325

1 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUGAR CANE GROWERS COOPERATIVE OF

3 FLORIDA, INC., ROTH FARMS, INC.,

and WEDGWORTH FARMS, INC.,

and

FLORIDA SUGAR CANE LEAGUE, INC.,

6 UNITED STATES SUGAR CORPORATION,

and NEW HOPE SOUTH, INC.,

and

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,

Respondent,

and

MICCOSUKEE TRIBE OF INDIANS OF

17 FLORIDA, the UNITED STATES OF

AMERICA, FLORIDA DEPARTMENT

18 OF ENVIRONMENTAL REGULATION, and

FLORIDA WILDLIFE FEDERATION,

Intervenors.

20 . . . . . . . . . . . . . . . . . . . /

23 DEPOSITION OF RICHARD HARVEY

24 January 6, 1993

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

326

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 6, 1993,

6 commencing at 9:00 a.m.

8 Reported by:

9 JERRY L. ROTRUCK

10 Certificate of Merit

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

327

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

On behalf of the Petitioners Florida Sugar Cane League,

7 Inc., United States Sugar Corporation and New Hope

South, Inc.:

William L. Hyde, Esq.

9 Peeples, Earl & Blank

215 South Monroe Street

10 Suite 350

Tallahassee, FL 32301

On behalf of the Intervenor United States of America:

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:

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

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

328

1 INDEX TO WITNESS

2 RICHARD HARVEY Page

3 Examination (continued) by Mr. Green 331

Further Examination by Mr. Hyde 467

6 INDEX TO EXHIBITS

7 No. Marked

8 15 332

9 15-A 336

10 16 338

11 17 345

12 18 350

13 19 357

14 20 360

15 21 364

16 22 367

17 23 371

18 24 375

19 25 377

20 26 381

21 27 383

22 28 387

23 29 (withdrawn)

24 30 388

25 31 389

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

329

1 INDEX TO EXHIBITS (continued)

2 No. Marked

3 32 390

4 32-A 393

5 33 396

6 34 397

7 35 400

8 36 404

9 37 407

10 38 409

11 39 427

12 40 453

13 41 457

14 42 461

15 43 471

16 44 473

17 45 478

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

330

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.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

331

1 D E P O S I T I O N

2 Whereupon,

3 RICHARD HARVEY

4 was recalled as a witness, having been previously duly

5 sworn to speak the truth, the whole truth, and nothing but

6 the truth, was examined and testified as follows:

7 EXAMINATION (continued)

8 BY MR. GREEN:

9 Q I want to refer to Exhibit 10 for a moment, just a

10 question I forgot to ask on page 3, and I can just read

11 this to you, Mr. Harvey, and then give you this to look at,

12 or if we have a copy of it here.

13 Mr. Harvey, on page 3 of Exhibit 10, and I am

14 counting the cover page as the first page, top paragraph,

15 the third sentence, I quote, "Those discharges were in

16 existence, but both DER documents and Water Management

17 District reports conclude that they were causing violations

18 of Class III standards in 1979."

19 This paragraph speaks about pumped discharges to

20 the Loxahatchee National Wildlife Refuge. I have a couple

21 of questions about that sentence I quoted. Can you tell me

22 which Class III standards you had in mind when you drafted

23 this?

24 A It was drafted over a year ago, and I think over a

25 year ago -- let me correct that, I am not exactly sure.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

332

1 Well, these comments from Frank Nearhoof to Tom Swihart

2 were in November of 1991, so it was drafted over a year

3 ago, Bill, and I would have to go back and try to

4 reconstruct the documents I was looking at. I am sure I

5 was looking at the SWIM Plan, and I may have been looking

6 at drafts of information that Frank Nearhoof had put

7 together, so I cannot honestly say I recall exactly which

8 ones that I -- this document was -- it was in preparation,

9 in anticipation of a possible presentation to the governing

10 board, and I had a lot of documents that I was looking at

11 at that time, and --

12 Q I understand the time element. Would it be

13 correct for me to assume that the Class III standards you

14 had in mind here at least included some criteria related to

15 nutrients, since this document deals with the Everglades?

16 A I obviously don't remember, Bill.

17 Q That is fine.

18 A Is that it for this one?

19 Q Yes, that is all for that one. I think we are

20 back to a new exhibit, Exhibit 15.

21 (Whereupon, Exhibit No. 15 was marked for

22 identification.)

23 BY MR. GREEN:

24 Q I would like to ask you to identify what has been

25 marked as Exhibit 15.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

333

1 A The cover page is a FAX page from Tom MacVicar,

2 from the South Florida Water Management District, to me,

3 dated April 5, 1991.

4 The next five or six pages look like drafts of

5 language to be incorporated into the settlement agreement.

6 Q Just for clarification, let me give you a theory

7 of how, based on the order in which these papers were found

8 in your file, of how this -- what this document means, and

9 see if it rings true in your memory.

10 I am looking at the second page of this exhibit,

11 which is the first page after the cover page, and it shows

12 strikes and deletes of a draft at the top of which appears

13 to have been dated 3/27/91?

14 A Correct.

15 Q So the second and third page appear to be, and

16 fourth and fifth page, 3/27/91 draft pages, and then the

17 last two pages of the exhibit would appear to be the draft

18 as corrected by those strikes and deletes, at least the

19 first page, marked at the bottom Bates No. 0854219, would

20 appear to be the corrected version or some parts of the

21 first draft. Is that --

22 A The first two, the second and third page, the

23 second page is Phosphorus Limits for Inflows to the

24 Everglades National Park, 3/27/91.

25 Q Yes.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

334

1 A It includes some numbers for wet and dry year

2 discharges through Shark River Slough. That continues onto

3 the next page, and then the equations used to describe the

4 interim discharge limits are described on the next page,

5 and the page following deals with Taylor Slough and the

6 coastal basins.

7 The page after that deals with phosphorus limits

8 for Loxahatchee Wildlife Refuge. It doesn't appear to me

9 that subsequent pages reflect changes.

10 Q These are actually different topics?

11 A They look like they are different topics.

12 Q Right. You've convinced me now that I see it more

13 carefully.

14 The second page of Exhibit 15 has some double

15 underlining language near the top on the right. It says,

16 Shark River Slough, dash, Interim Limits, dash, and then

17 over on the right, it states, "Upon completion of WMA3,"

18 and so forth.

19 Was this language proposed to be added on or about

20 April 5, the date of the FAX, to your knowledge? Was that

21 one of the changes being considered at that time?

22 A I believe it was.

23 Q If I could refer you to the next to the last page

24 of this exhibit?

25 A Next to the last or last?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

335

1 Q The next to the last. The top of the page is

2 entitled, Phosphorus Limits for Loxahatchee Wildlife

3 Refuge, and so forth.

4 The third paragraph, the third sentence, begins,

5 and I am going to quote two sentences here, quote, "The

6 limits represent the upper 90 percent confidence limit of

7 the observed 16 station interior marsh mean concentration

8 at a given mean daily stage, adjusted to a baseline time

9 period of 1978 (OFW baseline). Compliance with these

10 limits is expected to provide a long-term average mean 16

11 station interior marsh concentration of approximately 10

12 p.p.b."

13 Mr. Harvey, do you recall who drafted those two

14 sentences?

15 A Not specifically, no, I don't.

16 Q Do you recall how the 10 p.p.b. expectation

17 referred to in the second sentence was arrived at? For

18 example, is it through a calculation or --

19 A My understanding is it was through calculation.

20 Q Do you know who might have made that calculation?

21 A It would be the two people doing the number

22 crunching, Doug Robson and Bill Walker.

23 MR. GREEN: Rather than change all of my

24 numbering, would it suit everyone if we marked this

25 15-A?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

336

1 MR. SMITH: That is fine.

2 MR. GREEN: Exhibit 15-A.

3 MR. SMITH: Fine.

4 MR. GREEN: I would ask that you mark that.

5 (Whereupon, Exhibit No. 15-A was marked for

6 identification.)

7 BY MR. GREEN:

8 Q Please identify Exhibit 15-A, Mr. Harvey.

9 A It is two pages. The front page is a FAX

10 transmittal page from Mark Maffei of the Loxahatchee

11 Wildlife Refuge to myself dated 4/17/91, Subject, Final

12 Paragraph for Lox agreement.

13 The second page contains one paragraph. At the

14 top it is labeled, "(additional wording for Loxahatchee

15 National Wildlife Refuge total phosphorus limits)."

16 Q Referring to the first page of Exhibit 15-A, where

17 it is stated that the subject of the FAX is, quote, "Final

18 paragraph for Lox agreement," end quote, what exactly does

19 that mean?

20 A Well, we were passing back and forth at that time

21 different drafts of suggested language between the

22 different parties involved in the process, and I had not

23 finished reading the paragraph, but I would presume that

24 this was a draft of some language that Mark Maffei wanted

25 us to consider.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

337

1 Q And would this have been a draft that was part of

2 the ongoing settlement discussions in the federal lawsuit

3 that we referred to earlier?

4 A As far as I can determine, it would be.

5 Q Now, he mentions in this paragraph on page 2 of

6 the exhibit, paraphrasing, that the research used to

7 determine an operational total phosphorus standard for the

8 wildlife refuge would begin no later than June 1992.

9 Do you know if any such research was commenced?

10 A Well, the process was initiated through the TOC in

11 terms of trying to design a research and monitoring

12 program. Whether or not actual samples have been

13 collected, I couldn't testify to that, but I know the

14 process had been initiated through the design of the

15 research and monitoring effort.

16 Q What is your understanding of the meaning of the

17 term "the operational total phosphorus standard" as he uses

18 it there on the first sentence in that paragraph?

19 A In general, my understanding of that term would be

20 as I think is described in the next to the last sentence.

21 It says, "The purpose of the research will be to determine

22 water column total phosphorus concentrations which do not

23 cause an imbalance of flora or fauna within the Refuge." I

24 think he meant the same thing by operational total

25 phosphorus and phosphorus concentrations which do not --

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

338

1 essentially a Class III total phosphorus concentration

2 level that would not cause violations of Class III

3 standards.

4 Q Would I be correct in using the term "Class III

5 water quality criterion"?

6 A That is essentially correct.

7 Q Thank you.

8 MR. GREEN: Would you mark this as Exhibit Number

9 16?

10 (Whereupon, Exhibit No. 16 was marked for

11 identification.)

12 BY MR. GREEN:

13 Q I would like to show you Exhibit 16 and ask you if

14 you can identify that for us, please.

15 A It is, the cover sheet is a FAX transmittal sheet

16 from Tom MacVicar to myself dated 4/5/91, Subject, For Your

17 Review. The remaining, it looks like 15 or 20 pages, looks

18 like another draft of some language to be incorporated into

19 the settlement agreement, with handwritten notes throughout

20 or on some pages.

21 Q Mr. Harvey, the source of my confusion a while ago

22 was when I read these exhibits early this morning for the

23 last time, when I was referring to exhibits earlier about

24 draft language that was then embodied into a corrected

25 draft, this is the one I had in mind, and let me see if

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

339

1 this is correct, if pages 2 and 3, for example, of this

2 exhibit show changes. Were these changes that are written-

3 in changes that you made or that you wrote in?

4 A The handwritten comments, is that what you are

5 asking?

6 Q Yes.

7 A It looks like it is my handwriting.

8 Q And did you make those changes at a meeting or at

9 a conference call, or how did you come to write those in?

10 A I don't recall specifically. It could have been

11 at a meeting or conference call, or it could have been just

12 changes we made and FAXed back to them, or suggested

13 changes. There are some corrections in here, at least,

14 there are some changes here that are not in my handwriting.

15 Q Which ones might those be?

16 A Well -- on the eighth page at the bottom.

17 Q Can you tell me the Bates number at the bottom

18 right?

19 A 0854203.

20 Q Right.

21 A Is that the Bates number?

22 Q Yes. Thank you.

23 A Excedence, it looks like criterion, criterion

24 scratched out, excedence.

25 Q Right.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

340

1 A That is not my handwriting. I am not really sure

2 whose it is.

3 Q Well, let's go back to page 2 of this exhibit.

4 You will note in the top third of the page with the double

5 underlining, beginning where it says, "Effective dates for

6 the phosphorus limitations are as follows," colon, end

7 quote, and then there are three entries on the left and

8 then over on the right entries that are also double

9 underlined, and then there is a marginal note to the left

10 of these four lines of type that says, "Blank out part on

11 right side." Do you see where that is?

12 A Yes.

13 Q And then when I look further into this exhibit,

14 and you can identify where I am by Bates No. 0854203, I see

15 what appears to be the correct -- maybe the corrected

16 version where under Effective Dates, there is no entry, it

17 is whited out.

18 A Yes.

19 Q And I guess my question is, does it appear that

20 this latter page I have identified is the corrected version

21 that makes the correction shown on pages 2 and 3 of this

22 exhibit?

23 A That is what it appears.

24 Q Do you recall why the effective dates or the

25 double underlined portions on page 2 of this exhibit were

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

341

1 blanked out? What was the reason for that?

2 A Only in general. The effective dates were still

3 the subject of a lot of discussion amongst the parties.

4 Q Also disappearing was the term, quote, "upon

5 completion of WMA3," end quote.

6 Do you recall why that was taken out?

7 A Not specifically, I don't.

8 Q If I could refer you to page 4 of this exhibit,

9 identify by Bates No. 0854199, the second sentence of the

10 ordinary text at the top states, quote, "Discharge limits

11 constitute OFW water quality standards for areas of the

12 Park immediately downstream of the inflow structures."

13 Can you tell me what that sentence means to you or

14 meant to you at that time?

15 A We were the -- the values that we had established,

16 I think the long-term values -- wait a minute. I guess

17 this relates to the discharge limits that had been

18 established through this process, since there was a one-to-

19 one relationship between the quality of the water that came

20 through the S12 and the S333 structures and the water

21 quality in the upper part of the Park which was designated

22 as an outstanding Florida water. We would consider that

23 those numbers developed in that way would reflect the OFW

24 ambient water quality numbers that we were trying to

25 maintain for that area.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

342

1 Q Was that OFW ambient water quality that you were

2 trying to maintain the equivalent of the quality that

3 existed during a baseline year?

4 A Trying to estimate it using the statistical

5 process we discussed earlier, using the best available

6 scientific information and all of the data available to us,

7 yes.

8 Q Would I be correct in assuming, then, that the

9 discharge limits that we have been referring to were not

10 established to ensure compliance with any particular Class

11 III nutrient criterion?

12 A That was my understanding, that it was our

13 attempt, using all of the data available, to establish what

14 the ambient conditions would have been at the baseline

15 period at the time of designation.

16 Q Mr. Harvey, on the next two pages further in,

17 Bates No. 0854201, the top of the draft page appears to

18 discuss phosphorus limits for Loxahatchee Wildlife Refuge

19 that were being discussed, and the third sentence of the

20 regular text on that page also says, and I quote, "These

21 limits will constitute OFW water quality standards for the

22 interior marsh of the Loxahatchee Wildlife Refuge."

23 Could you explain your understanding of that

24 sentence?

25 A It was subsequently deleted or the wording was

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

343

1 changed in the final settlement agreement, but this was

2 just a draft that was submitted to us for our

3 consideration, and I don't believe we agreed with that,

4 with that designation, so it was later changed, but it was

5 someone's attempt to get us to agree that these would

6 constitute OFW water quality criteria.

7 Q Whose attempt was it to get you to agree to that?

8 A I don't recall specifically.

9 Q Do you recall why you disagreed with the

10 suggestion?

11 A I think there were a couple of reasons, the

12 influence of the perimeter canal on the distribution of the

13 flows and the phosphorus loads into the system, and the

14 question that remained about the allowability of the

15 discharges at that time.

16 Q Well, let's focus briefly on the influence of the

17 perimeter canals. How, in your view, did that relate to

18 the inappropriateness of the suggestion?

19 A Well, I can't -- not necessarily

20 inappropriateness, but under certain flow conditions the

21 water that comes in through the structures under low flow

22 conditions essentially bypasses the marsh systems and goes

23 straight around the canal out the S10 structures into Water

24 Conservation Area 2A and doesn't actually enter into the

25 marsh to a significant extent, so I think that was a

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

344

1 concern that we wanted to have a better understanding of

2 that relationship.

3 Essentially I think that was it relative to the

4 canal.

5 Q Well, in light of that flow characteristic that

6 you just described, I would infer from that that the limits

7 that you are discussing here fail to separate that flow

8 effect, and that is why you thought it was not

9 appropriately characterized in this sentence, is that

10 correct?

11 A I am not sure. If you can clarify that?

12 Q I am trying to understand why the flow around the

13 perimeter under certain hydrological conditions caused you

14 concern with regard to the water quality in the interior

15 marsh of the Loxahatchee, if it did.

16 A Well, the difference between the way we did things

17 in the Park is that the water that comes through the S12

18 structures and has no other place to go, it goes

19 immediately into the part of the Park that certainly is

20 designated as an OFW. I guess legally the canal perimeter

21 canal is an OFW. Under certain conditions, most of the

22 flow bypasses the marsh area where the interior marsh

23 stations were established, and because of that complexity

24 we didn't feel comfortable necessarily establishing that,

25 plus the allowability of the discharge question, we didn't

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

345

1 feel comfortable designating these numbers as OFW limits.

2 In fact, we even changed the term to interim level

3 instead of limit, and that is basically, you know, my

4 rationale, as we thought this one-to-one relationship

5 between discharge quality and the load that actually went

6 into the marsh system --

7 Q So that concern would not have been resolved by

8 the use of the term "interior marsh" as it is in this

9 sentence as opposed to the whole Loxahatchee, I take it?

10 A I think it would partially be addressed that way.

11 We later on also changed the number of stations, but --

12 Q From --

13 A 16 to 14.

14 Q But at this, just so I am clear, on that same page

15 we were discussing, there is a very brief table that has

16 limits for dry season and wet season --

17 A Correct.

18 Q -- and there are denoted, quote, "Interior Marsh -

19 Interim Limit, 16 station Mean." Would I be correct in

20 assuming that, at this point in time for this draft, that

21 the limit being discussed was for the interior marsh of the

22 Loxahatchee?

23 A Correct.

24 MR. GREEN: No. 17.

25 (Whereupon, Exhibit No. 17 was marked for

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

346

1 identification.)

2 BY MR. GREEN:

3 Q Please identify what has been marked as Exhibit

4 17.

5 A This is a memorandum dated April 10, 1991, from

6 Technical Representatives/U.S. to Principals of Settlement

7 Discussion/U.S. versus South Florida Water Management

8 District and DER, Subject, "Questions remaining on

9 Implementation Plan Alternatives A & B, provided by South

10 Florida Water Management District on March 29, 1991."

11 Q Mr. Harvey, the cover page here is in memorandum

12 form. It says From, To, as you just described, and by the

13 "Technical Representative/U.S." typed entry there is an

14 initial penciled in or written in.

15 Do you recognize whose initial that is or whose --

16 do you know whose it might be?

17 A No, I do not.

18 Q You indicated that this document discussed

19 questions on two plan alternatives, A and B. Let me ask

20 you to kind of look over this and refresh your recollection

21 on those alternatives, because I would like to ask you a

22 couple of things about them. My questions will be fairly

23 general.

24 A Okay. I took just a couple of minutes to look at

25 this.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

347

1 Q Sure.

2 A Without reading the whole thing, do you want to go

3 ahead and if I need to I can go back and read a paragraph?

4 Q I am just trying to understand what was on the

5 table at this point. I would be correct in assuming that

6 during the settlement discussions on or about March 29,

7 1991, the group was discussing settlement, was evaluating

8 two plans. That seems to be what this indicates.

9 A Well, I think what was happening is they were

10 looking at options, reducing the phosphorus loads coming

11 through the S6 structure. It looks like one option

12 included primarily a regulatory option without stormwater

13 treatment area, and another option included stormwater

14 treatment area.

15 Q Over on the third page of the exhibit, which is

16 the Bates No. 0854180, paragraph C, parens (2), parens (b),

17 it indicates that Chip Swindell of Post, Buckley, Schuh &

18 Jernigan had some views on the expanded ENR project.

19 Would I be correct in assuming from this that Mr.

20 Swindell was involved in the settlement discussions?

21 A He did attend a couple of the meetings toward the

22 end of the process, but -- well, actually, he attended

23 several meetings throughout the negotiating process -- I

24 don't remember the exact dates of his attendance -- to

25 present information to us about his efforts for the ENR

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

348

1 project and experiences with other nutrient -- wetlands

2 treatment systems around the state.

3 Q The next paragraph, parens (c), the question is

4 asked, quote, "How would the expanded ENR, with the

5 proposed levee across the northern tip of WCA-1, impact the

6 ability of the District and COE to provide current level

7 flood protection to the lands within the S-5A basin?"

8 Do you know if that question was answered?

9 A No, I do not.

10 Q Do you know who would have answered it if it had

11 been answered by your discussion group? Was there anyone

12 in the discussion group that --

13 A Just in general, it would have had, obviously have

14 been answered by the water management district

15 representatives.

16 Q That would have been Mr. Federico or MacVicar?

17 A Or with input from their staffs.

18 Q And the memorandum goes on to discuss several

19 items. Was this document discussed by the technical group

20 at any of its meetings, technical oversight group?

21 A I don't remember. Certainly some of the options

22 that are identified in this memorandum were discussed, but

23 I can't specifically say that we took this document and

24 worked from it at a meeting.

25 Q Well, I noted yesterday there was a meeting in

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

349

1 Miami on 4/11 through 4/12/91, and I guess this memorandum

2 is dated the day before that meeting started. I just

3 wondered if you might have -- if it might have been

4 distributed and discussed there.

5 A I don't remember. Did this come from my file?

6 Q Yes. Well, it came from the documents that were

7 produced. I assume it was in your file.

8 A Typically what I did when I received a document, I

9 put a date on it and if it came to me from these meetings.

10 Now, this may be somebody else's copy.

11 Q Let me ask you this. On the first page, the

12 memorandum is directed to, quote, "Principals of Settlement

13 Discussions," end quote.

14 Who might it have been directed to if it weren't

15 directed to yourself? Might it have been --

16 A We were not -- the technical people were not the

17 principals.

18 Q That is why I asked that. Might it have gone to

19 Secretary Browner or Dan Thompson or someone like that?

20 A I guess it could have.

21 Q Well, I am looking at the last page of this

22 exhibit, paragraph Roman numeral III(4), and it states,

23 "For each of the District's proposed WMAs, what is the

24 basis for the sizing," and then it goes on to have a

25 parenthetical expression which I will quote, "(expanded ENR

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

350

1 project, 3600 acres; WMA-2, 2,500 acres; WMA-3, 14,000

2 acres)?"

3 Would I be correct in assuming that at this point

4 in time, or at the time this memorandum was dated, that the

5 WMA sizes and acreages that I just quoted comprised the

6 total number of WMAs and acreages under consideration at

7 that point in time?

8 A I don't believe so. I think what this reflects is

9 that we were looking at different options for locations and

10 sizes of the different water management areas, but I don't

11 believe that this -- without reading it again, I don't

12 believe that that comprised the total area we were

13 considering.

14 Q Why don't you believe that? Is there another

15 document, or do you remember something different?

16 A I would have to look at the timing of the other

17 drafts to see when we came up with different numbers to, I

18 guess, really address that, Bill. It may have been at that

19 time those were the total number of acres that we were

20 considering, but I know that it was certainly later on in

21 the process we were considering a lot larger acreages, but

22 this may have been just one proposal that was put on the

23 table. I just don't know timing-wise how it relates.

24 Q That is fine.

25 (Whereupon, Exhibit No. 18 was marked for

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

351

1 identification.)

2 BY MR. GREEN:

3 Q I would like to show you what has been marked as

4 Exhibit 18. Would you please identify this document?

5 A It looks like copies of language of either -- I

6 don't see a date, or I can't read the date at the top.

7 Q I see on mine, barely legibly, top left, first

8 page, what looks like May 15, 1991, and above that, 91 and

9 then a space, 05 dash 15.

10 THE WITNESS: Anybody else have that on theirs?

11 MR. HYDE: Yes, that is what it looks like on

12 mine, too.

13 THE WITNESS: That is what --

14 BY MR. GREEN:

15 Q Is that what yours looks like?

16 A Yes, that is what it looks like on mine.

17 Q Do you recall what this document related to, what

18 it is about?

19 A If the last page of this document was associated

20 with the first two pages, there is -- the last page is

21 Confidential Attorney Work Product to Members of the

22 Technical Team. I don't know if it is from Everglades

23 National Park. It says, "Everglades National Park," it

24 says, "Please review the attached draft dated April 12,

25 1991," which this is not dated that date, "regarding

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

352

1 phosphorus numbers for ENP," so from that I would presume

2 -- I don't know where this date came from. If there is --

3 Q Which date?

4 A I don't know where the date in the upper left-hand

5 corner of the first two pages came from. I don't know,

6 because the last page refers to a draft dated April 12,

7 1991.

8 Q Let me refer you to the upper left-hand corner of

9 that last page. Does it -- does that help clarify it?

10 A It has the same dates as the first two pages. The

11 problem I am having is I don't know that these first two

12 pages were necessarily the draft referred to in this

13 memorandum.

14 Q I have a theory, and let me ask you if it helps.

15 It looks like that top entry on the last page says 91 05 15

16 and then 13:41, which I assume is military time and day,

17 and then the first two pages are the same, except they are

18 13:42, so I would sort of assume that these three pages got

19 reversed in your files. Is that possible?

20 A I guess it is possible.

21 Q The top right of the last page, barely legibly,

22 almost, is double 0, maybe a 3, and then the first two

23 pages double 04 and 5. So in any event --

24 A I would admit, it appears that the three pages are

25 related. Without a more definitive date, I can't say that

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

353

1 I am absolutely certain on that, but it certainly appears

2 that way.

3 Q Do you know what -- did you receive this FAX

4 yourself? We didn't see a cover page in your file. Do you

5 recall that this came to you?

6 A I can't swear that this came directly to me. I

7 saw most of the drafts that were developed through the

8 process.

9 Q Since the last page was directed to members of the

10 technical team, is it probable that this came to you?

11 A It could have been directed to me, and I could

12 have, in my absence, somebody else could have looked at it.

13 I just cannot swear to you that I had this copy and I

14 looked at this specific copy.

15 Q Okay.

16 A As I mentioned, I looked at most of the copies of

17 the drafts, but there were a lot of drafts going back and

18 forth.

19 Q This goes on to say on the last page, the

20 memorandum to members of the technical team, it says,

21 quote, "If you have any problems reaching consensus, we

22 would like to conference call with you no later than 5 PM

23 today, Wednesday."

24 Now, if our theories are correct and that was

25 Wednesday, May 15, 1991, I wonder where you were on that

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

354

1 day?

2 A I was in Melbourne.

3 Q In Melbourne?

4 A Yes.

5 Q Do you recall whether, while in Melbourne, does

6 that help you remember whether you received a FAX?

7 A I remember a few things about Melbourne, yes.

8 Q Tell me what you remember.

9 A I just remember I was there for a workshop. I had

10 attended the enforcement workshop for the Department being

11 presented in Melbourne. My calendar indicates that I

12 stayed there two days.

13 Q Do you recall ever getting on a conference call to

14 talk about settlement drafts while at that meeting?

15 A I did get on a -- I don't recall being on a

16 conference call. I recall talking to our attorney.

17 Q Who was that person?

18 A Dan Thompson.

19 Q Was he with you in Melbourne?

20 A No, he was not.

21 Q Did you talk to him about these documents now that

22 you think about it?

23 A I don't remember.

24 Q Do you recall whether there was going to be a

25 meeting of the technical team soon following these drafts

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

355

1 that you were working toward with regard to reaching

2 consensus on Everglades National Park phosphorus numbers

3 and Refuge numbers as reflected by this page 3?

4 A Well, there were numerous meetings regularly held,

5 as I indicated yesterday, to try to resolve these issues.

6 I would presume that we had some sort of follow-up meeting

7 to discuss this draft or subsequent draft.

8 Q What day of the week was the 15th of May --

9 A Wednesday.

10 Q -- 1991?

11 A Wednesday.

12 Q This third page memorandum seeks consensus by ten

13 o'clock the next morning, apparently, on the Park. Do you

14 know why there was such a rush? I perceive, obviously,

15 there was a rush. What was the hurry?

16 A I don't recall specifically. Everybody was

17 anxious to get this process over.

18 Q Did this cover page come to you from the Office of

19 General Counsel or from the water management district or --

20 MR. SMITH: Object to the form. What cover page

21 are you referring to?

22 MR. GREEN: Good objection. Page 3 of Exhibit 18,

23 which I have concluded is the cover page of the three

24 in reverse order.

25 MR. SMITH: I see.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

356

1 BY MR. GREEN:

2 Q Do you know where that came from? I notice at the

3 bottom it says, "address to Kim Edwards." Do you know

4 where that person is?

5 A No, I don't.

6 Q Or works?

7 A That is -- that says, "phone her first for FAX

8 instructions, 813 --" that is a Tampa area code.

9 Q On the top of that page, I can barely see "Glades,

10 Tampa"?

11 A Right.

12 Q Do you know what that means?

13 A It looks like Glades, Tampa. Do I know what that

14 means?

15 Q Yes. Does that help you?

16 A I know that the attorneys were meeting -- did have

17 a meeting in that area during the settlement negotiations

18 where they met at some resort over there where we were

19 meeting in Holiday Inns.

20 Q So they might have been stirring your pot on this

21 day?

22 A They were -- actually, I think they were there and

23 I was in Melbourne. We -- I did talk to Dan Thompson. I

24 cannot recall if he FAXed me a copy of this in Melbourne or

25 if he FAXed it up here. I cannot recall if my conversation

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

357

1 with Dan was specifically regarding this draft.

2 Q Do you think it would be reasonable to conclude,

3 in light of what we have been talking about, that the legal

4 representatives of the settling parties were meeting in

5 Tampa, that they FAXed out to members of the technical team

6 draft language as reflected on pages 1 and 2 of Exhibit 18

7 and asked them to get back their response as soon as they

8 could, because the attorneys were possibly continuing their

9 meeting into the next day?

10 MR. SMITH: Objection.

11 MR. FITZGERALD: Objection.

12 MR. GREEN: I understand.

13 BY MR. GREEN:

14 Q You can answer it.

15 A I remember receiving a FAX at the hotel that I

16 was staying at in Melbourne, but I do not specifically

17 remember what that FAX was.

18 MR. GREEN: Would you mark this as Exhibit 19?

19 (Whereupon, Exhibit No. 19 was marked for

20 identification.)

21 BY MR. GREEN:

22 Q Please identify Exhibit 19.

23 A This is a FAX transmittal. It is four pages. The

24 cover page is a FAX transmittal page from Mark Maffei to me

25 dated 5/15/91.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

358

1 Q Now, Mr. Harvey, what are the three attached pages

2 to the cover page, just generally?

3 A It looks like more draft language for the

4 settlement agreement dealing with phosphorus standards for

5 the Loxahatchee National Wildlife Refuge.

6 Q Let's go back to the first page. I am trying to

7 piece together this out of curiosity as much as anything.

8 I note that the FAX phone number that this was sent to is a

9 407 area code. Would that be Melbourne? Is that the same

10 day we have been talking about?

11 A That is the same day.

12 Q Did you receive this FAX, do you recall?

13 A Like I said earlier, the next pages have

14 handwriting, it is my handwriting on them, so obviously I

15 looked at this. I do recall, as I mentioned earlier,

16 receiving at least one FAX at the hotel. I can't remember

17 receiving more than one FAX at the hotel.

18 Q Does the number 416 by your name on Exhibit 19, do

19 you have any idea what that might refer to?

20 A I know that I was on -- in a room, not on the

21 first floor, so maybe -- it is possible that it could be my

22 room number.

23 Q And you indicated this was your handwriting?

24 A Correct.

25 Q So at some point, you did get this document?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

359

1 A Correct.

2 Q Why did you make those changes on page 2 of this

3 exhibit under the heading, "Interior Marsh - Interim

4 Limit"? When I say why, were those changes that you were

5 proposing, or did someone else propose those?

6 A I don't remember if I initiated the recommended

7 change. We may have discussed these issues prior to that

8 date and decided to make these changes, and this version

9 did not include those changes, so I went ahead and made

10 them.

11 Q And at the top of page 2 of this exhibit, the

12 heading is "Phosphorus," quote, "`Standards,'" end quote,

13 "for Loxahatchee NWR." Those are quotes within quotes.

14 Do you know why the word "standards" is in quotes

15 in that title?

16 A No, I do not.

17 Q Do you know who wrote that title?

18 A No, I don't recall.

19 Q Do you recall whether -- and I am not intending to

20 be repetitive -- but whether this draft document was

21 drafted by Mark Maffei, who was the person that sent the

22 FAX?

23 A Not specifically, I don't remember that.

24 Q Now, at the bottom of page 2 of this exhibit, near

25 the bottom over in the right margin, there is a bracket

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

360

1 around some language with a "No." Do you recall what that

2 was all about?

3 A Let me read the paragraph.

4 Q Sure.

5 A I have read the paragraph.

6 Q I wonder if you can recall what this bracket on

7 the right, what the handwritten entry, quote, "No," end

8 quote, was all about?

9 A Just in general, this reflected my disagreement

10 with this language.

11 Q Why did you disagree with it?

12 A I don't remember specifically, but it had the 40-

13 part-per-billion instead of the 50 that we had been talking

14 about. I guess it had language in there that we had not

15 completely resolved with respect to the structures and the

16 OFW situation.

17 Q The second page of the typed document, the third

18 page of the exhibit, there is a change of the words

19 "Operational Standards," stricken through, and the entry,

20 "Class III," is written in by hand. Would you tell me what

21 that change was intended to accomplish?

22 A I think what it reflects is the nomenclature,

23 instead of calling it an operational standard, we called it

24 a Class III total phosphorus criterion.

25 (Whereupon, Exhibit No. 20 was marked for

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

361

1 identification.)

2 BY MR. GREEN:

3 Q Please identify Exhibit 20.

4 A It is a two-page document. The first page is

5 dated May 15, 1991, appears to be written to Steve. I

6 guess number 1 says, "single underlines: changes to

7 previously approved document by Maffei."

8 Number 2 says, "double underline and strike

9 through: changes to Maffei's document recommended by

10 MacVicar, Federico and Harvey.

11 "Last paragraph: Double underlines and strike

12 through (except last 2 sentences) were agreed to by

13 MacVicar, Maffei, Soukup and Harvey. District and DER

14 recommend deleting last 2 sentences. Tech. team is

15 scheduled to confer again tomorrow a.m. on these two

16 sentences."

17 It says, "Overall: My recommendation is to leave

18 document approved by policy group alone, except as changed

19 by you and Dan."

20 This appears to be some sort of memorandum from, I

21 presume, Tom MacVicar.

22 Q To?

23 A To Steve. There were --

24 Q Steve, who would that be?

25 A I presume Steve Walker. Steve Walker was the

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

362

1 attorney for the water management district during the

2 negotiating process.

3 Q On that first page, it states, quote, "My

4 recommendation is to leave document approved by policy

5 group alone, except as changed by you and Dan," end quote.

6 What policy group is he talking about?

7 A I don't recall any group, a policy group. I am

8 not really sure which group he was referring to.

9 Q Well, he goes on to say, quote, "The changes

10 proposed by Mark are not technical and I don't feel that

11 group should open up things already approved by policy

12 level group," end quote.

13 Who might he have been referring to there?

14 A I presume that he -- it is possible that he was

15 referring to the principals.

16 Q And those were --

17 A Carol Browner, Timer, T-i-m-e-r, Powers, Burkett

18 Neely, Bob Chandler.

19 Q Those four?

20 A Primarily.

21 Q Who else?

22 A I am not really sure who else the feds had

23 involved in that process or who it would be --

24 Q Would I be correct -- excuse me.

25 A -- that would be considered to be the principals.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

363

1 Q Would I be correct in assuming that the four

2 individuals you named were meeting periodically on or about

3 or within the same time frame that the technical group was

4 meeting?

5 A There were periodic meetings of the principals.

6 Q What sort of instructions, if any, did they give

7 the group you were serving on?

8 MR. SMITH: Objection. This is totally

9 repetitive.

10 THE WITNESS: I got all of my instructions through

11 Dan Thompson, all of my formal instructions from Dan

12 Thompson.

13 MR. GREEN: Just for the record, I don't think I

14 asked that question before. I think the earlier

15 questions related to the legal group.

16 MR. SMITH: I think you asked yesterday, and Bill

17 also asked about --

18 MR. GREEN: About the policy group?

19 MR. SMITH: No, about the instructions from

20 whoever, the policy people or whether you call them

21 principals.

22 MR. GREEN: I will try not to be repetitive.

23 BY MR. GREEN:

24 Q I take it that your group did not meet with this

25 group of individuals that you just listed during the

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

364

1 settlement discussions?

2 A Again, at that time, to discuss detailed technical

3 issues?

4 Q Or anything.

5 A We did have -- we did meet a couple of times, at

6 least, in a group when the principals were there and some

7 technical representatives were there to talk about the

8 progress being made by the technical folks.

9 Q Do you recall where those meetings were?

10 A I think two of them were in Miami. The two that I

11 recall were in Miami.

12 Q Were agendas established before those meetings?

13 A I don't remember.

14 Q Were any documents distributed at those meetings?

15 A Not that I recall.

16 MR. GREEN: Would you mark this as Exhibit No.

17 21?

18 (Whereupon, Exhibit No. 21 was marked for

19 identification.)

20 BY MR. GREEN:

21 Q Would you identify Exhibit 21 for us?

22 MR. FITZGERALD: This may be as good a point as

23 any to put on the record my continuing objection to

24 this process as it has been unfolding. I think we have

25 been very tolerant. Of course, it is not my witness,

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

365

1 but given my understanding of the hearing officer's

2 ruling on the discovery on the settlement agreement,

3 this is going far beyond any issues and matters

4 relevant to the SWIM Plan challenge. This is simply

5 another effort to try and pursue the coercion or view

6 of members of the petitioner groups. It is irrelevant

7 to the proceedings and is not reasonably calculated to

8 lead to admissible evidence in this proceeding. I

9 would maintain a continuing line of objections to all

10 of these questions.

11 MR. GREEN: In response, when you said

12 continuing, I don't think you started, but I will take

13 that as your first objection in this deposition.

14 MR. FITZGERALD: From here on. This is becoming a

15 protracted process where no legitimate value, in light

16 of the hearing officer's ruling that puts limitations

17 on discovery in this area.

18 MR. GREEN: I would respectfully disagree with

19 your objection on the grounds stated, but we will

20 proceed.

21 MR. HYDE: I would also like to note for the

22 record I did not agree to the characterization given

23 the hearing officer's ruling, and I would further state

24 that these documents obviously form the genesis of the

25 conditions and statements found in the Everglades SWIM

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

366

1 Plan, which is what we are litigating here, and I think

2 we are more than entitled to inquire into this kind of

3 information. I think it is undoubtedly relevant within

4 any concept of that legal term.

5 MR. SMITH: Your totally objective view.

6 MR. FITZGERALD: Now we have agreed to disagree,

7 we will go on with this painful and useless, relatively

8 useless process.

9 MR. GREEN: I don't feel that I need to respond in

10 kind. Let's continue.

11 BY MR. GREEN:

12 Q Would you please identify Exhibit 21?

13 A It is a five- or six-page document. The cover

14 page is a FAX transmittal page from Mark Maffei to me,

15 dated 5/16/91. It appears to be draft settlement agreement

16 language dealing with phosphorus standards or limits for

17 the Loxahatchee National Wildlife Refuge.

18 Q Do you know where you were when you received this

19 FAX?

20 A I can't -- on the 16th, my calendar indicates that

21 I was either in Melbourne or on my way back from Melbourne

22 to the office. I can't read the time, 7:04, that would be

23 in the morning.

24 Q That is fine. I would like to refer you to the

25 last page of this FAX document. Under the table on the

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

367

1 left, it is headed, Interior Marsh, dash, Interim Limit,

2 there is a change, strikes through the term, quote, "All

3 surface discharges," end quote, and inserts the term

4 "Refuge Marsh Area." Can you tell me what was meant by

5 that change?

6 A I believe that change reflects where we would

7 measure the values for the, it says January 1, 2002, the

8 long-term limit values for the Loxahatchee National

9 Wildlife Refuge and whether they would be measured at the

10 points of discharge into the Refuge or whether they would

11 be measured at marsh stations. I think that was the intent

12 behind that change.

13 Q Well, is the term above "Refuge Marsh" that reads,

14 quote, "Class III Standard," end quote, is that associated

15 with the term, "Refuge Marsh Area," is that a part of the

16 same entry?

17 A It appears to be.

18 Q Thank you.

19 MR. GREEN: Would you mark this as Exhibit 22?

20 (Whereupon, Exhibit No. 22 was marked for

21 identification.)

22 BY MR. GREEN:

23 Q Would you identify Exhibit 22 for us, please?

24 A It appears to be a four- or five-page -- four-page

25 document, cover sheet is a FAX transmittal cover page to

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

368

1 Bob Gough from Susan Ponzoli, dated 5/16/91. At the bottom

2 there is a note. It says, "Richard: Please review

3 monitoring provisions, discuss with Roxane Dow and then

4 call Dan."

5 Q Did you do that?

6 A I don't remember.

7 Q Do you know what this Research Plan - Draft

8 pertained to?

9 A Well, all of the research plan drafts pertained to

10 research efforts to, directed at more clearly identifying

11 the phosphorus concentrations below which no adverse

12 impacts or no violations of Class III standards would occur

13 in the system. That was the primary purpose of the

14 research and monitoring effort.

15 Q Do you know if this plan was part of the language

16 being proposed to be incorporated in the settlement

17 agreement?

18 A I am sorry, state that again, please.

19 Q We have been discussing several versions of the

20 language that related to proposed settlement agreement

21 provisions.

22 A Yes.

23 Q And my question is whether this is part of that or

24 if this is a separate research plan?

25 A I believe it was part of that effort. It appears

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

369

1 to me to be a proposal being made regarding the research

2 and monitoring plan efforts that were to be incorporated in

3 the settlement negotiations.

4 Q Do you know who was proposing that?

5 A Not specifically, no.

6 Q I note again that at the top of these pages, well,

7 an entry, "May 16, '91, 12:02, Eglades Tampa," is on the

8 first page, and that seems to be on the remaining pages,

9 with the possibility that that time is changing.

10 Do you know where this FAX came from?

11 A Only by looking at the cover sheet. It lists a

12 commercial 813 number.

13 Q I don't find that. Yes, I see. Might this FAX

14 have come out of the meeting of the attorneys that we

15 referred to earlier?

16 A It is from Susan Ponzoli, who is an attorney for

17 the feds. That is all I can say.

18 Q The last page of this exhibit has a paragraph 3,

19 and the last two sentences of it, rather than read them,

20 there are a lot of complicated chemical names, but I will

21 paraphrase, subject to the right of counsel to object.

22 It says, "The District's current water quality

23 monitoring program shall continue with emphasis on," and it

24 lists numerous chemicals, including "toxic metals

25 (especially mercury), and pesticides."

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

370

1 Do you know what happened to this proposal, if

2 anything, with regard to what I just talked about?

3 A I am sure it was reviewed and taken into

4 consideration by the technical team and the folks dealing

5 with the research and monitoring efforts.

6 Q Did it show up in the final settlement agreement

7 in any form?

8 A In any form --

9 Q Do you recall?

10 A I am sure components of this are incorporated, but

11 I don't -- I feel confident that this was not incorporated

12 in the settlement agreement verbatim.

13 Q Was there any discussion of this proposal by the

14 technical team?

15 A The problem I have got is that we had so many

16 proposals being offered, I am sure we discussed -- if it

17 was offered to all of us, I am sure that we looked at it

18 and made comments back, but I don't know how formally we

19 did that.

20 Q So you don't specifically remember what happened

21 to this proposal?

22 A Only that it was one of several that we were asked

23 to look at.

24 MR. GREEN: Let's take a brief recess.

25 (Brief recess.)

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

371

1 (Whereupon, Exhibit No. 23 was marked for

2 identification.)

3 BY MR. GREEN:

4 Q Mr. Harvey, would you identify Exhibit 23?

5 A This is a multi-page FAX. The cover page is a

6 FAX transmittal sheet dated 5/16/91, 9:45 a.m., from Tom

7 MacVicar to Richard Harvey, Room 416, Subject,

8 Confidential.

9 Q Would that have been Room 416 where you were

10 staying in Melbourne during the 15th and 16th of that

11 month?

12 A Possibly.

13 Q You got a lot of correspondence down there, didn't

14 you?

15 A Actually, I don't recall. I had left the hotel

16 before 9:45 a.m. I left early, I do remember that.

17 Q Will you just briefly tell me what this exhibit

18 is?

19 A The -- it appears to be draft settlement

20 negotiation language. The second page describes interim

21 total phosphorus limits for A.R.M. Loxahatchee National

22 Wildlife Refuge. It has -- later on, it has drafts of the

23 research and monitoring plan proposals, and the last two to

24 three pages are dated May 14, 1991, Draft - For Discussion

25 Purposes Only, Proposed Everglades Regulatory Program

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

372

1 language. It goes on until the end.

2 Q On the second page of the exhibit, which is a

3 markup of earlier language, at the top the word, quote,

4 "Standard," end quote, has been deleted and the word,

5 "Total Phosphorus" has been added to the title. Do you

6 know why that change was made?

7 A I presume we felt like the term limit was more

8 appropriate for the numbers that had been generated as

9 opposed to standard.

10 Q On that same page under the definitions of terms

11 given there, there is an underlined entry defining the

12 term, capital M, and it goes on to define it in terms of 16

13 marsh station phosphorus concentrations and data collected

14 between '78 and '83.

15 Does that mean that at this point in time the

16 Loxahatchee limits were based upon data from 16 marsh

17 stations in the Loxahatchee and data from those stations

18 during that time period?

19 MR. SMITH: Object to the form.

20 THE WITNESS: The initial calculations for the

21 Loxahatchee National Wildlife Refuge utilized data from

22 16 marsh stations.

23 BY MR. GREEN:

24 Q When you say "initial," what do you mean by that?

25 A Well, the final calculations that are incorporated

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

373

1 in the settlement agreement eliminated two of the stations.

2 Q Right. My question is, to the best of your

3 recollection, at this point in time, being about May 16,

4 1991, 16 stations were still being used in the

5 calculations, it appears?

6 A Based upon my review of this, that appears to be

7 correct.

8 Q And the data time period was 1978 through 1983,

9 based on this, would that be your recollection?

10 A Correct, or data set available for the record.

11 Q All right. Do you recall whether along about this

12 time in May of 1991 various individuals in the agricultural

13 community of the EAA, or their representatives, were

14 concerned that any limits that might be imposed on

15 discharges to the Loxahatchee would constitute standards

16 that only the Environmental Regulation Commission could

17 promulgate?

18 A I don't recall that specifically.

19 Q Was that issue ever discussed in the settlement

20 negotiations, to your knowledge?

21 A The role of the Environmental Regulation

22 Commission on establishing water quality standards criteria

23 was discussed during the settlement negotiations in

24 general.

25 Q Was any formal position taken on what the role of

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

374

1 the Environmental Regulation Commission might or might not

2 be with regard to the settlement?

3 MR. SMITH: Object to the form.

4 THE WITNESS: Restate that for me, Bill.

5 BY MR. GREEN:

6 Q Was there ever any written opinion or -- well,

7 opinion of any of the group discussing settlement that

8 dealt with the role that the Environmental Regulation

9 Commission might have or might not have with regard to the

10 establishment of phosphorus limitations for the Everglades

11 Protection Area?

12 A I remember that Tom Swihart in his presentation

13 addressed options of that type, but I don't recall whether

14 or not he ever wrote it down and distributed it.

15 Q Would I be correct in assuming that your technical

16 never really debated that issue or discussed that issue?

17 A No, we did discuss that issue.

18 Q Why did you discuss it?

19 A It was discussed as an option. If we went through

20 this process and ended up coming to a consensus on a number

21 of total phosphorus concentration that was appropriate for

22 the different areas of the EPA, Tom Swihart mentioned that

23 an option that could be pursued would be to take that

24 number before the ERC and request that they formally adopt

25 it as a specific phosphorus criterion for that system, as

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

375

1 opposed to continuing to rely on the narrative nutrient

2 criterion language.

3 Q That alternative was not pursued by the group?

4 A I think it is still an option. What I am talking

5 about is the research and monitoring program that is

6 identified in the settlement agreement through those data

7 collection and analysis efforts. If we can more

8 definitively identify that concentration, we all agree that

9 it represents the Class III phosphorus concentration, there

10 is still an option of taking that number before the ERC.

11 MR. GREEN: That is No. 24.

12 (Whereupon, Exhibit No. 24 was marked for

13 identification.)

14 BY MR. GREEN:

15 Q Mr. Harvey, can you identify Exhibit 24?

16 A It is a three-page document. The cover page is a

17 FAX transmittal sheet dated 5/16/91 to me from Mike Soukup,

18 Everglades National Park. At the bottom, it says, "A

19 modest proposal . . . call me at home if you want to

20 discuss this."

21 The next two pages are plots, geometric mean total

22 phosphorus concentrations versus stage.

23 Q Would those pertain to the Loxahatchee National

24 Wildlife Refuge?

25 A Yes, they do.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

376

1 Q Let me ask you if you can explain what his, quote,

2 "modest proposal," end quote, was, as reflected in these

3 two charts in the exhibit?

4 A Well, the different plots on the first page, they

5 are plotting data obtained from three stations versus data

6 obtained from all stations on the second plot, so it is a

7 comparison of the geometric mean phosphorus concentrations

8 and plots of those data regressed against mean stage.

9 Q When you say "first page," do you mean the second

10 page of the exhibit where --

11 A Well, the second page of the exhibit is the first

12 page that I was referring to where it is a plot of data

13 available from three stations.

14 Q Where he says "3 cleanest stations," parens,

15 "(CA1-5, 16, 6)," is that correct?

16 A Yes.

17 Q Well, can you help me understand what his proposal

18 was? I understand what you said about the difference

19 between the two plots. That is the one reflecting data

20 from three stations, and the one from all stations, which I

21 presume was 16 stations at that time, do you know if it was

22 16?

23 A I can't really say if we were looking at data from

24 16 or 14 stations at that time. The date is 5/16.

25 Q Well, assuming that it was 16 or 14, do you know

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

377

1 what his, quote, "proposal," end quote, was? That is what

2 I am trying to get to.

3 A What he was asking us to do was look at the

4 difference in geometric mean total phosphorus concentration

5 levels through this regression analysis that were derived

6 by using data from all stations versus data from those

7 three stations, and the difference in levels that resulted

8 from those calculations.

9 Q Well, was he proposing only that you look at them

10 or that the difference between would somehow be reflected

11 in the settlement?

12 A At this point, what he was proposing was that we

13 look at these for information. Later on, we did have

14 discussions about incorporating these types of results into

15 the settlement agreement.

16 Q Were they ultimately incorporated?

17 A There are numbers in the settlement agreement that

18 were derived from three stations versus all stations of the

19 Loxahatchee National Wildlife Refuge. I don't specifically

20 remember exactly whether or not these are the same three

21 stations that we used in that process. I would have to

22 look.

23 MR. GREEN: Would you mark this as Exhibit 25?

24 (Whereupon, Exhibit No. 25 was marked for

25 identification.)

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

378

1 BY MR. GREEN:

2 Q Mr. Harvey, would you identify Exhibit 25?

3 A It is a one-page document dated May 21, 1991,

4 8:37. It says, "The state and federal technical teams are

5 to reach a resolution on the following issues," and then it

6 says, lists the issues.

7 Q That is okay. You don't need to read all of

8 that. Who was this from, this document?

9 A I don't know.

10 Q Do you see the heading at the top? Does that

11 help?

12 A It says from U.S. Attorney.

13 Q Do you recall receiving this document?

14 A Not specifically.

15 Q If you look at parens (1), the heading of the

16 subparagraphs of parens (1) on this page, and I will quote,

17 it states, "Interim and final total phosphorus discharge

18 limits for the entire Park and the entire Refuge," end

19 quote.

20 Do you know what was meant by the use of the

21 adjective "entire" in the two places in that sentence?

22 A I don't recall specifically.

23 Q Do you recall generally?

24 A Looking at the items listed, there were several

25 assumptions that they apparently wanted us to review,

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

379

1 including assumptions that the canal is Class III, or that

2 Class III waters begins at the marsh.

3 Q Let's take those two alternatives for a second.

4 What canal is being referred to here?

5 A The perimeter canal around the marsh and the

6 Loxahatchee National Wildlife Refuge.

7 Q That perimeter canal is actually inside the Water

8 Conservation Area 1, isn't it? Is that the one you are

9 talking about?

10 A Yes. I am not sure of the legal descriptions of

11 the boundaries of WCA-1, whether or not it includes the

12 canal.

13 Q I mean just from a physical point of view, is the

14 canal inside the conservation area dikes and so forth?

15 A Yes.

16 Q It is?

17 A Yes.

18 Q How was this issue resolved by the technical

19 teams?

20 A Which issue are you talking about?

21 Q Well, the question of whether the perimeter canal

22 within Water Conservation Area 1 is Class III waters or

23 not.

24 A We -- I don't think there was any question among

25 the state folks that they were Class III waters. The canal

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

380

1 waters are Class III waters.

2 Q Now, let's look at (1), subparagraph (c) and

3 subparagraph (d). As I understand it, they talk about

4 discharges in 1979 either being legal or not legal. How

5 was that issue resolved?

6 A The technical team did not resolve that issue.

7 Q Who resolved that issue?

8 A To my knowledge, that issue has not been formally

9 resolved.

10 Q Now, this directive to the state and federal

11 technical teams that came from the U.S. Attorney's office

12 to reach resolution I presume resulted in some action or

13 meeting by the technical teams to deal with these issues,

14 is that correct?

15 A That is correct.

16 Q When did that occur?

17 A I don't know specifically when we addressed these

18 issues in terms of the meeting or a phone call. I don't

19 remember.

20 Q Do you recall whether that was the same day that

21 Governor Lawton Chiles appeared in federal court before

22 Judge William Hoeveler and, in effect, threw in his sword,

23 as is known in common parlance?

24 A No, I don't.

25 MR. GREEN: I have here the most unusual comments

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

381

1 I have come across in this case, No. 26.

2 (Whereupon, Exhibit No. 26 was marked for

3 identification.)

4 BY MR. GREEN:

5 Q Would you identify Exhibit 26, please?

6 A It is a five-page FAX transmittal dated May 28,

7 1991, to me from Tony Federico, Subject, Refuge Standards,

8 Message, "Richard, I'll wait for your comments before I FAX

9 to feds. We should give this to them today. Tony."

10 The next few pages deal with the establishment of

11 phosphorus levels for the Loxahatchee National Wildlife

12 Refuge.

13 Q Now, Mr. Harvey, on the cover page of this exhibit

14 which is suitable for framing, the term "Urgent" is circled

15 three times on my copy, three to four times.

16 Do you know why this document was treated as an

17 urgent communication?

18 A Just that they wanted us to look at it quickly and

19 get back with them. Other than that, I don't know why.

20 Q What comments did you call back to Mr. Federico?

21 A I don't remember specifically.

22 MR. HYDE: Would someone explain to me why this

23 document is oversized?

24 BY MR. GREEN:

25 Q Was this document this size in your file?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

382

1 A I don't recall ever seeing a document like this in

2 my file this size.

3 Q It appears that pages 2 through 5 -- that is all

4 of the documents except for the cover page -- are out of

5 order with regard to the content, but in the same order

6 that they were found in your file by whoever put Bates

7 numbers, but do you know what was done with this document

8 after you received it? Did you distribute it for further

9 review internally within the Department, or --

10 A Well, typical practice was for us, for me and

11 Frank Nearhoof and Tom Swihart to discuss language, draft

12 language.

13 Q I notice on page 2 of the exhibit, which is also

14 the page marked 2 of the document, the last sentence before

15 the paragraph heading, quote, "Compliance Review," end

16 quote -- I am sorry, two sentences before that, it states,

17 quote, "The base period 1978 to 1989 will be used to

18 calculate the necessary load reduction," period, end quote.

19 When we talked earlier about the 16-station data,

20 the time period for the data was '78 through '83. Do you

21 know why this base period extends into 1989?

22 A This base period refers to loading data as opposed

23 to, the other base period referred to actual water quality

24 data available for the Refuge, which was '79 to '83. That

25 is the difference.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

383

1 Q Those are two different data sets, basically?

2 A Two different data sets.

3 Q I note on page 3 of the exhibit under the heading,

4 Marsh - Interim Limit and Marsh - Class III Operational

5 Standards, the term "interior marsh" is not used, it just

6 says "marsh," as opposed to some of the earlier drafts we

7 have discussed. Do you know why that word is not in there,

8 "interior" marsh?

9 A We had several discussions about whether or not

10 the values derived through this process would apply

11 throughout the Loxahatchee National Wildlife Refuge, the

12 marsh and the canal, or just apply to the marsh.

13 Apparently that is what that was related to.

14 Q What is your understanding of the scope of "marsh"

15 as used here in this document that is apparently dated May

16 28, 1991, at the bottom right?

17 A Those areas of the Refuge do not include the

18 perimeter canal.

19 MR. GREEN: Would you mark that as No. 27?

20 (Whereupon, Exhibit No. 27 was marked for

21 identification.)

22 BY MR. GREEN:

23 Q Would you identify Exhibit 27, please?

24 A It is a four-page document. The first page

25 indicates, it is titled, Agenda, Everglades Technical

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

384

1 Discussion, dated May 29-30, 1991. The second page, the

2 title of the second page is Everglades SWIM Plan, New

3 Section Development. The third page, the title is

4 Discharge Limits and OFW Standards for Taylor Slough and

5 Coastal Basins, and the fourth page is Interim Marsh Limits

6 for Loxahatchee Wildlife Refuge.

7 Q Can you tell me what sort of a meeting this agenda

8 referred to on page 1 of the exhibit was?

9 A At that point in time, we were looking at

10 different options available for reducing the phosphorus

11 loads into the Park and the Refuge, including water

12 management area or STA design performance options and

13 assumptions as well as regulatory programs, and the water

14 management district, I believe, decided or I am sure

15 decided to call in some additional people to request their

16 opinions on the regulatory options and treatment options

17 available.

18 Q Was this a public meeting?

19 A Are you asking me if it was noticed as a public

20 meeting?

21 Q Was it open to the public, or was it one of the

22 closed settlement discussion meetings we have been talking

23 about earlier?

24 A I don't recall specifically whether it was open to

25 the public. I wasn't in charge of setting it up or

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

385

1 deciding who would attend.

2 Q Did you attend the meeting?

3 A Yes, I did.

4 Q Was it a meeting that the water management

5 district board attended, or was it --

6 A No, it was not.

7 Q Do you know whether any agricultural

8 representatives were present for EAA interests?

9 A Will, Dale Bottcher participated. I don't know if

10 you consider him to be an agricultural interest. He

11 represents IFAS, and he has done work with EAA for both the

12 water management district and the farmers.

13 Q Well, on --

14 A Other than that, I don't recall.

15 Q Page 2 of this exhibit has four paragraphs

16 describing Section 1, Section 2, Section 3, Section 4.

17 Were those discussion sections, or what was referred to

18 there? Can you recall?

19 A Those were discussion topics for different

20 sections.

21 Q Did you sit in on any of those discussion groups?

22 A Yes, I did.

23 Q Do you recall which one?

24 A I think I sat in on all of them at different

25 times.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

386

1 Q I note for the first section, this document

2 indicates that, quote, "Strategies for developing programs

3 and projects designed to bring facilities into compliance

4 with applicable water quality standards," et cetera, end

5 quote -- et cetera is not in the quote -- but was one of

6 the topics.

7 Do you recall whether that discussion dealt with

8 the implementation of the moderating provisions of the

9 Florida water quality standards?

10 A I don't recall.

11 Q If it had dealt with that, would it have been an

12 item brought to discussion by any employee of DER?

13 MR. SMITH: Object to the form.

14 THE WITNESS: Like I said, I don't remember

15 specifically whether we mentioned moderating provisions

16 at that time or not.

17 BY MR. GREEN:

18 Q Let me ask you this. Was there any other DER

19 employee present in the Section 1 discussion other than

20 yourself?

21 A I do remember that Bart Bibler attended this

22 meeting, but I can't remember Tom Swihart or Frank Nearhoof

23 attending.

24 Q To the best of your recollection, were pages 3 and

25 4 of this Exhibit 27 involved in the discussions in the

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

387

1 Everglades Technical Discussion meeting that the agenda on

2 page 1 refers to?

3 A I don't believe so. I don't think so.

4 Q This might have been just the way we found the

5 documents in the production?

6 A Correct.

7 MR. GREEN: Number 28.

8 (Whereupon, Exhibit No. 28 was marked for

9 identification.)

10 BY MR. GREEN:

11 Q I would like to ask you to identify Exhibit 28.

12 A It is a three-page document entitled, first page

13 is "Working Preliminary Draft, Outline of a Regulatory

14 Strategy for Reducing Phosphorus Discharges from the EAA."

15 Q Do you know whose handwritten notes these are on

16 page 1 of this document?

17 A I just know that they are not mine.

18 Q Do you know where you got this document or your

19 files got this document?

20 A Not specifically.

21 Q What is the most probable place you would have

22 gotten them from?

23 A It isn't a document that we generated, so it had

24 to come from water management district or the feds.

25 MR. GREEN: No. 29.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

388

1 (Whereupon, Exhibit No. 29 was marked for

2 identification.)

3 BY MR. GREEN:

4 Q Let me show you what has been marked as Exhibit 29

5 and see if you can identify that. I apologize for this,

6 but I -- I will tell you what, why don't we dispense with

7 this, this one, since it wasn't your handwriting on the