1

1 VOLUME I

STATE OF FLORIDA

2 DIVISION OF ADMINISTRATIVE HEARINGS

3 SUGAR CANE GROWERS COOPERATIVE OF

FLORIDA, INC., ROTH FARMS, INC.,

4 and WEDGWORTH FARMS, INC.,

5 and

6 FLORIDA SUGAR CANE LEAGUE, INC.,

UNITED STATES SUGAR CORPORATION,

7 and NEW HOPE SOUTH, INC.,

8 and

9 FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038

ASSOCIATION, LEWIS POPE FARMS, 92-3039

10 W.E. SCHLECHTER & SONS, INC., and 92-3040

HUNDLEY FARMS, INC.,

Petitioners,

vs.

SOUTH FLORIDA WATER MANAGEMENT

14 DISTRICT,

15 Respondent,

16 and

17 MICCOSUKEE TRIBE OF INDIANS OF

FLORIDA, the UNITED STATES OF

18 AMERICA, FLORIDA DEPARTMENT

OF ENVIRONMENTAL REGULATION, and

19 FLORIDA WILDLIFE FEDERATION,

20 Intervenors.

. . . . . . . . . . . . . . . . . . . /

23 DEPOSITION OF ROXANE R. DOW

24 November 23, 1992

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2 DEPOSITION OF ROXANE R. DOW

3 Taken in the above-styled cause, pursuant to

4 notice, at the Department of Environmental Regulation, 2600

5 Blair Stone Road, Tallahassee, Florida, on November 23,

6 1992, commencing at 9:30 a.m.

8 Reported by:

9 DEBRA ROTRUCK KRICK

10 Court Reporter

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1 APPEARANCES OF COUNSEL:

2 On behalf of the Petitioners Sugar Cane Growers Cooperative

of Florida, Inc., Roth Farms, Inc., and Wedgworth Farms,

3 Inc.:

4 William H. Green, Esq.

Hopping Boyd Green and Sams

5 123 South Calhoun Street

Tallahassee, FL 32301

On behalf of the Petitioners Florida Sugar Cane League,

7 Inc., United States Sugar Corporation and New Hope

South, Inc.:

William L. Hyde, Esq.

9 Peeples, Earl & Blank

215 South Monroe Street

10 Suite 350

Tallahassee, FL 32301

On behalf of the Intervenor United States of America:

Keith E. Saxe, Esq.

13 United States Department of Justice

Environment & Natural Resources Division

14 601 Pennsylvania Avenue NW

Washington, D.C. 20044

On behalf of the Intervenor Department of Environmental

16 Regulation:

17 Keith Hetrick, Esq.

Assistant General Counsel

18 State of Florida

Department of Environmental Regulation

19 Twin Towers Office Building

2600 Blair Stone Road

20 Tallahassee, FL 32399-2400

21 Also appearing: Randy Armstrong

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1 INDEX TO WITNESS

2 ROXANE R. DOW PAGE

3 Examination by Mr. Hyde 5

4 INDEX TO EXHIBITS

5 No. MARKED

6 1 12

7 2 12

8 3 75

9 4 77

10 5 120

11 6 123

12 7 127

13 8 130

14 9 141

15 10 143

16 11 152

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1 D E P O S I T I O N

2 Whereupon,

3 ROXANE DOW

4 was called as a witness, having been first duly sworn to

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

6 truth, was examined and testified as follows:

7 EXAMINATION

8 BY MR. HYDE:

9 Q Would you please state your name and address for

10 the record, please?

11 A Yes, my name is Roxane, R-o-x-a-n-e, middle

12 initial, R., Dow, D-o-w. I live at 1916, East Indianhead,

13 one word, Drive, Tallahassee, 32301.

14 Q Ms. Dow, my name is Bill Hyde. I am here on

15 behalf of the Florida Sugar Cane League, the U.S. Sugar

16 Corporation and New Hope South, Inc., and with me today is

17 Randall Armstrong who is just walking in the room, and Bill

18 Green is here on behalf of the Sugar Cane Growers

19 Cooperative.

20 I will be asking you a series of questions today

21 about your anticipated testimony in an upcoming hearing on

22 the Everglades SWIM Plan which was adopted by the governing

23 board of the South Florida Water Management District. For

24 purposes of my questions, I will just simply be referring

25 to the Water Management District as the District as opposed

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1 to saying their entire name each time. The Department, of

2 course, will be DER, and other appropriate acronyms and

3 abbreviations will be utilized as well.

4 During the course of my questioning if you do not

5 understand the gist of the question or if you need further

6 clarification, please tell me so, and I will try to

7 rephrase the question and see if it provides you with any

8 additional information you need to frame an answer. If any

9 of the attorneys object at any time to a question, I will

10 ask you to please offer your testimony at that time and let

11 us thrash out the objection and then we can resume the

12 deposition. Do you understand all of that?

13 A That's fine.

14 Q Okay. Ms. Dow, did you receive a notice of taking

15 deposition I think dated November 4, 1992?

16 A I received a notice. I couldn't swear to what the

17 date was on it.

18 Q Did you review the documents that were listed in

19 that document that we had requested you to produce in

20 connection with this deposition?

21 A I did not go through my files as a result of

22 receiving that summons, no. I had collected those kind of

23 documents before and previously supplied them. I just went

24 down the list to make sure that I had included the things

25 that I thought was included and pointed out to the

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1 attorneys what I thought may not be included.

2 Q Okay. Did you withhold any documents from the

3 list of documents that were requested?

4 A Well, I discussed with them whether or not I

5 needed to produce every document on water quality standards

6 that I had ever seen cross my desk, which would have

7 involved 10 years of work here, and I believe we have

8 agreed I didn't need to produce everything on every water

9 quality standard that ever crossed my desk.

10 Q I think Paul Parks did. He produced his

11 documents.

12 Let me just go through these categories just to

13 make sure that we have covered everything. The first is

14 any and all documents relied upon in preparing,

15 formulating, developing, authoring, co-authoring, reviewing

16 and/or organizing anticipated expert testimony related to

17 the subject matter of this action.

18 A Yes.

19 Q Okay. Number two, any and all documents relied

20 upon in preparing, formulating, developing, authoring,

21 co-authoring, reviewing and/or organizing anticipated

22 expert testimony related to Ms. Dow's opinion that the

23 strategies proposed by the SWIM Plan meet the objectives of

24 the SWIN Act and the scientific data that supports those

25 strategies.

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1 A Yes.

2 (Discussion off the record.)

3 BY MR. HYDE:

4 Q Number three, any and all documents relied upon in

5 preparing, formulating, developing, authoring,

6 co-authoring, reviewing and/or organizing anticipated

7 expert testimony related to water quality standards being

8 violated in the Everglades.

9 A Yes.

10 Q Okay. You know, instead of reading all of these

11 maybe I could just go through, you know, you could look at

12 the numbers and tell me whether all of those documents have

13 been prepared.

14 A The other issue that we discussed that I, you

15 know, that we need to make sure you understand, I do not

16 handle this, I am not a technical biological or chemical

17 expert, and I do not have documents that relate to those

18 kinds of issue.

19 My documents, my files and the files that, you

20 know, I left in the Bureau when I left, which are produced

21 probably under Bart's request, have to do with supervising,

22 you know, resolving issues between employees over decisions

23 to be made on the SWIM document. I am not a technical

24 witness and don't have documents related to the biological

25 changes in the Everglades or the computer records on

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1 phosphorous levels or those kinds of things, so those were

2 the two issues that we discussed in the summons.

3 Q Are any of those documents that apparently are in

4 Mr. Bibler's custody right now documents that you prepared

5 or created as opposed to maybe a document that you simply

6 reviewed at some point in the context of the Everglades

7 SWIM Plan?

8 A I honestly don't know. I mean I left the bureau

9 chief's files with the bureau chief's position, and as that

10 organization got splintered and redivided and sent other

11 places, those files went with the appropriate people.

12 Q Okay. When did you leave the Bureau?

13 A Well, I left the Bureau early this year. The SWIM

14 program left the Bureau before that in a reorganization. It

15 went to the Secretary's Office and became a part of

16 intergovernmental programs and took the SWIM and coastal

17 zone management functions with it. So I don't remember

18 exactly when it left, but at some point in I think '91 it

19 became a different part of the DER and not a part of the

20 Bureau of Surface Water Management.

21 Q Well, who currently has the custody of your former

22 documents?

23 A Bart Bibler.

24 Q Is he the only person that we would look to for

25 that?

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1 A Unless he gave them away since I left.

2 (Discussion off the record.)

3 BY MR. HYDE:

4 Q Back on the record. Ms. Dow, what sort of

5 documents that you have created would be in the files that

6 you turned over to Mr. Bibler?

7 A I was just trying to think. I did not do general

8 creation of documents as a rule. I mean, there may be some

9 notes from a discussion with a staff member or some

10 comments on rewording of the documents, but I did not, I

11 was not in the habit of preparing draft letters, I was not

12 in the habit of even preparing memos. Generally my

13 dealings with these things took place, you know, in a

14 meeting with one or more staff in order to make sure that

15 whatever was produced was clear.

16 MR. HYDE: Okay. Let me suggest that we deal with

17 it this way, and I hope that this won't even be a

18 necessary alternative at such time in the future. I

19 trust and expect that all such documents will be

20 produced when we depose Mr. Bibler or as this objection

21 notes that Tom Swihart, and if at such time we

22 encounter some documents that are of a substantive

23 nature and they are Roxane's documents, then we would

24 like to reserve the opportunity to question Ms. Dow

25 again about those documents if indeed it is necessary.

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1 I don't anticipate that that would be necessary, but I

2 am concerned about the effect of our discovery and

3 scheduling order which to date hasn't been changed and

4 I believe most of the parties are operating under the

5 assumption that people will be deposed once and just

6 once absent unusual circumstances. This may be such an

7 unusual circumstance, I don't know, but I would just

8 like to, you know, make that reservation for a later

9 opportunity should the need arise.

10 MR. HETRICK: I will agree to that.

11 MR. HYDE: Okay. I guess we can move on to that

12 point.

13 BY MR. HYDE:

14 Q I think I may have already asked this question,

15 but I want to make sure I understand the answer. Have any

16 documents been specifically withheld on the basis of any

17 claimed privilege such as an attorney/client privilege or

18 work product privilege at the instruction of your

19 attorneys?

20 A None of the documents in my possession have been

21 withheld.

22 MR. HETRICK: I want to make a point clear. We

23 have withheld some of her documents, and we will

24 provide you with a list of those documents.

25 MR. HYDE: When do you anticipate we will be able

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1 to get that?

2 MR. HETRICK: You will be able to get that this

3 week.

4 MR. HYDE: Okay. By Wednesday?

5 MR. HETRICK: Yes.

6 MR. HYDE: Okay.

7 BY MR. HYDE:

8 Q I guess enough on that score.

9 I would like to ask you a few questions about

10 your background, Ms. Dow. You're, first of all let me have

11 you identify a document. Let's label it Exhibit 1.

12 (Whereupon, Exhibit No. 1 was marked for

13 identification.)

14 BY MR. HYDE:

15 Q Could you please identify Exhibit 1?

16 A Yes, that's my vitae.

17 Q Okay. Is that your current vitae?

18 A Let's see, yes.

19 Q Okay.

20 MR. GREEN: Do you have extra copies, Bill?

21 MR. HYDE: Yes, I do.

22 MR. SAXE: Thank you.

23 BY MR. HYDE:

24 Q Would you please identify Exhibit 2?

25 (Whereupon, Exhibit No. 2 was marked for

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1 identification.)

2 BY MR. HYDE:

3 Q Have you seen that document before?

4 A Looks like an old vitae.

5 Q Okay. Would you regard this Exhibit 2 as having

6 been supplanted by Exhibit 1?

7 A Yes.

8 Q Okay. Let's refer back to Exhibit 1, then, if you

9 will.

10 MR. SAXE: Excuse me, Counsel, copies of the

11 second exhibit?

12 MR. HYDE: Yes.

13 BY MR. HYDE:

14 Q Okay. When did you, would you begin with your

15 educational background beginning with your degree from

16 college. I note that you have a degree in botany from the

17 University of South Florida.

18 A That's correct.

19 Q Was there any specific area in which that degree

20 was obtained or was botany just the category that it was

21 offered in?

22 A The title of the college was I believe botany and

23 bacteriology, actually. My Bachelor's degree was in botany

24 and is primarily plant anatomy kinds of interests. My

25 Master's degree had to do with microbes and their reaction

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1 to, my Master's thesis had do with microbes and their

2 reaction to antibiotics as measured in a microcalorimeter.

3 It is definitely a more of a bacteriology microbial bent

4 than the botany --

5 Q Okay.

6 A -- the plant identification end.

7 Q Could you explain in a little more detail just the

8 nature of your Master's thesis? That description didn't

9 tell me an awful lot because I am not a scientist.

10 A A microcalorimeter is a machine that measures

11 minute changes in heat, and we used very dilute solutions

12 of various pathogens and exposed them to antibiotics to see

13 if we could detect by their heat response whether the

14 antibiotic was killing them or not in an attempt to find a

15 quicker medical technique determining what kind of

16 antibiotic to give you should you come down ill with a

17 bacterial disease.

18 Q Did you take any subsequent graduate courses after

19 you obtained your Master's degree?

20 A Oh, I took a course in hydrology, I took a couple

21 of computer courses. I mean I picked up some sort of

22 environmental sciences courses here and there as I have

23 moved around the state -- nothing particularly related to a

24 degree or even an academic curriculum, just sort of general

25 background kinds of courses.

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1 Q Have you taught any courses since obtaining your

2 Master's degree?

3 A I have taught classes in courses, I haven't

4 actually been an instructor for a course.

5 Q When you say you have taught classes in courses,

6 is this at a university or in a university setting?

7 A Yes.

8 Q Which university was that?

9 A Edison Community College, FSU and Lively Voc-Tech.

10 Q Where, give me a representative example of the

11 kind of classes you taught and those circumstances?

12 A Oh, in a basic sort of environmental consciousness

13 raising -- how stormwater, you know, involves you in your

14 life and your habits. Typically there would be, you know,

15 what is, what does a state government person do who has a

16 degree in a science, and why might you want to pursue this

17 kind of curriculum so that you could have a job like mine

18 or like one that I would describe.

19 Q Would you consider these classes to be

20 non-technical in nature?

21 A Oh, often they were in a technical course, but

22 they were not particularly designed to teach somebody hard

23 science.

24 Q Okay. Once you obtained your Master's degree

25 would you start listing for me what your job positions,

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1 jobs that have been related to your degree?

2 A As soon as I got my Master's degree, I went,

3 returned home to Orlando and operated the family owned

4 laboratory called DOW-LAB Research from, all of, well --

5 all of '76 and the first couple months of '77. Then I got

6 a job at the district office for DER in Fort Myers working

7 in compliance and enforcement in industrial and domestic

8 waste.

9 Q Was that, would you review permits in that

10 position or was that an enforcement type position?

11 A I reviewed permits to the extent of what did I

12 need to know in order to determine whether an applicant or

13 a permit holder was in compliance or not, but I did not

14 write permits, I did not review permit applications. I was

15 a compliance assurance and enforcements person. I wrote

16 people up for violating their permits.

17 Q Okay. How long did you stay in that position?

18 A Until February of '78.

19 Q Okay. And then what was your next position?

20 A Then I did the same sort of thing, plus permitting

21 for solid waste for six months in the Fort Myers office.

22 Q Why did you make that job transition?

23 A It was considered a promotion.

24 Q Okay. At the end of your six month period in

25 reviewing solid waste matters, what did you do?

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1 A Then I got a real promotion to do drinking water

2 compliance assurance and enforcement and water well

3 permitting.

4 Q Was that also in the Southwest District office?

5 A That was also in Fort Myers.

6 Q How long did you stay in that position?

7 A Until May of '79.

8 Q What did you do in May of 1979?

9 A I made the big jump to Tallahassee.

10 Q Was that considered a promotion at that time?

11 A Well, if I recall, it wasn't much of a promotion,

12 but it got me out of an office in which there was no

13 opportunity for further advancement to an office in which

14 there was opportunity for further advancement, so, yes, it

15 was a promotion.

16 Q Okay. And what did you begin doing up here in

17 Tallahassee at that time?

18 A And then I was the training coordinator for the

19 water and waste water certification sections here in

20 Tallahassee, statewide assistance to the universities and

21 the vocational schools that did training, certification of

22 those training programs that were eligible for being

23 counted as credit for people who needed operator

24 certification.

25 Q Okay. How long did you stay in that position?

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1 A Until November of '79. I recall that was six

2 months, too.

3 Q Okay. And then where did you go?

4 A And then I went to the office of the deputy

5 director for permits. I think it was just called

6 permitting then. I was the water quality assistant in the

7 Division office. There were four of us, each program

8 aligned. I was the water quality assistant. We did sort

9 of everything that was necessary to prepare background

10 materials and brief the deputy and the division director

11 and things to coordinate primarily between the District

12 offices activities and the division of programs and any

13 decisions that would be being funneled up to the

14 Secretarial level.

15 Q Who was the director of permitting at that time?

16 A Steve Fox.

17 Q Okay. And how long did you stay in that position?

18 A Stayed there until October of '84.

19 Q And at that time what did you transfer to?

20 A I became, I was selected to be the chief of the

21 Bureau of Surface Water Management.

22 Q Was that a newly-created position?

23 A No.

24 Q Okay. What did your duties in that position

25 entail?

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1 A Let's see, when I first became bureau chief we had

2 the stormwater sections, we had the quality assurance and

3 monitoring sections and we had the point source

4 evaluation -- I forget what it was called, but it wasn't

5 called point source evaluation back there, but it is,

6 that's what it is now, -- doing waste load allocations and

7 assisting in determining effluent limits for point sources.

8 Q And I believe you stayed in at that position until

9 earlier this year, is that correct?

10 A That's right.

11 Q Why did you, well, why did you change job

12 positions at that time?

13 A I was tired of being bureau chief. There was a

14 new position created, it was called a federal coordinator,

15 it had activities and duties that were appealing to me, and

16 it was in the Secretary's Office. It was something that I

17 considered a promotion for myself.

18 Q Okay. In your former position as the bureau

19 chief, who was your supervisor?

20 A Well, I had many supervisors.

21 Q To whom did you specifically answer?

22 A I am sorry, the position, I reported to the

23 Division of Water Management division director.

24 Q Who was that person?

25 A When I left it was Mark Latch.

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1 Q Okay. Is it someone different now?

2 A No, it is still Mark Latch.

3 Q Okay. In your current position to whom do you

4 report or who is your supervisor?

5 A I report to the Assistant Secretary.

6 Q And that is?

7 A Dana Minerva.

8 Q Okay. During the course of your employment with

9 the Department have you been asked to testify as an expert

10 witness in administrative or judicial proceedings?

11 A Yes.

12 Q And have you been qualified as an expert in

13 administrative or judicial proceedings?

14 A I was qualified as an expert, I believe twice. I

15 can't actually tell you in what.

16 Q Okay. Do you remember what those hearings were

17 about? First of all were they administrative or judicial

18 proceedings?

19 A Administrative.

20 Q Okay. Do you recall whether they were a

21 permitting or enforcement type of proceeding?

22 A Sanford was a permitting.

23 Q Is that the City of Sanford?

24 A City of Sanford, yes. I can't remember what the

25 other one was.

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1 Q Okay. Do you remember who the parties were to

2 that other proceeding?

3 A Not right offhand. I will think of it, but --

4 Q Okay. Do you remember the general subject matter

5 of that second hearing?

6 A Well, it dealt with water quality standards --

7 Q Okay.

8 A -- that type of thing.

9 Q Okay. The City of Sanford case, what was it

10 about?

11 A It was about whether not their sewage treatment

12 plant could be permitted under the scenario that they

13 requested or not.

14 Q Okay. Was this a circumstance where the

15 Department denied or proposed to deny the City a request to

16 permit, or was it one where a third party was challenging

17 the issuance of a permit?

18 A It had to do with the Department's proposed

19 denial.

20 Q Okay. Do you recall why the Department wanted to

21 deny that permit?

22 A Yes, because there were documented water quality

23 violations and they were contributing to them.

24 Q Okay. When you say documented water quality

25 violations, were you speaking of a given surface water

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1 body?

2 A Yes, Lake Monroe.

3 Q Okay. What, if you recall, were those water

4 quality violations?

5 A I don't remember all of them. I know dissolved

6 oxygen was one.

7 Q Okay. Were they nutrient-related --

8 A Yes.

9 Q -- problems?

10 A Probably among others beings, but --

11 Q What did the, what, if anything, was the

12 Department trying get the City of Sanford to do other than

13 simply to deny their permit? Were they urging the City to

14 go to some alternative process of treatment or ultimate

15 disposal of the treated effluent?

16 A The Department was interested in having a permit

17 application that they could approve. How the City of

18 Sanford resolved meeting state requirements is the business

19 of the City of Sanford and their consultants.

20 Q So you were waiting for the City to make a

21 proposal?

22 A Yes.

23 Q Do you recall how that permit proceeding was

24 resolved?

25 A No.

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1 Q Did it actually go to a final hearing where you

2 offered testimony?

3 A Oh, yes.

4 Q Okay. But you don't recall the results of that

5 proceeding?

6 A It was resolved somehow.

7 Q Okay. Do you recall what year that proceeding

8 occurred in?

9 A No, it was early, fairly early in my tenure as

10 bureau chief because it still, you know, that section

11 didn't work for me for all that long, but I don't remember

12 the exact date.

13 Q Okay. Do you recall whether the Department

14 considered or entertained the establishment of water

15 quality based effluent limitations for that permit?

16 A Well, we looked at whether the proposed effluent

17 limits in the permit application would meet water quality

18 standards, so that's the same process as coming up with a

19 water quality based effluent limitation.

20 Q Well, did the Department go through the relatively

21 formal process by which one establishes a QBEL, that's

22 Q-B-E-L, acronym for water quality based effluent

23 limitations?

24 A Well, we would have cranked through the same

25 process, yes.

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1 Q Okay. And was that the basis of the Department's

2 determination that, or did the Department determine that

3 those effluent limitations were inadequate?

4 A Yes.

5 Q Okay. The other proceeding that you referred to a

6 few moments ago, was that also a sewage treatment plant

7 permit proceeding?

8 A I honestly don't recall. I just remember sitting

9 there in the witness stand, and I don't remember precisely

10 which of the hundreds of issues I dealt with it was.

11 Q Was it, too, a permitting proceeding as opposed to

12 an enforcement proceeding?

13 A I just don't recall.

14 Q Okay. Have you been asked to prepare any

15 testimony for the proceeding for which this deposition has

16 been noticed?

17 A No.

18 Q Okay. Have you formed any opinions concerning

19 this proceeding specifically regarding the Everglades SWIM

20 Plan that has been adopted by the governing board of the

21 water management district?

22 A Are you asking if I have formed an opinion

23 specifically on the SWIM Plan?

24 Q Yes.

25 A Well, at the time -- the last time I reviewed

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1 where we were at with the SWIM Plan, I believed that we had

2 gotten a document that was approvable under the statute and

3 rule that we had to approve the SWIM Plan.

4 Q Okay.

5 (Discussion off the record.)

6 MR. GREEN: Keith, you just asked whether I had

7 the same understanding that you did, that Ms. Dow just

8 testified concerning compliance of the SWIM Plan with

9 the appropriate statutes, and I can't really answer

10 that because I don't know what draft she was speaking

11 of and which provisions, and I guess Mr. Hyde is going

12 to explore that now.

13 MR. HETRICK: I mean, that's the way I see it. Do

14 you have any different, I mean, that's why we are here,

15 you know, to find out how she, or I guess that's why

16 you're here is to find out how she arrived at that

17 opinion.

18 MR. HYDE: Well, I am frankly just a bit concerned

19 that we are starting to see a trend here in the

20 Department's witness, and I am not accusing anyone of

21 any bad faith at this point, it just appears to me that

22 what we are doing here doesn't meet the true intent of

23 the discovery and scheduling orders which the witnesses

24 are to have their opinions formulated at such time as

25 they're deposed, and I will attempt to question Ms. Dow

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1 about what she's done in this regard, but I must state

2 that I am concerned about whether, and the extent to

3 which we are dealing with today final opinions that may

4 be offered by this witness at a final hearing in this

5 case.

6 MR. HETRICK: Let me just say one thing and you

7 can explore this, and I don't want to put words in your

8 mouth, but I think that that document, the witness

9 designation document, that you have before you, that

10 she's going to testify as to water quality standards

11 that she has knowledge of, give her expert opinion

12 regarding those as they apply to the SWIM Plan. She

13 can certainly testify as to various draft versions that

14 lead up to her opinion that I think she just testified

15 to, and that is that SWIM Plan is consistent with the

16 rules and the statutes based on her understanding of

17 the statutes.

18 She is here to give a global perspective on that

19 and that's her opinion that she's arrived at based on

20 her analysis of the rules and the statutes, and that's

21 what I think you're here to explore. If it, if you, I

22 mean I --

23 MR. HYDE: Well, let's me just begin asking some

24 questions, and if we encounter some problems, I will

25 note them and we can discuss them at a later point.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 BY MR. HYDE:

2 Q Ms. Dow, the Department's witness designation

3 essentially states that you will be testifying that the

4 Everglades SWIM Plan that has been prepared by the District

5 is consistent with the objectives and requirements of the

6 SWIN Act and applicable rules. I know what the SWIN Act

7 is, what are the applicable rules that you have ruled for a

8 consistency determination?

9 A Well, essentially you have 17-43 which deals,

10 which is the administrative rule regarding how the

11 Department and the Water Management Districts implement the

12 SWIM program. Then the other ones that you are going to be

13 concerned on are 17-40 which is the State water policy

14 which refers back to the water quality standards rule.

15 Q Is that rule 17-302 --

16 A Yes.

17 Q -- State water quality standards?

18 A Yes.

19 Q Okay.

20 A And perhaps others, but that was the one that

21 primarily concerned us and then the State comprehensive

22 plan.

23 Q When you considered the compliance with the State

24 water quality standards did you also consider the

25 outstanding Florida water provisions that are contained in

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 17-4 -- .242, or is it 244?

2 A I don't believe that's where they are anymore, but

3 yes, it did include the OFW.

4 Q Okay. Where are they?

5 A I think they're 302 now too.

6 Q Okay. I guess I need to look at the standards

7 more frequently.

8 A Got to keep up with it.

9 (Discussion off the record.)

10 BY MR. HYDE:

11 Q How did you go about making a determination that

12 the Everglades SWIM Plan complied with the provisions of

13 rule 17-43?

14 A Well, 43 is an administrative type rule that plays

15 out who does what when, what the factors are that have to

16 be considered at each juncture.

17 Q Is 17-43 sort of like a check list rule where you

18 go through the various steps, where you make certain that

19 various elements are included in the SWIM Plan as opposed

20 to a substantive review of that plan?

21 A I think that's a debatable statement. When we

22 wrote the rule there was quite a bit of debate about how

23 much further the rule should go than what the statute said,

24 and what kinds of additional direction the Department

25 should give.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 There was a great deal of concern that the beauty

2 of the SWIM program was that it was to be an overreaching,

3 integrating kind of planning exercise, and that it was to

4 be very specific for each water body. So the more

5 parameters you put in the rule, the less likely you were to

6 succeed at having a truly water body specific kind of

7 document. So the rule in effect is a pretty bare bones

8 kind of outlining of procedures, timing, who does what, and

9 I personally think weak on substance. Other people will

10 argue that it has more than enough substance in it.

11 We also had adopted as part of that a procedures

12 manual where we very specifically gave staff direction in

13 the procedures manual and let other people know how we

14 would be handling the distribution of copies, who would

15 review, how much time they would have, those kinds of

16 mechanical things. So there was a great deal of interest

17 on the part of at least the water management districts -- I

18 don't really recall that any other parties particularly

19 cared -- but to know specifically how the paper would flow

20 and what the restrictions would be in terms of timing on

21 review comments.

22 Q Were you the person who is responsible for making

23 the determination the Everglades SWIM Plan complied with

24 rule 17-43?

25 A Oh, it was definitely a group consensus approach.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 I was a party to those discussions as I was in every other

2 SWIM Plan that came through, but usually only to the extent

3 that there were issues that had not been resolved through

4 the consensus process and the comments. It was very rare

5 for there to be an issue outstanding at the time of formal

6 review of a SWIM Plan that had not been resolved in prior

7 discussions.

8 Q Did this consistency determination take place for

9 each of the various earlier drafts or iterations of the

10 Everglades SWIM Plan?

11 A This, particularly the Swim coordinators for each

12 water body always tried to make sure that the broad aspects

13 of the plan were being addressed as the early stages went

14 through. That was why we appointed individuals as SWIM

15 coordinators to make sure that we would have plans that

16 didn't leave out required aspects and that were in fact as

17 global as possible. There was a great tendency in the

18 early stages to get bogged down in doing the easy stuff or

19 the obvious stuff or the stuff that had been done before

20 and not truly be an overall plan that would eventually

21 result in significant improvement in the given water body.

22 Q Are you aware of any documents that you or anyone

23 else with the Department created which would reflect the

24 Department's determination of consistency with rule 17-43?

25 A There were formal memos from the staff

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 specifically if there were problems. If there were not any

2 problems they would generally draft a letter that approved

3 it.

4 Q Okay. And this would be true for each earlier

5 iteration of the SWIM Plan?

6 A Well, they wouldn't have done it in the terms of a

7 formal review for an early draft. They were sent a draft

8 for review as project coordinator. They would directly

9 communicate with the project coordinator in the District as

10 to any problems that they would see.

11 Q Okay. What about rule 17-40, the State water

12 plan, were you the person who was responsible for making

13 that consistency determination?

14 A State water policy.

15 Q Excuse me?

16 A Again the staff would do the preliminary and early

17 reviews. They would look for probable areas, they would

18 try to point out to the water management district project

19 coordinator if there were aspects that they thought that

20 they were running shy on. Water policy is not as precise

21 as it might be, so they were generally matters debated

22 among the staff and consensus was again reached. It was

23 their jobs to make sure that consensus was reached before

24 the formal review took place if at all possible.

25 Q Who was on the staff that made that review?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A Well, all of the SWIM coordinators worked for

2 Bart Bibler under me, the Everglades staff I believe

3 started with Peggy Mathews, and I think when she left it

4 had to be picked up by Gail Sloane.

5 Q Gail Sloane?

6 A Sloane.

7 Mr. Bibler was particularly involved in the

8 Everglades Plan since we knew it was going to be more

9 controversial than probably any of the others that we had

10 previously approved. There were review staff from the

11 District office, primarily Herb Zebler --

12 Q Herb Zebler?

13 A -- Zebler -- and people in the Division of Water

14 Facilities. The Bureau of Wetland Restoration was asked

15 for comments.

16 Q Can you back up for just a moment and identify the

17 individuals that you were just referring to as opposed to

18 just saying that bureau.

19 A I will try. Bart Bibler worked for me, and was

20 formerly in charge of the section that did the SWIM

21 review.

22 Q Okay.

23 A Comments, drafts or requests for comments were

24 sent to people identified by the divisions as SWIM Plan

25 commentors. We had a great deal of problem with that,

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 keeping that list up, accurate, in not every instance was

2 the person on the list, the person or persons who ended up

3 commenting.

4 In the particular district office Herb Zebler was

5 considered to be the prime person. He may have accepted

6 comments from other people in the District as well, but he

7 was the prime commentor.

8 I do not know who in the Bureau of Wetland

9 Resource Management was the commentor in this particular

10 case or in fact if they responded, and I do not know the

11 specific name of the Everglades person in the Division of

12 Water Facilities.

13 Q Okay. Are you aware of any listing of the persons

14 who were responsible for commenting on this plan?

15 A We tried to maintain a listing for the State as a

16 whole, each water management district, and tried keep that

17 up-to-date, and periodically update that, and those lists

18 were circulated.

19 Q Okay. Could we obtain a copy of that list? I am

20 not aware that any one has been produced to us at this

21 point.

22 MR. HETRICK: Which list are you talking about?

23 MR. HYDE: A list of the persons who were the

24 commentors on particularly just the Everglades SWIM

25 Plan. I am not concerned about the other SWIM Plans.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 It would be useful for me to know just who those

2 persons were.

3 MR. HETRICK: So it was an Everglades SWIM Plan

4 list?

5 THE WITNESS: No, it was a list for the State as a

6 whole.

7 MR. HYDE: Okay.

8 MR. HETRICK: A list of participants?

9 THE WITNESS: Uh-huh.

10 MR. HYDE: Okay.

11 BY MR. HYDE:

12 Q Did you go through a similar exercise when

13 determining whether the SWIM Plan was consistent with the

14 provision of rule 17-302?

15 A That was, I mean, when they came in for the, when

16 the draft came in for the first formal review, all of those

17 particular issues were to be looked at --

18 Q Okay.

19 A -- in compliance with the State comp plan, 17-40,

20 17-43, and this would have subjective decisions about

21 whether or not the plan in general would result in

22 significant improvement and whether it was implementable.

23 Q Okay. When did you first become involved in the

24 SWIM Planning process for the Everglades SWIM Plan?

25 A I first became involved in the SWIM process as

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 soon as the statute passed. I think inherently the way

2 that that process evolved affected the development of the

3 Everglades SWIM Plan. One of the earliest, I guess,

4 considerations had to do with the list, the priority list

5 that the water management district produced and how the

6 Everglades was to be categorized, broken up, segmented and

7 listed.

8 Q Were the water conservation areas a part of that

9 priority list that the District submitted to DER?

10 A The lists were submitted and then were to be

11 updated, and there were changes in opinions and how, you

12 know, how best to approach it as the lists were evaluated

13 and were drawn. The Everglades was not a priority water

14 body in the statute, so its development could not take

15 place no matter whether it was segmented as the water

16 conservation areas, individually or collectively, the water

17 conservation areas and the park, or the park separately,

18 the ESA versus the water conservation areas collectively or

19 separately. All of those considerations were discussed

20 periodically as people thought about updating their list,

21 but they had to develop the Lake Okeechobee, the Biscayne

22 Bay, and the Indian River Lagoon SWIM Plans before they

23 could even approach that.

24 Q Do you know why those areas weren't considered

25 priorities while the others were by the Legislature?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A I have no idea why the Legislature made those

2 choices.

3 Q Okay. When did you first become involved in the

4 review of the Everglades SWIM Plan or its earlier drafts as

5 opposed to general involvement in the SWIM Planning

6 process?

7 A I think that we first discussed something that

8 would be, you know, akin to some of the earlier contract

9 work for the Everglades SWIM Plan immediately after the

10 approval of the Lake Okeechobee plan. It seemed to flow

11 naturally that they wanted to do the Upper Kissimmee Basin

12 first, since they wanted to look at it from the watershed

13 beginning down through, but clearly the Lake Okeechobee

14 technical advisory committee was finding lots of problems

15 and was going to highlight the Everglades, and it was a

16 matter of discussion of how thin could the water management

17 district staff be spread, what was inevitably going to take

18 up their time as opposed to what would be their

19 professional recommendations for a logical process.

20 And I think we started discussing basically taking

21 the low tech work and using that to build an Everglades

22 SWIM Plan immediately. I honestly can't tell you what year

23 or date that was, I can only relate it to a sequence of

24 things that were happening.

25 Q Okay. Well, do you recall when you were first

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 involved in the review of the SWIM Plan that was submitted

2 to the Department in 1990?

3 A I probably didn't actually see or have any pieces

4 of paper in my hands until, you know, late '89 early '90.

5 I was not in the habit of looking at, you know, contracts

6 that were let to do the preliminary work. The staff

7 handled approvals of those. There were not any specific

8 documents that would have come up to me other than in a,

9 you know, sort of a classic, by the way we have, this kind

10 of thing. I certainly wasn't involved in any decision-

11 making until some of the early drafts indicated to the

12 staff that the draft that was going to be submitted for

13 formal preliminary approval was not going to meet some of

14 their expectations.

15 Q When were these early drafts submitted as near as

16 you possibly can determine?

17 A I would estimate '89, late '89.

18 Q Why didn't these early drafts meet the staff's

19 expectations? What was the staff's concerns in that

20 regard?

21 A The primary concern that I was involved in

22 grappling with was the fact that the plan as drafted dealt

23 in great detail with the issue of how much phosphorous and

24 how to eliminate phosphorous levels that were being

25 discharged into the water conservation areas and did not

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 adequately address other water quality standards.

2 And there were several in particular -- mercury,

3 jumps to mind -- that the plan practic -- you know, for

4 practical purposes ignored other water quality standards

5 issues which many of us felt needed to be assessed and

6 addressed in a long range plan.

7 Q Okay. Do you recall what some of these other

8 standards were besides the mercury standard?

9 A Mercury, specific conductance, iron, pesticides in

10 general -- seems like there were a few more. Those are

11 the ones that I recall.

12 Q Chlorides?

13 A Chlorides, yes.

14 Q Dissolved oxygen?

15 A Well, I think most of us believe that dissolved

16 oxygen is related to the nutrient loading and there was

17 little expectation that you would see that. It was more

18 the conservative metals and pesticides.

19 Q What do you mean by conservative metals?

20 A Well, the things that don't readily degrade, that

21 in fact probably accumulate as the result of the water

22 going through the ground over and over again.

23 Q Okay. Were those other water quality standards

24 thought to be violations, to be, well -- let me start over

25 again.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Did the Department have some fear or concern that

2 there were violations of these other listed water quality

3 standards in the Everglades Protection Area?

4 A Yes.

5 Q Okay. Do you know what the basis was for these

6 concerns?

7 A Well, some of it was projected based on concerns

8 in Lake Okeechobee, others were related to the data that

9 the water management district and National Park Service had

10 developed in terms of the discharge into the Everglades

11 National Park.

12 Certainly we had evidence of mercury building up

13 in fish in particularly high levels in the Everglades.

14 We recognized that there was a dearth of specific

15 data and that most of the data that the water management

16 district had collected was at water control structures

17 which may or may not be indicative of the violations in the

18 water conservation areas themselves, but the fact that we

19 seem to be the only parties particularly concerned with

20 this issue was of great concern to us, and in fact we had a

21 number of conversations with the Water Management District

22 in which, and this may be one of the documents that I

23 actually did help work on in which was some language that

24 they were to include in the plan that would outline a

25 monitoring strategy and some time tables to get a better

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 evaluation of water quality standards, levels and changes

2 in the area and a commitment to do something about them

3 should we agree that there were problems.

4 Q In evaluating whether there were violations of

5 these other water quality standards did the Department make

6 any determinations or try to establish why those violations

7 were occurring? In other words did it try to determine

8 what the cause or the causes of those violations were?

9 A Well, I would not say that the Department

10 formulated a specific departmental opinion, and there were

11 a number of different opinions from various staff members

12 and from outside people in general that had to do with the

13 same kinds of effects we see statewide where groundwater or

14 water from another surface water body is not necessarily

15 the same as the water body to which it is being discharged

16 regardless of whether or not it is altered by agricultural,

17 forestry, municipal urban activities in the area, and we

18 were aware that there were extensive water alterations in

19 the area, so probably the most popular hypothesis was that

20 either water directly from the lake or water that had been

21 passed through agricultural operations in the EAA was

22 contributing various and sundry chemical constituents that

23 were not naturally in the water conservation areas or the

24 park and were contributing to changes in both chemical

25 levels and biological levels.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q Do you understand the difference between water

2 quality criteria and water quality standards?

3 A I believe so.

4 Q What, can you articulate what that difference is?

5 A Water quality standards are, is a more broad term

6 encompassing beneficial uses, water quality criteria,

7 antidegradation policies, and criteria that are specific

8 statements of levels of compounds or characteristics of a

9 particular ambient water believed to be necessary in order

10 to meet the designated use.

11 Q Okay. When you stated that the early drafts of

12 the plan did not meet the staff's expectations, were there

13 any other concerns, other than the water quality standards

14 we have just gone over, regarding mercury, iron, specific

15 conductance, pesticides, chlorides, conservative metals and

16 the like?

17 A There were sort of generic concerns about timing

18 -- was this the best they could do? Could we do it any

19 faster?

20 There were sort of concerns that there were

21 inadequate considerations given to making sure that water

22 volume was protected from withdrawals from the cities, that

23 we didn't integrate enough consideration fast enough on

24 integrating activities of the Corps and their designed

25 memorandum change process.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 There were some concerns that we didn't

2 evaluate, well, no, that's not the right word, that we did

3 not broaden the reach of the programs sufficiently to take

4 into consideration the Florida Bay impacts, and there

5 probably were others that were either resolved or which the

6 staff felt were not significant enough to fight for by the

7 time it reached me.

8 Q Did you or the DER staff express to the District

9 personnel any concerns about how the SWIM Plan was dealing

10 with the hydroperiod question in the water conservation

11 areas?

12 A Well, we debated the hydoperiod issue extensively,

13 and often. I mean, there were many meetings that I didn't

14 go to, but there were lots of meetings with various

15 consulting engineering firms, with the District staff, and,

16 and that issue had been hashed over repeatedly.

17 It is my opinion that while, you know, some people

18 probably felt that the issue could have been dealt with

19 better, that this was the best that could be done at this

20 point in time, and it was far better than anything else

21 that we had ever done.

22 Q Okay. Why would DER conclude it was the best that

23 could be done?

24 A Well, I think that there were technical

25 limitations, there were unknowns about the changes and

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 volumes from year to year, there were debates over

2 transpiration losses, that there were data gaps that were

3 in the process of being filled, and that we had worked on

4 the issue of trying to understand and come to some ballpark

5 figures on what kind of hydroperiod we should, you know,

6 try to establish that was better for the environment, and

7 that we had commitments to continue to work on that, and

8 that that issue had not been addressed in many other

9 attempts at improving the situation in the Everglades, and

10 that we were on the track that would lead to the right

11 answers to this.

12 Q Okay. You stated that there were some technical

13 limitations in this regard. What would be an example of a

14 technical limitation?

15 A Oh, differences of opinion on what the proper

16 methodology for measuring ET losses would be.

17 Q When you say ET you're referring to?

18 A Evapotranspiration.

19 Q Okay.

20 A Technical disagreements on the accuracy of very

21 low volume measurements being made at various control

22 structures, USGS was called in to review the data and

23 certain other parties felt that that particular technique

24 for measuring volumes lost accuracy at the low volumes

25 which we had at the time. These are, you know, sort of

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 typical technical disagreements in these kinds of fields,

2 they were not anything particularly unusual, but perhaps of

3 more critical nature.

4 Q When you're talking about these very low volumes,

5 are you referring to volumes of water generally, or are you

6 referring to water quality parameters, such as phosphorous

7 for example?

8 A No.

9 MR. SAXE: Objection to form.

10 BY MR. HYDE:

11 Q You may go ahead and answer.

12 A When I say the low flows in this context we were

13 previously discussing, the issue of water quantity and

14 reestablishment of hydroperiods, and I was speaking of

15 measuring volumes that passed through particular water

16 controlled structures or other measuring devices --

17 Q Okay.

18 A -- in the system.

19 Q You stated that there were certain unknowns that

20 prevented a complete understanding of that issue, can you

21 identify what some of those were?

22 A What was the natural cycle of hydraulic changes in

23 the Everglades? You know, historically were there very low

24 periods and under what timing, how often and of what

25 duration, and how much did those, what were the critical

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 levels that would affect various changes, and if there was

2 a change effected, how much of a counterbalancing change

3 was necessary in order to reestablish it, you know, that

4 the refinement of cause and effect, various biological,

5 chemical, physical changes in relationship to water

6 volumes, flow, timing.

7 Q What, if anything, does the adopted SWIM Plan

8 propose to do regarding this issue of what the natural

9 hydroperiod cycle of the Everglades was?

10 A There are research components ongoing in the plan

11 that address both further research in the changes in water

12 volume as well as changes in water chemistry, which may or

13 may not be related to hydrology.

14 Q Does, is there some relationship, by your lights,

15 regarding hydroperiod and the existence of water quality

16 violations within the water conservation areas?

17 MR. SAXE: Objection to form.

18 THE WITNESS: I think there are, at the very

19 least there is the issue of where you get the water

20 from, and whether that water has, if the water is

21 sufficiently different than what was naturally there,

22 whether it takes more or less to make a change. The

23 specific example I would give you has to do with

24 specific conductance. Generally speaking, surface

25 waters in Florida are fairly low in specific

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 conductance. If they are used in an agricultural

2 operation where they're circulated through the soil

3 horizon and pick up salts, while it may be beneficial

4 to increase water flow to certain parts of the

5 Everglades, that benefit may be offset if specific

6 conductance is so high that it results in other kinds

7 of changes.

8 So it is not just a question of whether you change

9 the direction, timing, volume of water, it is what's in

10 that water and does that level make a difference in

11 your decision as to whether you're making an

12 improvement or not.

13 BY MR. HYDE:

14 Q Okay. I believe you also noted that the

15 Department had some unaddressed or unknown concerns

16 regarding evapotranspiration. What are those concerns,

17 just a general lack of knowledge or is it something more

18 particular?

19 A I can't give you lots of technical aspects. It is

20 my understanding that there are two or three sort of

21 standard ways of measuring evapotranspiration, not all of

22 which give the same results. These are methods that are

23 used at least all over the Southeast, perhaps all over the

24 country. This is, you know, is another classic, very

25 common kind of circumstance, and it is a question to be

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 resolved in the future as to whether there are different

2 circumstances where one known method is better than

3 another.

4 Q Who would be the appropriate person, at least, at

5 the Department, to address such a question to?

6 A I would start with Mr. Bibler.

7 Q Okay. Anyone else that you can --

8 A I don't know.

9 Q -- recall?

10 A I don't know.

11 Q I believe you also mentioned that there were some

12 data gaps, regarding the Department's hydroperiod concerns.

13 What are these data gaps that you are referring to?

14 A Well, it is efficient to measure flow in channels

15 and at places that have access, so you will see most of the

16 information available regarding flow at water control

17 structures that the water management district or the Corps

18 maintains? That gives you a picture of what's happening at

19 those sites, but that is very different from the kind of

20 natural sheet flow kind of hydroperiod believed to be

21 natural in the Everglades. There are interests in how much

22 of a difference various man-made and natural features of

23 the Everglades affects the water flow, and there probably

24 always will be. There are also a great number of questions

25 about how much water quality criteria levels change as that

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 water moves through these various features.

2 Q How would the Department or how would you propose

3 the Department or the District go about filling in these

4 data gaps regarding this lack of sheet flow type of

5 information?

6 A Well, you see a number of monitoring kinds of

7 activities going on where you see, I mean, in terms of the

8 sheet flow thing, it may be that you will have to project

9 because you don't want to go out there and run roads

10 through the Everglades and you don't want, you don't want

11 to make things change any more than necessary, but you can

12 do some elevation work, and you see, I think a distinct

13 increase from when we started this until now, and the

14 number of people and places the data is being collected.

15 Q Did the District staff respond positively to the

16 expressions of concern raised by you and the DER staff

17 regarding the early drafts, or the deficiencies of the

18 early drafts?

19 A We had great cooperation with them, I think it

20 took them longer to understand our concern about other

21 water quality parameters than anything else, and in the end

22 even that was not a problem.

23 Q Why do you think it took them longer to appreciate

24 the Department's concerns in that regard?

25 A It is my personal opinion that they were just

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 overloaded trying to take care of the priority issues.

2 Q Okay. Did you regard these issues as having been

3 taken care of by the time the District submitted the draft

4 which is now the subject of this proceeding?

5 A Yes.

6 Q Okay. Are you aware of some litigation that was

7 instigated by the U.S. Attorney's office for the Southern

8 District of Florida in which the Department and the

9 District were sued in federal court for failure to violate,

10 or failure to ensure compliance with State water quality

11 standards in the water conservation areas?

12 A Yes.

13 MR. SAXE: Objection to form.

14 THE WITNESS: Well, whatever the form was, there

15 was a lawsuit filed by the U.S. Justice Department. I

16 am not a lawyer and do not know the specifics of all

17 the places, times and parties.

18 BY MR. HYDE:

19 Q Okay. Did you ever become involved in that

20 litigation?

21 A I was very peripherally involved.

22 Q Okay. What did your peripheral involvement

23 concern, at least prior to the instigation of settlement

24 negotiations between the District, DER and the U.S.?

25 A I was involved in a couple of discussions with

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Dale Twachtmann where we argued extensively over whether or

2 not water control structures were simply facilities that

3 transported water from one side to the next or whether they

4 could be considered sources of pollution in and of

5 themselves.

6 Q Which view did you take?

7 A I took the belief that they were part of a

8 constructed alteration that was permanent, and were

9 therefore stationary sources of pollution --

10 Q Okay.

11 A -- at least when there was information to

12 document that they had changed either the physical,

13 chemical or biological nature to the extent that water

14 quality standards were.

15 Q Do you recall what position Secretary Twachtmann

16 took in that regard?

17 A It was Secretary Twachtmann's opinion that they

18 were simply, I think the term was post offices, and that

19 they simply transferred whatever was on one side to the

20 other side and that the ultimate sources were the property

21 owners that abutted or contributed pollutants to the water

22 in the system.

23 Q Why did this debate about the water control

24 structures take place at all?

25 A Well, we had issued permits to the water

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1 management district for their structures that discharged

2 into Lake Okeechobee as part of a settlement of an

3 enforcement action to resolve improvements in Lake

4 Okeechobee, and we had issued, or we had dealt with

5 permitting structures in the upper St. Johns as the result

6 of documenting water quality violations from water being

7 pumped from agricultural activities into a surface water

8 body, and it appeared that that was the obvious way of

9 resolving another circumstance where you had water quality

10 violations and you had an entity that at least was

11 responsible for putting that water in there, whether they

12 were responsible for the quality of the water or not, and

13 that it seemed like a logical way to approach the global

14 problem that had previously escaped the permitting process

15 for dealing with these problems.

16 I think a great deal of it had to do with what

17 good did it do for the environment if you simply

18 transferred a problem from a State entity to a regional

19 entity, i.e., the water management district. What gave us

20 the impression that they would solve the problem or that we

21 would make any substantial difference in the environment by

22 doing this, and was not issuing them a permit that they

23 would ultimately have problems complying with really

24 solving any kind of problem.

25 Q Do you regard all of the water control structures

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1 in the Everglades Protection Area to be stationary sources

2 of pollution that would require a Department permit?

3 A Well, that was the $64,000 question. I don't

4 think I am ready to say that. I think where you can show

5 that they're definitely transferring a pollution problem

6 that a permit is one of perhaps a number of appropriate

7 ways to go about addressing, resolving that problem.

8 Q Could you identify a water control structure or

9 structures that fall within the ambit of that type of

10 structure that would require a permit?

11 A Structures that discharge from one in a completely

12 different kind of environment, i.e., from water that's

13 coming from EAA into the water conservation areas I think

14 falls into at that purview.

15 Q Would that be like the S-5 structure? Are you

16 familiar with the various numbering systems that are used

17 down there?

18 A I am vaguely familiar with it, but enough to know

19 that I wouldn't dare trust citing one without a map in

20 front of me.

21 Q Okay. Do you know where the S-12 structures are

22 located?

23 A Not offhand.

24 Q Well, just assume that the S-12 structures are

25 between water conservation area III and the park, would you

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1 consider those to be structures that would require a permit

2 under the scenario you just outlined?

3 A I think that the park service believes that they

4 are, and has sufficient grounds to at least suggest that

5 they are potential sources and that that would be an

6 appropriate way of resolving any conflicts.

7 Q Do you believe they are?

8 A I think they're potentially one.

9 Q Okay. Do you know whether the Department has

10 taken any formal position in that regard?

11 A No.

12 Q Who would be responsible for making that kind of a

13 call?

14 A Well, this is an area of evolving policy. I mean,

15 we don't really have the resources to go in and permit

16 every single water control structure in the state, so I

17 think you have to make some priorities based on

18 expectations of being a potential pollution source, and one

19 of the ways of resolving that was done for us, which was

20 bypassing the special statute that has to do with the

21 Everglades permit. That's perhaps the alternative way

22 then, rather than using the Department routine permitting

23 structure.

24 Q Okay. Ms. Dow, would you like to take a break?

25 A I would love to take a break.

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1 Q I forgot do tell you in my introductory remarks

2 that if you ever need to take a break, please tell me.

3 (Brief recess.)

4 MR. HETRICK: Bill, on the record. Here is a

5 copy of a list of participants.

6 MR. HYDE: Okay.

7 MR. GREEN: Thank you.

8 MR. SAXE: Thank you, Keith.

9 BY MR. HYDE:

10 Q Roxane, before we took our break, I believe you

11 had mentioned that some people associated with the

12 Everglades National Park felt that the S-12 structures

13 should also be permitted, do you recall that --

14 A Uh-huh.

15 Q -- observation?

16 A Uh-huh.

17 Q Do you know who those people were?

18 A Well, we didn't have any actual formal request to

19 do that, they had an informal -- well, that's not really

20 true. They had an agreement with the water management

21 district, and they kept referring to monitoring done there

22 in the context of a permit. They had an agreement on what

23 levels of constituents would be there. They insisted on

24 calling them water quality standards. The Department was

25 not a party to that, and yet it kept coming up that, you

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1 know, one of those issues that somehow everybody else

2 expected us to be in, but we did not, we were not focusing

3 on that particular structure or -- to us, whatever happened

4 down there was a result of what happened upstream, and we

5 were concentrating on interests and inquiries upstream.

6 Q Perhaps I didn't understand your comment, but how

7 did that discussion necessarily involve a position by the

8 park that these S-12 structures should be permitted?

9 A The park believed that it was their right to

10 expect a certain amount, or certain quality of water to

11 come into the park, and they used as the base line for that

12 water quality standards, and in the context of whether the

13 Department ought to require permits for water control

14 structures in general, that was one of the kinds of

15 arrangements that had been made among people who were

16 interested, and that's the only relevance.

17 Q Okay. Was it the park director that --

18 A I am not aware that anybody actually formally

19 asked us or took any kind of steps to force us to do that.

20 Q So you just regard that as being a position of the

21 park without knowing specifically who was pushing the

22 point?

23 A I mean this line of questioning started in the

24 context of whether or not structures should or should not

25 have permits, and if they didn't have permits, these other

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1 kinds of associations or obligations or agreements were

2 being formulated which took the nature of a permit without

3 being a permit. So that was perhaps an option for dealing

4 with whether or not they ought to have permits or perhaps

5 an indication that if these kinds of gentleman's agreements

6 did not work out we would be pressured to get permits.

7 Q Okay. Were you and Secretary Twachtmann the only

8 people who were involved in this debate over whether the

9 water control structure should be permitted?

10 A Certainly not.

11 Q Who else by your recollection was involved in that

12 internal debate?

13 A Well, Dan Thompson and probably others of his

14 lawyers were involved, both the division directors of water

15 facilities and water management, I believe Randy Armstrong

16 was there at the time for the Division of Water Management

17 and Richard Harvey for water facilities.

18 Q Do you recall what position those individuals

19 took?

20 A No, I am not sure any of us actually had hard and

21 fast positions. We discussed and evolved opinions back and

22 forth as the discussion went on. I am sure that he

23 discussed this issue with others.

24 Q When you say he, are you referring to Secretary

25 Twachtmann?

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1 A Secretary Twachtmann.

2 Q Okay. Other than this internal debate about the

3 permitting of the these water control structures, what

4 involvement did you have in the federal litigation prior to

5 the initiation of the settlement discussion between the

6 parties in that case?

7 A I don't believe I had any direct involvement. I

8 mean, I can't think of any circumstance in which I

9 knowingly was involved. I mean, it was never somebody

10 sitting down, I mean, I got copies of the filings and, you

11 know, there was, and I read the newspaper articles, but you

12 know, we didn't sit down and say, you know, well, Roxane,

13 what do you think we ought to do about this?

14 Q Why did you get copies of the filings in the case?

15 Are they just sort of a general information circulation

16 type thing?

17 A Yes, all of us that had been involved in the

18 Everglades were certainly curious about, you know, what we

19 were being accused of not doing, and there was certainly

20 high priority given to what was being perceived at least by

21 the media as, you know, a terrible problem, and for those

22 of us who know the history and know that for 30 years now

23 we have been trying to save the Everglades, we were

24 obviously interested in the next step.

25 Q Okay. Were you called upon to give any feedback

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1 regarding any of these filings that you received?

2 A We had some conversations in the halls, and we

3 debated among ourselves, you know, certain aspects of it. I

4 think it was more of a, you know, sort of a digesting of

5 the comments and the reassessing of how that related to

6 what we thought we were doing. We did not have any, I was

7 not a party to any general or any kind of meeting where we

8 sat down and went through it and said, you know, what

9 should we do? Secretary Twachtmann was particularly

10 appalled and took it very personally, and I think we were

11 sensitive to trying to assure him that we thought we had

12 done the best that we could do, and if other people thought

13 otherwise we would just have to cope with that the best we

14 could as opposed to any deliberate attempt to not address

15 these issues. But generally, he made his own decisions

16 about how to approach the suit without benefit of my

17 opinion, at least directly.

18 Q Do you know why he was appalled by the direction

19 that this suit took?

20 A Well, I think that he firmly believed that the

21 governmental agency shouldn't have been sued, that the

22 individual land holders perhaps, but certainly not the

23 governmental entities, and he was appalled that they were

24 using what he perceived to be State authorities and State

25 laws for a federal action.

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1 Q Did he express these views to you personally or is

2 that just the general understanding that you have?

3 A I mean, I heard him complain about why he should

4 be stuck with this problem.

5 Q At some point did you become aware of any

6 settlement negotiations being conducted by the Department,

7 the District and the U.S. Attorney's Office?

8 A Well, I was certainly aware of the Governor's

9 position during his campaign and his subsequent action, and

10 Ms. Browner's dedication to implementing the Governor's

11 stated policy when she took over.

12 Q When did you first become involved, yourself, in

13 any settlement discussions or negotiations?

14 A I was not involved personally in any settlement

15 discussions or negotiations. She selected people to do

16 that who were not the prime pushers of the SWIM Plan or

17 primarily involved previous to that. I suppose because she

18 thought that they would be more independent and more

19 open-minded and less personally involved than Bart and

20 myself and others in the Bureau, in the Division that had

21 been pushing the process prior to that point in time.

22 Q So just to be clear, you had no involvement in the

23 discussions regarding the settlement agreement or its

24 technical appendices?

25 A Right.

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1 MR. SAXE: Objection as to form.

2 THE WITNESS: I guess my qualification would be

3 there were occasions where questions would be asked of

4 a general nature of the staff which I presumed

5 contributed to the background information of Dan

6 Thompson and Richard Harvey and Carol, but they were

7 not put in the context of I need to know this because,

8 they were just sort of general issues of where things

9 were or had we discussed that or was this an issue that

10 had been brought up before. It was all very hazy, and

11 in fact both Bart and I took it rather personally that

12 we weren't involved in the settlement negotiations, and

13 were a little offended that we weren't more involved.

14 But we, you know, if we were asked questions that

15 contributed to it, it was definitely in a very general

16 context.

17 BY MR. HYDE:

18 Q Okay. Can you give me a representative example of

19 the kind of general questions that might have been posed to

20 you during those discussions?

21 A Oh, we were asked things like had we considered

22 the nutrient uptake ability of projects like the Lake

23 Apopka Restoration Project in consideration of whether or

24 not the proposed treatment facilities in the Everglades

25 would or would not work at the scale and rate proposed. We

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1 were asked, general kinds of questions like, well, did you

2 think about these people over here have done this, you

3 know, in general, I mean, there was nothing new. We had

4 always known about everything and considered everything.

5 Q Why did you think you should have been involved in

6 those discussions?

7 A Oh, the typical staff reaction of, you know, those

8 of us who had been working on it and knew the most should

9 obviously have been the ones that were, you know, at the

10 time it was a matter of who knew the most in retrospective,

11 so obviously it should be somebody who could make sure that

12 we had done the best job that we could and could look at

13 things in a different perspective and in a different

14 manner. At the time we were concerned that the people

15 doing the negotiation were inadequately prepared and

16 unknowledgeable and would make an error that would undo

17 years and years of our work.

18 Q What did you fear of your years and years of work

19 might be undone as a result of these discussions?

20 A Mostly delay, that we would have to go around the

21 clock again to prove that there was too much phosphorous in

22 the water conservation areas for their own good.

23 Q Did you have any concerns as to how the water

24 quality standards that were at issue were being interpreted

25 in light of prior agency policies regarding those

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1 standards?

2 A Well, not in those words, no.

3 Q Or were you concerned about the construction of

4 the water quality standards and the context of the

5 settlement discussions?

6 A No.

7 Q Did you believe that the Department was taking a

8 new position or developing a new policy or policies

9 regarding the interpretation of the water quality standards

10 at issue in that litigation?

11 A I had no indication that they were doing that.

12 Q Okay. Did anyone ever expressly advise you of the

13 reasons why you and Mr. Bibler, for example, had been

14 excluded from those settlement discussions?

15 A We were told that it was very critical that this

16 be done in an atmosphere of faith and trust and that, you

17 know, that the people who, a small a very small group of

18 people and people that Carol had selected, and it was

19 nothing about, it said nothing about our work or our

20 interest or our level of trust, it simply had to do with

21 the fact that, you know, only a couple of people were going

22 to be involved in order to make sure that all sides knew

23 exactly who they were dealing with and had the open faith

24 and confidence to be able to sit around the table

25 together.

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1 Q Was that limitation also due to a desire to keep

2 those negotiations as confidential as possible?

3 A I can only presume that.

4 Q Okay. Other than the reasons you have just</