1

1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

SUGAR CANE GROWERS COOPERATIVE )

3 OF FLORIDA; ROTH FARMS, INC.; and )

WEDGEWORTH FARMS, INC., )

4 )

Petitioners, )

5 )

vs. )

6 )

SOUTH FLORIDA WATER MANAGEMENT )

7 DISTRICT, an agency of the State )

of Florida; et al., )

8 )

Respondents. )

9 ---------------------------------- )

)

10 FLORIDA SUGAR CANE LEAGUE, INC. )

and UNITED STATES SUGAR )

11 CORPORATION, )

)

12 Petitioners, )

)

13 vs. )

)

14 SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, an agency of the State )

15 of Florida; et al., )

)

16 Respondents. )

---------------------------------- )

17 )

FLORIDA FRUIT AND VEGETABLE )

18 ASSOCIATION; LEWIS POPE FARMS; )

W.E. SCHLECHTER & SONS, INC., )

19 and HUNDLEY FARMS, INC., )

)

20 Petitioners, )

)

21 vs. )

SOUTH FLORIDA WATER MANAGEMENT )

22 DISTRICT, an agency of the State )

of Florida; et al., )

23 )

Respondents. )

24 ---------------------------------- )

Hedquist & Associates Reporters, Inc.

1 Deposition of Richard Bonner, taken on behalf of

2 the Petitioner, pursuant to Notice of Taking

3 Deposition in the above-entitled action, on April 4,

4 1994, at 9:00 a.m., at 345 East Forsyth,

5 Jacksonville, Florida, before Allison B. Pauline,

6 Court Reporter, Notary Public in and for the State

7 of Florida at Large.

9 APPEARANCES:

10 JOHN D. BRADY, Esquire, Attorney for US Army

Corps of Engineers.

STEPHEN M. MACFARLANE, Esquire, Attorney for

12 United States Department of Justice.

13 WILLIAM EARL, Esquire, Attorney for The Florida

Sugar Cane League, Inc.

ALSO APPEARING:

KIM MCNALLY, Legal Assistant.

- - -

18 I N D E X

19 WITNESS

20 RICHARD E. BONNER

21 DIRECT EXAMINATION BY MR. EARL.......... 3

22 E X H I B I T S

23 FOR IDENTIFICATION

24 PETITIONER'S EXHIBIT 1................. 38

25 PETITIONER'S EXHIBIT 2................. 44

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1 S T I P U L A T I O N

2 It was stipulated and agreed by and between

3 counsel for the respective parties, and the witness,

4 that the reading and signing of the deposition by

5 the witness were not waived.

6 - - -

7 RICHARD E. BONNER,

8 having been produced and first duly sworn as a

9 witness, testified as follows:

10 DIRECT EXAMINATION

11 BY MR. EARL:

12 Q Would you state your full name please, sir?

13 A Richard Edward Bonner.

14 Q And by whom are you employed?

15 A US Army Corps of Engineers, Jacksonville

16 District.

17 Q And in what capacity, sir?

18 A I'm the deputy district engineer for

19 project management.

20 Q Would you generally describe your

21 responsibilities in that position?

22 A My primary function is to make sure that

23 the projects authorized or being studied by the

24 district are accomplished within a timely fashion

25 meeting the criteria and the policies of the Corps

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1 of Engineers, and within the cost of their

2 estimation, and to deal with the various customers

3 and sponsors who work with us on those projects.

4 Q Local sponsors?

5 A Right. But in some cases it can be

6 agencies depending on the type of project, but in

7 most civil works projects it would be the local

8 sponsor.

9 Q Okay. Mr. Bonner, do you understand that

10 the proceedings you are being deposed in here

11 involves the Everglades SWIM plan, administrative

12 challenges to the plan?

13 A That's my understanding, yes, sir.

14 Q And have you been asked to provide

15 testimony in that case?

16 A Be prepared to provide testimony, yes.

17 Q Okay. Sir, in what areas have you been

18 asked to provide testimony on?

19 A My understanding is general policy of the

20 Corps of Engineers and activities of the

21 Jacksonville District in which I've been a party.

22 Q What activities relating to the Everglade

23 SWIM plan have you been a party to?

24 A Really have had very little activities

25 associated with the SWIM plan directly.

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1 Q What have you had? What experience have

2 you had?

3 A I've read through it.

4 Q Okay. What is your relationship

5 reportingwise and otherwise to Mr. Vearil?

6 A Jim Vearil works in my engineering division

7 with the technical divisions and the separate

8 division than what I'm in, but I also serve as the

9 deputy, so I have two hats. I'm chief of the

10 program of project management division, and deputy

11 of project management, as I mentioned earlier.

12 So as deputy I participate in the technical

13 division activities of the district in their

14 interactions with sponsors primarily.

15 Q Do I understand that as a deputy district

16 engineer, are you the senior civilian?

17 A That's correct.

18 Q Okay. And you are GS-15, did I see that?

19 A That's correct.

20 Q And in the absence of the district engineer

21 you assume responsibility for the district?

22 A In many cases, yes, sir. We also have a

23 military deputy as well as a deputy in Puerto Rico

24 of the Antilles. So in most cases I would assume

25 that task when the military deputy is not there.

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1 Q With regard to the Central and Southern

2 Florida project, what are your direct

3 responsibilities?

4 A Well, they are varied. There are many. It

5 depends on what phase of the activities are

6 associated. The Central/Southern Florida project is

7 an authorized project, but we have many pieces of

8 that project which have not yet been constructed.

9 In addition we have authorized studies

10 associated with the Central/Southern Florida

11 project, so it depends on which phase you are in as

12 to my interaction with those activities. Primarily,

13 as I said before, it is to take care of the funding,

14 the policy, the decisions, the schedule, and working

15 with the local sponsor on the project.

16 Q What, if any, role do you play or have you

17 played in the obtaining permits from the Florida

18 Department of Environmental Protection for the S-10,

19 S-11, and S-12 structures?

20 A I signed the document.

21 Q You signed it. Did you review it before

22 you signed it?

23 A Yes, sir.

24 Q You have overall responsibility for that

25 permit?

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1 A That's correct.

2 Q What is the current status of that permit,

3 Mr. Bonner, as you understand it?

4 A I believe they've given notice of intent to

5 issue. I need to check that to verify that, but my

6 last reading on that was that they give us notice of

7 intent. I believe they had a couple of questions

8 that they wanted answered. I don't even remember

9 what they were.

10 Q When was that, sir? When was that notice

11 given?

12 A My memory is it was about two months ago,

13 but I certainly would need to look that up. I deal

14 with an awful lot of permits.

15 Q Wouldn't you consider that one a

16 significant one in terms of the Corps?

17 A Yeah. The agreement was that we would

18 apply for it. The significance was that applied.

19 Whether it is issued or not is -- well, that's the

20 process by which we would go through. So the

21 important date was the application for it. We made

22 that date. Subsequent to that we worked 18 months

23 or so in permit activities, so, you know, I don't

24 track them that close. I like to have a man that

25 I've assigned to do that.

Hedquist & Associates Reporters, Inc.

1 Q Are you aware, in the South Atlantic

2 Division, of any other state water quality permits

3 the Corps has supplied for it for any of its

4 structures?

5 A Well, the construction of the permits many

6 many, yes.

7 Q Operations of existing structures?

8 A I'm not aware of any.

9 Q Is it fair to say that the decision to

10 question such a permit was the subject of some

11 controversey within -- between the federal agency?

12 A Yes, sir.

13 Q Are you familiar with the modified water

14 deliveries for Everglades National Park?

15 A Yes, sir.

16 Q And did you play -- what role, if any, did

17 you play in that process?

18 A Again, it's a responsible entity for

19 overall project management of that project. I have

20 interacted daily, weekly, monthly with the project

21 manager to be briefed in working on the various

22 decisions, scheduling, funding of that project.

23 Q And could you tell me where that project

24 stands, Mr. Bonner?

25 A The project is an authorized project of

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1 which we are in the process of acquiring real

2 estate, and will soon be under construction with a

3 test field on 67 -- excuse me, not a test field, but

4 actual removal of structures, levies, and in the

5 process of negotiating a PCAA -- a Project Corps

6 Operation Agreement. It used to be LCA. Project

7 Corps Operation Agreement with a sponsor.

8 Q That would be the --

9 A The South Florida Water Management

10 District.

11 Q How about the C-51 project modifications,

12 have you -- do you play or have you played a role in

13 that?

14 A I played a long role in that one. When I

15 was -- before I had my current job I worked with

16 that project, and I have continued to do -- the last

17 10 years of my career I have worked with C-51. We

18 have construction activities. We have some

19 replacement work on the lower end where we had some

20 minor construction failures that we are repairing.

21 And then we have the GRR that was under preparation

22 to provide for flood control. The west side of the

23 basin, which at the sponsor's request we stopped

24 working on.

25 Also we have discussed it with others about

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1 using it for water supply for Palm Beach as well as

2 part of the mediated solution. I think it was a

3 part of that effort.

4 Q Where does that stand as you understand it

5 right now?

6 A The standing of it right now is the local

7 sponsor has requested us to go back and look at the

8 project, start our GRR process again, and the

9 Department of Interior has made a statement of the

10 secretary that he would like to see the C-51 go

11 forward. And he made that statement at the

12 Everglades Coalition meeting last -- what -- last

13 January.

14 Q And what is a GRR process?

15 A General Reevaluation Report. It is a

16 document which is prepared. It goes up to our high

17 headquarters that explains the changes that have

18 taken place since authorization, and lays out the

19 basis for the design documents.

20 Q And what is a GDM?

21 A GDM is a General Design Memorandum. That

22 was a GRR years ago. The name has changed.

23 Q So what used to be the GDM is now called

24 the GRR?

25 A Unless it is LRR, which is a Limited

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1 Reevaluation Report, but they are the same

2 document. The general memorandum laid out the same

3 thing that I just mentioned earlier, the economics

4 and environmental, the social, and the changes that

5 have taken place in service and basis of the

6 design. If there had been minor changes or very

7 little time taken place, then you would do a limited

8 evaluation report. If it's been some significant

9 changes or major changes it would be a GRR, a larger

10 report. But both of those 10 years ago would have

11 been referred to as a GDM, sometimes a feature DM.

12 Q As you understand it, in your position with

13 the Jacksonville district, what is -- what is --

14 with regard to the Central and Southern project,

15 what is the role of the effect of the house

16 documents, house documents 640- -- what is it, 3?

17 A 643? 643 is the original authorization?

18 Q Yes, sir.

19 A Basically it authorizes the works, the

20 basic works that make up the Central and Southern

21 Florida project that's been modified six, seven,

22 eight times with additional acts of Congress and

23 additional reports, but that formed the basis for

24 the original project.

25 Q When we say -- and there is subsequent

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1 house documents as I understand it, correct?

2 A That's correct.

3 Q When they say, House document, are they

4 talking about the House of Representatives'

5 document?

6 A That's correct. It could also be a Senate

7 document. The way that works is a resolution or the

8 act that passes it, you know, the resolution would

9 come from the House or the Senate, that gives the

10 Corps of Engineers the authority to make a study.

11 When that report is completed it is bound together

12 as a House document, if it was a House authorization

13 or a Senate document it is a Senate resolution.

14 That's not always followed, but that's the general

15 rules that take place in Washington. That's why it

16 becomes a House document.

17 Q And then what is the effect in terms of

18 operating and constructing the project, is that a

19 guide book? Is that the basis for the project?

20 A That is the authority for it. Usually it's

21 referenced in a Water Resource Development Act.

22 Nowadays -- it used to be Rivers and Harbors Act,

23 Flood Control Acts where they authorize those

24 projects they will reference that House document or

25 the report of the Chief or Engineers or one of the

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1 other ways to refer to that document.

2 That becomes the basis for authorization

3 and that -- and the GRR is prepared reflecting the

4 difference between the authorization and what the

5 design is and to give the specific detail, more

6 details.

7 Q And, Mr. Bonner, what is the -- do I

8 understand correctly there is a restudy of the

9 Central and Southern Florida project under way?

10 A That's correct.

11 Q Could you tell me what that is?

12 A Okay. The restudy is essentially the same

13 type of authorization that I talked about earlier

14 with the, you know, any other piece of a project.

15 They've asked us to reexamine the project for

16 various purposes. And that restudy will result

17 ultimately in one or more House documents or

18 documents which the Congress would then use to

19 authorize modifications of the original project.

20 Q And you are familiar, are you not, with a

21 document called the Science Subgroup Report?

22 A Yes, sir, I've read that.

23 Q And you have talked about that at

24 Everglades Coalition meetings and other meetings,

25 have you not?

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1 A I don't remember talking about it

2 particularly, but I may have.

3 Q Okay. What is that Science Subgroup as far

4 as you understand it?

5 A This is a -- there is federal task force

6 established to look at restoration, efforts of the

7 Everglades. They have broken into two or three

8 committees. One of those committees is assigned

9 Subgroup, which prepared this document for the long

10 range plan to present alternatives and can be

11 considered in this study that we have underway. So

12 it's an array we of alternatives, is my

13 understanding of it.

14 Q Am I correct in understanding Corps'

15 representatives did not participate in that

16 Subgroup?

17 A I thought we had a representative, but

18 maybe not.

19 Q Okay.

20 A I just -- in my head I thought Dr. Bo Smith

21 was a member of that group, but he may not have

22 been.

23 Q Okay.

24 A Hanley Smith is his name, not Bo.

25 Q And you are familiar, are you not, with the

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1 storm water treatment areas called for in the SWIM

2 plan?

3 A In a general sort of way.

4 Q Who at the district, would be most familiar

5 with that?

6 A Probably the three people who would know

7 the most, and, again, I think it is fairly limited

8 what they know is -- would be Lewis Hornin, Jim

9 Vearil, and possibly Dr. Smith, again, depending on

10 how much involvement they had with the committees he

11 served on.

12 Q Do you have a present understanding of how

13 those STA's will be operated in terms of bypass?

14 A In a general sort of way. I read the Civil

15 Engineering Magazine article, and it is the most

16 detailed version of that that I've ever seen.

17 Q And as the deputy district engineer, what

18 is your present understanding of bypass of the

19 STA's?

20 A My understanding of the STA's -- the

21 purpose of the STA's is to tag the water that is

22 passing slowly through the area allowing for a

23 nutrient uptake to take place. And that's just

24 about all I know about them.

25 Q Okay. What is your understanding of

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1 whether or not bypass water is allowed in the event

2 of hydrologic conditions?

3 A You mean, if in time of a flood that you

4 would put it -- flow it through --

5 Q Well, let's start out with flood control

6 purposes, yes.

7 A I really don't -- I don't know the capacity

8 and I don't know the design frequency, whether they

9 plan to run excess water through the area. I don't

10 know what the delay times are. I really don't know

11 enough about it to comment.

12 Q Are they still going to be required -- the

13 local sponsor be required to obtain an authorization

14 from the Corps to construct this?

15 A We would expect that they would need

16 probably two different actions by the Corps. One

17 would be the permitting under the 404, if the

18 wetlands are being filled. And secondly the

19 operation, if it modifies the operation of the Corps

20 project it would require a Corps involvement and

21 approval if it modifies the way we operate our

22 project.

23 Q What form does that take?

24 A The latter normally is a document that is

25 prepared and sent to Atlanta for approval. It

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1 examines the economics, social, environmental

2 impacts of the activity. And it makes a

3 recommendation whether the operations of the project

4 should be modified accordingly.

5 Q Has that project been started with regard

6 to the STA's?

7 A No, it has not.

8 Q How long would that project normally take?

9 A Well, it depends on the degree of change.

10 So it is sort of hard to answer it. If it is just a

11 very minor change it could be done very rapidly, if

12 it requires an environmental impact statement or

13 more detailed data, it would take, you know, a year

14 or year-and-a-half.

15 Q Is it fair to say there has been some

16 concern at the Jacksonville District regarding the

17 effect the STA's will have on the operation of the

18 project?

19 A I'm not sure what you mean by, "concern,"

20 has it been discussed; yes.

21 Q Has it been analyzed and determined?

22 A No.

23 Q Okay. And what is your understanding about

24 regulatory releases, will they be bypassed, allowed

25 to be bypassed as STA's?

Hedquist & Associates Reporters, Inc.

1 A Again, regulatory releases that are made

2 are a part of this plan. If these STA's become a

3 part of the project they would like for us to

4 operate the project to work through the STA's, and

5 that would -- that modification would have to be

6 examined. If they can pass it without any impact,

7 no problem. If they have to pass that we would have

8 to exam that in the impact, so . . .

9 Q That hasn't been started -- the analysis of

10 that hasn't been started yet?

11 A No, it has not.

12 Q Now, you are aware, are you not, that in

13 1993 the -- at least an additional 900,000 acre feet

14 were sent, and regulatory release were sent south

15 through the water conservation area?

16 A The specific number I was not aware of, but

17 the additional waters were sent. I was aware of

18 that.

19 Q Okay. And did the Corps approve that?

20 A Yes, sir.

21 Q Mr. McVicker described that to me as a

22 permanent change in the operation of the project; is

23 that correct?

24 A I didn't think so. I thought we were

25 working a test release down into the park area, and

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1 as this test is under way that it is not, you know,

2 has not been finalized. If the test was terminated

3 tomorrow we would go back to our original operating

4 procedures. So that's my feeling for that.

5 Q Do I understand correctly that that test

6 involves -- instead of sending water, regulatory

7 water out the St. Lucie and Caloosahatchee would be

8 sent south?

9 A Our intent to send more to the south and to

10 Caloosahatchee and St. Lucie is the intent, whether

11 it happens or takes place is, you know, depends on

12 the flows.

13 Q Intent is to get it to the park?

14 A Primarily to the park and back into the

15 natural system of Everglades Agricultural Area or

16 the conservation areas of the park.

17 Q And what is your understanding of how much

18 water in the last three to four years the park has

19 been receiving on an average annual basis?

20 A It would be a guess. I have not bothered

21 to --

22 Q Between 5- and 600,000 acres?

23 A I wouldn't even have a feel for it.

24 Q Okay. What is your understanding, if you

25 have any, of the additional water the park is

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1 seeking in terms of modified deliveries, additional

2 quantities of water?

3 A I'm not sure I understand your question.

4 Q Is the park, to your knowledge, seeking

5 additional quantities of water over what they have

6 historically received or a guarantee?

7 A Well, it's hard to speak for the park,

8 but --

9 Q What you know of the position.

10 A My understanding is that the intent is to

11 make it more of a natural process, and less water

12 should be lost to tide water, so in effect more

13 water would go to the park.

14 Q Am I correct in understanding that the park

15 seeks anywhere from 300,000 to 500,000 additional

16 acre feet over what they have historically been

17 receiving?

18 A My conversations with the park have been

19 more, again, put water back in a more natural

20 sense. And it has not been in terms of quantity

21 when they talked to me. They may well -- as you

22 heard a second ago, I'm not the guy to talk about

23 quantities with, so . . .

24 Q Okay. Who initiated the process to send --

25 was it the Water Management District to send the

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1 additional waters south? You said you didn't know

2 the quantity, but there had been an experiment you

3 understood.

4 A We've worked together with the Water

5 Management District in delivering the waters into

6 the park as a joint effort with them.

7 Q Do I understand correctly that these waters

8 first go through the water conservation areas?

9 A That's correct.

10 Q Did anyone at the Corps raise the issue or

11 analyze the impact of the additional phosphorus

12 loading, these additional discharges would have?

13 A Not to my knowledge.

14 Q Did anyone in the Federal Government to

15 your knowledge, object or complain?

16 A Not to my knowledge.

17 Q Did anyone in the interior department of

18 Fish and Wildlife service object or complain?

19 A Not to my knowledge.

20 Q Okay. Most of that type of correspondence

21 does cross your desk though?

22 A Yeah.

23 Q Okay. You haven't seen any that you

24 recall?

25 A That I recall.

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1 Q Okay.

2 A I get about a foot-and-a-half of

3 correspondence a day, so -- this is prior to the

4 releases.

5 Q Pardon me?

6 A This is prior to the releases. Prior to

7 the increased level.

8 Q What is the prior to the increase fund?

9 A Your questions is dealing with anybody

10 raising the questions about it, was prior to the

11 releases; is that correct?

12 Q Well, prior during these increased

13 releases.

14 A Well, there certainly has been

15 correspondence, you know, subsequent to this, you

16 know. Once a release has been made about phosphorus

17 loading in the park -- that's been a concern, yes.

18 Q And where does that come from, the Park

19 Service?

20 A The Park Service, primarily the Park

21 Service.

22 Q And that correspondence has been direct

23 into --

24 A Fish and Wildlife Service, excuse me Fish

25 and Wild- -- Department of Interior.

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1 Q Both Fish and Wildlife, and the Park

2 Service?

3 A Correct.

4 Q Who would that be, Dr. McFaye or Mr.

5 Neely?

6 A Those are two of the individuals of Fish

7 and Wildlife, correct.

8 Q But are those the two that have been

9 objecting, do you recall?

10 A Right. There might have been some at the

11 Vero Beach office, but I don't remember it being

12 that way, but I do remember McFaye and Neely.

13 Q And that's in correspondence?

14 A I think.

15 Q Okay.

16 A Yeah, I'm -- yeah.

17 Q Now, is there a coordination process before

18 that operation was changed? In this experiment, was

19 there a coordination process with the Park Service

20 or Fish and Wildlife?

21 A In original releases the movement and

22 changes took place prior to my being in the job I am

23 in now. I was in Atlanta during the earliest part

24 of the those experimental releases, so -- but they

25 were -- there would be correspondence and

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1 discussions between the Water Management District

2 and the Corps.

3 Q I'm talking about -- maybe we are talking

4 about two different things here. I was talking

5 about, Mr. Bonner, the releases in 1993 to send more

6 water to the south.

7 Are we talking about the same thing? Mr.

8 McVicker told me that as of April 1993 that there

9 were about, I think, it was about 933,000 acre feet,

10 additional acre feet of regulatory releases down

11 through the water conservation areas.

12 A Prior to 1993 there was correspondence.

13 There was concern about the phosphorus, yes, sir. I

14 was going back to the '80s time frame when the

15 testing first began to put waters into the park,

16 additional releases into the park, and modification

17 beyond that. So I was off on the wrong chain, and I

18 apologize.

19 Q Okay. Let's talk about 1993, the change

20 process, do you understand that to be an experiment

21 or change in operation?

22 A Again, it is working that test that's under

23 way is providing the water through the system to put

24 it into the park. So it was a part of the test that

25 was begun earlier.

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1 Q Okay. I'll ask you the same questions.

2 Was there a concern expressed prior to this change

3 in operations in 1993?

4 A Yes, sir, there was.

5 Q And who was that by, the Park Service?

6 A By the Park Service and Fish and Wildlife.

7 Q And that was objecting to the additional

8 loading?

9 A It was concerned about the loading of the

10 water that was coming into the park.

11 Q Who made the decision to proceed with that,

12 those changes in 1993?

13 A There is a joint effort between the park,

14 the sponsor and the Water Management District and

15 Corps of Engineers.

16 Q So the park -- is it fair to say the Park

17 Service agreed to those releases?

18 A Yes, sir.

19 Q Despite the additional phosphorus?

20 A Yes, sir.

21 Q And the Water Management District did and

22 the Corps did?

23 A Yes, sir.

24 Q But I gather from your -- Fish and Wildlife

25 Service did not, correct?

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1 A I don't think they specifically agreed to

2 it, and they were caveats in all of the agreement,

3 but they didn't specifically agree.

4 Q Now, is this -- is this documentation going

5 to be available in the response that we are looking

6 at today? Will that be in there?

7 A It will be the correspondence that will be

8 in there with -- between Jim Vearil's office and the

9 Park with all of the agreements that we've had and

10 the letters we've had. I would expect it would be

11 in their file, so . . .

12 Q What files would that be in?

13 A It would be in Mr. Vero's files, which I

14 believe you've, you know, having read the

15 documentation of what you requested it should have

16 been in there. I would expect it would be.

17 Q Okay. So as far as you know, are the

18 releases, regulatory releases, increased regulatory

19 releases to the south that were started in about

20 1993, are they going to continue provided adequate

21 water and the need for regulatory releases?

22 A Yes.

23 Q Okay. And that's being done

24 notwithstanding the additional phosphorus loading,

25 correct?

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1 A That's correct.

2 Q In one of your statements or correspondence

3 I think I saw, Mr. Bonner, you had summarized the

4 total tax payer investment in the Central and

5 Southern Florida project. Have you ever used such a

6 number?

7 A I don't recall.

8 Q The number I saw you used was 1.4 billion,

9 the total tax payer investment in this project.

10 Does that sound about right?

11 A That would sound ball-parkish. That number

12 may have been provided to me and I could have quoted

13 it.

14 Q But as you sit here today, and in your

15 responsibility as deputy district engineer you're --

16 would that be your best estimate of what the public

17 investment is in the Central and Southern Project?

18 A I guess I would say it sounds reasonable,

19 but I'd need to go and evaluate it and look in the

20 management resource office and substantiate that

21 number.

22 Q Have you ever received a February 4th, 1994

23 study by Burns and McDonald regarding options and

24 alternatives for sizing the store motor treatment

25 area?

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1 A I have seen a report by Burns and McDonald,

2 whether that is the one or not, I don't know, but I

3 have seen the report by Burns and McDonald.

4 Q But you are not aware, are you, of the --

5 which alternatives have been selected for that or

6 bypassing quantities and when bypasses will be

7 allowed and when they will not be?

8 A No, sir, I'm not.

9 Q Is the Corps going to get involved in that

10 project?

11 A Before it would take place we would have

12 to, yes, sir.

13 Q Now, you are aware that the United States

14 has identified you as an expert witness in this

15 case; is that correct?

16 A Yes, sir.

17 Q And among the topics they list you for are

18 the Corps of Engineers procedures and protocols.

19 What, if anything, will you be testifying about with

20 regard to Corps of Engineers procedures and

21 protocols?

22 A My understanding is I would be used as a

23 rebuttal witness to respond to specifics issues and

24 questions raised about that subject.

25 Q Who at the Jacksonville district at the

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1 present time has the active duty personnel -- have

2 the civilian or military -- has the best

3 understanding of the history of the Central and

4 Southern Florida Project, it's authorization and

5 it's operation?

6 A -- Salt has excellent knowledge of the

7 overall project of the over.

8 Q Okay. Your commanding officer?

9 A Right. Jim Vearil, of course, has

10 excellent knowledge. Chris Smith works with Jim.

11 Lewis Hornin.

12 Q Yourself?

13 A I feel like myself.

14 Q They've also listed you to talk about the

15 economic implications of altering the Central and

16 South Florida Control Project. What are you going

17 to be testifying about that?

18 A Again, it would be rebuttal in terms of

19 evaluation procedures and methods that the Corps

20 would be associated with -- in response to a

21 question in that regard.

22 Q Mr. Bonner, at any time has the -- was the

23 Corps ever asked by the Fish and Wildlife Service,

24 the representatives of Everglades National Park or

25 the Park Service -- was the Corps ever asked, to

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1 your knowledge, to develop best management practice

2 or procedures for reducing phosphorus loading to the

3 water conservation areas for the Everglades National

4 Park?

5 A Not to my knowledge.

6 Q You would have been aware of that if that

7 had been done, wouldn't you?

8 A I would think so.

9 Q Now, in your opinion if that had been made

10 a priority, that being the reduction operation of

11 the projects so as to reduce phosphorus loading to

12 given areas, water conservation areas of the park,

13 could such a program have been developed if you'd

14 been asked to do it?

15 A Generally speaking our construction

16 activities associated with water quality would not

17 be under our existing authorities to accomplish.

18 Operational changes which serve various purposes and

19 do not impact the project would be considered. That

20 would probably need to come more from the sponsor

21 than it would from the other federal agencies.

22 We try to operate our project to maximize

23 net benefits to all involved in terms of additional

24 expenditures and project works for improving the

25 water quality. I feel that they are probably

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1 outside of our authority.

2 Q Outside of your authority, sir, but I guess

3 my question is focused more on -- if you'd been

4 asked to do that, is it based on your opinion and

5 understanding of the system, would that have --

6 would the development of such a program, to reduce

7 phosphorus loading to given areas of the project,

8 would that have been possible?

9 A For the Corps to implement some activity to

10 do that, I just --

11 Q For such a program to be developed?

12 A I don't know of any method of which you can

13 regulate stages that it would do so.

14 Q Okay. Apart from regulating stages.

15 A That would be the operational activity. I

16 don't know of any other operational activity to

17 accomplish this task.

18 Q You are not aware of alternative routings

19 of water, for example, which could maximize the

20 overland sheet flow versus canal flow?

21 A I don't know of any procedure which

22 could -- let's see how to answer that exactly.

23 Overland sheet flow should improve water quality.

24 Generally speaking other ways that could be done,

25 yes, so those operational changes and stages in

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1 canals could take place that would allow the

2 sheet -- so there would be a way that could be

3 accomplished, yes.

4 Q Mr. Bonner, in any of the authorizations

5 for this project, to your knowledge, has there ever

6 been any direction as to the Corps' responsibilities

7 for water quality?

8 A The primary water quality associated with

9 this project was salt water intrusion, and that was

10 an authorized project purpose to reduce salt water

11 intrusion.

12 Q And apart from that, sir?

13 A Not specifically authorized in any of the

14 documents.

15 Q How about in 1970/'71, was there any

16 authorization document relating to the Corps water

17 quality responsibility?

18 A I do not remember any document.

19 Q You don't remember, okay. Apart from the

20 specific document, do you have any knowledge of any

21 direction to the Corps as to water quality

22 responsibilities on this project other than what you

23 have mentioned?

24 A The Corps of Engineers generally attempts

25 never to grade water quality associated with these

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1 projects. The operation and the maintenance and the

2 construction of our projects, we tend not to grade

3 water quality.

4 Q My question is a little more specific, Mr.

5 Bonner, it is: Are you aware in the Central and

6 Southern Florida project history of any

7 authorizations dealing and/or directing the Corps to

8 take any water quality responsibilities other than

9 what you've mentioned?

10 A Not to my knowledge.

11 Q Okay. Do I understand your earlier

12 testimony, the economic implications of altering the

13 Central and Southern Florida project with these

14 STA's have not yet been considered?

15 A That's correct, by the Corps.

16 Q By the Corps. And they would have to be,

17 correct?

18 A That's correct, if they become a part of

19 the federal project that's paid for through the

20 Corps. If they become a part of a locally preferred

21 plan, then the economics would not have to be

22 examined in terms of expenditure and federal

23 knowledge.

24 So the answer is, yes, but there are ways

25 that it could be accomplished outside the project

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1 scope, so to speak, and they would not be evaluated

2 by the Corps.

3 Q And is that your current understanding of

4 the approach that is being taken with the STA's,

5 they will not be part of the federal project?

6 A I don't think a decision has been made. I

7 don't think we are there yet to know whether they

8 will be part of a federal project or not.

9 Q When and how will that decision be made?

10 A Well, it is part of, say C-51, for example,

11 the GRR would address that. It's a part of the

12 larger restoration efforts of the larger study. It

13 would be determined during those phases of the

14 feasibility report that is being prepared.

15 Q How about the STA's specifically, when will

16 that be determined?

17 A Again, the STA's right now are not a part

18 of the federal project at this time.

19 Q Could that change?

20 A Sure. By the act of Congress and the

21 methods by which that would take place would be

22 either through the act of Congress and the study

23 phase or if the GRR identifies the need to

24 incorporate those features as part of the C-51 or

25 other authorized, but not yet constructed project

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1 features.

2 Q Mr. Bonner, as deputy district engineer,

3 could you tell me what is your understanding of

4 whether an environmental impact statement or a

5 environmental assesment needs to be done on the

6 STA's?

7 A My knowledge of the STA's as they exist

8 have taken place in wetlands. They will require, at

9 least a permit from the Corps of Engineers, which is

10 defined in a federal action, which would require

11 environmental documentation. That would be my

12 interpretation of them at this time.

13 Q It would require at least an environmental

14 assessment, correct?

15 A Some environmental documentation, correct.

16 Q Well, what other documentation is there?

17 A Well, you have assessment and EIS and the

18 scope has to do with that, so . . .

19 Q And is it not your understanding that the

20 Federal Judge in Miami has ruled that subject to a

21 pending appeal that an EIS has to be done?

22 A Yes, sir.

23 Q Has anything been started in that regard?

24 A No, sir, not to my knowledge, by the Corps.

25 Q Has it been started by anybody else that

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1 you know?

2 A Not to my knowledge at all, but the Corps

3 has not.

4 Q And were -- was the Corps instructed by

5 some other federal agency not to start that process?

6 A Not to my knowledge. I think it's just a

7 matter of not being well-defined yet. What it is is

8 that we'd examine -- and the concern that has been

9 expressed is: What do you write to EIS about? I

10 mean, what item is it that we examine for the

11 impact? At the time when the judge made that ruling

12 there was no STA's developed in any kind of form

13 that I know of at all. So there was no particular

14 plan for an environmental impact study, so that's,

15 you know, until that's sorted out I don't know what

16 you'd write about.

17 Q You're also listed to testify, Mr. Bonner,

18 about requirement demands of project flood control

19 and water supply. What's your testimony, as you

20 understand it, on that issue?

21 A Again, the same as before as a rebuttal and

22 to discuss various project purposes.

23 Q And the same thing would be true on

24 budgeting and scheduling?

25 A Yes, sir.

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1 Q What is resource allocation within the

2 district and contracts? What is that?

3 A Your resource allocation is where you put

4 your manpower, how you work on a harbor project or

5 you work on a flood control project in Puerto Rico

6 or you work on -- it's allocating the resources we

7 have in the district. Whether you do it by contract

8 or whether you do it by hired labor, that sort of

9 thing.

10 Q What relationship does that have to the

11 case that we are talking about, the SWIM case? Why

12 would you be testifying about that? I'm trying to

13 understand.

14 A It has to do with scheduling and timing,

15 and how long it takes.

16 Q Okay. As we sit here today, have you come

17 to any conclusions or opinions regarding the

18 economic implications of altering the Central and

19 Southern Florida project in relation to the SWIM

20 plan?

21 A No, I have not.

22 Q Okay. Same question. Do you have any

23 opinions and conclusions as we sit here today

24 regarding the requirements and demands of the

25 project flood control and water supply needs as they

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1 relate to the proposed SWIM plan?

2 A No conclusions.

3 Q Any opinions?

4 A Again, these are project purposes

5 authorized by Congress and we have to examine those

6 and look at them and determine the impacts.

7 Q And the same two questions: As we sit here

8 today, do you have conclusions and opinions relating

9 to the SWIM plan and budgeting and scheduling?

10 A No, sir.

11 Q Same question with regard to resource

12 allocation within the district?

13 A No, sir.

14 Q Okay. At any time you want to take a

15 break, you know, just ask me and we'll stop.

16 A Okay.

17 MR. EARL: Would you mark that, please, as

18 Exhibit Number 1?

19 (Petitioner's Exhibit 1 marked for

20 identification.)

21 BY MR. VERBIT:

22 Q Let me hand you now what the court reporter

23 has marked as Exhibit 1. It purports to be a letter

24 from you to Gary Goforth, South Florida Water

25 Management District.

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1 Is this, in fact, the letter you sent to

2 Mr. Goforth?

3 A That's correct.

4 Q Okay. And do I understand correctly it's

5 the Corps' Jacksonville district's comments on the

6 draft feasibility reports for storm water treatment

7 areas?

8 A That's correct.

9 Q And this relates to the SWIM plan, correct?

10 A As I understand it, it does.

11 Q Now, this is a called a draft feasibility

12 report.

13 A This was prior to the SWIM plan, I believe,

14 though, is that not correct?

15 Q I don't know.

16 A Okay.

17 Q Has the feasibility report gone further?

18 Is there a subsequent feasibility report that has

19 been done after this?

20 A I really don't know, sir.

21 Q Who would know that, Mr. Green?

22 A Mr. Goforth would know or the people at the

23 Water Management District.

24 Q Okay. But who at the Corps would know

25 that, whether the Corps has done an analysis?

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1 That's my question. Has the Corps done a

2 feasibility analysis?

3 A Oh, we have not done a feasibility

4 analysis.

5 Q So this is the last feasibility analysis

6 done on the STA's that you know about?

7 A These are comments on feasibility, not a

8 feasibility analysis by the Corps.

9 Q Okay.

10 A It's comments on their report.

11 Q You're right. Let me rephrase that then.

12 Subsequent to this -- well, we've identified that as

13 Exhibit 1. Has the Corps provided anymore comments

14 on the feasibility of the STA's that you know about?

15 A I really don't know. I don't remember them

16 myself. It could be a similar letter to this.

17 Q And, again, who knows that at the Corps Mr.

18 Vearil?

19 A He or Mr. Hornin.

20 Q Okay. In paragraph one of this, the second

21 page -- do you have that? Down at the bottom it's

22 marked 0903117. Paragraph one, do you see that?

23 A Yes, sir.

24 Q The second sentence states: Since the

25 period of record used in the analysis is only 10

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1 years it is likely that there will be major flood

2 events that would exceed the capacity of the STA's.

3 Therefore, it is anticipated that hydraulic bypass

4 for the STA's will be required during extreme flood

5 conditions in order to preserve the current level of

6 flood protection.

7 Do you know of anything that has changed

8 since the date of this letter which would change

9 that?

10 A No, sir.

11 Q Okay. Paragraph five, Mr. Bonner, states

12 the STA construction will require extensive

13 modification of CS&F project features. Do you know

14 of any changes that would offer that conclusion

15 since this was written on the date of this report?

16 A No, sir.

17 Q Okay. So as we sit here today, as you

18 understand it, the STA's will still require

19 extensive modifications of the project features?

20 A That's correct.

21 Q Okay. Has any modeling been done of the

22 hydraulic impact of the these STA's that you are

23 aware of by the district?

24 A I would think they are, but I couldn't

25 absolutely state that as a fact.

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1 Q Okay. I'm talking about the Jacksonville

2 district.

3 A Oh, the Corps, I'm sorry. I thought you

4 meant the Water Management District. I do not think

5 we have.

6 Q Paragraph nine of this letter, sir, which

7 is page 0903118. It talks about the first priority

8 of regulatory releases from Lake Okeechobee is to

9 pump the maximum practical flows to the WCA's by the

10 agricultural canals. These flows are on a secondary

11 basis after a removal of local runoff. The

12 estimated maximum lake regulation capacity for each

13 canal is -- and then the comments have a CFS rating

14 for each canal, do you see that?

15 A Yes, sir.

16 Q Okay. The next sentence states: We are

17 concerned that the proposed plan will not maintain

18 this capacity, meaning the CFS capacity of the

19 primary canal as West Palm Beach, Hillsborough and

20 North New River, and Miami Canal. As we sit here

21 today, is that still a concern of the Jacksonville

22 district?

23 A Yes, sir.

24 Q Okay.

25 A The second attachment, was that a part of

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1 the original letter?

2 Q I don't know. It was attached when we got

3 the file copy. It was attached -- comments from

4 DER.

5 A Right.

6 Q It doesn't appear to me to be generated by

7 the Corps. You are talking about pages 0903120 and

8 121, correct?

9 A Yes, sir.

10 Q I would -- is that what you are saying?

11 That's not part of the report.

12 A My memory of this I would not have sent

13 comments from DEP. Now, we probably received them

14 from it, put in the file and they may have bound

15 together in our file copy, but -- or maybe more

16 importantly in the Water Management District, I

17 guess is where this came from. I don't remember

18 that being attached and normally we would not send

19 that, so. . .

20 Q Okay. Let's have the record reflect then

21 that those pages 20 and 21 are not part of the

22 Corps, your comment letter.

23 A Yes, sir.

24 Q Okay.

25 A Do I reference them in there? If they are

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1 referenced it could be, but normally we wouldn't

2 want to do that.

3 MR. EARL: Mark this as Number 2, please.

4 (Petitioner's Exhibit 2 marked for

5 identification.)

6 BY MR. EARL:

7 Q I hand you now Exhibit Number 2, Mr.

8 Bonner, which appears to me to be a draft of the

9 letter we just looked at, correct?

10 A It could be a draft or it could be the file

11 copy.

12 Q Okay. I notice there is some annotations

13 on the second page there, so I --

14 A Referring to the question marks?

15 Q Question marks, and in paragraph one I see

16 a sentence. The second sentence in that paragraph

17 one was deleted from the letter that was sent down

18 to the district, and that sentence reads: The

19 intent of the STA design is to have little or no

20 hydraulic bypass. Do you see that?

21 A Yes, sir.

22 Q That was not in the letter that was

23 actually sent, correct?

24 A Correct, sir.

25 Q Why was that deleted? Do you recall?

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1 A I have no idea. It would appear that --

2 normally we wouldn't make a comment about the intent

3 of someone's other product, that is normally up to

4 then. Generally with technical comments we would

5 not provide comments about intent.

6 Whether that was the reason this was marked

7 out, I do not know.

8 Q Okay. What is the -- as you understand as

9 we sit here today, what is the -- is the STA

10 design -- does it have little or no hydraulic

11 bypass?

12 A I really don't know, sir.

13 Q Okay. Am I correct in understanding, Mr.

14 Bonner, that over the history of the Central and

15 Southern project no comprehensive environmental

16 impact statement has ever been done?

17 MR. BRADY: I'm going to object to the

18 form, but you can go ahead and answer.

19 MR. EARL: Grounds? Can you tell me --

20 MR. BRADY: Terms, comprehensive, it's

21 vague.

22 A You know we've done an environmental impact

23 statement on C-111. We've done it on a number of

24 release that we've done, the modification of the

25 lake levels. Have we done one that took from one

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1 end of the project to the other end in a single

2 document, no, sir.

3 Q Okay. And have you done an EIS on all

4 areas of the project?

5 A That have been constructed subsequent to

6 1969, yes, sir.

7 Q Whether or not they have been constructed

8 on the overall impact of the project, has an EIS

9 been done?

10 A The original works in '35 and some of the

11 other works there were no -- no environmental impact

12 statements prepared prior to.

13 Q Let's talk about starting in -- the work

14 that was started authorizing in '47 and '48. There

15 are parts of that that have never been analyzed,

16 correct?

17 A That's correct.

18 Q What parts are those?

19 A Any project features that were constructed

20 subsequent to -- prior to 1969 would not have had

21 environmental documentation in terms of EIS or EIA.

22 Q Am I correct in understanding that a

23 comprehensive environmental impact statement was at

24 one time proposed by the Corps and actually started,

25 the process was started on the whole project?

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1 A There was discussion of that, yes, sir.

2 Q And there was actually some documentation,

3 wasn't there?

4 A There could have been.

5 Q Well, to your knowledge, was there a

6 draft?

7 A A draft started? I think we just began to

8 do some work on it. I was in planning during that

9 time frame, and the environmental section was under

10 my control and the need to do a full blown EIS we

11 thought was not necessary. We didn't know the

12 purpose of such documents. It was likened to cross

13 Florida, the Okeechobee Waterway, EIS, which we

14 didn't know what purpose it served other than

15 address to the requirement of Congress with some

16 work done on it possibly.

17 Q So the reason the overall EIS was not

18 pursued was what?

19 A Basically the purpose was the gain for the

20 dollars expended. We didn't see the gain. Any

21 modification of the project we would do an

22 environmental impact statement on that change.

23 Q Physical or operational change?

24 A Correct.

25 Q Do you know what the intermaxion (sic) plan

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1 is, Mr. Bonner?

2 A Intermaxion plan. I've heard the term --

3 I'm not sure exactly.

4 Q Do you remember about 1979, the district

5 started sending more water south --

6 A That was the --

7 Q -- instead of back pumping to the lake?

8 A That was the -- when they started the back

9 pump -- I am familiar in general terms. I was not

10 in Jacksonville at that time, but I am familiar with

11 it.

12 Q But from the history of the project you

13 remember they started sending more water south to

14 the conservation are, correct?

15 A That's correct.

16 Q To your knowledge, was any environmental

17 impact statement or environmental assessment done of

18 that?

19 A I do not know of one.

20 Q Okay. Do you know why one was not done?

21 A Well, if one was not done I would assume it

22 would be due to -- it was in response to regulatory

23 activity to the state of Florida pertaining to

24 degradation of water clogged in Lake Okeechobee.

25 Q To your knowledge, did any federal agencies

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1 object to routing more water south?

2 A I really wasn't here, so I don't know, sir.

3 Q Am I correct in understanding that the

4 intermaxion planned change in flows continued?

5 A That's correct.

6 Q To your knowledge, has the Jacksonville

7 district authorized any funding to determine the

8 nutrient threshold in which there are adverse

9 impacts on the Everglades vegetation?

10 A No, sir.

11 Q Okay. And such a study was proposed at one

12 time, was it not?

13 A It may have been.

14 Q Do you know or not?

15 A I don't know. We have done research with

16 the Park Service and others dealing with works and

17 activities associated with water flows through the

18 park. Whether any pieces of those projects may have

19 included this type of activity I don't know. I do

20 not think it has.

21 Q Do you know what the memorandum of the

22 agreement is?

23 A Yes, sir.

24 Q What is the present status of that? Is

25 that still in force in effect?

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1 A Yes, sir, we do have a memorandum agreement

2 with the park and the Water Management District. We

3 are in the process of examining that to see if it

4 needs to be changed.

5 Q What is the date of it currently?

6 A I'd have to look it up, sir. I don't know.

7 Q Well, was it within the last two or three

8 years or is it older than that?

9 A I don't even have a feel for that.

10 Q Okay.

11 A I would think so, but I'm not sure. It's

12 been two or three years.

13 Q Did that memorandum or agreement set levels

14 for nutrients going into Everglades National Park?

15 A No, it did not. It was not dealing with

16 nutrient levels from my memory. It was dealing with

17 the flows, the agreement to make flows go into the

18 Park. I do not remember setting any standards at

19 all.

20 Q Okay. No memorandum or agreement. Do you

21 recall any numeric numbers for nutrients going into

22 Everglades National Park?

23 A I do not recall that, no, sir.

24 Q You did play a role in the federal

25 litigation, did you not, when the -- were you the

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1 Corps' representative, do I understand that

2 correctly?

3 A I really wasn't the Corps' representative,

4 but I played a role, yes, sir.

5 Q What was your role, sir?

6 A I participated in answering questions from

7 justice and others about the settlement.

8 MR. EARL: Why don't we take like a 10

9 minute break and I'll see if we can condense

10 what we have left here and maybe we can finish

11 up very shortly.

12 MR. BRADY: Okay.

13 (Off-the-record discussion.)

14 MR. Earl: Back on the record.

15 BY MR. EARL:

16 Q Mr. Bonner, is it your understanding that

17 the original design for the Central and Southern

18 project, the L-7 canal -- do you know what that is?

19 A No, sir.

20 Q Around the Loxahatchee?

21 A Not specifically.

22 Q Okay. Is it your understanding that the

23 original design included a levy on both sides of the

24 canal, so water would not flow into the interior of

25 the Loxahatchee?

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1 A No, sir. I'm not aware of that. I'd be

2 surprised about that.

3 Q You'd be surprised about that. Was it your

4 understanding that the original design configuration

5 of Loxahatchee was otherwise different?

6 A Original configuration and design for

7 Loxahatchee conservation area -- it could have been

8 modified through the DM process, design and

9 memorandum process. I'm not aware of that.

10 Q You'd be surprised that another levy was --

11 anterior levy was called for? You said --

12 A Loxahatchee was originally designed to take

13 flood waters and to act as a conservation areas. As

14 of the others I would have to look at the design,

15 but, yeah, I would have been surprised.

16 MR. EARL: Okay. I don't have any further

17 questions for this witness. Would you read and

18 sign? You would have the right to read.

19 MR. BRADY: Yeah, we won't waive. We'll

20 read and sign and I have no questions.

21 MR. EARL: Okay. You're done.

22 (Witness excused.)

23 (Whereupon, at 11:27 a.m. the taking of the

24 deposition was concluded.)

25 - - -

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2 CERTIFICATE OF REPORTER

4 STATE OF FLORIDA)

5 COUNTY OF DUVAL )

7 I, Allison B. Pauline, Notary Public in and

8 for the State of Florida at Large, do hereby certify

9 that the witness herein was duly sworn by me.

Allison B. Pauline

13 Notary Public

State of Florida at Large

14 My commission expires:

06/29/97

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1 AFFIDAVIT OF REPORTER

3 STATE OF FLORIDA)

4 COUNTY OF DUVAL )

6 Before me personally appeared Allison B.

7 Pauline, who, being duly sworn, stated as follows:

8 The foregoing transcript is a true record

9 of the proceedings and/or testimony given by the

10 witness.

Allison B. Pauline

13 Affiant

16 The foregoing certificate was sworn to and

17 subscribed before me this day of ,

18 1994, by the affiant, who is personally known to me.

21 Notary Public

State of Florida at Large

22 My commission expires:

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1 E R R A T A S H E E T

2 STATE OF FLORIDA

3 COUNTY OF DUVAL

5 I, RICHARD BONNER, the undersigned

6 deponent, have this date read the foregoing pages of

7 my deposition, numbered 1 through 52, and with the

8 suggestions noted below, if any, these constitute a

9 true and accurate transcription of my deposition

10 given on the 4th day of April, 1994, at the time and

11 place stated therein.

13 PAGE NUMBER LINE NUMBER SUGGESTION/REASON

25 RICHARD BONNER

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