1 1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 2 SUGAR CANE GROWERS COOPERATIVE OF 3 FLORIDA, INC., ROTH FARMS, INC., and WEDGWORTH FARMS, INC., 4 and 5 FLORIDA SUGAR CANE LEAGUE, INC., 6 UNITED STATES SUGAR CORPORATION, and NEW HOPE SOUTH, INC., 7 and 8 FLORIDA FRUIT AND VEGETABLE CASE NOS. 92-3038 9 ASSOCIATION, LEWIS POPE FARMS, 92-3039 W.E. SCHLECHTER & SONS, INC., and 92-3040 10 HUNDLEY FARMS, INC., 11 Petitioners, 12 vs. 13 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 14 Respondent, 15 and 16 MICCOSUKEE TRIBE OF INDIANS OF 17 FLORIDA, the UNITED STATES OF AMERICA, FLORIDA DEPARTMENT 18 OF ENVIRONMENTAL REGULATION, and FLORIDA WILDLIFE FEDERATION, 19 Intervenors. 20 . . . . . . . . . . . . . . . . . . . / 21 22 VOLUME I 23 DEPOSITION OF PAUL C. PARKS, Ph.D. 24 September 22, 1992 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 2 1 2 DEPOSITION OF PAUL C. PARKS, Ph.D. 3 Taken in the above-styled cause, pursuant to 4 notice, at the offices of Hopping Boyd Green & Sams, 123 5 South Calhoun Street, Tallahassee, Florida, on September 6 22, 1992, commencing at 9:00 a.m. 7 8 Reported by: 9 JERRY L. ROTRUCK 10 Certificate of Merit 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 3 1 APPEARANCES OF COUNSEL: 2 On behalf of the Petitioners Sugar Cane Growers Cooperative of Florida, Inc., Roth Farms, Inc., and Wedgworth Farms, 3 Inc.: 4 William H. Green, Esq. Hopping Boyd Green and Sams 5 123 South Calhoun Street Tallahassee, FL 32301 6 On behalf of the Petitioners Florida Sugar Cane League, 7 Inc., United States Sugar Corporation and New Hope South, Inc.: 8 William L. Hyde, Esq. 9 Peeples, Earl & Blank 215 South Monroe Street 10 Suite 350 Tallahassee, FL 32301 11 On behalf of the Petitioners Florida Fruit and Vegetable 12 Association, Lewis Pope Farms, W.E. Schlechter & Sons, Inc., and Hundley Farms, Inc.: 13 Kenneth F. Hoffman, Esq. 14 Oertel, Hoffman, Fernandez & Cole 2700 Blair Stone Road 15 Tallahassee, FL 34301 16 On behalf of the Intervenor United States of America: 17 Suzan Hill Ponzoli, Esq. Assistant U.S. Attorney 18 Miami Avenue, Suite 600 Miami, FL 33102 19 On behalf of the Intervenor Department of Environmental 20 Regulation: 21 Lee M. Killinger, Esq. Assistant General Counsel 22 State of Florida Department of Environmental Regulation 23 Twin Towers Office Building 2600 Blair Stone Road 24 Tallahassee, FL 32399-2400 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 4 1 APPEARANCES OF COUNSEL (continued): 2 On behalf of the Intervenor Florida Wildlife Federation: 3 David J. White, Esq. Counsel, Southeastern Natural Resources Center 4 1401 Peachtree Street, N.E. Suite 240 5 Atlanta, GA 30309 6 Also appearing: 7 Steve Grigas, Esq. Sierra Club Legal Defense Fund 8 Post Office Box 1329 Tallahassee, FL 32302 9 10 11 12 INDEX TO WITNESS 13 PAUL C. PARKS, Ph.D. Page 14 Examination by Mr. Green 7 15 16 INDEX TO EXHIBITS 17 No. Marked 18 1 7 19 2 17 20 3 24 21 4 24 22 5 25 23 5-A 62 24 6 25 25 7 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 5 1 INDEX TO EXHIBITS (continued) 2 No. Marked 3 8 38 4 9 72 5 10 77 6 11 83 7 12 94 8 13 104 9 14 108 10 15 113 11 16 116 12 17 118 13 18 122 14 19 127 15 20 130 16 21 131 17 22 135 18 23 140 19 24 141 20 25 142 21 26 143 22 27 150 23 28 153 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 6 1 S T I P U L A T I O N 2 IT IS STIPULATED AND AGREED by and between counsel 3 appearing for the respective parties as follows: 4 THAT the deposition of PAUL C. PARKS, Ph.D., was 5 taken by agreement for the purpose of discovery, for use as 6 evidence, and for such other purposes as may be permitted 7 by the Florida Rules of Civil Procedure and other 8 applicable law; 9 THAT all objections, except as to the form of the 10 question, are reserved until the trial of this cause; and 11 THAT by agreement of the witness and all parties, 12 reading and signing of the deposition was not waived. 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 7 1 D E P O S I T I O N 2 Whereupon, 3 PAUL C. PARKS, Ph.D. 4 was called as a witness, having been first duly sworn to 5 speak the truth, the whole truth, and nothing but the 6 truth, was examined and testified as follows: 7 EXAMINATION 8 BY MR. GREEN: 9 Q Please state your name and address for the record. 10 A Paul Parks, 1549 Live Oak Drive, Tallahassee, 11 Florida. 12 Q Mr. Parks, I am going to be asking you questions 13 about, related to the South Florida Water Management 14 District SWIM Plan challenge proceedings. Are you 15 basically familiar with those proceedings? 16 A Actually, I would prefer to be called Dr. Parks. 17 Q You can call me Dr. Green. 18 A Yes. 19 Q Dr. Parks, I would like to -- let me have marked 20 the notice for this deposition as Exhibit 1, and I would 21 like to ask you if you have seen a copy of that document. 22 (Whereupon, Exhibit No. 1 was marked for 23 identification.) 24 THE WITNESS: Yes. 25 / / / / / A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 8 1 BY MR. GREEN: 2 Q If I could refer you to the -- you can keep it for 3 a minute -- the second page, I would like to go through 4 these items briefly with you and ask you, it is my 5 understanding that there was a production this past Friday, 6 which would have been September 18th, at the Sierra Club 7 offices in Tallahassee and also yesterday, September 21st. 8 Can you tell me whether the documents that have 9 been requested on page 2 here have all been produced in 10 those two -- on those two days, or either of those days? 11 MS. PONZOLI: With the exception, Mr. Green, of 12 those the United States regards as privileged. 13 MR. GREEN: Which ones are those? 14 MS. PONZOLI: There are certain documents that 15 were withheld, a very limited number. I don't know 16 that they -- I don't know that they fit into any of 17 these categories, quite frankly, Mr. Green. 18 BY MR. GREEN: 19 Q Dr. Parks, did you go through this list with Ms. 20 Ponzoli in preparation for the production of documents that 21 it relates to? 22 A No. 23 Q When the documents were produced last Friday and 24 yesterday, did you go through those documents with Ms. 25 Ponzoli prior to their being produced? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 9 1 A No. 2 Q Are you familiar with the documents Ms. Ponzoli 3 just mentioned that she is asserting privilege with regard 4 to? 5 A Generally. 6 Q Do you know where those documents are kept? 7 A Yes. 8 Q Where? 9 A My office. 10 Q So the documents that we just discussed for which 11 a privilege has been asserted were not produced yesterday 12 or Friday? 13 A That is correct. 14 Q Do you know what privilege they are being 15 protected under? 16 A No. 17 Q Can you tell me the approximate volume of them in 18 terms of, four-inch stack, more or less? 19 A Three. 20 Q Do any of them relate to settlement agreement 21 negotiations specified on page 2, Item 4? 22 A No. 23 Q Can you tell me the subject matter they relate 24 to? 25 A Well, over a long period of time I have been A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 10 1 providing advice to the U.S. Attorney's office, and they 2 relate to that. 3 Q Is that advice related to the proceedings that we 4 are here today for? 5 MS. PONZOLI: I think I am going to object to 6 that question. It is extremely broad, Mr. Green. Can 7 you narrow it a little bit? 8 MR. GREEN: Sure. 9 BY MR. GREEN: 10 Q The proceedings that you have been advising the 11 U.S. Attorney's office on, can you tell me what proceedings 12 those are? 13 A They began with the suit by the U.S. Attorney, 14 filed in federal court, and they have -- it has continued 15 into the federal government's participation in these 16 proceedings, but -- I mean to the extent, they -- it really 17 was stuff performed at the request of the federal 18 government for the federal lawsuit. 19 Q Would that be the same lawsuit that we have cited 20 here on Item 4, page 2 of the notice? 21 A Yes. 22 Q Can you tell me whether those documents relate to 23 research or reports that you have prepared? 24 A What do you mean by a report? 25 Q A written document that summarizes your views on A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 11 1 any particular topic. 2 MS. PONZOLI: I object to the form of the 3 question; that is, any form of advice he would have 4 given the United States would have been a report under 5 that definition. He has already said that these were 6 documents involving advice to the United States. 7 Mr. Green, I think I have allowed an extensive 8 amount of examination on what the privileged documents 9 are, and given the volume of documents that were 10 produced, which are virtually all of Dr. Parks's 11 documents, minus this minor number, I can't see going 12 on and on about what they are. I object to the 13 continued examination regarding what the privileged 14 documents are. 15 I have offered in the context of resolution with 16 the League, and I would offer with you, if all parties 17 wish to provide privileged lists of those withheld 18 documents, then the United States is ready to do that 19 also. 20 MR. GREEN: Ms. Ponzoli, can you tell me what 21 privilege you are asserting with regard to those 22 documents? 23 MS. PONZOLI: They are predominantly work product 24 privilege, but I would have to go document by document, 25 Mr. Green, and my deposition is not being taken. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 12 1 MR. GREEN: I understand. I just need to 2 understand the nature of the privilege you are 3 asserting. 4 MS. PONZOLI: If we can agree to a mutual 5 privileged list, then it would be very clear as to each 6 document for all of us. 7 MR. GREEN: We can discuss that at a later time. 8 BY MR. GREEN: 9 Q Dr. Parks, you have brought in a trolley with two 10 boxes and a briefcase on it. Can you tell me what those 11 documents are, in general? 12 A No. 13 Q Do they relate to this notice? Were they 14 documents we requested that you produce? 15 A They are not my documents. 16 Q Okay. 17 MS. PONZOLI: Mr. Green, they are copies of what 18 you took. 19 MR. GREEN: That is fine. I just want to be 20 complete. Thank you. 21 BY MR. GREEN: 22 Q Dr. Parks, I will ask you some questions, as we 23 said, about the SWIM Plan proceedings. Am I correct in 24 assuming that you have been deposed a number of times 25 before in other proceedings? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 13 1 A Yes. 2 Q I would still like to say that if I ask a question 3 that isn't clear to you or if you don't understand it, 4 please tell me that and I will attempt to rephrase it. If 5 after you answer a question and you think about it and 6 decide that, well, maybe it wasn't what I really meant or I 7 misstated it, please tell me that and I will allow you to 8 restate your answer. 9 If at any time you feel uncomfortable, that you 10 need to have a drink of water or whatever, please let me 11 know. 12 MS. PONZOLI: Mr. Green, I have hesitated to 13 interrupt you, but I did mention before the deposition 14 began privately to you that I wished to place an 15 objection on the record prior to the beginning of the 16 deposition, so I think this may be the best time before 17 we get into the substance of the questions. 18 MR. GREEN: Fine. 19 MS. PONZOLI: The United States wishes to place on 20 the record that it was served last night for the first 21 time a supplemental preliminary disclosure of fact 22 witnesses of Petitioners Florida Sugar Cane League, 23 Inc., United States Sugar Corporation, and New Hope 24 South, Inc. 25 In this supplemental preliminary disclosure, the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 14 1 Florida Sugar Cane League and United States Sugar 2 Corporation and New Hope South attempt to designate Dr. 3 Parks as their fact witness. 4 The United States waives no objections to this 5 abuse of discovery. This is a wholly improper manner 6 of beginning the deposition process, and we will refer 7 this to the hearing officer for resolution. 8 We have previously filed a motion for protective 9 order on September 17th, 1992, because we had had 10 several of these problems with the Florida Sugar Cane 11 League. I believe that Mr. Hyde and I reached a 12 preliminary agreement yesterday before the hearing 13 officer had his conference call in which he indicated 14 he wasn't hearing any motions in any event. I will 15 attempt to honor that agreement with Mr. Hyde, and if 16 we can work through this deposition peacefully, then 17 that is fine; if not, then we will have to recess and 18 have a ruling on this improper designation of Dr. 19 Parks. 20 MR. HYDE: If I may, just briefly, I think we are 21 trying to create an issue here where none exists. 22 A, I think that the U.S. Attorney's office, maybe 23 not you personally, but your office was provided with 24 this, a notice of this supplemental preliminary witness 25 disclosure prior to last night. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 15 1 Secondly, and more importantly, the agreement that 2 we reached yesterday in terms of deposing Dr. Parks 3 would be to hold the U. S. Attorney's motion for 4 protective order in abeyance, that any disputes or 5 objections to questions, subject matter of questions 6 concerning Dr. Parks would be made at such time as those 7 objectionable questions were asked, and they would be 8 reserved for later resolution by the hearing officer. I 9 think that is the basis of our understanding. 10 MS. PONZOLI: But it is clear that were we to come 11 to an impasse over proceeding, we had agreed that we 12 would recess as opposed to answering the questions. I 13 would not be placed in the awkward position of having 14 to instruct him not to answer, nor would you incur 15 similar type extreme measures. 16 So we will just -- we can work our way through, I 17 made that clear. I will tell you quite honestly, I was 18 in my office Sunday afternoon and no such notice was in 19 my office Sunday, and you knew that I would be in 20 Tallahassee on Monday, so my office did not have it. 21 If it is there, it is hidden somewhere. 22 MR. HYDE: By recess, I don't think you mean as 23 soon as an objectionable question is asked you are 24 going to recess the deposition. 25 MS. PONZOLI: No. I just mean that I would not be A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 16 1 placed in a position of having to instruct him not to 2 answer. We would simply cease that line of 3 questioning. 4 MR. HYDE: Okay. 5 MS. PONZOLI: And -- Mr. Green, I am sorry. 6 MR. GREEN: Ms. Ponzoli, just for clarification, I 7 had intended to ask Dr. Parks questions that I think 8 are relevant to the subject matter of this proceeding 9 without separately designating him as a fact witness 10 or anything else. I presume that that is the scope of 11 this deposition. If we get to the point that I ask 12 questions you feel are beyond the scope of the 13 deposition, I would presume you would object and then 14 he can answer subject to the objection. Would that be 15 your view on that? 16 MS. PONZOLI: I think what you have said is rather 17 broad, Mr. Green. We may have to work through it in 18 order to get to whether it is problematic for the 19 United States. 20 I intend to make every effort to let you ask the 21 questions you feel necessary and let him answer. I 22 will have objections and continuing objections to his 23 offering opinions on issues on which he was not 24 designated as an expert by the United States to offer 25 opinions. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 17 1 MR. GREEN: That is fine. Would counsel for other 2 parties and Ms. Ponzoli like to make any stipulations 3 with regard to this deposition, the normal ones? I see 4 a no. That means there are no stipulations? 5 MS. PONZOLI: I prefer to proceed under the rules, 6 Mr. Green. I prefer to have him read and sign this 7 deposition. If you want to tell me the stipulations 8 you would like to proceed under? 9 MR. GREEN: Would you like to preserve all 10 objections except as to the form of the question at the 11 hearing, is that acceptable to everyone else? 12 Let the record show counsel have agreed. 13 This is Exhibit 2, Dr. Parks's resume. 14 (Whereupon, Exhibit No. 2 was marked for 15 identification.) 16 BY MR. GREEN: 17 Q Dr. Parks, I notice that in the subject matter of 18 expected testimony that the United States has filed with 19 regard to you, they indicated that you would be talking 20 about violations of state water quality standards and 21 permitting requirements of Florida law and also about 22 standing. I would like to ask you some questions about 23 your background with regard to those areas. 24 Dr. Parks, when you finished your graduate work, 25 what was your first employment? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 18 1 A I did postdoctoral studies. 2 Q Where? 3 A At the University of -- really, with a professor 4 from Cornell University who was on sabbatical at the 5 University of Pennsylvania, and then at Cornell, in Ithaca. 6 Q What is the date of that in the 1970s? Do you 7 remember the date when you took your postdoctoral 8 appointment? 9 A It was in the '60s. 10 Q The '60s. What was your research concentrated on 11 in that regard? 12 A At what period? 13 Q Your postdoctoral research that you just 14 mentioned. 15 A Temperature jump relaxation kinetics. 16 Q What chemical compounds were you studying in that 17 regard? 18 A Mainly cytochrome C. 19 Q What sort of temperatures did you use to impose a 20 temperature jump? 21 A It was a capacitance discharge apparatus. 22 Q Similar to a shock tube? 23 A Not really. 24 Q So it was an electrical discharge? 25 A Yes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 19 1 Q What sort of temperature jump in terms of degrees 2 Calvin did you excite this cytochrome compound to? 3 A It depended on the medium and on the discharge. 4 Q There was a range of temperatures potentially 5 available? 6 A Yes. 7 Q Did you memorialize your postdoctoral research in 8 publications of any type? 9 A What do you mean by "memorialize"? 10 Q Did you publish papers on your temperature jump 11 research? 12 A Yes. 13 Q Are those the publications listed on the back of 14 your resume which has been marked as Exhibit 2? 15 A No. 16 Q Are any of those publications related to your 17 postdoctoral research? 18 A Yes. 19 Q Could you tell me which ones? 20 A "On the elucidation of the redox potential of 21 cytochrome C at alkaline pH." 22 Q Did any of your postdoctoral research deal with 23 the establishment of water quality standards? 24 A No. 25 Q Did any of it deal with analysis of state A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 20 1 regulations relating to water quality standards? 2 A No. 3 Q Did any of it deal with wetlands? 4 A No. 5 Q Is that also true with regard to your doctoral 6 research? 7 A Yes. 8 Q In your undergraduate research or degree studies, 9 I should say. 10 A What do you mean by "deal with"? 11 Q Did you take any courses as an undergraduate at 12 George Washington University that dealt with water quality 13 standards? 14 A No. 15 Q Or wetlands? 16 A No. 17 Q Or hydrology? 18 A No. 19 Q Or physics? 20 A Yes. 21 Q What physics courses did you have? 22 A Oh, gosh, I -- 23 Q If you remember them. 24 A I don't remember, really. 25 Q How about biology? Did you take courses in A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 21 1 biology as an undergraduate? 2 A The title, biology, do you mean courses that had 3 as a title, biology? 4 Q Yes. 5 A No. 6 Q I take it your undergraduate -- well, what was the 7 major of your undergraduate degree, what major? 8 A Chemistry. 9 Q What was your minor? 10 A I didn't have a minor. 11 Q Did you take any courses in your undergraduate or 12 graduate work or postdoctoral work on hydrology? 13 A No. 14 Q On geohydrology? 15 A No. 16 Q On hydrological modeling? 17 A No. 18 Q Dr. Parks, can you tell us whether you are a 19 member of any professional societies? 20 A I am not. 21 Q What is your current employment? 22 A I am self-employed. 23 Q What is the name of the organization, if it has a 24 name? 25 A Natural Bridge Associates is the consulting, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 22 1 Florida Wildlife Federation is the environmental. 2 Q Did you finish your answer? 3 A Yes. 4 Q The Florida Wildlife Federation relationship that 5 you just mentioned, are you employed by the Florida 6 Wildlife Federation? 7 A Not really. I have a grant that they administer. 8 Q How long have you had that grant? 9 A With -- 10 Q With the Florida Wildlife Federation. 11 A I believe since 1988. 12 Q Is that an annual grant? 13 A Yes. 14 Q That is renewed? 15 A Yes. 16 Q What are your responsibilities under that grant? 17 A To provide scientific and technical analyses of 18 environmental questions relating to the Everglades, to 19 produce educational material related to the Everglades. 20 Q And you have been doing that since 1988 for them, 21 is that correct? 22 A Yes. 23 Q The reports that you mentioned you prepared for 24 them or the environmental analyses I think you said that 25 you prepared for them, do you prepare those in writing? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 23 1 A Yes. 2 Q Is it your practice to send them out to members of 3 that organization? 4 A Yes. 5 Q Do you represent that organization before 6 governmental agencies? 7 A Yes. 8 Q Have you represented that organization in 9 connection with the SWIM Plan development that is the 10 subject of these proceedings? 11 A Yes. 12 Q Did that SWIM Plan involvement go back to 1988? 13 A I have forgotten exactly when the district began 14 working on the Everglades SWIM Plan. 15 Q I would like to ask you to go back now in your 16 work experience and let's focus, if we can, on your tenure 17 with the Florida Department of Environmental Regulation. 18 A All right. 19 Q Do you still have a copy of your resume? 20 A Yes. 21 Q Between 1973 and 1977, as chief chemist for the 22 Florida Department of Pollution Control, were you asked to 23 give technical interpretations of water quality standards? 24 A Yes. 25 Q Were you asked to deal with water quality A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 24 1 standards for nutrients? 2 A Yes. 3 Q Did you generally participate in rulemaking 4 relating to water quality standards -- 5 A Yes. 6 Q -- during that period? And when you became head 7 of enforcement in 1977, did you continue to advise the 8 Department on water quality standards rulemaking? 9 A Yes. 10 Q And, in fact, I believe your resume indicated that 11 you served as an expert witness on water quality and 12 permitting and enforcement litigation as early as 1977, is 13 that correct? 14 A Yes. 15 MR. GREEN: For the convenience of everyone, if I 16 could, I would like to make Exhibit 3 the list of 17 abbreviations in the SWIM Plan document. 18 (Whereupon, Exhibit No. 3 was marked for 19 identification.) 20 MR. GREEN: Exhibit 4 will be a copy of the 21 REGfile version of Chapter 17-3, Florida Administrative 22 Code. 23 (Whereupon, Exhibit 4 was marked for 24 identification.) 25 MR. GREEN: Exhibit 5 is a copy of the Chapter A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 25 1 17-4, Florida Administrative Code, from the REGfiles. 2 (Whereupon, Exhibit 5 was marked for 3 identification.) 4 MR. GREEN: Exhibit 6 is Chapter 17-302, Florida 5 Administrative Code, from the REGfiles. 6 (Whereupon, Exhibit No. 6 was marked for 7 identification.) 8 MR. GREEN: Exhibit 7 is a copy of the settlement 9 agreement entered in the case of United States, et al., 10 versus South Florida Water Management District, et al., 11 Case No. 88-1886, date July 26, 1991. 12 (Whereupon, Exhibit No. 7 was marked for 13 identification.) 14 BY MR. GREEN: 15 Q First, Dr. Parks, with regard to Exhibit 4, which 16 is Chapter 17-3, Florida Administrative Code, if you could 17 turn to page 3, are you familiar with the provision set 18 forth here as Rule 17-3.011(11), FAC, on page 3 of Exhibit 19 4? 20 A Yes. 21 Q Are you familiar with the term, "mixing zone"? 22 A Yes. 23 Q Can you tell me what that is? 24 A If I could refer to the rule? 25 Q Absolutely. That is fine. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 26 1 A What is the question? 2 Q Could you tell us what a mixing zone is? 3 A It is an area of defined and limited degradation 4 that meets the requirements of 17-4.244. 5 Q And what are those requirements? 6 A What kind of a discharge are we talking about? 7 Q A discharge of nutrients. Do you understand the 8 term "nutrients," when I use that term? 9 A Yes. Well, maybe I shouldn't assume that. What 10 do you mean by "nutrients"? 11 Q What are nutrients? I am asking you. 12 MS. PONZOLI: The question seems circular, Mr. 13 Green. It is your question. 14 BY MR. GREEN: 15 Q Let's start all over again, okay? 16 Are you familiar with the term "nutrients" in the 17 context of the Florida water quality standards 18 regulations? 19 A Yes, sir. 20 Q What does that term encompass? 21 A It encompasses anything a plant needs to grow. 22 Q Would nitrogen be one of those parameters? 23 A Yes. 24 Q Would phosphorus? 25 A Yes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 27 1 Q Now, we were talking about the mixing zone rule. 2 Can you tell us what, what the limitations of mixing zones 3 might be with regard to discharges of nitrogen or 4 phosphorus? 5 MS. PONZOLI: Object to the form of the question. 6 MR. GREEN: What is the problem? 7 MS. PONZOLI: I don't understand what you mean by 8 "limitations." 9 BY MR. GREEN: 10 Q Do you understand what I mean, Dr. Parks, by 11 "limitations"? 12 A It is my understanding (1)(c), 17-4.244(1)(c) 13 says, "Except for the terminal components of discharges and 14 nitrogen and phosphorous acting as nutrients, mixing zones 15 which do not adhere to all of the provisions," and it goes 16 on, "shall be presumed to constitute a significant 17 impairment of designated uses of surface water," and what 18 was the question again, how does it apply to nutrients? 19 Q Yes. The provision you just read, what does that 20 mean to you? 21 A That mixing zones aren't allowed for nitrogen and 22 phosphorus acting as nutrients. 23 Q And what is the basis for that belief? 24 A That was the intent when the rule was drafted. I 25 was involved in drafting it, and -- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 28 1 Q And that is your recollection -- excuse me, I 2 didn't mean to interrupt you. 3 A -- and Bill White, I believe, wrote that provision 4 to make that exclusion. 5 Q So when you say mixing zones are not allowed for 6 nitrogen or phosphorus, what is the practical effect of 7 that with regard to a discharge of nitrogen or phosphorus? 8 A That discharges of nitrogen and phosphorus must 9 meet water quality standards at the point of discharge. 10 Q Are you aware of any documents that support that 11 interpretation? 12 A No. 13 Q Are you aware of any people involved in this case 14 other than yourself who agree with that interpretation? 15 A No. 16 Q Now, let's go back, if we could, to 17-3.011(11). 17 Exhibit 4, page 3, again, and, in fact, parens (11), parens 18 (a), if I could refer you to that, it is the third 19 paragraph from the top on that page. 20 A Yes. 21 Q It reads, "The Department's rules that were 22 adopted on March 1, 1979, regarding water quality standards 23 are designed to protect the public health or welfare and to 24 enhance the quality of waters of the State," period, and 25 then it goes on. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 29 1 The answer you gave to the question a moment ago 2 with regard to whether mixing zones were available for 3 nutrient discharges, I believe you indicated that you were 4 involved in that rulemaking and that it was not the intent 5 of the rule to allow that. Is that a fair summary of what 6 you -- 7 A I got a little confused with the pronouns there. 8 Could you maybe restate that? 9 Q Sure. I think earlier when I asked you the basis 10 for believing that mixing zones were not available for 11 nutrient discharges, you indicated that it was not the 12 intent of the rule for them to be available. I believe 13 that was the gist of it. Is that a fair summary? 14 A Yes. 15 Q My question is, what rule were you speaking of 16 when you said the intent of the rule? Were you referring 17 to the rules that are referenced here on page 3 of Exhibit 18 4 that were adopted in March of 1979? 19 A No. 20 Q What rules were you referring to? 21 A The specific statement in Chapter 17-4. 22 Q The one we referred to earlier? 23 A Yes. 24 Q Do you recall whether that provision that we 25 referred to earlier in 17-4 was adopted in March of 1979? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 30 1 A Yes. It was -- 2 MR. HYDE: Excuse me, I am a little confused here. 3 Are we talking about 17-4.244(1)(c)? 4 THE WITNESS: Yes. 5 MR. HYDE: Okay. 6 BY MR. GREEN: 7 Q So you were employed by the Department when the 8 rule, the mixing zone rule in 17-4.244 that we have been 9 talking about was adopted, is that correct? 10 A I don't know about every line in the mixing zone 11 rule. 12 Q But the part that relates to nutrients that we 13 have been discussing, were you employed with the Department 14 when that was adopted? 15 A Yes. 16 Q And was that March 1979? 17 A Yes. 18 MS. PONZOLI: Mr. Green, would you specify which 19 subsection? I am getting lost along with Mr. Hyde. 20 MR. GREEN: Absolutely, Ms. Ponzoli. The date I 21 am referring to is on Exhibit 4, page 3, under -- 22 MS. PONZOLI: I am with you there. It is in 17-4 23 I am getting lost, the subsection in 17-4 that you and 24 Dr. Parks are discussing. I just want to be sure I am 25 following you. You seem to understand each other fine, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 31 1 but I just want to be with you. 2 MR. GREEN: No problem. It is Rule 3 17-4.244(1)(c), Florida Administrative Code, and it is 4 on page 14, actually, of Exhibit 5. 5 MS. PONZOLI: Thank you. We are talking about the 6 entire subsection (c), is that accurate, or not? 7 MR. GREEN: Well, we were focusing primarily on 8 the first sentence of that subsection in the earlier 9 questions. 10 MS. PONZOLI: Okay. I am with you. 11 MR. GREEN: I think Dr. Parks indicated that 12 perhaps other portions of the rule could have changed 13 after that time, and he wasn't necessarily saying that 14 he was working with the Department when those changes 15 were made. 16 BY MR. GREEN: 17 Q I think Dr. Parks indicated that perhaps other 18 portions of the rule could have changed after that time, 19 and he wasn't necessarily saying that he was working with 20 the Department when those changes were made, is that 21 correct? 22 A Yes. 23 Q If mixing zones were not available for nutrients 24 back in 1979 in the mixing zone rule as we have been 25 discussing it, what would be the rationale for that, or is A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 32 1 there a rationale that you are familiar with? 2 A Nutrients, the impact of nutrients on receiver 3 waters could not generally meet the test required for a 4 mixing zone as given in the rule. 5 Q And are those tests that you just referred to the 6 ones that are specified in Rule 17-4.244, FAC? 7 A Yes. 8 Q Let's look at those for a moment, if we may. If I 9 could refer you to page 14 of Exhibit 5, if you would start 10 there and walk me through the tests that you feel mixing 11 zones for nutrients could not meet, I would appreciate it. 12 A I think the Everglades is a real good example of 13 (c)(3). 14 Q That is on page 14, (c)(3). Go on, please. 15 A Parens (f). 16 Q Okay. 17 A Paragraph 2. 18 Q Is that on page 15 of the exhibit? 19 A Yes. 20 Q Thank you. 21 A Parens (3). That is all I see right now. 22 Q Dr. Parks, for a discharge of nutrients and for 23 the provisions you just referenced on pages 14 and 15 of 24 Exhibit 5 that you felt nutrients would not qualify for, is 25 there any other relief mechanism available in Florida's A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 33 1 water quality regulations that could pertain to those 2 discharges? 3 A What do you mean by relief? 4 Q Well, actually, I was referring to the moderating 5 provisions on page 3 of Exhibit 4. For example, under 6 parens (11), parens (b)(2), on page 3 of Exhibit 4, there 7 is a mention of site-specific alternative criteria, 8 exemption and equitable allocation provisions. Are you 9 familiar with those provisions in the Florida rules? 10 A I would have to refer to -- I am generally 11 familiar, but I would have to refer to the specific rule 12 section to answer specific questions. 13 Q Let's take the first one, site-specific 14 alternative criteria. Are you familiar with that concept 15 in the regulations and can you find it? 16 A I am familiar. I am pretty sure I can find it. 17 Q Thank you. 18 Did you find it, Dr. Parks? 19 A Yes, I did. 20 Q Where is it found in the regulations? 21 A 17-302.800. 22 Q Is that in Exhibit 6, page 68? 23 A Yes. 24 Q Dr. Parks, we were discussing nutrient discharges 25 earlier, and I would like to ask you whether, in your A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 34 1 experience, site-specific alternative criteria are 2 available for nutrient discharges? 3 A What kind of nutrient discharges are you talking 4 about? 5 Q Discharges of phosphorus and nitrogen. 6 A And the question is, is a site-specific 7 alternative criteria generally available for a discharge of 8 phosphorus and nitrogen? 9 Q Well, is this an available relief mechanism? Do 10 you understand what I mean by relief mechanism? If you 11 don't -- 12 A Yes. 13 Q Is this site-specific alternative criteria section 14 part of Florida's water quality standards which will allow 15 case-by-case relief or moderation of water quality 16 standards for nutrient discharges? 17 A What would case-by-case mean in this context? 18 Q Let me ask you to read 17-302.800(1). 19 A Out loud or to myself? 20 Q Yes. 21 A Out loud? 22 Q The first sentence. 23 A "The water body or portion thereof may not meet a 24 particular ambient water quality criterion specified for 25 its classification due to natural background conditions or A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 35 1 man-induced conditions which cannot be controlled or 2 abated." 3 Q And then the next sentence, please, and then that 4 is all. 5 A "In such circumstances and upon petition by an 6 affected person or upon an initiation by the Department, 7 the Secretary may establish a site-specific alternative 8 water quality criterion when an affirmative demonstration 9 is made that an alternative criterion is more appropriate 10 for a specified portion of waters of the State." 11 Q Can you think of any instance in which a nutrient 12 discharge might qualify for site-specific alternative 13 criteria relief under this provision? 14 MS. PONZOLI: Object to the form of the question. 15 BY MR. GREEN: 16 Q Are you familiar with any situations where the 17 Department has granted, the Department of Environmental 18 Regulation has granted relief for nutrient discharges under 19 this provision that we have been discussing? 20 A No. 21 Q Have you, yourself, as consultant for different 22 clients, sought site-specific alternative criteria relief 23 from the Department of Environmental Regulation? 24 A Yes. 25 Q Did you ever do that for a client that needed A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 36 1 relief for a nutrient discharge? 2 A I guess it was an issue with Zellwood. 3 Q What kind of discharge did Zellwood involve? 4 A The drainage from vegetable farms. 5 Q And why was -- may I call it S-S-A-C or SSAC, for 6 everyone to expedite? 7 Why did Zellwood need a SSAC for that discharge? 8 A I am not too sure, I don't know the details of 9 Zellwood's enforcement and permitting problems. I was 10 asked by another consultant to participate in analyzing 11 Zellwood's potential for receiving a SSAC. 12 Q What did you conclude were -- did they qualify for 13 a SSAC, in your opinion? 14 A I would have to refer to the original report. The 15 gist of it was whether they qualified for a SSAC or not, 16 the gist of the analysis was that. 17 MS. PONZOLI: Mr. Green, you have a copy of that. 18 Why don't we let him refresh his memory? 19 MR. GREEN: Well, frankly, I don't know where it 20 is right now. If you could give me the gist of it, I 21 would be happy for right now. 22 MS. PONZOLI: I sort of feel like you are going to 23 impeach him if his gist differs from what he has 24 already told you he doesn't remember too well. 25 MR. GREEN: As long as you will give me the right A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 37 1 to find it and question him later about it, we can move 2 on to other questioning. 3 THE WITNESS: I remember it now. 4 MS. PONZOLI: Do you prefer to answer without 5 reviewing the document, Dr. Parks? 6 THE WITNESS: No. 7 BY MR. GREEN: 8 Q I would be happy to let you review it and change 9 your answer if it changes your view. We will find it, but 10 right now, if you can just give me the gist of it, did they 11 need a SSAC, did they qualify, and that sort of thing. 12 A The SSAC was for dissolved oxygen. 13 Q Why did they need a SSAC for dissolved oxygen? Do 14 you remember? 15 A They were contributing, as I recall, and this is 16 the best of my recollection, I have not seen that document 17 for a long time. 18 MS. PONZOLI: We found it. 19 MR. GREEN: I don't think this is it. 20 BY MR. GREEN: 21 Q Continue, please. 22 A That they were contributing to dissolved oxygen 23 violations in Lake Apopka, and the question was what was 24 the remedy for that, and my analysis, as I recall it, was 25 to make a determination as to whether or not the proposed A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 38 1 remedy would have any effect on dissolved oxygen in Lake 2 Apopka. 3 MR. GREEN: Let's mark as Exhibit 8 a document 4 entitled "Efficacy and Feasibility of Phosphorus 5 Abatement in Lake Apopka." 6 (Whereupon, Exhibit No. 8 was marked for 7 identification.) 8 BY MR. GREEN: 9 Q Dr. Parks, can you identify this document? 10 A This is a report that Sanford Young and I prepared 11 for, I guess, Zellwood Drainage District. 12 Q Is this the report that you referred to previously 13 that you had done in conjunction with Mr. Young? 14 A Yes. 15 Q Let me ask you to kind of flip through it and 16 refresh your recollection on it. I know that your 17 conclusions start on page 24, but that is not to say that 18 you should not look at any or all of it if you need to. 19 Are you generally familiar with this now, Dr. 20 Parks? 21 A It is coming back to me. 22 Q Let's look at page 3 of Exhibit 8. 23 MS. PONZOLI: Dr. Parks, are you through reviewing 24 it? 25 THE WITNESS: Well, it would depend on the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 39 1 question. I may have to take some more time. 2 BY MR. GREEN: 3 Q If you need more time to answer a question, please 4 tell me. 5 On page 3, the top paragraph, as I understand that 6 paragraph, you are citing a nutrient rule, 17-3.121(19), 7 and stating that violation of that rule is violation of 8 water quality criteria. 9 My question is, is that the rule for which this 10 document is seeking to have a site-specific alternative 11 criterion established? 12 A I think that normally, it would have, if this had 13 gone forward, it would have required SSAC for -- it would 14 have required an application for a SSAC for any parameter 15 that didn't meet water quality standards to which the 16 discharge was contributing. 17 Q Are there any other water quality standards, to 18 your knowledge, besides the one cited on page 3 here, that 19 apply directly to nutrients that are contained in Florida 20 regulations? 21 A Yes. 22 Q What are those? 23 A Not to cause a violation, not to cause a violation 24 of any other criterion, and -- I am paraphrasing, I am not 25 reading precisely the rule language -- and not to create A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 40 1 nuisance conditions. 2 Q Are there any -- 3 A There may be others. 4 Q Are there any end-of-the-pipe nutrient 5 restrictions contained directly in Florida water quality 6 standards? Did that question make sense? 7 A I could use a little clarification. 8 Q Let me go again. Other than the standards you 9 just paraphrased, do Florida water quality standards 10 contain any end-of-pipe numerical limitations on phosphorus 11 or nitrogen? 12 A Yes. 13 Q What are those? 14 A Wherever you must work backwards from water 15 quality standards to discharge point, you have to get end- 16 of-pipe limitations. 17 Q How do you do that? 18 A How do you -- 19 Q Work backwards, the process you just described, 20 how is that done? 21 A You determine what discharge concentrations will 22 enable, provide reasonable assurance that water quality 23 standards will not be violated. 24 Q Is that a case-by-case determination, or does the 25 number apply to every discharge in Florida? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 41 1 A Nutrient standards are site-specific. 2 Q Would it be correct to say, then, that there are 3 no general across-the-board end-of-pipe nutrient standards 4 in Florida? 5 A No. 6 MS. PONZOLI: I object to the form. 7 MR. GREEN: What is the problem with the form? 8 MS. PONZOLI: I think it is an unintelligible 9 question, it is too broad. 10 MR. GREEN: Would you read it back, Jerry? 11 (Whereupon, the court reporter read the requested 12 portion of the record.) 13 BY MR. GREEN: 14 Q Did you understand the question? 15 A Yes. 16 Q What is your answer? 17 A No. 18 Q What are those standards? 19 A They are the standards that are determined by -- 20 determine the site-specific ambient nutrient limits and 21 work backwards to the end of the pipe. 22 Q Well, maybe we are confused. Let me start all 23 over again with this. 24 Dr. Parks, you indicated that in order to 25 determine the end-of-pipe limitation for nutrient A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 42 1 discharge, one would work one's way backwards from the 2 receiving body of water on a case-by-case basis. Is that 3 an accurate summary of what you said? 4 A Yes. 5 Q So that is a site-specific determination, is that 6 correct? 7 A Yes. 8 Q And the number that is gotten for one site might 9 be entirely different than for another site, depending on 10 local conditions, is that true? 11 A Yes. 12 Q So my question is, would you agree that in that 13 situation, that the number does not -- that one situation 14 for a particular discharge does not apply across Florida to 15 all discharges of that type? 16 MS. PONZOLI: Same objection as before. 17 THE WITNESS: Do you mean would each discharge 18 have the same number? 19 BY MR. GREEN: 20 Q Yes. Would they? Once that was determined for 21 one nutrient discharge in Florida, would the number be 22 applied to every other discharge in Florida? 23 A We are saying, for example, you determine that 24 phosphorus of 20 parts per billion can be discharged at one 25 site, are you asking does that 20 parts per billion apply A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 43 1 to all other sites? 2 Q Yes. 3 A No. 4 Q What DER regulation describes the process that the 5 Department would come up -- would follow when establishing 6 the nutrient limitation for a particular discharge? 7 A Permitting. 8 Q The permitting regulations? 9 A Yes. 10 Q Are you familiar -- are those contained in any of 11 the exhibits that I have handed you, for example, Exhibit 12 5? 13 A This is part of them. 14 Q Can you point me to the particular rule that 15 describes the process we have been discussing? 16 MS. PONZOLI: Object to the form. 17 BY MR. GREEN: 18 Q That is, the process of establishing case-by-case 19 nutrient limitations. 20 A This is not complete. Wait a minute. It doesn't 21 seem to be all here. 22 Q If you cannot find it in the exhibits that I have 23 given you, we will come back to that later, Dr. Parks. 24 A Okay. But -- it is not all here. 25 Q Let's go back to Exhibit 4, page 3, once again. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 44 1 A Exhibit 4, page 3? 2 Q Yes. 3 A All right. 4 Q Parens (11), parens (b), 2, again, mentions the 5 term "equitable allocation." Are you familiar with that 6 term? 7 A Yes. 8 Q Do you know how that term is used in Florida's 9 water quality regulations? 10 A I would have to refer to the specific part of the 11 rule. Do you know the page? 12 Q 17-4.242, I believe, parens (4), page 8 of Exhibit 13 5. 14 A I have it. 15 Q Are you familiar with this provision that is Rule 16 17-4.242(4), Florida Administrative Code? 17 A Generally. 18 Q Do you have any knowledge of whether this 19 provision has ever been applied by the Department of 20 Environmental Regulation? 21 A No. 22 Q Have you ever sought equitable abatement for a 23 client in your role as a consultant? 24 A I don't believe so. 25 Q Do you know if anyone else has? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 45 1 A No. 2 Q If you could stay in that same exhibit and let's 3 flip on over to the mixing zone rule that we were 4 discussing earlier, which I believe was page 14, on page 5 14, (c)(3), that was a provision that you had felt you 6 indicated nutrient discharges could not meet, is that 7 correct? 8 A I did say that. 9 Q Would you explain your reason for that statement? 10 A In a -- for example, in a discharge to a marsh, 11 such as the Everglades, the nutrient impact would be 12 cumulative. 13 Q How does that relate to (c)(3), in your mind? 14 A It would produce a significant adverse impact, 15 adverse effect. 16 Q What is the basis for believing that phosphorus or 17 nitrogen impacts on marshes are cumulative, if that is what 18 you meant? 19 A Phosphorus accumulates in the soil. 20 Q Have you -- how do you know that? 21 A From reading the work of others and hearing 22 reports presented to LOTAC. 23 Q Have you done any in-field research yourself to 24 determine whether phosphorus impacts are cumulative in 25 wetlands? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 46 1 A I believe that is answered in my resume. 2 Q Well, I would like you to answer it again. 3 A No. 4 Q No. Dr. Parks, have you done any in-field 5 research since receiving your -- since completion of your 6 postdoctoral work? 7 A Let me answer that by reading a statement from my 8 resume. "A list of publications derived from this and 9 earlier work is attached. Following this period, my 10 employment did not involve laboratory or field research." 11 Q Thank you, Dr. Parks, that is helpful. 12 Why would accumulation of phosphorus mean that 13 there was a significant adverse effect as that term is used 14 under (c)(3), on page 14 of Exhibit 5? 15 A My understanding of what a significant adverse 16 effect is on the established community of organisms comes 17 from other experts. My understanding is that that is a 18 consequence of accumulation of phosphorus in the sediments 19 and soils near the point of discharge. 20 Q Is that true in every case for every type of 21 nutrient discharge? 22 A I don't know. 23 Q Is that something that would need to be evaluated 24 on a case-by-case basis? 25 A Yes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 47 1 Q How about parens (f), on page 14? You indicated 2 earlier that nutrient discharges could not meet that 3 restriction. Would you explain why that is? 4 A Well, again, the Everglades is a good example. 5 Because of the progressive effect of the impact, the 6 boundary of the affected area continues to increase, 7 therefore it would violate provision (f). 8 Q We will get back to that. How about parens (2) on 9 page 15? What was your reasoning there for earlier stating 10 that nutrient discharges could not meet this provision? 11 A My reason there was that the boundaries are not 12 stable. 13 Q For any nutrient discharge? 14 A For all nutrient discharges. 15 Q What do you base that conclusion on? 16 A My knowledge of what is happening in the 17 Everglades. 18 Q Would those be reports that you referenced earlier 19 that are opinions of other experts? 20 A And personal observation. 21 Q What are those personal observations that you are 22 referring to? 23 A Helicopter trips, airboat trips, half-track trips 24 to the vicinity of the discharge points and downstream. 25 Q What discharge points, where in Florida? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 48 1 A In the Loxahatchee National Wildlife Refuge, 2 Conservation Area 2-A, Conservation Area 3-A. 3 Q When did you take those trips? 4 A I am not sure of the exact dates. 5 Q Do you know the year? 6 A Not precisely. Late '80s, early '90s. 7 Q Do you know how many trips you took? 8 A No. 9 Q Who did you go with? 10 A LOTAC. 11 Q For the record, what is LOTAC, Dr. Parks? 12 A Lake Okeechobee Technical Advisory Committee, in 13 some years, and Council, in some other years. And it 14 was -- had three incarnations. One was appointed by the 15 Secretary of DER, one was a result of the SWIM Act, and the 16 third was an Executive Order of the Governor. 17 Q When you made these helicopter flights you were 18 talking about, you said LOTAC went with you, do I 19 understand that correctly? 20 A I went with LOTAC, would probably be better. 21 Q Who was with you, what person? 22 A The members of LOTAC and the members of the staff 23 of the South Florida Water Management District. 24 Q Who might those individuals been? 25 A Who belonged to LOTAC? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 49 1 Q And the individuals from South Florida Water 2 Management District that accompanied you. 3 A I am working to recall that. Archie Grant. 4 LOTAC, the composition of LOTAC changed a little bit, it 5 seemed to me. Pete Rosendale, Bernie Yokel, Ignatio 6 Garcia, Ben Godlia, Lois Ojamel, Barry Baldwin. I can see 7 their faces, but -- and I know their first names. 8 Q You have done quite well. Of those individuals 9 you just mentioned, were any of them South Florida Water 10 Management District employees? 11 A No. The employees -- let's see, these are various 12 trips at various times. Steve Davis, Pete Rhodes, well, 13 the helicopter pilot. 14 Q Did anyone from the federal government attend 15 those trips with you? 16 A No. Well, I don't believe so. 17 Q How about DER? 18 A Yes. 19 Q Who from DER, do you recall? 20 A One trip I was on, some of this may have been 21 Stage 2, Bart Bibler, and if it had been Stage -- there 22 would have been people from the federal government, it 23 might have been. 24 Q But you don't remember any, at this point, 25 individuals you might know? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 50 1 A No. 2 Q When you took the trips you were talking about, 3 what was the purpose of the trips? 4 A To examine the areas impacted by the discharges 5 from the EAA. 6 Q How was that examination done? 7 MS. PONZOLI: Object to the form. 8 THE WITNESS: In flying over, we knew from the 9 point of discharge downstream, and, you know, the 10 vegetation changes, it is very obvious and easy to see 11 from the air what is natural Everglades and the changes 12 that have occurred in the vicinity of the discharge 13 points. 14 On the ground, in the airboat trips, of course, 15 you are down in it, you can smell it and look at it and 16 stick a pole down in it, and you can easily see the 17 difference between the impacted areas and the areas 18 that are further downstream. 19 BY MR. GREEN: 20 Q Did you take any scientific instrumentation 21 along? 22 A No. 23 Q So were these observations primarily visual and 24 sensory? 25 A Yes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 51 1 Q How did you know where you were? 2 A From the -- in the air, of course, it is quite 3 easy to see structures and relate them to what I know about 4 the geography of the area. In an airboat, it is less 5 certain, but I always keep a map in my head when I am 6 traveling, the direction I am going, roughly where I am. 7 Q I believe you indicated earlier that because of 8 your personal observations, that the impacts in these areas 9 were increasing or expanding, is that a correct 10 paraphrase? 11 A No. 12 Q Let me ask you what you meant -- when I asked you 13 a question about, on page 15, parens (2) of Exhibit 5, I 14 believe that you indicated that Everglades discharges could 15 not qualify for mixing zone because the boundaries were not 16 stable. 17 Is that a fair summary of what you said? 18 A Yes. 19 Q And then I asked you why you believed that. 20 A Yes. 21 Q And then you said personal observations. Is that 22 true? 23 A The personal observation is that the effect 24 occurs. I have not personally observed it expanding, 25 although I have knowledge from the work of others that the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 52 1 impact is expanding downstream, and from my knowledge of 2 the basic principles involved, I would expect it to expand 3 downstream. 4 Q Let's look at page 15 of Exhibit 5, parens (3), 5 which was the last section that you at this time recalled 6 might not be met by nutrient discharges. 7 Could you explain your reasoning there? 8 A Dissolved oxygen values less than 1.5 milligrams 9 per liter at any time or place, I would expect that in the 10 midst of the cattail monoculture that that criterion would 11 not be met, and, in fact, data show that. 12 Q In the case of nutrient discharges in general, for 13 nutrient discharges that are believed to cause dissolved 14 oxygen values to go down, if the values for dissolved 15 oxygen go below the applicable standard, is there a relief 16 mechanism that the Department can utilize to consider 17 whether to grant a discharge permit in spite of that, that 18 you are familiar with? 19 A Let me make sure I understand your question. 20 Q Sure. 21 A If waters are not meeting the dissolved oxygen 22 standard and there is a nutrient source which contributes 23 to further lowering of the dissolved oxygen standards, is 24 there a relief mechanism, that is what you asked? 25 Q Yes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 53 1 A No. 2 Q Would site-specific alternative criteria not be 3 available in the example you described? 4 A I believe you cannot further lower the dissolved 5 oxygen with a SSAC. 6 Q Further over what level? 7 MS. PONZOLI: Object to the form. 8 BY MR. GREEN: 9 Q When you say "further lower," what were you 10 referring to, further than what? 11 A The ambient values that are already below 12 standards. 13 Q Does it matter why the ambient values are below 14 standards in the example you have been discussing? 15 MS. PONZOLI: Object to the form. 16 THE WITNESS: It might. 17 BY MR. GREEN: 18 Q How so? 19 A I would have to refer back to the documents. 20 Q That is Exhibit 6, page 68, I believe. 21 Let me ask you a question about this page 68 of 22 Exhibit 6, Dr. Parks, that we referred to earlier. If a 23 nutrient discharge were responsible for lowering dissolved 24 oxygen, would this provision of DER regulations be 25 potentially applicable for granting relief for that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 54 1 discharge? 2 MS. PONZOLI: Object to the form. 3 THE WITNESS: What kind of a nutrient discharge is 4 it? 5 BY MR. GREEN: 6 Q A nutrient discharge into a water body that did 7 not meet the ambient water quality criterion for oxygen, 8 dissolved oxygen. 9 A You are asking me, is this provision generally 10 applicable to that? 11 Q Is it potentially applicable? 12 MS. PONZOLI: Same objection. 13 THE WITNESS: I would have to know more about the 14 discharge. 15 BY MR. GREEN: 16 Q Under what circumstances, in your knowledge, would 17 a site-specific alternative criterion been available for 18 dissolved oxygen relating to the nutrient discharge, if 19 any? 20 MS. PONZOLI: I object to the form. 21 THE WITNESS: Well, just what the rule says, due 22 to natural background conditions or man-induced 23 conditions which can't be controlled or abated, and, of 24 course, granting it is discretionary. 25 BY MR. GREEN: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 55 1 Q All right. 2 A And there are other tests further on in the rule. 3 MR. GREEN: Is this a good place to take a five- 4 minute break for everybody? 5 (Brief recess.) 6 BY MR. GREEN: 7 Q Dr. Parks, if we could go to page 18 of Exhibit 5 8 for a moment, I would like to ask you if you would review 9 parens (7) of Rule 17-4.244, and tell me if you are 10 familiar with that section. Take all of the time you 11 need. 12 A A piece of mine, page 19 is missing in my copy. 13 Q We will get back to that after we find page 19, 14 thank you for noticing it. 15 Dr. Parks, on page 68 of Exhibit 6, a moment ago 16 we were speaking about site-specific alternative criteria, 17 and about that part of the rule in parens (1), on page 68, 18 it talks about natural background conditions or man-induced 19 conditions which can't be controlled or abated. 20 Are you familiar with those concepts, that is, 21 natural background conditions or man-induced conditions 22 which can't be controlled or abated? 23 A Yes. 24 Q What is your understanding of each? 25 A My understanding with respect to what? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 56 1 Q Well, let's save some time. Would you agree that 2 those terms are defined on page 5 of the exhibit, in the 3 definitions section of the rule? 4 A Natural background is. 5 Q And how about man-induced conditions which can't 6 be controlled or abated? 7 A Yes. 8 Q If I could return briefly to Exhibit 8, which was 9 the study that you prepared in relation to Lake Apopka, 10 also known as Zellwood, earlier, on the last page, well, 11 the next to the last page, 26, would you turn to that, and 12 would you read the last paragraph, please, out loud? 13 A "Because of the long time required and other 14 uncertainties, it is not clear at this time that abatement 15 of a nutrient imbalance in Lake Apopka as defined by 16 restoration of the support fishery is feasible. A site- 17 specific alternative criterion of the status quo is 18 appropriate until it can be established that abatement is 19 feasible." 20 Q Would it be correct to assume from this that, 21 quote, status quo, end quote, may be a SSAC in a given 22 case? 23 A I made that argument on more than one occasion to 24 the Department and they rejected it. 25 Q Do you believe it is correct? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 57 1 MS. PONZOLI: Object to the form. 2 THE WITNESS: Under what circumstances? 3 BY MR. GREEN: 4 Q Under the circumstances that you were describing 5 in this Exhibit 8. 6 A Yes. 7 Q And it may be correct in other cases, but you 8 would have to decide case-by-case, is that fair? 9 MS. PONZOLI: Object to the form. 10 BY MR. GREEN: 11 Q Would it be potentially correct in other cases? 12 MS. PONZOLI: Same objection. 13 BY MR. GREEN: 14 Q Would a status quo SSAC be potentially 15 appropriate, in your opinion, in a given case? 16 MS. PONZOLI: Same objection. 17 THE WITNESS: Under certain circumstances. 18 BY MR. GREEN: 19 Q And what would those circumstances be? 20 MS. PONZOLI: Object to the form. You are posing a 21 hypothetical to him and he has to pose a hypothetical to 22 you. 23 BY MR. GREEN: 24 Q You can answer. 25 A The situations where I made this argument had to A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 58 1 do with continuing an activity that did not lower ambient 2 quality. The argument was that we didn't need to have, 3 that the more appropriate value, which is a term used in 4 the rule, was simply background. 5 Q Well, why did that, the situations you were 6 talking about need a SSAC if they did not lower ambient? 7 A They were alleged to be contributing to violation 8 of water quality standards. The question was, would 9 removal of their contribution, I mean, physically, they had 10 a contribution, whether it was contributed or not was the 11 question, technically, the question was whether removing 12 their contribution would change water quality in Lake 13 Apopka. 14 Q And you thought that removing their contribution 15 would not change the water quality in Lake Apopka, is that 16 correct? 17 A That may be a little broader than my statements 18 in the report, but the report speaks for itself. That is 19 the general line of the argument. 20 Q Would it be correct to summarize that point this 21 way, that a status quo SSAC might be available in a 22 circumstance where removal of the discharge in question 23 would not change ambient water quality? Is that a fair 24 statement of what you said? 25 MS. PONZOLI: Objection to form. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 59 1 THE WITNESS: Well, I would say it a little 2 differently. 3 BY MR. GREEN: 4 Q How would you say it? Before you do, would you 5 answer the question? 6 A Could you read it back to me? 7 MR. GREEN: Read it back, Jerry, please. 8 (Whereupon, the court reporter read the pending 9 question.) 10 THE WITNESS: Yes. 11 BY MR. GREEN: 12 Q How would you rather say it? 13 A I would say that unlike the Everglades in this 14 case, in Lake Apopka there wasn't any clear evidence that 15 removing this source or treating this source would alter 16 the water quality in Lake Apopka. 17 Q What do you base that last statement on, that 18 unlike the Everglades, what is it about the Everglades that 19 is different? 20 A There are large areas of the Everglades that have 21 not, at least not yet, been impacted by these discharges, 22 and it is apparent that the discharges in question are 23 causing the effect. 24 Q What areas are you speaking of of the Everglades 25 that you are saying have not been impacted yet by these A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 60 1 discharges and what discharges are you speaking of? 2 A Discharges from the Everglades Agricultural Area 3 and the areas that have not yet been impacted are those in 4 the interior of Loxahatchee National Wildlife Refuge, 5 further downstream in Everglades National Park, down, 6 further downstream from the S-12s, and portions of 7 conservation area 3A, and all of 3B. 8 Q How about portions of conservation area 2A, are 9 those impacted yet by nutrient discharges? 10 A Yes. 11 Q What areas of conservation area 2A? 12 A The most severely impacted are those closest to 13 the point of discharge, and the impacts, it is my 14 understanding that the impacts diminish as you proceed 15 downstream. 16 Q Excuse me -- 17 A And there is some question as to whether any area 18 remains unimpacted by these discharges. 19 Q What discharges are you speaking of? Would those 20 be the S-10 structures, is that what you are saying? 21 MS. PONZOLI: Object to the form. 22 THE WITNESS: That is. 23 BY MR. GREEN: 24 Q What structures were you referring to? 25 A The structures that deliver water derived A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 61 1 predominantly from the EAA through the S-10, the water 2 comes from the S-6 pumping station and S-5A pumping 3 station. 4 Q Now, back to our earlier discussion about the 5 status quo SSAC concept, what evidence are you aware of 6 that removal of nutrients from EAA discharges would improve 7 ambient water quality in the water conservation areas? 8 A What do you mean by improve ambient water quality? 9 Q Let me ask you to go way back, about 10 questions 10 ago and let's read him back. 11 (Whereupon, the court reporter read the requested 12 portion of the record.) 13 BY MR. GREEN: 14 Q Dr. Parks, what evidence are you aware of that 15 would indicate that removing or treating EAA discharges 16 would alter the water quality impacts associated with those 17 discharges in the water conservation areas? 18 A The evidence is cited in the SWIM Plan that 19 phosphorus in the discharges is leading, is producing, 20 among other things, a monoculture of cattails in which 21 water quality standards are violated. If you remove the 22 cause of that upstream, then you would expect through time 23 the impact to dissipate phosphorus impacts and the impact 24 to go away. 25 Q Are you aware of any studies that would support A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 62 1 that conclusion? 2 A No. 3 MR. GREEN: For the record, if the parties would 4 feel comfortable with this, I would like to substitute 5 a more complete Exhibit 5 which has the page 19 that 6 Dr. Parks earlier pointed out was missing, and also all 7 of the way through the end of that section which is 8 page 26, and we can just substitute these. Is there 9 any objection to that? 10 MS. PONZOLI: They are identical except for the 11 pages have been added? 12 MR. GREEN: Yes. Wait, let's mark that as Exhibit 13 5A. 14 (Whereupon, Exhibit No. 5A was marked for 15 identification.) 16 BY MR. GREEN: 17 Q Let's all turn to Exhibit 7, the settlement 18 agreement. 19 Dr. Parks, have you ever, first of all, have you 20 ever seen a copy of this document before? 21 A Yes. 22 Q Do you understand what it is, generally? 23 A Yes. I assume that this is the document that was 24 entered by the court, is that correct? 25 Q Yes. This is the settlement agreement in United A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 63 1 States of America, et al., versus South Florida Water 2 Management District, et al., Case No. 88-1886. 3 Dr. Parks, would you turn to page 2, and the third 4 line from the bottom, there is a definition of, quote, 5 imbalance in natural populations of aquatic flora and 6 fauna, end quote, and it continues, to the top of page 3, 7 and if I could refer you to line 5, page 3 -- make that 8 line 10, the sentence beginning, "In the case of the Park 9 and Refuge, imbalance specifically shall include," and that 10 sentence continues, starting there, all of the way to the 11 end of that definition F. 12 Are you familiar with that part of this settlement 13 agreement? Have you ever seen it before? 14 A I have seen it before. 15 Q Do you know who drafted it? 16 A No. 17 Q Did you participate in its development? 18 A No. I have provided advice to the U. S. 19 Attorney's office since 1988. Whether they used some of 20 that in this, producing this document or not, I couldn't 21 say. 22 Q Did you participate in the developing of any 23 drafts that preceded this final document? 24 A Yes. 25 Q Who were you doing that for? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 64 1 A The U. S. Attorney's office. 2 Q Do you remember how many drafts you saw? 3 A It was, I just happened to be in Miami at the time 4 on some other matter, and I looked over some drafts and did 5 some kind of wordsmithing sort of stuff on it. That was 6 the extent of my involvement with the settlement agreement. 7 Q As we go through this, can you tell me which 8 portions of the settlement agreement that you did review? 9 A I don't think I could. These were really minor 10 wording changes. Everything was in virtually -- it is the 11 same, as best I recollect, the same as the final. 12 Q When was that? 13 A Well, I don't know for sure. I think it was late 14 June, something like that, early July, maybe. 15 Q Were you involved with meetings of any other 16 parties to that case, in discussions of drafts of the 17 settlement agreement? 18 A By any other parties? 19 Q Well, South Florida Water Management District or 20 the Department of Environmental Regulation? 21 A No. 22 Q Were there any other groups that you had in mind 23 when you asked me whether there were any other parties? 24 A Conservation intervenors. 25 Q Except for them, that is your answer. Okay. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 65 1 If we could refer to Appendix A of this agreement, 2 which is entitled, "Phosphorus Limits for Inflows into 3 Everglades National Park," do you recall whether you 4 commented on any of the drafts preceding this final 5 agreement on this appendix? 6 A No. 7 Q Dr. Parks, this draft mentions, or, I am sorry, 8 this final copy of the final settlement agreement on 9 Appendix A, page 1, mentions in the middle of the 10 paragraph, and I will quote, "In each basin, long term 11 discharge limits are the limits necessary to meet the OFW 12 water quality criteria as measured at the structures 13 discharging into the Park." 14 It continues. Are you familiar with the term, 15 OFW? 16 A Yes. 17 Q What does that mean? 18 A Outstanding Florida water. 19 Q Have you reviewed this settlement agreement to see 20 whether it applies Florida's water quality rules on OFWs 21 properly? 22 MS. PONZOLI: Objection to form. 23 THE WITNESS: That is a pretty broad question. 24 Well, yes. 25 BY MR. GREEN: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 66 1 Q And what is your conclusion? 2 A I don't agree with the baseline. 3 Q Why not? 4 A I don't think the structure should be 5 grandfathered in. 6 Q Do you believe this agreement grandfathers the 7 structures in? 8 A Yes. 9 Q When you say structures, are you referring to 10 those listed on Appendix A, page 1? 11 A I am referring to pump stations S-5A, S-6, S-7 and 12 S-8. 13 Q Well, I -- okay. Do you agree with how Appendix A 14 treats the structures that it pertains to, and that is, 15 structures S-12A, S-12C, S-12D, S-333, and also S-332, 16 S-175 and S-18C? 17 A It assumes that the OFW baseline is '78 and '79. 18 Q Why don't you believe that that is the correct 19 baseline to use for those structures? 20 A I believe that pumping stations S-5A, S-6, S-7 and 21 S-8, as well as S-9, as well as other discharges into the 22 Everglades, were sources of pollution under the meaning of 23 the OFW rule, and when that rule was adopted they should 24 have had permits, and therefore, their effect on ambient 25 water quality should not be included in the baseline for A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 67 1 OFW. 2 Q If their effect is not included in the baseline, 3 what does that change with regard to what limits should 4 apply to them, if anything? 5 A Unpolluted Everglades background would apply to 6 that. 7 Q Do you believe that the appropriate water quality 8 limitations that apply to discharges into the Everglades, 9 therefore, are those that would be found for unpolluted 10 background Everglades water concentrations and pollutant 11 parameters? 12 MS. PONZOLI: Would you read that question back, 13 please? 14 (Whereupon, the court reporter read the pending 15 question.) 16 MS. PONZOLI: Are you withdrawing it? I object to 17 the form. 18 MR. GREEN: I kind of liked it. 19 MS. PONZOLI: I don't understand what it asks. 20 BY MR. GREEN: 21 Q Do you know what I am trying to ask you? 22 A No. 23 Q Let me back up. 24 Dr. Parks, you said that in your view, discharges 25 to the Everglades were not grandfathered in when the OFW A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 68 1 rule was adopted, is that correct? 2 A Yes. 3 Q And I think that I understood your answers earlier 4 to say that as a consequence of that, the discharge limits 5 that should apply to those structures would be limits that 6 should produce water that has a quality as high as 7 unpolluted background levels in the Everglades, is that 8 true? 9 A Let me correct that. It should be, it should be 10 water of, it should be water of that quality which would 11 obtain in the absence of those unpermitted discharges. 12 Q And do you have an opinion on what quality of 13 water that might be? 14 A Real good, I mean, it is -- 15 Q How about phosphorus? Do you have an opinion on 16 what the phosphorus concentration would be? 17 A No, I don't know. 18 Q But again, it is your understanding that this 19 Appendix A grandfathers those structures inasfar as the OFW 20 rule is concerned and uses the 1978-'79 baseline, is that 21 true? 22 A The grandfather of course is my characterization. 23 I think that is the effect of taking that baseline. 24 Q Do you understand how the interim and long-term 25 limits on Appendix A-2 were arrived at? And again, we are A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 69 1 still talking about Exhibit 7. 2 A On page A-2? 3 Q Yes. 4 A I believe that is explained in the SWIM Plan. I 5 don't want to say that I am completely familiar with it, 6 but it was a statistical procedure using available data. 7 Q Do you have any understanding of why there are two 8 sets of limits as opposed to one limit? In other words, 9 why are there interim limits and long-term limits? 10 A I am on page A-2. Which page are you on? 11 Q A-2. 12 A I see, I am looking, I got confused, dry year, wet 13 year. The interim limits, as I understand it, were to 14 provide a basis for design of the interim measures required 15 to remedy the pollutants being discharged from the EAA. 16 Q How about the long-term limits, what were they 17 designed to achieve, in your view? 18 A Water quality standards. 19 Q Which, if either, of those limits is based upon 20 OFW requirements? 21 MS. PONZOLI: Object to the form. 22 THE WITNESS: Do you mean interim or final? 23 BY MR. GREEN: 24 Q Yes. Was either one of those designed to achieve 25 OFW requirements, as far as you know? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 70 1 A Yes. 2 Q Which one? 3 A The final. 4 Q Were any of the documents that at the beginning of 5 your deposition we talked about being withheld on grounds 6 of privilege related to the development of this settlement 7 agreement? 8 A How do you mean, related to? 9 Q Did they deal with that subject matter? 10 A The settlement agreement, no. 11 Q Let's go over to Appendix B, Dr. Parks, and again 12 we are talking about Exhibit 7. 13 Can you tell me what your understanding is of how 14 the interim and long-term concentration levels in this 15 appendix were derived there? 16 A How they were derived, that is the question? 17 Q Yes. 18 A Again, I believe that procedure is described in 19 the SWIM Plan, and my understanding is limited to what is 20 in the SWIM Plan. 21 Q A moment ago when we were talking about the 22 phosphorus limits for Park inflows we were talking about 23 interim limits and final limits. When you said final 24 limits, did you also mean long-term limits, were those the 25 same thing? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 71 1 A Yes. 2 Q Now, I believe you just indicated for Appendix B 3 that the derivation of those limits is described in the 4 SWIM Plan. Do you know where they are described in the 5 SWIM Plan? 6 A I think they are in the appendix. 7 Q And have you reviewed that derivation? 8 A Briefly. 9 Q Back to this Appendix B, can you tell me which of 10 those limits, if any of them, was designed to meet OFW 11 requirements that might apply to the Loxahatchee National 12 Wildlife Refuge? 13 A I believe that the final limits, the long-term 14 limits were intended to meet OFW requirements for 15 Loxahatchee. 16 Q Did I understand you correctly from your earlier 17 testimony that you believe that the structures S-5A and S-6 18 had been grandfathered in, as that term is used for OFW 19 purposes? 20 MS. PONZOLI: Object to the form. It has been 21 asked and answered. 22 THE WITNESS: I believe that was made the 23 baseline, that year was made the baseline and that had 24 the effect of that. 25 BY MR. GREEN: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 72 1 Q Dr. Parks, on page B-2 of this Exhibit 7, the 2 middle of the page, I will quote, "The current control 3 program, consisting of on-line STAs and BMPs, as described 4 in Appendices C and E, is designed to achieve a long-term 5 average annual flow-weighted concentration of 50 ppb for 6 each discharge to the Refuge and WCAs from the EAA," end 7 quote. 8 Do you have any knowledge of the basis for the 50 9 ppb limitation described in that sentence? 10 A No. 11 Q I take it by that you weren't involved in any 12 discussions that led up to the establishment of that 13 number, is that correct? 14 A Yes. 15 MR. GREEN: I would like to mark this as the next 16 exhibit. 17 (Whereupon, Exhibit No. 9 was marked for 18 identification.) 19 BY MR. GREEN: 20 Q Dr. Parks, can you identify this letter that has 21 been marked as Exhibit 9? 22 A It is a letter to James Garner signed by me, yes, 23 two letters. 24 Q With regard to the first letter, the first page, 25 third paragraph, the first sentence, it states, quote, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 73 1 "While not illegal, private discussions between your staff 2 and those who would be regulated of rules under development 3 is improper," end quote. 4 Can you tell me what you were trying to 5 communicate with that sentence? 6 A Well, just what it says. 7 Q What was the purpose of this letter? 8 A The purpose of this letter was to try to get a, to 9 develop a process where staff presentations to the board 10 wouldn't be influenced or biased by their private meetings 11 with industry representatives. 12 Q How about reading the last sentence of the 13 paragraph that I was reading from, on page 1 of that first 14 letter? 15 A "Florida Wildlife Federation suggests that if the 16 Board wishes to maintain public confidence in the fairness 17 of this governmental process," that means rule development, 18 "it will limit staff discussions of rule development with 19 affected persons, including conservationists, to public 20 workshops." 21 Q So your earlier concern with regulated interests, 22 I take it, was also a concern you had with other interested 23 parties, is that a fair understanding? 24 A I only addressed this particular problem here as 25 it applied to those who were, as I saw it, opposing the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 74 1 public interest. 2 Q Do you believe conservationists oppose the public 3 interest? 4 A No. 5 Q Dr. Parks, help me understand that sentence. I am 6 not intending to be argumentative. That sentence seems to 7 say that the staff should limit discussions of rule 8 development with affected persons, including 9 conservationists, to public workshops? 10 A It says that. 11 Q Is that what you meant? 12 A Yes. 13 Q Is that what you meant on page 3, in item number 14 1, where you suggest that the board adopt a policy that 15 would limit staff discussions of rule development with 16 affected persons to public workshops? 17 A Now, are you asking what I meant -- 18 Q Does your definition of "affected persons" on page 19 3 of that letter, line 1, include conservationists? 20 A Yes. 21 Q Did you, yourself, follow that process during -- 22 A I tried to. 23 Q Did you succeed? 24 A No. 25 Q Why not? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 75 1 A Because the board didn't adopt this process. 2 Q Well, did you meet with South Florida Water 3 Management District staff during the development of the 4 SWIM Plan in non-public meetings? 5 A Do you mean "met with" as groups of 6 conservationists, or -- 7 Q Just you, yourself. 8 A Do you mean did I set up meetings to discuss the 9 SWIM Plan, is that what you mean? 10 Q Yes. 11 A No. 12 Q Or did you set up meetings to discuss the 13 settlement agreement? 14 A No. 15 Q Did anyone else set up meetings that you attended 16 that were not public with the rule development staff of the 17 South Florida Water Management District in connection with 18 the SWIM Plan development? 19 MR. WHITE: I object to the form. 20 BY MR. GREEN: 21 Q Did you participate in any non-public meetings 22 with South Florida Water Management District staff during 23 their development of the SWIM Plan that we have been 24 describing? 25 MS. PONZOLI: I object to the form, in its "non- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 76 1 public hearing," can you define that, Mr. Green? 2 BY MR. GREEN: 3 Q What did you mean by public workshops on page 1 of 4 your letter, Dr. Parks, of Exhibit 9? 5 A Noticed workshops. 6 Q Did you meet with or participate in meetings with 7 South Florida Water Management District staff in non- 8 noticed workshops during your development of the SWIM 9 Plan? 10 A Non-noticed workshops. The problem I am having 11 is, you know, I talked to various staff members at various 12 times on various subjects. It sounds like you are asking 13 me, did somebody send out a letter and say we are going to 14 have a meeting on this subject and that would just be 15 conservationists, for example, and District staff, is that 16 what you are asking? 17 Q Well, I am basically asking you if you 18 participated or attended non-noticed meetings or workshops 19 with the rule-making staff of the Water Management District 20 that was implementing the SWIM Plan or developing the SWIM 21 Plan? 22 A By non-noticed workshop, you mean something that 23 is just like a workshop but it doesn't have a public 24 notice? 25 Q Or just a meeting where you sit around the table A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 77 1 and talk, hey, here is the SWIM Plan, what do you think, 2 whatever; not complicated. 3 A I don't recall doing that. 4 MR. GREEN: This will be Exhibit 10. 5 (Whereupon, Exhibit No. 10 was marked for 6 identification.) 7 BY MR. GREEN: 8 Q Can you identify this collection of documents that 9 we have put together as Exhibit 10, Dr. Parks? 10 A Well, the first is a memo from me to Everglades 11 Coalition members, dated March 18, 1988. 12 The second is a, it looks like a press statement 13 dated March 23, 1988. 14 The third is a letter to Governor Martinez from 15 Marjorie Carr, dated March 21, 1988, and the last is a 16 letter from Marjorie Carr to Dale Twachtmann dated January 17 20, 1988. 18 Q Dr. Parks, did you draft all of these letters you 19 just described? 20 A Yes. 21 Q Let's start with the last one, the January 20th 22 letter to Dale Twachtmann, signed by Marjorie Carr. 23 On the second paragraph of that letter, in the 24 middle of the paragraph, and I will quote, you stated this: 25 "Pumping stations S-2, S-3 and S-4 discharge from these A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 78 1 canals into Lake Okeechobee under an existing operations 2 permit issued to the District by the Department. Pumping 3 stations S-5A, S-6, S-7 and S-8 drain this s