1

1 Division of Administrative Hearings

2 Department of Administration, State of Florida

SUGAR CANE GROWERS COOPERATIVE )

4 of FLORIDA; ROTH FARMS, INC.; and )

WEDGWORTH FARMS, Inc., )

5 Petitioners )

V ) DOAH Case No.

6 SOUTH FLORIDA WATER MANAGEMENT ) 92-3038

DISTRICT, an agency of the State )

7 of Florida; et al., )

Respondents. )

FLORIDA SUGAR CANE LEAGUE, INC.; )

9 UNITED STATES SUGAR CORPORATION; )

and NEW HOPE SOUTH, INC., )

10 Petitioners, )

V ) DOAH Case No.

11 SOUTH FLORIDA WATER MANAGEMENT ) 92-3039

DISTRICT, an agency of the State )

12 of Florida; et al., )

Respondents. )

FLORIDA FRUIT and VEGETABLE )

14 ASSOCIATION; LEWIS POPE FARMS; )

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

15 and HUNDLEY FARMS, INC., )

Petitioners, )

16 V ) DOAH Case No.

SOUTH FLORIDA WATER MANAGEMENT ) 92-3040

17 DISTRICT, an agency of the State )

of Florida; et al., )

18 Respondents. )

Deposition of Anthony Federico

20 VOLUME I

21 Taken before Elaine V. Williams,

Professional Reporter and Notary Public in and for

22 the State of Florida at large, pursuant to notice of

taking deposition filed by the Petitioners in the

23 above cause.

- - -

24 Wednesday, March 23, 1992

319 Clematis Street, 5th Floor

25 West Palm Beach, Florida 33401

9:32 a.m. - 5:00 p.m.

1 APPEARANCES:

On behalf of the Petitioners Florida Sugar

3 Cane League, Inc., United States Sugar Corp.,

and New South Hope, Inc.:

4 Earl, Blank, Kavanaugh & Stotts, P.A.

One Biscayne Tower, Suite 3636

5 Two South Biscayne Boulevard

Miami, Florida 33131

6 By: ROBERT H. BLANK, ESQUIRE

7 On behalf of Sugar Cane Growers:

Hopping, Boyd, Green & Sams

8 123 South Calhoun Street

Tallahassee, Florida 32314

9 By: ROBERT SMITH, ESQUIRE

KAREN PETERSON, ESQUIRE

On behalf of the Respondent SFWMD:

11 South Florida Water Management District

3301 Gun Club Road

12 West Palm Beach, Florida 33416-4680

By: RUTH CLEMENTS, ESQUIRE

On behalf of the Intervenor, United States of America:

14 Department of Justice

155 South Miami Avenue, Suite 627

15 Miami, Florida 33130-1693

BY: THOMAS A.W. FITZGERALD, ESQUIRE

- - -

1 - - -

2 I N D E X

3 - - -

5 WITNESS: DIRECT CROSS REDIRECT RECROSS

6 Anthony Federico

BY MR. BLANK: 4

8 BY MR. SMITH: 122

11 - - -

12 E X H I B I T S

13 - - -

15 NUMBER PAGE NO. DESCRIPTION

16 EXB. NO. 1 125 Whalen's notes of 5/21/91

17 - - -

1 P R O C E E D I N G S

2 - - -

3 Thereupon,

4 Anthony Federico,

5 being by the undersigned Notary Public first duly

6 sworn, was examined and testified as follows:

7 THE WITNESS: I do.

8 DIRECT (Anthony Federico)

9 BY MR. BLANK:

10 Q. Would you state your name and present

11 address, please?

12 A. Anthony Charles Federico, 71757 Pioneer

13 Lake Circle, West Palm Beach, Florida.

14 Q. Have you been deposed in this case before?

15 A. No.

16 Q. My name is Robert Blank. I am here today

17 representing the Florida Sugar Cane League and United

18 States Sugar Corporation. If any of the questions

19 that I pose to you are unclear or you don't

20 understand them, just let me know and I'll try and

21 rephrase the question. If you need to take a break

22 at any time, just let us know and we'll take a break

23 and resume the deposition when you are ready.

24 Do you have a resume'?

25 A. No, I don't.

1 Q. Would you give us just a brief background

2 of your education?

3 A. Yes. I received a Bachelor of Science

4 degree in zoology from the University of Florida in

5 1973 and a Master of Science in environmental

6 engineering sciences from the University of Florida.

7 I believe it was in 1975.

8 Q. Those were both at the University of

9 Florida?

10 A. Yes.

11 Q. Have you taken any graduate courses beyond

12 your master's work?

13 A. I believe I took one semester into my Ph.D

14 program beyond the master's degree. I don't recall

15 whether or not there was course work involved, but I

16 was at the university for another semester.

17 Q. And that was at the University of Florida?

18 A. Yes.

19 Q. And your master's, you said, was

20 environmental engineering; is that correct?

21 A. Environmental engineering sciences.

22 Q. What disciplines are involved in that

23 study?

24 A. There was limnology, biology course work,

25 statistics, chemistry.

1 Q. What in statistics in particular; what

2 level of courses did you take?

3 A. I took graduate level statistics courses.

4 I don't recall the course titles. It was probably

5 advanced graduate level statistics.

6 Q. Would this have been a one semester course

7 or more?

8 A. No. No. Multiple semesters.

9 Q. Multiple semesters?

10 A. Yes.

11 Q. All right. Anything beyond limnology,

12 biology and statistics?

13 A. There very well may have been. I just

14 don't recall.

15 Q. What about the engineering courses that you

16 would have studied?

17 A. I don't recall. There were some modeling

18 courses. I do remember one of Howard Otum's

19 (phonetic) modeling courses.

20 Q. What was involved in that course?

21 A. I think just one of his basic courses that

22 he taught in modeling. It mostly, I think, deals

23 with energy transfers, as best as I can recall.

24 Q. Did you ever deal with mass balance models

25 in that course?

1 A. I don't recall.

2 Q. What about publications? Have you

3 published since you graduated, got your master's

4 degree?

5 A. What do you mean by publications?

6 Q. Any articles that may have been published

7 in journals, scientific journals of one nature or

8 another.

9 A. There was an article that was published in

10 a Canadian -- I don't recall the exact name. It was

11 a Canadian water resource type of journal dealing

12 with Lake Okeechobee.

13 Q. Were you the sole author on that article?

14 A. I don't recall. I believe if I wasn't, I

15 was the primary, I was the first author.

16 Q. Do you recall when that would have been

17 published?

18 A. I can't remember.

19 Q. You are presently employed by the South

20 Florida Water Management District; is that correct?

21 A. Yes.

22 Q. Prior to being employed by the Water

23 Management District were you involved in any research

24 projects dealing with Everglades issues?

25 A. Yes.

1 Q. Can you describe those projects?

2 A. I was involved in a project under the

3 direction of Dr. Patrick Brezonik that dealt with the

4 effects of backpumping at the S-2 and S-3 pump

5 stations on Lake Okeechobee.

6 Q. When was this project? What was the date

7 of it?

8 A. It would have been in 1974, 1975. In that

9 time frame. It was while I was still in graduate

10 school.

11 Q. What was the purpose of the project?

12 A. I believe it was part of a statewide -- a

13 state effort -- I think it was called the Special

14 Project to Prevent Eutrophication of Lake Okeechobee.

15 It was a component of that. The purpose was to try

16 to determine the water quality effects of backpumping

17 those two pump stations into Lake Okeechobee and to

18 what areal extent those effects occurred.

19 Q. How long did this project last?

20 A. It would have occurred between my

21 bachelor's degree and my master's degree, so I assume

22 it would be sometime in '74 and '75.

23 Q. So approximately two years?

24 A. Or less.

25 Q. What did you do on the project?

1 A. I recall at least one time going out on the

2 lake. I don't recall who did the actual sample

3 collection, whether or not I was involved in that.

4 Q. What kind of samples were taken?

5 A. I know that water quality samples were

6 taken. I don't recall if anything else was done. It

7 involved the analysis and the interpretation of the

8 data.

9 Q. Who performed the analysis? Were you

10 involved in that?

11 A. Yes.

12 Q. What did you do there?

13 A. Without seeing the report, I don't recall

14 the methods that were at this point in time, what the

15 methods were that were employed to analyze the data.

16 Q. What constituents were you looking for?

17 A. I recall some basic water quality

18 parameters, but I don't recall beyond that.

19 Q. Were nitrogen and phosphorus measured?

20 A. Nitrogen and phosphorus, yes.

21 Q. Any others that you can recall?

22 A. Not that I can recall.

23 Q. You mentioned a report. Was there a report

24 that was prepared based upon this research project?

25 A. Yes, there was, I believe. I guess it

1 would be a university report that was prepared.

2 Q. Who would have been the author of that

3 report?

4 A. I believe it was myself and Dr. Brezonik.

5 Q. Did this research project involving Lake

6 Okeechobee form the basis of your master's thesis?

7 A. No.

8 Q. Was it in any way involved in the

9 publication you mentioned that was in the Canadian

10 Water Journal?

11 A. To the best of my recollection, no, but I'm

12 not sure.

13 Q. What did you conclude from the research

14 project?

15 A. I'd have to review the report. I don't

16 recall the specific conclusions.

17 Q. In general?

18 A. I don't recall.

19 Q. You mentioned the one publication, the

20 Canadian Water Journal. Can you recall any other

21 publications that you were an author of?

22 A. What do you mean by publications?

23 Q. Articles that would have been published in

24 a journal of one nature or another.

25 MS. CLEMENTS: Would that include the

1 technical publications within the District?

2 MR. BLANK: No, I'm not referring to those.

3 We can cover those later.

4 THE WITNESS: Oh. No.

5 BY MR. BLANK:

6 Q. Any other research projects prior to being

7 employed by the District you were involved in?

8 A. Is this with respect to the Everglades?

9 Q. In general.

10 A. There was another one dealing with the

11 Kissimmee River, C-38.

12 Q. What was involved in that project?

13 A. It involved the analysis and interpretation

14 of water quality data at some of the main tributaries

15 to C-38 and I believe some data was in the river

16 itself in the oxbows.

17 Q. What was the purpose of the project?

18 A. As best I can recall, it was basically just

19 a synoptic survey. It was just a survey of what the

20 water quality was at certain locations.

21 Q. Do you recall when this project was

22 undertaken?

23 A. It would have been in that two year time

24 frame, '74 and '75.

25 Q. Do you recall the water quality parameters

1 you were looking at in that project?

2 A. I believe it would include nitrogen and

3 phosphorus, possibly others, but I don't recall the

4 specific list.

5 Q. Was there a report prepared for that

6 research project?

7 A. Yes.

8 Q. Who prepared it?

9 A. Myself and Dr. Brezonik.

10 Q. Where could one get a copy of that report?

11 A. I don't know. Maybe the university

12 library. I don't know.

13 Q. University of Florida library?

14 A. Possibly. There may be a copy at the

15 District reference center, but I don't know for sure.

16 Q. You don't have a copy?

17 A. I may. I don't know, though.

18 Q. All right. Any other research projects

19 prior to being employed by the District?

20 A. As part of my master's work I did work on

21 sublethal effects of heavy metals.

22 Q. Did you say sub --

23 A. Sub --

24 Q. -- lethal?

25 A. -- lethal effects of heavy metals on a

1 marine mud snail. I believe it was nassaris

2 obsoletus (phonetic). And there was also some work

3 done on trying to isolate algal viruses.

4 Q. What was that work?

5 A. It was work to try to see if you could

6 isolate and culture viruses that would attack and

7 kill algae.

8 Q. Are we talking about marine algae or fresh

9 water?

10 A. The best of my recollection, it would be

11 fresh water.

12 Q. All right. Any other research projects you

13 can think of?

14 A. To the best of my recollection, no.

15 Q. When did you first become employed by the

16 South Florida Water Management District?

17 A. I believe it was in June, 1976.

18 Q. What did you do after receiving your

19 master's degree but prior to being employed by the

20 Water Management District?

21 A. I indicated earlier I believe I had one

22 semester, one or two semesters, I don't recall, where

23 I was going to enter into the doctorate program.

24 Q. But were you not employed by anyone else

25 other than the Water Management District after

1 receiving your master's degree?

2 A. Correct.

3 Q. Can you give us a brief history of the

4 positions you have held at the Water Management

5 District since 1976?

6 A. To the best of my recollection, I was hired

7 as a -- I believe it was a chemist position. That is

8 what it was called at the time. I may have held

9 several different levels of that type of position. I

10 was then a supervisor.

11 Q. Supervisor of what?

12 A. Supervising in, I believe it was, the Water

13 Chemistry Division maybe is what it was called at

14 that time. I supervised other professionals and

15 technicians who conducted water quality studies

16 within the District.

17 Q. Do you recall what the date was that you

18 would have assumed the supervisor role?

19 A. No, I don't.

20 Q. Would it have been sometime prior to 1978?

21 A. I don't recall.

22 Q. All right. After that position, what was

23 next?

24 A. I believe the next position was Director of

25 the Water Quality Division.

1 Q. I just have a note in my documents that

2 from '78 to 1990 you were Field Project Director

3 Water Chemistry Division. Is that correct?

4 A. That is not an official title of a position

5 at the District. That probably reflects my function

6 as a supervisor. When I mentioned I was a

7 supervisor, it was in that capacity.

8 Q. When would you have assumed the mantle of

9 being Director of the Water Quality Division?

10 A. I don't recall.

11 Q. All right. After that -- well, what were

12 your duties and responsibilities as a Director of the

13 Water Quality Division?

14 A. The division was responsible for conducting

15 most of the water quality studies and investigations

16 that the District was involved in. It did not have

17 the analytical laboratory associated with it.

18 Q. So what was the District's function at that

19 point in time with regard to water quality studies,

20 what did they do?

21 A. The types of studies that were conducted,

22 there were studies of the Kissimmee River, Lake

23 Okeechobee, the Everglades, there were studies

24 conducted that involved evaluating the District basis

25 of review for stormwater management systems with

1 respect to the effect it had on water quality.

2 Q. What stormwater management systems would we

3 be referring to?

4 A. The systems that were permitted by the

5 District. They were -- there was a wet detention

6 system studied at the Boynton Beach Mall, there was

7 an exfiltration system studied, I believe it was, at

8 the United States Post Office property.

9 Q. These would not have been projects

10 involving the Everglades?

11 A. No.

12 Q. Okay.

13 A. I believe there was a project involving

14 some suburban community.

15 Q. All right. You previously mentioned that

16 the District did not have an analytical lab at that

17 time.

18 A. No. The District had an analytical lab,

19 but it was not under my direction.

20 Q. Okay.

21 A. There was a water chemistry laboratory, but

22 that was a separate division. At least for part of

23 that time it was a separate division. The division

24 also had a responsibility when the 1987 SWIM Act was

25 passed for preparing the Lake Okeechobee SWIM Plan,

1 which was required by the legislation.

2 Q. What was the nature of the water quality

3 studies that the District was conducting in the

4 Everglades at this point in time? First perhaps we

5 ought to define Everglades. What did you mean when

6 you said Everglades?

7 A. The Water Conservation Areas, Water

8 Conservation Area 1, 2A and 3A.

9 Q. What about 2B and 3B?

10 A. I don't recall.

11 Q. You don't recall whether there were new

12 studies done in those areas?

13 A. Studies, yes.

14 Q. What was the nature of the studies that

15 were being conducted in WCA-1?

16 A. There was a water quality monitoring

17 network established in Water Conservation Area 1 in

18 about 1978.

19 Q. Were you involved in the establishment of

20 that network?

21 A. What do you mean by involved?

22 Q. What was your role in the establishment of

23 the network?

24 A. I was Director of the division and so I had

25 broad oversight of the project. I don't recall my

1 specific involvement in terms of station locations,

2 of that nature. I don't recall any specific

3 involvement.

4 Q. Who would have been specifically involved

5 in the selection of station locations in WCA-1?

6 A. Paul Millar.

7 Q. Paul Millar?

8 A. Uh-huh.

9 Q. In your position, did you ultimately

10 approve at some point in time the selection of

11 station locations for WCA-1?

12 A. I don't recall any formal approval process.

13 Q. What involvement did Refuge personnel have

14 in the selection of site locations?

15 A. I'm not personally aware of any.

16 Q. This was all done by District staff?

17 A. I don't know what types of interactions

18 others may have had. I just don't recall any myself.

19 Q. Do you recall how many sites were

20 established in WCA-1?

21 A. To the best of my recollection, I believe

22 there were 16.

23 Q. Are these the 16 interior marsh sites that

24 became the basis of establishing the interim limits

25 for WCA-1 under the SWIM Plan?

1 A. I believe so, yes.

2 Q. And do you recall when the sampling effort

3 started?

4 A. I don't recall the exact date. I believe

5 it was around 1978.

6 Q. How was the sampling conducted? By that I

7 mean physically how did they go out and take samples?

8 A. I never participated in the sample

9 collection. I believe it was done by helicopter.

10 Q. Did they land at the station locations or

11 did they sample the rope in a bucket?

12 A. I don't know.

13 (Discussion held off the record.)

14 BY MR. BLANK:

15 Q. Were there field notes taken or prepared by

16 the individuals that actually went out and conducted

17 the sampling?

18 A. I believe so, but I'm not sure.

19 Q. Do you know where those field notes would

20 be?

21 A. No, I don't.

22 Q. Where we could find them now?

23 A. I wouldn't know.

24 Q. I believe you stated that you never

25 personally went out on any of the sampling trips; is

1 that correct?

2 A. Not that I can recall.

3 Q. What was the general method of sampling

4 employed by the District during this period for the

5 Everglades area?

6 A. I don't recall a general protocol.

7 Q. When you sampled by helicopters, physically

8 what was done?

9 A. I never went on any of those field trips.

10 Q. And no one ever told you exactly how they

11 went out and took samples?

12 A. I don't remember.

13 Q. After the water quality sample was

14 collected, what happened to it? What was done?

15 A. Having not been involved in the sampling, I

16 don't recall specifically for those exact bottles of

17 water, but in general it would have been brought back

18 and analyzed in our laboratory, and depending upon

19 the parameters, some may have been filtered, others

20 may not, some may have been ossified and other

21 bottles may not have been, depending on what was

22 being analyzed for. But that would hold as a general

23 procedure.

24 Q. With regard to the sampling that was done

25 in WCA-1, were those samples filtered before they

1 were analyzed by the District lab? Maybe we ought to

2 back up. Were they analyzed by the District lab?

3 A. I believe so, yes.

4 Q. Okay. And would the sample have been

5 filtered before it was analyzed?

6 A. I don't recall the specific protocol that

7 they used for processing the samples. There are

8 certain analyses that do require sampling to be done

9 if you're looking for dissolved forms of nutrients,

10 for instance.

11 Q. You mean filtering.

12 A. Filtering. But I don't know if there was

13 filtering done for other parameters or not. I don't

14 recall.

15 Q. When looking for total phosphorus, would it

16 have been normal to filter the sample before

17 analyzing for total phosphorus?

18 A. I don't know the methods that were used.

19 Q. Who would?

20 A. Probably Paul Millar and Larry Grosser.

21 Q. How long a period of time would it have

22 been after the sample was taken prior to the time it

23 was analyzed by the lab?

24 A. I don't know.

25 Q. Would any preservative have been added to

1 the sample in the field?

2 A. I don't know.

3 Q. How were the stations that were established

4 in WCA-1 in '78 marked?

5 A. I don't know.

6 Q. How did the sampler get back to the same

7 station time after time?

8 A. I don't know.

9 Q. Was there a written protocol for the

10 sampling effort that was conducted in WCA-1?

11 A. I do recall at least one District report

12 that described that program, but I don't recall

13 whether or not a specific protocol was described in

14 that report or not.

15 Q. Who would have authored the District report

16 you just referred to?

17 A. Paul Millar.

18 Q. What was the purpose of establishing the

19 sampling locations in WCA-1?

20 A. I don't recall the purpose.

21 Q. Do you recall how many times the stations

22 were sampled during the period from '78 to '83?

23 A. No.

24 Q. It would be reflected in Appendix E to the

25 SWIM Plan, though, wouldn't it?

1 A. What was Appendix E to the SWIM Plan?

2 Q. The appendix that established the interim

3 and long-term limits for the Park and the Refuge.

4 A. I would have to review that.

5 Q. Was the effort, the sampling effort, in

6 WCA-1 part of the general effort that also involved

7 2A and 3A?

8 A. Yes.

9 Q. What was the purpose of that whole sampling

10 effort?

11 A. I don't recall.

12 Q. Do you recall how many stations were

13 located in 2A?

14 A. Probably at least 16, maybe 21, but I don't

15 precisely recall.

16 Q. And what about 3A?

17 A. My best recollection is maybe around 21,

18 but again I don't recall. I don't recall the precise

19 number.

20 Q. Was the sampling efforts in these areas

21 discontinued in '83 in all three areas?

22 A. I don't recall when they were discontinued.

23 Q. Were they all discontinued at the same

24 time?

25 A. I don't recall.

1 Q. Do you know why they were discontinued?

2 A. I don't recall.

3 Q. Was this entire sampling project under your

4 supervision?

5 A. I believe so.

6 Q. And you never went on any of the sampling

7 trips into WCA-1, 2 or 3?

8 A. I don't recall. I can't recall going out

9 on them but -- I just don't remember.

10 Q. Do you recall what parameters you were

11 sampling for?

12 A. I believe they sampled for nutrients and

13 they may have sampled some other water quality

14 parameters. I don't recall the specific list,

15 though.

16 Q. Who made the decision which parameters to

17 sample for?

18 A. I don't recall.

19 Q. Were the samples analyzed for total as well

20 as ortho phosphorus?

21 A. I know they were analyzed for total

22 phosphorus. I just don't recall whether or not they

23 were analyzed for ortho.

24 Q. Do you recall if there was any analysis

25 done for chlorides?

1 A. I don't recall.

2 Q. All right. What was your next position

3 after Director of the Water Quality Division?

4 A. I was Director of the Environmental

5 Planning Division.

6 Q. What were the responsibilities of that

7 position?

8 A. Overall responsibility for the SWIM

9 planning activities. That probably was the major

10 responsibility.

11 Q. All SWIM planning activities of the

12 District?

13 A. I believe any that were occurring during

14 that time. It wasn't a very long period of time,

15 though.

16 Q. What period was it?

17 A. It would have been approximately the early

18 1990's. Something around then.

19 Q. '90 to '91?

20 A. It may have been. I don't recall the exact

21 dates.

22 Q. What was your involvement in the Everglades

23 SWIM Plan, the preparation of the Everglades SWIM

24 Plan at issue in this proceeding?

25 A. I don't recall the exact sequencing of

1 development of the SWIM Plan with my changing

2 positions, but my role would have been as Division

3 Director just general oversight of the development.

4 Q. Would you have been responsible for

5 preparing any sections of the SWIM Plan, actually

6 writing sections of the SWIM Plan?

7 A. Could you clarify what you mean by the SWIM

8 Plan.

9 Q. The March 1992 Everglades SWIM Plan.

10 A. I don't recall writing any sections that I

11 can remember.

12 Q. Would you have edited or made revisions to

13 any of the sections?

14 A. I would have relied upon Paul Whalen and I

15 believe Joycelyn Branscome were at least two of the

16 Everglades SWIM Plan managers. I think Paul was

17 responsible for the version that you described.

18 Q. Were you in any way responsible for prior

19 versions?

20 A. I don't recall I was ever directly

21 responsible.

22 (Thereupon, a recess was taken.)

23 BY MR. BLANK:

24 Q. All right. So after you were Director of

25 the Planning Division, what was your next position?

1 A. Director of the Lower Division, the Lower

2 Planning Division. The Lower District Planning

3 Division I believe was what it was called.

4 Q. What were the dates of that position?

5 A. Probably around '91.

6 Q. Until when?

7 A. To December '92.

8 Q. What were your responsibilities in that

9 position?

10 A. The division was responsible for

11 environmental and -- primarily environmental and

12 water supply planning for the lower part of the lower

13 half of the District, which I believe was

14 approximately south of Lake Okeechobee, primarily the

15 lower east coast region. I don't recall the exact

16 boundaries.

17 Q. This would have included the Everglades

18 area?

19 A. Yes.

20 Q. And specifically what projects were being

21 handled by the Lower Planning Division during this

22 period?

23 A. It would have been -- I believe it would

24 have been the Everglades SWIM Plan, Biscayne Bay SWIM

25 Plan, and an initiation of the lower east coast water

1 supply planning effort. Those would have been the

2 major efforts.

3 Q. What was your involvement in the Everglades

4 SWIM Plan as Director of the Lower Planning Division?

5 A. I was Paul Whalen's immediate supervisor.

6 He was the Everglades SWIM Plan, I guess, project

7 manager, basically.

8 Q. What did you do?

9 A. With respect to --

10 Q. Supervising Paul Whalen.

11 A. I was his immediate supervisor, so I would

12 be responsible for, you know, the administrative

13 aspects, which would be approving his time sheets and

14 conducting his performance evaluations and generally

15 overseeing his work effort.

16 Q. How often did you meet with him?

17 A. I don't recall precisely, but it would have

18 been frequently.

19 Q. On a daily basis?

20 A. It would have been frequent. I can't say

21 it would be every single day, but it would be

22 frequently. I mean, there could have been days when

23 I didn't meet with him.

24 Q. Did he come to you for decisions with

25 regard to what to include or what not to include in

1 the SWIM Plan?

2 A. I need to better understand what you mean

3 by include or not include. Can you be more specific?

4 Q. Well, for example, let's say maybe he had a

5 concern about a discussion of alternatives to the

6 stormwater treatment areas and whether that type of

7 discussion ought to be in the SWIM Plan. Would he

8 have come to you for direction?

9 A. I don't recall that as a specific example,

10 but he would have come to me. I'm sure he would have

11 come to me for direction on a number of occasions. I

12 can't recall the specific number of times or the

13 specific incidences or the specific issues, but he

14 would come to me.

15 Q. Were you the ultimate decision maker in

16 that regard at the staff level as to sections of the

17 SWIM Plan and what ought to be included in those

18 sections?

19 A. I don't recall being that structured of a

20 process and I don't know who else he would have

21 talked to to get input from so I can't say whether or

22 not I was in each and every case a final decision

23 maker on a particular issue. I mean, I assume he got

24 input from other people also.

25 Q. Well, assuming he came to you with a

1 question as to whether a particular subject should be

2 included in the SWIM Plan, would you have made that

3 decision whether to include it or would you have

4 consulted somebody else?

5 A. It could vary. I mean, there could have

6 been situations where I felt comfortable enough with

7 the decision and there could have been other

8 instances that I may have asked other people for

9 advice or asked Paul to go seek their input.

10 Q. Well, while you were Director of the

11 Planning Division, who did you report to? Who was

12 your immediate supervisor?

13 A. That was in the Planning Department, and

14 Dick Rogers was the Department Director, and then

15 subsequently after him it was Jim Harvey who was the

16 Department Director.

17 Q. Do you recall seeking the advice of Dick

18 Rogers at any point in time with regard to

19 preparation of the Everglades SWIM Plan?

20 A. I don't recall any specific examples.

21 Q. What about Jim Harvey?

22 A. I don't recall.

23 Q. Do you recall consulting with anyone else

24 up the chain of command concerning the contents of

25 the SWIM Plan?

1 A. I don't recall specific examples, but

2 normally I would -- you know, it would not have been

3 unusual for me to talk to the Department Director or

4 to other people in the District from Office of

5 Counsel or Executive Office. I mean --

6 Q. Well, specifically by name who else do you

7 think you may have consulted other than Dick Rogers

8 or Jim Harvey?

9 A. I may have talked to Tom MacVicar, I may

10 have talked to Irene Quincy.

11 Q. Anyone else?

12 A. I can't specifically recall.

13 Q. During the drafting stage of the SWIM Plan

14 do you recall getting input from individual board

15 members?

16 A. I don't recall getting input from

17 individual board members.

18 Q. Were you the Director of the Lower Planning

19 Division through the period of adoption of the SWIM

20 Plan? Were you in that position in March of '92?

21 A. No.

22 Q. All right. Where did you go after Director

23 of the Lower Planning Division?

24 A. I was then Director of the Research

25 Department.

1 Q. Let me back up just a minute. Do you know

2 who the Director of the Lower Planning Division was

3 when the SWIM Plan was formally adopted in March of

4 '92?

5 A. Well, my replacement was Larry Pearson, but

6 I when the Department of Research was created, Paul

7 Whalen was part of that reorganization and reported

8 to me on staff, where he completed the SWIM Plan.

9 Q. Okay. All right. I'm sorry I interrupted

10 you. Your next position was what?

11 A. Director of the Department of Research.

12 Q. Is that the Department of Research and

13 Evaluation or is it just the Department of Research?

14 A. Department of Research.

15 Q. Is that the position you presently hold?

16 A. Yes, it is.

17 Q. When did you assume that position?

18 A. I believe it was December '92. 1992.

19 Q. I'm getting confused about our dates now

20 because the SWIM Plan was adopted in March of '92,

21 wasn't it?

22 A. Yeah. I was trying to recall the dates.

23 It was -- December '91 it would have been.

24 Q. Okay.

25 A. Sorry. And I may earlier have given you

1 the wrong date on that also.

2 Q. Right.

3 A. It's been a little over two years, so it

4 would have been December '91.

5 Q. All right. And what are your

6 responsibilities as Director of the Department of

7 Research?

8 A. The department is generally responsible for

9 conducting research throughout the District dealing

10 with surface water, the surface water systems, and

11 also has a primary responsibility for model

12 development for surface water.

13 Q. What research projects are currently

14 ongoing with regard to the Everglades?

15 A. There is research being conducted of what

16 is called threshold study for phosphorus. It is

17 based on a plan of action developed by a subcommittee

18 of the Technical Oversight Committee. There's

19 model --

20 Q. When you say -- is that research presently

21 ongoing at this point in time?

22 A. Yes.

23 Q. Specifically what's being done?

24 A. Well, there's what we call a pilot transect

25 program in Water Conservation Area 2A. There's

1 several transects that have been either established

2 or re-established.

3 Q. So there's one transect in 2A?

4 A. There may be -- no, I believe there's two,

5 maybe three. They're being phased in. I don't know

6 precisely whether or not the third one is in place.

7 Q. Where are the transects in 2A?

8 A. They generally start at the S-10 structures

9 and go down through 2A.

10 Q. Is this in a southwesterly direction?

11 A. Generally.

12 Q. And what's being done along those transect

13 lines?

14 A. I don't recall the complete list. It's a

15 fairly comprehensive series of measurements. There

16 are many water quality parameters, there's a number

17 of biological type of parameters being analyzed

18 primarily by DEP. I believe there's invertebrate

19 sampling that either has or is being initiated,

20 there's probably periphyton sampling being done,

21 there will probably be sediment. Again, I don't

22 know, for instance, if the sediment sampling has been

23 done or is planning on being done. I don't track it

24 on a daily basis.

25 Q. Would the research that you're describing

1 be included within the Everglades Research Plan

2 Volume II, Introduction and Overview?

3 A. May I see that?

4 A. This is an overview of more -- there's more

5 detailed values that accompany that that generally

6 outline the types of research that probably should be

7 conducted within the Everglades, and this type of

8 threshold work, I think, is generally described in

9 there. There's a more specific -- there are more

10 specific descriptions, though, of that program other

11 than what's in the research plan.

12 Q. Is a dosing study going to be a part of the

13 threshold research?

14 A. Can you tell me what you mean by dosing?

15 Q. Meaning a particular area of the Everglades

16 where concentrations of phosphorus are applied in a

17 liquid form.

18 A. I'm not sure of the form, but there are

19 mesocosm types of studies that are being currently

20 designed which would involve the addition of

21 nutrients to part of the Everglades system. That

22 work has not been initiated since the design phase.

23 Q. Who's responsible for that design work?

24 A. Well, I rely on the Division Director, Tom

25 Fontaine. He's in charge of the Everglades Systems

1 Research Division, and that work would be conducted

2 through his division.

3 Q. All right. You said there were one or more

4 transects in 2A. Where else have you established

5 transects as a part of the threshold study?

6 A. Those are the only places that they are

7 currently being established. That's serving as

8 basically in some sense a pilot type of program to

9 establish the protocols and the techniques to

10 validate some of the statistical designs and such.

11 And the intent then would be to take similar type of

12 transects and apply them in Loxahatchee National

13 Wildlife Refuge and also Water Conservation Area

14 Number 3A and potentially in the Park.

15 Q. Your transects in 2A, do those extend into

16 the unimpacted area of 2A, the area that is not

17 impacted of nutrients?

18 A. I believe so.

19 Q. So they extend south from the 10 structures

20 into an area that at least you have determined has

21 low impact from nutrients?

22 A. I personally wouldn't have made that

23 determination, but the scientists would have made

24 that determination who work on the project.

25 Q. Who would have been responsible for that?

1 A. Well, they would be the individuals working

2 on the project under Dr. Fontaine's direction.

3 Dr. Jim Grimshaw, Dr. Paul McCormick. Those are two

4 individuals that are directly involved under Tom

5 Fontaine's direction. And I believe Tom has a

6 supervisor that he probably relies upon, Dr. Sklar,

7 who has supervisory responsibility over those

8 scientists.

9 Q. How do you spell Dr. Sklar's name?

10 A. I believe it is S-k-l-a-r.

11 Q. I've seen reference in various District

12 documents to an advancing nutrient front in 2A. Are

13 you familiar with that term?

14 A. I've seen similar documents.

15 Q. Has the District made any efforts in the

16 last two or three years to determine whether the

17 nutrient front in 2A is still advancing?

18 A. I don't recall any specific studies

19 designed with that objective.

20 Q. Will the data collected along the transects

21 established in 2A provide us an answer as to whether

22 the nutrient front is advancing?

23 A. If you conducted them over a long enough

24 period of time within the limits of the spacial --

25 the distance between the stations.

1 Q. Okay. Any other Everglades research

2 projects other than the threshold study presently

3 underway by your department?

4 A. There's several modeling efforts being

5 undertaken. One is what we call a redesign of the

6 South Florida Water Management Model. There's an

7 effort to --

8 Q. Can you give us a little more information

9 on that? What does that involve?

10 A. It's basically trying to make significant

11 improvements to the current version of the water

12 management model by doing some recoding and making it

13 more modular so that the Planning Department uses it

14 to evaluate alternatives more easily, readily, to

15 take into account ground water interactions,

16 improvements in evapotranspiration. There's a

17 modeling effort underway to --

18 Q. Your South Florida Water Management Model?

19 A. Yes.

20 Q. What is the predictive capability of that

21 model? Is it water quality?

22 A. It is a water quantity model.

23 Q. Water quantity model. All right.

24 A. Right. We're initiating an effort to

25 develop a phosphorus transport component to attach to

1 the regional quantity model.

2 There's a development of a -- what's called

3 a landscape model, which models changes in -- tries

4 to predict changes in vegetation and water quality

5 over time. There's a modeling effort underway to

6 develop, I believe it is, a two-dimensional wetlands

7 model that would be applicable to both the

8 conservation areas -- at least to 2A -- and also to

9 STAs.

10 Q. Could you describe that model a little bit

11 more, what's involved there?

12 A. It would be a model to try to predict the

13 change in phosphorus over a wetlands system.

14 Q. I'm not sure I understand. What do you

15 mean by change in phosphorus?

16 A. How the concentrations in phosphorus would

17 vary as a function of input of phosphorus to a

18 wetlands system.

19 Q. How it would vary as you move downstream

20 through the wetlands system?

21 A. Downstream over time.

22 Q. Who is responsible for development of that

23 model? Who are the individuals working on that?

24 A. All of of this work would be conducted

25 under the general supervision of Tom Fontaine, who is

1 Division Director. The immediate supervisor

2 responsible for the particular two-dimensional

3 wetlands model, I believe, is Dr. Obeysekera. The

4 landscape modeling as well as the threshold work is

5 done under Dr. Fred Sklar as the immediate

6 supervisor.

7 Q. You said the landscape model was going to

8 predict changes in vegetation.

9 A. Yes, in water quality and it feeds back

10 those changes on other parameters, like it would

11 change as a function of changing vegetation, for

12 instance.

13 Q. How does hydroperiod or water quantity fit

14 into that model?

15 A. I don't know specifically how it does it,

16 but it does. Also, it also would have to predict

17 changes in the amounts and depths of water through

18 the Everglades system.

19 Q. Okay. Any other models?

20 A. Not that I can recall. I believe those are

21 the major efforts.

22 Q. So under the heading of Everglades research

23 we got the threshold study and the various modeling

24 efforts. Is there anything else that is presently

25 ongoing with the department?

1 A. Well, there is the mesocosm dosing studies.

2 Q. But those have not been implemented yet; is

3 that correct?

4 A. They're being designed at this point in

5 time. No, I do not believe they have been put in the

6 field. The District also participates in a help cost

7 share the systematic reconnaissance flights that are

8 conducted by, I believe, Audubon.

9 Q. What's the purpose of those reconnissance

10 flights?

11 A. I believe it's to document the number and

12 distribution of different types of aquatic birds.

13 There's a nesting study, a wading bird nesting study

14 that we fund through the University of Florida.

15 Q. What area's that study being conducted in?

16 A. I believe it's the Water Conservation

17 Areas, and I do not know whether or not it goes into

18 the Everglades National Park or not. There's a

19 number of sediment studies being conducted or cores

20 that have or are being taken. I don't know the

21 precise status of that, in the conservation areas.

22 Q. Would these studies involve ten centimeter

23 coring or would they involve the Cesium dating cores?

24 A. They may include both of those.

25 Q. You're not aware of whether they do or not?

1 A. I'm not sure. I'm not sure.

2 Q. Who would be in charge of sediment studies?

3 A. It would be the same division that's

4 conducting the rest of the Everglades work. It would

5 be the Everglades Systems Research Division,

6 Dr. Fontaine's studies.

7 Q. Has the District, through it's Research

8 Division, done any Cesium dating of cores in 2A?

9 A. I believe so, yes.

10 Q. Do you know when that would have been done?

11 A. I don't recall the dates.

12 Q. Do you know who would have done it?

13 A. I think we would have done that

14 contractually; probably Dr. Ramesh Reddy, University

15 of Florida. He conducts most of our sediment

16 studies.

17 Q. Do you know when he would have last taken

18 cores for Cesium dating in 2A?

19 A. I wouldn't know.

20 Q. Do you know if the District has approved

21 him to take any additional cores in 2A?

22 A. I can't recall the status of his work, as

23 to whether or not it's still ongoing or active.

24 Q. Are there any other Everglades research

25 projects that you can recall at this time?

1 A. The Research Department has some requests

2 for proposals, but they haven't -- I don't believe

3 contractors have been selected for those work efforts

4 yet, so they're not active. But the process of

5 scoping them out and determining who the contractors

6 are, that process is underway.

7 Q. All right. What projects would you have

8 requested proposals for?

9 A. There's a soil kinetic study.

10 Q. What's the purpose of that study?

11 A. Generally, it would be involved in trying

12 to understand the nutrient kinetics associated with

13 sediments, the exchange rates to and from the

14 sediments, and probably migration within the

15 sediments.

16 Q. All right. What else?

17 A. There's least one RFP to provide some

18 additional support on the model development efforts.

19 Q. What kind of support?

20 A. I believe with respect to the redesign --

21 well, one would be to develop the phosphorus

22 transport component to the South Florida Water

23 Management Model and the other would be to have us

24 enter into a contract with some external modeling

25 expertise to help in the redesign of the South

1 Florida Water Management Model.

2 Q. Okay. Any other RFP's you can recall at

3 this time?

4 A. Not at this time, no.

5 Q. The threshold study for phosphorus, how

6 long do you anticipate it will take to conclude that

7 study?

8 A. The schedule that I can recall with respect

9 to that, if it includes Conservation Area 3A, was --

10 I think it was something on the order of probably

11 around five years, approximately. That's probably a

12 very rough approximation.

13 Q. So you would expect to be able to have

14 results from that study and have a threshold number

15 sometime in 1999; is that correct?

16 A. I think that's the approximate time frame

17 for conducting what's currently the plan research.

18 DEP would take that information and make whatever

19 determination would need to be made as to what, you

20 know, what the threshold numbers are with respect to

21 the Class III narrative standards.

22 Q. Do you anticipate that there will be a

23 different threshold number for the Class III

24 narrative nutrient standard for different areas of

25 the Everglades?

1 A. There could be.

2 Q. Do you think it's probable that that will

3 occur?

4 A. I would be speculating at this point. I

5 wouldn't want to speculate.

6 Q. During your time with the District have you

7 been the author of technical publications?

8 A. Yes.

9 Q. Approximately how many?

10 A. Maybe eight, 10. Something in that

11 approximate range.

12 MR. BLANK: Ruth, do you know in the

13 production of documents if he's included his

14 technical publications?

15 MS. CLEMENTS: I think they have already

16 been produced earlier.

17 BY MR. BLANK:

18 Q. Do any of those technical publications

19 relate to the role of nutrients in the Everglades?

20 A. I can't recall any publications that were

21 completed that dealt with the Everglades, any of

22 those.

23 Q. None of the publications would have dealt

24 with the Everglades; is that what you're saying?

25 A. I can't think of any that were completed

1 that do.

2 Q. Okay.

3 A. That I was an author of.

4 Q. Now, I assume you have served on various

5 committees while employed with the District; is that

6 correct?

7 A. Yes.

8 Q. I have a list of committees that you have

9 either served on or are involved with, and maybe I

10 can just reads these to you and find out if they are

11 correct and what the purpose of the committee was.

12 The SWIM Plan Steering Committee?

13 A. Do you have any further definition as to

14 what that --

15 Q. No, I don't.

16 A. There have been committees established to

17 oversee or to -- you know, that were involved in the

18 process of developing several of the SWIM plans, both

19 internal and external. I don't necessarily recall

20 one that had that exact title or whether or not that

21 was even an official title.

22 Q. Was there an internal committee established

23 for the preparation of the Everglades SWIM Plan that

24 was adopted March of '92?

25 A. I seem to recall there was an internal

1 committee. I don't recall much about it.

2 Q. Would you have served on that committee?

3 A. I assume I would have participated. I

4 mean, I don't recall enough about it specifically.

5 There could have been many types of formal and

6 informal committees established.

7 Q. Okay.

8 A. I mean, I don't recall, you know, the

9 appointment.

10 Q. What about the EAA Regulatory Program

11 Committee?

12 MS. CLEMENTS: Where are you getting these

13 names from? I thought we were bad at the

14 District.

15 (Discussion held off the record.)

16 THE WITNESS: I don't recall a committee

17 with that title.

18 BY MR. BLANK:

19 Q. Was there a committee established for the

20 promulgation and adoption of the EAA Regulatory Rule?

21 A. I know there were people involved in

22 developing the rule. I don't recall a formal

23 committee in that sense. But there were a number of

24 individuals involved in that process. That may be

25 the same thing as what you are calling that committee

1 or may not be.

2 Q. What about the SWIM Plan ONRW ENP Water

3 Quality Standards Task Group?

4 A. I'm sorry. You are going to have to repeat

5 that again slowly.

6 Q. SWIM Plan ONRW, outstanding natural

7 resource water, ENP, Everglades National Park, Water

8 Quality Standards Task Group.

9 A. I remember participating in several

10 meetings dealing with the issue of establishing water

11 quality standards associated with Everglades National

12 Park potential designation as an ONRW. I don't ever

13 remember that sort of formal title given to the

14 group.

15 Q. What was the time frame of your meetings?

16 Was this something prior to the federal litigation

17 involving the Everglades?

18 A. Best of my recollection, yes, but I'm not

19 saying there wasn't any overlap. I don't recall

20 precisely enough.

21 Q. What I'm trying to get is whether this

22 would be distinct from your settlement negotiations

23 with the United States, which led to the interim

24 long-term --

25 A. I think they were different possesses, yes.

1 Q. Different processes. Okay. Can you recall

2 anything more about the ONRW water quality standards

3 effort, who was involved, what was the purpose of it?

4 A. Who was involved? I was involved, Tom

5 MacVicar, Bill Walker.

6 Q. I'm talking about something distinct from

7 the settlement negotiations. Are you referring to

8 that also?

9 A. Yes. Something distinct.

10 Q. Okay.

11 A. I believe Mike Soukup was involved, too.

12 I'm not sure. And there could well be others. I

13 don't recall.

14 Q. And when would these meetings have

15 occurred?

16 A. I don't recall.

17 Q. Prior to the settlement agreement?

18 A. Yes, prior to the settlement agreement.

19 Q. Did the meetings result in the promulgation

20 of any water quality standards?

21 A. No.

22 Q. What was the result of the meetings?

23 A. I don't recall there ever being a

24 conclusion to the meetings in terms of, you know,

25 producing any sort of recommendations. I can't

1 recall an end point.

2 Q. During your meetings on this matter, was

3 phosphorus one of the water quality constituents that

4 there was concern in and an effort to establish a

5 standard on?

6 A. I believe so, yes.

7 Q. And you don't recall whether there was a

8 final recommended number as a phosphorus limit for

9 the Park?

10 A. I don't recall any final recommendations.

11 Q. Do you recall if the numbers that were

12 being discussed were higher or lower than the numbers

13 that are contained in the SWIM Plan?

14 A. You'd need to be a lot more specific.

15 There are many numbers in the SWIM Plan.

16 Q. Well, the Park. I'm talking about the

17 interim and long-term limits for the Park. In your

18 discussions with regard to ONRW classification, were

19 you talking about a number that was more stringent or

20 less stringent than the numbers contained in the SWIM

21 Plan for the Park?

22 A. I don't precisely recall, other than

23 there's the same basic data set that would be being

24 worked off of, so I would assume they would be very

25 similar in that regard.

1 Q. Okay. What about the Stormwater Permit

2 Committee?

3 A. I don't recall a committee by that name.

4 Q. All right. What about the Regional

5 Modeling Efforts Committee?

6 A. I recall that committee.

7 Q. What did that committee do?

8 A. I believe, although I was not a member of

9 it, I believe it was an informal working group

10 between us, Everglades National Park and probably

11 maybe the Corps and maybe other participants to try

12 to coordinate refinements that are currently being

13 made to regional models, natural system model and

14 South Florida Water Management Model primarily.

15 Q. These are models we have already talked

16 about this morning?

17 A. Yes. Yes.

18 Q. All right. Stormwater Utility Committee?

19 A. I don't recall. I don't know of any.

20 Q. That's fine. If you don't recall them,

21 just say so. STA Design Working Group?

22 A. I knew there had been working groups

23 throughout the SWIM planning process under different

24 individuals. I mean, I can't -- I don't know of a

25 group with that exact name. There may have been a

1 group with that name.

2 Q. Well, do you recall ever being a member of

3 any working group that was involved in the design of

4 the STAs?

5 A. There was a group, and maybe it had that

6 name, that was active, that was actively involved in

7 design of STAs, yes.

8 Q. Were you a member of that group?

9 A. I participated in some of the meetings.

10 Not in all of them.

11 Q. Who else would have been a member of that

12 group?

13 A. If it's the one I'm recalling, it was

14 Dr. Gary Goforth, from the District, I believe Galen

15 Miller from Burns & McDonnell, Bill Walker, Bob

16 Kadlec, I believe Mike Soukup, Mark Maffei. I

17 believe there was at that time DER participation, but

18 I don't recall.

19 Q. What was the time frame that we're talking

20 about for meetings of this group? Pre, post or

21 during federal settlement discussions?

22 A. Post, I believe.

23 Q. After the settlement agreement was signed?

24 A. I believe it was post, although I'm not

25 sure of the exact dates, starting dates.

1 Q. And what was your involvement with that

2 group?

3 A. I don't recall a major involvement. I

4 think it was, I don't recall myself really having

5 much of an active role in that.

6 Q. Okay. What about the Technical Oversight

7 Committee, TOC? Do you recall that group?

8 A. Yes, I recall that group and yes, I'm a

9 member.

10 Q. You are a member of TOC?

11 A. Yes, I am. I am the District

12 representative on that committee.

13 Q. Who are the other representatives?

14 A. Mike Soukup representing Everglades

15 National Park, Mark Maffei representing Loxahatchee

16 National Wildlife Refuge, Jim Fearil representing the

17 U.S. Army Corps of Engineers, and Frank Nearhoof from

18 DEP attends the meetings, so I assume he's the DEP

19 representative.

20 Q. Is TOC considered to be a Sunshine body by

21 the District?

22 MS. CLEMENTS: Objection; calls for a legal

23 conclusion.

24 BY MR. BLANK:

25 Q. You can answer if you know.

1 A. I don't know.

2 Q. Do you discuss matters that may come before

3 TOC with any of the other members outside of the

4 context of a meeting?

5 A. Yes.

6 Q. Do you do that frequently?

7 A. Yes.

8 Q. Have you been advised by counsel that TOC

9 is not subject to the Sunshine law?

10 A. It's my understanding that it is not.

11 Q. Based upon what?

12 A. Based upon that's what I've been told by

13 Office of Counsel.

14 Q. Specifically who in the Office of Counsel?

15 A. I believe Irene Quincy.

16 Q. Okay. And what about SAGE? Do you recall

17 that body?

18 A. Yes.

19 Q. What was your involvement with SAGE? Were

20 you a member?

21 A. Yes, I was a member representing the

22 District.

23 Q. Were you advised by Office of Counsel that

24 SAGE was not a Sunshine body or a subject to the

25 Sunshine Law?

1 A. I believe there was a determination made by

2 Office of Counsel that it was not a Sunshine body. I

3 believe I recall that.

4 Q. Did you discuss matters coming before SAGE

5 with other members of SAGE not in the context of a

6 formal SAGE meeting?

7 A. Probably, yes.

8 Q. What other members would you have discussed

9 SAGE matters with?

10 A. I think probably a number of them.

11 Q. For example who? Who were the other

12 District representatives?

13 A. Pete Rhoads -- I'm not sure Pete was an

14 official District representative in the early days.

15 He was the facilitator of that group. I would have

16 talked to him, I would have -- I probably talked

17 to -- I probably had conversations with Mike Soukup

18 and Mark Maffei, and Ed Barber and John Davis, and

19 probably others.

20 Q. Do you recall if the advice you received

21 from the Office of Counsel was in the form of a

22 written memo?

23 A. I seem to believe there was one written.

24 Q. Do you want to take a lunch break here and

25 we'll crank back up at 1:00 o'clock?

1 MS. CLEMENTS: Sounds fine.

2 (Thereupon, a recess was taken at 11:50 a.m.)

1 AFTERNOON SESSION

2 1:10 p.m.

3 BY MR. BLANK:

4 Q. Mr. Federico, prior to the start of this

5 deposition your counsel provided me with a copy of

6 documents that reference a draft report prepared by

7 Douglas Gilbert entitled Everglades Agricultural Area

8 Summary of Class III Water Quality Criteria

9 exceedences, together with appendices and tables.

10 Are you familiar with this report?

11 A. Could I see the report?

12 Q. Sure.

13 A. Yes. I haven't read it, but I've seen the

14 report.

15 Q. You have not reviewed the report, though?

16 A. I just remember skimming it, but I haven't

17 read it in any depth.

18 MR. BLANK: Ruth, maybe you can tell me,

19 was this intended to be a part of his documents

20 for this deposition?

21 MS. CLEMENTS: They were a part of the

22 documents that were responsive -- that he had in

23 his office.

24 BY MR. BLANK:

25 Q. Okay. Can you tell me what the purpose of

1 this report was?

2 A. I couldn't comment on their purpose for

3 writing the report.

4 Q. By "their," are you referring to the

5 Department of Environmental Protection?

6 A. Yes. Yes, I am.

7 Q. Do you know who the Department interfaced

8 with at the District with regard to this report?

9 A. They requested the District data. They may

10 have made the initial contact through me. I think

11 subsequently I passed that request on to Dr. Leslie

12 Wedderburn, who's Director of the Water Resource

13 Evaluation Department, and I believe Tom Raishe was

14 the individual who probably extracted the data from

15 our data base and sent that data to DEP.

16 Q. Tom who?

17 A. Raishe, R-a-i-s-h-e.

18 Q. Did the District do anything other than

19 simply provide data to the Department of

20 Environmental Protection?

21 A. With respect to the report?

22 Q. With respect to this report.

23 A. To my knowledge, that's all that we did,

24 was provide the data.

25 Q. To your knowledge, does this report have

1 any applicability to the issues involved in the SWIM

2 Plan challenge?

3 (Thereupon, a recess was taken.)

4 THE WITNESS: Can you be more specific with

5 your question? I don't understand the question.

6 BY MR. BLANK:

7 Q. Well, the report, as I view it, attempts to

8 document exceedences of certain water quality

9 parameters within the EAA. Is that your

10 understanding of the report?

11 A. That's my understanding, yes.

12 Q. And my question is, does that have any

13 applicability to the remedies that are specified in

14 the SWIM Plan?

15 A. My general understanding of the remedies

16 that are in the SWIM Plan, particularly with respect

17 to STAs, is that STAs would have the capability of

18 improving the quality of water for many parameters in

19 addition to phosphorus.

20 Q. So it is your opinion that certain of the

21 exceedences that are documented in this report may be

22 corrected if they are measured downstream of the

23 STAs?

24 A. That's possible.

25 Q. Have you reviewed the report to determine

1 whether there are any parameters that would not be

2 benefited by the STAs?

3 A. No, I haven't reviewed it.

4 Q. Do you intend to testify at hearing on the

5 SWIM Plan challenge?

6 A. No. I'm not my understanding I'm here as a

7 fact witness.

8 MS. CLEMENTS: We do have him listed as a

9 witness on our witness list, but as a factual

10 witness, not an expert.

11 MR. BLANK: Okay. So there is no intention

12 of proffering Mr. Federico at this time as an

13 expert witness at trial in this action?

14 MS. CLEMENTS: No. No. Not at all.

15 MR. BLANK: Okay. That may make our

16 deposition a little simpler.

17 MS. CLEMENTS: I thought you understood

18 that earlier.

19 MR. BLANK: No. I never have gotten a

20 clear understanding of what list A and list B

21 are intended to be.

22 MS. CLEMENTS: No. In the initial listing

23 of our witnesses we had Tony down as a factual

24 witness and that has not changed.

1 BY MR. BLANK:

2 Q. What facts do you intend to testify to at

3 hearing?

4 A. I don't understand the question. I'm

5 sorry.

6 Q. Well, when you take the witness stand at

7 hearing in this case, what are you going to say?

8 A. I'll answer the questions that are asked of

9 me.

10 Q. What general areas do you anticipate

11 questions being posed to you by your counsel?

12 A. I can't anticipate that. I don't know.

13 Q. You haven't discussed your anticipated

14 testimony with your attorneys as yet?

15 MS. CLEMENTS: We have discussed an overall

16 view, not exact testimony, as to what is coming

17 down. We have not formulated that at this

18 point. What will be offered is Tony's

19 involvement primarily in the SWIM planning

20 process that there was compliance with the

21 statutory review through supervision of Paul

22 Whalen. Whalen is going to be your primary

23 person on the SWIM Plan. But Tony may be there

24 also on that. As to any formulation, any need

25 for substantiation of numbers, he can testify as

1 to the factual basis or how the numbers were

2 developed.

3 BY MR. BLANK:

4 Q. Okay. So as I understand it then, your

5 testimony would be related to areas regarding the

6 procedures that were used to prepare the SWIM Plan,

7 statutory compliance and the factual basis as to

8 numbers that are in the SWIM Plan?

9 MS. CLEMENTS: The statutory compliance is

10 just the fact that certain things were done

11 under his supervision through Paul Whalen. The

12 basis of the numbers that were developed is more

13 in line of what he will be testifying about.

14 BY MR. BLANK:

15 Q. And I note on your witness designation it

16 reads that the witness has directed SWIM Plan

17 activities and Everglades research. Do you

18 anticipate that you will be testifying concerning the

19 factual aspect of Everglades research?

20 A. I can testify to the extent of describing

21 the research that we have.

22 Q. The ongoing research, which is what we have

23 already covered this morning in general terms?

24 A. Yes.

25 Q. Okay. Now, with regard to the factual

1 basis of the numbers, what numbers are you referring

2 to?

3 A. I assume it would be the numbers contained

4 in the SWIM Plan.

5 Q. Yes. Specifically which ones? There are a

6 lot of numbers in the SWIM Plan.

7 A. Right.

8 Q. Which numbers do you intend to offer

9 factual testimony on?

10 A. I assume the critical ones deal with limits

11 and levels.

12 Q. These would be the phosphorus limitations

13 contained in the SWIM Plan, the interim and long-term

14 limits?

15 A. Yes.

16 Q. As well as the 50 ppb outflow designation

17 for the Water Conservation Areas or inflow?

18 A. Yes.

19 Q. And your testimony in that regard would be

20 the factual basis for the establishment of those

21 numbers?

22 A. Yes.

23 Q. Let's deal first with the standard relating

24 to the 50 part per billion number for inflows into

25 the Water Conservation Area, which is also the number

1 for coming out of the STAs, as I understand it. How

2 was that number established?

3 A. I don't understand your question.

4 Q. What was the process by which you arrived

5 at 50 ppb? How did you get there?

6 A. The number 50 was the result of taking in

7 series, assuming a BMP program that reduces

8 phosphorus loads of an average of 25 percent and

9 reduces the volume of water by 20 percent, and that

10 going into STAs, which are assumed to be about 70

11 percent efficient, and making some small adjustments

12 for land use changes and ET changes. And if you take

13 the results in the phosphorus loads and the results

14 in volume of water, you end up with a calculated

15 number of 50 parts per billion.

16 Q. Are you saying it is technology based?

17 A. The 50 parts per billion was originally the

18 result of applying those two technologies. That is

19 how the number was calculated.

20 Q. So it is a technology based standard? That

21 is, utilizing the BMPs, utilizing the STAs, this is

22 what you anticipate coming out of them?

23 A. I don't believe it is a standard.

24 Q. What do you call it?

25 A. The result of applying those two types of

1 technologies sequentially.

2 Q. Do you call it a limit?

3 A. It is the end result of applying those two

4 technologies in sequence.

5 Q. Well, what happens if you don't meet it; if

6 you have more than 50 ppb coming out of the STAs?

7 MS. CLEMENTS: Objection; calls for a legal

8 conclusion.

9 THE WITNESS: I don't know.

10 BY MR. BLANK:

11 Q. To your knowledge, is there any penalty

12 attached to failing to meet that 50 ppb number?

13 MS. CLEMENTS: Objection.

14 THE WITNESS: I don't know.

15 BY MR. BLANK:

16 Q. What is the relationship of the 50 ppb

17 number to protecting the resource?

18 A. I believe there is a report produced by

19 DEP, I think that Frank Nearhoof from DEP authored.

20 Q. A Nearhoof report?

21 A. Yes.

22 Q. Okay.

23 A. I think that report generally indicated

24 that 50 parts per billion was probably on the high

25 end of a range of values that would cause harm or

1 cause imbalance.

2 Q. Well, what came first, the number of acres

3 to be utilized with the STAs or the 50 ppb number?

4 A. As I indicated, the 50 parts per billion

5 was the result of applying what I previously

6 described as the BMP program and STAs that were

7 assumed to be 70 -- I believe it was 70 -- percent

8 efficient in removing phosphorus. If you looked at

9 that on an EAA wide basis, the number 50 could be

10 calculated as a result. That 50 parts per billion

11 was then used as a design parameter for the specific

12 sizing of the STAs that was done by

13 Burns & McDonnell.

14 Q. So the decision was made that you wanted 50

15 coming out of the STAs and then you determined how

16 big they had to be in order to get 50; is that the

17 process that you went through?

18 A. Generally, yes.

19 Q. Now, who made the policy decision that 50

20 was the number that was going to be acceptable for

21 phase one, so to speak, of the nutrient control

22 program?

23 A. I don't recall a policy decision.

24 Q. Well, how did you arrive at -- who was

25 involved in the meetings that were discussing the

1 various numbers that might be achieved by using this

2 technology?

3 A. Could you repeat the question again?

4 MR. BLANK: Could you read it back?

5 (Thereupon, a portion of the record

6 was read by the reporter.)

7 THE WITNESS: I don't understand the

8 question. Could you be more specific?

9 BY MR. BLANK:

10 Q. Well, who did you meet with to discuss this

11 50 ppb number?

12 A. The concept of a BMP program and the use of

13 wetlands systems to treat runoff is one that's, to my

14 knowledge, I think was in all versions of the

15 Everglades SWIM Plan. The calculation of applying

16 those two in series and doing the calculations, those

17 were made during the settlement negotiations.

18 Q. Right. And who was involved in that

19 process?

20 A. I don't recall who specifically. I mean,

21 exactly who was in the room when the moment in time

22 was when somebody did the calculation. But

23 generally, the people that were involved in that

24 process were myself and Tom MacVicar and Mike Soukup

25 and Mark Maffei, Bill Walker. There were other

1 people that also were in the meetings at different

2 times but not at all meetings. I'm not sure anybody

3 was at all meetings. Bob Kadlec participated in some

4 of the meetings.

5 Q. Well, theoretically --

6 A. Del Bottcher. There were a number.

7 Q. Well, theoretically you could have sized

8 the STAs larger and got a lower concentration, is

9 that correct, than 50 ppb?

10 A. I would be speculating. I don't want to

11 speculate.

12 Q. Well, you certainly could have cranked the

13 BMP program down and required more than the 25

14 percent load reduction out of the BMP program and

15 achieved, with the same size STAs, a lower number,

16 couldn't you?

17 A. I think theoretically to some degree that

18 would -- I think the calculations would indicate

19 that. I don't know whether or not the systems would

20 perform that way.

21 Q. Or conversely, you could have made the STAs

22 smaller and gotten a higher number as an outflow

23 concentration from the STAs; is that correct?

24 A. That is possible.

25 Q. So I guess what I am getting at is who was

1 the one that made the decision that 50 was the number

2 you wanted?

3 MS. CLEMENTS: I think you have already

4 answered that with Nearhoof's report was that

5 the 50 ppb was the number that DEP thought.

6 THE WITNESS: I don't recall a decision

7 being made that 50 was the number. The 50 was

8 derived by applying those two technologies

9 sequentially.

10 BY MR. BLANK:

11 Q. Well, in the context of your negotiations,

12 in which Mark Maffei, I assume, was involved in that

13 as representing the Loxahatchee interests; is that

14 correct?

15 A. Mark Maffei was there.

16 Q. Yeah. And he was there representing the

17 interests of Loxahatchee, as far as you know?

18 A. I presume so, but I don't know

19 specifically.

20 Q. Were there different numbers that were

21 discussed with regard to inflow concentrations into

22 Loxahatchee after construction of the STAs that would

23 be acceptable or not acceptable to Loxahatchee

24 personnel?

25 A. Could you be more specific?

1 Q. Well, didn't Mark Maffei at one point in

2 time in your discussions insist on a 30 ppb number

3 for inflows into Loxahatchee?

4 A. I don't recall. I don't recall that.

5 Q. Do you recall him insisting on any number?

6 34?

7 A. I recall him arguing to have 50 as a

8 discharge limitation.

9 Q. Into the Refuge?

10 A. Yes. There may be -- I just don't recall.

11 There may have been other arguments on other lines,

12 but I just don't recall those.

13 Q. Did the District suggest at any time a

14 number different than 50 for inflow concentrations to

15 the Loxahatchee?

16 A. I don't know if -- I don't recall whether

17 or not it was suggested. I know there were

18 calculations done as to what the inflow

19 concentrations were during the base line year with

20 respect to the Refuge being an OFW, outstanding

21 Florida water, and calculations being made as to what

22 that year's inflow concentration was.

23 Q. Do you recall what that number was?

24 A. I seem to think it was around 100 for S-5A,

25 but I could be wrong. I don't remember what S-6

1 would have been.

2 Q. Would that have been a flow-weighted mean,

3 annual mean, concentration for '78, '79?

4 A. Since most of virtually all the

5 calculations in this entire issue usually deal with

6 flow-weighted concentrations, I presume those did

7 also, but I believe the base -- it was the base

8 period specified in the OFW statute as to what that

9 number was, what year it was. I don't know if it was

10 '78 or '79 or the period March '78 to March '79. I

11 don't recall the statute.

12 Q. I think that is the base period that is

13 specified in the SWIM Plan as pertaining to the OFW

14 designation. March of '78 through --

15 A. I believe that's what's in the statute that

16 deals with state statute that deals with outstanding

17 Florida waters.

18 Q. Now, who would have made those

19 calculations?

20 A. I don't specifically recall who made that

21 calculation.

22 Q. Would it have been somebody employed by the

23 District?

24 A. I don't remember.

25 Q. So somebody made some calculations based on

1 the OFW base line period which came, to your

2 recollection, somewhere around 100?

3 A. As best as I can recall.

4 Q. And did the District then suggest that as

5 an inflow limit for the Loxahatchee?

6 A. I don't recall whether or not it was

7 suggested or not. I recall that there was

8 discussions about that issue, though.

9 Q. What was discussed? What was the nature of

10 the discussions?

11 A. That that was the inflow concentration

12 during the designated base year for the OFW, and

13 there were discussions revolving around, I guess,

14 another part of the OFW statute that deals with, best

15 I can term, grandfathering in of discharges that were

16 permitted by the department and some discussions to

17 whether or not the EAA, one or more of those parcels,

18 may or may not have been grandfathered in a general

19 sense.

20 Q. One or more of which parcels?

21 A. Well, whether or not -- I believe, as I can

22 recall the discussions on the OFW statute, that there

23 is a provision in there that if prior to designation

24 a discharge was permitted by the department, that

25 that basically would be grandfathered in and be

1 accounted for in the inflow. And I remember there

2 were discussions dealing with how that -- whether or

3 not there was or wasn't such a grandfathering in and

4 how that related to the value of 100, as to whether

5 or not that was a true OFW base line number or not.

6 Q. To your recollection, what was the

7 Department of Environmental Protection's position on

8 that issue?

9 A. I don't believe they had an official

10 position on it. I don't ever recall one.

11 Q. Was it your understanding that a permit was

12 required for discharges into Loxahatchee during the

13 base line year; '78 to '79?

14 A. I don't have any understanding on that

15 issue.

16 Q. No one ever told you at some point in time

17 that the District structures needed permits nearing

18 '78 and '79?

19 A. District needed permits? I don't recall

20 that.

21 Q. So why didn't you pick 100 instead of 50

22 for the inflow into the Loxahatchee?

23 A. I didn't pick any number.

24 Q. Why didn't the District?

25 A. The District didn't pick a number. The

1 process is one of trying to reach a technical

2 consensus.

3 Q. And I assume there was no technical

4 consensus around the number of 100; is that correct?

5 A. I'd say generally that was correct.

6 Q. Why not? Who objected to it?

7 A. I don't specifically recall. I believe it

8 revolved around the issue again of dealing with

9 whether or not that represented the concentration

10 that would have occurred had it not been for -- it

11 goes back to the issue of whether or not the

12 discharges through that pump station had been

13 grandfathered in prior to the OFW designation and as

14 to whether or not you needed to correct the

15 approximate number of 100 if those were not

16 grandfathered in.

17 Q. Well, since you didn't select 100, am I

18 correct in assuming that someone at some point in

19 time, or by technical consensus a decision was made

20 that the discharges that occurred during '78 and '79

21 were not grandfathered?

22 A. There really wasn't. The primary focus of

23 the discussions were on the receiving body; you know,

24 what was the phosphorus levels in the marsh during

25 the base line period as indicated in the statute

1 dealing with OFWs? It really wasn't an

2 established --

3 Q. Well, let's follow that through for a

4 minute. What is the receiving body of water for

5 discharges out of S-5A and S-6?

6 A. The immediate receiving body is, I believe,

7 a canal.

8 Q. It is the perimeter canal around

9 Loxahatchee, isn't it?

10 A. Yes.

11 Q. Did anybody go and try and determine what

12 the ambient water quality of that body of water was

13 during this whole process?

14 A. There may have been some discussions about,

15 I believe, the sampling program that generated

16 interior 16 station, data also collected -- some data

17 in the canal system, interior perimeter canal system,

18 and there may have been some discussions about that,

19 but really the focus is on the marsh.

20 Q. Well, how does the water get from the

21 perimeter canal into the marsh?

22 A. If it was to get there, it would flow

23 there. I'm sorry.

24 Q. Did anybody ever do a flow study for

25 Loxahatchee, to your knowledge?

1 A. There was a discussion of a hydrologic

2 model that was developed for the Refuge.

3 Q. Did you examine that model?

4 A. No.

5 Q. Did anybody from the District?

6 A. I don't know.

7 Q. To your knowledge?

8 A. I don't know. I believe it was done by the

9 University of Florida.

10 Q. Yeah. I think you are referring to the

11 model developed by Richardson as part of the work

12 order 32 synthesis report.

13 A. That could be it. I don't recall

14 specifically enough.

15 Q. Was the issue ever raised in your

16 discussions concerning the Refuge and the interior

17 marsh numbers as to whether there was a causal link

18 or a correlation between inflows and concentrations

19 at the interior marsh stations?

20 A. I believe it was generally -- it was

21 generally discussed and recognized that there was no

22 quantitative model that could link the two primary

23 inflows to the interior marsh.

24 Q. Well, what kind of a causal link would

25 there be if you couldn't quantify it?

1 A. You can have a causal link without being

2 able to quantify. I don't see whether those are

3 exclusive.

4 Q. That's what I'm asking you. What type of

5 relationship is it that can't be quantified but

6 nonetheless exist?

7 A. At that point in time, that relationship

8 wasn't quantified.

9 Q. Has it now been quantified?

10 A. Not to my knowledge.

11 Q. So the interior marsh sampling effort

12 during '78 through '83 was utilized to establish the

13 ambient concentration of phosphorus in the interior

14 marsh, is that correct?

15 A. I would have to review the appropriate

16 appendix. I'm not sure it was that entire period of

17 record that was used that you described.

18 Q. Well, we'll get into that later, but I'm

19 just trying to get a feel for how all this ties

20 together.

21 A. I believe it was the earliest full year, as

22 best I'm trying to recall. Again, I would have to

23 review it. A full year of record. The earliest one

24 in the record that was closest to the March to March,

25 what is it, '78 to '79 time period that is referenced

1 in the OFW statute that is used to establish what the

2 interior marsh interim limits would be.

3 Q. Who was advising you to use the earliest

4 full year? How was that decision reached?

5 A. It was based on the interpretation of the

6 OFW statute.

7 Q. Whose interpretation?

8 A. The representatives from DER at the time

9 who were there.

10 Q. And this would have been who?

11 A. Richard Harvey. Again, I'm not -- there

12 were many meetings and I don't know who was at all

13 the meetings. You know, each individual meeting.

14 But in general, I think the participants were Richard

15 Harvey, Frank Nearhoof and Tom Schwigart. There may

16 have been others.

17 Q. All right. We would have these

18 concentrations that have been established for your 14

19 or 16 interior marsh sites in the Loxahatchee. Now,

20 how does that number relate to the 50 ppb number?

21 A. There is no quantitative relationship that

22 I'm aware of.

23 Q. Well, how do you know that if you do, if

24 you are successful in limiting the inflow

25 concentration into the Refuge to 50 ppb, if this

1 technology system that you have devised is successful

2 and you get 50 coming out the end of the STA, that

3 that's going to result in compliance at the interior

4 marsh sites?

5 A. The 50 parts per billion represents

6 basically best practical technology. I mean, the

7 result of applying best practical technologies.

8 There is no quantitative relationship between that

9 and interior marsh other than there is as part of the

10 entire program. As indicated in the SWIM Plan, the

11 S-6 basin was to be diverted so that load wouldn't be

12 impacting, so that would help achieve those levels.

13 Q. On a percentage basis, how much load does

14 that mean wouldn't be going into the Refuge that used

15 to go in the Refuge?

16 A. I don't know. I'd have to look it up in

17 the SWIM Plan. I don't recall. And then, you know,

18 during the year of data that was used, you know, the

19 inflow concentration going to the Refuge was higher

20 than 50.

21 Q. Right. But you said there was no

22 quantitative link --

23 A. Right.

24 Q. -- between what was going on and what you

25 found at the interior.

1 Let me back up a minute. The 50 ppb number

2 that is coming out of the STAs, is that a long-term

3 average?

4 A. The design goal was for a long-term

5 flow-weighted average of 50.

6 Q. All right. Now, what does long-term mean

7 to you?

8 A. There was a ten-year period of record that

9 went into that that was used to provide the design

10 conditions for the STAs in achieving 50. I think

11 what Burns & McDonnell used was a ten-year time

12 frame.

13 Q. So it was your understanding that in this

14 context, long-term means over ten years?

15 A. No.

16 Q. What does it mean to you then?

17 A. I can't put a specific number of years on

18 it.

19 Q. Well, how do you go about measuring

20 compliance then?

21 A. What the SWIM what the permit conditions

22 indicated was that methodology was to be developed,

23 compliance methodology.

24 Q. When you say the permit, you mean the

25 intent to issue from DEP?

1 A. Yes. Yes. I think there is a special

2 condition in there that gave a time frame for the

3 District to propose a method to determine compliance.

4 Q. Has the District done that yet?

5 A. No. The District has not proposed a

6 compliance formula.

7 Q. All right. So let's say that we have got

8 these STAs built and they are running and cranking

9 water out the end of them, and at the end of the

10 second year you have got concentrations coming out of

11 the STA in excess, on average, of 50 ppb and you

12 don't have compliance at the interior marsh sites.

13 The levels are in excess of your interim limits for

14 the Loxahatchee. What happens to your 50 ppb

15 long-term average at that point?

16 A. As best as I can recall, I believe that if

17 the limits as calculated, the levels as calculated,

18 are not met, I believe 50 would become a discharge

19 limitation.

20 Q. Over what period of time?

21 A. I'd have to review the documents. It may

22 be on an annual basis, but I'm not sure.

23 Q. I believe it is. That is my understanding.

24 It converts to an annual average.

25 I guess what I am wrestling with here is

1 what assurance do you have that even if you get 50

2 coming out of the STAs, that you are going to get

3 compliance with the interim limits in the marsh?

4 A. I think the answer to your question is

5 there are no assurances. The Douglas Act basically

6 called for implementing best practical technologies,

7 and that is what the BMP and the STA program is.

8 Q. Well, the SWIM Plan calls for a fairly

9 large expenditure of funds, does it not, to construct

10 STA-1 to reduce the load into the Loxahatchee?

11 A. Yes.

12 Q. And if there's no causal link or no link

13 that you can quantify between the load coming out of

14 the STAs and the interior marsh limits, then aren't

15 we at risk at that point in time of having to expend

16 additional monies to satisfy the interim limits?

17 A. It's possible.

18 Q. And I guess the other thing that I'm

19 confused about is why the interim limits of leverage

20 over the outflow concentrations from the STAs in

21 terms of cranking down a long-term average to a

22 maximum annual average if there isn't a quantifiable

23 link between the two? How did that come about?

24 A. Can you clarify your question? What do you

25 mean "of leverage"?

1 Q. Well, the SWIM Plan, I think we know, says

2 that if you are not in compliance with the interim

3 limits -- that is those interior marsh limits.

4 A. Yes.

5 Q. Okay? If you're out of compliance there,

6 then the long-term average coming out of the STAs

7 converts to a maximum annual average, which is going

8 to be more difficult to satisfy, is it not, than a

9 long-term average?

10 A. Generally, yes.

11 Q. So my concern is, how did that -- from a

12 factual standpoint, how did that come about? How is

13 it that those interim limits --

14 A. Well, I think --

15 Q. -- are exerting that kind of control over

16 the outflow concentrations?

17 A. I think it is generally understood if

18 you're going to have a long-term average, if you are

19 expecting the system to perform to a long-term mean,

20 that for any given year there may be fluctuations

21 around that, since it is a mean, and there would be

22 years that are higher and lower. Now, if that is not

23 achieving the limits, then additional reductions at

24 the inflow points would be necessary to achieve

25 those. So that if you make the long-term, your

1 long-term objective, apply on an annual basis and you

2 achieve that, you would have further reduced, in

3 essence, the amount of phosphorus entering the Refuge

4 and there have a better chance of meeting the

5 interior levels.

6 Q. Well, what if the interior system is a

7 rainfall driven system and isn't influenced by

8 inflows coming through 5A?

9 A. You're asking me to speculate on a

10 hypothetical.

11 Q. No. I don't know if you have read work

12 order 32, but --

13 A. I'm not familiar with that terminology.

14 Q. Well, that is the report for the

15 Loxahatchee, which I will represent to you basically

16 makes the statement that the interior system of the

17 Loxahatchee is a rainfall driven system.

18 Now, if that is true, why would you allow

19 that rainfall driven system to have any influence

20 over your number that was established as a technology

21 based number?

22 A. You know, I don't know what you mean by

23 rainfall driven. I don't know if you mean it is

24 exclusively influenced by rainfall or -- maybe you

25 can help me.

1 Q. Primarily influenced by rainfall. In other

2 words, the quality of the water in the interior marsh

3 is determined by the quality of rainfall rather than

4 the quality of the discharge from the 5A and 6

5 structures.

6 A. It is my understanding that in addition to

7 being influenced by rainfall, the Refuge is

8 significantly influenced by the inflow of pump

9 stations.

10 Q. The interior of the Refuge?

11 A. Yes. The entire Refuge is.

12 Q. Now, what is that understanding based on?

13 A. It's based on discussions with Mark Maffei,

14 and a part of that -- I think part of that basis, I

15 guess, was a formula based upon that modeling effort,

16 I guess what you are calling work order 32 or

17 something.

18 Q. The hydrologic study done by or model

19 developed by Richardson?

20 A. Yes.

21 Q. But you never examined that model.

22 A. No, I did not.

23 Q. So, basically, you're taking Mark Maffei's

24 word for the fact that the interior marsh is

25 influenced by flows from 5A and 6; is that correct?

1 A. Yes. He's the Refuge expert biologist.

2 Q. Well, why do you need the interior marsh

3 limits at all? If you have got a technology based

4 number controlling inflows into the Refuge and which

5 you're reasonably satisfied can get you, on a

6 long-term average, 50 parts per billion and you

7 previously testified that that number is

8 substantially less than the concentration that was

9 going into the Refuge in '78 and '79 and you have got

10 no quantitative link between the inflow and the

11 interior marsh stations, why do you need the interior

12 marsh limits?

13 A. Well, measurements from the marsh is what

14 you would need to guide further -- determine if

15 further additional control measures are necessary.

16 If you don't have a means of evaluating that in the

17 marsh, then I don't know whether or not applying the

18 best practical technology -- I mean, unless I'm

19 misunderstanding your question.

20 Q. I understand what you're saying. But, I

21 mean, I thought the plan here was that over the next

22 five years or so, the District would determine, I

23 would assume in conjunction with the Refuge, this

24 nutrient threshold number that would be the number

25 for which exceedences would cause an imbalance of

1 flora and fauna for the Refuge. Isn't that the plan?

2 A. Yes, over the long-term.

3 Q. Well --

4 A. To their interim, the 14 stations were used

5 to determine an interim number.

6 Q. Well, when does that interim number take

7 effect?

8 A. I believe it is supposed to be achieved

9 by -- I would have to review the documents.

10 Q. Why don't we look at the SWIM Plan real

11 quick. Maybe that will shed some light on it.

12 (Thereupon, a recess was taken.)

13 BY MR. BLANK:

14 Q. I think the question that was posed is what

15 was the timing for implementation of the interim

16 limits; when did do they take effect? And you have

17 in front of you all three volumes of the SWIM Plan,

18 and perhaps you could look at that quickly and tell

19 us what the implementation date of the interim limits

20 is.

21 Q. Maybe you could refer him to a page.

22 MR. SMITH: 64.

23 THE WITNESS: Thank you.

24 It indicates here on page 64 that they are

25 effective July 1st, 1997.

1 BY MR. BLANK:

2 Q. Okay. So that's the effective day of the

3 interim marsh?

4 A. Interim concentration levels.

5 Q. For the interior marsh stations and the

6 Refuge; is that correct?

7 A. Yes. Yes.

8 Q. Now, how do you go about determining

9 compliance with those limits? How often is the

10 interior marsh going to be sampled once the limits

11 are effective?

12 A. I would probably need to check. I believe

13 it was monthly. Monthly sampling.

14 Q. So you start a monthly sampling effort at

15 these 14 sites and and let's say that in month one

16 your geometric mean concentration across all 14 sites

17 is in excess of the limit. You have got an

18 exceedance. Are you then out of compliance?

19 A. What do you mean by out of compliance

20 versus an exceedance?

21 Q. Well --

22 A. What do you mean by the term compliance,

23 out of compliance?

24 Q. Are you in violation of the limit or do you

25 get two months --

1 A. I think I would have to review it. I

2 believe it is two. I don't recall whether or not it

3 is two consecutive or two in any 12-month period. I

4 would have to refresh my memory by reading.

5 Q. Do you think that is specified somewhere in

6 the SWIM Plan?

7 A. I don't know. I'd have to check the

8 appendix.

9 Q. Is it your recollection that it is

10 specified somewhere in the SWIM Plan?

11 A. I'd have to review the appendix dealing

12 with the Refuge limits and levels.

13 Q. Why don't you look at that real quick. It

14 is Appendix E, isn't it?

15 A. What was the question?

16 Q. The question was how many exceedences do

17 you need to be out of compliance?

18 A. I believe it was two, to the best of my

19 recollection.

20 Q. And you think it is specified somewhere in

21 the SWIM Plan but you haven't been able to find it

22 yet; is that correct?

23 A. I don't know if it is in there. I mean, I

24 have to review the rest. I have to look for it.

25 Q. Okay. Now, we've got the limits that these

1 interim limits come into effect in July 1 of 1997;

2 correct?

3 A. Correct.

4 Q. How long is it going to take you to get the

5 District to get STA-1 up and running and stabilized?

6 A. Just for clarification, what do you define

7 STA-1 to be?

8 Q. I'm defining -- I am assuming STA-1 is the

9 STA which is going to treat inflows to the Refuge. I

10 may be wrong.

11 A. From S-5A?

12 Q. Yes.

13 A. Okay. And so your question was how long?

14 Q. Yeah. When is that going to be built and

15 stabilized?

16 MS. CLEMENTS: Depending on whether we

17 still have litigation or not?

18 BY MR. BLANK:

19 Q. How long is it going to take you to get it

20 built and running?

21 A. I can't project that.

22 Q. Is it going to be done by July 1 of 1997?

23 A. I doubt that.

24 Q. How long generally are you talking about

25 having to spend to stabilize? What periods of time

1 for stabilization of the STAs is being considered by

2 the District? The reason I ask that is I have heard

3 various numbers ranging from one year to five years

4 in order to get the STAs stabilized. I am just

5 wondering what the District's current thinking is.

6 A. I have heard a range of numbers also

7 from -- generally I hear from one to two years, but I

8 have heard, depending upon how you define

9 stabilization, it could -- some parts of it could

10 stabilize in a matter of months and others, depending

11 on what you use as your criteria for stabilization --

12 are you talking about vegetation or phosphorus in the

13 soils being sequestered and not released from the

14 previously used agricultural lands? So I have heard

15 anything from months to years, a couple years.

16 Q. So from your perspective, though, when

17 would you feel comfortable, after the STA is built

18 and you have started to operate it, what period of

19 time do you feel is necessary before you start

20 measuring the outflow against this 50 ppb number?

21 MS. CLEMENTS: Objection. He is not being

22 offered as an expert as to when would be the

23 appropriate time to be measuring the exceedance.

24 THE WITNESS: I would have to rely upon

25 people who are more familiar with.

1 BY MR. BLANK:

2 Q. Has anybody in the District given you their

3 opinion on that issue?

4 A. On the issue of how long it would take to

5 stabilize?

6 Q. Yes.

7 A. I have heard different opinions.

8 Q. Have you heard Dr. Walker's opinion on

9 that?

10 A. I don't recall hearing Dr. Walker express

11 an opinion on how long it would take an STA to

12 stabilize.

13 Q. Who have you heard express an opinion on

14 that issue?

15 A. I have heard opinions expressed from

16 Dr. Kadlec.

17 Q. What does he say?

18 A. I believe I heard a three years and also I

19 heard I think I also heard times maybe a little less

20 than that.

21 Q. From who?

22 A. I have heard Mike Soukup express an

23 opinion.

24 Q. Okay.

25 A. Like I said, it is just one of those issues

1 that I probably heard many people express different

2 opinions. I just don't recall specific

3 conversations. I do recall the conversation with

4 Dr. Kadlec, though.

5 Q. Well, you know, assuming all the litigation

6 was over with tomorrow and you could get the District

7 to get going in terms of constructing the STAs, how