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 inverse or a negative correlation with stage. Isn't 3 that correct? 4 A. Yes. 5 Q. So the higher the stage, the lower the 6 limit? 7 A. Yes. 8 Q. So stage levels in excess of 17.11 would 9 have a lower limit attached to them than the limit 10 that would be applicable at 17.11? 11 A. Yes. 12 Q. But I take it there was no data available 13 to determine if that type of relationship exists for 14 levels in excess of 17.11. In other words, do the 15 marsh concentrations continue to drop at levels above 16 17.11? 17 A. The methodology would assume that that 18 relationship continues. 19 Q. Have you, or to your knowledge anyone in 20 the District, examined the entry and access data from 21 '92 and '93, that is the data collected by DOJ and 22 the League, to determine whether that data still 23 shows the same correlation with stage -- 24 A. I have not. 25 Q. Let me finish the question. 256 1 A. I'm sorry. 2 Q. -- as was utilized to calculate the limits 3 in Appendix E? 4 A. Okay. I have not, and I'm not aware of 5 anybody in the District who has. 6 Q. What would be your position if more recent 7 data would show that there is no correlation with 8 stage; that is, your position with regard to the 9 validity of the method used to calculate the limits 10 in Appendix E? 11 A. It is, I guess, a hypothetical question. I 12 need a little bit -- can you explain it better? 13 Q. Well, my concern here is that the data 14 period that we have utilized, the '78 to '83 data 15 period, that data period was utilized to establish a 16 correlation with stage -- 17 A. Yes. 18 Q. -- which is a negative correlation. More 19 recent data, if it calls into question the existence 20 of that correlation, what would be the District's 21 position with regard to what should be done in order 22 to calculate limits for the Loxahatchee? 23 A. I couldn't speculate on what the District's 24 position would be. I think, you know, in general, if 25 more recent information comes to light, that would be 257 1 contrary to what was, you know, to some of the 2 conclusions that were drawn using this earlier data, 3 that that would be one purpose of having the 4 Technical Oversight Committee. You would bring those 5 back to the Oversight Committee and see if there is a 6 consensus and agreement among the parties that there 7 needs to be adjustments made to that. But that is 8 one possible scenario. There are probably others. 9 Q. Well, we previously discussed the concept 10 that the higher the stage or the regulation level -- 11 do those two necessarily coincide; the regulation 12 schedule and the stage? 13 A. Generally, regulation schedules indicate 14 the maximum level that the water is allowed to rise 15 to before being discharged. They are not always 16 synonymous with whatever the maximum stage is for a 17 given point in time. 18 Q. Okay. But that regulation level is in fact 19 a stage level, is it not? 20 A. Yes, I believe it is a stage level. 21 Q. Okay. And the higher the stage, the more 22 likely it is that inflows from 5A and 6 will 23 penetrate into the interior marsh? 24 A. It is my understanding, yes. 25 Q. Okay. So can you explain to me why it 258 1 would be that the higher the stage, the lower the 2 concentration of the phosphorus concentration 3 reported at the interior marsh stations? I think it 4 seems to me it ought to be just the reverse of that. 5 If we are getting influence from 5A and 6 at the 6 higher levels, why aren't the marsh levels higher at 7 high stage? 8 A. There could be other factors. A couple 9 that may influence that is that you would get uptake 10 by the marsh itself; you know, removing phosphorus as 11 the water penetrated into the marsh. The other 12 thing, as indicated in the analysis in the SWIM Plan; 13 that there may be some biasing of the data, the 14 historical data, collected during that '78 to '83 15 period at the lower levels. 16 Q. Well, if marsh uptake were a factor, 17 wouldn't you anticipate that uptake rates would occur 18 even at lower levels? As the water moves through the 19 marsh, there is going to be some uptake of 20 phosphorus, whether it is at high water or low water; 21 wouldn't there be? 22 A. The marsh will remove phosphorus, yes, at 23 any level of stage. 24 Q. Right. So how would the uptake concept tie 25 into lower values at higher water levels? 259 1 A. Well, I assume one of the things that could 2 happen is that at the higher stages in the Refuge you 3 get more penetration into the marsh and you have more 4 of the marsh area available, you know, basically 5 stripping out the phosphorus. Some of the other 6 confounding effects also is whether or not, you know, 7 the influence of direct rainfall during those, 8 whether or not the high water levels, how much that 9 is attributable to surface inflow, which is rainfall 10 and those factors. 11 Q. Did anyone ever try to correlate the 12 interior marsh phosphorus values with rainfall? 13 A. Not to my knowledge. 14 Q. Okay. Turning back to Exhibit 11, the 15 first two pages of the exhibit, bates numbers 33011 16 and 33012, seem to be issues critical to Everglades 17 National Park for a SWIM program consideration. 18 A. That is what it says at the top of the 19 page. 20 Q. Did you ever review this document when it 21 was received by the District? 22 A. I may have. I believe I was on the 23 distribution list. I may have reviewed it, but I 24 don't recall. 25 Q. The date of the cover letter is December of 260 1 '88. 2 A. Yes. 3 Q. Do you recall what concerns were being 4 expressed by the Park at that point in time in terms 5 of water deliveries? 6 A. I don't recall. 7 Q. Under the heading Water Quality on page 8 33011, item number 6 reads, "water quality changes in 9 WCA 3A and delivery water to ENP. Can you tell me 10 what that reference is referring to? 11 A. I don't know what that specifically is 12 referring to. I know in our discussions during the 13 negotiations that were being held there was concern 14 expressed by Park representatives of an increasing 15 trend in phosphorus in 3A entering the Park. 16 Q. Increasing trend in phosphorus in WCA 3A? 17 A. Yes. 18 Q. Where? 19 A. Entering the Park. 20 Q. Where in 3A? 21 A. At the S-12 structures. 22 Q. So it was just north of the S-12 23 structures? 24 A. Yes. Sample locations. 25 Q. So it wouldn't have -- it would have been 261 1 at the very south end of 3A? 2 A. Yes. 3 Q. It is my understanding that there is kind 4 of a ponding or a pooling effect that occurs at the 5 south end of 3A north of the delivery structures to 6 the Park. Is that your understanding? 7 A. That is my general understanding, under 8 some conditions. 9 Q. Why would we be experiencing an increasing 10 trend in nutrients at the south end of 3A? 11 A. The trends that I am referring to I think 12 were measured at the control structures, and during 13 the period of record there have been a number of 14 changes in water management delivery schedules to the 15 Park. Some of that may account at least partially 16 for some of the trends. 17 Q. By changes in delivery schedules, you mean 18 the manner in which water is routed and delivered to 19 the Park? 20 A. Yes. 21 Q. You said some of those may account for. 22 What type of practices would lend to an increase in 23 phosphorus at the Park structures? 24 A. I'm not that familiar with what the 25 operation is. It is my understanding that at least 262 1 one of the delivery schemes involved -- well, the 2 release of water down the Miami Canal system and down 3 into the Park. And then that type of delivery would 4 basically bypass the marsh and the marsh wouldn't 5 be -- Water Conservation Area 3A wouldn't be acting 6 as a nutrient treatment facility. 7 Q. Certainly, one would anticipate, would they 8 not, that if you did allow all the water to filter 9 through the marsh, that you wouldn't experience 10 increased trends in phosphorus entering Everglades 11 National Park. Would that be correct? 12 A. If all the water entered at the Park, the 13 Shark River Slough was sheet flow across all of 3A? 14 Q. If all of the water coming out of the EAA 15 which found its way to the Park was allowed to sheet 16 flow across the marsh rather than being directly 17 routed to the Park via canals, wouldn't there be a 18 sufficient marsh area to filter out any excess 19 phosphorus? 20 A. I believe so. 21 Q. Item Number 7, "Nutrient buildup and 22 residual nutrient concentration in Park marsh 23 sediments adjacent to delivery structures," do you 24 know which delivery structures the Park was concerned 25 about? 263 1 A. My frame of reference for that, there was 2 discussion during our negotiations about data 3 collected downstream of the S-12 structures into the 4 Park. There were some transects done, I believe. 5 And this may refer to that. 6 Q. These would include sediment samples being 7 taken along -- 8 A. I believe that was the case, but I'm not 9 sure. 10 Q. You recall that this was a letter that was 11 written in December of '88. I'm not certain of the 12 date of the transect studies that you may be 13 referring to. 14 A. Either am I. I don't know. They could 15 have -- that's the only date I'm aware of that may 16 relate to this type of statement. Now, whether or 17 not that data was collected after this date and is 18 not related to this statement is possible. 19 Q. Well, in the course of your negotiations 20 that led up to the settlement agreement, were you 21 ever presented evidence or documentation that 22 convinced you that there were water quality 23 violations or adverse impacts within the Everglades 24 National Park from nutrients? 25 A. I don't recall. I can't recall discussions 264 1 relating to water quality violations. I don't recall 2 DEP indicating that there were water quality 3 violations occurring. 4 Q. In the Park? 5 A. In the Park. I don't recall that. 6 Q. Okay. We discussed yesterday the basic 7 framework which led to the establishment of the 50 8 part per billion inflow number for WCAs, which was a 9 combination of BMPs plus stormwater treatment areas 10 which were anticipated to be 70 percent effective in 11 removing phosphorus loads. Do you recall that 12 discussion? 13 A. Yes. 14 Q. I don't recall you mentioning yesterday the 15 role that the settling rate played in the sizing of 16 the STAs. Could you explain that a little bit to me? 17 A. I didn't do those calculations, but as I 18 understand, what was generally done is there would be 19 a particular load of phosphorus that one estimated 20 would need to be treated after removing the effect of 21 the BMPs, and that based on the Water Conservation 22 Area 2A data that was collected, now there is the 23 calculation of a settling rate. And if you apply 24 that settling rate to that load, you adjust the size 25 of the STAs until the resultant output was 50 parts 265 1 per billion. 2 Q. All right. And do you recall what settling 3 rate was used in March of '92? 4 A. I need to check. I believe it was -- 5 Q. I believe it is Appendix F. 6 A. Appears to be 8. 7 Q. And what are you referring to? What page 8 of the document are you looking at now? 9 A. This is page F-11 of the appendices. There 10 is a table that says, "Effective Acreage Required for 11 STAs to Reach 50 parts per billion Total Phosphorus 12 Discharge Concentration," and there is an asterisk 13 that lists, apparently lists, some of the assumptions 14 that went into it. And one says, "apparent settling 15 rate equals 8 meters per year." 16 Q. Okay. So that was the number that the 17 District was utilizing for sizing purposes for the 18 STAs in March of '92. 19 A. Yes. 20 Q. And do you know what number the District is 21 presently utilizing for sizing STAs? 22 A. I believe it is 10.2. I believe that is 23 what the design engineer Burns & McDonnell are using. 24 Q. All right. Let me show you a document 25 which we'll mark as Exhibit 12. 266 1 (The document was marked 2 Petitioner's Exb. No. 12.) 3 BY MR. BLANK: 4 Q. Do you recall receiving this memorandum 5 from Dr. Fontaine? 6 A. Yes. 7 Q. Can you tell me just what the general 8 purpose of this memorandum was? 9 A. Could you repeat the question? 10 MR. BLANK: Would you read it back, please? 11 (Thereupon, a portion of the record 12 was read by the reporter.) 13 THE WITNESS: It describes how some of the 14 calculations of settling rate were performed, it 15 describes an error that was made in calculating 16 the settling rate in the SWIM Plan, and 17 indicates some, I believe some, refinements in 18 how the calculations should be done, and then 19 there are some concluding recommendations. 20 BY MR. BLANK: 21 Q. Okay. And what was the error that is 22 described in the memorandum? 23 A. On the second page, there is a formula that 24 indicates the 26 year total phosphorus accumulation 25 rate is equal to 0.758 minus 0.243 times the log of X 267 1 with X in miles, and apparently it should not -- X 2 should not have been the unit in miles, it should 3 have been in kilometers. 4 Q. All right. And if that was corrected and x 5 was expressed in kilometers, what was the result of 6 the calculation as relates to the settling rate? 7 A. It indicates -- oh, I guess it is the 8 second-to-the-last page. 9 Q. You can refer to the bates-stamp number. 10 A. Sorry. The what? 11 Q. Bates-stamp number at the bottom. Are you 12 looking at page 962880? 13 A. Yes. 14 Q. Okay. 15 A. It indicates that values between 2.7 and 16 3.7 miles would have ranged between 6.4 and 8, and 17 that those values are less than those obtained when 18 incorrect units were used. 19 Q. With an average of 6.1; is that correct? 20 MS. CLEMENTS: No. 21 THE WITNESS: It says, "If compared over 22 the first 4 miles of the transect, the range 4 23 to 8.7 and average 6.1 of the correct analysis 24 are less than those of the range 6.7 to 11.1 25 meters per year," and the average 8.4 meters per 268 1 year being the incorrect analysis. 2 BY MR. BLANK: 3 Q. So as I read that, the incorrect analysis 4 which was contained in Appendix F led to an average 5 rate of 8.4, and when that analysis was corrected to 6 kilometers instead of miles, and we the