129
1 STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
2
SUGAR CANE GROWERS COOPERATIVE OF
3 FLORIDA, INC., ROTH FARMS, INC.,
and WEDGWORTH FARMS, INC.,
4
and
5
FLORIDA SUGAR CANE LEAGUE, INC.,
6 UNITED STATES SUGAR CORPORATION,
and NEW HOPE SOUTH, INC.,
7
and
8
FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038
9 ASSOCIATION, LEWIS POPE FARMS, 92-3039
W.E. SCHLECHTER & SONS, INC., and 92-3040
10 HUNDLEY FARMS, INC.,
11 Petitioners,
12 vs.
13 SOUTH FLORIDA WATER MANAGEMENT
DISTRICT,
14
Respondent,
15
and
16
MICCOSUKEE TRIBE OF INDIANS OF
17 FLORIDA, the UNITED STATES OF
AMERICA, FLORIDA DEPARTMENT
18 OF ENVIRONMENTAL REGULATION, and
FLORIDA WILDLIFE FEDERATION,
19
Intervenors.
20 . . . . . . . . . . . . . . . . . . . /
21
22
23 DEPOSITION OF RICHARD HARVEY
24 January 5, 1993
25
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1
2 DEPOSITION OF RICHARD HARVEY
3 Taken in the above-styled cause, pursuant to
4 notice, at the Department of Environmental Regulation, 2600
5 Blair Stone Road, Tallahassee, Florida, on January 5, 1993,
6 commencing at 9:00 a.m.
7
8 Reported by:
9 JERRY L. ROTRUCK
10 Certificate of Merit
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 APPEARANCES OF COUNSEL:
2 On behalf of the Petitioners Sugar Cane Growers Cooperative
of Florida, Inc., Roth Farms, Inc., and Wedgworth Farms,
3 Inc.:
4 William H. Green, Esq.
Hopping Boyd Green and Sams
5 123 South Calhoun Street
Tallahassee, FL 32301
6
On behalf of the Petitioners Florida Sugar Cane League,
7 Inc., United States Sugar Corporation and New Hope
South, Inc.:
8
William L. Hyde, Esq.
9 Peeples, Earl & Blank
215 South Monroe Street
10 Suite 350
Tallahassee, FL 32301
11
On behalf of the Intervenor United States of America:
12
Tom Fitzgerald, Esq.
13 Assistant U.S. Attorney
155 South Miami Avenue, Suite 600
14 Miami, FL 33102
15 On behalf of the Intervenor Department of Environmental
Regulation:
16
Tim Smith, Esq.
17 Deputy General Counsel
State of Florida
18 Department of Environmental Regulation
Twin Towers Office Building
19 2600 Blair Stone Road
Tallahassee, FL 32399-2400
20
21
22
23
24
25
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1 INDEX TO WITNESS
2 RICHARD HARVEY Page
3 Examination (continued) by Mr. Hyde 134
4 Examination by Mr. Green 248
5
6
7
8 INDEX TO EXHIBITS
9 No. Marked
10 4 137
11 5 139
12 6 179
13 7 187
14 8 231
15 9 (withdrawn)
16 10 312
17 11 316
18 12 318
19 13 320
20 14 322
21
22
23
24
25
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1 S T I P U L A T I O N
2 IT IS STIPULATED AND AGREED by and between counsel
3 appearing for the respective parties as follows:
4 THAT the deposition of RICHARD HARVEY was taken by
5 agreement for the purpose of discovery, for use as
6 evidence, and for such other purposes as may be permitted
7 by the Florida Rules of Civil Procedure and other
8 applicable law;
9 THAT all objections, except as to the form of the
10 question, are reserved until the trial of this cause; and
11 THAT by agreement of the witness and all parties,
12 reading and signing of the deposition was not waived.
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 D E P O S I T I O N
2 Whereupon,
3 RICHARD HARVEY
4 was called as a witness, having been first duly sworn to
5 speak the truth, the whole truth, and nothing but the
6 truth, was examined and testified as follows:
7 EXAMINATION (continued)
8 BY MR. HYDE:
9 Q Mr. Harvey, I would like to follow up on a few
10 questions that I asked you yesterday, and it concerns the
11 various limitations that are set forth in the settlement
12 agreement between the Department and the South Florida
13 Water Management District and the United States in the
14 federal litigation.
15 My first question deals with the 50-part-per-
16 billion limitation, and I would like to ask you whether
17 anyone, to your knowledge, in the Department actually
18 approved that figure or determined that it was
19 appropriate?
20 A Well, I think, as I answered yesterday, by virtue
21 of the fact that the Department agreed to the settlement
22 agreement and 50 parts per billion was included in the
23 settlement agreement, that we agreed or approved of the
24 50-part-per-billion value.
25 Q Was there a specific person that said that
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1 limitation was appropriate?
2 A The way the process worked is I reported to Dan
3 Thompson and Carol Browner the results of our efforts at
4 settling the lawsuit, including the long-term and interim
5 limits and levels for the Park and the Refuge and the 50-
6 part-per-billion value, and as a result of those
7 discussions, the Department agreed to the 50-part-per-
8 billion value.
9 Q Did you make a recommendation to Mr. Thompson or
10 Secretary Browner that those figures be accepted?
11 A I described the process to them and told them that
12 I thought the numbers that we had derived through that
13 process were technically defensible.
14 Q Would it be safe to say, then, that either
15 Secretary Browner or General Counsel Thompson actually made
16 the decision to enter into the settlement agreement and
17 execute it?
18 A I would say Secretary Browner made that decision.
19 Q That would be on each of those various
20 limitations, the 50-part-per-billion limitation expressed
21 in the settlement agreement --
22 A Correct.
23 Q -- the interim and long-term limits for the Park?
24 A Correct, based upon my description of the process
25 and the technical defensibility of those numbers.
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1 Q And that holds true for the interim and long-term
2 numbers for the Refuge?
3 A Correct.
4 Q Does that apply equally to the stormwater
5 treatment areas, their projected size?
6 A We described the process to Dan Thompson and
7 Secretary Browner as to how the sizes were determined,
8 along with the understanding that, through the SWIM Plan
9 and the permit process, that those numbers and the sizes
10 may change.
11 Q But you basically made a recommendation and the
12 Secretary accepted that?
13 MR. SMITH: Object to the form.
14 BY MR. HYDE:
15 Q Is it safe to say that the 35,000 more or less
16 acre STA size was determined to be appropriate size even if
17 the settlement agreement allowed for later revision of that
18 size?
19 MR. SMITH: Object to the form.
20 THE WITNESS: As I mentioned earlier, I described
21 the process that we used to come up with the 35,000
22 acres and indicated to Secretary Browner and Dan
23 Thompson that I felt that the process was defensible,
24 and they used that information to decide, I presume, to
25 sign the settlement agreement.
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1 MR. HYDE: Let's mark No. 4.
2 (Whereupon, Exhibit No. 4 was marked for
3 identification.)
4 BY MR. HYDE:
5 Q Mr. Harvey, I would like to show you a document
6 that has been labeled Exhibit 4. Do you recognize that
7 document?
8 A Yes, I do.
9 Q Are you the author of it?
10 A No, I am not.
11 Q Do you know who the author of it was?
12 A Yes, I do.
13 Q Who is it?
14 A Frank Nearhoof.
15 Q This document was produced to me as part of the
16 production of documents from your records. Do you know why
17 it was included in your records as opposed to Mr.
18 Nearhoof?
19 A I just had it in my records, and I made it
20 available to counsel, and he made it available to you.
21 MR. SMITH: I would like the record to reflect
22 that I don't know that he didn't receive it prior in
23 Frank's records. Since Richard had it, we just thought
24 Richard produced it again, that it had been produced
25 before. I don't have any reason to believe that you
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1 didn't have it before.
2 MR. HYDE: I am not implying anything nefarious,
3 but I just wondered what its origin was, that is all.
4 BY MR. HYDE:
5 Q Did you review this document?
6 A I have read the document, yes.
7 Q Do you believe the representations contained in it
8 are correct?
9 A What the document basically does is describe in
10 very general terms how the interim long-term total
11 phosphorus levels for the Loxahatchee National Wildlife
12 Refuge were derived. That is basically it. It doesn't
13 contain all of the detail, but in general, that is the
14 process it describes.
15 Q Do you know why this document was prepared?
16 A Yes, I do.
17 Q Why?
18 A I asked Frank to prepare it.
19 Q For what purpose?
20 A It had been a while since it had been described to
21 me in detail the process that we used to derive the numbers
22 and I asked him to. We had several reports, I guess Doug
23 Robson's report primarily, and reports in the SWIM plans
24 that describe the process, and they went into a great deal
25 of technical detail, and I just asked Frank to cut through
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1 a lot of the technical detail and just describe in general
2 in this paper the process that was used.
3 Q Do you recall when this document was prepared?
4 A Sometime last year.
5 Q Was it prepared just for your internal use or for
6 some other uses?
7 A It was primarily prepared for my use.
8 Q Was it prepared or was it intended to be
9 incorporated in any other document or a study?
10 A No, it was not.
11 Q To your knowledge, is this an accurate description
12 of how the interim and long-term total phosphorus levels
13 were set for the Refuge?
14 A It doesn't contain all of the detail, but for the
15 pumps for which it was intended, it is accurate.
16 Q Okay.
17 MR. HYDE: The next exhibit.
18 (Whereupon, Exhibit No. 5 was marked for
19 identification.)
20 BY MR. HYDE:
21 Q I would like to show you a document now that has
22 been labeled Exhibit 5. Do you recognize that document?
23 A Yes, I do.
24 Q What is that?
25 A It is a document generally describing how the
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1 interim and long-term total phosphorus limits were
2 established for the Everglades National Park.
3 Q Was this document also prepared at your request by
4 Mr. Nearhoof?
5 A Yes, it was.
6 Q And was it prepared for the same purpose that the
7 Exhibit 4 was prepared?
8 A Yes, it was.
9 Q To your knowledge, does this document accurately
10 portray the method by which the interim and long-term total
11 phosphorus limits are established for the Park?
12 A In terms of a general description of the process,
13 yes, it is accurate.
14 Q Was it prepared at or about the same time as the
15 previous exhibit?
16 A Yes, it was.
17 MR. GREEN: Could I ask a question for
18 clarification, to save time later? When you said last
19 year, did you mean 1992?
20 THE WITNESS: 1992.
21 MR. GREEN: Thank you.
22 BY MR. HYDE:
23 Q Do you recall within the approximate date in 1992
24 when these documents were prepared?
25 A I would say in the first half of 1992.
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1 Q Does that mean like around January 1992 or May
2 1992?
3 A I don't remember the specific time.
4 Q Is there any other document or record that might
5 better reflect or remind you when these documents were
6 prepared?
7 A Not to my knowledge.
8 Q I would like to ask you a few questions now about
9 the nuisance species rule, which reads, substances and
10 concentrations which result in the dominance of nuisance
11 species, none shall be present. Are you familiar with that
12 rule?
13 A Yes, I am.
14 Q What does the term "dominance" in that rule mean?
15 A Well, it could mean a number of things. It could
16 mean dominant numerically, areally, from a volume
17 perspective.
18 Q Do you know how it is being applied to the
19 Everglades ecosystem, in particular the water conservation
20 areas, to establish that there is a dominance of nuisance
21 species?
22 A Primarily on an areal basis.
23 Q The phrase "nuisance species" is defined in the
24 definitional section of Chapter 17-302.200 as follows. It
25 says, subsection (14) --
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1 A Okay.
2 Q "Nuisance species shall mean species of flora or
3 fauna whose noxious characteristics or presence in
4 sufficient number, biomass or areal extent may reasonably
5 be expected to prevent or unreasonably interfere with a
6 designated use of those waters."
7 What is the designated use of the waters that we
8 are concerned with in this case?
9 A They are Class III waters.
10 Q And what do you understand that designated use to
11 be?
12 A Recreation and maintenance of a healthy, well-
13 balanced population of fish and wildlife.
14 Q Has the Department determined that any species,
15 any, quote, nuisance species, is preventing a designated
16 use in those waters?
17 A I think we have determined that with the changes
18 in the biology and the chemistry of the system as manifest
19 by the populations of cattails specifically that exist in
20 some of the conservation areas, the cattails could be
21 classified as a nuisance species.
22 Q Well, are they unreasonably -- are they preventing
23 designated use of those waters?
24 A I think they are certainly interfering with the
25 designated use of those waters by altering the habitat and
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1 biology and chemistry of the area.
2 Q Are they unreasonably interfering with the
3 designated use of those waters?
4 A I would say yes.
5 Q What is your basis for concluding that they are,
6 quote, unreasonably interfering, end quote, with the
7 designated use?
8 A I would say that when you have conditions that
9 result, you have a unique ecosystem that has developed the
10 way the Everglades ecosystem has developed, when you have a
11 situation occurring that changes virtually all trophic
12 levels and components of that system, changes the chemistry
13 and the biology of that system, that is certainly
14 unreasonable interference with a designated use.
15 Q What evidence have you seen that all trophic
16 levels are being disturbed?
17 A The evidence I am primarily referring to is the
18 literature review prepared by Frank Nearhoof and the SWIM
19 documents.
20 Q Do you regard cattails as being, in the words of
21 the definition section, to be a species of flora or fauna
22 with, quote, "noxious characteristics"?
23 A In certain circumstances, they can exhibit noxious
24 characteristics.
25 Q Is that the part of the definition that you
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1 believe applies here, or is it really their presence in
2 sufficient -- presence in sufficient number, biomass or
3 areal extent that makes them --
4 A I think it is all of the above.
5 Q In what respect would you consider the cattails as
6 having these, quote, "noxious characteristics"?
7 A I think by virtue of the fact that when, according
8 to the literature when you look at the substrate
9 composition that develops, the peat or the organic material
10 accumulation, that develops as a result of the cattail
11 decomposition, that that, in and of itself, results in a
12 change in the ecosystem that can be significant and result
13 in interference with their designated use by changing the
14 biology of the system.
15 Q Do you know whether cattails are a species that is
16 native to the Everglades ecosystem?
17 A I know that you do have -- find cattails in the
18 Everglades ecosystem.
19 Q So you don't consider the cattails noxious, per
20 se, do you? Do you understand what I mean when I say that?
21 A Why don't you clarify that for me?
22 Q Do you regard the mere presence of cattails as
23 constituting a nuisance species?
24 A The presence of one stem of cattail, for example?
25 Q Or a small population of cattails.
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1 A Not necessarily.
2 Q Would you by contrast regard melaleuca as a
3 nuisance species?
4 A I really don't, to be honest with you, know that
5 much about melaleuca other than what anecdotally I have
6 heard.
7 Q Do you know whether the SWIM Plan identifies
8 melaleuca as being a problem in the water conservation
9 areas?
10 A I can't really say that I do.
11 Q In what portions of the Everglades Protection Area
12 do you believe there are violations of the nuisance species
13 standard?
14 A In Water Conservation Area 1 and Water
15 Conservation Area 2A.
16 Q Do you believe that there are any violations
17 elsewhere of that standard?
18 A I believe that we are beginning to see populations
19 in the upper part of the Everglades National Park.
20 Q Would this be just south of the S12 structures?
21 A S12 structures.
22 Q Anywhere else?
23 A I would have to go back and look at the reports.
24 Q Do you recall whether there is any other place
25 that you feel could -- that nuisance species standard to be
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1 violated?
2 A I think there are some problems in 2B.
3 Q What document would you look to to determine
4 whether there were problems in Water Conservation Area 2B
5 -- if you'd let me finish the question before you begin
6 answering, even if you anticipate the end of it?
7 A All right.
8 Q In what area of Water Conservation Area -- or in
9 what document would you look to find or determine whether
10 there is a nuisance species problem in Water Conservation
11 Area 2B?
12 A I would look at either the SWIM Plan or Frank
13 Nearhoof's report.
14 Q Are you familiar with the Department's water
15 quality standard for dissolved oxygen?
16 A Yes, I am.
17 Q I would just like to read it to you. This is Rule
18 17-302.560, paren, (21), and it reads, "Dissolved oxygen -
19 In predominantly fresh waters, the concentration shall not
20 be less than five milligrams per liter. In predominantly
21 marine waters, the concentration shall not average less
22 than 50 milligrams per liter in a 24-hour period, and shall
23 never be less than 4 million grams per liter. Normal daily
24 and seasonal fluctuations above these levels shall be
25 maintained in both predominantly fresh waters and
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1 predominantly marine waters."
2 Is it your understanding of the rule that in
3 predominantly fresh waters, the DO concentration must
4 always be at least five milligrams per liter?
5 A Unless you have natural conditions that depress it
6 below five.
7 Q The rule doesn't make an exception, though, does
8 it, for natural conditions that depress it below five?
9 A I don't know if in that section it makes an
10 exception for natural conditions, but certainly I think in
11 the statute the intent is for it not to abate natural
12 conditions.
13 Q Which statute are you referring to?
14 A 403.
15 Q Do you have a particular provision in mind?
16 A Not unless I went back and read it.
17 Q Do you know whether dissolved oxygen conditions of
18 less than five milligrams per liter are found in the
19 unenriched areas of the Everglades Protection Area?
20 A Based upon the literature that I have looked at,
21 it is my understanding that they do exist.
22 Q Is that a common occurrence in wetlands
23 generally?
24 A It is not uncommon.
25 Q Do you think it would be appropriate, given that
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1 tendency, for the Department to develop a different
2 dissolved oxygen standard for wetlands as opposed to this
3 one here?
4 MR. SMITH: Object to the form.
5 THE WITNESS: There is a process in the rule that
6 you could follow to do that.
7 BY MR. HYDE:
8 Q Is that the site-specific alternative criteria
9 process?
10 A Yes, it is.
11 Q We will get to that in just a moment.
12 When the Department is confronted with situations
13 where the dissolved oxygen concentration naturally goes
14 below five milligrams per liter, how does the Department
15 determine whether there is a violation of that standard as
16 a result of some man-induced discharge?
17 A There are different processes. You can examine
18 the data, the raw data; you can do some statistical
19 analysis of the data; you can construct or develop a
20 mathematical model of the system to see how much of that
21 dissolved oxygen deficit can be attributed to an
22 identifiable source, either natural or man-induced.
23 Q Are you saying, in effect, that if the lower
24 dissolved oxygen is attributable at least in part to some
25 man-induced concentration, it is a violation of the rule,
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1 but if it is a natural condition, it is not a violation of
2 the rule?
3 A If you have naturally low DO and the naturally low
4 DO conditions are, or the low DO conditions are contributed
5 to by man-induced activities where you get a further
6 depression of the DO, that generally is considered to be a
7 violation.
8 Q Does the Department utilize some yardstick against
9 which it measures the even lower dissolved oxygen
10 concentrations that are attributable to man-induced
11 discharges?
12 A Define "yardstick."
13 Q What does the Department compare these lower DO
14 concentrations to in order to determine that there is a
15 violation, given the fact that the rule already isn't being
16 met?
17 A I wouldn't agree that the rule already isn't being
18 met if you have naturally low dissolved oxygen conditions,
19 but typically, you would try to find -- an example of a way
20 you would do it is you would try to find a natural area
21 that is not influenced by man's activities or less
22 influenced by man's activities that the area that you are
23 concerned about, and you would compare the dissolved oxygen
24 levels, fluctuations that you observed in that area to the
25 area of concern, and if you see that the dissolved oxygen
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1 levels or the fluctuation in the dissolved oxygen levels
2 are adversely impacted in the area of concern, then you can
3 relate that to man's activities, and you can say that that
4 is not allowable.
5 Typically, we look at a measurable difference of
6 about a tenth of a milligram per liter.
7 Q Let me see if I can paraphrase what you just
8 said.
9 Let's say, for example, that in the Everglades
10 ecosystem you find an unenriched area, more natural area
11 that has a dissolved oxygen concentration of, let's say,
12 three milligrams per liter, and you compared that to an
13 enriched area that had a dissolved oxygen concentration of,
14 say, 2.5 milligrams per liter.
15 Would that, by your lights, constitute a violation
16 of the standard?
17 A It could.
18 Q Would a dissolved oxygen concentration of 2.9
19 milligrams per liter constitute a violation of that same
20 circumstance?
21 A It could.
22 Q What if the dissolved oxygen concentration in the
23 enriched area were the same as or even higher than the
24 natural background dissolved oxygen concentration, even if
25 it is below five milligrams per liter?
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1 A If it is not causing or contributing to a further
2 depression of the DO, or the natural fluctuation patterns
3 that you see, then that would not be a violation.
4 Q What would you do if some samples showed that
5 certain enriched areas were better than, that is, at higher
6 dissolved oxygen concentrations in natural or background
7 unenriched areas, while others might show a slightly lesser
8 dissolved oxygen concentration?
9 A I think you would have to look at the impact of
10 those dissolved oxygen levels on the biology of the system,
11 and if you determine that they had an adverse impact, you
12 can still determine that those are violations, constitute
13 violations.
14 Q Would you use as your measuring stick whether that
15 dissolved oxygen concentration was unreasonably, was
16 unreasonably interfering with the designated use of that
17 water body?
18 A The dissolved oxygen concentrations in the
19 criteria established in the rule are established to protect
20 the designated use. By virtue of the fact that you have a
21 violation of the dissolved oxygen standard, you may believe
22 that that is unreasonably interfering with the designated
23 use.
24 Q You mentioned a few minutes ago the possibility
25 of establishing a site-specific alternative criterion, or
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1 SSAC, for dissolved oxygen, for dissolved oxygen for an
2 area such as the Everglades ecosystem. What is a SSAC?
3 A I don't think I mentioned that. I think I said
4 the rule allows for the establishment --
5 Q I think I just said you mentioned the possibility.
6 What is a SSAC?
7 A A site-specific alternative criterion is a new,
8 primarily a new numerical criterion that is established for
9 a water body or a component of a water body that recognizes
10 that there are either natural conditions or man-induced
11 non-abatable conditions that exist in that area that
12 justify the establishment of the criteria.
13 Q Would it be appropriate to establish a SSAC for
14 the Everglades Protection Area for dissolved oxygen?
15 A I don't know that I can comment that it would be
16 appropriate. The rule allows it.
17 Q What factors does the Department look for or look
18 to in determining whether to develop a SSAC for a given
19 water body?
20 A You look at whether or not the conditions are
21 natural or whether they are man-induced and non-abatable.
22 Q Would you agree that natural conditions in the
23 Everglades ecosystem are frequently below five milligrams
24 per liter for dissolved oxygen?
25 A Yes.
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1 Q Naturally?
2 A Yes, I would.
3 Q Would that be, given that admission, would that be
4 an appropriate circumstance for the promulgation of a SSAC
5 for dissolved oxygen?
6 A It could be.
7 Q Your answer is somewhat tentative. Why do you say
8 it could be as opposed to it should be?
9 A Well, it would be a factor we could consider in
10 the establishment of a SSAC.
11 Q Why wouldn't you, for what reason might you not
12 establish a SSAC for DO in that circumstance?
13 A Well, we don't typically go out and examine every
14 portion of every water body around the state and just
15 automatically establish a SSAC. Typically, we wait for
16 somebody to petition us to establish a SSAC, or if the
17 circumstances are such that one is justified in dealing
18 with the situation we are dealing with, we can initiate
19 that process ourselves.
20 Q Did the Department ever initiate that process
21 itself for the Everglades Protection Area?
22 A Not that I am aware of.
23 Q Do you know whether the Department -- whether the
24 Department was requested by anyone to establish a SSAC for
25 dissolved oxygen in the Everglades Protection Area?
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1 A I was not requested. I can't speak for the rest
2 of the Department.
3 Q Well, assuming that the Department had been
4 requested to do that, would you recommend that that be
5 followed up on?
6 A Be followed up on?
7 Q Yes.
8 A In terms of --
9 MR. SMITH: Object to the form.
10 THE WITNESS: We would certainly respond to that
11 request.
12 BY MR. HYDE:
13 Q Mr. Harvey, I would like you to accept my
14 representation that the Department has been requested to
15 establish a SSAC for dissolved oxygen and has not done so.
16 Do you know why it has not done so?
17 MR. SMITH: Object to the form.
18 THE WITNESS: No, I don't.
19 BY MR. HYDE:
20 Q Has anyone ever discussed with you the possibility
21 that a SSAC be established pursuant to anyone's request for
22 the Everglades Protection Area?
23 A There have been several discussions of moderating
24 provisions, including SSACs, for the area. I was involved
25 in some of the those discussions.
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1 Q With whom were those discussions?
2 A Well, I think I answered a question at a workshop
3 from Mr. Green one time about site-specific alternative
4 criteria. I probably had discussions with Tim Smith about
5 moderating provisions for the Everglades Protection Area.
6 Beyond that, I can't remember any specific individuals. Tom
7 Swihart would be one.
8 Q Do you know whether any of those individuals took
9 any subsequent action in that regard?
10 A It was just discussed in general. I don't -- it
11 was not discussed in light of someone has formally
12 requested or petitioned or sent in the appropriate fee or
13 whatever to initiate the SSAC review process.
14 Q How does the Department determine or what factors
15 does it look to in determining whether there is a, quote,
16 natural condition which justifies the establishment of a
17 SSAC for a given water body?
18 A In general, you would use the best available
19 scientific information and try to find a similar area of
20 the water body to the area of concern and to look at how
21 impacted that area is due to man-induced conditions,
22 compare that area to the area of concern, or you could --
23 there are other techniques in looking at the data using
24 modeling techniques to try to back out the man-induced
25 activity.
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1 Q How does one determine whether there are, quote,
2 man-induced conditions which cannot be controlled or abated
3 such as would give rise to the creation of a SSAC for a
4 given water body?
5 A It is really very site-specific. You would look
6 at the type of activity obviously impacting the resource,
7 the levels of control technically that can be implemented
8 to control that type of activity, primarily looking at
9 technical solutions, if there is a technical solution.
10 Q By your reckoning, are there any truly, quote,
11 natural, end quote, areas left in the Everglades Protection
12 Area?
13 MR. SMITH: Object to the form.
14 THE WITNESS: I would say that all of the areas
15 have been impacted to one degree or another by man's
16 activities.
17 BY MR. HYDE:
18 Q How do you make the, or do you make a
19 differentiation between natural areas that have not been
20 affected by man's activities as opposed to areas such as
21 the Everglades ecosystem that have been impacted, obviously
22 been impacted by man's activities?
23 A I think you use a lot of professional scientific
24 judgment. You can still, even though that the area has
25 been impacted by man's activities, you can look at the data
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1 and compare it to other data available for other systems to
2 see whether or not the behavior of that system is outside
3 the normal expectations of those parameters.
4 Q Are you familiar with the Department's water
5 quality standard for biological integrity?
6 A Somewhat.
7 Q Does that standard look to impacts on benthic
8 macroinvertebrates?
9 A It is my understanding it does.
10 Q What by your lights is a benthic
11 macroinvertebrate?
12 A Well, a macroinvertebrate is really an organism,
13 primarily an animal, certainly that didn't have a backbone,
14 primarily an insect larva, that is visible with the naked
15 eye, that lives either in or in close proximity to the
16 sediment.
17 Q Do you understand the methodology by which the
18 Department determines whether the biological integrity rule
19 is violated?
20 A Generally.
21 Q Do you know whether the Department has, in fact,
22 determined that that biological integrity rule is being
23 violated in the Everglades Protection Area?
24 A I believe there is a memorandum from the biology
25 Department that addresses that, a statement that addresses
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1 that.
2 Q Do you know what evidence the Department is
3 relying on that establishes that violation?
4 A Not right off the top of my head.
5 Q Have you ever seen or heard mention of a study
6 that was done by Terczak of the water management district
7 back in 1979, 1980, regarding the biological integrity
8 rule?
9 A I believe that is a study that was referenced in
10 Frank Nearhoof's report.
11 Q Do you know of any other studies which purport to
12 show violations of the biological integrity rule in the
13 Everglades ecosystem?
14 A Not that I can recall right now. I would have to
15 refer back to Frank's report.
16 Q Assuming that to be the only document or study
17 that establishes or purports to establish a violation of
18 the biological integrity rule, do you think it is a good
19 practice or good policy for the Department to rely upon a
20 study that is 12 years old to establish -- or excuse me, a
21 report that is 12 years old to establish violations of
22 water quality standards?
23 A If the data were good, I see no reason to discount
24 the data.
25 Q The data can change in a 12-year period, can it
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1 not?
2 A Data are data. I hope they don't change over a
3 12-year period.
4 Q Conditions can change?
5 A Conditions can change.
6 Q If a more current and more recent study that was
7 done in accordance with the methodology prescribed in the
8 biological integrity rule demonstrated that there was no
9 violation of that standard, would you consider that more
10 contemporary or current study to be better proof of that
11 issue than the 12-year-old Terczak study?
12 A I would hate to speculate. Certainly it would be
13 information we could take into account.
14 Q Well, if the study were done in strict compliance
15 with the methodology prepared in the rule, what reason
16 could the Department possibly have to discount that more
17 contemporary study in favor of the 12-year-old Terczak
18 study?
19 A I would think that we would have to look at how
20 well that information characterized the area.
21 Q Does the biological integrity rule speak to
22 reductions in benthic macroinvertebrate density and
23 diversity as measured by the index described in the rule?
24 A In general, it does.
25 Q Does it purport to regulate increases in species
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1 diversity or density?
2 A It is my understanding that it just regulates
3 decreases.
4 Q Would you agree then there are increases in
5 species diversity and density that is not, in fact, a
6 violation of the rule?
7 MR. SMITH: Object to the form.
8 THE WITNESS: I would have to look at the data. I
9 think it depends upon the organisms that would be
10 colonizing the Hester-Dendy samples.
11 BY MR. HYDE:
12 Q Well, if a study were done in strict compliance
13 with the methodology prescribed in the rule, and if that
14 study demonstrated, if anything, that there are greater and
15 not lesser species diversity and density, would you agree
16 that that doesn't constitute a violation of the rule?
17 A As I said, I would have to look at the data.
18 Perhaps somebody looks at the data, if we are talking about
19 organisms that are indigenous to that area and they were
20 present in greater numbers and greater diversity and those
21 samples adequately characterize the area, I would think
22 they would be hard-pressed to determine that there is a
23 violation.
24 Q Does the rule speak between indigenous and non-
25 indigenous species of benthic macroinvertebrates?
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1 A I don't know if it specifically speaks to that,
2 but it certainly implies. You don't want to have organisms
3 from South America that are non-indigenous to the area
4 colonizing the area. It could cause other problems.
5 Q Wouldn't you, in fact, in other circumstances be
6 looking to a different rule to establish a violation of
7 state water quality standards?
8 A Such as with --
9 Q Nuisance species, for example.
10 A You could.
11 Q Or narrative nutrient standard.
12 A I am not sure how the narrative nutrient standard
13 would apply to that situation.
14 Q Is there anything on the face of the biological
15 integrity rule that makes a differentiation between
16 indigenous and non-indigenous species of
17 macroinvertebrates?
18 A Can I take a few minutes to look at the rule?
19 Q Sure.
20 A What was that citation?
21 Q 17-302.560, and subsection (9).
22 MR. SMITH: I am going to object to the extent
23 that this is calling for a legal conclusion on a rule
24 that he doesn't use all of the time. I really think he
25 is the wrong guy to be asking these questions of. To
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1 the extent that he knows generally what the rule means
2 and how it is applied, I can see your asking questions;
3 otherwise, I think it is a waste of time.
4 MR. HYDE: Objection noted.
5 THE WITNESS: Restate your question, please.
6 BY MR. HYDE:
7 Q Is there anything in the wording of the biological
8 integrity rule that makes a differentiation between
9 indigenous and non-indigenous species of benthic
10 macroinvertebrates?
11 A I think when you look at the 17-320.560 criteria
12 for Class III waters, it refers to recreation, propagation
13 and maintenance of a healthy, well-balanced population of
14 fish and wildlife. There is, certainly the implication
15 there is that you have a healthy, natural population of
16 fish and wildlife, not an unnatural, non-indigenous
17 population.
18 Q Do you know whether there are non-indigenous
19 species of benthic macroinvertebrates turning up in the
20 enriched areas of the Everglades?
21 A I have heard there were. There has been some
22 misidentification of some macroinvertebrates by some
23 consultants, but other than that, no, I am not.
24 Q Do you have any reason to believe that there are
25 non-indigenous species of macroinvertebrates turning up in
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1 the Everglades?
2 A Turning up in the Everglades?
3 Q Everglades ecosystem.
4 A Do I have any reason to believe --
5 Q That there are non-indigenous species that are
6 turning up in these samples that are being taken to
7 determine compliance with the biological integrity
8 standard.
9 A No, I do not.
10 Q I would like you to assume that the benthic
11 macroinvertebrate species that are, in fact, being sampled
12 in the Everglades ecosystem are indigenous species.
13 Given that assumption, would you agree that an
14 increase in the diversity and density of macroinvertebrate
15 populations, even in enriched areas, does not constitute or
16 would not constitute a violation of the biological
17 integrity rule?
18 A Restate that for me.
19 Q Okay. Assume for purposes of my question that the
20 species of benthic macroinvertebrates that are being
21 measured or sampled in the Everglades Protection Area are
22 indigenous species.
23 MR. SMITH: All of the species?
24 MR. HYDE: Yes. All or a great percentage of
25 them, let's put it that way.
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1 MR. SMITH: All right.
2 THE WITNESS: I think there is a difference.
3 BY MR. HYDE:
4 Q Let's say all, let's say all. Okay. Assume that
5 all of the species that are being sampled are indigenous
6 species, that is, commonly found or found in the Everglades
7 Protection Area naturally, okay?
8 Given that assumption, would you agree that an
9 increase in species diversity or density does not
10 constitute a violation of the biological integrity rule?
11 A I am going to qualify my answer by saying I would
12 like to look at the data first, but generally I would agree
13 with that statement.
14 Q If it is demonstrated that the biological
15 integrity rule is not being violated, is that in the
16 Department's inquiry as to whether benthic
17 macroinvertebrates are causing or reflective of a violation
18 of the Department's rules?
19 A I don't understand the question.
20 Q Can benthic macroinvertebrate species density or
21 diversity be utilized to establish a violation of any other
22 standard beyond the biological integrity rule?
23 A I would think so, yes.
24 Q Which one, and why?
25 A I would think you could use the presence or
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1 absence of populations of macroinvertebrates to identify
2 problems associated with DO, problems associated with
3 substances that might be toxic, or other criteria, other
4 parameters.
5 Q Do you know whether any of those circumstances are
6 present in the Everglades Protection Area?
7 A In terms of low DO?
8 Q No, in terms of benthic macroinvertebrate density
9 or diversity.
10 A I don't recall looking at any macroinvertebrate
11 data other than the data that were generated or described
12 in Frank Nearhoof's report.
13 Q Have you reviewed the Terczak study yourself? I
14 don't recall if I asked you that question.
15 A No, I have not.
16 Q Do you have any opinion as to whether that was a
17 scientifically sound study?
18 A Only the opinion that was referenced in Frank
19 Nearhoof's report and described in Frank Nearhoof's report,
20 so --
21 Q Well, did Mr. Nearhoof, for lack of a better term,
22 represent to you that it was a good study and it
23 established violations of the biological integrity
24 standard, or more or less just an assumption?
25 A I would have to look at his report to refresh my
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1 memory.
2 Q Speaking of Mr. Nearhoof's report, I believe he
3 indicated that you had requested him to prepare it?
4 A Yes, I did.
5 Q Why did you request him to do so?
6 A Primarily to review the available literature, to
7 document the extent to which the literature indicated there
8 were violations in the Everglades Protection Area of state
9 water quality standards.
10 Q Why did you want to do that?
11 A I think it was necessary.
12 Q Were you requested by anyone in the Department to
13 make such a study or conduct such a study?
14 A No, I was not.
15 Q This was your idea?
16 A Yes, it was.
17 Q When did you request Mr. Nearhoof to do that
18 study?
19 A Well, we discussed it throughout, just in general,
20 1991, we discussed it probably in the spring of 1991.
21 Q Was there some precipitating event that caused you
22 to believe that such a study was necessary?
23 A I wouldn't characterize it as a study, I would
24 characterize it as a summary of review and summary of the
25 available information for the area on the water quality
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1 conditions.
2 Q Given that different characterization, was there
3 some precipitating event that you felt made it necessary to
4 do?
5 A Well, just the whole settlement negotiating
6 process, the SWIM Plan review process, the anticipation of
7 receiving an application for the permit; I just felt like
8 there had been information presented in the SWIM plans,
9 information presented to us from our district offices,
10 memos to the file from our biology section that identified
11 water quality violations, and I thought it would be
12 worthwhile to once and for all review all of that
13 information and put it together in one document for
14 everybody's information and use.
15 Q Do you know whether, prior to the onset of the
16 settlement negotiations in the federal litigation, the
17 Department took the position that there were not violations
18 of state water quality standards?
19 A I don't know that. How much prior are you talking
20 about?
21 Q Let's say 1990, for example.
22 A I wasn't personally involved in that process at
23 that time.
24 Q Were you ever involved in the Department's defense
25 of its -- the litigation initiated by the United States
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1 government in federal district court?
2 A Was I ever involved in it?
3 Q Yes.
4 A Yes.
5 Q Were you called upon to be a witness in that
6 proceeding?
7 A No.
8 Q Were you ever deposed?
9 A No.
10 Q What was the extent of your involvement?
11 A My involvement began late winter of 1991 at the
12 request of the Secretary.
13 Q Why did the Secretary request that you get
14 involved in it?
15 A You would you have to ask her.
16 MR. SMITH: Object to the form.
17 MR. HYDE: Okay. Let's take a brief recess.
18 (Brief recess taken.)
19 BY MR. HYDE:
20 Q Let's go back on the record.
21 Mr. Harvey, let me ask you a few more questions
22 about the Nearhoof report.
23 Did you request Mr. Nearhoof to prepare that
24 report before or after the Department entered into the
25 settlement agreement in the federal litigation?
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1 A Before the Department signed the settlement
2 agreement?
3 Q Yes.
4 A To be honest with you, I don't remember the exact
5 time when I directed him to do that. I do remember that
6 before the settlement agreement was signed that we had
7 discussions about preparing such a report.
8 Q Why didn't the Department perform and complete
9 such an analysis before it entered into the settlement
10 agreement?
11 MR. SMITH: If you know.
12 THE WITNESS: I can only answer in terms of my
13 time and Frank's time. We didn't have time to do it.
14 BY MR. HYDE:
15 Q Did you regard Mr. Nearhoof's preparation of this
16 report as an attempt after the fact to justify the
17 Department's entry into the settlement agreement?
18 A No, I did not.
19 Q We have been discussing a series of water quality
20 standards, and I think those are the standards that were
21 identified by Mr. Nearhoof as being violated in the
22 Everglades Protection Area.
23 Are there any other standards, to your knowledge,
24 that are being violated or upon which you will be offering
25 testimony in this proceeding?
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1 A Beyond those described in the Nearhoof report?
2 Q Right.
3 A No.
4 Q All right.
5 A Not to my knowledge.
6 Q Are you familiar with the moderating provisions
7 found under Chapter 17-302?
8 A Yes, I am.
9 Q What is the purpose of the moderating provisions?
10 A Specific ones or collectively?
11 Q Collectively.
12 A I think they have multiple purposes, to recognize
13 there are natural conditions that may not meet the
14 numerical criteria, to recognize that there are situations
15 where discharges would have to meet in their effluent state
16 water quality standards in order to be allowed to discharge
17 without some moderating provisions.
18 There are -- there is a recognition that some
19 discharges don't represent a significant adverse impact to
20 the receiving environment, just in general.
21 Q Are they intended to -- is one of the purposes
22 behind the moderating provisions an intent to weigh the
23 costs of a regulation as opposed to its -- do a cost
24 benefit analysis as to the cost compliance versus the
25 environmental benefit obtained?
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1 A Let me double-check on that.
2 MR. SMITH: Since he is having to double-check, I
3 raise the same objection I did before about calling for
4 a legal conclusion.
5 MR. HYDE: Okay.
6 THE WITNESS: Well, I am quoting from the rule and
7 I am quoting from 17-302.100, paren, (10)(b)(2), what I
8 consider to be discussion of moderating provisions.
9 It says the mixing zone, zone of discharge, site-
10 specific alternative criteria exemption and equitable
11 allocation provisions are designed to provide an
12 opportunity for the future consideration of factors
13 relating to localized situations which cannot be
14 adequately addressed in this proceeding, including
15 economic and social consequences, attainability,
16 irretrievable conditions, natural background and
17 detectability, so that that I read from includes
18 economic consequences.
19 BY MR. HYDE:
20 Q Do you know whether the Department considered the
21 application of the -- of these moderating provisions in
22 determining whether there were violations of the state
23 water quality standards or in reviewing and approving the
24 Everglades SWIM Plan?
25 A I am not sure I understand the question.
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1 Q Well, did the Department ever consider the
2 application of the moderating provisions to the Everglades
3 Protection Area?
4 A I would say that there had been discussions within
5 the Department about the application of moderating
6 provisions in the Everglades Protection Area.
7 Q Were you a participant in those discussions?
8 A Yes.
9 Q Who else was?
10 A Tom Swihart, Frank Nearhoof.
11 Q Anyone else?
12 A Probably. I don't recall who.
13 Q What was the purpose of those discussions?
14 A Well, one discussion I am referring to is that Tom
15 Swihart made numerous presentations, Tom was part of the
16 technical team that we had put together to deal with the
17 settlement negotiations, and he made a presentation to both
18 the water management district and federal scientists
19 involved in the process about the state water quality
20 standards, 17-302, including a discussion of the moderating
21 provisions that are incorporated in 17-302.
22 There was a discussion at at least one of the
23 meetings or workshops that I attended at the South Florida
24 Water Management District, I am not sure if it was
25 involving the SWIM Plan or the BMP rule or components of
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1 those, where we talked about moderating provisions or
2 answered questions posed to us about moderating provisions.
3 Tom Swihart was not there then.
4 Q When did these internal discussions concerning the
5 moderating provisions take place?
6 A Well, the description of the state water quality
7 standards, 302, and the moderating provisions that are
8 included in 302 presentations were made by Tom Swihart
9 early in the process, the first or second meeting that I
10 attended, probably the second meeting that I attended.
11 Q With whom was this meeting?
12 A This was a meeting between the technical teams
13 that the various parties to the lawsuit had pulled together
14 to see if we could reach a consensus on the technical terms
15 for settling the agreement.
16 Q You are referring to the settlement negotiations
17 in the federal litigation, is that correct?
18 A Correct.
19 Q What occurred as a result of those discussions
20 regarding the moderating provisions?
21 A It was primarily just a presentation by Tom
22 walking the different parties through the process,
23 describing the water quality criteria and moderating
24 provisions.
25 Q Was there any follow-up to that presentation?
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1 A Tom made that presentation about five times during
2 that process.
3 Q Was he making it to different people? Is that the
4 reason why he made it so many times, or was he trying to
5 get a point across that wasn't being received?
6 A Both.
7 Q Why, to your knowledge, wasn't the presentation
8 being accepted or understood?
9 MR. SMITH: If you know.
10 THE WITNESS: I really don't know.
11 MR. GREEN: I object to that prompting of the
12 witness, for the record. It is obvious that Mr. Harvey
13 was at these meetings, and it is obvious that he would
14 only answer if he knew.
15 MR. SMITH: Okay, I object to the form then.
16 MR. FITZGERALD: I object to the form because it
17 calls for speculation as to why other people did not
18 understand. It is something that he could not possibly
19 know.
20 BY MR. HYDE:
21 Q Where did these discussions take place?
22 A Physically?
23 Q Yes.
24 A The first discussion took place in Miami. There
25 were follow-up discussions of these issues at the
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1 headquarters of the South Florida Water Management District
2 in West Palm Beach. Those are two that specifically I
3 remember. There may have been other physical locations.
4 Q Let me just back up for a moment. When did you
5 first become involved in the settlement discussions?
6 A In --
7 Q In the federal litigation, obviously.
8 A It was late winter, early spring of '91. I
9 believe it was March. I can't remember the exact date. It
10 could have been February.
11 Q Were you requested by Secretary Browner to get
12 involved at that time?
13 A Yes.
14 Q Did Secretary Browner give you any guidance or
15 instructions as to what you were to do on behalf of the
16 Department?
17 A She just basically told me that I would be the
18 technical representative on this technical -- in this
19 technical group.
20 Q Is that all she said to you? She didn't give you
21 any further guidance or policy suggestions that you were to
22 implement or guide yourself by?
23 A She just told me that I would be involved in this
24 group and that there would be representatives from the
25 federal government, from the water management district, and
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1 we were to try to see if we could develop an understanding
2 of the problems and see if we could do some fact-finding to
3 see if we could reach some consensus and report back as to
4 what can be done to correct the problems.
5 Q When did your first meeting take place with the
6 representatives of the federal government?
7 A I would have to look at my calendar, but it was
8 shortly after I was selected by Secretary Browner.
9 Q Would that be useful for you to look at your
10 calendar to determine that date?
11 A Do you need the specific date?
12 Q I would like it if you have it. We can take a
13 break, and you can pull your calendar.
14 A Do I have -- I need it. I don't know if I have my
15 calendar back. I think it was for that I made available,
16 my 1991 calendar, I am not sure, I don't know if my
17 secretary has it, to be honest with you.
18 Q I don't know, either.
19 MR. SMITH: If you wanted to check, you can check.
20 I don't have it.
21 MR. HYDE: Go ahead.
22 (Brief recess.)
23 MR. HYDE: Let's go back on the record.
24 BY MR. HYDE:
25 Q Mr. Harvey, have you found your calendar for
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1 1991?
2 A Yes, I have.
3 Q Have you looked at it and have you been able to
4 determine when that first meeting took place?
5 A I see that I was scheduled to go to West Palm
6 Beach on Tuesday, March 5th. I believe that was the first
7 day. I would have to really check my travel authorization,
8 but I believe that that was the first day.
9 Q Do you recall with whom you met during that first
10 meeting?
11 A I met with Mike Soukup from the Everglades
12 National Park, Mark Maffei from the Loxahatchee Wildlife
13 Refuge, and I don't recall -- I believe there was somebody
14 there from the water management district, but I don't
15 recall who.
16 Q Was Mr. Swihart with you?
17 A No, he was not.
18 Q Was anyone else with the Department with you?
19 A No.
20 Q Was any counsel with you?
21 A No.
22 Q Do you recall whether that meeting was before or
23 after Governor Chiles's now famous "I surrender my sword"
24 speech to the Federal District Court judge?
25 A I have no idea.
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1 Q What did you discuss at this first meeting?
2 A It was primarily a meeting for us to get to know
3 each other, who the lead technical people would be for the
4 various parties. We also had a teleconference call at that
5 time.
6 Q You had a teleconference call in West Palm Beach?
7 A Right.
8 Q With the same or with different people?
9 A With different people.
10 Q Who were the other people involved in the
11 telephone conference call, if you can recall?
12 A Dan Thompson from the Department, and there were
13 other attorneys, I can't swear to who they were. We had
14 several telephone conferences.
15 Q You had several telephone conferences during that
16 first meeting?
17 A No. During subsequent meetings we had several
18 telephone conferences.
19 Q Let's focus for a moment on this first meeting.
20 Were those other participants in the conference
21 call attorneys for the federal government?
22 A I believe they were.
23 Q Was there any attorney for the water management
24 district involved?
25 A I cannot recall if there was an attorney from the
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1 water management district in that conference call.
2 Q Was there any attorney representing any other
3 person or entity involved in that first telephone
4 conference?
5 A No.
6 Q What did you discuss?
7 A Basically, as I recall, we talked about the need
8 for frequent meetings, established a schedule or a time for
9 a subsequent meeting. Beyond that, I don't recall the
10 exact details.
11 MR. GREEN: Excuse me, counsel for the Department,
12 if it would be -- and the federal government, it may
13 save time later, if this relates to -- if this exhibit
14 relates to the questions that Mr. Hyde is -- I would
15 introduce it later. If he wants to introduce it now,
16 it will save time, if you don't object.
17 MR. SMITH: No objection.
18 MR. FITZGERALD: No.
19 MR. GREEN: If it is related.
20 MR. HYDE: Let's go ahead and mark this.
21 (Whereupon, Exhibit No. 6 was marked for
22 identification.)
23 BY MR. HYDE:
24 Q Could you identify a document that has been
25 labeled Exhibit 6?
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1 A It is a sheet of paper with a list of names,
2 affiliations and phone numbers, dated March 8, 1991.
3 Q Is that the list for the meeting that you were
4 talking about in West Palm Beach?
5 A No, it isn't.
6 Q Is that for a subsequent meeting?
7 A Yes, it is, not in West Palm Beach.
8 Q Where was this subsequent meeting held?
9 A Miami.
10 Q Let's just put that down for a moment.
11 Back to your meeting on, what was it, March 4?
12 A March 5.
13 Q March 5, excuse me, did you discuss substantively
14 the terms of a settlement agreement at that time with the
15 federal government persons?
16 A Describe what you mean, substantive terms of the
17 settlement agreement.
18 Q Were you presented with a draft, or did you
19 discuss in any meaningful sense terms and provisions that
20 might be incorporated into a settlement agreement between
21 the parties?
22 A I don't recall discussing those specifics at that
23 meeting.
24 Q Did you ever discuss the implementation or
25 application of the moderating provisions during that
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1 meeting?
2 A At that meeting, I don't believe we did.
3 Q Did you discuss the issue of the existence or
4 cause of water quality violations in the Everglades
5 Protection Area?
6 A I don't remember discussing that at that meeting.
7 Q Did you discuss interim or long-term phosphorus
8 concentrations or limitations?
9 A I don't recall discussing that issue at that
10 meeting.
11 Q Did you ever discuss any phosphorus limits for the
12 Park or Refuge?
13 A At that meeting?
14 Q Yes.
15 A I don't recall.
16 Q Did you ever discuss any proposed solutions to
17 what were perceived to be the problems in the water
18 conservation areas?
19 A At that meeting, that meeting was primarily more
20 of an organizational meeting.
21 Q When did you next meet with the representatives of
22 the federal government in these settlement negotiations?
23 A According to my calendar, March 8, 1991.
24 Q Is Exhibit 6 an exhibit, an attendee list of the
25 persons for that March 8 meeting?
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1 A I believe it is.
2 Q And forgive me for asking this again if I have
3 already asked it, but where did that meeting take place?
4 A That meeting took place in Miami.
5 Q Do you know where in Miami it took place?
6 A It was, I think, at the Federal Reserve Building,
7 an office or conference room of the U.S. Geological Survey
8 branch office.
9 Q Referring to Exhibit 6, there are three names at
10 the middle to bottom of the page without a last name
11 appended to them. Do you know who those people or what is
12 being referred to here?
13 A Are you talking about "John, George, Doug"?
14 Q Yes.
15 A I don't specifically recall them. I can
16 speculate, but I am not --
17 Q Is this list that is Exhibit 6 a complete list of
18 the persons who were in attendance at that meeting?
19 A I can tell you that John, George and Doug were not
20 at that meeting. The -- a complete list, there was
21 somebody from the U.S. Geological Survey, Aaron, and I
22 can't remember his last name, who was in and out, but
23 primarily just to make sure we had everything we needed.
24 That individual did not participate in the discussions.
25 Q What was the purpose of this meeting, or what did
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1 you discuss at this meeting?
2 MR. SMITH: Object to the form.
3 THE WITNESS: I believe this was the first meeting
4 where we had an additional teleconference call with the
5 attorneys. They discussed a statement of principles
6 that we would -- that had been agreed to by the parties
7 in the federal litigation, that gave us some direction
8 as to the issues that we were to address. That was one
9 discussion. I cannot recall if at this meeting or a
10 subsequent meeting we had Tom Swihart give his first
11 presentation on the 17-302. I believe it was at this
12 meeting.
13 BY MR. HYDE:
14 Q Did Mr. Swihart's presentation include the
15 moderating provisions that are set forth in 17-302?
16 A I don't remember specifically, but I believe it
17 did. His presentation didn't vary significantly from time
18 to time.
19 Q Was Mr. Swihart just setting forth what the
20 Department's rules and regulations were?
21 A He was there primarily as the water quality
22 standards coordinator for the Department, just to make a
23 general presentation on the water quality standards.
24 Q Did anyone else make a presentation similar to Mr.
25 Swihart's?
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1 A I don't recall any other presentations, formal
2 presentations being made.
3 Q What did you discuss at this meeting?
4 A I don't have my notes. As I mentioned, we
5 discussed -- we listened to the attorneys. I believe that
6 that was the first time we got a copy of the statement of
7 principles from the attorneys.
8 Q Could I see that? Do you know who authored this
9 statement of principles?
10 A No, I do not.
11 Q Do you recall who the attorneys were on that
12 conference call?
13 A Dan Thompson, Miles Flynn, F-l-y-n-n, or Flint,
14 Steve Walker.
15 MR. FITZGERALD: Just to keep the record clear,
16 it is Flint, F-l-i-n-t.
17 MR. HYDE: Okay.
18 THE WITNESS: There may have been other attorneys.
19 MR. FITZGERALD: For the record, I am only
20 contributing the spelling. I am not confirming he was
21 there, because I wasn't.
22 THE WITNESS: But he was not in attendance at the
23 conference.
24 BY MR. HYDE:
25 Q Did you regard this statement of principles as
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1 being in effect your marching orders for further settlement
2 agreement discussions?
3 MR. SMITH: Object to the form.
4 THE WITNESS: I regarded it as a process that kind
5 of framed the issues and questions we were to address.
6 MR. GREEN: Could we go off the record a second?
7 (Discussion off the record.)
8 BY MR. HYDE:
9 Q Do you know who -- maybe we should just make a
10 copy of this document for everyone to look at. Would that
11 be useful?
12 MR. SMITH: Sure.
13 MR. HYDE: Can we do that? I would be glad to
14 compensate the Department for the copies made.
15 MR. SMITH: Are you making it an exhibit?
16 MR. HYDE: Yes, I would like to make it an
17 exhibit.
18 (Discussion off the record.)
19 MR. HYDE: Let's go back on the record.
20 BY MR. HYDE:
21 Q A few moments ago, you basically said, "I don't
22 have my notes in front of me" or "I don't have my notes
23 with me." Did you, in fact, develop some notes for this
24 meeting?
25 A As best I recall, I took some limited notes at
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1 meetings.
2 Q Were these notes turned over in your production of
3 documents or in the public records suit initiated by my law
4 firm?
5 A Yes, they were.
6 Q Were those notes turned over to my law firm?
7 A They were turned over to my attorney.
8 MR. SMITH: They were turned over to your law
9 firm.
10 MR. HYDE: Okay. Were they in the documents that
11 you produced to us?
12 MR. SMITH: They were with Frank's documents. We
13 didn't hold anything back from what Frank had, Richard
14 gave them to Frank.
15 MR. GREEN: For the record, I think that the
16 Department has been responsive as far as I can tell to
17 the document request, but I cannot recall having found
18 those documents yet. It may be because I didn't --
19 they weren't identified or I missed them in the rush,
20 but I am sure they are somewhere.
21 THE WITNESS: They were turned over, Bill, from my
22 first deposition.
23 (Discussion off the record.)
24 MR. HYDE: We will go back on the record.
25 / / / / /
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1 BY MR. HYDE:
2 Q Could you take a look at these three indexes for
3 Volumes 1, 2 and 3, the privileged documents that were
4 released from your files, to determine whether your notes
5 are included in that list or any of those lists?
6 MR. HYDE: This is the next exhibit.
7 (Whereupon, Exhibit No. 7 was marked for
8 identification.)
9 THE WITNESS: Bill, there is an item 18, Volume
10 3, it says, "Handwritten notes, entitled Statement of
11 Principles." That may be just a copy of this, but it
12 says handwritten notes. That is the only thing I can
13 see, Bill.
14 BY MR. HYDE:
15 Q What was the number again?
16 A 18.
17 Q Which was that, Volume 3?
18 A Volume 3, number 18.
19 Q I would like for you to refer to Exhibit 7, which
20 is -- would you identify Exhibit 7?
21 A It is a three-page document entitled "Statement of
22 Principles."
23 Q I believe I asked you earlier if you knew whether
24 any -- who the author of this document was. Do you know
25 who established the, or determined the various principles
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1 or letters set forth in here?
2 A I just know that the attorneys were involved in
3 the process. I can't specifically say who authored, who
4 the primary author --
5 Q Let me ask you this. Refer to paragraph B.1.a.
6 that refers to the interim water quality standards for the
7 Park. Do you know who made that determination that that
8 was to be the figure employed?
9 A Not specifically, I do not.
10 Q Would that answer hold true for the other
11 remaining provisions of this document?
12 A Yes, it would.
13 Q Did anyone ever explain to you or to the group
14 generally what this statement of principles was and how it
15 was to be implemented?
16 A To the extent that we were going to be involved
17 in the process, it just identified it, and I am quoting
18 from the top of page 2, I guess the first full sentence in
19 that paragraph, it says, "The technical teams will meet
20 over the next 60 days in an effort to reach consensus as to
21 the appropriate five-year flow-weighted-mean concentration
22 of total phosphorus for each Everglades National Park water
23 delivery basin and for the Loxahatchee National Wildlife
24 Refuge."
25 That was basically our direction.
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1 Q I would like you to refer to paragraph D on page
2 2. This appears to only refer to two nutrient reduction
3 areas, Water Management Area 3, 14,000 acres, and the
4 Everglades Nutrient Removal Project of 3,700 acres. Did
5 these figures have any relationship to the later
6 development of the need for a figure of 35,000 acres more
7 or less in stormwater treatment areas?
8 A Certainly the Everglades Nutrient Removal Project
9 was something that had been initiated on 3,700 acres and
10 that was taken into account throughout the whole process,
11 that that project would be constructed. As far as I know,
12 later on in the process, the calculations that were used to
13 size the STAs and their locations, that was an independent
14 process, and I cannot really say how the 14,000 acre WMA-3
15 influenced that process.
16 Q At this second meeting, did you engage in any
17 substantive discussions to do what is set forth in
18 paragraph B.3, that is, try to reach a consensus as to the
19 appropriate concentrations of total phosphorus for the Park
20 and for the Refuge?
21 A We initiated the process to see if we could reach
22 that consensus.
23 Q Do you recall whether there was any discussion at
24 that meeting regarding the possible implementation of the
25 moderating provisions set forth in Chapter 17-302?
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1 A There was a presentation made by Tom Swihart where
2 he discussed the moderating, as best I remember, he
3 discussed the moderating provisions in his presentation.
4 Q Did he get any feedback from any of the persons
5 there regarding the moderating provisions?
6 A I don't recall.
7 Q What efforts did you make to reach a consensus on
8 these issues at this meeting?
9 A This meeting was -- as I stated earlier, the first
10 meeting was more of an organizational meeting. This was a
11 meeting whereby the parties really initiated a process of
12 educating each other as to our roles in the process, our
13 statutory responsibilities, things such as available data
14 for the different areas within the Park, things that, since
15 I had not worked in south Florida or been involved with
16 these projects, there was some discussions about how the
17 system functioned, descriptions of control structures and
18 water routing, things of that type.
19 Q Was there any discussion beyond Mr. Swihart's
20 presentation as to whether there were water quality
21 violations in the Everglades Protection Area?
22 A There were discussions about water quality
23 problems. I don't know that we got into any details about
24 whether or not those problems could be classified as
25 violations.
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1 Q Okay.
2 A At that meeting there may have been discussions.
3 I just don't recall.
4 Q Did those discussions identify any particular
5 areas, that is geographic areas, as being the problems or
6 having those problems?
7 A There was, as I recall, discussion of water
8 quality problems in Water Conservation Area 1 at that
9 meeting. There was a discussion of data available for
10 Water Conservation Area 1 and the Everglades National Park.
11 Q What role did Bill Walker play in this
12 discussion?
13 A Other than the fact that he was there, I don't
14 recall his exact role.
15 Q Do you recall what Mike Soukup's role was?
16 A Mike was there as a representative from the
17 Everglades National Park.
18 Q Other than being there on behalf of the Park, did
19 he discuss anything, to your recollection?
20 A Yes, he did, but I don't remember the details of
21 what he discussed.
22 Q What about Mark Maffei?
23 A Yes, he was there.
24 Q Do you recall any of his discussions or comments
25 at this meeting?
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1 A Just in general he talked about the problems that
2 existed in the Loxahatchee Wildlife Refuge.
3 Q When did you next convene this group to, I guess
4 this technical team?
5 MR. SMITH: I object to the form. He didn't
6 convene it as far as we know.
7 BY MR. HYDE:
8 Q When did this technical team next convene?
9 A My calendar shows I was in West Palm Beach on
10 March 12th.
11 Q Okay.
12 A I would have to look at my travel authorization
13 folder to see what the purpose was, but I presume it was to
14 -- for that meeting.
15 Q Was this with the same individuals as the March 8
16 meeting?
17 A Every one of the same individuals, I don't recall.
18 I would have to look at an attendance list.
19 MR. HYDE: Bill, do you have an attendance list
20 for any subsequent meetings?
21 MR. GREEN: No, I don't know if there was one, I
22 didn't see one.
23 BY MR. HYDE:
24 Q Do you recall generally what was discussed at this
25 March 12 meeting?
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1 A Generally?
2 Q Yes.
3 A More discussions of the water quality standards
4 identified in 302, the water quality problems, the
5 available data just in general.
6 Q Did Mr. Swihart discuss the moderating provisions
7 again?
8 A I don't recall. I am not even sure if he was at
9 that meeting.
10 Q Did you make any -- that is, did the group make
11 any determinations or reach any consensus as to any issues
12 at that meeting?
13 A I am sure we did not reach any consensus on any
14 issues at that meeting.
15 Q When did you next -- when did this technical team
16 next meet?
17 A Well, my calendar then shows me back in West Palm
18 Beach March 14 and 15. In the absence of my travel
19 authorization, I would assume that I wa