170 1 VOLUME II 2 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 3 SUGAR CANE GROWERS COOPERATIVE OF 4 FLORIDA, INC., ROTH FARMS, INC., and WEDGWORTH FARMS, INC., 5 and 6 FLORIDA SUGAR CANE LEAGUE, INC., 7 UNITED STATES SUGAR CORPORATION, and NEW HOPE SOUTH, INC., 8 and 9 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, 15 Respondent, 16 and 17 MICCOSUKEE TRIBE OF INDIANS OF 18 FLORIDA, the UNITED STATES OF AMERICA, FLORIDA DEPARTMENT 19 OF ENVIRONMENTAL REGULATION, and FLORIDA WILDLIFE FEDERATION, 20 Intervenors. 21 . . . . . . . . . . . . . . . . . . . / 22 23 DEPOSITION OF ROXANE R. DOW 24 November 24, 1992 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 171 1 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. 7 8 Reported by: 9 DEBRA ROTRUCK KRICK 10 Court Reporter 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 6 On behalf of the Petitioners Florida Sugar Cane League, 7 Inc., United States Sugar Corporation and New Hope South, Inc.: 8 William L. Hyde, Esq. 9 Peeples, Earl & Blank 215 South Monroe Street 10 Suite 350 Tallahassee, FL 32301 11 On behalf of the Intervenor United States of America: 12 Keith E. Saxe, Esq. 13 United States Department of Justice Environment & Natural Resources Division 14 601 Pennsylvania Avenue NW Washington, D.C. 20044 15 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 22 23 24 25 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 1 included in the files. 2 Q Is there contained in DER files documentation on 3 the economic and environmental feasibility of restoring or 4 conserving the Everglades in the context that we have been 5 speaking? 6 A There is -- 7 MR. SAXE: Objection to form. 8 MR. GREEN: Well, help me. 9 MR. SAXE: I don't believe your questions have 10 identified a context in which you have been speaking. 11 MR. GREEN: Okay. Let me try again. 12 BY MR. GREEN: 13 Q Ms. Dow, let me see if I understand what you said, 14 and then I want to ask you a question. That this 15 memorandum related to the Auditor General's efforts to 16 assure that priority lists established under Rule 17-43 had 17 appropriate documentation. Is that correct so far? 18 A Yes. 19 Q And the priority list of the water management 20 districts contained on page 1 of Exhibit 19 and the bottom 21 line of this page has South or SFWMD, and then 22 documentation over in the right column, it says, no. Am I 23 to infer from that that -- well, what should I infer with 24 regard to that? 25 A Well, that as of July 18th, this particular A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 231 1 auditor could not find what he considered to be 2 documentation in files that he had looked at. 3 Q Okay. My question is, does such documentation 4 exist? 5 A It was our belief that there was sufficient 6 documentation -- let me rephrase that. It was our belief 7 that there was sufficient information available to say that 8 they had considered this particular aspect in the 9 development of their priority list as approved at that 10 particular point in time. 11 Q Where might I find that documentation? 12 A It is possible that you will not find it in any 13 particular file of the Department's. It is possible that 14 that is in file of the water management district. It was 15 the reviewers collectively believed that they had 16 considered that adequately. It is also possible that a 17 sentence in the documentation of submitting the priority 18 list could be considered adequate for the purposes of the 19 Department and the District, and other people may disagree 20 with that, including an auditor. 21 Q Okay. I understand. Red tape. This will be 22 Exhibit 20. 23 (Whereupon, Exhibit No. 20 was marked for 24 identification.) 25 BY MR. GREEN: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 232 1 Q Can you identify Exhibit 20, Ms. Dow? 2 A This is a draft, first page is a draft agenda for 3 an Everglades summit to be held Thursday, January 31. 4 Second page is a option list of potential participants, and 5 the third page is a summary of what appears to be an 6 outline for an issue paper regarding the Everglades 7 lawsuit. 8 Q Are these handwritten entries entries that you 9 made? 10 A I do not know. No, they are not mine. 11 Q Did you attend an Everglades Summit Meeting on 12 January 31 of 1991? 13 A I don't remember exactly what the date was. I 14 went to the first thing that was called the Everglades 15 Summit Meeting in West Palm Beach. 16 Q Do you know what month it was in in '91? 17 A Not offhand, no, I don't. 18 Q Can you tell me whether this was the agenda 19 followed at the meeting that this draft refers to on the 20 second line at the top which is January 31st? 21 A No. There was really no such thing as 22 subcommittees. The meeting actually became, you know, 23 really sort of a, here is a panel of people who have 24 interests in the Everglades, from the Commissioner of 25 Agriculture to a tribal chief. There were some explanatory A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 233 1 presentations made by the water management district and the 2 Corps, somebody else. 3 Q Did you attend the meeting? 4 A Yes. 5 Q Did you see me there? 6 A There was a sea of people there. I spent most of 7 my time worrying about whether we were going to get out 8 unharmed, so -- 9 Q But you don't know -- 10 A Actually to tell you the honest to God truth, no, 11 Bill, I don't remember whether you were there or not. I am 12 terribly sorry. Really I was very concerned. 13 Q That's in the next life. Now, let's look at this 14 Exhibit 20, page 1, Roman numeral I, C, 5 says, "Review 15 draft settlement agreement." Can you tell me what that 16 refers to? 17 A No. I mean, I don't recall that they sat there 18 and reviewed any draft settlement agreement. 19 Q Did the draft settlement agreement exist at that 20 time? 21 A I don't know. 22 Q None that you saw, I take it? 23 A No. 24 Q Okay. Ms. Dow, this is a document we are marking 25 as Exhibit 21. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 234 1 (Whereupon, Exhibit No. 21 was marked for 2 identification.) 3 BY MR. GREEN: 4 Q I wonder if you could identify that for the 5 record? 6 A This is a copy of a FAX, one, two, three, four 7 pages. It is entitled lengthily, considerations, the 8 following constitutes observations to the Department on 9 modifications of the current Everglades SWIM Plan necessary 10 to bring it into conformity with the law of the State, 11 including its water policy, and I believe these were 12 comments from the Justice Department on the Everglades SWIM 13 Plan. The FAX date is October 29, 1990. 14 Q Are these your handwritten notes in the margins of 15 Exhibit 21? 16 A It looks like it. 17 Q Let me refer you to the last page, item 14, and I 18 quote, the typed version says, "That Florida and the 19 District will offer the plan, comma, as modified in 20 consonance with this proposal, comma, to the U.S. District 21 Court for the Southern District of Florida as a basis for 22 settlement of U.S. V. SFWMD, et al, and for incorporation 23 of the plan, comma, as so modified, comma, in the order of 24 the court. 25 MR. HETRICK: I just want to -- excuse me, I just A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 235 1 want to go on the record as saying any questions as to 2 the settlement, it is the Department's position that we 3 object to as any relevance. 4 MR. GREEN: I understand. 5 BY MR. GREEN: 6 Q Ms. Dow, then the handwritten entry below that, 7 quote, "give to the judge to enforce, dash, don't agree the 8 fed court has jurisdiction." What did you mean by that 9 statement? 10 A That was a flippant comment. It is expressing my 11 frustration at the end of this. I -- it is entirely 12 possible that I just did that in a moment of frustration. 13 Whatever I felt didn't have any relevance in that regard 14 any way. 15 Q But you didn't feel they had jurisdiction, isn't 16 that right? 17 MR. HETRICK: I will object to that. That calls 18 for a legal conclusion. 19 THE WITNESS: I don't know that that's exactly 20 what I -- I mean, that's what I felt at the time I 21 wrote the comments. 22 BY MR. GREEN: 23 Q Why did you feel that? 24 A Well, I felt all along that it was confusing to 25 follow the logic, perhaps because I am not a trained A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 236 1 professional in the field. 2 Q Okay. Did that comment reflect conclusions that 3 you had drawn based upon statements of others? 4 A Well, I certainly heard a lot of discussion about 5 that. So, yes, I am sure it was influenced by particularly 6 Secretary Twachtmann's feelings about the appropriateness 7 of the action. 8 Q Who else besides Secretary Twachtmann had 9 questioned the appropriateness of that action in your 10 presence? 11 A Randy Armstrong. 12 Q Anyone else you can think of? 13 A No. 14 Q Okay. On page 2 of this document, item 5, there 15 is a marginal note over on the left in handwriting that 16 says, "Refuge and Holey Land not possible," what did you 17 mean by that entry? 18 A Let's see, I think I meant that I didn't think 19 that that could in practicality be done for the Refuge and 20 for the Holey Land. It is a title for swath property. 21 Q And when you say that that couldn't be done, you 22 mean what's contained in the item 5? 23 A Right, the statement in item 5. 24 Q What part of the statement in item 5 had you 25 concluded could not be done? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 237 1 A That all water quality protection requirements 2 could not be met into the Refuge at least by December 31, 3 '96. 4 Q Okay. In making that statement, had you reached 5 any conclusions on what the requirements of water quality 6 standards were with regard to the Refuge? 7 A I presume this statement, since the issue that we 8 were all faced, was that the Holey Land and the Refuge 9 directly take discharges off of highly phosphorous- 10 contaminated areas. 11 Q Okay. 12 A So I -- you know, I am sure that I was only 13 thinking phosphorous and the nutrient implications of that 14 discharge at the time. 15 Q I am going to show you a document that we are 16 marking as No. 22. 17 (Whereupon, Exhibit No. 22 was marked for 18 identification.) 19 BY MR. GREEN: 20 Q And ask you if you can identify this document? 21 A It is a one-page document with six issues outlined 22 on it entitled, "Everglades Class III Violations Document 23 Questions," and attached to it is a page I-19 from the 24 draft -- final draft Everglades SWIM Plan, paragraph 25 circle. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 238 1 MR. SAXE: Pardon me, counsel. I have gotten the 2 wrong copy. It looks like I have got another copy of 3 Exhibit 21, and I don't have a copy of 22. 4 MR. GREEN: Okay. This is a strange copy, but 5 that's it. 6 MR. SAXE: Okay. 7 MR. GREEN: I don't know why it has holes in the 8 side. 9 BY MR. GREEN: 10 Q Did you prepare this first page of Exhibit 22, Ms. 11 Dow? 12 A No. 13 Q Do you know who did? 14 A No. 15 Q Do you know why it was prepared? 16 A No. 17 Q Okay. That was easy. 18 Before we mark this, is this the same thing as 19 something we marked yesterday? 20 MR. HETRICK: Is that part of -- 21 MR. GREEN: This will be item 23. 22 (Whereupon, Exhibit No. 23 was marked for 23 identification.) 24 THE WITNESS: I am never writing anything down 25 again. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 239 1 MR. GREEN: That's all right. 2 BY MR. GREEN: 3 Q Ms. Dow, can you identify Exhibit 23? 4 A It is scribbled notes on one of my memo pads, 5 undated. 6 Q When was it prepared? 7 A Beats the hell out of me. 8 Q Do you know what year it was prepared? 9 A I know it was, I believe in the same time frame of 10 early '90, late '89, early '90. 11 Q Okay. The second entry, and I quote, it says, 12 "Don't talk to League," can you tell me -- 13 A This is a period of time where there were lots of 14 lawyers wandering around the hall asking lots of people 15 miscellaneous questions, only later to find out that they 16 were involved in either the Lake Okeechobee Discharge 17 Permit procedures or with the SWIM Plan, and we -- the 18 lawyers felt very strongly that they were losing track of 19 who was talking to who. 20 Q So this reflects an instruction given to you by 21 one of your lawyers? 22 A Right. 23 Q How about the fourth item there that says, 24 "Frank", comma, "Feds and WMD meeting periphyton", colon, 25 "macrophytes", colon, "WQ", colon, "disturbance effects", A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 240 1 paren, "Duke document", end paren, what was that all about? 2 A Apparently, Frank was going to meet with 3 representatives from the federal government and the water 4 management district on these particular issues. 5 Q Frank -- 6 A Frank Nearhoof. 7 Q -- Nearhoof, okay. 8 MR. GREEN: This is marked as Exhibit 24. 9 (Whereupon, Exhibit No. 24 was marked for 10 identifica