q Do you agree with that evidence? 8 A I don't have an opinion. 9 Q Why don't you have an opinion? 10 A I don't agree or disagree. I have heard that 11 opinion expressed and seen evidence supporting that 12 opinion. I don't have a personal or professional opinion 13 on that. 14 Q Do you have any reason to disagree with the 15 evidence that has been presented to you? 16 A Not that I am aware of. 17 Q What form did that evidence take that had been 18 presented to you? 19 A It was information presented to the Department 20 during my tenure there and my review of this document. 21 Q Was there any specific reports that you could 22 identify that were presented to you during your tenure with 23 the Department that spoke to the idea that sawgrass has 24 lower phosphorus requirements than other marsh vegetation? 25 A No, I cannot recall any specifically. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 246 1 Q Have you ever reviewed any historical accounts or 2 early maps of native Everglades environments? 3 A Yes. 4 Q Let me be clear with that. By Everglades 5 environments, I am talking about the EPA. 6 A Okay. Yes, I have. 7 Q Do you recall in your review of those historical 8 accounts or early maps of the native Everglades 9 environments, which I will restrict in this question in 10 particular to the EPA, as to whether cattail -- cattails 11 were present? 12 A It was my understanding from evidence presented 13 that cattails were present as a native species in the early 14 historical Everglades. 15 Q Do you recall whether they were present in 16 unenriched areas or enriched areas? 17 MR. HYDE: I object. It assumes a fact that is 18 not in evidence, and it also doesn't specify any time 19 parameters as to these historical maps. Are we talking 20 about 1850, 1950, 1970? 21 BY MR. HETRICK: 22 Q Well, what -- do you recall what early maps you 23 might have reviewed? 24 A No, I don't recall specifically. 25 Q Would they have been in the late 1800s or early A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 247 1 1900s, 1940s, 1920s? 2 A I really don't remember the period. I remember 3 some maps presented by the South Florida Water Management 4 District staff basically in making the point that cattails 5 were a native species that occurred in the Everglades 6 historically. 7 Q Were they widespread in the information you 8 reviewed? 9 A I seem to recall that they were. 10 Q Do you recall what portion of the Everglades? 11 A No, I do not. 12 Q Do you anticipate offering any testimony as to, 13 first of all, any historical accounts of cattails in the 14 Everglades Protection Area? 15 A No. 16 Q Do you intend to offer any opinions or testimony 17 as to the causation of the presence of cattails in the 18 Everglades today? 19 A No. 20 MR. HYDE: Certainly, I am not going to stop you 21 from asking these line of questions, but I think we 22 have pretty clearly set forth what the scope of Mr. 23 Armstrong's intended testimony will be, as set forth in 24 his expert witness designation. I think I even stated 25 yesterday that we would be focusing on his A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 248 1 interpretation of applicable rules and regulations of 2 the Department and the historic implementation of those 3 rules. 4 As far as specific testimony about, for example, 5 macrophytes in the Everglades Protection Area or the 6 causation of those macrophytes, he is not going to 7 offer any testimony. 8 MR. HETRICK: Okay. His designation is pretty 9 broad, and I am just trying to make sure that it is 10 truly limited as you have stated. 11 MR. HYDE: I have stated the way it is limited. 12 If I came back and did anything differently, I think 13 you would have good cause to raise objections with the 14 hearing officer. 15 BY MR. HETRICK: 16 Q Do you intend to offer any opinion, in your 17 construction of the imbalance, the narrative nutrient rule, 18 the imbalance, as to whether or not any imbalance exists in 19 the Everglades with respect to flora and fauna? 20 A No. 21 Q On page 14 of Mr. Nearhoof's document, the second 22 paragraph, beginning with "Documented impacts to several 23 floral and faunal communities in widespread areas of the 24 Everglades Protection Area constitute violations of the 25 Class III narrative nutrient criterion," do you see that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 249 1 sentence? 2 A Yes, I do. 3 Q Have you ever seen any evidence to that effect? 4 A Yes. 5 Q Was that during your tenure at the Department? 6 A As best I can recall during that period and again 7 in reviewing this document. 8 Q Was that in the context of your review of the 9 numerous draft SWIM plans that were in process during the 10 end of your tenure with the Department? 11 A Certainly primarily during that period. 12 Q Did you agree at that time in your professional 13 capacity with the Department as to that evidence presented 14 to you? 15 A Well, I didn't -- please restate the question. I 16 am not sure exactly how you asked that. 17 Q Did the Department, make any preliminary 18 conclusions that would, in effect, have substantiated this 19 finding back then? 20 A I think the Department accepted the facts that 21 were presented, that that was an area that was worthy of 22 study in the SWIM planning process. I am not sure if the 23 Department, as I said earlier, ever agreed or disagreed, 24 but -- 25 Q But -- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 250 1 A Well, I am not sure if the Department ever 2 officially agreed or disagreed with the evidence. 3 Q Were those studies ongoing during your tenure with 4 the Department? 5 A Yes, they were. 6 Q Were they ongoing after you left the Department, 7 do you know? 8 A I can't say whether they were or not. 9 Q Were any preliminary findings made while those 10 studies were ongoing during your tenure with the 11 Department? 12 A By whom? 13 Q By the Department, preliminary findings by the 14 Department during your tenure with the Department that 15 would substantiate -- 16 A I think only as related to the evidence presented 17 by the water management district. I don't recall any 18 independent studies being done by the Department at that 19 point in time. 20 Q Maybe I am just not asking the question clearly. 21 I am just wondering, you mentioned that ongoing studies 22 were taking place to, in fact, investigate documented or 23 investigate impacts to floral and faunal communities in 24 widespread areas of the Everglades to determine whether or 25 not they constituted a violation of the Class III narrative A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 251 1 nutrient criterion, those studies were ongoing and taking 2 place. 3 My question merely was, was there any preliminary 4 findings made by the Department at that time that would 5 substantiate this claim being made here, documented impacts 6 to several floral and faunal communities in widespread 7 areas of the Everglades constitute violation of the Class 8 III narrative nutrient criterion? 9 A I think the Department's preliminary findings were 10 there had been impacts to the Everglades, and pursuing 11 nutrient discharges as a possible cause or portion of the 12 cause of those impacts was reasonable through the SWIM 13 planning process. The Department agreed that the district 14 was, in fact, proceeding appropriately under the SWIM Act. 15 Q Was the Department tracking data submitted to it 16 by the water management district, and by that, I mean was 17 the Department doing more than just taking information, 18 submitting it to them and putting it on a shelf? Was it 19 conducting any kinds of evaluations on its own during your 20 tenure in the review of this information submitted? 21 A Yes. 22 Q I just want to go to Rule 17-302.200, parens (14), 23 if we can for a moment. I think we have not covered this 24 yet, and if we have -- 25 MR. HYDE: Definition of nuisance species? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 252 1 MR. HETRICK: Right. 2 BY MR. HETRICK: 3 Q We have talked about nuisance species, but I don't 4 think we specifically covered the -- this particular 5 subsection, and this is, for the record, 17-302.200, parens 6 (14). 7 You are familiar with this definition? 8 A Yes, I am. 9 Q Can you tell me what is meant by the term "noxious 10 characteristics," what your understanding is of that term? 11 A Well, I think also this is sort of maybe the 12 opposite of beauty is in the eye of the beholder. I think 13 that a certain amount of technical discretion is allowed in 14 this language, but noxious characteristics I would think in 15 the ecological sense would be characteristics of those 16 species that are not desirable from an environmental or 17 ecological standpoint. 18 Q Are they specific characteristics the Department 19 looks to that are defined by rule, or -- 20 A I don't believe, I don't know that they are 21 specifically defined anywhere, not that I am aware of. 22 Q You then go forward to -- well, noxious 23 characteristics, your characterization is that involves 24 some subjective determination? 25 A Yes, I believe it does. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 253 1 Q It is not scientifically based? 2 MR. HYDE: I would like that admission. 3 BY MR. HETRICK: 4 Q I am just trying to be clear. 5 A I am not sure what you mean by that. I guess in 6 determining what is noxious you might use scientific 7 techniques. I am not sure. 8 Q There is no numeric criteria set out? 9 A Not that I am aware of. 10 Q What is meant by, "or presence in sufficient 11 number"? What is meant by the terminology, "sufficient 12 number"? Is there a -- is that an -- does that involve a 13 subjective determination? 14 A Yes, I believe it does. 15 Q What factors might you look to to determine 16 sufficient number? How would you go about conducting an 17 analysis? 18 MR. HYDE: I am going to object. I think the rule 19 provides the answer just in the following phrase, 20 "present or unreasonably interfere with a designated 21 use of those waters." 22 BY MR. HETRICK: 23 Q Well, it says here, "a sufficient number, biomass 24 or areal extent may reasonably be expected to prevent or 25 unreasonably interfere with the designated use." A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 254 1 How would you go about conducting an analysis to 2 determine what would reasonably be expected to prevent or 3 unreasonably interfere with the designated use of those 4 waters? 5 A Well, I guess I would have to survey the 6 population in question, determine the numbers and biomass 7 and areal extent of those populations or those species, 8 compare those to the beneficial uses that were identified 9 for those waters. Obviously, again there would be some 10 judgment call on the part of the investigator as to whether 11 reasonable interference was, in fact, occurring. 12 MR. HYDE: Did you say reasonable interference or 13 unreasonable? 14 THE WITNESS: I believe -- excuse me, unreasonable 15 interference was, in fact, occurring. 16 BY MR. HETRICK: 17 Q Would it be a case-by-case determination? 18 A Yes, I believe it would. 19 Q What would be the meaning, in your understanding, 20 in this context of the nuisance species rule, of the term 21 "sufficient"? 22 A Well, I don't think you could take the term out of 23 context, but basically I think in a simplistic sense it 24 means that if one individual of that particular species is 25 present, or even a few, it might not cause a prevention or A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 255 1 unreasonable interference with a designated use. 2 There would have to be sufficient number of 3 biomass or areal extent to prevent or unreasonably 4 interfere with that designated use. It could be a mere 5 presence of that species would not necessarily be a 6 violation. 7 Q It is a combination of number, of biomass or areal 8 extent? 9 A Yes, it could be one or all of those 10 characteristics or some combination of those 11 characteristics. 12 Q So what you are saying is, and correct me if I am 13 wrong, for example, the areal extent of a particular -- or 14 the extent of a particular problem in evaluating areal 15 extent may, or in deciding what the areal extent is may 16 depend on a number in the biomass to determine what the 17 areal extent is? 18 A If I follow your question, I don't think I agree 19 with it. Maybe if you could restate it? 20 Q How do you determine -- is there a boundary or a 21 certain number that you can attach or look to for 22 determining areal extent of a problem? 23 A I think you may be stating two problems, but let 24 me see if I can answer your question. 25 You can determine the areal extent by fieldwork. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 256 1 You can determine, for example, if a population of concern 2 has an areal extent of 100 square meters, for purposes of 3 determining compliance with the standard you would then 4 have to look at the body of water in question. 5 If the areal extent of a population was 100 square 6 meters and the water body size was 110 square meters, then 7 it might constitute a violation of the standard, whereas if 8 the water body was 100,000 square meters, it might not. So 9 I think that is a two-part question, what is the areal 10 extent of the population, and secondly, does that areal 11 extent prevent or unreasonably interfere with the 12 designated use of the water. So that really is a two-part 13 test or two parts to determining compliance with that 14 factor. 15 MR. HETRICK: Can you read back what the last two 16 figures were that he quoted? I want to follow up with 17 a question on that. 18 (Whereupon, the court reporter read the requested 19 portion of the record.) 20 BY MR. HETRICK: 21 Q Let's take the example of 100 square meters and 22 100,000 square meters that you gave, and I believe you said 23 there might not be a violation in that context? 24 A That is correct. 25 Q Could there be a violation in that context? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 257 1 A That is correct. 2 Q What would be the basis for a violation, using 3 your hypothetical, in that context? Would you just walk me 4 through an example? 5 A You would have to identify a use of that water 6 body that would be prevented or unreasonably interfered 7 with because of the presence of that 100 square meter 8 population of individuals. 9 Q Would that be a violation if it were a Class III 10 water or Class III criterion? 11 A Well, it would be a violation of that. It could 12 be a violation of that nuisance species standard which is 13 in the general criteria, I believe, or whatever that 14 section is termed. 15 Q I believe I understood you to say that it is a 16 case-by-case determination, but I am going to ask this 17 question just for my clarification. Do you interpret this 18 nuisance species definition that this rule is not violated 19 until a certain percentage of a water body is affected? 20 A That is not correct, in my opinion. 21 Q So there would be no -- there is no percentage 22 number or no -- that would be attached to the 23 determination? 24 A Not that I read in the rule. 25 Q Could it be one percent? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 258 1 A I think it could be. 2 Q And it could be 40 percent? 3 A I think it could be. 4 Q Of any particular body of water? 5 A Right. It would be site-specific to a given water 6 body and a given set of species and uses and all of these 7 other factors in the rule. 8 MR. HYDE: Would this be a good moment to take a 9 short break? 10 (Brief recess.) 11 BY MR. HETRICK: 12 Q Could you turn to 17-302.560, parens (9)? This is 13 the biological integrity criterion. Are you familiar with 14 this? 15 A Yes, I am. 16 Q Can you tell me about this rule, what your 17 understanding of it is, how it works? 18 A It basically is a standard that is measured in the 19 body of water in question, as opposed to in the pipe, in 20 the end of the pipe or characteristics of a waste stream. 21 It relates to the diversity of benthic macroinvertebrate 22 populations in that stream and specifies the procedure for 23 measurement of diversity. 24 Q Do you intend to offer any opinions with respect 25 to biological integrity in any portion of the Everglades A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 259 1 Protection Area? 2 A No. 3 Q Do you have any other opinions about the 4 biological integrity standard that you will be testifying 5 to in relation to this case? 6 A Maybe only to my interpretation of the meaning of 7 standard I think is what I have stated before. 8 Q Which you have already described? 9 A Yes. 10 Q Let's look at parens (19), dissolved oxygen. Do 11 you have that in front of you? 12 A Yes, I do. 13 Q Do you intend to offer any opinions in this case 14 or testimony involving dissolved oxygen violations in the 15 Everglades, alleged dissolved oxygen violations in 16 general? Let me rephrase that. 17 Do you intend to offer any opinions or testimony 18 concerning the violation of this standard in any portion 19 of, the dissolved oxygen standard in any portion of the 20 Everglades Park area? 21 A No. 22 Q Do you intend to offer any opinions in this case, 23 any other opinions in this case with respect to dissolved 24 oxygen? 25 A Only as it applies to interpretation and A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 260 1 application of the standard in general. 2 Q How is this standard -- or can you tell me what 3 those opinions might be, then? How this standard is 4 generally applied? 5 A I am not sure I can answer that question. That is 6 rather general. 7 Q I think you just mentioned that you were going to, 8 you would only offer an opinion with respect -- 9 MR. HETRICK: Read back his answer to the last 10 question. 11 (Whereupon, the court reporter read the requested 12 portion of the record.) 13 BY MR. HETRICK: 14 Q Can you tell me what you mean by that, or what 15 your opinions are with respect to that? 16 A I am not sure I can. I guess the best way to 17 describe it is, if you would ask me a hypothetical 18 situation or interpretations or definitions that is related 19 to that standard, I would do my best to answer them, but I 20 do not intend to testify as to the specifics in the 21 Everglades Protection Area, dissolved oxygen 22 characteristics and so forth. 23 Q I do have one question I guess, then, on sub (19). 24 What is meant by the term "normal daily and seasonal 25 fluctuations"? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 261 1 A I think it is a recognition in the Department 2 rules that dissolved oxygen concentrations in a body of 3 water fluctuate naturally, and the intent is to -- for the 4 Department to protect those normal daily and seasonal 5 fluctuations above the standard. 6 Q Is that a measurement made on an annual basis? 7 A Well, it says daily and seasonal. 8 Q Over what period of time, then? 9 A That is somewhat up to the discretion of the 10 investigator. There is no criteria that I am aware of that 11 describe the number of samples in the period of time over 12 which those samples have to be taken to judge compliance. 13 Q What if natural conditions of a marine water -- 14 well, marsh water -- 15 MR. HYDE: I think it might be better to cast the 16 question in terms of predominantly fresh and 17 predominantly marine, because marsh can be both marine 18 and fresh. 19 BY MR. HETRICK: 20 Q In a predominantly marine water, if the natural 21 conditions were below the levels set out in -- by this 22 standard, would there be a violation? 23 A If the natural conditions were below those levels? 24 Q Yes. 25 A I would not consider those a violation, unless A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 262 1 there was some cause of those. Under your scenario, they 2 are naturally occurring. Perhaps an alternate standard 3 might be appropriate, but not a violation for which the 4 Department would take enforcement action. 5 Q Would that also apply to predominantly fresh 6 water, the same scenario? 7 A Yes. 8 Q Suppose you had a situation in which the -- it was 9 determined that the dissolved oxygen level as a result of 10 natural conditions was below the level set out by this 11 standard, and the Department determined that there were 12 other factors contributing to a worsening of that natural 13 condition level. Would that in fact or in turn be a 14 violation of this standard? 15 MR. HYDE: Is this for predominantly fresh or 16 predominantly marine waters? 17 MR. HETRICK: Both. Based on his testimony, I am 18 not sure it makes a difference. 19 THE WITNESS: As I understand the scenario, if the 20 naturally occurring levels were below the standard as 21 set forth here but there were activities, shall we say, 22 that caused a further depression -- 23 BY MR. HETRICK: 24 Q Right. 25 A Then those activities could constitute a A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 263 1 violation for which the Department would or could take some 2 action. 3 Q Right, is that correct? 4 A Thank you. 5 Q Is that yes, that is your answer? 6 A Yes. 7 Q Would the baseline standard then be that the 8 Department would look to the level of DO in that 9 hypothetical that the Department determined to be the level 10 resulting from the natural condition, then? 11 A Yes. I think the Department is basically charged 12 with not trying to abate natural conditions, and it may be 13 that a more appropriate standard should be set. 14 Q Okay. You don't have any opinions, I guess, with 15 respect to specific dissolved oxygen concentrations in the 16 Everglades, per se? 17 A I do not. 18 Q The last thing I guess with regard to DO that I 19 have, would it be appropriate to set a new standard for 20 dissolved oxygen if daily and seasonal fluctuations rise 21 above standards set forth in this rule? 22 MR. HYDE: Does that hypothetical assume that the 23 remainder of the rule is complied with? 24 MR. HETRICK: Yes. 25 THE WITNESS: May I ask a clarifying question? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 264 1 BY MR. HETRICK: 2 Q Sure. 3 A When you say daily and seasonal fluctuations rise 4 above the levels set, I assume that means that there are -- 5 that at other points in time the concentrations fall below 6 the established standard? 7 Q Well, let's take it one at a time. 8 Suppose they don't at other times fall below the 9 standard? 10 A So the absolute values don't fall below the 11 standard? 12 Q Right. 13 A And the fluctuation, the daily and seasonal 14 fluctuations were above the standard? 15 Q Right. 16 A I -- 17 Q Well, would the DO naturally -- would the level, 18 would the natural condition -- okay. Let me ask it. I 19 assume -- I see what you are saying now. 20 Let's assume it does fall below, it fluctuates 21 below the baseline limits set out here. 22 MR. HYDE: You are saying it fluctuates below the 23 five milligrams per liter? 24 MR. HETRICK: Right. 25 THE WITNESS: Let me try. If there are measured A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 265 1 values that fall below, let's say predominantly in 2 fresh waters there are measured values that fall below 3 five milligrams per liter, but in a naturally occurring 4 situation, but there are fluctuations that bring the DO 5 levels up above five milligrams per liter, my answer is 6 it still might be appropriate to set a new standard for 7 the minimum criteria if those were naturally occurring 8 fluctuations that fell below the five milligrams per 9 liter. 10 BY MR. HETRICK: 11 Q And again, with respect to that, the time frame 12 involved would be sort of up to the investigator? 13 A Well, the five milligrams per liter, as I read the 14 standard, applies to the minimum criteria that could be 15 measured in the water body, and then the ranges, the 16 fluctuations refer to both daily and seasonal 17 fluctuations. At various points in time if the 18 concentrations were falling below five milligrams per liter 19 for naturally occurring reasons, then it may be appropriate 20 to modify the standard to reflect those minimum 21 concentrations that would naturally occur. 22 Q Let's move on from DO. If you turn to page 16 of 23 Mr. Nearhoof's report, under sub 4, the first sentence, 24 "The South Florida Water Management District, in the draft 25 Everglades SWIM Plan and their application for structures A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 266 1 discharging into or within the Everglades Protection Area, 2 has proposed 50 p.p.b. as a technically-based interim 3 concentration limit for total phosphorus." 4 Do you have any idea where that number came from, 5 how that number was developed? 6 A No, not really. 7 Q Was there any ongoing study of any form of 8 phosphorus limit into the Everglades Protection Area when 9 you were with the Department? 10 A Yes. 11 Q Were any numbers arrived at or recommended during 12 that time? Let's put it this way. Were any numbers 13 considered other than this? 14 A For an interim concentration limit for phosphorus? 15 Q Well, for any concentration limit for phosphorus. 16 A Well, there were various numbers being considered 17 based on the research. I don't think any final decisions 18 had been made when I was with the Department. 19 Q Do you recall what those numbers were at all that 20 were being tossed about? 21 A No. The numbers that were being tossed about were 22 basically reflections of information that had been gathered 23 about the quality of the water within the Everglades and 24 the quality of the water within or rainfall water as it 25 related to phosphorus. Those were the numbers that I am A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 267 1 talking about that were being bantered around. 2 Q Were these numbers higher or lower than this 50 3 parts per billion? 4 A They varied all over the place. It just depended 5 on the issue that was being discussed. As I said, there 6 were ranges of numbers in different situations that were 7 being discussed. There were no goals or limits set for, 8 that I recall, while I was still involved with those 9 discussions. 10 Q Do you recall how many early drafts of this SWIM 11 Plan that you might have reviewed prior to the adoption of 12 the current SWIM Plan? 13 A No. 14 Q During your tenure with the Department? 15 A No. I think the problem or one of the problems 16 was we were receiving bits and pieces of information, and I 17 don't recall whether we received or how many completed 18 drafts versus pieces of drafts. There was a lot of 19 interaction back and forth between staff in those days. 20 Q Were there many drafts? Were there more than 10? 21 A Of the whole? 22 Q Right. 23 A Not that I saw. 24 Q Were there less than 10? 25 A I don't remember. I would say less than 10 that I A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 268 1 recall. 2 Q Phosphorus concentration limits for the 3 Everglades Protection Area were being considered when you 4 were with the Department, then, is that correct? 5 A That is correct. 6 Q What was the process utilized in developing those 7 limits when you were with the Department? 8 A I am not sure I can answer that. The Department 9 wasn't responsible for that process. 10 Q Who was responsible? 11 A The water management district was developing that 12 process. 13 Q Were you monitoring that process? 14 A Yes. 15 Q Was that process ongoing primarily between the 16 years 1988 and 1990, or did it start before then? 17 A Well, my involvement with the process was 18 primarily through the SWIM planning effort, which my 19 involvement was during that, essentially during that period 20 of time that you referred to. There had been efforts 21 underway prior to that, and certainly the efforts have 22 continued since that time. 23 Q The efforts that were underway prior to that 24 period of time, did you have any involvement in those? 25 A Very limited. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 269 1 Q Do you have any knowledge of those? 2 A Not specifically. 3 Q Do you know if there were any concentration limits 4 for the Everglades Protection Area ever talked about early 5 on, prior to 1988, by the Department and the District? 6 A I don't recall any. 7 Q During the SWIM planning process, did you have any 8 particular staff assigned to monitor or evaluate 9 information that was being submitted to the Department by 10 the district concerning phosphorus concentration limits in 11 the Everglades Protection Area? 12 A Yes. 13 Q Who from your staff were the persons assigned that 14 task? 15 A I will try again, I think I answered this same 16 question yesterday, but the primary people on my staff were 17 Roxane Dow, who was the bureau chief of the Bureau of Water 18 Management; Bart Bibler, who was her assistant; Dave 19 Worley, who was administrator of the Coastal Zone 20 Management Section; I believe Gail Sloane and Peggy 21 Mathews, who were in that section; and there may have been 22 some others. Those were the primary people that came to 23 mind. 24 There were others throughout the Department that 25 were brought in through different parts of that process. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 270 1 Those names are, I believe, the ones that I gave yesterday 2 as the primary staff members within our division. 3 Q Did you ever have any discussions with any of your 4 staff, the names you just mentioned, concerning -- 5 specifically concerning concentration limits of total 6 phosphorus in the Everglades Protection Area? 7 A Yes. 8 Q Do you recall how many discussions you had with 9 them on that subject? 10 A No. 11 Q Was it many discussions or few discussions? 12 A Probably many. I guess many. 13 Q What was the substance of those discussions? 14 A Well, at that point in time, basically I was being 15 briefed on the progress of the water management district to 16 develop concentration limits. That was an ongoing process, 17 and as I said, we were receiving information fairly 18 frequently, and I was trying to stay up to speed on their 19 efforts, as well as the efforts of all of the other water 20 management districts on their SWIM planning 21 responsibilities. 22 Q You mentioned that these -- well, did your staff 23 have any preliminary recommendations to you as to what 24 concentration limits should be imposed for total phosphorus 25 in the Everglades protection area, whether interim or long A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 271 1 term? 2 A I don't recall any. 3 Q Do you recall if they offered any opinions on the 4 propriety of any numbers submitted by the water management 5 district to the Department? 6 A Let me restate an answer I gave you yesterday and 7 try to answer your question. 8 It was our position that we were not to dictate to 9 the water management districts how they were to conduct 10 their SWIM planning effort. We were to review that effort 11 in light of the SWIM statutory requirements, so we were not 12 in a position of telling the water management districts 13 they were doing something the right way or the wrong way. 14 We were primarily commenting on what they were doing. 15 Q Sure. 16 A The comments that I received related more to the 17 technical approach the district was following based on the 18 information they had, the application of the data they were 19 collecting, the problems with that application. Many of 20 these numbers that were being batted about that we talked 21 about earlier ranged widely, depending on the source, the 22 data, the time of the year and so forth, so our discussion 23 primarily centered on what information they collected and 24 how they used that information, not whether it was 25 appropriate to use, to pick a particular number as a A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 272 1 target. 2 Q But with that in mind, with that approach in mind, 3 did any of your staff conduct reviews of scientific data to 4 determine, again, the propriety of information submitted by 5 the district leading up to any proposed concentration 6 limits that were being bantered about for the Everglades 7 Protection Area? 8 A To my knowledge, and I think I said this before, I 9 don't recall any information we reviewed in house other 10 than the information that was submitted by the water 11 management district or referenced by them in their work. 12 Q Did your staff offer any opinions to you as to 13 the -- based on their review of the information? 14 Well, first of all, was this, the information that 15 was submitted to your staff, did it involve scientific 16 information? 17 A Yes. 18 Q Did any of them reach any conclusions or any 19 assessments that, in effect, established any basis for any 20 of the numbers that were thrown about as regarding 21 phosphorus concentration limits? 22 MR. HYDE: I object. I think this has been asked 23 and answered several times. 24 You can go ahead and answer it if you want. 25 THE WITNESS: I will try and answer it again. I A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 273 1 think I have answered the same question repeatedly. 2 As I recall, my staff was briefing me on how the 3 water management district had conducted their studies, 4 how they had analyzed the data and the possible 5 problems with that process. I don't recall any 6 opinions on -- expressed to me on whether district 7 staff were -- or the numbers they were developing were 8 appropriate or correct or incorrect, merely an analysis 9 by my staff of what they were doing, what the district 10 was doing. 11 If they had opinions, then you have to ask them 12 about it. I am answering what I heard my staff saying 13 to me, and that was, here is what the district has 14 done, here are the problems with it. There is not a 15 lot of data in this area, there is a lot of data in 16 that area, there are ranges for these numbers. It was 17 an evaluation of what they were doing. 18 BY MR. HETRICK: 19 Q Did your staff conclude then with regard to 20 concentration limits that they were analyzing the data 21 properly? 22 A In general, I think, yes. 23 Q Do you recall any particular phosphorus 24 concentrations limit proposed in the 1989 Everglades draft 25 SWIM Plan? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 274 1 A No. 2 Q Would 30 parts per billion sound familiar to you? 3 I am just trying to see if you recall. 4 A I don't recall specific recommendations in the 5 early SWIM plans. There were a number of numbers that were 6 flying around during that period. I don't recall a 7 specific recommendation was made. 8 MR. HETRICK: Let's break for lunch. 9 (Lunch recess.) 10 MR. HETRICK: I would just like to state that the 11 Department of Environmental Regulation wishes Mr. 12 Rotruck a happy birthday. He has been with us 13 throughout all of these depositions, and I speak for 14 myself certainly and the Department, I think we wish 15 you a very happy birthday. 16 BY MR. HETRICK: 17 Q We will try to go through the rest of these 18 documents, Mr. Armstrong. 19 A I have the same opinion on that. 20 MR. HYDE: I guess there is something we can agree 21 upon. 22 MR. HETRICK: Does the United States concur? 23 MR. BARTELL: The United States concurs in its 24 best wishes. 25 MR. HETRICK: And something that has not been A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 275 1 achieved in any deposition before, all sides agreeing 2 on something. 3 BY MR. HETRICK: 4 Q I am going to ask you one question about -- and it 5 is just one I don't think I actually covered when we were 6 talking about nutrients in the definition of imbalancing, 7 and I think you alluded to it, but under the definition of 8 nutrients where it says that -- and it is sub, actually, it 9 is -- if you want to refer to it, it is 17-302.560, parens 10 (27) -- is there a particular areal extent associated with 11 the determination of when an imbalance can occur in a 12 natural population? 13 A The standard speaks to the body of water, and my 14 understanding of that standard is that you have to consider 15 the entire body of water in applying the standard. As to 16 what portion of that body of water would have to be 17 affected in such a way as to cause an imbalance, I think it 18 would be a site-specific determination. 19 Q Would an imbalance in 10,000 acres of Lake 20 Okeechobee, assuming that there were, there was an 21 imbalance in nutrients in 10,000 acres of Lake Okeechobee, 22 be a violation of state water quality standards? 23 MR. HYDE: I am going to object. It assumes facts 24 that are not in evidence. I think also it is a 25 tautology. You are saying, assuming there is an A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 276 1 imbalance in Lake Okeechobee, there is an imbalance, so 2 I think the hypothetical needs more facts. 3 BY MR. HETRICK: 4 Q If there were an imbalance, if it were determined 5 by the Department that 10,000 acres of Lake Okeechobee 6 contained Class III nutrient violations, would that 7 constitute an imbalance? 8 MR. HYDE: I am going to interpose the same 9 objection. I still think you are saying something that 10 is a tautology. 11 BY MR. HETRICK: 12 Q Well, would it constitute an imbalance in any 13 particular portion of Lake Okeechobee? 14 A As you phrased your question, I think the way you 15 stated it, there was a given that there is a violation, and 16 the question was whether that would constitute an 17 imbalance. I think it is really the reverse. If there was 18 a violation there would have to be an imbalance, because 19 that is the test for a violation. 20 Q Well, let's flip it around, then. If there was an 21 imbalance in natural populations of aquatic flora or fauna 22 covering 10,000 acres of Lake Okeechobee, would that be a 23 violation of state water quality standards? 24 MR. HYDE: Same objection; assumes facts not in 25 evidence. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 277 1 MR. HETRICK: It is a hypothetical. 2 MR. HYDE: Then there is a lot of unstated facts 3 that may impact on it, such as what are the remaining 4 portions of Lake Okeechobee, are they not reflective of 5 an imbalance in natural populations of flora and fauna? 6 BY MR. HETRICK: 7 Q I could ask that question before I ask this 8 question. We can approach it from the standpoint of, let's 9 chuck out 10,000 acres and take the rest of Lake 10 Okeechobee, and assuming that there was an imbalance in -- 11 well, assuming that there was an imbalance of natural 12 populations of aquatic flora or fauna and affecting that 13 portion which is most of Lake Okeechobee, would there, 14 would that constitute a violation of state water quality 15 standards? 16 MR. HYDE: Same objection. 17 THE WITNESS: In your hypothetical, if there is an 18 imbalance in the natural populations of flora and fauna 19 and it is in a water body and caused by nutrients, I 20 think by definition it is a violation of the nutrient 21 standard. Your hypothetical states as a given that 22 there has been an imbalance in natural populations of 23 aquatic flora and fauna. If that was caused by 24 nutrients in that water body, then my conclusion would 25 be that it would be a violation. I think that is A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 278 1 independent of the 10,000 acres. Your hypothetical 2 makes the conclusion there has been an imbalance. 3 BY MR. HETRICK: 4 Q Well, I guess what I am trying to get at here, 5 then, is how do you determine what size or portion of a 6 body of water, and it sort of gets to the same question of 7 when does an imbalance occur, but how do you determine at 8 what limits to a portion of a body of water an entire body 9 of water, what are the limits, at what point do you start 10 saying that there is an imbalance? 11 A I don't think there is a given point. I think 12 there has to be some discretion used by the investigator in 13 making that determination. There are no specific criteria, 14 to my knowledge, presented in the Department's rules that 15 assist in making that determination. 16 Q Well, if you had a 40,000-acre lake, could you 17 have a violation of state water quality standards within 18 two acres of that lake if there were an imbalance of 19 natural populations of aquatic flora or fauna? 20 MR. HYDE: Are you saying violation of the 21 narrative nutrient standard? 22 MR. HETRICK: Right. 23 THE WITNESS: I am not sure I can give an absolute 24 answer to the question, but if the lake was 40,000 25 acres, did you say? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 279 1 BY MR. HETRICK: 2 Q Yes. 3 A And two acres had changes to the natural 4 populations, I think it would be unlikely that I would 5 consider that an imbalance for that water body. If that 6 was 2,000 acres instead of two acres, it would probably be 7 more likely that one could determine that an imbalance had 8 occurred, so the extent of the change in flora and fauna is 9 part of the criteria that I think one would have to look 10 at. 11 Q Is there a percentage rule of thumb that you might 12 go by in determining what portion of a water body might be 13 affected to create an imbalance? 14 A I wouldn't say there was a rule of thumb. Again, 15 I think it would be established on a case-by-case basis, 16 perhaps taking into account previous practices of the 17 Department or other rules that might relate to areal extent 18 of impacts. 19 For example, the mixing zone rule allows up to 10 20 percent change in area extent on a water body, and so even 21 though there is no specific set of criteria given for the 22 nutrient rule, I think you could look to other previous 23 cases and other rules in making that determination, and, of 24 course, the matter pertaining to that water body. 25 Q Could you take two lakes, the same size, but each A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 280 1 lake may have totally different characteristics, based upon 2 what you have said, it has taken into account different 3 factors and construing different departmental rules, could 4 you reach a determination in one instance that there might 5 be an imbalance caused by -- well, that there would be a 6 violation of state water quality standards because you 7 would find an imbalance in one lake versus the other lake? 8 MR. HYDE: I am going to object. It calls for 9 speculation. It assumes a host of facts that may or 10 may not be in consideration. 11 MR. HETRICK: I am trying to explore the nature of 12 his understanding of this rule. 13 BY MR. HETRICK: 14 Q Do you understand the question? 15 A I think so. Let me try to answer it this way. 16 If you had two lakes of the same size and they may 17 have changes to natural populations that affect the same 18 areal extent, then I think it is possible to determine that 19 one might constitute a violation of this standard and one 20 might not. As I said, the application of the standard in 21 reference to these numerical or these narrative criteria 22 would have to be done on a case-by-case basis. 23 Q In looking at two identically geographically sized 24 lakes, whatever that size may be, but they are the same 25 size, could a portion of water in which is determined that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 281 1 an imbalance occurs be a different geographic size within 2 each of those lakes? 3 A Yes. 4 Q I think we generally discussed this, too, but I am 5 going to approach it from a different way because I didn't 6 ask you exactly this with regard to the Everglades, but you 7 are familiar with the Everglades Protection Area as you 8 have stated, I guess, in this deposition? 9 A Yes. 10 Q We have talked about bodies of water. Do you have 11 a definition of how many bodies of water there are in the 12 Everglades Protection Area? 13 A No. 14 Q How about in the Indian River lagoon? Are you 15 familiar with the Indian River lagoon? 16 A Yes, I am. 17 Q Do you have any definition of how many bodies of 18 water there might be in Indian River lagoon? 19 A No. 20 MR. HYDE: I am going to object to this line of 21 inquiry. I don't think it is relevant, and I don't 22 think it is likely to lead to the discovery of relevant 23 information. 24 MR. HETRICK: I think that both you and Mr. Green 25 have gone into this extensively with Mr. Swihart, as to A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 282 1 what his interpretation of "body of water" is under the 2 narrative nutrient standard. 3 MR. HYDE: I am talking about the Indian River 4 lagoon. I will let you make your inquiry, but I just 5 don't see where it is leading. 6 MR. HETRICK: I am trying to get a feel for 7 different water bodies which we can establish, and I am 8 asking the question different ways to explore his 9 understanding of the rule. 10 MR. HYDE: That was a hypothetical, then. Okay. 11 BY MR. HETRICK: 12 Q 17-302.501, are you familiar with this subsection? 13 A Yes, I am. 14 Q Can you explain to me what it means when it says 15 the criteria, surface water quality followed by, and it 16 cites the rule, shall apply to all surface waters outside 17 the zones of mixing, and then it has two exceptions? Can 18 you explain to me what is going on there? 19 A I would say it is pretty self-explanatory. I 20 guess, to restate it, this subsection presents water 21 quality criteria that the Department is to apply within all 22 waters within their jurisdiction, except within zones of 23 mixing. 24 Q Does this provision impact your thinking in any 25 way, in any way, about imbalance in large lakes versus A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 283 1 small lakes? 2 MR. HYDE: I object to the form of the question. 3 I think it is vague. I am trying to understand what 4 the relationship is between the two, anyway. 5 BY MR. HETRICK: 6 Q Do you understand the question? 7 A No. 8 MR. HETRICK: I am going to mark this as Exhibit 9 8. 10 (Whereupon, Exhibit No. 8 was marked for 11 identification.) 12 BY MR. HETRICK: 13 Q Do you recognize this document, Mr. Armstrong? 14 A Yes, I do. 15 Q Can you explain to me what this document was or 16 what the purpose of this document is for? 17 A We had been having discussions with the Secretary 18 about our review of the Everglades SWIM Plan and basically 19 the extent of the Department's involvement in erecting the 20 conclusions and approaches outlined in the SWIM Plan as 21 required by the SWIM statutes. I think I discussed that 22 earlier, and the Secretary wrote this memo to us to give us 23 some guidance in reviewing the plan, the things he would 24 like to see us address and some deadlines that he would 25 like to see included in that effort. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 284 1 Q So these were some of the things that he would 2 have liked to have seen included in that effort? 3 A Right. He describes this as a checklist to be 4 used in preparation of our comments to the water management 5 district. 6 Q You mentioned you had had -- you were having 7 discussions with the Secretary about this process. This 8 memo is dated October 17, 1990. At that time from the 9 point of your tenure with the Department, was the 10 Everglades SWIM planning process taking up a majority of 11 your time or a small portion of your time? 12 A A small portion. 13 Q In your discussions that you had with the 14 Secretary with regard to this memo and the discussions 15 leading up to this memo, who were you having most of your 16 discussions with with the Department? And it may have been 17 the same people you have already identified. 18 A I think essentially it would be the same people 19 that I have already identified. As I mentioned, there may 20 have been other staff members involved on specific issues, 21 but I identified the key players, and I would give you the 22 same answer. 23 Q Let's go to sub 1. It says, "On the Phosphorus 24 reduction to get 151 T. out: It must make clear that the 25 minimum amount allowed to go into WCA-1," which is the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 285 1 Loxahatchee Refuge, "is 25 T. Put in a statement making 2 clear again our requirement that neither WCA 1 or WCA 2A be 3 counted upon for any nutrient removal towards the 151 4 tons." Can you explain that statement? 5 A Just in general, I believe you said "minimum" in 6 the first sentence and the word is "maximum." 7 Q Maximum, excuse me. 8 A Basically, that a goal of 151 tons -- T stands for 9 tons -- of phosphorus removal had been discussed, and a 10 goal of discharge of 25 tons to the Loxahatchee. The 11 Secretary wanted to be sure that there was a specific 12 statement in our comments that would make it clear that no 13 further reduction that might be anticipated in WCA-1 or 14 WCA-2A could be considered in meeting those goals. 15 Q Was this, in fact, done? 16 A I don't know. 17 Q Accomplished, in your tenure? Was it included in 18 comments? 19 A I don't believe so. 20 Q Do you know why not? 21 A Because I left. Drafts were prepared, and I don't 22 recall -- I left the Department on October 30th, and I 23 don't recall the final comments had gone out at that point 24 in time. There were documents being prepared and going 25 back and forth, and I honestly don't remember exactly the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 286 1 status of these particular comments when I left. 2 Q The 25 tons and the 151 tons that are referenced 3 there, is that translatable into a parts per billion 4 number or not? 5 A It might be if you had other relevant information, 6 but I can't say if that information exists. 7 Q Look on page 2 of the document, paragraph f., if 8 you would review that? 9 A Okay. 10 Q What did the 55,000 acres tract number refer to 11 in that paragraph? 12 A The water management district had identified a 13 potential nutrient removal project in that area, and the 14 numbers have been discussed, whether it was 55,000 or more 15 or less, at different points in time. The point of the 16 statement was that the Secretary wanted to be sure there 17 was some sort of fallback position or different or 18 additional actions ready to be implemented or being 19 implemented in case the goals that were identified for 20 phosphorus removal had not been reached. 21 Q And that would include purchasing this 55,000-acre 22 tract? 23 A It could, but that was not -- 24 Q What was the basis for that number? 25 A Well, the district had identified possible lands A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 287 1 that could be used for nutrient removal, possible areas of 2 various sizes. That, at that point in time, I guess, was 3 the size of the acreage being discussed or reviewed by them 4 in their SWIM planning effort. 5 Q Was that a recommended number by them, that be 6 utilized at that time? 7 A I would say it was a number that was identified by 8 them. I am not sure if I'd use the term "recommended." It 9 was a potential nutrient removal area that they had 10 identified. 11 Q Did they geographically specify it or was it -- 12 could it have appeared or been assembled in various sorts 13 of configurations? 14 A I don't -- I think in general it geographically 15 identified it. I don't -- at this point in time, there may 16 have been still some confusion over -- not confusion, but 17 ongoing discussions over the exact boundaries and which 18 portions of the lands would and would not be included. I 19 can't say off the top of my head whether exact boundaries 20 had been specified and proposed at this point in time or 21 whether we were still in a general discussion stage about 22 the concept, even though the acreage might change somewhat. 23 Q Had this acreage number been evolving over the 24 previous two or three years? 25 A Yes, it had. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 288 1 Q Were there ongoing studies during that period of 2 time to -- being conducted by the water management district 3 to assist them in arriving at an appropriate number? 4 A Yes. 5 Q Did you either object or concur with the assumed 6 use of 55,000 acres? 7 A Me personally? 8 Q In your professional capacity as division 9 director. 10 A I don't recall that we either objected or 11 concurred. At this stage, as I said, the discussions were 12 still ongoing about what was available, how large the area 13 should be, what the removal rates were, and that was all 14 still in the process about this time. 15 Q Did you have any preliminary thoughts in your 16 professional capacity as to the viability of this number, 17 based upon the ongoing studies that had been undertaken by 18 the district over the previous two or three years in your 19 professional capacity? 20 A I can't say that I had an opinion on -- I believe 21 just the term viability of the number, I think was a number 22 being presented to us as reasonable as one of the steps 23 that the district was going to be recommending. 24 Q If the number had been 200,000 acres, would that 25 have surprised you? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 289 1 A Probably would have. 2 Q If the number had been 10,000 acres, would that 3 have surprised you? 4 A Not necessarily. Maybe somewhat to a lesser 5 extent than 200,000 acres. 6 Q What about 100,000? Would that have surprised 7 you? 8 A Well -- 9 Q I am trying to get a feel, did you think this 10 number was reasonable? Let me ask you that question in 11 your professional capacity. 12 A Whether surprised or not, this number was based on 13 the district's assessment of what the acreage needed to be 14 to make some steps towards phosphorus reduction, but 15 factored into that was what they felt was reasonably 16 available or might be available, so a lot of factors went 17 into the development of this number, and I am not sure that 18 if it had been higher or lower would have surprised me. I 19 would want some justification from the district on why that 20 number was picked, and that is basically where we were in 21 this stage of the process. 22 Q In your understanding of the Department's rules 23 and regulations and the SWIM planning law, did this -- and 24 your working knowledge of that, the Department, of those 25 rules and laws, did this number appear to be reasonable? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 290 1 MR. HYDE: Calls for speculation. 2 THE WITNESS: Let me try that. I would say this 3 approach, including the area that they had identified, 4 seemed reasonable as one of the steps that they were 5 identifying that should be taken in this SWIM planning 6 process. It didn't stand alone. It was part of a 7 combination of things that they were working on, and in 8 that sense, yes, I felt it was reasonable. 9 MR. HETRICK: Let's go to Exhibit 9. 10 (Whereupon, Exhibit No. 9 was marked for 11 identification.) 12 BY MR. HETRICK: 13 Q I want to take you through this document. Do you 14 recognize, beginning with, first of all, do you recognize 15 the Routing and Transmittal Slip on page 1? 16 A Yes. 17 Q Was this document that is attached intended to be 18 a part of that routing slip? 19 A Yes. 20 Q Are you familiar with this document? 21 A In general. 22 Q Can you tell me what the purpose of the document 23 was? 24 A If I recall, and from scanning the document, it 25 was an internal memorandum to document the highlights of a A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 291 1 meeting that was attended by Tom Swihart of my staff. 2 Q Is this summary, in effect, an assessment made of 3 what occurred at that meeting? 4 A I don't know. I wasn't there. I assumed that it 5 was. It was presented to me by staff as an accurate 6 summary of that meeting. 7 Q So you would agree that it is your staff's 8 assessment of what occurred at that meeting? 9 A I would agree that my staff told me it was their 10 assessment. 11 Q Did you review this assessment? 12 A Yes, I did. 13 Q If we start with number 1, do you agree with that 14 assessment now that was made in that memo? 15 A Let me go back to my answer. I can't agree or 16 disagree with the assessment. I could simply agree that it 17 was the assessment that was presented to me. I wasn't at 18 the meeting, and I can't speak to its accuracy. All I can 19 say is that I recognize the document and it was presented 20 to me as an accurate assessment of the meeting, so I agree 21 the document was prepared and I do recognize it. As to its 22 accuracy, I really cannot speak to that. 23 Q Well, I am still having a little difficulty 24 discerning the difference between you and your staff, but 25 if we take, for example, subparagraph 5, "The S-12 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 292 1 structures will require more discussion. Should all four 2 be pooled statistically? or kept separate," did you have 3 any opinion at the time on that statement? 4 A No. 5 Q Did you agree with the issues identified in that 6 statement? 7 A I am not sure if -- the statements, as I 8 understand it, presented topics that were discussed at the 9 meeting, some of which will be discussed or were to be 10 discussed further in the future, and I don't -- I can't say 11 that I agreed or disagreed with any one of them. Staff of 12 those agencies were meeting to discuss these issues, and 13 the results of those discussions were being reported back 14 to me. I didn't take a position one way or the other on a 15 particular issue, that I recall. 16 Q I could belabor this, but number 6 in the memo 17 from Tom Swihart to Roxane Dow, "The S-333 discharges will 18 require special handling, because that structure is 19 operated differently now than it was from 1976-81." 20 Then it says, "As a starting point, an analysis 21 will be made of water quality data from January of 1983 to 22 December of 1987 (excluding a 30-day test period in April 23 of 1984 when discharge quality was degraded)." 24 Did you agree or not disagree with that statement 25 at the time or that assessment? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 293 1 A I don't think I had an opinion. This was a 2 statement of how they were going to handle a particular 3 data set. I did not review the data set or form an opinion 4 as to whether this approach was appropriate. 5 MR. HYDE: I think the fundamental problem here, 6 Keith, I think you are assuming that Mr. Armstrong 7 knows each and every thing that his staff was doing and 8 approves of each and every thing that his staff was 9 doing and understands the opinions or reasons for each 10 and every thing his staff was doing, and that is just 11 not -- that is not the real world. I think you are 12 dealing with Mr. Armstrong as an administrator of a 13 far-flung division within the Department, and he knows 14 certain things, and certain things are just passed up 15 to him for informational purposes. That doesn't mean 16 he buys or accepts everything that is said on a piece 17 of paper that some staff person might have set forth at 18 some time or he understands the reasons why they say 19 something. 20 MR. HETRICK: I guess what I am trying to explore, 21 the memo states here, "I agree with your assessment and 22 issues identified," and I am just trying to find out 23 what assessments were made and which issues are 24 identified and whether he agreed or not. I assume he 25 agreed with it, and now he stated he may not agree with A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 294 1 it or he had no opinion, may or may not have an 2 opinion, or actually what he stated was, "I don't 3 necessarily have an opinion about that," and I am just 4 confused. I am just trying to explore the contents of 5 this document. I think we established early on that -- 6 well, there is two issues, Bill. 7 Number one is this memo in particular, but the 8 second, broader one is, even though things pass his 9 desk, if he signs off on something or agrees with 10 something I am assuming -- 11 MR. HYDE: But you are necessarily assuming -- 12 MR. HETRICK: That is a Department condition. 13 MR. HYDE: -- that he is agreeing with everything 14 that comes before his face, and that is just not the 15 case in any bureaucracy, whether it is corporate or 16 governmental. 17 MR. HETRICK: Well -- 18 MR. HYDE: You can continue with the line of 19 questioning. I don't see that it is meaningful or 20 useful. 21 BY MR. HETRICK: 22 Q What did you mean on the routing slip, "I agree 23 with your assessment and issues identified"? 24 A Well, if you read through the document, it appears 25 to me, and it appeared to me at the time, Mr. Swihart was A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 295 1 stating certain facts concerning what they had discussed 2 and how they intended to address those issues. There were 3 a couple of his thoughts concerning the outcome of the 4 meeting that are included, and basically I told him that I 5 felt that it appeared that they were doing what they were 6 charged with doing, and that is discussing these issues, 7 and it was a technical set of issues that they were asked 8 to address. He included a statement at the end that some 9 of the agreement that he perceived may be illusory; perhaps 10 some people who didn't say a whole lot may not have agreed, 11 that was his personal opinion, and I can understand how 12 that might happen, but basically I was agreeing that he had 13 done a good job and had done what he was asked to do. 14 I can't say that had I been in attendance at the 15 meeting and done an independent assessment I would have 16 decided to take the same approach. I was relying on staff 17 and their abilities to make those judgment calls whenever 18 they needed to. 19 Q Well, with regard to number 6, do you know if your 20 staff agreed with this method of handling S-333 discharges? 21 A As it was presented to me, it appears that the 22 group that had met decided that they would take this 23 approach. I don't know whether he personally was in a 24 minority or agreed with the group, but that was, as I 25 understand it, the presentation of maybe the consensus of A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 296 1 the group, but the approach they intended to take for the 2 reasons stated. I had no reason to question that and, in 3 fact, did not question it, that I recall, anyway. 4 Q Were you basically then generically or generally 5 looking at how they intended to address issues and whether 6 that process was appropriate or not? Is that -- 7 A In a general sense. 8 Q You did not look at really the substantive 9 discussions that were ongoing? 10 A Well, I didn't look at the detailed information or 11 perhaps certainly not at the discussions that led to these 12 approaches that were identified. I simply could not do 13 that in the position I was in. 14 Q Well, one last thing. If you could look at number 15 8, in the second paragraph of number 8, it is stated, "I 16 expressed substantial concern about the possibility of this 17 method being insensitive to single high values or even a 18 series of them extending, perhaps, over several months. 19 The Park and the SFWMD will perform sensitivity analyses on 20 this question." 21 A Okay. 22 Q In his professional capacity or in Tom's 23 professional -- Tom was responsible to you for this period 24 of time? 25 A Yes, he was. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 297 1 Q Was this -- would this have been a departmental 2 concern or not, or was this his concern? 3 A This was his concern. 4 Q Did you have any opinion from the Department's 5 perspective as to whether or not the Department would also 6 express such a concern? 7 A No, not at this point. I tend to agree I think 8 that it is appropriate to raise the concern, but concern 9 had not been resolved by the group. It was being studied 10 further, and I don't recall having anything specific to say 11 about it. 12 MR. HETRICK: Let's mark this as Exhibit No. 10. 13 (Whereupon, Exhibit No. 10 was marked for 14 identification.) 15 BY MR. HETRICK: 16 Q Do you recognize this memo? 17 A Yes, I do. 18 Q Do you recall the first draft of the South Florida 19 Water Management District Everglades SWIM Plan? 20 A In general. 21 Q Can you tell me what the purpose was for this 22 memorandum? 23 A This was an internal briefing memorandum to the 24 Rule Review Committee, which consisted of generally the 25 Assistant Secretary and the division directors and a few A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 298 1 other key people within the agency. 2 Q If you look on the front page, the first 3 paragraph, the last line of the first paragraph says, 4 "Instead, the plan refers to water quality," quote, 5 "`targets' and `goals.'" 6 What was the purpose behind that? 7 A I am sorry, could you be more specific, the 8 purpose behind what? 9 Q Why did they, did the ERC -- well, what do the 10 terms "targets" and "goals" mean in the context of what is 11 being discussed here? 12 A If I recall, the issue that the water management 13 district was wrestling with was whether or not to recommend 14 specific standards for adoption by the Environmental 15 Regulation Commission. As explained in the memorandum, the 16 district, instead of recommending specific standards, 17 included in this draft targets and goals that were to be 18 strived for in implementation of the SWIM recommendations. 19 Q Was it decided that the district would not request 20 ERC adopt numeric water quality standards for any part of 21 the Everglades system, Everglades Protection Area? 22 A That apparently was the decision in this draft. 23 Q Was it, in fact, what resulted? 24 A I don't know. 25 Q Why was it decided in this draft? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 299 1 A I don't know. You will have to ask the district. 2 Q Do you agree or disagree with the decision by the 3 water management district not to propose numeric criteria? 4 Let me put it this way. Did you agree, at the time of this 5 draft did you have an opinion on whether or not the water 6 management district should propose numeric criteria-setting 7 by the ERC? 8 A I don't recall that I had an opinion. I don't 9 remember. We had discussed the good and bad, if you will, 10 factors of both approaches. I don't recall that I had an 11 opinion one way or the other. 12 Q Have you since come to an opinion with regard to 13 that particular issue? 14 A No. 15 MR. HETRICK: We will mark this as No. 11. 16 (Whereupon, Exhibit No. 11 was marked for 17 identification.) 18 BY MR. HETRICK: 19 Q Do you recognize this document? 20 A Yes, I do. 21 Q Can you describe this document to me? 22 A As best I recall, this document represents 23 language that may have been prepared by Charles Lee or at 24 least I think was offered by Charles Lee as some language 25 or actions that might be included in the -- by the water A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 300 1 management district in the Everglades SWIM Plan. It was -- 2 as I understand, it was ultimately passed through the 3 Department for review and consideration. 4 Q On page 2 of this document, entitled up at the 5 top, State of Florida, Office of the Governor, it says, 6 "Randy A., Check through carefully and advise which of 7 these we have not covered in our present draft and advise 8 what your division comments are to this. See me on it 9 Wednesday, 31st." Whose signature is that? 10 A Dale Twachtmann. 11 Q Did you indeed have that meeting on the 31st, do 12 you recall? 13 A I don't recall. 14 Q Did you meet with Dale Twachtmann at all about 15 this memo at or about that time? 16 A I do not recall. 17 Q Do you recall ever discussing this -- did you say 18 Sierra Club? 19 A No. Charles Lee. 20 Q -- this Charles Lee document, did you ever discuss 21 this document with the Secretary? 22 A I honestly do not remember. The date on which he 23 wanted to discuss it is the day I left the agency. Things 24 were sort of crazy that last day. 25 Q Did you ever have a chance to review this A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 301 1 document? 2 A If I -- I believe I recall reviewing it in the 3 sense that I skimmed through it. 4 Q Did you ever have any chance in your professional 5 capacity with the Department to form any opinions about 6 this document? 7 A I don't believe that I did. I just don't recall 8 at that point in time whether we got to this before I left. 9 Q In this document, if you look at number 3), 10 paragraph 3), it talks about the 75,000 acres of lands 11 within the Everglades Agricultural Area. Do you see that? 12 A It says 76,000, I think. 13 Q And this memo was dated October 25. There appears 14 to be a FAX on it, October 26, 1990. Do you have -- I 15 assume you got this around October 29, 1990, and you 16 attached that to this. In other words, this was prepared 17 somewhere around late October 1990, is that the way you 18 understand it? 19 A The Secretary's note to me was the 29th, and my 20 transmittal slip to various people in the Department was 21 also dated October 29th, so I assume I received it on that 22 date. 23 Q And this, I guess, would have been a document he 24 received by Charles Lee on or about that time? 25 A I don't know who he received it from. This is a A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 302 1 FAX transmittal from the Governor's office, that I received 2 it from him, apparently. 3 Q This 76,000 acres, back in Exhibit No. 8 in a 4 different context we talked about a 55,000-acre tract, that 5 was mid-October. Do you have any understanding as to the 6 basis for any changes and the thinking that might have gone 7 on to determine this 76,000-acre figure that you might have 8 been a part of during your tenure? 9 A I don't know who prepared this document or what 10 their thinking was. I stated when we reviewed the earlier 11 document that there were several numbers of, acreage 12 numbers that were being passed back and forth during this 13 period of time, and I can't speak to where the 76,000 came 14 from. I don't know who drafted the document. 15 Q Were those figures ever being discussed back and 16 forth or considered back and forth? Do you recall if they 17 were in the range of 55,000 to 76,000 during that time 18 frame? 19 A I recall various parcels of land that were being 20 discussed that were in that range, or combinations of 21 parcels, but as I said, the numbers jumped all over the 22 place for quite some time. 23 Q Are you aware of any response by the Department or 24 the district to this, any -- this memo or any portions of 25 it? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 303 1 A No. 2 MR. HETRICK: This will be Exhibit 12. 3 (Whereupon, Exhibit No. 12 was marked for 4 identification.) 5 BY MR. HETRICK: 6 Q Do you recall this document? 7 A Yes, I do. 8 Q Can you describe to me what was going on in this 9 document? 10 A Yes. The Department had reorganized, as I believe 11 I mentioned yesterday, that reorganization was effective, I 12 think it was July 1, 1988, and there were some issues that 13 had been hanging on since the reorganization, one of which 14 was how to deal with agricultural systems within the 15 Department's regulatory framework or organizational 16 framework, and the Secretary had asked Howard Rhodes, who 17 was the director of the Division of Water Facilities, and 18 myself as director of the Division of Water Management to 19 meet and discuss the issue of agricultural systems and hold 20 what amounted to sort of a public workshop to discuss those 21 issues with. 22 Q Having to do with stormwater runoff? 23 A Well, agricultural systems and how those would be 24 dealt with organizationally within the Department. We 25 convened that meeting, and the representatives that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 304 1 attended are listed as an attachment, I believe, to the 2 memorandum, and then we drafted this memorandum to the 3 Secretary in which Mr. Rhodes and myself presented our 4 recommendation and discussed some other issues that 5 probably still needed further discussion. 6 Q Would you look at the third paragraph on page 1, 7 the last sentence that says, "We feel our legislation will 8 give us the statutory authority to implement a watershed 9 approach to solving water quality problems in this 10 fashion," parens, "(even though we could argue that we have 11 it now,)" end parens. 12 What did you mean, "a watershed approach to 13 solving water quality problems in this fashion"? 14 A Give me just a second to read through this, if you 15 will. 16 Q Sure. 17 A The question was what did I mean by a watershed 18 approach, is that correct? 19 Q Correct. 20 A What we were discussing here was possible 21 legislation that might give us the clear authority to deal 22 with a particular set of water quality problems on a 23 regional basis rather than a discharger-by-discharger or 24 activity-by-activity basis, and as the sentence says, 25 arguably, we may have had that authority then, although A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 305 1 some legislation that was being discussed and considered 2 might make that clearer. 3 Q Is there any particular statute that you looked to 4 to base your argument that you already had existing 5 authority to undertake that sort of an approach? 6 A Well, there had been some discussions about our 7 general authority to protect water quality under statute, 8 under Chapter 403, and the extent to which we could 9 implement the requirements under Chapter 373 -- I can't say 10 specifically what sections within those statutes we may 11 have been referring to -- but somewhat argued we had the 12 authority to do what we were talking about currently, 13 although it could probably have written more clearly in the 14 statutes. 15 Q Was that legislation, in fact, passed? 16 A We did pass some water legislation, and I don't 17 recall if it was in '89 or not, I believe it was, dealing 18 with stormwater and with SWIM. 19 Q Did this, in fact, clarify your statutory 20 authority to implement this watershed approach? 21 A Well, one of the things we ended up doing is 22 clarifying the, not only the stormwater regulations, but 23 the SWIM regulations, and as stated in the memo, that this 24 approach basically is SWIM, and looking at water quality 25 and water resource problems on a region-wide basis or A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 306 1 watershed basis is exactly what we were looking for the 2 SWIM process to do, so I think we -- and in that 3 legislation, we did clear up some of the statutory language 4 dealing with stormwater and at the same time cleared up the 5 SWIM legislation as to how that program was to operate. 6 Q Were there ever any specific problems with SWIM 7 that you were trying to get at by cleaning up statutory 8 language to allow for this regional concept to take place? 9 A I don't recall that any of the changes we were 10 trying to make to the SWIM legislation dealt specifically 11 with that concept of watershed management. A lot of our 12 proposed changes to SWIM dealt with the administration of 13 the program by the Department, the relationship between the 14 Department and the water management districts in approval 15 of the SWIM plans and the governing board's involvement in 16 this and so forth. I don't recall whether there was any 17 language in there that dealt with their ability to do 18 region-wide watershed planning. 19 Q Let's switch gears for a moment. Are you familiar 20 with the Interim Permit A issue that is being challenged in 21 this SWIM Plan case? 22 A No, just in general. 23 Q Have you ever looked at the Interim Permit A 24 application? 25 A No. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 307 1 Q Have you ever looked at the interim permit? 2 A No. 3 MR. HETRICK: Does he intend to offer any 4 testimony at all with respect to the permitting aspect 5 of Interim A? 6 MR. HYDE: No. 7 MR. HETRICK: Or any of the permits that may be at 8 issue in this case? 9 MR. HYDE: Not at all. His testimony, as we 10 stated it, is bearing upon the construction and 11 interpretation of the Department's rules and the 12 historical background of those rules. 13 BY MR. HETRICK: 14 Q I believe you mentioned early on in the deposition 15 when we were running through, and I can pull out your 16 description of anticipated testimony, but one of the 17 aspects that you mentioned you might offer testimony on had 18 to do with permitting, construction of permitting statutes 19 and rules. 20 A Yes. 21 Q I have just a group of questions here about 22 permitting that I would like to ask you. 23 You were division director -- at one point in time 24 prior to becoming division director of Water Quality, you 25 were division director of Permitting for DER, is that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 308 1 correct? 2 A That is correct. I was director of the Division 3 of Environmental Permitting, and then through the 4 reorganization became director of the Division of Water 5 Management. 6 Q So you are familiar with DER water quality 7 permitting procedures? 8 A Yes, I am. 9 Q Are you familiar with the permitting of 10 agricultural structures? 11 A In general. 12 Q Are you familiar with the -- and I am going to ask 13 you a question about a few specific structures, but are you 14 familiar with the permitting of agricultural water 15 discharges in the upper St. Johns River and Lake Apopka? 16 A In general. 17 Q Do you know what period of time that occurred in, 18 that your involvement was, concerning the permitting of 19 agricultural water discharges in those areas? 20 A The analysis of those discharges and their impacts 21 on the Lake Apopka chain extended over a number of years, 22 leading up to, if I recall, and I was peripherally 23 involved, an agreement that the water management districts 24 would take the lead on permitting of those structures. I 25 don't -- and that was in the mid- to late 1980s -- well, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 309 1 probably up to 1990 or so, '89 or '90. 2 Q Was a permit issued in those cases by the water 3 management district or by DER? 4 A I believe it was. 5 Q By which one? 6 A I believe by the district. I don't recall if 7 there were any Department permits issued in that case or 8 those cases. 9 Q The types of discharges that were at issue in the 10 upper St. Johns River and Lake Apopka, did they involve 11 longstanding agricultural discharges, including pumped 12 discharges? 13 A Yes. Let me go back to something I didn't 14 realize, or maybe it wasn't this way, that your question, 15 your earlier question was inclusive of the Apopka situation 16 as well as St. Johns. The only thing that would change is 17 that the efforts to permit discharges into St. Johns began 18 early in the Department's history, and I believe there were 19 Department permits issued for that. There may have been 20 some Apopka permits as well. I just recall the recent -- 21 in the most recent past I recall there were some water 22 management district permits issued for the Apopka 23 discharges. 24 Q I am just trying to understand, were water 25 management district permits also issued for the St. Johns A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 310 1 discharges? 2 A I don't know of any. There may have been 3 discharge permits. 4 Q Right. 5 A I assume that is what we are talking about. 6 Q That is exactly right. 7 A Not dredge and fill. There may have been, I don't 8 recall. 9 Q What about Department permits to the St. Johns? 10 A I believe there were. 11 Q Were there any Department permits issued to 12 Apopka? 13 A I don't recall any discharge permits. There were 14 some dredge and fill permits for some improvements that 15 were made, and there could have been some Department 16 permits in the earlier years. The most recent ones that I 17 recall were issued I believe by agreement by the water 18 district -- by the agreement between the Department and the 19 district. 20 Q What were the sources -- I will deal with both 21 situations, but if we need to deal with them separately, we 22 can. I am not trying to confuse you. 23 A All right. 24 Q What were the sources of the discharges in the St. 25 Johns River and Lake Apopka? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 311 1 MR. HYDE: Why don't we do them separately? The 2 questions and answers get confusing when you start 3 dealing with multiple components to a question. 4 BY MR. HETRICK: 5 Q What were the sources of discharge in the St. 6 Johns River? 7 A The ones that I am familiar with and the ones that 8 I recall were some cattle operations, and I believe some 9 farming operations, as well, that were resulting in 10 stormwater discharges, I believe some pumped and probably 11 some gravity flow discharges as well. 12 In the case of Apopka, I believe all of the 13 discharges that were being discussed were from farming 14 operations. I don't recall if there were any cattle 15 operations at that time. I think there had historically 16 been some, but I don't recall if there were any remaining 17 at that point in time. 18 Q Were any of the discharges operated by 19 governmental units at all, do you recall? 20 A I don't believe so. 21 Q What was the nature of the -- well, was there an 22 alleged unlawful discharge by the Department as to these 23 discharges, both in St. Johns and Apopka? And you can take 24 them one at a time. 25 MR. HYDE: Objection; calls for a legal A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 312 1 conclusion. 2 BY MR. HETRICK: 3 Q Well, were there discharges that the Department 4 viewed as violations of water quality standards in each 5 instance? 6 A As I recall, the Department alleged that 7 violations in the upper St. Johns basin should be 8 considered sources of pollution and, as such, have a 9 permit. I don't recall if actual violations were alleged. 10 I think the thrust of that effort was to bring those 11 operations under permit and require monitoring of their 12 operations to then assess their impact more fully. I think 13 that is sort of the gist of the effort for St. Johns. 14 For Apopka, I don't recall if there had been, I 15 believe there had been previously issued permits, but the 16 Department, perhaps Department permits -- I am not real 17 clear on that, but there was concern by the Department that 18 discharges were still causing water quality problems and 19 perhaps some upgrading of the quality of the discharge 20 might be necessary, and that, as I mentioned earlier, led 21 to discussions between the Department and the district 22 about which agency would ultimately negotiate those permits 23 for the dischargers, and I believe the water management 24 district did that. 25 Q For Apopka? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 313 1 A For Apopka. As I said, there may have been, and I 2 believe there were, some earlier Department permits, but in 3 the recent past I believe the water management district 4 negotiated those permits. 5 Q But the Department permits existed for the St. 6 Johns, then it wasn't the district trying to permit? 7 A As I said, the district may have issued some 8 permits. I was familiar with the Department's permitting 9 actions in the upper St. Johns. 10 Q In the upper St. Johns, under what authority did 11 the Department seek to place the upper basin St. Johns 12 discharges under permits, do you recall? 13 A I don't recall. 14 Q How about for the water management district for 15 Apopka? Under what authority did they assume to permit 16 discharges? 17 A The authority is -- I believe it was under their 18 general authority under Chapter 373 for requiring permits 19 for management and storage of surface waters. I don't 20 believe there was any delegation of DER authority for the 21 purpose of issuing those permits, although I am not real 22 sure on that. 23 MR. HETRICK: Could you read back the last answer? 24 (Whereupon, the court reporter read the requested 25 portion of the record.) A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 314 1 BY MR. HETRICK: 2 Q So the water management districts were exerting 3 authority under 373 and with respect to Apopka? 4 A That is my recollection. Again, I don't know a 5 lot of the specifics of that, but I believe that is 6 correct. 7 MR. HETRICK: This will be marked as Exhibit 13. 8 (Whereupon, Exhibit No. 13 was marked for 9 identification.) 10 BY MR. HETRICK: 11 Q I guess on this document -- would you please 12 review this document? 13 MR. HYDE: Let me ask for clarification. The 14 bottom of the first page of the letter, it is not 15 clear. 16 MR. HETRICK: I am going to get you a better copy. 17 BY MR. HETRICK: 18 Q Do you recognize this document? 19 A Yes, I do. 20 Q I am just interested in what was going on with 21 this memorandum? 22 A Is that a question? Which memo? 23 Q This January 9 -- well, first of all, should 24 this -- the second page of this document, it says, "Dear 25 Mr. Wodraska," should this have been attached to this first A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 315 1 document? 2 A I don't know. 3 Q Do you know if the "Randy" that is appearing on 4 the first page is a reference to you? 5 A I assume that it was. 6 Q Have you seen this memo at all? 7 A Well, you keep referring to the memo. 8 Q I am sorry, the 4/19 -- 9 A The transmittal? 10 Q The transmittal. 11 A Yes, I recall this. 12 Q Okay. 13 A To save a little time, I recall the letter. I 14 don't recall if the two were attached when I received it. 15 I think the transmittal slip refers to, "Attached are some 16 applicable correspondence and statute," so -- and I don't 17 know, I don't have a listing of what those were, but 18 obviously some things aren't there because I don't think 19 there is any statutory language attached. 20 Q I am primarily interested in the attached letter, 21 January 9, 1990. You have reviewed that, have you not? 22 A Yes, I have. 23 Q What was going on in this memo? 24 A This letter? 25 Q This letter. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 316 1 A Well, as I read it, it was a letter to the 2 Executive Director of the South Florida Water Management 3 District from the Secretary discussing the verified 4 complaint which is referred to in the introduction to the 5 letter, filed pursuant to Chapter 403.412, Florida 6 Statutes, and it outlines some requirements the Department 7 was to impose for gaining permits in south Florida. It 8 refers to separate correspondence, which apparently was 9 attached to this letter, to the Corps of Engineers stating 10 that the Corps would have to obtain Department permits. It 11 concludes that because the District also owns or operates 12 structures, the district was going to -- South Florida 13 Water Management District was going to have to apply for 14 permits. 15 It discusses the stormwater legislation that I 16 referred to previously, where we discussed a watershed 17 approach to stormwater management, and then it directed the 18 district to do certain things, starting with supplying a 19 timetable, indicating how they intended -- how the district 20 intends to comply with these requirements. 21 Q If you go to the third paragraph, it begins, "At 22 the Department's request, the 1989 Legislature enacted the 23 Stormwater Act." Basically, and correct me if I am wrong, 24 but this is a confirmation of the codification of the 25 watershed approach that we talked about in Exhibit 12, I A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 317 1 guess? 2 A That is correct, where we previously thought we 3 had general authority, but had proposed legislation that 4 provided specific authority for that, those actions, those 5 types of actions. 6 Q On the second page, the paragraph goes on, from 7 that letter, the January 9, 1990 letter, beginning on the 8 second line with the sentence, "In other words," and if you 9 could just review those next two sentences, it appears to 10 be a summarization by the Secretary of that watershed 11 approach. Would you agree with that? 12 A Yes. 13 Q Would you agree with those statements made by the 14 Secretary at that time? 15 A I believe that I did. 16 Q Going back to the first page, the end of the 17 second paragraph, the last sentence, I just refer you to 18 that sentence for reference, but did you agree that at the 19 time that the district structures -- when I say "you," I 20 mean the Department -- should be -- and you were working 21 with the Department at this time, were you not? 22 A That is correct. 23 Q Was it the Department's position at the time that 24 the district structures should receive permits? 25 A Yes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 318 1 Q Did you have any personal opinion one way or the 2 other in that regard? 3 A No, I can't say that I did. 4 Q Did you have any professional opinion or 5 differences with the Department's position in that regard? 6 A I don't recall that I did. 7 MR. HETRICK: We will mark this as Exhibit 14. 8 (Whereupon, Exhibit No. 14 was marked for 9 identification.) 10 BY MR. HETRICK: 11 Q If you would just take a moment to look this 12 document over. Can you identify this document? 13 A Do I recognize it? 14 Q Yes. 15 A Yes, I do. 16 Q Could you explain this document and the purpose of 17 this document? 18 A I think I can. There was -- in essence, there 19 seemed to be a perception, perhaps inside the agency, 20 perhaps outside, and probably both, that in some situations 21 the Department would not even consider a permit for 22 discharge, and the Secretary wanted to make it clear that 23 the Department has no strict -- no, does not have a strict, 24 no discharge policy, but that decisions regarding discharge 25 and permits for discharge must be based upon the facts of A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 319 1 the matter and whether or not the proposed discharge would 2 cause or contribute to any water quality standards. 3 The memorandum recognizes factors such as sample 4 collection and analysis, modeling techniques and daily and 5 seasonal variability and so forth. 6 Q Do you agree with those factors listed on the 7 second page as variables? 8 A I agree those are technical considerations that 9 may come into play. 10 Q Do you agree that they should be taken into 11 account to effectuate this policy? 12 A In general. They may not apply in some 13 situations, but they are reasonable factors that normally 14 should be considered whether they are appropriate in a 15 particular situation or not. 16 Q How would you evaluate whether they were 17 appropriate in a particular situation? What would you take 18 into consideration? If you could give me an example, that 19 would help. 20 A Some modeling techniques are only accurate to a 21 few percentage points, and making a decision solely based 22 on the output of a model may not be prudent, realizing the 23 variability of the results or the reliability of the data 24 that went into the development of that model. 25 I think what the Secretary is saying here is, be A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 320 1 reasonable. If you have a lot of factors to consider, you 2 should consider those and not rely on any one particular 3 set of facts or circumstances. 4 Q Well, do you understand, is this policy as 5 articulated by the Department, then, the current policy of 6 the Department? 7 A I don't know. 8 Q Was it the policy of the Department up to the time 9 of your departure? 10 A Yes, I believe it was. I don't recall that this 11 memorandum was rescinded. 12 Q Have you ever had any circumstances since your 13 departure from the Department where you have had to 14 encounter what might be the -- well, the effects of this 15 policy, or where this policy might come into play, either 16 did or didn't, in any project you have worked on in 17 conjunction with the Department? 18 MR. HYDE: I object to the form of the question. 19 I think there are about three or four questions in 20 there. 21 BY MR. HETRICK: 22 Q Have you ever run into any situations since your 23 departure with the Department that would have involved 24 application of this policy as articulated by Secretary 25 Twachtmann back then? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 321 1 A Yes. 2 Q What situation was that? 3 A The one that comes to mind that I mentioned 4 yesterday was the City of Boca Raton application for 5 discharge to the Atlantic Ocean, where we had discussions 6 with the Department about the information that had been 7 submitted in support of that application. As I mentioned 8 yesterday, I believe, initially the Department intended to 9 deny the permit, and through those discussions and 10 presentation of additional information, that disagreement 11 was resolved, and I believe a permit has been issued, 12 although I cannot say that for certain. 13 Q Did you see any evidence in your experience with 14 that particular project where the Department considered 15 this particular policy in the resolution of that issue? 16 A No, I can't say that it came up. 17 Q I have one last question on this policy. How does 18 this policy -- can you explain to me how this policy might 19 interface with the OFW rule in terms of whether a 20 particular body of water -- and I can get into Loxahatchee, 21 but in general, hypothetically, in terms of how the 22 grandfathering a particular body of water might be at 23 issue, or does it? 24 A I am not sure that it does. Maybe I could conjure 25 up a hypothetical where it might, but I think the policy is A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 322 1 really independent of the classification of the water body 2 or the circumstances that, as I read the memorandum, it 3 basically says y'all be careful and do good work and use 4 the best information you have. 5 Q Well, on sub 2, it says, "The proposed discharge 6 would have no significant adverse cumulative impact." Is 7 that an additional standard that is superimposed on Class 8 III water quality criteria? 9 A I don't look at these additional standards that 10 need to be imposed. I think those would have to be in the 11 rules. I think the Secretary would like them considered in 12 light of the standard applicable to any given situation, 13 whether it is an OFW or straight Class III or any other 14 classification. 15 Q So there are no particular operative meanings 16 given to this particular terminology which talks about no 17 significant adverse cumulative impact? That is more or 18 less of a guideline or guiding of, use-your-best-judgment 19 type policy? 20 A That is the way I took the memorandum, and if you 21 notice in the lead-in to those three sections, it says that 22 permits for discharge may be issued, not that they should 23 be issued if these things were met. I looked at these as 24 considerations that should be taken into account by the 25 Department in analyzing the situations, but these A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 323 1 considerations would have to be under the terms of the 2 rules in effect. 3 MR. HETRICK: This will be Exhibit 15. 4 (Whereupon, Exhibit No. 15 was marked for 5 identification.) 6 MR. HETRICK: I am going to also simultaneously 7 hand out what I will mark as Exhibit 16. 8 (Whereupon, Exhibit No. 16 was marked for 9 identification.) 10 BY MR. HETRICK: 11 Q We can kind of talk about these together. 12 I would like you to take a look at Exhibit 15 13 first. There appears to be, on page 1, a memo from 14 Roxane. Who is this memo to and who is it from? 15 A You are speaking of the transmittal slip? 16 Q Yes. This is from you? 17 A It is from me to Roxane Dow, Bart Bibler and Dan 18 Thompson, with copies to Mark Latch and Scott Benyon. 19 Q Mark who? 20 A Latch. 21 Q Who is Mr. Benyon? 22 A Mr. Benyon was the Executive Assistant Secretary 23 of the Southeast Florida District DER office in West Palm 24 Beach. 25 Q This letter on the first page, handwritten from A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 324 1 you to Roxane, Bart and Dan Thompson, can you explain this 2 memo to me? 3 A The purpose of the transmittal sheet was to 4 circulate a copy of a draft letter I received from Tom 5 MacVicar of the South Florida Water Management District to 6 those individuals that I just identified and ask them to 7 please review the letter and give me their thoughts on it. 8 Q What did you mean in the first statement, 9 "Although completion of the Everglades SWIM Plan may change 10 my philosophy regarding the permits somewhat, they," 11 parens, "(or a master permit,)" end parens, "should still 12 provide a," quote, "`backstop,'" unquote, "for the SWIM 13 Plan"? 14 A My recollection is that statement refers to the 15 fact that really two processes were going on at the same 16 time. We were trying to bring the district structures 17 under permit and require whatever actions we deemed 18 appropriate through those permits, and while we felt that 19 process was related to the SWIM planning effort, the fact 20 that we were going to bring those structures under permits 21 could proceed independent of the outcome of the SWIM 22 planning element. 23 Q What did you have in mind, if anything, in your 24 statement in the first sentence, how could completion of 25 the Everglades SWIM Plan, how could that have changed your A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 325 1 philosophy regarding the permit somewhat? 2 A Well, I think it -- the types of permits and the 3 requirements in those permits that we might, we, the 4 Department, might issue, could, to a certain extent, be 5 dictated by the approach taken in the SWIM Plan. The SWIM 6 Plan, as an example the SWIM Plan could have been more of a 7 guidance document and less a regulatory document, depending 8 on the position of the district and the governing board, so 9 the enforcement capabilities or, a better term, I guess, 10 the expectations of the Department with respect to the 11 success of the SWIM Plan might change the philosophy or the 12 requirements that the Department would have taken in the 13 permitting process. 14 I refer to those permits as a backstop in the 15 sense that some things -- we wanted some things to get 16 accomplished, either in the permitting process or the SWIM 17 planning process, hopefully through both. 18 Q Did you view the SWIM Plan up to the point of your 19 departure in your experience in the development of that 20 planning process in the Everglades as primarily a guidance 21 document? Is that how you envisioned it, envisioned the 22 permits to be issued for the regulatory mechanism? 23 A No. I think I viewed the SWIM document as it was 24 being developed at least as a combination of both, a 25 guidance document and a document that would provide a A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 326 1 regulatory framework for accomplishing the goals and 2 objectives of the SWIM Act. 3 Q Maybe we are just speaking a different language. 4 I just want to clarify. You say regulatory framework. Do 5 you mean setting out what needs to be done in order to 6 implement the requirements contained within the planning 7 document? 8 A What needs to be done and how it was going to be 9 accomplished and by whom. That is the regulatory framework 10 that we were looking for. 11 Q Sure. If we skip over to the letter to yourself, 12 which is two pages into it, addressed to you, the second 13 paragraph, the second line, what was the South Florida 14 Water Management District's issue expressed in that 15 statement? What was your understanding of that? 16 A Could you be more specific? I am not sure where, 17 specifically. 18 Q It begins, "Neither our rules, nor those of the 19 Department." 20 A The second sentence? 21 Q Yes. 22 A The question is -- 23 Q What was your understanding of what the South 24 Florida Water Management District's issue was as expressed 25 in that sentence? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 327 1 A I think it is pretty self-explanatory, that there 2 was a general feeling that, as it says, our rules and the 3 district's rules were not developed to deal with some of 4 the major regional stormwater permitting issues that were 5 being identified. 6 Q Did you agree or disagree with that statement at 7 the time? 8 A I think for the most part I agreed with it. 9 Q Did you anticipate rule changes to accommodate 10 their concerns? 11 A I am not sure if I felt that rule changes were 12 going to be necessary, at least on the part of the 13 Department. 14 Q Do you know if, in fact, the Department ever 15 undertook rule changes to accommodate that concern in your 16 experience with the Department and the Department's rules 17 even since your departure? 18 A Certainly not prior to my departure. Since this 19 was getting close to D-Day, but I don't -- I am not 20 familiar with any specific changes that were made since 21 that time to address this, the specific issue. 22 Q If you look at Exhibit 16, that is really, in 23 effect, a codification of that letter with attachments, and 24 by a codification of that letter, I mean codification of 25 the draft letter we have been looking at in Exhibit 15. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 328 1 Did you review or have any discussions with Mr. 2 MacVicar between September 17, 1990, and October 8th 3 concerning this matter, do you recall? 4 A Yes, I believe I did. 5 Q Did he send you a copy of, I guess, this, or did 6 you review a copy of this draft letter which has "Draft" 7 marked on it in Exhibit 15 before actually receiving a 8 final copy of this, which is dated October 8th in Exhibit 9 16? 10 A Yes, I believe I did. 11 Q What was the purpose that he was undertaking to 12 have you review a draft of a document prior to expressing, 13 formalizing his concerns with you? What process went on 14 there? 15 A I don't recall that there was any, that he 16 expressed any particular purpose, other than to provide us 17 informally with a draft of a letter he intended to send us 18 and ask if we had any comments on it. There was not any 19 formal process in place. This was merely, I guess, a 20 courtesy copy of a draft to see what our comments might be. 21 Q Let's just look at Exhibit 16, and where it talks 22 about in that same sentence we have been looking at, 23 "Neither our rules, nor those of the Department, were 24 developed to handle the after the fact permitting," what is 25 meant by the term, "after the fact permitting"? Would you A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 329 1 describe that to me as it is used in this context? 2 A Well, I can give you my impression. I don't know 3 if it is Mr. MacVicar's or not. 4 Q I would like your impression. 5 A As I understood his discussion of this issue, he 6 was referring to major regional stormwater systems that had 7 been built and were in place and operating for some period 8 of time, even though they may not have required permits 9 when they were initially built and placed into operation 10 and they have never received any permits. 11 Q Was it thought necessary by the Department -- what 12 structures are we talking about? Can you be more 13 specific? 14 A Well, that statement I don't think speaks to any 15 specific structure. The letter speaks to certain 16 structures that are identified in the subject. 17 Q That letter speaks to S-5A, S-6, S-7, S-8, S-150. 18 A Yes. 19 Q In your experience back then, did the same concern 20 exist over the S-12 structures or the S-333 structures, do 21 you recall? 22 A I don't recall discussing those, at least, 23 specifically. I think we discussed the general issue that 24 he is discussing here. I don't recall those discussions 25 being specific to those discharges. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 330 1 Q Was it the Department's -- did the Department 2 ultimately arrive at the view that it was necessary to 3 place these structures under a permit? 4 A Which structures? 5 Q Well, the S-5A, S-6, S-7, S-8, S-150, by issuing a 6 permit to the South Florida Water Management District. 7 A I believe in previous correspondence we discussed 8 the Department had informed the district that they needed 9 to apply for permits for their structures and, in fact, 10 this letter refers to an application for permit for those 11 structures. 12 Q What was the thinking by the Department that went 13 into that decision to require these structures be permitted 14 through the South Florida Water Management District? 15 A It is a pretty general question and somewhat -- 16 pretty difficult to answer. I think the Department had 17 begun, had begun implementing a permitting process for 18 structures such as these. The development of the SWIM Plan 19 and the issues being discussed in the Everglades brought 20 these particular structures to light. I couldn't say I 21 could point to any particular one event or series of 22 events. 23 Q Do you recall what requirements that the South 24 Florida Water Management District was required to meet in 25 order to receive a permit for these structures? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 331 1 A I think those were outlined in the earlier letter 2 from the Secretary that we discussed. The framework of the 3 permits was to be built around the SWIM Plan, and some 4 schedules and a regulatory approach, I don't recall exactly 5 how that was stated, but I believe that letter probably 6 explained it best to the water management district. 7 Q Which letter was that, for our purposes here? 8 A I don't know the attachment numbers, but it was 9 the January 1990 letter to John Wodraska from the 10 Secretary. 11 Q Let me see that. 12 Would a permit applicant and the South Florida 13 Water Management District, in this instance, have to 14 demonstrate the water quality standards be met in order to 15 receive a permit? 16 A That is the whole purpose of the permitting 17 process, is to either ensure compliance with standards or 18 to bring facilities into compliance and protect the 19 maintenance of those standards. 20 Q Would the fact that the structures themselves 21 existed prior to permit application would have no bearing 22 in and of itself as to whether or not they would need to 23 meet water quality standards, is that correct? 24 A I believe I understand your question, and let me 25 answer it in such a way to be sure that I do. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 332 1 The fact that the structures existed without a 2 Department permit previously, even though one wasn't 3 required, would not preclude the Department from requiring 4 those structures to later apply for a permit if the 5 Department felt that it was appropriate for them to do so. 6 Does that answer your question? 7 Q Yes, that answers it. Thank you. 8 MR. HETRICK: Let's take a brief recess. 9 (Brief recess.) 10 MR. HETRICK: This will be Exhibit 17. 11 (Whereupon, Exhibit No. 17 was marked for 12 identification.) 13 BY MR. HETRICK: 14 Q Would you take a moment and go ahead and review 15 this? 16 A Okay. 17 Q Are you familiar with this letter? 18 A Yes, I am. 19 Q Could you tell me what was going on in this 20 letter? 21 A This was a letter from me to Tom MacVicar of the 22 South Florida Water Management District in response to the 23 October 8th letter, I believe it was, that Mr. MacVicar had 24 sent me. It dealt with the applications for a permit for 25 the Everglades structures, S-5A, S-6, S-7, S-8 and S-150. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 333 1 Q In the second paragraph, four lines down, three- 2 quarters of the way over, the sentence begins, "However, 3 Department Rule 17-4 is capable of handling such 4 permitting," and you can finish out the rest of that 5 sentence. 6 A Okay. 7 Q What was your thinking -- how did you view that 8 the Department was capable of handling such permitting? 9 A Well, as I stated I think a few minutes ago, that 10 I agreed that the Department's rules were really not 11 specific for the handling of after-the-fact permitting of 12 these major regional stormwater systems, but the 13 Department, we felt the Department had and in fact had 14 exercised the authority to require permits under their 15 general permitting criteria contained in Rule 17-4 and 16 other related rules. 17 Q Have you changed your opinion since then in regard 18 to that? 19 A No, I don't think so. 20 Q One last thing. Page 2, what is the second 21 paragraph which is the last paragraph, the second line, 22 "151 tonne reduction of total phosphorus," that last 23 paragraph and specifically that first sentence, which is 24 most of that paragraph, can you explain what was going on 25 in that sentence? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 334 1 A I believe as we discussed earlier, the district 2 had identified a 151-ton reduction in total phosphorus as 3 one of the goals of the SWIM planning process, and they 4 were developing the strategy to acquire the land and 5 implement the other actions needed to -- that would result 6 in that phosphorus reduction, and as it says, we are 7 looking forward to receiving the schedule for this work to 8 occur. 9 Q And that reduction would take place as a result of 10 the water being filtered through those structures prior to 11 entering the receiving body of water and coming out of 12 those structures? 13 A Well, I think there were -- there was a process 14 identified for implementing various strategies that would 15 result in that level of reduction. That is what we were 16 looking for, was a schedule for that to occur and the 17 process that they were developing. 18 Q This letter is dated October 23, 1990. Did you, 19 at that time, in your professional capacity with the 20 Department, had the Department made a preliminary 21 determination at that time that that was the appropriate 22 reduction to take place? 23 A I don't remember exactly where we were officially 24 in the SWIM process. We had been presented with that 25 information and had asked the district for further A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 335 1 information on the reasonableness, the scheduling and so 2 forth for the implementation of that reduction. The 3 ultimate requirements and schedules would have been 4 included in the final or at least the intent was to include 5 a final district position and Department position in the 6 finally adopted SWIM Plan, as I recall. 7 Q Well, was the process and the determination of the 8 total phosphorus amounts that needed to be produced far 9 enough along to that the Department or that the 151-ton 10 reduction was in the ballpark of what the Department was, 11 and the district were looking at at that point? 12 A As I said, I think we had focused on that number, 13 and that had been presented to us by the water management 14 district. At this point in time, I don't think anything 15 was finalized in the sense it was cast in stone, but I 16 think we had focused in on those reduction levels at least 17 as the first major step in the SWIM planning process. 18 Q If you would just refer back to Exhibit 16, the 19 second line begins, "Our governing board approved the final 20 draft of the SWIM Plan for the Everglades on September 13, 21 1990." 22 Do you recall whether, after October 8, 1990, 23 between that and the time your tenure with the Department 24 ended, that any response was given to the 151-ton reduction 25 proposed by the district after the October 23 letter you A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 336 1 have here? 2 MR. HYDE: After the October 23 letter? 3 BY MR. HETRICK: 4 Q That is a poor question. My question, I was 5 formulating it as I was going along. That is the problem. 6 It says in this letter that the, in Exhibit 16, 7 the governing board adopted a final draft of the SWIM Plan 8 for the Everglades on September 13, 1990. Did you ever see 9 that final draft, or your staff? 10 A Yes. 11 Q Did that draft, do you recall, contain the 151-ton 12 reduction proposal in it? 13 A I believe it did. 14 Q To the best of your recollection? 15 A To the best of my recollection, it did. 16 Q And from -- when did you leave the Department? 17 A October 30, I think. 18 Q Do you recall reviewing any consistency 19 determination of the final draft of the SWIM Plan as 20 submitted by the district to you? 21 MR. HYDE: Consistency determinations by whom? 22 BY MR. HETRICK: 23 Q By the Department, between September 13 and 24 October 13th. 25 A I recall that there were discussions going on A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 337 1 back and forth between me and my staff and the Secretary 2 and others involved. I don't recall specific documents or 3 drafts or write-ups that may have come through my office. 4 I know the review was in progress at that point in time. 5 Q Do you recall whether or not any final 6 determination had been made as to consistency of the 7 district's final draft as submitted to the Department? And 8 their draft is dated September 13, 1990. 9 A I don't recall that that final determination was 10 made before I left. 11 MR. HETRICK: Could you read back the last part of 12 that answer? 13 (Whereupon, the court reporter read the requested 14 portion of the record.) 15 BY MR. HETRICK: 16 Q Do you recall whether this 151-ton reduction, that 17 the Department had made any determination of consistency 18 with regard to that figure during your tenure? 19 A I just -- I don't recall if the final 20 determination regarding that number had been made. 21 MR. HETRICK: This will be Exhibit 18. 22 (Whereupon, Exhibit No. 18 was marked for 23 identification.) 24 BY MR. HETRICK: 25 Q Can you identify this document? Are you familiar A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 338 1 with it? 2 A Yes, I can identify it and I am familiar with it. 3 Q Can you tell me what was going on in this letter, 4 this memo? 5 A We had been dealing within our division, the 6 Division of Water Management, with the issue of after-the- 7 fact permits, and had developed an earlier policy 8 pertaining to that after the reorganization had occurred 9 on July 1, 1988. Howard Rhodes, director of Water 10 Facilities, and myself as director of the Division of Water 11 Management issued a slightly revised policy which this 12 memorandum reflects, and I am not sure if this is the whole 13 memorandum or not, but it may well be. 14 Q Okay. 15 A Dealing with after-the-fact permits. 16 Q I don't have any other pages we have been able to 17 find that were attached to that. Is there anything here 18 that strikes you as being left out of this interpretation? 19 A The memo is -- the memorandum is vaguely familiar 20 to me, and I find it a little bit interesting that there 21 are no initials at the bottom or no CC's listed, and there 22 may be a second page missing, but I can't say for sure. It 23 would have been unusual for us to issue this kind of 24 memorandum without copies to, for example, the Office of 25 General Counsel and perhaps even the Secretary, but he may A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 339 1 not have done it in this case. I don't recall. 2 Q Does this memo as of the date it is written 3 reflect the Department's view on after-the-fact permit 4 applications? 5 A Well, it reflects the view of Mr. Rhodes and 6 myself for our divisions, and you will notice it is 7 addressed to the water program administrators. There were 8 other groups within the Department at that time to whom 9 this memorandum was not addressed and obviously would not 10 apply to them. 11 Q This memo refers to revisions to Chapter 17-4 that 12 were made, is that correct? 13 A Yes. 14 Q If you look back on Exhibit 17 -- 15 A Which one is that? I don't have them numbered. 16 Q October 23, 1990. 17 A Okay. 18 Q -- were the policies concerning after-the-fact 19 permitting as reflected in Rule 17-4, as you understood 20 them and with these modifications, consistent with your 21 view in the October 23, 1990, memorandum, which is Exhibit 22 17, that the Department is capable of handling such 23 permitting under that rule? 24 A Let me -- there may be some confusion in terms 25 here, at least as I understand them. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 340 1 In the October 23, 1990, letter to the water 2 management district, when we were discussing handling 3 after-the-fact permitting from existing major regional 4 stormwater systems, we were referring to systems that would 5 not have required a permit when they were built and when 6 operation of those facilities began. The memorandum that 7 we signed, that Mr. Rhodes and myself signed in October 8 1988, primarily I believe was drafted to deal with projects 9 which may have been built or modified without a permit even 10 though a permit would have or should have been required. I 11 think that is correct, but -- 12 Q Would the same policies apply in either 13 circumstance or not? Are both circumstances the policies 14 consistent in? 15 A Give me a second because I don't recall thinking 16 about that issue in the drafting of this memorandum. Give 17 me just a moment. 18 Q Sure. 19 A I believe so. 20 Q One or two more questions on this. 21 Under point 1 on Exhibit 18, it says, the last 22 sentence in point 1, "The fact that the project has been 23 built is not of itself a basis for permit denial," and "of 24 itself" is underlined. 25 Do you recall what the basis was for emphasizing A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 341 1 that or underlining that? 2 A I think the basic issue is if someone had built a 3 facility or conducted some activities that should have been 4 permitted by the Department and then that person later 5 filed for an application, basically what this section is 6 saying is the Department has to deal with that application 7 in light of the statutes and rules in the Chapter 120 8 process. If the application was for a permittable 9 activity, and a permit should be issued later, in the 10 memorandum it says that doesn't mean the Department 11 wouldn't necessarily decide to take enforcement action, but 12 the application had to be processed in light of the 13 applicable rules and statutes, and the fact that the 14 project had been built was not in and of itself a reason or 15 basis for permit denial. 16 Q Does the fact that a project has been built create 17 any presumption in favor of permitting? 18 A I don't think so. I think that, as the memo 19 states, the facility or the project would have to be judged 20 in light of the applicable standards. That doesn't mean 21 that it might ultimately be permitted or modified and then 22 permitted or required to be removed or ceased or whatever 23 the decision might be. 24 Q Are you aware of any enforcement actions against 25 facilities built before permits were sought? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 342 1 A Yes. 2 Q Which ones come to mind? 3 A Hundreds. 4 Q Hundreds? 5 A And hundreds and hundreds. 6 Q Did this policy resolve those issues? 7 A I don't think so. I think this policy was 8 designed to give some guidance to our district staff. The 9 issue didn't go away. Hopefully, this provided some 10 guidance to those staff members involved in dealing with 11 that issue. 12 Q I just have a couple of questions left on WQBEL, 13 and I would like just a few summary questions and then we 14 are done. 15 Are you familiar with the term "WQBEL"? 16 A Yes, I am. 17 Q Let me be more specific, water quality-based 18 effluent limitations? 19 A Yes, I am. 20 Q Could you explain that term to me? What is it? 21 A As I mentioned in my earlier testimony, I worked 22 in the wasteload allocation process. 23 Q Right. 24 A Certainly after moving out of that process for the 25 Department, rules were developed dealing with the WQBEL A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 343 1 process, we can use that term, and basically what it refers 2 to is the Department may impose technology-based treatment 3 requirements on a discharger, or where necessary, water 4 quality-based effluent limits on a discharger, which is 5 what a WQBEL is, to protect water quality standards as a 6 result of that discharge. 7 A WQBEL is an analysis of the quality of the water 8 that must be discharged to result in meeting the 9 Department's standards. 10 Q Under what circumstances does the Department 11 employ a water quality-based effluent limitation as opposed 12 to merely, or as opposed to applying a TBEL? 13 A In a general sense, when the Department determines 14 a technology-based effluent limit, or a TBEL, would not be 15 sufficient to protect water quality standards. 16 Q Does the Department go through a process where it 17 looks at the situation in the context of determining 18 appropriate effluent limitations by trying to employ a TBEL 19 analysis prior to going to a water quality-based effluent 20 limitation? 21 A If I understood your question correctly, I think 22 that the answer is the Department would first look to a 23 technology-based effluent limit to see if that limit or 24 those limits would be sufficient to protect water quality 25 standards, and if not, then the Department could move on to A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 344 1 the WQBEL process, water quality-based effluent limits. If 2 the TBEL was felt to provide sufficient protection, then 3 the process would stop there and those limits would be 4 imposed through the permitting process. 5 Q Would you consider the water quality-based 6 effluent limitations to be a more stringent approach than 7 than a TBEL to -- 8 A I would expect the water quality-based effluent 9 limitation to result in more stringent discharge 10 limitations than the TBEL process would have resulted in. 11 Q You are familiar with the interim concentration 12 levels proposed for phosphorus in the Everglades Park area 13 as being 50 parts per billion now, or are you not? 14 A Just in a general sense. 15 Q In a general sense? 16 A I have heard the number, yes. 17 Q Can you tell me whether or not your understanding 18 of that limitation is a technology-based effluent 19 limitation or water quality-based effluent limitation? 20 MR. HYDE: Let me correct something. I think you 21 said -- you refer to the 50 parts per billion as being 22 discharge limitation for the Park. It is actually 23 discharge limitation for the STAs. 24 MR. HETRICK: That is correct. 25 MR. HYDE: The Park has different water quality A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 345 1 parameters under the settlement agreement. 2 BY MR. HETRICK: 3 Q That is fine. 4 A I don't know if I have an opinion whether I would 5 consider that a technology-based or water quality-based 6 effluent limitation. That has been described as interim 7 limits, and I don't know if in my mind if I would equate it 8 to either one. 9 Q In your experience with the development of the 10 SWIM plans and the various drafts in the SWIM planning 11 process during your tenure with the Department, were the 12 concentration levels that were being proposed by the 13 district, various numbers, and being looked at or submitted 14 to the Department, was the idea to have a concentration 15 limit that was technology-based or water quality-based? 16 A I would say neither. In my mind, I think the 17 limits that were being discussed in my involvement with the 18 SWIM Plan were those that were felt to provide improvements 19 to the existing situation and be reasonable and attainable 20 in a relatively short period of time, a matter of years, 21 but there seemed to be a recognition that that might not 22 be, that those might not be the final limits that would be 23 imposed, or there may be additional limitations placed, but 24 it was big first step, so to speak, and I wouldn't equate 25 those to necessarily either technology- or water quality- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 346 1 based limits. 2 Q Do technology-based effluent limitations typically 3 employ best management practices or incorporate best 4 management practice in determining the effluent limitation? 5 A Yes, they do. 6 Q Do water quality-based effluent limitations? 7 A They may. 8 Q Were best management practices also being 9 considered and discussed along the way in the district's 10 determination of effluent limitations being proposed? 11 A I am not sure I would say the district was 12 determining effluent limitations, but the district did 13 consider best management practices in developing the SWIM 14 Plan. Does that answer your question? 15 Q Do you have any opinion that you might express in 16 this case as to whether or not the 50 parts per billion 17 proposed interim concentration level for the STAs is 18 reasonable or achievable? 19 A No. 20 Q Do you intend to testify as to that regard? 21 A No. 22 Q Do you have any opinions, during your tenure with 23 the Department, based upon evidence submitted to you, if 24 indeed there was evidence submitted to you, do you have any 25 reason to believe in your professional experience that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 347 1 phosphorus was increasing over time in the EPA or any 2 portion of the EPA? 3 MR. HYDE: Phosphorus what? 4 MR. HETRICK: Nutrients, phosphorus acting as a 5 nutrient. 6 MR. HYDE: Like what, concentrations, loading? 7 MR. HETRICK: Phosphorus concentration levels. 8 THE WITNESS: I recall discussions dealing with 9 whether phosphorus was increasing or had stabilized at 10 some concentration levels. I don't have an opinion one 11 way or the other, I simply recall those discussions. 12 BY MR. HETRICK: 13 Q What was the result of those or what was the basic 14 conclusion -- who participated in those discussions? 15 A Primarily discussions between water management 16 district staff and Department staff. 17 Q And by Department staff, the same folks that you 18 have been referring to throughout the course of this 19 deposition? 20 A Primarily. 21 Q And was there any consensus there at any point in 22 time that phosphorus concentration levels were increasing 23 over time in the Everglades Protection Area? 24 A I am not sure that there was. I think everyone 25 agreed that continued monitoring was appropriate and was to A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 348 1 be included in the SWIM planning approach. 2 Q Are you familiar at all with the water quality 3 monitoring stations in the Refuge versus the Park, the 4 Everglades National Park? 5 A Not really, just in a general sense. There was 6 some, and that monitoring was going to continue. 7 Q And the purpose of those stations in a general 8 sense? 9 A In a general sense, to document the quality that 10 exists and changes that might be occurring over time. 11 Q Are you aware of two different time periods that 12 were involved, one for Loxahatchee and the other for the 13 Refuge -- I mean Loxahatchee and the other one for 14 Everglades National Park? 15 MR. HYDE: The time periods? 16 THE WITNESS: I don't understand the question. 17 BY MR. HETRICK: 18 Q Do you intend to offer any opinions or testimony 19 as to the propriety of utilizing stormwater treatment areas 20 as proposed in the adopted SWIM Plan to treat phosphorus? 21 A No. 22 Q Going back to water quality-based effluent 23 limitations, I believe that they are mentioned in 17-611, 24 parens (51) of the rule, and I will show you that rule if 25 we need to, but do you intend to offer or interpret that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 349 1 rule with regard to this case or offer an opinion of the 2 applicability of that particular provision at all to this 3 case? 4 A Not with respect to applicability to this case. 5 If asked about that rule, I may offer interpretations of 6 the language, but not specifically to its applicability or 7 analyzing particular discharges. 8 Q Would you offer any different interpretations to 9 this rule other than what you have identified here in terms 10 of what the rule means? 11 A Not just as I have described it here, just in 12 general my interpretation of the rule as it exists. 13 Q How about the same for TBELs? 14 A The same answer. 15 Q Going back to mixing zones, do you have any 16 opinion as to whether the Department has an obligation to 17 initiate a mixing zone for any type of discharge that it 18 may be evaluating? 19 MR. HYDE: What do you mean by an obligation, a 20 legal obligation? 21 MR. HETRICK: No. 22 BY MR. HETRICK: 23 Q Well, let's see if I can rephrase the question. 24 In your working knowledge of the Department's 25 rules and regulations and your experience with those rules, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 350 1 regulations and the law, do you have any opinion as to 2 whether the Department in any particular situation must 3 undertake to initiate a mixing zone where a permittee, a 4 proposed discharge by a proposed permittee has not 5 submitted a request for a mixing zone? 6 A If I understand the question, I don't think the 7 Department is obligated to initiate that process. 8 Q Does the permittee have an obligation, in your 9 working knowledge of the Department's rules and regulations 10 and laws, to request a mixing zone in every instance for a 11 discharge? 12 A No. 13 Q I think you mentioned it, and correct me if I am 14 wrong, yesterday you said you might offer an opinion that 15 mixing zones under certain circumstances should be 16 considered by the Department in some portion of the 17 Everglades Park area. Is that correct or incorrect? 18 A I think what I said or stated is that I may offer 19 opinions on whether consideration of a mixing zone might be 20 appropriate if requested, say, by an applicant; not whether 21 a particular mixing zone would be appropriate for a 22 particular discharge, but given a given set of 23 circumstances in my opinion, I might express an opinion 24 about whether consideration of a mixing zone would be 25 appropriate, just based on the general requirements of the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 351 1 rule, not the specifics of any particular situation. 2 MR. HYDE: I presume by your question, do you 3 intend it to apply to the Everglades Protection Area 4 and not merely to the Park? I think the question as 5 phrased was to the Park. 6 BY MR. HETRICK: 7 Q That is correct, Everglades Park area. Have you 8 formulated any opinion at this point that mixing zones 9 should be considered for any portion of the Everglades Park 10 area by either any -- well, by the South Florida Water 11 Management District? 12 MR. HYDE: Again, I think you may have the 13 Everglades Protection Area and Everglades Park area -- 14 BY MR. HETRICK: 15 Q I am sorry, it is Everglades Protection Area. 16 A I don't have an opinion at this point. 17 Q Do you anticipate formulating an opinion that may 18 lead you to that conclusion? 19 MR. HYDE: Let me clarify that question. Did you 20 intend it to mean the district should consider asking 21 for mixing zones or the district should consider 22 granting a mixing zone? 23 MR. HETRICK: Whether the district should consider 24 asking for a mixing zone. 25 THE WITNESS: My expected testimony would be to A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 352 1 offer an opinion on whether consideration of a mixing 2 zone might be appropriate. 3 BY MR. HETRICK: 4 Q By the district? 5 A Well, by the district, or consideration by the 6 Department if it chose to do so, but given a set of 7 circumstances and given the requirements of the rule, I 8 might offer testimony or opinions on whether consideration 9 of a mixing zone under a given set of circumstances might 10 be appropriate. 11 Q Have you been presented with any given set of 12 circumstances at this point that would lead you to that 13 conclusion, that the water management district should have 14 considered mixing zones? 15 A At this point, I think my discussions have been 16 limited to the general facts of the matter as I have just 17 described them, and I have not reviewed any specific data 18 or discharge situations that might support that request. 19 MR. HETRICK: Do you anticipate him offering an 20 opinion given a set of circumstances? 21 MR. HYDE: At this point, we don't anticipate that 22 to be part of his anticipated testimony. If we should 23 determine to do so we will promptly notify the 24 Department. 25 MR. HETRICK: So we can ask him about the basis A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 353 1 for his interpretation? 2 MR. HYDE: Yes. 3 MR. HETRICK: Would the same go for a SSAC? 4 MR. HYDE: Yes. 5 MR. HETRICK: Or a variance? 6 MR. HYDE: Yes. I think that you have already 7 covered the ways in which we might approach those two 8 issues, and I think we could theoretically propose 9 certain situations like you have done as to whether a 10 SSAC might be appropriate in generic situations, but as 11 to whether a SSAC would be appropriate for discharges 12 to the Loxahatchee Refuge, we are not anticipating at 13 this time Mr. Armstrong testifying in that regard. 14 MR. HETRICK: So his testimony would be by analogy 15 only? 16 MR. HYDE: At this point, I don't know if I would 17 characterize it by analogy only, but I think it is 18 fairly close. 19 MR. HETRICK: Can you think of any analogous 20 situations to -- for any kind of permit discharge that 21 might come to mind that would be similar to -- or that 22 would lead you to the conclusion that a mixing zone 23 should be considered by the South Florida Water 24 Management District? 25 MR. HYDE: Let me see if I can clarify my previous A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 354 1 statement. It might address your concern. I think 2 such questions might be directed to how one might 3 obtain a SSAC, for example, due to natural background 4 conditions. 5 MR. HETRICK: I think we have explored that. 6 MR. HYDE: Or how one might obtain a SSAC due to 7 unalterable man-induced conditions. That is a scenario 8 there. As to a specific factual circumstance, I don't 9 think I would pose a question along those lines, so I 10 don't know that we want to go and explore the bevy of 11 potentially analogous situations where SSACs might be 12 appropriate. I could dream up literally hundreds of 13 possible scenarios where a SSAC might be appropriate 14 due to natural or manmade or man-induced unalterable 15 conditions. 16 MR. HETRICK: Let's take 30 seconds off the 17 record. 18 (Discussion off the record.) 19 MR. HETRICK: Let's go back on the record. 20 I am going to offer this as the last exhibit. I 21 think you have already talked about this. Exhibit 19. 22 (Whereupon, Exhibit No. 19 was marked for 23 identification.) 24 BY MR. HETRICK: 25 Q Do you recognize this document at all? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 355 1 A No. 2 Q Have you ever seen it? 3 A Maybe. I just don't recognize it. 4 Q Do you have any idea what this document might be 5 about, just by looking at it? 6 A It is entitled, Permitting. 7 Q Does it look -- on your review generally, is it a 8 Departmental document or what? 9 A I can't tell. It shows that, a date stamp as 10 being received by the DER South Florida District. I don't 11 see any indication on it as to whether it was drafted by 12 someone in the Department or where it came from. 13 Q I think you have already answered this question, 14 but on page 2, which is actually page 3 of the document, up 15 at the top there is a statement, "Again, the applicant must 16 apply for it," and this is in reference to mixing zones. 17 Do you agree with that statement? 18 A As I have said, I believe before the applicant may 19 apply for it but in practice the Department has initiated 20 the process, in a practical sense, the Department has, but 21 the statement says the applicant must apply for it, and it 22 is not automatically issued, it must be specifically issued 23 by the Department. I think that is correct. 24 Q What do you mean, and practically the Department 25 has already initiated the process? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 356 1 A I said in a practical sense I believe, as I 2 testified yesterday, in a lot of cases the Department may 3 initiate the process. In a sense the Department may be 4 doing some technical evaluations, it has been my experience 5 the Department may have done some technical analysis to 6 determine if a mixing zone might be appropriate given a 7 certain situation and then discuss those results with the 8 applicant. That is what happened on a day-to-day basis 9 frequently in my tenure with the Department. 10 Q So that might occur even before an applicant makes 11 an application for it, in specific situations? 12 A It has. 13 MR. HYDE: For a mixing zone? 14 MR. HETRICK: Yes. 15 THE WITNESS: The analysis may have -- of a mixing 16 zone and whether it is appropriate, may have occurred 17 even though an applicant may not have applied for a 18 permit. 19 BY MR. HETRICK: 20 Q Why would the Department undertake such an 21 analysis when the permitted proposed activity hasn't been 22 requested? 23 A The Department was often in a position of 24 performing wasteload allocation studies or WQBEL studies in 25 the more recent past to determine if an existing discharge A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 357 1 may need to be upgraded or if a new discharge could be a 2 applied for or if an application for an operating permit 3 should be acted upon favorably when it is received, so the 4 Department might initiate a study of that discharger or 5 group of dischargers, even though a particular application 6 for a permit to discharge may not be pending before the 7 agency. 8 Q What would the circumstances have to be for the 9 Department to undertake that analysis? 10 A I think I just described it. The Department may 11 be anticipating an application for renewal of a permit or 12 anticipating an application for a new permit or addressing 13 a perceived water quality problem or something like that. 14 Q Okay. Am I correct that you will not be offering 15 any testimony as to the propriety or the appropriateness of 16 science which may or may not support the alleged fact that 17 water quality runoff from the EAA is causing or has caused 18 algal, vegetation, algal communities and the ecosystem in 19 general, all general parts of the Everglades Protection 20 Area? 21 A That is correct. 22 Q And the Refuge, including the Refuge? 23 A That is correct. 24 Q Will you be testifying as to any specific water 25 quality violation occurring within the Park and the Refuge? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 358 1 A No, I will not. 2 Q Is there any other specific opinion that you may 3 have formulated at this point about violations occurring in 4 the Everglades which concern -- that you may not have 5 expressed during this deposition that would specifically 6 apply in the Everglades that would concern the narrative 7 nutrient standard? 8 MR. HYDE: Keith, I think you have asked and 9 answered that question several times. 10 MR. HETRICK: I am just running through the list 11 here. 12 BY MR. HETRICK: 13 Q Are there any standards we talked about, we have 14 gone through them one by one -- 15 A I think I have answered these questions several 16 times, and the answer is no. 17 MR. HETRICK: I don't think I have any more 18 questions. 19 MR. HYDE: Steve? 20 MR. BARTELL: For the purposes of the record, my 21 name is Steven Bartell. I am with the Department of 22 Justice. I am here today on behalf of the federal 23 government. 24 EXAMINATION 25 BY MR. BARTELL: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 359 1 Q Mr. Armstrong, are you familiar with the SWIM Act? 2 A In general. 3 Q Are you familiar with the Marjory Stoneman Douglas 4 Act? 5 A No. 6 Q Do you intend to testify or give any opinions 7 regarding either of those two Acts? 8 A Not that I am anticipating at this point. 9 MR. HYDE: I don't anticipating asking him those 10 questions -- for compliance or consistency with those 11 Acts? 12 MR. BARTELL: Yes. 13 MR. HYDE: No. I will not ask him any such 14 questions. 15 BY MR. BARTELL: 16 Q If you could just clarify a few of the answers 17 that Mr. Hetrick has raised and you have answered in the 18 last two days, just to confirm you have not seen the 19 adopted version of the Everglades SWIM Plan, is that 20 correct? 21 A That is correct. 22 Q In your opinion, are the discharges of phosphorus 23 concentrations from the Everglades Agricultural Area 24 causing, among other things, a monoculture of cattails in 25 the EPA? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 360 1 MR. HYDE: Asked and answered several times. I 2 think we have already stated several times Mr. 3 Armstrong is not going to be testifying in that regard, 4 and I think he has also stated that he hasn't looked at 5 any data in that regard for the basis of giving an 6 opinion in that regard. 7 MR. BARTELL: I want to clarify if he has an 8 opinion. 9 THE WITNESS: The answer is, I do not have an 10 opinion regarding that issue. 11 BY MR. BARTELL: 12 Q Are you familiar with the dairy rule? 13 A Vaguely. 14 Q Were you involved in the promulgation of the dairy 15 rule? 16 A No. I may have been generally involved. I sat on 17 the early review committee for the Department, but it was 18 not my responsibility when I was with the agency. 19 Q What areas did it apply to generally? 20 A The areas around Lake Okeechobee. 21 Q Would that include the southern rim as well? 22 A I believe just the northern portion. I am really 23 not sure. 24 Q Do you intend to give any opinions or testimony 25 regarding the dairy rule? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 361 1 A No, I don't. 2 Q Are you familiar with the Lake Okeechobee SWIM 3 Plan? 4 A Again, just in a very general sense. 5 Q And were you involved in the promulgation of that 6 plan? 7 A Somewhat. 8 Q Can you tell me what areas the Lake Okeechobee 9 SWIM Plan apply to geographically? 10 A In a general sense, the areas north of the 11 Everglades SWIM planning area that we have been discussing 12 and immediately adjacent to Lake Okeechobee. 13 Q Do you intend to give any opinions or testimony 14 regarding the Lake Okeechobee SWIM Plan? 15 A I do not. 16 Q Are you familiar with the federal lawsuit filed 17 against the State of Florida in 1988? 18 A In general. 19 Q Are you aware of the settlement agreement reached 20 between the State of Florida and the federal government? 21 A I am aware that an agreement was reached. 22 Q Have you seen the settlement agreement? 23 A I believe I had, I may have seen portions of it or 24 descriptions of it. I have not seen the settlement 25 agreement. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 362 1 Q Were you involved in any way with the development 2 or negotiations leading up to the federal settlement? 3 A In the very early stages, prior to my leaving the 4 agency, I had occasion to discuss the suit with the 5 Secretary when I was in the agency. I was not involved in 6 developing or negotiating the settlement agreement or 7 approval of it or in any other fashion. 8 Q Just going back to the dairy rule for a moment, 9 were you involved in interpreting water quality standards 10 in relation to the application of the dairy rule? 11 A I don't recall situations where I was asked to 12 interpret standards as they related to the dairy rule. 13 Nothing comes to mind at this point. 14 Q Do you have an opinion as to whether or not 15 phosphorus loading upstream of the area -- let me strike 16 that, and let me rephrase the question. 17 Assuming there is phosphorus loading upstream 18 coming into an area downstream, if that phosphorus loading 19 stops, are you aware or do you have an opinion as to 20 whether the downstream area can revert back to its natural 21 state? 22 A No, I don't have an opinion on that. 23 Q Are you aware of any studies along those lines 24 either in the past or that are currently ongoing? 25 A I don't recall any. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 363 1 MR. BARTELL: That is all of the questions I have. 2 MR. HETRICK: I have one more question. 3 FURTHER EXAMINATION 4 BY MR. HETRICK: 5 Q You have testified the past two days about a 6 variety of rules, Mr. Hyde said you have gone through, we 7 have gone through numerous rules. Are there any rules that 8 we or that I have not gone through or discussed with you 9 that you anticipate testifying on? 10 A I can't think of any at this point that I would 11 anticipate testifying on that we have not already covered 12 in the last two days. 13 MR. HYDE: I think we have fairly comprehensively 14 dealt with them. 15 MR. HETRICK: I take it, then, that should there 16 be some -- 17 MR. HYDE: There are no other rules. 18 THE WITNESS: It occurred to me yesterday in 19 talking about the Department's study that we are 20 involved in that we are also looking at Chapter 21 17-301. 22 MR. HETRICK: That is correct. 23 THE WITNESS: But -- I don't believe I mentioned 24 that yesterday, but I also don't think it would have 25 anything to do with my testimony in this case. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 364 1 MR. HETRICK: That is all. 2 MR. HYDE: I have just a few follow-up questions. 3 EXAMINATION 4 BY MR. HYDE: 5 Q Mr. Armstrong, when you were testifying yesterday 6 as to mixing -- as to whether there could be mixing zones 7 for nutrients, biological integrity or nuisance species, 8 did you intend to or were you saying that mixing zones for 9 those particular water quality criteria were precluded by 10 the Department's rules and regulations? 11 A No. 12 Q Is there a relationship between the narrative 13 nutrient standard and the designated use of a water body? 14 A Yes, I believe there is. 15 Q How do those two relate to each other? 16 A Well, I think there has to be a relationship 17 between all of the Department's water quality standards, 18 designated use of the waters within the state. With 19 respect to nutrients, no numerical criteria were 20 established in the rule, but through the narrative 21 standard and its application, the Department is charged 22 with protecting the designated uses of the water body that 23 are appropriate for that particular water body. 24 Q So is it fair to say that the narrative nutrient 25 rule is construed in light of the designated use of a water A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 365 1 body? 2 A I think that is correct, and, in fact, as I said, 3 I think that is true for all of the standards. As I 4 understand the process, they are all designed to protect 5 the designated uses, so really that is the ultimate test of 6 any of the standards, including the narrative nutrient 7 standard. 8 Q So the designated use of those water bodies known 9 as the Everglades Protection Area is Class III, so they are 10 construed in light of that particular designated use in the 11 Everglades SWIM Plan, is that correct? 12 A That is correct, or should be. 13 Q In your experience, do dissolved oxygen 14 concentrations in wetland systems commonly fall below the 15 standards set forth in the Department's dissolved oxygen 16 rule? 17 A Yes. 18 Q Do you have an opinion as to whether it would be 19 appropriate in such instances for there to be consideration 20 of the development of an alternative or site-specific 21 criterion for those wetlands where the dissolved oxygen 22 concentrations evidence that lower quality? 23 A I think in situations where it is shown that those 24 values that might fall below the normal standard for those 25 water bodies is a naturally occurring condition or meets A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 366 1 the other tests of the rule, man-induced conditions that 2 cannot be controlled or abated, it may be appropriate to 3 consider the development of an alternate standard for those 4 wetlands, for -- an alternate standard for dissolved oxygen 5 for those wetlands. 6 Q Regarding the imbalance test set forth in the 7 narrative nutrient rule, is there a geographical component 8 to that test? 9 A I believe there is. 10 Q Is there also a temporal or durational factor to 11 that test as well? 12 A I believe there could be. I don't think the rule 13 is specific, but I think the Department would have to 14 consider the nature of the imbalance or the change of the 15 populations. If it is very transitory then it might not 16 necessarily constitute an imbalance. I think there could 17 be a temporal consideration as well. 18 MR. HETRICK: What rule was that a reference to? 19 MR. HYDE: The narrative nutrient. 20 BY MR. HYDE: 21 Q Referring to Exhibit 4 which discussed the Key 22 West sewage treatment plant outfall that was listed as of 23 1985, did you regard that outfall as being grandfathered 24 under an OFW rule? 25 A I don't believe we did, and, in fact, I think in A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 367 1 that particular document we referred to the need, to the 2 fact that the facility had been operating without a permit 3 but efforts were underway to bring that facility under the 4 permitting process. 5 Q Is it another way of saying that the outfall 6 required a permit as of the date of designation of that 7 OFW? 8 A I believe it was our opinion that it did. 9 Q Is that why the Department exempted the area of 10 the outfall from the OFW rule, in part at least? 11 A In part, I think that was, that was part of the 12 reason. 13 Q Can you envision any other situation where that 14 outfall would be deemed in compliance with the OFW rule 15 other than being grandfathered under the rule? 16 A I am not sure if I follow your question. 17 Q Let me be sure -- if I can restate it, given the 18 fact that the outfall from the Key West sewage treatment 19 plant was not grandfathered under the rule, can you 20 envision any other circumstances that might make it 21 otherwise permittable under the OFW standard, other than, 22 of course, exempting that discharge from the OFW? 23 A It would have to meet the test of the OFW rule 24 relating to a new discharge. I don't have any other 25 situation in mind. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 368 1 Q I would like to call your attention to Exhibit 3, 2 which is the January 29, 1990, memo from you to Dale 3 Twachtmann. I believe you stated yesterday that although 4 that document had been signed or initialed by you, that it 5 had actually been prepared by Bart Bibler? 6 A I believe that is correct. 7 Q Why did you sign that document if you did not 8 prepare it? 9 A I signed many documents that I did not prepare. 10 I had to rely on staff to provide this information to me 11 and prepare these types of documents. 12 Q Did you assume the statements contained in the 13 Bart Bibler prepared memorandum to be correct? 14 A Yes, I did. 15 Q Just to be clear, you did not conduct any 16 independent analysis of these factual statements to 17 determine whether they were, in fact, correct or otherwise 18 accurate? 19 A I did not. 20 Q I would like to call your attention to, I guess, 21 the bottom of the second page of that memorandum where they 22 discuss or where it discusses best management practices, 23 and, on the next page, an aquifer storage and recovery 24 system. 25 Would the application of a mixing zone be yet A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 369 1 another mechanism for further reducing the costs of this 2 alleged or this proposed cleanup? 3 A It could be. 4 MR. HETRICK: Can you tell me where you are? 5 MR. HYDE: The bottom of page 2, discussion under 6 Issue 4 concerning best management practices and going 7 over onto the next page, page 3, concerning the 8 discussion of aquifer storage and recovery systems. 9 BY MR. HYDE: 10 Q Would the development of site-specific alternative 11 criteria be yet another way to further reduce the costs of 12 implementing such a cleanup plan? 13 A That also could be. 14 Q And would the same be true for variances as well? 15 A Yes. 16 Q Yesterday and today, Mr. Hetrick asked you a 17 series of questions, whether essentially you disagreed with 18 various memos or statements contained in various memos. By 19 stating that, by answering that you did not disagree, did 20 you intend to mean that you, in fact, agreed with each and 21 every one of those statements as well? 22 A Not necessarily. I may not have had an opinion 23 one way or the another. As I said, I had to rely on staff 24 to provide information to me and I had to trust my staff to 25 do the best job they could. That didn't necessarily mean A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 370 1 that in the future some of those statements or issues may 2 be proven to be incorrect. By the nature of the work we 3 were doing, we had to rely on others for information. 4 Q My next and final question deals with mixing 5 zones. Does the Department, in reviewing a permit 6 application, often tell an applicant that a permit cannot 7 be approved unless a mixing zone is established, and 8 therefore suggest that the applicant, in fact, apply for a 9 mixing zone? 10 A Yes. 11 MR. HYDE: That is all. 12 MR. HETRICK: I just have one question. 13 FURTHER EXAMINATION 14 BY MR. HETRICK: 15 Q I hate to keep going back to this, but on the 16 January 29th, 1990, memo, were statements made at all by 17 your staff on some of these memos be signed by you, if -- 18 just arbitrarily, if you had disagreed with any aspect, 19 would you have let this memo go out of the office? 20 A No. I think, as I said yesterday, I didn't -- to 21 my knowledge, I didn't disagree with anything that was said 22 in here, but I may not have had an opinion. I may have 23 accepted the statement as fact at that point in time, and I 24 may ultimately learn that there were statements in here 25 that I can't agree with now, but at the time I had no A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 371 1 reason to disagree, but I may not have -- 2 Q I understand the continual flow of policy and how 3 policy can change over a period of time, but -- 4 MR. HYDE: Facts can change, too. 5 BY MR. HETRICK: 6 Q And facts can change, too, but on the date a 7 memorandum is written, when it has your signature on it, 8 for whatever purpose of that memo is that has gone to the 9 Secretary, that is your stamp of approval on that 10 memorandum as being your division's position on that, is it 11 not? 12 A That is correct. 13 Q And under Mr. Hyde's example on page 2, Issue No. 14 4, that last paragraph, he asked you whether mixing zones 15 might be appropriate under that scenario, has any 16 determination been made in regards to that? 17 A Not to my knowledge. 18 Q Could they be determined to be inappropriate? 19 A Yes, they may. 20 Q One last one. One of the things he mentioned was, 21 you were discussing the narrative nutrient rule must be 22 construed in light of designated use. 23 A That is correct. 24 Q Can you just tell me what you meant by "in 25 light"? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 372 1 A Well, the narrative nutrient standard, like any 2 other standard, has to be considered as a means of 3 protecting the applicable designated use for that water 4 body. The designated uses are established for the water 5 bodies, and then the standards that are necessary to 6 protect those designated uses are developed, so really the 7 ultimate test of the application of those standards is the 8 designated use to which that water body has been or within 9 which that water body has been placed. 10 Q The only other thing under the narrative nutrient 11 rule dealing with the way Mr. Hyde asked you, a geographic 12 consideration was a component in the evaluation of the 13 narrative nutrient rule -- 14 A That is correct. 15 Q -- for areal extent, was that part of the 16 terminology? 17 MR. HYDE: That would be another way of stating 18 it. 19 BY MR. HETRICK: 20 Q I believe we have kind of explored this. The 21 particular size of a geographic area may vary from water 22 body to water body, right? 23 A That is correct. 24 Q Even in similar size water bodies? 25 A That is correct. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 373 1 Q May have different water problems? 2 A That is correct. 3 MR. HETRICK: I don't have any further 4 questions. 5 MR. BARTELL: Nothing further. 6 MR. HYDE: No further questions. 7 (Whereupon, the deposition was concluded, and 8 reading and signing by the witness was not waived.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 374 1 NOTARY'S CERTIFICATE 2 STATE OF FLORIDA ) 3 COUNTY OF LEON ) 4 I, JERRY L. ROTRUCK, CM, hereby certify that the 5 witness in the foregoing transcript was first duly sworn, 6 having identified himself to me. 7 8 IN WITNESS WHEREOF, I have set my hand and affixed 9 10 my seal this _____ day of _________________________, 1993; 11 12 13 14 15 16 17 18 __________________________ JERRY L. ROTRUCK, CM 19 Court Reporter and Notary Public State of Florida at Large 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 375 1 TRANSCRIPT CERTIFICATE 2 STATE OF FLORIDA ) 3 COUNTY OF LEON ) 4 I, JERRY L. ROTRUCK, CM, hereby certify that the 5 foregoing transcript was taken down as stated in the 6 caption, and the questions and answers thereto were reduced 7 to typewriting under my direction; 8 That the foregoing pages 188 through 373 represent 9 a true, correct, and complete transcript of the evidence 10 given upon said hearing; 11 And I further certify that I am not of kin or 12 counsel to the parties in the case; am not in the regular 13 employ of counsel for any of said parties; nor am I in 14 anywise interested in the result of said case. 15 Dated this ____ day of ________________, 1993. 16 17 18 __________________________ JERRY L. ROTRUCK, CM 19 Court Reporter and Notary Public State of Florida at Large 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 376 1 AS TO SIGNATURE ONLY OF THE COURT REPORTER 2 IN WITNESS WHEREOF, I have set my hand and affixed 3 my seal this _____ day of _________________________, 1993; 4 said instrument was acknowledged before me by JERRY L. 5 ROTRUCK, Certificate of Merit, who is personally known to 6 me. 7 ________________________________ 8 Notary Public 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 377 1 C O R R E C T I O N S 2 Corrections to the deposition of RANDALL L. ARMSTRONG, taken in the case of Sugar Cane Growers Cooperative of 3 Florida, Inc., et al., vs. South Florida Water Management District and Miccosukee Tribe of Indians of Florida, et 4 al., Intervenors, Case No. 92-3038, 92-3039, 92-3040, taken on February 12, 1993. 5 Page-Line Correction 6 7 8 9 10 11 12 13 14 15 16 17 ____________ ____________________________________ 18 Date Signature 19 AS TO SIGNATURE ONLY 20 IN WITNESS WHEREOF, I have set my hand and affixed 21 my seal this _____ day of _________________________, 1993; 22 said instrument was acknowledged before me by _____________ 23 who is personally known to me, or identified himself to me. 24 ________________________________ 25 Notary Public A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722