202 1 STATE OF FLORIDA 2 DIVISION OF ADMINISTRATIVE HEARINGS VOLUME 3 3 PAGES 202 - 306 4 SUGAR CANE GROWERS COOPERATIVE 5 OF FLORIDA, a Florida Agricultural CASE NOS. 92-3038 Cooperative Marketing Association; 92-3039 6 ROTH FARMS, INC.; and WEDGWORTH 92-3040 FARMS, INC., 7 and FLORIDA SUGAR CANE LEAGUE, INC.; 8 UNITED STATES SUGAR CORPORATION, and 9 FLORIDA FRUIT AND VEGETABLE ASSOCIATION; LEWIS POPE FARMS; 10 W.E. SCHLECHTER & SONS, INC.; and HUNDLEY FARMS, INC., 11 Petitioners, 12 vs. 13 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, an Agency of the State 14 of Florida, Respondent, 15 and 16 THE UNITED STATES OF AMERICA; 17 MICCOSUKEE TRIBE OF INDIANS; THE FLORIDA DEPARTMENT OF 18 ENVIRONMENTAL PROTECTION; THE FLORIDA WILDLIFE FEDERATION; 19 THE FLORIDA AUDUBON SOCIETY, and THE SIERRA CLUB, 20 Respondent-Intervenors. __________________________________/ 21 DEPOSITION OF RONALD T. LUKE, Ph.D. 22 23 ACCURATE STENOTYPE REPORTERS, INC. 24 100 Salem Court Tallahassee, Florida 32301 25 (904) 878-2221 1-800-934-9090 203 1 ___________________________________________________________ 2 DEPOSITION OF: RONALD T. LUKE, Ph.D. 3 TAKEN AT THE INSTANCE OF: Respondent-Intervenor USA 4 DATE: Friday, March 4, 1994 5 TIME: Commenced at 8:30 a.m. Concluded at 4:15 p.m. 6 LOCATION: 315 South Calhoun 7 Tallahassee, Florida 8 REPORTED BY: TERRY WILHELMI, CSR Notary Public in and for the 9 State of Florida at Large ___________________________________________________________ 10 11 APPEARANCES 12 REPRESENTING THE SUGAR CANE GROWERS COOPERATIVE, ROTH FARMS, and WEDGWORTH FARMS: 13 CAROLYN S. RAEPPLE, ESQUIRE 14 Hopping, Boyd, Green & Sams 123 South Calhoun 15 Tallahassee, Florida 32301 16 REPRESENTING THE UNITED STATES OF AMERICA: 17 KEITH E. SAXE, ESQUIRE United States Department of Justice 18 601 Pennsylvania Avenue, N.W. Room 879 19 Washington, D.C. 20004 20 REPRESENTING THE DEPARTMENT OF ENVIRONMENTAL PROTECTION: 21 GARY SMALLRIDGE, ESQUIRE 22 Florida Dept. of Environmental Protection 2600 Blair Stone Road 23 Tallahassee, Florida 32399-2400 24 ALSO APPEARING: 25 Professor Lonnie Jones Ronald Lacewell 204 1 2 3 I N D E X 4 WITNESS PAGE 5 RONALD T. LUKE, Ph.D. 6 Continued Direct Examination by Mr. Saxe 205 7 8 9 10 E X H I B I T S 11 12 (No exhibits marked in this volume.) 13 14 15 16 17 18 19 20 21 CERTIFICATE OF REPORTER 306 22 23 24 25 205 1 PROCEEDINGS 2 The following deposition of RONALD T. LUKE, Ph.D. 3 was taken on oral examination, pursuant to notice, for 4 purposes of discovery, and for use as evidence, and for 5 other uses and purposes as may be permitted by the 6 applicable and governing rules. Reading and signing is 7 waived. 8 * * * 9 Thereupon, 10 RONALD T. LUKE, Ph.D. 11 was called as a witness, having been previously duly sworn, 12 was examined and testified as follows: 13 CONTINUED DIRECT EXAMINATION 14 BY MR. SAXE: 15 Q Good morning, Dr. Luke. We're continuing your 16 deposition today, I remind you that the same rules and 17 requirements apply as to yesterday. Do you understand 18 that? 19 A Yes. 20 Q I would like to talk first about your analysis 21 of the direct economic impacts of the SWIM plan. My first 22 question is I would like to know how did you calculate the 23 direct sales loss from a lost acre of production? 24 A Well, basically the work we have got is a -- the 25 sales actually are occurring at the mill and we are 206 1 assuming that a lost acre results in reduced raw sugar and 2 that the raw sugar is the product. I don't believe the 3 reductions are ever sufficient that the refineries in the 4 EAA would themselves not produce up to whatever historic 5 capacity they had. 6 Q So the actual calculation of the direct sales 7 loss number would be the product of the change in raw sugar 8 output times the -- 9 A Times the price. 10 Q -- times the price? 11 A Right. 12 Q What raw sugar price did you use in your 13 calculations? 14 A I believe it's the 21.6 plus the cent for the 15 molasses and the other byproducts. 16 Q And you derived that figure the same way that 17 Hazen and Sawyer did? 18 A The contract price, yeah. 19 Q What yield figure would you use for calculating 20 direct sales loss for a given acreage in production? 21 A Because of the trends that are built in, it 22 would vary by year. 23 Q And those -- what was the -- strike that. 24 What was the starting figure for a given acre in 25 1994 that you would use or what was the source of those 207 1 figures? 2 A We're using the same things that are in the 3 contract completion report, the Hazen and Sawyer report. 4 Q Were the yield figures for lost acreage in any 5 given year stratified by yield belt? 6 A They are actually identified by model farm, just 7 in the same fashion that you see in the Hazen and Sawyer 8 report. 9 Q Exhibit 2 should be right in front of you. 10 A Okay. I have my copy. 11 Q Would you look at page 4 of that? 12 A All right. 13 Q The title on this page that I'm looking at is 14 "Comparison of Scenario Runs Change in EAA Earnings and 15 Profits Versus No Action." Could you describe to me what 16 these numbers are? 17 A You mean more than what the title tells you? I 18 don't understand. 19 Q Okay, let me clarify the question. What is 20 meant by the reference to earnings, EAA earnings? 21 A This would be the salaries and wages and then 22 the profits, the residual returns in effect. 23 Q So earnings refers to salaries and wages and the 24 word profits refers to residual returns? 25 A Right. 208 1 Q Are those broken out in these figures, are they 2 differentiated or are they summed? 3 A They are summed. 4 Q Were they derived separately in the calculation 5 of these figures? 6 A Yes. The residual returns comes from the 7 summing across the farm level models and the earnings piece 8 of it comes from the RIMS two coefficients. 9 Q Let's leave this page for now and I want to ask 10 you some questions about BMP's and the way you treated 11 BMP's in your analysis. 12 A Okay. 13 Q Where did you get your BMP costs? 14 A It's the Burns and is it McConnell in this case? 15 Q Do you have a copy of the first volume of -- 16 actually it's Exhibit 3, the first volume of the contract 17 completion report? 18 A Okay. 19 Q Would you turn to page 9-1, please? 20 A Okay. 21 Q On pages 9-1 and 9-2, there are a series of 22 tabular displays of different values for BMP costs per 23 acre. 24 A Right. 25 Q The first one is attributed to Brown & 209 1 Caldwell's draft report that's at the bottom of page 9-1. 2 A Yes. 3 Q On the top of page 9-2 is a set of figures 4 attributed to the Hazen and Sawyer 1992 economic impact 5 study. 6 A Right. 7 Q And then beneath that is a display of figures 8 attributed to Hazen and Sawyer's 20 year report. Did you 9 use any of these figures? 10 A We're using Brown & Caldwell. 11 Q Could you explain to me, Dr. Luke, why you 12 chose the Brown & Caldwell figures for the BMP costs in 13 your analysis? 14 A It's an engineering study done by the District's 15 consultant, it was reviewed by the Co-op and they said they 16 thought that would be reasonable to use. 17 Q Do you know whether the Co-op considered the BMP 18 costs that had been used by Hazen and Sawyer in the 20 year 19 report? 20 A When you say considered them, I don't 21 understand. 22 Q Do you know whether they reviewed the costs that 23 Hazen and Sawyer has used to determine or to form an 24 opinion about whether they were appropriate BMP costs? 25 A I don't know whether they separately reviewed 210 1 them. My question to them was really as to Brown & 2 Caldwell and the continued reasonableness of those and they 3 said they thought they were reasonable to use. 4 Q Did you have discussions with somebody at the 5 Co-op about the Brown & Caldwell BMP costs figures? 6 A Not a detailed discussion. I in effect 7 submitted the question to Mr. Ward and he came back to me 8 and said that those looked okay to them, so that I don't -- 9 I didn't really go behind his checking of that. 10 Q Did you, in your question to Mr. Ward, did you 11 ask him -- did you make any reference to different figures 12 being used for BMP costs in any other context? 13 A No. My question was pretty much what I have 14 told you it was. 15 Q Did you ask him if the Hazen and Sawyer costs 16 would be more accurate or less accurate? 17 A No. 18 Q Did you refer in any way to any of the BMP costs 19 that you had seen? 20 A I don't recall that I did. 21 Q Was this an oral communication with Mr. Ward? 22 A To the best of my recollection, it was. 23 Q Do you recall whether you made any notes or 24 anyone working for or with you made any notes -- 25 A No. 211 1 Q -- about this conversation? 2 Can you tell me, to the best of your 3 recollection, just what you asked Mr. Ward and just what he 4 said? 5 A As I recall, and this has been long enough ago 6 that I am certainly -- this is a loose reconstruction, we 7 were trying to determine if the Co-op had a different view 8 of BMP costs based upon any additional experience or 9 information that they or their members had and I think he 10 said he would check, and I don't believe he said with whom 11 he would check, and get back to me. He did and he said the 12 Brown & Caldwell costs still seemed fine. 13 Q So at the time when you asked him about whether 14 the Co-op had a different interpretation, the reference -- 15 the only reference being made was to the Brown & Caldwell 16 costs figures? 17 A Yeah. I don't know what you mean by a different 18 interpretation, but I mean, I just asked him if those 19 figures, as the engineering figures, still seemed to be the 20 ones. I think I should add that we're talking about BMP's 21 for a 25 percent reduction. 22 Q So that would be the figures that are shown on 23 the 25 percent fee reduction line on this table? 24 A That's correct. 25 Q Do you recall about when this conversation would 212 1 have taken place? 2 A Not specifically, but my guess is August, 3 September. 4 Q Of '93? 5 A Right. 6 Q So it was after the 10 year Hazen and Sawyer 7 report had been produced? 8 A Well, I mean, by these dates it was after the 20 9 year report had been produced. 10 Q Do you know whether Mr. Ward was aware of the 11 BMP costs figures that had been used by Hazen and Sawyer in 12 any of its economic impact analyses? 13 A No, I really don't. I mean, I considered that 14 Brown & Caldwell is the primary source here, they are the 15 engineering study, and I'm not aware that Hazen and Sawyer 16 has done any additional engineering work as a basis for its 17 numbers. 18 Q Do you know whether the Brown & Caldwell values 19 include a water table management cost? 20 A Yes, I believe they do. 21 Q Did you add the Brown & Caldwell BMP costs value 22 for each given crop to Hazen and Sawyer's variable costs of 23 production in your baseline? 24 A Hazen and Sawyer had put some subsidence control 25 costs in their baseline and so I think that what we would 213 1 be talking about here is a net addition. 2 Q Could you tell me how you went about calculating 3 that? 4 A I think it's a matter of taking the, again, 5 since we are going back to the Brown & Caldwell work, it 6 would just be doing a calculation in a way to make sure 7 that there wasn't any double counting. 8 Q Would you have then -- if I understand 9 correctly, you would have subtracted something from the 10 Brown & Caldwell BMP costs before you added it to the 11 variable production costs that Hazen and Sawyer used? 12 A Yes. The specific work on that was done by Dr. 13 Schubert, so that if you are asking me to recall numbers, 14 I'm telling you that I would not have done that calculation 15 personally, but the instruction to him was to assume that 16 the Brown & Caldwell numbers were still reasonable 17 estimates of the overall BMP costs. 18 Q Do you know whether the Brown & Caldwell 19 information that Dr. Schubert was referring to broke it -- 20 not broke out, but differentiated or separately identified 21 component costs of BMP's in the same way that Hazen and 22 Sawyer did? 23 A No, I don't. 24 Q Do you know whether the BMP costs figures that 25 were used in your analysis were stratified over model 214 1 farms? 2 A We maintain the, I believe it's 52 model farms, 3 so that there are separate cost files, if you will, for 4 each of those farms for any crops produced, for each crop 5 produced. 6 Q In your analysis, do you know whether a separate 7 charge or cost was included for water table management for 8 managing soil subsidence? 9 A I believe that that's included as part of the 10 best management practice. 11 Q So it would have been included in the value that 12 was used for BMP costs, would that be correct? 13 A That's correct. 14 Q Do you know whether Dr. Schubert's analysis and 15 development of BMP costs is documented in your production? 16 A It's documented in the data files on the disks 17 that we gave you with the model. I don't recall a separate 18 memo that summarizes the analysis. 19 Q Does your production include all responsive 20 documents that were in Dr. Schubert's possession when you 21 responded to the request? 22 A To the best of my knowledge. 23 Q Dr. Luke, just going back for a minute to the 24 questions on Exhibit 2, page 4. 25 A Okay. 215 1 Q Is my understanding correct that earnings for 2 purposes of this page of the report would have been 3 calculated by multiplying direct sales times the RIMS two 4 multiplier and then adding the sum of the residual returns 5 across the model farms? 6 A Yes. 7 Q Dr. Luke, if we were to compare the earnings 8 table in Exhibit 2, earnings and profits table in Exhibit 9 2, with the sales table and acreage tables in the 10 appropriate detail reports of data that were used in this 11 calculation, would there -- should they be consistent? 12 A Yes. 13 Q I would like to ask you some questions now about 14 how you handled impacts of STA's for purposes of direct 15 economic impact calculations. The question is how did you 16 calculate direct economic impacts of STA land conversion, 17 and by that I mean just those acres presently in 18 agricultural production that will be converted to STA use 19 under the SWIM plan? 20 A Basically whatever production in the baseline 21 was assumed to occur on those lands was subtracted out. It 22 represented a reduction in cultivated acreage, if you will, 23 by crop. 24 Q Did you analyze the direct economic impacts of 25 just that change in land use without including any impacts 216 1 for or impacts of the STA's? 2 A In effect, what you are asking is with the 3 assessment part set to zero? 4 Q If -- well, let me ask you, would setting the 5 assessment part to zero and I assume you mean in your 6 model? 7 A Yes. 8 Q Setting the assessment parameter to zero, would 9 that have provided an analysis of the direct economic 10 impacts of just the STA land conversion without the 11 impacts, including impacts of financing or otherwise paying 12 for the STA's? 13 A Okay, well, I guess there are three things 14 here. One is the subtraction of land from agricultural 15 production. The second thing is the construction and 16 operating expenditures relating to the STA's. And the 17 third is the tax of paying for them. I don't think that 18 any of the -- I know that we did not do a scenario where we 19 in effect take the land out of production, but don't build 20 the STA's, if you see what I mean, so that as an analyzed 21 scenario, I don't think there is any analysis of just 22 converting the land out of agriculture and nothing else. 23 Q Is it true that the impacts from building the 24 STA's and operating them, as you put it, depend entirely 25 upon who pays for those processes, namely the building of 217 1 the STA's and the operating of them? 2 A I apologize, I missed part of your question. 3 Q Is it the case that the economic impacts of 4 building STA's and operating them result solely from the 5 economic burden of paying for those operations and 6 construction? 7 A No. 8 Q What is it about building STA's and operating 9 them, independent of the cost of doing so, that you 10 analyzed economic impacts of? 11 A Well, let's remember, first of all, impact is a 12 neutral word, you can have a positive or a negative impact, 13 okay, so that let's say for the sake of argument that the 14 STA's operation and construction were paid for entirely out 15 of federal general revenue or state general revenue and 16 there was no discernable bump in federal or state tax rates 17 because of that, then there will still be economic impacts 18 from the STA's, because you will have a reduction in 19 agricultural production and you will have construction and 20 operation activity, which will have its own economic 21 consequences, even if we assume there is no payment, 22 identifiable payment for those activities coming from the 23 EAA. 24 Q By what mechanism would there be a reduction in 25 agricultural production from construction and operation of 218 1 the STA's if that construction and operation were entirely 2 paid for by other than the agricultural industry in the 3 study area? 4 A Unless I'm misunderstanding your question, the 5 answer is real simple. It would still take 35 acres out of 6 production. 7 Q So are there any other aspects of construction 8 and operation of the STA's besides the conversion of those 9 acres out of agricultural land use that would have economic 10 impact on the agricultural industry in the study area? 11 A Well, under the analysis that the mills are 12 paying economically the maximum price to the grower, taking 13 those 35,000 acres out would also affect the amount that 14 can be paid to other farmers for sugar cane, it wouldn't 15 affect sod or vegetables. 16 Q But those impacts would result from taking the 17 acres out of production, is that correct? 18 A Yeah. 19 Q Even if you then built no STA's and operated no 20 STA's, there would still be the same impacts from taking 21 the land out of production, is that correct? 22 A On the agricultural sector, yes. 23 Q Did you then, going back to my beginning 24 question, maybe restating it in context, did you separately 25 analyze the direct economic impacts just of taking the STA 219 1 lands out of production? 2 A No, I haven't. That would sort of look like the 3 1990 draft final SWIM plan where you had, it's a different 4 acreage number, but in effect they were going to proceed to 5 buy the land, but as part of that SWIM plan, they weren't 6 going to do anything with it except perhaps lease it back 7 for temporary agricultural use, and we did not analyze 8 that. 9 Q Could you have analyzed that using your model? 10 A Yes. 11 Q Would that have been done by setting the, I 12 believe you said you referred to it as the finance or 13 funding variable to zero? 14 A No, it would be an entirely different 15 alternative, because in effect you would -- if you think 16 about it as let's call it a land banking scenario, okay, 17 what you would have is you would have land acquisition 18 costs and then you would have to tell me whether you 19 intended to do a lease back for agricultural use, because 20 just the acquisition itself might not take -- change in 21 ownership to public ownership might not take any land out 22 of production, I mean, there is cultivation on state owned 23 lease back land now. 24 Q That's not the question I'm asking, though, I'm 25 asking how, using your model, could you analyze direct 220 1 economic impacts of taking that land out of production 2 only, without including in that analysis any impacts from 3 building STA's, operating STA's, or paying for the building 4 and operating of STA's? 5 A Right. In effect, you define a new scenario 6 that would have those acreages coming out of production and 7 then you would have payments to landowners. You would have 8 reductions and that would flow on through the model and if 9 you set the financing, the EAA burden of financing to zero, 10 then I think, if I have understood or if you have specified 11 all of the details of your scenario, I think that that 12 would properly analyze it. 13 Q Did Hazen and Sawyer attempt to analyze the 14 direct economic impacts of taking the STA land out of 15 agricultural production and not include within that 16 particular portion of their analysis any additional impacts 17 from building STA's, operating STA's, or paying for STA's? 18 A If you're asking me did they do that, the answer 19 is I don't know. I don't recall that that has ever been a 20 separate scenario that they have included in any of their 21 reports. 22 Q If we could look at Exhibit 3 for a moment, look 23 at page ES-2 in the Executive Summary? 24 A Okay. 25 Q The methodology section has a listing of two 221 1 columns of information, a table of sorts, and it describes 2 the types of economic projections that were analyzed and 3 the definitions, for Hazen and Sawyer's purposes, of what 4 those involved. If you look at Number 2, it says, "STA 5 economic projection." Then under the definition it says, 6 "STA's built only, no other district action." Do you know 7 whether -- are you familiar with that aspect of the Hazen 8 and Sawyer analysis? 9 A Yes. 10 Q Do you know whether that analysis analyzed the 11 direct economic impacts of taking the STA designated land 12 out of agricultural production? 13 A That's certainly a part of that scenario, but as 14 I understand that scenario, STA's built means that you have 15 the additional economic impacts of the construction and 16 operation of the STA's, you don't just have land removal. 17 Q Do you know whether Hazen and Sawyer included in 18 that particular economic projection, any economic impacts 19 for or of paying for STA construction and operation? 20 A Yes, they did. 21 Q Do you know what the finance assumptions were 22 that were used in that particular economic projection? 23 A Effectively it assumes that none of the 24 acquisition or construction or operation is paid for by 25 assessments on EAA properties. 222 1 Q Did you do an analysis using the same projection 2 criteria as the STA economic projection performed by Hazen 3 and Sawyer, in that you also analyzed the change in land 4 use resulting from conversion of ag land to STA land and 5 the direct economic impacts of construction and operation, 6 without any economic impacts of paying for those 7 operations? 8 A No, I have not made that a separate scenario. 9 Q Could that scenario -- excuse me, could that 10 analysis be performed using your model, by setting the 11 finance burden to the EAA value to zero in the run of the 12 model? 13 A Yes. 14 Q Would it be correct to say that Hazen and Sawyer 15 has performed its economic impact analysis on at least one 16 scenario where there is no assumption that the agricultural 17 industry is going to be taxed or assessed to pay for STA 18 construction and operation? 19 A Yes. 20 Q Would it also be correct to say that in your 21 analysis no such scenario was included? 22 A Right. 23 Q Can you tell me why? 24 A Yes. I don't see any other identified major 25 funding sources on the 300 million plus that's related to 223 1 that. I have not seen a specific financing plan, so 2 lacking in the information of who else was going to pay, in 3 effect, I just set that variable for purposes of all of my 4 technical alternatives to 100 percent being paid by the 5 agricultural interests. At such point as a funding plan is 6 offered that would tell me how much the agricultural 7 interests were going to be responsible for, it would be a 8 straightforward matter to insert that information into the 9 model that we prepared and to run it with that information. 10 Q In your opinion, does the SWIM plan propose that 11 the agricultural industry in the EAA will be required to 12 pay for all the costs of STA construction and operation? 13 A I think the SWIM plan as adopted very carefully 14 avoids addressing the question of who pays and very 15 intentionally avoids it. 16 Q So would it be fair to say that the SWIM plan 17 does not propose that any particular portion of the cost of 18 construction and operation of STA's be borne by the 19 agricultural industry and the EAA? 20 A I think that they have omitted any funding plan 21 and have avoided raising the issue of who pays. 22 Q In your opinion, was the District legally 23 required to include within the SWIM plan an allocation of, 24 or as I think you put it, a funding plan of specific 25 amounts of the cost of STA construction and operation to be 224 1 borne by different sources, potential sources of funding? 2 A I believe -- 3 MS. RAEPPLE: Objection to form. 4 MR. SAXE: Grounds? 5 MS. RAEPPLE: You are asking him for a legal 6 conclusion, he has not been tendered as an expert in 7 legal interpretations. 8 MR. SAXE: It seems to me that Dr. Luke has 9 testified he will be presenting legal opinions at 10 trial, Counsel, their was extended testimony yesterday 11 about what's legally required under the Marjory 12 Stoneman Douglas Act and the SWIM Act and the DEP 13 regulations concerning the performance of the economic 14 impact analysis and cost/benefit analysis for the 15 project. 16 MS. RAEPPLE: Perhaps there is some confusion. 17 He will be testifying as to the common accepted 18 definition of certain terms that are used in those 19 acts, however, he is not going to be offered an expert 20 on legal interpretations. I don't think that would be 21 proper. 22 MR. SAXE: I agree with you that it wouldn't be 23 proper, but I also would have to say it's very 24 inconsistent with Dr. Luke's testimony yesterday. 25 MS. RAEPPLE: No, Dr. Luke will be offered to 225 1 provide testimony as to the plain language, what is 2 the interpretation or what is the definition of terms 3 that are commonly -- what are the common definitions 4 given to terms that are utilized in the act. 5 MR. SAXE: Terms in the laws? 6 MS. RAEPPLE: Terms in the Marjory Stoneman 7 Douglas, that's correct, such as public interest. That 8 is a term that is used in the act and how is that term 9 commonly utilized, but that is -- 10 MR. SAXE: Counsel, let me suggest, let me ask 11 the witness some questions going to the subject matter 12 rather than having your descriptions of his 13 understanding of what his testimony will be, before he 14 answers the question. If you want to give me the same 15 comments afterwards, that maybe would be fine. 16 MS. RAEPPLE: I'm simply trying to respond to 17 your question addressed to me as to the basis for the 18 objection to the form of the question. 19 MR. SAXE: Let me ask some clarifying questions 20 of Dr. Luke and see if maybe we can't clear it up. 21 MS. RAEPPLE: That will be fine. 22 BY MR. SAXE: 23 Q Dr. Luke, you have testified here that in your 24 opinion, the District was legally required to do more than 25 it did in analyzing economic impacts and cost/benefit 226 1 relationships for the SWIM plan and alternatives, is that 2 correct? 3 A Yes. 4 Q Is that a legal opinion? 5 A I suppose to the extent that looking at a 6 statute or a rule and interpreting it is construed as 7 offering a legal opinion, I might do that, I guess. I 8 don't know how you do a public policy analysis without 9 interpreting statutes and rules, so I mean, it falls into 10 an area where the purpose is for the purpose of public 11 policy analysis. Whether I am ultimately asked to assume 12 by counsel that the law requires certain things or whether 13 I render that as an independent opinion, I guess would 14 depend on the questions that I was asked at the time of the 15 hearing, but what I am attempting to give you is a policy 16 analysis of what is required for sound planning in the 17 public interest and of what is required, in my opinion, to 18 properly implement the Douglas Act. 19 Q If I recall your testimony correctly from 20 yesterday, you indicated that the requirements for economic 21 impact analysis and cost/benefit analysis, that in your 22 opinion applied to the SWIM plan, flowed from the public 23 interest requirement? 24 A That's correct. 25 Q And that was the public interest requirement in 227 1 the SWIM Act? 2 A Yes. 3 Q Is it your testimony that the words public 4 interest have a commonly accepted meaning among lay, and by 5 that I mean non-lawyers, that applies to the SWIM plan? 6 A I think the community for whom it would have a 7 common meaning would be the community of water resources 8 planners and people that have done public policy planning 9 as to the logical requirements of any planning that was 10 going to follow the public interest. 11 Q So then would it be fair to say that it has a 12 commonly accepted -- that public interest has a commonly 13 accepted meaning among resource economists? 14 A Probably. I mean, I can think of some areas of 15 resource economics that might not have ever addressed the 16 issue of government planning, but for those that have dealt 17 with water resources or other types of government program 18 planning, I would think that planning in the public 19 interest would be consistent with what I have said. 20 Q So then would it be fair to say that your 21 interpretation of what's required under the SWIM act flows 22 from the plain -- the ordinary meaning of the plain terms 23 public interest? 24 A The plain meaning to the community that is 25 concerned with surface water improvement and management, 228 1 yes, but not to the desk clerk at the Sheraton, I don't 2 know that they would give you that interpretation, but I 3 think for the types of professionals that would be expected 4 to be involved in preparing a SWIM plan, that that would -- 5 the concepts that are contained in Principles and 6 Guidelines would be basic and generally understood. 7 Q In your opinion, was the District required to 8 perform this analysis before it promulgated the SWIM plan? 9 A Yes. I think that it is -- in conducting a 10 reasonable and rational planning process, that it should 11 have conducted a process which led to a proper comparison 12 of alternatives and selection of plan elements. I think to 13 have proceeded as it did, to in effect adopt an externally 14 imposed settlement agreement and then later on go back and 15 try to rationalize that on a post hoc basis, would be 16 entirely inappropriate. It would call into question the 17 good faith of their later efforts. 18 Q When you say entirely inappropriate, I guess my 19 question was would it be inappropriate because it's 20 inconsistent with the law governing the District's 21 promulgation of the SWIM plan or would it be inappropriate 22 for some reason unrelated to the law? 23 A I think that as the policy goes, I would think 24 that the later work could very well be characterized as a 25 sham that is directed to justify predetermined outcome 229 1 rather than an independent objective analysis. 2 Q I don't believe you answered my question, Dr. 3 Luke. 4 A I tried to, tell me again. 5 Q Let me rephrase the question. Was the District 6 legally required to perform this analysis before it 7 promulgated the SWIM plan? 8 A Yes. 9 MS. RAEPPLE: Objection to form. 10 MR. SAXE: So noted. Would you read back the 11 answer, please. 12 (Requested portion read.) 13 BY MR. SAXE: 14 Q Dr. Luke, what language in what law, in your 15 opinion, gives rise to the requirement that this analysis 16 be performed before the promulgation of the SWIM plan? 17 A It is my understanding as a general matter of 18 administrative law, that orders issued by administrative 19 agencies are supposed to have a reasonable and rational 20 basis based upon properly arrived at findings of fact and 21 conclusions of law and I believe that in order to have the 22 findings of fact that would be necessary to support 23 adoption of the plan elements, that one would have had to 24 have gone through the process that is substantially the 25 process that is stated in Principles and Guidelines and 230 1 it's my belief that they did not go through any such 2 process. 3 Q When you say that in your understanding -- 4 strike that. If I understand you correctly, that in your 5 understanding of the laws that apply to the Water 6 Management District, they require the District to have such 7 a reasonable basis as you said. Can you tell me which laws 8 and which words in those laws require the District to have 9 this reasonable basis? 10 A I think it goes all the way back to issues of 11 constitutional due process. I certainly think that in 12 terms of the Administrative Procedures Act, that agencies 13 are expected to act based upon reasonable findings of fact 14 and not upon arbitrary and capricious -- make arbitrary and 15 capricious decisions. 16 Q Have you reviewed the -- when you say 17 Administrative Procedures Act, you mean the Florida 18 Administrative Procedures Act? 19 A Yes. 20 Q Have you reviewed the Florida Administrative 21 Procedures Act? 22 A Not recently. 23 Q Have you reviewed the U.S. Constitution in 24 preparing for this case? 25 A No. 231 1 Q What is the basis for your opinion that those 2 laws require the District to have a reasonable basis? 3 A I think that government actions, particularly 4 those which lead to conversions of property, to additional 5 regulation taxation, have to have some reasonable basis. 6 The constitution of the SWIM plan as an order rather than a 7 rule imposes, as I understand Federal law -- excuse me, as 8 I understand Florida law, imposes additional burdens upon 9 the agency in that they are acting not in a quasi 10 legislative fashion, but they are acting more in a quasi 11 judicial fashion, that requires them to have a reasonable 12 basis for the elements in the order. 13 Q You expressed the qualifier in your answer, as 14 you understand Florida law, my question is, what is your 15 basis for that understanding of Florida law? 16 A I have been working in various Florida 17 Administrative law processes where orders are being tested 18 in administrative hearings, Section 120 hearings, since 19 1983, and in the course of that I have necessarily been 20 exposed to a fair amount of argument in terms of what is 21 being tested in a Section 120 hearing, which is what I 22 understand we are engaged in here. 23 Q Anything else besides your experience in other 24 120 hearings? 25 A No. 232 1 Q Are you basing your understanding of Florida law 2 to any extent on memoranda of counsel in this case? 3 A I have read a number of the pleadings and 4 statements of fact and without being able to cite you to 5 specific ones, certainly there are some statements in there 6 that are consistent, I believe, with what I have just 7 testified to, and I suppose those would constitute an 8 additional basis, if I was being asked to go back and 9 justify that opinion. 10 Q Can you point me to any particularly significant 11 pleadings or memoranda that you have reviewed on the issue 12 of what's required under Florida law for purposes of 13 economic impact analysis or cost/benefit analysis of SWIM 14 plan alternatives? 15 A I think the most recent statement of the Co-op's 16 position in the case, which either has a January or 17 February 1994 date on it, is probably helpful in that 18 regard. There is also an older memorandum on the 19 requirement of economic -- or the role of economics under 20 the water quality regulations and the SWIM regulations or 21 SWIM statutes in Florida law that I think would also be 22 relevant here. I don't profess to have seen every pleading 23 that has been filed in this case, so that answer is not 24 meant to suggest those are the only ones that may have 25 relevant information. 233 1 Q Have you reviewed a memorandum of law in this 2 case concerning the moderating provisions of Florida law, 3 so-called? 4 A Again, I don't know what all the pleadings are. 5 I believe the memorandum on the relevance of economics to 6 the case dealt with that in part. 7 Q So that would be the memorandum that you 8 referred to in your previous answer as an older memorandum 9 dealing with those issues? 10 A Yes. 11 Q Do you know whether that was a memorandum by 12 counsel for the Co-op, William Green? 13 A I believe it was. 14 Q Have you reviewed any other judicial opinions -- 15 strike that. 16 Have you reviewed any judicial opinions in 17 forming your opinion about what Florida law requires in way 18 of economic impact or cost/benefit analysis for the SWIM 19 plan? 20 A No. 21 Q Any other statutes? 22 A Well, I think we discussed the review of the '87 23 and '89 SWIM statutes and then Marjory Stoneman Douglas and 24 I mentioned today the APA. In the memorandum, earlier 25 memorandum, I believe there is some discussion about the 234 1 basic water quality regulatory statutes in Florida law, 2 which I'm sorry I couldn't give you the citation or short 3 title for, but I guess those would also be relevant. I 4 believe that's where the actual moderating provisions, 5 mixing zone considerations occur. 6 Q Dr. Luke, you testified earlier, actually in 7 your previous deposition, I believe, that you hold a juris 8 doctor, is that correct? 9 A Right. 10 Q Are you relying on your qualifications as a 11 lawyer in forming your opinion about what Florida law 12 requires for economic impact analysis and cost/benefit 13 analysis of the SWIM plan? 14 A Certainly some of my legal training is the 15 source of some of my understanding about ideas of due 16 process and arbitrary and capricious and the requirement 17 that an agency consider -- make all required considerations 18 in arriving at a decision. I was certainly exposed to 19 similar kind of concepts in my public policy training, I 20 mean, again, they overlap. I have been exposed to those 21 concepts in being responsible for developing a coastal 22 management program for the state of Texas. I mean, it's 23 kind of an area of commonality between at least the public 24 policy analysis training I have had and the legal training 25 I have had. 235 1 Q When you talk about an overlap between your 2 public policy analysis training and your legal training, in 3 your public policy analysis training, did you have any 4 course work that dealt in the requirements under Florida 5 law for SWIM plan promulgation? 6 A I was in public policy school in 1972 and there 7 may have been a SWIM plan requirement back then, but I 8 don't think we used that as a case study. 9 Q Did you have any course work that dealt with 10 what was meant by the words public interest in a statute? 11 A Yes. In fact, I have even helped teach a course 12 in interpreting public interest and public policy 13 development at the Lyndon Johnson School in Austin. 14 Q Tell me more about that. 15 A Sure. When I was in Austin, I was a -- I had 16 gotten my master's degree and was attending law school and 17 there was a course on planning, gosh, it's been a long time 18 ago, I think the title was something like Planning in the 19 Public Interest, taught by Dr. Jared Hazelton, and I 20 assisted him in that course and was responsible for 21 teaching certain sections of it. 22 Q Dr. Luke, are you involved in development of 23 coastal management plans for Texas at the present time? 24 A No. 25 Q Have you been in the past? 236 1 A My involvement with that went through the change 2 of gubernatorial administrations in 1979 and I have not 3 really had any direct involvement, that was when the direct 4 involvement ended and there are some follow up projects 5 which were not part of the coastal management project, but 6 were part of the work done for the General Land Office, 7 which concerned management coastal resources that would 8 have extended to 1991, 1992. 9 Q Do you know whether economic analysis is 10 required for coastal management plan development in Texas? 11 A Yes, it is. 12 Q Is cost/benefit analysis required? 13 A Yes. 14 Q Is economic impact analysis required? 15 A Yes. 16 Q Do the requirements that you have testified to 17 as described in guidance and guidelines of the Principles 18 and Guidelines apply to coastal management plan development 19 in Texas? 20 A The water resources planning, Federal Water 21 Resources Planning Act does not specifically make 22 Principles and Guidelines applicable to coastal management 23 programs, however, the terms of the Coastal Zone Management 24 Act require a planning process that is substantively the 25 same as that and require an environmental impact statement 237 1 prior to federal certification of programs submitted by the 2 states. 3 Q Is a socioeconomic impact analysis required 4 under the Coastal Zone Management Act? 5 A As part of the environmental impact statement, 6 yes. 7 Q Would it include the elements that in your 8 opinion are missing from -- improperly missing from the 9 District's analysis? 10 A I don't understand the question. 11 Q You identified a number of elements that in your 12 opinion should have been studied, but were not, by the 13 District, are those elements also required to be included 14 in the socioeconomic impact analysis applicable under the 15 Coastal Zone Management Act? 16 A Depending upon the issues that arose in coastal 17 zone management in specific states and the scoping process 18 that had occurred, those specific impacts that I named 19 might or might not be considered to be sufficiently 20 affected by any of the actions that were to be elements of 21 the coastal zone management program to require an explicit 22 analysis, so as I said, the scoping process would determine 23 whether or not each and every one of those, and perhaps 24 some others I haven't mentioned that would be relevant in a 25 certain state, should be included. 238 1 Q Would population migration effects be required 2 to be analyzed? 3 A They could be, it would depend again upon the 4 problems and issues that a specific state was addressing in 5 its coastal management program. 6 Q How about effects on self-esteem? 7 A Yes, it could be. 8 Q Do you know of any analyses done in the coastal 9 zone management process under the Coastal Zone Management 10 Act that have included those elements? 11 A I haven't reviewed or had any need to review all 12 of the state coastal zone plans, so I don't. 13 Q Do you know of any that include those elements? 14 A Having not reviewed them, I have no way to know, 15 so my saying I don't know doesn't imply anything other than 16 I haven't read them. 17 Q Okay, thank you. In your opinion -- strike 18 that. 19 You have also testified that in your opinion 20 guidelines or general guidance for the District on how to 21 comply with the requirements under Florida law to analyze 22 economic impacts and cost/benefit relationships for the 23 SWIM plan is contained in the Federal Principles and 24 Guidelines, is that correct? 25 A Yes. 239 1 Q Is that a legal opinion? 2 A Again, I have told you that I believe it is not 3 something that is directly applied as a matter of law, but 4 that it is a rather complete and well accepted statement of 5 the steps and considerations in water resources planning 6 and it serves as a useful yardstick, so I guess you would 7 call that a public policy judgment as to whether that 8 document is a useful yardstick. I guess you could say that 9 in interpreting the public interest in water resources 10 planning, it is that yardstick or a yardstick that is 11 functionally equivalent that would have to be met in order 12 to have done water resources planning in the public 13 interest. 14 Q Is it your opinion that any government agency 15 action which is required -- strike that. 16 Is it your opinion that any government agency 17 action involving a water resources project such as the SWIM 18 plan that is required by law to be conducted in the public 19 interest, requires economic impact analysis and 20 cost/benefit analysis of the type and extent that you have 21 testified is required of the District for this SWIM plan? 22 A I think that again this goes to the question of 23 scoping. One can envision something that could be called a 24 water resources project or plan, which is so minor in its 25 scale, that in scoping, what was needed in order to do a 240 1 rational plan in the public interest, that it would not be 2 necessary to do the same range of formal studies that is 3 required if you are doing the Surface Water Improvement and 4 Management plan for the entire Everglades lower east coast 5 area. The scale of the area, the scale of the plan, the 6 scale of the financial obligations being created certainly 7 dictate the amount of formal study and analysis that is 8 appropriate in a given case. 9 Q So then would it be fair to say that in your 10 opinion the District was required to do more than it did in 11 this case because of the scope of the SWIM plan? 12 A Because of both the statutory requirements and 13 the scope, yes. 14 Q Do you know whether any other SWIM plan in 15 Florida has -- strike that. 16 Do you know whether any other Water Management 17 District in Florida has promulgated a SWIM plan? That's 18 the question. 19 A I haven't looked. 20 Q Do you know whether the South Florida Water 21 Management District has promulgated any other SWIM plans? 22 A I have seen their draft final in '90, but I 23 don't believe that was adopted and I don't believe there is 24 anything prior to that, but I haven't gone back before 1990 25 to check. 241 1 Q I asked you a question like this yesterday 2 concerning just cost/benefit analysis, but my question 3 today is more inclusive. Are you aware of any studies that 4 have been done by or on behalf of any non-federal agency in 5 the state of Florida for a water resources project that do 6 comply with the requirements for economic impact analysis 7 or cost/benefit analysis? 8 A I haven't looked and so I couldn't name it for 9 you. 10 MR. SAXE: Okay, Counsel, I have finished that 11 line of questioning, if you want to finish your 12 comments about the nature of Dr. Luke's proffer as an 13 expert. 14 MS. RAEPPLE: My comments were complete. 15 MR. SAXE: Okay, thanks. 16 BY MR. SAXE: 17 Q Dr. Luke, going back to the direct economic 18 impact analysis of STA's, what multipliers did you use for 19 STA construction impacts for the EAA or on the EAA and on 20 Florida? 21 A The Hendry County multipliers. 22 Q Those would be the Hendry County RIMS 23 multipliers? 24 A Right. 25 Q Any particular -- are there industrial 242 1 classifications in the RIMS multipliers? 2 A There are, and I believe we're talking about the 3 same ones, same sectors for which Hazen and Sawyer used the 4 Palm Beach County multipliers. 5 Q With respect to employment impacts from STA 6 construction, in your analysis, did you make any assumption 7 about the distribution of impact between local versus non- 8 local workers? 9 A Yes. We assumed that approximately 50 percent 10 of the jobs would go to EAA residents and about 50 percent 11 wouldn't. 12 Q Can you tell me why you made that assumption? 13 A This is a judgment that I relied on Dr. 14 Leistritz for and it was based upon his analysis of the 15 labor force composition in the EAA and his previous 16 experience with large projects, construction projects in 17 rural communities. 18 Q Now, did you handle, in your analysis, the 19 change in the price paid by the mill for cane when STA land 20 came out of production? 21 A There are equations in the model that in effect 22 look at what the profit, if you will, of the mill would be 23 and allocate that back to the farms. 24 Q Did you use the Hazen and Sawyer equation? 25 A No. 243 1 Q Do you know what the -- can you tell me more 2 about the equation, either can you tell me what the 3 equation is or can you point me to where I would find the 4 equation specifically in your production? 5 A You would find it in the spread sheet. 6 Q Can you tell me how that equation was derived? 7 A Well, I mean, basically it's an accounting 8 relationship. You have got the, for the amount of cane 9 that's being processed in any given year, what you have got 10 is the profit, if you will, to the mills, that then can be 11 allocated back to the individual model farms on a per acre 12 basis, so that as the -- given that the price is a 13 constant, as the other variables change, the amount of 14 implied subsidy that's available to bid for the -- I don't 15 want to say subsidy, but the implied amount of money that's 16 available to bid for the cane while leaving the mills in an 17 economically solvent position will change. 18 Q When you say the equation reflects an accounting 19 relationship, I think you said? 20 A Right. 21 Q Concerning the profit at the mills that can be 22 allocated back, what are the criteria for how much can be 23 allocated back? 24 A Well, you have got in effect the profit from the 25 mills, I mean revenues minus expenses, in that that's the 244 1 amount that's available to be allocated back to bid for 2 cane supplies, if necessary. 3 Q And again, the revenue -- the derivation of the 4 revenue side of that equation was done how? 5 A You basically got the amount of raw sugar that's 6 being produced times the price of raw sugar plus the amount 7 for byproducts. 8 Q And what figures were used for those variables? 9 A It's the 21.6 plus the penny on the byproducts. 10 Q How about the expenses side, what figures were 11 used for the expenses side of the revenues minus expenses? 12 A You have got the numbers that were derived from 13 the USDA survey of the mills. 14 Q Those are the same numbers that Hazen and Sawyer 15 used? 16 A Yes. 17 Q Was there any adjustment in mill configuration 18 due to land going out of production? 19 A I don't know what you mean by configuration. We 20 assumed that all seven mills stayed in operation throughout 21 the period, if that's your question. 22 Q Did you make any changes in the expenses side or 23 the revenues variable in the equation as land went out of 24 production? 25 A Well, it's not land going out of production 245 1 that's the issue, it's how much cane is the mill processing 2 and, in that case, yes, there's certainly some variable 3 costs. 4 Q What was the basis for varying those costs? 5 A There is an analysis in the USDA numbers, I 6 believe, of the cost structure of the mills. 7 Q Is that the same -- was the same methodology 8 used as Hazen and Sawyer used? 9 A Let me say we were able to replicate their 10 results, which is different than saying that we used 11 exactly the same equations. 12 Q Do you know whether there were different 13 equations used? 14 A I don't know, I don't have their spread sheets. 15 Q Did you do these calculations personally? 16 A They were done under my supervision. 17 Q Who under your supervision worked on this? 18 A Ed Warren and Eric Schubert. 19 Q Do you know whether these variations in costs of 20 production with the changing supply of cane were also 21 factored in when land went out of production due to 22 subsidence? 23 A Yes, they were. 24 Q And when land went out of production due to your 25 land use change criteria involving returns to land? 246 1 A Yes, they were. 2 Q Dr. Luke, you made a reference just a moment ago 3 to the Hazen and Sawyer spread sheets, do you or RPC or 4 subcontractors have any of the Hazen and Sawyer's spread 5 sheets? 6 A Not for the contract completion report. 7 Q Do you have them for the draft final report? 8 A I don't think so. I think the last ones we have 9 were whatever they produced shortly after the 10 year 10 report, I don't think they had even issued a 20 year 11 report. This has been over a year ago, so I'm not certain, 12 but I know that since we have not -- at least to my 13 knowledge there has been no deposition or no production 14 directly related to contract completion report, we don't 15 have that. 16 Q Going back for a minute to the employment impact 17 area, do you know if Dr. Leistritz used any Florida 18 communities in his job distribution work? 19 A I don't understand the question. 20 Q Did he draw any inferences from data from 21 Florida communities as opposed to communities that might 22 have been studied elsewhere in the country? 23 A We looked specifically at the composition of the 24 labor force in the communities in the EAA in terms of what 25 labor skills and what types of laborers were there, based 247 1 upon the BLS and the census data and observation in the 2 study area, so I mean, he has made some trips and visits 3 there, so he has used that information about the specific 4 Florida communities that we're examining. 5 Q In arriving at the 50/50 ratio of distribution 6 of impact between local and non-local workers from STA 7 construction, did he draw any inferences from Florida 8 community information? 9 A I don't know what I can add to the answer I just 10 gave you. 11 Q Do you know if Dr. Leistritz used any previous 12 studies from the University of Florida or any other 13 institutions that had done studies concerning employment in 14 the EAA? 15 A We have certainly had available a number of the 16 IFAS and the extension service studies and those sorts of 17 things and I know he has looked at many of those. In terms 18 of giving you a schematic of his decision process, I 19 suggest you ask him that when you depose him. I really 20 couldn't tell you precisely what he thinks he considered in 21 reaching this particular judgment. 22 Q Okay, thank you, Dr. Luke. 23 Again talking about the economic impacts of 24 STA's, in your analysis, where did you get the costs to be 25 used for cost of construction? 248 1 A We have used the information that I guess 2 originates with the District's engineering consultant, I 3 believe it's Burns & McDonnell, a different firm than the 4 BMP's, and carries forward from there. 5 Q Was it the same information that Hazen and 6 Sawyer used in the 20 year report? 7 A I believe it's the same. 8 Q Same question concerning the cost of operation, 9 what was the source of the values for the operation costs? 10 A I believe the answer is the same. We asked if 11 there had been any updated general design memoranda or cost 12 estimates and asked counsel that and the indication we got 13 is there had not been any published update on that 14 material. 15 Q I'm sorry, I might have missed it, who did you 16 ask? 17 A We asked Ms. Raepple and Mr. Perko, I think. 18 Q Okay, fine. 19 In your analysis, did you reduce cost of 20 construction and cost of operation to present value? 21 A I'm not sure I understand your question. 22 Q Let me break that up, let me rephrase it. Did 23 you reduce cost of operation to present value? 24 A No. We have done annual projections and so we 25 have not brought those annual projections back to a single 249 1 number, which I am interpreting your question to mean, I 2 mean, one could do that by applying some discount rate in 3 the usual manner. 4 Q That would be the same for operating costs, I 5 take it, you dealt with operating costs as they arose in a 6 given projection year as opposed to bringing them up front, 7 I think you said, and using a discount rate? 8 A Right, right. 9 Q What was the basis for your scheduling of the 10 incurring of the operation costs and the construction 11 costs, the timing? 12 A The timing is based upon, I think, the SWIM plan 13 itself and I think is consistent with what Hazen and Sawyer 14 did on the SWIM plan alternative and the operating costs I 15 believe are level annual costs, so I mean they recur. 16 Q Dr. Luke, if you would look at Exhibit 2 for a 17 moment, please. On the eighth page, it says Calculation of 18 Annual Total Financing Requirement for Four Phosphorus 19 Reduction Alternatives. 20 A Does it have a page number on it? 21 Q A very faint 7. 22 A All right, got it. 23 Q I'm going to strike that, you can ignore Exhibit 24 2 for the time being. 25 A Okay. 250 1 Q I would like to talk some about your analysis of 2 the direct economic impacts of alternatives to the SWIM 3 plan. You have indicated that you analyzed a number of 4 alternatives to the STA's proposed in the SWIM plan. I 5 believe there was a microfiltration alternative, a direct 6 filtration alternative, an STA's outside the EAA 7 alternative. What am I forgetting? 8 A You are forgetting the no action alternative, 9 which translates really to a mixing zone alternative. 10 Q Other than the no action alternative, how did 11 you arrive at the criteria or the characteristics of the 12 alternatives that I have just described? 13 A I'm not sure I understand. 14 Q Let me rephrase the question. Where did you get 15 the alternatives? 16 A The direct filtration alternative is one that 17 the District's consultants, engineering consultants, have 18 studied after the adoption of the SWIM plan, or at least 19 all the materials on it I have seen are post-'92. 20 Q This is the direct filtration? 21 A Yes. 22 Q When you say District consultants? 23 A I believe I am talking about Burns & McDonnell. 24 The microfiltration was brought to my attention 25 by Mr. Green and information on that has been supplied by 251 1 Dr. Shannon. 2 Q And the STA's outside of the EAA, was that your 3 own -- let me rephrase that. Did somebody suggest that as 4 an alternative to you? 5 A I guess not as a specific alternative, I mean, I 6 had asked the question early on if you want to have these 7 managed marshes, why put them in the EAA as opposed to 8 putting them in the WCA, and nobody had a technical reason 9 why that wasn't possible and it clearly is a distinct 10 economic alternative, so I formulated that I guess myself. 11 Q So as far as you know, for your purposes, that 12 was your idea? 13 A Right, although I would be amazed if somebody 14 hadn't mentioned it somewhere along the line previously. 15 Q What were the criteria that you used in 16 selecting these alternatives, other than the no action 17 alternative, as appropriate alternatives to be the subject 18 of economic impact analysis and cost/benefit analysis? 19 A Well, as I understand the Douglas Act, the 20 agricultural interests are responsible for the cost of 21 water quality measures, but not for the cost of hydroperiod 22 restoration measures in terms of what you can use an 23 assessment, storm water utility district assessment for, so 24 it is necessary, in my view, to determine what the actual 25 cost of efficient achievement of water quality standards 252 1 are, because that really, I think, poses a ceiling on what 2 you can assess against the EAA farm lands, so that there 3 are really two issues. One, what should you do as the 4 appropriate alternative from a -- if your sole objective 5 was phosphorus removal, if that's the main alleged problem 6 in the water quality, and then if you are a multi-objective 7 project and your alternative is going to serve both water 8 quality and hydroperiod restoration objectives, then the 9 pure phosphorous removal alternative provides us with a 10 basis for saying how those costs should be allocated 11 between water quality and other objectives. So even if you 12 sort of said, well, gee, I don't really like direct 13 filtration because it doesn't allow me to control the 14 timing of flows of water to the WCA's and so even if direct 15 filtration is more efficient as a water quality measure, I 16 still want to do something else, that may be a perfectly 17 valid decision by the District. But what we would then say 18 is okay, to the extent that it costs more to do it with an 19 STA than it would cost if you built a direct filtration 20 plan, then the difference in those costs obviously is not 21 attributable to water quality improvement, it's 22 attributable to your other objectives. 23 So it's important to understand some of the 24 other water quality management technologies, both because 25 they may be just better overall, superior given all 253 1 objectives, and also they will provide us with some 2 benchmarks in terms of what is a reasonable allocation of 3 costs to the storm water assessments. 4 MR. SAXE: Could you mark that answer, please? 5 (Discussion off the record.) 6 (Brief recess taken.) 7 BY MR. SAXE: 8 Q Before when we were talking about the 9 alternatives analyzed, I asked you where you got the other 10 alternatives that you analyzed and you told me that the 11 direct filtration alternative was based on work by Burns & 12 McDonnell, I believe, the microfiltration alternative was 13 based on work by Dr. Shannon, and it had been, to some 14 extent, your idea concerning the STA's in the water 15 conservation areas. 16 Starting with the direct filtration, can you 17 describe for me just what it is that you have -- what kind 18 of materials or information -- strike that. What 19 information you have received about the direct filtration 20 alternative that you have considered in formulating your 21 analysis? 22 A Right. We produced -- I have seen a feasibility 23 study design memorandum document and I believe we produced 24 to you a technical appendix, which is the thing that 25 actually contains the operation and construction costs of 254 1 it, and I have talked with Dr. Shannon just in terms of, 2 okay, educate me about kind of technically what the process 3 looks like, and that's at this point what I know about it. 4 Q Did you see the design memorandum? 5 A Yeah, I held it in my hands and scanned through 6 it. 7 Q And you produced the appendix? 8 A Yes. 9 Q The design memorandum is probably listed in one 10 of your letters maybe? 11 MS. RAEPPLE: If it wasn't listed, you are now 12 aware of it and if you need a copy of it, we can 13 provide it. 14 MR. SAXE: That's fine. 15 THE WITNESS: It's something the District 16 produced. 17 BY MR. SAXE: 18 Q As far as the microfiltration, again same 19 question, what information have you received and reviewed 20 in analyzing this alternative? 21 A That's in the production, it's in that stack, I 22 believe. It is information that Dr. Shannon supplied to 23 Dr. Schubert within the last month or so, I guess, 24 concerning microfiltration. I have also had the 25 opportunity to go over the concept and some of the issues 255 1 in the microfiltration alternative with Dr. Shannon and I 2 think I understand basically how it works and how it 3 differs from direct filtration. 4 Q With respect to the STA's in the water 5 conservation areas, based on your earlier testimony, this 6 is somewhat more of an abstract alternative in that it 7 involves just changing some of the assumptions in your 8 existing analysis concerning STA's, would that be correct? 9 A I don't know if it's any more or less abstract 10 than any of the rest of these. What I have assumed for 11 purposes of this analysis is that the STA's would be of the 12 same area and effectiveness, whatever that is, and that in 13 effect they would be moved south so that instead of being 14 for the most part immediately north of WCA's, they would be 15 in WCA's. 16 Q So were there any other sources of information 17 that you had recourse to in formulating the characteristics 18 of this alternative for purposes of your analysis? 19 A I have held the construction and the operation 20 costs constant, so I have just really moved it and 21 eliminated the land costs. I -- 22 Q When you say moved it -- excuse me. 23 A I haven't specified a location, if that's your 24 question. 25 Q That's helpful, so you haven't located 256 1 alternative STA spots on a map? 2 A No. 3 Q When did you first become aware of the direct 4 filtration alternative? 5 A I think I became aware of the direct and the 6 microfiltration, it's been in 1994, and I believe it's in a 7 conversation with Mr. Green. I don't know the exact date. 8 Q It's been in 1994, you said? 9 A Correct. 10 Q How about microfiltration? 11 A Same. 12 Q The alternative of STA location in the water 13 conservation areas? 14 A I mean, I have been aware of that since we 15 started looking at this in '92, that there was nothing 16 inherent in the STA technology, which is in effect a 17 managed marsh, that required that it be on EAA land as 18 opposed to WCA land. 19 Q So that would be basically when you started 20 working, when you were first retained by the Cooperative? 21 A If the question is was I aware of the possible 22 alternative, I mean, you know, I can't tell you the moment 23 that it dawned on me, but I mean, it -- 24 Q It was very early in your work on the case? 25 A Yes, when I started looking at STA's. 257 1 MR. SAXE: Court Reporter, would you please now 2 read back the question I had asked before the break? 3 (Requested portion read as follows: Question, 4 "What were the criteria that you used in selecting 5 these alternatives, other than the no action 6 alternative, as appropriate alternatives to be the 7 subject of economic impact analysis and cost/benefit 8 analysis?") 9 MR. SAXE: Now would you read back the beginning 10 of Dr. Luke's answer? 11 (Requested portion read as follows: Answer, 12 "Well, as I understand the Douglas Act, the 13 agricultural interests are responsible for the cost of 14 the water quality measures, but not for the cost of 15 hydroperiod restoration measures" -- 16 MR. SAXE: Okay, that's all I need, thank you. 17 BY MR. SAXE: 18 Q Dr. Luke, what do you mean when you say ag is, 19 as you understand it under the Marjory Stoneman Douglas 20 Act, responsible for water quality measures? 21 A I'm trying to find the Douglas Act. If you look 22 at the Douglas Act, and I'm looking at it as it is 23 published in the March 12, '92 appendices to the SWIM plan, 24 it identifies storm water -- one of the provisions of storm 25 water funding, dedicated funds for storm water management, 258 1 and it talks about different kinds of assessments and fees 2 and I'm sure you are very familiar with that. If you go 3 over to paragraph -- or section (d) of section 5, it says, 4 "In no event shall the amount of funds collected for storm 5 water management facilities pursuant to paragraphs (a) or 6 (c) or any combination thereof, exceed the cost of 7 providing water management attributable to water quality 8 treatment resulting from the operation of the storm water 9 management systems to the landowners to be charged." And 10 then later on it talks about making a fair and reasonable 11 determination of the estimated costs of water management 12 attributable to the water quality treatment and then it 13 goes on and later talks about water quality problems that 14 may not originate within the EAA. 15 So it is talking here about the ceiling in 16 effect, or the cost allocation method would be another way 17 to say it, permissible cost allocations between different 18 types of assessments and fees and so forth, and my 19 shorthand for that is to say that the legislature has said 20 that you can charge the EAA agricultural interests for the 21 cost of improving the quality of their discharge waters to 22 meet some standard, but that you are not to use those sorts 23 of targeted assessments, targeted taxes, to pay for -- 24 against the EAA lands to pay for hydroperiod management or 25 to pay for say the cleanup of water discharge from Lake 259 1 Okeechobee that happens to flow through the EAA. 2 Q So when you say ag is responsible for certain 3 water quality measures, if I understand your answer, you 4 are saying that ag can be charged for certain water quality 5 measures under the Douglas Act, is that correct? 6 A That's right. There is nothing that I can see 7 that necessarily prohibits some sort of funding from other 8 sources. I don't read anything that says that water 9 quality structures shall only be paid for from fees 10 assessed against EAA lands. 11 Q So in your opinion, the Douglas Act doesn't 12 require that ag be charged for or assessed or allocated, as 13 you put it, the costs associated with the water quality 14 measures which they could under the law be assessed, would 15 that be correct? 16 A That's my read. I'm sure you will not rely on 17 that solely for your interpretation. 18 Q So when you say ag is responsible for the water 19 quality measures under the Marjory Stoneman Douglas Act, 20 would it more accurate to say that ag may be responsible 21 for water quality measures? 22 A I guess that in a pure legal interpretation, 23 that that would be correct. My interpretation of what I 24 have seen and heard and read is that there seems to be a 25 political conviction, at least on the part of some groups, 260 1 that ag should pay the full costs of any water quality 2 improvement. 3 Q Just so I understand your answer, though, that 4 I'm seeking clarification of, which was your answer before 5 the break, you said ag is responsible for water quality 6 measures under the Marjory Stoneman Douglas Act? 7 A Right. 8 Q That's what I'm asking about now, not what some 9 groups might think ag is responsible for or what some 10 politicians might think ag is responsible for. 11 A Right. 12 Q And if I understand your testimony correctly, it 13 is not your opinion that the Marjory Stoneman Douglas Act 14 requires that ag be assessed the full cost of or in fact 15 any portion of the cost of the water quality measures which 16 under the act they could be assessed, is that correct? 17 A I think that's right, is that there is a ceiling 18 put on it, but that there is -- I don't find a floor. 19 Q Is this opinion about what's required under the 20 Marjory Stoneman Douglas Act based again entirely on -- not 21 again, excuse me, is it based entirely on your own 22 expertise as an expert policy analyst? 23 A It's based on my interpretation of the act, 24 which I have checked with Florida counsel and they seem to 25 tell me that that's how they read it, too. 261 1 Q But it is your own opinion, you are not relying 2 upon the opinion of counsel for that decision? 3 A Of course I am relying in part on their opinion. 4 If I had said, gee, I interpret it this way and they said, 5 no, you are all wrong, it's something else, I would not 6 have maintained that interpretation. 7 MR. SAXE: Going back to the question that I 8 asked before the break, would you read that back one 9 more time, please? 10 (Requested portion read as follows: Question, 11 "What were the criteria that you used in selecting 12 these alternatives, other than the no action 13 alternative, as appropriate alternatives to be the 14 subject of economic impact analysis and cost/benefit 15 analysis?") 16 MR. SAXE: 17 Q Dr. Luke, I would like you to take a run at 18 answering that question again, but before you do so, if you 19 could tell me in your own words what the criteria are, 20 rather than giving me examples of how criteria might be 21 applied? That is what I'm looking for in this particular 22 question. 23 A All right, well, let me see if I can reshape it 24 that way. 25 First of all, you need to understand that the 262 1 specification of alternatives is an iterative process, it 2 is not a one time through process, and so at different 3 points in the planning process, you may return to the 4 question of alternatives either to add to or to take away 5 from ones that you have previously identified. 6 Q But when you do, notwithstanding whether it's an 7 iterative process and how many times you do it, what 8 criteria would apply? 9 A And I'm going to tell you about that. 10 So that the criteria you apply is that, first of 11 all, the alternatives correspond to your objectives. You 12 obviously have to have some belief that the alternative 13 that you're proposing will achieve some desired outcome or 14 at least move you closer to that desired outcome and you 15 have to have therefore some understanding of what your 16 desired outcome is, so the criteria is this is something I 17 have some reason to believe will move me closer to a 18 previously specified desired outcome. 19 Q Okay, so that's one criteria? 20 A Right. And in water resources planning, it is 21 axiomatic that it is often a multi-objective situation, so 22 that you could refine that to say one or more of my 23 objectives. 24 Q Okay, it doesn't have to -- the alternative need 25 not correspond, as you use the word, to all of the 263 1 objectives, but simply one or more of the objectives? 2 A That's right, because you can have elements in a 3 plan that you can link together and a plan is not a single 4 unitary element. 5 Q When you say that the alternative must 6 correspond to one or more of the objectives, by correspond, 7 do you mean that it must promote? 8 A Further would maybe be a good word. Help you to 9 achieve would be another way to say it. 10 Q Do alternatives have to help you to achieve one 11 or more of the objectives to the same degree to be 12 appropriately considered as alternatives to be studied? 13 A No. In fact, by their very nature, alternatives 14 will differ in the degree to which they may help you obtain 15 different objectives. You may have one that only gets you 16 50 percent of the way, but it may only cost 10 percent as 17 much as one that gets you 70 percent of the way. So that 18 you can have a variety of degrees and of course that's one 19 reason that we talked about yesterday that you need to have 20 some indication of indicators of levels of achievement of 21 an objective. Objectives are not normally all or nothing 22 matters. You can have partial achievement. 23 Q Are there any parameters, lower or upper bounds 24 for the degree to which alternatives further objectives for 25 them to be considered appropriate alternatives? 264 1 A Well, again, because you will have cost 2 tradeoffs and because you will have interactions and 3 because often when you specify the objective -- excuse me, 4 when you specify the alternative, you may not have the data 5 you need to determine how far along it will get you in 6 achieving the objective in this specific case. Maybe it 7 worked somewhere else and so somebody thinks it will work 8 in the current situation, but we don't know that. 9 I would not say to nominate an alternative that 10 you have to have a lower bound. Now, I guess the upper 11 bound is 100 percent, but I don't think that's -- 12 Q So if I understand your answer correctly, there 13 is nothing requiring that any given alternative be excluded 14 from consideration because it falls far short in the degree 15 it promotes any particular objective relative to another 16 alternative? 17 A That's right, because it might be used in 18 conjunction with other alternatives, other elements, to put 19 together a strategy which taken together would either 20 represent substantial progress towards your objectives or 21 it might represent achievement of your objectives. 22 Q Are there any other criteria? 23 A Yes. 24 Q Could you give me one other criteria? 25 A I think I would go back to Deposition Exhibit 1 265 1 and it would be on page 5 as we have numbered it and I 2 would point out that the alternatives should be 3 significantly different from each other. 4 Q Again, we are now referring to your discussion 5 of the Federal Principles and Guidelines? 6 A That's correct. 7 Q And these Federal Principles and Guidelines 8 provide guidance for the selection of alternatives to be 9 studied by an entity like the Water Management District in 10 proposing an action like those proposed in the SWIM plan, 11 is that correct? 12 A That is correct. We also say that the range of 13 alternatives selected should cover all of the reasonable 14 alternatives and those would be all the reasonable 15 technological alternatives, all the reasonable economic and 16 political alternatives. 17 Q I'm sorry, would you direct me to where you are 18 referring? 19 A See the bracketed 1.6.1 (a)? 20 Q Yes. 21 A Read the sentence after that. 22 Q This sentence reads, "Alternative plans should 23 be formulated in a systematic manner to insure that all 24 reasonable alternatives are evaluated," is that correct? 25 A Yes. 266 1 Q How does one insure that all reasonable 2 alternatives have been evaluated? 3 A One involves all of the affected interest groups 4 and an interdisciplinary team knowledgeable in the various 5 disciplines applicable to water resources planning in the 6 scoping of the planning effort and one does not prematurely 7 discard alternatives that one or more of the disciplines or 8 affected groups believes is worthy of studying. 9 Q So is it your opinion that the District was 10 required to constitute an interdisciplinary group of all 11 the affected interests for purposes of determining what 12 alternatives were reasonable to be analyzed? 13 A Right. So that could be done through, I mean, 14 there are different institutional structures for getting 15 that input. They include committees, hearings, symposia, I 16 mean, there are any number of means of public input, public 17 participation that have been developed over the years. 18 Q I didn't hear the beginning of your answer, 19 before the amplification, did you say yes? 20 A I think so. 21 Q So then the determination of what is a 22 reasonable alternative for purposes of economic impacts and 23 cost/benefit analysis for water resources project like that 24 proposed in the SWIM plan, in your view is confided to the 25 discretion of such an interdisciplinary group process, the 267 1 group would make that determination for the agency in this 2 case? 3 A The role of the group is to nominate. The 4 agency, if it is acting in its, what I believe to be its 5 proper role and not constrained by inappropriate and 6 external forces, then would be responsible for making sure 7 that it had specified a sufficient range of alternatives to 8 cover what could be considered all reasonable alternatives. 9 Q In your view, are the four alternatives, or 10 three alternatives other than the no action alternative 11 that you have analyzed, does that exhaust the group of 12 reasonable alternatives that the Water Management District 13 should have identified through this process? 14 A No. The alternatives that the Water Management 15 District should have identified are alternatives for 16 restoring the hydroperiod of the park and the WCA's, and 17 they have not, to my knowledge, identified any alternatives 18 for doing that. 19 Q Are these alternatives conducive to that end? 20 A These are, setting aside for a moment what the 21 true purpose of an STA is or a primary purpose of an STA 22 is, the filtration alternatives are intended simply to 23 identify really the cost of achieving certain levels of 24 nutrient removal in something approaching a pure nutrient 25 removal technique. 268 1 Q So then in your view, direct filtration, 2 microfiltration, and STA's located outside of the EAA are 3 not reasonable alternatives that should have been 4 considered by the District when it formulated the SWIM 5 plan? 6 A No, Counselor, that's a pretty blatent 7 distortion of my testimony. They are alternatives for 8 nutrient removal and nutrient removal is certainly one of 9 the elements in an overall SWIM plan that could be 10 considered and should be considered and, as I said, they 11 are also relevant, even if not selected, because of multi- 12 objective considerations for determining what the actual 13 cost of just nutrient removal would be. 14 Q So then excuse what you perceived as a 15 distortion, I'm trying to understand your testimony, would 16 it be accurate to say that direct filtration, 17 microfiltration and relocated STA's are among the 18 reasonable alternatives that the District should have 19 considered, but not exhaustive of the group of reasonable 20 alternatives? 21 A That is correct, because they go to really one 22 of the objectives of a SWIM plan, but they really don't in 23 and of themselves address the overriding objective of 24 hydroperiod restoration. 25 Q Dr. Luke, do you have an opinion about what 269 1 reasonable alternatives should have been considered by the 2 District when it formulated the SWIM plan? 3 A I can give you some idea about that. I don't 4 have a formulated alternative to lay on the table in front 5 of you, but if you look at the Everglades book and the 6 restoration alternatives that are in the final Roman 7 numeraled section of that, what you find are that they 8 identified that for hydroperiod restoration you have to 9 introduce substantial additional water into the system and 10 the only two places that they can identify to get it are 11 the lake and back-pumping a collection of water that's 12 flowing to tide, primarily tide at the lower east coast, 13 and that unless you are going to address a plan -- unless 14 you are going to formulate a plan that introduces 15 substantial additional net water to the system, that I 16 believe it's the view of those authors that it would be 17 technically impossible to even approach restoration of 18 hydroperiod. 19 Q I understand. Let me change the question a 20 little bit, I'm not sure that your answer responded to the 21 question I thought I asked. If direct filtration, 22 microfiltration and relocated STA's are not the set of 23 reasonable alternatives that in your view the District 24 should have considered when it formulated the SWIM plan, 25 but are just among them, why did you analyze them in your 270 1 analysis? 2 A Okay, I would characterize them as components of 3 alternatives, components of strategies. I mean, they are 4 certainly within the overall SWIM plan, you would expect to 5 find some analysis of any water quality issues that 6 existed, I mean, you would have water quality issues arise 7 if you were bringing the water in from the lake, if you 8 were bringing the water back from the lower east coast. 9 Water quality is certainly a valid issue in a SWIM plan. I 10 have not tried to do the District's job for it and 11 formulate a full scope SWIM plan alternative, but what I 12 have done is to say even within the narrower focus of 13 alternative components of an overall plan intended to 14 address water quality issues, they have not looked at the 15 technological range of alternatives and frankly they didn't 16 even do that in 1990. 17 Q Dr. Luke, do you know whether the District 18 considered any alternatives to the proposed action in the 19 SWIM plan before it promulgated the SWIM plan? 20 A I know that -- which SWIM plan? 21 Q The March 13, 1992 SWIM plan that's at issue in 22 this proceeding. 23 A Okay, yes. 24 Q If that date is incorrect, understand that it is 25 the SWIM plan that you understand is at issue in this 271 1 proceeding. 2 A Okay, yes, if you look to their 1990 final draft 3 SWIM plan, sort of the pre-settlement agreement SWIM plan, 4 there is an alternative that is stated. 5 Q In your opinion, is that the only alternative 6 that the District considered before it promulgated the SWIM 7 plan? 8 A It is the only alternative that they have 9 identified in their planning documents, either the plan 10 itself or the appendices to the plan. There is no evidence 11 in what I have seen as the proposed plan or supporting 12 documentation to suggest that they have ever really 13 formulated a hydroperiod restoration plan or have looked at 14 the full technical range of alternatives for water quality. 15 Q Do you have an opinion whether they did consider 16 any other alternatives besides the one that was in the 17 earlier draft SWIM plan? 18 A When you say they, I certainly -- 19 Q Water Management District. 20 A Do you mean the board or the staff, I mean? 21 Q Yes and yes. 22 A The board, to my knowledge, did not ever have 23 presented to it a range of alternatives from which it 24 selected and adopted or which it sent staff back and said, 25 okay, now put together a plan that has A, D and F. 272 1 Q In your opinion, is that what is required for 2 the Water Management District to consider alternatives? 3 A I believe so. They are the decision maker. 4 Q So if I am understanding your testimony 5 correctly, what's required under the Marjory Stoneman 6 Douglas Act and the SWIM Act and other acts that apply to 7 the District in promulgating a SWIM plan is first there is 8 an interdisciplinary group process in which all affected 9 interests are represented to determine the range of 10 reasonable alternatives to be considered, and that then 11 those alternatives be presented to the governing board for 12 their determination about whether they should or should not 13 be considered and analyzed in the means that you're 14 proposing the SWIM plan should have been? 15 A I think you have left out several steps, the 16 steps that -- 17 Q Are those steps, I am not saying they are 18 exhaustive steps, but are those in your opinion steps that 19 would have been legally required? 20 A I think so, in order to have a rational planning 21 process in the public interest. 22 Q Okay, thank you. 23 We were talking about criteria for alternatives, 24 earlier you told me that an alternative must further or 25 correspond to one or more of the objectives of the agency 273 1 and you indicated a process involving interdisciplinary 2 group, affected interest representation. Are there any 3 other criteria besides the one that you have described? 4 A Yes. 5 Q Could you tell me what one of those criteria is? 6 A Yes. Going back to page 6 of Deposition Exhibit 7 1, a criterion is that the specification of alternatives 8 should not be constrained by current authority of the 9 responsible planning agency. 10 Q Would you explain -- if I understand that 11 correctly, do you mean that limits to their legal authority 12 should not affect their selection of alternatives to be 13 studied, is that what you're saying? 14 A I would phrase it -- I would like to answer it 15 myself, and the answer I would give you is twofold. One, 16 it may very well be that a plan needs -- an alternative 17 needs the cooperation or the concurrence of other agencies, 18 that is it's not something that the agency could implement 19 solely on its own. And secondly, to the extent that there 20 is a current constraint such as a settlement agreement, 21 that that should not prevent the, in the planning process, 22 the planning agency from considering alternatives that 23 would be inconsistent with that settlement agreement, so 24 that they can at least understand the degree to which the 25 settlement agreement imposed alternative is desirable or 274 1 undesirable relative to other available alternatives. 2 Q So then would it be correct to say that the 3 agency should not rule out an alternative simply because it 4 either (a) needs help or requires action by other entities, 5 nor (b) because it requires a change in the law? 6 A That's correct. 7 Q Could you refer me to what on page 6 of Exhibit 8 1 corresponds to your recitation of that criterion? 9 A Yes, the first block of text. 10 Q That would be the paragraph starting, 11 "Alternative plans should not be limited" straight through 12 to the bracketed 1.6.4 (c)? 13 A That's correct. 14 Q Are there any other criteria? 15 A Yes. 16 Q Could you give me one other criteria? 17 A Sure. I think that the next thing on page 6 is 18 important, particularly in light of the objectives of the 19 SWIM plan, Marjory Stoneman Douglas. 20 Q That being the sentence, "A range of measures 21 that can over time balance water demand for various 22 purposes with water availability should be considered."? 23 A That's correct. If your range of alternatives 24 does not include measures that could balance demand and 25 supply over time, then in a general surface water 275 1 management plan such as we're discussing here, then you 2 don't have an adequate range of alternatives. 3 Q What does it mean to balance water demand with 4 water availability over time? 5 A Well, over time means out to some point in the 6 future. Balancing water availability and water demand, you 7 have a demand for water for various purposes, speaking very 8 broadly, you have in this