373
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 28, 1993
9:20 a.m. - 5:30 p.m.
21
CONTINUED DEPOSITION OF ROBERT JOHNSON
22 VOLUME IV - P.M. SESSION
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
374
1
2 AFTERNOON SESSION
3 1:10 p.m.
4 MR. KOBELINSKI: Please mark this as the
5 next exhibit.
6 (A document entitled, An Assessment of
7 Hydrological Improvements and Wildlife Benefits from
8 Proposed Alternatives for the U.S. Army Corps of
9 Engineers' General Design Memorandum for Modified
10 Water Deliveries to Everglades National Park, dated
11 June 1990, bearing Bates numbers 0946397 through
12 0946511, was marked Johnson Deposition Exhibit 5 for
13 identification)
14 BY MR. KOBELINSKI:
15 Q. Mr. Johnson, we discussed, and this was
16 actually off the record at the deposition of Brad
17 Waller, but with regard to the documents you had, you
18 at that point in time were going to take a look to
19 see what data you had that Mr. Waller had not already
20 produced at his deposition. There was discussion of
21 a list but that is not specifically necessary.
22 Did you have a chance to go through your
23 data to see if you had any additional data other than
24 what Mr. Waller had produced at his deposition?
25 A. Yes. It was provided in the box of
375
1 documents that was reviewed by your firm.
2 MR. FITZGERALD: In fact, counsel, I can
3 make something clear, you were unable to be at the
4 document review by Mr. Richards of your firm. He
5 actually was going away without copying that file or
6 the listing and I stopped him and explained what it
7 was so that he would get a copy.
8 Q. Again, this was off the record but just to
9 my understanding, there was approximately a three
10 inch thick set of data that Mr. Waller and you were
11 discussing again off the record. Is that what it
12 was?
13 A. That's correct.
14 Q. Was there a list of any additional data?
15 MR. KOBELINSKI: Because, Tom, you
16 mentioned a list also.
17 Q. Was there actually a list?
18 A. To my knowledge it was just the additional
19 stations associated with the Everglades gauging
20 program that were not put forward during Brad
21 Waller's deposition.
22 MR. WALLER: We were asking for the Corps
23 stations and that would be the rest of the Corps
24 stations. I mean, I guess that's it unless we find
25 some more.
376
1 A. To my knowledge that's all the stations
2 other than the ones that Mr. Waller already had in
3 his possession.
4 MR. FITZGERALD: They are listed in the
5 sense that on the cover page they show all of them.
6 A. The listing was a map included on the
7 front of the attachment to the hard copies and the
8 same information was provided on a diskette.
9 MR. WALLER: That is correct.
10 MR. PERKO: The same information was
11 provided on a diskette?
12 MR. FITZGERALD: That is on there. If you
13 want some of those, that is fine.
14 MR. PERKO: Okay.
15 BY MR. KOBELINSKI:
16 Q. Do you have water level data in the Park,
17 the Park itself, hydrologic data and water levels?
18 A. There is in excess of 75 record level
19 stations in the Park.
20 Q. They record what, essentially the water
21 level similar to the Corps data?
22 A. In the same basic format, daily water
23 readings or even less than daily if that is what is
24 needed.
25 Q. Is that something you could provide to us?
377
1 A. I want to make it clear this is not the,
2 the raw data is not something that I am referring to
3 in my expert opinion, that we can provide the
4 information. It is a large amount of information
5 because many of the stations go back to the 1950s.
6 MR. FITZGERALD: I think what the witness
7 is suggesting, counsel, in our review of your request
8 it did not appear to be included or responsive. If
9 you want it, then we can take a look at that.
10 A. I believe some of that information has
11 been provided previously in FOIA requests but
12 certainly not all the hydrologic information that has
13 been requested.
14 MR. FITZGERALD: I would have to look at
15 the FOIA again, but I think the FOIA requested
16 selected periods so you do have some of that.
17 MR. PERKO: Just so I understand, this is
18 hydrologic data inside the Park?
19 THE WITNESS: That's correct.
20 MR. KOBELINSKI: Yes.
21 A. The reason why I have not provided it, I
22 am not using any of the raw data to form my expert
23 opinion so it is not part of what I would have turned
24 over as part of this deposition.
25 BY MR. KOBELINSKI:
378
1 Q. What raw data are you using in the
2 formulation of your expert opinions?
3 A. The only raw data that I would have used
4 would have been information that was collected to
5 compile the review of water management in the
6 Everglades from the 1940s through 1990 report that I
7 was doing, essentially I would not directly be
8 looking at the raw data, I would be looking at some
9 sort of hydrographs or stage exceedance curves on a
10 select group of stations and all the stations that
11 would have been included in that review would have
12 been in the document.
13 Q. Which document is that?
14 A. The report on Review of Water Management
15 Changes in the Everglades 1940 to 1990.
16 Q. Those were stations primarily in the Water
17 Conservation Areas?
18 A. They were almost all in the Water
19 Conservation Areas. I believe there were five
20 stations within Everglades National Park and a number
21 of stations east of the Water Conservation Area levee
22 system.
23 Q. What were the five stations within the
24 Park?
25 A. I believe that would have included P-33,
379
1 P-36, P-38 and P-37 and I think possibly NP-205.
2 Q. Where are those stations located
3 approximately?
4 A. They are just a series of selected gauges
5 scattered within the Shark Slough and Taylor Slough
6 basins.
7 Q. Is that within the Park itself?
8 A. Within the Park.
9 Q. You had mentioned that you would be using
10 hydrographs?
11 A. As part of that study I generated a series
12 of hydrographs and stage exceedance curves for a
13 selected number of gauges around the Everglades.
14 Q. Did that include the five gauges you just
15 referred to?
16 A. I believe so.
17 Q. How did you produce those hydrographs?
18 A. I took the daily data and calculated,
19 assumed the monthly water level averages and
20 generated a plot based on monthly average water
21 levels. Then I took the average monthly water levels
22 and combined them in a file and did frequency
23 analysis to determine the percentage of the data that
24 exceeded a particular water level.
25 Q. For what period of time?
380
1 A. It would have been for the period of
2 record for each individual gauge. Several of the
3 gauges begin 1953. Others begin later. But it would
4 be through, I believe, the initial analysis was
5 through 1989.
6 Q. And was that primarily Corps data you were
7 using?
8 A. The stations within the Water Conservation
9 Areas would be primarily Corps data. The data within
10 the Park would have been Park Service data or prior
11 to 1980 would have been US Geological Survey data.
12 And the remaining data were stations
13 collected either by USGS or Water Management
14 District.
15 Q. The hydrographs and the data you are
16 referring to in these additional stations, is this
17 something you did and that you are relying upon for
18 your expert opinion in the Everglades SWIM challenge
19 administrative proceedings?
20 A. I would say it forms the basis of my
21 knowledge on water management and hydrology in the
22 Everglades.
23 Q. So would that be then, yes, this is
24 something that you are relying upon for your expert
25 opinion?
381
1 A. If I am called upon to testify about
2 hydroperiods in the Everglades, this is the kind of
3 information I would use.
4 Q. At this point in time do you intend to
5 provide expert opinions as to hydroperiods in the
6 Everglades at the final hearing?
7 A. I don't know.
8 Q. Let's explore that a bit more then.
9 Did you in the Corps data that you were
10 using to prepare your hydrographs, was there missing
11 data?
12 A. Yes.
13 Q. What did you do when there was missing
14 data?
15 A. I did not use those periods.
16 Q. How would you go about calculating average
17 monthly water levels, then?
18 A. If a month had more than generally 20 days
19 worth of data, the average would be calculated based
20 on those 20 days. If the month had generally less
21 than 20 days, that monthly value would not be
22 included in the analysis.
23 Q. Are you familiar with how the USGS goes
24 about estimating missing data?
25 A. Yes.
382
1 Q. Did you estimate missing data using the
2 USGS method?
3 A. No.
4 Q. Why not?
5 A. I take that back. On some of the
6 stations, particularly the ones maintained by the
7 USGS or the National Park Service, the people that
8 were collecting the data and maintaining the data
9 bases may have done data estimation. Some of our
10 Park stations I believe there has been data
11 estimation done. I personally have not done any
12 estimation work. That is just not part of my job.
13 Q. How does the National Park Service go
14 about estimating data when it does, though?
15 A. Essentially the same method that is used
16 by the USGS.
17 Q. And you sat through Mr. Waller's
18 deposition, is that correct?
19 A. Yes, I did.
20 Q. Have you also reviewed the work that he
21 has done?
22 A. I have not specifically gone through and
23 looked at his data estimations. I have reviewed in
24 general the documents that were provided.
25 Q. Given your knowledge of how USGS estimates
383
1 data and how the National Park Service estimates its
2 missing data, is there any difference between their
3 methods of estimating data and the method used by Mr.
4 Waller?
5 A. Not to my knowledge.
6 Q. The data that the USGS publishes actually
7 includes estimated data, does it not?
8 A. That is correct.
9 Q. Is there any indication by the USGS as to
10 which of its data that it is reporting is estimated
11 and which is the actual?
12 A. Generally when the data is presented in a
13 data base it is flagged as being estimated data.
14 Q. Did you use any USGS data in your
15 hydrographs or in your studies?
16 A. Yes, I did.
17 Q. Did you use the USGS estimated data or did
18 you disregard that data?
19 A. I used the monthly average water levels
20 that the USGS would have already generated, and they
21 used estimated data in many cases to come up with
22 that monthly average.
23 Q. Have you produced the hydrographs then
24 that you developed?
25 A. Yes.
384
1 Q. And the hydrographs you are referring to
2 are in the paper?
3 A. That is correct.
4 Q. Do you have any of the backup as to how
5 you calculated the monthly averages and which months
6 had missing data?
7 A. I am sure I have a copy of all of the data
8 on diskettes, both the monthly data that I used and
9 any of the daily data that had to have monthly
10 averages calculated for it.
11 MR. KOBELINSKI: Tom, at this point it is
12 unclear whether or not, as a matter of fact, it is
13 what the witness testified, he is unclear whether or
14 not he will specifically be relying upon this
15 information in providing final testimony. If he is
16 relying upon hydrographs in his analysis of data of
17 Mr. Waller's I assume we would want to see the backup
18 information, raw data showing which months he ignored
19 estimated data and which months --
20 MR. FITZGERALD: I understand what you are
21 saying. But bear in mind that I don't have the
22 backup data for Mr. Waller's work. You have not
23 provided that.
24 MR. KOBELINSKI: We provided the raw data,
25 we provided the initial hydrographs showing where
385
1 estimated data was done and then we provided the
2 finals which had any last minute corrections and the
3 final hydrographs.
4 MR. FITZGERALD: Did I misunderstand at
5 the prior proceeding or prior deposition Mr. Waller
6 didn't do that work but had it done by another
7 company for him and they had all the data in
8 manipulative form?
9 THE WITNESS: Computerized form.
10 MR. KOBELINSKI: You have a printout of
11 everything they have.
12 MR. FITZGERALD: I will be happy to give
13 you a printout if you need that. It will take some
14 time.
15 MR. KOBELINSKI: What I am saying, I don't
16 know if it is necessary.
17 MR. FITZGERALD: I suspect that data,
18 though, is the same data that was discussed at the
19 depo to try and figure out what data to hand over
20 that you already have.
21 MR. KOBELINSKI: It may be, but apparently
22 there is a situation where the witness uses USGS, he
23 was using estimated data and for some months he
24 testified he excluded some missing data.
25 MR. FITZGERALD: I think you misunderstood
386
1 his testimony.
2 MR. KOBELINSKI: Let's go back.
3 BY MR. KOBELINSKI:
4 Q. In calculating your monthly averages were
5 there some months if the missing data was less than
6 ten days you would just calculate the monthly average
7 with the remaining days that you had?
8 A. Yes.
9 MR. KOBELINSKI: That is not the method
10 that Mr. Waller used so that's why we need that.
11 MR. FITZGERALD: I am not telling you how
12 to run it but I think we are talking about data
13 derived from different sources, not the Corps data or
14 USGS data, rather. You need to distinguish between
15 the WCAs and NPS. That is the confusion.
16 BY MR. KOBELINSKI:
17 Q. Where we are talking about missing data
18 are you referring to the Corps data?
19 A. There is missing data from all sources
20 that was used in the study, from the Water Management
21 District, Army Corps of Engineers, USGS and National
22 Park Service.
23 Q. When you encountered missing data would
24 you follow the procedure you explained a few moments
25 ago which was if there was at least 20 days -- 20 or
387
1 21?
2 A. Approximately 20.
3 Q. Then you would just calculate the monthly
4 average using the 20 data points provided or that you
5 had and if there was less than 20 you would skip that
6 month? Is that essentially correct?
7 A. That's correct. The only time that was
8 not done was the period of time where the USGS only
9 reports every fifth day values, in which case it was
10 impossible for me to go back and secure the actual
11 daily values during that period.
12 MR. KOBELINSKI: Again, unless I am
13 misunderstanding the witness, since Mr. Waller was
14 estimating missing data and the witness would either
15 ignore the month or just use the data points he had
16 if it was 20 or more, they obviously did use two
17 slightly different methods. So we have to see
18 exactly what impact if any that would have upon the
19 different hydrographs they prepared.
20 But as I said, it is not clear that the
21 witness will be relying upon this at this point.
22 BY MR. KOBELINSKI:
23 Q. So if the occasion arises we will have to
24 look at that data to see exactly what you have done.
25 A. I would say I am not relying on the daily
388
1 values to make my analyses, all the analyses I am
2 doing are on period of record data from the 1950s on.
3 And I am analyzing hydrographs based on monthly data
4 over that long period, not annual hydrographs.
5 In the case of what Mr. Waller was doing,
6 he was generating annual hydrographs in which case
7 daily missing data would have a much more significant
8 impact than if he was generating a hydrograph based
9 on monthly data over a longer period of time.
10 Q. Again, since you sat through Mr. Waller's
11 deposition have you essentially both covered the same
12 period of record?
13 A. On a number of gauges that is correct.
14 Q. Where have you covered a different period
15 of record than that covered by Mr. Waller in the
16 gauges that you have analyzed?
17 A. On the stations that were in the
18 Everglades gauging program that were not analyzed by
19 Mr. Waller which would be that set of documents I
20 provided to you on hard copy and on diskette.
21 On the stations within the Everglades
22 National Park that I analyzed that apparently Mr.
23 Waller did not analyze any data in that area; and on
24 stations east of the Water Conservation Areas where I
25 analyzed stations that Mr. Waller did not.
389
1 Q. When you refer to east of the Water
2 Conservation Areas, you are referring to areas that
3 are outside the Everglades Protection Area?
4 A. That is correct.
5 (Pause)
6 Q. For the stations that, other than those
7 that you referred to that Mr. Waller has not
8 analyzed, in other words, the stations that both of
9 you apparently are doing, would the correct term be
10 inundation analysis?
11 A. Yes.
12 Q. For those stations, will you be using the
13 same data set that Mr. Waller used?
14 A. For the ones that are in common between
15 the two of us, it would be the same daily data. It
16 was entered by two different agencies, or in his case
17 a company, so there may be slight differences in the
18 data entry if there was an error in data entry but
19 theoretically it should be the same data base, they
20 were taken from the same source.
21 Q. Do you recall what the gauges were outside
22 of the Water Conservation Areas, the east station
23 that you reference and also the gauges within the
24 Water Conservation Areas that you have covered and
25 Mr. Waller has not? Could you list those for me?
390
1 A. Outside of the conservation areas it would
2 be --
3 Q. Let me make the question a little simpler.
4 Could you tell me the gauges that you have covered
5 that Mr. Waller has not?
6 A. To the east of the conservation areas it
7 would be gauges G-616.
8 Q. 6 or 16?
9 A. 616, G-617, G-975, G-789, G-596, G-613,
10 F-358. I believe those are the only gauges to the
11 east of the Water Conservation Areas that I looked
12 at.
13 Within the Water Conservation Areas the
14 gauges that I looked at that I believe Mr. Waller did
15 not look at were gauges 1-5, 1-10, 1-11, 3-23, 3-27,
16 3-30, 3-31. Those are the only ones I could probably
17 recall without looking at the map and the comparison
18 of the two listings. But essentially we looked at --
19 Q. And the ones you mentioned in the Park you
20 mentioned before?
21 A. Right. We looked at all the Everglades
22 gauging program gauges, we tried to secure data on
23 all of those gauges. Any of them that had a record
24 longer than generally a few years were, we were
25 attempting to put in our data base.
391
1 Q. Are there any stations that Mr. Waller
2 included in his analysis that you have not included
3 in yours?
4 A. Not to my knowledge.
5 I take that back. The exclusion is that I
6 did not use some of the water control structures that
7 Mr. Waller was using such as the S-10 gates.
8 Q. Having now defined that group of data then
9 that is outside of Mr. Waller's data set, that is
10 what we would be interested in.
11 A. Okay.
12 Again, now, am I just providing you in the
13 format that I would use as an expert opinion on this
14 case or am I providing you on the computer disk daily
15 data that I am not going to personally use to form my
16 expert opinion?
17 Q. I need the raw data to be able to check to
18 see if we agree with the format you are then using it
19 in.
20 A. Okay.
21 Q. Otherwise we wouldn't be able to go ahead
22 and check to see if, be it even purely mathematical
23 whether or not that mathematical process was done
24 correctly.
25 A. Likewise, the statements I made about my
392
1 data agreeing with Mr. Waller's could not be verified
2 unless you provide me in computer format all of the
3 daily data that Mr. Waller is using to generate
4 hydrographs and stage exceedance curves, otherwise my
5 statement that our data is in agreement is not
6 correct because I do not know.
7 Q. I thought Mr. Waller provided hard copy of
8 each daily data point.
9 A. That is correct, but there is no way for
10 me to go back and verify all of the data on hard
11 copies against everything we have on a computer.
12 Q. You are just talking about mechanical
13 process --
14 A. Mechanical process of comparing two data
15 bases.
16 Q. All right.
17 Are you aware of what portions of the Park
18 have been topographically surveyed?
19 A. Yes, I am.
20 Q. What portions?
21 A. The area of Shark Slough extending from
22 Tamiami Trail to approximately 4 kilometers south of
23 Mahogany Hammock, from the levee on the eastern side
24 of Shark Slough over to the mangrove fringe. So
25 essentially all of the freshwater wetlands in Shark
393
1 Slough have been surveyed.
2 The area of Taylor Slough north of the
3 main park road and the majority of the wetlands of
4 Taylor Slough from the main park road down to
5 approximately 6 kilometers from the coastline and the
6 area of the eastern panhandle from essentially the
7 Park boundary southward, I would say 4 to 6
8 kilometers have been surveyed.
9 Q. Were those surveys all done at the same
10 time or was that area all surveyed at the same time?
11 A. No.
12 Q. The area surveyed essentially just at one
13 or two different times or a whole mass of different
14 surveys?
15 A. There were four different survey efforts
16 to generate all that information.
17 Q. When did those four efforts take place?
18 A. The first one was done in 1987, I believe
19 the remaining surveys were done in 1992.
20 Q. Are those surveys of the, let's refer to
21 it as the soft bottom, the substrate top, the peat?
22 A. That's correct.
23 Q. Do you also have surveys of the hard
24 bottom?
25 A. There are soundings on the survey lines at
394
1 some irregular intervals but it is not as frequent as
2 the soft bottom survey.
3 Q. Do you recall approximately how frequent
4 the soft bottom survey intervals are?
5 A. I believe our survey required that they
6 are done every 400 feet approximately.
7 Q. What section was done in, was it 1988 the
8 initial?
9 A. 1987.
10 Q. 1987, I am sorry, what section was done
11 then?
12 A. All of the Shark Slough Basin in the area
13 of northern Taylor Slough.
14 Q. Northern?
15 A. Northern Taylor Slough.
16 Q. You mentioned a total of four. Was it
17 then physically divided into four geographic
18 sections?
19 A. They were all done under different
20 projects. The Park received some funding to survey
21 the Shark Slough Basin and that survey was done in
22 1987. It was completed in 1987.
23 The additional surveying that was done in
24 the Taylor Slough and eastern panhandle areas was
25 done with joint funding with the Park Service, the
395
1 Water Management District and the Corps of Engineers.
2 Q. What are the other, what was surveyed then
3 in 1992 or completed in 1992?
4 A. The central portion of the Taylor Slough
5 portion, the southern portion of the Taylor Slough
6 basin and the eastern panhandle basin.
7 Q. Why was that surveyed?
8 A. Primarily to provide the background
9 information needed for the C-111 GRR.
10 Q. Why was the Shark River Slough and Taylor,
11 portion of the Taylor Slough surveyed in 1987?
12 A. That was done initially to look at the
13 effects of the experimental water delivery program in
14 Shark Slough.
15 Q. Does that survey then go outside the Park?
16 A. The lines extend a short distance into Big
17 Cypress on the western side of the Park.
18 Q. Do they extend east of the L-67 extension?
19 A. Yes.
20 Q. How far east?
21 A. All the way to the L-31 north levee.
22 Q. So essentially they go from the east side,
23 the L-31 levee all the way to Big Cypress on the
24 west?
25 A. That's correct.
396
1 Q. And they commence where, Tamiami?
2 A. Tamiami Trail southward to approximately I
3 believe it was four miles south of Mahogany
4 Hammock -- 4 kilometers.
5 Q. Where is Mahogany Hammock?
6 A. It is on the main park road approximately
7 10 miles north of Flamingo. It is in the southern
8 part of the Shark Slough Basin.
9 Q. Is that part of your paper, the survey
10 part of the paper that you presented?
11 A. No.
12 Q. Does the District have a copy of the '92
13 survey?
14 A. Yes.
15 Q. Does the District have a copy of the '87
16 survey?
17 A. Yes.
18 Q. Do you know who at the District has that?
19 A. It has been used as the data base for the
20 topography in the South Florida Water Management
21 Model so the people that I know would have it are the
22 people working with that model.
23 Q. Who are those people that you are aware of
24 working on that model?
25 A. The data that was turned over to Dewey
397
1 Worth. I believe now Calvin Neidrauer would have the
2 data as well as Lehar Brion and probably Jayantha
3 Obeysekera.
4 Q. Could you spell Brion?
5 A. B R I O N.
6 Q. Mr. Johnson, I am showing you what has
7 been marked as Exhibit 5 to this deposition. It is a
8 lengthy document which on the front page is entitled,
9 An Assessment of Hydrological Improvements and
10 Wildlife Benefits from Proposed Alternatives for the
11 U.S. Army Corps of Engineers' General Design
12 Memorandum for Modified Water Deliveries to
13 Everglades National Park, dated June 1990 and bears
14 Bates numbers ENP 0986806 through ENP 0986913.
15 I would ask if you would go through and
16 take a quick look at that and tell me if you have
17 ever seen that before.
18 (Pause)
19 A. Yes, I have.
20 Q. What is that, sir?
21 A. It is an ecological assessment of a series
22 of four proposed water management alternatives
23 associated with the modified water deliveries GDM.
24 Q. Did you draft any portions of this
25 document?
398
1 A. Yes, I did. I wrote all of the portions
2 relating to the hydrologic analyses and I was the
3 major editor on the entire document. So I had a
4 significant input on the summary sections such as the
5 conclusion sections and the executive summary.
6 Q. If you could go ahead and very quickly go
7 through this document, just essentially identifying
8 the sections that you have authored or co-authored.
9 A. In the introduction section, I wrote all
10 of the sections of the introduction section except
11 the Wildlife Responses to Past Water Management.
12 Q. That would be on Bates pages 0946404 where
13 the introduction starts.
14 MR. KOBELINSKI: Off the record.
15 (Discussion off the record)
16 BY MR. KOBELINSKI:
17 Q. Drawing your attention to the introduction
18 page which is Bates page ENP 0986811, were you the
19 author of any portion of this page?
20 A. I was the author of this section up to and
21 including page 0986815.
22 Q. That is also on the document listed as
23 page 5?
24 A. That's correct.
25 Q. Were you the primary author of this? You
399
1 had mentioned on the introduction you were sort of a
2 coauthor of sections.
3 A. I wrote this section of the report and
4 many other people edited it.
5 Q. So for instance, this section does not
6 include solely your opinions but rather is a
7 combination of opinions of the Park authors or
8 contributors to this report?
9 A. That's correct. I would say approximately
10 nine different people on our staff reviewed and wrote
11 editorial comments on this document.
12 Q. Who were the primary authors of the
13 document?
14 A. The people who contributed to the analyses
15 in terms of writing particular sections were
16 primarily myself, Sue Von Hatten, John Ogden, Marty
17 Fleming and Bill Loftus.
18 And then much of the GIS analyses were
19 contributed by David Buker. And then we had a number
20 of people that edited the document or were
21 technicians on projects and did graphics on
22 particular portions of the document.
23 Q. Moving on then past page 5, were there any
24 other sections of this document that you drafted?
25 A. Beginning on page 0986818.
400
1 Q. Which bears what page by the document?
2 A. Page 8.
3 Q. Thank you.
4 When you say beginning, are you referring
5 part way down the page to where it says, Southern
6 Everglades Ecosystem Restoration Goals?
7 A. That's correct.
8 From that page through page 0986820 or
9 page 11 of the document, I wrote all of those
10 sections.
11 Q. Including this section entitled,
12 Recommended Approach to Selecting the Preferred
13 Alternative on page 11?
14 A. That's correct.
15 Q. Were any other portion of this document
16 drafted by you?
17 A. Beginning on the next page.
18 Q. 12?
19 A. This would be page -- this document goes
20 from 11 to 13 so I am not sure where page 12 is.
21 MR. FITZGERALD: Are the Bates stamps
22 sequential?
23 THE WITNESS: No, they are not.
24 MR. KOBELINSKI: Off the record.
25 (Discussion off the record)
401
1 BY MR. KOBELINSKI:
2 Q. Did you other than the portions of the
3 document that you are reviewing right now, did you
4 draft any other portions of the modified water
5 delivery GDM?
6 A. The only part that Everglades National
7 Park wrote is this document that was included in its
8 entirety in the EIS for the modified water deliveries
9 GDM.
10 Q. I take that as a no.
11 A. Many of my figures and tables were used in
12 the, either in the EIS itself by the Army Corps of
13 Engineers staff or by the Fish and Wildlife Service
14 staff who did the coordination report for the
15 endangered species portion but I did not write any of
16 the other text.
17 BY MR. KOBELINSKI: I think it is probably
18 best just to let the record reflect that we are going
19 to go ahead and change the exhibit. It will be the
20 same exhibit but since we do appear to have at least
21 one missing page we will be marking as Deposition
22 Exhibit 5 the same document but it will be bearing
23 Bates numbers 0946397 through 0946511.
24 (Johnson Deposition Exhibit 5 for
25 identification was remarked, the new exhibit bearing
402
1 Bates numbers 0946397 through 0946511)
2 BY MR. KOBELINSKI:
3 Q. Again, is this the Park assessment of the
4 GDM, the Corps' modified water deliveries GDM?
5 A. Yes, it is.
6 Q. Since we have previously before identified
7 the sections you have drafted, not only by Bates
8 pages but also the page numbers of the document
9 itself, I don't think we need to go back.
10 As a result, if you turn to page 12 is
11 where I believe you left off.
12 You were stating the next section that you
13 had drafted was --
14 A. Beginning with page 13.
15 Q. From the top?
16 A. Yes, through Table 3 on page 15.
17 Q. Anything else in this document, sir?
18 A. Yes. Beginning on page 20 in the results
19 section, and extending through the first paragraph on
20 page 58, I wrote all of those sections.
21 Q. Does that cover everything you had drafted
22 in this document, sir?
23 A. No.
24 Q. What would be the next section?
25 A. I don't know if you want me to refer to
403
1 specific graphics within the wildlife section.
2 Q. Which graphic would that be that you are
3 referring to?
4 A. Page 69, I did the analysis for Figure 34
5 and I did some of the text explanations of those
6 changes that are listed in the next couple of
7 paragraphs, exclusive of the relationship between
8 food base and wood storks.
9 Beginning on page 72, I did the section
10 beginning on the last paragraph, exclusive of
11 analyses of snail kite dispersal and its explanation
12 of Figure 37.
13 What I am trying to say is on this section
14 of the report which began on page 72, this section
15 includes hydrologic analyses and biological
16 assessment of the impacts on snail kite, I wrote the
17 hydrologic section portions in this section and other
18 people contributed to the biological sections.
19 So that would continue through up to page
20 94, all of the sections that would have been
21 hydrologic analyses in that I would have done the
22 work or supervised the work.
23 And beginning on page 94 through 95, and
24 then I drafted the references section beginning on 98
25 through 99, and all of Appendix A is my work which
404
1 would be page number, I have the D numbers, D-308
2 through D-316, which is Table No. 8.
3 To my knowledge that would have been
4 everything I would have done on this report.
5 Q. With regard to the section commencing on
6 72 and terminating on 93, you stated you had drafted
7 the hydrological portion of that but not the
8 biological. Why didn't you draft the biological
9 portion?
10 A. Because other scientists did the
11 assessment of snail kites in terms of snail kites
12 biology. Most of this was done by Marty Fleming.
13 Some of it is data reported from other findings of
14 snail kites by other scientists outside of the Park
15 Service such as Table 15. I believe most of this,
16 the biological section on the snail kites was done by
17 Marty Fleming.
18 Q. Why is it that Mr. Fleming did that as
19 opposed to yourself?
20 A. Mr. Fleming is a wildlife biologist and is
21 much more familiar with snail kites than I am.
22 Q. Did you in your analysis you have just
23 gone through or the portions you have drafted of this
24 report, did you draft any sections on vegetative
25 impacts resulting from hydroperiod?
405
1 A. Not to my knowledge.
2 Q. Did someone else do that for the Park?
3 A. I don't believe that there is an
4 assessment on vegetative impacts. I don't know the
5 effects of inundation on the suitable nesting habitat
6 for the snail kite which dealt with increased water
7 depths and its effect on nesting sites.
8 Q. With regard to the pages 94 and 95,
9 summary and discussion section that you had drafted,
10 are these all of your conclusions or is this a
11 composite that you put together based upon input from
12 all authors?
13 A. Again, it would be a composite of all the
14 authors and reviewers at the Park.
15 Q. Is there anything in the sections that you
16 have drafted that based upon subsequent data or
17 information that you have reviewed or seen that would
18 contradict or otherwise put in question any of the
19 portions that you have drafted in this report?
20 A. Can you repeat the question?
21 Q. Okay. Are the portions that you have
22 drafted, are they still valid and correct to the best
23 of your knowledge?
24 A. Based on the output that was provided at
25 the time, yes.
406
1 Q. That was my question. Is there anything
2 subsequent to your drafting this document that you
3 have now reviewed or subsequently reviewed that would
4 contradict or change anything that you drafted for
5 this report?
6 A. Not to my knowledge.
7 Q. So to the best of your knowledge of the
8 sections that you have drafted they are still correct
9 based upon the data that you have thus far reviewed?
10 A. Yes.
11 Q. With regard to your expert opinion as to
12 the impact or lack thereof of STAs upon the water
13 supply to the Park did you rely at all on the Florida
14 Water Management Model or the Natural System Model?
15 A. I relied upon the South Florida Water
16 Management Model.
17 Q. How so?
18 A. I reviewed output generated from the South
19 Florida Water Management Model both done by the Army
20 Corps of Engineers and the Water Management District.
21 Q. And the output specifically that you
22 reviewed or relied upon?
23 A. Would be the analysis that was done by the
24 Army Corps of Engineers in 1990 on the larger STA
25 design, I think it was 74,000 acres, the early and
407
1 the later work by the District on 58,000 and then
2 35,000 acre.
3 Q. Including that work done by Mr. Neidrauer?
4 A. Yes, that is correct.
5 Q. Are you satisfied as to the accuracy of
6 the South Florida Water Management Model?
7 A. I believe it is the best available tool at
8 the time.
9 Q. Is the Park Service in the process of
10 attempting to improve that model?
11 A. Yes.
12 Q. And that is in a cooperative project with
13 the District?
14 A. With the District and the Army Corps of
15 Engineers.
16 Q. Is that going to be, I don't mean it
17 sarcastically, an ongoing and sort of never-ending
18 process?
19 A. Most of the changes in the model are
20 expected to be completed by April '93.
21 Q. I assume, though, I guess you always will
22 be attempting to improve it if possible?
23 A. That's correct.
24 Q. And adding, of course, new data?
25 A. Yes.
408
1 Q. April 1993, are there particular specific
2 improvements that will be or tasks that will be
3 completed at that time?
4 A. There is a list of proposed improvements
5 that was generated through a series of interagency
6 meetings between Park and District staff.
7 Q. What portions of those tasks are being
8 conducted or participated in with the Park Service?
9 A. The Park Service developed version 4.0 of
10 the Natural System Model, the specific improvements
11 in the Natural System Model would include revisions
12 to the evapotranspiration algorithm, revisions to the
13 overland flow algorithm and revisions to soil
14 infiltration algorithms.
15 Q. Essentially the revisions done by the Park
16 Service, was one primary purpose just to make them
17 more user friendly?
18 A. Most of those revisions were done to
19 improve the solution algorithms.
20 Q. So that would not be --
21 A. Make them more accurate.
22 Q. Anything else that is being worked on by
23 the Park?
24 A. The Park has spent much time compiling
25 historical elevation data, historical data on water
409
1 levels in Lake Okeechobee, channel geometry of the
2 coastal rivers, we have reviewed the hydrologic
3 parameters of the underlying aquifer and we have
4 reviewed the rainfall data base and generally made
5 recommendations in a lot of those areas.
6 Q. The information that you are discussing
7 that has been gathered or is in the process of being
8 gathered, have those already been added to the model?
9 A. Some of those have been.
10 MR. PERKO: So we understand, we are
11 talking about the NSM model?
12 THE WITNESS: We are talking the
13 algorithms in the Natural System Model and the Water
14 Management Model are exactly the same. Any
15 modifications you make in the NSM you have to make in
16 the South Florida Water Management Model.
17 MR. PERKO: Okay.
18 BY MR. KOBELINSKI:
19 Q. Who is the keeper of the model?
20 A. At the Water Management District they
21 actually do have people that are responsible for
22 updating and maintenance of the models. It was Ray
23 Santee for the South Florida Water Management Model.
24 I believe it still is. The Natural System Model at
25 the District I would believe is probably Randy Van
410
1 Zee.
2 Q. I guess my question is this: If you have,
3 the Park has a version of a model and the District
4 has a version of a model and you are tinkering with
5 it in different ways you will end up with two models.
6 Is there one essentially master model that is being
7 added to by the parties?
8 A. Each time improvements are being made the
9 agencies get together and agree upon which
10 improvements will be incorporated into the next
11 version of the model. That is how we got from
12 version 3.4 to 3.6 to 4.0, nothing is added to this
13 new version until the agencies agree.
14 Q. So essentially you both have the model on
15 your computers but you have the same model because
16 any additions, deletions or changes are agreed to
17 prior to those changes being made?
18 A. That's correct, as well as the Army Corps
19 of Engineers.
20 Q. You had mentioned yesterday that you are
21 in the process of a study of the hydroperiod in high
22 nutrient impact areas compared to hydroperiod in
23 background areas?
24 A. Correct.
25 Q. Will you be working with a botanist on
411
1 that?
2 A. Not for the hydroperiod portions.
3 Q. Will you be working on vegetative
4 portions?
5 A. I will be providing input and
6 theoretically the botanists will be looking at the
7 hydroperiod analyses.
8 Q. Who is the botanist?
9 A. I don't believe it has been decided
10 specifically who will work on that part of the
11 project.
12 Q. Have you considered anyone as yet?
13 A. It would most likely be one of the
14 botanists who work for the Park currently.
15 Q. And those are?
16 A. Bob Doren and Thomas Armentano.
17 Q. Are those the only two botanists?
18 A. That's correct.
19 Q. Is there anyone else that is intended to
20 be involved in this study?
21 A. I believe they had discussed working with
22 Suzanne Comptor who is a botanist at Florida
23 International University.
24 Q. Can you spell that last name?
25 MR. FITZGERALD: C O M P T O R?
412
1 A. I believe so, Suzanne Comptor.
2 Q. Do you know whether or not any of those
3 three individuals you just have named have been
4 conducting any portion of the studies as yet?
5 A. Yes.
6 Q. Which of those three individuals you just
7 mentioned have been conducting the study?
8 A. Bob Doren and an assistant that worked
9 with him at the time, Lou Whitaker, have completed
10 much of their analysis.
11 Q. Where was that analysis done?
12 A. Water Conservation Area 1, Water
13 Conservation Area 2A, Water Conservation Area 3A and
14 in the portion of Shark Slough downstream of S-12C.
15 Q. 1, 2A, 3A and downstream of S-12C?
16 A. That's correct.
17 Q. Yesterday you had mentioned that you at
18 this point are just considering structures to be used
19 for your study. Are you going to attempt to match up
20 the areas that Mr. Doren has used for his portion of
21 the study?
22 A. Yes.
23 Q. Have the sites then essentially already
24 been selected by virtue of the fact that as you put
25 it is practically complete?
413
1 A. I would say it is my responsibility to
2 pick which hydrologic sites are most appropriate to
3 bracket the area that he has been doing his work in.
4 Q. Is there anyone from the Refuge or the
5 federal wildlife service working on this?
6 A. I believe Mark Maffei most likely assisted
7 in the location of the transects within the
8 Loxahatchee National Wildlife Refuge but I do not
9 believe he was involved in any of the analysis.
10 Q. Yesterday you had mentioned the headwater
11 for S-12. What does that mean in relation to this?
12 A. We were probably talking about upstream
13 water level on one of the S-12 structures as compared
14 to the tail water on a particular structure.
15 Q. A few moments ago you mentioned that Mr.
16 Doren has studied downstream of S-12C?
17 A. That's correct.
18 Q. Is that an area that you intend to do a
19 hydrologic analysis on?
20 A. Yes.
21 Q. Let me go ahead and read off what I have
22 as the stations you had identified yesterday. I want
23 to confirm that there are none others that you can
24 recall at this time you are considering.
25 I have stations 1-7, 1-8C, 1-8T, 1-9,
414
1 2A-17, 2B-21, 2A-15, 2A-19, structures you had
2 identified as S-10 and S-11, also S-39 -- excuse
3 me -- 3-39, 3-40.
4 A. I think that's S-339 and S-340.
5 Q. Those are the spreader structures?
6 A. Yes.
7 Q. S-151, and then also in 3A you had
8 identified 3A-3, 3A-4, 3A-28 and 3A-2.
9 A. That's correct.
10 Q. Are there any other structures you were
11 considering for this study? You also now mentioned
12 downstream of S-12C.
13 A. Right. I am performing my analysis
14 primarily to characterize the hydrologic changes
15 throughout the Everglades from 1940 through 1990 as
16 part of my paper on the review of the water
17 management changes.
18 Once all that data is compiled the
19 individual stations that are in the areas adjacent to
20 the vegetation transects and water quality studies
21 will be used so that would be some subset of all of
22 the stations that I will be looking at. I believe my
23 total number of stations is in excess of 40 stations
24 right now.
25 Q. So essentially you are saying as you said,
415
1 some subset of that, you have not been keying into
2 any particular areas at this point?
3 A. No.
4 Q. Other than attempting to complete that
5 paper you are working on?
6 A. I have been analyzing all of the water
7 level information I can get my hands on separate from
8 any studies of nutrient impacted areas.
9 Q. Do you know, is it intended that you will
10 be providing the results of Mr. Doren's study, the
11 vegetative portion of his study?
12 A. It is not my intent.
13 Q. Do you know who will be?
14 A. I would assume Mr. Doren.
15 MR. KOBELINSKI: Let's take a quick break.
16 (Thereupon, a brief recess was taken,
17 after which the following proceedings
18 were had)
19 MR. KOBELINSKI: Let's go back on the
20 record.
21 BY MR. KOBELINSKI:
22 Q. Mr. Johnson, with regard to the inundation
23 analysis that we were discussing a few moments ago,
24 what software did you use?
25 A. The frequency analysis was done primarily
416
1 using SPSS. Most of the descriptive statistics would
2 have been done with SPSS or within a graphics package
3 referred to as Sigma Plot. Most of the graphics
4 would have been done in Sigma Plot. Some of the
5 calculations were made in a spreadsheet, most likely
6 Quattro Pro. All of the GIS analyses that were
7 spatially related such as contouring would have been
8 done most likely in ARCINFO.
9 Q. Does the Park Service routinely collect
10 water quality data in the Park?
11 A. Yes.
12 Q. At what stations?
13 A. This is just the data that is collected by
14 the Park Service?
15 Q. Yes.
16 A. There are nine internal marsh sites. I
17 believe five of them are within Shark Slough, three
18 are within Taylor Slough and one is within the
19 eastern panhandle basin.
20 Q. Does the Park Service, is there anyone
21 else who routinely collects water quality data within
22 the Park?
23 A. There is water quality sampling done at
24 all of the Park entry points for water deliveries
25 done by the Army Corps of Engineers and the Water
417
1 Management District. Some of those would actually be
2 within Everglades National Park such as the S-12
3 structures, most of the other sites would actually be
4 just outside the Park boundary such as the structure
5 at S-18C.
6 Q. Does that cover then all of the water
7 sampling?
8 A. There is additional water quality sampling
9 being done in the downstream estuaries of Florida
10 Bay, White Water Bay and the tributaries to the Shark
11 River system.
12 Q. What are the tributaries to the Shark
13 River system?
14 A. I believe sampling is being done in Shark
15 River, Broad River. I am not sure about any other
16 tributaries but there is some sampling along the west
17 coast offshore of the river systems.
18 Q. Who collects the data?
19 A. Most of the water quality data collected
20 in the estuaries would be collected by the drinking
21 waters lab at Florida International University, by
22 employees of Dr. Ron Jones. The marsh sampling sites
23 are collected by staff of the Research Center at the
24 Park. And the water quality samples at delivery
25 points are collected by the Water Management District
418
1 and the Army Corps personnel.
2 Q. With regard to the collection done by the
3 Park, who supervised that data collection?
4 A. The supervisor would be DeWitt Smith.
5 Q. What labs are used to run the samples?
6 A. The samples are analyzed in the labs at
7 the South Florida Water Management District.
8 Q. What parameters are collected in sampling?
9 A. I don't know if I would know them all. It
10 is the general nutrient suite, heavy metals, major
11 ions, cat ions and quarterly pesticides.
12 Q. How often is the sampling done?
13 A. The marsh sampling is done monthly when
14 there is surface water. The water delivery points
15 are usually done twice a month and pesticide sampling
16 is done quarterly.
17 Q. Are you basing any of your testimony on
18 the water quality sampling?
19 A. No.
20 Q. Do you know how the data is being used?
21 A. The data is collected and maintained in
22 the South Florida Water Management District's data
23 base. In terms of its use, it is used by whoever
24 wants to analyze water quality data in the Everglades
25 inclusive of Everglades National Park.
419
1 Q. Do the Park and DER approve of the QA/QC
2 plan for the water quality sampling?
3 A. We use the QA/QC protocols of the Water
4 Management District so they are certified by DER
5 through the Water Management District as well as any
6 water chemistry that would be associated with
7 atmospheric deposition.
8 Q. Do waters flow directly from Big Cypress
9 into the Park?
10 A. I am not sure what you mean by flowing
11 directly. Yes.
12 Q. Is there water flowing from the Big
13 Cypress into the Everglades National Park?
14 A. Yes.
15 Q. Do you coordinate testing with the
16 hydrological staff for the Big Cypress Park?
17 A. There is no hydrology staff at Big Cypress
18 so the answer is no.
19 A. The water quality sampling done in Big
20 Cypress is done by the South Florida Water Management
21 District on contract with Big Cypress.
22 Q. Did you know that the rainfall data base
23 for the Everglades City base extends to the 1920s?
24 A. The rainfall data base for?
25 Q. The Everglades City base.
420
1 A. What you are saying is the rainfall
2 station at Everglades City?
3 Q. Yes.
4 A. I am not familiar specifically with the
5 period of record for rainfall at Everglades City.
6 Thank you.
7 Q. Are you aware that the rainfall data for
8 the Tamiami ranger station extends back to 1941?
9 A. Yes.
10 MR. KOBELINSKI: Would you mark that.
11 (A two-page document, containing the
12 question at the top of the first page, "Why is it
13 necessary for water from the EAA to continue its flow
14 in the WCAs?", bearing Bates numbers 0687673 and
15 0687674, was marked Johnson Deposition Exhibit 6 for
16 identification)
17 BY MR. KOBELINSKI:
18 Q. Mr. Johnson, showing you what has been
19 marked as Johnson Exhibit No. 6, which is a two-page
20 document bearing Bates numbers 0687673 and 674, and
21 although it may not be a title, on the first page at
22 the top it says, "Why is it necessary for water from
23 the EAA to continue its flow in the WCAs?"
24 Have you ever seen this document before?
25 A. It does not look familiar.
421
1 Q. Drawing your attention to the handwriting
2 approximately midway down the first page on the
3 right-hand side where it appears to say, EAA plus
4 Lake OK.
5 A. Right.
6 Q. Do you recognize that handwriting?
7 A. It looks like mine.
8 Q. Do you know who prepared this document?
9 A. I believe this, from looking at it it
10 looks like it was probably prepared by the sugar
11 industry based on information gathered by the South
12 Florida Water Management District. I would assume
13 that GHW is Mr. Wedgworth.
14 If I had to guess I would say this was
15 provided to me at a get acquainted meeting with the
16 Sugar Cane League in Clewiston several years ago.
17 Assuming that this was in my files, that's probably
18 where it would have come from.
19 (Pause)
20 Q. Do you recall, Mr. Johnson, attending a
21 meeting on March 8, 1991 at the USGS Miami office?
22 A. I attend many meetings at the USGS Miami
23 office. I don't recall a particular meeting in March
24 of 1991.
25 Q. This would have been with Tom Swihart,
422
1 Frank Nearhoof, Richard Harvey, Tom MacVicar, Tom
2 Federico, Alan Elzerman, Ron Jones, Dan Scheidt, Bill
3 Walker, Michael Soukup and Mark Maffei?
4 A. I have attended with all those people. I
5 assume that was the meeting that I attended.
6 MR. FITZGERALD: Excuse me a minute.
7 (The witness and his counsel confer off
8 the record)
9 Q. Do you recall such a meeting in March 8 of
10 1991?
11 A. I don't recall that particular date but I
12 have had a number of meetings with the USGS with
13 those people.
14 Q. Do you recall a meeting approximately in
15 March of 1991 with those people?
16 A. I don't recognize the immediate date.
17 Q. Do you recall such a meeting in early
18 1991?
19 A. Yes.
20 Q. What meeting was that?
21 A. It was more than likely one of the, I
22 guess, early meetings trying to set up discussions on
23 settlement on the lawsuit.
24 Q. Would that be a settlement group meeting?
25 A. I don't know if at that time there was
423
1 anything formally established as a settlement group.
2 Q. Do you recall whether or not Mr. Elzerman
3 ever attended any settlement group meetings?
4 A. He is a DER employee, is that correct?
5 Q. Do you recall ever meeting a Mr. Elzerman?
6 A. I don't recognize the name.
7 MR. KOBELINSKI: Go ahead and mark that as
8 Exhibit 7.
9 (A document bearing Bates numbers 0940973,
10 0940178 and 0940179, was marked Johnson Deposition
11 Exhibit 7 for identification)
12 BY MR. KOBELINSKI:
13 Q. Showing you, Mr. Johnson, what has been
14 marked as Exhibit 7 which one page bears Bates number
15 0940973, the next page is blank, and the next two
16 pages bear Bates numbers 0940178 and 79, have you
17 ever seen any portion of this document before?
18 A. I have obviously seen the first page
19 because I signed it.
20 Beyond the first page, it looks like
21 meeting notes taken by one of the members of the
22 previous meeting, but I don't recognize the notes, I
23 don't recognize the handwriting.
24 MR. FITZGERALD: Counsel, as you said, the
25 second page of the exhibit is blank. Is it supposed
424
1 to be?
2 MR. KOBELINSKI: Yes, that's the way I had
3 it stapled. I apologize for that. It doesn't seem
4 to have the Bates numbers, the Bates numbers are
5 non-sequential.
6 MR. FITZGERALD: We may be the victim of a
7 burp in the copying machine.
8 BY MR. KOBELINSKI:
9 Q. Does the sign-in sheet help refresh your
10 recollection as to whether or not you attended a
11 meeting with those individuals on that date?
12 A. It certainly does.
13 Q. Given the cast of characters on that list
14 do you recall what the purpose of that meeting was?
15 A. I would say it was probably one of the
16 meetings related to settlement discussions.
17 Q. Drawing your attention to the second page
18 or third page, you can go ahead and just take out
19 that blank page, it is obviously not part of the
20 exhibit, it does not have a Bates number so it is
21 just a copying blank page.
22 MR. FITZGERALD: So we are extracting
23 the --
24 MR. KOBELINSKI: Blank piece of paper.
25 MR. FITZGERALD: I will do that.
425
1 BY MR. KOBELINSKI:
2 Q. There is reference there in that second
3 page to a discussion of confidentiality. Do you
4 recall a discussion of confidentiality at this
5 meeting on March 8?
6 A. I don't recall the meeting, so I therefore
7 don't recall the discussion of confidentiality.
8 Q. Perhaps we can go through the document,
9 you don't remember the meeting at all?
10 A. I can see from the sign-in sheet that I
11 attended the meeting but I don't specifically
12 remember this meeting as compared to any other
13 meeting.
14 Q. Do you recall at any of the settlement
15 meetings or for instance at a meeting on March 8
16 where Mr. Swihart reviewed OFW and ONRW regulations?
17 MR. FITZGERALD: Objection. I direct the
18 witness not to answer.
19 Q. Do you recall such a discussion during a
20 March 8, 1991 meeting?
21 MR. FITZGERALD: Objection. I direct the
22 witness not to answer.
23 MR. KOBELINSKI: On the basis of what?
24 MR. FITZGERALD: Settlement privilege.
25 MR. KOBELINSKI: This had been produced by
426
1 the other party to the settlement.
2 MR. FITZGERALD: We have not waived our
3 privilege.
4 MR. KOBELINSKI: I am only asking now
5 about Mr. Swihart.
6 MR. FITZGERALD: My objection stands. You
7 can move for a compulsion, if you like.
8 BY MR. KOBELINSKI:
9 Q. Drawing your attention to the second half
10 of that second page, can you identify what the
11 figures are there that are being noted and, for
12 instance, next to the box in which it says 3/14, and
13 underneath it says WW? What would WW be to the best
14 of your knowledge?
15 MR. FITZGERALD: Objection. If you are
16 asking the witness to recount based on knowledge or
17 recollection of what happened at the meeting, fine;
18 if you are asking him to read the document, the
19 document speaks for itself.
20 MR. KOBELINSKI: I am asking what his
21 understanding of WW is.
22 A. I don't know right offhand.
23 MR. FITZGERALD: Counsel, do you have a
24 copy of this for me?
25 MR. KOBELINSKI: That's the only copy I
427
1 have. We can make a copy after the deposition.
2 BY MR. KOBELINSKI:
3 Q. Did you take any notes of a meeting on
4 March 8, 1991?
5 A. I assume I did.
6 Q. Do you still have those notes?
7 A. No.
8 Q. What did you do with them?
9 A. I would assume they were turned over to
10 counsel.
11 Q. Do you recall when they were turned over
12 to counsel?
13 A. I believe when they requested them.
14 Q. Do you recall when that was?
15 A. Probably sometime shortly after the
16 settlement agreement was finalized which would have
17 been after August of 1991.
18 Q. Did you turn over all your notes in
19 reference to the settlement group meetings to
20 counsel?
21 A. To my knowledge.
22 Q. What counsel are you referring to?
23 A. I believe Maureen Donlan has kept all of
24 the files for both the federal case and state
25 administrative process.
428
1 MR. FITZGERALD: That would be included in
2 our privilege list, counsel.
3 MR. KOBELINSKI: Mark this as the next
4 exhibit.
5 (A seven-page document, Bates numbers
6 US 0031695, US 0863589, US 0863590, US 0863591,
7 US 0863592, US 0863593 and US 0863594, was marked
8 Johnson Deposition Exhibit 8 for identification)
9 BY MR. KOBELINSKI:
10 Q. I am showing you what has been marked as
11 Deposition Exhibit No. 8 which bears Bates numbers US
12 0031695 through -- I better go through these
13 individually, US 0863589, US 0863590, 91, 92, 93 and
14 94. I ask you if you have ever seen that document
15 before.
16 A. No, I don't believe I have seen it before.
17 Q. Do you recall attending a meeting on March
18 12, 1991?
19 A. I don't recall specifically attending a
20 meeting on that day. This is 1990 according to the
21 document.
22 Q. Do you recall attending a meeting on March
23 12, 1990?
24 A. I do not recall specifically attending a
25 meeting on that day.
429
1 Q. Do you recall a meeting with, I will
2 direct your attention to the top of Bates page US
3 0863588, where it lists the names Jones,
4
5 J. Richardson, Johnson, Maffei, Scheidt, Soukup,
6 Walker, MacVicar, Shih, Federico, Robson, Elzerman,
7 Harvey Swihart and Nearhoof. Do you recall attending
8 a meeting in March of 1991, March 12, 1991 with that
9 group?
10 A. Not specifically, no.
11 Q. Do you recall a meeting on March 12, 1990
12 with that group?
13 A. Not specifically, no.
14 Q. Could you identify for me midway through
15 the top of that page what those equations are, if you
16 recognize them?
17 A. They are concentration equations, I assume
18 for the calculation of concentration over time for
19 some particular parameter.
20 Q. Do you recall a meeting with the
21 individuals that are listed at the top of the page
22 wherein you were discussing noise equations?
23 MR. FITZGERALD: Objection. I direct the
24 witness not to answer.
25 No, I will let him answer that, go ahead.
430
1 A. I don't recall the meeting. My name is
2 listed there so I assume I attended the meeting.
3 MR. KOBELINSKI: Mark that one as 9.
4 (A nine-page document, untitled, dated
5 3/12/91, Bates numbers US 0863595 through US 0863603,
6 was marked Johnson Deposition Exhibit 9 for
7 identification)
8 BY MR. KOBELINSKI:
9 Q. Drawing your attention to what has been
10 marked as Exhibit No. 9 to your deposition which is a
11 document untitled but in the upper right-hand corner
12 has the date 3/12/91 and bears Bates numbers
13 US 0863595 through US 0863603 and I ask if you have
14 ever seen that document before.
15 A. No, I have not.
16 Q. This document is dated 1991. Does it help
17 refresh your recollection as to whether you attended
18 a meeting in 1991 with individuals that are
19 identified at the top of that exhibit?
20 A. Again, my name is listed as one of the
21 attendees so I assume I attended the meeting but
22 again I don't recollect attending a meeting
23 specifically on that date.
24 Q. Do you recognize the handwriting?
25 A. No.
431
1 Q. There is reference in the second portion
2 on the page to Park's proposal and there is a box
3 there with five years 9.0 in one row and I guess
4 that's a 6.6 in the next.
5 Do you know what that chart there or box
6 there is referencing?
7 MR. FITZGERALD: Objection. I direct the
8 witness not to answer.
9 MR. KOBELINSKI: The basis?
10 MR. FITZGERALD: Privilege.
11 MR. KOBELINSKI: What privilege?
12 MR. FITZGERALD: Settlement negotiations.
13 MR. KOBELINSKI: He hasn't identified this
14 as dealing with settlement negotiations.
15 MR. FITZGERALD: Have you asked him? The
16 privilege attaches whether you specifically ask him
17 to identify it as such or not.
18 BY MR. KOBELINSKI:
19 Q. Mr. Johnson, are these to the best of your
20 knowledge notes of a settlement negotiation meeting
21 with the District?
22 A. Yes.
23 Q. Could you identify what that box in the
24 lower half of the first page is?
25 MR. FITZGERALD: Objection. I direct the
432
1 witness not to answer.
2 MR. KOBELINSKI: Counsel, this bears your
3 Bates numbers. You produced these. You are still
4 claiming a privilege on them?
5 MR. FITZGERALD: It does not mean we
6 produced them. I don't know the source of this
7 document.
8 MR. KOBELINSKI: Are those your Bates
9 numbers?
10 MR. FITZGERALD: The fact that we have a
11 Bates number on it does not necessarily imply the
12 document is ours. We could have Bates numbered a
13 document produced by someone else. That doesn't
14 waive our privilege.
15 Are you representing for the record that
16 the United States produced this?
17 MR. KOBELINSKI: I am representing that
18 the only copy I have of this document bears United
19 States Bates numbers.
20 MR. FITZGERALD: I see a second Bates
21 number hand stamped that has the letters US written
22 in after it. That does not match what I have seen
23 the United States use in the existing cases. I am
24 not saying it could not have been but that doesn't
25 match the format of the preprinted labels we use.
433
1 The second one that is handwritten in its entirety
2 has the US in front.
3 It also does not match the type of label
4 that we have been using.
5 MR. KOBELINSKI: I draw your attention to
6 the second page, Bates number US 0032128. That to
7 the best of my knowledge matches exactly the type of
8 Bates stamp you use.
9 MR. FITZGERALD: The type format doesn't
10 look the same as the one I am familiar with. That is
11 possible.
12 But if you want to represent for the
13 record where it came from I will consider that, and
14 it does not thus appear that these are necessarily
15 from the same source, as the only Bates stamp of that
16 type anywhere in the document.
17 BY MR. KOBELINSKI:
18 Q. Mr. Johnson, I am looking solely for a yes
19 or no answer.
20 As far as your understanding, do you
21 understand or know what that chart or box is in the
22 bottom half of the first page of this document?
23 A. Yes.
24 Q. Could you explain it to me?
25 MR. FITZGERALD: Objection. I direct the
434
1 witness not to answer.
2 Q. Have you reviewed the document?
3 A. Have I read the document you just handed
4 to me?
5 Q. Yes, reviewed it.
6 A. No.
7 Q. Would you please do so?
8 (Pause)
9 MR. FITZGERALD: Counsel, for the record I
10 am just going to state you appear to have compiled a
11 document from a variety of sources that are not even
12 in the same handwriting. The one page that may have
13 a preprinted US label on it does not appear to belong
14 with the rest of that document. You may wish to
15 research that at some point.
16 MR. KOBELINSKI: If the witness wishes to
17 point out what does not belong based upon his
18 recollection of the meeting perhaps we might be able
19 to figure it out. We are just doing it based on how
20 it was produced to us, my understanding. Unless the
21 witness can explain which does not go with which
22 based on his recollection of the meeting I have to
23 keep it in the order it was produced to me.
24 MR. FITZGERALD: That's fine. For
25 whatever it is worth I have given you some free
435
1 advice.
2 (Pause)
3 BY MR. KOBELINSKI:
4 Q. Having reviewed that, do you recall the
5 meetings that those notes refer to?
6 A. No.
7 Q. Having reviewed that, is it still your
8 opinion these are notes from a settlement group
9 meeting?
10 A. Yes.
11 Q. If you don't recall the meeting then how
12 do you know that?
13 A. Because I can read on the document,
14 technical settlement on page 2, top right-hand side.
15 Q. That alone is the basis of your knowledge
16 that this is notes from a settlement agreement
17 meeting?
18 A. That and the general content of the
19 document, the parts that I can read, which is very
20 little.
21 Q. Do you recall the Park making a proposal
22 of the type contained on the chart, bottom half of
23 the first page?
24 MR. FITZGERALD: Objection. I direct the
25 witness not to answer.
436
1 (The witness and his counsel confer off
2 the record)
3 Q. Mr. Johnson, I understand there were four
4 water regulations or water delivery schedules
5 proposed in the Corps's modified water delivery GDM.
6 A. That is correct.
7 Q. Did the Park approve or agree with any one
8 of those four?
9 A. The Park was most supportive of the basic
10 rain driven alternative.
11 Q. And when you say most supportive, did it
12 then agree with that water delivery schedule?
13 A. The basic rain driven alternative is the,
14 based on the delivery formula is the formula the Park
15 is on today so it is our current delivery schedule.
16 Q. Was that then approved or receive the
17 approval of the Park in its consideration of the
18 schedules, water delivery schedules proposed in the
19 GDM?
20 A. No.
21 Q. Which one did the Park approve or
22 recommend?
23 A. The recommendation was that we would not
24 agree on operations criteria until after the
25 structures were built or after we were able to
437
1 conduct additional iterative tests on a new delivery
2 formula.
3 Q. Why?
4 A. Because we have perceived problems with
5 the existing formula.
6 Q. What are those problems?
7 A. One problem is the split between the
8 regulatory releases and the rainfall based delivery
9 releases.
10 Q. What is the difference between regulatory
11 releases and rainfall based releases?
12 A. In the current rainfall-based delivery
13 formula there are two components.
14 The first component is based on the
15 estimated discharge that would have occurred based on
16 rainfall from a historic discharge rainfall
17 relationship that is the regression formula that
18 makes up the rainfall plan. In addition to that
19 there is a regulatory component that provides
20 additional flows to the Park when water levels in
21 Water Conservation Area 3A go above the base of the
22 rainfall zone E.
23 Q. Is it the regulatory release component
24 then that the Park does not want?
25 A. It is not that we don't want it, it is
438
1 that it is not -- the timing and volumes of the
2 regulatory releases do not match historical patterns
3 of flow.
4 Q. Why does that matter?
5 A. Because water is not allowed to flow
6 through the system smoothly during storm events, the
7 gates are open rapidly and large volumes of water are
8 passed into the Park and then after the storm event
9 all the water is essentially drained out of the upper
10 part of the system.
11 Q. What is wrong with that?
12 A. From a hydrologic standpoint it increases
13 water depths too rapidly and it shortens the period
14 of inundation because the water is rapidly routed
15 through the marshes and into the downstream
16 estuaries.
17 Q. How does that differ from a, from what
18 would have occurred if there was no project and no
19 man-induced impacts?
20 A. Flows would have increased gradually and
21 the recession rates would have been much slower and
22 water would have drained into the Park much more
23 slowly, extending the recessions.
24 Q. Will you explain to me then that the water
25 goes through more rapidly and increases the height
439
1 but why does that make a difference?
2 A. All I can do is give you the statements
3 about what effect it has on the hydrology of the
4 Park. I think anything else would be a value
5 judgment that someone dealing with the biology of the
6 system would have to make.
7 Q. From a hydrological viewpoint, then, is
8 that necessarily bad that it comes in I think you
9 said as a large surge?
10 A. Right. It is detrimental because it does
11 not allow the water to be distributed to the Park
12 throughout the late wet season and into the dry
13 season as would have occurred under more natural
14 conditions.
15 Q. Is it the Park's opinion as far as you
16 know from your discussions with other Park employees
17 that a more natural hydroperiod then is beneficial to
18 the Park ecology?
19 A. Yes.
20 Q. Would these regulatory releases then you
21 are referring to essentially be considered
22 detrimental to the Park ecology?
23 A. I wouldn't say that water is detrimental
24 unless the volumes are greatly in excess of what
25 would have occurred under natural conditions and the
440
1 durations are much shorter than what would have
2 occurred under natural conditions. Essentially the
3 regulatory releases are the water deliveries that
4 would have come to Everglades National Park based on
5 rainfall north of Water Conservation Area 3A but
6 under natural conditions they would have occurred
7 much more slowly.
8 Q. And under natural conditions the slow
9 movement of water into the Park would have been more
10 beneficial to the Park ecology or ecosystem as
11 opposed to the more rapid regulatory release?
12 A. I believe that's true.
13 Q. Essentially then is the Park attempting to
14 develop a water delivery schedule which will more
15 closely echo the natural hydroperiod, is that the
16 term that should be used?
17 A. Natural flow patterns.
18 Q. Natural flow patterns, is that correct?
19 A. Yes.
20 Q. Do you know whether the District -- is
21 excuse me, not the District, is the Park or the
22 federal wildlife, Fish and Wildlife doing the same
23 thing for the Refuge?
24 A. No.
25 Q. Why not?
441
1 A. I don't know.
2 Q. Based upon your study of the Park and your
3 discussions with the Park, would a water delivery
4 schedule that more closely follows the natural flows
5 be beneficial to the Refuge?
6 A. Yes.
7 Q. Would likewise a water delivery schedule
8 to Water Conservation Area 2A which more closely
9 follows the natural flows and hydroperiod have the
10 same benefits which would be experienced by the Park?
11 A. I would believe so.
12 Q. And would a water delivery schedule that
13 again follows the natural flows and hydroperiod for
14 Water Conservation Area 3A result in the same
15 benefits that you are seeking for the Park?
16 A. I believe so.
17 Q. Do you know whether or not the District or
18 anyone is attempting to prepare that type of water
19 delivery schedule, a more natural water delivery
20 schedule for Water Conservation Area 3A?
21 A. I believe that that will be one of the
22 alternatives that will be tested in the water supply
23 planning initiatives under way at the District
24 currently.
25 Q. Is a more natural water delivery schedule
442
1 being prepared for Water Conservation Area 2A?
2 A. I don't know specifically that one is
3 under development.
4 Q. Have you heard of one being under
5 development?
6 A. What I have heard of is the types of
7 alternatives that would be tested in the water supply
8 planning initiatives, and they specifically aren't
9 looking at delivery formulas to each basin
10 specifically, they are looking at how water should be
11 moved through the system from when it enters into the
12 Water Conservation Areas until it leaves.
13 Q. How does a water delivery schedule differ
14 from a water regulation schedule?
15 A. A water regulation schedule is generally a
16 line or a series of zones and as water passes above
17 the line or from one zone to another you increase
18 discharges at some fixed amount.
19 A water delivery formula generally says
20 based on a relationship with rainfall or some other
21 parameter such as upstream water level you discharge
22 a certain volume and it is usually not a fixed amount
23 like in a regulation schedule.
24 Q. How are water levels, for instance, in
25 Water Conservation Area 1 regulated?
443
1 A. They are regulated by releases made to the
2 downstream end through the S-10 structures.
3 Q. Who controls the S-10 structures?
4 A. The agency that has official control over
5 the S-10s is the Army Corps of Engineers.
6 Q. Who operates the S-10s?
7 A. I believe under contract to the District
8 the District staff actually make the gate changes.
9 Q. How do they make the determinations as to
10 whether to open or close the gates?
11 A. There is a series of operations criteria
12 established by the water management unit of the Army
13 Corps of Engineers and in consultation with the
14 regulation and operations division of the Water
15 Management District they make a decision based on
16 antecedent conditions what gate operations should be.
17 Q. How do operations criteria compare to a
18 water regulation schedule?
19 A. The regulations schedule is usually a
20 graphic, a plot on a page, operations criteria would
21 be the text explanation of how the structure was to
22 be operated. And there usually is in the operations
23 criteria some additional flexibility other than just
24 what is read in the chart.
25 Q. The chart being the water regulations
444
1 schedule?
2 A. Correct.
3 Q. Is there a water regulations schedule for
4 Water Conservation Area 1?
5 A. Yes.
6 Q. Do you know approximately what that
7 schedule is?
8 A. I believe it maxes out at approximately 17
9 feet which would be the top of the water
10 concentration pool and the minimum is 14 feet, I
11 believe, which would be the bottom of the regulation
12 pool.
13 Q. What would happen if as a result of a
14 rainfall event the level of water in Water
15 Conservation Area 1 rose to 18 feet?
16 A. They would open up the S-10 structures and
17 discharge large volumes of water.
18 Q. Given the fact that I stated a foot over
19 the regulation schedule, if it was just a matter of a
20 few inches over the regulation schedule?
21 A. They would most likely open the gates and
22 discharge relatively small volumes of water given
23 that there aren't downstream conditions that would
24 preclude those releases.
25 Q. I believe you said that it bottoms out at
445
1 approximately 14 feet?
2 A. That is correct.
3 Q. What's the purpose of having a lower end
4 to a regulation schedule?
5 A. It keeps the system from drying out
6 entirely. It is generally referred to by the Corps
7 as an environmental floor.
8 Q. But if for instance the water levels drop
9 below 14 feet does that trigger a pumping event to
10 add water or is that merely a means of instruction
11 not to open the gates to let more water out?
12 A. It usually is the point at which any
13 outflows from the basin have to be offset with
14 inflows.
15 Q. And Water Conservation Area 1, what does
16 that mean?
17 A. It means that you could not take more
18 water out through the discharge structures which I
19 assume would be the S-10s and I think S-39 in excess
20 of what you put in at the upstream end either at S-6
21 or S-5A.
22 Q. And for Water Conservation Area 1 the
23 input from S-5A or S-6 would be water that is either
24 originating in or flowing through from Lake
25 Okeechobee to Everglades Agricultural Area, is that
446
1 correct?
2 A. That's correct, or in the case of S-5A it
3 could be water coming down the L-8 canal some of
4 which would be technically not within the EAA.
5 Q. The origin of that water?
6 A. Correct.
7 Q. Just as water coming from Lake Okeechobee,
8 the origin would not be EAA?
9 A. That's correct, but you specified Lake
10 Okeechobee or the EAA.
11 Q. All right.
12 Has the water regulation schedule for
13 Water Conservation Area 1 always been the same since
14 the time it was impounded?
15 A. I believe it has been the same until the
16 current proposed regulation schedule change that has
17 been requested by the Fish and Wildlife Service. I
18 don't recall any other changes in the schedule prior
19 to that.
20 Q. Has there already been a change then, that
21 is what you are saying?
22 A. I don't believe it has been implemented.
23 I believe it is going through a public hearing
24 process currently.
25 Q. What does that change do, do you recall?
447
1 A. It is raising the minimum level above 14
2 feet to I believe 15 feet. That I think is the major
3 change.
4 Q. Does it change the maximum at all?
5 A. Not that I know of. No, the maximum was
6 established by flood level criteria.
7 Q. Has the regulation schedule for Water
8 Conservation Area 2 always been the same?
9 A. No.
10 Q. 2A.
11 A. No.
12 Q. In operating the S-10s with regard to
13 regulating levels in Water Conservation Area 1, does
14 the water regulation schedule take into account
15 whether rainfall caused the increase or decrease in
16 water level as opposed to inflows from the S-6 and
17 S-5A?
18 A. I don't think the regulation schedule
19 distinguishes between increases in water levels due
20 to rainfall versus releases through S-5A or S-6 but I
21 would say it takes into account rainfall because
22 discharges aren't made through those structures
23 unless rainfall generally is occurring.
24 Q. But essentially it is the level of the
25 water that regulates whether or not there will be a
448
1 discharge or not?
2 A. Yes, that's correct.
3 Q. With regard to 2A, is there a water
4 regulation schedule for 2A?
5 A. There is.
6 Q. Does that water regulation schedule take
7 into account the source of the water as opposed to
8 the level of the water?
9 A. I don't believe so.
10 Q. Is it like Water Conservation Area 1 in
11 that it is solely the level of water that dictates
12 whether or not there will be a discharge or inflow?
13 A. I believe there is a regulation schedule
14 that they try to track. Again there is the criteria
15 in all the Water Conservation Areas except Water
16 Conservation Area 3A that they look at the downstream
17 conditions to determine what kind of an impact there
18 will be downstream so that is another part of the
19 criteria in addition to just the regulation schedule.
20 Q. But like Water Conservation Area 1 does 2A
21 ignore the source of the water whether or not it came
22 through the 10 structures or rain?
23 A. The regulation schedule does. I don't
24 necessarily think that the water managers who make
25 the decisions ignore the source of water.
449
1 Q. And the water managers that you are
2 referring to, would those be the District water
3 managers?
4 A. The people at the District and Army Corps
5 of Engineers that are responsible for gate
6 operations.
7 Q. Does the Army Corps take an active role in
8 the day-to-day gate operations?
9 A. Yes.
10 Q. Does the District then just do the manual
11 opening and closing?
12 A. On the structures, on the water control
13 structures within the Water Conservation Areas and
14 around Lake Okeechobee the Corps dictates what the
15 operations criteria will be and the District operates
16 the structures within the Water Conservation Areas,
17 so they have direct, the Corps has direct control
18 over those structures.
19 Q. Who makes the day-to-day decision to open
20 or close the gate?
21 A. I believe it is the Army Corps of
22 Engineers and the Water Management District.
23 Q. When you say the Army Corps, is their role
24 essentially setting up the criteria you just
25 discussed?
450
1 A. And reviewing what the conditions are at
2 the time that would cause the need for a gate
3 operational change.
4 Q. Does the District have to call the Army
5 Corps of Engineers prior to opening up the S-10s?
6 A. Yes.
7 Q. Even if it is within the regulation
8 schedule?
9 A. Yes.
10 Q. Is that to seek approval or just to notify
11 them?
12 A. Those structures are under the control of
13 the Army Corps of Engineers so I think all operations
14 of those structures would have to seek approval.
15 Q. Is that likewise true of the S-11s?
16 A. Yes.
17 Q. What about S-12s?
18 A. Yes.
19 Q. Does the District take care of the S-12s?
20 A. The District I believe is responsible for
21 the actual gate openings but again the operation of
22 the gates is under the control of the Army Corps of
23 Engineers.
24 Q. Does the Corps have any input into the
25 operation of the S-12s?
451
1 A. Yes.
2 Q. How so?
3 A. The rain-based delivery formula
4 information is coordinated between the three agencies
5 on a weekly basis. Rainfall information is collected
6 from the three agencies, compiled, the information is
7 transferred on Fridays, the following Monday the
8 agencies converse by phone and make recommendations
9 and decisions about how gate operations will be made,
10 the gate openings are made, the gate changes are made
11 on the following Tuesday.
12 Q. Prior to the rainfall delivery plan or
13 delivery schedule, did the Park have the same input
14 as to the operations of the S-12s?
15 A. For the two years prior to the rainfall
16 formula the S-12s were left open full so we didn't
17 have much to worry about. But prior to that we were
18 on a fixed delivery schedule driven by the minimum
19 delivery formula established by Congress and
20 essentially we followed that formula pretty much to
21 the letter unless there was a declared water shortage
22 or regulation schedules provided additional
23 regulatory releases. So there was very little
24 flexibility.
25 Q. Would the Park have an input as to whether
452
1 or not there should be a regulatory release?
2 A. At what time is this? Currently?
3 Q. No, as you were just discussing prior to
4 opening the gates with the flow-through period.
5 A. Generally the Park would be consulted but
6 there wasn't much we had, we had no say-so in it.
7 Q. Could it have stopped the opening of the
8 gates during that minimum delivery schedule period?
9 A. No.
10 Q. Drawing your attention back to Water
11 Conservation Area 2A, you had mentioned that the
12 source of the water would be considered by the water
13 managers at the District or Corps level. If for
14 instance the water level in Water Conservation Area
15 2A exceeded its water regulation schedule as a result
16 of rainfall, does that mean that water would not be
17 dispersed?
18 A. It would depend on the stage conditioned
19 in Water Conservation Area 3A, how close it was to
20 regulation. If 3A was generally above regulation
21 they would not be discharging large volumes of water
22 into 3A until it started coming back down below
23 regulation. So most likely they would be discharging
24 water to the east if water levels weren't too high in
25 that direction.
453
1 Q. If the water level in Water Conservation
2 Area 2A was above regulation as a result of inflows
3 from the various structures, and again, a like
4 situation as you described, that 3A was above its
5 regulation schedule, how would that affect the
6 openings?
7 A. I don't understand the question.
8 Q. My question was you had said that the
9 source of the water does impact the decision and I
10 was trying to determine exactly how. You said if
11 rain increased the water level of Conservation Area
12 2A above its regulation schedule then would you look
13 at the condition of 3A to see if it was above its
14 regulation schedule.
15 A. Right.
16 Q. What would you do if it wasn't rain that
17 increased the level above 2A, if it was actually just
18 inflows?
19 A. Again, I think it would be, if the
20 District was trying to move water, the District and
21 the Corps were trying to move water out of the Water
22 Conservation Area 1 or 2 for an environmental reason,
23 then they would keep track of the effect it has on
24 the downstream regulation schedule, they could move
25 water and make it come closer, even exceed the
454
1 downstream regulation schedule if it wasn't raining
2 and they did not anticipate additional inflows that
3 would cause a problem. Whereas that is different if
4 you were in the middle of a rain storm and you were
5 anticipating additional flows coming from the
6 upstream basin.
7 Q. So in this context you are then looking at
8 a comparison of the condition of 3A with regard to
9 its regulation schedule, is that correct?
10 A. Right.
11 Q. And essentially though they would do that
12 whether or not the inflow was a result of rain or
13 structural inflow?
14 A. Sure, they would consider 3A stages.
15 Q. In what context then would the water level
16 exceeding the regulation schedule in 2A as opposed,
17 as a result of rain as opposed to inflows, impact a
18 decision as to whether or not to open the structures?
19 A. If rainfall increases in Conservation Area
20 2A were due to movement of water from 1 to 2, not
21 during a rainfall period, then it would be more
22 common for them to allow water levels to increase in
23 2A up to or even above the regulation schedule before
24 making a release because they weren't anticipating
25 additional rainfall. That's generally not the
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1 pattern, they generally don't let the Water
2 Conservation Areas exceed regulation schedules
3 regardless of whether it is a rainfall event or not.
4 Q. So regulation schedules essentially do
5 dictate water levels within the regulation schedule?
6 A. Generally, yes.
7 Q. No matter the source of the inflows?
8 A. Generally, yes.
9 Q. Mr. Johnson, you are on the STA design
10 group?
11 A. I believe it is the design working group
12 is what it is referred to in correspondence.
13 Q. How many meetings have you attended of
14 that group?
15 A. I joined the group late, I think several
16 months after it started, in place of Mike Soukup.
17 And I believe I have attended something like eight
18 meetings, six or eight meetings altogether.
19 Q. Are you just an alternate for Mr. Soukup
20 or have you now replaced him essentially permanently
21 until you are replaced?
22 A. I have replaced Mr. Soukup permanently.
23 It is not a very formal committee, I don't think
24 there is anything in terms of alternates.
25 Q. How are the operating depths for the STAs
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1 determined?
2 A. They are based on design criteria,
3 primarily looking at the inundation and water depth
4 patterns at gauge 2A-17 in Water Conservation Area
5 2A.
6 Q. Who made the determination as to what the
7 optimum water depth would be?
8 A. I think the reason why 2A-17 was used is
9 because that is the gauge that essentially reflects
10 the water depth and hydroperiod conditions in Water
11 Conservation Area 2A and the current nutrient uptake
12 and deposition rates in 2A are being used as the
13 basis for the design of STAs.
14 Q. When did you become a member of the STA
15 design group, by the way?
16 A. I