1

1 Division of Administrative Hearings

2 Department of Administration, State of Florida

3 SUGAR CANE GROWERS COOPERATIVE )

of FLORIDA; ROTH FARMS, INC.; and, )

4 WEDGEWORTH FARMS, INC., )

Petitioners, )

5 V ) DOAH

SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3038

6 DISTRICT, an agency of the State )

of Florida; et al., )

7 Respondents. )

Florida Sugar Cane League, INC.; )

8 UNITED STATES SUGAR CORPORATION; )

and NEW HOPE SOUTH, INC., )

9 Petitioners, )

V ) DOAH

10 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3039

DISTRICT, an agency of the State )

11 of Florida; et al., )

Respondents. )

12 FLORIDA FRUIT and VEGETABLE )

ASSOCIATION; LEWIS POPE FARMS; )

13 W.E. SCHLECHTER & SONS, INC., )

and HUNDLEY FARMS, INC., )

14 Petitioners, )

V ) DOAH

15 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3040

DISTRICT, an agency of the State )

16 of Florida; et al., )

Respondents. )

18 Deposition of James B. Jackson

19 Taken before April Y. Sapp, Court Reporter

and Notary Public in and for the State of Florida at

20 large, pursuant to notice of taking deposition filed

by the Petitioners in the above cause.

21 - - -

Monday January 25, 1993

22 319 Clematis Street, 5th Floor

West Palm Beach, Florida 33401

23 9:37 a.m. - 12:02 p.m.

- - -

1 APPEARANCES:

On behalf of the Petitioners Florida Sugar

3 Cane League, Inc., United State Sugar Corp.,

and New South Hope, Inc.:

4 Peeples, Earl & Blank, P.A.

One Biscayne Tower, Suite 3636

5 Two South Biscayne Boulevard

Miami, Florida 33131

6 By: RICHARD BURGESS, ESQUIRE

7 On behalf of the Respondent SFWMD:

South Florida Water Management District

8 3301 Gun Club Road

West Palm Beach, Florida 33406

9 By: RUTH CLEMENTS, ESQUIRE

10 On behalf of the Intervenor United States of America:

Assistant United States Attorney

11 Southern District of Florida

155 South Miami Avenue, Suite 627

12 Miami, Florida 33130-1693

By: THOMAS A.W. FITZGERALD, ESQUIRE

Also Present: Kathy Stark, Esquire

15 - - -

1 - - -

2 I N D E X

3 - - -

5 WITNESS: DIRECT CROSS REDIRECT RECROSS

6 James B. Jackson

BY MR. BURGESS 6

1 - - -

2 E X H I B I T S

3 - - -

5 NUMBER PAGE

6 EXB. NO. 1 13

7 Notice of Deposition Duces Tecum

8 EXB. NO. 2 16

9 Memo 6-23-92 from Jackson to Schatner

10 EXB. NO. 3 18

11 Memo 4-15-92 from Bearzotti

12 EXB. NO. 4 20

13 Memo 12-20-91 from Redfield

14 EXB. NO. 5 27

15 Memo 10-10-91 from Newman to Rhoads

16 EXB. NO. 6 41

17 Memo 10-10-91 from Goforth to Jackson

18 EXB. NO. 7 42

19 Memo 6-26-91 from Newman

20 EXB. NO. 8 48

21 Routing slip cover with Duke Wetlands Report

22 EXB. NO. 9 50

23 Memo 6-30-92 from Redfield to Federico and Fontaine

24 EXB. NO. 10 60

25 Memo 7-8-92 from Haag to Jackson

1 - - -

2 E X H I B I T S

3 - - -

4 NUMBER PAGE

5 EXB. NO. 11 62

6 Letter from Jackson to Galen Miller

7 11-20-92

8 EXB. NO. 12 65

9 Contract C91-2059 Amendment 4

10 EXB. NO. 13 69

11 Affidavit of Jackson re: Tomasello lawsuit

12 EXB. NO. 14 70

13 ENR Project Closer Look 8-4-92

14 EXB. NO. 15 74

15 ENR Program Closer Look

1 P R O C E E D I N G S

2 - - -

3 Thereupon,

4 James B. Jackson,

5 being by the undersigned Notary Public first duly

6 sworn, was examined and testified as follows:

7 THE WITNESS: I do.

8 DIRECT (James B. Jackson)

9 BY MR. BURGESS:

10 Q. Mr. Jackson, my name is Rick Burgess. I

11 represent the Florida Sugar Cane League, U.S. Sugar

12 Corporation and New Hope South, Inc. in the SWIM Plan

13 challenge that we're here about today and I'm going

14 to ask you some questions. If you don't understand

15 my question, I would just ask you to ask me to

16 clarify, otherwise I'll assume that you did

17 understand the question.

18 Could you state your name and your

19 professional address for the record?

20 A. James B. Jackson. My home address is xxxxxxx

22 Q. What's your occupation?

23 A. I'm a professional engineer.

24 Q. Employed at?

25 A. The Water Management District.

1 Q. And how long have you been there?

2 A. Since March 7, 1966.

3 Q. How long -- what present position or title

4 do you hold?

5 A. I'm Project Manager of -- the special title

6 of the position is Senior Staff Civil Engineer.

7 Q. How long have you been the Project

8 Administrator? And I assume that's with respect to

9 the ENR Project.

10 A. Yes.

11 Q. Okay. Are you Project Administrator at the

12 present time with respect to other projects?

13 A. Yes.

14 Q. How many other projects?

15 A. I'd like to correct you. It's Project

16 Manager.

17 Q. Project Manager.

18 A. There are project administrators.

19 Q. Okay. And are you presently the Project

20 Manager of the ENR Project?

21 A. Yes, sir.

22 Q. And how long have you held that position

23 and title with respect to that project?

24 A. Since it commenced in early October 1988.

25 Q. How many other projects are you presently

1 Project Manager of?

2 A. Several major projects.

3 Q. Can you name them?

4 A. One is the expansion of the north loop

5 communication system.

6 Q. North loops?

7 A. North loop communication system, ongoing

8 study, master plan study with various field stations.

9 Q. Any others?

10 A. Machine shop relocation.

11 Q. Does the ENR Project take up the majority

12 of your time compared to each of the other three

13 projects that you're Project Manager on?

14 A. Yes.

15 Q. Describe your responsibilities as Project

16 Manager of the ENR Project.

17 A. Basically, it's overall Project Manager of

18 all the various activities, bringing all the entities

19 together and moving the project forward on a

20 schedule. Includes conceptual design, detail design,

21 actual letting of bids, contract, then the

22 construction.

23 Q. Who do you report to with respect to your

24 Project Manager duties on the ENR Project?

25 A. The Division Director, Dr. Gary Goforth and

1 the Department Director, Mr. Bernie Schnatner.

2 Q. And what department is that?

3 A. Construction Management Department.

4 Q. And Dr. Goforth is Division Director of

5 what division?

6 A. Construction Management Division.

7 Q. And how many people report to you as

8 Project Manager of the ENR Project?

9 A. Would you clarify that, please.

10 Q. Do any persons report to you directly with

11 respect to ENR responsibilities?

12 A. Not exactly. Again, my -- as a Project

13 Manager, I have monthly meetings to bring all the

14 various activities together and just to make sure

15 that these people are moving forward on schedule and

16 contributing to the overall completion of the

17 project.

18 Q. Okay. What --

19 A. They're not actually in line to report

20 directly to me. I just oversee the coordination of

21 ongoing project construction.

22 Q. Is it just the construction that you

23 coordinate or is it, in fact, the entire project?

24 A. The entire project.

25 Q. Have you had monthly meetings of the ENR

1 Project team since the inception of the project?

2 A. Yes, sir.

3 Q. And what are some of the topics that are

4 discussed at these monthly meetings?

5 A. Well, the various activities that involve

6 the project, the ongoing status of the construction

7 activities at this juncture, major activities.

8 Q. And who normally attends these type of

9 meetings?

10 A. All entities interested in having some

11 indirect or direct concern and involvement. It would

12 include not only the internal people with the Water

13 Management District but external as well.

14 Q. Are these held on a set day every month?

15 A. Yes, sir.

16 Q. What day is that?

17 A. First Friday of each month from 9 to 10

18 o'clock; one hour meetings.

19 Q. Are they -- are those meetings advertised

20 as open to the public?

21 A. Yes. They are open meetings, yes, but they

22 are not advertised other than by word of mouth and

23 publication of an advanced agenda.

24 Q. Do you know Robert Kadlec?

25 A. Yes.

1 Q. Has he ever attended any of those meetings?

2 A. I don't recall.

3 Q. Do you know Bill Walker?

4 A. I know of the name.

5 Q. Do you know whether he's ever attended any

6 meetings?

7 A. I don't believe so.

8 Q. Mark Maffei?

9 A. Yes.

10 Q. He has attended?

11 A. Absolutely.

12 Q. Okay. Does he attend regularly?

13 A. Someone from the U.S. Fish & Wildlife has

14 always been in attendance.

15 Q. How about a representative of the Park

16 Service?

17 A. No.

18 Q. Mike Soukup, do you know Mike?

19 A. Yes.

20 Q. Has he ever attended?

21 A. Not to my knowledge.

22 Q. Any other representatives of the United

23 States other than representatives of the Fish &

24 Wildlife Service ever attend the meetings?

25 A. I don't recall any others.

1 Q. What was the original purpose of the ENR

2 Project?

3 A. It was initially to convert existing

4 agricultural lands to a biological nutrient uptake

5 area.

6 Q. Had you ever been associated with any such

7 similar project purpose on any project at the

8 District?

9 A. No.

10 Q. Is the purpose, as you have just described

11 it of the ENR, still the purpose of it today?

12 A. Yes.

13 Q. You have been listed, I believe, as a fact

14 witness to appear at the trial of this matter on

15 behalf of the District. Is that your understanding?

16 A. I received this notice.

17 Q. Other than the notice, has anyone from the

18 District talked to you about testifying at the

19 hearing of this matter?

20 A. No more than Ruth, just coordinating with

21 Ruth --

22 Q. Okay.

23 A. -- when to be here today.

24 Q. Okay. As you sit here today do you have

25 any understanding as to what facts or circumstances

1 you might testify to when the trial of this matter is

2 held?

3 A. No.

4 Q. Have your responsibilities as Project

5 Manager of the ENR Project remained the same since

6 the inception of the project?

7 A. Basically, I would say so as a overall

8 Project Manager.

9 MR. BURGESS: Okay. Mark this.

10 (The document was marked Exb. No. 1.)

11 BY MR. BURGESS:

12 Q. Let me show you what's been marked as

13 Exhibit 1 for purposes of the deposition and ask if

14 you can identify that document?

15 A. Yes.

16 Q. And what is it?

17 A. It's a notice to me that I would be

18 deposed.

19 Q. Okay. Did you review the section titled,

20 Documents to be Produced?

21 A. Yes, sir.

22 Q. Who did you review that with?

23 A. With the paralegal on Ruth's staff.

24 Q. Okay. Do you know her name?

25 A. Charron.

1 Q. Okay. Did you discuss the production of

2 those various documents numbered 1 through 13?

3 A. Yes, sir.

4 Q. Okay. And in your discussions did you

5 produce documents to her in accordance with those

6 numbers?

7 A. There was some that I had no direct or

8 indirect involvement with and others, yes.

9 Q. Were any documents, to your knowledge,

10 withheld from production for or based upon any claim

11 of privilege?

12 A. No, sir.

13 Q. Okay. Let me ask you. With respect to

14 Number 9 do you have a resume or curriculum vitae?

15 A. I had one, but when I was rushing to leave

16 this morning I inadvertently left it.

17 Q. Is it current?

18 A. Yes. It's very brief.

19 Q. Okay.

20 MR. BURGESS: Can you send that to me,

21 Ruth?

22 MS. CLEMENTS: Yes.

23 BY MR. BURGESS:

24 Q. With respect to item Number 10 did you have

25 any documents in your possession relating to the

1 negotiation of the settlement agreement?

2 A. No, sir.

3 Q. Did you participate in any of the

4 settlement negotiation between the United States, the

5 District and the DER?

6 A. No, sir.

7 Q. With respect to number 13 did you have any

8 documents in your possession relating to alternatives

9 to the STAs for nutrient removal considered by the

10 District?

11 A. Not to my knowledge, no.

12 Q. Did you and the paralegal assemble the

13 documents to be produced or did she tell you that

14 they had already been produced? How was the actual

15 production of the documents handled?

16 A. I made my office available to the

17 paralegal.

18 Q. Okay.

19 A. A member of the District staff located the

20 documents.

21 MS. CLEMENTS: If I may interject here, it

22 was one of our temps and I think George also,

23 your paralegal, had open access to the office.

24 MR. BURGESS: Okay.

1 (The document was marked Exb. No. 2.)

2 BY MR. BURGESS:

3 Q. Can you identify what's been marked as

4 Exhibit Number 2?

5 A. Well, it's a memorandum that I initiated to

6 Bernie Schattner.

7 Q. Dated?

8 A. June 23, 1992.

9 It concerns the funding participation by

10 the EAA Environmental Protection District.

11 Q. As of the date of the memo, what was the

12 funding participation of the EAA Environmental

13 Protection District?

14 A. As outlined in the background in the

15 memorandum, the total participation at that date was

16 $817,109.

17 Q. Okay. And had the EPD obligated themselves

18 to pay a portion of the consulting services and

19 construction costs associated with the ENR Project?

20 A. Yes, sir.

21 Q. What was the total amount of that

22 obligation?

23 A. One and a half million dollars.

24 Q. As we sit here today do you know what the

25 extent of their participation has been?

1 A. $817,109.

2 Q. It's still the same amount as it was in

3 June?

4 A. Yes, sir.

5 Q. How is that payment by the EPD handled? Do

6 they pay a set amount every quarter or do they pay

7 when they are billed?

8 A. When we had received invoices and approved --

9 reviewed and approved payment, we would make a

10 request with those supporting documents to the

11 Environmental Protection District for reimbursement

12 for the expended funds for the ENR Project.

13 Q. Okay.

14 A. But we make a payment.

15 Q. With respect to page 2 of that exhibit,

16 could you tell me whether those initials in the

17 left-hand side refer to Burns & McDonnell and Post,

18 Buckley, Schuh & Jernigan?

19 A. B/MC is Burns & McDonnell. PBS/J is Post,

20 Buckley, Schuh & Jernigan.

21 Q. Okay. Are the EPD funds being used

22 primarily to pay -- or I'm sorry -- to reimburse the

23 District for those two contractors?

24 A. For those consulting services, yes, sir.

25 Q. And has the District, in fact, paid those

1 consultants in excess of those numbers related on

2 page 2 with respect to those consultant services

3 provided?

4 A. Yes, sir.

5 Q. Is there a set formula to determine what

6 the EPD'S obligation is -- or I'm sorry --

7 participation is?

8 A. No. Just to the extent of their

9 commitment, to participate to 1.5 million.

10 Q. Is there another invoice ready to go to EPD

11 or how is that determined that the District sends

12 them a bill?

13 A. Well, at this time they have agreed to pay

14 up to $1,000,000 and we have not submitted the

15 balance invoice for reimbursement funds expended thus

16 far at this time.

17 Q. Okay.

18 (The document was marked Exb. No. 3.)

19 BY MR. BURGESS:

20 Q. Let me ask you if you can identify what's

21 been marked as Exhibit 3?

22 A. Yes. It's a memorandum dated April 15,

23 1992. Subject: FDER Permit Modification for ENR

24 Project (No. 501944969). Memorandum was generated by

25 Ron Bearzotti, Senior Environmental Specialist.

1 Q. Have you seen that memo before?

2 A. Yes.

3 Q. Okay. And what is the subject matter of

4 the memo?

5 A. It concerns the FDER Permit Modification

6 for the ENR Project.

7 Q. And how was the permit modified?

8 A. No response.

9 Q. Let me strike the question.

10 A. I don't quite understand the question --

11 Q. I'm sorry.

12 A. -- because I don't think the permit would

13 modify it.

14 Q. Were you involved in the District's

15 consideration for application to DER that the ENR

16 Project be considered a non-jurisdictional wetland?

17 A. Not directly.

18 Q. Who was involved in that on behalf of the

19 District?

20 A. Well, Ron Bearzotti was the environmental

21 specialist handling that application.

22 Q. Is it your understanding that, in fact, the

23 permit was modified to find that the treatment area

24 is non-jurisdictional?

25 A. That's my understanding.

1 Q. Have you been involved in any discussions

2 as to whether the STAs will be similarly treated as

3 non-jurisdictional wetlands?

4 A. No, sir.

5 Q. Do you know whether any discussions along

6 those lines have taken place?

7 A. I'm unaware of any.

8 Q. Did you make any recommendation one way or

9 the other to Ron Bearzotti or otherwise with respect

10 to whether the ENR Project -- interior of the ENR

11 Project would be considered jurisdictional or

12 non-jurisdictional?

13 A. No.

14 (The document was marked Exb. No. 4.)

15 BY MR. BURGESS:

16 Q. Can you identify what's been marked as

17 Exhibit 4?

18 A. Yes. It's a memorandum generated by Garth

19 Redfield dated December 20, 1991. Subject:

20 Technical Advisory Panel report on Everglades

21 Nutrient Removal Project.

22 Q. How did the Technical Advisory Panel come

23 into being?

24 A. It's my understanding that was developed by

25 our then Director of the Environmental Science

1 Division to convene a panel of top specialists or

2 experts --

3 Q. Who was the --

4 A. -- in a workshop.

5 Q. Who was the then Director?

6 A. Garth Redfield was the Division Director.

7 Steve Davis was one of his staff that coordinated the

8 activities.

9 Q. Okay. The Division Director of

10 Environmental Sciences Division is who today?

11 A. There's been a reorganization.

12 Q. Is it your testimony that Steve Davis

13 coordinated the Technical Advisory Panel?

14 A. That's my understanding.

15 Q. Okay. Did you participate in any of their

16 meetings?

17 A. Only that I attended one of the morning

18 workshop sessions.

19 Q. Do you know how many meetings there were of

20 this Technical Advisory Panel?

21 A. As I recall, they convened two days back in

22 November of 1991.

23 Q. Okay. You attended one of the morning

24 sessions?

25 A. Yes, sir.

1 Q. Do you know whether there's any plans for

2 that group to reconvene?

3 A. Not to my knowledge.

4 Q. Have you reviewed any of the written

5 responses that's attached to the memo now known as

6 Exhibit 4?

7 A. Yeah. I read the report.

8 Q. Do you have the Technical Advisory Panel

9 report attached to this memorandum? Okay. That

10 includes individual responses from different members

11 of the panel.

12 Did you read those responses?

13 A. I perused them in a very general overview.

14 Q. Okay. The bottom of the first paragraph of

15 the memo talks about the District developing action

16 plans to respond to the panel's recommendations. Do

17 you know if, in fact, the District has developed such

18 action plans?

19 A. Well, that would be outside of my specific

20 area --

21 Q. Okay.

22 A. -- of expertise and not to my knowledge.

23 Q. Who would I talk to about that, whether

24 such action plans have actually been formulated

25 and/or implemented?

1 A. Dr. Garth Redfield, Dr. Tom Fontaine.

2 Q. Anybody else?

3 A. And their staff.

4 Q. And their staff. Okay.

5 The bottom second paragraph talks about the

6 District considering input as it revises plans for

7 research and monitoring associated with the ENRP.

8 Do you know whether research and monitoring

9 has been coordinated with respect to the ENRP?

10 A. Again, I would refer you to those District

11 employees.

12 Q. To your knowledge or recollection did you

13 have any written commentary to provide with respect

14 to the comments attached to Exhibit 4?

15 A. No.

16 Q. Did any of those comments make a difference

17 to you as you continued to conduct your job as

18 Project Manager of the ENR Project?

19 A. Yes.

20 Q. Okay. In what way did you implement any of

21 those comments?

22 A. I think as a spin off of this there was

23 some redesign of the interior works.

24 Q. And did that include Phase III?

25 A. Yes, sir.

1 Q. Okay. And, in general, in what manner was

2 the interior works of the ENR Project redesigned?

3 A. Well, it involved at that time also our

4 consideration of the FP&L access road traversing the

5 project and also in conjunction with the panel's

6 comments and commentary on the ENR Project, that we

7 realign the interior work's levees and their

8 configuration to coincide with the FP&L levee access.

9 Q. Does that FP&L road now constitute a levee

10 of the ENR Project?

11 A. Yes, sir.

12 Q. Any other comments that you recall that you

13 specifically implemented in the course of your

14 responsibilities as Project Manager?

15 A. No. I don't recall.

16 Q. What is the overall completion date target

17 with respect to completion of the ENR Project?

18 A. Mid July 1993.

19 Q. And is that for completion of construction?

20 A. Yes, sir.

21 Q. Then who would you refer me to with respect

22 to the experiments that are going to be conducted

23 within the ENR and the timetable for their

24 development and implementation?

25 A. I would say Tony Federico and his staff and

1 Dr. Tom Fontaine and his staff.

2 Q. Do you have any knowledge with respect to

3 the experiments that are going to be performed within

4 the ENR?

5 A. That's outside of my area of expertise --

6 Q. Okay.

7 A. -- so, no.

8 Q. Do you know in general what type of

9 experiments are going to be done?

10 A. Well, I do know that one of the last major

11 components of the project involves the construction

12 of what we identified as experimental research test

13 cells which will be used for that type research.

14 Q. Do you know what type of research is going

15 to be conducted there?

16 A. Really, that's outside of my area of

17 expertise and Dr. Sue Newman would be the person

18 that's directly involved in those activities or will

19 be. She's a member of Dr. Tom Fontaine's staff.

20 Q. Okay. But, to your knowledge, she's in

21 charge of the experiments that will be conducted

22 within the test cells?

23 A. Yes, sir.

24 Q. Do you have any knowledge as you sit here

25 today with respect to when those experiments are

1 going to start or when those experiments are expected

2 to start yielding results?

3 A. It would be only hearsay because we

4 targeted to have the overall project completed, as I

5 say, in mid July and I've heard comments, you know,

6 12 to 18 months --

7 Q. After --

8 A. -- after actual completion of the

9 construction.

10 Q. What's going to be in 12 to 18 months?

11 A. Some experimental results, feedback and the

12 operation of the completed project.

13 Q. How long is the ENR Project supposed to

14 continue?

15 A. Well, I'd have to go back to the management

16 agreement that we entered into in March 1989 with the

17 trustee to convert this land.

18 Q. Do you have any recollection as you sit

19 here today how long it's supposed to continue?

20 A. Well, the trustees will review our lease I

21 think in 1996 and then -- if everything has moved

22 forward in accordance with the management agreement,

23 then the lease will be extended for 44 years so the

24 project would have that kind of life.

25 Q. 44 years?

1 A. Yes.

2 (The document was marked Exb. No. 5.)

3 BY MR. BURGESS:

4 Q. Can you identify Exhibit Number 5?

5 A. Memorandum dated 10th of October 1991.

6 Subject: Research and Monitoring within the

7 Everglades Nutrient Removal Project and it's

8 originated from Dr. Sue Newman through Steve Davis to

9 Pete Rhoads, Director of Research and Evaluation

10 Department.

11 Q. Okay. You're shown as a cc on the bottom

12 of that exhibit. Have you seen that exhibit before?

13 A. Yes.

14 Q. Okay. I believe it's the third sentence in

15 the paragraph -- in the paragraph on the first page.

16 "There is considerable uncertainty associated with

17 the use of wetland treatment systems for long term

18 phosphorous removal."

19 Do you know of anyone at the District who

20 shares that opinion?

21 A. No.

22 Q. Do you know whether Sue Newman, who appears

23 to be the author of that memorandum, do you know

24 whether that is her opinion?

25 A. No.

1 Q. Next sentence provides, "Therefore, it is

2 essential that the research conducted within the ENR

3 Project be developed in conjunction with the design

4 and operation of the STAs such that it can explain

5 the mechanisms associated with phosphorous retention

6 in these unique systems."

7 When did it become important that the

8 research conducted within the project be done in

9 conjunction with the design and operation of the

10 STAs?

11 A. Could you clarify that question because I

12 don't know.

13 Q. Okay.

14 A. I don't know.

15 Q. Did there come a time when someone came to

16 you and said as Project Manager of the ENR that we

17 need to start considering all the rest of these

18 Stormwater Treatment Areas with respect to the ENR

19 Project that we're now developing?

20 A. Not really. I would like to respond to

21 that, but my focus was strictly the Everglades

22 Nutrient Removal Project.

23 Q. And it's remained as such?

24 A. Absolutely. And, you know, we were moving

25 forward with the scope of work which was inclusive of

1 the research test cells early on. Even before the

2 STAs came into being --

3 Q. Uh huh.

4 A. -- we were looking at the major component

5 as a part of the Phase III construction to include

6 research test cells and that was before I had ever

7 heard of STA.

8 Q. Okay. How did the STAs affect, if at all,

9 the work that you were doing as Project Manager for

10 the ENR?

11 A. I can't say that it has.

12 Q. Okay. Has the project -- original project

13 purpose of the ENR changed at all in light of the

14 STAs?

15 A. I could only respond to the structural

16 components. Major components of the project have not

17 been altered in any way.

18 Q. And what do you mean by structural

19 components?

20 A. Okay. The project was originally set up to

21 be implemented in three distinct phases, Phase I,

22 Phase II and Phase III. Phase II actually involved

23 the construction of the major structural components

24 that would become a permanent component of the

25 completed project.

1 Q. Uh huh.

2 A. And then Phase III would be the interior

3 major structural components that would again become

4 major permanent features of the completed project.

5 Now, Phase I was the initial conversion of

6 approximately 960 acres whereas we were transitioning

7 from an agricultural area into a wetland type area

8 and that was accomplished with District personnel

9 working closely with the sugar people, S.N. Knight &

10 Sons.

11 Q. And those three phases, in your opinion,

12 have not been affected by the decision of the

13 District and others to implement Stormwater Treatment

14 Areas?

15 A. Not at this time.

16 Q. Okay.

17 A. We were well along with the project.

18 Q. Before what?

19 A. Before the settlement agreement came down

20 with the creation of the term STAs.

21 Q. Since the time that STAs and the concept of

22 STAs came on the scene, have you been involved in

23 discussions that, in fact, the ENR Project is going

24 to become a part of any or all of the STAs?

25 A. I have reviewed the conceptual document,

1 but, again, just as information and it does show that

2 STA 1 would wrap around the ENR Project.

3 Q. Okay. And who -- who at the District would

4 have knowledge with respect to how the ENR Project is

5 going to be integrated with STA 1?

6 A. Well, the consultants that did the

7 conceptual design for the Water Management District.

8 Q. And they were?

9 A. Burns & McDonnell. Mr. Galen Miller.

10 Q. What was the role of Post, Buckley in the

11 conceptual design of the project?

12 A. They had the contract for the conceptual

13 design of the interior works.

14 Q. And that was Phase III?

15 A. Yes, sir.

16 Q. Okay. Where are they on their contract?

17 A. That was completed.

18 Q. Satisfactorily to the District?

19 A. Yes.

20 Q. So, to your knowledge, is Post, Buckley

21 continuing to work on any aspect of the ENR Project?

22 A. Not at this time.

23 Q. Okay. What is or what was Burns &

24 McDonnell's relationship with the conceptual design

25 of the ENR Project?

1 A. They received the initial contract for the

2 conceptual design of the project.

3 Q. And what work are they still performing, if

4 any, with respect to the ENR Project?

5 A. They are still involved in the construction

6 activities of the Phase II components.

7 Q. And Phase II again is?

8 A. Would be the perimeter levee, pumping

9 stations, inflow/outflow pumping stations and seepage

10 collection pumping station and the supply canal.

11 Q. Let me ask you to turn to the second page

12 of Exhibit 5.

13 A. Yes, sir.

14 Q. The first paragraph there, there are three

15 items listed under a sentence which reads, "The

16 purposes behind the subsequent development of this

17 ENR Project were threefold."

18 Do you see where that is?

19 A. Yes, sir.

20 Q. If you would review those, my question to

21 you would be: Is that your understanding that those

22 were the original purposes of the ENR Project?

23 A. Well, I would question number 2. I think

24 that's been expanded somewhat to include larger scale

25 application of this technology to the STAs, so

1 initially that was not an objective of the project

2 because we were looking at converting the 3,742 acre

3 state owned tract -- state owned lands.

4 Q. Okay. You're questioning number 2 which

5 says, "Develop the design, construction operations

6 and maintenance necessary for the larger scale

7 application of this technology." You are questioning

8 whether that was, in fact, an original purpose of the

9 project?

10 A. I'm questioning -- I can't interpret what

11 she means by larger scale application.

12 Q. Okay.

13 A. But this strictly relates to the research

14 test cells. They -- they are intended to enhance the

15 optimizing of the phosphorus removal in the larger

16 scale ENR Project area.

17 Q. Uh huh.

18 A. But also, that would, you know, offer

19 benefits to larger applications in the STAs.

20 Q. Uh huh.

21 A. So what I'm saying, you know, initially, I

22 think -- in trying to respond to your question, in

23 the initial project there was no concept of STAs at

24 the beginning of this project in 1988, in October of

25 1988.

1 Q. Okay. But even though there may have been

2 nothing known as STAs or Stormwater Treatment Areas

3 at that time, was it your understanding at the

4 inception of this project in October of 1988 that the

5 ENR Project would provide some information applicable

6 to design construction, operation and maintenance for

7 a larger application of the technology, whether it

8 was to be known as STAs or not?

9 A. I gave that no consideration. I don't

10 recall. I was focused on the development and

11 conversion of the 3,742 acre tract.

12 Q. That was your focus, conversion of the

13 3,742 acres?

14 A. Right. My direct involvement as the

15 Project Manager.

16 Q. When, if you recall, did the focus shift

17 and, in fact, some emphasis be placed on utilization

18 of results from the ENR to a larger scale

19 application?

20 A. I would not say -- you know, I would not

21 know if there had been a really distinct change in

22 focus, because this is an area of expertise that I

23 think that our Environmental Science people would be

24 assigned to.

25 Q. Any names in addition to those that you've

1 already given me with respect to the Environmental

2 Science Division I would talk to?

3 A. They would be the primary ones involved.

4 Q. Let me ask you to turn to the same exhibit

5 on the bottom of page 0901851. It would be two more

6 pages from where we just were. Bottom of that page

7 there's a section titled, Other Water Management

8 Areas. First sentence reads, "The ENRP was initially

9 designed as an experimental project with the

10 intention of expansion to other areas designated as

11 wetland treatment sites. Following the successful

12 operation of the ENRP results will be extrapolated to

13 other STAs within the Everglades ecosystem."

14 Is it your testimony today that you had no

15 knowledge at the inception of the project that

16 results from the ENRP were going to be extrapolated

17 to larger applications?

18 A. I really gave that no consideration in my

19 involvement of the project. As Project Manager, that

20 was the -- the project was being built with the

21 scientific community to maximize data and information

22 that would be generated by the construction of this

23 project.

24 Q. Okay. Whether or not you gave it

25 consideration -- I understand your answer -- did you

1 understand at the inception of the project that

2 following the successful operation of the ENRP the

3 results were going to be utilized or could be

4 utilized with respect to the larger treatment areas?

5 A. I would recognize they could be, but I

6 really gave it no thought because I don't recall any

7 emphasis being placed on that, you know, from my

8 involvement in the project --

9 Q. Okay.

10 A. -- at that time early on in the project --

11 Q. Okay.

12 A. -- 1988-'89.

13 Q. Did there come a time subsequently when

14 emphasis was placed on that aspect?

15 A. Well, I think this memorandum, you know,

16 identifies the emphasis being placed and I -- this

17 was -- I'm not sure when the settlement agreement was

18 executed.

19 Q. Can you tie -- in your recollection and in

20 your mind, can you tie when that emphasis began being

21 placed on the ENR Project with any other outside

22 events such as the settlement agreement or the

23 Marjory Stoneman Douglas Act?

24 A. I think about the time of the settlement

25 agreement it came about. That was June of 1991, I

1 believe, wasn't it?

2 Q. Uh huh.

3 A. If I have my time frames right.

4 Q. Do you recognize whose handwriting appears

5 at the bottom of the page?

6 A. No, sir.

7 Q. It's not yours?

8 A. It's not mine, no, sir.

9 Q. Okay. Have you had any direct contact with

10 respect to the construction of the ENR Project with

11 either Robert Kadlec or Bill Walker?

12 A. Limited.

13 Q. Okay. And in what aspect did those

14 conversations take place?

15 A. I think I met him after the panel convened

16 back in November.

17 Q. Of '91?

18 A. Of '91.

19 Q. Okay. Who did you meet?

20 A. I didn't really meet with him. I just

21 introduced myself.

22 Q. Was it Bill Walker or Bob Kadlec, do you

23 recall?

24 A. It's, I think, Bob.

25 Q. Do you recall your conversation at all?

1 A. Well, I gave a brief status update on the

2 project over flight. I think that was at the earlier

3 meetings in February or March 1992 that I had a

4 little video that I put together.

5 Q. Over flight of the ENR Project?

6 A. Yes, sir. As it related to construction,

7 where we were, where we had been and where we were

8 going.

9 Q. Okay.

10 A. Very limited. I believe Bill Walker was at

11 that same meeting, but other than that, I've had no

12 direct contact with Bob.

13 Q. What consultants or consultant to the

14 District do you mostly interact with with respect to

15 your responsibilities in the ENR Project? You can

16 give me the consulting firm --

17 A. At what juncture?

18 Q. -- with respect to construction of the

19 perimeter, the levee, the ENR Project boundaries.

20 A. I've asked at what juncture because right

21 now my interface is very closely with our

22 Construction Division within our Department

23 Construction Management.

24 Q. And who from that department?

25 A. It's George Hoffman. He's Director of the

1 Construction Division.

2 Q. Okay.

3 A. If it would be any consultant, as I say,

4 Burns & McDonnell, they're still on board to oversee

5 the construction activities of that design.

6 Q. Okay.

7 A. I have limited involvement in that.

8 Q. Do you know whether Burns & McDonnell have

9 any contact with Bob Kadlec or Bill Walker with

10 respect to the construction of the ENR Project?

11 A. No.

12 Q. You don't know or they don't?

13 A. I understand that they did maybe at one

14 time. Not necessarily with the ENR Project, but I

15 think in connection with the STA conceptual design,

16 Burns & McDonnell would be the only consultant still

17 directly involved in the Phase II construction

18 activities.

19 Q. Do you know whether George Hoffman has met

20 with either Kadlec or Walker on occasion with respect

21 to construction?

22 A. Not to my knowledge, no.

23 Q. He has not?

24 A. No.

25 Q. Was there at one time at the District a

1 committee known as the STA Design Committee?

2 A. Yes. And I think that was the committee

3 that I gave the presentation to. I'm not sure if you

4 were there at the time. It was just a working

5 committee.

6 Q. Do you know if the committee still exists?

7 A. I don't believe so.

8 Q. Do you know why?

9 A. No.

10 Q. Who chaired the committee for the District?

11 A. If it's the same committee that I recall it

12 would be Dr. Gary Goforth.

13 Q. Okay. Do you know when they last met?

14 A. No.

15 Q. Have you heard any talk around the District

16 as to why they're no longer meeting?

17 A. I'm not sure of the name of the committee,

18 but I do know there was a very active committee at

19 the outset about a year ago.

20 Q. And that committee subject matter was?

21 A. The STAs.

22 Q. Okay.

23 A. Not the ENR Project.

24 Q. Right. That's right.

25 A. I attended one session and I think it was

1 not something that I needed to further involve myself

2 with.

3 Q. Why was that?

4 A. I was concentrating my time and efforts on

5 moving the ENR Project forward and this more

6 specifically related to the STAs and the settlement

7 agreement.

8 Q. Okay. If, in fact, that STA Design

9 Committee was the committee that you're recalling,

10 did you hear any conversations at the District as to

11 why it's no longer meeting?

12 A. No, sir.

13 (The document was marked Exb. No. 6.)

14 BY MR. BURGESS:

15 Q. Sir, Composite Exhibit 6 that I have handed

16 to you appears to be a number of pages in succession

17 with different authors. I would ask you to, if you

18 can, number 1, identify the document and then, number

19 2, if you can identify the fifth page of the

20 document.

21 A. The document is a memorandum generated by

22 Dr. Gary Goforth, dated October 10, 1991. Subject:

23 Comments on Post, Buckley, Schuh & Jernigan design

24 reports.

25 Q. Okay. You recall seeing that document

1 before?

2 A. Yes, sir.

3 Q. Okay. And, if you could, turn to page --

4 on the bottom 0901977. Ask you if you recognize that

5 handwriting or any of that handwriting?

6 A. No, I do not.

7 Q. Have you ever seen that page before?

8 A. I don't recall seeing this.

9 Q. About the middle of the page we've got some

10 handwriting that says, "Bob Kadlec, Bill Walker,

11 Justice Department, federal experts, desires input

12 into design of STAs from the beginning."

13 Do you have any knowledge as you sit here

14 today whether, in fact, Kadlec and Walker desired to

15 have put into the design of the STAs from the

16 beginning?

17 A. No, sir.

18 (The document was marked Exb. No. 7.)

19 BY MR. BURGESS:

20 Q. Ask if you can identify what's been marked

21 as Exhibit 7?

22 A. It's a memorandum generated by Susan Newman

23 through Garth Redfield dated June 26th. Subject:

24 Research and Monitoring within the Everglades

25 Nutrient Removal Project.

1 Q. There appears to be a handwritten note at

2 the top to you. Is that correct?

3 A. Yes, sir.

4 Q. Who is that note from?

5 A. The Director of the department, Bernie

6 Schatner.

7 Q. And what was Bernie telling you in his

8 memo?

9 A. As I recall, without going back and

10 rereading the memorandum and the supporting data, it

11 was developed in support of going forward with the

12 construction of the experimental test cell.

13 Q. Okay.

14 A. You know, provided justification.

15 Q. Okay. I'm sorry.

16 A. That's it.

17 Q. You received a copy of this memorandum, is

18 that correct?

19 A. Yes.

20 Q. Okay. The third sentence in the second

21 paragraph on the first page says, "Recent discussion

22 concerning the uncertainties of nutrient retention by

23 the STAs as part of the lawsuit settlement have

24 highlighted a more comprehensive role for the ENRP."

25 My question to you: Were you involved in

1 any of the those recent discussions concerning

2 uncertainties of nutrient retention by STAs?

3 A. No.

4 Q. Ask you whether the portion of that

5 sentence dealing with "a more comprehensive role for

6 the ENRP," if I were to ask you what that more

7 comprehensive role was, would you tell me that it's

8 the same as your testimony earlier today with respect

9 to developments after the Marjory Stoneman Douglas

10 Act and the settlement agreement?

11 A. Well, I think the significance of the

12 completed ENR Project would certainly play -- the

13 results of the operation and management of that

14 completed prototype project will certainly contribute

15 to future direction of constructing larger similar

16 projects.

17 Q. Next to last sentence in that same

18 paragraph says, "The project must provide far more

19 than nutrient retention data. It must also explain

20 why nutrients are held in place and how this

21 retention may be optimized through management."

22 Who would you recommend I talk to at the

23 District if I wanted to explore that concept in

24 greater detail?

25 A. I would suggest the originator of this

1 memorandum, Dr. Sue Newman.

2 Q. Okay. Attached to that exhibit which has

3 been introduced, if you would turn to the bottom of

4 the third page, I ask you the same question with

5 respect to whether you recognize the handwriting on

6 the bottom.

7 A. No, I do not.

8 Q. Okay. Let me ask you, sir, whether you

9 recall during the discussions regarding the

10 management plan any discussions concerning what

11 vegetation was going to be used as the principal

12 species for nutrient removal?

13 A. I recall some concern by DER as to what

14 species would be used in the Phase III interior

15 works.

16 Q. Okay. And what was the discussion on that

17 topic?

18 A. As I recall, they favored bull rush over

19 cattail.

20 Q. Do you know where that debate stands now?

21 A. I would say it's still pending.

22 Q. And who would you recommend I talk to with

23 respect to the vegetation component of Phase III?

24 A. Again, that would be our environmental

25 science experts, Sue Newman and, as it relates to the

1 District, Larry Fink who's a supervising

2 professional.

3 Q. As you sit here today, as far as you know,

4 there's been no decision as to what vegetation is

5 going to be planted?

6 A. We're moving forward with construction of

7 the Phase III which includes vegetation planting

8 within one of the polishing cells as well as the

9 other cells.

10 Q. But the species component that's going to

11 be planted you are not aware of as you sit here

12 today?

13 A. I'm aware of what we're constructing.

14 Q. Okay. Are you aware of what's going to be

15 planted?

16 A. It's being planted now.

17 Q. What is being planted?

18 A. Mixed marsh species. It's not strictly

19 bull rush.

20 Q. Do you know what else besides bull rush is

21 being planted?

22 A. As I say, it's a mixed marsh species. It

23 would be arrow head and other selected wetland

24 species recommended by the scientific staff.

25 Q. Okay. Do you know what the water levels

1 are going to be attempted to be maintained at in

2 Phase III?

3 A. No.

4 Q. Do you know what the retention time for the

5 water is contemplated to be within the test cells?

6 A. Not -- not specifically because they vary.

7 Water elevations as well as the retention times

8 that's being developed now.

9 Q. Okay. Again, who would you recommend I

10 talk to with respect to those aspects?

11 A. The District environmental staff.

12 Q. That would be Fontaine and Federico?

13 A. Yes, sir. And Larry Fink and Sue Newman.

14 Q. Okay. Do you know how many tons of

15 phosphorus the ENR Project was originally designed to

16 remove from waters entering into Water Conservation

17 Area 1?

18 A. I could give you approximate --

19 Q. Okay.

20 A. -- annual metric tons. You know, around

21 20, 23, 24, 25. About a third of what was coming

22 through the S-5A pumping station as I recall.

23 Q. Okay. And do you know whether, in fact,

24 that original design assumption is the same

25 assumption today?

1 A. Not -- not to my knowledge. The objectives

2 are still the same, to maximize or optimize the

3 phosphorus removal and it's being again studied and

4 refined as the project moves forward.

5 Q. So it would be your testimony today that

6 the project is being constructed, in fact, to attempt

7 to remove between 20 and 25 metric tons of

8 phosphorous?

9 A. It's targeted at that, yes.

10 Q. As you sit here today, sir, do you have any

11 independent knowledge as to what the specific

12 residents time or water depths are scheduled to be

13 for the different test cells?

14 A. Not at this time.

15 (The document was marked Exb. No. 8.)

16 BY MR. BURGESS:

17 Q. Let me ask you if you can identify Exhibit

18 Number 8?

19 A. It appears to be a document with the title,

20 Effects of Hydroperiod Alteration and Nutrient

21 Loading on Control of Cattail Expansion and Nutrient

22 Retention in the Water Conservation Areas of South

23 Florida.

24 Q. Let me ask you. With respect to the

25 covering memo is that a memo to you or from you?

1 A. The cover is just a routing slip.

2 Q. There appears a number 1.

3 A. I'm not sure who sent this to me. It was

4 sent to me for my information and comment.

5 Q. Okay. So, in fact, then, this routing slip

6 shows this document was transmitted to you, is that

7 correct?

8 A. Yes, sir.

9 Q. Okay. There appears to be a number --

10 maybe a number 2 next to Ron Bearzotti's name. Do

11 you know whether these are his comments?

12 A. No, I do not.

13 Q. Do you recommend the handwriting -- do you

14 recognize the handwriting down at the -- in the

15 middle of that page next to the word, "message."

16 A. No, I do not, but it would not be Ron

17 Bearzotti because this went to him after I had it.

18 Q. Okay. Explain for me, if you will, the

19 concept of the routing on that memo in front. Is

20 this something that you sent to someone or someone

21 sent to you?

22 A. Apparently, it's something that someone

23 sent to J.B. Jackson and Ron Bearzotti.

24 Q. Together?

25 A. I'm not sure of the source.

1 Q. Okay. And then the memorandum -- I'm sorry --

2 the report that's attached to that memorandum, do you

3 recognize that report?

4 A. I don't recall this report.

5 Q. Okay. You don't recall whether you've ever

6 read it or reviewed it?

7 A. I -- I don't recall reading it. It's

8 beyond my area of expertise. I doubt seriously if I

9 had time to review it.

10 Q. Okay. Do you know whether the report

11 itself was considered by anyone from the District

12 that is involved with respect to the, let's say Phase

13 III of the ENR Project?

14 A. I'm not sure of this particular report, but

15 I think Dr. Richardson sat on that panel --

16 Q. Uh huh.

17 A. -- and had input to the review of the

18 project status of where we were with the ENR Project

19 and that was November of 1991.

20 Q. Okay.

21 A. So it could have had some impact in our

22 environmental science peoples' input to the final

23 design of the Phase III interior work.

24 (The document was marked Exb. No. 9.)

25 BY MR. BURGESS:

1 Q. Let me ask if you recognize what we marked

2 as Exhibit 9.

3 A. This is a memorandum generated by Garth

4 Redfield, Director of Research Appraisal Division to

5 Tony Federico and Tom Fontaine.

6 Q. Uh huh.

7 A. Dated June 30, 1992. Subject: Summary of

8 Peer Review of the Research Plan for the Everglades

9 Nutrient Removal Project.

10 Q. Okay. Have you seen that document before?

11 A. I don't recall seeing this.

12 Q. Okay. Are you familiar with the subject

13 matter?

14 A. I'm familiar they were moving forward with

15 the peer review of the various activities of the ENR

16 Project.

17 Q. Okay. Other than that summary are you

18 aware of whether and in what fashion any of those

19 peer review comments have been considered by Redfield

20 and Fontaine and Federico and other people in

21 Environmental Sciences?

22 A. No.

23 Q. So you don't know in what manner the peer

24 review comments have been -- may have been or will be

25 considered?

1 A. Not directly, no.

2 Q. Okay.

3 A. Can I clarify that? As relates to the ENR

4 Project or STAs?

5 Q. As it relates to the ENR Project.

6 Let me ask you this, sir.

7 A. Well, if I can respond, we have -- in

8 building the project, we've made the statements, you

9 know, if something new comes up, that it's not going

10 to have a tremendous impact on the construction of

11 the project that is significant, that we can make a

12 change order in the configuration of some of the

13 interior works, minor changes to accommodate the

14 latest state of the art, scientifically speaking,

15 that we would certainly, you know, do that.

16 Q. Right. Okay.

17 Well let me ask you this --

18 A. That's the only extent that I'm aware of

19 the peer review activities, moving forward.

20 Q. This Exhibit 9 would appear to address peer

21 review of the ENR Project that was conducted by five

22 external scientists in May of 1992 and this memo

23 attempts to summarize those peer review comments and

24 it's dated June 30, 1992.

25 So my question to you would be whether you

1 know of any other activities in the last seven

2 months, whether it be an additional involvement of a

3 peer review or additional comments that were received

4 by Redfield, Federico or Fontaine, whether you're

5 aware of any incorporation of these peer review

6 comments in that manner by these individuals?

7 A. May I see that? By these individuals?

8 Q. Well, how about by the District? I'm

9 attempting to find out whether you're aware of any

10 meetings or other memoranda that have taken place.

11 A. Yes.

12 Q. Okay. What meetings or memoranda are you

13 aware of?

14 A. Well, the most recent one, I would consider

15 this to a degree of peer review, a Dr. Chen gave a

16 presentation to the staff.

17 Q. Who is that?

18 A. Dr. Chen, C-h-e-n.

19 Q. Who is he?

20 A. He was one of the consultants under

21 contract to the District to look at the ENR Project.

22 Q. Was he one of the external peer reviewers?

23 A. External consultant, yes.

24 Q. Do you know whether he was one that peer

25 reviewed this?

1 A. I didn't see his name listed here.

2 Q. What is Dr. Chen's area of specialty?

3 A. Well, I think he was the one that

4 represented the District on the Kissimmee River

5 Project Restoration.

6 Q. What group is he with?

7 A. He's with Dr. Chen.

8 Q. Is it just consulting, he's a private

9 consultant?

10 A. Yes.

11 Q. Where is he located?

12 A. I think in California.

13 Q. Do you know whether there's -- what the

14 name of his office is?

15 A. No. I would refer you to the appropriate

16 staff that is working directly with him.

17 Q. Who is working with him?

18 A. It would be the same staff that I have

19 identified.

20 Q. Environmental Sciences Division?

21 A. Right. Environmental Research Appraisal.

22 Q. When did this meeting take place or

23 presentation take place?

24 A. Well, I happened to be at the one that was

25 January the 19th.

1 Q. 1993?

2 A. Right.

3 Q. Okay.

4 A. I'm not directly involved in that activity.

5 Q. What was the purpose of the meeting?

6 A. Well, he gave a update on his activities.

7 Q. And what activities are those?

8 A. Relating to the ENR Project.

9 Q. What is he doing related to the ENR

10 Project?

11 A. Well, again, I would refer you to the --

12 Q. I understand. I'll ask them this question

13 when I get to take their depositions, but I need to

14 ask you what you understand he's doing related to the

15 ENR Project.

16 A. He was looking at the hydrologic modeling,

17 phosphorus modeling if I'm not mistaken and I was not

18 there for the duration of the presentation.

19 Q. Right.

20 Do you recall anything that you heard him

21 say?

22 A. Not that would have a significant impact on

23 the construction of the ENR Project. Again, my

24 primary focus, that's my charge --

25 Q. Right.

1 A. -- to keep the project going.

2 Q. Who at the District is working on the

3 modeling aspect of the ENR Project?

4 A. That's, again, in the area of Dr. Tom

5 Fontaine's staff.

6 Q. Do you know who at the District Dr. Chen

7 primarily corresponds with or talks to?

8 A. No. I would not be positive if I tried to

9 respond to that.

10 Q. Dr. Chen's office is in California. Do you

11 know where in California?

12 A. Not -- not -- maybe UCLA. I'm not sure.

13 I'm just not sure.

14 Q. Was the meeting on the 19th a meeting of

15 any special or particular subcommittee or committee?

16 A. Not to my knowledge.

17 Q. What was it a meeting -- what was the

18 occasion?

19 A. Just to go over his draft response under

20 the consultant's services with the District.

21 Q. And, again, your testimony is that Dr. Chen

22 is reviewing the modeling associated with the ENR

23 Project?

24 A. I'm not certain of that because I haven't

25 seen the contract or the statement of work, the full

1 particulars.

2 Q. But, as you sit here today, your

3 recollection is that he's reviewing modeling?

4 A. Yes.

5 Q. Okay.

6 A. The flow of the water through the project,

7 hydrologic modeling.

8 Q. Do you know whether Dr. Chen is similarly

9 looking at the flow of the water through any of the

10 other proposed STAs?

11 A. No, sir.

12 Q. You don't know or he's not?

13 A. I do not know.

14 Q. Do you know Dr. Chen's first name?

15 A. No, sir.

16 Q. Okay. Do you know whether any of the peer

17 review comments that were made by the five

18 independent and outside peer reviewers are being

19 utilized in any aspect of STA designs?

20 A. No.

21 Q. Is there a similar position occupied by

22 anyone at the District with respect to STAs that you

23 enjoy with respect to the ENR Project?

24 MR. FITZGERALD: I'm going to object for

25 the record. I think it's assuming a fact not in

1 evidence, enjoyment.

2 MR. BURGESS: He's been there since '66. I

3 think I could properly assume that.

4 THE WITNESS: Do I have to answer that

5 question?

6 Not yet.

7 BY MR. BURGESS:

8 Q. Not yet.

9 Is there --

10 A. If I survive this, maybe it will be me.

11 Who knows.

12 Q. Is there, in fact, a Project Manager or

13 Project Administrator?

14 A. Yes. I would say Dr. Gary Goforth has been

15 kind of the major focus person. I have been on the

16 peripheral off and on involved as potential Project

17 Manager once he gets to that point, but I am not

18 identified as Project Manager now.

19 Q. What steps need yet to be completed before

20 it gets to the point that the project would need a

21 Project Manager or administrator?

22 A. I would imagine, you know, the final

23 approval of the selected alternative by the Governing

24 Board to implement, once we move into the

25 implementation phase of the project, but, you know,

1 it's not to say that it does not have focus now, this

2 development phase conceptual design.

3 Q. Are you yourself involved with the STA

4 project today?

5 A. I've seen my name identified as Co-Project

6 Manager, as Project Manager in the five year program

7 documents.

8 Q. For the STAs?

9 A. For budgetary purposes, yes.

10 Q. Do you spend the majority of your time on

11 budget and/or contractual matters with respect to the

12 time you spend as Project Manager for the ENR

13 Project?

14 A. I spend maybe the majority of my time, but

15 not necessarily on those two particular functions.

16 Q. Okay. What functions associated with the

17 ENR Project do you spend the majority of your time

18 on?

19 A. Expediting the project and that could be in

20 any number of activities unknown and known each day

21 that come up. In very wet situations, it's inducive

22 to developing wetlands with all of this rain we're

23 having, so we're -- you know, coordinate the

24 construction activities with the contractor, the

25 operation and maintenance of the flooded areas that

1 we have within the ENR Project at this time and

2 closing out the contract, current contract

3 engineering completion.

4 Q. Is it fair to say, then, that more of your

5 time is spent on things such as construction --

6 A. Construction.

7 Q. -- contractual and budget than on any of

8 the scientific aspects and data to be derived from

9 the ENR Project?

10 A. Absolutely. Absolutely.

11 Q. In fact, other than in a tangential or

12 cursory way, you are not really involved with the

13 science or data to be collected from the project?

14 A. That's correct. Only -- only in the event

15 that it would have some negative or any impact on our

16 reaching our completion, overall completion of the

17 project as related to construction activities and the

18 contractors we have under contract.

19 (The document was marked Exb. No. 10.)

20 BY MR. BURGESS:

21 Q. Ask if you can identify what's been marked

22 as Exhibit 10 for the record?

23 A. It's a memorandum originated from Rhonda

24 Haag, Senior Contract Administrator July 8th

25 concerning continuing contract Amendment No. 4

1 Contract C91-2059.

2 Q. And what is the subject matter of that

3 contract?

4 A. It's a contract with Burns & McDonnell.

5 Q. Concerning?

6 A. As related to the ENR Project, this

7 concerns hydrologic analysis, I believe a phosphorus

8 analysis of the ENR Project.

9 Q. Have there been any subsequent amendments

10 to that contract with Burns & McDonnell since

11 amendment No. 4?

12 A. I would not know. I'm not manager of this

13 particular contract.

14 Q. Okay. Did you sign that contract?

15 A. Yes. I was identified as Project Manager

16 as it related to the ENR Project concerning analysis,

17 hydrologic analysis. The report was completed June

18 3, 1992 and subsequently revised I think, but

19 accepted by District July 31, 1992.

20 Q. Have you signed any other amendments to

21 that contract with Burns & McDonnell dealing with ENR

22 issues since the date of that amendment?

23 A. I don't recall any others.

24 Q. Do you know whether Burns & McDonnell have

25 fulfilled their commitments under that particular

1 amendment to the contract?

2 A. Yes, they have. I approved final payment

3 in October or November in the amount of this $13,331.

4 Q. Okay.

5 (Thereupon, a recess was taken.)

6 (The document was marked Exb. No. 11.)

7 BY MR. BURGESS:

8 Q. Can you identify Exhibit 11 for the record?

9 A. It's certified mail return receipt

10 requested letter sent by J.B. Jackson, Project

11 Manager.

12 Q. That's you?

13 A. Yes.

14 Q. Okay.

15 A. To Galen Miller, P.E., Burns & McDonnell

16 Engineering Company.

17 Q. And did you draft that letter?

18 A. Yes.

19 Q. Okay. The letter states that, "The Florida

20 Sugar Cane League made a public records request on

21 September 18, 1992."

22 And your letter is dated November 20, 1992.

23 When were you first -- when did you first become

24 aware that the League made the request for the

25 two-dimensional hydrodynamic model?

1 A. About the time of this letter, within a

2 week or so, week or ten days.

3 Q. Who made you aware of the request?

4 A. Office of Counsel.

5 Q. Did you inquire at that time as to why the

6 lapse of time between September 28th and November

7 18th or 28th?

8 A. No.

9 Q. Were you aware before Office of Counsel

10 informed you within a few days before the date of

11 this letter that, in fact, the League had made a

12 request for the model?

13 A. Would you repeat that?

14 Q. Were you aware -- when did you first become

15 aware of the League's request for the model?

16 A. About the time of this letter.

17 Q. Okay.

18 A. Give or take a week or ten days.

19 Q. Okay.

20 A. I'm not sure.

21 Q. Were you aware whether the District had

22 been considering that request between September 28th

23 and the give a week or two from November 20th?

24 A. No.

25 Q. You asked for the recipient of the letter

1 to advise you within a week after receipt as to his

2 intentions to handle the matter.

3 Were you advised within a week of

4 Mr. Miller's intentions?

5 A. Yes. I think there should be a letter of

6 response.

7 Q. Mr. Miller wrote you a letter. Do you

8 recall what he said to you in his letter?

9 A. No, I do not.

10 Q. Since the inception of the ENR Project, in

11 your role as Project Manager, have you been

12 associated with other public records requests made to

13 the District for public records involving, let's say,

14 the ENR Project?

15 A. Well, if we consider the formal litigation,

16 that's not a public records request, I don't believe.

17 Q. Are you -- on a day to day basis are you

18 involved with responding to public records request?

19 A. I would be if it involved a specific

20 contract that I was identified as Project Manager.

21 Q. Do you recall, since the time that you've

22 been Project Manager of the ENR Project that you have

23 been involved with other than this particular

24 hydrodynamic model, have you been involved with

25 public records requests?

1 A. No. We've never had a similar situation,

2 to my knowledge, over that period of time.

3 Q. Okay. Do you have any information as to

4 why this particular model was not produced by the

5 District at or near the September 28, 1992 date for

6 its request?

7 A. I think we'd have to refer back to the

8 contract we have with Burns & McDonnell concerning

9 the subcontractor's concern about this being

10 released.

11 Q. Okay.

12 (The document was marked Exb. No. 12.)

13 BY MR. BURGESS:

14 Q. Let me ask you to look at what's been

15 identified as Exhibit 12 and ask if you recognize

16 that?

17 A. Yes.

18 Q. And what is that?

19 A. It's the continuing contract amendment

20 No. 4, Contract C91-2059 with Burns & McDonnell for

21 professional services.

22 Q. Is that the amendment that you just

23 referred us to in your earlier testimony in response

24 to my question as to why it wasn't turned over on or

25 about September 28th?

1 A. Yes. Page 3 of 3, Exhibit H, item 7.

2 Q. Okay. That's titled?

3 A. Trade Secret Recognition.

4 Q. Were you involved in the drafting of that

5 paragraph number 7?

6 A. Not -- not directly.

7 Q. Were you aware of that paragraph prior to

8 the time that the District entered into the contract

9 with Burns & McDonnell?

10 A. Yes.

11 Q. Were you consulted with respect to the

12 language to be contained in such a trade secret

13 recognition paragraph?

14 A. No. I coordinated with the subcontractor.

15 Q. And who was that?

16 A. Dick Tomasello.

17 Q. Okay. Do you know whose idea or desire it

18 was for a trade secret regulation paragraph or

19 recognition paragraph to be in the contract?

20 A. Dick Tomasello was very adamant about his

21 concerns of releasing this.

22 Q. And --

23 A. That was, you know, what he indicated to

24 me.

25 Q. And why was he so concerned?

1 A. Well --

2 MS. CLEMENTS: Objection. Speculation.

3 BY MR. BURGESS:

4 Q. If you know.

5 A. Trade secret, he didn't want it, you know,

6 let out.

7 Q. Are you familiar with this particular

8 model?

9 A. No.

10 Q. Is this what's known as the Sheet2D model?

11 A. That's my understanding.

12 Q. Do you know what the Sheet2D model is used

13 for by the District?

14 A. Not directly.

15 Q. Indirectly?

16 A. No. Neither.

17 Q. You don't know?

18 A. Well, it was used in hydrologic analysis

19 activities as related to the ENR Project.

20 MR. FITZGERALD: Counsel, I don't know how

21 material it is to your question or the answer,

22 but while this is Sheet2D, there is a

23 distinction under Amendment 4. It's a modified

24 Sheet2D which may or may not affect the answer

25 or your question.

1 MR. BURGESS: Okay. Thank you.

2 BY MR. BURGESS:

3 Q. Are you aware of an original Sheet2D and a

4 modified Sheet2D model?

5 A. No, sir. That's out of my area of

6 expertise.

7 Q. Okay.

8 MS. CLEMENTS: For the record, I'd want to

9 say that this concerned another lawsuit which

10 was filed by Mr. Tomasello objecting to the

11 release in regards to the public records

12 request. Subsequently the District filed a

13 motion for interpleader and was released from

14 liability and there was a settlement between

15 Mr. Tomasello and the League in which the

16 League, I believe, has received a copy of the

17 source code, the input files and the executed

18 code concerning Sheet2D modified model.

19 BY MR. BURGESS:

20 Q. Let me ask, sir. The Sheet2D model was

21 utilized by the District with respect to the ENR

22 Project, is that correct?

23 A. Yes.

24 Q. Okay.

25 A. Best of my knowledge, yes.

1 MR. BURGESS: Let me ask the court reporter

2 to mark that exhibit.

3 (The document was marked Exb. No. 13.)

4 BY MR. BURGESS:

5 Q. Do you recognize this document?

6 A. Yes.

7 Q. And what is this?

8 A. Affidavit of J.B. Jackson.

9 Q. And is that your signature appearing on

10 page 2?

11 A. Yes.

12 Q. Okay. What did you mean by the statement

13 appearing in paragraph 2 that, "The District has no

14 beneficial interest in retaining the source code for

15 the computer program known as Sheet2D"?

16 A. Well, this was used to provide the analysis

17 that Burns & McDonnell developed and gave to us as a

18 report July 31st.

19 Q. Okay.

20 A. So they completed their contractual

21 obligations using them as a subcontractor.

22 Q. With respect to the Exhibit Number 11,

23 which is the letter, I want to make sure I understand

24 your testimony. Is it your understanding that the

25 District did not provide the model pursuant to the

1 request on or about September 28, 1992 because of

2 paragraph 7 in Exhibit 12 which is the Trade Secret

3 Recognition paragraph?

4 MR. FITZGERALD: I'm going to object. The

5 question -- the answer would have no possible

6 relevancy to this case for which the witness has

7 been subpoenaed or noticed for deposition.

8 BY MR. BURGESS:

9 Q. Is that your understanding?

10 A. Yes. That was my understanding.

11 (The document was marked Exb. No. 14.)

12 BY MR. BURGESS:

13 Q. Let me show you what's been marked as

14 Exhibit 14 and ask you if you can identify that

15 document?

16 A. It's a cover note to Gary Goforth,

17 J.B. Jackson and Sue Newman dated August 4, 1992

18 attaching a draft version of the ENR Project Closer

19 Look prepared by our Communications Division, Ellen

20 Underwood.

21 Q. What is the ENR Project Closer Look?

22 A. Public publication. It's mass produced,

23 sent out, public information.

24 Q. Do you recall seeing this document before?

25 A. Yes.

1 Q. And by "this document," I mean this memo

2 and this version of the attachment of the Closer

3 Look.

4 A. Yes.

5 Q. Okay. Are any of the handwritten comments

6 on any of the pages yours?

7 A. A few.

8 Q. Okay. Can you tell us which ones are

9 yours?

10 A. Well, the correction "3,742 acres."

11 Q. That's on the --

12 A. First page first line second paragraph.

13 Q. Okay.

14 A. The second to last line second paragraph,

15 "mid 1993."

16 Q. Okay.

17 A. First line third paragraph ENR "project"

18 added. The others I can't make out, the lawsuit

19 settlement.

20 Q. Yeah. I couldn't.

21 A. I think that's "agreement." I put

22 "agreement," "settlement agreement" and comprehensive

23 Everglades. "Comprehensive" is that last there.

24 Q. Okay.

25 A. And "define STA" prototype. In the last

1 paragraph, "wetlands." Second page "treatment." I

2 changed that and I'm not sure. "Wetland," I believe.

3 And then that first paragraph under History and

4 Problem.

5 Q. You are saying the addition of "major

6 source" is your language?

7 A. Yes, sir. I believe so. I don't think I

8 made that many comments. The system, I mentioned

9 that.

10 Q. Where are you? I'm sorry?

11 A. Let's go to the second paragraph.

12 Q. On what page?

13 A. The page 2.

14 Q. Okay.

15 A. Down under History and Problem.

16 Q. Uh huh.

17 A. First paragraph first line, "in recent

18 decades." I think that's in the lieu of last 50

19 years, "recent decades."

20 Q. Do you know who authored the base document

21 that you were providing comments to?

22 A. Totally coordinated with all staff persons

23 involved in the ENR Project. In particular the

24 scientific community persons.

25 Q. And then is the draft then sent around for

1 comment to again a select group?

2 A. Yes.

3 Q. Or to everyone?

4 A. Everyone that made initial review.

5 Q. Did you author any of the underlying text

6 of this exhibit?

7 A. Some of it was basically tied back into the

8 original statement of the work of the project and

9 some of the history, some of the paragraph, but I

10 can't attribute that to any one author; total staff

11 input review on it. History, some of those maybe I

12 contributed to that. But, again, the emphasis was by

13 the particular disciplines involved, particularly the

14 scientific community.

15 Q. Would you typically get a draft of this

16 document with other handwritten comments already on

17 it and then you are asked to add yours or do you get

18 a clean copy and then you make comments?

19 A. It happens in both events.

20 Q. Is this Closer Look paper a monthly

21 publication?

22 A. I'm not sure what -- what time frames they

23 are publishing those Closer Look papers now.

24 Q. Do you recall when the last one was that

25 you reviewed and made comment to?

1 A. Well, this has been published. I'm not

2 sure whether this was the last Closer Look published

3 by the District. We'll gladly provide you with a

4 copy if we have copy.

5 MS. CLEMENTS: I'm sure they have copies.

6 (The document was marked Exb. No. 15.)

7 BY MR. BURGESS:

8 Q. Let me ask you whether you can identify

9 Exhibit 15 for the record?

10 A. Yes, sir.

11 Q. And what is that?

12 A. It's a draft copy of a Closer Look

13 publication.

14 Q. Okay. Do you know, as you compare Exhibit

15 14 and Exhibit 15, whether you could tell me which

16 one is the latest?

17 A. Not really. I would not be comfortable,

18 because, believe me, this document had extensive

19 review over a period of five or six months.

20 Q. Okay. Let me ask you whether the --

21 A. I'd be hard pressed.

22 Q. -- with respect to Exhibit 15, are those

23 handwritten comments your handwritten comments?

24 MS. CLEMENTS: Throughout the entire

25 document?

1 MR. BURGESS: Yes.

2 THE WITNESS: No.

3 BY MR. BURGESS:

4 Q. Are any of those comments your comments?

5 A. Maybe the first one.

6 Q. Which is?

7 A. "Reject and restore." I'm not sure of

8 that.

9 Q. Take your time, if you would, and go

10 through the pages and tell me whether you recognize

11 any of the comments on those five pages as your

12 handwritten comment.

13 A. No. That's not mine at the top. No. None

14 on this first page. No. No. No. I would think

15 that this 15 -- Exhibit 14 would be a later draft. I

16 would favor the August 4th as being the later draft.

17 Q. Exhibit 14 being the later draft?

18 A. Right.

19 Q. Okay. Do you recognize any of the

20 handwritten comments on Exhibit 15 as the handwriting

21 or comments of anybody else that you're aware of?

22 A. I'm not certain, no, on that. I'm not

23 certain of whose comments these may be, no.

24 Q. Turn your attention to the fourth paragraph

25 on the first page of Exhibit 15.

1 A. Yes, sir.

2 Q. Would you review that for me beginning "In

3 essence."

4 A. Yes.

5 Q. Okay. The handwritten comments there, the

6 two insertions of the words "treatment before design"

7 would appear to represent a switch, if you will, from

8 the ENR Project operating as a design and operation

9 prototype for full scale STAs to providing treatment

10 design and operation to full scale STAs.

11 Are you aware of the fact that at some

12 point the ENR Project was going to provide treatment

13 design as opposed to operational design for the STAs?

14 A. No.

15 Q. Has there been -- to your knowledge, are

16 you aware of any emphasis being placed on the ENR

17 Project as providing treatment information and data

18 as opposed to construction and design information and

19 data for the STAs?

20 A. Would you repeat that, please.

21 Q. Well, we talked a little earlier in the

22 deposition with respect to conceptually the project

23 in its early development --

24 A. Uh huh.

25 Q. -- serving as a prototype --

1 A. Right.

2 Q. -- for large scale application.

3 A. Right.

4 Q. And these handwritten comments here would

5 seem to show -- and we haven't identified the author;

6 I'm not asking who the author is. I'm just asking

7 whether you're aware of this sentiment in the

8 District, if you will, for the ENR Project as

9 operating or serving as a prototype for treatment

10 design as opposed to construction design for the

11 STAs?

12 A. I would look at it as being a little bit of

13 both.

14 Q. Uh huh.

15 A. I mean you can't separate it. In other

16 words, it's going to be a prototype project --

17 Q. Okay.

18 A. -- and it will be.

19 Q. If you would, turn to the second page of

20 Exhibit 14. Right there. That page. At the bottom

21 you identified the change in the second line of the

22 last paragraph. "In essence, the ENR, at about 10

23 percent of the size of the STAs, will become a pilot

24 scale." And you have written above that "prototype

25 STA for the testing and refining."

1 Was that a change that you made?

2 A. That was a change I made and I say that,

3 again, I feel that it is a prototype project.

4 Q. Okay. Did there come a time in your mind

5 as Project Manager with respect to the ENR that the

6 ENR switched from being a pilot scale STA to becoming

7 a prototype STA?

8 A. I still look at it as a prototype.

9 Q. Have you from the beginning?

10 A. Yes.

11 Q. Okay.

12 A. Uh huh.

13 Q. I don't want to repeat an area of

14 questioning that I covered a little earlier in the

15 deposition, but, again, it was my understanding that

16 the District had listed your name as a fact witness

17 to testify at the time of hearing. I want to make

18 sure I understand the record correctly.

19 As you sit here today you're not aware of

20 what areas you might be called to testify to at the

21 time of hearing?

22 A. Not specifically.

23 Q. No one has discussed with you the fact that

24 you will be offering testimony at the hearing?

25 A. Of a fact type?

1 Q. Yes.

2 A. Only to the degree that is why I was here

3 today.

4 Q. Right. For the deposition.

5 A. Yes. For fact finding.

6 Q. Has anyone discussed with you that you

7 might offer expert witness opinion testimony at the

8 time of trial?

9 A. No. Absolutely not.

10 Q. Are there areas that we haven't covered

11 today which you anticipate you'll be testifying to as

12 a fact witness at the hearing?

13 A. No.

14 MR. BURGESS: I don't have anything else.

15 MS. CLEMENTS: That's fine.

16 We'll read on that.

17 MR. BURGESS: Thank you.

18 (Witness excused.)

20 (Thereupon, at 12:02 p.m.,

21 the deposition was concluded.)

1 C E R T I F I C A T E

2 - - -

4 The State of Florida, )

5 County of Palm Beach. )

8 I hereby certify that I have read the

9 foregoing deposition by me given, and that the

10 statements contained therein are true and correct to

11 the best of my knowledge and belief.

13 Dated this ____ day of______________ 1992.

18 _________________________

19 James B. Jackson

1 C E R T I F I C A T E

The State of Florida )

3 County of Palm Beach. )

I, April Y. Sapp, Court Reporter and Notary

5 Public, State of Florida at large, do hereby certify

that James B. Jackson was by me first duly sworn to

6 testify the whole truth; that I was authorized to and

did report said deposition in stenotype; and that the

7 foregoing pages, numbered from 1 to 79, inclusive,

are a true and correct transcription of my shorthand

8 notes of said deposition.

9 I further certify that the said deposition

was taken at the time and place hereinabove set forth

10 and that the taking of said deposition was commenced

and completed as hereinabove set out.

I further certify that I am not attorney or

12 counsel of any of the parties, nor am I a relative or

employee of any attorney or counsel or party

13 connected with the action, nor am I financially

interested in the action.

The foregoing certification of this

15 transcript does not apply to any reproduction of the

same by any means unless under the direct control

16 and/or direction of the certifying reporter.

17 In witness whereof I have hereunto set my

hand and seal this ____ day of_____________ 1993.

20 _______________________________

April Y. Sapp,

21 Notary Public, State of Florida

at large. My commission expires

22 August 3, 1993.