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 Cla