STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SUGAR CANE GROWERS COOPERATIVE )
OF FLORIDA, A Florida Agricultural)
Cooperative Marketing Association,)
ROTH FARMS, INC., AND WEDGWORTH )
FARMS, INC., )
)
and )
)
FLORIDA SUGAR CANE LEAGUE, INC.; ) Case Nos. 92-3038
UNITED STATES SUGAR CORPORATION; ) 92-3039
and NEW HOPE SOUTH, INC., ) 92-3040
)
and )
)
FLORIDA FRUIT AND VEGETABLE )
ASSOCIATION, LEWIS POPE FARMS, )
W.E. SCHLECHTER & SONS, INC., and )
HUNDLEY FARMS, INC., )
)
Petitioners, )
)
vs. )
)
SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an Agency of the State )
of Florida, )
)
Respondent, )
)
and )
)
MICCOSUKEE TRIBE OF INDIANS OF )
FLORIDA THE UNITED STATES OF )
AMERICA, AND FLORIDA DEPARTMENT OF)
ENVIRONMENTAL REGULATION, and the )
FLORIDA WILDLIFE FEDERATION, )
)
Intervenors. )
----------------------------------)
DEPOSITION OF LLOYD E. HORVATH, P.E.
2
1
2
3
Clearlake Center
4 250 Australian Avenue South
West Palm Beach, Fl 33401
5 October 5,1992
9:00 a.m.
6
7
APPEARANCES:
8
UNITED STATES OF AMERICA,
9 BY: THOMAS A.W. FITZGERALD, A.U.S.A.,
appearing on behalf of the United States.
10
HOPPING BOYD, GREEN & SAMS,
11 BY: GARY V. PERKO, ESQUIRE
appearing on behalf of the Sugar Cane Growers.
12
PEEPLES, EARL & BLANK,
13 BY: RICHARD A. RUSSELL, ESQUIRE
appearing on behalf of Florida Sugar Cane
14 League.
15 HYDROLOGIC ASSOCIATES U.S.A.,INC.
BY: BRADLEY G. WALLER, PRINCIPAL HYDROLOGIST,
16 appearing on behalf of Florida Sugar Cane
League.
17
EVERGLADES NATIONAL PARK
18 BY: BOB JOHNSON
appearing on behalf of Everglades National Park.
19
20
21
22
23
24
25
3
1 The deposition of LLOYD E. HORVATH, P.E., a
2 witness of lawful age, taken for the purpose of discovery
3 as evidence in the above-styled cause, pending in the
4 United States District Court, Southern District of Florida,
5 pursuant to notice, before Brenda Weinerth, Notary Public
6 in and for the State of Florida at Large, at the time and
7 place aforesaid.
8 --------------------
9 I N D E X
10 WITNESS
11 LLOYD E. HORVATH, P.E.
12 Direct Examination by Mr. Fitzgerald 3
13
14 E X H I B I T S
15 PLAINTIFFS FOR INDENTIFICATION
16 NO. PAGE
17 1 4
2 4
18 3 4
4 16
19 5 17
6 18
20 7 23
8 82
21 9 123
10 131
22
23
24
25
4
1 THEREUPON:
2 LLOYD E. HORVATH, P.E.,
3 was called as a witness by the Plaintiff having been first
4 duly sworn, was examined and testified as follows:
5 DIRECT EXAMINATION
6 BY MR. FITZGERALD:
7 Q Thomas Fitzgerald from U.S. Attorney's Office
8 and here with a Bob Johnson who will be assisting me.
9 First, I would like to show you what was marked as Exhibit
10 1 the notice of this deposition and accompanying request
11 for documents. Did you have an opportunity to go over that
12 with your attorney?
13 (Whereupon, Exhibit No. 1, 2, and 3 were
14 marked for Identification by the Court Reporter.)
15 A Yes.
16 Q And did you have an opportunity to go through
17 with your attorney the list Attachment A delineating the
18 documents that should be produced in response to the
19 notice?
20 A Yes.
21 Q Now, at your office you produced for
22 examination, two boxes of files plus a small additional
23 stack; is that correct?
24 A Correct.
25 Q And had you personally secured those from
5
1 whatever file cabinets they would normally be kept in?
2 A For the most part, no. They were done by
3 others.
4 Q Was it done under your direction?
5 A Yes.
6 Q So, do you have reasonable assurance that
7 everything that was called for in the notice is in fact
8 produced for inspection?
9 A Yes.
10 Q Additionally, some days prior to that by
11 Fed-X, documents were provided which included a report and
12 investigation of subsurface flow -- the title goes on and
13 on. Did you also assist in securing that set of documents
14 and providing them in response to the notice?
15 A Yes.
16 Q Are there any other documents right now that
17 you are aware of that were not produced in response to the
18 notice that appeared to fall within the documents
19 requested?
20 A No.
21 Q Now, prior to the provision of the documents
22 that were discussion amongst counsel and it was indicated
23 that you or your firm might have other clients within the
24 Everglades Agricultural Area you provided service for.
25 Were there or are there any other such documents for which
6
1 the contracts and description of work or files were not
2 produced?
3 A Our firm, I'm aware of has two other jobs
4 within EAA.
5 Q Without specifying the precise nature of work,
6 can you tell me who the clients are in those two?
7 A No, I can't. Well, actually they're law
8 firms -- they're from law firms, it's confidential.
9 Q Is the work that you are doing related to the
10 issues in the challenge to the Everglades SWIM Plan which
11 is the reason we are here?
12 A No.
13 Q Is the work related to the potential challenge
14 to the Everglades Agricultural Area Regulatory Rule of
15 Chapter 40-E Administrative Code?
16 A No.
17 Q Are you familiar with that code the BMP Rule?
18 A I'm vaguely familiar with it.
19 Q Sufficiently the work is unrelated to that?
20 A Right.
21 Q Do you know whom you stated that the clients
22 in that are two law firms or two law firms that retained
23 you?
24 A That's correct.
25 Q Do you know who their client is that you're
7
1 doing the work?
2 A In one case, no. In the other case, I believe
3 I know. I'm not at all involved in the project.
4 Q To the extent that you believe you know who
5 the actual client of the firm may be, is it anyone or any
6 entity that's a party to the SWIM Challenge?
7 MR. PERKO: I am going to object to the
8 question. He already indicated he was not at
9 liberty to reveal that information.
10 MR. FITZGERALD: You can go ahead and answer
11 unless you're directing him not to.
12 THE WITNESS: I'm not at liberty to reveal
13 that information.
14 MR. FITZGERALD: I didn't ask for the name
15 yet. I requested you, if you know, whether or not
16 this particular person or entity is a party to the
17 SWIM Challenge?
18 MR. PERKO: I am going to object. We can play
19 20 questions all day long and eventually get to the
20 name that is clearly what you're trying to do. He
21 already said --
22 MR. FITZGERALD: Put the basis of your
23 objection on the record.
24 MR. PERKO: It's privileged information.
25 MR. FITZGERALD: You are directing him not to
8
1 answer. Let me explain where I am going with this,
2 if it turns out that was a multi-million dollar
3 contract and somebody involved in this case both
4 Mr. Horvath and Missimer or your superior - he has
5 got the lead name on the firm, he is also designated
6 by your client as a witness in this case. They are
7 certainly subject to impeachment based on whatever
8 the value of that work may be to them and I think
9 that was a legitimate area.
10 MR. PERKO: He may alleviate it if I could ask
11 him a couple questions.
12 MR. FITZGERALD: You can when I'm done.
13 MR. PERKO: All right. I guess we can
14 proceed.
15 MR. FITZGERALD: Your witness has a puzzled
16 look. You're not directing him not to answer.
17 MR. PERKO: This work was not performed on
18 behalf of my client.
19 MR. FITZGERALD: I understand that.
20 MR. PERKO: And it's my understanding that
21 Mr. Horvath is not at liberty to reveal that
22 information. I don't know that I can object on his
23 behalf and instruct him not to answer that
24 information, because it's Mr. Horvath who is raising
25 the privilege not my client.
9
1 MR. FITZGERALD: Well, without belaboring the
2 record with objections, it is not his to raise it is
3 his clients. How do you deem it to be privileged
4 information whether or not a possible client of a
5 law firm is involved in the Everglades SWIM Plan
6 Challenge?
7 MR. PERKO: Mr. Horvath has stated that the
8 information is subject to a confidentiality
9 agreement. He is not at liberty to state that
10 information without the consent of his client. He
11 has not received that consent and to the extent you
12 are questioning Mr. Horvath to proceed in seeking
13 that information. I think your harassing the
14 witness. He said he is not gonna answer that
15 question.
16 MR. FITZGERALD: I have not heard your witness
17 say that on the record that he is refusing to answer
18 and I haven't asked him the name of the individual.
19 MR. PERKO: You're clearly asking questions to
20 reveal that information.
21 MR. FITZGERALD: If we get to that. If you
22 want to direct him not to answer, we can get the
23 hearing officer on the phone and resolve the matter.
24 MR. PERKO: I'm telling Mr. Horvath he does
25 not have to answer that question if he does not feel
10
1 it's appropriate.
2 MR. FITZGERALD: Mr. Horvath, your attorney
3 can explain to you the options if you refuse to
4 answer a question which we otherwise feel is
5 legitimate. You, of course, are the reason of this
6 proceeding, if this disrupts the deposition I don't
7 believe you have a claim of privilege. I ask you to
8 direct your client to answer the question or tell
9 him not to answer the question.
10 MR. PERKO: I'm not representing Mr. Horvath,
11 I'm representing my clients.
12 MR. FITZGERALD: Mr. Horvath, there is a
13 method to compel that was produced for a witness
14 that is refusing to answer an appropriate question.
15 Since your attorney here is representing you on your
16 behalf and directed you not to answer, but I simply
17 ask that you respond to the question. Do you
18 remember the question?
19 THE WITNESS: Would you like to restate it?
20 Q (By Mr. Fitzgerald) Without revealing the
21 name of this possible client of the law firm, do you know
22 if -- do you know whether or not that particular individual
23 is involved in the SWIM Plan Challenge?
24 A Yes.
25 Q Yes, you know?
11
1 A Yes, I know.
2 Q Is it that entity or individual involved in
3 the SWIM Plan Challenge?
4 A Yes.
5 Q What is the dollar value of the contract under
6 which your firm is currently providing service through a
7 law firm, if you know?
8 A I don't know the dollar value of the contract
9 it is certainly not multi-million dollars.
10 Q Who was the engineer or hydrologist or
11 individual at your firm that is the lead or would be most
12 knowledgeable regarding that?
13 A I'm really not aware of who that is.
14 Q Would Mr. Missimer know that?
15 A Yeah, Tom may know.
16 Q With regard to the second law firm's related
17 work, the one where you were unaware of the identity or
18 even possible identity of the client, who would be most
19 knowledgeable about that particular project?
20 A Perhaps Tom O'Donnell.
21 Q What is his position at Missimer & Associates?
22 A Vice president of Environmental Division.
23 Q Now, in reviewing the documents that you were
24 provided at your firm, I noticed that there were a number
25 of those that related to relatively small projects within
12
1 the Everglades Agricultural Area referring to the mediation
2 efforts that removed the old fuel tanks and that sort of
3 thing; is that correct?
4 A Correct.
5 Q Does your firm do a lot of that sort of work
6 around the state?
7 A Yes.
8 Q And within the EAA, do you have any idea who
9 referred that work to you?
10 A No.
11 Q Have you been personally involved in any of
12 that work?
13 A No.
14 Q So, the files reflect that mediation efforts
15 were simply because of where they were and not that you had
16 personally worked on them?
17 A That's correct.
18 Q And many of the files too reflected that
19 either you or the firm do some work for municipalities
20 related to assessment of the effect of percolation ponds?
21 A Correct.
22 Q Did you personally do that?
23 A Yes.
24 MR. FITZGERALD: Somebody is going to be
25 joining us in a minute.
13
1 MR. WALLER: For the record, I'm Brad Waller.
2 Q (By Mr. Fitzgerald) I'm not sure if you
3 already answered that. I already lost the answer. You do
4 work at the municipality percolation ponds?
5 A Yes.
6 Q That's essentially Missimer & Associates; is
7 it not?
8 A Most of the time, yes.
9 Q And can you just tell us which of those
10 projects you have been involved in over the last few years?
11 A Several. City of Fort Myers Beach, some in La
12 Belle area -- I can't remember who the client was -- Marco
13 Island Utilities.
14 Q How about Jamaican Bay West?
15 A Jamaican Bay West.
16 Q You do some work for Deltona?
17 A Deltona, yes.
18 Q You have done work for Roth Farms as well in
19 the EAA at the 20 mile bend and Anderson?
20 A Our company I believe has, yes.
21 Q What types of --
22 A Underground tank job, I think.
23 Q Were you involved in that personally?
24 A No.
25 Q Do you know who did handle that tank removal
14
1 effort?
2 A Jim Anderson.
3 Q Were you involved in providing to U.S. Sugar
4 Corporation a proposal related to act for storage in the
5 reservoir program?
6 A Yes.
7 Q What was your involvement in that particular
8 program?
9 A I prepared the proposal, at least the first
10 addition of it, and I don't remember whether I participated
11 in the second one or not.
12 Q When was the first addition?
13 A About a year and a half ago.
14 Q And was that solicited or was it an effort to
15 sort of generate business on the part of the association?
16 A Probably a combination of the two. I believe
17 that in this case U.S. Sugar came to us.
18 Q Have you been involved previously in the EAA
19 with programs?
20 A No.
21 Q Had your firm?
22 A No.
23 Q Had your firm had any involvement with the
24 Injection Well Project of some of the municipalities in the
25 EAA?
15
1 A No.
2 Q Do you know who did, what firm?
3 A Which firms have?
4 Q Yes.
5 A I believe Gardy & Miller (phonetic) did a well
6 for what was once called Quaker Oats in the vicinity. They
7 may have done another one for -- oh, I forget which city.
8 Q There was a file with a file or client number
9 of CH-130 related to U.S. Sugar Corporation Unit 2 test
10 wells?
11 A Okay.
12 Q Is that a project on which you worked?
13 A Yes, I am on that one.
14 Q What does that project entail?
15 A That was conversion of some property which is
16 pasture and sugarcane. I believe they were turning it into
17 citrus and they required a study of the water resources to
18 determine how they were gonna develop irrigation water for
19 the citrus growers.
20 Q And when was that project --
21 A Sounds like a 1990 project on the basis of the
22 number.
23 Q So, as far you know that is closed?
24 A It was finished.
25 Q On the ASR Program is that also a closed?
16
1 A No, that's ongoing.
2 Q When does that -- When does your firm
3 anticipate that project will be done?
4 A It's a long term project. We are right now in
5 the process of evaluating bids for construction of the
6 first test well.
7 Q Where will that well be located?
8 A I'm not exactly sure where that property is.
9 Q Who's leading that project at your firm?
10 A Dr. Walker.
11 Q And you have brought that file with you today?
12 A Yes.
13 MR. FITZGERALD: I would like to mark the file
14 as an Exhibit. Counsel doesn't have copies of it,
15 but under the circumstances of which I examined them
16 it was not real convenient to make copies at the
17 firm. We will make copies here today for everyone.
18 If you can pass that file to the court reporter.
19 (Whereupon, Exhibit No. 4 was marked for
20 Identification by the Court Reporter.)
21 Q (By Mr. Fitzgerald) Take a quick look at
22 Number 5 there (indicating) that is the project related to
23 the Tamiami Aquifier obtaining the irrigation that you are
24 referring to?
25 A Yes.
17
1 Q Who's Dr. Durbin Tabb, are you familiar with
2 him?
3 A Yeah, he is -- I know him. He is a biologist
4 consultant for many years. Has worked in South Florida and
5 sorted projects related to development and other
6 environmental issues of concern.
7 Q Is he a consultant to your firm or he is in
8 the business?
9 A He is in the business.
10 Q Has he worked on any projects with you?
11 A Several.
12 Q What projects has he assisted you in?
13 A Primarily projects on the West Coast of
14 Florida related to development of lands. He is concerned
15 with biological aspects of wet lands and areas of
16 preservation.
17 Q Did you work on the Tropical Bio Industries
18 Everglades case file or your project number 87-7?
19 A No.
20 Q The firm then?
21 A Oh, yeah.
22 Q Take a quick look at the next file. That file
23 reflects Dr. Tabb's participation with your firm in a
24 particular project, Tropical Bio Project?
25 A Correct.
18
1 Q I guess that's Tropical Bio Industry -- I
2 think I mispronounced it as well. If we could mark that
3 Exhibit 6.
4 (Whereupon, Exhibit No. 6 was marked for
5 Identification by the Court Reporter.)
6 For the record, I have marked Exhibit 2 a
7 resume' provided for Mr. Horvath. Can I have you take a
8 look at it and you are probably familiar with it. Clarify
9 that that is the entire thing. We didn't lose a page in
10 transmissions or anything like that.
11 A Looks like the entire.
12 Q Is it current, Mr. Horvath, or are there any
13 supplemental publications or experiences that you would
14 list; education, anything like that? I know these things
15 have a habit of becoming outdated.
16 A It's probably fairly current. It looks like a
17 slightly different version of one that has been going
18 around, but it looks like it's fairly up-to-date.
19 Q Was this one prepared under your supervision
20 for purposes of providing it in this case?
21 A I don't believe so or it was probably
22 submitted in regards to request rather rapidly. So, I
23 don't think it's tailored for the case.
24 Q You're still vice president of the hydrology
25 services division?
19
1 A We kind of changed the title to vice president
2 of water resource.
3 Q Has your education changed? You have a
4 Masters in Civil Engineering from Ohio University?
5 A Same.
6 Q And except for the change in your title, the
7 rest of it would be, to the best of your knowledge,
8 accurate?
9 A Yes.
10 Q With regard to your publications, can we go
11 through and can you briefly give me an idea of what they
12 related -- probably it would be easier if I give you the
13 title, 1978 publication on aquifer test of Tamiami Aquifer
14 System-Zone II in Lee County?
15 A That relates to a study we did for development
16 of a wellfield and analysis of the aquifer testing - the
17 techniques and results.
18 Q Did your firm actually do the aquifer test in
19 that test?
20 A Yes.
21 Q How long did that take?
22 A Well, the study took a period of months.
23 There is -- Several test wells were drilled and a series of
24 tests were conducted so, you know, it's a couple months of
25 drilling and testing and analysis of data.
20
1 Q What was the purpose of the analysis? What
2 was the project trying to determine?
3 A Well, to determine the coefficients that
4 describe how groundwater flows in that particular aquifer
5 and zones above it, and to ultimately design a wellfield
6 and predict the impacts of withdrawals.
7 Q This was for irrigation purposes or drinking
8 water purposes?
9 A For public supply, wellfield.
10 Q The 1981 publication and evaluation of
11 groundwater quality changes and supply to reverse osmosis,
12 do you recall that?
13 A Yes.
14 Q What was that?
15 A That was presentation of a technique in by
16 which we predict how brackish water quality would change
17 with time by resulting from pumpage. I think that was on
18 the Island of Sanibel.
19 Q On the West Coast of Florida?
20 A Right, west Coast of Florida.
21 Q The next was a 1981 study on pumping-induced
22 salinity changes in a leaky, artesian coastal aquifer
23 system?
24 A Similar - similar topic to the last one.
25 Q Also involved in Sanibel?
21
1 A That involved Sanibel too, I believe.
2 Q What was the leaking artesian aquifer system?
3 A The aquifer system on the coast of artesian
4 being a confined -- which was not totally confined -- it
5 leaks water from, in this case, below and it's more
6 brackish water then the water that was being pumped, and
7 therefore, it deteriorates the quality of the zone you are
8 pumping. You're mining the fresher water out.
9 Q 1988 publication on Modeling of
10 pumping-induced groundwater quality changes at the Dare
11 County, North Carolina Wellfield?
12 A That's a very similar analysis technique.
13 Again, applied to a wellfield in North Carolina for pumpage
14 and for a reverse osmosis plan.
15 Q That was a coastal?
16 A That's coastal.
17 Q Only two more. Last year, Alternative design
18 to replace conventional surface-water intakes for membrane
19 treatment facilities?
20 A Yes. There was a presentation of techniques
21 for extracting groundwater or seawater, essentially, using
22 subsurface filters.
23 Q And then finally and undated, Planning and
24 design of reverse osmosis plant using a deteriorating water
25 supply?
22
1 A That was a study done or prepared or done to
2 the AWWA last year. It dealt with Marco Island Utilities
3 pumping from a leak at the artesian aquifer or rating of
4 change in water quality as a result of that pumping.
5 Q In these public studies, were the techniques
6 used in the necessary measurings or is supporting data
7 similar to those you used in producing the investigation
8 beneath property adjacent to Loxahatchee Conservation Area?
9 A Some of the techniques are similar. The
10 pumping test analysis has a lot of similar characteristics.
11 The rate of movement of water is, you know, the physics
12 driving water movement are the same regardless of where
13 you're taking your water. So, obviously, the equations on
14 which those are based are the same.
15 Q Your practical experience indicated in your
16 resume'. Do you feel that that qualifies you as an expert
17 in the field of hydrology?
18 A Yes, groundwater hydrology.
19 Q Have you conducted any detailed study of the
20 hydrology of the EAA?
21 A It's certainly nothing beyond the areas which
22 were reported in the document that you have.
23 Q Have you ever done a seepage test in the EAA
24 with the exception of the one report I gave you title to a
25 moment ago?
23
1 A No.
2 Q For sake of care, why don't we mark that as an
3 exhibit.
4 (Whereupon, Exhibit No. 7 was marked for
5 Identification by the Court Reporter.)
6 MR. FITZGERALD: Is this one marked up?
7 MR. PERKO: No.
8 Q (By Mr. Fitzgerald) Let me show you a copy of
9 that report. Do you recognize that report?
10 A Yes.
11 Q Is that in fact, the report that you produced
12 with regard to a seepage test conducted adjacent to
13 Loxahatchee Conservation Refuge?
14 A Yes.
15 Q Let me show you Exhibit 3. Do you recognize
16 that?
17 A Yes.
18 Q Did you recognize, either from the handwriting
19 or whatever, that you provided that to us through your
20 counsel?
21 A I recognize the titles and I recognize a
22 project number, so I would say it looks very similar.
23 Q Did you, in reviewing Exhibit 1 which was the
24 request for documents accompanying your notice, recognize
25 that you were required to provide as part of the deposition
24
1 your computer files or data related to this particular
2 project?
3 A Yes.
4 Q And did you, in fact, copy that on a disk to
5 be provided to us?
6 A Yes.
7 Q The disk I showed you, does that reflect the
8 project number and appear to be the disk that you provided?
9 A Yes, that's correct.
10 Q Did you delete any data from your magnetic
11 storage media before providing that disk?
12 A Not to my knowledge. I never looked at the
13 data on this disk. It was provided to me by someone else
14 that has the data stored.
15 Q Who would physically carry out that task?
16 A Suzanne Bernadini.
17 Q What was her position at the firm?
18 A She's a hydrogeologist.
19 Q Did she also participate in this test?
20 A Yes.
21 Q Who explained to her what was required to be
22 provided to her in a way of magnetic stored data?
23 A I did.
24 Q After your discussions with your counsel?
25 A Correct.
25
1 Q Now, on that disk, except for the
2 representation you can call it, there appears to be one
3 portion that indicates that it relates to segment 2 of your
4 report, the conclusions portion, but none of the other
5 tasks of the report appears on there. Do you know where
6 that would have been kept?
7 A It would be probably split between two
8 offices, most likely in the Palm Beach office.
9 Q When you say Palm Beach, is that the actual
10 address of that office?
11 A That's on Sandtree Boulevard in -- I forget
12 the name of the city now they have changed the name.
13 Q Sandtree Boulevard is enough for
14 identification?
15 A Okay.
16 Q The files that we discussed earlier in running
17 down some of the files provided at your office regarding
18 EAA in regard to mediation, to your knowledge, did any of
19 those projects involve seepage tests conducted at those
20 sites?
21 A To the best of my knowledge, they did not.
22 Q Have you ever been asked at your firm to
23 evaluate any general seepage data or literature seepage
24 data regarding the EAA.
25 A Yes.
26
1 Q What was that?
2 A I would say about two years ago I was looking
3 for information regarding seepage in the area of the EAA
4 and I reviewed the USGS publication that dealt with seepage
5 around Lake Okeechobee.
6 Q Do you remember the title of that publication?
7 A No.
8 Q Or its date of publication? Is it recent?
9 A It's not recent, it's quite awhile.
10 Q Did you review any army corps of engineers
11 data regarding the seepage calculations or experiences with
12 the Central and South Florida Flood Control Project?
13 A Some of that data may have been in the report.
14 It may have been acclimation of both army corps and USGS
15 data.
16 Q What area of Lake Okeechobee did that deal
17 with?
18 A The south - south shore and possibly around
19 the southeast side. I think it went from Moore Haven to
20 Pahokee. Is that on the east shore?
21 Q What was your purpose for seeking out that
22 information two years ago?
23 A To get a general understanding of what the
24 hydrogeological nature of shallow subsurface is there and
25 address, you know, seepage.
27
1 Q Had you been approached by a client
2 specifically or was this just self-gratification?
3 A No. We were asked by Kimley-Horn to look into
4 the subject of seepage related to impounding water in that
5 particular area.
6 Q What precise geographical area did they want
7 you to examine?
8 A They didn't have one. They were representing
9 several clients and several areas and they wanted sort of a
10 synopsis of the things that a person might be concerned
11 about if they wanted to address storing water behind an
12 impoundment.
13 Q Did they specify the type of soils or the
14 geological subterrain that would be involved?
15 A More or less they asked us to look at the type
16 of soils that might be expected there and make some
17 predictions.
18 Q In addition to the USGS data, where else did
19 you search for information on the subject?
20 A I'm not sure how extensive our search was. I
21 know we didn't come up with anything.
22 Q Who else in the firm worked on the project?
23 A Just me and Brian Peck, who's our computer
24 modeler.
25 Q Did you produce a computer model or did
28
1 Kimley-Horn?
2 A We produced some results.
3 Q In what form?
4 A Ultimately, it came out in a letter. I may
5 have sent them some pronounced, I'm not sure. I possibly
6 did which addressed, you know, basically seepage into
7 ditches.
8 Q Did you become aware of the identity of the
9 clients of the firm that had contacted you?
10 A No. I wasn't aware of any one client. They
11 allegedly represent several or a large group out there, and
12 we never talked about how many specifically. I got the
13 feeling it was many people whom may be faced with that.
14 Q So, to the best of your recollection the only
15 report, if any that you prepared, was a letter?
16 A Yes.
17 Q Have you provided that to us?
18 A I believe I did.
19 Q We will perhaps mark that later. Prior to
20 that event, two years ago, had you done any research or
21 fieldwork in the Everglades Agricultural Area related to
22 seepage measurements?
23 A No.
24 Q Is part of that project -- Did you do any
25 fieldwork?
29
1 A No.
2 Q Strictly literature?
3 A Literature.
4 Q Did you feel that your literature search was
5 exhausted with sort of dirty and quick references?
6 A Quick and dirty references, perfectly stated.
7 Q That was not a long-term project?
8 A No.
9 Q And when were you first approached to conduct
10 the seepage tests adjacent to Loxahatchee that are a
11 subject of the report that has been identified?
12 A Probably, around mid-May.
13 Q Okay, and when?
14 A Of '92.
15 Q Of this year. And what was -- When was the
16 report actually produced, the work completed?
17 A It's dated July of '92. I know it was about a
18 one month effort. I'm not exactly sure of the date.
19 Q So, one month to do from first approach to the
20 end of the fieldwork and rough draft or --
21 A Yes, about that.
22 Q And then it takes the usual several months to
23 get everybody to read the thing, I understand?
24 A Yes.
25 Q Who actually approached your firm to conduct
30
1 that test?
2 A I believe it was Kurt Pulman, I think, made
3 the first contact. Is that his name with KBN?
4 Q KBN is what?
5 A Engineers.
6 Q Consultants?
7 A Consulting firm.
8 Q And had you known Dr. Pulman prior to this
9 particular approach being made?
10 A No.
11 Q Do you know if Mr. Missimer knew him in
12 advance?
13 A No, he didn't.
14 Q And what information did Mr. Pulman provide
15 you to indicate what type of work he wanted do?
16 A We had a general, basically, a telephone
17 conversation with a follow-up meeting in which we discussed
18 the, you know, the issue of seepage in that particular
19 area.
20 Q And what did he tell you the issue was?
21 A Well, the issue was a proposed BMP in which
22 apparently the qualification of the amounts of water to be
23 retained on a particular farmer's property were based on a
24 number of factors which didn't appear to contain seepage.
25 And so the question of how significant is the seepage issue
31
1 came up and so this was to get an answer.
2 Q Did he indicate to you what his interest was
3 in this particular as a consultant?
4 A No, not really.
5 Q Did he tell you who his clients were?
6 A Yes.
7 Q And who are his clients?
8 A Well, I believe his clients were the law firm
9 Hopping, Boyd, Green & Sams.
10 Q That explains why your title page says the
11 report was prepared for the law firm then?
12 A That's correct.
13 Q Did you have -- The meeting that you had with
14 Dr. Pulman, who else was present?
15 A A hydrogeologist named John Good who worked
16 with KBN.
17 Q Yourself?
18 A And myself.
19 Q Anyone else from your firm?
20 A No.
21 Q Did you keep any minutes or notes of that
22 meeting?
23 A Obviously, I made some sort of notes so, yes.
24 Q At that meeting, did you discuss site
25 selection for the seepage test he was proposing that you
32
1 conducted for him?
2 A Yes, the property -- at least, the site was
3 sort of what we determined from a field visit.
4 Q When I say site, then you take a special
5 condemnation to that to be a specific location, test dwell?
6 A Correct.
7 Q Let's talk about fields then. Did he identify
8 for you at that meeting in early May of 1992 what fields he
9 wanted tested?
10 A Well, no, we did that within a few days later,
11 actually via site visit.
12 Q Was that on foot or air?
13 A By car and truck or whatever it took to get
14 around the site.
15 Q And ultimately, you selected two sites
16 adjacent to the L-7 Canal -- the Loxahatchee or is it -- Is
17 L-7 the other side?
18 A I'm not sure about the L-7 Canal but we were
19 definitely on the left side of the conservation area.
20 Q How many farms did you visit before you
21 settled on the one that you employed?
22 A We only visited it.
23 Q So, what you refer in your report as the
24 Gilmore and Hillsborough, those are the only two sites you
25 visited?
33
1 A Yes.
2 Q Did Dr. Pulman accompany you?
3 A No, he didn't.
4 Q Did anybody from KBN?
5 A John Good.
6 Q Did anyone else accompany you?
7 A Jeff Ward.
8 Q And who's Jeff Ward?
9 A With the Sugar Growers. He is the attorney
10 for the Sugar Growers Co-op.
11 Q What did you understand his presence was in
12 aide of?
13 A I believed neither John or I have ever been to
14 the site, and he was the expert on showing us where the
15 properties were.
16 Q Did he tell you who the owners of the property
17 were?
18 A Yes.
19 Q And who was that?
20 A That is the Sugar Growers Co-op, I believe.
21 Q Did you understand him to tell you that the
22 Sugar Growers Co-op, in itself, owned those two crops?
23 A That's my understanding.
24 Q That's what you said in your report?
25 A I think so.
34
1 Q So, you had no independent knowledge of whose
2 function --
3 A No.
4 Q Did Mr. Ward tell you why he selected those
5 two sites to be tested?
6 A No, other than I think that simply because
7 those happened to be there, the two farms that they had
8 control and access to and easy sites to test.
9 Q Now, the Hillsborough Farm, what is between
10 the Hillsborough Farm and Loxahatchee Conservation Area?
11 A There were some -- There are more farm fields
12 and I don't --
13 Q Well, don't --
14 A I don't know specifically.
15 Q If you can look at Figure 1, doesn't
16 Hillsborough Farm, in fact, extend abutting Loxahatchee
17 Wildlife Refuge all the way over to the Hillsborough Canal?
18 A That is the way we show it there. I mean,
19 that is my understanding.
20 Q Okay. When you conducted your fieldwork on
21 the Hillsborough Farm, that was essentially in the eastern
22 portion of it, your test sites?
23 A Yes.
24 Q With regard to the Gilmore land that also
25 abuts, if you will, Loxahatchee Conservation Area as it's
35
1 described in the report?
2 A Correct.
3 Q What do the symbols on the chart in Figure 1
4 indicate, the crosshatching, where just above it says L-7
5 Canal and it makes the end (indicating).
6 A That's correct.
7 Q Is there a levy of any sort between the
8 Gilmore land and the canal?
9 A Yes, there is.
10 Q And is there a levy on the other side of the
11 canal between the canal property and the general area of
12 Loxahatchee Conservation Area, if you recall?
13 A My understanding there is a levy and the canal
14 is inside the levy and then the conservation area is within
15 there as well.
16 Q Do you recall if there is any physical barrier
17 or berm or levy between the canal and adjacent conservation
18 area as you go east?
19 A Moving east from -- Explain again. Starting
20 where?
21 Q You got your farmland, levy, canal, and we're
22 going eastward?
23 A Conservation area.
24 Q In other words, is the canal levy on either
25 side?
36
1 A I'm not really sure what is -- I'm not sure of
2 what was on the other side of the levy. We were not able
3 to access that.
4 Q On the farm side, both for Hillsborough and
5 Gilmore, were there field ditches or canals?
6 A Yes.
7 Q What do you understand by field ditch?
8 A Field ditch, in my terms, is an interior ditch
9 for primarily draining or irrigating, you know, moving
10 water on and off of the property that's being irrigated or
11 farmed, I guess.
12 Q The field or farm ditches on Gilmore and
13 Hillsborough adjacent to the levy, do they run north/south
14 or were there cross canal ditches running east/west as
15 well, do you recall?
16 A The farm ditches are running north and south
17 and there are some east/west interconnects as well.
18 Q Was there water in those canals when you
19 visited the sites of those ditches?
20 A Yes.
21 Q I also assume that there was water in the L-7
22 Canal?
23 A I assume so.
24 Q Are there pumping facilities on those two
25 farms?
37
1 A Yes.
2 Q Did you visit and examine those pumping
3 facilities?
4 A Yes.
5 Q Did you secure their records of pumping
6 activity?
7 A I didn't personally. John Good was doing that
8 and that was one of his charges.
9 Q Did he ever provide those to you to use in
10 assisting you in producing your study?
11 A No, we were working independently. Really, he
12 was looking at quantitative and the amounts of water that
13 were being pumped and we were working from what I
14 understand to be two different directions to see, you know,
15 how seepage might impair.
16 Q Did he ever provide to you the results of his
17 part of the work?
18 A No.
19 Q Do you know during what period of time he
20 conducted that work?
21 A I believe it was in May.
22 Q Have you discussed it with him since?
23 A No.
24 Q Have you seen him since?
25 A No, actually --
38
1 Q The date that you visited, did your field
2 visit in early May, were the pumps running?
3 A Some pumps were running and some were not.
4 Q Were they irrigating or were they discharging?
5 A They were discharging, I believe. They were
6 definitely not irrigating.
7 Q Where are the discharge points for those
8 points? Do they discharge to the east or west?
9 A Well, the ones that I was observing on the
10 Gilmore property were discharging immediately south.
11 Q Into the L-7?
12 A No. They were discharging into a canal, an
13 east/west canal that runs along the south property line of
14 the Gilmore land.
15 Q Did you notice whether that east/west field
16 ditch was connected to the - primarily to the L-7?
17 A I don't believe it's connected to the L-7. I
18 believe that the water moves to the west.
19 Q Towards the Hillsborough Canal?
20 A Towards the Hillsborough Canal.
21 Q How about on the Hillsborough Farm itself,
22 were they conducting pumping operations at all?
23 A I think the pump was undergoing maintenance at
24 the time.
25 Q Were you able to ascertain how long the pump
39
1 had been out of service?
2 A I don't believe it was very long. They were
3 working on it while I was there.
4 Q Did any farm management personnel meet with
5 you to discuss their operations and explain their problems?
6 A Yes.
7 Q And where was that, which farm?
8 A We really had a farm manager with us at both
9 sites so we would get to meet the fellow whom would be in
10 there next week with a drilling rig so we could coordinate
11 the efforts.
12 Q Was this the same man?
13 A There were two individuals.
14 Q Do you remember their names?
15 A I don't.
16 Q Had Mr. Ward had them meet you there?
17 A Yes.
18 Q What did the manager, with regard to Gilmore
19 lands, what did he tell you about their particular
20 situation?
21 A He told me that they were basically - they
22 always pumped from that property regardless of whether it
23 was wet or dry season to keep the water levels down so they
24 could farm. It was pretty much the same story at
25 Hillsborough.
40
1 Q Did you ever examine their pumping records and
2 compare it to rainfall data. For example, to ascertain how
3 severe their problem was, if any?
4 A No.
5 Q After hearing that information, what did you
6 do in terms of assessing sites for seepage tests?
7 A We drilled some wells to describe the geology
8 on the basis of what the geology looked like. We designed
9 a test pumping program which entailed drilling, and test
10 production wells for pumping, and a series of monitor wells
11 for observing how the water levels reacted to pumping, and
12 we set up some recorders and started pumping and recording
13 data.
14 Q On the date of your initial field visit, did
15 you select sites for these various types of equipment then?
16 A Yes.
17 Q So, you already had in mind the scope of the
18 test you were going to conduct?
19 A I'm not sure. The first field visit actually
20 fine tuned to the sites. It was just more to determine the
21 access to the sites and be able to describe to the drilling
22 company what the conditions were like so they could tell us
23 how much it was gonna cost us to get equipment out there
24 and work.
25 Q Then your firm or you can arrange for drilling
41
1 or the drilling contractor to come in?
2 A Yes.
3 Q Did you discuss with the farm management
4 personnel, who met you out there, whether they had
5 historically done the irrigation, you know, extreme drought
6 situations?
7 A Yes, I did. And the answer was that the
8 fellow, I don't know which one whoever it was that spoke
9 most about it, said that as long as he had been there,
10 which was a number of years but not more than I don't think
11 five or six, in his period of time they never required
12 irrigation.
13 Q I'm sorry, how many years?
14 A I'm thinking five or six years. It may have
15 been -- I'm not sure that the Co-op owned the Gilmore
16 property prior to that that may have had something to do
17 with that.
18 Q You indicated in Section 1.1, the background
19 of your report, this property differs from others elsewhere
20 in the EAA and in that it does not require irrigation
21 essentially. What you just said was, it is your
22 understanding then and now that this is very uncommon in
23 the EAA?
24 A No, I don't think it's uncommon in that area.
25 Q You stated that a preliminary evaluation
42
1 indicated subsurface seepage from Loxahatchee was the
2 reason for the high water table at the time of your
3 initial evaluation, was what led you to that conclusion?
4 A In one of the canals you could actually
5 observe what appeared to be discharge and almost as though
6 it was like a spring flowing in one of the drainage
7 ditches. We could see water pumping up and running along
8 this path. Obviously, seepage, the source, you know,
9 appeared to be from what I knew of the area would appear to
10 be the Loxahatchee.
11 Q Loxahatchee or the L-7 Canal?
12 A Well, I interpreted them to be the same thing.
13 The L-7 Canal is, you know, inside of the berm that I could
14 see in the distance.
15 Q Did you observe at that time any differential
16 inland elevation on the farm side opposed to Loxahatchee
17 side of the --
18 A Land elevations?
19 Q Yes.
20 A It's pretty hard to observe land elevation
21 differences. Out there everything looks flat.
22 Q How about hydraulic heads?
23 A No, I certainly didn't observe it. I had
24 heard that, you know, that heads were higher inside the
25 Loxahatchee.
43
1 Q What led you to focus the bulk of your
2 attention on the Gilmore site and, essentially, do only
3 cursory testing of the Hillsborough Farm?
4 A Well, one was we didn't have a lot of time and
5 we didn't have a lot of money so we selected one site to
6 focus on, it was purely random. The Gilmore was possibly
7 closer to where we could come into the property, just a
8 matter of convenience.
9 Q Who had set parameters for the scope of the
10 project in terms of the amount of money that could be
11 allocated to it?
12 A In our initial discussion, we - I pretty much
13 threw out a number and that was generally accepted as the
14 cost range of what the project would be.
15 Q And you tossed out that number. About what
16 was it?
17 A It was about twenty thousand dollars.
18 Q And what did the project ultimately run?
19 A It was a little more than drilling. It was a
20 little bit more expensive and surveying was more expensive.
21 Q Who specified the amount of time to conduct
22 that? What was the sense of urgency originating?
23 A I had the feeling that the results needed to
24 be generated within about a month in regard to some action
25 that was being taken regarding this BMP.
44
1 Q You mentioned the BMP that Dr. Pulman
2 discussed them at your meeting in your office, were you
3 ever provided a copy of that Rule from the Florida
4 Administrative Code?
5 A Not really.
6 Q You never really reviewed it in detail
7 yourself?
8 A No.
9 Q Did you ever review the history of the
10 development of the Rule?
11 A No.
12 Q So, you essentially relied on Dr. Pulman in
13 what you needed to know regarding that?
14 A Right.
15 Q Do you know if your report, other than being
16 provided to us in this notice, was ever distracted
17 elsewhere by your firm or Dr. Pulman?
18 A I know it went to Gary's firm and to the Sugar
19 Co-op.
20 Q Have you ever been asked to make presentation
21 on this to the South Florida Water Management District or
22 the Department of Environmental Regulation?
23 A No.
24 Q This is the first time you have ever - were
25 sort of called out in public to talk about it?
45
1 A Right.
2 Q Did you make the selection of Gilmore as being
3 the easiest to handle or was it consensus?
4 A Yes.
5 Q It was your choice, okay. I should have
6 mentioned this at the outset, if you ever do not understand
7 my question, it is a distinct possibility the way I ask
8 them, just tell me and I will be happy to rephrase it in
9 English. Also, if you get tired or you need a pit stop,
10 let me know. I noticed it's getting to be about 10:00.
11 Another half hour or so, tell me if you would like to take
12 a break.
13 You mentioned in your conclusion section that
14 there was seepage from the main drainage conveyance canals.
15 What did you mean by main drainage conveyance canals?
16 A Those are the canals the water is pumped into.
17 What I see there are the ditches that are interior to the
18 farm which in these pur