1
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 11, 1993
25
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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 11, 1993,
6 commencing at 9:00 a.m.
7
8 Reported by:
9 JERRY L. ROTRUCK
10 Certificate of Merit
11
12
13
14
15
16
17
18
19
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1 APPEARANCES OF COUNSEL:
2 On behalf of the Petitioners Florida Sugar Cane League,
Inc., United States Sugar Corp. 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
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1 INDEX TO WITNESS
2 RANDALL L. ARMSTRONG Page
3 Examination by Mr. Hetrick 6
4
5
6
7
8
9 INDEX TO EXHIBITS
10 No. Marked
11 1 10
12 2 167
13 3 170
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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;
11 THAT by agreement of the witness and all parties,
12 reading and signing of the deposition was not waived.
13
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1 D E P O S I T I O N
2 Whereupon,
3 RANDALL L. ARMSTRONG
4 was called as a witness, having been first duly sworn to
5 speak the truth, the whole truth, and nothing but the
6 truth, was examined and testified as follows:
7 EXAMINATION
8 BY MR. HETRICK:
9 Q Mr. Armstrong, my name is Keith Hetrick. I am an
10 Assistant General Counsel with the Department of
11 Environmental Regulation, and I am here to depose you to
12 find out your opinions regarding the SWIM challenge that is
13 at issue here.
14 Have you ever been deposed before?
15 A Yes, I have.
16 Q Then you have been through this before and you
17 probably know somewhat how it works, but let me just run
18 through it briefly.
19 I am here, as I said, to find out what you know
20 about the case and what your opinions are going to be about
21 this case and the basis for those opinions and what you are
22 going to testify to, so I will be asking you a series of
23 questions. You need to answer those questions to the best
24 of your knowledge and ability. If you don't understand the
25 question, let me know, and I will rephrase the question.
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1 If your counsel objects, you need to go ahead and answer
2 the question anyway, unless he instructs you not to
3 answer. We will try to resolve the objection as we go
4 along.
5 If you get tired, if you want to take a break,
6 just let me know, and we can recess at any point in time to
7 take a break or whatever.
8 Do you understand how this works, then?
9 A Yes, I do.
10 Q Let me -- let's go through the notice of
11 deposition first. I just want to run through documents. I
12 am not going to attach this as an exhibit.
13 MR. HETRICK: Off the record.
14 (Discussion off the record.)
15 MR. HETRICK: Let's go back on the record.
16 BY MR. HETRICK:
17 Q I am going to show you a copy, it is not going to
18 be attached as an exhibit since it is a pleading document,
19 but Mr. Armstrong, have you seen this document?
20 A Yes, I have.
21 Q Have you reviewed it with your counsel?
22 A Yes, I have.
23 Q I would like to go through it one by one and
24 see -- it is my understanding you do not have any documents
25 to produce, is that correct?
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1 A That is correct.
2 Q Let's just go through each one of these, and I
3 want to make sure that the production to the best of your
4 ability is done for each one of these.
5 No. 1, have you produced any and all documents
6 relied upon in preparing, formulating, developing,
7 authoring, co-authoring, reviewing or organizing
8 anticipated expert testimony relating to the subject matter
9 of this action?
10 A Yes, I have.
11 Q Have you complied with -- would you take a second
12 to review paragraph 2, any and all documents relating to
13 DER policies and procedures about which you anticipate
14 testifying in this case?
15 A Yes, I have.
16 MR. HYDE: Let me interject for a moment.
17 MR. HETRICK: Sure.
18 MR. HYDE: I hurriedly this morning prepared a
19 privileged list that consists of two documents. I will
20 give them to you right now. It is correspondence
21 between Randy and myself.
22 MR. HETRICK: Okay.
23 MR. HYDE: I apologize for not having provided it
24 to you earlier. I was going to send out a copy of this
25 to everyone.
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1 MR. HETRICK: Thank you.
2 BY MR. HETRICK:
3 Q No. 3?
4 A Yes.
5 Q And No. 4?
6 A Yes.
7 MR. HYDE: I would also like to make another
8 point for the record. Given Mr. Armstrong's former
9 employment for the Department, many of the documents
10 that are called for in this notice are, in fact, in the
11 Department's possession.
12 MR. HETRICK: The only thing I would like to say
13 on the record is, that may be true, but if he is going
14 to -- we have millions of documents on file. If he is
15 going to rely on a particular document at trial and
16 have that introduced or rely on it in any way, I think
17 it is within the scope of the rules to have that
18 document produced, even though it may be in our files.
19 MR. HYDE: I have no dispute with that. I am just
20 saying that, for example, paragraph 4 -- well, I guess
21 not even paragraph 4 has anything to do with it, but
22 any and all documents in No. 3, well, that could
23 theoretically go back to all of the correspondence that
24 goes with earlier drafts of the SWIM Plan, too, so --
25 MR. HETRICK: But to illustrate my point, if he is
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1 going to rely on a particular document, then I would
2 expect him to produce that document.
3 MR. HYDE: As far as the reliance thing goes,
4 correct.
5 BY MR. HETRICK:
6 Q No. 5?
7 A Yes, I supplied this to my attorney.
8 Q And No. 6?
9 A Yes.
10 Q And No. 7?
11 A Yes.
12 Q Now I would like to kind of go through your
13 resume, and I do have copies of that.
14 MR. HETRICK: I would like to attach this as
15 Exhibit 1.
16 (Whereupon, Exhibit No. 1 was marked for
17 identification.)
18 BY MR. HETRICK:
19 Q Mr. Armstrong, I would like to ask you a series of
20 questions about your education and experience in various
21 areas including job responsibilities, day-to-day work, so
22 we can determine -- explore some of your background.
23 Let's start with your education. Where and when
24 did you obtain your college degree?
25 A I received a Bachelor of Science degree in June of
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1 1971 from Florida State University. My degree was in
2 education, with a major emphasis on biology.
3 Q Was there a thesis at all connected with that
4 degree?
5 A No, there was not.
6 Q Did you have any particular area of concentration?
7 A My particular area of concentration in the field
8 of biology was in ecology, but that is a very broad term,
9 of course.
10 Q What kinds of coursework did you have in
11 connection with the ecological focus?
12 A I had a number of courses in population dynamics
13 and succession and primarily general courses in ecology,
14 dealing with both aquatic and terrestrial systems, more
15 terrestrial than aquatic; basically just a broad range of
16 studies in that field.
17 Q Did you have any coursework in chemistry at all?
18 A Quite a bit.
19 Q Can you describe what coursework in chemistry?
20 A I had qualitative and quantitative analysis. I
21 had organic chemistry. I had specific courses I really
22 cannot remember the names of. I had I believe around 20
23 hours, quarter hours of chemistry, which would have, if I
24 recall, would have qualified me for a minor in chemistry
25 had we had a minor program in education.
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1 Q Did you have any physics courses?
2 A Yes, I did.
3 Q How many physics courses did you have?
4 A Two or three.
5 Q How about mathematical?
6 A Quite a bit. I had geometry and trigonometry up
7 through two courses of calculus, I believe.
8 Q I notice from your resume it talks about further
9 studies. Can you describe those further studies?
10 A Yes. When I graduated from Florida State
11 University, I lived in Orlando for a couple of years and,
12 in fact, worked at Florida Technological University which
13 is now the University of Central Florida, and in the course
14 of that, the study that I was working on, I took several
15 courses in primarily entomology, which is the study of
16 insects and so forth, that were related to the research
17 that I was doing at FTU.
18 Q What was the purpose of your further technical
19 studies?
20 A At the time I had plans to enter the graduate
21 program at Florida Technological University. The graduate
22 program did not get established in roughly the year that I
23 was there, so I moved on to another position, but my intent
24 was to pursue a graduate degree in marine science.
25 Q I notice it says here, "Various water sampling,
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1 analysis and modeling courses," and then it has paren,
2 "(DER, USGS and EPA)," end parens. What is that?
3 A For a number of years while I was working for the
4 Department of Environmental Regulation, there were courses
5 offered by the Department and by the U.S. Geological Survey
6 and Environmental Protection Agency dealing with water
7 quality analysis and computer modeling and the development
8 of wasteload allocations, which was a field that I worked
9 in for the Department for approximately 11 years.
10 Those courses dealt with field measurements and
11 field techniques and laboratory analysis of collected water
12 quality data, and then scientific analysis of the data
13 using either statistical or computer-based techniques.
14 Q You took those courses while you were working with
15 the Department?
16 A That is correct.
17 Q Over the entire span of time you were working for
18 the Department, or was there a specific period of time?
19 A I took a number of courses over the 18 plus or
20 minus years I was with the Department, but I believe about
21 11 of those years when I was in the Water Quality Analysis
22 Section I probably took the majority of those courses.
23 That was probably the most technical position or series of
24 positions that I held for the Department, and many of us in
25 that program were trying to take as many related courses as
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1 we could during that period.
2 Q What kinds of water sampling modeling did you
3 undertake?
4 A Sampling, modeling, or both?
5 Q Sampling, let's start with that.
6 A We took physical, chemical and biological
7 measurements in support of those job responsibilities, and
8 others with the agency, but primarily while I was with that
9 section.
10 Physical measurements included velocity and flow
11 measurements and water clarity and things like that.
12 Chemical included the whole range of water quality
13 parameters that the Department normally focuses on.
14 Biological included some microinvertebrate sampling,
15 bacteriological sampling, parameters such as those.
16 Q What kind of modeling type courses?
17 A We were developing water quality models of rivers
18 and streams and lakes and estuaries around the state,
19 primarily for the purpose of developing wasteload
20 allocations which were used in the Department's regulatory
21 process.
22 Q At the time that you were developing wasteload
23 modeling procedures, did you do any work in the
24 Everglades?
25 A Yes.
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1 Q And what were the circumstances surrounding that?
2 A Well, there were a number of issues dealing with
3 Lake Okeechobee and the Everglades that surfaced during
4 that period. We looked at several of the municipalities
5 that are located around Lake Okeechobee and on the edge of
6 the Everglades for development of sewage treatment and
7 disposal options for those cities.
8 We were involved in trying to secure grant funding
9 from the Environmental Protection Agency for many of those
10 cities.
11 I got involved some in the modeling of Lake
12 Okeechobee for addressing water quality problems in the
13 lake, and as a result of that was involved in a peripheral
14 sense in the issue of back pumping water south into the
15 Everglades as opposed to discharging into Lake Okeechobee.
16 I don't recall any specific Everglades issues, but
17 those were related to the whole situation of flow regime
18 and drainage system in the Everglades and Lake Okeechobee.
19 Q Were you concerned with any specific water quality
20 violations in either Lake Okeechobee or the Everglades in
21 connection with your work down there?
22 A Yes, I was.
23 Q What kinds of specific --
24 A The majority of our work in those days dealt with
25 the dissolved oxygen standard, with nutrients, nutrient
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1 controls, with bacteriological standards, and I would say
2 those were the primary areas of focus.
3 Q Let's run through your work experience, and kind
4 of start from when you got out of school, and if you could
5 just kind of run through and explain, start with the
6 National Science Foundation, 6/71 to 9/71. What did you do
7 with the National Science Foundation?
8 A When I graduated from Florida State University, I
9 accepted a teaching position in Orlando for the Orange
10 County School Board. During the summer prior to the start
11 of the 1971 school session, I participated in a National
12 Science Foundation grant to develop an aquatic ecology
13 curriculum for the Orange County School Board.
14 We were involved in actually sampling and analysis
15 of water quality data for about half of the time, and the
16 other half of the time we were developing the curriculum,
17 looking for textbooks and procedures that we could use in a
18 high school classroom situation, and we were to begin
19 teaching those courses that we developed in the fall of
20 1971.
21 Q What kinds of -- it says here "biological
22 parameters." What kinds of biological parameters were you
23 concerned with?
24 A We did bacteriological sampling, we did
25 chlorophyll analysis as a measurement of algal activity.
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1 We did some qualitative microinvertebrate sampling; a
2 fairly broad-brush analysis.
3 Q Was this a limited three-month grant?
4 A Yes, it was.
5 Q And the next position?
6 A I actually began teaching in September of 1971 at
7 Edgewater High School in Orlando. I taught the courses
8 that we had developed through the summer to accelerated
9 high school science students. I did teach, although I
10 don't believe it is reflected here, I taught a couple of
11 just basic biology courses, but my primary responsibilities
12 were in teaching the courses that I had developed through
13 the summer.
14 Q Did you do any research while you were --
15 A No, I did not, not at the Edgewater High School
16 position.
17 Q And the next position?
18 A I left.
19 Q Excuse me, before I go to that, I notice Edgewater
20 was only one month, or is that --
21 A That is not a typo.
22 Q What was the reason for one month at Edgewater?
23 A I actually -- before I started teaching at
24 Edgewater, one of the four professors that were managing
25 the grant that we were working on through the summer, the
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1 National Science Foundation grant, had offered me a
2 position as a research biologist at Florida Technological
3 University doing the same type of work I had been doing
4 through the summer. The university was planning to start
5 the Master's program, and I was interested in pursuing a
6 Master's degree.
7 The work that we would do in the Institute had not
8 been funded at that point in time, so I discussed with the
9 Edgewater High School principal the option of beginning to
10 teach the school year, but they knew that I was going to be
11 leaving and going to Florida Technology University. The
12 grant then came through within a month or so after starting
13 the high school term, and I resigned and accepted a
14 position at Florida Technological University.
15 Q And that was the next position you went to on your
16 resume?
17 A That is correct.
18 Q It says here that you -- your primary job was as a
19 research biologist, and, "Major functions consisted of
20 planning and conducting a systematic survey of aquatic
21 weeds and related problems in the central Florida area."
22 A Yes.
23 Q Would you elaborate on that a bit?
24 A The study was funded by the State of Florida
25 through the Department of Natural Resources. The emphasis
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1 of the work was on assessing the extent of the aquatic weed
2 problem in central Florida. Aquatic weeds were affecting
3 navigation and the flow of water and perhaps the quality of
4 many of the area lakes and streams.
5 We were charged with assessing the extent of the
6 problem, determining which aquatic weed species were
7 causing the problem and doing some general studies of the
8 biological -- let me see if I can rephrase that -- the
9 extent, the health of those aquatic weeds.
10 We were looking, for example, at what insects were
11 feeding on those weeds and other animals, because the
12 ultimate product of the study was to be -- was hopefully
13 going to be a biological control program for those aquatic
14 weeds.
15 Q What kinds of weeds were you concerned with?
16 A We were looking primarily at hydrilla and hyacinth
17 and to a lesser extent alligator weed and a few other less
18 extensive weeds in terms of coverage.
19 Q What were your conclusions reached on that
20 study?
21 A In general, I would say we concluded that there
22 was an extensive aquatic weed problem. We covered many of
23 the waters in the central Florida area and found, of
24 course, varying degrees of weed coverage, but an extensive
25 problem. We found a few insects primarily that were
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1 feeding on both emergent and submerged aquatic weeds,
2 floating weeds like hyacinth being one and submerged weeds
3 like hydrilla being another, but one of our conclusions was
4 that those insects that are normally found in Florida were
5 not doing much to control those weeds.
6 One of our recommendations which ought to be
7 considered in this effort was to use some of those insects
8 perhaps as vectors for diseases that might be introduced
9 and spread by those insects. Those were the major
10 conclusions.
11 Q By "extensive problems," do you mean an increase
12 in the amount of weeds?
13 A Well, in the short term of our study we really
14 couldn't document whether the extent of the problem was
15 increasing or decreasing, but when we looked in this period
16 of time, there was an extensive problem. Many of the
17 waterways were virtually clogged with these weeds, and it
18 was not an isolated problem. We found it throughout the
19 state, central part of the state.
20 Q And the resolution to this problem?
21 A The problem has not been resolved. One of our
22 conclusions was that the weeds were not going to be
23 controlled by the biological processes that were going on
24 in the state right now, but those processes such as insects
25 feeding on those weeds might be used in conjunction with
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1 other techniques to introduce control measures that were
2 not in place at that time.
3 Q And your next position?
4 A The grant that I was working on began winding
5 down, and I had an opportunity to accept a position as a
6 laboratory technician with the Florida Department of
7 Pollution Control in their Central Region office in
8 Orlando. I moved to that position in July of 1972.
9 Q It says here, "Responsibilities included the
10 design, development and maintenance of a regional
11 microbiological laboratory."
12 A That is correct.
13 Q Did that come about?
14 A Yes.
15 Q What was the purpose of that project?
16 A The Department did not have microbiological
17 sampling capabilities in its district offices. It had
18 relied on the health department, health departments around
19 the state for microsampling, and the Department purchased
20 equipment and placed it in the district offices, and one of
21 my responsibilities was to install that equipment, get it
22 up and running and begin actual sampling of water bodies in
23 our region.
24 Q It says here, "A significant amount of time was
25 also spent conducting biological and chemical surveys at
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1 proposed dredge and fill sites." What kinds of sites?
2 A Any proposed dredging and filling activities, such
3 as the development of a new marina, housing project, road-
4 widening project or new road location. It was basically
5 the forerunner of the current Department's dredge and fill
6 program.
7 Q Were you restricted primarily to the Orlando area,
8 or did you cover different counties?
9 A We had -- it varied because the boundaries shifted
10 somewhat, but we had about 10 or 12 counties in the
11 central Florida area, centered around Orlando, of course.
12 Q And your next position, which was, I believe, from
13 4/73 to 8/73?
14 A Basically, the position I was in there was
15 upgraded, the responsibilities were very similar. Again, I
16 was working in -- on the dredge and fill program and doing
17 actual water quality analysis and including not just
18 microbiological but chemistry and biology samples as well.
19 Q And the next position?
20 A In August of 1973, I accepted a position in
21 Tallahassee, in the Department's headquarters office, in
22 the Water Quality Analysis Section. We were at that time
23 collecting and summarizing water quality data in
24 preparation of what was called 303e basin plans.
25 These were -- this was a planning effort required
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1 by the Environmental Protection Agency to look at the water
2 quality of the hydrologic basins in the state of Florida,
3 assess the quality of those basins, assess the discharges
4 and activities that were impacting that water quality and
5 begin to develop a basin-wide plan for protecting and
6 improving water quality around the state.
7 Q What were you particularly concerned with with
8 regard to these kinds of discharges?
9 A The majority of the work in those basins was on
10 sewage treatment and industrial discharges. My particular
11 area of focus was on biological data, but the overall
12 thrust of the effort was to look at permitted sewage and
13 industrial discharges or discharges that should have been
14 permitted and had not been at that time.
15 Q Where were these 303e basin plans? What area did
16 they cover?
17 A They covered the entire state.
18 Q Did you get into the Everglades at all in that
19 position?
20 A Yes, we did.
21 Q What was your involvement in the Everglades in
22 connection with this position?
23 A My involvement in the Everglades was very
24 limited. There were four of the basins in the state that
25 were done primarily under contract, the south Florida basin
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1 being one of them, east coast, St. Johns, and I don't
2 remember the fourth one, but our group basically had a
3 project management role in the south Florida area because
4 much of that work was done under contract.
5 Q Did you look at any form of nutrient impacts on
6 the Everglades in connection with that position, or
7 agricultural runoff?
8 A I don't recall specifically that I did. I
9 remember that being addressed in a very general sense in a
10 report. I did not have much involvement in that work.
11 Q Do you recall what kinds of nutrients at all might
12 have been discussed?
13 A Not specifically, no.
14 Q And your next position -- you were there at this
15 Environmental Specialist II for 10 months?
16 A Yes.
17 Q And then were you promoted?
18 A Yes, I was.
19 Q And you were promoted to a Biologist III?
20 A That is correct.
21 Q And what was the difference between that position
22 and your previous position?
23 A The new position as a Biologist III was in the
24 same bureau but in the biological section. It was the
25 technical assistance section to other units within the
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1 Department.
2 My primary focus was on the collection and
3 analysis of biological data that was being collected by the
4 Department's biologists around the state. We had a
5 monitoring program consisting of, give or take, 100
6 sampling points around the state. Our district biologists
7 were collecting data at those sampling points and
8 submitting it to Tallahassee. I analyzed and summarized
9 that information.
10 Q Did you look at any specific kind of data?
11 A We were collecting primarily microinvertebrate
12 data, data on aquatic insects, for example, to determine
13 the relative health of water bodies.
14 Q Your next position?
15 A I moved back to the Water Quality Analysis
16 Section, again, had a promotion, and began developing
17 wasteload allocations, which were water quality studies of
18 bodies of water for the purpose of developing permit
19 limitations for discharges to those water bodies.
20 This was basically an extension of the earlier
21 effort that had gone on with respect to 303e basin
22 planning. The Department began to focus on problem reaches
23 of water bodies that had been identified in the 303e basin
24 plans and developing permit limitations for discharges
25 within those basins.
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1 Q Did you end up developing permit limitations?
2 A Actually, what we developed was what we called
3 wasteload allocations. Those were recommended discharge
4 limitations that were then sent to our district offices for
5 consideration in the permitting process. We did not
6 develop permit limitations, per se. That, the permitting
7 was done by the district offices.
8 Q What did those discharge limitations consist of,
9 or those allocations, wasteload allocations?
10 A We were primarily looking at discharge
11 constituents that might cause dissolved oxygen problems and
12 violations of the Department's DO standard. We looked at
13 nutrient discharges, and in some cases, looked at other
14 constituents. For example, there were some industries that
15 might be discharging metals and other parameters of
16 concern.
17 Q Did you look specifically at phosphorus, do you
18 recall?
19 A Yes, we did.
20 Q Did you reach any conclusions specifically with
21 regard to phosphorus as a discharge?
22 A Can you be a little more specific?
23 Q As a discharge, as a limitation, as part of a
24 wasteload allocation limitation.
25 A In some cases, we did restrict or develop
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1 recommended restrictions for the discharge of phosphorus.
2 Q Were they numeric limitations?
3 A Yes.
4 Q Do you recall -- can you give me any examples in
5 any specific scenarios?
6 A For specific water bodies?
7 Q For specific water bodies.
8 A Yes. We looked at many of the lakes in the St.
9 Johns River basin and in the Kissimmee River basin. We
10 actually developed computer models of those lakes for the
11 purpose of restricting discharges of both nitrogen and
12 phosphorus from point sources or sewage and industrial
13 treatment plants that might be located on those lakes or
14 immediately adjacent to them.
15 Q Tell me a little bit more about the St. Johns.
16 When was that? When did that occur?
17 A Well, I am not sure I can give you specific dates,
18 but in this period of time, we were going back and focusing
19 on basins where we had identified problems. There were a
20 number of dischargers in the Kissimmee and St. Johns
21 basins, dischargers that -- whose discharge entered the
22 lakes within those basins. Many of them were sewage
23 treatment plants. A number of them were citrus processing
24 discharging plants, and through our basin planning effort,
25 we had identified some water quality problems in those
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1 lakes and began to go back and focus on those specific
2 problems.
3 Much of our work was in support, in this period of
4 time was in support of an EPA grant funding program for the
5 upgrading of municipal sewage treatment plants, so a lot of
6 our work was not really geared to an enforcement mode or
7 even a permit modification mode as much as it was to
8 analyze alternatives that the municipalities would then
9 come back and request funding to implement.
10 Q Did you reach any conclusions as to the cause of
11 the problems in the St. Johns-Kissimmee River basin? Let
12 me be more specific.
13 A Please.
14 Q With regard to phosphorus and nitrogen?
15 A The modeling analyses that we did in that period
16 were based on a model that was developed at the University
17 of Florida that assumed that nitrogen and phosphorus acting
18 as nutrients were equally important in causing water
19 quality problems, and where we did an analysis that
20 indicated that nutrients were a problem in a water body, we
21 would restrict both the discharge of nitrogen and
22 phosphorus to some level that we considered acceptable
23 based on that model.
24 Q Did you have any fixed numeric limits that you
25 established for that water body?
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1 A No.
2 Q Did you ever determine what the source of the
3 discharge was for those water bodies?
4 A That was --
5 Q The Kissimmee to St. Johns River basin?
6 A Well, that was the focus of our study. We were
7 looking for each -- for any water body that we studied, we
8 were looking for the sources of nutrients and for the
9 control of those sources of nutrients, and then the
10 Department through the regulatory process would address
11 those sources through permits or through upgrading of those
12 discharges, or perhaps development, to developing alternate
13 sources of discharge.
14 Q Were they point source discharges?
15 A Yes.
16 Q Did you reach any conclusions as to what those
17 sources of discharge were?
18 A If I understand the question, we did in the sense
19 that we wrote up our results and submitted those for
20 review, and in those analyses we identified the sources
21 that we had either sampled or gathered data on from some
22 source and then analyzed through the wasteload allocation
23 process; so in a sense, we reached conclusions that yes,
24 there were discharges in some cases, and here was our
25 assessment of their causes or contribution to causes of
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1 nutrient problems and other parameters.
2 Q You say you wrote up analyses. Were there reports
3 on this?
4 A Yes, there were.
5 Q Do you recall what reports or where I could find
6 those reports?
7 A I believe most of them are right behind me on that
8 back shelf. As far as I know, all of those reports would
9 be in the files of the Wasteload Allocation Group here in
10 the Department. I believe they were all published, to my
11 knowledge, and are on file with the Department.
12 Q Did you determine particular entities in
13 connection with the St. Johns-Kissimmee River basin that
14 were particularly responsible for discharges into the water
15 body that were causing phosphorus, nitrogen, nutrient --
16 A When you say particular entities, specific
17 dischargers?
18 Q Right.
19 A Yes, we did.
20 Q In those reports are identified?
21 A Yes.
22 Q Do you recall what types of entities they were?
23 A We identified various sources of what I would
24 consider point and non-point sources, non-point being
25 stormwater discharges and point sources being primarily
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1 sewage and industrial sources.
2 Q Any farming sources?
3 A Yes.
4 Let me add a parenthetical note if I can. In
5 describing this process we were focusing on that 1975- '76
6 period, but the process I am describing is basically the
7 process that we were going through for a number of years.
8 I was in that section for a number of years in different
9 positions, so in answering your questions, some of the
10 dates get a little fuzzy that many years ago.
11 Q Sure.
12 A But I am speaking in general to that period of
13 time, not just November of '75 to April of '76.
14 Q In connection with the Kissimmee-St. Johns, we
15 have talked about nitrogen and phosphorus. Were there any
16 other constituents that you looked at in particular?
17 A Yes. As I mentioned earlier, we also looked at
18 dissolved oxygen parameters, constituents within the
19 discharges that might affect the water body's ability to
20 meet the dissolved oxygen standard. We also looked at
21 bacteria and other pollutants that we might identify in our
22 analysis for which the Department had standards that needed
23 to be protected.
24 So nutrients and dissolved oxygen were the two
25 primary ones, but there were others, given the particular
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1 water body that we were looking at.
2 Q Of the nutrients that you looked at in that
3 particular water body area, was there a particular nutrient
4 or -- was there any primary nutrient that was the primary
5 cause of the problem that you recall?
6 A No.
7 Q Was it a combination of factors?
8 A For the most part, our assumption in the
9 techniques that we used equated nitrogen and phosphorus.
10 We assumed those two nutrients were equally responsible for
11 water quality conditions that we observed that related to
12 nutrient discharges.
13 Q Did they, in fact, impact DO, the level of DO?
14 A Yes, they can.
15 Q In what way?
16 A It was our experience that when nutrient
17 concentrations were high and other water quality problems
18 became apparent, such as increased algal activity or
19 increased macrophyte growth, that dissolved oxygen
20 conditions in the water body could be affected, and we did
21 some sampling and analysis to measure the degree of change
22 or the amount of the effect in the water bodies.
23 Q Did you establish any correlations?
24 A Not a specific one. Basically, we found that
25 those changes were water-body-specific. They were not
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1 measured to be the same in the different water bodies that
2 we analyzed. There were other factors that might affect
3 the condition in the water body besides just the nutrient
4 discharges.
5 Q Are you saying that they affected different water
6 bodies in different ways?
7 A That is correct.
8 Q Let's move on to the next position, which is, I
9 guess 4/76 to 4/79?
10 A Yes. I was an Environmental Specialist IV, which
11 was basically a subsection supervisor within that same
12 Water Quality Analysis Section. In addition to the
13 technical responsibilities that I was just describing, I
14 had some supervisory responsibilities in terms of
15 scheduling and managing people that worked for me,
16 supervising people that worked for me.
17 Q Would you say at that point that was the better
18 part of your job, you did more management than technical,
19 or was it about the --
20 A Better in the sense that I enjoyed it more.
21 Q More or less, in terms, did you do more
22 supervisory work than technical work, or did you do more
23 technical work than supervisory work?
24 A In that position, I probably did more technical
25 work than supervisory work. In working my way up through
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1 the ranks in that section, I was working elbow to elbow
2 with people that I worked with at the same level in terms
3 of position previously, and those people were professionals
4 and knew their jobs. I didn't really -- it didn't require
5 much supervision on my part. What I primarily did was
6 focus on the technical problems that they were dealing with
7 and help them develop solutions to those technical
8 problems. So my responsibilities, I think, remained
9 primarily technical in that position.
10 Q In the technical sense, did you do -- did you
11 handle similar types of responsibilities as in your
12 previous position?
13 A Yes, I did.
14 Q And your next position?
15 A I became the administrator of the Water Quality
16 Analysis Section in February of 1979. I held that position
17 for four or five years, five years, and in that position my
18 responsibilities were more supervisory in nature and less
19 technical.
20 Q I notice that it says, "Supervised staff engaged
21 in analysis of data and development of wasteload
22 allocations for discharge to state waters." The
23 development of wasteload allocations, is that a continuous
24 process? I notice that seems to be a continuing theme in
25 the previous --
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1 A It is a continuous process in a number of ways.
2 The process continued primarily because we did not have
3 enough staff to go in and development wasteload allocations
4 for all of the dischargers of the state in a short period
5 of time. There were many, many of those dischargers. We
6 revised those based on the basin planning effort and tried
7 to go in and focus on the ones that seemed to have the
8 problems that needed addressing.
9 It was also continuous in the sense that the
10 Department was continuing to develop new standards and
11 continued to collect water quality data that pointed out
12 problems that we may not have known about in the past, and
13 also continuous in the sense that new dischargers were
14 requesting permits to discharge to State waters. So the
15 process continued throughout this period and I guess
16 continues today.
17 Q And your next position?
18 A I accepted a lateral transfer to another bureau in
19 the Department and became, for a short term, at least,
20 administrator of the Water Resources Planning Section.
21 Q How long were you in that position?
22 A About a month.
23 Q I seemed to have lost --
24 A That was from the period of September '84 to
25 October of '84.
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1 Q Was that a temporary --
2 A No. It was a permanent position. I was requested
3 by the division director to consider a lateral transfer to
4 that position. That was part of a reorganization effort
5 that was underway in the division at the time.
6 Q What did the -- what was the Outstanding Florida
7 Water Program?
8 A We were focusing on two primary areas. One was
9 the possible designation of waters -- well, back up a
10 minute.
11 The Outstanding Florida Water Program is a program
12 that is included in the Department's rules where the
13 Department provides a higher degree of protection to water
14 bodies that are considered outstanding and have certain
15 attributes and resources that the Department feels warrants
16 a higher degree of protection.
17 We looked at two primary areas. One was water
18 bodies that were -- that had received some other
19 designations, for example, state parks and aquatic
20 preserves that might be designated under another program,
21 either state or federal. The other would be water bodies
22 that just because of the quality of those waters were
23 worthy of additional protection.
24 We held public workshops to gather information,
25 and we polled citizens and other agencies about those water
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1 bodies and ultimately made recommendations to the
2 Environmental Regulation Commission for possible
3 designation of waters as Outstanding Florida Waters.
4 Q Had any waters been designated at that time as
5 Outstanding Florida Waters?
6 A Yes, they had.
7 Q Were you, in effect, making recommendations to
8 improve an existing program?
9 A Well, I would consider that part of my
10 responsibilities in my position with the Department.
11 Q Let's go to the next employment.
12 A In October of 1984, I became bureau chief of the
13 Bureau of Laboratories and Special Programs. This was a
14 newly created bureau that was part of the reorganization
15 effort that I mentioned a few moments ago. We had four
16 sections within that bureau, the Drinking Water Section,
17 the Biology and Chemistry Sections and the Water Resources
18 Section that I mentioned earlier and was administrator of a
19 month or so before.
20 Q In connection with that position, did you do more
21 management than supervisory or technical work?
22 A Yes, I did.
23 Q And did you, in your technical capacity -- well,
24 in any of those sections, at the time, was any work ongoing
25 in the Everglades specifically that you focused on or any
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1 of your units that you were responsible for focused on,
2 that you recall?
3 A Yes.
4 Q Can you describe what that work consisted of?
5 A I can give you some examples. Our -- at this
6 point in my career with the Department, we had many, many
7 ongoing activities all around the state, but, for example,
8 as the administrator of the Water Resources Section and as
9 the bureau chief of the Bureau of Laboratories and Special
10 Programs, we managed the public works program, which was a
11 program where we actively sought federal support, financial
12 support for water resources projects around the state.
13 Many of those projects were identified by the South Florida
14 Water Management District, for example, for improvements
15 and maintenance of the water management system within the
16 Everglades. So that is an example of direct involvement in
17 the Everglades issues.
18 The Outstanding Florida Water Program included a
19 number of water bodies that were designated as OFW or
20 Outstanding Florida Waters in the Everglades.
21 Q Do you recall what those water bodies were in the
22 Everglades that were designated as OFWs?
23 A They are scattered throughout. The Loxahatchee is
24 a good example. The Biscayne Bay Aquatic Preserve is an
25 example; many of them in that area scattered throughout the
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1 general region.
2 MR. HYDE: I think we are running into some
3 confusion here with the generic use of the term
4 "Everglades." I -- "Everglades" could mean Everglades
5 National Park, it could mean the Everglades Protection
6 Area, which is the subject matter of the Everglades
7 SWIM Plan, and it could mean, in a more historic sense,
8 virtually all of south Florida. So I would like to --
9 perhaps we could be more specific as to what type of
10 Everglades we are referring to in those questions.
11 BY MR. HETRICK:
12 Q Are you familiar with the Everglades Protection
13 Area?
14 A In a general sense.
15 Q Can you tell me if all designations were made to
16 Outstanding Florida Waters during your tenure?
17 A I can tell you they were not.
18 Q During your tenure as bureau chief, were there any
19 specific designations of Outstanding Florida Waters made to
20 the Everglades Protection Area?
21 A I don't recall any. There may have been. I don't
22 recall specific --
23 Q Were there any existing designations during your
24 tenure as bureau chief, designations that had already been
25 made to the Everglades Protection Area?
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1 A I believe so. I am actually not real sure what
2 those boundaries were at that time.
3 Q Do you recall if the Loxahatchee had been
4 designated?
5 A It was my recollection that it was, it had been.
6 Q How about the Everglades National Park?
7 A I believe so.
8 Q Your next position?
9 A That would be May of 1986 to February of 1987?
10 Q Right.
11 A I accepted a position as the bureau chief of the
12 Bureau of Permitting with the Department in the Tallahassee
13 office.
14 Q Why did you go from one bureau chief to the other
15 bureau chief?
16 A It was an opportunity to learn about other
17 programs within the Department. I was encouraged by the
18 Secretary to take that position. I had not had direct
19 experience in permitting at that point, and because of some
20 changes within the Bureau of Permitting and the Division of
21 Environmental Permitting, the Secretary asked me if I would
22 consider moving to that position.
23 Q And your next position?
24 A I became director of the Division of Environmental
25 Permitting, which included the Bureau of Permitting that I
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1 had been responsible for, in March of 1987, and continued
2 in that position for a little over a year.
3 Q Did your position consist mostly of management, in
4 that division director position?
5 A Yes, it did.
6 Q Did you do any technical work at that time?
7 A Not personally. I reviewed technical work and
8 participated in attempts to resolve technical problems, but
9 my primary day-to-day responsibilities focused on
10 supervision and management.
11 Q In your next position, you went to division
12 director of Water Management?
13 A That is correct.
14 Q And what was the purpose for that change?
15 A We -- the Department was reorganized, and we
16 established a division of responsibility based on
17 programmatic areas. The particular programs that I ended
18 up responsible for, if you will, were primarily dredge and
19 fill and stormwater management, coastal zone management.
20 Q Were you out of the permitting aspect of it at
21 that time?
22 A No.
23 Q So even as, in your division director capacity of
24 Water Management, you still performed activities in the
25 area of permitting?
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1 A Related to permitting, that is correct.
2 Q As division director, it lists a litany of
3 statewide programs. It mentions surface water improvement
4 and management and coastal management. What did you do
5 specifically in connection with surface water management
6 and improvement? What programs were you involved in in
7 that case, in that connection?
8 A In both of those areas?
9 Q Surface water improvement and management, those
10 areas.
11 A In surface water improvement and management, we
12 were -- in those days, we were beginning to set up a
13 program that had been created by the Legislature for --
14 called Surface Water Improvement Management, or SWIM, for
15 short. The program had been established and funded. We
16 began developing the rules for the implementation of that
17 program, and the funding procedures. The majority of money
18 that was allocated by the Legislature was going to the five
19 water management districts in the state, so we began
20 developing the process to get that money to the water
21 management districts and oversee the development of the
22 SWIM planning effort by the water management districts.
23 Q What kind of process was that?
24 A In a sense, it was similar to the 303e basin plan.
25 It was in that that the water management districts were
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1 required to assess their water resources problems in their
2 areas, prioritize the water bodies based on the extent of
3 the problems and develop plans for improving water quality
4 and water resources within those water bodies, the high
5 priority water bodies that they had identified.
6 Q Do you recall if the South Florida Water
7 Management District undertook such a process and program?
8 A Yes, it did.
9 Q Do you recall how many water bodies they had to
10 prioritize, just a rough estimate?
11 A Well, the -- it is not that they had to prioritize
12 any particular number. Some did more than others. In
13 south Florida, they were primarily focused on the Lake
14 Okeechobee and Everglades systems.
15 Q Let's go on to your next position.
16 A Well, I left the Department at the end of October
17 1991, and --
18 MR. HYDE: Excuse me, '90 or '91?
19 THE WITNESS: Excuse me, 1990, and established a
20 private environmental consulting firm called Phoenix
21 Environmental Associates, Inc., Tallahassee, Florida.
22 BY MR. HETRICK:
23 Q Why did you leave the Department?
24 A I am not sure; maybe a mid-life crisis. I felt it
25 was time for a change. I had been planning for a number of
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1 years to perhaps go on my own in the environmental
2 consulting field. I had an opportunity to do that with
3 some people that I knew from outside the Department that
4 encouraged me to do that, and I decided to take that
5 plunge.
6 Q What were your -- can you tell me what your
7 responsibilities are with the Phoenix -- you are still with
8 the Phoenix Environmental Group?
9 A You skipped a position, actually.
10 Q Okay.
11 A From October of 1990 to October 1991, I was
12 president of Phoenix Environmental Associates, Inc., and
13 still am, in fact.
14 Q Okay.
15 A My partner and I decided rather than setting up
16 one company, we would set up two different companies. He
17 had his own company and I had mine, and there were just the
18 two of us for that first year.
19 In November of 1991, we formed a third company,
20 the Phoenix Environmental Group, Incorporated, which
21 basically was a merger of our two companies, and we hired
22 employees and began to expand. Phoenix Environmental
23 Associates still exists but is inactive, and I am working
24 as executive vice-president of the Phoenix Environmental
25 Group, Incorporated.
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1 Q You say you have a partner in this position?
2 A Yes.
3 Q Who is that?
4 A His name is Russell Danser.
5 Q How many employees do you have?
6 A Six, including myself and Mr. Danser.
7 Q You have here, from 10/90 to 10/91, a series of --
8 a description as to the types of projects that you worked
9 on. Are there any other project types that you worked on
10 besides what you have listed here?
11 MR. HYDE: Everglades SWIM plans.
12 BY MR. HETRICK:
13 Q Would that be about it, Everglades SWIM plans?
14 A Well --
15 MR. HYDE: He is not completely sucked into the --
16 THE WITNESS: No. Actually, I am involved in a
17 number of studies around the state. Probably the one
18 that is demanding the majority of my time right now is
19 I am actually under contract to the Department of
20 Environmental Regulation to look at State assumption of
21 the federal 404 wetland permitting process, but we do a
22 lot of actual permitting for private clients around the
23 state. I occasionally act as an expert witness in
24 proceedings, usually administrative proceedings around
25 the state.
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1 BY MR. HETRICK:
2 Q What is the federal Section 404 program?
3 A It is basically the dredge and fill permitting
4 process at the federal level. It is administered primarily
5 by the Corps of Engineers, with some oversight and
6 coordination with other federal agencies such as the
7 Environmental Protection Agency, U.S. Fish and Wildlife
8 Service, the National Marine Fisheries. The State of
9 Florida is interested in assuming those federal permitting
10 responsibilities and basically trying to develop a one-stop
11 permitting process for wetlands permitting projects, dredge
12 and fill projects.
13 Q Is that statewide?
14 A Yes, it is.
15 Q Do you focus on any particular area of the state
16 more than others?
17 A Geographically?
18 Q Geographically.
19 A No.
20 Q I want to go back just real quick to 7/88 to
21 10/90, to that position where you were division director of
22 Water Management, and I just wanted to ask you one
23 question.
24 Again, you listed a litany of responsibilities.
25 Was more of your work at that time taken up by surface
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1 water improvement and management than the other areas, or
2 were your responsibilities fairly well distributed among
3 each of the areas you have listed here?
4 A Actually, neither, I would say. The majority of
5 my time was spent on wetland resource management projects,
6 dredging and filling projects.
7 Q In any particular area of the state?
8 A No.
9 Q Statewide?
10 A Statewide.
11 MR. HYDE: Are you finished with that?
12 MR. HETRICK: Yes, I am finished.
13 MR. HYDE: Would it okay be to take a five-minute
14 break?
15 MR. HETRICK: Yes. Let's take a five-minute
16 break.
17 (Brief recess.)
18 BY MR. HETRICK:
19 Q Mr. Armstrong, have you published any papers?
20 A Well, the majority of the publications that I was
21 involved with were Department reports that I referred to
22 earlier. I was involved for a short time in a water
23 quality study, this was in 1972 or '73, and I honestly
24 cannot tell you the name of it, but it was a general
25 assessment of water quality in the lower St. Johns basin,
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1 which is the Jacksonville area.
2 Q Let me ask you it this way. Are there any
3 particular reports throughout your tenure with the
4 Department that you have had your name on that you can
5 identify, that you recall, that you can identify?
6 A Yes.
7 Q Can you name those reports?
8 A No.
9 Q How many were there?
10 A I don't know.
11 Q Hundreds?
12 A At least tens. The majority of the publications
13 were in my 11 years or so with the Water Quality Analysis
14 Section. Those were the technical studies that I referred
15 to and the development of procedures that we used in that
16 section, but there were many documents that I am sure had
17 my name on them, reports and studies that were done by the
18 agency throughout the years. I could not name them.
19 Q Were you involved in rulemaking?
20 A Yes, I was.
21 Q What rules?
22 A Again, many of the Department's rules dealing with
23 the development, with water quality standards, the
24 Department's permitting rules, the Department's dredge and
25 fill rules, SWIM; many of them, with the exception of air
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1 and hazardous waste, although I actually had some
2 involvement peripherally in those as well, especially as
3 the director of the Division of Environmental Permitting.
4 We had responsibility for all of the Department's
5 permitting and enforcement programs within our division, so
6 in that sense, I was involved in a general way in all of
7 the Department's rules.
8 Q You were involved in, I take it, policy
9 determinations on the applications of all of the
10 Department's rules?
11 A Yes.
12 Q Throughout the course of your tenure?
13 A Yes; the majority of it, of course, obviously,
14 primarily in the later years in higher level positions.
15 Q Did you make specific policy determinations with
16 regard to OFWs, Outstanding Florida Waters?
17 A Yes.
18 Q The interpretation of the grandfathering of OFWs?
19 A Yes.
20 Q Interpretations relating to antidegradation
21 policies of the Department?
22 A Yes.
23 Q Moderating provisions such as mixing zones,
24 variances and site-specific alternative criteria?
25 A Yes.
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1 Q You made policy determinations with regard to
2 narrative nutrient rule?
3 A Yes.
4 Q The Department's nuisance species standard?
5 A Yes.
6 Q Biological integrity?
7 A Yes.
8 Q And dissolved oxygen?
9 A Yes.
10 Q Any others?
11 A I am sure there were.
12 Q Any others related specifically to water quality
13 that you can recall?
14 A Well, not specifically, but I would say in a
15 general sense that I was involved in policy discussions
16 over probably all of the Department's water quality
17 standards at some point in time, all of the standards that
18 existed during, obviously during my tenure with the
19 Department.
20 Q The present company that you work for now, do you
21 do any work on the Everglades?
22 A Do I?
23 Q In your capacity with that company.
24 A Other than this?
25 Q Other than --
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1 A This proceeding that we are in?
2 Q That we are in.
3 A I was involved for a short time in the assessment
4 of some of the discharges in what are referred to as the
5 298 drainage districts. Those discharges primarily were to
6 Lake Okeechobee. That was, as I said, for just a short
7 period of time, and I am no longer involved in that
8 situation. Those were related in a sense to the general
9 geographical area of the Everglades, in a sense that if
10 those discharges did not go to Lake Okeechobee, they have
11 to go somewhere, and they would probably go to the south,
12 toward the Everglades, but as I said, that was a relatively
13 short period of time. I am not involved in that issue any
14 longer.
15 Q What did your limited involvement consist of?
16 A I was asked to review water quality data
17 concerning those discharges and subsequently be available
18 to testify in a permit proceeding the districts, the 298
19 districts were seeking permits to continue discharging to
20 Lake Okeechobee. I got involved and for a number of
21 reasons, primarily related to my scheduling and workload, I
22 had to bow out of that process and could not agree to
23 continue to put time in it. So it was a relatively short
24 period of time and I did not continue with it.
25 Q When was that period of time?
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1 A It was, I would say, within the last year, maybe
2 seven or eight months ago.
3 Q Did you make any water quality determinations with
4 regard to any discharges related to that 298, related to
5 the 298 --
6 A I began to review the data. I actually went on
7 site once and looked at the pump structures and the
8 relationship of the 298 districts and so forth and had
9 begun to review data that was being collected and had been
10 collected, primarily, data in Lake Okeechobee, but I can't
11 say that I carried that through to the point of reaching
12 conclusions that I would had I written up reports, and
13 certainly I did not testify in the situation. I got
14 involved in the process, and I just really could not afford
15 to devote the time that I saw that it was going to take.
16 Q What kind of data did you review?
17 A It was data on solids conductivity. It included
18 nutrient data, general water quality data that had been
19 collected, and flow data for those discharges.
20 Q How long were you involved in that?
21 A Probably off and on over about a three-month
22 period.
23 Q You said you reached no conclusions, really, is
24 that correct?
25 A Essentially, right.
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1 Q Did you make any preliminary assessments with
2 regard to either nutrients or flow data?
3 A No, I can't say that I really did.
4 Q Why did you bow out?
5 A Primarily because of workload. The projects that
6 we had underway in our company were demanding, and there
7 were other consultants involved in that process that I felt
8 could probably assume the responsibilities that I was being
9 considered for, and I just really -- I saw that as probably
10 being a project that was going to demand more of my time
11 than I felt I would be willing to devote to it.
12 Q I want to go through just for a moment --
13 MR. HETRICK: Again, I am not going to offer this
14 as an exhibit, but it is his designation.
15 MR. HYDE: All right.
16 BY MR. HETRICK:
17 Q I want to focus for a minute, Mr. Armstrong, on
18 the Sugar Cane League designation, which is -- I am not
19 going to offer as an exhibit, but --
20 MR. HETRICK: Let's go off the record for a
21 minute.
22 (Discussion off the record.)
23 BY MR. HETRICK:
24 Q Mr. Armstrong, who have you been retained by in
25 this case?
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1 A By the Sugar Cane League.
2 Q Does that also include the U.S. Sugar Co-op and
3 New Hope South, Inc.?
4 A It is my understanding that it does.
5 MR. HYDE: Do you mean United States Sugar
6 Corporation, not Co-op?
7 MR. HETRICK: Excuse me, that is correct.
8 BY MR. HETRICK:
9 Q Have you been retained at all by any other entity
10 such as the Sugar Cane Growers Cooperative or the -- let me
11 rephrase that -- such as the Sugar Cane Growers Cooperative
12 of Florida or Roth Farms, Inc., or Wedgworth Farms, Inc.?
13 A No.
14 Q Have you been retained by the Hopping Boyd law
15 firm in any respect?
16 A No.
17 MR. HYDE: Keith, I have been looking through the
18 Cooperative's -- is this under some supplemental thing,
19 or where have they listed Randy?
20 MR. HETRICK: Let's go off the record for a
21 moment.
22 (Discussion off the record.)
23 MR. HETRICK: Let's go back on the record.
24 BY MR. HETRICK:
25 Q Mr. Armstrong, do you -- have you had any
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1 conversations with the Hopping Boyd law firm or the Sugar
2 Cane Growers Cooperative of Florida, Inc., or Roth Farms,
3 Inc., and Wedgworth Farms, Inc., in connection at all with
4 this proceeding that we are involved with right now, that
5 you are here being deposed about today?
6 A Yes.
7 Q You have had conversations with them?
8 A Yes.
9 Q Do you anticipate testifying on any of those
10 entities' behalf at this trial?
11 A I have not been approached about doing so, and I
12 don't anticipate that at this point.
13 MR. HYDE: I think your previous question was a
14 little broad. "Conversations," maybe you can be a
15 little more specific.
16 BY MR. HETRICK:
17 Q In connection with the Everglades lawsuit that we
18 are here on.
19 A Well, the extent of my conversations have
20 primarily been in this room with Mr. Green, but not
21 specifically to my ability or willingness to testify for
22 them, I have not been approached about doing that. Mr.
23 Green has said, for example, when am I going to get to
24 depose you, but no one has approached me about testifying
25 for them on their behalf.
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1 Q I have here in front of me, which I am not going
2 to offer as an exhibit at this point, but it is a
3 Petitioner's Witness List by the Sugar Cane Growers
4 Cooperative of Florida, Roth Farms, Inc., and Wedgworth
5 Farms, Inc., and it is dated on the next to the last page
6 as submitted the 17th day of August, 1992, signed by
7 William H. Green and Gary Perko, and you have a copy of
8 that document in front of you as well, do you not?
9 A I believe I do. I was looking for dates.
10 Q It is the next to the last page.
11 MR. HYDE: Keith, just for purposes of clarifying
12 the record, it appears that this stapled-together
13 document here you are referring to is actually several
14 documents.
15 THE WITNESS: That was the point of my confusion.
16 MR. HYDE: One is Petitioner's Witness List, which
17 has a service date of September 16, 1992, and then
18 there is a Supplemental Expert Witness Designation
19 which has a service date of -- appears to be September,
20 I think it is, 16, 1992, and attached to both of them
21 are resumes. Excuse me, just to the latter are
22 resumes.
23 BY MR. HETRICK:
24 Q With that in mind -- the August 17th, 1992, date
25 that I mentioned, let's strike that. Let's go back to the
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1 document that you have in front of you identified as
2 Petitioner's Witness List, and it is dated -- it is -- the
3 number of pages in that are -- it is an 18-page document,
4 and it is entitled, Petitioner's Witness List by Sugar Cane
5 Growers Cooperative of Florida, Roth Farms, Inc., and
6 Wedgworth Farms, Inc., and it is signed by William H. Green
7 on the 26th day of October, 1992.
8 MR. HYDE: It looks like it is signed by Gary
9 Perko.
10 MR. HETRICK: It is signed by Gary Perko with
11 William L. Green's name on it.
12 BY MR. HETRICK:
13 Q On page 6 of that document, would you turn to
14 that, Mr. Armstrong? Would you look at the very last
15 paragraph 3 on page 67 of that document. It says,
16 "Department of Environmental Regulation officials and
17 employees, past to present," and there is a list of
18 employees. Do you see your name included there?
19 A Yes, I do.
20 Q Is it correct for me to say at this point that
21 they -- I will say for the record they have listed you, and
22 you have no intentions at this time of testifying on their
23 behalf?
24 A No, I do not. I have not been approached about
25 doing so.
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1 Q And you have no employment ties or any kind of
2 compensation ties to any of the entities, being the Sugar
3 Cane Growers Co-op of Florida, Inc., Roth Farms, Inc.,
4 Wedgworth Farms, Inc., or the Hopping Boyd law firm?
5 A I do not.
6 Q I will state for the record that should that be
7 the case, if you are hired in the future, we will reserve
8 our right to redepose you in connection with issues that
9 they may raise that are not raised in this deposition.
10 MR. HYDE: I just will state for the record that I
11 am obviously in no position and do not want to defend
12 or challenge or to waive any of the, whatever arguments
13 the Sugar Cane Growers Cooperative might have, but I
14 think that the way you just stated it is an appropriate
15 resolution of the issue.
16 MR. HETRICK: You stated --
17 MR. BARTELL: That sounds fine to me. I agree
18 with that.
19 BY MR. HETRICK:
20 Q Mr. Armstrong, I may have asked this, I don't
21 recall. Were you hired in this matter by the Florida Sugar
22 Cane League, Inc., or the United States Sugar Corp. or New
23 Hope South, Inc., or the Peeples, Earl & Blank law firm or
24 any or all of the above? Just who in particular were you
25 hired by?
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1 A I was actually approached by the Peeples, Earl &
2 Blank law firm and agreed to work for that firm in this
3 matter.
4 Q When was that?
5 A It has been about three months ago, I think.
6 MR. HYDE: It was more than three months ago.
7 THE WITNESS: Time flies. Maybe it was.
8 MR. HYDE: I think it was last summer.
9 BY MR. HETRICK:
10 Q I have a document here, again which is a pleading
11 I am not going to attach as an exhibit, but it is entitled,
12 Disclosure of Expert and Fact Witnesses of Petitioners
13 Florida Sugar Cane League, Inc., United States Sugar Corp.
14 and New Hope South, Inc., and it is a 57-page document,
15 apparently dated October 26, 1992.
16 MR. HETRICK: Do you agree with that? Are you
17 okay with that?
18 MR. HYDE: Sure.
19 BY MR. HETRICK:
20 Q Are you aware of whether you are designated --
21 what are you designated as in this case, an expert or fact
22 witness?
23 A Expert witness.
24 Q If you could turn to page 17 of that document?
25 Actually, page 18 -- well, page 18 is where your name
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1 appears, 17 is where your name appears and carries over to
2 page 18.
3 It says, Subject Matter of Expected Testimony:
4 Department of Environmental Regulation policies and
5 procedures.
6 Are there any particular areas or policies --
7 first of all, have you seen this designation before?
8 A Yes, I believe I have.
9 Q When did you first see this designation?
10 A I don't remember the specific month, but I assumed
11 it was in preparation of this document I discussed with Mr.
12 Hyde and others of the Peeples, Earl & Blank law firm the
13 description of my testimony that would go into this
14 document that was being submitted.
15 Q Was it within the past six months, or was it
16 before that?
17 A It was probably about six months ago. I am a
18 little fuzzy on the dates.
19 Q Did you help in drafting these statements?
20 A Yes, I did.
21 Q Did you comment on any of the contents of these
22 statements after they were developed?
23 A Yes.
24 Q Have you discussed this area of designation at all
25 since you first reviewed it?
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1 A Yes.
2 Q With whom?
3 A I have discussed it with Mr. Hyde in developing
4 the extent of my proposed testimony, and I later received a
5 call from an individual I believe in the Peeples, Earl &
6 Blank Miami office, the name escapes me, but to review the
7 description that was drafted that ultimately went into this
8 document.
9 Q Do you recall when that might have been?
10 A Not specifically.
11 Q Do you agree that you have knowledge on all of
12 these areas that are listed for you?
13 A I believe I do.
14 Q Do you anticipate testifying on all of these areas
15 which you are listed for on page 18?
16 A I believe so.
17 Q Have you discussed your anticipated testimony with
18 anyone outside of the legal counsel that you are being
19 represented by?
20 MR. HYDE: I am not sure I understand that
21 question. Could you be more specific?
22 MR. HETRICK: I would like to know if he has
23 discussed or prepared any thoughts or helped prepare
24 himself for his anticipated testimony with any other
25 experts in the case or received any consultation from
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1 anyone, outside the scope, obviously I don't want to
2 breach any attorney-client privilege here. That is
3 kind of the gist of my question.
4 BY MR. HETRICK:
5 Q Do you understand it?
6 A Yes, I do now. The answer is no. I discussed it
7 primarily with counsel at Peeples, Earl and Blank.
8 Q Subject -- we are going to get into this more and
9 more as we go throughout the day, but it says, "Subject
10 Matter of Expected Testimony: The Department of
11 Environmental Regulation policies and procedures. Other
12 areas of testimony may be added as the issues in the case
13 develop."
14 Are you familiar with the issues in the case in
15 general?
16 A In general, I am.
17 Q Have you completed formulating your opinions to
18 this date based on the -- your general understanding of the
19 issues in this case?
20 A Well, I am not sure I can say I have completed
21 forming my opinions. I have formed opinions based on the
22 information that I have received and reviewed. I assume I
23 will be asked to continue to be involved in the development
24 of the case and other issues may come up that I will be
25 asked to review, but at this stage, I have reached some
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1 conclusions.
2 MR. HYDE: I think just for purposes of the
3 record, Mr. Armstrong is trying to say that he is ready
4 to do his deposition today. As the deposition and
5 discovery process unfolds, there may be yet additional
6 matters that are brought to his attention, just as that
7 might be the case for any witness.
8 MR. HETRICK: Sure.
9 MR. HYDE: And certainly if the substance of his
10 opinions change or if he develops new opinions, the
11 Respondents, including the Department and the U.S.,
12 will be notified of that fact and will be given an
13 opportunity to recall Mr. Armstrong for a subsequent
14 deposition, but he is ready to go today on what we
15 anticipate his testimony to be.
16 MR. HETRICK: Okay.
17 MR. HYDE: Is that a fair statement?
18 THE WITNESS: That is fine. You did a good job.
19 BY MR. HETRICK:
20 Q Are you going to -- this is a rather broad
21 description here, and as I said, we will get into it more
22 and more, but the subject matter of expected testimony, DER
23 policies and procedures, are there any particular policies
24 and procedures that you will be focusing on in this case?
25 A In a general sense I expect to be focusing on the
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1 development and implementation of the Department's water
2 quality standards and permitting rules, and policies
3 related to both of those. That would include, for example,
4 what are generally referred to as the mitigating provisions
5 of the Department's permitting rules, the water body
6 classification system, including the Department's
7 Outstanding Florida Water Program.
8 Q With regard to the Outstanding Florida Water
9 Program, will you be interpreting the grandfather provision
10 of 17-4.242?
11 A I believe I will.
12 Q We have kind of gone through this before, but as
13 far as your anticipated testimony, will you also be
14 interpreting antidegradation rules?
15 A Perhaps, although I am not sure that would be a
16 major part of my testimony.
17 Q You mentioned permitting. Can you narrow that for
18 me a bit? Permitting is a fairly broad area. Dredge and
19 fill permitting, in what context?
20 A It is a fairly broad question, but let me try.
21 I expect to field questions on the Department's
22 permitting practices in the past, including the decision-
23 making process as to when a permit might be required, what
24 type of permit might be required, under what regulatory
25 program within the Department that permitting process might
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1 fall, and so forth.
2 Q Okay.
3 A Again, general permitting policies and practices
4 based on the Department's rules in the past and the
5 policies in the past.
6 Q Would you consider that kind of background type?
7 A In a sense I would, yes.
8 Q What about the narrative nutrient rule?
9 A The same, in a sense. I was involved somewhat in
10 the development of the Department's nutrient rule and
11 application of the rule throughout my tenure with the
12 Department.
13 Q How were you involved in the development of that
14 rule?
15 A In a sense, I think when the rule was first
16 developed I was on the user end. I was involved in the
17 wasteload allocation process, as I described earlier, and
18 was involved in discussions over quite some period of time
19 about the language that was being developed, the -- and the
20 application of that language in the Department permitting
21 and enforcement programs.
22 Q When did that occur?
23 A In general, I would say the mid- to late 1970s,
24 but it continued on through my -- through my years with the
25 Department.
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1 Q Do you expect to offer any testimony with regard
2 to interpretations of the nuisance species rule?
3 A Yes.
4 Q How about the dissolved oxygen criterion?
5 A Yes.
6 Q Any other specific rules of this nature that you
7 might be testifying to that jump to mind, recognizing that
8 you have stated that you are open to all kinds of areas of
9 water quality, but is there any other emphasis that comes
10 to mind in the context of this case?
11 A Well, there could be issues that -- about which I
12 will be asked dealing with site-specific alternative
13 criteria, variances, and other mitigating provisions that I
14 mentioned earlier.
15 Q Sure.
16 A Perhaps the Department's stormwater rule and
17 implementation of that program; but again, in a general
18 sense, I think those, the permitting policies and practices
19 as it relates to those factors or sections of the rules.
20 MR. HYDE: Just to be complete, that is also the
21 general subject matter of water quality-based effluent
22 limitations, too.
23 BY MR. HETRICK:
24 Q Let's generally talk about the Everglades.
25 Are you familiar with the Everglades in general as
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1 a body of water, with the Everglades Protection Area, in
2 specific?
3 A I am familiar with the general layout, if you
4 will, of the Everglades system, and I use that term in a
5 broad sense to describe basically the southern quarter of
6 the state.
7 Q Are you familiar with the water flow patterns in
8 the Everglades?
9 A In general I am, yes.
10 Q Have you actually spent much time in the
11 Everglades?
12 A I can describe it this way. In a relative sense,
13 I probably have spent more time in and on other water
14 bodies of the state throughout my period with the
15 Department than I did in the Everglades.
16 Q Have you ever done, in your professional or
17 technical capacity, any field work in the Everglades,
18 performed any site studies, conducted any --
19 MR. HYDE: Maybe one question at a time.
20 THE WITNESS: Let me see if I can describe it, and
21 if this doesn't answer your question, you can focus in
22 on maybe more specific -- specifically what you are
23 getting at.
24 I have been in the Everglades. I have had broad
25 tours of the Everglades, from the air and on the
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1 ground, nothing specific, just the general layout of
2 the Everglades. I have been on the ground looking at
3 specific issues dealing with the Everglades. Again,
4 when I was with the Department, I mentioned earlier we
5 looked at some of the municipal discharges along the
6 southern portion of the Lake Okeechobee and so forth.
7 I have not personally conducted field studies or
8 collected data or information such as that relating to
9 specific problems in the Everglades. I cannot recall
10 any efforts to address a specific problem where I went
11 in the field and collected information or took
12 measurements and so forth.
13 BY MR. HETRICK:
14 Q Have you ever reviewed any specific field studies
15 or data with regard to specific problems in the
16 Everglades?
17 A Yes.
18 Q When, what -- when?
19 A Well, again, primarily with the Department, I was
20 briefed on a number of issues, on studies done by the
21 Department or by the South Florida Water Management
22 District, as I recall, and in the recent past I was asked
23 to read documents, such as a study referred to as the
24 Nearhoof study that was developed by Frank Nearhoof at DER,
25 but again, that was reviewing information prepared and
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1 documented by other people.
2 Q You mentioned that you were involved at one point
3 when you were with the Department in evaluating or looking
4 at municipal discharges into the Everglades?
5 A That is correct, in the general geographical sense
6 of the Everglades.
7 Q General geographical view of the Everglades?
8 A Yes.
9 Q Could you tell me specifically what studies those
10 involved?
11 A All of those, I believe, would be documented in
12 the Department's water quality technical series. I
13 mentioned earlier that studies that were done by the
14 Wasteload Allocation Section, I will not say they were all
15 written and published as separate documents, but they
16 should be in the files of the Department's Water Quality
17 Analysis Section, Point Source Evaluation Section, or I am
18 not sure what it is called now, but --
19 Q Were these studies done all approximately at
20 the -- in a similar time period?
21 A No. I think the studies continued on for a number
22 of years, through my involvement at least through the --
23 well, I am not sure now, it probably was the late '70s,
24 early '80s period that I was involved. It may have
25 continued. I don't know at this point.
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1 Q What were the nature of the studies that were
2 going on as far as municipal discharges into the Everglades
3 was concerned?
4 A I think the primary issue was whether or not those
5 facilities that discharged to surface waters should
6 continue to do so, and if not, where were they going to
7 discharge and what level of treatment would they have to
8 provide. The Department was in certainly a regulatory role
9 in that process, but also the Department was trying to
10 assist those cities in obtaining grant funding wherever
11 possible to implement whatever alternatives were identified
12 as acceptable in a regulatory sense.
13 Q Were conclusions reached in those studies?
14 A Yes. I think for the most part the majority -- I
15 will not say the majority, many of those municipalities
16 implemented new treatment and disposal alternatives, such
17 as deep well injection. I don't know the current status of
18 those discharges. I was involved in the early planning
19 process where they were analyzing alternatives and seeking
20 funding, and I can't say what has happened in the last few
21 years.
22 Q Are you familiar with the adopted Everglades SWIM
23 Plan?
24 A Not really.
25 Q Have you reviewed the adopted Everglades SWIM Plan
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1 at all?
2 A I have not.
3 Q Did you work on SWIM issues when you were with the
4 Department?
5 A Yes, I did.
6 Q Did you examine or review any drafts of SWIM
7 Plans, Everglades SWIM Plans prior to the adopted version?
8 A Yes, I did.
9 Q When did you first have contact with the
10 Everglades SWIM Plan when you were with the Department?
11 A I would put it in about the late 1989, early 1990
12 period, roughly.
13 Q What was your role in that process?
14 A Initially, which was that, let's say, 1989 period,
15 our office, our staff in Tallahassee was primarily involved
16 in, shall we say, getting the SWIM process up and running.
17 We were involved in developing rules for the implementation
18 of the SWIM legislation. We were involved in getting the
19 money that had been allocated to the water management
20 districts. We were involved in educating the district
21 staff and the governing boards about SWIM and about the
22 policies that we wanted to implement in gearing that
23 program up.
24 Initially I think we focused primarily on the
25 process, how did the money come through the Department to
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1 the water management districts, what criteria would we use
2 for allocating the funds and approving their studies, and
3 so forth.
4 Later in the 1989 period and beginning in 1990, we
5 were starting to get work products back from the water
6 management districts, from all of them, again, I am
7 speaking statewide at this point, and we were reviewing
8 those documents, again, as managers of the program,
9 basically, to be sure the money was being spent properly,
10 but also we were establishing policy as we went.
11 We were discussing with the districts and
12 internally which activities were appropriate, given the
13 SWIM legislation, where were the districts going in terms
14 of the directives that SWIM had given them; but as I said,
15 we began shifting more and more into the technical work,
16 issues, for example, such as were the districts spreading
17 their resources too thin to accomplish anything, broad
18 issues, but for the most part I think I characterize our
19 involvement as more of a hands-off approach on the
20 technical issues.
21 It was the policy of the Department and the
22 Secretary at that time to really let the water management
23 districts and their governing boards decide what issues
24 were important and how to address those issues. We saw our
25 role as being sure they were working on the things that
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1 they identified as high priorities and spending money
2 wisely and doing things in a manner consistent with the
3 statutes and the State's water policy, but we did not take
4 a direct involvement in day-to-day projects, in what I call
5 the nuts and bolts of their studies.
6 Q You mentioned part of your initial involvement
7 included development of specific rules in regards to the
8 SWIM planning process.
9 A That is correct.
10 Q What specific rules?
11 A The rules that we developed, and I may not be able
12 to give you a reference, it escapes me at the moment, but
13 the rules that we developed governed how the districts
14 would implement the SWIM legislation and how we would get
15 the money down to them.
16 For example, they addressed the prioritization
17 process, where the districts were to identify priority
18 water bodies and provide certain reports to the Department
19 and request reimbursement for the work that they were
20 doing. It was more of the implementation of the program
21 rather than --
22 Q Substantive?
23 A -- substantive standards for review and so forth.
24 Q You mentioned that you started, in late '89 and
25 '90 you started getting products back from the various
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1 water management districts around the state.
2 Did your staff or you review those, begin
3 reviewing those products?
4 A Yes.
5 Q What did those reviews entail? And let me be more
6 specific, let's talk about specifically the Everglades SWIM
7 Plan.
8 A Okay. We began, "we" meaning on my staff,
9 primarily the Coastal Zone Management Section, who at that
10 time was responsible for the Department's administration of
11 the SWIM responsibilities, we had various staff members
12 assigned to various water management districts around the
13 state.
14 The staff, as you might imagine, or staff level
15 people conducted more detailed reviews of the information
16 that was being received from the water management
17 districts, and they would bring to my attention, and other
18 managers in the division, specific issues, primarily policy
19 matters that were of concern and they weren't quite sure
20 how to handle them or issues that might be raised by the
21 water management district when they would need some
22 guidance on how to carry out their responsibilities.
23 Specifically with regard to the Everglades, the
24 South Florida Water Management District was submitting
25 information and carrying on discussions with our staff, and
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1 our staff would actually go down to the water management
2 district to participate in staff level meetings and in some
3 cases sit in on governing board meetings where the
4 prioritization process and the technical approach to
5 development of the Everglades SWIM Plan was being
6 discussed.
7 Q What kinds of issues arose during late '89 in the
8 context of your review of the Everglades SWIM Plan?
9 A The primary areas of focus were on the progress of
10 their SWIM Plan development effort, on the review
11 procedures between the Department and the water management
12 district and on the scope of the SWIM planning effort as it
13 related to the Everglades.
14 Q How did you -- what was the focus on the scope of
15 the effort? What do you mean, "the scope of the effort"?
16 A There were a number of issues. As examples, the
17 water management district's SWIM planning effort for the
18 Everglades could have actually encompassed geographically
19 an area from Orlando to Key West. The whole southern part
20 of the state being somewhat hydrologically connected, the
21 District had to decide how to break that area up into
22 planning units. That is obviously one very broad policy
23 matter that had to be dealt with.
24 They also had to decide from a technical
25 perspective on which areas to focus on, and they began to
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1 direct their area of focus primarily to nutrients and
2 specifically to phosphorus as it related to the
3 Everglades. We discussed that issue.
4 They had a number of other technical issues that
5 they were dealing with that we discussed. For example,
6 there was the issue of exotic vegetation control and
7 perhaps removal within the Everglades, and as a district
8 and under the direction of their governing board, they were
9 trying to decide how to allocate their resources to deal
10 with those problems. They were trying to decide how much
11 of their own resources to put into the process, to combine
12 them with the resources being provided by the State.
13 So those were the general broad issues dealing
14 with the scope of the plan that we were wrestling with at
15 that time.
16 Q You mentioned that they were trying to decide
17 which areas to focus on. You mentioned nutrients and
18 phosphorus and exotic vegetation control. Were there any
19 other areas that they specifically decided to focus on
20 besides those, that you recall?
21 A Well --
22 Q That would be considered technical?
23 A Yes. I think they intended to look at all of the
24 Department's water quality standards, and this is my
25 recollection or my understanding, they intended to look at
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1 all of the Department's water quality standards within the
2 Everglades and their other planning areas. Although they
3 may decide in their prioritization process to focus on
4 certain ones, they were not being required to identify all
5 water quality violations in all parts of the Everglades and
6 develop abatement or protection plans for each of those
7 water quality parameters. Everybody realized up front they
8 couldn't do everything all at once.
9 Q Sure.
10 A That was sort of the prioritization process that
11 we were going through.
12 Q Which water quality standards did they end up
13 focusing on?
14 A Well, I think they primarily focused on
15 phosphorus, as I mentioned before, but I know that they
16 were looking at dissolved oxygen and nuisance species and
17 others that we have mentioned here this morning, some of
18 those as they might relate to -- possibly relate to
19 nutrient discharges.
20 Q Do you know why they decided to focus on either
21 phosphorus, dissolved oxygen or nuisance species?
22 A Well, as they explained it to me, they felt that
23 those seemed to be apparent problems, that there had been
24 concern expressed by them over the years about nutrient
25 discharges or discharges that might contain high levels of
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1 nutrients, and they felt that looking at the relationship
2 between those discharges and the Department's water quality
3 standards was appropriate, and, in fact, if they were able
4 to identify relationships between discharges and some of
5 the Department's standards, that, in effect, they may be
6 able to develop strategies for protection of other
7 Department water quality standards. They felt that some
8 might be related.
9 Q Did you concur in their assessment at the time in
10 your professional capacity with the Department?
11 A I think our policy at that point in time was,
12 first of all, we agreed they couldn't do everything at
13 once. We agreed that there had been concern expressed over
14 nutrients, and that if that is where they wanted to focus
15 their attention first, we did not object to that.
16 We didn't agree that they were necessarily correct
17 in everything they were doing, but it really was our policy
18 to let the governing board and the water management
19 districts prioritize their water bodies and prioritize the
20 problems within those water bodies and begin addressing
21 them, rather than dictate to them that this is what you
22 have to do and this is the way you have to do it.
23 So at that point in time, things were fairly early
24 in the process, and we weren't being asked to agree or
25 disagree that they were on the right track. It was just
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1 that under the SWIM statutes that they were doing what they
2 were supposed to be doing. They might find out they were
3 on the right track or the wrong track once they had
4 completed their studies.
5 Q Did they go through any particular process that
6 you know of in order to prioritize or determine which water
7 quality standards to focus on?
8 A Could you be a little more specific?
9 Q For example, you mentioned they looked primarily
10 at phosphorus and DO, and they looked at nuisance species.
11 How did they arrive at a determination that those were the
12 primary areas to focus on in terms of water quality
13 standard violations?
14 A I am not sure if I can describe the exact process
15 they went through. I will tell you that their technical
16 people who were familiar with Everglades issues discussed
17 internally how to proceed. They discussed it with some of
18 our DER staff people, primarily in our Coastal Zone
19 Management Program. They were more making them aware of
20 what was going on, but the process was for the district to
21 develop strategies that they then presented ultimately in a
22 governing board forum, so -- in a public forum -- and they
23 received, had to receive concurrence from and direction
24 from their executive director and their governing board to
25 follow the process that they took.
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1 Q Are you familiar with whether or not the water
2 management district undertook any scientific studies to
3 determine what the problems were that were ongoing in the
4 Everglades Protection Area specifically in the development
5 of their SWIM Plan?
6 A I can't say I could describe specifically what
7 they initiated to carry out their SWIM responsibilities.
8 They had been involved for many years in studying the
9 Everglades Protection Area, and they did continue that
10 effort. I couldn't identify specific new efforts or
11 emphasis that they initiated specifically for SWIM. But we
12 were -- as the oversight agency, we were funding a lot of
13 their efforts to develop that information they felt they
14 needed for the SWIM process, some of which had been ongoing
15 prior to the development of SWIM.
16 Q Did part of the development of that information
17 concern scientific research on the Everglades being
18 conducted by the water management district?
19 A I believe it did.
20 Q Are you familiar with the nature of any of those
21 scientific studies that might have been ongoing?
22 A Just in general. I, of course, was briefed by my
23 staff on any discussion with the district staff and their
24 reviews of the technical information, and I also
25 participated in several presentations by water management
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1 district staff where they discussed their evaluation
2 efforts, if you will, of the Everglades system.
3 Q Do you have any knowledge at all about how they
4 went about deciding which part of the Everglades to focus
5 on in the Everglades SWIM Plan?
6 MR. HYDE: I am going to object to the form of the
7 question. I don't -- I guess I really don't understand
8 what you mean by which part of the Everglades.
9 MR. HETRICK: He mentioned that part of the
10 process that they were undertaking was to determine
11 which areas to focus on, which water quality standards
12 to focus on and which part of the Everglades to focus
13 on, and I am trying to just find out -- I guess the
14 question would be, which part of the Everglades did
15 they end up focusing on and how did they arrive at a
16 particular area of focus.
17 MR. HYDE: Do you mean geographic areas?
18 MR. HETRICK: Geographic areas. I am talking
19 about geographic areas.
20 THE WITNESS: Okay. Let me see if I can answer it
21 in this way. They, of course, did not determine that
22 they would study the area from Orlando to Key West --
23 BY MR. HETRICK:
24 Q Right.
25 A -- as I mentioned earlier, but they focused in
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1 primarily on the agricultural activities on the southern
2 portion of the lake and their potential or perceived
3 impacts to the water conservation areas and ultimately to
4 the Everglades National Park, so that geographically, that
5 is sort of the area of emphasis that they initially focused
6 on.
7 Q Is that the area that has been designated the
8 Everglades Protection Area, geographically?
9 A I can't say if it is exactly the same as we were
10 talking about in those days, but in general, yes.
11 Q Why did they decide to focus on that area, do you
12 know, as opposed to going all of the way up to Orlando?
13 A Well, a general answer to your general question,
14 they didn't want to bite off more than they could chew with
15 the time and resources that they had. They had to focus in
16 on something that they felt was manageable, given the
17 resources and time constraints, and that was their
18 decision.
19 They decided to, for example, exclude for the time
20 being Florida Bay and the developed east coast of that
21 general geographical area. So again, in general, I think
22 it was more of a what-is-reasonable decision, but I can't
23 say specifically what went into that decision.
24 Q You mentioned that in 1989 and '90 that the
25 Department was primarily -- they began reviewing these
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1 products in various drafts of the SWIM Plan as they were
2 beginning to be submitted back.
3 A That is correct.
4 Q What was the nature of that review?
5 A Well, that is where these decisions were being
6 made or these questions were being asked by the district to
7 which we were responding. For example, their primary
8 emphasis being phosphorus or focus on phosphorus is one of
9 the things that came out of those discussions. The data
10 collection efforts that were underway were being discussed.
11 They were looking within the water conservation areas at
12 certain characteristics of them and possible changes to
13 water quality and biological resources and those kinds of
14 things were being presented to the Department, along the
15 way, sort of an, are we on the right track, in your
16 opinion, given the SWIM legislation; not specifically, are
17 these the techniques we should use, but are we doing what
18 you think is required under SWIM.
19 So the Department had a broad responsibility to
20 oversee that program, but not dictate to the district
21 specifically what they were to do on a specific issue.
22 Q Why was that approach taken? By "that approach" I
23 mean why did the Department not take a lead on more
24 substantive evaluation in the drafts at that time?
25 A Well, it was basically the philosophy of the
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1 Governor and the Secretary of the agency that the districts
2 were given certain responsibilities, and it wasn't our role
3 to tell them exactly how to carry out those
4 responsibilities. It was really the policy of the
5 Department to provide policy guidance to the districts, but
6 not supervise their carrying out of those
7 responsibilities. That was not just a SWIM policy, that
8 carried throughout the Department's relationship with the
9 water management districts, all five of the water
10 management districts.
11 (Discussion off the record.)
12 BY MR. HETRICK:
13 Q When did you first -- I know I already asked this,
14 but when did you first become involved with the SWIM
15 planning process, what period of time? Was it '88?
16 A Well, I knew about it prior to that, but I think
17 our reorganization of the Department was in 1988. I
18 believe it went into effect July 1 of 1988. I think -- and
19 as the new director of the Division of Water Management,
20 the SWIM program came into my division, so that is when my
21 involvement for all practical purposes began.
22 Q Who were the main people that you relied upon in
23 the Department to assist you in evaluating the Everglades
24 SWIM Plan during that period of time?
25 A The primary players were Roxane Dow, who was the
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1 chief of the Surface Water Management Bureau within the
2 division. Her assistant, basically, or deputy bureau
3 chief, I guess you might say, was Bart Bibler, who was a
4 key player. The administrator of the Coastal Zone
5 Management Section was Dave Worley, and then in his
6 section, I believe Gail Sloane and Peggy Mathews, I think,
7 were two of the primary people involved. I am sure there
8 were others, but those were, I think, the key players that
9 I recall.
10 Q I just want to be clear about this. You have not
11 reviewed or examined the adopted SWIM Plan?
12 A That is correct.
13 Q Have you examined or reviewed the technical
14 component of the adopted SWIM Plan?
15 A No, I have not.
16 Q Let me -- two other quick areas. I want to go
17 back for a second. When was your first contact with the
18 League about this case, about six months ago?
19 A At least. It would have been the middle or latter
20 part of the summer of last year. I don't remember a
21 specific --
22 Q Are you presently involved in any other work for
23 the League outside of the scope of this case?
24 A No.
25 Q Have you ever done any work for the League prior
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1 to your involvement in this case?
2 A No. As a consultant, do you mean in the private
3 sector?
4 Q Yes.
5 A No, I have not.
6 Q You mentioned you signed a contract with the
7 Department with regard to the federal Section 404 program?
8 A That is correct.
9 Q Does that involve any interpretation of Department
10 rules?
11 A Yes.
12 Q Can you tell me which rules?
13 A It will primarily -- the study is underway
14 currently. It will focus primarily on the Department's
15 wetland resource management rules, which are referred to as
16 the dredge and fill rules, but inherent in that analysis
17 will be a review of the Department's water quality
18 standards, mitigating provisions, mitigation rules.
19 Q What kinds of interpretations?
20 A Well, we will be asked to compare Florida's rules
21 to the federal rules and policies dealing with dredging and
22 filling and ultimately recommend modifications to the
23 Department rules, the Department's rules to bring the state
24 program more into line with the federal program.
25 Q I am just going to ask you for your recollection.
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1 Can you specifically refer me to any particular rules in
2 the wetlands resource, the dredge and fill, the numbers?
3 Can you give me any specific that come to mind?
4 A The Department's dredge and fill rules are
5 primarily contained in 17-312. That rule deals with the
6 standards for issuance of permits for dredging and filling,
7 and then that rule references the water quality standards,
8 17-301 and 302, where water quality standards and waters of
9 the State are defined.
10 It refers to, I am sure, 17-4 or the Department's
11 other permitting rules, but the primary rule of focus will
12 be 17-312.
13 Q What is going to be your role in this project with
14 respect to mitigation?
15 A Well, one aspect of the Department's permitting
16 program for dredging and filling involves the opportunity,
17 if you will, for an applicant to offer mitigation for
18 impacts to -- for impacts of a proposed dredging and
19 filling activity that might make the project permittable.
20 That is a statutory provision of Chapter 403, and therefore
21 it is incorporated, or language explaining how that process
22 works is incorporated into Chapter 17-312, so that is one
23 aspect of the Department's wetland permitting program that
24 we will be looking at.
25 Q Will you be recommending any changes to mitigation
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1 zones?
2 A I am not sure I understand what you mean by
3 mitigation zones.
4 Q Could recommendations in the 404 study affect
5 site-specific alternative criteria, or --
6 MR. HYDE: I think there is a basic confusion
7 here. There is moderating provisions and mitigation,
8 okay. Maybe I am mistaken, but I always thought it
9 was --
10 BY MR. HETRICK:
11 Q Let me change the focus of the question.
12 Will your study involve any construction of the
13 moderating provisions, including SSACs, variances or mixing
14 zones?
15 A I don't expect it to. The study is being done in
16 support of an application package that might ultimately be
17 submitted to the Environmental Protection Agency. EPA
18 would review that package to determine if the State's
19 wetland program provided at least as much protection for
20 wetland resources as the federal program.
21 EPA has already reviewed and I assume approved all
22 of the current DER water quality standards, including the
23 mitigating provisions, so based on the responsibilities
24 that are outlined in our contract, we don't expect to look
25 at water quality standards or mitigating provisions or
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1 other provisions of the rule such as variances and SSACs
2 and so forth.
3 I guess it is conceivable that in dealing with a
4 wetland issue, EPA might say that the rules or the
5 statutes, Florida's rules or statutes might need to be
6 modified or be more specific in a certain area. None of
7 those issues have been identified as far as I am aware to
8 date, and they are not specifically stated in our contract.
9 We are looking at the Department's wetland
10 identification and permitting procedures which also must --
11 which must ensure the protection of the State's water
12 quality standards, so they are related, but it is not an
13 area that we have direct responsibility for at this point.
14 I guess it is conceivable, though, that those discussions
15 might come up somewhere down the road. They have not to
16 date.
17 Q What is the length of time on this contract?
18 A It will be through November of 1994 and could
19 possibly be extended.
20 Q Have you made any preliminary findings yet?
21 A Yes, we have.
22 Q What are those findings?
23 A We presented recommendations to the Department,
24 which we refer to as our Task 2 report. The first output
25 of our study was a series of recommendations that basically
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1 were to tell the Department if it had been on the right
2 track or not in looking at possible assumption of the 404
3 program and to make recommendations on how to continue from
4 that point on.
5 That report was submitted to the agency, as I
6 said, on November 1, 1992, has been reviewed by the
7 Department, and basically they agreed with it and said,
8 okay, let's go to -- let's go on to Tasks 3, 4 and 4, and
9 we negotiated a schedule for those tasks.
10 Q What is the ultimate goal in this project?
11 A The ultimate goal is for the State to decide if it
12 wants to pursue assumption of the federal 404 program, and
13 if it does, then our team is charged with developing what
14 is called an assumption package. That would be a
15 description of the State's program that would be submitted
16 to EPA in support of a request for assumption. EPA and the
17 other federal agencies would have to review it to determine
18 if it meets the requirements of the Clean Water Act, and as
19 I said earlier, provides the same degree of wetland
20 protection that the federal program now provides.
21 Q Are you in a holding pattern right now until the
22 Department makes that decision?
23 A No.
24 Q So what are you involved with now since you have
25 submitted your initial recommendation?
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1 A Since our Task 2 report, we have developed some
2 proposed changes and modifications to the Clean Water Act
3 that we feel will make it more palatable, easier for the
4 State to, and other states, to assume the 404 program.
5 We have also begun assembling some packages that
6 will be submitted to EPA for preliminary review. Those
7 packages will describe different aspects of the current
8 state program to determine which areas are acceptable as
9 they are and which areas need some modification, either in
10 statute or rule, for EPA and the other federal agencies to
11 be comfortable with it.
12 We are also simultaneously doing a staffing and
13 funding study that involves looking at the federal workload
14 and the state workload as they currently exist and the
15 staffing levels as they currently exist, and we will be
16 identifying the workload, the new workload that would come
17 with assumption of the federal program and the staffing
18 needs that the Department would have to support that new
19 workload, and also we will be recommending possible funding
20 sources for the new staff and the new workload.
21 Q Are you going to be making any recommendations to
22 the State as to whether or not they should assume the
23 federal 404 program?
24 A I believe we will.
25 Q When do you anticipate reaching that point?
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1 A Well, we -- our Task 2 report basically concluded
2 that the Department had been on the right track in terms of
3 pursuing assumption of the 404 program, but in that report
4 we identified certain key issues that we felt needed to be
5 addressed in an acceptable manner, issues that I believe
6 will be negotiated between the Department and the federal
7 agencies, and pending the resolution of those issues, we
8 might be asked to recommend to the Department that they
9 either continue the assumption study or perhaps break it
10 off and decide not to pursue it.
11 Q Could any of those recommendations -- do you
12 anticipate rendering a final report in this study?
13 A Yes, we are required to by contract.
14 Q Could your final --
15 A Excuse me, let me rephrase. The final report will
16 actually be the preparation of the assumption package that
17 would be submitted to EPA, and that is assuming the
18 Department decides to continue on through this basically
19 two-year study and develop that assumption request and then
20 submit it to EPA. If they decide to continue that far,
21 then we are responsible for preparation of that package.
22 Q Could any of your recommendations in the 404 study
23 affect any of the permitting of the anticipated STAs?
24 MR. HYDE: I think that calls for an extremely
25 speculative answer. I am not even sure Mr. Armstrong
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1 knows that much about the STAs or how they would be
2 implemented here. It is certainly well beyond the
3 scope of his designated testimony.
4 BY MR. HETRICK:
5 Q Have you -- are you familiar with the proposed
6 STAs?
7 A Very conceptually.
8 Q Do you know whether or not the STAs will require a
9 404 program?
10 MR. HYDE: I object on the grounds of relevance.
11 MR. HETRICK: I think we are reserving all
12 objections except as to form.
13 THE WITNESS: I do not know.
14 BY MR. HETRICK:
15 Q You mentioned 17-312 as the primary dredge and
16 fill rule that you are concerned with. Are there any other
17 primary rules that you might be concerned with besides that
18 17-312, aside from the incidental 301 and 302 and 17-4, are
19 there any other primary rules that you will be dealing
20 with?
21 Let's put it this way. Are there any rules that
22 you will primarily be focusing on?
23 A No. 17-312 is the primary rule.
24 Q You had mentioned right when we started that you
25 have been deposed before. Have you ever served as an
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1 expert witness before?
2 A Yes, I have.
3 Q On how many occasions?
4 A Roughly, I would say -- first let me ask a
5 clarifying question.
6 Q Sure.
7 A Are you including depositions for cases that might
8 ultimately be settled, or actual testimony before the
9 hearing officer, or the whole process?
10 Q Have you ever served as an expert witness in any
11 case that might have gone to hearing, whether or not it
12 went to a hearing?
13 A Yes, I have, and I would estimate the number at 25
14 to 30.
15 Q And of those, how many, if any, occurred in the
16 past two years in your private sector capacity?
17 A I can think of three right off the top of my head,
18 excluding this process.
19 Q How many hearings have you actually testified in?
20 A Ever, or the past two years?
21 Q Ever.
22 A Probably 10.
23 Q And in the past two years in your private
24 capacity?
25 A One.
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1 Q Let's take -- in the past two years in your
2 private capacity, you have been involved in three cases.
3 What kinds of cases were those?
4 A I can -- I think I can describe each of them. One
5 of them was a case where I represented the City of Lynn
6 Haven on a sewage treatment plant construction permit
7 application, where the Department had published a notice of
8 intent to issue a permit, and a third party intervenor had
9 intervened, and in that one, I testified in -- obviously in
10 favor of the issuance of a permit and did actually testify
11 before a hearing officer in that case.
12 There was another case involving --
13 Q In that case, was that against the Department?
14 A No.
15 Q In favor of the Department?
16 A It was in favor of the Department.
17 I had another case involving a sewage treatment
18 plant where again the Department had published a notice of
19 intent to issue the permit. The third party intervenor had
20 intervened in the proceeding. That case was settled before
21 it went to hearing. I was again scheduled to testify in
22 favor of the Department.
23 I had another case involving a sewage treatment
24 plant discharge permit for the City of Boca Raton where the
25 Department had intended to deny a permit to the City, and I
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1 was retained on behalf of the City to testify against the
2 Department, and that case was settled before it went to
3 hearing.
4 I have another case that I have just thought about
5 that the Department has intended to issue a permit and a
6 hearing has been petitioned for, but no depositions have
7 been scheduled. I don't believe a date has been set, and
8 there are some discussions going on between the parties,
9 but I would be asked to testify on behalf of the Department
10 in that case. That is a dredge and fill marina permitting
11 case.
12 I cannot recall any other right offhand that we
13 worked on the last two years that have actually gone to or
14 started to hearing. I did -- excuse me, I did mention the
15 Lake Okeechobee case earlier which I initially got involved
16 with and then did not continue with, the 298 drainage
17 district issue.
18 Q Did you supply any expert testimony in that case?
19 A No, I did not.
20 Q The Lynn Haven case, the Boca Raton case and what
21 was the other case?
22 A It was called The Moors, M-o-o-r-s.
23 Q They all dealt with sewage treatment plants, is
24 what I have?
25 A Yes. There were some other issues.
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1 Q What I am going to ask you is, were there any
2 common issues among the cases?
3 A Well, all three of those dealt with sewage
4 treatment plants. In the matter of the City of Boca Raton,
5 it was primarily over treatment and disposal. In the
6 matter of Lynn Haven and The Moors, there were some other
7 issues that were involved, primarily dredging and filling
8 and stormwater treatment, that were related to the sewage
9 treatment plant construction and discharge applications,
10 but the primary emphasis was on sewage treatment.
11 In the matter of the dredge and fill case that I
12 mentioned that negotiations are underway for right now, I
13 think it is, if I recall, it is primarily a dredge and fill
14 issue. There weren't any other related issues that I can
15 recall.
16 Q Were any of the issues in those cases similar to
17 your general understanding of the issues in this case?
18 A Could you be a little more specific?
19 Q I really cannot unless we want to go through each
20 case.
21 A Maybe, if you like, I could describe each of the
22 cases. Maybe in a general sense and that might help.
23 In the case of Boca Raton, the issue was primarily
24 over toxicity and whether or not the discharge met the
25 Department's toxicity criterion, the underlying issue being
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1 whether or not chlorine, which was used for disinfection of
2 the waste stream, was causing a toxicity problem at the
3 point of discharge in the Atlantic Ocean.
4 In the case of Lynn Haven, the City had an
5 existing sewage treatment disposal system that had failed.
6 They were applying for permits to expand the -- and upgrade
7 the treatment system and construct and operate a new
8 disposal site at a new location, and again, that was
9 primarily a sewage treatment plant issue, but construction
10 of the distribution system and so forth involved some
11 dredge and fill permits and variances, which had to be
12 considered by the Department, and so there were some
13 related issues there.
14 In the case of The Moors, the original objection
15 by the third party was over the construction permit to
16 build a brand-new sewage treatment plant and disposal
17 system, but in constructing the development the treatment
18 plant was to serve there were some related stormwater
19 treatment disposal issues and dredging and filling issues.
20 All of them, all of those cases obviously related
21 to, not related to, had to consider the Department's water
22 quality standards, for example. That is what the
23 Department bases in part their decision to issue permits
24 on, so they were related somewhat.
25 Q What were the stormwater issues in The Moors
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1 case?
2 A The Moors development, at least the first phase,
3 which is what we were working on, was for the construction
4 of a golf course and a small residential development. The
5 construction of that development was underway, and due to
6 some land clearing activities, there were some releases of
7 turbid water and sediment and some of the parties that had
8 objected to the issuance of the sewage treatment plant were
9 also requesting that the Department take enforcement action
10 for those turbid water releases, which the Department did,
11 and those violations were resolved.
12 Q In each of these cases, what kinds of water bodies
13 were at issue?
14 A In the case of The Moors, they were to discharge
15 into a wetland system that ultimately went into a body of
16 water called Black Creek and then Mulatto, M-u-l-a-t-t-o,
17 Bayou. That is over in the Milton area, western Florida.
18 In the case of Lynn Haven, they were discharging
19 to a spray field, currently discharging to a spray field
20 that had failed and allowed partially treated water to
21 enter -- I don't remember, I think it is East Bay, but in
22 the Panama City area, and they were, they wanted to
23 construct a new treatment or expand and modify the existing
24 treatment plant and build a new distribution line north of
25 Lynn Haven to an inland location where they would discharge
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1 in a wetland treatment system.
2 In the case of Boca Raton, they have an ocean
3 outfall to the Atlantic Ocean.
4 Q For any of these cases, were mitigation zones
5 considered?
6 A I don't understand the term "mitigation zones."
7 Q Was mitigation proposed at all for any of these?
8 A Mitigation pursuant to the Department's dredge and
9 fill rule?
10 Q Pursuant to the dredge and fill rule.
11 A Certainly not in the Boca Raton case. In the case
12 of Lynn Haven, there were some incidental crossings of
13 small wetland systems that would have been required as a
14 result of construction of the distribution system, the
15 pipes to get to the spray field. I don't believe the
16 Department required any mitigation for those dredge and
17 fill impacts. They required restoration of the areas that
18 would be crossed, if I recall.
19 In the case of The Moors, again, I don't believe
20 there were any significant dredge and fill impacts. There
21 were some incidental crossings, culverted road crossings,
22 for example, that had to be constructed or modified and a
23 distribution line had to be constructed, and I believe the
24 Department -- I don't believe the Department required any
25 mitigation for those dredge and fill impacts, just
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1 restoration and stabilization of areas.
2 Q In the Lynn Haven and Moors cases, were the
3 ultimate points of discharge into freshwater bodies?
4 A The ultimate or initial points of discharge?
5 Q Let's say both. The initial.
6 A The initial points of discharge were into -- in
7 both cases into freshwater wetlands. Those wetlands
8 ultimately connected to tidally influenced creeks that ran
9 into bay systems -- well, freshwater creeks that became
10 tidal that then discharged into bay systems.
11 Q For any of these cases, were any form of
12 moderating provisions considered as we have described them
13 in terms of SSACs, which is site-specific alternative
14 criteria, variances or mixing zones?
15 A Yes.
16 Q Which ones?
17 A In the case of Lynn Haven, there was, the
18 Department intended to grant a variance to a prohibition
19 against dredging and filling in Class II waters that are
20 approved for shellfish harvesting.
21 The City proposed to lay their transmission line
22 that would go to the new spray field on the bottom of a bay
23 that was classified for shellfish harvesting, and there was
24 a prohibition against that activity without a variance,
25 against dredging and filling in those bodies of water
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1 without a variance. The Department had intended to issue
2 that variance.
3 Q Did they, in fact, grant that variance?
4 A We lost. The permit was not issued. The
5 Department intended to issue the variance and the permit,
6 but --
7 Q What was your recommendation in that case?
8 A That the permit should be issued.
9 Q And the basis for that recommendation?
10 A Well, the permits -- excuse me, let me rephrase
11 that.
12 There were several permits at issue here. One
13 obviously was the sewage treatment plant construction and
14 ultimately an operation permit. The other was the dredge
15 and fill permit to construct the transmission system that
16 would get to the new spray field, and my recommendation was
17 that both permits should be issued based on the
18 Department's rules and my knowledge in the case, and that
19 includes the issue of a variance which was needed for the
20 dredge and fill permit.
21 Q And the basis for your recommendation?
22 MR. HYDE: I think it was asked and answered.
23 BY MR. HETRICK:
24 Q What about in the case of, The Moors case?
25 A Again, I reviewed the facts of the case, the type
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1 of treatment being proposed, the types of wetlands the
2 discharge would go into, some water quality data that had
3 been collected in and around those wetland systems, and I
4 was prepared to testify in favor of the Department's
5 intended action to issue the permit. The matter was
6 settled with the intervenors in the process, and the
7 treatment plant has now been constructed.
8 Q And in the Boca case, did that have a variance,
9 mixing zone or SSAC?
10 A Yes, it did. The Department had indicated it was
11 not willing to issue a discharge permit for the facility,
12 primarily because of alleged toxicity problems. There were
13 issues of a variance to the Department's toxicity
14 requirements, the potential allowance of a mixing zone to
15 deal with those toxicity problems and so forth.
16 That matter was settled before it went to hearing,
17 and I did not testify.
18 Q What was your -- did you make any recommendations
19 in that case?
20 A Recommendations to whom?
21 Q Pertaining to the granting or denial of the
22 variance.
23 A Well, again, recommendations to whom? I
24 recommended --
25 Q To the City.
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1 A To the City?
2 Q Yes.
3 A I recommended they pursue issuance. I felt they
4 had an application that should result in receipt of a
5 Department permit.
6 Q Was a variance part of the resolution of that
7 settlement?
8 A I can't say. I am not sure of the status of it.
9 The Department and the City agreed to a settlement, and I
10 was not involved in the development of the particular
11 documents and the permit conditions that were being
12 discussed.
13 Q And in The Moors case, was a variance, SSAC or
14 mixing zone part of the settlement, do you recall at all?
15 A I don't believe it was. Let me be a little more
16 specific. The case has been settled. Again, I was not
17 involved in the actual settlement negotiations and ultimate
18 issuance of the permit. The intent to issue the permit
19 that I reviewed and the facts during my involvement, I
20 don't believe involved a need for, a potential need for a
21 variance or SSAC or anything like that, so -- I don't know
22 the ultimate resolution of the case, but at that point in
23 time I don't believe a variance or SSAC was deemed to be
24 necessary, or any other similar provision.
25 Q In any of the other cases prior to these three
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1 that we have been talking about that you were involved in,
2 I believe you said there were a total of 25 or 30 total
3 that you have been involved in over the tenure of your time
4 with the Department, did any of those cases that you recall
5 involve any determinations with respect to site-specific
6 alternative criteria and mixing zones or variances?
7 A Yes.
8 Q How many, approximately?
9 A I am not sure I could answer that. I will give
10 you a rough idea. Probably a third of those, maybe. That
11 is very general. Maybe more than that.
12 Q Could you tell me how many dealt with mixing
13 zones, approximately?
14 A Again, I will just give you a rough estimate of
15 maybe three or four. I am trying to think of specific
16 examples right now. I am drawing a blank.
17 Q Do you recall those three or four examples?
18 A I cannot recall all of them. I remember a number
19 of projects that I worked on, some of which were -- some of
20 which never went to hearing, but were, I would say, in a
21 hearing mode at some point in time and ultimately settled.
22 Q Do you recall when they settled if all of them
23 ended up with mixing zones?
24 A No, I sure don't.
25 Q Did any of them end up with mixing zones?
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1 A I believe so. I am a little vague here. One of
2 my problems is I don't -- I was not involved in issuing
3 permits for these facilities, so in doing analyses for the
4 Department, we had -- we would often look at a number of
5 scenarios, with and without mixing zones, alternate
6 discharge points, and since we were not involved in issuing
7 permits, I don't -- I can't tell you exactly what ended up
8 in a discharger's permit, so I apologize somewhat for being
9 vague, but that is the problem. I don't know the ultimate
10 resolution of a lot of these cases.
11 Q In your capacity as -- was it division director of
12 Permitting?
13 A Yes.
14 Q Did you deal with mixing zones much in the
15 issuance of permits?
16 A Yes.
17 Q Did you make any determinations with regard to the
18 issuance of permits in which mixing zones were an issue?
19 A I will say was involved in formulating the
20 Department's position with regard to mixing zones and their
21 inclusion in permits, yes.
22 Q Let me ask one other question, and we will break
23 for lunch.
24 Prior to this case, have you -- and you mentioned
25 the Boca Raton case, I believe, but have you ever served --
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1 well, let me not make that assumption.
2 Have you ever served besides that case as a
3 witness against the Department?
4 A Well, including the Boca Raton case.
5 Q Is that it?
6 A That is the only case I can recall.
7 Q How about the South Florida Water Management
8 District? Have you ever served as a witness against that
9 entity?
10 A No.
11 Q Have you ever served as a witness against the
12 United States government?
13 A No.
14 Q Okay.
15 A Again, keeping in mind I mentioned the 298 issue
16 which I had some limited brief involvement with them, but
17 that was it.
18 MR. HETRICK: This is a good breaking point.
19 (Discussion off the record.)
20 BY MR. HETRICK:
21 Q Let's go back on the record and let you complete
22 an answer.
23 A As I was leaving the Department, I was listed as
24 a Department witness in issues involving the South Florida
25 Water Management District, the United States and the
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1 Department, and I was actually scheduled for a deposition.
2 I never was called and never participated in preparation of
3 any documents for that case, but I was contacted by the
4 Justice Department and was actually scheduled for a
5 deposition, but as I said, I did not have any direct
6 involvement.
7 Q How were you called, how were you called as a
8 witness?
9 A I am sorry?
10 Q You were called for a deposition at one point?
11 A I was scheduled for a deposition at the request of
12 the Justice Department because I was still listed as an
13 expert witness for DER even though I had left the agency.
14 Q What year was that?
15 A That would have been in 19 -- early 1991. I left
16 the Department in October of 1990, and shortly afterward I
17 was called and listed as an expert for the Department. As
18 I said, I never met with Department attorneys or gave any
19 depositions, nothing ever came of that, but --
20 Q Why were you scheduled, do you know?
21 A Because I was listed as a Department witness.
22 Q Do you know why you were never called?
23 A My understanding is there were settlement
24 negotiations underway and the depositions were suspended at
25 that point in time. Postponed or suspended, I guess, is a
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1 better term.
2 MR. HETRICK: Okay. This is a good breaking
3 point.
4 (Lunch recess.)
5 BY MR. HETRICK:
6 Q Mr. Armstrong, I would just like to go back to two
7 areas real quick, and we will move on.
8 Do you intend to review the SWIM Plan that has
9 been adopted by the South Florida Water Management
10 District?
11 A Not to my knowledge.
12 Q Going back to the 25 to 30 cases that you have
13 been involved in, most of which were with the Department,
14 were there any of those cases that involved water quality
15 runoff from any kinds of agricultural lands which, in turn,
16 caused harm to vegetation and algal communities in the
17 general ecosystem of the discharge area?
18 A Well, I don't remember a specific case, but I
19 think it is probably fair to say that many of the water
20 quality studies that we did involved water quality issues
21 that were at least in part a result of runoff, some of
22 which I am sure was agricultural in nature.
23 As I mentioned as an example, we did a lot of work
24 on the St. Johns River basin, which, of course, has urban
25 and agricultural runoff, and in dealing with water quality
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1 problems on the St. Johns, I am sure that some of the water
2 quality conditions that we were observing were, in part, a
3 result of agricultural drainage.
4 Q Did any focus specifically on nutrient pollution?
5 A Yes.
6 Q How many, approximately?
7 A This, again, will be just a gut reaction to your
8 question, because without trying to recreate all of those
9 cases, I would say probably in the five to ten range.
10 Q Of those five to ten, did any specifically involve
11 phosphorus?
12 A Yes.
13 Q How many?
14 A Probably the majority, if not all of them.
15 Q Did they -- did any of them exclusively focus on
16 phosphorus?
17 A I don't recall any that did. There may have been
18 some, but I don't recall any that did.
19 Q Were there any common threads in terms of issues
20 running through those cases that you could enlighten me on
21 in regard to the nutrient issues that were present in those
22 cases?
23 A I am not sure I understand the question. If you
24 could be a little more specific or maybe restate it? I am
25 not sure what you mean by "common threads."
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1 Q Were there any common issues among each of the
2 cases involving nutrients and specifically phosphorus?
3 What kinds of cases were there?
4 A Well, the common issues I guess for all of them
5 involved the Department's water quality standards and the
6 extent to which nutrients and in some cases perhaps
7 phosphorus either affected a water body's ability to meet
8 those standards or caused problems that might result in
9 other -- in violations of standards.
10 Q Did any of those water bodies consist of any areas
11 within the Everglades Protection Area?
12 A Again, let me be sure I understand. We are
13 talking still about the 25-plus, or any new cases?
14 Q Sure.
15 A Not that I can recall, other than, as I mentioned,
16 the limited involvement in the Lake Okeechobee issues, but
17 I cannot recall any others.
18 Q Do you recall the names of any of the cases that
19 you mentioned that -- and you had mentioned if I remember
20 correctly, and correct me if I am wrong, I think there were
21 five to ten cases involving some form of moderating
22 provisions that you were involved in with the Department?
23 A Probably. That was a rough estimate, but
24 probably.
25 Q Do you recall the names of any of those cases in
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1 particular, excluding the three that we have talked about?
2 A I will try. Most of these related to
3 municipalities or privately-owned sewage treatment plants,
4 because that is where I spent the majority of my time with
5 the agency, and I will name several that I might have to go
6 back and review some of the Department's reports, but if I
7 recall correctly, the City of Lakeland, the City of
8 Sanford --
9 Q Excuse me, when you mention a case, could you
10 identify the time period, approximately, within a year?
11 A I am having trouble with the cases.
12 Q Okay.
13 A The time period -- let me see if I can explain
14 what I have in my mind and what I am trying to relate to
15 you. I spent about 11 years in the Department's wasteload
16 allocation program. I dealt with probably close to 100
17 water quality studies, some of which began in some kind of
18 a litigation process, many of which got settled, so it is
19 very difficult for me to recreate all of these, and I had
20 varying degrees of involvement in each of these cases, but
21 the majority of the cases which I will explain to you or
22 will tell you about were during that 11-year time frame,
23 and the majority of the ones where I had direct involvement
24 were in the later years or the latter period of that 11-
25 year period, when I was in a supervisory role.
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1 There were some cases after that, dredge and fill
2 related cases or cases where I may have been, would have
3 been the director of the Division of Permitting where I
4 might have had some peripheral involvement in an issue, but
5 it is difficult to remember all of them. Nonetheless, I
6 will do the best I can.
7 In the mid-1970s, I spent a lot of time working in
8 the Orlando area. I worked on the Orlando easterly sewage
9 service center, which involved an existing series of
10 treatment plants that discharged into, ultimately into the
11 St. Johns River. Many of those were phased out as a result
12 of our water quality work and replaced with newer, larger
13 central treatment systems, an example being the Iron Bridge
14 facility. Many of those involved considerations of mixing
15 zones or alternate standards where they may have provided
16 some relief to the discharger. Many of them involved
17 litigation, either with third parties or with
18 municipalities.
19 Q Was the discharge into freshwater bodies?
20 A In that particular case, yes.
21 Q Okay.
22 A But as I mentioned to you this morning, many of
23 those were resolved after I had done my technical work and
24 gone on to something else. They resulted in a permitting
25 process or whatever, but most often we considered in our
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1 technical analysis whether or not some type of relief
2 provisions such as a mixing zone or a SSAC or variance
3 might benefit the discharger while still protecting the
4 water quality concerns that we were addressing. So we
5 might look at six or eight different alternatives for
6 treatment disposal, two or three of which might involve
7 some moderating provision as an assumption or foundation
8 for that particular alternative that we were looking at.
9 So your question is very difficult to answer.
10 That is just one example, but to answer the question you
11 asked, the easterly Orlando area we worked on in the
12 mid-1970s, freshwater discharges. We worked on the City of
13 Sanford's discharge to Lake Monroe, freshwater discharge,
14 through, I would say 1979 or 1980, to 1983 period; Lakeland
15 in the 1980s; City of Bartow in 1970; Fort Meade, Bowling
16 Green, and a lot of those discharges on the Peace River
17 basin. Bartow was in a hearing mode, Sanford was in a
18 hearing mode, Orlando was.
19 The Jacksonville area, we worked on many, many
20 dischargers. There was one study that I recall that had, I
21 think it was 115 or over 100 dischargers in the one study
22 area. We ended up in litigation, but in considering those
23 dischargers, we looked at site-specific alternative
24 criteria and mixing zones as a possible relief mechanism.
25 Q In the Jacksonville area, were those within the
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1 freshwater bodies, the discharges?
2 A They were into both fresh water and brackish, I
3 guess, tidally influenced water bodies. The majority of
4 them were into small tributaries which were fresh water and
5 ultimately entered the St. Johns River in the tidal
6 portions. By far the majority of them were in fresh water.
7 The City of Panama City was into a marine system.
8 The City of Tampa --
9 Q When was City of Tampa?
10 A Early 1980s. In fact, we looked at Tampa Bay and
11 Clearwater Harbor, Manatee River and Sarasota Bay, all four
12 in the early 1980s, partially with contractual studies in
13 support of our efforts and partially doing work
14 internally.
15 Q Was there a particular focus in that project?
16 A No. These were all primarily geared toward the
17 development of wasteload allocations for bodies of water or
18 portions of bodies of water, and many of which ended up in
19 litigation where I either was involved in making the permit
20 decision, giving depositions, testifying or all three.
21 The City of Naples, marine or tidally influenced
22 system.
23 Q When was that?
24 A Naples probably was in the 1979-'80 period, maybe
25 early '80s.
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1 Q Did that go to hearing?
2 A I could keep going, but --
3 Q Did that go to hearing?
4 A I don't remember if it actually went to hearing.
5 Q I take it you are very familiar with moderating
6 provisions, then?
7 A Yes, I think I am.
8 Q Let's talk about moderating provisions and
9 specifics. I have some questions on interpretation of
10 moderating provisions, but let's start off with site-
11 specific alternative criteria.
12 Can you explain to me what -- and otherwise known
13 as a SSAC, which is S-S-A-C.
14 Would you explain to me what a SSAC is?
15 A I think I can. When the Department first adopted
16 the water body classification system that I am sure you are
17 familiar with and developed standards that were designed to
18 protect the uses that are associated with each of those
19 different water body classifications, it did not go out and
20 do studies of each and every water body within the state.
21 There was some information known about some water bodies,
22 there wasn't much information on others, but the
23 Department, they took a stab at establishing a water use
24 classification system that it felt was reasonable, but in
25 recognizing the fact that detailed studies were not done of
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1 each and every one of these water bodies, one of the things
2 the Department developed was a provision, a SSAC provision,
3 basically, that would allow the Department, or actually the
4 Commission, the Environmental Regulation Commission, to
5 establish different standards for a water body than those
6 that were generally being applied to that same
7 classification of a water body in other parts of the state.
8 A SSAC is a recognition that certain water bodies
9 don't have the same characteristics as others, and, if you
10 will, shouldn't, but that water body is different, for some
11 reason or another, from many others that you might find in
12 that use classification.
13 Absent those site-specific studies, the provision
14 was written to allow those studies to take place and a set
15 of standards that are water-body-specific to be developed
16 for that situation.
17 Q When did the initial development of those
18 standards come about?
19 A Of the water quality standards?
20 Q Right, consideration of the site- specific
21 alternative criteria.
22 A Oh, gosh. I am not sure if it was in the '79
23 revisions or subsequent to that. It has been in place for
24 quite some time.
25 Q I take it from our prior discussion you have been
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1 involved in policy decisions, in the permitting process,
2 correct me if I am wrong, in the determination of site-
3 specific, the applicability of site-specific alternative
4 criteria to various projects?
5 A Yes, I have.
6 Q Can you tell me how many, approximately, involving
7 SSACs? Let me see if I can narrow this for you.
8 I know that as division director of Permitting and
9 Water Quality, a lot of things came -- and I am going to
10 try to distinguish between what I am talking about in your
11 management function and your technical function. What I am
12 more interested in is, have you been involved technically
13 in the determination of a SSAC on specific projects?
14 A Yes, I have. Back to your earlier question of the
15 number, it is almost impossible to say. As an example --
16 and maybe this will help you -- I mentioned earlier the
17 studies we did in the Jacksonville area where one project
18 might have involved 10 or 12 water bodies and over 100
19 dischargers, but in many cases where we were studying a
20 discharger that went into a canal system, for example, or a
21 semi-stagnant body of water, we would consider as best we
22 could the quality of the water that would exist, in our
23 opinion, in the absence of the discharge, and so often we
24 would consider whether or not the standards that were in
25 place for that classification of water body were
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1 appropriate.
2 Many cases, it didn't matter, because even if an
3 alternate criterion were established for that body of
4 water, the discharger would -- the discharge would still
5 not be acceptable, in our opinion, so --
6 Q Do you recall any specific instances in which you
7 have participated in permits which have gone into
8 litigation over the issue of whether or not a SSAC should
9 be permitted for the body of water that you were
10 considering at the time?
11 A Yes, I can.
12 Q Can you describe them?
13 A One in particular that comes to mind that went
14 into litigation was considered, was for a facility which I
15 believe was called Osceola Services, a privately-owned
16 sewage treatment system that was adjacent to the Walt
17 Disney World property. It is in the Kissimmee basin, with
18 a discharge into a drainage canal system that at times did
19 not meet the normal Class III criteria, and the
20 consideration of a SSAC was, I believe, part of that
21 proceeding.
22 Q What parameters were considered in that case in
23 the determination of the propriety of a SSAC being
24 employed?
25 A In that case, I believe just dissolved oxygen.
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1 Q Are there any other cases that you specifically
2 recall?
3 A I think there was consideration of a SSAC in the
4 City of Sanford case, which was a discharge to Lake Monroe,
5 and I believe also mixing zones. I don't recall whether a
6 SSAC was granted, but I do know that it was considered, and
7 there were discussions about the background quality in that
8 lake system as it related to Class III standards.
9 Again, I think the primary -- one of the primary
10 focuses was the DO standard. I also believe the ammonia
11 standard was, an ionized ammonia standard was of primary
12 concern in that case.
13 Q Are there other parameters that are typically
14 involved in the consideration of the propriety of a SSAC in
15 a specific instance, aside from DO or ammonia?
16 MR. HYDE: I object to the form of the question.
17 I don't think I understood it. Other factors?
18 MR. HETRICK: I said other criteria, I believe.
19 THE WITNESS: Maybe you had better restate it or
20 read it back.
21 BY MR. HETRICK:
22 Q Are there other criteria that you consider --
23 well, are there other parameters involved in deciding
24 whether a SSAC is appropriate, other than dissolved oxygen
25 and potential violations, ammonia?
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1 A Let me ask you, answer your question with a
2 question, and then I will answer it again.
3 Are you asking whether or not in the cases in
4 which I have been involved that is a situation, or whether
5 other parameters can be considered?
6 Q Whether other parameters can be considered.
7 A As far as I understand, yes, other parameters can
8 be considered.
9 Q What would those other parameters be?
10 A It could be any of the other water quality
11 standards that would meet the conditions of a SSAC.
12 Q Are SSACs issued or considered by the Department?
13 A Both, yes.
14 Q Who bears the responsibility, or who -- does the
15 permittee have the responsibility to request a SSAC, or
16 does the Department initiate a SSAC?
17 A I would say the majority of the SSACs requested,
18 that I am familiar with, were requested by the permittee,
19 but I don't think there is anything that precludes the
20 Department from consideration of whether a SSAC would be
21 appropriate, and in reality in the ones that I was involved
22 with, there was generally discussion between the Department
23 and an applicant or a discharger that might include not
24 only SSACs but other moderating provisions. The Department
25 might -- in the past, the Department might have said to an
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1 applicant, this may or may not be appropriate, but if you
2 would like to pursue it, you may want to gather some
3 background information and submit it to us per request.
4 That is kind of the way it worked with most often.
5 Q The two cases you mentioned, the City of Sanford
6 case and the case previous to that, when did they occur,
7 about?
8 A The Osceola Services case would have been about
9 1985, mid-1980s, '85, '86, something like that. Sanford
10 went on for a number of years, off and on, but I think the
11 litigation that we were discussing earlier was probably in
12 the 1982-'83 period, something like that, maybe 1983.
13 Q Let's get into generally -- describe to me what
14 the purpose of a SSAC is.
15 A I think I just did.
16 MR. HYDE: Asked and answered.
17 BY MR. HETRICK:
18 Q What types of problems are they sought to address,
19 typically?
20 A Types of problems?
21 Q Are there typical problems that a SSAC is sought
22 to remedy?
23 A I am not following you. Are you speaking of water
24 quality problems or problems a discharger might be having,
25 or --
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1 Q Let me be more specific. Specifically in
2 reference to water quality violations, are there typical
3 water quality violations that SSACs are considered for?
4 A Well, if I understand your question, I think I do,
5 or let me answer it this way and see if I am following you.
6 The majority of the SSACs that I am familiar with probably
7 considered dissolved oxygen, because I think the majority
8 of the water quality studies the Department conducted dealt
9 with dissolved oxygen. That didn't mean other parameters
10 weren't involved, like ammonia that I mentioned earlier.
11 Q Right.
12 A But that is probably the standard that the
13 Department spent the most amount of time working on, and it
14 is probably one of the more widely accepted in terms of the
15 techniques that are used to address it, and in addressing
16 the DO standard, the Department probably since addressed a
17 lot of other standards that might be of concern as a result
18 of the discharge or some activity.
19 Q Why did they focus on the DO standard? Why is
20 that the -- how is that -- how is the DO standard solving
21 other problems?
22 A Well, many of the studies that we did to address
23 DO resulted in a decision on the part of the discharger to
24 pursue alternate methods of treatment and disposal. There
25 is a known water quality problem. It was fairly easy to
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1 address, in a technical sense, using fairly widely accepted
2 techniques, and the result forced the discharger to do
3 something else, to cease discharge and go to an alternate
4 method of disposal.
5 In solving that problem, then other problems that
6 might have been associated with that discharge went away or
7 at least were transferred to some other place.
8 Q Do SSACs require approval from the federal
9 Environmental Protection Agency, to your knowledge?
10 A It is my understanding that standards changes,
11 standards modifications, which is what a SSAC is, are at
12 least supposed to be routinely submitted to EPA and
13 approved by them. The Department did at various points in
14 history and didn't at other times, but I believe it is a
15 requirement they are submitted to EPA, or at least they
16 were. I don't know what is happening in the recent past.
17 They were fairly routinely submitted to EPA for review.
18 Q Is EPA rendering any decisions or conclusions with
19 regard to the issuance of a SSAC to a particular water
20 body, or do they submit recommendations to the Department
21 on whether to issue the SSAC, or which of those, if any,
22 apply?
23 A It was my experience when I was with the
24 Department that EPA commented on some and not on others.
25 Q Were their comments viewed by the Department as
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1 merely comments, or were they directives, were they
2 enforceable recommendations on the part of the EPA?
3 MR. HYDE: Objection; calls for a legal
4 conclusion.
5 THE WITNESS: Could you repeat the question,
6 please?
7 MR. HETRICK: Would you read it back?
8 (Whereupon, the court reporter read the pending
9 question.)
10 BY MR. HETRICK:
11 Q In your experience with these rules.
12 A In my experience, many of them that were --
13 many -- some that were submitted to EPA were never heard
14 from again. The ones that -- there were some that were
15 discussed usually in advance with EPA. If there was a SSAC
16 proceeding in progress that might have become particularly
17 controversial, EPA knew about it in advance, and they were
18 involved in discussions over whether or not a standards
19 modification would be appropriate.
20 EPA was frequently, most often, I would say, in a
21 position to consider a federal discharge permit for the
22 same facilities that we were working on, so we were not
23 doing our work in a vacuum. They were aware of the work we
24 were doing. We had an agreement with EPA that we not only
25 would transmit to them any material on a SSAC, but the
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1 water quality studies that were underway for a particular
2 water body, which may have included a SSAC or variance or
3 mixing zone or some other type of provision.
4 So those documents that I mentioned earlier that
5 were written up by the Department were submitted to EPA,
6 some of which we received comments on and some we did not.
7 Q Do you recall which DER SSACs received approval
8 from the EPA?
9 A No, I sure don't.
10 Q Do you know what went into the determination of
11 whether or not a SSAC would be submitted to the EPA for
12 consideration?
13 A I think the general feeling was that we should
14 have been sending all of them up there. It just wasn't
15 happening all of the time. There were a number of
16 permitting activities going on all over the state, and, in
17 fact, we spent quite a bit of time trying to get a real
18 good feel for what all was going on in terms of issuance of
19 variances and SSACs and mixing zones and trying to get all
20 of that information compiled into one data base so we could
21 do a better job in submitting it to EPA.
22 Q How many SSACs do you recall were submitted to EPA
23 in your --
24 A I couldn't tell you. They may have come from
25 several sources within the agency.
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1 Q Does the EPA have a general policy on approval or
2 disapproval of SSACs that you are familiar with or that you
3 were familiar with in your experience with the Department?
4 A I couldn't say that they do or not.
5 Q Are you aware of any SSAC proposals that have
6 been considered by the Department or made concerning any
7 area of the Everglades Protection Area?
8 A Could you repeat that?
9 MR. HETRICK: Could you read it back?
10 (Whereupon, the court reporter read the pending
11 question.)
12 THE WITNESS: No.
13 MR. HETRICK: I have brought a set of rules I
14 would like to have him go through, I would like to walk
15 through the rules. Do we need to attach those as
16 exhibits?
17 MR. HYDE: Identify the rules. Before I came
18 here, I got a copy of the current edition of 17-4 and
19 17-302. Would you identify them by whatever you use on
20 those rules, identify them by the date.
21 BY MR. HETRICK:
22 Q I give you this.
23 MR. HYDE: Just for everyone's edification, the
24 Information Services Office has the same version of
25 17-302, printed up like this, and it is a lot easier to
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1 refer to.
2 MR. HETRICK: You are right.
3 BY MR. HETRICK:
4 Q Let's turn to 302.800. Do you have that?
5 A Yes, I do.
6 Q It says there in subsection (1) that a water body
7 or portion thereof may not meet a particular ambient water
8 quality criterion specified for the classification due to
9 natural background conditions or man-induced conditions
10 which cannot be controlled or abated.
11 Does the natural background reason for a SSAC mean
12 that a SSAC can be issued because of a violation of a Class
13 III water quality criterion?
14 A I don't follow the question.
15 Q Let me -- assuming you have a natural background
16 condition that would allow the issuance of a SSAC for a
17 specific body of water, would you also have to take into
18 consideration Class III water quality standards, potential
19 violations of those standards as to whether or not to issue
20 that SSAC?
21 MR. HYDE: I didn't understand that question.
22 THE WITNESS: I am not sure I understood it any
23 better.
24 BY MR. HETRICK:
25 Q Let me ask it this way. Suppose that -- well,
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1 describe to me how the natural background -- how the
2 natural background situation works in regard to the
3 issuance of a SSAC.
4 A Let me -- I will try to do that and maybe give you
5 an example of it, of a very obvious situation.
6 Q Okay.
7 A If the quality of a water body, in your example,
8 let's say a Class III water body, was such that a
9 particular standard was not met and there was no obvious
10 manmade cause of that problem, a discharge pipe, for
11 example, and the quality, that same quality would exist in
12 the absence of man's activities, the water body can be said
13 to be in a natural condition and it still didn't meet one
14 of the Class III criteria.
15 Q Right.
16 A Dissolved oxygen.
17 Q All right.
18 A Then it may be appropriate to issue a SSAC to
19 establish a new, more appropriate standard for that water
20 body that would reflect the natural condition. An example
21 might be a spring run, an example might be a spring run
22 where the water coming out of the ground and flowing down a
23 spring might not have any discharges to it, manmade
24 discharges to it, or any other man-induced effects that
25 result in that particular water quality, but it might still
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1 be below the Class III standard for DO, let's say, and
2 therefore, another standard, an alternative standard, might
3 be more appropriate. Does that answer your question?
4 Q Is that based on the best scientific information
5 available to the Department?
6 A Well, yes. I wouldn't base it on the worst. Yes.
7 Q So, in essence, what you are saying, correct me if
8 I am wrong, is that you are creating a modification or an
9 alteration to what otherwise would be a Class III standard
10 by issuing the SSAC because of natural background
11 conditions?
12 A Right. Based on the site-specific conditions for
13 that water body, which may not have been studied, going
14 back to my earlier explanation, it may not have been
15 studied when the body of water was first designated as a
16 Class III, and upon further study, the scientific
17 information that we talked about, the Department may feel
18 that a more appropriate -- that a different standard is
19 more appropriate, and so, yes, then the standard could be
20 modified to reflect that.
21 Q Are you familiar at all with the S-5A, the
22 location of the S-5A, S-6, S-12 or S-333 pump stations down
23 in the EPA, generally?
24 A Generally.
25 Q Have you had any experience at all in determining
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1 whether or not any kinds of discharges of phosphorus
2 nutrients from those structures would be eligible for a
3 SSAC because of the natural background reason?
4 A I can't say that I have formed an opinion about
5 whether they would qualify for a SSAC under the conditions
6 that you have expressed. Perhaps a SSAC could be
7 considered, but I have not determined whether it would or
8 would not be appropriate.
9 Q And the basis for considering a SSAC down in those
10 areas, would you go back to the rule and look at the rule
11 to determine whether or not a SSAC is appropriate to be
12 issued down in those?
13 A Sure.
14 Q Can you explain in this rule 302.800 what is
15 meant by "man-induced conditions that cannot be controlled
16 or abated," and can you give any examples that you have
17 been involved with specifically?
18 A Sure. There are many water bodies in the state
19 that were created by man's activities or highly modified by
20 man's activities, the obvious example being the creation of
21 a dredged canal. Many of these water bodies that were
22 created by man's activities don't meet all of the water
23 quality standards, and would not, regardless of what you
24 did, short of filling them in and making them something
25 other than a water body. In many cases, it is not
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1 reasonable to expect those canals to be filled in, yet if
2 they don't meet the applicable water quality standards,
3 then perhaps alternate standards are appropriate,
4 recognizing the fact that these water bodies don't function
5 like most other water bodies of the same classification.
6 That is one example.
7 Q What kinds of alternate factors would --
8 A Alternate factors?
9 Q Isn't that what you -- I think that is how you
10 characterized it, factors that you considered?
11 MR. HETRICK: Would you read back the last part of
12 that answer?
13 MR. HYDE: I think he said alternative criteria.
14 MR. HETRICK: I am sorry.
15 BY MR. HETRICK:
16 Q If you could turn to 17-302.200, parens (12), end
17 parens --
18 A 200, sorry?
19 Q .200, parens (12), end parens, the definition,
20 where it talks about man-induced conditions.
21 A Yes.
22 Q Are you familiar with that?
23 A Yes, I am.
24 Q Is it your understanding that each of these
25 factors, (a), (b) and (c), that is listed in that rule are
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1 independent tests, or do all of those factors have to be
2 present in order for a SSAC to be issued based upon man-
3 induced conditions?
4 A I am not sure if you didn't ask a two-part
5 question, but it is my understanding since the factors are
6 preceded by the word "and," it would be that each of those
7 has to be met, not one or the other. Was that your
8 question?
9 Q Yes, that was my question.
10 A All right.
11 Q Can you tell me what kinds of conditions might
12 meet these three types of tests? I can give you an
13 example. Industrial point source discharges.
14 A I was doing fine until you gave me an example.
15 Can I use my example of a canal --
16 Q Yes.
17 A -- that has an industrial point source discharge
18 into it?
19 The first test is, would those conditions remain
20 after removal of the point source. Obviously, you would
21 look at the resultant water quality with the removal of the
22 industrial discharge. What would the conditions be without
23 the discharge into that canal system? In my example
24 earlier, (b) involves the conditions that would exist after
25 the imposition of best management practices for non-point
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1 sources. You would look at the stormwater runoff that
2 might be entering that canal system and try to determine
3 what water would result if you provided BMP levels of
4 treatment, best management practices levels of treatment
5 for the non-point sources entering the canal system, and
6 third, you would look at physical alteration of the water
7 body, for example, filling in or partially filling in or
8 recontouring the canal system, which might be a
9 possibility, to improve water quality, but you would have
10 to factor that against the, as it says, the reasonable
11 relationship between economic, social and environmental
12 costs and benefits of restoration or physical alteration;
13 for example, that canal system has been developed by a
14 residential development, people bought the lots, built
15 their houses, in many cases may even own a portion of the
16 canal bottom, and it is not reasonable to expect the State
17 to require that canal to be filled in.
18 Does that answer your question?
19 Q Yes. Are these criteria all related to point
20 source discharges, specifically, or do they also encompass
21 non-point sources?
22 A They encompass non-point sources as well.
23 Q Let me just ask you a couple more questions with
24 regard to this sub (12). Can you describe for me what the
25 phrase in sub (a), "removal of all point sources," means?
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1 A In a general sense, point sources are considered
2 to be discharges that would come out of a discrete point of
3 discharge, a pipe usually, generally taken to mean, and
4 examples we have been talking about earlier, sewage
5 treatment plant, your example of an industrial source,
6 removal would mean basically stop, ceasing the discharge
7 from that point source and taking it somewhere else;
8 plugging the pipe, so to speak.
9 Q So this terminology, "removal of all point
10 sources," would, in effect, mean plugging the pipe in the
11 particular situation you were looking at, is that an
12 accurate characterization?
13 A Yes.
14 Q And that needs to be done prior to meeting the
15 first test of that definition? In other words, it says
16 after removal?
17 A It needs to be considered. It doesn't mean the
18 pipe has to be physically plugged, but that is one of the
19 things that is required to be considered.
20 Q To your knowledge, if sources in the EAA already,
21 sources of discharge, I am referring to, enter the EAA,
22 have they already implemented the best management practices
23 contemplated in this definition?
24 A I don't know.
25 Q Do you anticipate rendering any kind of opinion as
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1 to the propriety of the issuance of a SSAC in the
2 Everglades -- in the EPA area?
3 A I believe my testimony might be toward the
4 appropriateness of consideration, not whether or not the
5 SSAC should be issued, or if in fact it is issued, for
6 which parameters and for which level for those parameters.
7 Q Have you reached any final opinions on whether a
8 SSAC should be -- would be appropriate for issuance in any
9 portion of the EPA?
10 A No.
11 Q Do you anticipate evaluating further data in the
12 future that might lead you to the conclusion that a SSAC
13 would be appropriate for consideration?
14 A I don't intend to review data for development of a
15 specific SSAC.
16 Q Can you tell me what factors might go into
17 consideration as to whether or not a SSAC should be
18 considered for any portion of the EPA?
19 A Well, if standards are not being met, then I think
20 the next question is why, and if there is concern that
21 those standards would not be met, either naturally or due
22 to man-induced conditions that might meet these tests, then
23 it might be appropriate to consider the establishing of a
24 SSAC for one or other parameters.
25 Q Do you have any knowledge at all as to whether or
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1 not SSACs were considered for the Everglades Protection
2 Area, any portion of that area, by the South Florida Water
3 Management District in its development throughout the
4 course of the SWIM planning process that you were involved
5 in?
6 A I do not.
7 Q You have no knowledge?
8 A No, not specifically.
9 Q Let's go to variances. Can you tell me first of
10 all what a variance is and how it differs from a SSAC?
11 A In a simplistic sense, in my opinion, a variance
12 is a recognition, like with a SSAC, that a water body does
13 not meet a particular water quality standard or group of
14 standards, and maybe the standard is appropriate, but the
15 Department should not require a discharger or an activity
16 to comply with that standard. It is a recognition that
17 maybe the standard is a correct standard, but the means or
18 costs for achieving compliance with that standard are not
19 reasonable.
20 Q Are they more typical in terms of issuance than
21 SSACs?
22 A More frequent?
23 Q More frequent, more frequently issued by the
24 Department than SSACs would be?
25 A I can only, of course, speak to my experience, and
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1 I would say there were probably more variances issued than
2 SSACs.
3 Q Would you have any idea on the average how many
4 variances the Department might issue per year in your
5 experience?
6 A I really would not.
7 Q What types of -- is -- can you identify what types
8 of facilities they would be issued for, typically?
9 A Well, they could be issued for a number of
10 activities or facilities. As an example, one that I was
11 frequently involved with was in the dredging and filling
12 process where a water body did not meet a standard. One of
13 the tests for receiving a dredge and fill permit was
14 compliance with that standard, but it would have been
15 unreasonable to either deny the permit or require the
16 applicant to try to bring the water body in compliance with
17 a standard.
18 An example would be an application by the State
19 Department of Transportation to relocate a canal for road
20 widening. The existing canal didn't meet a standard, the
21 new canal wouldn't meet the standard, yet it was in the
22 public interest to widen the road, and coupled with the
23 permit to do the dredging and filling would be a variance
24 to recognize that water quality prior to the project didn't
25 meet standards, water quality during and after the project
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1 wouldn't meet standards, but this applicant wasn't
2 necessarily the cause of the problem and couldn't bring the
3 water body into compliance with that standard.
4 It was a way, basically in a short-term sense, to
5 waive the imposition of that standard requirement.
6 Q Is the waiver of the imposition of that standard
7 indefinite, or does it have a time limit on it?
8 A For the most part, they are time limited.
9 Q What is the typical --
10 A Two years.
11 Q Two years?
12 A Yes.
13 Q Are you aware of any which were issued for an
14 indefinite period?
15 A I don't believe I am.
16 Q Do you have any knowledge as to whether or not
17 variances have been considered by the South Florida Water
18 Management District for any portion of the Everglades
19 Protection Area?
20 A I don't know of any specific consideration.
21 Q Do you intend to offer any opinion as to the
22 appropriateness of the issuance of a variance in any
23 portion of the Everglades Protection Area?
24 A As I said before, only that they be, given a set
25 of circumstances, is it appropriate to consider a variance
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1 as one tool in the regulatory process.
2 Q Do you have any particular circumstances in mind
3 that you could enlighten me on in which it might be
4 appropriate to consider a variance, any portion of the
5 Everglades Protection Area?
6 A Not in a specific sense. I mean, obviously, if it
7 was shown that there were violations of standards, a
8 variance might be one of the considerations that could go
9 into a regulatory scheme, but I don't have any specific
10 situation in mind.
11 Q Who might assist you in identifying appropriate
12 circumstances in which to consider a variance for any
13 portion of the Everglades Protection Area?
14 MR. HYDE: Who?
15 MR. HETRICK: Yes, a person.
16 MR. HYDE: A person within DER?
17 MR. HETRICK: DER or anybody.
18 BY MR. HETRICK:
19 Q Would you consult with anyone?
20 A Well, it depends on who asked me to consider it.
21 If I was asked to consider the appropriateness of it, then
22 I would try to collect information from all sources, and
23 that goes back to the best scientifically available
24 information. I guess the answer is, whoever asked me to
25 consider it.
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1 Q I guess I am speaking more in terms of who you
2 would consult to render an opinion, who you would consult
3 to assist you in rendering an opinion as to the appropriate
4 circumstances in which a variance should be considered for
5 the Everglades Protection Area.
6 A I am sorry, I am not following the question. If
7 you are asking for a specific person --
8 Q Would you undertake the data investigation
9 yourself? Would you undertake personal field studies?
10 A Probably not. I do not foresee that as part of my
11 involvement in this matter.
12 Q Do you anticipate evaluating any data in the
13 future that may lead you to the conclusion that a variance
14 may be appropriate for any portion of the Everglades
15 Protection Area?
16 A I think as I said when we first started this
17 morning, I don't anticipate that at this point. I guess it
18 could come to that, because I have done that in the past,
19 but I don't anticipate it at this point.
20 Q And to this point, you have not evaluated data to
21 render an opinion in that regard?
22 A I have not.
23 Q For any portion of the EPA?
24 A I have not.
25 Q Do you have 17-4? Is one of these 17-4 before
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1 you?
2 A Yes, it is. This is a December 21, 1992 edition,
3 so we are all working off the same version.
4 Q That is the same edition I have, too. Let's talk
5 about mixing zones, I think in 17-4.244, and let's just for
6 your reference describe to me in general your understanding
7 of what a mixing zone is.
8 A Okay. In a simple sense, a mixing zone is a
9 recognition by the Department that a discharge should not
10 necessarily have to meet all water quality standards within
11 or at the end of the pipe; in a simple sense, that the
12 Department recognizes that it may need to allow some
13 opportunity for the mixing of that discharge with State
14 waters before the Department would measure compliance with
15 state water quality standards.
16 Q Were you involved in the development of these
17 provisions when they were first drafted?
18 A Yes, I was.
19 Q What is your -- have they evolved along the way,
20 have they changed, or are they the same now as when you
21 first --
22 A It changed some.
23 Q Why don't you tell me how they have changed, in
24 general?
25 A I am not sure I can.
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1 Q Are there any significant conceptual changes in
2 how a mixing zone works from when they were first drafted
3 to your understanding of how they work now?
4 MR. HYDE: I think the best evidence of the change
5 is looking at the prior drafts and prior provisions of
6 the rule.
7 MR. HETRICK: I would like to get a feel if he has
8 any understanding of particular changes along the way.
9 THE WITNESS: I think my sense of things is the
10 general concepts have not changed. I think the rule is
11 more specific and I am sure lengthier than the earlier
12 versions, but I think the basic concept was still the
13 same. I think that was your question.
14 BY MR. HETRICK:
15 Q And you have had to interpret these provisions
16 many times?
17 A Yes.
18 Q Will you look to (1)(a), 17-4.244, parens (1)(a)?
19 Can you explain to me what is the meaning of the phrase,
20 "The Department may allow the water quality adjacent to a
21 point of discharge to be degraded to the extent that only
22 the minimum conditions described in 17-3.051 apply," and
23 then within a limit it goes on? I am focusing on the term
24 "may."
25 A Well, I guess the answer is, the granting of a
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1 mixing zone is not automatic, it is not required of the
2 Department. Certain tests have to be met, and the rule
3 then goes on to identify those.
4 Q Who generally initiates a mixing zone?
5 A When you say initiates, are you -- what are you
6 meaning?
7 Q Who initiates the proposal for a mixing zone or
8 who gets the process underway, what entity?
9 A In my experience with the Department, which was
10 some time ago, generally the initial analysis to determine
11 whether a mixing zone might be appropriate was done by the
12 Department. An official request, written request usually
13 ultimately came from the discharger, but it may have been
14 after informal discussions with the Department.
15 Q Are you aware of any circumstances in which the
16 Department initiated a mixing zone?
17 A A mixing zone was studied, or --
18 Q Initiated a specific one and granted one.
19 A Without some kind of request?
20 Q Exactly, without a request.
21 A Not that I am aware of.
22 Q If the minimum requirements for a mixing zone are
23 met, must the Department issue the mixing zone?
24 MR. HYDE: Objection; calls for a legal
25 conclusion.
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1 BY MR. HETRICK:
2 Q Let me see if I can rephrase it. In your
3 experience with mixing zones, have you experienced
4 situations in which the minimum requirements for mixing
5 zones were met, but the Department did not issue a mixing
6 zone?
7 A I don't recall any.
8 Q Let me just ask one other question along this
9 line. If you look at sub (a) --
10 A Yes.
11 Q -- it talks about the Department may allow water
12 quality, blah blah blah, and then down at the very last
13 sentence before sub (b) it talks about, "However, no mixing
14 zone or combination of mixing zone shall be allowed to
15 significantly impair any of these designated uses of the
16 receiving body of water."
17 How do those two provisions fit together? Explain
18 to me your understanding of the correlation between them.
19 A Well --
20 Q For my edification.
21 A As I understand it, that is a requirement that
22 must be met in determining whether or not a discharger can
23 receive a mixing zone, then it would work in concert with
24 the first part of sub (a). If the granting of a mixing
25 zone significantly impaired a designated use, then it
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1 should not be allowed by the Department.
2 MR. HETRICK: Could you read the last answer,
3 please?
4 (Whereupon, the court reporter read the requested
5 portion.)
6 BY MR. HETRICK:
7 Q Tell me, does every permitted facility, is a
8 mixing zone considered in every instance for every
9 permitted facility?
10 A I can speak to the ones that I have been involved
11 with, and the answer is no, a mixing zone is not considered
12 for every facility, that I am aware of.
13 Q Why would it not be considered for, in a
14 particular situation for a permitted facility?
15 A Well, from the discharger's perspective it might
16 not necessarily be helpful, and from the Department's
17 perspective it might not necessarily be something the
18 Department would feel it needed to consider or allow.
19 Q Could you give me an example for the discharger,
20 how it might not be helpful?
21 A Sure. The quality of a discharge may meet the
22 Class III standards, and a mixing zone may not provide them
23 any relief from treatment requirements.
24 Q Did you participate or do you have any knowledge
25 in your experience with the Department in situations, do
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1 you have any knowledge of situations in which mixing zones
2 were requested by a permittee but not granted by the
3 Department?
4 A The best answer I can give you is I am almost
5 positive there were situations. I cannot recall specific
6 ones at this point, but I am fairly certain there were some
7 that were at least discussed with dischargers, whether
8 there was a formal written request or not, and I don't
9 believe -- I am fairly certain that some of those were not
10 ultimately granted.
11 Q Is there a typical scenario or type of situation
12 -- I recognize this is a general question, but maybe there
13 is not, but is there a typical scenario that, for which a
14 mixing zone might be requested but the Department looks at
15 it and determines it is totally inappropriate?
16 A Well, let's see.
17 Q Let me rephrase the question.
18 Can you tell me what scenarios might exist for a
19 mixing zone to be totally inappropriate?
20 A In a simple sense, a discharger might request a
21 mixing zone in lieu of providing higher degrees of
22 treatment. The discharger might feel it is unreasonable to
23 provide that additional treatment, or economically
24 unfeasible, and the Department might disagree.
25 Q What higher degrees of treatment might there be
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1 or might you have been referring to that come to mind in
2 your statement? Give me some examples.
3 A It could be an industrial source that has a metals
4 violation, it doesn't meet standards. A discharger might
5 request a maximum allowable mixing zone under the rule,
6 claiming that the additional degree of treatment for metals
7 removal and their waste treatment would be too costly, and
8 instead of requesting either a variance or providing
9 additional treatment or something like that, they simply
10 request a mixing zone to allow for that mixing or dilution
11 in the receiving body.
12 The Department might feel that they should improve
13 their treatment and request a less extensive mixing zone or
14 no mixing zone.
15 MR. HYDE: Could we take a break before four
16 o'clock?
17 MR. HETRICK: Sure. We can take a break now.
18 (Brief recess.)
19 MR. HETRICK: Back on the record.
20 BY MR. HETRICK:
21 Q If I could refer you, Mr. Armstrong, to 17-4.244,
22 parens (1), parens (c), do you have that provision?
23 A Yes, I do.
24 Q It says there that, at the beginning of that
25 sentence, quote, "Except for the thermal component of
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1 discharges and nitrogen and phosphorus acting as
2 nutrients," and that is as far as I will take my quote.
3 I would like you to explain to me what is meant by
4 the phrase, "nitrogen and phosphorus acting as a
5 nutrient"?
6 A Well, the phrase, itself, refers to a situation
7 that I was discussing this morning where the Department has
8 historically looked at nitrogen and phosphorus as nutrients
9 that can cause certain effects in a water body. The
10 inclusion of this phrase here, as I recall, is a wet
11 condition in the sense that effects of nitrogen and
12 phosphorus in a water body might not necessarily be
13 expressed like other water quality constituents might; for
14 example, nitrogen and phosphorus acting as nutrients might
15 cause an effect far removed from a discharge point, for
16 example.
17 Q How far away from a discharge point? Is there any
18 outside limit that the Department would apply to determine
19 how far that impact may result?
20 A There is no -- as far as I know, there is no
21 criterion or magic number that would dictate that.
22 Q Do you know if -- first of all, you were
23 experienced in, you were involved, I guess, if I recall you
24 saying, correct me if I am wrong, in the development of
25 these provisions when they were drafted, is that correct?
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1 A That is correct.
2 Q Do you know if -- did you participate in the ERC
3 hearings as this rule developed?
4 A I don't believe I actually presented testimony at
5 an ERC hearing. I believe I may have been sitting in on
6 portions of or a portion of the hearing for the ERC, but I
7 did not directly participate.
8 Q Do you know if mixing zones were -- mixing zones
9 provisions were intended by the Department or the ERC to be
10 applicable to nutrients?
11 A I don't think that there was -- I don't remember
12 this to be a provision as a mixing zone for nutrients, a
13 recognition of the fact that nutrients don't necessarily
14 behave as other water quality parameters --
15 Q How are they different from other water quality
16 parameters? How do they behave differently?
17 A As I said, the effects of nutrient discharges
18 might be removed in time and distance from the discharge
19 point, so the normal considerations for mixing zones might
20 not be applicable in a case of nutrients.
21 Q To your knowledge, in your experience with the
22 Department, has the Department ever applied the mixing zone
23 provisions of 17-4.244 to nitrogen or phosphorus acting as
24 nutrients?
25 A I am not aware of any case where the Department
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1 applied those provisions.
2 Q In your opinion, based on your understanding of
3 these mixing zone provisions, do you have a view as to
4 whether or not mixing zone -- these mixing zone provisions
5 could be applied to nitrogen or phosphorus acting as
6 nutrients?
7 A When you say "these mixing zone provisions," you
8 are talking about that section of the rule?
9 Q That is correct.
10 A I think they could be applied.
11 Q How could they be applied?
12 A Well, I am not sure if I could give you a specific
13 answer, but I think the Department could consider the
14 criteria within the rule and the intent of the mixing zone
15 language and determine if a mixing zone might be
16 appropriate in a certain situation.
17 For example, we have talked earlier about
18 protection of designated uses and so forth. I think the
19 test could be applied, although I don't know that that has
20 been done in the past.
21 Q In order to apply such a test, would actual
22 dimensions of an area have to be determined?
23 A Of an allowable mixing zone?
24 Q That is correct.
25 A Yes. It would be my interpretation that the
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1 Department would have to specify the boundaries of that
2 mixing zone and the characteristics to be met within and
3 outside of that mixing zone.
4 Q And if mixing zone provisions were to be applied
5 to nutrients, how would those dimensions be determined, in
6 your view? How would the Department go about conducting an
7 analysis to determine the dimensions?
8 A I am not sure I can answer that. I think it
9 would depend on the nature of the activity and the nature
10 of the water body that the Department was looking at, and
11 as I said, I don't know that that type of technical
12 analysis has been done, so I can't describe how it would be
13 done at this point.
14 Q Would certain calculations have to be performed?
15 A Probably.
16 Q Do you have any idea what kinds of calculations
17 might have to be performed or what factors might have to be
18 considered?
19 A I can't say that I can answer that at this point.
20 MR. HETRICK: Would you read back the question,
21 please?
22 (Whereupon, the court reporter read the requested
23 portion of the record.)
24 BY MR. HETRICK:
25 Q Is your answer to that question, then, no, at this
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1 point?
2 A That is correct, at this point.
3 Q Do you anticipate undertaking any kinds of
4 analysis or evaluations in your future role in this case
5 that might lead you to undertake such evaluations?
6 A I don't anticipate that.
7 Q Do you have any opinion as to whether mixing zones
8 should be used for phosphorus acting as a nutrient in any
9 portion of the Everglades Protection Area?
10 A Not at this point, no.
11 Q Do you anticipate beyond this date in the future
12 having an opinion as to whether a mixing zone should be
13 used as phosphorus acting as a nutrient in any portion of
14 the EPA?
15 A When you say "used," could you be more specific?
16 Q Well, what I am trying to find out is whether or
17 not in the future you might have an opinion of the
18 appropriateness of the utilizing a mixing zone for
19 phosphorus acting as a nutrient in any portion of the
20 Everglades Protection Area?
21 A I guess my answer is I may have an opinion about
22 whether it is appropriate to consider mixing zones but not
23 whether the granting of a mixing zone would be
24 appropriate. That is why I questioned the term "used" in
25 your question.
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1 Q What would be the factors that you might evaluate
2 in deciding whether a mixing zone should be appropriate for
3 nutrients in any portion of the Everglades Protection
4 Area?
5 A Well, I think the factors are listed in the rule.
6 The way in which to evaluate those, as I said, would be
7 something that would have to be developed. I don't intend
8 to do that. It may be appropriate to consider a mixing
9 zone, but I don't have an opinion on whether one should be
10 granted or not at this point.
11 Q Are you aware of any calculations anywhere that
12 have been conducted that would indicate to this point that
13 a mixing zone might be appropriate for phosphorus acting as
14 a nutrient in any portion of the EPA?
15 A No, I am not.
16 Q Are you aware of any ongoing studies to determine
17 that?
18 A No, I can't say that I am.
19 Q Are you aware of mixing zones for biological
20 integrity?
21 A That have been granted?
22 Q Yes.
23 A No, I am not.
24 Q Could there be?
25 A I am not sure.
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1 Q Why aren't you sure?
2 A Biological integrity is a characteristic of the
3 water body that is being studied, not necessarily a
4 constituent of the discharge, so technically I am not sure
5 how that would be taken into account. It is not something
6 you could measure in a cup of water coming out of a pipe.
7 I guess my answer is, there may be some technical problems
8 with it. I am not sure if that could be done or not.
9 Q Are you aware of any mixing zones for nuisance
10 species?
11 A No, I am not.
12 Q Could there be?
13 A I guess I view that the same as I would the
14 biological integrity standard. That is a characteristic
15 of, say, a receiving body of water. I am not sure how to
16 go about developing a mixing zone for that parameter,
17 specifically for that parameter. You don't discharge
18 nuisance species, usually.
19 Q Are you aware of any mixing zones for imbalance?
20 MR. HYDE: I think he has already answered the
21 question, because imbalance is a narrative nutrient.
22 MR. HETRICK: That is right. Let's move on.
23 BY MR. HETRICK:
24 Q Are you familiar with the S-5A and S-6 pump
25 structures?
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1 A Just in general.
2 Q In connection with this mixing zone rule, do you
3 have any opinion as to how large a mixing zone for
4 nutrients would have to be from the S-5A and S-6 structures
5 if it were to, and I guess completely mix with the
6 receiving water to meet -- in order to meet water quality
7 standards?
8 A No.
9 Q Can you tell me or identify some of the problems
10 associated with a determination of whether or not a
11 specific body of water is appropriate to be considered for
12 a mixing zone?
13 A For any parameter?
14 Q Yes, for any parameter.
15 A Well, it can be a highly technical analysis. The
16 data acquisition process can be lengthy and complicated;
17 the analysis process certainly can. I am not sure. Are
18 you looking in general for those kinds of considerations?
19 Q Just in general, yes.
20 A It can be very technical in terms of a time-
21 consuming and perhaps complicated and expensive process.
22 Q Are you aware of any mixing zones that have been
23 established for predominantly wetland systems?
24 A No.
25 Q Well, in general, if one were to consider the
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1 establishment of a mixing zone for any portion of the
2 Everglades Protection Area, how would the Department go
3 about conducting such an analysis?
4 A How would I go about conducting it?
5 Q How would the Department, in your view, in your
6 experience with these provisions?
7 A Well, I think the Department would first have to
8 determine which parameters were of interest and of
9 concern. I think the Department would then have to
10 determine for those parameters what acceptable levels the
11 Department would be willing to establish as targets, and
12 then third, the Department would have to determine under
13 different scenarios of discharge, I guess, or under the
14 scenarios of discharge that the Department wished to
15 consider, what would happen to the discharge, what would
16 happen in the chemical and biological and physical sense,
17 would it mix, would the discharge be incorporated into the
18 biomass, would it be interacting with the sediment, would
19 all of these things be going on, how would things move
20 through and interact with the system, and those processes
21 would have to be judged against what the Department had
22 established as the targets or the goals, if you will.
23 Q Under what circumstances, if any, might a
24 dissolved oxygen standard mixing zone be appropriate in the
25 context of agricultural runoff?
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1 A Under what circumstances might that be
2 appropriate?
3 MR. HYDE: I am going to object to the form of
4 that question. It is awfully broadly phrased. It
5 seems to invite opening speculation as to what might or
6 might not be appropriate circumstances justifying the
7 application of a DO mixing zone.
8 BY MR. HETRICK:
9 Q Do you have any experience with whether or not the
10 Department has utilized a dissolved oxygen standard mixing
11 zone in the context of agricultural runoff?
12 A I am not aware of any.
13 Q You are familiar with the term "dissolved oxygen,"
14 are you not?
15 A Yes.
16 Q I think you stated that on the record.
17 A Yes.
18 Q What is the minimum level for dissolved oxygen in
19 the EPA review? Do you have any knowledge as to that?
20 A In a Class III water body?
21 Q Class III.
22 A Five milligrams per liter.
23 Q Are you aware of any naturally occurring
24 violations of dissolved oxygen in the EPA?
25 A Naturally occurring violations, I am not sure.
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1 Q Let me ask a different question. Can nutrients
2 cause dissolved oxygen violations in the EPA? Are you
3 aware of any instances or studies you have reviewed?
4 A I have not reviewed any studies specific to the
5 EPA dealing with that.
6 Q In your experience, do you believe that nutrients
7 could be a cause of DO violations in the Everglades
8 Protection Area? By that I mean any portion, and if you
9 wish to specify a portion, that is fine.
10 A I am not sure I could say whether or not nutrients
11 could cause a violation within the EPA.
12 Q How about recharacterizing it as an excedence of
13 permissible DO in the EPA?
14 MR. HYDE: Is it still under the phrase "it could"
15 or as to possible or speculate?
16 BY MR. HETRICK:
17 Q Could possibly.
18 A Given that, I think it is possible for nutrients
19 to cause excedences of the DO standard in perhaps portions
20 of the EPA.
21 Q You are familiar with the term "hydroperiod"?
22 A Yes, I am.
23 Q Can hydroperiod affect dissolved oxygen?
24 A Yes.
25 Q In your experience with the Everglades Protection
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1 Area, does -- has hydroperiod also caused, or has
2 hydroperiod caused an excedence of the appropriate level of
3 DO in the Everglades?
4 A I don't know.
5 Q Do you have any knowledge as to whether the
6 Department has looked at hydroperiod variations in the EPA
7 and their effects on low DO?
8 A I do not know.
9 Q Do you have any knowledge as to whether any
10 studies have been conducted with regard to hydroperiod
11 variations in the EPA and their effect on low DO?
12 A No.
13 Q Do you have an opinion as to which is more or
14 less of a cause of DO in the EPA, either nutrients or
15 hydroperiod?
16 A No, I do not.
17 MR. HYDE: Just to expedite this deposition, there
18 has been a series of questions which talked about
19 specific factual situations arising in the EPA, and I
20 don't think that that is what Mr. Armstrong is here to
21 testify about. His testimony is directed to what the
22 Department's -- how it interprets or has interpreted
23 the water quality standards and criteria, how those are
24 construed and what the historic agency policies have
25 been in that regard.
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1 As to whether the Department may have done a study
2 that justifies one thing or another is something beyond
3 the scope of his testimony, and it is not anything he
4 has looked at, anyway.
5 BY MR. HETRICK:
6 Q Let me ask you one final question, in general, I
7 guess, as applied to the EPA, because -- are you familiar
8 -- do you understand the term "oligotrophic"?
9 A I think I do.
10 Q Do you consider the Everglades to be an
11 oligotrophic system?
12 A I don't really have an opinion on that. I am not
13 sure how to apply that term to the Everglades or if I would
14 apply that term to the Everglades.
15 Q Let's move on. You are familiar with the -- let
16 me ask you, are you familiar with the Everglades, with
17 respect to how they react to nutrient conditions?
18 MR. HYDE: Again, this is an inquiry into
19 something that he is not testifying about nor has he
20 examined.
21 BY MR. HETRICK:
22 Q Let's talk about nutrient imbalance. What do you
23 interpret the term "imbalance" to mean generally?
24 A As it is used in the rule or in general?
25 Q Your understanding of how it is used in the rule.
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1 A Well, I would term imbalance to be a major shift
2 or change in characteristics, not change, per se, but a
3 major change in whatever characteristics one might be
4 analyzing.
5 Q You say whatever characteristics one might be
6 analyzing. Would the term "imbalance" have different
7 meanings in the context of different geographic locations?
8 A I think it would.
9 Q Let's go to the rule. Let's go to 17-302.560,
10 parens (27).
11 In any specific situation, what are the factors
12 that you would consider in determining whether an imbalance
13 to natural populations of aquatic flora or fauna had
14 occurred?
15 A In the context of the nutrient standard as it is
16 discussed here, I would look at the body of water in
17 question to determine what the natural populations of the
18 aquatic flora and fauna that you were analyzing consisted
19 of in numbers and density and extent and try to make a
20 judgment as to whether a change in those populations has
21 occurred that I would consider an imbalance as a result of
22 some activity.
23 Q Would it ultimately be a judgment call depending
24 upon the specific, the characteristics of a specific water
25 body?
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1 A Yes, that would be right.
2 Q Would you look at the types of flora and fauna
3 which existed before the discharge versus those at the time
4 of the investigation that existed?
5 A Yes.
6 Q Would that involve an assessment of nuisance
7 species?
8 A Well, the rule refers to an imbalance of natural
9 populations, so I would presume one would have to start by
10 looking at the natural populations of flora and fauna that
11 occurred.
12 Q In what point in the process of evaluating the
13 imbalance, at what point would you reach a determination
14 that a particular species has become a nuisance to the
15 preexisting flora or fauna conditions prior to the effects
16 of the discharge?
17 A I am not sure there is an answer to that question.
18 I am not sure if I can say, well, I am sure I can't say
19 point A, as I said earlier. It is somewhat of a judgment
20 call.
21 Q How would you determine the size of area in which
22 an imbalance might occur?
23 A Again, I think that is somewhat of a judgment
24 call, given the water body in question and its
25 characteristics of, flora and fauna characteristics and its
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1 designated uses.
2 Q Well, could you have an imbalance in one square
3 meter versus 300 square meters?
4 A Sure.
5 Q Let me --
6 A Let me -- when you say in one square meter versus
7 300 square meters, my answer is yes, you could, in that
8 area, depending on the size of the water body, the
9 populations and their effects on the uses of the water
10 body.
11 Q So it would vary from situation to situation?
12 A Yes, I think it does.
13 Q In your assessment, did you say that you would
14 look at nuisance species in the context of what the
15 preexisting conditions were of flora and fauna and --
16 A Well, as I said, I would look at natural
17 populations, as the rule requires, and what happened to
18 those populations in terms of the designated uses of the
19 water body and the conditions that existed --
20 Q Is there any --
21 A -- in the natural populations.
22 Q Is there any relationship between the narrative
23 nutrient standard and the nuisance species standard?
24 A I think there can be. There is not necessarily a
25 relationship, but there can be.
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1 Q If there can be, what could that relationship be?
2 A I think it is possible for nutrient discharges to
3 cause imbalances in the natural populations which perhaps
4 might cause or allow other nutrients -- nuisance species,
5 excuse me, to become a problem.
6 Q Well, if a nutrient addition, if it is determined
7 that a nutrient addition is, in fact, causing an increase
8 in a particular nuisance species, assuming you have looked
9 at the natural population, would that constitute an
10 imbalance?
11 A Well, it may or may not. You are talking about
12 two different standards here.
13 Q At what point could it?
14 A Well, I think I have already answered that. That
15 is a judgment call in determining when a nutrient addition
16 has caused an imbalance that is unacceptable, that is one
17 test or standard. Your question related to nutrient
18 discharges and nuisance species, which might be a whole
19 other analysis and a whole other judgment call on the part
20 of the investigator.
21 Q Can some change in species composition occur
22 without there being an imbalance, is my understanding, I
23 guess, of what you are saying, and correct me if I am
24 wrong.
25 A Can some change in species composition --
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1 Q Can some change in species composition occur
2 without there being an imbalance?
3 A In my opinion, yes.
4 Q Is there a way to go about determining how much
5 change that would be before you would have a violation, or
6 is that determined on a case-by-case bases?
7 A It would have to be determined on a case-by-case
8 basis, in my opinion.
9 Q What would you look at to determine that change?
10 A Well, it would be site-specific. I don't think I
11 could give you a laundry list, but I would look at the
12 water body and the characteristics of it, the particular
13 species in question, flora and fauna species, the amount
14 and degree of change, areal extent, densities, the whole
15 list of factors, probably.
16 Q So there is no one factor, it is a compilation?
17 A That is correct.
18 Q Would you tell me what the meaning is of natural
19 populations in the definition of nutrients under sub (27)?
20 A I guess I would take that to mean populations that
21 would exist, the species that would exist in those water
22 bodies under natural conditions.
23 MR. HETRICK: Let's go off the record for just a
24 minute.
25 (Discussion off the record.)
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1 MR. HETRICK: Let's go back on the record.
2 I want to mark as Exhibit 2 -- first of all,
3 Randy, if you could just take a moment to review the
4 first page of this memo?
5 MR. HYDE: Is this intended to be a composite
6 exhibit, all of these documents?
7 MR. HETRICK: Yes.
8 BY MR. HETRICK:
9 Q I wasn't sure, and I was going to ask you if --
10 this is how I found it, and I was going to ask you if you
11 recognize this document, and if you do, if these documents
12 attached to that first page were intended to be a part of
13 page 1?
14 A I am sorry, what was the question again?
15 Q Are these documents that are stapled to page 1 of
16 this document, do you recall if they are intended to be a
17 part of this page 1?
18 A I don't believe -- let me continue through it.
19 Just a second.
20 I don't believe that all of the documents were
21 meant to be an attachment to the cover memo.
22 Q Let's just offer the first page of it. I just
23 offer the first page, and we can discard the rest.
24 (Whereupon, Exhibit No. 2 was marked for
25 identification.)
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1 BY MR. HETRICK:
2 Q Have you reviewed this document?
3 A Yes.
4 Q Could you tell me about this document, what it is
5 about, what its purpose was, its context, and that question
6 is meant to -- I am interested in what the purpose of this
7 document was?
8 A Well, I do recognize it. We had received, as the
9 memo states, a petition from the Game and Fresh Water Fish
10 Commission for the adoption of nutrient and chlorophyll
11 standards. We had been asked to review it and provide -- I
12 had been asked to have my crew review it and ask my staff,
13 Dr. Thabaraj, who was the chief at the time, any thoughts
14 on that and that is what that represents.
15 Q And the second paragraph, the third sentence is,
16 talks about, "Also, one set of criteria may not be adequate
17 nor applicable for all Florida lakes."
18 A Yes.
19 Q And it goes on to say, "Different levels may be
20 needed for different types of lakes."
21 A Okay.
22 Q And then the next paragraph, the second sentence,
23 "Again, one set of criteria may not be appropriate for all
24 estuaries."
25 What did you mean by those statements? Could you
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1 explain those statements to me?
2 A Sure. Different water bodies that react, it was
3 my opinion, and I still hold that opinion, that different
4 water bodies will react or might react differently to
5 nutrient discharges, and this has been one of the
6 fundamental problems all along in dealing with nutrients,
7 and that is a body of water in one part of the state or
8 even adjacent to another body of water might react
9 differently to the same nutrient discharge, and therefore
10 establishing a statewide standard is problematic, or a
11 statewide set of standards is problematic.
12 Q Does that also apply to -- in the situations of
13 nitrogen and phosphorus acting as nutrients?
14 A That is specifically what I thought that question
15 was referring to. That is what the memorandum is
16 discussing.
17 Q Do you know if the -- you mentioned here all
18 Florida lakes and you mentioned all estuaries. Would you
19 also include in that wetlands?
20 A What do you mean by "include in that," that --
21 Q Well, would your same argument apply or the same
22 thesis of this memo apply also to the wetlands?
23 A Yes, I think it would.
24 Q Specifically, do you think it would apply to the
25 Everglades?
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1 A Well, could you --
2 Q Would it be --
3 A It -- could the same problem apply in the
4 Everglades that I am referring to that might apply in lakes
5 and estuaries and so forth?
6 Q Yes.
7 A The answer is yes, that the problem of
8 establishing a statewide standard for nitrogen and
9 phosphorus or statewide criteria for nutrients is
10 problematic in that different water bodies, including the
11 Everglades, might react differently to different nutrient
12 discharges.
13 Q What was the result or was there any result to
14 this memo in terms of -- go ahead.
15 A We did not adopt statewide nutrient criteria. I
16 don't recall specifically if the Game and Fresh Water Fish
17 Commission withdrew their petition or if we just ignored
18 it. I know there were discussions with the Game and Fresh
19 Water Fish Commission, and I guess the ultimate result was
20 that we did not adopt statewide nutrient and chlorophyll
21 standards.
22 MR. HETRICK: I would like to mark this as Exhibit
23 3.
24 (Whereupon, Exhibit No. 3 was marked for
25 identification.)
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1 BY MR. HETRICK:
2 Q If you could take a moment on the first page to
3 review Issues 1 and 2?
4 MR. HYDE: Keith, my copy on page 2 is really not
5 very good on the bottom half of the page.
6 MR. HETRICK: Let me see.
7 Is yours that way?
8 (Discussion off the record.)
9 MR. HETRICK: Let's go back on the record.
10 THE WITNESS: What was the question?
11 BY MR. HETRICK:
12 Q Page 1 is clear to you, right?
13 A Yes.
14 Q First of all, can you tell me -- well, do you need
15 to review pages 2 and 3 -- I would like to know in general,
16 first of all, as a preface, what the context of this letter
17 was and why it was written and so forth. If you wanted to
18 wait until you get page 2 and kind of scan the whole thing,
19 and then I will ask you specific questions on it, various
20 issues, but --
21 A Okay. I have scanned the memo.
22 Q What was the general purpose of this?
23 A The general purpose was to address some of the
24 technical and -- primarily technical issues that had been
25 raised by the sugar-producing interests in the Everglades
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1 area. I was asked to prepare an assessment of these issues
2 by the Secretary of the Department.
3 MR. HYDE: Have we identified this as Exhibit 3
4 yet?
5 MR. HETRICK: Yes.
6 BY MR. HETRICK:
7 Q Issue No. 1, the second sentence beginning with,
8 "However, the nutrient dosing study performed in the
9 Everglades National --" first of all, before I get to that,
10 did this whole memorandum apply to just the Everglades
11 National Park, or did it also include the Loxahatchee, or
12 did it include the entire --
13 A I don't think it was specific to a geographical
14 area. I think it was meant to be a discussion of the -- of
15 these issues that are identified. I don't recall it being
16 specific to a particular area.
17 Q Was Issue No. 1 discussed in the context in
18 particular to the Everglades National Park? It is
19 mentioned there. I just -- I don't understand.
20 A I think all the sentence that you referred to
21 refers to is merely a study done in the Everglades National
22 Park. I don't think the issue was specific to ENP.
23 Q Did you review or have you seen that study?
24 A I believe that I have -- I don't believe I have
25 reviewed the study. I think I have heard a presentation on
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1 the techniques and results of the study in general.
2 Q Did you reach any conclusions yourself in your
3 capacity with regard to the results of that study?
4 A No, I can't say I reached any conclusions myself.
5 Q Under Issue 2 --
6 A Yes.
7 Q -- the first sentence, what is the basis for that
8 statement that the WCA-2A has, quote, an ability to remove
9 total phosphorus to less than three parts per billion? Is
10 that 30 parts per billion?
11 A First of all, let me explain. I did not write
12 this memo, but I am familiar with the issues discussed. My
13 understanding from discussions with the author is that that
14 statement is based on information submitted or described to
15 him by the South Florida Water Management District.
16 Q Did you agree with that statement, or did you have
17 any opinion with respect to that statement?
18 A Well, I guess I am relying on staff to tell me
19 that that is what they had been told. I can't say. I did
20 not do any independent studies, so I am relying on
21 information that was presented to me.
22 Q Let's go to Issue 3. There is a statement, three,
23 I believe the fourth line where it picks up, "Everglades
24 flora is uniquely sensitive to these low nutrient
25 concentrations."
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1 A What sentence, the fourth line of that paragraph,
2 okay, I am with you.
3 Q Do you agree with that statement?
4 A Again, I am relying on information presented to
5 me.
6 Q Have you reached any independent conclusions in
7 your capacity as an expert in this case with regard to
8 whether Everglades flora is uniquely sensitive to low
9 nutrient concentrations in the Everglades Protection Area?
10 A No, I have not.
11 Q Do you anticipate testifying to that at all?
12 A No.
13 Q Issue No. 4, you talk about because the -- it is
14 reported here, the statement says that, "Because the
15 phosphorus standard is not technologically feasible, any
16 attempt to apply it will cost hundreds of millions of
17 dollars," blah blah blah. Do you have any idea what the
18 basis is for the statement that the phosphorus standard is
19 not technologically feasible?
20 A No. I think this was an issue that was stated or
21 perhaps paraphrased from issues stated by the -- or to the
22 Department.
23 Q Do you know what a TP assimilation rate is?
24 A Yes. It is the rate at which phosphorus is
25 assimilated or bound or removed from the water within a
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1 certain area. This particular rate is presented in grams
2 of phosphorus removed from meters square of area per year.
3 Q It says in this statement, two lines down at the
4 end of that paragraph, "This rate is reasonable based on
5 comparison to other wetlands research."
6 Did you have an opinion on or do you have an
7 opinion on this at all? What is the basis for that
8 statement?
9 A The --
10 Q Let me strike that because that is not a fair --
11 what is the basis for that statement, first of all?
12 A I could not say specifically what other wetland
13 research the author is alluding to here.
14 Q At the time, did you agree or disagree with that?
15 A At the time, as I said, I relied on staff. I did
16 not do my own independent analysis.
17 Q What was your staff's conclusion, I guess?
18 A I think it was stated --
19 Q What staff, in particular, did you rely on?
20 A In this case, I believe the memo is authored by
21 Bart Bibler, the Bureau of Surface Water Management,
22 probably in conjunction with other staff members who helped
23 him put that together. I couldn't tell you who those other
24 people were.
25 Q Did this statement, in fact -- did this statement,
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1 in fact, was this the position of the Department in the
2 context of this memo?
3 A This was the position of my staff which we
4 presented to the Secretary.
5 Q What was the result of that? Was it decided that
6 ultimately the rate was reasonable?
7 A I don't know.
8 Q On Issue No. 5, which is the last page, can you
9 tell me about Issue No. 5?
10 A Could you be more specific, please?
11 Q What is the basis for the statement in Issue No. 5
12 that states that, "This approach is based upon faulty
13 assumptions and a hasty response to the U.S. Attorney's
14 lawsuit"?
15 Go ahead.
16 A As I said before, these were issues that had been
17 expressed to the Department. I don't know the basis for
18 them.
19 Q Issues expressed to the Department by whom?
20 A By the sugar interests, if I may use that term
21 generally. That is the subject as described in the subject
22 of the memo.
23 Q So did you, at that time, did you agree with that
24 or not, in your official capacity with the Department?
25 A Well, I think our position is explained in the
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1 text below the statement of the issue.
2 Q So if we go to the second paragraph, the very last
3 sentence, can you tell me -- can you explain that statement
4 to me, what the basis for that statement is?
5 A Let me be sure we are talking --
6 Q It begins with, "However, when rain falls on the
7 Everglades marshlands."
8 A You have to take that in context with the sentence
9 that precedes it. Basically what that sentence is saying
10 is that rainfall, even rainfall that might contain high
11 levels of phosphorus, even if rainfall of that nature is
12 falling on the Everglades, it is typically quickly mixed
13 within the -- a fairly shallow water column of water that
14 is generally, of a concentration of generally less than
15 point 0.1 milligrams per liter of phosphorus, and basically
16 diluted as it falls on the water that is already in the
17 Everglades.
18 Q And what is the impact or effect of that?
19 A Well, in a general sense, the issue is that some
20 rainfall might have a concentration of .03, for example,
21 .03 milligrams per liter, which is alleged to be higher
22 than background in the Everglades. What this sentence that
23 we are talking about explains is that even if that is the
24 case, it is being immediately mixed with water of a lower
25 concentration of phosphorus, a higher quality with respect
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1 to phosphorus and immediately diluted upon falling within
2 the Everglades marshland.
3 Q Was that your staff's conclusion?
4 A Yes.
5 MR. HYDE: Keith, have we reached a breaking
6 point here?
7 MR. HETRICK: Let me go through one more,
8 actually, two more quick ones.
9 Let's go ahead and break.
10 (Whereupon, the deposition was recessed for the
11 day, and reading and signing by the witness was not
12 waived.)
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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;
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18 __________________________
JERRY L. ROTRUCK, CM
19 Court Reporter and Notary Public
State of Florida at Large
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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 6 through 178 represent a
9 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.
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17
18 __________________________
JERRY L. ROTRUCK, CM
19 Court Reporter and Notary Public
State of Florida at Large
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1 AS TO SIGNATURE ONLY
OF THE COURT REPORTER
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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
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me.
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________________________________
9 Notary Public
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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 11, 1993.
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Page-Line Correction
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____________ ____________________________________
18 Date Signature
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AS TO SIGNATURE ONLY
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IN WITNESS WHEREOF, I have set my hand and affixed
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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
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