183

1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUGAR CANE GROWERS COOPERATIVE OF

3 FLORIDA, INC., ROTH FARMS, INC.,

and WEDGWORTH FARMS, INC.,

and

FLORIDA SUGAR CANE LEAGUE, INC.,

6 UNITED STATES SUGAR CORPORATION,

and NEW HOPE SOUTH, INC.,

and

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,

Respondent,

and

MICCOSUKEE TRIBE OF INDIANS OF

17 FLORIDA, the UNITED STATES OF

AMERICA, FLORIDA DEPARTMENT

18 OF ENVIRONMENTAL REGULATION, and

FLORIDA WILDLIFE FEDERATION,

Intervenors.

20 . . . . . . . . . . . . . . . . . . . /

23 DEPOSITION OF RANDALL L. ARMSTRONG

24 February 12, 1993

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2 DEPOSITION OF RANDALL L. ARMSTRONG

3 Taken in the above-styled cause, pursuant to

4 notice, at the Phoenix Environmental Group, Inc., 911 East

5 Park Avenue, Tallahassee, Florida, on February 12, 1993,

6 commencing at 8:30 a.m.

8 Reported by:

9 JERRY L. ROTRUCK

10 Certificate of Merit

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1 APPEARANCES OF COUNSEL:

2 On behalf of the Petitioners Florida Sugar Cane League,

Inc., United States Sugar Corporation and New Hope

3 South, Inc.:

4 William L. Hyde, Esq.

Peeples, Earl & Blank

5 215 South Monroe Street

Suite 350

6 Tallahassee, FL 32301

7 On behalf of the Intervenor United States of America:

8 Steve Bartell, Esq.

U.S. Department of Justice

9 Environmental and Natural Resources Division

General Litigation Section

10 601 Pennsylvania Avenue, N.W.

Fifth Floor, Room 5613

11 Post Office Box 663

Washington, D.C. 20004-0663

12 (202) 272-4248

13 On behalf of the Intervenor Department of Environmental

Regulation:

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

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1 INDEX TO WITNESS

2 RANDALL L. ARMSTRONG Page

3 Examination (continued) by Mr. Hetrick 188

7 INDEX TO EXHIBITS

8 No. Marked

9 4 202

10 5 217

11 6 223

12 7 226

13 8 283

14 9 290

15 10 297

16 11 299

17 12 303

18 13 314

19 14 318

20 15 323

21 16 323

22 17 332

23 18 337

24 19 354

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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; and

11 THAT by agreement of the witness and all parties,

12 reading and signing of the deposition was not waived.

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1 D E P O S I T I O N

2 Whereupon,

3 RANDALL L. ARMSTRONG

4 was recalled as a witness, having been previously duly

5 sworn to speak the truth, the whole truth, and nothing but

6 the truth, was examined and testified as follows:

7 EXAMINATION (continued)

8 BY MR. HETRICK:

9 Q Mr. Armstrong, I believe you have in front of you

10 Rule 17-4.242.

11 A Yes.

12 Q If you could turn to 17-4.242, for your reference,

13 subsection (2), this deals with Outstanding Florida Waters.

14 A Which subsection?

15 Q Subsection (2) --

16 A Yes.

17 Q -- would be the operative one we are going to work

18 with here.

19 A All right.

20 Q Are you familiar with this subsection on

21 Outstanding Florida Waters?

22 A Yes, I am.

23 Q Did you have any part in the development of this

24 section?

25 A Some.

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1 Q When did it initially come about?

2 A I believe in 1979.

3 Q First, can you tell me what the extent of your

4 involvement was in the development of this subsection?

5 A It was fairly limited at that point in time. I

6 think, as I mentioned yesterday, I was -- in a sense, I was

7 a user at that point in time, in that I was in a technical

8 assistance group that was involved in the use of the

9 Department's water quality standards or implementation of

10 the standards, and a lot of the discussions that went on

11 with our group centered around how would you use and apply

12 this information or this particular language that was being

13 drafted. I don't recall that I drafted any of this

14 proposed language for this section.

15 Q Can you explain to me in your own terms what the

16 concept of Outstanding Florida Waters is?

17 A The section -- this section of the rule

18 essentially sets up a higher degree of protection for

19 waters that are determined to be worthy of such additional

20 protection, either because of their particular attributes

21 or uses by the public.

22 Q What are the requirements for OFW designation?

23 A Well, the Environmental Regulation Commission has

24 to make a finding that the waters are worthy of such

25 designation, as I mentioned, either because of the

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1 attributes of a particular water body or the uses to which

2 the public puts those water bodies.

3 Q Maybe you can tell me, explain to me what the

4 attributes are that they might --

5 A Well, it could be the particular quality of those

6 waters, it could be of an outstanding quality or have

7 outstanding, if you will, biological resources that the

8 Commission feels are worthy of additional protection.

9 Q What kinds of uses by the public might qualify for

10 such a designation?

11 A Well, one obvious one would be recreation, waters

12 that are -- may not have exceptional quality or, in fact,

13 they may be, but they may be highly used by the public for

14 recreation, for water sports, for fishing, activities such

15 as those.

16 Q What are the operative standards for OFW?

17 A Basically, that the quality of those waters should

18 be protected as is or as they existed when the waters were

19 designated and should not be allowed to be lowered to any

20 significant degree.

21 Q If you would look at the subsection under (2), you

22 will see (2)(a), and then number 2 at the bottom where it

23 says the proposed activity or discharge is clearly in the

24 public interest, and then beyond that is little a,

25 paragraph a and little paragraph b. What does it mean --

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1 do you have that section?

2 A Yes, I do.

3 Q What does it mean for a Department permit to be

4 issued or complete on the effective date of an OFW

5 designation?

6 A Well, this particular section speaks to

7 activities, discharges, for example, that are already

8 permitted by the agency when the waters are designated, or

9 activities for which a permit has been applied for and the

10 application has been deemed complete by the Department.

11 Q What would be the effect of this particular

12 provision on a discharge that did not meet the requirements

13 or these requirements?

14 MR. HYDE: I am not sure I understand the

15 question, so I am going to object to its form. Which

16 section are you referring to?

17 MR. HETRICK: Sub (a) and (b), the ones we have

18 been discussing.

19 THE WITNESS: I am a little unclear on the

20 question, too. Maybe if you could restate it?

21 BY MR. HETRICK:

22 Q Let me just go down to sub (b), if you will, where

23 it begins with, "For the purpose of this section --"

24 A Yes.

25 Q " -- the term," quote, "`existing ambient water

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1 quality,'" unquote, "shall mean the better water quality of

2 either that which could reasonably be expected to have

3 existed for the baseline year of an Outstanding Florida

4 Water designation, or," number 2, "that which existed

5 during the year prior to the date of permit application."

6 Then, "It shall include daily, seasonal and other

7 cyclic fluctuations, taking into consideration the effects

8 of allowable discharges for which Department permits were

9 issued or applications for permits were filed and complete

10 on the effective date of designation."

11 Have you interpreted this provision?

12 A Yes.

13 Q On how many occasions?

14 A I really couldn't tell you. I would say

15 frequently or numerous times.

16 Q Can you explain to me what this provision means?

17 A Basically, this provision refers to the quality of

18 the water within the Outstanding Florida Water that the

19 Department should strive to protect. It directs the

20 Department to establish as a goal, if you will, a water

21 quality goal or standard for that water body the quality

22 that existed during the baseline year, which is given to be

23 the year prior to designation, or the existing quality for

24 the year prior to the date of a permit application,

25 whichever is better.

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1 Q What level of effort would be required to be used

2 by the Department to use, quote, "the best scientific

3 information available"? What would they need to undertake,

4 what kinds of analysis?

5 A Maybe nothing. It would depend on how much

6 information was available as to what additional work the

7 Department might have to do or an applicant might have to

8 do, and the information may exist or may not.

9 Q What kinds of information?

10 A Primarily water quality information, since that is

11 really what this subsection speaks to.

12 Q Is 1979 the baseline year for all Outstanding

13 Florida Waters?

14 A No, it is not.

15 Q There are different baseline years?

16 A That is correct.

17 Q Are you familiar with what the baseline year is

18 for the Loxahatchee and Everglades National Park?

19 A I believe that both of those waters were in -- I

20 will say the original designation in 1979. I believe, as I

21 mentioned yesterday, I am not sure if any changes have been

22 made over the years to the boundaries of those OFWs.

23 Sometimes there are additions and modifications to the

24 boundaries during the course of rulemaking, and I couldn't

25 speak to whether the same exact designations are in place

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1 or not as there were in those early years.

2 Q In the analysis of this provision, what does it

3 mean by the term, "it shall include daily, seasonal and

4 other cyclic fluctuations"?

5 A Water quality is not a static trait, it is

6 dynamic. Many of the parameters that can be used to

7 characterize a water body change in a daily, seasonal or

8 other cyclical fashion, and the rule directs the Department

9 to consider those changes.

10 A good example might be if a baseline year was

11 being analyzed that happened to be an extremely dry or

12 extremely wet year or perhaps an extremely cold or warm

13 year, the results of that baseline study might be somewhat

14 unusual, given the normal characteristics of the water

15 body, and it just directs the Department to consider those

16 factors in determining baseline quality.

17 Q Do you know how daily, seasonal and cyclic

18 fluctuations were taken into consideration with regard to

19 the designation of the Loxahatchee as an Outstanding

20 Florida Water?

21 A The designation of the water doesn't necessarily

22 involve the documentation of the baseline quality. In

23 fact, as it mentions, the existing quality the Department

24 would have to consider might be the year prior to receipt

25 of a permit application, so the designation is based on the

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1 attributes of the water --

2 Q Right.

3 A -- the information that is available to the

4 Department and the Environmental Regulation Commission for

5 designation, and in all cases the baseline study for the

6 year prior to designation was not done.

7 Q With respect to the Loxahatchee, how did existing

8 ambient water quality take into consideration daily,

9 seasonal and other cyclic fluctuations?

10 A I don't know.

11 Q How about for the Everglades National Park?

12 A I don't know.

13 Q If we continue on after that, it says, "It shall

14 include daily, seasonal and other cyclic fluctuations,

15 taking into consideration the effects of allowable

16 discharges."

17 What is meant by the term, "allowable discharges"?

18 A I guess the opposite of that would be the

19 discharges that were illegal or should not have been

20 allowed by the Department during that period.

21 Q How would one determine whether a discharge would

22 be allowable during that period?

23 A Well, I think it would be a matter of determining

24 the types of discharges for which the Department would have

25 required a permit in that period, followed by a

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1 determination of whether a continuing discharge that was

2 required to have had a permit did, in fact, have such a

3 permit or have an application on file at the time of

4 designation.

5 Q What does it mean by the term "Department permit"

6 there?

7 A It seems pretty self-explanatory. I am not sure I

8 understand your question.

9 Q It is a DER permit?

10 A Yes.

11 MR. HETRICK: Could we take a two-minute recess?

12 (Brief recess.)

13 BY MR. HETRICK:

14 Q Mr. Armstrong, back to that subparagraph (c) that

15 we have been working on, how would an existing discharge on

16 the date of designation be handled in determining ambient

17 water quality?

18 A How would it be handled?

19 Q Yes, or evaluated?

20 A I think the first question would be whether or not

21 that discharge would have required a Department permit.

22 That is what the test speaks to, to have a permit or an

23 application on file.

24 There were many activities that were going on that

25 were going on when waters were designated that didn't

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1 require permits, but if it required a permit, then the

2 question would be whether that permit had been issued or

3 whether an application was complete for a new activity.

4 Q What if the activity was one that did not require

5 a permit?

6 A I don't believe the grandfathering provision would

7 speak to that. If it existed but did not require a permit,

8 then it would not in a sense be illegal and, therefore, the

9 quality that existed would take into consideration that

10 activity.

11 Q How would a discharge that had a permit be

12 evaluated in defining or determining existing ambient water

13 quality?

14 A Well, for purposes of this OFW section, if it was

15 an existing discharge and it had a permit, then that, then

16 the effects of that discharge on a water body would be

17 included in the baseline quality of the water body for

18 purposes of regulation by the Department.

19 Q So it would, in determining the existing ambient

20 water quality, then it would include the effects of the

21 discharge and not exclude the effects of the discharge?

22 A The permitted discharge.

23 Q The permitted discharge?

24 A That is correct.

25 Q What about for unpermitted discharges?

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1 A Well, I think the question was whether or not it

2 should have required a Department permit. As I said, there

3 were discharges when many of the OFW designations were done

4 that did not need a Department permit. They were perfectly

5 legal, and they were included in that water quality.

6 If the Department would have required a permit and

7 the permit existed, then the quality should have been

8 included in the background determination of the quality of

9 the OFW.

10 Q Then are you saying that that, in effect, would

11 mean they would look at -- if it was not a permitted

12 discharge and it should have been permitted, then they

13 would look at whether or not it was an allowable discharge?

14 A No. If it did not have a permit and it should

15 have been permitted, then -- I will put this -- if it

16 should have had a permit and did not, then it should not

17 be -- its effect should be removed from consideration of

18 the background work, the discharge should have been brought

19 into the permitting process, whether it would have required

20 it to be upgraded or not would be a separate test, or

21 removed, in fact.

22 Q Okay.

23 A I don't think the rules serve to grandfather in

24 unpermitted activities for which a permit should have been

25 required.

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1 Q Let's look at sub (d) for a moment. It is the

2 next one.

3 MR. HYDE: Just to be clear for the record, you

4 are talking about 17-4.242, paren (2), paren (d)?

5 MR. HETRICK: That is correct.

6 MR. HYDE: Okay.

7 BY MR. HETRICK:

8 Q Beginning with Rule 17-4.242, parens (2), if you

9 could just review that paragraph, referring to renewal

10 permits?

11 A I lost it.

12 Q Just paragraph (d).

13 MR. HYDE: Are you referring to a specific clause

14 in paragraph (d)?

15 BY MR. HETRICK:

16 Q I can read it. It is only five lines.

17 "Rule 17-4.242(2) shall not apply to any dredge or

18 fill activity or any discharge to an Outstanding Florida

19 Water permitted by the Department or for which a complete

20 permit application was filed on the effective date of an

21 Outstanding Florida Water designation, nor shall it apply

22 to any renewal of a Department permit where there is no

23 modification in the dredge and fill activity or discharge

24 which would necessitate a permit review."

25 Do you have that?

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1 A Yes, I do.

2 Q Could you just explain the meaning of that section

3 to me?

4 A Basically, what this subsection does is allow the

5 continuation of activities or discharges for which a permit

6 has been issued or had been issued on the effective date of

7 the rule or an application, complete application was on

8 file, as long as there are no modifications to the activity

9 or discharge that would necessitate a review of a new or

10 modified permit, for the purposes of a renewed or modified

11 permit.

12 Q So it contemplates activities that have permits

13 on the date of OFW designation or have complete permits on

14 that date?

15 A Well, it is discussing activities or discharges

16 that have permits or complete applications on the date of

17 designation. I think you used the term "contemplates." It

18 is speaking to that particular case.

19 Q One last thing, going back to sub (c), where we

20 were talking about allowable discharges, would you consider

21 allowable discharges to apply -- well, just to put it

22 bluntly -- to mean the same as having that permit if, in

23 fact, the actual permit is not on record when activity

24 should have been permitted? Maybe I asked you that

25 question.

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1 MR. HYDE: I am going to object to the form of the

2 question. I didn't understand it.

3 THE WITNESS: Please restate it if you could. I

4 am confused, also.

5 BY MR. HETRICK:

6 Q If you look at the term "allowable discharge" in

7 sub (c) -- I am going to strike that.

8 Well, let me just ask you, is allowable discharge

9 the same as having a permit, equivalent to having a

10 permit?

11 A I think for purposes of the language in sub (c)

12 that you are referring to, the sentence is speaking to

13 discharges for which a permit would be required or an

14 application is complete, but there are discharges and

15 activities that go on in waters that don't require permits,

16 and I don't think this subsection speaks to those.

17 There are many activities that are going on, man-

18 induced activities that the Commission has to take into

19 account in deciding whether to designate or not designate.

20 That doesn't mean that those activities are illegal because

21 they don't have a permit. One simply wasn't required. It

22 might be required in the future or it might not, but I

23 don't think that is what this subsection is speaking to.

24 MR. HETRICK: Okay. I will offer this as Exhibit

25 No. 4.

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1 (Whereupon, Exhibit No. 4 was marked for

2 identification.)

3 BY MR. HETRICK:

4 Q If you could review that document just briefly.

5 Do you recognize the document?

6 A Vaguely.

7 Q I guess my general opening question would be, can

8 you tell me what was going on in this document?

9 MR. HYDE: Could we have just a moment to review

10 this document?

11 MR. HETRICK: Sure.

12 MR. HYDE: It is the first I have seen it. Okay.

13 BY MR. HETRICK:

14 Q I just have some general questions about this, and

15 my first is, what was going on in this?

16 A The Department was involved in consideration of a

17 designation of a large portion of the waters in the Florida

18 Keys as Outstanding Florida Waters. The issue had come up

19 concerning the exemption of certain areas from designation,

20 and we were dealing with that issue as a general policy,

21 not just for the Keys, but omitting certain areas from

22 designation had been done by the Commission, and certain

23 other designations, and we were discussing options

24 concerning consideration of that policy, or at least those

25 types of recommendations to the Environmental Regulation

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1 Commission.

2 Q On page 5 of this document, it refers to Key West

3 Sewage Outfall. Can you tell me specifically what was

4 going on with respect to Key West?

5 A The City of Key West operated a sewage collection

6 system that discharged essentially raw sewage south of the

7 city of Key West into the Atlantic Ocean.

8 Q Did the Key West sewage treatment plant have a

9 permit at the date of OFW designation?

10 A It did not.

11 Q Did this cause you -- how did this affect your

12 thinking about OFW designation at that time?

13 A Well --

14 Q Did this cause you any concerns?

15 A It caused us concerns, yes.

16 Q What were the bases for these concerns?

17 A That there may be an area around the outfall in

18 which water quality had been degraded and therefore may not

19 be worthy of designation, and secondly, the outfall was,

20 the Department was in the process of bringing that outfall

21 under permit, and the effect of that effort was unknown at

22 that point in time.

23 Q How would the effect of existing unpermitted

24 sewage treatment plant flow be accounted for in defining

25 OFW ambient water quality?

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1 A How would it be accounted for?

2 Q Yes.

3 A I am not sure.

4 Q How would you evaluate that?

5 A Well, I think there are really two parts to the

6 answer to that question. One is, what is the quality that

7 existed, which we were charged with determining throughout

8 the Outstanding Florida Water, and the second would be what

9 is the anticipated future condition of that area.

10 In other words, is the Department expected to

11 bring that outfall under permit and therefore bring it into

12 compliance with standards, and those were the two issues

13 that I think the section speaks to.

14 Q Let me just ask you in respect to the anticipated

15 future condition, what was the result of your thinking on

16 that aspect of it?

17 A What was the --

18 Q What was the anticipated future condition?

19 A That the outfall would be brought under permit,

20 and therefore the water quality should not continue to

21 degrade and, in fact, might improve, depending on what that

22 permit required.

23 Q This leads into my next question --

24 MR. HETRICK: Could you read back the last part of

25 that question?

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1 (Whereupon, the court reporter read the requested

2 portion of the record.)

3 MR. HETRICK: I mean the answer to the question.

4 (Whereupon, the court reporter read the requested

5 portion of the record.)

6 BY MR. HETRICK:

7 Q So is the relevant water quality standard for the

8 discharge from the Key West STP after OFW designation, if

9 it had no permit on the date of that designation, a non-

10 degradation standard?

11 MR. HYDE: I object to the form of the question.

12 BY MR. HETRICK:

13 Q Let me ask it this way. What would be the

14 relevant water quality standards then from discharge from

15 the Key West STP after OFW designation if it had no permit

16 on the date of designation?

17 A If I recall, the Commission ultimately did exempt

18 the area around the outfall, so the OFW standard would not

19 be applied within that area of exemption.

20 Q In paragraph III, under subpart A of this memo,

21 did the Department identify -- I am sorry. Did the

22 Department adopt this approach outlined in the exemption?

23 MR. HYDE: What approach?

24 BY MR. HETRICK:

25 Q Well, what is identified in paragraph III.

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1 A Well, there is no approach recommended there. In

2 that paragraph, basically, what this language is speaking

3 to is what I just mentioned, that there are two issues

4 here. One is a technical issue, that some water quality

5 degradation had occurred, as is stated here, at least

6 partially abatable; and, secondly this is an activity, a

7 discharge for which a permit should have been required and

8 ultimately will be required, and that is not a technical

9 issue, that is a legal issue that the Department was

10 dealing with.

11 So I guess the point of this paragraph is that the

12 water quality in that area is expected to change or could

13 change as a result of the activities of the Department

14 bringing that under permit.

15 MR. HYDE: Let's go off the record for a moment.

16 (Discussion off the record.)

17 BY MR. HETRICK:

18 Q Mr. Armstrong, one of the purposes or the

19 fundamental purpose of this deposition is to find out your

20 ultimate opinions and the basis of your opinions as to what

21 you are going to testify to regarding the rules in this

22 case and how they may apply to the Everglades, so I am

23 going to ask you, what is your opinion about whether the

24 discharges from the S-5A and S-6 into the Loxahatchee and

25 the S-12 and S-333 in the ENP are grandfathered?

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1 MR. HYDE: Under what, under the OFW rule?

2 MR. HETRICK: Under the OFW rule.

3 THE WITNESS: It is my understanding based on the

4 facts that have been presented to me, and as I said

5 before, I have not done any independent analysis on my

6 own, but it is my understanding those discharges

7 existed when those areas were designated as Outstanding

8 Florida Waters and the Department permit was not

9 required for those discharges, and therefore I feel

10 that they were in place and considered by the

11 Commission in establishing the quality of those waters

12 as worthy of OFW designation.

13 Therefore, they weren't illegal in a sense that

14 there was not a permit required and had not been

15 obtained. I would consider them grandfathered based on

16 the facts that I understand the matter.

17 BY MR. HETRICK:

18 Q And those facts are as you have explained them?

19 A That they -- that is correct, that they existed

20 and a Department permit was not required for them at that

21 time, not unlike an urban stormwater pipe in any other area

22 of the state that existed when that area was designated as

23 an Outstanding Florida Water, there wasn't a Department

24 permitting process for those facilities, and they were

25 perfectly legal and did not require a permit in those days.

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1 Q In your view, does that mean that the Department

2 or the district could never require that nutrient

3 concentration levels or loading be reduced if, in fact,

4 those discharges were grandfathered?

5 A Not at all.

6 MR. HYDE: Was that question addressed to the

7 OFWs's standard or as a broad brush for any standard?

8 BY MR. HETRICK:

9 Q Well, let's take one at a time. With regard to

10 the OFW standard in particular?

11 A Maybe you had better restate the question as it

12 relates to an OFW.

13 Q Assume for the moment that we have discharges that

14 were considered grandfathered under the OFW rule, okay?

15 A All right.

16 Q Could the Department or district ever require that

17 nutrient concentration levels for loading be reduced under

18 that OFW rule?

19 A I think you may be asking two questions. I will

20 answer it this way. I think the Department could

21 subsequently require those discharges to come under permit.

22 Q Okay. Could they require --

23 A For a couple of reasons. One would be if the

24 discharge concentrations or loadings were increasing and

25 the Department felt that that might constitute a violation

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1 of the OFW requirements to maintain the quality that

2 existed, or, secondly, if the Department determined that

3 those discharges might be causing a violation of some other

4 Department rules, for example, a Class III water quality

5 standard that was not an OFW standard.

6 So the answer is the Department could subsequently

7 require a permit.

8 Q Would it have to require a permit in order to, if

9 the facility or the discharge, operative discharge was not

10 permitted in order to require that nutrient concentration

11 levels or loading be reduced if, in fact, they were

12 increasing, thereby causing a violation of Class III water

13 quality standards?

14 MR. HYDE: Object to the form of the question. I

15 think it was unclear as to what was being asked.

16 BY MR. HETRICK:

17 Q Do you understand the question?

18 A Let me try.

19 Q My question is merely towards the permit.

20 A Let me see if I understand it, and I will sort of

21 reask it in answering the question.

22 The question is, would the Department have to, I

23 think, would the Department have to require a permit to

24 require some reduction?

25 Q Sure.

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1 A That is the way the Department functions. The

2 Department couldn't send a letter and ask, it would have to

3 take some legally binding action, and that is what the

4 Department is in the business of doing, either taking

5 enforcement action or permitting action. So to require

6 some abatement of a discharge, that is the process that I

7 would expect the Department to use.

8 Q Is it correct to state, then, that OFW

9 designation does not, per se, authorize a continuing

10 violation of Class III water quality criteria?

11 A That is correct.

12 MR. HETRICK: Let's go off the record for a

13 minute.

14 (Discussion off the record.)

15 BY MR. HETRICK:

16 Q We are about finished with OFW, but I just want to

17 follow up on what we were just talking about.

18 The OFW designation does not authorize the

19 continuing violation of Class III water quality criteria.

20 In your opinion, if grandfathered discharges at the 1979

21 baseline levels are causing violations of dissolved oxygen,

22 would the Department have a right to take some action to

23 abate that condition?

24 A Yes.

25 Q If the discharges at the 1979 levels would be

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1 causing imbalances in flora and fauna, would it be your

2 opinion that the Department would have a right to take some

3 action to abate that condition?

4 A Assuming that that constituted a violation of the

5 standards, yes.

6 Q I want to -- I have been talking about the 1979

7 levels, baseline levels, since we went back on the record

8 after that break. I can go back and reask these questions,

9 but my question specifically in talking about the 1979

10 baseline level referred to Loxahatchee and ENP.

11 Do you want me to go back and reask that question

12 in that context? I assume we are talking about --

13 A I don't think it is necessary. If the Department

14 demonstrated that those discharges caused those violations,

15 then they could take action.

16 Q And the last question in this regard is if these

17 discharges at the 1979 levels are causing an increase in

18 nuisance species in either the Loxahatchee or the ENP,

19 which are OFWs, would the Department have the right to take

20 action to abate that condition?

21 A If those constituted violations of the standards,

22 yes.

23 Q And one last thing on OFWs. Are you familiar

24 with how the OFW baseline was determined for the

25 Loxahatchee and the ENP?

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1 A Vaguely. I remember lengthy discussions about it,

2 but I really don't know specifics off the top of my head.

3 Q Were you aware -- were you a decision-maker in

4 that determination?

5 A I don't believe I was. I remember the

6 discussions, but I don't think I played a major role in

7 that.

8 Q Let's just talk about antidegradation for a

9 minute. Back in -- and I believe that is subsection (1) of

10 17-4.242. You are familiar with that subsection?

11 A In general.

12 Q Did you participate in the drafting of that

13 section?

14 A No, I did not.

15 Q Can you explain to me in general what this

16 subsection (1) is talking about as far as antidegradation

17 is concerned?

18 A Well, I think it is an attempt by the Department

19 to recognize waters that might be -- that might have

20 quality that is better than the applicable standard, and it

21 sets forth the situations in which the Department might

22 serve to protect that higher water quality even though it

23 may be better than the standard.

24 Q Under that subsection (c), actually, it would be

25 paragraph c, where it says in addition to subsection (b)

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1 above, do you see that?

2 A Yes.

3 Q It talks about proposed discharges. What is meant

4 by that term?

5 A I believe this subsection of the paragraph is

6 referring to a proposed discharge which would require

7 Department permit.

8 Q So, in essence, it is a non-permitted discharge?

9 A It could be a nonexistent discharge. It is just a

10 discharge for which a permit would be required, I believe

11 in a sense, in the way it is used here.

12 Q I want to go back to -- shift gears for a moment

13 and go back to Exhibit 3 from yesterday.

14 What was your position with the Department, Mr.

15 Armstrong, on this date, January 29th?

16 A I was the director of the Division of Water

17 Management.

18 Q I just want to be clear. I was a little confused

19 yesterday.

20 You had mentioned to me that the comments in this

21 memo were your staff comments, and I just want to make sure

22 I understand as we go through these documents, and maybe

23 the best way, I will go through some questions here, but

24 when your staff takes any kind of position on an issue when

25 you are with the Department, if you ever disagreed with

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1 that position -- let's put it this way. Did you generally

2 discuss things in house to reach a consensus before you

3 would ever advise the Secretary as to what the position of

4 your division was?

5 A Generally.

6 Q You would not let your staff submit a memo on your

7 behalf unless you had had an in-house agreement as to what

8 your Division's position was on an issue, would you?

9 MR. HYDE: Do you mean in each and every

10 instance?

11 BY MR. HETRICK:

12 Q You wouldn't let your staff simply submit a

13 memorandum to the Secretary without them getting with you

14 to -- or put your name on a memo without them going through

15 you to sign off and get your permission and agreement as

16 division director, would you?

17 A I take that question a little differently. I

18 instructed my staff to send any information that they --

19 that needed to go to the Secretary through me, so I

20 screened that information before it went to the Secretary.

21 Q And when your staff would reach conclusions or

22 develop a position of the division and you had this

23 consensus in house, this consensus building process in

24 house, when they adopted a position, it would be your

25 position?

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1 A No.

2 MR. HYDE: I object. That assumes facts not in

3 evidence. You are assuming there was a consensus in

4 the process in each and every instance, and I don't

5 think that is what the testimony is.

6 BY MR. HETRICK:

7 Q Well, I am just trying to find out -- and this

8 memo is a good example. The memo speaks for itself as far

9 as what was going on in this memo, but it was a memo from

10 yourself to the Secretary reporting on Sugar Interests'

11 Perspectives, on this 30-parts-per-billion standard in the

12 Everglades SWIM Plan, and as I understand this memo, and

13 correct me if I am wrong, there are issues that are

14 highlighted throughout this memo, and then there is some

15 kind of evaluation or response that the Department is

16 giving to the Secretary as to what the division's position

17 was on those issues, is that not correct?

18 A That is correct.

19 Q Now, you signed off on this. Would this have been

20 your division's position on this and would this, in fact,

21 have been -- in your professional capacity as division

22 director, would this, in fact, have also been your

23 position?

24 A This was the division's position, and as division

25 director, I was responsible for that. My position as a

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1 professional was based on the information being presented

2 to me. I did not do an independent analysis of each of

3 those issues.

4 Q I understand that.

5 A But this was the division's position, and I was

6 director of the division.

7 Q It was not in your job responsibility to do an

8 independent analysis, was it?

9 A Or -- that is correct, and it certainly was not

10 possible to do that.

11 Q But then again, if you had questions about any of

12 the positions taken in this, or if you had disagreement,

13 you would have let your staff go ahead and submit this with

14 your name on it?

15 A No.

16 Q Until you arrived at a consensus position that

17 satisfied you, is that not correct?

18 A Well, you keep using the term "consensus

19 position." I had to feel comfortable with the position

20 that was being offered in the memorandum before I would

21 send it on to the Secretary.

22 Q That is what I am trying to --

23 A The staff may not agree with it, or it may not

24 have consensus, but I was responsible for it in the

25 Secretary's eyes.

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1 Q I want to go to Exhibit 5.

2 (Whereupon, Exhibit No. 5 was marked for

3 identification.)

4 MR. HYDE: Give us a moment to review this, too.

5 MR. HETRICK: Sure.

6 BY MR. HETRICK:

7 Q Have you reviewed this?

8 A Yes, I have.

9 Q Who is Katherine Gilbert?

10 A Katherine is a, I would say, a wetland ecologist,

11 probably more than a botanist, who works in the

12 Jurisdictional Evaluation Section of the Division of Water

13 Management. I believe she still works there.

14 Q Does she work in the Tallahassee office?

15 A Yes.

16 Q For DER?

17 A Yes.

18 Q If you will look on the first page -- well, first

19 of all, can you explain to me what was going on in this

20 memorandum, generally?

21 A Yes, I think I can. The South Florida Water

22 Management District had been presenting some preliminary

23 information to us dealing with their evaluation of the

24 Everglades for SWIM planning purposes.

25 The Secretary had asked us to look into the

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1 possibility, not the possibility, the potential options for

2 use of biological control of nutrients and, in particular,

3 nutrient removal by growth and culturing of certain crop

4 species.

5 Katherine, being a wetland ecologist, was asked to

6 look at that from a scientific point of view and give her

7 thoughts on that issue.

8 Q Did she draft any reports?

9 A She drafted this memorandum. I believe she did.

10 I assume she did.

11 Q The second sentence reads, "The high nutrient

12 concentrations in water entering the water conservation

13 areas north of Everglades National Park have had an

14 apparent negative effect on the vegetative communities of

15 the conservation areas as exhibited by the displacement of

16 sawgrass by cattails and disappearance of periphyton," and

17 there is a parentheses, "a basic component of the food

18 chain in the Everglades area."

19 Did you discuss this aspect of it with her?

20 A I don't believe that I did.

21 Q Did you have any opinions on that at the time?

22 A I don't believe that I did.

23 Q Did you -- do you agree with that statement or do

24 you disagree with that statement?

25 A Neither. I think this memorandum and my position

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1 at this point in time was based on information, as the

2 first sentence states, that South Florida Water Management

3 District had been gathering. We had not done any

4 independent analysis, we, the agency or my staff, had not

5 done any independent analysis.

6 This statement is based on information that was

7 being presented to us by the water management district. To

8 my knowledge, it is.

9 Q Were any studies done by the South Florida Water

10 Management District that were being evaluated by Katherine

11 Gilbert at the time this memo was --

12 A I don't believe so.

13 Q What was -- she was your -- were you responsible

14 for her? Did she work for you?

15 A Yes, she was in our division.

16 Q Well, in your professional capacity as her

17 supervisor, what was the basis for this statement that she

18 was making?

19 A My professional capacity, my understanding of the

20 basis of the statement was, the information, as I said,

21 that had been presented to us, to Katherine and myself and

22 others, by the water management district. We did no -- we

23 had not done any independent analysis. She was simply

24 restating facts that had been given her.

25 Q Would that information that had been presented to

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1 her -- what kind of information was that?

2 A I don't know what written materials she might have

3 been supplied with, but at this point in time we had

4 received some briefings from South Florida Water Management

5 District staff, which I believe Katherine sat in on at

6 least one of those briefings.

7 She was asked to do an analysis of the vegetation

8 removal options based on the information that had been

9 presented to her by the water management district, and I

10 believe verbally, although she may have received some draft

11 documents for review. I don't recall any.

12 Q Do you have an opinion as to whether high nutrient

13 concentrations in water entering the water conservation

14 areas north of the Everglades National Park does, in fact,

15 have a negative effect on vegetative communities of the

16 conservation areas as exhibited by the displacement of

17 sawgrass?

18 A I don't have a personal view on that.

19 Q By cattails?

20 A No.

21 Q Do you have a professional opinion?

22 A I don't have opinions. I have information that

23 has been presented to me, and I don't have my own

24 professional, personal opinions.

25 Q Do you have an opinion as to whether nutrients

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1 can cause -- excessive nutrients can cause low levels of

2 dissolved oxygen in a water body?

3 A Yes.

4 Q Do you have an opinion that the growth of cattails

5 is more conducive to an environment with low levels of

6 dissolved oxygen than sawgrass?

7 A No.

8 Q Just out of curiosity, why did she not send this

9 letter directly to Dale Twachtmann?

10 A As I stated before, I had instructed my staff not

11 to send any reports or memoranda to the Secretary without

12 sending them through me. That was one of the Secretary's

13 directives, and I agreed with him.

14 Q What was the purpose of that?

15 A Well, just to control the information going to the

16 Secretary. I was responsible for the work of the division,

17 and the Secretary wanted me to be aware of everything that

18 was going on in our division as best I could, and he held

19 me responsible for that work.

20 Q Would you turn to page 4, the second paragraph?

21 It talks about, the third sentence, which is about six

22 lines down, beginning middle part of it, it says, "Cattail

23 is a native plant. It has been distributed around the

24 world for eons. It is an opportunistic plan which responds

25 well to disturbance and high nutrient levels. There is

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1 information that cattail is an invasive species, produces

2 high concentrations of organic matter, has little wildlife

3 or positive water quality value and can escalate mosquito

4 control problems."

5 Do you agree with that statement?

6 A I don't have an opinion. This is Katherine's

7 opinion.

8 Q And it is not your opinion?

9 A I have heard this kind of information presented

10 before. I can't say I have a personal or professional

11 opinion. I have not done these kinds of studies myself.

12 Q Well, would her report, which did go to the

13 Secretary, vary from your opinion as to a statement which

14 appears to be a fairly generic statement?

15 A Would -- I am sorry?

16 Q Would her opinion differ from your opinion in this

17 regard?

18 MR. HYDE: I think he has already answered that

19 question by saying he has no opinion in this regard, so

20 how could it be different from it?

21 THE WITNESS: Basically I was transmitting her

22 opinion to the Secretary, which I felt was based on her

23 professional experience in the specific field of

24 wetland ecology.

25 BY MR. HETRICK:

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1 Q If you had disagreed with this statement, would

2 this have made it to the Secretary?

3 A No, it would not.

4 ME. HETRICK: Let's go to Exhibit 6.

5 (Whereupon, Exhibit No. 6 was marked for

6 identification.)

7 MR. HETRICK: I apologize.

8 THE WITNESS: The page is difficult to read.

9 MR. HETRICK: We can read along, or I can tell

10 you what it says and we can agree what that page is

11 saying.

12 MR. HYDE: Wasn't this document attached to

13 another exhibit?

14 MR. HETRICK: No.

15 MR. HYDE: Okay.

16 BY MR. HETRICK:

17 Q Who is the person that wrote this memo?

18 A Dr. J. G. Thabaraj, who was the chief of the

19 Bureau of Water Analysis, I believe is the title at that

20 time.

21 Q This is dated August 17, 1981?

22 A I believe so.

23 Q Do you recall this memo at all?

24 A Vaguely.

25 Q What was your relation to his position at the

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1 time?

2 A I believe at that time I was the administrator of

3 the Water Quality Analysis Section. I reported to Dr.

4 Thabaraj.

5 Q I noticed you were CC'd on this memo?

6 A Yes.

7 Q I just had one question on this document. Would

8 you turn to page 3?

9 MR. HYDE: Was that August 17, 1981?

10 MR. HETRICK: That is correct.

11 BY MR. HETRICK:

12 Q I just have two questions. In general, do you

13 recall what was going on in this discussion?

14 A As I said, I vaguely recall the memorandum. I

15 believe yesterday we looked at some correspondence that

16 pertained to proposed nutrient standards submitted to the

17 Department by the Florida Game and Fresh Water Fish

18 Commission. I think that is what this memo -- apparently

19 this document referred to.

20 Q I just have on page 3, where it says Validity of

21 Uniform Standards, under a. it says -- well, right under,

22 it says, "Enough arguments could be made to invalidate the

23 concept of statewide uniform standards for nutrients and

24 chlorophyll. Some major points are listed below."

25 Under a., the caption is Variability of Response

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1 to Nutrient Loading, and the first sentence underneath

2 that, "It is not the absolute concentration of a nutrient

3 per se, rather than its biological manifestation, that is

4 of primary concern."

5 Can you explain that statement to me? What was

6 going on then?

7 A I don't recall who wrote this paper. I can't

8 speak for that person.

9 Q I mean --

10 A I can give you my opinion.

11 Q Yes.

12 A Well, I think what the author is probably

13 referring to is the fact that water bodies respond

14 differently to different nutrient concentrations, and it is

15 not the concentration of a nutrient that might cause a

16 problem; it is whether or not that nutrient or those

17 nutrients cause other problems or characteristics of a

18 water body to change.

19 Q Do you agree with that?

20 A Yes, in general, I think I do.

21 MR. HETRICK: That is all I have for that. Let's

22 take a little break.

23 (Brief recess.)

24 BY MR. HETRICK:

25 Q I am going to hand you what will be marked as

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1 Exhibit No. 7.

2 (Whereupon, Exhibit No. 7 was marked for

3 identification.)

4 BY MR. HETRICK:

5 Q Mr. Armstrong, I have handed out what has been

6 marked as Exhibit 7. Do you recognize this document?

7 A Yes, I do.

8 Q This is the Frank Nearhoof report. Is that your

9 understanding?

10 A Yes, it is.

11 Q I am going to run through probably a series of

12 questions with this document, mostly in terms of the

13 Department's construction of certain rules, and see if you

14 agree or disagree with some of these documents.

15 First of all, have you reviewed this document

16 before?

17 A Yes, I have.

18 Q In great detail?

19 A No.

20 Q But you have read this document from cover to

21 cover?

22 A Yes.

23 Q What was your most recent reading of this

24 document, about how long ago?

25 A Six months, maybe a little longer.

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1 Q What was your purpose in that review?

2 A I was asked by Mr. Hyde to review it and give him

3 my thoughts on it.

4 Q Let's go to the Introduction, which is page 1.

5 A My pages are not numbered. Section 1, entitled

6 Introduction?

7 Q Right.

8 A Okay.

9 Q About seven lines down, two-thirds of the way in,

10 the sentence begins, "The Department has conducted an

11 extensive review of all available information pertaining to

12 nutrient-induced impacts to the Everglades."

13 During your tenure with the Department, had that

14 review begun?

15 MR. HYDE: I am going to object. I think this

16 assumes facts not in evidence.

17 First of all, this document was not prepared, I

18 believe, until well after Mr. Armstrong left the

19 Department, so unless the document is able to -- there

20 is some proof as to when these studies were actually

21 done, then I think it assumes facts that are not in

22 evidence.

23 MR. HETRICK: That is kind of what I am asking

24 him, whether or not any extensive review or whether or

25 not any review --

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1 BY MR. HETRICK:

2 Q Let me phrase the question differently.

3 Was any review pertaining to nutrient-induced

4 impacts to the Everglades begun by the Department during

5 your tenure?

6 A Yes.

7 Q What -- do you recall what time frame, what year

8 those reviews began?

9 A There were reviews ongoing for a number of years,

10 Everglades issues which I believe included nutrient issues.

11 Q With regard to the Everglades?

12 A I think that is what I said. Nonetheless, I am

13 sure there were efforts underway in the Department over a

14 number of years. I was not directly involved, that I

15 recall, in those issues, or at least was not heavily

16 involved. In the months prior to my leaving the agency we

17 had begun reviewing the alleged nutrient impacts that were

18 being identified by the water management district through

19 the SWIM planning process, which is primarily what this

20 document speaks to. So the answer to your question is I

21 think those reviews had begun when I was still with the

22 agency.

23 Q Did you receive any preliminary reports as to --

24 pertaining to what the nutrient-induced impacts were in the

25 Everglades at that time?

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1 A Yes.

2 Q Did you review any of those reports? Can you

3 identify any of those reports?

4 A Not specifically. We had begun to receive draft

5 outputs from the water management district, and I could not

6 off the top of my head identify specifically what those

7 documents were. We had also, as I mentioned previously,

8 begun to receive verbal briefings from water management

9 district staff during the few months before my departure

10 from the agency.

11 Q Did the Department reach any preliminary findings

12 as to nutrient-induced impacts on the Everglades during

13 your tenure?

14 A Well, the Department may have reached some

15 preliminary findings. I don't recall if we took any

16 official position on any of those issues. They were

17 discussed with water management district staff, primarily

18 at the staff-to-staff level. I don't recall any official

19 position on those issues. There may have been some.

20 Q Do you expect to offer any opinions or testimony

21 in this case pertaining to nutrient-induced impacts to the

22 Everglades?

23 A I do not.

24 MR. HYDE: Again, for the record, I think you

25 should be specific. When you say Everglades, what do

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1 you mean?

2 MR. HETRICK: I apologize. Everglades Protection

3 Area.

4 BY MR. HETRICK:

5 Q Let's turn in your rule, you have 17-302 there?

6 A Somewhere.

7 Q Turn to -- I want you to refer to that, but I also

8 want you to keep Frank Nearhoof's, turn to page 3 on Frank

9 Nearhoof's report.

10 MR. HYDE: Which is page 3?

11 MR. HETRICK: Mine has page numbers on it.

12 THE WITNESS: Mine does, on page 3, at least.

13 MR. HYDE: Mine doesn't.

14 BY MR. HETRICK:

15 Q It should say Imbalances of Aquatic Flora and

16 Fauna.

17 A Yes.

18 Q Just for your reference, Mr. Nearhoof starts off

19 by saying, "Criterion 17-302.560(29)," and I wanted you to

20 be able to have that rule at your fingertips so that you

21 might be able to refer to that. Is it (27)?

22 MR. HYDE: It is (27) now.

23 BY MR. HETRICK:

24 Q (27).

25 A Yes, I have it.

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1 Q My questions in this context are how we construe

2 this provision, and we have already talked about imbalance

3 to some extent. Mr. Nearhoof starts off by quoting the

4 rule, which states, "Nutrients," and then, hyphen, "in no

5 case shall nutrient concentrations of a body of water be

6 altered so as to cause an imbalance in natural populations

7 of aquatic flora or fauna."

8 I want you to review the second -- the paragraph

9 right after that statement in Mr. Nearhoof's report and

10 tell me if you agree or disagree with any aspect of that

11 paragraph in the construction of this rule.

12 MR. HYDE: I would suggest you take as much time

13 as you need to do that. It is kind of difficult, in a

14 situation like this to be confronted with long

15 passages, it is difficult to make a snapshot judgment

16 based on one reading without an opportunity for

17 extended contemplation. I think it has to -- any

18 answers have to be subject to that understanding.

19 BY MR. HETRICK:

20 Q You can take as much time as you need.

21 A I have reviewed it. Would you restate the

22 question, please? Reask it.

23 Q Do you agree with that paragraph, or do you

24 disagree with any aspect of that paragraph in your

25 understanding of how the rule works and the Department's

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1 procedure in following the rule and assessing imbalance?

2 A I am not sure if I necessarily disagree with it.

3 I am not sure exactly what was intended by portions of it.

4 In particular, the last sentence states, "The

5 Department's criterion regarding nutrient-induced

6 imbalances of flora or fauna was written as a narrative

7 rather than numeric criterion with the focus of maintaining

8 the assemblage of flora and fauna characteristic of the

9 ecosystem in question."

10 I am not sure I understand exactly what the author

11 meant by that statement.

12 Q What is causing your confusion?

13 A Well, the rule speaks to imbalance, not

14 maintaining an assemblage of flora or fauna, and I don't

15 know exactly what the author intended in that particular

16 description.

17 Q The next paragraph, beginning with, "The

18 Department uses the best available information," if you

19 could review that paragraph which extends into page 4, the

20 next page?

21 A The first sentence, excuse me, the whole

22 paragraph?

23 Q The entire paragraph, and just tell me what

24 aspects of that you disagree with or if you agree with the

25 whole thing, and if you prefer, we could take it sentence

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1 by sentence.

2 A I have read it.

3 Q Do you agree with that paragraph?

4 A I don't have an opinion about much of it. It

5 speaks to what the Department is apparently doing at the

6 point in time when this document was written. I have no

7 knowledge of how this section was being applied at that

8 particular point in time. I do have some problems with

9 some of the language in the paragraph.

10 Q Which language?

11 A Well, reading on down, there is a discussion about

12 how the Department goes about analyzing in a technical

13 sense various factors, and as I said, I have no opinion as

14 to how the Department was applying or determining

15 compliance with this standard at the point in time of this

16 document being authored.

17 The author states in about the middle of the

18 paragraph at the top of page 4, "An ecosystem is determined

19 to be `imbalanced' when significant departures from the

20 expected biological operation of a system occur."

21 I don't -- I am not sure I understand what the

22 author means by "significant departures from the expected

23 biological operation."

24 The rule, the nutrient standard to which I assume

25 this section is still referring, speaks to imbalance in

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1 natural populations of flora and fauna, not biological

2 operations. I am not sure if the author is using the terms

3 synonymously.

4 Q If I were using the terms synonymously, would you

5 agree with that, then?

6 MR. HYDE: It assumes a fact not in evidence.

7 BY MR. HETRICK:

8 Q It is a hypothetical.

9 A Could you restate the question?

10 Q If he was using the terminology "biological

11 operation" in terms of natural population, would you then

12 agree with that statement?

13 A Well, the rule says, an imbalance in natural

14 populations of aquatic flora and fauna. The statement

15 would then say, an imbalance would occur when significant

16 departures from the natural populations of flora and fauna

17 would occur, and again, I guess the question then would be

18 what would "significant departure" mean in the eyes of the

19 author.

20 I think the author seems to be trying to restate

21 the rule in his own words, and I can't say whether I would

22 agree or disagree. If that sentence read the same as the

23 standard, I guess I would agree that it accurately

24 reflected the standard, but I can't say exactly what the

25 author had in mind, so I really don't have -- I can't offer

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1 an opinion about what he intended.

2 Q Can you offer an opinion in your own professional

3 judgment when an imbalance occurs?

4 MR. HYDE: Objection. I think the rule speaks for

5 itself.

6 BY MR. HETRICK:

7 Q Well, let me ask it this way.

8 MR. HYDE: It is an attempt to restate the rule,

9 and as such, it is an attempt to redefine the rule.

10 BY MR. HETRICK:

11 Q Do you agree with the sentence following that,

12 "This is determined by a combination of factors, including

13 professional judgment and measured differences between

14 suspected `imbalanced' and unimpacted or `control' sites"?

15 A Well, there are two statements there. One is, I

16 think there does have to be some professional judgment used

17 in determining what is an imbalance, because there are not

18 specific tests for measuring imbalance offered in the rule,

19 so in my opinion there would have to be professional

20 judgment involved.

21 One of the options available to a scientist would

22 be the comparison between the site to be studied or, as

23 this says, suspected imbalanced site and an unimpacted or

24 control site, if one is available. That is a standard

25 scientific technique that might be applicable.

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1 Q Yesterday we talked about imbalance. I believe

2 you testified, and correct me if I am wrong, that some

3 change in species composition can occur without there being

4 an imbalance, is that correct?

5 A I think that is correct.

6 Q How much change would have to occur for there to

7 be an imbalance?

8 A Well --

9 Q What do you look at to determine change, is the

10 question.

11 A The change in species composition is really not,

12 in my opinion, it is not necessarily part of the test for

13 determining compliance with the nutrient standard. The

14 standard speaks to an imbalance in natural populations of

15 aquatic flora and fauna, so for those natural populations,

16 you would look at changes in flora and fauna.

17 I can't give you an answer as to what would

18 constitute an imbalance, sitting at the table. It would be

19 site-specific, and it would have to be based to a certain

20 extent on the judgment of the investigator. The rule does

21 not give specific criteria for determining when an

22 imbalance would occur and not occur.

23 Q Would the change have to be meaningful or

24 significant in order to cause an imbalance?

25 A I think I would agree with the term

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1 "significant." I am not sure what you mean by

2 "meaningful," but there would have to be -- to cause an

3 imbalance, in my professional opinion, there would have to

4 be a significant change. Change alone is not necessarily

5 an imbalance. At some point, the degree of change would

6 have to be judged to be significant enough to constitute an

7 imbalance in those populations. That point is not well

8 defined.

9 Q Let's look at the last sentence in Mr.

10 Nearhoof's -- in that paragraph, where it says, "Imbalance

11 also includes situations when nutrient addition results in

12 the dominance of nuisance species or violation of numeric

13 standards." Do you agree with that statement?

14 A I don't think I do.

15 Q What do you disagree with?

16 A I think the term "imbalance" as used in the

17 nutrient standard has to be determined based on the natural

18 populations of flora and fauna. If nuisance species become

19 a problem or violations of other numeric standards become a

20 problem, those may constitute violations of the

21 Department's standards in and of themselves, but may not

22 constitute, necessarily, a violation of the nutrient

23 standard.

24 I think we may be talking about -- I think I would

25 say that in a situation where imbalance may have occurred,

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1 other violations may have occurred, but I don't think this

2 is stated properly, this sentence.

3 Q Can you tell me was meant by the term

4 "dominance"? Is that an operative term?

5 A I think it is used in a number of ways. I think

6 in some situations and circles it could mean any number

7 greater than 50 percent, or it could mean a number

8 sufficiently great enough to overshadow other

9 characteristics. I guess it would depend on the situation

10 and the type of use.

11 Q Does it have any operative meaning in the context

12 of a discussion of nuisance species? Is it a term of art?

13 A I guess it can be.

14 Q What would your understanding of that term be in

15 the context of a discussion of nuisance species?

16 A Well, I am not sure if you are referring to a

17 standard or a scientific investigation or -- there are all

18 sorts of discussions that could be taking place.

19 Q In the context of a nuisance species rule?

20 A Can we turn to that maybe and take a look at that

21 language?

22 Q 17-302.510, parens (5)(q).

23 A I have it.

24 Q Under that, it says, "Substances in concentrations

25 which result in the dominance of nuisance species, none

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1 shall be present."

2 What is your understanding of the term

3 "dominance"?

4 A As used in this standard, I would say that it

5 refers to an abundance of or greater portion of nuisance

6 species than native species. The rule refers to any

7 substance that might cause that condition to occur.

8 Q When you say abundance, what do you mean by

9 abundance? Is it a greater than 50 percent standard or

10 not?

11 A No. I don't think I would necessarily restrict it

12 to greater than 50 percent. I think in the way the rule is

13 written, there may be other, there may be several

14 populations of native species. If the greater dominance or

15 the greater makeup of the community is nuisance species,

16 then it could constitute a violation of the rule.

17 Q What if it is equal?

18 A Well, the question is whether the nuisance species

19 dominate in the population.

20 Q Right, and my question is, if the native species

21 is equal to, at the time you are looking at a particular

22 body of water, equal to the presence of the nuisance

23 species, the same, 50-50, is there a dominance in that

24 situation?

25 MR. HYDE: I am going to object unless there is

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1 some specification in the question as to geographic

2 extent. We are talking about a water body as a whole,

3 a portion of a water body?

4 BY MR. HETRICK:

5 Q Well, let's take the water body as a whole.

6 A I think I would say that if the nuisance species

7 constituted greater than 50 percent of the geographical

8 extent of the water body, then they would be dominant and

9 therefore be in violation of this section. If they were

10 less than the population or extent of native populations,

11 then it would not.

12 Q What if it is a portion of a water body?

13 A Well, there, as I read this section, it does not

14 necessarily refer to the entire water body. I believe this

15 section, and let me refer back, refers to surface waters,

16 general criteria, and as I understand these particular

17 portions of the standards, they are applied within water

18 bodies and not necessarily throughout an entire water body,

19 that is correct.

20 Q Is there any definition of body of water anywhere

21 in these rules that you recall?

22 A There are definitions of waters, if I recall. I

23 don't know if there is a definition of body of water. I

24 don't recall whether there is or not.

25 Q So this standard in subparagraph (27) could apply

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1 to a portion of a body of water?

2 A I believe it could.

3 Q The next thing in Mr. Nearhoof's report is, 3.1.1

4 talks about Flow Pattern Description, and this is specific

5 to the Everglades. Are you familiar with flow patterns in

6 the Everglades?

7 A Just in a general sense.

8 Q Do you expect to offer any opinion or testimony

9 that would in some way entail an evaluation of the flow

10 patterns of water in the Everglades National Park?

11 A No.

12 Q How about in any of the WCAs?

13 A No.

14 Q The next section on page 5 deals with, it is

15 3.1.2, Evidence of Phosphorus Enrichment in Soil and Water

16 Chemistry.

17 Are you familiar with any evidence of phosphorus

18 enrichment in soil and water chemistry in the Everglades

19 Protection Area?

20 A Yes.

21 Q How are you familiar with phosphorus enrichment

22 in soil and water chemistry in the Everglades?

23 A Basically from my general knowledge of information

24 that I have that has been presented to me or that I have

25 heard being presented.

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1 Q Do you have any professional opinions on

2 phosphorus enrichment in soil and water chemistry of the

3 Everglades Park area?

4 A No, I do not.

5 Q Do you intend to offer any testimony which in any

6 way relates to specifically phosphorus enrichment in soil

7 and water chemistry of the Everglades Protection Area?

8 A No.

9 Q One more question on that. Would you say that --

10 was there any evidence presented during your tenure at the

11 Department in the context of the draft SWIM plans that you

12 reviewed that showed -- well, that soil or H2O phosphorus

13 enrichment in the Everglades was cause for concern?

14 A Yes.

15 Q Was there ever any evidence during your tenure

16 with the Department that phosphorus enrichment in the

17 Everglades was indicated in surface water and sediment

18 data?

19 A Was there ever any evidence presented, is that --

20 Q Presented.

21 A Yes.

22 Q Did you ever form any opinions during that time in

23 the context of your review of any of the draft SWIM plans

24 that that evidence was, in fact, substantiated?

25 A No.

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1 Q Did you ever have any reason to doubt any of that

2 evidence?

3 A Yes.

4 Q What were those reasons?

5 A There was also information presented alleging that

6 phosphorus may not have been the only cause of problems

7 within the Everglades, or may have been partially the

8 problem but not totally the problem.

9 I don't have an opinion on whether one position or

10 the other is correct.

11 Q Would hydroperiod have been one of those other

12 factors that was a concern?

13 A Yes, it was.

14 Q Do you intend to offer any opinion or testimony

15 that, well, that basically states that whether or not

16 hydroperiod or nutrients have a greater effect on causing

17 problems in the Everglades?

18 A No.

19 Q Page 7 of Mr. Nearhoof's report, it says here,

20 3.1.3, Microbial Community Impacts.

21 Do you have any knowledge of any microbial

22 community impacts in the Everglades park area?

23 A Yes.

24 Q What knowledge is that?

25 A As with other issues, as I stated before, I have

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1 some knowledge of information that was presented to the

2 Department determining microbial impacts.

3 Q That was during your tenure with the Department?

4 A Yes, and my review of this document.

5 Q Do you intend offering any opinions or testimony

6 as to microbial community impacts in the Everglades Park

7 area?

8 A No.

9 Q On page 8, 3.1.4, Periphyton Impacts, do you have

10 any knowledge of any periphyton, well, phosphorus impacts

11 on periphyton in the Everglades?

12 A Yes.

13 Q And that was during your tenure with the

14 Department?

15 A And my review of this document.

16 Q Did you agree or disagree that there are

17 periphyton impacts -- I am sorry, phosphorus impacts on the

18 periphyton community?

19 A I don't have an opinion.

20 Q Do you expect to offer an opinion or any testimony

21 on that issue at all?

22 A No.

23 Q Page 9, 3.1.5 talks about Macrophyte Impacts.

24 Has any evidence been presented to you that

25 demonstrates that sawgrass has lower phosphorus

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1 requirements than other marsh vegetation in general?

2 A I am sorry, could you repeat that question?

3 Q Sure. Has any evidence been presented to you

4 which demonstrates that sawgrass has lower phosphorus

5 requirements than other marsh type vegetation?

6 A Yes.

7 Q Do you agree with that evidence?

8 A I don't have an opinion.

9 Q Why don't you have an opinion?

10 A I don't agree or disagree. I have heard that

11 opinion expressed and seen evidence supporting that

12 opinion. I don't have a personal or professional opinion

13 on that.

14 Q Do you have any reason to disagree with the

15 evidence that has been presented to you?

16 A Not that I am aware of.

17 Q What form did that evidence take that had been

18 presented to you?

19 A It was information presented to the Department

20 during my tenure there and my review of this document.

21 Q Was there any specific reports that you could

22 identify that were presented to you during your tenure with

23 the Department that spoke to the idea that sawgrass has

24 lower phosphorus requirements than other marsh vegetation?

25 A No, I cannot recall any specifically.

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1 Q Have you ever reviewed any historical accounts or

2 early maps of native Everglades environments?

3 A Yes.

4 Q Let me be clear with that. By Everglades

5 environments, I am talking about the EPA.

6 A Okay. Yes, I have.

7 Q Do you recall in your review of those historical

8 accounts or early maps of the native Everglades

9 environments, which I will restrict in this question in

10 particular to the EPA, as to whether cattail -- cattails

11 were present?

12 A It was my understanding from evidence presented

13 that cattails were present as a native species in the early

14 historical Everglades.

15 Q Do you recall whether they were present in

16 unenriched areas or enriched areas?

17 MR. HYDE: I object. It assumes a fact that is

18 not in evidence, and it also doesn't specify any time

19 parameters as to these historical maps. Are we talking

20 about 1850, 1950, 1970?

21 BY MR. HETRICK:

22 Q Well, what -- do you recall what early maps you

23 might have reviewed?

24 A No, I don't recall specifically.

25 Q Would they have been in the late 1800s or early

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