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 455 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 456 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 don't even remember. I would assume it 17 was sometime in 1991. 18 Q. When was the last meeting you went to? 19 A. I believe the last meeting was, I believe 20 there was a June or July 1992 meeting. I don't 21 believe I was at the last meeting because I remember 22 reading the notes and it wasn't anything I heard the 23 presentation for. So I was at the previous meeting, 24 if the last meeting was June I was at the May meeting 25 of 1992. 457 1 Q. When is the next meeting scheduled? 2 A. There has not been a next meeting 3 scheduled. They are pending completion of the 4 general design documents on the STAs. 5 Q. Has there ever been a discussion of 6 regional treatment areas? 7 A. Yes. 8 Q. When was that? 9 A. I believe they began somewhere near the 10 end of the STA design working group sessions. They 11 really weren't discussed until fairly well on in the 12 STA design process. 13 Q. That would be in the middle or latter half 14 of 1992 then? 15 A. I don't believe so. 16 Q. What is the difference between an STA and 17 RTA? 18 A. There were three classifications used for 19 the committee, there was an FTA, an RTA and an STA. 20 The FTA was a Farm Treatment Area so it 21 would be at the scale of an individual farm or 22 generally individual farm, not necessarily individual 23 farm field. 24 The RTA would be at the level of a large 25 farm or a group of farms contributing to a treatment 458 1 area. 2 And the STAs were basin treatment areas 3 such as the S-5A basin, the S-6 basin, S-7 basin. 4 Q. What are the types of substantial 5 advantages of an FTA over an RTA? 6 A. I think the benefits would be that you 7 would be retaining water and treating water closest 8 to its source and more than likely there would be 9 much more control on the part of the agricultural 10 industry on the individual field treatment methods 11 and retention designs as compared to an STA which is 12 well downstream of their farms in many cases. 13 Q. What benefits would there be of an RTA 14 over an FTA if any? 15 A. A regionalized system probably would be 16 more efficient than a farm level system. You could 17 probably treat the water with smaller acreage on a 18 regional level than you could on a farm level. I 19 believe that would be the conclusions of the 20 committee. 21 Q. What are the advantages of an STA over an 22 RTA? 23 A. Again, I think you can treat it over a 24 smaller area for a lower cost with an STA than with 25 an RTA. 459 1 Q. Are there any advantages of an RTA over an 2 STA? 3 A. Again, the benefits would be you are 4 closer to the sources of particular water that is 5 being treated so you could tailor the RTA to the 6 needs of that particular basin better than you could 7 with an STA. 8 Q. Which of the three, FTA, RTA or STA do you 9 support or believe are the best means of treating? 10 A. I believe the STAs were finally 11 recommended as the preferred plan because the cost 12 and the land acquisition was smaller for that project 13 and that seemed to be the driving parameters in the 14 selection of the alternatives. 15 I see a lot of benefits to all of them. 16 Probably the RTA would be a useful treatment system 17 in combination with STAs. 18 Q. How would you use RTAs in combination with 19 STAs? 20 A. You could put RTAs around the EAA based on 21 land use type, and concentrate them on areas where 22 the water quality was worse than other areas. 23 There are, currently in the STAs there is 24 within any one basin there is a wide variability of 25 the concentration and load coming off different 460 1 farms. You have very little flexibility when all of 2 it is coming to one treatment system, whereas if it 3 is going to a regional system you could put the 4 treatment systems closer to where the highest 5 concentration of loads were and probably have more of 6 an effect on those particular farm fields in terms of 7 cleanup. 8 Q. How are the detention times, are the 9 detention times for the water going through the STAs, 10 has that already been established? 11 A. It is listed as a design parameter in the 12 assumptions as a given. It is not something that is 13 derived from the technology. 14 Q. How is that assumption made? 15 A. It was based on studies done in wetland 16 treatment systems around the country as to the length 17 of time that the water that was being treated needed 18 to be in contact with the vegetation community in 19 order to bring the concentration levels down 20 to what was wanted in terms of outflow concentration. 21 Q. Is it currently intended that the STAs be 22 kept consistently wet? 23 A. I believe the current design is that the 24 inflow structures would operate to match the current 25 pumping schedules of the major pumps S-5A S-6, S-7, 461 1 S-8 but at times when there is a regional drought and 2 those structures wouldn't be pumping additional 3 supplemental water may be needed but that is still an 4 issue being debated. 5 Q. Approximately what percentage of the time 6 is S-5A pumping? 7 A. I believe it is about 60 percent of the 8 time. 9 Q. I am sorry, I didn't hear you. 10 A. I believe it is about 60 percent of the 11 time over the ten years that we studied. 12 Q. And what about S-6? 13 A. It would be less than that, somewhere in 14 the fifties, probably. 15 Q. What were the other two you mentioned, S-7 16 and 8? 17 A. That's right. 18 Q. Approximately how much? 19 A. How much? Comparable to S-6, 20 approximately 50 to 60 percent I believe. 21 Q. Would the STAs then not be pumping for 22 anywhere from 40 to 50 percent of the time? 23 A. If the decision was made not to supplement 24 water to the STAs to keep them wet, then they would 25 not be bringing inflow water in during that period of 462 1 time but outflow water could still theoretically be 2 released. 3 Q. You are talking outflow from the STA into 4 the -- 5 A. The EPA. 6 Q. How? 7 A. Excuse me? How would outflow continue 8 after inflow, is that what you are asking? 9 Q. Right, if the S-5, S-5A for instance, is 10 not pumping how would you get the water from the STA 11 into -- 12 A. What I am saying is, the S-5A, S-6, S-7, 13 S-8 pumps turn on and turn off in response to certain 14 canal stage criteria. Because you have a wetland 15 system discharging the water into, you would not 16 necessarily be matching the outflow releases to the 17 inflow releases exactly. And because you have a 14 18 day detention time you could be discharging water 19 longer out of the STAs than the inflow pumps would be 20 operating. 21 Q. Would that then account for the 40 to 50 22 percent period of time that the pumps S-5A, S-6, S-7 23 and S-8 are not functioning? 24 A. No. That would be the additional time you 25 could be making releases from the STAs into the EPA 463 1 that would be occurring when inflows are not 2 occurring into the STAs, assuming that you chose not 3 to supply water under all conditions. 4 Q. Would there be a time then, a period of 5 time during the year that STAs would not be pumping? 6 A. I believe in the current plan the 7 alternative was selected to keep the STAs wet under 8 all conditions, so I would assume they would be 9 making some minimal discharges into the EPA under 10 almost all conditions. 11 Q. Would that be using the pumps currently in 12 place at S-5A, S-6, S-7 and S-8? 13 A. You mean in terms of outflow from the STA? 14 Q. Yes? 15 A. No, the current plan of outflow from the 16 STA is to modify the existing levee and canal 17 alignment at the southern end of the EAA, to put in 18 additional discharge or distribution canals and to 19 release water through a series of culverts and into 20 each of the Water Conservation Areas rather than 21 individual pump releases through the major S-5A, S-6, 22 S-7 and S-8 pumps. 23 Q. Is there something other than the 24 hydroperiod restoration that you were discussing 25 yesterday? 464 1 A. That would be the hydroperiod restoration 2 portion. 3 Q. I thought you said yesterday that that had 4 not been approved as yet? 5 A. It is in the STA design, it is tagged as 6 hydroperiod improvements with a separate cost 7 estimate to show it is not part of the water quality 8 cleanup but it is in the current design. 9 Q. If the current design calls for the STAs 10 to be consistently or currently wet at all times, is 11 that correct? 12 A. I believe so. 13 Q. Then the inflows into the STAs would have 14 to be continuous also, is that correct? 15 A. That's correct. 16 Q. Where would they be getting their water? 17 A. The water would be coming mainly out of 18 the Miami canals, the Miami Canal, North New River 19 Canal, Hillsborough Canal and the West Palm Beach 20 Canal either through water that is present in the EAA 21 and coming off the farm fields or water that is 22 supplied from Lake Okeechobee. 23 Q. Is it anticipated then that there would be 24 greater water coming in from Lake Okeechobee? 25 A. If the plan is to keep the STAs wet then I 465 1 believe inflows into the agricultural canals will 2 have to increase in order to maintain the STAs in 3 that condition. 4 Q. Do you know what the pumps, for instance, 5 S-5A, it covers a particular portion, let's call it a 6 sub-basin of the EAA, is that correct? 7 A. It covers the S-5A basin, essentially. 8 Q. Do you know what those pumps are designed 9 to remove as far as water per acre? 10 A. I don't think they are sized per 11 particular volume per acre, they are designed in 12 consultation with the structures on the upstream 13 side, S-2, S-3 S-4 to remove three quarters of an 14 inch per day of runoff from the EAA. 15 Q. Is that with just through S-5A or would 16 that be with the corresponding lakeside pump going? 17 A. With the corresponding lakeside pump. 18 Q. As a result of the IAP, interim action 19 plan, the S-5A is primarily to remove water from EAA 20 or that basin, EAA, is that correct? 21 A. The criteria for pumping water into the 22 lake to my knowledge hasn't changed so that when you 23 exceed a certain design criteria in the agricultural 24 canals the Corps still has to require pumping at S-2, 25 S-3 and S-4. 466 1 Q. But the interim action plan did change 2 that criteria, didn't it? 3 A. Not to my knowledge it did not change the 4 criteria. It established flexibility so that you 5 could begin pumping at the downstream structures 6 earlier and pump longer to reduce the frequency of 7 times that would you raise canal stages and have to 8 backpump up in Lake Okeechobee but I believe the 9 criteria that you reach in order to require pumping 10 at S-2, S-3 and S-4 is still in place. 11 Q. I understand that but essentially isn't 12 the interim action plan designed so that absent 13 particular circumstances you can not or you are not 14 allowed to pump into the lake? 15 A. Absent large rainfall events that you have 16 to backpump or absent periods of time where it is 17 deemed necessary to backpump for water supply 18 purposes, the majority of the water goes south 19 through those four structures. 20 Q. And the design of the EAA when originally 21 designed at the installation of the project, wasn't 22 it designed so S-2, S-3 and S-4 would normally on a 23 regular basis drain approximately half of the EAA, 24 backpump it? 25 A. It would drain one-third of the EAA. 467 1 Q. One-third? 2 A. Yes. 3 Q. That was notwithstanding whether or not 4 there was a large storm event or not, is that 5 correct? 6 A. That's correct. 7 Q. So the IAP did change essentially the 8 drainage pattern? 9 A. Yes. It put as the primary responsibility 10 for draining all of the EAA on the downstream 11 structures S-5A through S-8. 12 Q. Are the STAs designed to handle major 13 storm events? 14 A. They are designed to handle the maximum 15 flow events that have occurred at the S-5A, S-6, S-7, 16 S-8 structures. That would include runoff from the 17 EAA in addition to regulatory releases that are made 18 from the lake through the agricultural canals. 19 Q. So, for instance, a one in ten year storm 20 in the S-5A basin, the STA, I believe that is No. 1, 21 is it? 22 A. Yes. 23 Q. Would be designed to take that without 24 having to bypass the STA? 25 A. Again, the drainage criteria for the STF 468 1 as I said is based on what it would be for the 2 original S-5A new pump, it was not based on flood 3 frequency -- excuse me, being able to do three 4 quarters of an inch runoff from the basin every day 5 so it is not sized to handled a one in ten year flood 6 event specifically. 7 Q. Is S-5A designed to remove three-quarters 8 of an inch from that entire basin, considering the 9 fact that it is now draining essentially all the way 10 to Lake Okeechobee? 11 A. S-5A is large enough to handle that. 12 (Pause) 13 Q. Can you backpump from the West Palm Beach 14 Canal? 15 A. Can you backpump from the West Palm Beach 16 Canal? 17 Q. Yes. 18 A. Meaning taking water -- what part of the 19 West Palm Beach Canal are you referring to? 20 Q. At S-2, can you backpump at S-2? 21 A. S-2 is at the intersection, if I can 22 remember, at the intersection of the Hillsborough and 23 North New River Canals, right? 24 Q. Right. 25 A. So it is not in the West Palm Beach Canal. 469 1 Hurricane gate 5 connects up to the West Palm Beach 2 Canal I believe or L-8. 3 Q. And you can't backpump from hurricane gate 4 5, can you? 5 A. No. It is only a gravity flow structure. 6 Q. So when you were talking about S-5A and 7 taking over three-quarters of an inch only two-thirds 8 of the way up to Lake Okeechobee, actually S-5A does 9 drain -- 10 A. That is correct, that upper one-third was 11 only in S-6, S-7 and S-8 basins, not in S-5A. 12 Q. When you are looking at average years for 13 S-5A, doesn't it only pump approximately 151 days out 14 of the year, about 41 percent of the time? 15 A. Probably in an average year that may be 16 accurate. I don't know specifically. 17 Q. And isn't it only used during stormy 18 vents? 19 A. It would only be used at the time that was 20 needed to bring the canal stage back down to normal. 21 Q. Would that be during stormy vents? 22 A. Generally when ra