170

1 VOLUME II

2 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUGAR CANE GROWERS COOPERATIVE OF

4 FLORIDA, INC., ROTH FARMS, INC.,

and WEDGWORTH FARMS, INC.,

and

FLORIDA SUGAR CANE LEAGUE, INC.,

7 UNITED STATES SUGAR CORPORATION,

and NEW HOPE SOUTH, INC.,

and

FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038

10 ASSOCIATION, LEWIS POPE FARMS, 92-3039

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

11 HUNDLEY FARMS, INC.,

12 Petitioners,

13 vs.

14 SOUTH FLORIDA WATER MANAGEMENT

DISTRICT,

Respondent,

and

MICCOSUKEE TRIBE OF INDIANS OF

18 FLORIDA, the UNITED STATES OF

AMERICA, FLORIDA DEPARTMENT

19 OF ENVIRONMENTAL REGULATION, and

FLORIDA WILDLIFE FEDERATION,

Intervenors.

21 . . . . . . . . . . . . . . . . . . . /

23 DEPOSITION OF ROXANE R. DOW

24 November 24, 1992

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

171

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 24,

6 1992, commencing at 8:30 a.m.

8 Reported by:

9 DEBRA ROTRUCK KRICK

10 Court Reporter

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

172

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

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

173

1 INDEX TO WITNESS

ROXANE R. DOW PAGE

2 Examination by Mr. Green 175

Further Examination by Mr. Hyde 306

3 INDEX TO EXHIBITS

No. MARKED

4 12 181

13 194

5 14 195

15 218

6 16 222

17 223

7 18 224

19 228

8 20 232

21 235

9 22 238

23 239

10 24 241

25 255

11 26 256

27 257

12 28 259

29 259

13 30 261

31 262

14 32 263

33 264

15 34 265

35 266

16 36 267

37 269

17 38 271

39 272

18 40 273

41 275

19 42 276

43 280

20 44 281

45 282

21 46 283

47 285

22 48 286

49 287

23 50 288

51 289

24 52 293

53 293

25 54 297

55 297

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

174

1 D E P O S I T I O N

2 Whereupon,

3 ROXANE R. DOW

4 was recalled as a witness, having been previously duly

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

6 the truth, was examined and testified as follows:

7 EXAMINATION

8 BY MR. GREEN:

9 Q Ms. Dow, you are still under oath. Let me say

10 that it is early in the morning, and I may not ask very

11 clear questions.

12 A You are making excuses already.

13 Q And if you don't understand the question, please

14 tell me and ask me to rephrase it, or if you want to

15 clarify your answer, go right ahead, and, of course, Mr.

16 Hetrick or others will object as they see fit, but unless

17 they instruct you not to answer, I will assume you will

18 continue to answer the question I have asked, unless I have

19 rephrased it.

20 Ms. Dow, I am looking at your resume that was

21 marked as Exhibit 1 yesterday, and I noted that from

22 November '79 through October '84, as an Environmental

23 Specialist III with the Department, you were involved in

24 stormwater source regulations, is that correct?

25 A Yes.

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

175

1 Q Can you tell me just briefly what that involved?

2 A The primary purpose of the program-aligned

3 assistance in that office was to assist in interfacing

4 between the DER district offices and the Division of

5 Programs or the people who actually wrote the rules in the

6 other divisions. We tried to influence the development of

7 rule-making so that rules would be reasonably implementable

8 in the field, and we tried to interpret and help assist the

9 interpretation back to the field people so that they could

10 more readily implement the rules, and we handled special

11 cases such as variance petitions.

12 I don't remember stormwater being a particularly

13 big issue during that time frame. We were just getting

14 into the business of seriously regulating stormwaters,

15 existing stormwater sources. We had a rule adopted or

16 effective in '79 that was very subjective and created a

17 great deal of problems, so the rules were rewritten during

18 that period, but I don't remember that being a particularly

19 major source of controversy or interpretive need during

20 that period.

21 Q Okay. And, in fact, yesterday I believe you

22 testified that the Department did not assert permitting

23 authority over district pump structures discharging into

24 the water conservation areas until it received authority to

25 do so in 1989, is that correct?

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

176

1 A Well, not entirely correct. We had had

2 enforcement cases in whether or not agricultural return

3 flows or irrigation systems or pump stations from

4 agricultural facilities were to be called one thing or the

5 other; it was still very much in flux during that period of

6 time. We had made enforcement cases based on stationary --

7 you know, the definition of a stationary source of

8 pollution on a couple of agricultural situations when we

9 had documentation, and believed that we had a case for

10 cause and effect from stormwater, from agricultural systems

11 that were a combination of agricultural pollutants,

12 groundwater, rainfall and anything else that had collected

13 from underneath or on top of the ground.

14 Q Did any of those enforcement case you just

15 described involve discharges of agricultural runoff into

16 wetland areas?

17 A I don't really know. Possibly.

18 Q But none that you can recall?

19 A Well, I didn't know the details of those cases

20 specifically, so they may have had wetland areas involved

21 as part of the system or not, I don't know.

22 Q Okay. And then again referring to Exhibit 1, from

23 October '84 until April '92, you continued to be

24 responsible for stormwater and nonpoint source management

25 for DER. Were you the person responsible for that, or did

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

177

1 you report to someone else who had ultimate responsibility

2 for stormwater management?

3 A Well, the way the Department hierarchy is

4 structured the sections, stormwater and nonpoint source

5 management did by far the bulk of the work. They

6 reported -- Eric Livingston was in charge of that section.

7 He reported to me. Where there were problems, issues,

8 disagreements that I couldn't solve, it went to the

9 division director, Randy Armstrong for part of that time,

10 Mark Latch for part of that time, Howard Rhodes in the very

11 beginning, and when there were issues of particular

12 statewide importance, particularly where there were

13 difficulties between implementing them in various water

14 management districts oftentimes the Secretary would become

15 involved.

16 Q When did the Department decide that it had

17 permitting authority over South Florida Water Management

18 District pumping stations discharging into the water

19 conservation areas?

20 A Well, my memory is that we always thought we had

21 authority should we care to exert it if there was the case

22 that they were actually contributing to water quality

23 violations. There was a belief that there was discretion

24 because not all water control structures, if you will, were

25 believed to be contributing to water quality violations, so

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

178

1 it was an extension of data in which you would be able to

2 make that case. The stormwater rule was specifically

3 written to apply immediately to new sources in the

4 provisions allowed for a presumption of meeting water

5 quality in existing sources, unless that presumption was

6 overcome.

7 We had not particularly gone out and looked for

8 those cases on our own, but where they came to our

9 attention, we were exerting that. So during the debate as

10 to whether agricultural-type irrigation, and the national

11 act specifically has exemptions from permitting in the case

12 of agricultural return flows, and the question was was it

13 implicit that that named those nonpoint sources, but, in

14 fact, stormwater, and then as the discussion evolved both

15 on the national level and in Florida that it didn't really

16 matter, they were still often contributing and still needed

17 to come under a permit system, that distinction became less

18 important. And that led to the evolution of new statutory

19 authority to specifically designate these kinds of systems

20 as agricultural stormwater and try to deal with their

21 problems under that kind of umbrella.

22 Q You just referenced a stormwater rule. Do you

23 recall which chapter of the Florida Administrative Code

24 that's in?

25 A It went into 373.

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

179

1 Q Chapter 373, Florida Statutes?

2 A Yes. I am sorry, Chapter 373, Florida Statutes.

3 Q But was that the -- what you meant when you said

4 that the Department adopted a stormwater rule that was

5 written for new sources --

6 A No.

7 Q -- a moment ago?

8 A No.

9 Q That's the one I was asking about.

10 A I don't even remember what the stormwater rule

11 number is nowadays.

12 Q Might it have been Chapter 17-25?

13 A Oh, that's it. Yes, 25.

14 Q And under that rule, the Department only asserted

15 permitting jurisdiction over existing agricultural

16 stormwater sources if it determined they were causing water

17 quality problems? Is that a fair characterization of what

18 you said? Please correct me --

19 A No. You had permitting scheme applied to new

20 sources of stormwater pollution, including altered existing

21 systems that were significantly altered, change the volume

22 or point of discharge of their stormwater flows. There

23 were different approaches for how that permitting scheme

24 ran, and in the case of agriculture, if you had an improved

25 soil conservation program and you implemented it, you were

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

180

1 exempt, which is a source of a great deal of debate as to

2 whether that was an effective way of overseeing stormwater

3 improvements in agricultural operations, but in any event,

4 just the regulatory scheme applied to agriculture if it was

5 new or significantly altered under an exemption kind of

6 scheme for people who did what we considered to be the

7 right things. Existing sources that were not altered were

8 presumed exempt until such point as water quality

9 violations were detected and a cause and effect case could

10 be made.

11 MR. HETRICK: Excuse me. Did the records reflect

12 that she answered no to that question? She shook her

13 head.

14 THE WITNESS: No.

15 BY MR. GREEN:

16 Q Under that last point you made, Ms. Dow, where you

17 said not altered existing sources might be required to have

18 permits if certain conditions existed. What -- do you

19 recall what the permit requirements were for those sources

20 that were required to give permits of that category?

21 A For existing sources?

22 Q Yes.

23 A No. There was no detail in the rule for that

24 situation.

25 Q And for new sources that had an approved soil and

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

181

1 conservation program, why did the rule connect soil and

2 conservation with a permit exemption? Is there -- what's

3 the connection?

4 A Well, historically, the U.S. Soil Conservation

5 Service has had farm extension agents, has worked with

6 individual property owners and soil erosion issues, crop

7 rotation, pesticide and fertilizer application rates. The

8 belief is that they have good rapport with individual farm

9 owners and as agriculture is commonly perceived in the

10 country had the best chance of implementing best management

11 practice type habits on farms that would reduce the

12 potential for pollution from agricultural operations. The

13 problem is that that system, that service is oriented

14 toward agriculture which is not all that common in Florida.

15 You don't see the single family ownership, small plot, row

16 crop with Uncle Joe on the tractor kind of agriculture,

17 except in the panhandle.

18 The Soil Conservation Service's practices and

19 their manual applies more to that kind of operation than it

20 does to the big agri-business with intense infrastructure

21 of canals and pumps, flooding and drainage of large

22 acreages that we see from Apopka south in Florida.

23 Q But the hope was that the conservation plan might

24 be the equivalent of a best management practice or a BMP,

25 is that a fair statement?

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

182

1 A The soil conservation plan would incorporate the

2 Soil Conservation Service's definitions of best management

3 practices. Whether other parties agreed with that at any

4 given time is subject to debate.

5 Q Okay. I would like to return to the topic of

6 review of the SWIM Plan that is currently under challenge

7 for consistency with the State water policy and your role

8 in that, and I would like to have this marked.

9 (Whereupon, Exhibit No. 12 was marked for

10 identification.)

11 BY MR. GREEN:

12 Q And I ask you if you can identify that Exhibit 12

13 for us?

14 A This is a listing of people, it is dated 2/28/91,

15 the initials PH. underneath it. It is entitled,

16 "Everglades Technical Review Team," paren, "Possible

17 Members." This looks like -- attached to it is a list of

18 the Lake Okeechobee Technical Advisory Council. It does

19 not have a date. It is LOTAC II. It is the period of time

20 when Archie Grant was chairman. It is followed by an

21 attachment from the South Florida Water Management District

22 entitled, "Everglades Advisory Committee," created 2/7/89,

23 just four pages long.

24 It is -- also includes comments on the April 11,

25 1990, draft of the Everglades SWIM Plan as of June 5,

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

183

1 1990, which was a workshop agenda Item 3, listing people

2 who commented on that draft of the SWIM Plan, followed by

3 additional comments on the 11 -- on April 11, 1990, draft

4 of the Everglades SWIM Plan received June 6 through June

5 12, which I believe were late comments, with another copy

6 of the Lake Okeechobee Technical Advisory Council from the

7 period when Archie Grant was chairman, followed by a map, a

8 general map of the Everglades Protection Area with an

9 attempt at identifying locations of water quality station

10 and rainfall gauges, followed by a map, the boundaries of

11 the Everglades Agricultural Area portion of the SWIM

12 Planning area, followed by a map of the Everglades National

13 Park portion of the SWIM Plan.

14 Q Thank you. Ms. Dow, on the first page of Exhibit

15 11, under "Agency SWIM Plan Reviewers," colon, in the

16 middle of the page?

17 A Uh-huh.

18 MR. SAXE: Excuse me, counsel, are we on Exhibit

19 11 or Exhibit 12?

20 MR. HYDE: It is Exhibit 12.

21 MR. GREEN: Thank you. It is Exhibit 12, sorry.

22 BY MR. GREEN:

23 Q Exhibit 12. Can you tell me, does this Exhibit 12

24 contain the list of those persons who reviewed the SWIM

25 Plan under challenge for consistency with the State water

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

184

1 policy, and if it does would you identify them?

2 A I am confused. You drew my attention specifically

3 to agency SWIM Plan reviewers in the middle of the page. Is

4 your question restricted simply to that?

5 Q Not really, for this whole document.

6 A Okay. The first part of it where it lists DER

7 Tallahassee people, all of those people were specifically

8 asked to review at least certain portions of the plan. I

9 cannot swear that these were the only people that looked at

10 it.

11 Q Okay.

12 A As a matter of fact, I certainly hope it is not

13 the only people, but these were people who we felt had

14 specific knowledge and ability to comment on specific

15 points that were possible issues at the time, or perceived

16 to be possible issues at the time. The same for the

17 Southeast District names. The agency SWIM Plan reviewers

18 in the middle of the page that are from other agencies,

19 these were agencies that had commented on SWIM Plans in the

20 past. We were reason -- well, we were almost sure that at

21 least the Game and Fish Commission people would comment,

22 they were pretty reliable in making comments. DNR and the

23 Department of Agriculture and Consumer Services were going

24 to be repeatedly requested to comment since there were

25 clearly issues that involved State-owned lands and issues

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

185

1 of prime importance to agriculture.

2 We were less hopeful of getting substantive,

3 useful or thoughtful comments out of them. The Everglades

4 Citizens Advisory Committee and the LOTAC Council we rarely

5 got comments out of. We anticipated that at least certain

6 members of LOTAC would comment specifically on the SWIM

7 Plan, although I think they tended to comment on south

8 Florida Everglades type issues in general as opposed less

9 to the plan draft, itself, and in specific ways in which we

10 could attempt to refine the SWIM Plan. They generally made

11 those kinds of comments directly to the District and would

12 address more global issues to the Department.

13 Q Who was responsible in the Department for

14 reviewing the SWIM Plan with regard to its application of

15 State water quality standards?

16 A Well, everybody was, you know, sort of responsible

17 for looking at that from a particular perspective,

18 certainly the biology people were becoming important in

19 this particular SWIM Plan. The interpretation of the

20 chemistry was believed to be fairly straightforward but the

21 interpretation of the biological criteria was becoming more

22 and more of an issue as we went along.

23 This plan would also have been circulated to the

24 water quality standards section, you know, no one's name

25 shows up on this list from that. They certainly reviewed

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

186

1 water quality aspects of all of the SWIM Plans. At this

2 particular point in time that must not have been considered

3 an issue that would not have been already covered by the

4 biology people.

5 Q Who heads up the water quality standards section?

6 A Tom Swihart.

7 Q What section of the Department is responsible for

8 evaluating the moderating provisions of Florida water

9 quality standards?

10 A Petitions that are received for moderating

11 standards or for moderating provisions go either to the

12 Division of Water Facilities or the Division of Water

13 Management, if they relate to water quality standards or

14 their implementation. If they relate specifically to

15 changes in standards like SSACs, those would be circulated

16 for comments through the water quality standards sections.

17 If they related to things like varying a WQBEL for two

18 years, they would be handled by the Division of Water

19 Facilities.

20 Q What about mixing zones?

21 A Mixing zones were handled by the permitting people

22 in the Division of Water Facilities.

23 Q And reclassification of water bodies?

24 A Reclassifications would be considered petitions

25 for rule changes, and they would be directly handled by the

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

187

1 water quality section, water quality standards section.

2 Q And that's the one headed by Mr. Swihart?

3 A Yes.

4 Q And what about variances, who processes variance

5 applications?

6 A Variances would be handled by whichever group the

7 usefulness of the variance directly related to. If the

8 request was for varying operator time in a facility, the

9 Division of Water Facilities would handle that with the

10 primary lead being operator certification. If it was for

11 groundwater monitoring at a landfill case, the Division of

12 Waste Management and their landfill people would handle

13 it. If it was for variances of water quality standards for

14 an agricultural stormwater system, that would come to the

15 Division of Water Management. I can't say as I ever recall

16 having one of those, but presumably the stormwater people

17 would have been in charge of collecting the comments and

18 preparing initial recommendations.

19 MR. GREEN: Would you read back the last answer?

20 I am sorry, it's still early in the morning for me.

21 (Whereupon, the court reporter read the requested

22 portion of the record.)

23 BY MR. GREEN:

24 Q Ms. Dow, yesterday when discussing moderating

25 provisions, you testified that in the Department's internal

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

188

1 discussions it was agreed that should the South Florida

2 Water Management District decide to apply under any of the

3 moderating provisions that the Department would consider

4 it, is that a fair statement?

5 A Yes.

6 Q Was that Department position ever communicated to

7 the water management district?

8 A Well, let's say that we, in our attempts at

9 explaining water quality standards to staff at the water

10 management district, explained the process, never said, you

11 know, any particularly negative comments to it, made it

12 clear that, you know, somebody else would have to get the

13 information together and that, you know, we were, you know,

14 not discouraging or encouraging any particular thing, that

15 that was just one of their options, but, you know -- so I

16 don't know. I mean, I cannot evaluate very well how well

17 we communicated with staff. It is my experience that we

18 usually had to say things four or five times over, that

19 they had a hard time understanding the system. They tended

20 to want to jump to the end point as opposed to want to

21 understand the system in its entirety. So the honest

22 answer would be I don't know if that was ever effectively

23 communicated. We certainly tried to explain the whole

24 system and leave that as an option for them, but whether

25 they understood that or not I don't know.

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

189

1 Q Do you recall whether -- let me back up. If it

2 had been communicated in writing, would we have found a

3 copy in your file?

4 A I don't recall that we ever felt any obligation to

5 put in writing that particular piece any more than the

6 general outline of things. I don't know why we would do

7 it. It is possible somebody else could have done that, but

8 I certainly was never involved in any discussion that got

9 to that level of detail about moderating provisions.

10 Q And with regard to communications, if it had been

11 communicated verbally to the District, to whom would it

12 have been communicated?

13 A Well, my best guess would be Tony Federico, but it

14 is possible that at some management level in some

15 discussion of possible ways around difficulties that that

16 could have been communicated to somebody like Tilford

17 Creel.

18 Q Well, let's talk a little bit about moderating

19 provisions. There was some discussion yesterday about

20 that, and you explained that the water quality criteria of

21 concern to the Department included those that were related

22 to nutrient inputs, such as imbalance of flora and fauna,

23 presence of nuisance species, dissolved oxygen, and there

24 may have been others. Don't all of those criteria apply

25 beyond zones of mixing under Department regulations?

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

190

1 A Those are ambient water quality standards that

2 apply in ambient surface water bodies. They may be -- they

3 may not be applicable in approved zones of mixing.

4 Q So if a mixing zone were approved, they wouldn't

5 apply in them.

6 A If the mixing zone was specifically approved for

7 one of those criteria, they wouldn't apply within them.

8 Q When you use the term as now ambient criteria,

9 what did you mean by that, when you said they were ambient

10 water quality criteria?

11 A Well, the scheme is designed to try to describe

12 the water quality criteria, what the quality and

13 characteristics of a body of water in that body of water

14 should be in order to maintain the designated use. The

15 scheme does not contemplate that that automatically becomes

16 what criteria should be in other systems, in stormwater

17 treatment systems or in piped systems.

18 Q Man-made systems?

19 A It does not necessarily mean that that needs to be

20 what effluent limits are, although they may be the same, it

21 does not -- that is not the purpose of having those

22 numerical and narrative criterion.

23 Q So if ambient water quality criteria apply to

24 natural bodies of water, is that correct?

25 A Well, to natural bodies of water and unnatural

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

191

1 water bodies that are waters of the state.

2 Q What's an example of the latter category?

3 A When you create new waters of the State by digging

4 canal systems that are directly connected.

5 Q Would the water conservation areas qualify to be

6 in that category?

7 A Water conservation areas are waters of the State.

8 Q That were unnaturally created?

9 A They were altered, but they are natural water

10 bodies.

11 Q Were their boundaries natural, to your knowledge?

12 A Oh, I suspect that their boundaries are very

13 unnatural, probably waters of the State were much broader

14 before we started drying pieces of it out.

15 Q Why does drying pieces of it out concern you, what

16 relevance does that have to water quality?

17 A Well, it probably has lots of impacts, but the

18 primary issue that we were -- that I am concerned with is

19 trying to distinguish where the Department has a

20 responsibility to try to achieve and maintain water quality

21 standards. The way the state has evolved, it ends up that

22 parts of the natural Everglades are no longer waters of the

23 State, and the water conservation areas and the main

24 canals, the publicly-owned areas are, and farmland that's

25 been died out on what was historically old Everglades is

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

192

1 not. So it is simply a matter of trying to delineate where

2 your responsibilities lie.

3 Q I see. With regard to mixing zones, is it correct

4 that mixing zones in theory can be granted up to the limit

5 beyond which the designated use of the water body in

6 question will be significantly impaired?

7 A Would you repeat that?

8 (Whereupon, the court reporter read the pending

9 question.)

10 THE WITNESS: I don't believe that that was the

11 intent. That may end up being fairly close to a good

12 assessment of the situation, but I don't think that

13 that was anybody's -- it certainly is not my

14 understanding anyway of why the minimum limits were

15 written into the mixing zones, that we were trying to

16 draw the line between the very most you could do just

17 short of totally impairing the water bodies' use.

18 BY MR. GREEN:

19 Q Excuse me, I said significant impairment.

20 A Would you define significant in that sentence

21 then?

22 Q Well, in fairness to you, let me give you a copy,

23 if I can find --

24 MR. GREEN: Let's mark this as Exhibit 13?

25 THE WITNESS: Sounds like a good number.

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

193

1 (Whereupon, Exhibit No. 13 was marked for

2 identification.)

3 BY MR. GREEN:

4 Q I am looking at what exhibit -- well, let's back

5 up. What I have handed you, Ms. Dow, and what has been

6 marked as Exhibit 13 is a Xeroxed copy from reg files of

7 Chapter 17-4, Florida Administrative Code, and I would like

8 to refer you to Rule 17-4.244(1), and I am looking at the

9 last sentence in parens (1)(a) there. Are you with me?

10 A Yes.

11 Q And I will read that, it says, "However, no mixing

12 zone or combination of mixing zones shall be allowed to

13 significantly impair any of the designated uses of the

14 receiving body of water," end quote. And that is the

15 context in which I have asked this question. As you will

16 see under 17-4.244(1)(a), second sentence, it says, "Under

17 the circumstances defined elsewhere in this section, a

18 mixing zone may be allowed to provide an opportunity for

19 mixing and, thus, to reduce the costs of treatment, "end

20 quote.

21 And so I refer you back to my original question,

22 is it your understanding -- well --

23 A And to that context, I am sorry, I was trying to

24 think whether the minimum criteria elsewhere in that rule

25 was designed to do that, you know, in some sort of

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

194

1 standardized manner. To me, this sentence basically says

2 even if they -- even if a proposed mixing zones meets all

3 the other minimum requirements in 17-4.244, it still may

4 not be allowable if it is believed to be significantly

5 impairing the designated use of the particular water body.

6 Q And it is true under this rule that the criteria

7 that limit the size of mixing zones can be expanded if

8 there is a showing that that would not significantly impair

9 the designated use, is that correct?

10 A Yes. There are other provisions that allow for

11 expansion above and beyond the minimum requirements.

12 Q Okay. Ms. Dow, I would like to mark another

13 Department rule found at Chapter 17-302 as Exhibit 14.

14 (Whereupon, Exhibit No. 14 was marked for

15 identification.)

16 BY MR. GREEN:

17 Q Ms. Dow, I would like to refer you to --

18 A Give me a page number.

19 Q Page 68 of Exhibit 14 which is Rule 17-302.800,

20 Florida Administrative Code, are you familiar with this

21 regulation?

22 A Painfully so. Yes.

23 Q How did you become familiar with it?

24 A Well, when I was in the period of time as the

25 water quality assistant in the Division of Permitting's

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

195

1 office, I was often the person who had to coordinate the

2 review of these things and try to learn from the very first

3 petitions, you know, how to work the provision. Later as

4 bureau chief, we considered rewrites of this section many,

5 many times.

6 Q Okay. In a nutshell, what does this rule provide

7 for with regard to changes in criteria due to either

8 natural background or irretrievable man-induced conditions?

9 A It attempts to lay out the minimum showings and

10 considerations that one would have to consider in order to

11 evaluate whether such a change would be appropriate and

12 whether an alternative criteria for a portion of a water

13 bodies would be appropriate and under what circumstances.

14 Q Can the Department initiate a site-specific

15 alternative water quality criterion demonstration?

16 A I do not believe any of the wording involved here

17 would restrict the Department from doing so. However, I

18 think the more likely thing would be to literally change

19 the rule for a particular water body since that would be of

20 more use to more people rather than to have an obscure

21 piece of paper in some administrative file somewhere that

22 said water quality standard can be changed in a water body

23 somewhere.

24 Q So a rule change would be administratively

25 preferable?

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

196

1 A But I don't think the Department is restricted

2 from using this provision should it ever feel the need to.

3 Q And is that why under 17-302.800(1), the second

4 sentence --

5 A Whereupon the initiation by the Department?

6 Q So the Department has reserved the right to

7 utilize this provision?

8 A Yes.

9 Q Okay. Now, Ms. Dow, if I could ask you to go back

10 to page 5 of Exhibit 14, and if you would look at the

11 definition found in Rule 17-302.200(12)?

12 A Uh-huh.

13 Q For man-induced conditions which cannot be

14 controlled or abated.

15 A Uh-huh.

16 Q I believe you testified yesterday that water

17 management district pump stations were not technically

18 point sources, is that correct?

19 A I don't recall if that's what I testified.

20 Certainly in the past, they have been considered nonpoint

21 sources. That definition is rapidly evolving.

22 Q But they would be -- well, parens (b) of this

23 definition would apparently -- would it apply to discharges

24 into the district canals and ultimately into the water

25 conservation areas that originate from farms, would best

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

197

1 management practices be required under this rule to your

2 knowledge in order to qualify for a SSAC?

3 A When the rule was written and, you know, in its

4 original conceptual vision, we did not consider stormwater

5 to be a point source. How that will be since we don't have

6 consistent interpretations of point sources and you can

7 argue that stormwater that comes through a confined pipe or

8 channel is, in fact, a pipe -- point source, I don't know

9 that that conceptual picture is not changing, but at the

10 time we wrote this, we were hoping and under the -- and

11 envisioning the best management practices would be

12 sufficient to control pollution from stormwater sources.

13 Q Okay. Well, let me ask you a hypothetical and

14 let's relate it to the water conservation areas and the

15 SWIM Plan.

16 If best management practices for nonpoint sources,

17 whose discharges ultimately made their way into the water

18 conservation areas, were imposed, and there were no

19 traditional point sources discharging into those areas,

20 would the relationship between the economic, social and

21 environmental costs and benefits of further controls be

22 determinative with regard to whether a SSAC might be in

23 order?

24 MR. SAXE: Objection to form.

25 MR. HETRICK: I will object to form, too.

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

198

1 THE WITNESS: You know, that's one of a lot of

2 questions that one would have to answer in the

3 consideration of the SSAC. Whether or not best

4 management practices are, in fact, there, what other

5 physical alterations of the water body can be done and

6 it can mean that the scheme in which water is moved,

7 what kind of downstream impacts are conceived. I mean,

8 that would be one of the factors that would be involved

9 in consideration of whether or not a SSAC could be

10 issued.

11 BY MR. GREEN:

12 Q In fact, it would have to be considered in order

13 for the proponent of the SSAC to qualify for a SSAC for

14 irretrievable man-induced conditions, wouldn't it?

15 A Yes.

16 Q Ms. Dow, I believe you answered this question

17 yesterday, and I don't mean to be repetitive, but if the

18 Department were to issue a SSAC in a given instance, what

19 steps, if any, would the Department need to take in order

20 to obtain approval from the Environmental Protection Agency

21 for that action?

22 A Sending the entire file to Region IV, EPA in

23 Atlanta, and depending upon whatever the policy of the

24 agency is at that point it will either be processed in

25 Atlanta or shipped to the water quality standards group in

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

199

1 headquarters in Washington, for coordination of the review.

2 They are quite likely to send people to Florida to see the

3 site. They will go over all of the data. They will ask

4 questions and then -- until they are satisfied, and then

5 they will make the decision whether to approve the state's

6 action in which case they will notice it in the Federal

7 Register or to disapprove it, in which case, they will give

8 us some time to try to do better and to fix it so that they

9 can approve it, and if eventually there is no resolution to

10 that, then they can come out and promulgate their own

11 standard for that water body.

12 Q Do they have regulations that set forth what

13 criteria they evaluate when they look at SSACs sent to them

14 from states for review?

15 A They have a water quality regulation. It lays out

16 basic procedures. They are certainly nowhere near the

17 level of detail that Florida has. They basically list out

18 the kinds of circumstances that one could consider and in

19 terms of natural background, man-induced, non-abatable to

20 the extent that it causes widespread social and economic

21 harm. I think they have a variance provision for some

22 short-term stuff, but they certainly don't lay out, you

23 know, the laundry list of kinds of information items that

24 they would like to see.

25 Q They have approved the Department SSAC rule that

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

200

1 we have been talking about, haven't they, the mechanism?

2 A Well, I mean, it was our interpretation that they

3 approved the mechanism. The last time I engaged in this

4 conversation at this weighty level, it was their

5 contention, Region IV's general counsel's general

6 contention that they did not -- that they only had the

7 authority to approve water quality standards as they

8 defined them, which are designated uses, water quality

9 criteria in the anti-degradation policy, that they do not

10 have the authority and, therefore, did not officially

11 approve any implementation mechanism.

12 Q Continuing debate?

13 A It has been going on for many, many years.

14 Q How about 13 years, maybe 14?

15 A Probably before that. I just --

16 Q Do the EPA regulations -- and I think you answered

17 this, but do they also cover variances, did you say that

18 they mentioned variances? Let me ask the question a

19 different way.

20 When the Department grants variances to Department

21 rules, do they also get sent to EPA for approval if they

22 relate to federally approved water quality standards and

23 criteria?

24 A If they involve water quality standard's changes,

25 via a variance, yes, the EPA will consider that to be the

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

201

1 same thing. Since we are unclear as to how extensive EPA

2 perceives that authority; in other words, does that apply

3 even to a variance that would basically say, all the water

4 quality standards are the same, you just don't have to meet

5 them for two years? We try to send as much of these things

6 up there and give them the responsibility for deciding

7 whether or not those are, in fact, water quality changes

8 under their system.

9 Q Okay. When you mentioned a moment ago that the

10 Environmental Protection Agency looks for socio-economic

11 impacts, I believe those were your words?

12 A Widespread social and economic.

13 Q And they look at that when reviewing, what, SSACs

14 and variances?

15 A Yes.

16 Q Okay.

17 A Maybe other -- well, other kinds of moderating

18 provisions, they also consider to be water quality

19 standards changes, even if you had a wetlands exemption,

20 for instance, they would try to determine if that fit one

21 of their pigeonhole requirements.

22 Q Would they look at that factor if the Department

23 were proposing to redesignate a water body or subclassify

24 it?

25 A No. They have another routine for

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

202

1 classifications.

2 Q Do you recall the substance of it?

3 A Well, the substance of it is, in order to

4 downgrade a water body's classification, you have to

5 basically show that there is absolutely no way physically

6 that this water body could ever be meeting a higher level

7 of classification there. It is extremely difficult to

8 convince of downgrades. On the other hand, they are

9 extremely flexible when it comes to any upgrades.

10 Basically, they will be perfectly happy to allow states to

11 make decisions on any kinds of classifications that are

12 above a classification that could be generally equal to

13 fishable, swimable waters.

14 Q But isn't it true that even for creating a

15 sub-designation, the Environmental Protection Agency will

16 approve those if it is shown that to do otherwise would

17 result in substantial and widespread socio-economic

18 impacts?

19 MR. SAXE: Objection to form.

20 THE WITNESS: I really don't know since I have

21 never --

22 MR. SAXE: -- it is unclear, sub-designations, I

23 have heard no testimony about --

24 BY MR. GREEN:

25 Q Do you understand what I mean by that or

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

203

1 subclassifications, would that help?

2 A I will try to explain what I mean.

3 Q A subcategory of use, let's say it that way.

4 MR. GREEN: Does that resolve the objection?

5 MR. SAXE: No. It doesn't. I am still unclear on

6 the question.

7 MR. GREEN: Okay. Let's take it in a couple of

8 steps.

9 THE WITNESS: There are other states that have

10 proposed many, many more designated uses than the five

11 that the State of Florida has, and they sometimes

12 divide up a classification of waters into Class III

13 recreation, propagation and maintenance of a healthy,

14 well-balanced population of fish and wildlife,

15 subcategory A, low-flow streams, subcategory B,

16 high-flow streams, subcategory C, lakes.

17 BY MR. GREEN:

18 Q That's the sort of thing I am referring to.

19 A We have not seen any particular advantage to

20 making further classifications in the state's water quality

21 standards. We have not pursued any discussions with EPA

22 about subclassifications, and I've no experience or

23 knowledge of the formal or informal procedure for doing

24 that.

25 Q Are you familiar with the criteria that EPA would

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

204

1 look to when deciding whether to approve such a

2 subcategorization?

3 MR. SAXE: Objection.

4 THE WITNESS: No, I have no knowledge of that.

5 BY MR. GREEN:

6 Q Okay. Has subclassification of the designated use

7 for the water conservation areas been considered by the

8 Department in connection with the SWIM Plan that is now

9 under challenge?

10 A I do not recall any discussions related to any

11 proposals subclassify, no.

12 Q How about discussions relating to the possibility

13 of granting variances to water quality criteria in

14 connection with the Everglades SWIM Plan under challenge?

15 A The possibility of any and all moderating

16 provisions and variances has been acknowledged as something

17 we may have to face.

18 Q Ms. Dow, there is a document that's been marked as

19 Exhibit 7 yesterday, and I can't remember whether you were

20 able to identify the author of it. I do remember that you

21 said it wasn't your handwriting?

22 A That is correct. I do not have any idea whose

23 notes those are.

24 Q Okay. The notes refer to a meeting, and I

25 remember we couldn't decide whether it was December 16,

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

205

1 '91, or December 12, but Mr. Saxe and I believe that it was

2 December 16th, 1991, attended by the author of the

3 memorandum, yourself, Paul Whalen, Bart Bibler, Tom Swihart

4 and Doug Gilbert.

5 MR. SAXE: Just for the record, counsel, we were

6 referring to reading the handwriting on the document?

7 MR. GREEN: Oh, okay. Yes, the date at the top

8 left.

9 MR. SAXE: The date on the top left corner of

10 Exhibit 7.

11 MR. GREEN: That's right. It is a little bit

12 unclear as to which dates.

13 BY MR. GREEN:

14 Q My question is this, at the bottom of page 1, item

15 5, it states, "Economic Feasibility, economic impact on

16 farms, local economy, i.e., direct, indirect, EIS language

17 added to SWIM Plan, June, 1992, due." Do you recall any

18 discussion concerning that topic at the meeting that these

19 notes refer to?

20 A No, I don't, and I wouldn't have particularly paid

21 attention to that. That was water management district's

22 responsibility, and I had no role in that and was not

23 particularly interested in following its implementation.

24 Q Is economic feasibility of the challenged SWIM

25 Plan relevant to the Department in its review capacity

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

206

1 under the Chapter 373, Florida Statutes provisions relating

2 to SWIM Plan reviews?

3 A There are general provisions about approving the

4 plan based on its feasibility of implementation which

5 includes whether or not the SWIM trust fund and other

6 sources of revenue can conceivably cover the expected

7 activities. So to that extent, yes, economic issues became

8 much more important in this plan as I was phasing out of,

9 you know, my responsibilities in this program, and I am

10 really not up to speed on where those lay and how those got

11 worked out.

12 Q Are economic impacts of SWIM Plans relevant with

13 regard to the Department's public interest review under the

14 State water policy?

15 A We never discussed that as a particular aspect of

16 review pursuant to water policy.

17 Q If it were brought to your attention, would you

18 consider it?

19 A Well, yes, I would consider it.

20 Q Well, let me ask you the question this way, if

21 rather than June, '92, as this Exhibit 7 entry indicates

22 was the EIS due date, if the Department had been provided

23 with an economic impact statement and the plan had

24 reviewed, would it have taken that into account in

25 determining whether the plan was consistent with the State

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

207

1 water policy?

2 A Yes. The Department would have, you know, looked

3 at the entirety of the document, and if it included an EIS,

4 it would have included that, too.

5 Q And would it have considered that in determining

6 the extent to which moderating provisions should be

7 implemented in the SWIM Plan in question?

8 MR. SAXE: Objection to form.

9 THE WITNESS: I do not envision -- we looked at

10 SWIM Plans as planning documents. We were not doing

11 critical reviews of each implementation mechanism, and,

12 in general, you didn't see that level of implementation

13 in them. I would have been surprised if you would. I

14 mean, we were not looking for adopted rules and a

15 completed plan. We were looking for a plan as to how

16 people were going to pursue them. It is not, in my

17 opinion, something that we would have done even if the

18 document had said, first, we are going to do this EIS

19 and then we are going to do this, then we are going to

20 specifically get a XYZ number for a moderating

21 provision in this YZ area. We would have said, it is

22 their plan to pursue this line of approach, and if that

23 made sense and that seemed to be in compliance with

24 State water policy, that would have been the limit of

25 our review, not whether or not they could, in fact, do

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

208

1 precisely any particular number or water body.

2 BY MR. GREEN:

3 Q Are the costs of implementation of SWIM Plans

4 relevant to the Department's public, pardon me, State water

5 policy review?

6 A To the extent that they appear to be things that

7 are possible. If the financing of a particular plan

8 depends upon certain additional revenues, they have to be

9 things that conceivably that the agency either has

10 authority or could get authority to do. I mean to that

11 extent economic reviews would be done, not to the level of

12 an evaluation of whether or not that means the local

13 community can afford to hire more policemen or something.

14 Q Well, let me ask you a hypothetical, Ms. Dow, what

15 if the SWIM Plan that was under challenge discussed two

16 different regulatory alternatives, the first being the

17 alternative that was proposed with approximately 36,000

18 acres of stormwater treatment areas being constructed and

19 so forth, and the second, an alternative that would allow

20 implementation of the Department's moderating standards for

21 part of that requirement so that the stormwater treatment

22 area acreage was half that of alternative 1 and the savings

23 commensurate with that? If the Department had been faced

24 with those two alternatives, what would, in your opinion,

25 be the appropriate way to evaluate which alternative would

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

209

1 be preferable under Chapter 373 and 403?

2 A Well, first of all, this isn't an either/or test.

3 The District has to decide what their strategy is, so I

4 would not accept the responsibility of choosing, you know,

5 not recommend that the Department accept the responsibility

6 for choosing between two alternatives in the form of a SWIM

7 Plan review. I mean, those kinds of issues could be

8 discussed, but, you know, the plan is not just a plan for

9 the Department, the plan is a plan for the community as a

10 whole and the people who care about those water bodies, so

11 I object to the scenario as laid out as something that we

12 would even indulge in participating in at that level.

13 Q You wouldn't want to select which alternative was

14 preferable?

15 A That's right. It was a reason that we were not

16 made the decision-makers in the guts of these things. For

17 whatever reason it was, we are not, the District is. There

18 are provisions of the statute that, you know, we would

19 certainly point out to people that the whole intent of the

20 SWIM Act is to solve problems that have not hitherto been

21 solved, and that the intent is to protect the environmental

22 attributes of water bodies. So to the extent that those,

23 you know, purposes could still be met should a District

24 choose to suggest that they were going to pursue moderating

25 provisions, and I would say changes based on refinement of

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

210

1 water quality standards, you know, would be acceptable

2 changes that were made for short-term, let's get from here

3 to there, you know, would be considered, though it probably

4 wouldn't be as popular. Changes in order to get around

5 having to do anything probably would have a hard time

6 passing muster.

7 Q Well, let's talk about changes dealing with

8 refinement of water quality standards for a moment. If I

9 could refer you back to Exhibit 14, which is the thick one,

10 page 3, and I believe you referred to this yesterday, maybe

11 indirectly, in your answers to questions posed by Mr.

12 Hyde. Are you familiar with Rule 17-302.100(10) here on

13 page 3 of Exhibit 14?

14 A I am not nearly as familiar with intent language

15 since it rarely has much relevance to implementation of the

16 regulatory program. I have read this before.

17 Q What does it mean to you?

18 A It means that when the ERC adopted these rules in

19 1978 they had shaky knees.

20 Q Why is that?

21 A Well, it was a fairly extensive and challenging

22 revision package that they adopted back then. Many of

23 these procedures had not been tried in very many other

24 places in the country, and it was a very ambitious rule

25 revision. So they were concerned that people would be

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

211

1 caught in extreme positions that were not their intent.

2 Q Weren't they, in particular, concerned that

3 certain of the Class III water quality criteria that they

4 were adopting might not be, in fact, attainable in light of

5 the socio-economic impacts of their application?

6 MR. HETRICK: Object to the form of the question.

7 THE WITNESS: Well, I don't know the individuals

8 involved and what they specifically were thinking.

9 There were obviously provisions written that attempted

10 to find some flexibility in areas where they

11 anticipated some problems.

12 BY MR. GREEN:

13 Q Do you have any knowledge concerning whether the

14 Class III water quality criterion for nutrients found at

15 Rule 17-302.560(27), FAC, on page 31 of this exhibit, was

16 among the criteria that the commission adopted back in 1978

17 that went into effect in '79?

18 A I do not believe that provision has been changed

19 since the '78 adoption.

20 Q And that's when it was added to the rules, wasn't

21 it?

22 A Well, I don't know what was in the rules previous

23 to that point in time. There may have been nutrient

24 provisions in there.

25 Q Okay. Thank you.

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

212

1 (Brief recess.)

2 (Discussion off the record.)

3 BY MR. GREEN:

4 Q Ms. Dow, I would like to refer you to Exhibit 9,

5 and I have just got a couple of points. On page 2, Rule

6 17-40.120(2) states that State water policy shall also

7 include the following Department rules, colon, surface

8 water quality standards. And on page 4, there is a

9 definition for state water quality standards in parens

10 (17), and that definition includes designated most

11 beneficial uses, the numerical and narrative criteria, the

12 Florida anti-degradation policy and the moderating

13 provisions contained in Rules 17-3 and 17-4, FAC. Is that

14 your understanding of the correct definition of State water

15 quality standards?

16 A Yes.

17 Q Let me refer you to page 6 in the section of the

18 policy beginning on Rule 17-40.310 and then on page 7,

19 parens (12) of that policy. And I will quote, this item

20 says, "Encourage nonstructural solutions to water resource

21 problems and give adequate consideration to nonstructural

22 alternatives whenever structural works are proposed," end

23 quote. Can you tell me what that provision is intended to

24 convey from your perspective?

25 A Well, I can't say as I ever gave this issue a

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

213

1 great deal of particular thought to that provision, I mean,

2 nonstructural water management has been one of the

3 overreaching policy goals from the State comp plan and in

4 before, and we have been much more successful in projects

5 that do not involve constructed facilities that need to be

6 operated and maintained in a given way and have always

7 encouraged nonstructural water management. The statement

8 is simply a restatement of the general policy.

9 Q Okay. Why has the Department preferred

10 nonstructural alternatives?

11 A Less environmental -- less, fewer environmental

12 effects, much cheaper to maintain, much less catastrophic

13 failure rate, more aesthetically pleasing, easier to sell

14 politically and socially, it just seems all the benefits

15 are in protecting, maintaining and using the geography and

16 benefits given to us rather than trying to recreate the

17 world ourselves.

18 Q Did the Department evaluate nonstructural

19 alternatives to the proposed stormwater treatment areas in

20 the challenged SWIM Plan?

21 A I do not recall any discussion on this particular

22 provision. There were no points of argument or

23 disagreements that revolved around this issue.

24 Q Couldn't the grant of mixing zones constitute a

25 nonstructural alternative?

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

214

1 A I certainly have never considered it in that

2 context.

3 Q But now having been asked, could it be?

4 A The term nonstructural water management to me has

5 to do with envisioning the way water flows and the

6 possibilities for altering that, not water quality,

7 concepts don't appear to be particularly related to me.

8 Q Okay. Now, let's go to page 6 of the same

9 document, and Item parens (7) begins, quote, "Protect the

10 water storage and water quality enhancement functions of

11 wetlands," and it continues. Can you tell me what this

12 portion of the general water policy conveys to you as you

13 apply it in SWIM Plan reviews?

14 A That you want to maintain wetlands, floodplains,

15 aquifer recharge areas so that they are functioning in a

16 natural manner and can hold water, can prevent erosion, can

17 buffer areas one from another, and to use the tools of land

18 acquisition, regulatory processes and planning and land

19 management to further those storage and protection

20 functions.

21 Q Do the water conservation areas in the South

22 Florida Water Management District serve to enhance water

23 quality before waters leave them that then go on to other

24 waters of the State?

25 A I think that that is a question that is in

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

215

1 contention. The water conservation areas were not designed

2 or intended for water quality enhancement. They may be

3 serving that function above and beyond our intentions, but

4 that was not their function. They were designed and set

5 aside specifically for water storage.

6 Q What is the basis for your belief that the water

7 conservation areas were not intended in part to have a

8 water quality enhancement function?

9 A Just from the historical reading of documents that

10 I have seen through the years, I don't recall any mention

11 of anything other than serving as a way to ensure adequate

12 water supplies, and, in fact, I do recall some comment that

13 the interim action plan was, you know, in contradiction to

14 their original function for the very reason that people

15 were concerned that they would end up being places where

16 phosphorous would be stored and then released to the

17 Everglades National Park over a long period of time, and it

18 was Malloy who actually made that comment at one of the

19 water management conferences.

20 Q Are you aware that the levels of phosphorous

21 entering the water conservation areas drops almost an order

22 of magnitude before entering the Everglades National Park?

23 MR. SAXE: Objection to form.

24 THE WITNESS: There is evidence that at this

25 point in time phosphorous is being reduced as it

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

216

1 crosses portions of the conservation areas. Wetlands

2 across the state show highly variable rates of

3 retaining phosphorous. In fact, in some cases like in

4 the Reedy Creek wetland system you see net export of

5 phosphorous over the long term, so the scientific issue

6 that many people are debating is the long-term

7 implications of input, storage, assimilation and what

8 the long-term fluctuations will be under expected

9 conditions.

10 BY MR. GREEN:

11 Q When you say, long term, what time frame did you

12 have in mind?

13 A Years.

14 Q Well, the water conservation areas, are you

15 familiar with how long they have been in existence?

16 A Generally.

17 Q What's your understanding of their age?

18 A Late '30s.

19 Q How about the central and southern flood control

20 project, are you familiar with when it was created?

21 A Well, the actual term being applied to the words,

22 actually, no, I am aware that there have been drainage,

23 quote, improvements in the Everglades since the middle

24 1800s, but phosphorous loadings, too, what are known as the

25 water conservation areas have fluctuated through the years,

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

217

1 and we probably don't have a real good handle on that.

2 Some people believe they are already transporting

3 phosphorous to the Everglades National Park.

4 Q What do you believe?

5 A Oh, I believe that it is highly variable and that

6 there are probably some very high wet weather conditions

7 that are preceded by dry weathers where you do see some

8 flushing out, my longer term concern would be over buildup

9 when phosphorous assimilation is reduced due to loading of

10 a much longer period of time.

11 Q Do you believe the Everglades National Park is

12 threatened by phosphorous originating from the EAA?

13 A Not imminently, but without some alterations to

14 the current scenario, I believe that it is ultimately

15 threatened.

16 Q When you say, ultimately, how much time do you

17 think is there before the Park would be threatened?

18 A I -- I really don't know. It could be in my

19 lifetime, or it could be later than that.

20 Q Have you seen any analysis of that question?

21 A I can't as I have actually looked at the written

22 documentation, no.

23 MR. GREEN: I would like to have that document

24 marked as Exhibit 15.

25 (Whereupon, Exhibit No. 15 was marked for

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

218

1 identification.)

2 BY MR. GREEN:

3 Q Ms. Dow, can you identify for us this document

4 that's been marked as Exhibit 15?

5 A This is a typed outline of the Everglades SWIM

6 Plan Review. It is undated, has written notes on the

7 second page. It is -- I don't know which set of numbers

8 you're using for tracking at this point in time.

9 Q Did you prepare this document?

10 A I am trying to remember if I prepared this or if

11 somebody else prepared this. This looks like an outline

12 that I prepared for myself for a meeting, but I don't

13 remember the specifics.

14 Q Do you know approximately when you might have

15 prepared it?

16 A I mean, we were obviously into fairly -- we were

17 fairly late in the process. I mean, we were already

18 delineating water policy elements, but I don't know the

19 date and obviously didn't put it on here.

20 Q Well, if it would help you, I found it in a part

21 of your file that I think was around '89 or '90, but I

22 don't know if this --

23 A Well, it certainly was still in the period of time

24 where I was, you know, being responsible for making sure

25 that briefing meetings covered the major points, that's

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

219

1 about the right time frame.

2 Q Well, I just have one question. On page 1, under

3 Review Criteria, item 23, Agriculture, and I quote,

4 "Maintain and strive to expand agricultural industries,"

5 end quote, can you tell me what that statement refers to?

6 A These were issues in the State Comprehensive Plan

7 that had been highlighted as particularly relevant to this

8 particular plan, and this does not necessarily mean that

9 they were issues that we highlighted, but issues that other

10 -- included issues that other people had highlighted.

11 Q To your knowledge, did the Department review the

12 SWIM Plan that is now under challenge with regard to

13 whether it would maintain or strive to expand agricultural

14 industries?

15 A I don't recall that being a particularly

16 contentious or conflicting goal. Some of the state plan

17 goals appear on their face to contradict each other, so we

18 would be looking to not directly contradict this goal, but

19 I don't remember that anybody else made any issue that

20 somehow this goal wasn't being met.

21 Q Well, let me ask it this way, was any analysis

22 done concerning the economic impacts of this plan and the

23 effects that those might have on the agriculture industry

24 and its ability to maintain itself or expand itself?

25 MR. SAXE: Objection, asked and answered.

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

220

1 THE WITNESS: The analysis simply was, you know,

2 the recognition that agriculture would continue to

3 exist in the area. To my knowledge, that's the extent

4 of our discussions as it involved the review of the

5 SWIM Plan.

6 BY MR. GREEN:

7 Q And who made that conclusion that you just

8 referenced?

9 A Well, we put it on the table to see if anybody had

10 any concerns, and nobody had any concerns with it. So that

11 was the extent of -- you know, everybody nodded their

12 heads, and that was it.

13 Q And when you say, everybody on the table -- I am

14 sorry, you didn't say everybody on the table. What group

15 were you referring to when you said, no one?

16 A Well, this was in the process of people inside and

17 outside the agency who had an opportunity to review the

18 draft. Comments and issues had come forward, people who

19 felt that there were questions about issues made their

20 points known, this was a refinement of where we stood at

21 this particular point in time.

22 I would have had -- a meeting like this probably

23 would have involved the Division Director and the Secretary

24 or the Assistant Secretary, one or two of the other plan

25 reviewer participants, and we would have said, this is

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

221

1 where we are at, does anybody in management above us have

2 any concerns with this? This is an outline of where we are

3 moving. Issues that remain outstanding if we cannot

4 resolve them with the staff of the water management

5 district will be included in formal comment letters.

6 So when we went down through this list,

7 agriculture was not -- it was there, everybody knew it was

8 there, everybody felt that there were no objections to the

9 plan as currently constituted as a result of reviewing it

10 against that comprehensive plan goal.

11 Q Was there any further review of that comprehensive

12 plan goal to your knowledge subsequent to the review that

13 this memorandum related to?

14 A I do not recall any further discussions of that

15 comprehensive plan goal.

16 Q All right. Ms. Dow, would you -- this copy is not

17 very good. Could you please identify the document that we

18 are having marked as Exhibit 16?

19 (Whereupon, Exhibit No. 16 was marked for

20 identification.)

21 MR. GREEN: Is yours readable?

22 MR. SAXE: Yes.

23 THE WITNESS: This is another document entitled,

24 "Everglades SWIM Plan Consistency Review," undated,

25 three pages, I did not prepare this one.

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

222

1 BY MR. GREEN:

2 Q Do you know who might have prepared this?

3 A My suspicion is Bart Bibler prepared this one.

4 Q Do you have any idea when he might have prepared

5 it?

6 A I anticipate that it would have been prior to the

7 last document that we looked at or, well, I don't know, but

8 that's a guess.

9 Q Okay. Moving right along. Ms. Dow, I have

10 another document for you, which we are going to mark as 17.

11 I wonder if you can tell me what that is.

12 A This is a document entitled, "Major Issues Related

13 to Water Quality Standards in the Everglades SWIM Plan,"

14 dated 9/26/1990. I -- let's see. I believe I wrote this

15 in conjunction with Tom and Bart. We were trying to -- we

16 were trying to somehow agree on ways to word specific

17 issues, and we were having a great deal of difficulty

18 communicating with the division directors and assistant

19 secretaries and water management district managerial level.

20 To tell you the truth, I must have done this in a hurry

21 because I don't really remember a lot of this, and there

22 are many times at this point that we were under a great

23 deal of pressure to turn around things quickly, but I will

24 do my best to try to answer your questions about this.

25 (Whereupon, Exhibit No. 17 was marked for

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

223

1 identification.)

2 BY MR. GREEN:

3 Q Well, do you know what the outcome of this was? I

4 mean, does this memorandum, for example, lead up to a group

5 discussion that produced another memorandum, or do you

6 recall exactly what was done with it?

7 A We were in the process of trying to write letters

8 that the Secretary would sign, so we were looking to build

9 background understanding and to come up with words that

10 meant the same to everybody and to explain, to make sure

11 everybody had a consensus on why they were important

12 issues, if they were important issues, why they were

13 important issues and how to best communicate our concerns.

14 I don't know that this actually ever, you know,

15 was given to anybody. At the very -- its primary purpose

16 at least was to, you know, work together as a staff to try

17 to lay out our logistical thought patterns so that we were

18 all communicating on the same lines.

19 MR. GREEN: Okay. Thank you. This will be marked

20 as 18.

21 (Whereupon, Exhibit No. 18 was marked for

22 identification.)

23 BY MR. GREEN:

24 Q Would you identify Exhibit 18?

25 A This is the "Department of Environmental

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

224

1 Regulation SWIM Review Procedures Manual," dated March 20,

2 1990.

3 Q Do you know who prepared this?

4 A The preparation of this document was the

5 responsibility of the old coastal zone management sections

6 which became the SWIM review coordinators. Jim Stoutamire

7 was the principal editor.

8 Q Did Jim work for you?

9 A At the time, he worked for Dave Worley who was the

10 section administrator who worked for Bart Bibler who was the

11 BE administrator who worked for me.

12 Q Okay.

13 MR. HETRICK: Counselor, what table of contents is

14 that? Explain that.

15 MR. GREEN: Just the way it came out, I think

16 that's the way it came from you.

17 Let the record show that page 2 of Exhibits 18 is

18 a table of contents that is not completely reproduced

19 by the Xerox machines.

20 THE WITNESS: Furthermore, you are missing page

21 1.

22 MR. GREEN: Oh, okay. We are missing every other

23 page. No, wait, no, I am not sure, well, whatever.

24 THE WITNESS: I will tell you that the SWIM Manual

25 does not start with a form and a number three. There

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

225

1 would be a one and two before that.

2 BY MR. GREEN:

3 Q All right.

4 A And, in fact, there are sections before Section

5 5.

6 Q Would it be correct to assume that this Exhibit

7 18, except for the problems we just pointed out, sets forth

8 the SWIM review procedures that the Department followed

9 with regard to the SWIM Plan under challenge?

10 A I will tell you that this is the logistical

11 handling for SWIM Plans that we laid out in which I

12 presumed the staff was following in which I have no

13 evidence I can recall that they were not.

14 Q And they should have all had copies of this, I

15 take it, the people that reviewed the SWIM Plan?

16 A As far as I know, everybody ever related to a SWIM

17 Plan had copies of this.

18 MR. HYDE: Excuse me for interjecting. Is there

19 some way we can obtain a complete copy of this

20 document?

21 THE WITNESS: I am sure there is. It is just a

22 matter of copying error.

23 MR. GREEN: I will check to see if our machine

24 made the mistake at lunch time. I have a feeling

25 that's the way we received it, but we will -- if it is

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

226

1 in our copy, then we'll ask Keith if he can help us

2 find the original again.

3 BY MR. GREEN:

4 Q I would like to refer you to page 13, Ms. Dow, at

5 the bottom under Capital E, 1, which refers to Section

6 373.453(2), F.S., and I will paraphrase and correct me if I

7 misstate it, but this provision seems to state that the

8 Department -- the Department's evaluation must discuss or

9 the adopted plan, rather, must discuss recommendations and

10 schedules for restoration or protection of the water body

11 and for bringing all point and nonpoint sources of water

12 pollution into compliance with low quality standards when

13 not contrary to the public interest. Can you tell me what

14 your understanding of that public interest caveat is?

15 MR. HETRICK: I will object to the question. It

16 calls for a legal conclusion.

17 BY MR. GREEN:

18 Q As the reviewer and the person heading up review

19 of SWIM Plans in the Department, what does that phrase mean

20 to you?

21 A That was -- it has very little meaning to me. The

22 issues that was involved is the requirement that came down

23 via the statute requirements that they were to go on

24 looking at all the sources of pollutions that had -- that

25 were considered points and nonpoint sources of pollution,

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

227

1 assess their compliance status, the implication being at

2 the very least, those people who are not in compliance

3 should be brought into compliance. That would give you a

4 better establishment of the base line if you were going to

5 propose new and additional programs. The not contrary to

6 the public interest to me was just a tag that went along

7 with a lot of these words and did have any particular

8 meaning in any particular context.

9 This paragraph was an attempt to get the plan to

10 include a status of how much -- how many entities were

11 regulatory compliance problems already as opposed to, you

12 know, perhaps issues that would involve additional or new

13 kinds of activities.

14 Q Are there, in your knowledge, any Department

15 documents, memoranda, or so forth that further articulate

16 what this phrase means when it says, "when not contrary to

17 the public interest"?

18 A There is a history of decision-making about public

19 interest in the regulatory permitting context. I am aware

20 it is there. I have, you know, not had the opportunity to

21 use it much. Should I ever have to, I would go to one of

22 those people to try to explain it.

23 Q Okay. And this will be No. 19.

24 (Whereupon, Exhibit No. 19 was marked for

25 identification.)

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

228

1 BY MR. GREEN:

2 Q Can you tell me what this document deals with

3 that we have marked as Exhibit 19?

4 A This is a memo from Ken Davis from the Office of

5 the Auditor General to Randall Armstrong, who was the

6 Division Director of the Division of Water Management dated

7 July 18, 1989, has to do with an audit of the program.

8 Q On the bottom three lines of this exhibit on the

9 first page, there is the statement, "The economic and

10 environmental feasibility of accomplishment of restoration

11 or conservation goals," parens, (Rule 17-43.030(7), FAC.)

12 Are you familiar with that statement?

13 A Let me take a minute to reread this. '89 was a

14 long time ago.

15 Q Sure.

16 A Okay. What was the question? What this last

17 checked area means?

18 Q Yes.

19 A The Auditor General pointed out one of the sort of

20 longstanding issues between the Department and the water

21 management districts in the implementation of the SWIM Act

22 which was, as you know, sort of the degree of the

23 Department's oversight and required formal documentation

24 and had always had a great deal of contention with all of

25 the districts about whether we, you know, were to basically

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

229

1 be a blight overviewer or whether we had, you know, a great

2 deal of responsibility to force them to document everything

3 in a great deal of detail. It was a longstanding bone of

4 contention.

5 There was also something of an issue about where

6 formal file copies of things were to go, and particularly

7 in the case of a request for reimbursement or for money,

8 oftentimes the original records for those things were part

9 of the resolution in which the District requested their

10 funds, and originals had to be in certain accounting files

11 as opposed to our attempts to maintain formal SWIM files.

12 So one of the big issues that we went around with

13 the Auditor General was making sure that, you know, the

14 right files were maintained in the right places and that

15 the Auditor General had access to all of them. I do not

16 remember that this particular issue was any different than

17 any of the rest of them. It was a matter of, could you

18 find any reasonable place, documentation that each of these

19 little -- each of these specified aspects had a piece of

20 paper that could document that they had been considered,

21 and as a result of the auditor -- auditor's comments, we

22 attempted to beef up the procedures manual and to assure

23 our project managers that they could, in fact, be adamant

24 with the water management districts that those kinds of

25 documentations had to be provided and they had to be

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

230