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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 130 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 131 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 132 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 Green 248 5 6 7 8 INDEX TO EXHIBITS 9 No. Marked 10 4 137 11 5 139 12 6 179 13 7 187 14 8 231 15 9 (withdrawn) 16 10 312 17 11 316 18 12 318 19 13 320 20 14 322 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 133 1 S T I P U L A T I O N 2 IT IS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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 134 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 135 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 136 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 137 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 138 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 139 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 140 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 141 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) -- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 142 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 143 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 144 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 145 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 146 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 147 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 148 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, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 149 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 150 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 151 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 152 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 153 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 154 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 155 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 156 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 157 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 158 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 159 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 160 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 161 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 162 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 163 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 164 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 165 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 166 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 167 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 168 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 169 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 170 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 171 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 172 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 173 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 174 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 175 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 176 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 177 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 178 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 179 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 180 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 181 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 182 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 183 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 184 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 185 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 186 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 / / / / / A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 187 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 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 188 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 189 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 190 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. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 191 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 192 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? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 193 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 was down there for 20 that purpose. 21 Q Do you recall what was discussed at this -- was 22 this a three-day meeting, two-day meeting? 23 A It ran, if I am correct and I was there for that 24 purpose, it did run two days. 25 Q Do you recall what was discussed at this two-day A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 194 1 meeting? 2 A Not specifically, just in general, the same types 3 of discussions that we had earlier. 4 Q Did you or Mr. Swihart ever make any presentation 5 regarding the application for the moderating provisions? 6 A Tom made several presentations that were virtually 7 identical to the original presentation that he made on 8 17-302 and the moderating provisions throughout the course 9 of this process, and I don't remember the specific dates of 10 those presentations. 11 Q Why did he keep making presentations of apparently 12 the same presentation, in fact? 13 MR. SMITH: This has been asked and answered, and 14 I object. 15 BY MR. HYDE: 16 Q To your knowledge. 17 A Basically, I asked him to do that to make sure 18 that there was -- that the water quality standards -- 19 17-302 can be confusing. I wanted to make sure that there 20 was a good understanding of what the standards meant. 21 Q Did the comments of the participants in these 22 meetings indicate that there was some confusion or lack of 23 understanding as to the state water quality standards? 24 A They indicated that to me, yes, some of the 25 comments to me. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 195 1 Q What were those comments? 2 A I don't recall specifically. 3 Q What generally did these comments reflect? 4 A Just in general a lack of understanding of 17-302. 5 Q Do you recall who was confused as to that, as to 6 those provisions? 7 A I recall having the impression that at least one 8 individual was confused about it. 9 Q Who was that? 10 A Mark Maffei. 11 Q Were you able to glean from his comments why he 12 was confused? 13 A No, not really. 14 Q About which rules was he confused? 15 A I would just say in general the Department rules 16 regarding these issues. 17 Q Was this perceived confusion by Mark Maffei the 18 reason that you requested Mr. Swihart to make several 19 presentations on the state water quality standards? 20 A Part of the reason. 21 Q What were the other reasons? 22 A Well, at different times, different people 23 attended the meetings, and to provide everyone an 24 opportunity to hear Tom's presentation, we had him repeat 25 it several times. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 196 1 Q Was Mr. Maffei trying to get the rules to say 2 something that you didn't think the Department meant? 3 A You will have to ask him. 4 Q You have no idea what confused him about the 5 rules? 6 A I have some idea. 7 Q What is that? 8 A I think he was -- my impression was that he was 9 not able to totally understand the outstanding Florida 10 waters designation, the designation as it related to Class 11 III criteria, the conditions that constituted a violation 12 of those standards, things of that type. 13 Q Did he express a view that was contrary to the way 14 that the Department implemented those standards, or did he 15 just say, "I don't understand what you guys are doing 16 here"? 17 A He expressed his opinions as to how he interpreted 18 what the water quality standards in the OFW designation 19 meant for the Refuge. 20 Q What was that opinion? 21 A He expressed opinions about the allowability of 22 the discharges through the structures coming into the 23 Refuge. He expressed opinions about the intent of the OFW 24 designation. 25 He expressed opinions about the data that could be A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 197 1 used to determine the conditions that existed at the time 2 of the designation. He expressed comments about the 3 conditions that he desired to be attained and maintained in 4 the Refuge through the process. 5 Q Let's go back to that first opinion that was 6 concerning the allowability of the discharges. 7 What did Mr. Maffei reflect in that regard? 8 A In general, he expressed the opinion that in his 9 reading of the rule, and based upon his knowledge of the 10 rules and discussions with others, that the discharges 11 coming through the water control structures, S5A, S6, were 12 not allowable at the time of the OFW designation. 13 Q Do you know what the basis -- did he express the 14 basis for his opinion that they were not allowable at the 15 time of designation? 16 A I believe he did, but I don't recall exactly the 17 rationale he presented to us. 18 Q Did you agree with that rationale? 19 A I told him that that required a legal opinion and 20 I was not qualified to express that legal opinion. 21 Q Did you ever ask someone in the legal department 22 to render such an opinion for you? 23 A I discussed it with at least one individual in our 24 Office of General Counsel. 25 Q What individual was that? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 198 1 A Bob Gough. 2 Q What did Mr. Gough tell you? 3 A He said that it was an issue that essentially had 4 not been resolved. 5 Q Was that the end of the subject? 6 A With respect to Bob Gough or Mark Maffei? 7 Q With respect to this issue. 8 A No, it was not. 9 Q Did you have any subsequent discussions with Mr. 10 Gough or did the Department ever make some determination or 11 final resolution of this issue? 12 A Those are two questions. 13 Q First question, did you discuss this issue 14 subsequently with Mr. Gough? 15 A I discussed this issue several times with Mr. 16 Gough. I just don't -- I don't recall how many times. 17 Q Did the Department ever make some final 18 determination or resolution of this issue? 19 A Not to my knowledge. 20 Q So do you regard it still as being up in the air, 21 that is, the allowability of these discharges into the 22 Refuge? 23 MR. SMITH: Object to the form. 24 THE WITNESS: I have not seen a resolution on that 25 issue. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 199 1 BY MR. HYDE: 2 Q What do you mean by allowability? 3 A Under the rule, OFW, the OFW rule where it 4 addresses the allowability of discharges. 5 Q When you use the term "allowability," are you 6 saying whether it can be allowed at all or absolutely 7 precluded, or are you talking about whether it is 8 grandfathered? 9 A I am talking about in the context of the OFW rule 10 that discusses discharges that were either permitted or had 11 applied for a permit at the time of designation; also 12 whether or not those discharges, whether or not they had a 13 permit, they had applied would cause or contribute 14 violations to the water quality standards in that context. 15 Q This goes back to our discussion yesterday of the 16 grandfathering provisions set forth in the OFW rule? 17 A Correct. 18 Q Mr. Maffei wasn't suggesting, was he, that those 19 discharges could not be allowed under any circumstances, 20 was he? 21 A I don't recall that specific suggestion by him. 22 Q The next general subject matter you identified 23 concerning Mr. Maffei was his notions as to the intent of 24 the OFW designation. Do you recall what he expressed in 25 that regard? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 200 1 A If you look at OFW rule, it talks about trying to 2 determine ambient water quality violations; just the best 3 available scientific information and taking into account 4 certain factors associated with the data, seasonal daily 5 fluctuations, things of that type. 6 Q Did you or did the Department generally disagree 7 with his notions in this regard? 8 A We told him that we had to follow, to the best of 9 our ability, the language in the rule in determining the 10 ambient water quality conditions that existed at the time 11 of designation. 12 Q How did his suggestions differ from the rule? 13 A Just one example that I can recall, he had 14 proposed using one specific data set for that purpose, as 15 opposed to using all of the available data. 16 Q Do you recall which data set that was? 17 A Not specifically, I do not. 18 Q Do you know why he wanted to utilize that one data 19 set? 20 A You will have to ask him. 21 Q Do you recall whether there was anything unusual 22 about that particular data set? 23 A Unusual? 24 Q Yes. 25 A Not that I recall. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 201 1 Q Did you regard it as a representative data set? 2 A We regarded it as a representative data set at the 3 time the data were collected. 4 Q Was this data collected during a given year, is 5 that what you are referring to? 6 A I believe it was one specific set of data 7 collected at a given time. 8 Q Do you recall what time that was? 9 A No, I do not. 10 Q You also stated earlier that Mr. Maffei offered 11 some opinions as to the data that could be utilized. Is 12 that the same thing? 13 A Yes, it is. 14 Q He also expressed some opinions as to the 15 conditions to be attained and maintained in the Park and 16 Refuge. Do you recall what his statements were in that 17 regard? 18 A Well, his statements primarily reflected the 19 naturally low nutrient conditions that existed at the time 20 of the development of the Everglades historically and the, 21 I guess the biology of the system that evolved with those 22 low concentrations of nutrients, and the desire to attain 23 and maintain similar low concentrations in the area. 24 Q What did you mean by the development of the 25 Everglades? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 202 1 A Well, as the Everglades developed historically, 2 geologically, through history over the last four or five 3 thousand years. 4 Q Are you talking about conditions, or was he 5 talking about conditions that existed 500 years ago or pre- 6 1948 or pre-1979? 7 A You will have to ask him. 8 Q Do you recall whether he related his opinion or 9 connected his opinion to the creation of the central and 10 south or southern Florida flood project? 11 A No, I don't. 12 Q At any time that, or during any time that Mr. 13 Swihart discussed the provisions of Chapter 17-302, 14 including the moderating provisions, did anyone ever 15 suggest or comment that the moderating provisions should 16 not come into play here? 17 A As best I recall, yes. 18 Q Who was that? 19 A I believe it was Mark Maffei. 20 Q Do you know when he made that comment? 21 A No, I don't recall. 22 Q Do you know what the basis was for that comment? 23 A In general, it related to the allowability of 24 mixing zones in outstanding Florida waters. 25 Q Had someone suggested the possible creation of a A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 203 1 mixing zone? 2 A I don't recall specifically if they suggested 3 that. 4 Q Did anyone ever suggest that mixing zones -- a 5 mixing zone or zones ought to be considered by the 6 technical team? 7 A Only related to discussions surrounding Tom 8 Swihart's presentations about the applicability of 9 moderating provisions in this circumstance. 10 Q Do you recall who made those comments? 11 A No, I don't. 12 Q Did anyone from the Department ever suggest that 13 any of the moderating provisions ought to be considered and 14 applied? 15 A Other than Tom Swihart's presentation, he 16 described the process. I don't specifically recall that we 17 suggested that moderating provisions would be appropriate 18 in this particular situation. 19 Q Was a determination ever made by the technical 20 team that the moderating provisions would not be 21 considered? 22 A Not that I recall. 23 Q To your knowledge, was the technical team ever 24 instructed that the moderating provisions were not to be 25 considered? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 204 1 A We were never instructed in that manner. 2 Q Would you agree that mixing zones and SSACs and 3 variances are routinely considered by the Department in 4 determining whether to issue a permit? 5 MR. SMITH: Object to the form. 6 THE WITNESS: We do throughout the year get 7 requests for moderating provisions, mixing zones, 8 SSACs, variances, under different circumstances. 9 BY MR. HYDE: 10 Q Don't you find it rather curious that nobody 11 thought they were worth discussing in any substantive sense 12 regarding the water conservation areas? 13