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. ) 17 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. - - - 2 1 APPEARANCES: 2 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 13 Also Present: Kathy Stark, Esquire 14 15 - - - 3 1 - - - 2 I N D E X 3 - - - 4 5 WITNESS: DIRECT CROSS REDIRECT RECROSS 6 James B. Jackson 7 BY MR. BURGESS 6 8 9 4 1 - - - 2 E X H I B I T S 3 - - - 4 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 5 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 6 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 1556 21 Riley Avenue, Palm Springs, Florida 33461. 22 Q. What's your occupation? 23 A. I'm a professional engineer. 24 Q. Employed at? 25 A. The Water Management District. 7 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 8 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 9 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 10 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. 11 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. 12 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 13 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. 14 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 15 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. 16 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? 17 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 18 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. 19 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. 20 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 21 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. 22 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? 23 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. 24 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 25 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 26 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? 27 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. 28 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 29 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. 30 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, 31 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? 32 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 33 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. 34 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 35 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 36 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 37 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? 38 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 39 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 40 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 41 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 42 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. 43 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 44 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 45 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 46 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 47 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? 48 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? 49 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. 50 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: 51 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? 52 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 53 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? 54 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. 55 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. 56 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 57 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 58 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, 59 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 60 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 61 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 62 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? 63 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 64 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? 65 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? 66 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? 67 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. 68 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. 69 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 70 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. 71 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 72 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 73 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? 74 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? 75 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. 76 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 -- 77 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." 78 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? 79 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.) 19 20 (Thereupon, at 12:02 p.m., 21 the deposition was concluded.) 80 1 C E R T I F I C A T E 2 - - - 3 4 The State of Florida, ) 5 County of Palm Beach. ) 6 7 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. 12 13 Dated this ____ day of______________ 1992. 14 15 16 17 18 _________________________ 19 James B. Jackson 20 21 81 1 C E R T I F I C A T E 2 The State of Florida ) 3 County of Palm Beach. ) 4 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. 11 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. 14 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. 18 19 20 _______________________________ April Y. Sapp, 21 Notary Public, State of Florida at large. My commission expires 22 August 3, 1993. 23 24 25