258
1 DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA
2
SUGAR CANE GROWERS COOPERATIVE )
3 OF FLORIDA; ROTH FARMS, INC.; and )
WEDGWORTH FARMS, INC., )
4 )
Petitioners, )
5 vs. )DOAH Case No. 92-3038
SOUTH FLORIDA WATER MANAGEMENT )
6 DISTRICT, an agency of the State )
of Florida; et al., )
7 Respondents. )
- - - - - - - - - - - - - - - - - x
8 FLORIDA SUGAR CANE LEAGUE, INC., )
UNITED STATES SUGAR CORPORATION; )
9 and NEW HOPE SOUTH, INC., )
Petitioners, )
10 vs. )DOAH Case No. 92-3039
SOUTH FLORIDA WATER MANAGEMENT )
11 DISTRICT, an agency of the State )
of Florida; et al., )
12 Respondents. )
- - - - - - - - - - - - - - - - - x
13 FLORIDA FRUIT AND VEGETABLE )
ASSOCIATION; LEWIS POPE FARMS; )
14 W.E. SCHLECHTER & SONS, INC., )
and HUNDLEY FARMS, INC., )
15 Petitioners, )
vs. )DOAH Case No. 92-3040
16 SOUTH FLORIDA WATER MANAGEMENT )
DISTRICT, an agency of the State )
17 of Florida; et al., )
Respondents. )
18 - - - - - - - - - - - - - - - - - x
19 100 Southeast 2nd Street
Miami, Florida
20 January 27, 1993
9:20 a.m. - 5:30 p.m.
21
CONTINUED DEPOSITION OF ROBERT JOHNSON
22 VOLUME III
23 Taken before RICHARD BURSKY, Registered
Professional Reporter and Notary Public in and for
24 the State of Florida at Large, pursuant to Notice of
Taking Deposition filed in the above cause.
25
259
1 APPEARANCES
2 ON BEHALF OF THE PETITIONERS SUGAR CANE GROWERS
COOPERATIVE OF FLORIDA, ROTH FARMS, INC., and
3 WEDGWORTH FARMS, INC.
4 HOPPING BOYD GREEN & SAMS
123 South Calhoun Street
5 Tallahassee, Florida 32314
BY: GARY V. PERKO, ESQ.
6
7 ON BEHALF OF THE PETITIONERS FLORIDA SUGAR CANE
LEAGUE, INC., UNITED STATES SUGAR CORP., and
8 NEW SOUTH HOPE, INC.
9 PEEPLES, EARL & BLANK, P.A.
One Biscayne Tower - Suite 3636
10 Two South Biscayne Boulevard
Miami, Florida 33131
11 BY: MARK T. KOBELINSKI, ESQ.
12
ON BEHALF OF THE RESPONDENT-INTERVENOR
13 UNITED STATES OF AMERICA
14 THOMAS A.W. FITZGERALD, ESQ.
Assistant United States Attorney
15 155 North Miami Avenue
Suite 600
16 Miami, Florida 33130
17
PRESENT:
18
TED MILLER
19 BRADLEY G. WALLER
20 INDEX
21 Witness Direct Cross
ROBERT JOHNSON
22
By Mr. Kobelinski: 262 --
23
By Mr. Perko: -- 478
24
25
260
1 EXHIBIT PAGE DESCRIPTION
2 4 263 A document containing the
heading hyrbud.nsm, dated 91/12/05, Bates
3 numbers BDJ 0025815 through 0025824
4 5 375 A document entitled An
Assessment of Hydrological Improvements
5 and Wildlife Benefits from Proposed
Alternatives for the U.S. Army Corps of
6 Engineers' General Design Memorandum for
Modified Water Deliveries to Everglades
7 National Park, dated June 1990, Bates
numbers ENP 0986806 through 0986913
8
9 5 402 (Exhibit 5 remarked, Bates
numbers 0946397 through 0946511)
10
6 421 A two-page document
11 containing the question at the top of the
first page, "Why is it necessary for water
12 from the EAA to continue its flow in the
WCAs?", Bates numbers 0687673 and 0687674
13
7 424 A document, Bates numbers
14 0940973, 0940178 and 0940179
15 8 429 A seven-page document, Bates
numbers US 0031695, US 0863589 through
16 US 0863594
17 9 431 A nine-page document,
untitled, dated 3/12/91, Bates numbers US
18 0863595 through US 0863603
19 10 485 A multipage document, the
first page entitled, EAA Water Budget, WMA
20 Retention Modeling
21
11 518 A nine-page document, the
22 first page entitled, Natural System Model
23 12 523 A document entitled, Central
and Southern Florida Ecosystem Modeling
24 Reconnaissance Study, Results of July 1991
Workshop, bearing Bates numbers 0893183
25 through 0893223
261
1 ROBERT JOHNSON, resumed.
2 THE COURT REPORTER: Mr. Johnson, I remind
3 you you are still under oath. Do you understand
4 that?
5 THE WITNESS: Yes.
6 MR. FITZGERALD: Before we begin, to
7 address some of the issues in the way of documents
8 that were raised yesterday, you requested some data
9 runs that Mr. Johnson identified as available. In
10 fact, we found those and they have already been
11 provided to the Hopping Boyd firm because they took
12 the entire box of materials provided for examination
13 and discovery of Mr. Richards.
14 Those who examined the documents on behalf
15 of Peeples Earl apparently didn't recognize them to
16 be significant or whatever, so they were not copied
17 for you. But we have gone ahead and made additional
18 copies and, Gary, since I assumed you didn't drag all
19 that stuff with you I made a set for you as well.
20 These are the water budget sets that were
21 discussed yesterday, the three that are available.
22 Then additionally there was some
23 discussion of Shawn Sculley's simulations for the
24 WMAs that were done back in 1990. I made copies of
25 those for you too. Mr. Johnson was able to locate
262
1 that.
2 That incidentally is already a public
3 record and was turned over but you asked for it so
4 you got it.
5 MR. KOBELINSKI: I don't know that public
6 records is the criteria for not producing documents.
7 MR. FITZGERALD: I am not sure you
8 established that is responsive to your subpoena and
9 notice any way but it is academic since you have it
10 now and you probably already have it.
11 DIRECT EXAMINATION (Continued)
12 BY MR. KOBELINSKI:
13 Q. Mr. Johnson, we have a couple of documents
14 that counsel just provided to us, the first one is a
15 set of data which bear Bates numbers although, I am
16 not sure if I will mark it as an exhibit yet, but for
17 the record it bears Bates numbers DBJ 0025815 through
18 DBJ 0025824.
19 What exactly is this document?
20 A. It is output from the sub-routine from the
21 South Florida Water Management Model that generates
22 annual water budgets for each of a series of
23 sub-basins defined by the model. In this case the
24 output is from version 3.6 of the Natural System
25 Model for the period from 1966 through 1989.
263
1 Q. You had referenced yesterday during your
2 deposition that there had been four water budget
3 analyses prepared for four sub-basins, the EAA, the
4 WCAs, the Lower East Coast and Everglades National
5 Park. Is this document that we have today, is this
6 the water budget analysis for those four sub-basins?
7 A. That would be the water budget as they
8 were under the Natural System Model. For a larger
9 number of basins, you simply have to combine the
10 basins.
11 I believe this breaks down the individual
12 county areas, Palm Beach, Broward and Dade. So you
13 combine those three to form the Lower East Coast
14 Basin. You combined similarly the Water Conservation
15 Area sub-units to form the one basin that I defined
16 as the Water Conservation Areas. So all the
17 information is there, it is just in more detailed
18 form than just the four basins that we referred to.
19 Q. This then contains more than merely the
20 inflows and outflows, is that correct?
21 A. Right, this would contain all of the
22 important parameters for a water budget of those
23 basins.
24 MR. KOBELINSKI: Why don't we go ahead and
25 mark this as an exhibit.
264
1 (A document containing the heading
2 hyrbud.nsm, dated 91/12/05, bearing Bates numbers DBJ
3 0025815 through 0025824, was marked Johnson
4 Deposition Exhibit 4 for identification)
5 BY MR. KOBELINSKI:
6 Q. I am showing you, Mr. Johnson, what has
7 been marked Deposition Exhibit 4 to this deposition
8 and again bears the Bates numbers I just referred to
9 a few minutes ago. In the upper left-hand corner of
10 Exhibit 4 there is a red line box which in the upper
11 portion says 91/12/05. Is that the date that this
12 document was prepared?
13 A. Yes.
14 Q. Would that be December 5, 1991 or May 12,
15 1991?
16 A. I'm not exactly sure. This is a printout
17 from a Sun work station, it is a standard print
18 format provided to me by the District. I would say
19 it is probably 12-05-91.
20 Q. Is it your understanding then this would
21 be using the 3.6 version of the Natural System Model?
22 A. That is correct. You also notice that
23 there are three different sets of these. The first
24 one is labeled hyrbud.nsm, the next one is labeled
25 drybud.nsm, the last one is labeled wetbud.nsm. So
265
1 they would be the water budget on a hydrologic year
2 defined as June through May as a dry season. So
3 there are three full sets of runs, two are seasonal,
4 one is on a hydrologic year.
5 Q. First of all let me for the record, I did
6 not realize we have more than one document here.
7 A. Right.
8 Q. What has been marked as Exhibit 4 bears
9 Bates numbers DBJ 0025815 through DBJ 0025824. This
10 is the hyrbud.nsm that you are referring to, is that
11 correct?
12 A. That is correct.
13 MR. KOBELINSKI: Is there another copy of
14 this?
15 MR. FITZGERALD: No, there is not, since
16 they were already provided in discovery and you did
17 not choose to, I provided one copy for you and one
18 copy for other counsel.
19 If you need a set --
20 MR. KOBELINSKI: Off the record.
21 (Thereupon, a brief recess was taken,
22 after which the following proceedings
23 were had)
24 BY MR. KOBELINSKI:
25 Q. Mr. Johnson, I am showing you what has
266
1 been marked as Exhibit No. 4. A few moments ago you
2 were explaining to us that there are actually three
3 sets of data. Which set of data is this one?
4 A. This first one is the water budget for the
5 hydrologic year defined as June 1 through May 31.
6 MR. PERKO: For the record, is that the
7 document entitled hyrbud.nsm?
8 THE WITNESS: That's correct.
9 MR. KOBELINSKI: The one that bears Bates
10 numbers DBJ 0025815 through 824.
11 BY MR. KOBELINSKI:
12 Q. This then is for the entire -- this would
13 be the annual water budget, is that correct?
14 A. That's correct, based on a hydrologic year
15 as it was defined by the Water Management District at
16 that time.
17 Q. Has the hydrologic year definition changed
18 since that time?
19 A. I think it varies depending on the study.
20 On a lot of the work that the District does they use
21 the water year as the USGS did from October through
22 the following September.
23 Q. What does the Park use typically?
24 A. It depends on the study again. I prefer
25 to use the hydrologic year because the water year as
267
1 defined from October through September crosses
2 rainfall years and events and doesn't match the
3 climate patterns of South Florida very well. The
4 June through May captures most of the wet season and
5 the following dry season so I think the more
6 appropriate thing is something like a June through
7 May.
8 But it depends on whether you define the
9 period by rainfall or you define the period by flows.
10 This would be defined based on flow events because
11 the rainfall pattern would generally be a month
12 earlier than this.
13 Q. Given the date that this run was made
14 which I believe you stated was December 5, 1991,
15 would this have been run on the 3.6 version of NSM or
16 the 4.0 version of NSM?
17 A. 3.6.
18 Q. Was a water budget for the various areas,
19 the different basins, done also on the South Florida
20 Water Management Model, the SFWMM?
21 A. Yes, it has been. Not for this full
22 period, to my knowledge.
23 Q. What period was run?
24 A. To my knowledge it was only run for a 10
25 year period from 1979 through 1988.
268
1 I shouldn't say -- I have only seen
2 printouts of the 10 year period. Someone may have
3 run it for the entire 25 year period, I have just
4 never seen output on it.
5 Q. With regard to that period, '78 through
6 '88, then, would water budgets for the two different
7 models, the Natural System Model and the South
8 Florida Water Management Model, match up exactly?
9 A. No.
10 Q. Why not?
11 A. Differences in the input and output
12 parameters, the hydrologic systems changed so the
13 actual numbers would be quite different reflecting
14 the changes in water management.
15 Q. The Natural System Model, this water
16 budget that we are looking at for the hydrologic
17 years which has been marked as Exhibit 4 to this
18 deposition, is this an actual historic water budget
19 for the first 20 years, 1966 through 1988?
20 A. No, this is from the Natural System Model
21 simulation.
22 A. So there is not historical information for
23 many of these parameters. Most of these are model
24 estimates.
25 Q. Does the South Florida Water Management
269
1 Model make like estimates?
2 A. For many of the parameters it would have
3 to make estimates, for others it would have the
4 actual historical flow volumes for structures. They
5 would be included, unless it is a structure that the
6 model was predicting flow for rather than inputting a
7 historic flow.
8 Q. Why don't we go through item by item and
9 see what differences there would be in your opinion
10 or based upon your experience between the models.
11 The first item in this initial page of
12 Exhibit 4, upper left-hand corner, is rainfall. And
13 rainfall for this particular area which is labeled as
14 the LEC, which I believe means Lower East Coast, is
15 that correct?
16 A. To my knowledge, yes.
17 Q. And this first page covers the years 1966
18 through 1988?
19 A. Yes, extending -- 1988 extends through the
20 early part of the second page.
21 Q. Rainfall, is that historic data that is
22 contained in that first column?
23 A. That is correct. It would be the average
24 historical rainfall for the Lower East Coast
25 sub-basin based on the arithmetic averaging routines
270
1 that are in the South Florida Water Management Model.
2 Q. Would these figures then coincide with
3 those generated by the South Florida Water Management
4 Model water budget?
5 A. Yes, they would be the same data input as
6 the Water Management Model.
7 Q. And do you know exactly how the, how that
8 averaging of the rainfall is done within the model?
9 A. It is a simple arithmetic averaging of the
10 number of rainfall stations in each sub-basin.
11 Q. Is that a weighted averaging?
12 A. No.
13 Q. The next item underneath rainfall is ET.
14 How is ET determined?
15 A. It is a model estimated parameter based on
16 evapotranspiration measurements at a selected number
17 of sites around the Everglades. In this case it
18 would be fitted to differences in land use or
19 vegetation types throughout the system based on early
20 vegetation maps. I believe these ones were provided
21 by Steve Davis.
22 Q. Would the ET figures for the various years
23 here match up with a water budget run on the South
24 Florida Water Management Model?
25 A. No, they would not.
271
1 Q. Why is that?
2 A. Because the land use patterns that
3 generate the evapotranspiration losses are different.
4 It is a different base map that is used to drive the
5 evapotranspiration changes.
6 Q. If I understand you correctly are the --
7 or the differences between the model, although what
8 is Exhibit 4 is broken into WCA 1, WCA 3, Lower East
9 Coast, various basins, this model is projecting what
10 the water budget would be for instance in 1988 if,
11 for instance, there was no project and there was no
12 urban development in the Lower East Coast?
13 A. That's correct, and the land uses are what
14 they are defined in the model.
15 Q. What is the land use definition for Lower
16 East Coast in the model?
17 A. I imagine it would be defined as, probably
18 portions of it would be pinelands, whatever. I
19 haven't looked at the vegetation map recently. But a
20 non-wetlands system such as a pine forest or
21 something like that would be defined for most of the
22 Lower East Coast areas except for the portions of the
23 Lower East Coast that are off of the western edge of
24 the coastal ridge which were historically Everglades.
25 Those would be defined as whatever the vegetation
272
1 community was at the time that the map was generated.
2 Q. With regard to the ET estimate, the Lower
3 East Coast from what you have stated there generally
4 had various, let's call them land uses as you
5 referred to them, pine forest, there were some
6 wetland marshes, were there?
7 A. That's correct.
8 Q. If you looked in smaller segments wouldn't
9 there be different ET values for pine forest as
10 opposed to a wetland marsh?
11 A. Yes and the model reflects that.
12 Q. How does it determine what area was
13 wetland marsh of Lower East Coast, what area was the
14 pine forest?
15 A. It would be whatever land use map is used
16 as the basis for the Natural System Model. There is
17 one fixed map that was input to the model grid that
18 defines the land use for every grid cell.
19 Q. Do you have a copy of that land use map?
20 A. I am sure we have it on our computer
21 system.
22 Q. Do you know how that map was determined?
23 A. I believe it was provided by Steve Davis
24 based on a review of historical vegetation that he
25 had done.
273
1 Q. Did the Park review that map for accuracy?
2 A. I don't believe the Park had any input in
3 the land use categories.
4 Q. Has the Park done any type of analysis on
5 the ET that is used by the NSM model?
6 A. We have worked on refinements of the ET
7 algorithms but not on the base map that is used to
8 define the study area.
9 Q. Has the Park worked on or done any type of
10 analysis on any of the assumptions that are used in
11 the NSM Natural System Model?
12 A. I am not sure what you mean by
13 assumptions.
14 Q. Would you say that the natural map or the
15 map of what the vegetation was in the natural system
16 is an assumption?
17 A. Yes.
18 Q. That is not known as a fact, is it?
19 A. I would say it was taken from some
20 historical vegetation map and the map was assumed to
21 be correct.
22 So it is not something that was made up
23 based on speculation. It was something that is based
24 on vegetation mapping done at some point in the past.
25 Q. Was there any way to verify the accuracy
274
1 of whatever Steve Davis used?
2 MR. FITZGERALD: Objection. You are
3 calling for speculation. You haven't established the
4 witness had any involvement in that or even the time
5 frame when this occurred.
6 Q. Go ahead.
7 A. Assuming that there was some aerial
8 photography available at the time the vegetation map
9 was generated or something similar to that, you could
10 verify it. I don't know specifically what the
11 original basis of the vegetation information that was
12 used to go into the land use map was. So I don't
13 know the date at which the map was generated. It
14 could have been based originally on John Davis' work
15 in 1943 or an earlier vegetation map. I am not
16 really sure.
17 Q. Do you know what the base period or the
18 base year was for the Natural System Model?
19 A. I am not sure what you mean by base
20 period.
21 Q. For instance, you are referring to this
22 vegetative map. Was it supposed to reflect a
23 particular year?
24 A. It was supposed to reflect the vegetation
25 pattern that was present in the Everglades before the
275
1 major water management changes occurred. Whether or
2 not that would have been a specific year, I don't
3 know.
4 Q. Do you know what was the definition of
5 major water management changes?
6 A. It would probably be vegetation prior to
7 at least the 1920s.
8 Q. Is the Davis map that you referred to a
9 vegetative map that predates the 1920s?
10 A. I would assume it would be.
11 Q. So I understand, the Park has not, though,
12 reviewed the accuracy of Davis', and I am talking
13 about Steve Davis now, vegetative map used by the NSM
14 model?
15 A. That is correct.
16 Q. Has the Park Service attempted to verify
17 the ET component used by the Natural System Model?
18 A. One of our hydrologists has reviewed the
19 ET algorithm to see how accurately the ET algorithm
20 does the calculations of ET losses.
21 Q. Would the analysis that was done by the
22 Park hydrologist have looked at whatever coefficients
23 were used for various sections of marsh for ET?
24 A. He did not attempt to verify or improve
25 the coefficients for the different land use types,
276
1 no.
2 Q. Is the Park aware where those coefficients
3 came from?
4 A. I am sure it would be defined in the
5 program, the South Florida Water Management Model
6 program specifically what the data source was for
7 each of land use types and coefficients that are
8 associated with it, as it is in a published document
9 report for the District's model.
10 Q. Who was the Park hydrologist who looked at
11 the ET algorithm?
12 A. Dr. Robert Fennema.
13 Q. Do you know how the ET coefficients or the
14 ET factor was determined or is determined in the
15 South Florida Water Management model? You stated it
16 would be different than that in the NSM model?
17 A. The algorithm is the same between the two.
18 What is different is the base map that is used for
19 land use cover.
20 Q. What base map is used for the land use
21 cover for the South Florida Water Management Model?
22 A. Again I am not sure of the exact date of
23 the vegetative pattern but the vegetation occurring
24 approximately at the start of the modeling scenario
25 so it would be vegetation patterns that have been
277
1 present in approximately 1965.
2 Q. Was it Steve Davis again who prepared that
3 vegetative or land use map?
4 A. I am not sure.
5 Q. Has the Park done any analysis of that
6 land use or vegetative map?
7 A. We have reviewed some of the more detailed
8 land use classification information that the District
9 is generating for their planning and regulatory
10 activities and recommended that a more detailed
11 vegetative map be applied.
12 Q. Is that for a particular geographic area?
13 A. It would cover most of the District, I
14 believe.
15 Q. What geographic area would that be?
16 A. Essentially for this project we would look
17 at, for this area would be everything covered by the
18 model grid which is on the area south of Lake
19 Okeechobee, essentially.
20 Q. When was that recommendation made?
21 A. Probably last year sometime.
22 Q. Who from the Park Service did the analysis
23 on the South Florida Water Management Model which
24 resulted in that recommendation?
25 A. I don't believe it was an analysis on the
278
1 South Florida Water Management Model specifically.
2 It was a recognition that there were more detailed
3 vegetation maps already in the possession of the
4 District and that it would more than likely be
5 beneficial to use a more detailed vegetation map if
6 it was available.
7 Q. Did Dr. Fennema review the South Florida
8 Water Management Model ET algorithms?
9 A. Yes.
10 Q. The next column underneath rainfall and ET
11 is pumpage. What is that?
12 A. That would be the historical pumping
13 record for the major well fields on the Lower East
14 Coast that are supplied by the regional water
15 management system.
16 Q. In this instance it shows a zero for all
17 years. Why would that be?
18 A. Because in the Natural System Model there
19 are no well fields.
20 Q. Underneath that is GWSTOCH. What would
21 that be?
22 A. That would be groundwater, it looks like
23 groundwater and a surface water storage term of some
24 type.
25 Q. You are saying surface water, that is
279
1 right underneath that?
2 A. GW and SW, right.
3 Q. Pumpage on the South Florida Water
4 Management water budget would of course have actual
5 figures in some if not all of these years?
6 A. It would have actual figures for each year
7 based on the record of the municipal pumping that the
8 District would be maintaining.
9 Q. And these groundwater storage and surface
10 water storage, the next two figures in this analysis,
11 what do those reflect?
12 A. Right offhand, I couldn't tell you
13 specifically how those two terms are calculated. I
14 would have to go back and look at documentation,
15 probably look at the actual sub-routine and figure
16 out how these two are calculated.
17 Q. As opposed to how they are calculated,
18 what, the numbers there, what do they represent?
19 A. I would assume they are some sort of
20 change, probably an antecedent storage that is in the
21 model at that time. I am not really sure exactly how
22 they are used.
23 Some of this is derived information from
24 the model, others are pieces of information that are
25 input into the model at the time. So I am not
280
1 exactly sure how this is coming out. Again, I am
2 looking at an output that was generated by staff of
3 the Water Management District. So I did not generate
4 this run.
5 Q. Underneath those two terms you have OFIN
6 and OFOUT?
7 A. Those would be overland flow in and
8 overland flow out along the boundaries of this
9 particular sub-basin.
10 Those would be groundwater inflows and
11 outflows along the same boundary conditions for this
12 particular sub-basin.
13 Q. Underneath that you have LSPGIN and
14 LSPGOUT.
15 A. Again, I am not specifically familiar with
16 what the LSPG would stand for. Again, I would say it
17 is something that is important in the managed version
18 of the model but isn't really affecting the natural
19 system version of the model, hence all the yearly
20 values are zero.
21 Q. In coming to your expert opinion that the
22 STAs and BMPs would not have an impact upon water
23 supply for the Park, did you do any analysis of
24 actual or historical water budgets?
25 A. Not using the Natural System Model. We
281
1 have reviewed the historical flow volumes coming out
2 of the Everglades Agricultural Area to the Water
3 Conservation Areas. So I would not define that as a
4 water budget. It is more an analysis of historical
5 flow.
6 Q. Did you consider evapotranspiration in
7 coming to your expert opinion?
8 A. Evapotranspiration losses such as the STAs
9 would generate would be an important parameter.
10 Q. I believe yesterday you stated that in
11 your opinion there would be approximately a 22
12 percent decrease in outflow from the EAA, is that
13 correct?
14 A. What I stated was that the percentage that
15 is estimated within the Burns and MacDonald report
16 done on conceptual design for the stormwater
17 treatment area. It wasn't my calculation, it is
18 simply repeating what is in their reports.
19 Q. Do you have an expert opinion as to what
20 impact if any there would be upon the outflows from
21 the EAA resulting from the BMPs and the STAs?
22 A. Only what I have seen from the modeling
23 work done by the Water Management District, the Army
24 Corps of Engineers and what is included by Burns and
25 MacDonald's report.
282
1 Q. And the modeling you are referring to by
2 the Army Corps of Engineers and the Water Management
3 District, did that modeling take into consideration
4 the current design for the STAs and the current
5 number of acreage and location for the STAs?
6 A. The Army Corps of Engineers modeling was
7 done in December or was completed in December of 1990
8 and at that time they were modeling I believe 74,000
9 acres for the STAs, so it does not reflect current
10 design.
11 The modeling for the District was done in
12 two phases. Originally I believe it was 58,000
13 acres. So that would not reflect current design.
14 I believe I have seen a presentation with
15 some of the output provided for the current estimate
16 of 35,000 acres.
17 Q. And the presentation I believe you said
18 yesterday was by Mr. Neidrauer?
19 A. I believe so.
20 Q. Have you discussed with Mr. Neidrauer how
21 he did that analysis and reviewed the data he used
22 and how he came to the conclusions that he made in
23 the presentation?
24 A. No. I don't believe I have discussed it
25 in any depth because it was preliminary information
283
1 and the District hadn't finalized it.
2 Q. What information have you reviewed where
3 the current design for the STAs acreage and also the
4 BMPs have been considered in determining what
5 reduction if any there would be in the outflows from
6 the EAA?
7 A. The conceptual design reports from Burns
8 and MacDonald.
9 Q. That does consider all the factors I just
10 mentioned?
11 A. Yes, as well as the change in land use
12 that would be associated with removal of certain
13 areas from agriculture.
14 Q. And the BMPs which would increase
15 retention of water in the EAA agricultural fields?
16 A. That was one of the three major
17 parameters.
18 Q. Which would have an impact on ET, is that
19 correct?
20 A. It would have an impact on ET.
21 Q. Having reviewed that information, are you
22 relying upon that in coming to your expert opinion
23 that there will not be an impact to the water supply
24 to the Park?
25 A. I am relying upon that and the fact that
284
1 in the settlement agreement there is a stipulation
2 that any losses of water as part of the BMPs and the
3 STA design and implementation would be offset.
4 Q. By offset do you mean that water from
5 other sources would make up any loss to the current
6 water supply to the Park?
7 A. That is part of the offset. I believe the
8 things that are recommended was analysis of potential
9 alternative sources of water such as water releases
10 from Lake Okeechobee, backpumping or additional use
11 of water from the Lower East Coast. I think the
12 other thing that was recommended was a review of
13 operations criteria within the Water Conservation
14 Areas.
15 So that some of the makeup water, if you
16 will, is water that is currently disposed of within
17 the Water Conservation Areas, output from the Water
18 Conservation Areas that would no longer be handled
19 that way.
20 Q. The caveats or water supply provisions in
21 the settlement agreement, are those all reflected in
22 the SWIM Plan?
23 A. They are specifically mentioned in the
24 SWIM Plan that the losses associated with the STA
25 and BMP rules would be offset, yes, as far as I know
285
1 those are specified in the SWIM Plan and those were
2 used as assumptions for the STA design.
3 Q. With regard to the backpumping from the
4 Lower East Coast urban areas, additional water from
5 the lake, were all those mentioned in the SWIM Plan?
6 A. I think there is a listing of those as
7 being potential sources. To my knowledge no one has
8 gone back and done the modeling to show that these
9 additional sources of water have been analyzed to
10 look at the offsetting of losses due to the STAs and
11 BMP implementation.
12 Q. When you give your expert opinion, then,
13 that the STAs and BMPs will not result in an impact
14 on the water supply to the Park, as I understand it,
15 that expert opinion is based at least in part upon
16 the fact that you have received assurances, be it in
17 the SWIM Plan or the settlement agreement, that any
18 actual loss or decrease will be made up from other
19 sources, is that correct?
20 A. I would say that's not my technical basis
21 for saying that there will be a relatively small
22 effect on the Park. My analysis or my review of the
23 hydrologic work that has been done is basically the
24 reason why I say there would be little impact on the
25 Park.
286
1 Q. Looking at your technical analysis and
2 ignoring the provisions of the settlement agreement
3 or any assurances that are contained about water will
4 be made up if there is any loss, that technical
5 assessment is based upon the Burns and MacDonald
6 report, is that correct?
7 A. That's correct.
8 Q. And would you say to a lesser degree upon
9 the Corps and District information or modeling runs
10 that you had just referenced?
11 A. I believe the most recent District
12 modeling is consistent with the Burns and MacDonald
13 report. The earlier District work and the work by
14 the Corps would not be favorably used because they
15 are not consistent with the current design of the
16 STAs.
17 Q. When you say they are consistent with
18 Burns and MacDonald it is referencing essentially an
19 approximately 22 percent decrease in the outflow from
20 the EAA or the historical average, is that correct?
21 A. Something in that range.
22 Q. Has any analysis been done to determine
23 whether a 22 percent decrease of the water coming out
24 of the EAA into the Water Conservation Areas, what
25 impact that would have at the Park level? Is it
287
1 exactly 22 percent, 22 percent, or is the 22
2 percent -- let me ask you that.
3 Would a 22 percent decrease of outflows
4 from the EAA have an exact 22 percent decrease of the
5 water available at the S-12 structures or at the Park
6 level?
7 A. No.
8 Q. Would it be greater or smaller?
9 A. It would be smaller, more than likely.
10 Q. Why is that?
11 A. Because the Park is only one of the
12 outflow sources or points from the Water Conservation
13 Areas and the reduction of flows into the EPA or
14 Water Conservation Areas would not necessarily fall
15 uniformly to all of the outflow points.
16 Q. Would a reduction of flows into the Water
17 Conservation Areas have any impact upon the ET within
18 the Water Conservation Areas?
19 A. Yes. Less water going into the Water
20 Conservation Areas would have an effect on
21 evapotranspiration loss.
22 Q. Would that be a greater or lesser
23 evapotranspiration loss?
24 A. Less water going in would reduce the ET
25 losses, more than likely.
288
1 Q. In all circumstances?
2 A. It depends on the depth of the pools in
3 the Water Conservation Areas but in general if you
4 are holding more water back and storing it in aquifer
5 or in soils in the EAA you would have lower ET losses
6 than you would if you were passing water southward
7 into the Water Conservation Areas.
8 Q. What percentage of the water that
9 ultimately supplies the Park comes out of the EAA?
10 A. I don't know the exact number. I don't
11 think anyone has traced through a water budget the
12 amount of water that comes out of the EAA and then
13 its contribution to the Water Conservation Areas, and
14 then of the removal of water from the Water
15 Conservation Areas, how much of that goes to the
16 Park. You can't trace those specific particles of
17 water from the EAA into the Water Conservation Areas
18 and then into the Park.
19 Q. Are you saying it can't be done or it has
20 not been done as yet?
21 A. I don't think it could be done. Once
22 water is in the Water Conservation Areas and is
23 transported to the Park, it would be very difficult
24 to be able to quantify what the original source of
25 that water was, because water is coming from multiple
289
1 sources into the conservation areas.
2 Q. What are the source of water into Water
3 Conservation Area 1?
4 A. The major source of water would be
5 rainfall over the basin and inflows through S-5A, S-6
6 and the, what is it, Lake Worth Drainage District.
7 Q. Have you looked at the figures for
8 rainfall in Water Conservation Area 1?
9 A. Yes.
10 Q. Have you ever looked at the figures,
11 either by the Park or the District, for ET from Water
12 Conservation Area 1?
13 A. Yes.
14 Q. On average is ET or rainfall greater for
15 Water Conservation Area 1 on an average annual basis?
16 A. I believe rainfall would be slightly
17 larger.
18 Q. With regard to Water Conservation Area 2
19 and the figures -- 2A, the figures you reviewed, is
20 rainfall or ET on average, the average year, greater
21 or lesser? Excuse me, which is greater?
22 A. I assume rainfall would be larger.
23 Q. Does that hold true for 3A also?
24 A. More than likely.
25 Q. Have you reviewed the SWIM Plan in this
290
1 regard?
2 A. Yes.
3 Q. Is it your understanding the SWIM Plan
4 says the rainfall is larger than ET in the WCAs?
5 A. I think it depends on how you are keeping
6 track of those numbers. Basically what I am looking
7 at is you wouldn't have surface water in the wetlands
8 system if rainfall doesn't exceed ET. It just
9 wouldn't be there except carryover water year to
10 year. So you are looking at variability based on the
11 water budget number which is a little different than
12 what I would like at. But certainly there are years
13 where ET greatly exceeds rainfall.
14 Q. Looking at the past 10 year average would
15 you anticipate that rainfall or ET exceeded, was
16 greater in the Water Conservation Areas?
17 A. In the past 10 years ET has probably been
18 greater.
19 Q. In the prior 10 years to that what would
20 have been greater?
21 A. Probably we are talking about what, the
22 seventies, probably, for the seventies --
23 Q. For the seventies.
24 A. For the seventies ET would probably exceed
25 rainfall.
291
1 Q. So essentially in the last 20 years for
2 the Water Conservation Areas ET has exceeded
3 rainfall?
4 A. That's probably true. We have been
5 running a rainfall deficit for the last 20 years,
6 roughly.
7 Q. Does the Park anticipate that will change?
8 A. I think you are asking me to speculate. I
9 am anticipating that average rainfall patterns will
10 occur and what has been happening in the last 20
11 years has been below average rainfall.
12 Q. Let's see if I understand that. You are a
13 hydrologist. Rainfall is within the purview of your
14 expertise, is that correct?
15 A. Yes.
16 MR. FITZGERALD: We would note for the
17 record an objection to this. The witness has already
18 pointed out it would be speculation. He may be a
19 hydrologist, but he is not god, I know cartoons to
20 the contrary notwithstanding.
21 Q. Is your opinion, I wasn't sure if I
22 understood what your opinion was, that ET or rainfall
23 will be greater in the WCAs for, for instance, let's
24 say the next five years?
25 A. Again, it would depend on the rainfall
292
1 patterns. If we have an above normal rainfall years
2 over that period, rainfall will more than likely
3 exceed ET losses.
4 Q. In planning for the Park and doing water
5 budget is it anticipated that rainfall patterns
6 experienced in the last 20 years will change?
7 A. Again, I would say we would anticipate
8 that rainfall patterns will be close to normal going
9 into the future so we will have above rainfall years
10 and below normal rainfall years.
11 Q. What do you base normal on?
12 A. Historical record of rainfall over, say,
13 the last 70 years approximately.
14 Q. How long has the, you said the last 20
15 years have been essentially a rainfall deficit?
16 A. Yes, based on reviews of documents I have
17 seen.
18 Q. Has there been a downward trend in
19 rainfall?
20 A. I wouldn't say a downward trend in
21 rainfall but we have had below normal rainfall in the
22 wet season since the seventies.
23 Q. Has there been any analysis to determine
24 whether or not that will, is essentially a result of
25 a new natural condition?
293
1 A. There is work ongoing by contractors with
2 the District that I am familiar with that is looking
3 at rainfall patterns to determine if part of the
4 rainfall deficit is man-induced, if that is what you
5 are referring to.
6 Q. In your determination with regard to the
7 impacts of BMPs and STAs to the Park, have you
8 assumed that the WCAs will not be experiencing
9 rainfall deficit?
10 A. Again, all the analysis of the BMPs and
11 STAs is based on generally a 10 year period of record
12 as defined in those documents. No analysis has been
13 done outside of that 10 year period.
14 Q. During the 10 year period record that you
15 are referring to there was a rainfall deficit?
16 A. That's correct.
17 Q. Have you ever looked to determine exactly
18 what percentage of the inflows into Water
19 Conservation Area 1 other than rainfall comes from
20 the EAA?
21 A. I have an understanding of the annual
22 water budget and the percentage of water that comes
23 from surface water flows and I know that over 98
24 percent of that is EAA runoff.
25 Q. What about Water Conservation Area 2A?
294
1 A. I have also looked at the annual water
2 budget for 2A.
3 Q. And Water Conservation Area 3A?
4 A. I have also reviewed those water budgets.
5 Q. With regard to Water Conservation Area 2A,
6 approximately what percentage of that comes from the
7 EAA, the inflows other than rainfall?
8 A. I believe it is somewhere in the range of
9 60 percent of the water budget inputs come from
10 surface water inflows from the EAA.
11 Q. And the other 40 percent?
12 A. Is rainfall driven.
13 Q. I am saying other than rainfall?
14 A. Other than rainfall, nearly a hundred
15 percent comes from surface water runoff from the EAA.
16 Q. What about Water Conservation Area 3A as
17 far as inflows other than rainfall?
18 A. Inflows other than rainfall, nearly a
19 hundred percent of the water would come from the EAA.
20 There is I believe 6 percent, roughly 6
21 percent of the budget is water that comes from the
22 west side of Water Conservation Area 3A through
23 S-190, S-140 and less than 2 percent comes from the
24 S-9 basin. So more than 90 percent of the flow would
25 come from EAA or runoff from the EAA passed through
295
1 the northern Water Conservation Areas.
2 Q. What percentage of water going into the
3 Park through the S-12 structures comes from the Water
4 Conservation Areas?
5 A. I don't know if I could quantify the
6 actual amount of water going into the Park.
7 Essentially all the water that passes through the
8 S-12 structures is taken out of the Water
9 Conservation Areas or the canal systems internal to
10 the Water Conservation Areas.
11 Q. What canal system directly feeds the
12 S-12s?
13 A. The L-67A canal.
14 Q. Where does the L-67A canal receive its
15 water from, what are its sources?
16 A. It receives water from primarily the Miami
17 Canal, the C-123 canal water that is passed through
18 the S-8 pump station.
19 Q. Any other source?
20 A. Some water down L-67A comes from S-9, and
21 there are additional flows through the S-11
22 structures and certainly a large contribution of
23 water comes from rainfall over the Water Conservation
24 Areas that is intercepted by the canal system.
25 Q. Other than the 12 structures, where does
296
1 the Park receive water?
2 A. The bulk of the water that comes to the
3 Park comes from rainfall.
4 Q. Other than rainfall and the S-12?
5 A. We get seepage water from the Water
6 Conservation Areas that passes underneath the levees,
7 we get water from, on the western side of Shark
8 Slough that enters the Park through the Big Cypress
9 watershed. Depending on canal operations on the
10 eastern side of the Park we get water that is
11 intercepted by the canal system as it is transported
12 into the Taylor Slough basin or the eastern panhandle
13 basin on the eastern side of the Park.
14 Q. You mentioned in the last 10 years the
15 Water Conservation Areas have been running a rainfall
16 deficit. Has the Park been running a rainfall
17 deficit within the last 10 years?
18 A. I would believe so.
19 Q. The water that comes in through the Shark
20 River Slough and down the L-67 extension, does that
21 water all originate from the Water Conservation
22 Areas?
23 A. Other than what, what would go down L-67
24 that would be rainfall south of the S-12s, it would
25 all originate from Water Conservation Areas.
297
1 Q. And with regard to the water coming in at
2 the panhandle, do you know where that water comes
3 from?
4 A. Most of the water coming into the
5 panhandle is derived from drainage of the L-31 north
6 and C-111 canal system south of Tamiami Trail.
7 Q. Has the Park ever done any water budget of
8 the Park itself?
9 A. There have been some previous water
10 budgets estimated for Everglades National Park.
11 Q. When was the most recent one done?
12 A. The most recent one that has been done is
13 the work by the Water Management District associated
14 with the Water Supply Planning Initiative that is
15 under way right now. So the water budget modeling
16 that you would see that is similar to this for the
17 water management model that has been done in 1991
18 approximately or 1992 would be the most recent water
19 budget for the Park.
20 MR. PERKO: For the record, you are
21 referring to this, you are referring to Exhibit No.
22 4?
23 THE WITNESS: That's correct.
24 A. In that case, that would be instead of at
25 the Natural System Model it would be the Water
298
1 Management Model.
2 Q. Have you reviewed that water budget for
3 the Park?
4 A. Yes, I have reviewed it. It only covers
5 portions of the Park, it doesn't cover the entire
6 Park.
7 Q. What portions does it cover?
8 A. I think it is called Everglades National
9 Park East and it covers approximately the areas from
10 the 40 mile bend on Tamiami Trail southward and stops
11 at the mangrove fringe, I believe it covers most of
12 the freshwater wetlands in Shark Slough and Taylor
13 Slough and portions of the eastern panhandle.
14 Q. Is L-28 the levee that separates or is on
15 the west-most boundary of 3A?
16 A. That's correct.
17 Q. If you extended that down or just drew a
18 line down from that, did any portion of the Park
19 water budget that you are referring to done by the
20 District cover the area west of that line?
21 A. I don't believe so.
22 Q. Did it cover essentially all the area of
23 the Park that would be east of that line?
24 A. I believe down to the mangrove fringe and
25 then following the mangrove fringe around to the east
299
1 coast would be roughly. It would cover that area
2 that the model includes within Everglades National
3 Park.
4 Q. Did that model indicate the percentage of
5 water coming in from the S-12s, the percentage of
6 water coming in from the C-111 or down at the
7 panhandle, the different percentages of water coming
8 into the various areas?
9 A. I believe it quantified those inflows,
10 yes.
11 Q. Do you recall approximately what
12 percentage, what those percentage inflows were?
13 A. I believe something in the range of 35 to
14 40 percent of the water in the water budget would
15 have been derived from surface water inflows.
16 Q. The remainder would have been rainfall?
17 A. That's correct.
18 Q. Of the surface water inflows, was there
19 also a quantification of what percentage came from
20 the 12 structures as opposed to the C-111 basin down
21 by the panhandle?
22 A. I would believe so.
23 Q. Do you recall approximately what those
24 percentages were?
25 A. I would say something like, I would have
300
1 to speculate, it probably would be something in the
2 range of about 80 percent of the flows, inflows to
3 the Park would be either through the S-12 structures
4 or through S-333.
5 Q. And the flow I believe we are discussing
6 is the flow going through S-333 receives essentially
7 a hundred percent of its water from the Water
8 Conservation Areas, is that correct?
9 A. That's primarily, yes.
10 Q. If the Park did not receive any inflows
11 would it be able to survive, and by survive I mean
12 would it be able to survive without any type of
13 ecosystem degradation solely upon rainfall?
14 A. I don't believe so.
15 Q. What is the time period covered by the
16 Water Management District Park budget we were just
17 discussing?
18 A. It would be the same time period as the
19 water budgeting the District did, probably 1979
20 through 1988.
21 Q. Given the testimony you just stated would
22 it be accurate to say that based upon your review of
23 the water budgets you have seen, and again using the
24 past 10 year record period that we have been
25 discussing, that approximately 96 to 98 percent of
301
1 the inflows into the Water Conservation Area outside
2 of rainfall originate from the EAA?
3 A. I think it is a little less than that. It
4 is over 95 percent, somewhere in that range, though,
5 yes, by far the majority of flows originated in the
6 EAA or I should say are passed through the EAA via
7 the lake. It is hard for me to separate what comes
8 into the Water Conservation Areas across that
9 boundary between regulatory flows from the lake and
10 only what is passed from the EAA.
11 Q. I understand that and for our purposes we
12 are just talking about inflows from the EAA as to
13 whether or not it originated from rainfall there or
14 actually came from the lake or other areas, we are
15 just talking about inflows from there.
16 A. All right.
17 Q. Okay?
18 A. Yes.
19 Q. Because when you were talking about a 22
20 percent decrease in outflows from the EAA, the model
21 is taking into consideration the historic inflows to
22 the EAA from other sources over the past 10 years,
23 isn't it?
24 A. It is also not affecting any water supply
25 bypasses. So water supply bypasses are not included
302
1 as part of the water reduction. That is assumed to
2 continue without any impact.
3 Q. When you say water supply bypass, what are
4 you referring to?
5 A. I am referring to periods of time when
6 water is removed from Lake Okeechobee and passed
7 through the Water Conservation Areas to meet
8 downstream water requirements as compared to
9 regulatory releases from the lake.
10 Q. The water supply bypasses are still
11 intended to flow through the STAs, are they not?
12 A. No, they are not.
13 Q. Oh, they are not.
14 A. They are not intended to go through the
15 STAs.
16 Q. I had thought when we were talking
17 yesterday we had discussed the fact that the
18 phosphorus concentration of Lake Okeechobee does not
19 meet the requirements for the interim or long-term
20 phosphorus limitations of the SWIM Plan.
21 A. I believe that's correct.
22 Q. Is it your understanding that
23 pass-throughs from the lake do not have to meet those
24 requirements prior to flowing into the Water
25 Conservation Areas?
303
1 A. It is my opinion based on reviewing the
2 documents that the water supply bypass doesn't go to
3 the Water Conservation Areas, it goes to the Lower
4 East Coast; therefore it is not water being delivered
5 to the EPA, therefore it would not have to meet the
6 requirements for the water quality.
7 Q. Using the term bypass, the historic
8 bypasses from, or perhaps bypass is a poor term to
9 use in this context, let's call it flow-through, and
10 I am referring to water that flows from Lake
11 Okeechobee through the EAA into the Water
12 Conservation Areas, okay?
13 A. Okay.
14 Q. Historically there was a flow-through in
15 the last 10 years, is that correct?
16 A. Yes.
17 Q. Are the STAs designed based upon this past
18 10 year record to have the capacity to handle the
19 historic flow-throughs?
20 A. The STAs are designed to handle the
21 historic regulatory flow-throughs but they are not
22 designed to handle the historic water supply
23 flow-throughs.
24 Q. How do you distinguish between the
25 regulatory flow-throughs and water supply
304
1 flow-throughs?
2 A. It is a distinction based on how the Corps
3 and the Water Management District are using the water
4 that is being passed through at the time.
5 If we exceed regulatory levels in the lake
6 and water releases are being made to bring lake
7 levels back down below regulation they are regulatory
8 releases. They are not being made for water supply
9 benefits to the downstream basin. If we are below
10 regulation levels and additional water is needed in
11 the Lower East Coast for water supply then water can
12 be taken out of the lake and passed through the EAA
13 and supplied to the Lower East Coast.
14 Those would be water supply bypasses or
15 water supply flow-throughs.
16 Q. Is the EAA or flow-throughs in the EAA,
17 historically has that been used as a means of
18 decreasing water in Lake Okeechobee when it is in
19 excess of its regulatory schedule?
20 A. Yes. The regulatory releases from Lake
21 Okeechobee historically had a very large component
22 passing through the EAA regulatory canals.
23 Q. Are you aware whether or not regulatory
24 releases through the EAA were contingent upon whether
25 that release would create any type of a flood danger
305
1 or flood hazard within the EAA?
2 A. That's -- I am aware of that. It is
3 correct that regulatory releases are controlled based
4 on downstream impacts.
5 Q. And as I understand it, if there was a
6 flood danger as a result of a regulatory release that
7 water would be released in other areas, be it the
8 Caloosahatchee, St. Lucie or other means of outflow
9 from the lake, is that correct?
10 A. That's correct, or it would be minimized
11 to not cause a flooding impact.
12 Q. Under the proposed BMPs for the EAA,
13 essentially this will result in greater retention of
14 water within the EAA, is that correct?
15 A. That is correct.
16 Q. As a matter of fact, part of it is raising
17 the water table within the agricultural fields, is
18 that correct?
19 A. That's correct.
20 Q. Will this result in a, if you want to call
21 it a percentage of time at which regulatory releases
22 would create a flood danger within the EAA?
23 A. It would increase the percentage of the
24 time that regulatory releases would potentially cause
25 flooding in the EAA.
306
1 Q. Would that then result in the future in
2 fewer regulatory releases because there would be an
3 increased flood danger?
4 A. More than likely that would be the case.
5 Q. Has that been considered in the design of
6 the STAs?
7 A. Yes.
8 Q. So in other words, that would probably
9 result in a smaller STA?
10 A. No. The current STA design already takes
11 that into effect so you wouldn't have to reduce the
12 size of the STAs.
13 Q. I am recognizing that but the current STA
14 design because of that factor is smaller as opposed
15 to larger, is that correct?
16 A. I would say the current STA design since
17 they were designed on the period of 1979 through 1988
18 reflect that regulatory releases from the lake are
19 much lower than they were historically already.
20 Q. And given what we have just discussed,
21 they will probably be even lower in the future?
22 A. I think there is a good likelihood that
23 they would not increase, yes.
24 Q. Is there a likelihood that they will
25 decrease?
307
1 A. I am not exactly sure because it all
2 depends on the rainfall patterns. If rainfall is
3 high in the lake and you get a lot of regulatory
4 releases out of the lake but the rainfall did not
5 drive water levels up in the EAA you could
6 theoretically have significant regulatory release
7 from the lake through the EAA. It depends on the
8 rainfall pattern under each given storm event. There
9 have been a number of historical events where
10 regulatory releases were made through the lake
11 because rainfall was not significant over the EAA
12 during that storm event.
13 Q. I recognize that, but we were discussing
14 the impacts of BMPs and again we are looking at not
15 specific rainfall events but looking at the past 10
16 year period of record, then projecting into the
17 future.
18 A. Right.
19 Q. I believe you responded or agreed that the
20 BMPs will result in a greater percentage of time that
21 regulatory releases would create a flood hazard, is
22 that correct?
23 A. I think, yes, they would have the
24 potential for increasing the flood risks.
25 Q. Given that, as you had also stated in your
308
1 opinion, it is unlikely that regulatory releases
2 would increase in the future, is that correct?
3 A. I believe that's probably true.
4 Q. Is it likely that they will decrease in
5 the future?
6 A. Again, I am not really sure. There is an
7 effort to reduce flows out of the St. Lucie and
8 Caloosahatchee River right now there is a good chance
9 therefore that regulatory releases south of the lake
10 will be an issue that is being reviewed and there may
11 be the potential for a lot more regulatory releases.
12 I am not specific about where those waters
13 would go. There is some discussion about passing
14 larger volumes of regulatory releases down the L-8
15 basin.
16 Q. But in this instance you are talking about
17 a change in water management such that for instance
18 there is a lesser concern for the danger of flooding
19 in the EAA?
20 A. In that specific case passing water
21 through the L-8 basin when the L-8 is not fully
22 developed, there would be a lesser flood risk there.
23 That's the reason why they would discharge in that
24 area as compared to down the Miami Canal or one of
25 the other agricultural canals.
309
1 Q. But again you are discussing a change in
2 water management practices, is that correct?
3 A. That's correct.
4 Q. Given that 95 percent of the inflows into
5 the Water Conservation Areas are through the EAA and
6 approximately 80 percent I believe you said according
7 to the District model of the inflows into the Park
8 are from the Water Conservation Areas, and again we
9 are ignoring rainfall for the purpose of this
10 question, is the Park heavily dependent upon water
11 coming out of the EAA for its ecological survival?
12 A. I think the Everglades in general are
13 using water out of the EAA for ecological survival.
14 And the Park is part of the Everglades, certainly. I
15 don't know if I could characterize it as heavily
16 dependent.
17 There is excess water that is removed
18 during storm events from the EAA. It is not water
19 that anybody else necessarily wants at the time it is
20 removed. So I wouldn't say that that makes us
21 dependent on the EAA in any way.
22 Q. As a matter of fact, you are talking about
23 water that is, flows into the Park from the Water
24 Conservation Areas during the dry season, during
25 periods when for instance the Park would not want the
310
1 water historically?
2 A. No. What I was referring to was times
3 when there is excess water being released from the
4 EAA because there is potential flooding in the EAA.
5 At that time there is generally excess water in the
6 downstream basins so the Park would not necessarily
7 be dependent on that additional water.
8 Q. I thought you had said the WCAs, I am
9 sorry.
10 A. Okay.
11 Q. Does ET within the Water Conservation
12 Areas change as a result of the differences in the
13 water levels?
14 A. Yes.
15 Q. How so?
16 A. The area of inundation increases or
17 decreases depending on water level. So there is a
18 greater surface water area exposed to
19 evapotranspiration. Hence you get larger or smaller
20 ET losses based on the amount of surface area exposed
21 to evapotranspiration.
22 Q. We have referred to the ponding at the
23 lower level of Conservation Area 3A. Is that
24 essentially what it sounds like, almost a pond of
25 water, open water?
311
1 A. That is correct. It is not an excessively
2 deep pond like you would find in a lake system but it
3 is extensive open water.
4 Q. The S-339 and the S-340 structures, what
5 is their purpose?
6 A. They are to divert water out of the Miami
7 Canal out into the marshes to try to reestablish
8 surface water inundation in the northern part of
9 Water Conservation Area 3A.
10 Q. Is that essentially sheetflow coming
11 across down south?
12 A. It is not a huge volume of water so it
13 doesn't reestablish sheetflow across the whole
14 northern end across 3A but establishes sheetflow
15 around the canal system primarily. And I would say
16 once you get past that, much of the water is going
17 back to the canal. The water levels in the marshes
18 are below -- lower than ground surface. So it really
19 depends on what the conditions are like but not
20 necessarily producing surface water sheetflow over
21 large areas.
22 Q. Do those structures result in increase in
23 ET in that area?
24 A. I would assume so.
25 MR. KOBELINSKI: Let's take a quick break.
312
1 (Thereupon, a brief recess was taken,
2 after which the following proceedings
3 were had)
4 MR. KOBELINSKI: Back on the record.
5 BY MR. KOBELINSKI:
6 Q. Mr. Johnson, have you ever been part of
7 the Everglades lawsuit remedy and settlement group?
8 A. Yes.
9 Q. What period of time were you part of that?
10 A. I believe the remedy committee was, it is
11 sort of an informal group, I really don't think there
12 was a group with certain people designated but the
13 remedy committee I guess was established in 1989.
14 And I am not sure how long it ran. I know we had
15 probably maybe a dozen meetings over a period of six
16 or eight months.
17 Q. You said 1989. Do you recall
18 approximately when in 1989?
19 A. No.
20 Q. About how many people were on that group?
21 A. As I said before, it is an informal group.
22 It was essentially input from a number of federal
23 agencies so it wasn't necessarily a group of people
24 that were named. It was a meeting would be
25 established and representatives from the Corps and
313
1 other agencies would show up and provide input. It
2 wouldn't necessarily be the same group of people or
3 the same number of people each time.
4 Q. To your knowledge were you at all the
5 meetings?
6 A. No, I was not at all the meetings.
7 Q. You mentioned approximately a dozen. Is
8 that approximately a dozen meetings that you attended
9 or is that the overall number for the group as you
10 understand it?
11 A. I think that's the overall number for the
12 group.
13 Q. How many meetings did you attend?
14 A. I am not exactly sure, probably in excess
15 of five or six. Approximately half of the meetings.
16 Q. When was the first meeting you attended?
17 A. The date, I do not know.
18 Q. Do you recall approximately the month?
19 A. No.
20 Q. Do you recall whether it was in the first
21 half of 1989 or the second half of 1989?
22 A. I believe the first half.
23 Q. First quarter or second quarter?
24 A. Probably the first quarter.
25 Q. And the second meeting that you recall
314
1 attending?
2 A. I believe the meetings were approximately
3 a month apart, three weeks apart. So I would say
4 approximately a month after the first meeting.
5 Q. With regard to the first meeting who
6 contacted you about attendance?
7 A. I would assume that the director of the
8 Research Center would have been the person who told
9 me that I should attend the meeting.
10 Q. You said assume which is fine, you are
11 notifying us you are assuming.
12 Do you recall specifically or not?
13 A. I believe the meetings were set up by
14 Everglades National Park primarily by our research
15 director.
16 I didn't volunteer to attend the meetings.
17 I assume I was told to attend the meetings.
18 MR. FITZGERALD: One moment, please.
19 (Pause)
20 Q. Who do you recall being at that first
21 meeting?
22 A. A number of attorneys from the Miami
23 office and the Washington office of Justice, I
24 believe some representatives from the Jacksonville
25 office of the Army Corps of Engineers and most likely
315
1 at least one representative from the US Geological
2 Survey at the Miami office. I would say those are
3 probably the groups I know of in the early settlement
4 meetings.
5 Q. Do you know whether or not you were at the
6 first meeting of the group?
7 A. I believe I was.
8 Q. Again, drawing your attention just to that
9 meeting, at the first meeting you attended, do you
10 recall who was at that meeting?
11 A. The specific people that were there, I
12 believe from the Park it would have been myself, the
13 research director, Mike Soukup, Dan Scheidt, I
14 believe from the Army Corps of Engineers, probably
15 Lewis Hornung, and I am not sure who else would have
16 been there from the Corps.
17 From the USGS I believe Aaron Higer.
18 Q. Could you spell that name?
19 A. H I G E R.
20 Q. Anyone else at the meeting?
21 A. I imagine there were other representatives
22 from the Army Corps of Engineers. I don't recall who
23 those would have been.
24 Q. Do you recall if anyone was there
25 specifically from the EPA?
316
1 A. I don't believe so.
2 Q. Fish and Wildlife?
3 A. I don't believe so. I take that back, I
4 would assume that a representative from Loxahatchee
5 National Wildlife Refuge would have been there,
6 probably Dr. Mark Maffei.
7 Q. What attorneys were present at that first
8 meeting?
9 A. I believe Suzan Ponzoli was there, Rick
10 Harrison, probably Steve Herman from Washington.
11 Those are the only people I remember.
12 Q. What was the purpose of that first
13 meeting?
14 MR. FITZGERALD: Objection. I direct the
15 witness not to answer.
16 Q. What was generally the topic --
17 MR. FITZGERALD: Objection. I direct the
18 witness not to answer.
19 MR. KOBELINSKI: Could you let me finish
20 my question, please, counsel. Is that all right?
21 MR. FITZGERALD: Please do.
22 MR. KOBELINSKI: Thank you.
23 BY MR. KOBELINSKI:
24 Q. What was the general topic of the meeting?
25 MR. FITZGERALD: Objection. I direct the
317
1 witness not to answer.
2 MR. KOBELINSKI: On what grounds?
3 MR. FITZGERALD: Privilege.
4 MR. KOBELINSKI: What privilege?
5 MR. FITZGERALD: Attorney-client, work
6 product, deliberative process and settlement, all
7 four.
8 MR. KOBELINSKI: He hasn't stated it had
9 anything to do with the settlement.
10 MR. FITZGERALD: I just told you.
11 MR. PERKO: Could you identify what
12 client?
13 MR. KOBELINSKI: Would you like to be put
14 under oath?
15 MR. FITZGERALD: I direct the witness not
16 to answer. If you want to pursue it you know how to
17 file the papers.
18 MR. PERKO: Could you identify which
19 client was present?
20 MR. FITZGERALD: He already did.
21 MR. PERKO: Is it your position that all
22 the government representatives are clients?
23 MR. FITZGERALD: There were agents of the
24 clients at that meeting as identified by the witness,
25 not necessarily all clients.
318
1 BY MR. KOBELINSKI:
2 Q. To your understanding was the Park a party
3 to the federal lawsuit?
4 MR. FITZGERALD: Objection. It calls for
5 a legal conclusion.
6 Q. You can go ahead and answer.
7 A. To my knowledge the lawsuit was filed on
8 the behalf of the National Park Service and the Fish
9 and Wildlife Service so I would say I would assume
10 that would mean we would be a party to the federal
11 lawsuit.
12 Q. To your knowledge was the USGS a party to
13 the federal lawsuit?
14 A. They were not a named member in the
15 federal lawsuit.
16 Q. Was the Park a named member of the federal
17 lawsuit?
18 A. As far as I know it was -- well, I should
19 say the lawsuit was filed on behalf of the National
20 Park Service and Fish and Wildlife Service, not on
21 behalf of the US Geological Survey.
22 Q. Was the Army Corps of Engineers a party to
23 the federal lawsuit?
24 MR. FITZGERALD: Objection. It calls for
25 a legal conclusion.
319
1 Q. You can still go ahead and answer.
2 A. Again, the lawsuit was not filed on the
3 behalf of the US Army Corps of Engineers.
4 Q. At this first meeting did you discuss
5 terms of the settlement agreement?
6 MR. FITZGERALD: Objection. I direct the
7 witness not to answer.
8 Q. What is the second meeting you remember
9 being at of the settlement and lawsuit remedy group?
10 A. Which of the meetings?
11 Q. What is the second meeting you recall
12 attending?
13 A. You said the settlement and the remedy.
14 Q. Are there two different groups?
15 A. Yes.
16 Q. Which was the group, what meeting was this
17 of the group you just described?
18 A. What you had referred to as the remedy
19 committee.
20 Q. What was the purpose of the remedy
21 committee?
22 MR. FITZGERALD: Objection. I direct the
23 witness not to answer.
24 Q. Have you been told what the purpose of the
25 remedy committee is by counsel?
320
1 A. I don't believe counsel has specifically
2 stated what the purpose of the remedy committee was
3 to me.
4 Q. Do you know what the purpose of the remedy
5 committee was?
6 A. I believe I know why the committee was
7 established.
8 Q. Do you recall who told you why the remedy
9 committee was established?
10 A. I believe it would have been my
11 supervisor, Dr. Michael Soukup.
12 Q. Do you know who told Mr. Soukup why the
13 remedy committee was established?
14 A. No, I do not know.
15 Q. Did he advise you that it was counsel who
16 told him of the purpose of the remedy committee?
17 A. He did not advise me what the purpose of
18 the remedy committee was in terms of any direction
19 from counsel.
20 Q. What did Mr. Soukup tell you that the
21 purpose of the remedy committee was?
22 A. Essentially to look at remedies to the
23 federal lawsuit.
24 Q. By remedies, what do you mean by that?
25 MR. FITZGERALD: Objection, direct the
321
1 witness not to answer.
2 Q. Did Mr. Soukup tell you what was meant by
3 remedies?
4 MR. FITZGERALD: Objection. I direct the
5 witness not to answer.
6 MR. PERKO: State the grounds for your
7 objection, counsel.
8 MR. FITZGERALD: Deliberative process,
9 settlement, under the direction of counsel,
10 privileged.
11 MR. KOBELINSKI: Could you read back that
12 question.
13 (The question referred to was
14 thereupon read by the reporter
15 as above recorded)
16 MR. KOBELINSKI: And you are instructing
17 the witness not to respond to that question?
18 MR. FITZGERALD: That's correct.
19 BY MR. KOBELINSKI:
20 Q. Mr. Johnson, I am not asking you to tell
21 me what Mr. Soukup told you, I am just asking for a
22 yes or no response.
23 Did Mr. Soukup tell you what was meant by
24 remedies?
25 A. Yes.
322
1 MR. KOBELINSKI: What was wrong with that
2 question, counsel? They are the same exact question.
3 MR. FITZGERALD: No, in my mind they
4 weren't because of the linkage between that and the
5 prior questions. To me you were asking him what he
6 was told, not the mere fact that he was told. If I
7 misunderstood that --
8 MR. KOBELINSKI: That's why I had it read
9 back, counsel. I asked for a yes or no answer.
10 MR. FITZGERALD: You got your answer.
11 Move on, counsel.
12 BY MR. KOBELINSKI:
13 Q. Did you discuss with the remedy group the
14 purpose of the remedy group, with anyone else?
15 A. I would imagine I had discussed with the
16 remedy group members the purpose of the remedy
17 committee.
18 Q. Is there a difference between committee
19 and group there?
20 A. No.
21 Q. Who all are members of the remedy group or
22 committee?
23 MR. FITZGERALD: Objection, counsel. This
24 is asked and answered. You went through this at
25 great length already.
323
1 MR. KOBELINSKI: On the contrary, I asked
2 him at this first meeting.
3 BY MR. KOBELINSKI:
4 Q. Please go ahead.
5 A. To my knowledge the remedy committee was
6 made up of different federal agencies. And the
7 specific members, as I said, would have varied
8 depending on the meeting.
9 Q. Let's go to the next meeting then of the
10 remedy group. Do you recall when the next meeting
11 was of the remedy group you attended?
12 A. As I said, I believe the meetings were
13 monthly or every three weeks. I don't know if I
14 attended the third meeting or not. I believe I
15 attended the first several. These were not meetings
16 that I volunteered for.
17 Q. You had stated that it was your
18 understanding you attended the first or initial
19 meeting, is that correct?
20 A. That's correct.
21 Q. You just mentioned you weren't sure if you
22 attended the third meeting. Did we skip a meeting
23 there?
24 A. We had discussed my attendance at the
25 second meeting previously.
324
1 Q. We did? What was that discussion?
2 A. I thought you asked me who I thought had
3 been there or how long after the first meeting the
4 second meeting had occurred.
5 Q. I believe you said it was approximately 3
6 to 4 weeks?
7 A. Right.
8 Q. But you never told me who was at the
9 second meeting.
10 A. I don't know if I remember specifically
11 who was at each of the meetings that I attended.
12 Q. Do you recall who was at the second
13 meeting?
14 A. I would assume that most of the players at
15 the first meeting were there, that would be Dr. Mark
16 Maffei from the Fish and Wildlife Service, Dr.
17 Michael Soukup from the Park, Dan Scheidt from the
18 Park, attorneys from the Miami office of the US
19 Attorney, probably Suzan Ponzoli and Richard
20 Harrison.
21 And I don't recall if attorneys from the
22 Washington office of the Justice Department were
23 there or not.
24 Q. Representatives from the Corps of
25 Engineers were at the second meeting?
325
1 A. I assume there were representatives from
2 the Corps of Engineers.
3 Q. Do you recall any specifically?
4 A. I imagine Lewis Hornung was there only
5 because I remember him attending some of the
6 meetings, I believe.
7 Q. Do you recall any other Corps
8 representative other than Mr. Hornung attending the
9 meetings?
10 A. Yes.
11 Q. Who else?
12 A. I believe Dr. Bo Smith, Hanley Smith.
13 Q. Commonly known as Bo Smith?
14 A. Commonly known as Bo Smith, attended the
15 meetings.
16 I believe other people from the water
17 management and meteorology section of the Corps, most
18 likely Jim Vearil would have attended some of the
19 meetings.
20 I don't remember any other specific people
21 that would have been there.
22 Q. I am just talking about all the meetings
23 you can recall of the remedy group. You don't recall
24 any other Corps of Engineers representatives other
25 than the three you have mentioned, Lew Hornung, Bo
326
1 Smith and Jim Vearil?
2 A. Those are the only three that I recall
3 attending meetings.
4 Q. What about USGS representatives?
5 A. I believe Aaron Higer attended a number of
6 remedy committee meetings. I don't recall any other
7 USGS employees at the Miami level.
8 Q. Anyone else from the Park other than
9 yourself and the two that you have mentioned?
10 A. I know the superintendent had most likely
11 attended several of the meetings.
12 Q. That being?
13 A. At that time it would have been Mike
14 Finley.
15 Q. Anyone else from the Park?
16 A. I don't believe there would have been
17 anyone else from the Park.
18 Q. Do you recall anyone from the Refuge other
19 than Mr. Maffei, or is it Dr. Maffei?
20 A. Dr. Maffei.
21 Q. Anyone other than Dr. Maffei from the --
22 A. Burkett Neeley attended several of the
23 remedy committee meetings, I believe.
24 Q. Anyone else from the Refuge?
25 A. No.
327
1 Q. Did you ever attend any of these meetings
2 where counsel was not present?
3 A. To my knowledge, counsel were present at
4 all of the remedy committee meetings.
5 Q. Other than the people we have just
6 mentioned do you recall anyone else in attendance at
7 any of the remedy meetings that you attended?
8 A. Yes. There were members of the US
9 Geological Survey brought in primarily from the
10 Reston office and later meetings of the remedy
11 committee, statisticians with their office.
12 There were staff members from
13 Environmental Protection Agency from I believe the
14 Atlanta office brought in at later meetings. And
15 more than likely there were other members of the Army
16 Corps of Engineers from the Jacksonville office
17 brought in over that period.
18 Q. Do you recall any of the names of any of
19 the additional USGS representatives?
20 A. I believe Robert Hirsch was present at at
21 least one meeting.
22 Q. How would you spell Hirsch?
23 A. H I R S C H, I believe.
24 Other members of the USGS Reston I guess
25 research office that dealt with water quality
328
1 statistics. I don't recall what their specific names
2 are.
3 Q. What about the EPA representatives?
4 A. I believe Mike McGee from the Atlanta
5 office was present at one of those meetings. Again I
6 don't remember exactly which one.
7 I also remember consultants for the
8 Washington US Attorney's Office being present,
9 William Walker and one of the principals at I think
10 it is Environ was present at at least one of the
11 remedy committee meetings.
12 Q. When you say one of the principals --
13 A. Either vice president or a similar office
14 at Environ.
15 Q. Do you recall what the name of that
16 individual was?
17 A. No.
18 Q. Where is Environ located?
19 A. I don't even know. I just know they had
20 done previous work with the Justice Department.
21 That's why they were brought in.
22 Q. Were the only topics of discussion at
23 these remedy group meetings remedies to the federal
24 lawsuit?
25 MR. FITZGERALD: Objection. I direct the
329
1 witness not to answer.
2 Q. Mr. Johnson, again I am looking for merely
3 a yes or no answer.
4 Were the only topics of these remedy group
5 meetings regarding remedies to the federal lawsuit?
6 MR. FITZGERALD: Objection. I direct the
7 witness not to answer.
8 Q. When was the last remedy group meeting you
9 attended?
10 A. Again, I wouldn't know the exact date. It
11 would be probably late in 1989.
12 Q. Do you know if that was the last meeting
13 of the remedy group?
14 A. I believe it probably was not.
15 Q. When was the last remedy group meeting
16 that you were aware of?
17 A. I believe they extended into early 1990.
18 Q. You also mentioned that there was another
19 group called the settlement group, is that right?
20 A. That's correct.
21 Q. Did you ever attend any meetings of the
22 settlement group?
23 A. Yes, I did.
24 Q. When was the first meeting of the
25 settlement group that you attended?
330
1 A. I don't know the specific date. I believe
2 it was in late 1990.
3 Q. Late 1990?
4 A. I believe so.
5 Q. To your knowledge did you attend the first
6 meeting of the settlement group?
7 A. Yes.
8 Q. Approximately how many meetings of the
9 settlement group were there that you are aware of?
10 A. More than a dozen but I could not tell you
11 the specific number.
12 Q. To your knowledge did you attend all of
13 them?
14 A. I did not attend all of them.
15 Q. How many did you attend?
16 A. I would say approximately four or five.
17 Q. Were there ever any meetings of the remedy
18 group that occurred after the initial meeting of the
19 settlement group?
20 A. Not to my knowledge.
21 Q. Who was at the first meeting of the
22 settlement group?
23 A. Representatives from the National Park
24 Service would have been Mike Soukup, Dan Scheidt and
25 myself. And I believe the superintendent may have
331
1 attended the first meeting but I am not sure.
2 Q. That again would have been Mr. Finley?
3 A. I believe at that time it was, yes, I
4 believe it was Mr. Finley still.
5 Q. Who else?
6 A. From the Fish and Wildlife Service it
7 would have been Mark Maffei and I believe Burkett
8 Neeley attended that first meeting.
9 From the Water Management District it
10 would have been Thomas MacVicar and Tony Federico and
11 from DER it would have been Richard Harvey and Frank
12 Nearhoof.
13 MR. FITZGERALD: N E A R H O O F.
14 There was one other person from DER I
15 remember being present at that first meeting but I am
16 not sure who that person was.
17 And those are the only people I recall.
18 Q. Was there anyone from the Corps of
19 Engineers?
20 A. I don't believe so.
21 Q. Anyone from USGS?
22 A. I don't believe so.
23 Q. Anyone from EPA?
24 A. Not to my knowledge.
25 Q. Was Mr. Walker present?
332
1 A. He may have been. I attended I believe at
2 least one of the settlement meetings.
3 Q. Anyone from Environ?
4 A. No.
5 Q. Were there any attorneys present?
6 A. I believe at that first settlement meeting
7 there were attorneys from the Miami office.
8 Q. Of?
9 A. Of the US Attorneys.
10 Q. What attorneys would those have been?
11 A. Most likely Suzan Ponzoli and Richard
12 Harrison.
13 Q. Anyone from the Washington DOJ?
14 A. Not to my knowledge.
15 Q. Do you recall whether you attended the
16 second meeting of the settlement group?
17 A. I don't recall.
18 Q. What is the next meeting of the settlement
19 group you recall attending?
20 A. I don't recall a particular date, I just
21 know I attended somewhere in the range of four or
22 five meetings.
23 Q. Do you recall any other individuals other
24 than those you have testified were at the first
25 meeting that attended any of the other meetings that
333
1 you attended of the settlement group?
2 A. Another individual from the Fish and
3 Wildlife Service, Robin Goodloe, I believe, attended
4 later meetings of the settlement committee. But the
5 group was pretty much the same group from then on,
6 the same individuals at each meeting.
7 Q. Do you recall how many meetings Mr. Walker
8 attended?
9 A. No, I don't. He did not attend the
10 majority of the meetings, though, at least the ones
11 that I attended.
12 Q. Do you know why you missed any of the
13 meetings?
14 A. I was specifically not told to attend
15 certain meetings so I didn't attend those. I only
16 attended the meetings I was told to be there.
17 Q. What meetings were you told not to attend?
18 A. I was never told not to attend meetings,
19 usually I had other commitments. I was never
20 directed not to attend a meeting. I only attended
21 meetings when I was directed to attend.
22 Q. What was discussed at this first meeting
23 of the settlement group?
24 MR. FITZGERALD: Objection. I direct the
25 witness not to answer.
334
1 MR. KOBELINSKI: Grounds?
2 MR. FITZGERALD: Attorney-client,
3 settlement, direction of counsel, maybe work product
4 as to some of this.
5 MR. KOBELINSKI: Attorney-client is one
6 objection, settlement is just a word. What privilege
7 are you referencing?
8 MR. FITZGERALD: Discussions pursuant to
9 negotiating a settlement are privileged, the United
10 States is responding to a motion by opposing parties
11 in this action at this time that is pending hearing
12 before the hearing officer in which these issues will
13 likely be addressed and resolved by the hearing
14 officer.
15 The full arguments that the United States
16 will make with regard to each of these four areas and
17 their applicability will be in a pleading filed most
18 likely today, but I have sort of abbreviated it for
19 you for our discussion, under pursuit of settlement
20 it is protected under Florida and federal law. The
21 applicable law at that time under those circumstances
22 was federal law.
23 MR. KOBELINSKI: And the last one you said
24 was work product?
25 MR. FITZGERALD: Yes.
335
1 MR. KOBELINSKI: And you are claiming work
2 product with regard to discussions with Mr. MacVicar,
3 Federico, Harvey, Nearhoof and others?
4 MR. FITZGERALD: That was not your
5 question to the witness. Your question was what was
6 discussed at these meetings and on a question that
7 broad, yes, work product would apply.
8 BY MR. KOBELINSKI:
9 Q. What did you discuss with Mr. MacVicar at
10 these meetings?
11 MR. FITZGERALD: Objection. I direct the
12 witness not to answer. No, I am not claiming any
13 work product on that.
14 MR. KOBELINSKI: Would you state the basis
15 of you --
16 MR. FITZGERALD: The first three I gave
17 before. I am not claiming work product as to that
18 yet.
19 MR. KOBELINSKI: So I understand again it
20 is attorney-client, what you refer to as settlement
21 and the third one being?
22 MR. FITZGERALD: Direction of counsel.
23 MR. PERKO: Could you explain how --
24 MR. KOBELINSKI: Wait, let me ask a
25 question.
336
1 BY MR. KOBELINSKI:
2 Q. What did Mr. MacVicar state to you during
3 these meetings?
4 MR. FITZGERALD: Objection. I direct the
5 witness not to answer.
6 MR. KOBELINSKI: Could you specify the
7 privileges you are claiming?
8 MR. FITZGERALD: The first two.
9 MR. KOBELINSKI: Attorney-client?
10 MR. FITZGERALD: No, I am sorry,
11 settlement discussions. Let's see, how would work
12 product apply to that one -- settlement discussions,
13 settlement negotiations.
14 BY MR. KOBELINSKI:
15 Q. During this first meeting of the
16 settlement group were there discussions as to what
17 would and would not be included in the Everglades
18 SWIM Plan?
19 MR. FITZGERALD: Objection, direct the
20 witness not to answer.
21 Q. During the meetings of the settlement
22 group were there discussions as to the programs to be
23 included within the SWIM Plan?
24 MR. FITZGERALD: Objection. I direct the
25 witness not to answer.
337
1 Q. During the meetings of the settlement
2 group was there a discussion of the best available
3 size for determining what the programs were the most
4 optimal for curing any perceived water quality
5 problems in the Everglades?
6 MR. FITZGERALD: Objection. I direct the
7 witness not to answer.
8 Q. What was the purpose of the settlement
9 group?
10 MR. FITZGERALD: Let me think about that
11 one.
12 (The witness and his counsel confer off
13 the record)
14 MR. KOBELINSKI: Excuse me, I have a
15 question pending. I would object to any discussion
16 between counsel and the witness while there is a
17 question pending. Either there is an objection and
18 instruction not to answer --
19 MR. FITZGERALD: I am consulting with my
20 witness regarding your question. I can either put a
21 flat objection and direct him not to answer or I can
22 see if in fact an answer to that question would
23 intrude on protected areas. Which would you prefer?
24 MR. KOBELINSKI: I would prefer if you
25 want to raise an objection, you can do so. If you
338
1 want to subsequently discuss with your client --
2 MR. FITZGERALD: I object to the question
3 and direct the witness not to answer. I am going to
4 consult with the witness. You can either take a
5 break or stand by.
6 MR. KOBELINSKI: What is the privilege,
7 before you do so?
8 MR. FITZGERALD: The privilege would be
9 depending on the nature of what the answer would be
10 it may be attorney-client, it may be direction of
11 counsel, it may be settlement. It could indeed be
12 work product as well.
13 MR. KOBELINSKI: We will take a break.
14 MR. FITZGERALD: This will only take 30
15 seconds.
16 MR. KOBELINSKI: Then we will wait.
17 (The witness and his counsel leave, and
18 reenter the room)
19 MR. KOBELINSKI: Having conferred with Mr.
20 Johnson, are you withdrawing your prior instruction
21 that he not respond to the last question?
22 MR. FITZGERALD: No, I am not.
23 MR. KOBELINSKI: Are you changing at all
24 the privilege upon which your instruction was based?
25 MR. FITZGERALD: No, I am not.
339
1 BY MR. KOBELINSKI:
2 Q. Mr. Johnson, was there a discussion during
3 the settlement group meetings of the impacts of
4 hydroperiod or altered hydroperiods upon the
5 Everglades or the Everglades Protection Area?
6 MR. FITZGERALD: Objection. I direct the
7 witness not to answer.
8 MR. KOBELINSKI: Could you state the basis
9 of your privilege and then at that point you can just
10 tell me if that basis changes for any of the
11 questions I have, but that way we will make the
12 record.
13 MR. FITZGERALD: Can you read back his
14 question.
15 (The question referred to was
16 thereupon read by the reporter
17 as above recorded)
18 MR. FITZGERALD: It is the same four
19 objections. Hereafter I will specify any that do not
20 apply if I have to direct him not to answer and you
21 want a basis.
22 BY MR. KOBELINSKI:
23 Q. Mr. Johnson, during the meetings of the
24 settlement group were there discussions with regard
25 to the impacts of nutrient-enriched waters upon
340
1 vegetation within the EPA?
2 MR. FITZGERALD: Objection. I direct the
3 witness not to answer.
4 Q. Were there discussions during the
5 settlement group meetings of whether or not there
6 were alterations in the natural Everglades ecosystem
7 at the microbial and macrophyte levels that could not
8 be accounted for solely on the basis of man-induced
9 alterations in hydroperiod?
10 MR. FITZGERALD: Objection. I direct the
11 witness not to answer.
12 Q. Were there discussions during the
13 settlement group meetings whether there were areas
14 with similar hydroperiod characteristics in the ENP
15 and throughout the EPA that demonstrate alterations
16