1 1 Division of Administrative Hearings 2 Department of Administration, State of Florida 3 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. ) 8 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. ) 13 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. ) 19 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. 2 1 APPEARANCES: 2 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 10 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 13 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 16 17 - - - 3 1 - - - 2 I N D E X 3 - - - 4 5 WITNESS: DIRECT CROSS REDIRECT RECROSS 6 Anthony Federico 7 BY MR. BLANK: 4 8 BY MR. SMITH: 122 9 10 11 - - - 12 E X H I B I T S 13 - - - 14 15 NUMBER PAGE NO. DESCRIPTION 16 EXB. NO. 1 125 Whalen's notes of 5/21/91 17 - - - 18 19 20 21 4 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. 5 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. 6 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? 7 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. 8 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? 9 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 10 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 11 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 12 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 13 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 14 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. 15 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 16 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, 17 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 18 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? 19 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 20 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 21 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 22 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? 23 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. 24 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? 25 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 26 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? 27 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 28 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 29 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 30 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? 31 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. 32 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 33 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 34 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 35 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 36 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? 37 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. 38 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 39 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 40 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? 41 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? 42 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? 43 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 44 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? 45 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 46 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 47 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 48 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. 49 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 50 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. 51 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 52 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. 53 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. 54 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? 55 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? 56 1 MS. CLEMENTS: Sounds fine. 2 (Thereupon, a recess was taken at 11:50 a.m.) 57 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 58 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 59 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 60 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. 61 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 62 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 63 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 64 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 65 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 66 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 67 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 68 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 69 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? 70 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 71 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 72 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 73 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 74 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 75 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? 76 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? 77 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 78 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 79 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. 80 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? 81 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 82 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"? 83 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 84 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. 85 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? 86 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 87 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. 88 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 -- 89 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 90 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 91 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. 92 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 93 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 8 long would it take to get STA-1 up and running? 9 A. I recall Galen Miller coming up with an 10 estimate for -- I don't know if it applied to all of 11 what would be the STA-1 east and 1 Complex, as 12 indicated in the technical mediated plan, but I 13 believe it would be sometime in 1999, assuming there 14 were no obstacles assumed, funding or otherwise. 15 Q. Okay. Well, I guess what I am wondering 16 here is, assuming there is some causal relationship 17 between the STA outflows and these interior marsh 18 limits, how are you going to meet them on July 1st of 19 1997 if the STA isn't going to be up and operational 20 by then? 21 A. I don't know whether or not they would or 22 would not be met by then. But also the program 23 described in the SWIM Plan assumed that this plan 24 would have been implemented already. 25 Q. So, was one of the underlying assumptions 94 1 of this establishment of interim limits was that the 2 STAs would be up and operating at the time the 3 interim limits went into effect? 4 A. I think generally it's a very optimistic 5 construction schedule. If you use a very optimistic 6 construction schedule. But I'm not sure of the exact 7 dates. 8 Q. I guess what I'm asking you is was that an 9 underlying assumption of the effective dates of the 10 interim limits; that the STAs would be up and 11 operational at the time the interim limits became 12 effective? 13 A. I am trying to recall if that was an 14 explicit assumption. I can't recall that. 15 Q. Isn't there a construction schedule in the 16 SWIM Plan for the STAs? 17 A. I'd have to check. 18 Q. Why don't you look at that and see, if you 19 can. 20 A. Can you tell me what page or do I have to 21 look? 22 Q. I believe it follows somewhere after page 23 100. I think around 100 are the interim limits. 24 A. Okay. What was the question now? 25 Q. What construction schedule for the STAs was 95 1 as specified in the SWIM Plan? 2 A. It indicates that a minimum of 7400 acres 3 of STA-1 would be constructed and functional by July 4 1st, 1997, and the total of 35,000 acres constructed 5 and operational by 1997. 6 Q. So that sort of ties into the effective 7 dates of the interim limits, doesn't it? 8 A. Yes. 9 Q. Okay. Has anyone at the District, to your 10 knowledge, examined the data from the interior marsh 11 stations over the past year to determine whether 12 those limits are presently being satisfied or 13 complied with? 14 A. I believe there has been some data 15 collection conducted, I assume as far as the 16 discovery process. I haven't reviewed that data and 17 I don't know if anybody at the District has. I 18 believe there has been some data collected. I don't 19 know how frequently or if it is ongoing or 20 continuing. 21 Q. So, to your knowledge, no one at the 22 District knows at this point in time whether we're in 23 compliance or out of compliance with the interim 24 limits for the Loxahatchee? 25 A. Information that -- I seem to recall 96 1 information by others, and I think it is a function 2 of who collected the sample and analyzed it. I think 3 there was some split sampling being done by both the 4 League and I think one of the Department of Justice 5 consultants did some split sampling of data collected 6 from the Refuge. I'm not sure that data is -- 7 Q. Isn't the District presently sampling the 8 14 stations in the Refuge? 9 A. I don't know. They may be. That wouldn't 10 be done out of my department, that would be done out 11 of the Water Resource Evaluation Department. 12 Q. Okay. 13 A. I wouldn't be responsible for that 14 monitoring, so I don't know if it's active or not -- 15 Q. Okay. 16 A. -- currently. And I haven't reviewed any 17 of the data. 18 Q. Well, I know that there was a 12-month 19 sampling effort that I think ended in November or 20 December of last year that was conducted jointly by 21 DOJ and the League -- 22 A. That is what I was referring to. 23 Q. -- at the 14 sites. But my question is 24 whether that data has been analyzed yet by anyone at 25 the District to determine? 97 1 A. Not to my knowledge. 2 Q. Okay. What else can you tell me about the 3 factual basis for the 50 ppb limit? 4 A. You'll have to be more specific than that. 5 Could you be more specific? 6 Q. Well, you talked about it being basically a 7 technology based number that was derived using the 8 load reduction based on BMP performance -- 9 A. Yes. 10 Q. -- and anticipated load reduction from the 11 STAs. Is there anything else that went into the 12 derivation of that number other than those two 13 factors? 14 A. There were some minor adjustments made for 15 the fact that the STAs would take agricultural lands 16 out of production and, therefore, those lands would 17 not contribute loads to the STAs. I believe there 18 was a minor adjustment for that. And I believe there 19 was a minor adjustment for differences in between the 20 agricultural lands and the STAs. I think, as best I 21 can recall, those are the factors that went into the 22 calculation. 23 Q. I think you previously testified there was 24 a ten-year period of record used for purposes of 25 designing the STAs. 98 1 A. I believe that is what Galen Miller used. 2 Q. The hydraulic period, was that '78 to '88? 3 A. Yes, or '79 to '88. Approximately that. 4 Q. And the STAs are designed so that there 5 will be no hydraulic bypass for flows that would have 6 occurred during that period of record; is that 7 correct? 8 A. That's correct. I think except for water 9 supply pass-through. I don't know those were 10 intended to go through the STAs. 11 Q. What do you mean by water supply 12 pass-through? 13 A. During rainfall deficient times, on the 14 lower east coast we can discharge water down the 15 canal system from Lake Okeechobee, for instance, 16 through the Miami Canal or the Hillsboro North New 17 River canals through the conservation areas down to 18 the Lower East Coast Area. 19 Q. Are those what are oftentimes referred to 20 as regulatory releases? 21 A. No. 22 Q. What is a regulatory release? 23 A. A regulatory release would be when the Army 24 Corps of Engineers has a maximum stage on Lake 25 Okeechobee that varies over the course of the year, 99 1 and if the stage in the lake exceeds that, then water 2 is released until that level comes back down to that 3 regulation level. Generally, that would be during 4 times of excess rainfall. It would be almost the 5 opposite -- 6 Q. Okay. And what about those? What about 7 regulatory releases? Would they be treated in the 8 STAs or would they be bypassed around the STAs? 9 A. I seem to recall that the STAs are sized to 10 handle historical regulatory releases that occurred 11 during that period. I may be mistaken. I'd have to 12 review some of Galen Miller's documents. 13 Q. You know, I recall a number for sizing 14 purposes of about 200,000 acre feet on average of 15 regulatory releases. Does that ring a bell with you 16 at all? 17 A. No. Not one way or the other. That could 18 be the correct number. 19 Q. This 50 ppb number then, does it only apply 20 to the outflow concentration from the STAs? 21 A. It is a number that the STAs -- it is one 22 of the design based on the size of the STAs to derive 23 that long-term number from, yes, as an outflow from 24 the STAs. 25 Q. It wouldn't apply then to regulatory 100 1 releases in excess of the period of record or to 2 water supply pass-throughs; is that correct? 3 A. I believe that's correct. 4 Q. What would the concentration be of water 5 released from Lake Okeechobee as a regulatory 6 release, phosphorus concentration? 7 A. I don't know. I'd have to go back and, you 8 know, review the discharge records and compare it to 9 the quality water at those structures. I don't 10 recall the answer to that. 11 Q. Would it be in excess of 50 ppb? 12 A. I'd have to review it, but probably so. 13 Q. And that would be the concentration that it 14 would come out of the lake at; right? 15 A. Yes. 16 Q. Would that water likely pick up phosphorus, 17 so to speak, from sediments in the primary canals or 18 elsewhere as it moves down through the system? 19 A. I don't know. I am not going to speculate 20 on that. 21 Q. Well, my concern here is we have got a 22 number of 50 ppb that is applying to the outflow 23 concentration from the STAs but we have got other 24 water that is going to move down through the system 25 that isn't going to go through the STA that, it would 101 1 seem to me, would be at a concentration in excess of 2 50 ppb. Am I correct so far in the way this system 3 is working now? 4 A. If the water is released south. There's 5 several options to release water. Regulatory 6 releases from Lake Okeechobee does not have to go 7 through the EAA area south. You can release it east 8 or west through the Caloosahatchee or the St. Louis. 9 Q. East or west rather than going south, down 10 through the EAA? 11 A. Yes. So there is flexibility as to where 12 the water is discharged for regulatory purposes. 13 Q. Well, if it is discharged south, what has 14 been the historic pattern of the District in terms of 15 discharges of the nature of regulatory releases or 16 water supply pass-throughs? 17 A. I'm not an expert in that area. My 18 understanding, I don't believe south was the primary 19 outlet. 20 Q. Well, if it's a water supply pass-through 21 to get down to Dade County, don't you have to go 22 south? 23 A. Yes. I thought we were talking about 24 regulatory. 25 Q. I was talking about both. 102 1 A. Could you reask? Ask the question again. 2 Q. Let's concentrate for a minute on water 3 supply release coming out of Lake Okeechobee. How 4 does that find its way south to the Dade County well 5 field, which I guess is where you want it to go. 6 A. That is probably one of several places. 7 You would release it through the Miami, North New 8 River, and Hillsboro canals to meet whatever the 9 operational stage levels are downstream. 10 Q. So some of that water would then go through 11 the 5A structure? 12 A. I'm not familiar enough with the details of 13 how we make water supply deliveries to -- really, I 14 don't feel comfortable commenting on whether or not 15 it is S-5A versus S-6. 16 Q. Okay. 17 A. I'm not sure S-5A is a major water supply 18 delivery structure as compared to the S-6 area. 19 Q. Well, assuming that it does go through 5A 20 and it is not being treated in the STA, okay, just 21 making those basic assumptions, what impact is that 22 water going to have with regard to the interior marsh 23 and compliance with those limits? 24 A. I'm not at all comfortable in speculating 25 on that hypothesis because I don't even know if that 103 1 hypothesis is at all plausible. 2 Q. We have already said we don't know what the 3 quantitative relationship is between the interior 4 marsh limits and the inflows coming in; is that 5 correct? 6 A. That's correct. We have said that. But 7 I'm not familiar enough with the operations on water 8 supply releases to know whether or not that scenario 9 is even plausible. 10 Q. But as far as you understand, the 50 ppb 11 limit that is established in the SWIM Plan only 12 applies to outflow concentrations from the STAs? 13 A. I believe that is the intent. 14 Q. Okay. I think you also said that the 15 Nearhoof report played a role in establishing that 16 number; is that correct? 17 A. The number 50 was established, as I 18 described it. 19 Q. Yeah, but -- 20 A. By performing the calculations of BMPs and 21 STAs. 22 Q. Then the Nearhoof report didn't play a role 23 in deriving the 50 ppb number; is that correct? 24 A. I think its major role was in addressing 25 the issue of the status between the interim standard 104 1 as specified in the Douglas Act on because that 50 2 was a reasonable interim. 3 Q. How long is it anticipated that the 50 ppb 4 limit will be in effect? 5 A. I'm not even aware it's in effect at all. 6 In effect in what sense? 7 Q. Well, what is the effective date of it, 8 when does it start to be applicable? 9 MS. CLEMENTS: Objection. It is not going 10 to be applicable until we have a SWIM Plan here, 11 and we don't have a SWIM Plan at this point. 50 12 ppb was what we had July 1st, the effective date 13 of the STAs. We can't even begin building the 14 STAs until we get through this litigation. 15 MR. BLANK: Are you instructing him not to 16 answer? 17 MS. CLEMENTS: No. No. Go ahead if you 18 have got an answer. 19 THE WITNESS: What is the question? 20 BY MR. BLANK: 21 Q. When does the 50 ppb number come into 22 effect? 23 A. I don't know. 24 Q. Okay. It wouldn't make sense for it to 25 come into effect until after the STAs are constructed 105 1 and stabilized, though, would it? 2 A. Well, could you indicate where that limit 3 is established? What is the document? Is it in the 4 permit or -- 5 Q. Oh, I don't know. I thought you knew. 6 A. I don't understand your question 7 apparently. Try again. 8 Q. Well, you testified that there was a 9 technology based number that was derived during the 10 whole process which came out at 50 ppb using a 11 combination of BMPs and sizing of the STAs. 12 A. Right. 13 Q. My question is, when does that number come 14 into effect? When does it become, in essence, a 15 discharge limitation, or does it ever? 16 A. I'd have to review the SWIM Plan to see how 17 that is addressed. I don't recall. 18 Q. Now, just to make sure that I understand 19 your testimony here, and I'm not trying to belabor 20 the point but I want to make sure I'm not missing 21 something, was this 50 ppb number in any way tied to 22 water quality violations that may or may not be 23 occurring in the Everglades Protection Area? 24 A. I don't know. 25 Q. All right. What other limits and levels 106 1 are established by the SWIM Plan? That is, other 2 than the 50 ppb number we have already discussed. 3 A. There's the limits and levels for the 4 Refuge, the marsh, the Refuge and the inflows to the 5 Park. 6 Q. So we have interim limits and levels for 7 the Refuge and the Park? 8 A. Yes. 9 Q. And we also have interim or long-term 10 limits and levels for the Refuge and the Park; is 11 that correct? 12 A. Yes. 13 Q. And we also have reference in the SWIM 14 Plan, do we not, to this Class III narrative nutrient 15 standard threshold number? 16 A. I believe so. 17 Q. And it is my understanding from reading the 18 SWIM Plan that with regard to the Refuge, the lower 19 of the long-term limit or the Class III narrative 20