167
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 II
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 Thursday March 24 1992
319 Clematis Street, 5th Floor
25 West Palm Beach, Florida 33401
9:15 a.m. - 2:40 p.m.
168
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: No appearance
16
17
- - -
169
1 - - -
2 I N D E X
3 - - -
4
5 WITNESS: DIRECT CROSS REDIRECT RECROSS
6 Anthony Federico
7
BY MR. BLANK: 224 (continued)
8 BY MR. SMITH: 170 (continued)
9 - - -
E X H I B I T S
10 - - -
11 NUMBER PAGE NO. DESCRIPTION
EXB. NO. 1 VOLUME I Whalen's notes 5/21/91
12 EXB. NO. 2 182 8/17/92 memo RE: Threshold
Study MOA
13 EXB. NO. 3 200 9/28/90 Final Surface Water
Improvement Plan, pgs 58 & 59
14 EXB. NO. 4 220 fax to MacVicar RE:
phosphorous limits
15 EXB. NO. 5 220 fax to Harvey RE: EPA
preliminary outline
16 EXB. NO. 6 220 fax to Federico RE: Class III
limits and levels
17 EXB. NO. 7 220 fax to Robson RE: phosphorous
limits, settlement discussion
18 EXB. NO. 8 224 10/21/91 memo from Goforth RE:
STA conceptual design
19 EXB. No. 9 224 11/4/91 memo to Distribution
RE: action items
20 EXB. NO. 10 224 SWIM Plan Appendix E
EXB. NO. 11 246 12/8/88 letter to Branscome
21 RE: ENP water issues
EXB. NO. 12 266 5/21/92 memo to Federico RE:
22 settling rate coefficient
values
23 EXB. NO. 13 279 8/18/92 memto to Federico RE:
STA compliance program
24
25
170
1 P R O C E E D I N G S
2 - - -
3 CONTINUED CROSS (Tony Federico)
4 BY MR. SMITH:
5 Q. Mr. Federico, what investigation has the
6 District carried on since the settlement agreement
7 was entered into with respect to methodologies of
8 determining water quality standards?
9 A. As I explained earlier, there are a couple
10 components to that. The TOC, through one of its --
11 or through both of its subcommittees, a Research
12 Subcommittee and a Monitoring Subcommittee, there was
13 development of a plan to determine the threshold
14 level of phosphorus with the District in cooperation
15 with the department. DEP is vigorously carrying out
16 much of that research. The parts of that that are
17 currently active in the field is some transect
18 studies in Water Conservation Area 2A. There's two,
19 maybe three, now active. I'm not sure of the exact
20 status. That generally go from the S-10 structures
21 southwest from impacted to unimpacted areas.
22 There is a wide range of parameters that
23 are being measured. In addition to water quality
24 parameters, there are a number of biological
25 parameters measured. DEP is performing most of those
171
1 analyses.
2 There is developmental work coming up with
3 a study designed to put mesocosms into the Everglades
4 where you would look at the effect of nutrient
5 additions and the changes that that precipitates.
6 Q. Can you explain that in layman's language,
7 what are mesocosms?
8 A. Relatively small, usually plexiglass
9 enclosures; cylinders usually.
10 Q. And what is the object of this
11 developmental project?
12 A. To determine the effects of adding
13 different levels of nutrients to unimpacted areas of
14 the Everglades and to measure the response and
15 changes.
16 Q. And who is doing that?
17 A. The District is doing the lead on that with
18 cooperation and coordination with the department.
19 Q. Okay. Anything else?
20 A. Your question was related to what is
21 active?
22 Q. Yes. Since July '91.
23 A. There are a number of other studies that
24 are being scoped out but that are not probably as far
25 along as the scoping of the mesocosm study.
172
1 Q. Scoping them out, meaning they are in
2 planning?
3 A. In planning stages.
4 Q. What other studies are being scoped out?
5 A. There's generally some studies dealing with
6 the effects of -- I believe there is one dealing with
7 the effects of water levels, there's some greenhouse
8 studies being proposed, although I'm not familiar
9 with the specifics of them right now. They are, I
10 think, in the very early stage of development.
11 Q. As the appropriate officer of the District
12 for research and evaluation, all these studies come
13 under your general supervision responsibility?
14 A. Well, for one, I'm not an officer of the
15 District in any sort of legal sense. I'm in a
16 management position.
17 Q. All right, sir.
18 A. And under me, under my general direction as
19 Department Director of the Department of Research I
20 have overall responsibility for the research.
21 Q. With that correction, do these come under
22 your general responsibility?
23 A. Yes.
24 Q. Is the District conducting any research
25 independent of recommendations by the TOC or is the
173
1 District constrained?
2 A. The District heavily participated in the
3 formulation of what those recommendations from the
4 TOC were --
5 Q. I guess I'm asking you --
6 A. -- so most of our input was through that
7 process. The District has a very large research plan
8 that deals with all the different activities that we
9 feel at some point in time should be conducted within
10 the Everglades. It is probably hundreds of pages
11 long. That is independent of the Technical Oversight
12 Committee. They were given copies to review, but as
13 many -- there were also copies sent external for
14 external review and we are implementing that type of
15 research, too.
16 Q. Are they to the stage of development as
17 these three categories that you have described this
18 morning?
19 A. Some of it is active and in the ground
20 also. A lot of it dealing with the ENR project,
21 Everglades Nutrient Removal project, that's contained
22 in that research plan.
23 Q. Well, do you differentiate in any
24 systematic way between research that must be
25 recommended by the TOC with your input and research
174
1 that you consider is the District's responsibility to
2 undertake with or without the TOC recommendation?
3 A. The way we function is, if there is
4 research that we believe should be conducted, as in
5 the case of ENR research or as in the case of the
6 mesocosm research, you know, we'll develop the study
7 and we'll provide it to the TOC for their agency
8 review and comment as we also send it out for peer
9 review, but we proceed with that. I guess we don't
10 look for a formal affirmative approval from the TOC
11 in order to begin it. We began the threshold studies
12 and those designs without approval.
13 Q. Well, do you make the determination of
14 whether a District research activity that before July
15 1991 would have been conducted at your own initiative
16 requires now the TOC recommendation or not?
17 A. From my perspective, we don't operate any
18 differently. If there is a research initiative we
19 feel is warranted and we are funding it, we will go
20 ahead and fund it. We try as much as possible to
21 keep the members of the TOC informed so they are
22 aware of what we are doing and we can coordinate our
23 activities, but I don't look for TOC approval.
24 Q. Has the District itself or in conjunction
25 with TOC studies done an ongoing testing and
175
1 evaluation of compliance with the interim standards
2 in Loxahatchee?
3 A. I don't recall the TOC doing any evaluation
4 of the recent data that was collected. And as I
5 indicated earlier, I'm not aware -- I mean, I
6 haven't -- I'm not aware of anybody, in my department
7 anyway, that has done any of that type of evaluation.
8 Not to say somebody else in the District hasn't
9 looked at it, but I'm not aware of it. I'm not aware
10 of the TOC evaluating it either.
11 Q. Well, would it fall in your responsibility
12 to know whether, for example, water quality standards
13 in the Loxahatchee today are not in compliance with
14 the interim standards?
15 A. Routine data collection is generally done
16 out of the Water Resource Evaluation Department, and
17 I would expect that they would perform those
18 comparisons between the levels and the actual data.
19 Q. Well, do you have --
20 A. I don't view that as a research function, I
21 view that as a monitoring function.
22 Q. So you would have no protocol in place by
23 which they either promptly do the testing or promptly
24 analyze the test results or promptly refer to you for
25 further investigation?
176
1 A. I would not be involved in that.
2 Q. You would not be involved in that?
3 A. Directly. The monitoring -- the sampling
4 that was done, I know there was some sampling done as
5 a result of the discovery process in this, involved
6 around this administrative hearing. I am aware that
7 that sampling was done. I am aware that there were
8 samples sent to different labs.
9 Q. I apologize for the repetition, but who is
10 responsible for that? Is that Goforth?
11 A. No. No. That was -- no, there were -- oh,
12 I guess it was between the Department of Justice and,
13 I believe it was, the Florida Sugar Cane League.
14 Q. I'm asking who in the South Florida Water
15 Management District today knows whether water quality
16 standards, interim standards, are being met in
17 Loxahatchee?
18 A. Based upon the sampling that was conducted,
19 I don't know. I haven't seen that data.
20 Q. Well, I'm not asking you -- I understand
21 you haven't seen the data. I'm asking you who would
22 have seen it, if anybody has seen it?
23 A. I couldn't speculate as to who would have
24 seen it.
25 Q. There is no department that would have been
177
1 responsible or interested in that?
2 A. I said generally it would be the
3 responsibility of the Water Resource Evaluation
4 Department.
5 Q. Which is headed by whom?
6 A. Dr. Leslie Wedderburn.
7 Q. Wedderbur?
8 A. Wedderburn, W-e-d-d-e-r-b-u-r-n. I
9 analyzed some of the samples, some of the split
10 samples that were conducted.
11 Q. Would it be significant to you in your
12 research endeavors to know the results of any current
13 tests as to interim limits and compliance or not?
14 A. At the present time, our research
15 activities are focused and they are really using all
16 our available resources at this time. They are
17 focused either in the ENR project or they are focused
18 in the threshold work that is being conducted in 2A.
19 At this point in time, we are using the work in 2A as
20 a pilot study, and from that we'll probably then add
21 transects in 3A and the Refuge; but not at this time.
22 Q. Is any mercury investigation being done or
23 being participated in by the District at the moment?
24 A. I believe so, yes.
25 Q. And do you know what the drift of that
178
1 investigation is? What is the purpose of it?
2 A. I'm not familiar with the details of it. I
3 am aware that there are some -- there was some
4 sampling done at the ENR project and there may have
5 been some sampling done in other areas of the
6 conservation areas. I think that was done relatively
7 recently. I know we have a contract with DEP to
8 install on atmospheric deposition tower that is to be
9 used for monitoring mercury levels. I think that
10 would be located within the ENR project. And I
11 believe we applied for and have received approval,
12 although I don't know if there's been an approved
13 scope of work for some Section 319 money from DEP to
14 study mercury in the ENR project.
15 Q. Are there any tentative results known from
16 the mercury research?
17 A. The only results that I am aware of that
18 were verbally made, verbally communicated to me, ,
19 was I think, on the initial round of sampling in the
20 ENR project.
21 Q. And what was found initially?
22 A. I am not aware of any numbers, just general
23 results which, I believe, show that the outflow total
24 mercury was less than the inflow for that one
25 sampling date, and that the amount of that mercury
179
1 was -- I believe it was thought to be slightly higher
2 than the inflow for that one sampling date.
3 Q. Thank you, sir. Would it be fair to
4 characterize the settlement agreement and the SWIM
5 Plan as embracing a "no change" standard as regards
6 flora and fauna and the effects of nutrients upon
7 flora and fauna in the affected areas?
8 A. I'm sorry. You are going to have to be
9 more specific with your question.
10 Q. Well, would it be fair to say that you
11 participated in the negotiations which led up to the
12 text that expresses --
13 A. Yes.
14 Q. How do you remember the imbalance standards
15 as being expressed or translated in the settlement
16 agreement and in the SWIM Plan?
17 A. I can read it. I mean, I still don't
18 understand your question. How was it expressed?
19 Q. I'm sorry. Does the SWIM Plan recognize
20 that a change in the periphyton would be, in the
21 District's opinion, an imbalance of flora and fauna?
22 A. I would have to read.
23 Q. You don't remember?
24 A. I don't remember the exact wording in the
25 SWIM Plan on that subject.
180
1 Q. Well, I advise you to read it then. I'm
2 interested in knowing whether in any text of the SWIM
3 Plan there is any assumption or commitment there
4 expressed on behalf of the District that the term
5 "imbalance of flora and fauna" as related to, let's
6 say, Loxahatchee or indeed 2A means any change from
7 what is believed to be the pristine marsh standards,
8 the pristine marsh conditions in microbal
9 communities?
10 A. Okay. Well, I'd like to read that section
11 then and maybe ask you to restate the question
12 afterwards.
13 Q. Please. Sure. Try Section 1F. I think it
14 is in one of the settlement agreements.
15 A. I found a section that talks about that.
16 I'm not sure --
17 Q. Would you read it for us?
18 A. It is page 134 of Section 3, Research to
19 Interpret Class III Water Quality Standards Total
20 Phosphorus. "The purpose of the research will be to
21 determine water column total phosphorus
22 concentrations above which imbalances in populations
23 of the natural flora and fauna within the Everglades
24 will occur to determine the numerical interpretation
25 of the Class III nutrient determination for total
181
1 phosphorus. The program will include experimental
2 approaches to interpret the Class III nutrient
3 criterion regarding imbalances of flora and fauna.
4 Research will be conducted to determine if
5 concentration standards provide sufficient protection
6 against imbalance or whether limitations on
7 phosphorus loads into the Refuge are required. An
8 array of indices will be used to measure sensitivity
9 of the ecosystem to small changes in nutrients.
10 These will include nutrient cycling processes in the
11 basic components of the Everglades ecosystem, such as
12 a periphyton and other sensitive indicators of
13 nutrient enrichment. Research will begin no later
14 that July 1st, 1992 and a final report will be
15 completed by July 1st, 1997. Other Class III
16 water" -- well, that is another section. Should I
17 stop there or should I keep reading?
18 Q. I want you to find whatever satisfies you
19 that the agreement -- that the SWIM Plan either
20 states or does not state a policy decision in free
21 form action or otherwise by the District as to what
22 constitutes an imbalance of flora and fauna.
23 A. I just read what the SWIM Plan states.
24 Q. Well, that states what research is going to
25 be made. It doesn't state what -- or did I miss it?
182
1 Does it state at what level of microbal activity an
2 imbalance occurs, if it is affected?
3 A. The way I interpret it, what is written
4 here is that it does not do that. It does indicate
5 that there will be an array of indices that will be
6 used to measure sensitivity.
7 Q. Okay. Let me show you what appears to be a
8 memorandum by you dated August 17, 1992 to MacVicar,
9 Dempsey, Rhoads, Wedderburn, Markham and Quincey with
10 respect to a threshold study plan agreed to and
11 recommended by the TOC. I ask that it be marked
12 Exhibit 2.
13 (The document was marked
14 Petitioner's Exb. No. 2.)
15 BY MR. SMITH:
16 Q. Take a look at that please, sir.
17 Do you recognize the document generally?
18 A. Yes, I do. I didn't read the whole --
19 Q. I don't think it will be necessary for you
20 to read it all, but you're certainly welcome to.
21 What is that document?
22 A. It is as you just described.
23 Q. Okay. Having read it myself this morning,
24 I know that it contains some analysis and report by
25 you to the effect that -- concerning a proposed
183
1 threshold research program recommended by the TOC and
2 which, I gather, you were passing on for
3 consideration by your colleagues there at the
4 District; is that correct?
5 A. Yeah. The primary purpose was to -- was to
6 pass along the draft memorandum agreement.
7 Q. And what eventually happened? Let's pass
8 onto that momentarily.
9 A. With respect to the memorandum agreement?
10 Q. Yes. Yes.
11 A. The agreement has been under review by the
12 agencies represented on the TOC and also by EPA, and
13 I believe that the chairman of the TOC at the last
14 TOC meeting sent a copy transmitted by cover letter
15 to the agency heads requesting that that agreement be
16 executed.
17 Q. Well, did you recommend to your agency head
18 that it be executed?
19 A. I haven't been asked for my recommendation
20 yet. The TOC agreed that the memorandum agreement
21 should be sent to the agencies.
22 Q. You haven't evaluated that agreement?
23 A. Yes, I have read the agreement.
24 Q. Have you evaluated it from the point of
25 view of the District?
184
1 A. I have evaluated it from the perspective of
2 being a member of the TOC and as a staff person of
3 the District.
4 Q. Well, do you contemplate that this is going
5 to be entered by the District? You don't know?
6 A. I mean, I don't have the authority to
7 execute the agreement.
8 Q. Yeah, okay. Well, I understand research
9 and monitoring is to be designed by a committee of
10 scientists designated by the TOC under the settlement
11 agreement; is that correct?
12 A. The threshold plan -- there was a threshold
13 plan that was designed by two subcommittees of the
14 TOC with participation by other members of the
15 agencies.
16 Q. And it was recommended by the TOC?
17 A. It was agreed to by the TOC.
18 Q. And recommended to the respective agencies?
19 A. It was agreed to. I don't recall any sort
20 of formal recommendation to the agencies, no.
21 Q. Well, was it adopted by somebody?
22 A. It was agreed to that this forms a sound
23 scientific plan.
24 Q. When did that happen? Is that the same
25 plan?
185
1 A. It is attached.
2 Q. Okay;
3 A. Without reviewing it, I believe that this
4 is the plan that is attached.
5 Q. Well, this is an early draft of the plan
6 that you say has now been recommended by the TOC and
7 sent to the agency head; is that the idea?
8 A. No.
9 Q. Okay. Straighten me out.
10 A. The threshold plan -- I believe this is the
11 final version attached to the memo, but I don't know
12 for sure without doing a lot of checking. But I will
13 assume this is -- this was agreed to by the members
14 of the TOC that this forms a good scientific --
15 represents a good scientific plan to determine what
16 levels of phosphorus above which cause imbalances in
17 flora and fauna. It would form the basic scientific
18 information necessary for the Department to make that
19 determination. That was agreed to in this memo. I
20 indicated that it was agreed to at the July 10th, I
21 assume, 1992 TOC meeting.
22 The memorandum of agreement, which is
23 really what this memo that you referred to was
24 circulating for comments, was really the memorandum
25 of agreement.
186
1 Q. And what did the memorandum of agreement
2 cover? What was --
3 A. It basically -- this threshold plan, when
4 you read it, is comprehensive and there are a lot of
5 components to it, so it indicated which agencies were
6 going to have primary responsibility for making sure
7 all those components were carried forward and
8 executed. So it goes through and indicates what the
9 District's area of primary responsibilities are
10 within Everglades National Park.
11 Q. Well, what I understand you have just said
12 is in July, 1992 the TOC agreed that this was a good
13 plan and --
14 A. Yes.
15 Q. -- and adopted it.
16 A. I don't know. I wouldn't use the term
17 "adoption." They agreed it was a good plan.
18 Q. And what approval by the District was
19 necessary for this plan to come into effect? The
20 agreement that you are now speaking of that is
21 pending a year-and-a-half later?
22 A. It was agreed to that this forms a solid
23 scientific strategy to approach this problem.
24 Q. Agreed to by the TOC?
25 A. Yes.
187
1 Q. Did the District agree? I'm not speaking
2 of the District representative on the TOC. Did you
3 carry it to the District for agreement or did
4 somebody? Did the District agree to it?
5 A. I'll need to define what you mean by "the
6 District."
7 Q. I mean the Governing Board?
8 A. No?
9 Q. Did the plan go into effect?
10 A. The plan was agreed to in the sense that it
11 provides the strategy for attacking this problem and
12 that the District, even though the agreement has
13 not -- the memorandum of agreement has not been
14 executed, is carrying forward on a number of those
15 components as identified in the plan.
16 Q. And is that the first major research
17 category that you described to me as we opened here
18 this morning?
19 A. The threshold, yes. I'm sorry. The
20 nutrient transect study. Yes.
21 Q. In 2A?
22 A. Yes.
23 Q. And that's been going on for how long?
24 A. Well, there have been transects conducted
25 in 2A over many years.
188
1 Q. No. No. No. No. This study. How long
2 has work under this plan approved by the TOC in July,
3 1992 been going on?
4 A. I would say maybe approximately six months.
5 Something to that effect. The study's been slowly
6 scoped and phased in, so there is not probably a real
7 clear demarcation point for that.
8 Q. But do you, as an employee and manager for
9 the District and as the District representative of
10 the TOC, consider that that research requires no
11 further approval by the District in order to be
12 carried out?
13 A. I have the authority to direct the staff
14 and the department to conduct research that doesn't
15 require any additional approvals. If we have
16 executive contracts to help conduct some of that
17 work, then depending upon the monetary value of those
18 contracts it will require approval either by the
19 Executive Office or by the Governing Board.
20 Q. So, are you a representative on the TOC
21 from the District?
22 A. Yes, I am.
23 Q. And have you been for some time?
24 A. Yes. I have been the District's only
25 representative.
189
1 Q. So you consider that when the District
2 recommends a research program, that if you approve of
3 it and the TOC approves of it, that's all the
4 approval that the research itself requires
5 independent of financial authorization by the board;
6 is that correct?
7 A. Can you repeat the question?
8 Q. Yes, sir. Independent of the authority --
9 let me try again.
10 Aside from the board's exclusive authority
11 to spend money of the District above a certain
12 minimum figure, do you consider that your approval of
13 research approved by the TOC constitutes approval by
14 the District of that research or do you just consider
15 that it is not necessary?
16 A. After the threshold plan was agreed to by
17 the TOC, there were components of that that the
18 District -- that the Research Department took the
19 initiative on to execute. I mean to move forward
20 with. I would generally keep my superiors informed
21 of what those activities are, and they would be aware
22 that we were doing these types of work.
23 Q. Okay. Is that the best you can answer it?
24 A. Yes.
25 Q. All right. Now, on page 2 of this document
190
1 you recite in Section 1F, the agreement, the
2 settlement agreement defines imbalance of flora and
3 fauna and specifies that, quoting, "Numerical
4 interpretation of imbalance shall specifically
5 include an array of indices to measure sensitivity of
6 the ecosystem to small changes in nutrients, such as
7 nutrient cycling processes and the basic components
8 of the Everglades ecosystem, including periphyton and
9 other sensitive indicators of nutrient enrichment,"
10 and I show you a copy of the first three pages of the
11 settlement agreement where imbalance is defined in
12 part by the language that you've lifted and put into
13 your memorandum. I just want to show you that you
14 correctly quoted --
15 A. My memorandum has attached -- I only wrote
16 the first page; the cover memorandum. Attached to
17 that is the draft memorandum agreement and the
18 threshold plan as agreed to by the TOC.
19 Q. So what I quoted was out of the draft
20 memorandum of agreement?
21 A. No. If you can point to what you quoted,
22 it was on that page that was contained within the
23 document entitled Everglades Nutrient Threshold
24 Research Plan Research and Monitoring Subcommittees,
25 Technical Oversight Committee. That is what you
191
1 quoted from; not from my memorandum.
2 Q. Okay. Well, you approved the agreement as
3 part of the TOC.
4 A. I agreed that it formed a sound scientific
5 approach.
6 Q. So this is part of the recitations in the
7 agreement that is now pending before the Governing
8 Board; is that right?
9 A. I don't understand the question.
10 Q. Is the material that I quoted in the draft
11 agreement, which has been forwarded now to the
12 Governing Board?
13 A. To my knowledge, the document entitled
14 Everglades Nutrient Threshold Nutrient Plan has not
15 been forwarded to the Governing Board.
16 Q. Okay. What you say has been forwarded
17 recently to the Governing Board and on which your
18 comments have not been requested yet is a what?
19 A. There is a draft memorandum of agreement
20 that has been sent from the Chairman of the TOC to
21 the agency heads or directors.
22 Q. The effect of which is to do what?
23 A. Requesting that they expedite the
24 execution, the review and execution of that
25 agreement.
192
1 Q. The agreement does what?
2 A. The memorandum of agreement identifies
3 which agencies have lead responsibility in conducting
4 the components identified in the threshold plan.
5 Q. The threshold plan accurately quotes, in
6 the respect that I have quoted to you here orally on
7 the record, a portion of the definition of an
8 imbalance from the settlement agreement, does it not?
9 A. What you read from from the threshold plan
10 is part of what is contained in the settlement
11 agreement on this subject.
12 Q. Right. Right. So to revert to my original
13 question, does this mean to you that any change in
14 microbal activity in the Refuge traceable to nutrient
15 inflow from the EAA constitutes an imbalance of
16 natural flora and fauna?
17 A. In my opinion, it is the responsibility of
18 the Department to make that determination. Our role
19 in this effort is to collect valid scientific data to
20 provide to the Department or part of the data being
21 provided to the Department for them to make that
22 determination.
23 Q. Well, is it part of your responsibility to
24 tell the Department what you think that determination
25 ought to be?
193
1 A. I don't believe that is my personal
2 responsibility, no.
3 Q. Do you think that's the District's
4 responsibility?
5 A. The way I understand the process is that
6 the department openly solicits input from any and all
7 parties who wish to comment on that subject and they
8 have indicated that they'll take comments from the
9 District and from any other individual or party when
10 they make that formulation -- when they formulate
11 that determination.
12 Q. Well, is the District prepared to recommend
13 to the Department, based upon years of experience in
14 running this system, whether microbal changes -- any
15 detectable microbal change in the Loxahatchee shall
16 constitute an imbalance of natural flora and fauna?
17 Is the District prepared to make a recommendation to
18 the Department on that subject?
19 A. Beyond the fact that the District agreed
20 and signed the settlement agreement, I don't believe
21 that they have made any recommendation.
22 Q. All right. Now, were you the chief
23 participant on this subject, the most knowledgeable
24 participant on this subject in the negotiation of the
25 settlement agreement on behalf of the District?
194
1 A. I can't give you an answer because I'm not
2 aware of all the people that have participated in
3 those discussions.
4 Q. Well, do you recognize that there is a
5 considerable in applying the imbalance of natural
6 flora and fauna rule at the level of the periphyton
7 mat and applying it at the wading bird level? Do you
8 recognize that there is a considerable difference in
9 those two concepts?
10 A. The determination -- the Department makes
11 the determination as to what constitutes imbalance in
12 flora and fauna.
13 Q. You have no opinion? You can't answer my
14 question?
15 A. I am not going to speculate with an opinion
16 unless -- I mean, unless I was in a position to
17 evaluate information.
18 Q. I wasn't asking you which standard should
19 be adopted, I was asking you whether you recognize it
20 as it would have considerably different impacts to
21 treat damage to wading birds as an imbalance of
22 natural fauna and to treat damage to microbal or
23 changes in microbal activity as an imbalance in
24 natural flora and fauna. Do you recognize that gross
25 difference is all I'm asking.
195
1 A. You'll have to clarify what you mean by do
2 I recognize that. There is a gross difference. In
3 what -- I don't understand the context.
4 Q. Well, if the object is to reduce nutrient
5 inflow to a level that does not create further damage
6 to natural flora and fauna, further imbalance, does
7 not contribute to exacerbating any imbalance of
8 natural flora and fauna, it would seem to me to be
9 relevant, and I ask you would it not be relevant to
10 know at what level we are going to determine whether
11 an imbalance occurs, whether at the microbal level,
12 and any change in microbal activity constitutes an
13 imbalance, or at some higher tropic --
14 A. I would assume you would need to know what
15 level.
16 Q. Yeah. Has the District done any studies to
17 assist it in forming an opinion as to what level
18 ought to be taken as the decisive point of reference
19 in assessing the imbalance of natural flora and
20 fauna?
21 A. I have already indicated what research
22 activities the District either has underway or will
23 be implementing in the very near future that will
24 provide valid scientific data and information to the
25 Department to make that determination.
196
1 Q. That is what you described here this
2 morning?
3 A. Yes. I could describe it again if you'd
4 like, but I have described it this morning and
5 several times yesterday.
6 Q. Well, that research is predicated upon an
7 assumption that changes in the microbal activity does
8 constitute an imbalance, is it not?
9 A. I don't recall that being a specific
10 hypothesis that went into the design. I don't recall
11 the full range of parameters and substrates that are
12 being monitored, but it is a fairly exhaustive range,
13 and I don't recall whether or not it includes
14 microbal communities in a direct or indirect sense.
15 I mean, I just don't recall that.
16 Q. Well, do you consider that the District is
17 already bound to consider changes in the periphyton
18 community as an imbalance?
19 A. The District, to my knowledge, doesn't make
20 that determination. The Department makes that
21 determination. That is my understanding.
22 Q. Well, in your opinion, is the Department
23 already bound, in consequence of the settlement
24 agreement, to that?
25 A. I can't speak on behalf of the Department.
197
1 I don't represent them nor am I an employee of them.
2 Q. Well, were you present when this definition
3 was discussed in the technical group or was it
4 discussed?
5 A. I was present when there were discussions
6 of this subject, yes.
7 Q. And did anybody say, "Hold on. It ought
8 not to be at the periphyton matter at all, it ought
9 to be higher in the tropic scale?"
10 A. In a general sense, I remember discussions
11 about, you know, about what DEP has used to make
12 those determinations in the past versus what some of
13 the parties would want them to use in the future. I
14 mean, there were discussion along that general area.
15 Q. Well --
16 A. I don't recall any specific.
17 Q. Did you hear any bargaining over that?
18 A. There was a lot of discussion in order to
19 try to arrive at a consensus.
20 Q. And the consensus was as written here in
21 this paragraph, I take it, of the settlement
22 agreement?
23 A. I assume so, yes.
24 Q. And you agreed to it?
25 A. I was part of that. I mean, I
198
1 participated, not to a great degree, but to a small
2 degree to the dialogue.
3 Q. Did Mr. MacVicar agree to it? Who, on
4 behalf of the District, joined this consensus is what
5 I'm asking you. You said "to reach a consensus."
6 A. There were a number of people who
7 participated in this entire process.
8 Q. Who expressed your agreement to this
9 consensus in this definition that we are quoting
10 from, page 3 of the settlement agreement?
11 A. From my perspective, this represented an
12 area that was finally -- there was consensus among
13 the technical level at that point in time. You know,
14 there may have been discussions with other people and
15 the board finally agreed to what is in the settlement
16 agreement.
17 Q. We recognize that the board agreed to it.
18 Did anybody call to the board's attention, to your
19 knowledge, the policy implications of agreeing to
20 this definition?
21 A. I don't know. I didn't sit through all the
22 board meetings where this was discussed.
23 Q. Did you sit through any of it?
24 A. I sat through part of them, yes.
25 Q. Did you ever hear this policy discussed
199
1 before the board?
2 A. In a part of the board meetings I attended.
3 I just don't recall whether or not it was discussed.
4 It was a long time ago.
5 Q. Did you ever hear it discussed by anybody
6 in the District outside the bargaining that you
7 described with these people on the technical group?
8 Did you ever hear this definition discussed or
9 debated before the board?
10 A. I can't recall it being -- I don't recall
11 the specific incidence where it was discussed.
12 Q. Did you or Mr. MacVicar or anybody at the
13 District participate in this technical group that was
14 negotiating to achieve this technical and scientific
15 consensus on the matters that ought to be the
16 settlement agreement? Did you initiate this
17 definition in those discussions?
18 A. Did I personally initiate the definition?
19 Q. That isn't what I said.
20 A. Then you need to repeat the question.
21 Q. Did you or Mr. MacVicar or any of the other
22 District representatives initiate this definition?
23 A. I don't recall who initiated. The
24 definition was the result of a lot of discussions in
25 trying to reach a consensus, so --
200
1 Q. Well, I'm asking you who initiated it?
2 A. I don't recall who initiated the
3 discussions on the subject. I don't recall.
4 Q. Was it inevitable that there be a consensus
5 on what would constitute an imbalance of natural
6 flora and fauna?
7 A. I think that was the process we were
8 involved in; was to try to reach, in the group that I
9 was involved in, a technical consensus on as many
10 issues as we could.
11 Q. Okay. Thank you.
12 Let me show you three pages that I'll ask
13 be marked as Exhibit 3. It is the cover page of the
14 Final Draft SWIM Plan, Volume II, Planning and
15 Implementation, dated September 28, 1990, page 58 and
16 page 59.
17 (The document was marked
18 Petitioner's Exb. No. 3.)
19 BY MR. SMITH:
20 Q. I'll show you the entire document here.
21 Now, this draft SWIM Plan, would you prefer
22 to work with the document?
23 A. I'd like to just have them both.
24 Q. This was a draft SWIM Plan put out by the
25 District before they -- barely a year before the
201
1 settlement agreement, was it not?
2 A. That is what is indicated by the date. I
3 don't know what you mean by "put out."
4 Q. It was published, it was printed, it was
5 distributed, it was adopted.
6 It wasn't adopted by the board?
7 A. I don't believe it was adopted.
8 Q. No? Okay. Well --
9 A. It was staff planning. It was --
10 Q. Did you print it?
11 A. Yes, it was printed.
12 Q. Did you send it to interested parties?
13 What did you do with it?
14 A. I don't recall the specifics of how this
15 was handled. I would rely on Paul Whalen. I mean,
16 he was the person. I'm not sure it was even Paul at
17 this point in time.
18 Q. Did you participate in -- did you make any
19 contributions to this draft SWIM Plan?
20 A. I probably did.
21 Q. Well, look at the bottom of page 58 and top
22 of page 59 in which, just to paraphrase briefly for
23 the court reporter's record, is recited generally
24 that formal comments that had been received on the
25 plan indicate that descriptions of Everglades water
202
1 quality conditions presented elsewhere may have led
2 others to the interpretation that violations of state
3 water quality standards have occurred. It further
4 recites that District staff have examined all
5 available quality and biological data, and states
6 that analyses are summarized in Volumes III and IV.
7 It states that however, these records are not
8 extensive or continuous enough to document whether
9 water quality violations have occurred.
10 Additionally, such a conclusion should not be drawn
11 without first considering numerous intertwined
12 philosophical, scientific and legal issues, which
13 goes on to ask some questions. For example, what is
14 the intent of the standards, how should they be
15 specifically defined, to what degree must conditions
16 be compromised and for how long to constitute a
17 violation, what are the causative links, if any, what
18 is the legal responsibility of the Corps of
19 Engineers, what causative links may exist among
20 factors other than water quality adversely affecting
21 the plan, recommends a series of research projects to
22 better define the effects, et cetera, et cetera.
23 Have I, in a very general way, correctly
24 paraphrased the major thoughts of that section of
25 Exhibit 3?
203
1 A. It was a paraphrase of it.
2 Q. Is it generally accurate?
3 A. Generally, yes.
4 Q. All right. So is it true that in
5 September, 1990 the District was proposing some
6 research to have a technical and scientific basis to
7 permit consideration of the philosophical policy,
8 technical questions that were raised there? Is it
9 true that the District was proposing research?
10 A. As indicated in here, the plan, as written
11 by staff, makes that recommendation. But if you're
12 talking with respect to the District and the
13 Governing Board, they did not approve the plan.
14 Q. No?
15 A. So, in that context, the District did not
16 recommend that.
17 Q. Okay. The staff recommended some research
18 to help answer those questions?
19 A. Staff of the District prepares the plan,
20 not recommends, yes.
21 Q. And were some research programs to help
22 answer those questions recommended?
23 A. That is what it indicates on page 59. I
24 don't recall. I have to look at the exact plans and
25 projects that were recommended.
204
1 Q. All right. What were they?
2 A. Could you restate the question now?
3 Q. I asked you did the staff recommend some
4 research to help answer some of those technical,
5 scientific and policy questions, and you said you
6 have --
7 A. There are a number of projects identified
8 in the plan.
9 Q. And were some of them calculated to help
10 answer those questions?
11 A. A number of them could provide information
12 that would help bear on that.
13 Q. Were those projects carried out before
14 July, 1991?
15 A. I don't recall with that sort of precise
16 chronology which of these things may or may not have
17 been implemented before or after that date. There
18 are too many projects here; some of which I may not
19 be directly familiar with.
20 Q. Well, were these projects such that they
21 would have come under the general supervisory
22 responsibility of the Director of Research and
23 Evaluation?
24 A. Director of Research and Evaluation.
25 Q. Well, that is what you were, wasn't it?
205
1 A. No. I am currently Director of the
2 Department of Research. That department did not
3 exist in September 28, 1990.
4 Q. What position did you occupy in May, 1991?
5 A. I was Director of the Lower District
6 Planning Division. There was a -- let me try to help
7 here. There was a different department structure at
8 that time.
9 Q. Okay.
10 A. And there was a Department, I believe, of
11 Research and Evaluation. I was not in that
12 department or in charge of that department.
13 Q. Well, is the department that you are in
14 charge of today such that had this research been
15 recommended by staff today instead of in September
16 1990, it would have fallen within your general
17 supervisory responsibility?
18 A. Parts of it probably would have and other
19 parts would not.
20 Q. Okay. My question to you is, regardless
21 then of your organizational chart, is there anybody
22 in the District besides you who knows better than you
23 whether any of that research was conducted between
24 the time it was proposed by staff, presumably in
25 September, 1990, and the time you and the others went
206
1 to the technical group to reach a technical and
2 scientific consensus on the matters that are
3 discussed there on page 58?
4 A. In my role as Director of the Lower
5 District Planning Division, I wouldn't be familiar
6 with that. The work that you are indicating would
7 have been conducted out of the Department of Research
8 and Evaluation.
9 Q. Okay. Well, had it been done, you
10 certainly would have known about it in May of 1991,
11 wouldn't you?
12 A. Not necessarily.
13 Q. Well, if in May of 1991 you were asked by
14 the Executive Director to go with him to reach a
15 technical and scientific consensus on at what level
16 of microbal or higher activity an imbalance of
17 natural flora and fauna should occur, wouldn't you
18 have wished to have such research as this document
19 recommended?
20 A. I don't believe I recall the Executive
21 Director giving me those sorts of instructions.
22 Q. Okay. All right. At any rate, you didn't
23 have any such research when you went to this meeting
24 and agreed to this consensus that we have described
25 here with this definition, did you?
207
1 A. I didn't have the research?
2 Q. Uh-huh.
3 A. The results of the research?
4 Q. Right.
5 A. I'm not sure what research was being
6 conducted. That was not my area of responsibility.
7 Q. Okay. Well, what research, if any, did you
8 depend on in joining the consensus to define
9 imbalance of natural flora and fauna as including
10 imbalance to periphyton?
11 A. One of the primary bodies of research that
12 I recall that was done prior to that date was done by
13 Dave Swift, who conducted periphyton studies in, I
14 believe, in Water Conservation Area 2A that
15 generally, I think, indicated nutrients cause changes
16 in the periphyton community.
17 Q. Dave Swift was associated with whom?
18 A. South Florida Water Management District.
19 Q. And when did he do that research?
20 A. I don't recall the date.
21 Q. Can you look in the -- are you referring to
22 his 1987 work? I am showing you the bibliography to
23 the SWIM Plan as adopted in 1992.
24 A. Yes.
25 Q. Well, notwithstanding Swift's work in 1987,
208
1 the staff nevertheless in 1990 was recommending
2 further research on the questions that are described
3 there on page 58, would you not agree?
4 A. Page 58 -- oh, wait a minute. I'll need to
5 take a minute and read.
6 Q. Page 59?
7 A. Page 58.
8 Q. What I read from was the bottom of page 58,
9 goes over to page 59.
10 A. Okay. Okay. We are back to that,
11 "contained within the SWIM Plan is a series of
12 research projects."
13 Q. Yes.
14 A. Okay. And so the question --
15 Q. The question was, notwithstanding Swift's
16 work in 1987, the staff was recommending research
17 projects such as you have alluded to in the back of
18 this volume to help answer these questions which are
19 stated at the top of page 59?
20 A. The staff was recommending projects to be
21 conducted as identified in the SWIM Plan and some of
22 that information could be used to address some of
23 those questions.
24 Q. Okay. And I'm simply asking you, you
25 didn't have any of that work when you went in May
209
1 1991 to reach a consensus on these questions, did
2 you?
3 A. We didn't have the results of any studies
4 that weren't conducted, no.
5 Q. Okay. Well, did you rely on David Swift's
6 1987 work when you reached a consensus in May 1991 on
7 these questions, including the definition of
8 imbalance? Did you yourself consciously rely on
9 Swift's work?
10 A. That forms part of my general
11 understanding; that nutrients can cause changes in
12 the periphyton community. That's part of my general
13 knowledge.
14 Q. All right. Assuming then that nutrients
15 can cause changes in periphyton community, did you
16 conclude from that that a change in a periphyton
17 community constituted an imbalance of natural flora
18 and fauna such that a violation of the water quality
19 standard would occur?
20 A. That was there was a consensus reached on
21 that, it was primarily DEP who interacted on that
22 issue.
23 Q. Well, you joined the consensus, did you, or
24 did you just defer to DEP?
25 A. I would say it was primarily deferred to
210
1 DEP.
2 Q. Okay. All right.
3 A. I mean, that is their area of
4 responsibility.
5 Q. Thank you.
6 Now, why didn't the board adopt that
7 so-called final draft September 28, 1990?
8 MS. CLEMENTS: Objection; speculation.
9 BY MR. SMITH:
10 Q. Do you know?
11 A. I don't recall.
12 Q. You don't recall?
13 A. Not offhand, no.
14 Q. Was it scheduled for consideration by the
15 board?
16 A. I don't recall precisely. I would just be
17 guessing. I'd have to review documents.
18 Q. Look back on page 58 under the heading
19 Macrophytes and Wildlife Habitat. You'll see a
20 reference to the predominantly sawgrass marshes in
21 WCA-2A. Do you see that?
22 A. Which paragraph? Okay.
23 Q. Do you see it?
24 A. I'm reading it. Okay. What was the
25 question?
211
1 Q. I am just simply asking do you see the
2 reference to cattail abundance occurring in areas
3 that previously were predominantly sawgrass marshes
4 in WCA-2A? Do you see that reference?
5 A. I am still looking for it. Is it the first
6 sentence, "Field observation by District scientists?"
7 Q. Yes. Yes. Yes.
8 A. Yes, I see it.
9 Q. Did you write or contribute to that
10 sentence?
11 A. I don't recall.
12 Q. Is the sentence true?
13 A. It is my general understanding that is
14 true.
15 Q. Is this the same area where the transect
16 studies are now being carried out in 2A?
17 A. The transect studies would cross that area
18 generally.
19 Q. Yeah. And whose principal responsibility
20 is it proposed that, by the threshold plan and the
21 allocation of responsibility, that this study, this
22 particular study, would be carried out?
23 A. The District and DEP have taken the lead in
24 that study.
25 Q. So this is definitely within your
212
1 responsibility?
2 A. Currently, yes.
3 Q. And what is the concern there that cattail
4 is replacing indigenous sawgrass communities?
5 A. The concern is expressed in the first
6 sentence.
7 Q. Yes.
8 A. Yes.
9 Q. And is that the concern now?
10 A. I believe generally that is still a
11 concern.
12 Q. Isn't it a fact that sawgrass was an
13 invader species in 2A at that point?
14 A. I don't understand the question.
15 Q. Do you know what an invader species is?
16 A. How are you using the term?
17 Q. I am talking about a new species that takes
18 over from a species that was there before. As
19 cattail is regarded as an invader species in 2A
20 today, wasn't sawgrass previously an invader species?
21 A. I am not going to speculate.
22 Q. You don't know?
23 A. That is not an area of expertise that I
24 have.
25 Q. Did you write this paper in October 1984,
213
1 Water Quality and Nutrient Loading Analysis of the
2 Water Conservation Areas, 1978 to 1983?
3 A. Could I see the paper? I was one of three
4 authors.
5 Q. Well, without going into the details of
6 that, can't you, sitting here today, tell me whether
7 or not you believe that sawgrass is the native
8 historic dominant species at the northern limits of
9 2A or not?
10 A. I am not going to speculate. That is not
11 an area of my expertise.
12 Q. Well, what about Loxahatchee? Do you
13 regard sawgrass as the authentic native vegetative
14 characteristic of the Loxahatchee?
15 A. I am not going to speculate. That is not
16 my area of expertise.
17 Q. You don't know?
18 A. I am not going to speculate.
19 Q. Have you ever made the assertion that
20 sawgrass is the native authentic vegetative species
21 dominant in the Loxahatchee or in 2A?
22 A. I don't recall whether or not I have ever
23 indicated that. I just don't recall.
24 Q. Well, if you did you did, it as a matter of
25 speculation; is that what you are saying? If you
214
1 won't tell me today whether that is so or not --
2 A. I don't recall whether or not I have done
3 it in the past.
4 Q. Well, would it have been speculation if you
5 did do it?
6 MS. CLEMENTS: Objection.
7 THE WITNESS: That is hypothetical.
8 MS. CLEMENTS: He doesn't recall this and
9 this line of questioning is argumentative.
10 THE WITNESS: I don't recall. I'm not
11 going to --
12 BY MR. SMITH:
13 Q. The Director of Research for the Water
14 Management District doesn't recall whether he's ever
15 asserted that sawgrass is the authentic native
16 vegetation for 2A?
17 MS. CLEMENTS: Objection.
18 BY MR. SMITH:
19 Q. Is that --
20 MS. CLEMENTS: If you could show it to him,
21 he will confirm whether he said it or not.
22 THE WITNESS: I don't recall one way or the
23 other.
24 BY MR. SMITH:
25 Q. Having said it? Have you seen publications
215
1 of the District that assert that sawgrass is the
2 authentic Everglades vegetation in this area?
3 A. There may be. I just don't recall.
4 Q. You don't recall whether that is so or not?
5 A. There may be District publications to that
6 effect. I don't recall them offhand.
7 Q. Did you reach a technical and scientific
8 consensus in the technical group that that was so?
9 A. I really don't recall that as being a topic
10 of discussion. It may have been, but I don't recall.
11 Q. Why is it of concern that sawgrass is being
12 invaded by cattails in 2A if sawgrass was itself an
13 invader species?
14 MS. CLEMENTS: Objection. He says that he
15 doesn't realize or has never stated anything as
16 to sawgrass being an invader species. He is not
17 an expert in that area.
18 MR. SMITH: Okay. I'm asking him another
19 question now.
20 BY MR. SMITH:
21 Q. The premise of the work, the research work,
22 that the TOC has authorized and that you have, as a
23 member of the TOC, approved and in behalf of the
24 District have undertaken primary responsibility for
25 subject to this agreement being executed is to carry
216
1 out transect work in 2A; correct?
2 A. The District is conducting transect work in
3 2A.
4 Q. And the premise of that is that sawgrass is
5 being invaded by cattails, and that is bad; isn't
6 that so?
7 A. I don't believe that is the premise of the
8 study. I have never read that in any of the material
9 describing that study to be a premise.
10 Q. Well, do you consider it bad that cattail
11 is -- you yourself, sitting here today -- is it bad
12 for the ecosystem that sawgrass invades cattail in
13 the northern part of 2A?
14 MS. CLEMENTS: Objection. He said he is
15 not an expert in this area. He is not going to
16 speculate.
17 THE WITNESS: I am not going to offer an
18 expert opinion in this area.
19 BY MR. SMITH:
20 Q. Who should I ask in the District?
21 A. Who should you ask?
22 Q. Yeah.
23 A. With regard --
24 Q. Who should I ask the question -- to whom
25 should I address the question in the District is the
217
1 replacement of sawgrass by cattail in the northern
2 part of 2A bad for the ecosystem?
3 A. Questions generally related to that, one
4 person that may be qualified to answer would be Steve
5 Davis.
6 Q. Okay. You have no opinion; is that the
7 idea?
8 MS. CLEMENTS: Objection. He is not here
9 to give an opinion. He is not being offered as
10 an expert.
11 MR. SMITH: Well, whether he is an expert
12 or not, I would like his opinion unless you tell
13 him not to answer.
14 BY MR. SMITH:
15 Q. What is your opinion?
16 A. Restate the question.
17 Q. Is it bad for the ecosystem in the northern
18 part of 2A for cattail to invade sawgrass
19 communities?
20 MS. CLEMENTS: Objection. How are you
21 defining "bad?" Is it an imbalance, is it
22 something different from past history?
23 BY MR. SMITH:
24 Q. Bad in any sense.
25 A. It is my general understanding that there
218
1 are adverse changes caused by dense monocultures of
2 cattail.
3 Q. Do you believe that dense monocultures of
4 cattail are preferable or do you believe that dense
5 monocultures of sawgrass are preferable to dense
6 monocultures of cattail when both are invader
7 species?
8 MS. CLEMENTS: Objection.
9 THE WITNESS: I don't know how to answer
10 the question. You have a presumption in there
11 that I'm not qualified to give an opinion on.
12 BY MR. SMITH:
13 Q. Okay. All right.
14 A. Dealing with whether or not they are
15 invader species.
16 Q. Well, do you acknowledge that the District
17 is committed to a course of action that assumes that
18 a dense monoculture of invader sawgrass is better for
19 the ecosystem than a dense monoculture of invader
20 cattail?
21 A. I can't answer the question for the same
22 reason I just gave.
23 Q. Have you read the vegetative history of the
24 Everglades?
25 A. Can you cite a specific report?
219
1 Q. Anybody's. Anybody's report. There is a
2 lot of the literature on the subject of the
3 vegetative history of the Everglades, isn't there?
4 A. I don't know if there is a lot or a little.
5 It is a relative term.
6 Q. What about the work of John H. Davis,
7 Junior, published in 1943? Are you familiar with
8 that?
9 A. Can you show me the reference?
10 Q. Sure. I am showing you Geological Bulletin
11 Number 25, John H. Davis, Junior. Ph.D, Research
12 Assistant, Florida Geological Survey, State of
13 Florida, Department of Conservation, Tallahassee,
14 1943. Are you familiar with that work?
15 A. I am familiar with the citation. I have
16 never read this.
17 Q. Okay. Thanks a lot.
18 A. Excuse me. At some point in time I need to
19 take a break, whenever it is convenient.
20 Q. I have got one more little line of
21 questioning and we'll take a break or --
22 A. It is up to you. Depends on how long the
23 questioning is.
24 Q. I am going to show you and ask you to
25 identify, and we'll have these marked, a document --
220
1 these are documents dated June and July 1991 and are
2 successive drafts of the settlement agreement and
3 portions of it. I am referring now to --
4 A. Okay. Can we take the break now because
5 I'll probably have to read the information.
6 Q. Sure. Sure.
7 (The documents were marked
8 Petitioner's Exb. Nos. 4, 5, 6, and 7)
9 MR. SMITH: First is a communication from
10 Mike Soukup to Tony Federico, 6/14/91, looks
11 like eight pages; next is 18 pages from Tony
12 Federico to Richard Harvey, June 17, '91 -- I
13 guess these are all faxes -- next is a two-page
14 fax from Richard Harvey to Tony Federico,
15 undated on the first page but the second page
16 bears a date June 20, 1991; and finally a 15
17 page fax from Federico to Robson, July 9, 1991.
18 I ask that they be marked successive numbers.
19 BY MR. SMITH:
20 Q. I have handed you, Mr. Federico, Exhibits
21 4, 5, 6 and 7 for identification, which have been
22 identified on the record. Do you recognize those as
23 draft documents prepared and either received or sent
24 by you in progress of the negotiation between May
25 21st and July 11, 1991 with respect to the settlement
221
1 agreement?
2 A. Two of the documents indicate they are from
3 me. This looks like my secretary's handwriting, but
4 I assume I told her to transmit those. The other two
5 are ones that indicate that I received them.
6 Q. Did they relate to the subject that I
7 described?
8 A. Settlement agreement?
9 Three of them -- I guess this number 4 --
10 Exhibits 4, 5 and 7 appear to relate to the
11 settlement agreement. On Exhibit 6, you need to be a
12 little more specific what you mean by "relate to the
13 settlement agreement."
14 Q. Okay. What is Exhibit 6?
15 A. Exhibit 6 is a fax. It has a table
16 attached of, apparently, definitions.
17 Q. Seems to be in the format characteristic of
18 the draft SWIM Plan, would you agree?
19 A. The SWIM Plan uses a similar format, yes.
20 Q. Is it numbered or otherwise identified as a
21 draft of a page for SWIM Plan Draft? No?
22 A. I don't see any identification to indicate
23 what --
24 Q. Well, set that one aside, please.
25 The other three, taking the earliest one, I
222
1 guess it is number 4, do these reflect the practice
2 of the technical group of doing successive drafts of
3 different stages and distributing those drafts among
4 each other? Is that what the practice was?
5 A. I think it was a process of exchanging
6 written material as here, but is also one of just
7 having a dialogue without the exchange.
8 Q. Do you happen to know at what point in time
9 the definition that we have spoken about earlier of
10 imbalance was decided upon?
11 A. I don't recall a specific time.
12 Q. Exhibit 5 bears some handwriting on bates
13 page 398. Can you identify the handwriting?
14 A. No. I can't.
15 Q. That appears to be the first document among
16 those in that collection. At least that refers to
17 the Technical Oversight Committee by hand written
18 lineation in the typewritten lines. I'm not asking
19 to you confirm that, but do you have any particular
20 recollection of when that concept came into existence
21 of the Technical Oversight Committee? Sometime
22 obviously during the negotiations. But, I you can't
23 say when?
24 A. No. I can't say when.
25 Q. Now, Exhibit 7, dated July 9, pretty close
223
1 to the final draft of July 11, contains on page
2 appendix B2 some underlining. In the regime that you
3 were following, did underling represent, in retyped
4 drafts, new items added?
5 A. To my understanding, that is the general
6 practice in editing documents. Beyond that, I don't
7 know.
8 MR. SMITH: Okay. I don't have any other
9 questions.
10 Oh, wait a minute. Excuse me, please. I
11 beg your pardon. May I come back with this one?
12 BY MR. SMITH:
13 Q. Let me show you two pieces of paper dated
14 October 21, 1991 and November 4, 1991, memoranda from
15 Gary Goforth to various people, including you,
16 concerning the water treatment areas, and ask you if
17 you can identify those as memoranda you did receive
18 from the author.
19 A. One of the documents is not identified. It
20 says it is to a distribution. Says "to
21 distribution." There is not an attached distribution
22 list, so I don't know whether or not --
23 Q. There is a list of people on it.
24 A. But that is not the distribution list.
25 Q. All right. Have you ever seen it before?
224
1 A. I don't specifically recall.
2 Q. Okay.
3 A. But it wouldn't be unusual for me to get
4 it.
5 And the other one, I assume I received it
6 because I was on the list. But again, I don't recall
7 the specific document.
8 MR. SMITH: I ask those be marked as
9 successive exhibits, please.
10 (The documents were marked
11 Petitioner's Exb. Nos. 8 and 9)
12 MR. SMITH: Now I have no questions.
13 MR. BLANK: All right. Well, I guess it is
14 my turn for awhile.
15 CONTINUED DIRECT (Tony Federico)
16 BY MR. BLANK:
17 Q. Let me show you a copy of Appendix E to the
18 March '92 SWIM Plan, which we have marked at Exibit
19 10.
20 (The document was marked
21 Peitioner's Exb. No. 10.)
22 BY MR. BLANK:
23 Q. Can you tell me if that appears to you to
24 be a correct copy of Appendix E?
25 A. Without literally comparing it, it appears
225
1 to be.
2 Q. If you feel more comfortable, you can use
3 the appendix in the bound copy of the SWIM Plan. I
4 want to return to the Loxahatchee limits for awhile
5 and discuss with you more issues there.
6 A. Yes.
7 Q. Can you tell me what role you played in
8 drafting the language in Appendix E that appears on
9 pages E-16 and E-17?
10 A. I wasn't the author of these two pages.
11 Q. Do you know who was?
12 A. I believe it was Doug Robson.
13 Q. Who interfaced with Dr. Robson with regard
14 to this language from the District?
15 A. I had some interface with him, but I'm not
16 sure if I was the only person.
17 Q. All right. On page E-17, the third
18 sentence which starts with the word, phrase,
19 "Excessively low stage," do you see that sentence?
20 A. Yes.
21 Q. "Excessively low stage introduces potential
22 biases in the field process of collecting a water
23 sample from a helicopter, while also impairing
24 precision through missing values." Did you assist
25 Dr. Robson in writing that language?
226
1 A. I don't recall assisting him, no.
2 Q. Do you know what is meant -- I'm having
3 difficulty understanding how excessively low stage
4 would introduce a bias in the field process of
5 collecting a water sample from a helicopter. Can you
6 explain that to me?
7 A. It's my general understanding that the
8 sample collection was done by a helicopter without
9 landing and so there had to be some sort of water
10 collection device lowered from the helicopter to
11 collect the sample. If the water was very low when
12 that sampling device entered the water column, it
13 could stir up some of the bottom sediments, which to
14 my understanding tends to have higher phosphorus
15 concentrations in them. They have a lot of
16 particulate material that has phosphorus in that, so
17 that could bias towards the high side.
18 Q. What would tend to stir up the bottom
19 sediments?
20 A. As I indicated I guess it was yesterday, I
21 never participated in a field trip, but if the
22 sampling was done by a hovering helicopter, you would
23 have to obviously lower a sampling device into the
24 water column, and if the water was very shallow when
25 that device entered the water column, it would also
227
1 disturb the bottom sediments.
2 Q. Well, wouldn't the rotor wash of the
3 helicopter also have a tendency to stir up bottom
4 sediments as it was hovering while the device was
5 lowered?
6 A. That is another possibility, too. Another
7 potential source of bias.
8 Q. Dr. Robson wouldn't have had any personal
9 knowledge of this issue, would he?
10 A. I couldn't speak for his knowledge. If you
11 are asking me whether or not he went on those field
12 trips, I would say no.
13 Q. That was going to be my next question.
14 A. No. But to what extent he has knowledge of
15 how it was conducted I don't know.
16 Q. Well, someone from the District, I am
17 assuming, would have had to advise Dr. Robson
18 concerning this language. This is not something that
19 he would have just --
20 A. Yes, I would assume somebody would have.
21 Q. -- included. To the best of your
22 recollection, that individual was not you; is that
23 what you're saying?
24 A. I don't recall whether or not it was me or
25 somebody else or -- I mean, Dr. Robson did interact
228
1 with a number of District staff and he could have
2 interacted with people that I had no knowledge of. I
3 don't know what his basis is, whether or not it was
4 just from me or not from me.
5 Q. All right. Would there have been any bias
6 in the field process of collecting the water sample
7 at low stage if the helicopter had landed and then
8 the sampler walked out from the helicopter and
9 collected the sample?
10 A. I think, depending on how that was done, it
11 would minimize or eliminate a potential bias due to
12 the turbulence caused by the helicopter blades. It
13 may or may not eliminate the bias by inserting the
14 sampling device into the water column, depending upon
15 the depth of the water.
16 Q. But you construe this language in
17 Appendix E to relate to biases that would occur from
18 sampling out of the helicopter, lowering a device
19 into the water from a hovering helicopter; is that
20 correct?
21 A. It seems my general understanding is that
22 is how it was done. But that may not have been how
23 it was done. I would have to review -- if there is,
24 you know, documentation and I could review the
25 documentation on how that sampling was done, it would
229
1 help.
2 Q. Okay. You mentioned in your testimony
3 yesterday that in deriving the interior marsh limits
4 for the Refuge, that an additional sampling date was
5 included in the base line year calculation to give a
6 full hydraulic year. Did I understand that
7 correctly?
8 A. I think I indicated I seem to recall that,
9 but I'd have to review the documents to see if that
10 was actually the case. If you have something for me
11 to look at --
12 Q. Well, yeah, I think it is in Appendix E. I
13 think on page E-22, Table 9 on page E-22, if I
14 understand it correctly, the first five sampling
15 dates, that would be June of '78 through May of '79,
16 were utilized to determine the base line year and
17 then the sampling dates beyond that period were all
18 adjusted back to base line conditions. I wonder if
19 that's your understanding of the way that process
20 worked.
21 A. It's been a long time since I looked at
22 this. Could I just take a few minutes?
23 Q. Sure.
24 A. Okay. If you don't mind repeating the
25 question now.
230
1 Q. Well, yeah. If you look at the language at
2 the top of page E-20, the first sentence --
3 A. "Model development as described in Appendix
4 III."
5 Q. Yes. "To exploit the inverse relationship
6 between TP and stage resulted in a simple linear
7 model incorporating stage and a base-year indicator
8 variable allowing TP" -- I'm not sure how that reads.
9 A. Allowing the log of the total phosphorus
10 concentration.
11 Q. Okay. "On any date at any stage to be
12 adjusted back to base year conditions." And my
13 question is, what sampling dates were utilized to
14 determine base year conditions?
15 A. I believe on page E-16 it indicates that,
16 the last sentence, first paragraph, "Total phosphorus
17 concentrations during this POR," which is period of
18 record, "will be adjusted to a base period defined by
19 the first 12 months of the POR."
20 Q. Okay. So --
21 A. First 12 months. So that would include --
22 Q. That would include the May '79 sampling
23 period?
24 A. Yes.
25 Q. All right. Now, would you look at page
231
1 E-18, and this is Table 6, which is the data base for
2 the Loxahatchee at 16 interior marsh stations on 16
3 dates, and so this table includes, I believe, all of
4 the data collected during the period from June of '78
5 through July of '83; isn't that correct?
6 A. I believe so, yes.
7 Q. So on this table we have 16 stations and 16
8 sampling dates; correct?
9 A. Yes.
10 Q. All right. And down at the bottom we have
11 the average stage at gauges CA1-79 and 8C; correct?
12 And we have 16 stage readings for that period.
13 A. Yes.
14 Q. And there is a sampling event that occurred
15 in March of '79, which is five lines down on either
16 the stage level or the data base level; correct?
17 A. Yes.
18 Q. So that sampling date would have been at
19 least closer to the OFW base line period than the
20 5/'79 date, which was utilized as part of the base
21 line year; is that correct?
22 A. If the OFW base line year was March '78 to
23 April '79. I guess April falls in between March and
24 May. I'm not understanding your question.
25 Q. Well, what I am wondering is why the
232
1 decision was made to use the May '79 date as a part
2 of the base line calculation for Loxahatchee but not
3 use the March '79 date?
4 A. It indicates on page E-17 towards the
5 bottom part of that paragraph, "The lowest stage
6 total phosphorus concentration data in the period of
7 record and on any future sampling dates are therefore
8 of dubious quality and are better excluded both in
9 developing levels and testing for compliance. This
10 exclusion is implemented here by establishing a
11 threshold stage of 15.42 feet mean sea level for
12 acceptance of a sampling date in the period of record
13 and in future compliance monitoring record," so that
14 sampling date of March '79 was below that threshold.
15 It was 15.21 feet and the threshold of 15.42 feet,
16 therefore it was excluded.
17 Q. Can you give me a little bit of history
18 about how this concept of excluding stations and
19 sampling at low stage came about? Who suggested it
20 and how was a decision made to use 15.42 feet instead
21 of some other number?
22 A. I think, to give you a general indication
23 of the nature of the discussion, I think it would be
24 hard for me to specifically I had identify which
25 individuals made what kind of comments; but my
233
1 understanding is the concept is at low stages in the
2 Refuge, generally below that number of 15.42, there
3 is not continuous -- the water is not continuous over
4 the marsh, that it is -- there are pockets of water,
5 pools of water in areas that don't have water, and
6 that the water tends to be shallow, and that those
7 pockets of water may not be representative of
8 external influences, and it may be shallow, and they
9 would also be very contaminated. So I think it would
10 generally be the concept of would you want to use
11 data when there was some reasonable expectations that
12 there would be water continuously over the marsh and
13 not just shallow pockets of water?
14 Q. Why would a shallow pocket of water be
15 contaminated?
16 A. It is my general understanding that being
17 that the stage was low, those would be very shallow
18 and it would be easier to contaminate the sampling.
19 Q. By contamination, you mean picking up?
20 A. The stirring up of sediments, yes.
21 Q. Okay. But my question is, what kind of
22 analysis was done to decide on a stage level of 15.42
23 as a threshold stage below which previous data would
24 not be utilized?
25 A. I think it was basically a combination of
234
1 looking at the relationship between the concentration
2 and stage and general understanding that at stages it
3 was indicated during the discussions that stages --
4 and I don't recall the exact level, but I assume it
5 was something around that level -- that you would
6 have very shallow, discontinuous pockets of water at
7 some of these stations.
8 Q. My question is, how did you know that? How
9 did you know when you got --
10 A. I think it was primarily relying upon
11 Dr. Maffei's experience, and I do recall discussions
12 dealing with a model of the Refuge -- I believe it
13 was maybe by Dr. Richardson, but I could be wrong --
14 a hydrologic model of the Refuge.
15 Q. So it was Dr. Maffei then that said that
16 when we have got a stage reading of 15.21, it is too
17 shallow to be taking water samples throughout all of
18 these stations?
19 A. I don't recall specific quotes from
20 specific individuals. What I tried to indicate is
21 the general types of discussion on this subject.
22 Q. Let me ask you this: Did you or anybody in
23 the District or working with the District, like for
24 instance Dr. Robson, attempt to calculate the limits
25 for the Loxahatchee using all the data and all the
235
1 sampling dates?
2 A. That very well may have been done.
3 Q. You don't recall?
4 A. I wouldn't be surprised if it was done. I
5 just can't picture in my mind a specific example of
6 that. But that very well could have happened.
7 Q. What I am wondering was if it was done,
8 were the numbers that were derived from that analysis
9 higher than the numbers that are established as
10 limits in Appendix E?
11 A. Without repeating the calculations, I would
12 presume so by the nature of the discussion and the
13 reason that was used as a threshold stage level.
14 Q. Do you recall if those types of numbers,
15 that is based upon all 16 stations and all 16 dates,
16 were ever presented to representatives of the United
17 States by anyone from the District in your settlement
18 negotiations?
19 A. My recollection of the process isn't one
20 really where there were presentations made on this.
21 I viewed it more as just a discussion. I don't
22 recall where the District made a formal presentation
23 to the federal parties.
24 Q. Well, what was the format in which the
25 decision was made to eliminate two sampling dates and
236
1 two stations?
2 A. I think the format was just discussing the
3 subject.
4 Q. Amongst who?
5 A. I don't recall whether or not that was at
6 one meeting or covered several meetings. I have a
7 hard time recalling exactly who was in the room. I'm
8 fairly sure that -- well, I was there, Tom MacVicar,
9 Mark Maffei, Mike Soukup.
10 Q. So it would have -- you are referring to
11 one of these kinds of consensus --
12 A. Technical group.
13 Q. -- technical group meetings, that you just
14 all sat around and discussed the possible ways of
15 deriving limits for the Loxahatchee? Is that the way
16 this decision developed to eliminate two stations and
17 two dates?
18 A. Yes, it was part of that type of
19 discussion.
20 Q. Was there any discussion at those meetings
21 that if we included all 16 stations and all 16 dates,
22 that the limits that were derived from that
23 calculation were now too high, they weren't
24 acceptable to representatives of the Refuge?
25 A. I believe there were those types of
237
1 discussions.
2 Q. So was the decision made to eliminate two
3 dates and two sampling stations because it would give
4 you lower numbers that were therefore acceptable to
5 representatives of the United States?
6 A. I think during discussions it was by
7 consensus agreed that some of this data was probably
8 not representative of the marsh at large and that
9 probably would not be appropriate to include in
10 developing the levels.
11 Q. Okay. Well, let's look at this Table 6. On
12 page E-18 you eliminated stations one and two; is
13 that correct?
14 A. Yes.
15 Q. And you eliminated the sampling dates of
16 May -- I'm sorry -- March of '79 and June of '79; is
17 that correct?
18 A. Yeah. Those are the two dates in this
19 table that fall below at or below the 15.42.
20 Q. Okay. Now, which values, can you show me
21 on stations 1 and 2 that were eliminated, which of
22 those values was it determined weren't representative
23 of the marsh?
24 A. You are referring to stations 1 and 2 ?
25 Q. Uh-huh. On Table 6.
238
1 A. Okay. The rationale, as indicated, I guess
2 on page E-16, the rationale for eliminating two
3 entire stations was because of the large amounts of
4 missing data.
5 Q. Okay. But you just previously testified
6 that it was felt that some of the values in either
7 the stations or the dates that were eliminated were
8 excluded because it wasn't felt that they were
9 representative of the marsh.
10 A. I'm sorry; I was answering that with
11 respect to the stage level.
12 Q. Okay. So you are referring to the two
13 dates that were excluded, that those two sampling --
14 that the data that was collected on those two
15 sampling dates was at least in part not
16 representative of the marsh?
17 A. Right. The data for all 16 stations on
18 those two dates were not included in the final
19 analysis and all of the data at stations 1 and 2
20 regardless of the date were not included.
21 Q. All right. Well, let's look at the data
22 for March of '79. Now, all of that data was excluded
23 in part because it was not representative of the
24 marsh; is that your testimony?
25 A. It was the nature that I can recall, the
239
1 nature of the discussions. It was generally agreed
2 to that, in situations where you reasonably expected
3 that the water was discontinuous and there were very
4 shallow pockets of water when you were sampling, that
5 that would not be representative.
6 Q. Which of the values that appear on that
7 line of March of '79 would not have been
8 representative of the marsh?
9 A. I can't recall. I don't recall any
10 specific discussion around single values. I think it
11 more evolved as just the concept that under those
12 types of conditions, it is reasonable to expect that
13 they would not be representative of the entire marsh.
14 Q. Well, did anybody calculate the geometric
15 mean across all 14 or 16 stations on March of '79 to
16 determine how that compared to the geometric mean on
17 other dates?
18 A. It could have been done. I don't recall.
19 Q. Well, looking at station number 3 on that
20 date, you see the reading of 157?
21 A. Yes, I do.
22 Q. Would that, in your opinion, be
23 representative of a total phosphorus concentration in
24 the interior marsh?
25 A. I'm not an expert as to what are
240
1 representative phosphorus concentrations in the
2 Loxahatchee National Wildlife Refuge, so with regard
3 to that I wouldn't want to speculate. My
4 understanding is a value that high is probably not
5 representative of marsh levels.
6 Q. Well, it is certainly far in excess of the
7 limit that was established, isn't it?
8 A. Well, I think you mean if you assume 157
9 was measured across all 16.
10 Q. No. No.
11 A. The limit applies to a geometric mean of 14
12 stations, and this is a single value.
13 Q. Right.
14 A. So you can't really apply a single value
15 against that test.
16 Q. Well, I understand that. But if you had a
17 number of values that would be in the 157 range, you
18 would certainly be at a level substantially higher
19 than the geometric mean.
20 A. If you had enough of them, I would expect
21 so.
22 Q. Yeah. But you did include a number of
23 other values in your calculation that were at or even
24 above that 157 number; is that correct?
25 A. Yes, because they didn't basically meet the
241
1 two criteria for excluding data, which were stations
2 1 and 2 based on the number of missing values, and
3 the other criteria was the stage, so they were
4 selected -- the data was collected at stations 3
5 through 16 and a stage higher than 15.42 was
6 included. They weren't excluded because they just
7 happened to be a high value.
8 Q. Okay. Now, was any effort made in the
9 context of establishing these limits to determine the
10 stage level at which water from the perimeter canal
11 would penetrate into one or more of the sampling
12 stations?
13 A. Your question was was there an analysis
14 done?
15 Q. Uh-huh.
16 A. In general, I recall there was discussion
17 of a model, a hydrologic model of the Refuge, and
18 there were those kinds of discussions and opinions
19 from Dr. Maffei as to the degree of penetration of
20 water from the perimeter canal into the marsh. I
21 recall discussions of that type. I don't recall any
22 specific conversations.
23 Q. Well, has anyone at the District, to your
24 knowledge, at any time attempted to calculate at what
25 stage the perimeter canal starts to have a
242
1 significant or any influence on the interior marsh
2 stations?
3 A. I'm not aware of any. None that I am aware
4 of. But that is not to say somebody doesn't do those
5 calculations.
6 Q. But the threshold stage, the threshold cut
7 off stage of 15.42, was not selected based upon
8 penetration of the water from the perimeter canal
9 into the interior marsh; is that correct?
10 A. I don't recall that being part of the
11 discussion, but it may have been. I just don't
12 recall.
13 Q. What I am getting at here, it seems to me
14 to be fairly relevant in terms of calculating the
15 influence of inflows from 5A and 6 on the interior
16 marsh stations that are established for compliance to
17 know at what stage what regulation stage in the
18 Refuge, that influence is going to start to be most
19 readily observed, and it would appear to me that that
20 has never been done by the District.
21 A. As I indicated earlier or yesterday, to my
22 knowledge there is no quantitative relationship
23 between the inflows at S-5A and S-6 and phosphorus
24 levels measured in the marsh. At that time I wasn't
25 aware of any model I am still not aware of any
243
1 quantitative relationship.
2 Q. Well, okay. So I mean what I am getting at
3 is how do you know at stage level 15.60, which is
4 above your threshold stage, how do you know at that
5 stage that the interior marsh stations are exhibiting
6 any influence whatsoever from inflows from 5A and 6?
7 A. I don't feel like I'm qualified to really
8 give a comment on what stages in the canals, how the
9 different stages affect the interior marsh. In
10 general, it was discussed. I think it was generally
11 understood that there were stages in the perimeter
12 canal, there were conditions under which the entire
13 marsh was influenced by external surface inflows
14 through S-5A and S-6.
15 Q. And what conditions would those be?
16 A. I don't recall a specific.
17 Q. Are you aware of anyone at the District
18 that can?
19 A. There may be people. I don't know.
20 Q. You are not aware of who it would be, is
21 what you're saying.
22 A. I can't think of anybody that I could say
23 would know, would definitely know that.
24 Q. What role does the regulation level for the
25 Refuge play in determining compliance with these
244
1 interim limits?
2 A. I don't understand there to be a role. The
3 compliance --
4 Q. Well, who establishes the regulation level
5 for the Loxahatchee?
6 A. It is my understanding it is the U.S. Army
7 Corps of Engineers that does that.
8 Q. In conjunction, I would assume, with the
9 U.S. Fish and Wildlife Service?
10 A. I would assume so.
11 Q. Does the District have input into that
12 decision?
13 A. I assume so, yes.
14 Q. Who at the District would be involved in
15 that?
16 A. There probably are many people, Tom
17 MacVicar is probably one, probably people from our
18 Operations Department, who operate the system. There
19 are probably others. There could be many.
20 Q. Well, it would appear, and correct me if I
21 am wrong here, but would it appear that at lower
22 stages, the inflows from 5A and 6 are less likely to
23 penetrate into the interior marsh and influence
24 phosphorus levels at the interior marsh stations; is
25 that a correct assumption?
245
1 A. It seems like a reasonable assumption.
2 Q. All right. So the lower the regulation
3 level, the more likely it is that we are going to
4 have compliance with the interim limits; is that
5 correct?
6 A. If the lower regulation level results in
7 actually lower stages in the perimeter canal and
8 there is less influence, that's probably correct.
9 Q. So without using STAs or maybe even a BMP
10 program, we could find ourselves in compliance with
11 the interim limits in the Loxahatchee simply by
12 virtue of the regulation schedule of the Loxahatchee;
13 is that correct?
14 A. I don't know whether or not there would be
15 compliance.
16 Q. But certainly at low regulation, at low
17 stage levels, the influence from the inflows is going
18 to be less likely to penetrate into the interior
19 marsh stations.
20 A. I would assume so.
21 Q. Thereby, resulting in a greater likelihood
22 that you are going to be in compliance?
23 A. Seems reasonable.
24 Q. And I guess what I am getting at here is,
25 one of the troubling aspects about these interim
246
1 limits, and this applies to the Park also, is it
2 seems that there is a factor involved here that
3 relates to the operational practices of the District
4 or the regulation schedule established for the water
5 body and that that will, in fact, play a role in
6 determining compliance. Would you agree with that?
7 A. That could play a role, if you are talking
8 about the Refuge for instance, that could play a role
9 if there was no attempt made to improve the quality
10 of water entering the Refuge. Hypothetically, if the
11 quality of water entering the Refuge was at low
12 enough levels, then it shouldn't make any difference
13 what the regulation schedule is on the marsh.
14 Q. Yeah. Does the Refuge need water from 5A
15 and 6 to function in a --
16 A. I am not going to speculate. I don't have
17 expertise --
18 Q. Let me show you -- let's mark another
19 document as an exhibit.
20 A. -- in that area.
21 (The document was marked
22 Petitioner's Exb. No. 11.)
23 BY MR. BLANK:
24 Q. I show you what has been marked as Exhibit
25 11 and ask if you can identify this document.
247
1 Q. For right now I'm principally concerned
2 with the last three pages of the exhibit, and I note
3 that on the last page you're listed as an individual
4 who was carboned on this document.
5 A. Probably means I received it. I'm not
6 recalling it, but I probably did receive it if I was
7 on the distribution list.
8 Q. All right. Take a look at the first
9 paragraph on what is bates number 0033013.
10 A. Which paragraph?
11 Q. The first full paragraph.
12 A. Okay.
13 Q. And about the middle of the paragraph there
14 is a sentence that begins, "Within the interior of
15 the Refuge, in areas not influenced by surface
16 inflows, background levels of total phosphorus
17 average below 0.03 milligrams per liter." Do you see
18 that sentence?
19 A. Yes, I do.
20 Q. This sort of goes to that issue that we
21 were talking about before in terms of the Park's part
22 of the Refuge that are not influenced by surface
23 inflows.
24 A. Uh-huh.
25 Q. I'm wondering whether any effort was made
248
1 during the negotiations to define those areas of the
2 Refuge not influenced by surface inflows.
3 A. I don't recall any. It was my
4 understanding in the discussions that there were
5 conditions under which the entire Refuge was
6 influenced by surface inflows.
7 Q. And that was an understanding that you
8 picked up from Mark Maffei; is that correct?
9 A. Yes.
10 Q. And no one from the District said, "Show me
11 your data that supports that?"
12 A. There was a discussion of that hydrologic
13 model.
14 Q. The Richardson model?
15 A. I assume it is the Richardson model. That
16 sounds familiar. There were discussions of that. I
17 didn't hear any dispute that under certain
18 conditions, that would indeed occur.
19 Q. You say there were discussions of the
20 model. Did anyone from the District try and run
21 simulation runs with the model or actually
22 investigate the accuracy of the model?
23 A. I don't recall anybody in context of these
24 discussions doing that. I don't know whether or not
25 that was -- I can't say no one at the District ever
249
1 evaluated that model.
2 Q. But you don't know of any efforts to
3 determine whether that model was reliable or not; is
4 that correct?
5 A. I'm not aware of any.
6 Q. As representative, during your negotiations
7 which led to these limits, wouldn't you have been
8 aware of any efforts to verify the accuracy of that
9 model? I mean, certainly if somebody had gone out
10 and looked at that model and determined that there
11 were problems with it or even that it was a great
12 model, they would have let you know, wouldn't they?
13 A. I don't think necessarily so.
14 Q. Okay.
15 A. I mean --
16 Q. Well, to this day, do you know -- has
17 anyone in the District gone and checked that
18 Richardson model to determine its accuracy?
19 A. I'm not aware of any, but that is not to
20 say it hasn't been done someplace in the agency.
21 Q. All right. Let's look at the next -- or
22 the paragraph under the heading Water Quantity.
23 Would you read that paragraph just to yourself.
24 A. I have read the first paragraph.
25 Q. All right. Do you see the second full
250
1 sentence that says, "This water is not pumped into
2 the Refuge for the benefit of the Refuge; it is
3 pumped into the Refuge because the Refuge serves as a
4 pipeline to get water into WCA-2?"
5 A. Yes, I see the sentence.
6 Q. And then two sentences further down, "A
7 large reduction in the annual nutrient loading rates
8 of the Refuge could be achieved simply by not putting
9 as much water into the Refuge as is currently done,"
10 you see that sentence?
11 A. Yes, I do.
12 Q. Did you have discussions during your
13 settlement negotiations of simply diverting water
14 away from the Refuge instead of through it?
15 A. Yes.
16 Q. What was the nature of those discussions?
17 A. I think it was generally understood that
18 the discharge through pump station S-6 would be
19 diverted away from the Refuge into STA-2 and then
20 into Water Conservation Area 2A.
21 Q. Was there any discussion given to
22 hydrologically isolating the Refuge so that the
23 inflows from 5A didn't go into the perimeter canal?
24 A. I don't recall. Discussions of what would
25 basically amount to a total diversion of both S-5A
251
1 and 6?
2 Q. Yeah.
3 A. No, I don't recall that. My general
4 understanding is that that would not be satisfactory
5 to the Refuge, that that would be too large of a
6 diversion, but that is just a general understanding.
7 Q. So your general understanding is that the
8 Refuge needs some water but perhaps not as much as
9 it's been receiving?
10 A. That is my general understanding, yes.
11 Q. Has there been any effort to quantify the
12 amount of water that the Refuge really needs in order
13 to maintain it as a wildlife habitat?
14 A. None that I can recall at the District.
15 The Refuge may conduct such studies and
16 investigations.
17 Q. Would that work be done as part of a
18 minimum levels and flow effort underway by the
19 District?
20 A. You have to give a little better definition
21 of what you mean by "underway by the District."
22 Could you be more specific?
23 Q. Well, as I understand it, the District is
24 in the process of establishing minimum levels and
25 flows for water bodies within the District.
252
1 A. Yes.
2 Q. And is the Refuge one of those water bodies
3 for which the District is going to establish minimum
4 levels and flows?
5 A. I believe so. I'm not directly involved in
6 that, but I believe so.
7 Q. Well, since you are not directly involved,
8 then you wouldn't know how that is potentially going
9 to tie into the regulation level for the Refuge and
10 flows out of District structures; is that correct?
11 A. That's correct.
12 MR. BLANK: Okay. Want to do a lunch
13 break?
14 (Thereupon, a recess was taken.)
253
1 AFTERNOON SESSION
2 BY MR. BLANK:
3 Q. We were looking, I believe, at Exhibit 11.
4 Would you turn to page 0033014, which is the next-to-
5 the-last page, and read the second paragraph just to
6 yourself, where it starts, "We will soon be
7 requesting."
8 A. Okay.
9 Q. Can you tell me if you know what the
10 regulation schedule was for the Loxahatchee at the
11 time this letter was written?
12 A. I don't know.
13 Q. Do you know what the regulation schedule is
14 now?
15 A. No. I don't.
16 Q. Do you know if there's been a recent change
17 in the regulation schedule for Loxahatchee?
18 A. I am aware that there was a change proposed
19 by the Refuge. I don't know where it is in the
20 improvement process or whether or not it has actually
21 been implemented.
22 Q. What was the intent of the proposed change;
23 to make it wetter or dryer?
24 A. I don't understand enough about what it
25 currently is and what was proposed to answer that.
254
1 Q. Do you recall what procedure is to be
2 utilized in determining compliance with the interim
3 limits if the stage a Loxahatchee exceeds 17.11 feet?
4 A. I assume the procedure is the same as if it
5 is below that.
6 Q. Below what?
7 A. 17.11.
8 Q. Well, my question is, it appears that the
9 highest stage reading during the period of record was
10 17.11.
11 A. The highest stage for which there was water
12 quality samples collected.
13 Q. Right.
14 A. Yes.
15 Q. Okay. So what happens in terms of
16 calculating limits if in the future we have stage
17 levels in excess of 17.11?
18 A. I assume the same methods and formula would
19 apply.
20 Q. Even though there was no sampling during
21 the period of record at those levels?
22 A. Yes.
23 Q. At levels in excess of 17.11?
24 A. Yes.
25 Q. Now, the limits, the interim limits, one of
255
1 the factors that is employed in the calculation is an
2