1 1 Division of Administrative Hearings 2 Department of Administration, State of Florida 3 SUGAR CANE GROWERS COOPERATIVE ) 4 of FLORIDA; ROTH FARMS, INC.; and ) WEDGWORTH FARMS, Inc., ) 5 Petitioners ) V ) DOAH Case No. 92-3038 6 SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, an agency of the State ) 7 of Florida; et al., ) Respondents. ) 8 FLORIDA SUGAR CANE LEAGUE, INC.; ) 9 UNITED STATES SUGAR CORPORATION; ) and NEW HOPE SOUTH, INC., ) 10 Petitioners, ) V ) DOAH Case No. 92-3039 11 SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, an agency of the State ) 12 of Florida; et al., ) Respondents. ) 13 FLORIDA FRUIT and VEGETABLE ) 14 ASSOCIATION; LEWIS POPE FARMS; ) W. E. SCHLECHTER & SONS, INC., ) 15 and HUNDLEY FARMS, INC., ) Petitioners, ) 16 V ) DOAH Case No. 92-3040 SOUTH FLORIDA WATER MANAGEMENT ) 17 DISTRICT, an agency of the State ) of Florida; et al., ) 18 Respondents. ) 19 20 Deposition of Zan Kugler 21 Taken before Elaine V. Williams, Professional Reporter and Notary Public in and for 22 the State of Florida at large, pursuant to notice of taking deposition filed by the Petitioners in the 23 above cause. - - - 24 Thursday, January 27, 1994 319 Clematis Street, Suite 500 25 West Palm Beach, Florida 33401 10:12 a.m. - 12:57 p.m. 2 1 APPEARANCES: 2 On behalf of the Petitioners Florida Sugar 3 Cane League, Inc., United States Sugar Corp., and New South Hope, Inc.: 4 Earl, Blank, Kavanaugh & Stotts, P.A. One Biscayne Tower, Suite 3636 5 Two South Biscayne Boulevard Miami, Florida 33131 6 By: RICHARD BURGESS, ESQUIRE 7 On behalf of the Respondent SFWMD: South Florida Water Management District 8 3301 Gun Club Road West Palm Beach, Florida 33416-4680 9 By: None present and 10 Popham, Haik, Schnobrich & Kaufmann, Ltd. 4000 International Place 11 100 Southeast Second Street Miami, Florida 33131 12 By: DANIEL McGRATH, ESQUIRE 13 On behalf of the Intervenor, United States of America: Department of Justice 14 155 South Miami Avenue, Suite 627 Miami, Florida 33130-1693 15 BY: None present 16 17 - - - 3 1 - - - 2 I N D E X 3 - - - 4 5 WITNESS: DIRECT CROSS REDIRECT RECROSS 6 Zan Kugler 7 BY MR. BURGESS: 4 8 9 - - - 10 E X H I B I T S 11 - - - 12 13 NUMBER PAGE NO. 14 Petitioner's Exhibit A 64 Petitioner's Exhibit B 68 15 4 1 P R O C E E D I N G S 2 - - - 3 Thereupon, 4 Zan Kugler, 5 being by the undersigned Notary Public first duly 6 sworn, was examined and testified as follows: 7 THE WITNESS: I do. 8 DIRECT (Zan Kugler) 9 BY MR. BURGESS: 10 Q. Mr. Kugler, my name is Rick Burgess. I'm 11 an attorney with Earl, Blank, Kavanaugh and Stotts in 12 Miami, Florida, and we represent the Florida Sugar 13 Cane League and United States Sugar Corporation in 14 the SWIM Plan challenge. I'm going to be asking you 15 some questions today and I would ask you to let me 16 know if you don't understand my question. I'll 17 attempt to rephrase it for you. 18 Where are you employed, sir? 19 A. South Florida Water Management District. 20 Q. How long have you worked there? 21 A. I began in November of '84. 22 Q. Where were you employed before that? 23 A. I worked for a contractor, construction 24 contractor, Hobbs Construction. 25 Q. Is that local? 5 1 A. Panama City. 2 Q. What schools or colleges, universities have 3 you attended? 4 A. Undergraduate degree in civil engineering 5 from the University of Pittsburgh, graduate master's 6 degree in civil engineering from the New Jersey 7 Institute of Technology. 8 Q. Where is the New Jersey Institute of 9 Technology located? 10 A. Newark, New Jersey. 11 Q. What was your degree there? 12 A. Civil. Civil engineering. 13 Q. What did you do at Hobbs Construction? 14 A. I was a project engineer for construction 15 of a state prison just west of Miami. 16 Q. Before Hobbs, where were you? 17 A. I was with the U.S. Army Corps of 18 Engineers, chief of construction out of their Miami 19 office. 20 Q. How long were you with the Corps? 21 A. I was four years with the Corps. 22 Q. In the Miami office? 23 A. Right. 24 Q. I'm sure in four years you worked on a lot 25 of projects for the Corps, but what were some of the 6 1 larger ones? 2 A. Miami Beach restoration, Port Everglades 3 Harbor deepening, numerous structures for the Water 4 Management District in regards to the South Central 5 Flood Control Project, Khrome Avenue Retention 6 Center. 7 Q. At one time you were listed as a witness or 8 potential fact witness in the SWIM Plan challenge. 9 Do you know now whether you are going to testify at 10 the hearing? 11 A. I don't know, no. 12 Q. Has anyone told you one way or the other? 13 A. No. 14 Q. Did you know that you were listed as a fact 15 witness for the hearing? 16 A. No. 17 MR. McGRATH: It is my understanding that 18 he is no longer identified as a witness. 19 BY MR. BURGESS: 20 Q. When you joined the District in '84, what 21 was your position? 22 A. I was Senior Civil Engineer. 23 Q. What is your position now? 24 A. Director, Engineering Division. 25 Q. Between senior civil and director, what 7 1 other positions have you held? 2 A. I held Director of Engineering Construction 3 Division, which is the precursor of the Engineering 4 Division itself. 5 Q. How long have you been a director of the 6 Engineering Division? 7 A. I believe since -- well, one year after 8 joining the District I was promoted to Director. 9 Q. Have you yourself ever been a plaintiff or 10 defendant in any lawsuit? 11 A. No. 12 Q. Have you ever testified in either 13 administrative proceedings or in civil proceedings? 14 A. No. 15 Q. Have you ever had your deposition taken 16 before? 17 A. No. When you say, "civil proceedings," 18 could you explain? 19 Q. Administrative proceeding under the Florida 20 or United States Administrative Code. 21 A. No. 22 Q. And during your tour with the Corps you 23 were -- you didn't testify in an administrative 24 proceeding? 25 A. No. 8 1 Q. Okay. So it is safe to say you have never 2 been qualified as an expert civil engineer? 3 A. I did testify as an expert witness for a 4 federal fraud trial. 5 Q. Okay. What were you qualified as an expert 6 in? 7 A. Basically, my experience as chief of 8 construction for the Corps. 9 Q. You are familiar with the Settlement 10 Agreement entered into between the District and the 11 U. S. Government? 12 A. Yes. 13 Q. Okay. Did you have any involvement in the 14 formulation of that Settlement Agreement? By 15 "formulation," I mean the negotiation or negotiations 16 that led up to the document itself. 17 A. No. 18 Q. How about with respect to any of the 19 appendices; including, I believe it is, Appendix C 20 that addresses the Stormwater Treatment Areas? 21 A. No. 22 Q. Now, the SWIM Plan that we are here on 23 today is the plan adopted by the governing board in 24 March of 1992. Were you involved in the formulation 25 of that plan? 9 1 A. No. 2 Q. Okay. There is an appendix to that SWIM 3 Plan. Again, I believe it is Appendix E or F. It is 4 an appendix that deals with the eight meter a year 5 settling rate and the effective treatment area for 6 the Stormwater Treatment Areas. Were you involved in 7 the preparation of that appendix? 8 A. No. 9 Q. There is a document that is, I think, 10 referred to in general parlence as the Mediated 11 Technical Plan, and there is a conceptual design 12 document that has been prepared by Burns & McDonnell 13 dated November 5, 1993. Are you familiar with the 14 Mediated Technical Plan? 15 A. Yes, I am. 16 Q. Are you familiar with that draft appendix? 17 A. Yes, I am. 18 Q. Okay. Were you involved -- again, by 19 "involved," I mean in the formulation of the Mediated 20 Technical Plan itself -- involved in negotiations? 21 A. No. 22 MR. McGRATH: I would, just for the record, 23 object to any line of questions regarding the 24 mediated plan primarily as being irrelevant 25 since the focus of the litigation is the March 10 1 '92 plan. 2 BY MR. BURGESS: 3 Q. How about with respect to the draft 4 Appendix A? For the record, the document's entitled 5 Appendix A to Settlement Agreement Conceptual Design 6 of Mediated Technical Plan, Draft, November 5, 1993. 7 Were you involved in the formulation of that document 8 at all? 9 A. Yes. 10 Q. What was your involvement? 11 A. I administered the contract with 12 Burns & McDonnell to produce the document. 13 Q. What is your role with respect to the -- 14 let's start with contract 3021 between the District 15 and Burns & McDonnell. 16 A. My role was project manager of that 17 particular consultant agreement. 18 Q. What was the purpose of that consultant 19 agreement? 20 A. The original purpose of that agreement was 21 to develop a conceptual plan to be presented to the 22 Board in regards to the Everglades Protection 23 Project. 24 Q. How are the SWIM Plan and the Everglades 25 Protection Project related, if at all? 11 1 A. The protection project was, in essence, the 2 conceptual plan that was described by the SWIM Plan, 3 for which the SWIM Plan was the basis, I suppose. 4 Q. Did I describe that correctly? Is that 5 contract 3021? 6 A. Yeah, right. C-3021. 7 Q. Were you project manager for contract 8 C-0041 with Burns & McDonnell, which I believe was 9 the ENR contract? 10 A. I believe I was, yes. 11 Q. And did C-9125 replace the 0041 contract? 12 A. That is correct, yeah. 13 Q. What is the status of the 0041, or the ENR 14 contract, as you sit here today? 15 A. I believe that contract has been closed 16 out. 17 Q. To your knowledge, is Burns & McDonnell 18 doing any other work relative to the ENR project at 19 this time? 20 A. No. No. 21 Q. What is the status of the ENR project at 22 the present time? 23 A. In regards to the Engineering Division, we 24 are complete with that project. We have completed 25 our task. 12 1 Q. Do you have any involvement in the -- or 2 did you have any involvement in the application for 3 operating permit from the DER with respect to the ENR 4 project? 5 A. No. 6 Q. Do you now have any involvement with the 7 application to the EPA for an NPDS permit for that 8 project? 9 A. No, I don't. 10 Q. Contract 2059 that took the place of 0041, 11 what is the status of that contract? 12 A. That particular contract I believe has been 13 also closed out. It's been replaced by a subsequent 14 general service contract. 15 Q. What is the number on that one, if you 16 know? 17 A. I don't. I think -- oh, boy -- C-50-50, I 18 believe. But there's too many contracts. 19 Q. Okay. What is Burns & McDonnell's task 20 under that contract? 21 A. That is a general service contract. Their 22 particular assignment will come under subsequent 23 amendments. They have not received any to date yet 24 on that contract. It's just been recently executed. 25 To go back, on the other general service contract you 13 1 mentioned before -- 2 Q. 30? 3 A. -- C-91 -- what is it? C-91 -- 4 Q. 2059? 5 A. Yeah. There are some amendments still 6 outstanding on that that deliverables are due, so 7 that contract still is in effect. 8 Q. Okay. What are those deliverables? 9 A. I believe there's some amendments in regard 10 to construction face support and the S-13 repowering 11 project. That is the only outstanding one that I can 12 remember. 13 Q. Okay. 3021, what is the status of that 14 contract? 15 A. 3021, there has been three amendments 16 issued with regards to 3021. Amendment 3 is 17 currently -- we have not issued a Notice to Proceed 18 on Amendment Number 3. Amendment Number 2 is 19 complete through the draft document, which is 20 Appendix A of the technical plan. Amendment Number 1 21 is essentially complete. 22 Q. Amendment 1 was for the conduct of 23 preliminary engineering analysis? 24 A. It was. Yes. There's a number of tasks 25 involved in that in very numerous tasks. Basically, 14 1 it was a data gathering effort. 2 Q. Amendment 2? 3 A. Amendment 2 originally was defined as a 4 plan formulation. That was the title of the 5 amendment. It was to produce a conceptual plan to be 6 presented to the Board. It was subsequently 7 redefined. The scope was rewritten to support the 8 mediated technical group through their mediation 9 effort. 10 Q. When was that rewritten? Do you know? 11 A. That was probably in a time frame of March 12 to somewhere in May. 13 Q. '93? 14 A. '93. 15 Q. And then so with the publication of the 16 draft Appendix A to the mediated plan, it is your 17 opinion that the Amendment 2 has been satisfied? 18 A. It is complete through the draft. We are 19 due a final document on that Appendix A, which he has 20 not completed nor do we have any idea how we are 21 going to complete that, no. 22 Q. Is there a date for that deliverable? 23 A. No. We have just -- we, I think, at the 24 last Board meeting got approval for a 180 day 25 extension of that particular amendment. 15 1 Q. I wanted to ask you about that. There was 2 an item on the January 13 Board agenda to authorize a 3 change to Amendment 2 entitled Plan Formulation to a 4 Continuing Contract with Burns & McDonnell for the 5 General Design of the Everglades Protection Project 6 to extend the time for engineering services by 180 7 days at no additional cost to the District. When 8 this says "authorize a change," is the change just to 9 extend the time? 10 A. Right. Right. I think there was an 11 October date that was the official completion date of 12 that amendment and we have gone through the 13 administrative steps necessary to extend that. 14 Q. Okay. So it has been extended? 15 A. Yeah. It was authorized by the Board. 16 Q. From when? 180 days from when? 17 A. From the previous completion date, which 18 again I'm not sure what that date was, but it is 19 October, I believe, of '93. 20 Q. Now, Amendment Number 3, what does that 21 deal with? 22 A. Amendment Number 3 was again written to do 23 the preliminary engineering in regards to the 24 Mediated Technical Plan. 25 Q. Is that similar to a task that 16 1 Burns & McDonnell performed with respect to the 2 conceptual design document; the March, I believe -- 3 I'm sorry -- October '91? 4 A. This is more the next phase or the next 5 step that you would take after a conceptual design. 6 Q. Okay. Did Burns & McDonnell do any 7 preliminary engineering similar to what is 8 contemplated under Amendment 3 for any other version 9 of the STA? 10 A. No. 11 Q. And that amendment has been -- what is the 12 status of it? 13 A. It's been authorized by the Board, but 14 there has been no Notice to Proceed given to proceed 15 with the work as defined. 16 Q. Okay. When was it authorized? 17 A. I don't remember. 18 Q. Do you know what the scope of that 19 amendment is from a price standpoint? 20 A. It was on the order of $750,000. 21 Q. What is the next step? 22 A. The next step would be to solicit Detail 23 Design Consultants to produce the construction plans 24 and specifications that would -- 25 Q. Is that authorization to Burns & McDonnell 17 1 or just in general to solicit bids or how does that 2 work? 3 A. You mean the detailed phase? 4 Q. Yeah. 5 A. The detailed phase would be a new 6 solicitation through the CCNA procedures for numerous 7 consultants to do the component parts of the project. 8 Q. Okay. The preliminary engineering for 9 Mediated Technical Plan, which you described as 10 Amendment 3, is that what we are discussing here or 11 is that something separate? 12 A. Okay. You have got me confused there. 13 Q. Okay. Earlier you testified that Amendment 14 3 was written to do the preliminary engineering for 15 Mediated Technical Plan; is that a correct statement? 16 A. Right. 17 Q. Okay. And since Burns & McDonnell had 18 operated under Amendment 1 and Amendment 2, I guess 19 I'm asking whether are they the ones that are going 20 to get the Notice to Proceed. 21 A. Yes. Amendment 3 is to their contract and 22 the Notice to Proceed is the official notice to them 23 to start the clock, if you will, on that amendment. 24 Q. Okay. 25 A. That was not done. 18 1 Q. When will that be done? 2 A. It doesn't look like it will be done now 3 because of the mediated situation. 4 Q. So as far as -- 5 A. Well, let me step back and maybe correct 6 that statement. I have no -- as of this point in 7 time, I do not know whether that Notice to Proceed 8 will be given or not and that in fact the Mediated 9 Technical Plan will be implemented, so right now we 10 are kind of on hold and waiting for direction. 11 Q. Where will you get that direction? 12 A. Well, from my executive office. 13 Q. Who does that usually come from? With 14 respect to this STA type work with Burns & McDonnell, 15 who does that direction come from? 16 A. Okay. My direction would come from my 17 supervisor Bernie Schattner, who is the department 18 head, and his immediate supervisor now is Tom 19 MacVicar. 20 Q. Is this situation of this amendment being 21 on hold, is that the same as the process you earlier 22 described with respect to a final Appendix A due 23 under Amendment 2? 24 A. Right. 25 Q. Is that also on hold? 19 1 A. Right. 2 Q. Is Burns & McDonnell doing anything now as 3 far as the STAs are concerned that you're aware of? 4 A. No. No. 5 Q. When was the last time you talked to Galen? 6 A. Yesterday morning. No, maybe afternoon. 7 Several times yesterday. 8 Q. Okay. What was that about, if they are not 9 doing anything? 10 A. About another project. 11 Q. Another project for the District? 12 A. Yeah. 13 Q. What is he working on besides STA? 14 MR. McGRATH: Just object to all of this. 15 BY MR. BURGESS: 16 Q. I'm just curious. 17 A. He's not working on anything for the 18 District right now that I'm aware of. Let me correct 19 that. You know, that's a job that is still under 20 construction that he's responsible for construction 21 face support. There is nothing active going on with 22 that at this time, but he does have that as an active 23 contract. 24 Q. Okay. Do you know how long the preliminary 25 engineering for the Mediated Technical Plan, 20 1 Amendment 3, how long Burns & McDonnell, time span, 2 how long they have to do that? 3 A. I believe the duration is 11 months. 4 Q. And as you sit here today, you have no idea 5 as to when they may be directed to proceed on that 6 amendment? 7 A. No, I don't. 8 Q. Okay. I know you testified earlier that 9 you did not have any direct involvement with respect 10 to the formulation of the SWIM Plan or the appendix. 11 Do you know who, on behalf of the District, was 12 involved with calculating either the settling rate or 13 estimating the effective acreage needed for STAs that 14 are described in the SWIM Plan? 15 A. No, I don't. 16 Q. Are you similarly a project manager for any 17 contracts between the District and Brown and 18 Caldwell? 19 A. Yes. 20 Q. How many contracts? 21 A. We have one contract; C-3051. Yeah, I 22 think that's right. 23 Q. How many amendments were there to that 24 contract? 25 A. There were six amendments to that one. 21 1 Q. What is the status of that contract and 2 those amendments? 3 A. That contract is complete. 4 Q. Including all amendments? 5 A. Right. 6 Q. There was a SAGE committee meeting in 7 February of 1993. You may or may not remember it, 8 but you did speak there. And you introduced Zack 9 Fuller and you talked about contract and amendments 10 and you said something to the effect that, "With 11 respect to Amendment 6, we have had meetings on this 12 document. There has been a number of additions that 13 we recognize have to be made, and we plan to follow 14 up with the additional work on the evaluation of 15 chemical treatments in a subsequent amendment to 16 Amendment Number 6, which is in the process of being 17 drafted now." Was that subsequent amendment to 18 Amendment Number 6 ever completed? 19 A. It never completed. 20 Q. Never proceeded? And why not? 21 A. The mediation began about that time. 22 Q. Are Brown & Caldwell working for the 23 District in any capacity? 24 A. I believe they are in the Planning 25 Department they have a contract with the C-51 West 22 1 project. 2 Q. What is that project? 3 A. That is the Corps of Engineers Flood 4 Control Project for the western end of the C-51 Palm 5 Beach Canal. 6 Q. What is the status of that project? 7 A. I don't know. 8 Q. You are not involved? 9 A. No. 10 Q. Are you involved with any contracts with 11 Brown & Caldwell? 12 A. No. 13 Q. I want to ask you some questions about some 14 documents. I'll be glad to show this to you. I have 15 a document here titled Water Budget Analysis for the 16 Everglades Agricultural Area, 1979 to 1990, by 17 Wassenu Abtew and Nagendra Khanal. Are you familiar 18 with that document? 19 A. I believe I have read that, yes. 20 Q. In what capacity have you reviewed this 21 document? 22 A. Background information for the project; 23 Everglades Protection Project. 24 Q. Okay. This particular document is stamped 25 "Draft" and the covering letter of October 6, '92 23 1 asks the recipient to please be aware that the 2 document still has a draft status. Are you aware 3 whether or not the document's ever been finaled? 4 A. No, I'm not. 5 Q. Let me show you what is titled Historical 6 Phosphorus Loads for the EAA, Draft, December '92, 7 prepared by Burns & McDonnell. Are you familiar with 8 that document? 9 A. Yes, I am. 10 Q. What is that document? 11 A. That is a deliverable Amendment 1 to 12 contract C-3021. 13 Q. Now, that is stamped "Draft." Do you know 14 whether that document has ever been finaled? 15 A. I don't remember, to be honest with you. 16 Q. That was the deliverable or a deliverable 17 under Amendment 1? 18 A. Basically, deliverables came in draft and 19 then they were finalized and you have a final 20 deliverable, so this is one as I mentioned earlier, 21 there were a number of tasks or components of 22 Amendment Number 1. This was one of those 23 deliverables. 24 Q. Which was a data gathering? 25 A. It was a data gathering. Basically, a 24 1 large portion of that amendment was a data gathering 2 effort. 3 Q. Do you know whether the historical 4 phosphorus loads that are contained in this draft 5 December '92 document were the ones that Galen Miller 6 used in his calculations to size the STAs? 7 A. I don't know. I can't comment for sure on 8 that. 9 Q. Would it be unusual if this document had 10 not been finaled? 11 A. The reason it wasn't finaled was the fact 12 that mediation began more or less at the time we were 13 trying to finalize documents and our attention 14 shifted to that support. 15 Q. Let me show you a document titled 16 Adjustments to EAA Discharges Due to Implementation 17 of BMP's, Draft, January '93. Are you familiar with 18 that document? 19 A. Yes, I am. 20 Q. And that also is stamped "Draft." Do you 21 know if that was ever finaled? 22 A. No, I'm not sure of that either. 23 Q. If it wasn't, was it for the same reason 24 that you just explained? 25 A. Yes. 25 1 Q. And that would be a deliverable under what 2 contract? 3 A. That is again the C-3021 contract, 4 Amendment Number 1. 5 Q. What was the reason that that document was 6 prepared, if you know? 7 A. It was basically development of the 8 engineering to a conceptual design for the 9 constructive wetlands alternative. 10 Q. Why was it important to make adjustments to 11 EAA discharges? 12 A. To be exact in response to that question 13 I'd have to refer to the document. 14 Q. Let me show you what is titled Phase 2, 15 Evaluation of Alternative Treatment Technologies, 16 February 18, 1993. Are you familiar with this 17 document? 18 A. Yes. 19 Q. And this is the Brown & Caldwell 20 deliverable? 21 A. Right. 22 Q. Under what contract? 23 A. C-3051. 24 Q. Okay. How about amendment -- 25 A. Amendment 4. 26 1 Q. And that document is complete? 2 A. There is a final version of that report. 3 Q. Okay. There is a final? 4 A. Yes. 5 Q. Do you know what the date on the final is? 6 A. No. 7 Q. Okay. Let me show you what is titled 8 Everglades Protection Project Recommended Effective 9 Areas of Stormwater Treatment Areas, Draft, April 10 '93. Are you familiar with that document? 11 A. Yes. 12 Q. That was a deliverable under what amendment 13 and what contract? 14 A. Amendment 1 of contract C-3021. 15 Q. And that too is stamped "Draft." Do you 16 know whether there is -- 17 A. Again, like the other ones of this 18 particular amendment, I'm not quite sure -- I believe 19 there is one that has not been finalized, and I'm not 20 sure which one of these hasn't. This may have been 21 finalized. I'm not sure. I think there is one 22 outstanding deliverable that still needs to be 23 finished. 24 Q. We have spoken, I think, about three 25 different Burns & McDonnell documents all that were 27 1 stamped "Draft." Are you saying only one of those 2 three has been finaled? 3 A. I believe there is only one that remains to 4 be closed out or finalized, and it is just -- again, 5 I believe it is an administrative matter, not so much 6 one of any new material or engineering work. 7 Q. Okay. Do you know, as you sit here today, 8 which one hasn't been final? 9 A. No. That is my problem. 10 Q. But it is one of those three? 11 A. I believe so, yeah. You could probably put 12 another one out here and I would -- like I said, 13 there were numerous deliverables of that, and that 14 particular amendment, to be honest with you, needs to 15 be finalized and closed out, and I probably will make 16 an action item for myself to do that when I get back 17 to my office. 18 Q. What particular amendment is that? 19 A. Amendment Number 1. 20 Q. Okay. Let me show you what appears to be a 21 letter, item of correspondence anyway, dated April 22 20, 1993 to you from Burns & McDonnell. Take a look 23 at that and tell me what that is. 24 A. This is a letter to me from Galen Miller in 25 regard to, I believe, the initial development of the 28 1 conceptual work for the Mediated Technical Plan, I 2 believe. Let me read this. Yes. I think part of 3 it's documentation in regard to some of the mediation 4 discussions. 5 Q. So that would have been done under the 6 amendment to Amendment 2? 7 A. It would be the rewritten Amendment 2 or 8 the changed scope of Amendment 2 to contract C-3021. 9 Q. Okay. I have another letter dated May 4, 10 '93 to you again from Galen Miller and ask you if 11 that similarly has reference to the conceptual 12 technical work under the Mediated Technical Plan. 13 A. Yes, this is also in regard to the 14 mediation effort and the development of the Mediated 15 Technical Plan; again, under Amendment 2 of the 16 contract C-3021. 17 Q. Same question with respect to this letter 18 to you from Burns & McDonnell dated May 5, 1993. 19 A. Yes. It again deals with Mediated 20 Technical Plan. 21 Q. Same question with respect to this letter 22 dated May 10, '93 to you from Burns & McDonnell. 23 A. Yes, this again deals with the Technical 24 Mediated Plan. 25 Q. Have those letters that you have said have 29 1 reference to the Mediated Technical Plan, would those 2 letter reports have been used for the preparation of 3 what we discussed earlier was Appendix A or the 4 conceptual design to the Mediated Technical Plan? 5 A. Yes. 6 Q. Let me go back to -- earlier this morning 7 you spoke in terms of the conceptual plan that 8 Burns & McDonnell had prepared was, in essence, the 9 conceptual plan for what was in the SWIM Plan. Is 10 that a correct statement? 11 MR. McGRATH: I would object to the extent 12 it is a mischaracterization of the witness' 13 testimony. 14 BY MR. BURGESS: 15 Q. Let me ask you, what is the conceptual plan 16 that Burns & McDonnell has prepared with regard to 17 the SWIM Plan? Is it the Mediated Technical Plan, is 18 it another document? 19 A. It was the March 31 document, conceptual 20 plan. 21 Q. Okay. What is the status of that March 31 22 document? 23 A. There has been no change to the status. 24 Q. Was that a final document? 25 A. Yes, the March 31st was. Yes. 30 1 Q. 1992? 2 A. '92, right. 3 Q. If my recollection serves me, there were 4 two different documents or two different conceptual 5 plans; is that right? 6 A. There was a document, a conceptual plan, 7 produced in October of '91 which was our first 8 attempt to develop a concept for the Settlement 9 Agreement and then it was subsequently changed 10 through a draft in late February of '92, and then the 11 final version in March of 31; March 31st of '92. 12 Q. Okay. To your knowledge, is it the March 13 31, '92 document that will be used as the design for 14 the STAs that are referenced in the SWIM Plan? 15 A. I don't know. 16 Q. We talked this morning about the SWIM Plan 17 and about Burns & McDonnell's work efforts and 18 putting together conceptual design for the Stormwater 19 Treatment Areas that are referenced in that SWIM 20 Plan. Is there a general design or a final design 21 past that conceptual design for those STAs? 22 A. No. 23 Q. Is the District intending to build the STAs 24 that are referenced in the SWIM Plan? 25 MR. McGRATH: I would object to the extent 31 1 you're asking this witness what the District 2 intends to do. 3 THE WITNESS: I don't know. 4 BY MR. BURGESS: 5 Q. Who would know? 6 A. I don't know if anyone knows. I don't 7 know. 8 Q. I know you weren't at Galen Miller's 9 deposition, but he had -- just assume for the 10 purposes of my question that he had said one of his 11 tasks under Amendment 2 was to review the various 12 analyses conducted by Brown & Caldwell and to produce 13 an overall plan for recommendation to the Board. Has 14 that been done, to your knowledge? 15 A. No, that was not done. It was subsequently 16 overridden by the mediation effort and the scope 17 changed. 18 Q. The scope changed to providing -- 19 A. His Amendment 2. 20 Q. -- to providing technical support in 21 support of the mediated plan? 22 A. That is correct. 23 Q. As you sit here today, do you know whether 24 Burns & McDonnell will be tasked with -- well, strike 25 that. What is the status of the Everglades 32 1 Protection Project? 2 MR. McGRATH: If you know. 3 THE WITNESS: Could you maybe expand on 4 that question to be more specific? 5 BY MR. BURGESS: 6 Q. Okay. My understanding was that Galen 7 Miller and Burns & McDonnell were tasked with 8 reviewing the work of Brown & Caldwell in addition to 9 work that they were conducting, and formulating a 10 recommendation to the Governing Board, which would be 11 the preferred alternative, if you will, for the 12 Everglades Protection Project. What is the status of 13 that undertaking, if you know? 14 A. It is basically put on hold and waiting for 15 direction. 16 Q. Okay. Based upon some of the documents we 17 have looked at here today, it seems to me that 18 Burns & McDonnell has prepared two different 19 conceptual designs regarding Stormwater Treatment 20 Areas; one is the March 31, '92 conceptual design and 21 one is the November 5, '93 conceptual design. Both 22 reference Stormwater Treatment Areas, however. Do 23 you know what conceptual design the District will 24 support with respect to Stormwater Treatment Areas? 25 MR. McGRATH: Again, object. 33 1 THE WITNESS: No, I don't. 2 BY MR. BURGESS: 3 Q. I'm going to refer to the conceptual design 4 for the Mediated Technical Plan, dated November 5, 5 1993, and I know that you earlier testified you had 6 some familiarity with the Mediated Technical Plan. I 7 want to read from the document and ask you some 8 questions about some statements. 9 I am on Roman Numeral page II-3 of part 2, 10 titled Phosphorus Reduction Technologies. It is a 11 paragraph at the bottom that says, "The conceptual 12 design varied from that suggested in the SWIM Plan 13 primarily in that all discharge from the four primary 14 pumping stations would be treated in the STAs. The 15 SWIM Plan Appendix F had contemplated that flows and 16 phosphorus loads originating from sources outside the 17 regulated portions of the EAA would be bypassed 18 around the STAs and discharged untreated to the EPA 19 or otherwise handled." 20 Let me ask you, sir, is it your 21 understanding that the conceptual design for the 22 mediated plan did differ from the SWIM Plan in that 23 discharge from four primary pumping stations would be 24 treated in the STAs? 25 MR. McGRATH: Again, just for the record, 34 1 let me object to all questions about the 2 mediated plan as not being relevant to the focus 3 of this litigation. 4 MR. BURGESS: Okay. It is certainly 5 relevant for purposes of discovery, though. 6 They spent a gazillion (sic) dollars on it. 7 THE WITNESS: There were differences. 8 BY MR. BURGESS: 9 Q. Okay. And to your understanding, does the 10 existing SWIM Plan that the District intends to 11 support, according to counsel here today, still only, 12 to your knowledge, address flows and loads 13 originating from sources inside the EAA? 14 A. The conceptual design as developed in the 15 March 31 document by Burns & McDonnell has not 16 changed. 17 Q. To your knowledge, are they -- well, you 18 testified they are not working on that. 19 A. We have done nothing since the 31st 20 document. 21 Q. But in any event, the Technical Mediated 22 Plan does deal with flows and phosphorus loads 23 originating from sources outside the EAA? 24 A. There's a number of differences, yes. 25 Q. That was one of them? 35 1 A. Uh-huh. 2 Q. Same document, page Roman Numeral II-4. 3 The paragraph at the bottom reads, "The current 4 proposed SWIM Plan and the March 1, 1992 conceptual 5 design for the Stormwater Treatment Areas included no 6 specific mechanisms for increasing the flow of water 7 to the EPA to offset volumetric reductions resulting 8 from the implementation of BMP's and the construction 9 of STAs." Is that a true statement, as far as you 10 know? 11 A. I believe so, yes. 12 Q. Does the mediated plan include specific 13 mechanisms for increasing the flow of water to the 14 EPA to offset -- 15 A. Yes, I believe it does. 16 Q. -- reduction? Any intentions, as far as 17 you're aware of, that either the District itself or 18 through its contractor would seek to amend the 19 present plan to allow for consideration of those 20 volumetric reductions? 21 A. I have no knowledge of any action in that 22 regard. 23 Q. Okay. This particular conceptual design 24 document, dated November 5, '93, prepared by 25 Burns & McDonnell contains some recommendations with 36 1 regard to basin scale alternative treatment 2 technologies. On page Roman Numeral II-12, paragraph 3 D, it states, "The following are recommendations 4 concerning the basins scale alternative treatment 5 technologies. Number one, direct filtration should 6 be considered a viable alternative to STAs and in all 7 basins of the EAA direct filtration should be 8 included in the upcoming Plan Formulation Phase of 9 the Everglades Protection Project." 10 Okay. Do you know, sir, to what extent the 11 District is considering direct filtration as 12 alternatives to STAs? 13 A. No, I don't. 14 Q. Okay. What reference is meant by this 15 upcoming Plan Formulation Phase of the Everglades 16 Protection Project? 17 MR. McGRATH: Again, let me just object to 18 the extent the witness has already testified 19 that he was not involved in the preparation of 20 that document. 21 MR. BURGESS: But he's the project 22 administrator for the contractor who prepared 23 the document. 24 THE WITNESS: I'm not sure what that 25 statement references in terms of plan 37 1 formulation. 2 BY MR. BURGESS: 3 Q. "Plan" is capitalized and "Formulation" is 4 capitalized. 5 Are you familiar with the Plan Formulation 6 Phase for the Everglades Protection Project? 7 A. In regard to the original SWIM and 8 Settlement Agreement, yes. In regards to the 9 Technical Mediated Plan, that document, I believe, 10 was, in essence, the culmination of plan formulation, 11 that November document, so I'm not quite sure what 12 that statement means. 13 Q. So you weren't aware of any additional Plan 14 Formulation Phase due with respect to the Everglades? 15 A. No. The next amendment, Amendment 3, would 16 go into the preliminary engineering of that 17 particular conceptual design that you have in your 18 hands there. 19 Can I say something off the record here? 20 MR. BURGESS: Yes, he can go off the 21 record. 22 (Discussion held off the record.) 23 MR. BURGESS: Okay. We can go back on. 24 BY MR. BURGESS: 25 Q. I don't want you to speculate, Mr. Kugler, 38 1 but after you took a brief look at that particular 2 section in this conceptual design for the Mediated 3 Technical Plan, does that recommendation, language of 4 Galen Miller, with respect to upcoming formulation 5 phase of the Everglades Protection Project, does that 6 mean anything more to you? 7 A. I believe it is in reference to the SWIM 8 Plan, the conceptual design development for the SWIM 9 Plan, and I do not believe it has meaning in regards 10 to the Technical Mediated Plan. 11 Q. Okay. Is there an upcoming Plan 12 Formulation Phase for the SWIM Plan? 13 A. No, not that I am aware of at this time. 14 Q. But there was, apparently, in November of 15 '93? 16 A. When the original Amendment 2 was written, 17 this plan formulation was for that conceptual March 18 31 document which was the SWIM conceptual design. 19 Q. Okay. The original amendment to contract 20 3021 was changed. Originally, what was it? 21 A. Plan formulation for the conceptual design 22 of the SWIM based conceptual project, you know. 23 Q. Okay. What was involved in that plan 24 formulation? 25 A. The plan formulation was to utilize the 39 1 works of Brown & Caldwell, the findings of Brown & 2 Caldwell, and to develop a recommendation to go and 3 be presented to the Board in June at their June Board 4 meeting. 5 Q. June of 1993? 6 A. '93, yeah. 7 Q. What was the recommendation for or to be 8 for? 9 A. It was to further develop the March 31st 10 conceptual design or change it, if in fact the 11 technology, the chemical treatment technology, proved 12 to be a more viable cost effective technology. 13 Q. Did chemical treatment ever prove to be a 14 viable more cost effective technology? 15 A. The results of that are in the 16 Brown & Caldwell amendments. Their recommendations 17 are there. We did not pursue one of the 18 recommendation, which was the further study of the 19 chemical treatment alternative. 20 Q. Why was that not pursued? 21 A. The mediation efforts came into existence 22 and we focused our support to that. 23 Q. Do you know whether there are any plans to 24 resurrect a look at the Brown & Caldwell Amendment 6 25 alternative recommendation? 40 1 A. No, I'm not aware of any. 2 Q. Are you aware of any plans to further 3 develop the March 31, 1992 technical design -- 4 A. No. 5 Q. -- document? 6 A. No. 7 Q. You are not aware of any plans to develop 8 that and you are not aware of any plans to change it 9 in favor of chemical treatment? 10 A. Huh-uh. 11 Q. Correct? 12 A. No. 13 Q. In your estimation as a civil engineer with 14 experience on projects in South Florida and in the 15 Everglades, is that March 31, 1992 conceptual design 16 document complete in the sense that you could hand 17 that to construction engineers and they could begin 18 the construction of the Stormwater Treatment Areas? 19 MR. McGRATH: Let me just object to the 20 extent you're asking the witness for an opinion 21 and he is not designated even as a witness, let 22 alone an expert witness. 23 MR. BURGESS: Okay. But he is a civil 24 engineer. As a human being, he's entitled to 25 opinions and he can express it in depositions. 41 1 MR. McGRATH: But whether those opinions 2 are relevant to litigation are in question. 3 THE WITNESS: No. 4 BY MR. BURGESS: 5 Q. "No" what? 6 A. No, it is not complete in terms of a set of 7 plans and specifications to be given to a 8 construction contractor. 9 Q. What would need to be done? 10 A. You need to further develop through 11 preliminary engineering phase and then through a 12 detailed design phase to produce contract 13 construction drawings and specifications. 14 Q. I'm sorry. You said contract design phase? 15 A. You would have two phases, subsequent 16 phases. You would have a preliminary engineering 17 phase and you would have a detailed design phase. 18 The detailed design would, in essence, be the 19 preparation of the plans and specifications that 20 would form part of a construction contract. 21 Preliminary engineering would basically be more field 22 reconnaissance geotechnical work survey work, 23 refinement of a conceptual design. 24 Q. With respect to the existing conceptual 25 design, the March 31, '92 conceptual design and the 42 1 present SWIM Plan, how long would the preliminary 2 engineering phase take to complete? 3 A. I think a reasonable duration for the 4 preliminary engineer phase would be from nine to 12 5 months. 6 Q. And the detail design phase, would that 7 commence at the end of the preliminary engineering 8 phase or would they be coextensive? 9 A. There could be some overlapping at the end 10 where you could solicit for your design consultants 11 prior to the finalization of the phase preliminary 12 engineer phase. 13 Q. Okay. And what would be the duration of 14 the delay design phase? 15 A. That would vary in regards to the physical 16 components. The pump station would require longer 17 duration than would maybe levee design or control 18 structure design. 19 Q. Can you give me a ballpark on how long? 20 A. I would say overall, if you want to look at 21 a duration to complete all designs, I would say in 22 the order of a year-and-a-half to two years. 23 Q. Neither of these phases, the preliminary 24 engineering phase or detail design phase, have been 25 commenced with respect to the STAs that are 43 1 referenced in the March '92 SWIM Plan? 2 A. No. 3 Q. Would that be the next logical step for the 4 District; to commence construction of the STAs that 5 are referenced in the SWIM Plan? 6 MR. McGRATH: Object to the form of the 7 question. 8 BY MR. BURGESS: 9 Q. Well, from an engineering standpoint, would 10 that be the next logical step? 11 A. If it is a given that the document is 12 accepted and authorized -- 13 Q. What document? 14 A. The March 31 document. Then, yes, you 15 would move into a preliminary phase and then finally 16 into the delay design phase. 17 Q. Okay. And neither of those phases have 18 been done, obviously, either for the conceptual 19 design or for the Mediated Technical Plan; is that 20 correct? 21 A. No. 22 Q. And do your estimates with respect to time 23 apply equally to the conceptual design for the 24 Mediated Technical Plan? 25 A. Yes. More or less, the technical plan, the 44 1 Mediated Technical Plan, is larger in scope, larger 2 project; therefore, more effort. But durations would 3 be very similar, I would say. 4 Q. Are you familiar with the time frame set 5 forth in the SWIM Plan with respect to construction 6 of the STAs? 7 A. Yes. 8 Q. As you sit here today, do you have an 9 opinion as to whether or not were we to commence the 10 preliminary engineer phase tomorrow, that the STAs 11 referenced in the SWIM Plan could be on line and 12 functioning within the time frames that are set forth 13 in the SWIM Plan? 14 MR. McGRATH: Object. Again, asking this 15 witness for his opinion based on his expertise. 16 THE WITNESS: No, I don't believe it can be 17 done. 18 BY MR. BURGESS: 19 Q. Okay. Why not? 20 A. There is just not enough -- there isn't 21 enough time between the July -- I believe July '97 22 was the completion date that was stated in the 23 Settlement Agreement. And if you put everything in 24 sequence and put the construction period behind the 25 design periods that I indicated earlier, I think that 45 1 you would probably miss that target date. 2 Q. We have nine to 12 months for the 3 preliminary engineering phase, one-and-a-half to two 4 years for the delay design phase, then how long is 5 the construction phase? 6 A. Your longest construction component would 7 probably be the pump stations, which you would need 8 at least two years, 18 months to two years, depending 9 on the size of the station construction period. 10 Q. As you sit here today -- you, as the 11 project administrator -- is that the title? 12 A. I think the proper title is manager. 13 Project manager. 14 Q. As the project manager with respect to the 15 conceptual design contractor for the STAs, as you sit 16 here today, you are not aware of any intentions on 17 the part of the District to order Burns & McDonnell 18 to begin either the preliminary engineering phase or 19 the detail design? 20 A. No. 21 Q. Okay. The same document we were discussing 22 earlier, the conceptual design for the Mediated 23 Technical Plan, same paragraph with respect to the 24 recommendations, it says that, paragraph number two, 25 "bench scale and pilot plants testing of the direct 46 1 filtration process on EAA waters should proceed 2 immediately." Are you aware of any such -- 3 A. No. 4 Q. -- testing that has begun? 5 A. No. 6 Q. Are you aware of why this pilot scale 7 investigation of direct filtration never commenced? 8 A. All work more or less stopped at the end of 9 the mediation period. 10 Q. The end of the mediation period? 11 A. Well, the failure of the mediation effort 12 to produce an agreement, work more or less was put on 13 hold at that time. 14 Q. Are you aware of any discussions as to the 15 commencement date for pilot studies of direct 16 filtration? 17 A. No. 18 Q. Who would be, at the District, who would be 19 knowledgeable on that; if there was any intentions to 20 do filtration and pilot scale size? 21 A. Well, obviously, the Executive -- I would 22 have to refer you to the Executive Office in regard 23 to maybe that type of planning, but the research 24 group division might have in their study plan for the 25 ENR project review and research of the chemical 47 1 treatment alternatives. 2 Q. And who would be in charge of that? 3 A. Tom Fontaine is the head of that division, 4 Tony Federico is his supervisor. 5 Q. Okay. Do you know -- you said they may. 6 Do you know whether or not the research group study 7 division for the ENR is looking at chemical 8 treatment? 9 A. No. 10 Q. Okay. Are you aware or were you aware of 11 the fact that this conceptual design for the Mediated 12 Technical Plan adopted a settling rate constant that 13 was different from that contained in the SWIM Plan? 14 A. Yes. 15 Q. Okay. I believe the one in the SWIM Plan 16 was eight meters a year; is that correct? 17 A. Yes. 18 Q. And this document has a settling rate of 19 10.25? 20 A. Yes. 21 Q. Okay. Have you yourself done any 22 independent calculations to verify either of the 23 settling rates? 24 A. No. 25 Q. Do you know whether Burns & McDonnell did? 48 1 A. I don't believe so. 2 Q. Where did they get those figures from? 3 A. I believe they referenced the Justice 4 Department consultants. 5 Q. Do you have, as you sit here today, any 6 idea as to which settling rate the District would 7 intend to support at the hearing on the March '92 8 SWIM Plan? 9 MR. McGRATH: Same objection as before. 10 THE WITNESS: No, I don't. 11 BY MR. BURGESS: 12 Q. Do you have any opinion as to which 13 settling rate is correct and should be used to size 14 Stormwater Treatment Areas? 15 A. No, I don't. 16 Q. Do you know whether Burns & McDonnell has 17 any opinion? 18 A. No, I don't. 19 Q. Okay. There is a statement on page Roman 20 Numeral II-22 that says, "The March 31, '92 21 conceptual design was based on treatment of all 22 historic discharges to the EPA, without distinction 23 as to source, and to that extent was inconsistent 24 with the current proposed SWIM Plan for the 25 Everglades, which considers only treatment of 49 1 agricultural discharges from the EAA." 2 Sir, as you sit here today, do you know 3 whether, with respect to the SWIM Plan challenge that 4 we are involved in, the District will support a 5 design for the STAs which will be based upon 6 treatment of all historic discharges to the EPA 7 without distinction as to source or whether they will 8 support a design which considers only the treatment 9 of agricultural discharges from the EAA? 10 MR. McGRATH: Same objection as before 11 regarding the question asking the witness for 12 what the District will do. 13 THE WITNESS: No, I'm not. 14 BY MR. BURGESS: 15 Q. Do you have an opinion as to -- as a civil 16 engineer experienced in Everglades projects, do you 17 have an opinion as to whether or not the design for 18 Stormwater Treatment Areas should treat all historic 19 discharges to the EPA or only those from agricultural 20 areas? 21 A. No. 22 Q. There is a statement on Roman Numeral II-23 23 that says, "Tt was the intent that, given no other 24 substantive changes (such as the potential selection 25 of an alternative treatment technology) the current 50 1 proposed SWIM Plan for the Everglades be modified to 2 reflect the above changes in the required effective 3 treatment areas together with certain other 4 modifications to the basis for design." 5 Let me ask you this, sir: Were you aware 6 that the effective treatment area acreage varied 7 between the March 31, 1992 conceptual design based 8 upon eight meters a year and the calculated effective 9 treatment area based upon the 10.25 meters a year? 10 A. Yes. 11 Q. Okay. I am going to give you the document 12 so you can see where I am reading from. 13 A. Uh-huh. 14 MR. McGRATH: Is there a question pending? 15 BY MR. BURGESS: 16 Q. Oh, yes. I'm sorry. Do you know what 17 Mr. Miller means by the language, "It was the 18 intent"? 19 A. No, I don't. 20 Q. Do you know of any plans presently to 21 modify the SWIM Plan to reflect the differences in 22 acres referenced on that page? 23 A. No. 24 Q. Do you have any opinion as to whether or 25 not the SWIM Plan should be modified to reflect the 51 1 differences in acreage? 2 MR. McGRATH: Same objection as before. 3 THE WITNESS: No, I don't. 4 BY MR. BURGESS: 5 Q. What would be a reason to amend the SWIM 6 Plan to reflect these different treatment acres? 7 A. Well, I suppose you could say there's been 8 a change. 9 MR. McGRATH: Let me object to the extent 10 that the question requires the witness to 11 speculate. 12 MR. BURGESS: I don't want him to 13 speculate, but obviously, you know, as the 14 project coordinator for the contractor that 15 wrote this document, who was verbalizing that 16 there is an intent to amend the SWIM Plan to 17 reflect changes in effective treatment areas, 18 I'm asking him what would be one of the reasons 19 that you would amend the SWIM Plan to reflect 20 the different treatment areas? I think he can 21 answer the question. 22 MR. McGRATH: I don't even understand the 23 question. 24 THE WITNESS: Yeah. I am a bit confused 25 with the question. Restate it in maybe a 52 1 different -- 2 BY MR. BURGESS: 3 Q. Okay. The Burns & McDonnell -- referencing 4 in this document that there was an intent, given no 5 other substantive changes, such as chemical 6 treatment, that the current SWIM Plan be modified to 7 reflect changes in what they say are required 8 effective treatment areas, and so in November of '93 9 there apparently was an intent. You testified you 10 don't know whose intent it was or why there was an 11 intent. 12 MR. McGRATH: Or what that intent was. 13 BY MR. BURGESS: 14 Q. Right. Well, the intent is clear here; to 15 modify the current SWIM Plan to reflect changes in 16 required effective areas together with certain other 17 modifications to the basis for design. 18 I'm asking you if you, in your capacity as 19 the overseer for this particular contractor, are 20 aware of why the SWIM Plan might be modified to 21 reflect changes in required effective treatment 22 areas. What would be the purpose to amend the SWIM 23 Plan? 24 A. One purpose might be a change in the basis 25 design formulation for calculating the effective 53 1 areas, which is the change from eight meters to 10.2 2 meters per year. 3 Q. Okay. What changes in the design might be 4 occasioned by a change in the settling rate from 5 eight meters to ten meters? This document references 6 the effective treatment areas would get smaller. Is 7 that your understanding? 8 A. Yeah. 9 Q. Okay. Were the District to make changes to 10 the SWIM Plan, would a new conceptual design document 11 be necessary? 12 MR. McGRATH: I need to object just to the 13 extent you're asking the witness to speculate 14 based on a speculative proposed action of the 15 Board, so you're asking for speculation on top 16 of speculation. 17 MR. BURGESS: I am really not. I mean, the 18 contractor is saying that here is an intent to 19 modify the current SWIM Plan. I'm asking the 20 witness what changes in the March 31, '92 21 conceptual design would he anticipate would be 22 made if this change was adopted. 23 THE WITNESS: Okay. Given that the change 24 is adopted, then yes, you would need to revise 25 that 31st document to reflect the differences in 54 1 effective treatment areas. 2 BY MR. BURGESS: 3 Q. Okay. 4 A. As well as all the physical works. 5 Q. Okay. The next paragraph on the same page 6 says, "Burns & McDonnell subsequently initiated the 7 preparation of modified conceptual designs of the 8 Stormwater Treatment Areas and adjacent hydroperiod 9 restoration works under Amendment 2 to contract 10 C-3021. That work was interrupted by the initiation 11 of the mediation process and was not finally 12 completed and documented." Is that your 13 understanding? 14 A. Yes. 15 Q. Okay. To what extent has that work been 16 documented, if you know? It says, "not finally 17 completed and documented." Was it documented at all? 18 Were there any deliverables to the District? 19 A. No. No. There was no deliverable. 20 Q. Are you aware of any documentation in 21 support of modified conceptual designs for the STAs? 22 A. No. 23 Q. Are you aware of any intentions at the 24 District to order Burns & McDonnell or request 25 Burns & McDonnell to complete the conceptual designs 55 1 for the STAs based upon the change in the settling 2 rate? 3 A. No. 4 Q. There is a statement on page Roman Numeral 5 II-25 that says, "Total capital cost for an updated 6 SWIM Plan reflecting the revised basis for design 7 would then be approximately 309 point 1 million, of 8 which approximately 293 point 5 million would be 9 associated with the three Stormwater Treatment 10 Areas." 11 I'm asking, sir, whether you have any 12 knowledge of any documents at the District which 13 attempt to allocate between costs associated with 14 water quality and costs associated with hydroperiod 15 restoration with reference to the STAs. 16 A. You mean, in other words, funding 17 allocations; where the funds might go? 18 Q. Yeah. Let me ask you to narrow it. Do you 19 know whether Burns & McDonnell has attempted to 20 allocate what portions of these figures they are 21 talking about here would be applicable to hydroperiod 22 and what would be applicable to water quality? 23 A. Yes. In their cost estimate, they have a 24 break out of hydroperiod restoration versus treatment 25 areas. 56 1 Q. Okay. Same page. "Modification of the 2 current proposed SWIM Plan for the Everglades as 3 suggested above would still not address the need for 4 offsetting volumetric reductions in flow to the EPA 5 resulting from implementation of the SWIM Plan." 6 Do you know what that sentence refers to? 7 A. Again, you know, reading that, and not 8 having read the 25 pages preceding that, when you 9 said modification of the SWIM Plan, I believe he was 10 only referring to the effective treatment area size 11 modification, and that would not address any of the 12 volumetric makeup water that he was referencing 13 there. 14 Q. Okay. Let's take a break. 15 (Thereupon, a recess was taken.) 16 BY MR. BURGESS: 17 Q. Okay. Back on the record. 18 With respect to the conceptual design for 19 the Mediated Technical Plan, Draft, dated November 5, 20 1993, we were speaking of a paragraph talking about 21 modification of the current proposed SWIM Plan on 22 page Roman Numeral II-25. That paragraph talks about 23 the modifications to the SWIM Plan still not 24 addressing the need for offsetting volumetric 25 reductions. What need was Galen Miller referring to 57 1 when he talked about the need for offsetting 2 volumetric reductions? 3 A. I don't know. 4 Q. Are you aware of any need to offset 5 volumetric reductions in flow to the EPA resulting 6 from implementation of the SWIM Plan? 7 A. Need, no. 8 Q. Okay. What is the concept that you are 9 familiar with with respect to offsetting volumetric 10 reductions in flow? 11 A. That would be an increase in treatment area 12 to accommodate -- or let me rephrase that, or correct 13 that. Additional lake releases to offset the 14 volumetric reduction from BMP's. 15 Q. Are you aware of any documents of the 16 District that address that the concept of setting off 17 or -- I'm sorry -- of offsetting the reductions from 18 BMP's? 19 A. No. 20 Q. Okay. What amount of additional lake 21 releases would be needed to offset the reductions 22 from BMP's? 23 A. I don't know. I believe -- 24 Q. Who would know? 25 A. -- Galen might be able to comment on that. 58 1 Galen Miller. He's referencing there the 20 percent 2 volume reduction due to BMP's, I believe. 3 Q. Okay. And to your knowledge, did the March 4 '92 SWIM Plan take into account the additional lake 5 releases to the STAs that would be needed to offset 6 these reductions from BMP's? 7 A. I'm not sure. 8 Q. Do you know whether Galen Miller's March 9 '92 document, conceptual design document, took into 10 account additional lake releases? 11 A. Yes, it did. 12 Q. In what manner? 13 A. Exactly how they took it into account, it 14 was -- to be honest with you, I'm not, you know, all 15 clear on all the references that might have been made 16 to that particular volume makeup water. 17 Q. As you read this statement, does this have 18 reference to what would appear to be a perceived need 19 to address the issue of volumetric reduction is in 20 flow resulting from the SWIM Plan in any amendment to 21 the SWIM Plan? 22 A. I really don't know what his intention was. 23 Q. Other than seeing this statement here, have 24 you been involved in any conversations where the 25 subject matter has come up about the need to address 59 1 in the present SWIM Plan, by amendment or otherwise, 2 these offsetting volumetric reductions in flow? 3 A. No. 4 Q. We talked a little bit earlier about 5 Burns & McDonnell and Galen Miller being involved in 6 a task to make an overall recommendation to the Board 7 concerning the Everglades Protection Project. Are 8 you aware of any plans or intentions for that work 9 step to be resurrected and for Galen Miller to make 10 such a recommendation to the Board? 11 A. No. 12 Q. Similar to the issue we just talked about 13 with regard to makeup for volumetric reductions due 14 to BMP's, are you aware of a concept that I have 15 heard discussed as lake regulatory releases? Do you 16 know what that refers to? 17 A. I don't know how to expand on what -- lake 18 regulatory releases means just that. I don't know in 19 the context to what -- 20 Q. In the context of the SWIM Plan, do you 21 know whether the design documents, either -- I'm 22 sorry -- do you know whether either the March '92 23 SWIM Plan or Galen Miller's March '92 conceptual 24 design document considered lake regulatory releases? 25 A. There is a consideration in both documents 60 1 on regulatory releases. 2 Q. How was that subject dealt with? Was it a 3 volume that was a volume of water that was considered 4 in a calculation or -- 5 A. Yes. In essence, it was a consideration in 6 the design development that Galen needed to make 7 account of. 8 Q. Okay. Were lake regulatory releases 9 considered any differently with respect to the 10 preparation of the conceptual design for the Mediated 11 Technical Plan than in the previous documents? 12 A. I think reference needs to be made to both 13 documents and review of those documents to see exact 14 differences. 15 Q. But do you know whether there were 16 differences? 17 A. I believe there were. 18 Q. Do you know what those differences 19 regarded? Was it amount -- 20 A. No. I would have to review both documents. 21 Q. -- volume or flow? 22 A. Don't know. I'm sorry, I don't. I don't 23 remember. 24 Q. Do you know the period of record that was 25 utilized by Burns & McDonnell with respect to 61 1 preparation of the March '92 conceptual design 2 document? 3 A. It was a period from 1979 to '88, I 4 believe. 5 Q. Have you been involved in any discussions 6 where the topic has concerned what species of 7 vegetation would be planted in the STAs? 8 A. Yes. 9 Q. Do you know, as you sit here today, what 10 species are intended to be planted in the STAs? 11 A. None. 12 Q. None? 13 A. It is to be naturally revegetated. 14 Q. Okay. And that was not the way it was 15 always to be; is that correct? 16 A. That is correct. 17 Q. Do you know who made the decision that the 18 STAs would be naturally revegetated? 19 A. That was a decision made by 20 Burns & McDonnell in their design, concept designs. 21 Q. Do you know why they recommended that the 22 areas be naturally revegetated, as opposed to 23 planted? 24 A. I think it was based on recommendations by 25 the Nolte and Associates report, a subconsultant to 62 1 Burns & McDonnell. 2 Q. Do you know why Nolte recommended that they 3 be naturally revegetated? 4 A. I believe they saw -- knew of no 5 justification for planting them; saw no value in 6 planting them. 7 Q. Do you know whether, with respect to 8 Burns & McDonnell recommendations, they suspect or 9 expect that a particular variety of plants is going 10 to naturally revegetate in these STAs? Are they 11 expecting the areas to be cattail dominated or 12 sawgrass dominated or bull rush? Do you know? 13 A. I don't know. 14 Q. With respect to the ENR project, is that 15 area being planted or has that area been planted? 16 A. Yes. The one portion of the polishing cell 17 was planted. 18 Q. And what are the other -- what is expected 19 with respect to the other portions? 20 A. The flowway cells were to be naturally 21 revegetated and the other polishing cell was to be 22 kept as a deep water cell for development of algal 23 matter and that type of vegetation. Not a 24 macrophyte. It is an emergent macrophyte. They were 25 to be kept out of the polishing -- that polishing 63 1 cell four, I believe it was. 2 Q. Do you know what was planted in the one 3 portion of the ENR? 4 A. A variety of wetlands species. I really 5 couldn't give you a list. There was at least six 6 different species. 7 Q. Do you know whether cattail has taken over, 8 become the dominant plant, in that portion? 9 A. In the polishing cell? 10 Q. The one portion that was planted, yeah. 11 A. No. I believe sugar cane. 12 Q. What is that? 13 A. I believe sugar cane. 14 Q. Sugar cane? 15 A. No. I don't know. 16 Q. How about the flowway that is being 17 naturally revegetated? Do you know what is growing 18 in there? 19 A. There is a considerable amount of mixed 20 vegetation, cattail being one of them, sugar cane 21 crop reappeared, a lot of exotics that are not 22 wanted, like willow and those types. I have not been 23 involved that deeply in the post construction phase 24 of the ENR project. 25 Q. Okay. Who is in charge of, if there is a 64 1 person in charge, the vegetative aspect of the ENR 2 project? 3 A. At this particular time, I would have to 4 recommend you talk to Tom Fontaine and his -- or 5 Tony, his supervisor, Tony Federico in regards to the 6 individuals that are responsible. There's quite a 7 few new individuals. 8 Q. Yeah. New? 9 A. There has been a recent -- a number of 10 recent new hires, I understand, in the research 11 effort. 12 Q. What is the status of the permitting 13 process for the ENR project? Are you aware of that? 14 A. No. 15 (The document was marked 16 Petitioner's Exb. A) 17 BY MR. BURGESS: 18 Q. I show you what is marked as Petitioner's 19 Exhibit A and ask you if you have seen that document 20 before. 21 A. Yes. 22 Q. Okay. The second sentence in the first 23 paragraph references conceptual design documents and 24 says, "Since these designs were produced as a result 25 of and based on the criteria stated in the Settlement 65 1 Agreement of the Federal lawsuit, it would follow, a 2 formal review of the documents for compliance to the 3 agreement is required by the Justice Department." 4 Did you write that statement? 5 A. I believe I did. 6 Q. Was that your understanding at the time and 7 is it your understanding now? 8 A. Could you rephrase that question? 9 Q. Yeah. When you wrote that statement, was 10 it a true statement? 11 A. I believe it was my understanding at the 12 time that it was necessary for the conceptual 13 documents produced to be reviewed or at least given 14 to the Justice Department for their review. 15 Q. Okay. And did you also believe at the time 16 that those designs were produced as a result of and 17 based on the criteria stated in the Settlement 18 Agreement of the Federal lawsuit? 19 A. Yes, it was -- oh, yes. 20 Q. Okay. And the conceptual design documents 21 that are now completed with respect to the STAs and 22 the SWIM Plan, specifically the one we have been 23 talking about today the March 31, '92 conceptual 24 design from Galen Miller, is that also a design which 25 was produced as a result of and based on criteria 66 1 stated in the Settlement Agreement of the Federal 2 lawsuit? 3 A. Yes. 4 Q. Okay. Incidentally, there are some bullets 5 later on in the page. The last bullet talks in terms 6 of what the District's position should be with regard 7 to certain Federal Government consultants, such as 8 Robert Kadlec, who is also a chairman of the District 9 Scientific Advisory Panel for the ENR Project. Do 10 you know whether that quandary was ever resolved? 11 A. No, I don't know what was resolved in that. 12 Q. Was there ever a problem, as far as you 13 knew, with Kadlec being both a consultant of the 14 Federal Government and Chairman of the District 15 Advisory Panel? 16 A. I don't believe there was a problem. 17 Q. Okay. How about the second bullet on that 18 page, last sentence, "Will the Government provide 19 relief in regard to the required finish dates if this 20 procedure impacts our current schedule?" Have you 21 been involved in any discussions at the District 22 which have referenced the time frames in the Federal 23 Settlement Agreement versus the time frames for 24 construction schedules in the design documents? 25 A. Okay. Let me see if I can repeat what you 67 1 have asked. 2 Q. That's okay. Let me just rephrase it. 3 This bullet seems to have reference with 4 whether the Government's going to let some Settlement 5 Agreement finish date slide, and there was some 6 discussion this morning with respect to the SWIM 7 Plan. And the construction dates contained in the 8 SWIM Plan. Have you been involved recently in any 9 discussions at the District, talking in terms of 10 whether the Federal Government is going to enforce or 11 not enforce certain deadlines -- 12 A. No. No. 13 Q. -- in the Federal settlement? 14 A. No, I haven't. 15 Q. As far as you know, the latest 16 recommendation then with respect to the STAs would be 17 that the STAs would naturally revegetate, and that is 18 as a result of the recommendation in 19 Burns & McDonnell's conceptual design document? 20 A. Yes. 21 Q. Do you know whether the STAs would have or 22 would be a part of the conceptual design document for 23 the Mediated Technical Plan? Was that also the 24 recommendation; that those areas naturally 25 revegetate? 68 1 A. Yes, that was the recommendation. 2 Q. I show you a three-page composite exhibit. 3 (The document was marked 4 Petitioner's Exb. B) 5 BY MR. BURGESS: 6 Q. Okay. What I have handed you is a three 7 page Exhibit A, a memo dated August 28, 1992 from 8 yourself to Leslie Wedderburn referencing two of Tom 9 Fontaine's memos, July 8 and July 31, and attaching 10 those July 8 and July 31 memorandums. What was the 11 purpose of your writing to Leslie Wedderburn on 12 August 28? 13 A. It was a request for additional sampling of 14 the EAA discharges. 15 Q. Okay. And the time frame we're at here, in 16 August 28 of 1992, what was the reason for that 17 sampling? What was that sampling going to be used 18 for? 19 A. It was going to be used to help 20 characterize the discharges. 21 Q. Okay. And why was it important to 22 characterize the discharge? 23 A. It was in regard to the particulate 24 constituent of the waste stream and how much that 25 particulate constituent changed with pumping events 69 1 and variables such as that. 2 Q. Okay. The first page in your memo deals 3 with -- well, let's just read -- the second sentence 4 says, "It is becoming increasingly clear, knowledge 5 of the phosphorus fractionation is a very important 6 consideration in the treatment design." What 7 treatment design were you referencing? What does 8 that mean? 9 A. I believe in this particular memo it was 10 referencing the wetlands, constructed wetlands 11 design. I'm not quite sure. I would have to review 12 dates and time frames, where I was at this particular 13 time, if chemical treatment was a consideration also 14 in this request. 15 Q. Okay. Last paragraph on your schedule 16 requires you to make design decisions based on this 17 data by the end of November. Do you recall what 18 design decisions you needed to make before the end of 19 November? 20 A. No. 21 Q. Okay. The same sentence we have read into 22 the record that you authored here. "It is becoming 23 increasingly clear, knowledge of the phosphorus 24 fractionation is a very important consideration," why 25 was it becoming clear and why is that knowledge 70 1 important? 2 A. I think through the conceptual development 3 of the constructive wetland alternatives in our 4 education in regard to those constructive wetlands, 5 that it was important to characterize the waste 6 streams as best we could. 7 Q. Do you know whether, in fact, this data was 8 collected? 9 A. Yes, I received some data. 10 Q. The second page is the clinical data needs 11 memo from Fontaine to Wedderburn. It speaks in terms 12 of further developing models for sizing STAs and 13 examining reasonable assurance about STAs and ENR. 14 Was this the particulate and dissolved phosphorus 15 fractionation data request that your memo refers to? 16 A. There may be some connection there, but I'm 17 not -- I don't remember if there was. 18 Q. Okay. Last paragraph of that July 8 memo 19 talks about analyzing samples to determine size 20 fractionation of particles and species of phosphorus, 21 dissolved versus particulate; inorganic versus 22 organic. Do you know whether or not Galen Miller 23 ever considered the size fractionation of species of 24 phosphorus in preparing any of his conceptual design 25 documents for the STA? 71 1 A. I believe there are statements made in 2 regard to this consideration, but I believe his 3 design did not consider it. 4 Q. Do you know why his design didn't consider 5 it? 6 A. There just was not enough data or 7 development of this -- of this particular 8 consideration. Also, if my memory serves me right, I 9 believe again his, Galen Miller's, effort was one to 10 try to characterize the waste streams in regard to 11 land use. I think that discussion's in the technical 12 document, mediated technical document, and I believe 13 there was no correlation found in regard to land use 14 versus phosphorus characteristic -- you know, waste 15 water characteristics -- or there was insufficient 16 data to produce any correlation. 17 Q. Okay. What was -- I apologize. I am 18 struggling here with this concept. What would be the 19 reason that you would want to know size 20 fractionations and species relative to the inquiry 21 referenced in this memo, which is to develop models 22 for STAs and further examine reasonable assurance 23 about STAs? 24 A. The Tom Fontaine memo I really can't help 25 you with there. That escapes me; exactly what their 72 1 analysis or what their intended analysis -- what 2 their objectives were in that intended analysis. 3 Q. But do you have any idea as to why it might 4 be important to know size fractionation or -- 5 A. Well, yes. The more you can characterize 6 the waste stream, obviously the better you can design 7 to treat the removal process that you want to 8 establish. Now, whether it be constructed wetlands 9 or chemical treatment, it is important to know how 10 much -- what the particulate size is of the 11 constituents of the waste stream. 12 Q. Okay. Do you know how much data was 13 collected between the August 28, '92 memo that you 14 prepared and the end of November? 15 A. There was, I would -- I can't really 16 estimate how much data was collected, but it was not 17 very much. It was a couple storm events, I believe. 18 Q. Who has that data? 19 A. I have that data. 20 Q. Do you know where this data was taken from? 21 Was it taken from 5A, 6, 7 and 8? 22 A. More from 5A than 6, 7 and 8. I believe 23 there was some minimal sampling done at those other 24 locations, but 5A, I believe, was the primary source. 25 Q. Do you know whether any data was collected 73 1 from the 10 structures? 2 A. No, there was none. 3 Q. Do you know whether the data that you say 4 you are in posession of was ever used for any design 5 decisions that are referenced in your memo? 6 A. It was not used, no. 7 Q. Do you know why? 8 A. There was insufficient amount of data. 9 Q. You had mentioned Nolte and Associates 10 earlier. Did you review either of their versions of 11 their report; the preliminary or the final? 12 A. Yes. 13 Q. What was the purpose for you reviewing 14 that? 15 A. It was a deliverable to the District, and 16 as project manager of the contracts with 17 Burns & McDonnell, it was my responsibility to review 18 the deliverables for completeness. 19 Q. Is Nolte presently doing anything for the 20 District or Burns & McDonnell, to your knowledge? 21 A. For the District, I don't believe so. For 22 Burns & McDonnell, I'm not sure. 23 Q. Okay. Do you know whether any of the 24 conclusions or recommendations contained in the 25 preliminary or final versions of the Nolte report 74 1 were ever acted on by either the District or 2 Burns & McDonnell? 3 A. Burns & McDonnell used them in their 4 development of their conceptual work. 5 Q. It would have been after the -- 6 A. The Nolte report, I think, was issued in 7 Decemberish of '92, I think. 8 Q. So Burns & McDonnell would have used it in 9 the -- 10 A. Right. In the technical -- 11 Q. Their later technical memorandums? 12 A. Right. Right. 13 Q. Are you aware of any sampling that the 14 District's conducting in 2A, at the moment, on 15 transects along 2A? 16 A. No, I'm not. 17 Q. Let me show you a letter dated November 24, 18 '92, it appears to be authored by yourself, and ask 19 you if you recall that letter. 20 A. Yeah, I recognize it. 21 Q. What does that letter refer to? 22 A. I believe comments received from Tom 23 Fontaine and his research people. They made a review 24 of one of the documents. I'm not sure of the title. 25 Q. It would appear that the letter that you 75 1 authored to Galen was instructing him not to use 2 something that he prepared, but rather to use 3 something that the District prepared. Is that a fair 4 statement or not? 5 A. Yes, yes. 6 Q. Okay. And we earlier discussed a document 7 entitled Historical Phosphorus Loads for the EAA, 8 Draft, December '92, authored by Burns & McDonnell. 9 The two exhibits in front of you, do they have 10 reference to the same thing, as far as you know? 11 A. I believe so. 12 Q. Do you have any independent recollection as 13 to what it is that you were asking Galen to use from 14 the District, as opposed to what he was doing? 15 A. It is not very fresh in my memory. If I 16 make a statement, it is probably going to be wrong. 17 Q. Well, I don't want to -- you know, I don't 18 want speculation. I am just struggling with it, too. 19 I am trying to put the two documents together. 20 A. To be honest with you, there may be 21 other -- there is probably unwritten communication 22 here that might have even overridden this statement. 23 Q. I'm sure. 24 A. And Galen Miller may be better to answer 25 exactly what that is. 76 1 Q. Okay. To your knowledge or recollection, 2 is the methodology employed by Burns & McDonnell in 3 their draft December '92 Historical Phosphorus Loads 4 for the EAA, is that methodology the methodology that 5 Burns & McDonnell used in the conceptual design for 6 determining what the historical phosphorus loads were 7 to the EAA? 8 A. That I don't know. I can't comment on 9 that. 10 Q. Do you know whether the document Historical 11 Phosphorus Loads for the EAA, Draft, December '92, do 12 you know whether that has been superseded by a later 13 publication? 14 A. Again, as I stated earlier, I'm not sure if 15 we have a final of that. I believe we have finalized 16 most all amendments on one document, but I think 17 there may be one outstanding that has not been 18 finalized. 19 Q. Okay. Did you bring any documents with 20 you? 21 A. No, I did not. 22 MR. BURGESS: Okay. Dan, I would ask that 23 you get from the witness because clearly this 24 would be under the purview of the duces tecum; 25 the later copies of the two or three documents 77 1 that he's referred to with respect to 2 Burns & McDonnell that I don't have copies of 3 that are labeled drafts that he says he thinks 4 may have been finalized. Could you get that 5 from them and send those to me? 6 MR. McGRATH: Okay. I'll check with the 7 client. I won't agree right now, but I'll 8 follow up on it. 9 MR. BURGESS: Okay. Well, then I don't 10 want to conclude the deposition. Otherwise, I 11 would conclude the deposition. But I just want 12 to leave it open because you didn't bring them 13 with him and I would like to take a look at 14 them. 15 MR. McGRATH: Just for the record, we 16 didn't receive the duces tecum or the notice 17 until yesterday, so given the notice 18 situation -- 19 MR. BURGESS: I know it was faxed to the 20 District on Monday. 21 But do you know whether the historical 22 phosphorus load information contained in the 23 December draft is the same historical phosphorus 24 load information that Galen Miller used in the 25 conceptual design for the Mediated Technical 78 1 Plan? 2 THE WITNESS: I really don't know. 3 MR. BURGESS: Okay. With that previous 4 caveat then, I don't have any further questions. 5 I would like to attach, as exhibits, seven 6 or eight documents that we have discussed 7 earlier in the deposition. 8 9 (Thereupon, at 12:55 p.m., 10 the deposition was adjourned) 79 1 CERTIFICATE OF OATH 2 The State of Florida ) 3 County of Palm Beach. ) 4 I, the undersigned authority, certify that 5 Zan Kugler personally appeared before me and was duly sworn. 6 WITNESS my hand and official seal this ___ 7 day of ________, 1994. 8 ________________________________ 9 Elaine V. Williams, CM Notary Public - State of Florida 10 My Commission No. CC 263435 Expires: March 27, 1997 80 1 C E R T I F I C A T E 2 The State of Florida ) 3 County of Palm Beach. ) 4 I, Elaine V. Williams, Professional 5 Reporter, do hereby certify that I was authorized to and did report said deposition in stenotype; and that 6 the foregoing pages, numbered from 1 to ____, inclusive, are a true and correct transcription of my 7 shorthand notes of said deposition. 8 I further certify that I am not attorney or counsel of any of the parties, nor am I a relative or 9 employee of any attorney or counsel or party connected with the action, nor am I financially 10 interested in the action. 11 The foregoing certification of this transcript does not apply to any reproduction of the 12 same by any means unless under the direct control and/or direction of the certifying reporter. 13 Dated this ____ day of ______, 1994. 14 15 ________________________________ 16 Elaine V. Williams, CM 17 The State of Florida ) 18 County of Palm Beach. ) 19 The foregoing certificate was acknowledged 20 before me this ____ day of _______, 1994 by Elaine V. Williams, who is personally known to me. 21 22 ________________________________ 23 Notary Public - State of Florida My Commission expires: 24 81 1 C E R T I F I C A T E 2 - - - 3 4 The State of Florida, ) 5 County of Palm Beach. ) 6 7 8 I hereby certify that I have read the 9 foregoing deposition by me given, and that the 10 statements contained therein are true and correct to 11 the best of my knowledge and belief. 12 13 Dated this ____ day of______________ 1994. 14 15 16 17 18 _________________________ 19 Zan Kugler 20 DATE: February 9, 1994 TO: Zan Kugler South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 RE: Sugar Cane Growers v SFWMD Please take notice that on January 27, 1994 you gave your deposition in the above referred matter. At that time you did not waive signature. It is now necessary that you sign your deposition. Please come to our office, 319 Clematis Street, Suite 500, West Palm Beach, Florida, at any time between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday, to sign the deposition. Notice that this address may be different than the one where you gave your deposition. If you do not appear to sign your deposition within thirty (30) days, the original will be forwarded to the attorney who requested your appearance for deposition, for filing with the Clerk of the Court. If you wish to waive your signature, sign your name in the blank at the bottom of this page and return to us. Very truly yours, MUDRICK, WITT, LEVY & CONSOR REPORTING AGENCY, INC. ____________________________ Elaine V. Williams NOTARY PUBLIC I do hereby waive my signature: ______________________________ Zan Kugler cc: cc: cc: