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 same system into 4 the Conservation Areas. The discharges from these four 5 pumping stations are creating the problems of the 6 Everglades marsh. These pumps are not permitted by the 7 Department," end quote. 8 Dr. Parks, was the purpose of this letter -- what 9 was the purpose of this letter? Let me ask it that way. 10 A The purpose of this letter was to make Secretary 11 Twachtmann aware of the problem in the Everglades, aware of 12 the cause and aware of the fact that these were sources of 13 pollution that the Department was obliged to regulate. 14 Q In the next to the last paragraph on page 2 of 15 that letter, can you tell us what you meant by that 16 sentence, the last sentence, beginning, "We believe that 17 you should"? 18 A What is the question? 19 Q What did you mean by that sentence? 20 A That the, that the Department should exercise its 21 regulatory, its authority over the Water Management 22 District to get the District to really put the owners, the 23 landowners on notice to issue a surface water management 24 permit. 25 Q The regulatory authority you are speaking of here A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 79 1 is the stormwater regulatory authority. What does that 2 mean, stormwater regulatory authority? 3 MS. PONZOLI: Object to the form. 4 BY MR. GREEN: 5 Q In the sentence we have been speaking of, what did 6 you mean by "stormwater regulatory authority"? 7 A At that time, the Department had delegated to the 8 South Florida Water Management District the Department's 9 own Chapter 403 stormwater regulatory authority, and I 10 believe that that is what I was referring to here. 11 Q Do you believe that -- did you believe at that time 12 that structures S-5A, S-6, S-7 and S-8 should apply for 13 surface water management permits from the Water Management 14 District? 15 A No. 16 Q Why not? 17 A That they should apply for surface water 18 management permits from the Water Management District? 19 Q Yes. 20 A At that time, I considered pumping stations S-5A, 21 S-6, S-7 and S-8 to be stationary sources of pollution 22 under the Department's rules. 23 The, in all its delegation agreements, the 24 Department has never allowed the District to permit itself, 25 so it wouldn't make much sense for the District to apply to A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 80 1 itself for a permit for these pumping stations. 2 Q I am having trouble understanding that sentence. 3 Let me quote it. 4 "We believe that you should insure that the 5 stormwater regulatory authority delegated by the Department 6 to the District is properly exercised by requiring that 7 each owner's responsibility be defined in a surface water 8 management permit issued by the District." 9 A What is the question? 10 Q That sentence seems to tell me that you wanted or 11 the letter asked Secretary Twachtmann to ensure that the 12 Water Management District issue a surface water management 13 permit under its stormwater regulatory authority to these 14 point source structures. 15 Is that an incorrect reading of this sentence? 16 A Yes. 17 Q Please tell me what it means. 18 A Well, the antecedent to "owner" is landowners, in 19 the beginning of that paragraph, landowners in the EAA. 20 Q Could you tell me how landowners in the EAA has a 21 bearing on that sentence? I am struggling here. 22 A You could, in the sentence that you are struggling 23 with, if you were to substitute "landowner" for "owner," it 24 might help you. 25 Q If we do that, doesn't that sentence we have been A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 81 1 discussing then say that each landowner's responsibility 2 should be defined in a surface water management permit 3 issued by the District? 4 A Yes. 5 Q What do you believe the landowner's 6 responsibilities, are or what did you believe then they 7 were? 8 A To meet the requirements of Chapter 403 and 9 Chapter 373. 10 MR. GREEN: It is 10 till, do you want to do it, 11 lunch? 12 (Lunch recess.) 13 BY MR. GREEN: 14 Q We were on Exhibit 10, Dr. Parks, and we were 15 talking about the last letter attached there which was a 16 January 20, 1988, letter, to Mr. Dale Twachtmann, Secretary 17 of DER, from Marjorie Carr, president of Florida Defenders 18 of the Environment. The next letter up in that exhibit is 19 a March 21, 1988, letter, addressed to the Honorable Bob 20 Martinez, prepared for Marjorie Carr's signature. Once 21 again, I would like to refer you to page 2 of that letter, 22 paragraph 2. 23 A Yes. 24 Q I am going to read the first and third sentence, 25 well, the second one. "In Water Conservation Area 2A, some A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 82 1 20,000 acres have been converted to cattails," end quote, 2 and can you tell me the basis of that statement? 3 A I think that was the best estimate that was 4 available at that time. 5 Q Where did the estimate come from? 6 A I think it came from the District, although I am 7 not sure. 8 Q How about the third sentence in that paragraph, 9 quote, "These effects are slowing spreading downstream as 10 each area becomes saturated," end quote. 11 Can you tell me the basis for that statement? 12 A I guess it was, I believe it was work presented to 13 LOTAC. 14 Q Who presented that work to LOTAC? 15 A District staff members. 16 Q Did they present that to LOTAC in written form? 17 Did the District staff? 18 A I don't recall. 19 Q And now the top page of Exhibit 10, which is a 20 memorandum to the Everglades Coalition members from Florida 21 Defenders of the Environment that you prepared. The first 22 sentence reads, and I quote, "FDER Secretary Twachtmann has 23 so far refused FDER's request to place under permit the 24 SFWMD pumping stations that discharge EAA drainage into the 25 Everglades marsh," period, end quote. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 83 1 Would you explain the circumstances that led to 2 that statement? 3 A In one of the letters in Exhibit 10, Marjorie Carr 4 asked the Secretary to begin that process of permitting 5 those pumps, and she never received any response of any 6 kind from the Secretary. 7 (Whereupon, Exhibit No. 11 was marked for 8 identification.) 9 BY MR. GREEN: 10 Q Dr. Parks, you have been handed what has been 11 marked as Exhibit 11, pages 100 to 110 of the Surface Water 12 Improvement and Management Plan for the Everglades, 13 Planning Document, dated March 13, 1992. 14 Have you seen a copy of this portion of the so- 15 called SWIM Plan prior to today? 16 A You are representing that this is the SWIM Plan? 17 Q Yes. 18 A Yes, this is the adopted SWIM Plan, that is 19 correct. 20 Q I would like to ask you to go over, turn over to 21 page 104, the bottom two lines of that Exhibit 11, and ask 22 you to read the sentence beginning there into the record. 23 A "A panel of scientists designated by the TOC will 24 track and evaluate compliance with all aspects of state 25 water quality standards, including the phosphorus limits, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 84 1 concentration levels and criteria. The represented 2 agencies may request technical assistance from others." 3 Q Dr. Parks, do you know what the term "TOC" refers 4 to in that sentence? 5 A Technical oversight committee. 6 Q Do you know how it is constituted? 7 A Not precisely. 8 Q Are you a member of the technical oversight 9 committee? 10 A No. 11 Q Do you know anyone who is? 12 A Yes. 13 Q Who would that be? 14 A Dr. Suko, Dr. Mafei. 15 Q Anyone else? 16 A Richard Harvey. 17 Q And who does Richard Harvey work with? 18 A DER. 19 Q How about Dr. Suko? 20 A National Park Service. 21 Q And Dr. Mafei? 22 A U.S. Fish and Wildlife Service. 23 Q On page 105, under the Item 3, phosphorus limits 24 for WCA-2A and WCA-3A, the second sentence under that 25 heading, and I quote, "The current design criteria for STAs A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 85 1 is to achieve a long-term total phosphorus outflow 2 concentration of approximately 50 ppb," end quote. 3 Do you have any knowledge of how that 50 ppb 4 number was arrived at in this document? 5 A Well, my understanding is that it is considered to 6 be a reasonable interim step along the way towards actually 7 achieving water quality standards in the Everglades. 8 Q Have you seen any documentation to support it? 9 MS. PONZOLI: Object to the form. 10 THE WITNESS: What would "support" mean in that 11 sense? 12 BY MR. GREEN: 13 Q Have you seen any analyses describing how this 50 14 ppb number was arrived at? 15 A No. 16 Q Do you know how it was arrived at -- derived? 17 A No. 18 Q You inferred, from your earlier responses, that it 19 was an interim step. Do you have any information that 20 would indicate that a lower number may be appropriate in 21 the longer term? 22 A Yes. 23 Q What information is that? 24 A It is contained in the SWIM Plan. 25 Q Is that all of the information you are aware of A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 86 1 that it would support a lower number in the long-term? 2 A I am sure there is other information that leads to 3 the same conclusion, about oligotrophic systems. 4 Q What other information are you sure there is of 5 that type? 6 A I believe that a literature search would show that 7 oligotrophic systems are apt to be impacted by water 8 containing 50 parts per billion of phosphorus. 9 Q When you say literature, do you mean published 10 papers? 11 A Yes, and the unpublished reports. 12 Q What unpublished reports are you familiar with 13 that might be relevant to that type? 14 A I am not familiar with specific reports. It is my 15 belief that an examination of the literature would show 16 other, the results of studies other than those cited in the 17 SWIM Plan which would support the conclusions of the SWIM 18 Plan, but I don't have specific references. 19 Q Do you know what individuals drafted this sentence 20 on page 105 we have been discussing? 21 A No. However, they are listed in the preface of 22 the SWIM Plan. 23 Q Were there any individuals other than those listed 24 in the preface that were involved in the drafting of this 25 sentence, to your knowledge? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 87 1 A No. I have no knowledge. 2 Q We discussed structures discharging into the 3 Loxahatchee National Wildlife Refuge earlier, and I believe 4 that your testimony was that you felt that they should not 5 have been grandfathered under the OFW rule. 6 MS. PONZOLI: Object to the form. 7 BY MR. GREEN: 8 Q Is that correct, that you believe they should not 9 have been grandfathered under the OFW rule? 10 MS. PONZOLI: Object to the question. I think you 11 are mischaracterizing the answer. 12 THE WITNESS: Could you repeat the question? 13 BY MR. GREEN: 14 Q When we were discussing the settlement agreement 15 earlier, you stated that you believe that the provisions 16 that established effluent limits for the S-12 structures 17 and for the Loxahatchee National Wildlife Refuge were 18 arrived at assuming that the OFW structures were 19 grandfathered in under the OFW rule, is that correct? 20 MS. PONZOLI: Same objection. 21 THE WITNESS: You said OFW structures? 22 BY MR. GREEN: 23 Q Discharge structures. 24 A Yes, I said that. 25 Q Now, what would have been different about those A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 88 1 limits if they had not been grandfathered in, in your 2 opinion? 3 A It would have been necessary to, in order to 4 arrive at the long-term limits that would comply with the 5 OFW criteria, it would have been necessary to deduce the 6 quality of water that existed in the absence of those 7 unpermitted sources of pollution. 8 Q If those structures were grandfathered in under 9 the OFW rule, are you saying that unpolluted natural 10 background would not be the baseline for OFW purposes? 11 MS. PONZOLI: Object to the form. 12 THE WITNESS: Yes. 13 BY MR. GREEN: 14 Q What would be the background for OFW purposes? 15 A The ambient water quality, '78-'79, are the best 16 scientific information that led to that same kind of 17 information. 18 Q How would one arrive at the ambient water quality 19 of '78-'79? 20 A Well, if you have measurements, of course, you use 21 that. If you don't have measurements you try to figure out 22 what it would have been in that time period. 23 Q Let's assume you did that. 24 A I did what? 25 Q That you did what you just described. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 89 1 A Had measurements? 2 Q Had measurements and established ambient water 3 quality during the baseline of 1978 and '79. Then what 4 would be the regulatory consequences for that particular 5 discharge that the OFW rule would bring about, if any? 6 A The remedial actions required upstream from the 7 point of discharge would have to be designed to meet the 8 OFW criteria. 9 Q What are the criteria? 10 A The lowering of ambient quality in reference to 11 that baseline. 12 Q So does that mean that if ambient water quality 13 were degraded with reference to the '78-'79 baseline, that 14 in that hypothetical it would have to be improved back up 15 to that baseline amount? 16 A If it were degraded relative to the '78-'79, when 17 degraded, how degraded? 18 Q Subsequent to that period. 19 A By what, degraded by what? 20 Q If the discharge quality were degraded compared to 21 the '78-'79 levels, what would be required under the OFW 22 rules to comply with that rule? 23 A Well, the OFW rule, you know, only applies in a 24 permitting situation, and we would have to be, you would 25 have to tell me how the unpermitted discharges had affected A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 90 1 ambient quality since the baseline period in order for me 2 to answer that question. 3 Q Well, let's, let me ask you this. Are you 4 familiar with the SWIM Plan descriptions of ambient water 5 quality in connection with discharges into the Loxahatchee 6 National Wildlife Refuge, and in particular with regard to 7 the baseline period of 1978-'79? 8 A That is kind of -- I am confused by that question, 9 talking about the ambient water quality of the discharges. 10 Q Do you have an opinion on whether the OFW rule 11 applies to discharges into the Loxahatchee National 12 Wildlife Refuge? 13 A Yes. 14 Q How does it apply? 15 A It governs the quality of the discharges. 16 Q How does it govern the quality of the discharges? 17 A The discharges must not cause or contribute to a 18 lowering of ambient quality relative to the baseline. 19 Q Is that the 1978-'79 baseline we were talking 20 about? 21 A Well, that is in dispute as far as I am concerned, 22 but -- 23 Q What is your opinion of what the baseline should 24 be? 25 A That those, that the contribution of those A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 91 1 unpermitted pollution sources should not be included in the 2 baseline water quality. 3 Q Now, let's assume they were included, 4 hypothetically. Then how does the OFW rule apply to the 5 discharges into the Loxahatchee Wildlife Refuge, if at 6 all? 7 A If those unpermitted discharges have lowered 8 ambient quality relative to the baseline, corrective action 9 must be taken to bring it back up to the baseline. 10 Q Let's look at the bottom of page 105 of Exhibit 11 11, the second sentence of the second paragraph, and I will 12 quote -- 13 A Let me add to that, that is for the final, for the 14 long term, not necessarily for the interim. 15 Q When you say long term, what are you referring 16 to? 17 A For meeting state water quality standards under 18 the Marjorie Stoneman Douglas Act in Chapter 403. 19 Q And do you mean that also with regard to the 20 settlement agreement that we have been discussing and the 21 SWIM Plan we have been discussing? Is that how you mean 22 long term? 23 A Well, long term in the settlement agreement means 24 whatever it means in the settlement agreement. I am really 25 only talking about DER permitting. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 92 1 Q Well, what about page 103 of Exhibit 11? In the 2 center of the page there is a table and on the left there 3 are three entries, Interim Marsh Concentration Level, the 4 next is Marsh - Class III Standard, and then below that 5 Long-Term Concentration Level. 6 Were you referring to any one of those three 7 levels when you said long term a minute ago? 8 A I merely meant to inform you that I didn't think 9 the OFW, any of the OFW rule applied, necessarily applied 10 to this interim permit that is the first permit proposed in 11 the SWIM Plan. 12 Q What does it apply to? 13 A It applies to meeting water quality standards, to 14 having an operations permit as opposed to some other kind 15 of temporary operations permit or interim permit. 16 Q Let's go back to page 105 and let me read the 17 second sentence of the bottom paragraph, and I quote, "The 18 control program is designed to achieve approximately an 80 19 percent reduction in phosphorus loads from the Everglades 20 Agricultural Area (EAA) to the Everglades Protection Area 21 by July 1, 1997, and greater than an 85 percent reduction 22 in phosphorus loads to the Refuge by July 1, 2002, relative 23 to average annual loads measured in water years 1979 24 through 1988." 25 Do you have an opinion on what regulatory A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 93 1 requirements of the Florida Department of Environmental 2 Regulation that this provision is intended to accomplish 3 compliance with? 4 A The July 1, 1997, load reduction, which is, I 5 know, equivalent to the 50 parts per billion, is intended 6 to meet the requirement for -- it is to be a first step 7 along the way to coming into compliance with state water 8 quality standards, and it is allowed by the Marjorie 9 Stoneman Douglas Act. I don't know that regulatory 10 requirement is exactly the right word. 11 Q What about the remainder of that sentence, the 85 12 percent reduction? 13 A I don't -- I don't know that we -- we certainly 14 don't have any certainty that 85 percent reduction will 15 meet Class III water quality standards at this time. I 16 think it is sort of thrown in there. 17 Q Do you know whether either of those reductions, 18 that is, the 80 percent reduction or the 85 percent 19 reduction, are intended to achieve compliance with the OFW 20 rule? 21 A No. 22 Q Do you have an opinion on whether either one of 23 them would achieve compliance with the OFW rule? 24 A I think the baseline question has to be answered 25 before that question can be answered. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 94 1 Q Well, let's answer it both ways. Let's assume 2 that you are right and the structures are not grandfathered 3 in. Would either of those reductions achieve compliance 4 with OFW rules? 5 A I don't know. 6 Q Let's assume they are grandfathered in. Do either 7 of those reductions achieve compliance with the OFW rule? 8 A The same answer. 9 Q All right. 10 A I would add that Class III standards must also be 11 met and that they could be lower than the OFW number. 12 Q Could they also be higher? 13 A They could. 14 Q Do you know which they are? 15 A No. 16 Q Do you know anyone else who knows which they are? 17 A No. 18 Q How would one determine? 19 A By taking the interim steps and following the plan 20 in the SWIM Plan. 21 MR. GREEN: This is to be marked as Exhibit 12. 22 (Whereupon, Exhibit No. 12 was marked for 23 identification.) 24 BY MR. GREEN: 25 Q Can you identify this document for us, Dr. Parks? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 95 1 A Yes, I can identify this, it is a memorandum 2 written by me dated April 17, 1989. 3 Q Would you read the first sentence of the second 4 paragraph on page 1, please, out loud? 5 A "DER Secretary Twachtmann is proposing to treat 6 those nutrient limits required to implement any particular 7 SWIM Plan as water quality standards that must be approved 8 by the Environmental Regulation Commission (ERC.)" 9 Q Now, in that sentence, what nutrient limits were 10 you referring to? 11 A The site-specific narrative nutrient limits that 12 are already in the rule. 13 Q Would those be the nutrient limits that might be 14 imposed on structures S-5A, S-6, S-7 or S-8, or S-12A, B, C 15 and D? 16 A No. 17 Q Why not? 18 A Because this refers to ambient water quality. 19 Q Would this ambient water quality nutrient limit 20 you are referring to here conceptually include the limits 21 that are set for the Loxahatchee National Wildlife Refuge 22 in the SWIM Plan based on 14 interior marsh stations? 23 A It could. 24 Q Do you know why Secretary Twachtmann was proposing 25 to treat such limits as water quality standards that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 96 1 required ERC approval? 2 A No. 3 Q But you disagreed with him on that point? 4 A Yes. 5 Q Why? 6 A Because there had long been a process by which the 7 Department determined site-specific, interpreted the 8 site-specific standards, including that for BOD and 9 nutrients. 10 Q The Department has done that historically for a 11 large number of sewage treatment plants, hasn't it? 12 A Yes. 13 Q Do you know of a case where the Department has 14 ever done that for a wetlands discharge? 15 A Not offhand. 16 Q Do you know how that process would be done that 17 you referred to? 18 A Generally. 19 Q Would you describe it? 20 A For what kind of a source? 21 Q Let's take the S-5A and S-6 discharges into the 22 Loxahatchee National Wildlife Refuge as an example. 23 A Well, there, I believe the process is defined in 24 the SWIM Plan. 25 Q Do you know where in the SWIM Plan it is defined? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 97 1 A Not without looking it up. 2 Q Which volume is it in? 3 A Well, I am not sure. I am not sure where it is, 4 but I believe there is described in the SWIM Plan somewhere 5 a plan to undertake the research necessary to establish 6 Class III water quality standards for nutrients. 7 Q Well, Dr. Parks, actually I think we may have had 8 it in Exhibit 11. Do you still have that over there? Page 9 104, the second paragraph, it refers to -- well, let me ask 10 you to read that and see if that is what you had in mind. 11 A I am not sure that this is the only reference to 12 that process. 13 Q You are saying that page 104, the second 14 paragraph, is not what you had in mind? 15 A I am saying that, I am not certain that that is 16 the only reference to that process. I also think that SAGE 17 is probably going to take up that question at some point in 18 the future. 19 Q That is S-A-G-E, a group that is mentioned 20 somewhere in the acronym list? 21 A I don't know if it is. 22 Q If it isn't, would you tell us what SAGE is? 23 A Scientific Advisory Group for the Everglades. 24 Q Are you a member of that group? 25 A Yes, I am. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 98 1 Q Would you briefly tell us what its 2 responsibilities are? 3 A I believe they are defined in the SWIM Plan, but 4 again, I have a hard time putting my finger on it, maybe it 5 is in the technical appendix. I know that SAGE is 6 mentioned in here and its duties are defined in here, and I 7 would refer you to what the SWIM Plan says. I don't think 8 I can paraphrase it. 9 Q That is fine. Are there any other documents that 10 define the duties and responsibilities of SAGE, other than 11 the SWIM Plan? 12 A There is a memo floating around, I think it may 13 say the same thing as the SWIM Plan, and then there was a 14 clarification from Til, C-r-e-e-l, T-i-l. 15 Q Now, Dr. Parks, going back to the letter marked 16 as Exhibit 12 which was the take-off point for our 17 discussion here on the research in the SWIM Plan, when I 18 asked you why you disagreed with Secretary Twachtmann 19 concerning ERC adoption of water quality standards for 20 nutrient limits, you indicated that there was a long- 21 established process for establishing nutrient limits on a 22 case-by-case basis. 23 Can you tell me what that long-established process 24 was in 1989, the date of this letter? 25 A The process is general for narrative nutrients, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 99 1 and it is used much more often in connection with 2 biochemical oxygen demand, wherein the Department examines 3 the site, the specific site of the discharge, the receiving 4 waters, if you will, and determines by a variety of means, 5 by often through simulation, mathematical computer 6 simulation, what amount of BOD can be discharged and still 7 provide reasonable assurance that water quality standards 8 will be met. 9 Q When you -- 10 A The same process would apply to nutrients on any 11 site-specific place. The model wouldn't be the same. 12 Q Is that process embodied in any DER regulations? 13 A I am not sure the W. Q. Bell, W. Q. Bell, whether 14 those regulations specifically address nutrients or not, 15 but it is an analogous process to look at the site specific, 16 to take a narrative nutrient standard which is narrative, 17 which it must be because there are site-specific variations, 18 take the Department's professional expertise, examine the 19 site and use that professional expertise to determine 20 effluent limits. It is a longstanding practice for BOD and 21 it is, whether it is called that or not, it is the same 22 process for nutrients. 23 Q Can you remember any case or point source name 24 that that process has been applied to that you have been 25 involved with or you may be aware of? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 100 1 A I think it is generally applicable whenever 2 nutrients, whenever there is a proposal to discharge 3 nutrients into wetlands, marshes, swamps, lakes, slow- 4 moving lake-like bodies of water. 5 Q Now, Dr. Parks, you testified a few minutes ago 6 that you were not aware of any circumstances where this 7 process had been applied to discharges to wetlands. Did I 8 misunderstand you? 9 A "This process" meaning -- 10 Q Of applying case-by-case nutrient limits. 11 A It is my impression that in every instance of a 12 proposal to discharge that the Department considers 13 nutrients and it necessarily considers them on a site- 14 specific basis. 15 Q How does the Department deal with existing 16 discharges in that context? 17 A How would it deal -- what does "deal" mean? 18 Q Excuse me, your answer related to proposed 19 discharges, and my question is, if the discharges that, 20 existing, ongoing, longstanding discharge, does that 21 matter, under the process you described? 22 A Presumably when it was originally permitted they 23 did it right. 24 Q What if it wasn't permitted originally? 25 A Then it is in violation of, it is a stationary A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 101 1 source of pollution and it requires a permit and they have 2 to go through the process. 3 Q Can you give me an example of an unpermitted 4 source that has had to follow the process as you just 5 described it? 6 A Deseret Ranches. 7 Q What type of source was that? 8 A Pump discharge of drainage water from 9 agricultural lands. 10 Q Where did the discharge go? 11 A The St. Johns River, via canal. 12 Q Do you recall when that discharge was originally 13 created? 14 A No. 15 Q What was the result of the process being applied 16 to that? Was a permit applied for? 17 A I believe it was. 18 Q Was a permit issued? 19 A I don't know. 20 Q Do you remember the approximate year that that 21 happened? 22 A Late '70s. 23 Q Now, referring back to Exhibit 12, in the fourth 24 paragraph, and I quote, "Based on other experiences with 25 ERC approval of water quality standards opposed by powerful A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 102 1 interests, this could be a year's long process with an end 2 result that fails to protect the environment." 3 Can you explain what experiences that this 4 sentence referred to? 5 A Well, dioxin is a pretty good example. 6 Q When you say dioxin, do you mean rulemaking 7 related to dioxin? 8 A Yes. 9 Q You mentioned in the top of the last paragraph on 10 page 1 of Exhibit 12, the first sentence, "What is the 11 alternative," end quotes. 12 A Which paragraph? 13 Q The last one on that page. 14 A "What is the alternative"? 15 Q Right. 16 A In the last paragraph? 17 Q Yes. Does that last paragraph describe -- 18 A The one that begins, "What is our recourse?" 19 Q I am sorry, on page 1, are we on the same letter? 20 A I am on page 2. 21 Q Page 1, the last paragraph. 22 A Okay. 23 Q The paragraph begins, "What is the alternative," 24 question mark, and then you describe an alternative. 25 Does that paragraph describe the process that you A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 103 1 were referring to earlier whereby a site-specific nutrient 2 discharge limitation might be imposed? 3 MS. PONZOLI: I object to the form. 4 THE WITNESS: What is the question? 5 BY MR. GREEN: 6 Q Is that the alternative that you were describing 7 earlier? 8 MS. PONZOLI: Objection. 9 THE WITNESS: Well, yes. 10 BY MR. GREEN: 11 Q Now, on page 2, the middle paragraph, I quote, "It 12 is clear that the ERC has previously allowed the Department 13 to determine site-specific values required to prevent 14 violation of ERC-approved criteria. If it had not, each 15 sewage treatment plant permit would have required ERC 16 approval. Twachtmann's concept would involve the ERC in 17 setting numerical nutrient criteria for every single water 18 body. Whether intended or not, this scheme is obviously 19 unworkable. The net result would be more years of delay in 20 dealing with this fundamental problem. It will mean more 21 irreversible losses of lakes and other water bodies." 22 In the sentence where you say "whether intended 23 or not," what do you mean by that? 24 A I don't think that Secretary Twachtmann intended 25 to create an unworkable scheme, that I felt the result A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 104 1 would be unworkable. 2 Q With regard to the Deseret discharge that you 3 referred to earlier, isn't it true that the issue in that 4 case was whether the pump stations were stationary 5 installations under Chapter 403? 6 A Well, I don't know all of the legal objections 7 that Deseret made in that case. I was a witness in that 8 case, but I wasn't an attorney. 9 Q What did you testify about in that case? 10 A That the water pumped wasn't stormwater. 11 Q What kind of water was it? 12 A Well, it would be stormwater now, under the 13 definition 373, but at the time it was not water that 14 resulted from the immediate runoff -- 15 Q Were nutrients -- 16 A -- following a rainfall. 17 Q Were nutrients an issue in that case? 18 A I believe that they were an issue, yes, I believe 19 they were. I am not positive. That was a long time ago. 20 MR. GREEN: This is a good point to break. 21 (Brief recess.) 22 BY MR. GREEN: 23 Q This will be Exhibit 13. 24 (Whereupon, Exhibit No. 13 was marked for 25 identification.) A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 105 1 BY MR. GREEN: 2 Q Dr. Parks, can you identify what has been marked 3 as Exhibit 13? 4 A It is a letter from me to Jim Webb. 5 Q I would like to refer you to the first sentence on 6 page 1, where you say, and I quote, "I have strongly 7 recommended funding for the Wilderness Society sugar study 8 to both the Dunn and the Munson Foundations." 9 Can you tell me who the Dunn Foundation is? 10 A It is a charitable trust. 11 Q And the Munson Foundation? 12 A The same. 13 Q What is the Wilderness Society sugar study 14 referred to in that sentence? 15 A That was the economic study that was distributed, 16 I guess at the, it must have been the '91 Everglades 17 Coalition meeting. It is in the documents that were 18 produced. 19 Q It was in the documents produced yesterday or last 20 Friday? 21 A Yes. 22 Q Who did the study? 23 A The Wilderness Society. 24 Q Was it prepared by their staff? 25 A I am not sure who all was involved in it. Craig A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 106 1 Diamond was involved in it. 2 Q Is Craig Diamond an economist? 3 A I don't know what his training is. 4 Q What aspects of sugar were studied in that study? 5 A Well, I would have to review the study to give you 6 any kind of detailed answer. 7 Q Can you give me a general answer? 8 A It was the, I believe it was the contribution of 9 sugar to the total regional economy, the taxes paid by 10 sugar compared to the total taxes in the Water Management 11 District, that sort of thing. 12 Q Did you play any part in the preparation of that 13 study other than assisting in the securing of funding? 14 MS. PONZOLI: Object to the form of the question. 15 THE WITNESS: Could you rephrase that? 16 BY MR. GREEN: 17 Q Did you assist in carrying out that study we have 18 been talking about? 19 A No. 20 Q Did you review any drafts of the study? 21 A I don't believe so. I might have. 22 Q On page 2 of this letter which is marked as 23 Exhibit 13, the first new paragraph reads, and I quote, 24 "Second, there is the cost of remedial action. I believe 25 that this information is critical to the federal suit." A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 107 1 Why did you believe that the cost of remedial 2 action was critical to the federal suit? 3 A I think that "this information" refers to 4 everything discussed in the paragraph. 5 Q Such as? 6 A Production costs and profits, losses claimed for 7 taking land out of production, the amortization of the 8 mills, the employment, economic conditions in the towns in 9 the EAA. 10 Q You just mentioned five factors. Why were those 11 factors critical to the federal suit? 12 A Well, I don't know for sure what I had in mind 13 there as far as the federal suit. It certainly doesn't 14 depend on any of this information. I was probably thinking 15 more in terms of remedy. I don't really know what I meant 16 at that time. 17 Q Well, the first sentence in that paragraph says, 18 "Second, there is the cost of remedial action." Might you 19 have been referring to that? 20 MS. PONZOLI: Asked and answered. 21 BY MR. GREEN: 22 Q Were you referring to that? 23 A Well, I might have been. 24 Q But you don't recall? 25 A No. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 108 1 Q Dr. Parks, I show you what has been marked as 2 Exhibit No. 14. 3 (Whereupon, Exhibit No. 14 was marked for 4 identification.) 5 BY MR. GREEN: 6 Q Do you recognize this letter? 7 A It is a letter from me to Governor Martinez. 8 Q You state in the first sentence of the first 9 paragraph, and I quote, "I have provided Senator Lawton 10 Chiles and Representative Bill Nelson my views on 11 Everglades and Lake Okeechobee issues." 12 When did you provide Senator Lawton Chiles your 13 views on Everglades and Lake Okeechobee issues? 14 A Well, it was shortly before I offered to do the 15 same thing to Governor Martinez, for Governor Martinez. 16 Q In the summer of 1990? 17 A I would presume. 18 Q How did you provide those views to Senator 19 Chiles? 20 A Well, I met with him and talked with him. I 21 don't know, I imagine I gave him some written material, 22 too, but I don't really recall the details. 23 Q Did you meet with him in Washington? 24 A No. 25 Q Where did you meet with him? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 109 1 A I think it was here in Tallahassee. 2 Q Who attended the meeting other than you and 3 Senator Chiles? 4 A There were other people there, but I don't recall 5 who. 6 Q Where was the meeting in Tallahassee? Was it in 7 his offices in Tallahassee? 8 A I just don't remember. 9 Q Do you know approximately how many people attended 10 the meeting? 11 A No. 12 Q Did you keep any notes of the meeting? 13 A No. 14 Q Did you receive any communication from Senator 15 Chiles following the meeting related to the meeting? 16 A I probably got a thank-you note. 17 Q What were your views on Everglades and Lake 18 Okeechobee issues that you referred to here? Can you tell 19 me what those were? 20 A That there were unpermitted discharges into the 21 Everglades that required a DER permit, that that permit 22 should be intended to achieve state water quality 23 standards. My views on Lake Okeechobee were that it was in 24 jeopardy, ecological jeopardy by virtue of a DER rule that 25 did not require that state water quality standards to be A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 110 1 met. 2 Q What was Senator Chiles' response to those 3 views? 4 A He listened with interest. 5 Q Did you ask Senator Chiles whether he had a 6 position on those issues? 7 A No. 8 Q Did you urge him to take a position on those 9 issues? 10 A I think it was more just a briefing of the 11 situation. 12 Q Were there any subsequent meetings with Senator 13 Chiles on these issues before he became governor? 14 A Yes. 15 Q When were they? 16 A During his campaign. 17 Q About how many meetings during that period? 18 A Three, maybe. 19 Q Can you tell me where those meetings were? 20 A Tallahassee. 21 Q Who attended those meetings? 22 A I don't remember everybody that was present, but I 23 think Ron Snell and probably Dana Minerva and probably David 24 Gluckman. 25 Q Did Carol Browner attend any of those meetings? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 111 1 A No. 2 Q Did Allen Milledge? 3 A No. 4 Q Did anyone working for DER at that time attend any 5 meetings? 6 A No. 7 Q Anyone from the Water Management District? 8 A No. 9 Q Anyone who was employed by the federal 10 government? 11 A Not that I know of. 12 Q Anyone else from conservation interests? 13 A There probably were. 14 Q Do you recall who might have been with you? 15 A No. 16 Q Did you keep notes of any of the meetings that 17 occurred? 18 A No. 19 Q Did Senator Chiles make any commitments with 20 regard to how he would deal with those issues if elected as 21 governor of Florida? 22 A Well, he ultimately made Everglades protection a 23 part of his campaign platform. 24 Q How did he do that? 25 A Well, I have forgotten exactly how he did it, but A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 112 1 he -- I think he put out some campaign literature that 2 included the Everglades and I believe that he discussed it 3 in speeches. 4 Q Do you have copies of any of the literature that 5 you just referred to? 6 A I may have. It seems to me that when I was going 7 through the stuff that I produced for you, I saw some -- I 8 am not sure it was campaign -- it was something put out by 9 the Chiles administration, their environmental platform 10 kind of thing. I am not sure if it was campaign 11 literature. It was something produced after he was 12 elected. 13 Q Did former Congressman Buddy MacKay, who is now 14 lieutenant governor, attend any of the meetings we have 15 been talking about? 16 A Yes, I think he did. 17 Q Did he make any commitments with regard to how he 18 might deal with your concerns if he were elected lieutenant 19 governor? 20 A Not specifically. 21 Q Did he make any general commitments? 22 A I don't recall. 23 Q Was Representative Bill Nelson in attendance at 24 any of the meetings we have been talking about? 25 A What do you mean by any of the meetings? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 113 1 Q The meetings with Senator Chiles? 2 A No. 3 Q Where did you meet Representative Nelson? 4 A In Sam Bell's office. 5 Q When was that? 6 A It was when Nelson was thinking about running for 7 governor. 8 Q Did you meet with Representative Nelson more than 9 once? 10 A I don't think so. 11 MS. PONZOLI: Mr. Green, I am having a very hard 12 time figuring how this line of questioning fits in even 13 remotely with anything I have designated Dr. Parks for. 14 MR. GREEN: I have finished it. 15 MS. PONZOLI: Thank you. 16 MR. GREEN: This is Exhibit 15. 17 (Whereupon, Exhibit No. 15 was marked for 18 identification.) 19 BY MR. GREEN: 20 Q Can you identify Exhibit 15, Dr. Parks? 21 A I think -- well, this is something I wrote. 22 Q Do you know when you wrote it? 23 A About the time the lawsuit was filed, so the fall 24 of '88. 25 Q Were you consulting with the federal government at A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 114 1 this time? 2 A Yes. 3 Q When did you first become a consultant with the 4 federal government in connection with the lawsuit 5 referenced in Exhibit 15? 6 A Well, what do you mean by consultant? 7 Q Well, when did you first become employed by the 8 federal government in connection with the suit referred to 9 in Exhibit 15? 10 A Sometime in the fall of '88. 11 Q Before the lawsuit was filed? 12 A I am not sure when I had a, formally had a 13 contract with them. 14 Q When did you first have a formal contract with the 15 federal government? 16 A I just answered that. I am not sure. 17 Q I believe I saw something that might have been a 18 contract in the documents yesterday. Would it be your 19 understanding that if there were one, it was produced 20 yesterday? 21 A That is a recent contract. 22 Q Are there other contracts that weren't produced? 23 A Yes. 24 Q Dr. Parks, on page 2 of Exhibit 15, the third 25 paragraph, and I will quote the first three sentences A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 115 1 there, "For years the SFWMD has turned its back on problems 2 caused by EAA drainage. SFWMD has long had the authority 3 to require on-site retention and treatment. DER, which is 4 supposed to regulate SFWMD, has not required SFWMD use its 5 delegated stormwater authority and has refused to require a 6 plan and schedule of compliance for the four SFWMD pumping 7 stations that discharge to the Everglades." 8 Can you tell me what you meant by those 9 statements? 10 A Just exactly what they say. 11 Q When you say four pumping stations, which pumping 12 stations were you referring to? 13 A 5A, 6, 7 and 8. 14 Q On page 3, under the topic, "Cooperation," third 15 sentence, and I quote, "An enforceable Federal Court order 16 can be created that corrects this problem," end quote, can 17 you tell me the basis for that statement? 18 A It is my belief in the system of American 19 justice. 20 Q Have you ever been involved in federal litigation 21 before this case? 22 A No. 23 Q What federal litigation might you have been 24 referring to that gave you the basis for that statement, if 25 any? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 116 1 MS. PONZOLI: Object to the form of the question, 2 I think it is argumentative. 3 THE WITNESS: My faith, is that what you are 4 talking about? Civil rights is a good example. 5 BY MR. GREEN: 6 Q I was wondering if there are other federal cases 7 that you had in mind when you wrote that statement? Are 8 there now? 9 MS. PONZOLI: Asked and answered. 10 BY MR. GREEN: 11 Q Were you -- 12 A Civil rights cases. 13 Q I missed the answer. I didn't realize that. Did 14 anyone from the U. S. Attorney's Office assist you in the 15 preparation of this document? 16 A No. 17 Q Dr. Parks, I am going to show you what has been 18 marked as Exhibit 16, and I will ask you if you can 19 identify it. 20 (Whereupon, Exhibit No. 16 was marked for 21 identification.) 22 BY MR. GREEN: 23 Q The documents contained in that exhibit -- 24 A Well, this is a memo with some attached letters 25 sent by Nathaniel Reed to James Garner and John Wodraska, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 117 1 and the notation on the front of it shows that executive 2 office of the South Florida Water Management District then 3 sent it on to Dick Rogers, who was at that time counsel for 4 the District, and Tony Federico, who is employed by the 5 District. 6 Q Did you identify the second and third pages in 7 the exhibit? 8 A The second and third pages are a copy of a letter 9 from me to Secretary Twachtmann dated October 29, 1990. 10 Q I read the third paragraph, the first sentence in 11 that, quote, "Nearly two years ago, in response to a 12 request from Marjorie Carr to begin permitting proceedings 13 for pumps that discharge into the Everglades, you asked 14 conservationists to wait until the completion of the 15 Everglades SWIM Plan." 16 I questioned you earlier with regard to a letter 17 addressed to Secretary Twachtmann to Ms. Carr, which is 18 contained in Exhibit 10. 19 Is that letter the letter you are referring to in 20 Exhibit 16, that had been sent in two years earlier? 21 A Yes. I believe so. 22 Q You say in this sentence that, again, back to 23 Exhibit 16, the second page, quote, you asked 24 conservationists to "wait until completion of the 25 Everglades SWIM Plan," end quote. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 118 1 How did Secretary Twachtmann ask conservationists 2 to wait? 3 A I am not sure. I think it was, Secretary 4 Twachtmann never answered the letter that Ms. Carr wrote 5 him, and she wrote to the Governor and then I think there 6 was some answer in the mail kind of thing, and he wrote a 7 letter back to Carr, I think that is what he said in 8 there, sort of don't worry about it, we are going to get it 9 under the Everglades SWIM Plan. 10 Q Do you recall whether his response back to Ms. 11 Carr was copied in the production that we had last Friday? 12 A No. 13 Q Dr. Parks, I hand you what has been marked as 14 Exhibit 17 and ask you if you can identify that for me. 15 (Whereupon, Exhibit No. 17 was marked for 16 identification.) 17 THE WITNESS: It is a copy of a letter from me to 18 Secretary Browner dated May 13, 1991. 19 BY MR. GREEN: 20 Q Can you explain what you were trying to get across 21 with the first paragraph on page 1 of Exhibit 17? 22 A You are talking about the first paragraph of the 23 letter? 24 Q Yes, of the message. It says, FAX message to 25 Burkett Neely, and at the bottom, the message, under A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 119 1 conservationist, "Please do not release this letter to the 2 press," and then the next paragraph. Would you read that? 3 A This was sent to many conservationists and the 4 copy you have happens to be one that was, I guess FAXed to 5 Neely. I am kind of trying to figure that out myself. Let 6 me read the letter to Browner. Yes, I remember that. I 7 think Secretary Browner or Governor Chiles, I am not sure 8 which, and possibly both, were at about this time making 9 statements that. I believe it was the Governor, said, you 10 know, we would never accept continuing jurisdiction in 11 federal court in a settlement, and that is what this is 12 addressed to. It is an attempt to convince the DER 13 Secretary that she should support continuing jurisdiction 14 of the federal court in the settlement. 15 Q Did you discuss that issue with Secretary 16 Browner? 17 A How do you mean, discuss? 18 Q Talk. 19 A I may have. 20 Q Do you know if you did, when you might have done 21 that? 22 A No. 23 Q Did you discuss that issue with Governor Chiles? 24 A No. 25 Q Did you discuss it with Allen Milledge? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 120 1 A I don't recall. 2 Q Was Secretary Browner, to your way of thinking, 3 trying to decide whether to accept continuing federal 4 jurisdiction? 5 A I really don't know what was in her mind. 6 Q She probably thought that or you wouldn't have 7 written this letter, is that a fair statement? 8 MS. PONZOLI: Object to the form, whether it is 9 fair or not. 10 BY MR. GREEN: 11 Q Strike the whether it is fair. 12 A My recollection is that it was something I did in 13 response to a public statement by the Governor. I guess -- 14 well, there is lots I don't understand about the law of 15 depositions, but this seems a long way to me from what I 16 have been asked to do as an expert in this case. 17 MS. PONZOLI: Mr. Green, you have had amazing 18 freedom to do whatever you want. I will expect the 19 same courtesy when I do your experts and your clients. 20 All of these people have worked with Everglades issues 21 for a long time, so we can all have a lot of questions 22 about a lot of meetings and a lot of talks with a lot 23 of people and a lot of letters. 24 MR. GREEN: Anything that is legitimately 25 discoverable in these proceedings should be talked A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 121 1 about, I agree. 2 MS. PONZOLI: I am giving you great latitude, 3 there is no question. I think Dr. Parks is rightly 4 complaining that you are going far afield. 5 MR. GREEN: I think these are relevant questions, 6 but I will complete this part of the questions very 7 quickly. 8 BY MR. GREEN: 9 Q Dr. Parks, were you aware when you wrote this 10 letter that various sugar interests were challenging 11 whether Judge Hoeveler had jurisdiction over the 12 proceedings that are the subject of this letter? 13 MS. PONZOLI: Mr. Green, I can't for the life of 14 me see the relevance of that questioning. I am going 15 to object to it completely. 16 THE WITNESS: I don't think this letter has to do 17 with those proceedings or what was being challenged by 18 the sugar. They had to do with continuing jurisdiction 19 and a proposed settlement. 20 BY MR. GREEN: 21 Q One last question, and I think you may have 22 answered this, and if you did, I apologize. 23 The last page of the letter where you say, "I 24 would like to meet with you to better understand your point 25 of view and discuss this," did a meeting take place after A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 122 1 this letter, do you recall, to discuss this issue? 2 A I just don't recall the time sequence or the 3 subject matter of my meetings with the Secretary. 4 Q I did have one last question. On the first page 5 of Exhibit 17, you said, "Please do not release this letter 6 to the press." I just wonder why, do you recall why you 7 said that? 8 A It is a general practice of mine not, to ask 9 people not to release letters that I write to the press. 10 MR. GREEN: This will be Exhibit 18. 11 (Whereupon, Exhibit No. 18 was marked for 12 identification.) 13 BY MR. GREEN: 14 Q Can you identify Exhibit 18 for us, Dr. Parks? 15 A This is a letter from me to Carol Browner, dated 16 June 6, 1991. 17 Q Now, the first sentence of this letter, Exhibit 18 18, says, "Thank you for meeting with us last Friday." 19 Would that have been May 31st, 1991, or 20 thereabouts? 21 A Given the day, it seems reasonable. 22 Q Who met with you, if anyone, other than Secretary 23 Browner? 24 A I think Minerva was there, I think that Charles 25 Lee, Webb, myself. That is all I recall. Dan Thompson may A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 123 1 have been there. 2 Q What was the purpose of the meeting? 3 A To explain to her the views of the 4 conservationists on the State's response to the federal 5 lawsuit. 6 Q What was the State's response to the federal 7 lawsuit at that time, as you understand them? 8 A At which time? 9 Q That you were just referring to, at the meeting on 10 May 31, 1991? 11 A Governor Chiles had just appeared before Judge 12 Hoeveler and indicated that he wished to settle the 13 lawsuit. 14 Q Did you discuss the terms of settlement at that 15 meeting? 16 A I don't know if we -- I would imagine we did. 17 When you say terms of settlement, are you talking about the 18 kind of detail that is in the settlement agreement or what? 19 Q Yes. Were you looking at any draft settlement 20 agreements or position papers or anything like that? 21 A No, no, very, very general stuff. 22 Q Do you recall what issues were discussed in regard 23 to the settlement? 24 A No. 25 Q In the second paragraph, and I will paraphrase to A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 124 1 speed things up, and please correct me if I mischaracterize 2 it, with no genuine opportunity for review and comment, the 3 Department and District filed motions for a 14-month stay 4 and an offer of judgment we found very inadequate. 5 When you said no genuine opportunity, does that 6 mean there was no opportunity at all given, or an 7 inadequate opportunity? What did you mean there? 8 A I am not sure. 9 Q In the next sentence, you say, "It appears to me 10 that this was a consequence of following the advice of the 11 same individuals who helped maintain the 33-month logjam on 12 liability that the Governor finally broke," period, end 13 quote. What individuals were you referring to there? 14 A Management of the Water Management District. 15 Q Who in particular? 16 A Whoever gave the advice prior to that time. 17 Q Did you have anybody in mind when you wrote that 18 sentence? 19 A I forget when Wodraska left. 20 Q So Woody Wodraska is who you might have in mind? 21 A He was there. 22 Q Anyone else? 23 A I am not sure. 24 Q On page 2 of Exhibit 18, you say in the middle of 25 that paragraph, quote, "By acting boldly in settlement A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 125 1 concessions, you will assure the future of the 2 Everglades." 3 What did you have in mind when you wrote that? 4 A I am not sure. If you will read the whole 5 paragraph, it expresses concern that settlement might 6 simply slow down the discharge into the Everglades, but 7 would not completely remedy the problems, and I believe 8 that is what I meant there. 9 Q Do you know what settlement concessions were on 10 the table at that time DER was evaluating? 11 MS. PONZOLI: Mr. Green, I understand your theory 12 of this case, but I have to tell you, the United 13 States, in addition to other intervenors and I believe 14 the respondents don't believe the settlement is 15 relevant to these proceedings, and I think to spend 16 many, many hours in depositions going through these 17 issues only heightens the need for the hearing officer 18 to eliminate the issue from this challenged litigation. 19 It has no relevance here. I am not going to 20 instruct him not to answer, but this is all irrelevant. 21 MR. GREEN: I understand your position. I don't 22 think I will spend many hours today doing this. Of 23 course, we believe it is relevant. 24 THE WITNESS: Could you repeat the question, 25 please? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 126 1 BY MR. GREEN: 2 Q I asked what settlement concessions DER was 3 considering at the time of the meeting that this letter 4 refers to? 5 A Maybe I can save some time on this many hours. 6 MS. PONZOLI: No, you may answer his questions. I 7 am sorry, Dr. Parks, you don't help him. You answer 8 his questions. 9 THE WITNESS: I was going to say I have no 10 knowledge of what settlement concessions were being 11 offered and negotiated. 12 BY MR. GREEN: 13 Q You just didn't want the State to settle on weak 14 conditions, basically? 15 A Right. 16 Q Environmentally weak? 17 A Conditions that would fail to protect the, fail to 18 meet water quality standards in the Everglades and protect 19 it on into the future. 20 Q Now, you say in the last sentence in the top 21 paragraph that, "I hope that you will give conservationists 22 an adequate opportunity to review and comment on the 23 proposed settlement," end quote. 24 Did Secretary Browner do that? 25 A No. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 127 1 Q Did she give you any opportunity? 2 A No. 3 MR. GREEN: Off the record. 4 (Brief recess.) 5 MR. GREEN: This will be No. 19. 6 (Whereupon, Exhibit No. 19 was marked for 7 identification.) 8 BY MR. GREEN: 9 Q Dr. Parks, would you identify Exhibit 19? 10 A Yes, this is a letter written by me to Secretary 11 Browner. 12 Q What was the purpose of that letter? 13 A To try to persuade her not to grandfather pump 14 stations S-5A and S-6 in determining the OFW requirements 15 for Loxahatchee. 16 Q Did she follow your advice? 17 A No. 18 Q In the middle paragraph on page 1, I will 19 paraphrase, petition to the Environmental Regulation 20 Commission is likely. What did you mean there, petition 21 for what? 22 A To have the ERC set a numerical value for 23 nutrients. 24 Q Do you have an opinion on whether the ERC will set 25 numerical values for nutrients for the Everglades A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 128 1 Protection Area at some future date? 2 A No. 3 Q Do you have an opinion on whether they should do 4 such? 5 A No. 6 Q Do you care? 7 A Yes. 8 Q At the bottom of page 1, on Exhibit 19, you refer 9 to, and I quote, "your staff has perpetuated an error 10 created by the last Secretary, whose refusal to protect the 11 Everglades took the form of insisting that he had no legal 12 authority to regulate the S-5A and S-6 pumping stations 13 under Chapter 403. In this, he was supported by his 14 General Counsel, who is apparently rendering you the same 15 advice," end quote. 16 Who was the last Secretary you were referring to 17 there? 18 A I don't think you quoted that correctly. You made 19 two mistakes. 20 Q Please correct me. Let's let the exhibit speak 21 for itself. What Secretary were you referring to? 22 A Twachtmann. 23 Q And which General Counsel? 24 A Thompson. 25 Q Do you know if Mr. Thompson changed his legal A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 129 1 interpretation after you sent this letter? 2 A Well, this is speculation here. 3 Q What was the basis of the speculation? 4 A That he was a very close adviser to both Secretary 5 Twachtmann and Secretary Browner. 6 Q On page 2, next to the top paragraph, you say, and 7 I quote, "Conservationists see no benefit in giving up a 8 definite level of OFW protection for the uncertain results 9 of some future determination of the Class III imbalance 10 level." 11 Would you please explain the basis for that 12 statement? 13 A Well, the Class III imbalance level had not been 14 determined at that time, and the OFW level was specified by 15 rule. 16 Q Was that the definite level of OFW protection you 17 are referring to here? 18 A As specified by the rule. 19 Q What is that in this case? 20 A That is no lowering of ambient water quality below 21 the value established for the baseline year. 22 Q In the third from the top paragraph, you stated 23 that, quote, "If you would use your authority as Secretary 24 to determine that pumping stations S-5A and S-6 did require 25 Department permits in March, 1979, we could move away from A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 130 1 this impasse and toward more definite Everglades 2 protection. Defining OFW phosphorus levels would be a 3 relatively direct question of estimating unpolluted natural 4 background in the Loxahatchee." 5 Do you still agree with those statements? 6 A Yes. 7 Q Back to the second paragraph on page 2 of this 8 Exhibit 19, to your knowledge, has there been a 9 determination of the Class III imbalance level -- 10 A No. 11 Q -- for the Everglades Protection Areas? 12 A No. 13 MR. GREEN: This will be Exhibit 20. 14 (Whereupon, Exhibit No. 20 was marked for 15 identification.) 16 BY MR. GREEN: 17 Q Please identify Exhibit 20, Dr. Parks. 18 A It is a copy of a FAX to, from me to Dr. Mike 19 Soukup, S-o-u-k-u-p. 20 Q What was the purpose of this transmission? 21 A It looks like these were suggestions drafted by me 22 for Soukup to consider as things to be included in the 23 settlement. 24 Q Were they included? 25 A No. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 131 1 Q Do you know why they weren't? 2 A No. 3 MR. GREEN: This is Exhibit 21. 4 (Whereupon, Exhibit No. 21 was marked for 5 identification.) 6 BY MR. GREEN: 7 Q Could you identify that, Dr. Parks? 8 A This is a note to Pete Rhodes, from me, it looks 9 like it is dated March 20, 1992. 10 Q What was the purpose of this note? 11 A Pete Rhodes had solicited ideas about how SAGE 12 should operate and how it should present its views to the 13 board, and I had had some -- I had had some discussions 14 with Pete about how we could avoid what we needed to do to 15 avoid politicizing SAGE. 16 Q In the third paragraph you state, and I quote, "I 17 believe that SAGE should start with the TOC position and 18 describe its differences, if any, in scientific terms. If 19 there are differences, they should be put in writing and 20 subject to some kind of peer review within SAGE." 21 Did you mean by that that the TOC position should 22 be presumed by SAGE to be correct? 23 A No. 24 Q What did you mean? 25 A That in its deliberation of subjects that were A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 132 1 also of concern to the TOC, that it began with the TOC 2 position as a point of departure so that differences 3 between SAGE and the TOC, if any, would be understandable, 4 as opposed to SAGE just shooting off on its own and then 5 considering what the TOC had done at so much later time. 6 Q Well, in the next to the last paragraph, the last 7 two sentences where you say, quote, "To pose a question to 8 SAGE about departure from the settlement agreement seems to 9 me inappropriate. The TOC should formally examine those 10 questions first," did you mean to imply that the TOC should 11 screen questions before they were reviewed by SAGE if they 12 related to departures from the settlement agreement? 13 MS. PONZOLI: Asked and answered. 14 THE WITNESS: Would you repeat your question, 15 please? 16 MR. GREEN: Would you repeat the question, Jerry? 17 (Whereupon, the court reporter read the pending 18 question.) 19 THE WITNESS: "Screen questions," what do you 20 mean, "screen questions"? 21 BY MR. GREEN: 22 Q Examine them first. 23 A If they are questions about departure from the 24 settlement agreement, yes. 25 Q Would that include any consideration of A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 133 1 alternative treatment devices to the STAs? 2 MR. GREEN: Read that back. 3 (Whereupon, the court reporter read the pending 4 question.) 5 MS. PONZOLI: I am going to object, Mr. Green. I 6 don't think you are trying to be tricky, but I think 7 there is some confusion -- 8 MR. GREEN: Let me try -- 9 MS. PONZOLI: -- that is moving through this whole 10 last series of questions, I really think there is. 11 BY MR. GREEN: 12 Q Let me try to rephrase that question. 13 Would you consider alternatives to the stormwater 14 treatment areas to be departures from the settlement 15 agreement? 16 MS. PONZOLI: I am going to object to the form of 17 that question. I just, Dr. Parks has not been offered 18 for any of this, and you are going to use him as a 19 federal expert, who somehow answered a question on what 20 the settlement agreement meant. Dr. Parks has had, from 21 his testimony here, obviously, the barest minimum of 22 exposure to the settlement agreement and negotiation of 23 it and isn't offered as an expert on it by any means in 24 any way, and so would be a departure from it and is not 25 an area that Dr. Parks should be offering testimony on, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 134 1 Mr. Green. 2 MR. GREEN: The purpose of the question is to 3 understand as a member of SAGE what Dr. Parks believes 4 is SAGE's ability to consider departures from the 5 settlement agreement without the prior approval of the 6 TOC, and I think that is very relevant. 7 MS. PONZOLI: I think he answered that three 8 questions ago. That is why I think there is confusion 9 in moving through the questions. I think he answered 10 the interrelationship as he saw it three questions ago. 11 MR. GREEN: Let's go back three questions, and 12 read the question and answer, please. 13 (Whereupon, the court reporter read the requested 14 portion of the record.) 15 MS. PONZOLI: Maybe four, if you go back, I will 16 tell you where it is. 17 (Whereupon, the court reporter read the requested 18 portion of the record.) 19 MR. GREEN: Let's go to the last question I 20 asked. 21 (Whereupon, the court reporter read the pending 22 question.) 23 THE WITNESS: No. 24 BY MR. GREEN: 25 Q This will be Exhibit 22, Dr. Parks. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 135 1 (Whereupon, Exhibit No. 22 was marked for 2 identification.) 3 BY MR. GREEN: 4 Q Would you identify it for us? 5 For the record I would like to say that the first 6 page appears to be essentially illegible. 7 My question would still be, can you identify this 8 exhibit? 9 A This is a copy of some educational materials I 10 prepared, entitled, "Why the DER Permit is Important." 11 Q Which DER permit are you referring to here, Dr. 12 Parks? 13 A The DER permit to the South Florida Water 14 Management District for pumping stations 5A, 6, 7 and 8. 15 Q Would that be the permit that is envisioned by the 16 SWIM Plan that we have been discussing? 17 A Part of it. 18 Q Now, if we could go to page 3 of this Exhibit 22, 19 the next to the bottom paragraph, can you tell us what you 20 meant by the entry that reads, quote, "The DER permit is 21 the only way to incorporate settlement agreement 22 performance standards into DER's interpretation of its own 23 rules"? 24 A I don't recall exactly what was in my mind when I 25 wrote that. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 136 1 Q Do you recall what performance standards you were 2 referring to? 3 A The interim and long-term performance standards. 4 Q For? 5 A Discharges into Loxahatchee and through the S-12s. 6 Q Can you tell us what DER interpretation you had in 7 mind? 8 A OFW, and, I am really speculating, in my opinion, 9 but OFW and the nutrient standard, I guess. 10 Q If you could turn to the next page, which is the 11 page 4 of this exhibit from the front, the second paragraph 12 begins with, quote, "The first requirement of any permit is 13 that its legal authority be explicitly stated, because it 14 defines and limits performance requirements, provisions for 15 variance, et cetera." 16 Dr. Parks, do you have an opinion with regard to 17 whether variances might be available for EAA discharges 18 into the Everglades Protection Areas? 19 A No. 20 Q If you could go one more page, please, onto page 5 21 in that same Exhibit 22, the bottom paragraph, it isn't 22 highly legible, but I can read mine, and I will quote it: 23 "As a signatory, the present State administration has a 24 moral obligation to interpret agency rules in accordance 25 with the settlement agreement," dot dot. "This is the crux A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 137 1 of most disputes about specific requirements. A future 2 administration may not feel this way." 3 Can you tell me what you meant by a moral 4 obligation? 5 A They signed, they signed an agreement that was 6 entered as an order and they agreed that that would be 7 their starting position in State proceedings. That 8 settlement agreement covers a lot of ground, but it isn't 9 the same thing as a permit in the sense of interpreting 10 agency rules. 11 Q Do you believe that moral obligation would hold 12 even if the settlement agreement interpreted agency rules 13 in a way that deviated from past practice? 14 MS. PONZOLI: Object to the form. 15 THE WITNESS: That is pretty hypothetical. Could 16 you give me a for-instance? 17 BY MR. GREEN: 18 Q If the settlement agreement interpreted the OFW 19 rules in a way that was inconsistent with prior agency 20 practice, would you believe that DER is nevertheless 21 obliged to go along with the settlement agreement 22 interpretation? 23 A Well, two aspects of that. DER has said publicly 24 that they went to great pains to ensure that the settlement 25 agreement was not in conflict with their rules and A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 138 1 regulations, and secondly, if that were the case, the 2 settlement agreement provides for alterations based on the 3 outcome of a DOAH hearing, so I don't see that that is a 4 problem. 5 Q I am not asking you whether it is a problem, just 6 whether -- I would like to ask you to answer the question I 7 asked as I asked it, if you would. 8 A I think it is a hypothetical that couldn't occur. 9 Q Well, just, I think -- 10 MS. PONZOLI: Mr. Green, he doesn't have to give 11 you a yes or no. I think he can say whether he can 12 answer it or not. 13 MR. GREEN: I don't believe his answer was 14 responsive and I would ask him to consider trying one 15 more time. If you would read the question? 16 MS. PONZOLI: Let's start with the question again 17 and the answer. Just start with the question and read 18 straight through, please. 19 (Whereupon, the court reporter read the requested 20 portion of the record.) 21 MS. PONZOLI: I have a continuing objection to the 22 form. 23 MR. GREEN: You didn't object to the form. 24 MS. PONZOLI: I am going to object to it anyway. 25 MR. GREEN: I would say you waived. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 139 1 BY MR. GREEN: 2 Q But in any event, I would ask that you answer yes 3 or no. 4 A I am not sure what the legal import of past 5 agency practice is in this context. 6 Q I am not asking you that, either. 7 MS. PONZOLI: Mr. Green, he has tried twice. I 8 don't think you can force him to answer a question he 9 is incapable of answering. 10 THE WITNESS: Maybe I didn't understand it. 11 MR. GREEN: Would you read it one more time? 12 THE WITNESS: You said, if the settlement 13 agreement was in conflict with past agency practice 14 would DER be obliged to follow the settlement 15 agreement, and my answer was the one I just gave, that 16 I don't understand the legal import of past agency 17 practice in this context. 18 MS. PONZOLI: I don't think you heard the 19 question. 20 THE WITNESS: Maybe you could restate it. 21 MR. GREEN: Let me ask you to read it one more 22 time, Jerry. 23 (Whereupon, the court reporter read the pending 24 question.) 25 THE WITNESS: I don't know the answer to that. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 140 1 MR. GREEN: This will be Exhibit 23. 2 (Whereupon, Exhibit No. 23 was marked for 3 identification.) 4 BY MR. GREEN: 5 Q Dr. Parks, could you identify Exhibit 23? 6 A This is a report prepared by me for Reedy Creek 7 Improvement District. 8 Q Can you tell me what it was in connection with? 9 MS. PONZOLI: Dr. Parks, do you need to review 10 this? 11 BY MR. GREEN: 12 Q Take your time. 13 A Do I remember what this is about? Yes. 14 Q What is it about? 15 A A utility to the east of Reedy Creek Improvement 16 District wished to discharge into the Bonnett Creek Canal 17 which borders the Reedy Creek Improvement District, and the 18 District didn't want that stuff in their canal because they 19 thought it would reduce their ability to meet water quality 20 standards with their own discharges. 21 Q Do you recall which water quality standards they 22 were concerned about? 23 MS. PONZOLI: You can review it, Dr. Parks. 24 THE WITNESS: No, but -- no, I don't. They were 25 discharging stormwater and treated effluent into Reedy A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 141 1 Creek, and this canal was a tributary of Reedy Creek. 2 BY MR. GREEN: 3 Q Did the discharge involve nutrients as well as 4 stormwater? 5 A Which discharge? 6 Q I am sorry? 7 A This discharge or -- 8 Q That that is the subject of this report. 9 A Yes, it was a sewage treatment plant. 10 Q And the report, did it also deal with site- 11 specific alternative criteria -- 12 A Yes. 13 Q -- for dissolved oxygen? 14 A Yes. 15 (Whereupon, Exhibit No. 24 was marked for 16 identification.) 17 Q Dr. Parks, can you identify what has been marked 18 as Exhibit 24? 19 A This is a copy of draft language for the LOTAC 20 final report prepared by me. 21 Q Thank you. 22 Dr. Parks, on page 7 of the exhibit, which is 23 page 6 of the draft report, the bottom paragraph, you 24 discuss the work of David Swift and Steve Davis, showing 25 ecological impacts when total phosphorus and drainage water A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 142 1 is greater than 30 ppb in Everglades marshes. Do you know 2 if there have been any followup studies by either of those 3 individuals with regard to that topic? 4 A No. 5 Q Do you know if any other individuals have studied 6 ecological impacts in the Everglades marsh systems as a 7 function of phosphorus concentration? 8 A I understand that the Everglades Protection 9 District has given a grant to Dr. Curtis Richardson, that he 10 is doing some kind of dosing studies, but I don't know the 11 details. 12 Q Can you recall any others that have gone on since 13 you drafted this report? 14 A Other studies? 15 Q Studies of that type. 16 A Of the type done by Swift? 17 Q Yes. 18 A No. 19 Q Or Steve Davis? 20 A No. 21 Q Thank you. 22 (Whereupon, Exhibit No. 25 was marked for 23 identification.) 24 BY MR. GREEN: 25 Q I show you what we have marked as Exhibit 25, Dr. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 143 1 Parks. Can you flip through that exhibit and sort of 2 identify it for us, please? 3 A In March of 1979 the ERC adopted major revisions 4 to the state water quality standards, in which I was 5 heavily involved, and following that, we prepared training 6 materials for the DER staff, field staff principally, to 7 use in interpreting the new regulations, and this is a 8 section of those training materials prepared by me. 9 Q Now, on the first page of Exhibit 25, second 10 paragraph, it says, "The subjects discussed are the current 11 regulations regarding stormwater and the standards for 12 discharge of toxic materials into surface waters." 13 A Okay. 14 Q Would you categorize the discharges from the EAA 15 into the EPA as stormwater discharges? 16 A The discharges from the EAA into the Everglades 17 Protection District -- may I see a copy of Chapter 373, the 18 stormwater, the part that defines stormwater? 19 (Brief recess.) 20 MR. GREEN: Would you read back the last question? 21 (Whereupon, the court reporter read the pending 22 question.) 23 THE WITNESS: Yes. 24 MR. GREEN: Thank you. Let me mark this. 25 (Whereupon, Exhibit No. 26 was marked for A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 144 1 identification.) 2 BY MR. GREEN: 3 Q Dr. Parks, can you identify what we have marked as 4 Exhibit 26? 5 A This is a memorandum I wrote to Secretary Varn on 6 May 30, 1979, concerning delegation of DER stormwater 7 authority to the water management districts and concerning 8 the procedure by which the Department would regulate 9 discharges such as the EAA pumping stations. 10 Q How were those pumping stations regulated at the 11 time of this memorandum, if at all? 12 A They were, they came under the Department's 13 Chapter 403 jurisdiction. 14 Q Did the Department require permits for those 15 structures back in 1979? 16 A It was in the process of doing that for the 17 discharges into Lake Okeechobee and for various discharges 18 on the upper St. Johns, and I believe that some work had 19 begun on discharges into Lake Apopka at that time. 20 Q The examples you just gave were discharges into 21 lakes or streams or rivers? 22 A Yes. 23 Q Was the Department 00 isn't it true that the 24 Department wasn't requiring permits for stormwater 25 discharges to wetlands back in 1979? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 145 1 A What time in 1979? 2 Q When this memorandum was written. 3 A Well, let's see, March, April, May, the rule was 4 adopted, the stormwater rule was adopted in late March. 5 Q All right. 6 A And they were just getting started. 7 Q So they had not required permitting prior to that 8 time, is that what you are saying? 9 A For stormwater discharges into wetlands, not 10 until they had a rule. 11 Q When did they start requiring permits for 12 stormwater discharges to wetlands? 13 A Well, I don't know. 14 Q Well -- 15 A But it wasn't before they adopted the rule. 16 Q Isn't it true that DER didn't require permits for 17 the pump structures discharging into the water conservation 18 areas or ask for permit applications until 1989? 19 A For which pumps? 20 Q S-5A, S-6, S-7 and S-8. 21 A I believe that is true. 22 Q And, in fact, at the time your memorandum was 23 written here that is marked as Exhibit 26, you were 24 recommending that the Department not delegate to the water 25 management districts the permitting of those facilities, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 146 1 but that they require DER permits under Chapter 403? Am I 2 right about that? 3 A I was recommending that the facilities operated by 4 a water management district not be permitted by that water 5 management district, but instead be permitted by DER under 6 Chapter 403. 7 Q But back then the focus was really on discharges 8 into Lake Okeechobee, wasn't it? 9 MS. PONZOLI: Object to the form. 10 THE WITNESS: Well, the agency had limited 11 resources and we were concentrating on Lake Okeechobee. 12 BY MR. GREEN: 13 Q Was Jake Varn the Secretary of DER at the time 14 your memorandum was written? 15 A Yes, I believe he was. He wasn't there when he 16 wasn't Secretary. 17 Q Then I am really just kind of focusing on your 18 recommendation in paragraph 4 of this page 1 of Exhibit 26 19 where you recommended that the Department not delegate to 20 the water management district the authority to permit their 21 own structures, sort of paraphrasing them. Did Secretary 22 Varn follow your recommendation? 23 A Yes. 24 Q So what happened to that issue after that? 25 A Well, I left the Department in November of 1979. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 147 1 I have forgotten where that, I guess that concept was 2 encoded into the delegation agreements with the districts 3 that they weren't going to permit their own activities. 4 Did your question just refer to delegation? 5 Q I think so, yes. Would you read the question? 6 (Whereupon, the court reporter read the requested 7 portion of the record.) 8 THE WITNESS: Did I answer your question? 9 (Discussion off the record.) 10 BY MR. GREEN: 11 Q Dr. Parks, back to the memorandum, Exhibit 26, 12 page 1, we talked earlier in the day about Chapter 17-3, 13 Florida Administrative Code, and about mixing zones and 14 SSACs and such, and, in fact, we have an exhibit that is 15 Chapter 17-3, Florida Administrative Code, Exhibit 4 that 16 we were referring to, and you remember that exhibit talked 17 about Department rules adopted on March 1, 1979, yes, you 18 remember? 19 A Yes. 20 Q Are those the same rules that you were sending out 21 memoranda to the districts explaining how the rules were to 22 be interpreted? Was that part of your responsibility at 23 that time at DER? 24 A Yes. 25 Q Now -- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 148 1 A That was my responsibility prior to the adoption 2 of the revisions, also. 3 Q During that rulemaking that culminated in the 4 rules that were adopted March of 1979, what is your 5 understanding with regard to whether the standards being 6 adopted were to be applied to wetlands as opposed to open 7 water bodies like rivers, lakes, streams, bays? 8 A It applied to all waters of the State, and 9 therefore applied to wetlands. 10 Q Were they applied in practice to wetlands at that 11 time? 12 MS. PONZOLI: Object to the form; it has been 13 asked and answered. 14 MR. GREEN: I think he said they applied. I am 15 asking him whether the practice was to impose them. 16 THE WITNESS: I wasn't in Permitting. 17 MS. PONZOLI: That was the same question you asked 18 a while ago. 19 THE WITNESS: So you are asking -- are you asking 20 me -- 21 MS. PONZOLI: Don't frame the question for him, 22 Dr. Parks. Let him frame it; you answer it. 23 BY MR. GREEN: 24 Q Do you have an opinion on whether the rules 25 adopted on March 1, 1979, were intended by the Department A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 149 1 of Environmental Regulation to apply to wetlands? 2 A Oh, yes. 3 Q What is the basis of your opinion? 4 A They apply to waters of the State, and many, many 5 wetlands are waters of the State, and there was a stated 6 intention to protect wetlands. 7 Q Where was that stated? 8 A Oh, all kinds of sort of general statements of the 9 Department. 10 Q Were these statements in writing? 11 A Well, I think they must have been. Everybody 12 there was interested in protecting the wetlands. 13 Q So they might have been in the records of the 14 rulemaking? 15 A Probably, probably were statements about wetlands. 16 Q Do you recall any specific statements of that type 17 in the rulemaking? 18 A No. 19 Q My second question is, before you left the 20 Department, are you aware of any instances where the 21 Department applied these standards that were adopted on 22 March 1, 1979, to wetlands? 23 A For example, there are 90,000 acres of wetlands 24 within the dike of Lake Okeechobee which were to be 25 protected by the TOP and by what was presumed to be the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 150 1 subsequent operation permit for the structures discharging 2 into Lake Okeechobee. 3 Q Any other examples? 4 A None come to mind. 5 Q I am sorry? 6 A None come to mind. 7 MR. GREEN: This is Exhibit 27. 8 (Whereupon, Exhibit No. 27 was marked for 9 identification.) 10 BY MR. GREEN: 11 Q Dr. Parks, can you identify the exhibit which has 12 been marked as No. 27? 13 A This is a memorandum from me regarding mixing 14 zones dated May 3, 1979. 15 What do you say we take a break? I need a break. 16 MR. GREEN: Sure, five minutes, 10 minutes. 17 MS. PONZOLI: 10 minutes. 18 (Brief recess.) 19 BY MR. GREEN: 20 Q Dr. Parks, could you find your copy of Exhibit 21 19? 22 A Yes. 23 Q Just one question and I will try to do it in one 24 question. Page 2 of that exhibit -- 25 A 19? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 151 1 Q Yes, the second full paragraph, I would like to 2 ask you to read to yourself the first couple of sentences 3 and then I want to ask you a question. I realize we talked 4 about this a long time ago. 5 A This is the paragraph that begins, "If you would 6 use your authority"? 7 Q Yes. 8 A I have read it. 9 Q Now, my question is, in the first sentence, you 10 make the point that if Secretary Browner determined that 11 Department permits were required in March, 1979, for S-5 12 and S-6, then OFW phosphorus levels would be a question of 13 estimating unpolluted natural background in the 14 Loxahatchee. 15 My question is, why is that -- what is the 16 relevance of whether permits should have been had in March, 17 1979? 18 A According to the rule for outstanding Florida 19 waters, if those sources of pollution that required a 20 permit, that had a permit at the time of adoption or had a 21 valid application pending at the time of adoption of the 22 OFW rule, their impacts on water quality would be 23 incorporated into the determination of ambient for the 24 purpose of determining no lowering of ambient quality, 25 which is the test for permitting an activity that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 152 1 discharges into an OFW. 2 Q So if they did not have a permit or permit 3 application pending, what would the result be? 4 MS. PONZOLI: Would you read the question back 5 again? 6 (Whereupon, the court reporter read the pending 7 question.) 8 BY MR. GREEN: 9 Q Do you understand? 10 A The result would be that their effect on ambient 11 water quality could not be included in a determination of 12 background for the purpose of determining whether or not 13 ambient water quality was lowered by the activity. 14 Q We have talked a lot today about the term 15 "grandfathered" or "non-grandfathering." Can you explain 16 whether that is, what you understand us to mean when we say 17 grandfathering, that is when you had a permit application 18 pending or had a permit on March, 1979, you, quote, were 19 "grandfathered" with regard to your impacts at that time, 20 but if you did not have a permit, if the source did not 21 have a permit, the permit application pending, then its 22 impacts at that time would not be allowed under the OFW 23 rule? 24 A Let me say what I meant by grandfathering. 25 Q Please. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 153 1 A If a stationary source of pollution requiring a 2 Department permit had no permit, or had no permit pending, 3 its effect on ambient water quality for the purpose of the 4 OFW rule could not be included in that determination of 5 ambient water quality; whereas conversely, if it had a 6 permit or had a valid permit pending at the time of 7 adoption of the OFW rule, its impact on ambient water 8 quality could be considered, and then that latter case 9 where it had a permit or had a permit application pending 10 is the way I have used the term "grandfathering." 11 Q That is fine. In cases where the Department had 12 not yet decided whether to require permits of sources that 13 were actually discharging in March, 1979, do you have an 14 opinion on whether those sources were grandfathered or not, 15 as you have just explained the term? 16 A Yes. 17 Q What is that opinion? 18 A They are not. 19 Q They are not grandfathered, is that right? 20 A It really has to do with what the rule says and 21 not what the, not whether the Department decided to do 22 something about the permit or not. 23 (Whereupon, Exhibit No. 28 was marked for 24 identification.) 25 BY MR. GREEN: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 154 1 Q Now, I would like to give you what I have marked 2 as Exhibit 28 and ask you if you can identify that. 3 A I can identify it. It is a memorandum written by 4 me to Alex Alexander, formerly known as Alex Senkevich. 5 Q What was the purpose of the memorandum? 6 A This was written shortly after the adoption of 7 major revisions to the water quality rules in March of 8 1979, and the field staff were raising questions about what 9 the rule changes meant, and these were answers to those 10 questions. 11 Q Did your responsibilities with the Department at 12 that time include advising the districts concerning the 13 meaning of new rules and answering questions of the type 14 that we have been describing? 15 A Technical interpretation of scientific 16 interpretation of the rules. 17 Q Well, let's look at the first page of Exhibit 28, 18 if we could. You state in the first paragraph there that 19 you have not had an opportunity to review the answers with 20 legal staff and with others who may have technical 21 objections. 22 Did you, do you recall whether you did confer with 23 legal staff or others on those memorandum? 24 A I see that there is a seven-page memorandum by me, 25 and that there is also attached another memorandum by A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 155 1 Landon Ross to Jim Brindell, so I didn't totally identify 2 it in the first case. 3 Q Okay. 4 A What was your question? 5 Q My question was, back again to the first page of 6 Exhibit 28, the first paragraph, I am paraphrasing, but you 7 are basically saying to the addressees that, attached are 8 your responses, but you have not had an opportunity to 9 review them with legal staff or others who may have 10 technical objections? 11 A Opinions, it says. 12 Q You're right. Did you receive any feedback that 13 indicated any disagreement from the legal staff or others 14 with these memos? 15 A I don't recall any. 16 Q If you had received that, would that have been 17 included in the production yesterday? 18 A I don't know the answer to that. 19 Q Okay. 20 A I, myself, don't have copies of that old DER 21 stuff. 22 MS. PONZOLI: Mr. Green, he produced everything 23 with the exception of what we told you. You have his 24 documents. 25 MR. GREEN: I am not questioning that, Ms. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 156 1 Ponzoli. I have more than I want. 2 THE WITNESS: Let me say that another way. The 3 copies of DER stuff that I had are those that you were 4 provided, so if I had it, you have got it, but if there 5 is -- there may be something else at DER. 6 BY MR. GREEN: 7 Q Now, you say on the bottom of page 1 on Exhibit 28 8 that, "Contrary to an often expressed belief, the questions 9 of how these rules were to be implemented by the field 10 staff was carefully considered by the Tallahassee group who 11 worked on them." 12 Who was in that Tallahassee group that you are 13 referencing here? 14 A Vicki Tschinkel, Landon Ross, Chuck Littlejohn, 15 Tim Stuart, Bill White -- 16 Q You have a good memory, Dr. Parks. 17 A I am sure there were others. 18 Q Was Bill White an attorney back then? 19 A Yes. 20 Q Did he handle the rulemaking that -- or was he 21 responsible for providing the Department with legal advice 22 with regard to the rulemaking that culminated in rules that 23 were adopted on March 1, 1979? 24 A No, there were several attorneys involved. He was 25 Assistant General Counsel and did a lot of work on the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 157 1 drafting. 2 Q I would like to ask you to turn to page 5, at 3 least at the top it says page 5, okay? 4 A Okay. 5 Q In the middle of the page there is an answer to a 6 question, and I would like to ask you to read beginning 7 with the second sentence of the answer, read the second and 8 third sentence, and I would like to ask you a question 9 about that. Read it out loud, please. 10 A "The OFW provisions apply only to proposed new 11 discharges and not to existing discharges or sources of 12 pollution whether or not the existing sources of pollution 13 have DER permits." 14 Q Please continue with the next sentence. 15 A "The reason for this is that the existing sources 16 of pollution are presently determining the ambient water in 17 the OFW and cannot therefore result in a lowering of that 18 quality. Since --" do you want me to go on? 19 "Since equitable abatement applies to existing 20 sources, it does not apply to OFW. Any request by 21 applicants to utilize the equitable abatement provisions of 22 the rule should be routed to the Division Director." 23 Q Do you agree with your statement in sentences 2 24 and 3 in that answer? 25 A Definitely not. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 158 1 Q Why not? 2 A I think that the OFW rule is pretty clear on the 3 treatment of existing sources with respect to whether or 4 not their impact goes into the determination of ambient 5 quality, and the rule itself should be relied on and not 6 something I thought in April of 1979. 7 Q Did you ever retract this advice to the 8 District? 9 A I don't know. 10 Q Can you think of any instance where the District 11 has applied the OFW rule in a way that is inconsistent with 12 the advice you gave them in this paragraph? 13 A I assume that they have relied on the rule and not 14 on this memorandum, and therefore didn't make the mistake 15 of following the advice of this memorandum. 16 Q Can you point to me what part of the rule you 17 believe they would have been relying on that is somehow 18 different from this advice? 17-4.242, I believe. 19 MS. PONZOLI: I object to the form. I don't think 20 Dr. Parks knows what they have been relying on. If he 21 does, that is fine, but I am not, your question assumes 22 he knows. 23 MR. GREEN: I am asking him what part of the rule 24 he believes is inconsistent with this statement in 25 Exhibit 28 that we have been talking about. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 159 1 MS. PONZOLI: So that is the question now, what 2 part of the rule is inconsistent with the statement. 3 BY MR. GREEN: 4 Q How is the rule, 17-4.242 -- 5 A What number is that, again, 11? 6 MR. PERKO: Exhibit 5. 7 MS. PONZOLI: Which page? 8 BY MR. GREEN: 9 Q Let me back up, Dr. Parks. My understanding of 10 your answer was you disagreed with the advice you gave in 11 1979 in Exhibit 28 because you thought it was inconsistent 12 with the rule. 13 Can you point to me in Exhibit 5 what you had in 14 mind when you made that statement to that effect? 15 A I will when I find it. 16 Q Sure, take your time. 17 A Bill White wrote this. 18 Q You say Bill White wrote this rule that we are 19 talking about? 20 A Yes. 21 Q Was that the same Bill White that was a member of 22 the Tallahassee group that we discussed with regard to 23 Exhibit 28? 24 A Yes. He is now a circuit judge. 25 Q Obviously qualified. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 160 1 A The memorandum suggests that it doesn't matter 2 whether or not a source had a Department permit if it 3 existed at the time the OFW was designated, but the rule 4 itself, and this was the rule that was adopted then -- the 5 memorandum, after all, was written just a few days after 6 the adoption of the rule -- the rule itself says, and this 7 is 17-4.242(2)(a), and (a) says, it says you cannot get a 8 permit for a discharge into, within an OFW, unless the 9 applicant affirmatively, alone or in combination with other 10 stationary installations, unless the applicant 11 affirmatively demonstrates, and 1 refers to power plants 12 and then we go to 2, "that the proposed activity is clearly 13 in the public interest and either, A, it has a permit on or 14 an application on the effective date of the designation, or 15 it will not lower existing ambient water quality as a 16 result, except for a temporary basis. 17 Q Dr. Parks, you were just reading from Rule 18 17-4.242(2)(a), F.A.C. Isn't it true that (2)(a), in the 19 second line, on page 5 of Exhibit 5, relates to proposed 20 activities or discharges? 21 A The proposed activity or a discharge. 22 Q Is it your interpretation that the "proposed" does 23 not modify the word "discharge," basically? 24 A Well, it is certainly a possible interpretation. 25 Q Do you know of any official interpretation of the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 161 1 Department that takes that position? 2 A I am not familiar with all of the, with everything 3 the Department has done. 4 Q I am just asking you if you know of one instance 5 where the Department has taken that position? 6 A No. 7 Q Dr. Parks, if you could refer to Exhibit 26, which 8 we discussed earlier, and I apologize, it is a composite we 9 found in the files, so I am not sure you will have an easy 10 time finding my page 7, there is a page 7 which is roughly 11 10 pages from the end, and this is a memorandum that you 12 indicated you had written earlier and forwarded by 13 memorandum of May 30, 1979. 14 A This is hopeless. What page? 15 Q Page 7 if you find it, it is page 7 at the top and 16 is about 10 pages from the back. 17 MS. PONZOLI: It begins, "Water quality standards 18 will be met"? 19 MR. GREEN: Yes. 20 THE WITNESS: I want to understand this document 21 first. The pagination is kind of confusing. I don't 22 know if this is one document. 23 BY MR. GREEN: 24 Q I agree with you. 25 A I am on something that says page 7 at the top, but A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 162 1 I don't know that it is page 7 of the memorandum to Jake 2 Varn. 3 Q Does your version start with the term, "Water 4 quality standards will be met," period? 5 A I don't know. It says, "Where a temporary 6 operation permit." 7 Q Keep turning. 8 A I got it. 9 Q I would like to ask you to read out loud at the 10 bottom of page 7, the paragraph beginning there, and go up 11 on the top of page 8. 12 A "Existing stormwater sources discharging into 13 outstanding Florida waters are exempt from the provisions 14 of 17-4.242 by virtue of the fact that they determine 15 ambient quality of the water body on the effective date of 16 the revision. It is possible for a source which exists to 17 lower the ambient quality. However, existing stormwater 18 sources may require a permit. Any abatement requirements 19 will be based upon the water quality criteria for the class 20 of water body without regard for its Outstanding 21 designation." 22 Q Just for correctness, would you please read the 23 third from the last sentence one more time? I think you 24 misstated inadvertently. 25 A "However, existing stormwater --" A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 163 1 Q I am sorry, the one above that. 2 A "It is impossible for a source which exists to 3 lower the ambient quality." 4 Q Thank you. Do you agree with what you wrote in 5 this paragraph? 6 A No. We think I wrote it. 7 Q Well, is that doubtful -- 8 A It is highly probable. 9 Q -- that -- 10 A That I wrote it. 11 Q So you do not agree with this? 12 A No. 13 Q I need to ask you that. 14 A No, I don't agree with that. 15 Q What is the basis for your disagreement with it 16 today? 17 A That it is an erroneous interpretation of the OFW 18 rule, and the reason is, you know, if you were to -- 19 suppose you had, you discover illegal activities going into 20 OFWs, they don't have a permit, they don't, they are not 21 meeting the Department requirements, they don't meet the 22 OFW requirements, it is clear. 23 Q Well, what about legal discharges going into OFWs? 24 A Then if they are legal, they either had a permit 25 or were exempt. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 164 1 Q What if they had not been asked to apply for a 2 permit? 3 MS. PONZOLI: Object to the form. 4 THE WITNESS: What about it? What do you mean? 5 BY MR. GREEN: 6 Q Would that make a difference to you? 7 A A difference to me? 8 Q In how you, whether you would agree or disagree 9 with the statement at the bottom of page 7 that we have 10 been talking about. 11 A The owner of a stationary source of pollution has 12 the obligation to apply for a permit. It has nothing to do 13 with being asked to apply. 14 Q Do you believe that the water management district 15 was legally obligated to apply for a stormwater or other 16 discharge permits from DER in 1979? 17 MS. PONZOLI: Object to the form. 18 THE WITNESS: They were obliged to apply to DER 19 for a permit under Chapter 403, in my opinion. 20 BY MR. GREEN: 21 Q What is the basis for that opinion? 22 A They were a stationary source of pollution that 23 fell under the requirement of those installations requiring 24 a Department permit. 25 Q Isn't it true that at the time you drafted the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 165 1 memorandum in Exhibit 26, the Department of Environmental 2 Regulation had not, itself, decided whether these 3 installations needed permits? 4 MS. PONZOLI: Objection to form. I think it has 5 already been answered. You have not established he 6 actually wrote this yet. 7 THE WITNESS: No. 8 BY MR. GREEN: 9 Q Dr. Parks, did you write page 1 of Exhibit 26? 10 A Yes. Yes. 11 MR. GREEN: Would you please read back the 12 question before that? 13 (Whereupon, the court reporter read the requested 14 portion of the record.) 15 THE WITNESS: I don't think that is true. 16 BY MR. GREEN: 17 Q Why not? 18 A I don't think that is to be inferred from the 19 statement. 20 Q Well, aside from this statement, do you have any 21 other basis for believing that the Department of 22 Environmental Regulation had, by May, 1979, determined that 23 the water management district discharge structures into the 24 water conservation areas needed permits under Chapter 403, 25 Florida Statutes? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 166 1 MS. PONZOLI: I am sorry, would you read it back 2 again? 3 (Whereupon, the court reporter read the pending 4 question.) 5 THE WITNESS: Well, it isn't a question of what 6 the Department determined. It was a question of what 7 the law required. The Department does have discretion 8 on how it uses its resources, but it doesn't have a lot 9 of discretion in determining, you know, whether or not 10 the law applies to somebody. If the reading of the law 11 says it applies, it applies, with or without a 12 Department determination. 13 MR. GREEN: Would you read my question back one 14 more time? 15 (Whereupon, the court reporter read the pending 16 question.) 17 MS. PONZOLI: I am going to put an objection to 18 the question, if we are having this much difficulty 19 with it, the form. It is confusing. 20 BY MR. GREEN: 21 Q Dr. Parks, do you know what I am asking you? 22 A Well, I guess you are -- 23 MS. PONZOLI: Don't frame Mr. Green's questions. 24 BY MR. GREEN: 25 Q I am just asking you if you understand what I am A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 167 1 asking you. If you do, please answer. 2 A What do you mean by "determined that a permit 3 would be needed"? 4 Q Had the Department of Environmental Regulation 5 made any determination in writing by May, 1979, that the 6 water management district discharge structures into the 7 water conservation areas were obliged to obtain permits 8 under Chapter 403, Florida Statutes? 9 A Well, I don't know about everything in writing, 10 but when we were doing the Lake Okeechobee temporary 11 operation permit, there was, and I don't remember many 12 details, but there was some discussion of the EAA pumps, 13 and my recollection is that there was a decision not to 14 take that big a bite at that time, not that there was a 15 decision that those pumps didn't require permits. 16 Q When you say "not to take that big a bite at that 17 time," do you mean that there was a decision not to require 18 at that time that these structures attain Chapter 403 19 permits? 20 MS. PONZOLI: Objection to form. 21 BY MR. GREEN: 22 Q What do you mean by that, "not to take that big a 23 bite"? 24 A There was a decision to deal with Lake Okeechobee 25 first. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 168 1 Q Thank you. 2 Had DER made the determination as of May, 1979, 3 that the pump structures discharging into the water 4 conservation areas needed Chapter 403 permits? 5 A I don't know what you mean by "made the 6 determination." It seems to me that -- 7 Q Had they made a decision? 8 A The question was not whether they needed a permit. 9 You just read the law. The question was whether the 10 Department had the resources to try to permit them at that 11 time, to try to get the District to apply for permits and 12 to process the permits. 13 Q Had they told the District to apply for permits? 14 A For the EAA pumping stations? 15 Q Into the water conservation areas. 16 A Had they told them to apply? No. 17 MR. GREEN: I think I am content to bail out if 18 you folks are until tomorrow morning. Is that okay? 19 MS. PONZOLI: Yes. 20 MR. HYDE: That is fine. 21 (Whereupon, the deposition was recessed.) 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 169 1 C E R T I F I C A T E 2 STATE OF FLORIDA ) 3 COUNTY OF LEON ) 4 I hereby certify that the foregoing transcript was 5 taken down as stated in the caption, that the witness was 6 first duly sworn, having identified himself to me, and the 7 questions and answers thereto were reduced to typewriting 8 under my direction; 9 That the foregoing pages 7 through 168 represent a 10 true, correct, and complete transcript of the evidence 11 given upon said hearing; 12 And I further certify that I am not of kin or 13 counsel to the parties in the case; am not in the regular 14 employ of counsel for any of said parties; nor am I in 15 anywise interested in the result of said case. 16 Dated this ____ day of ________________, 1992. 17 18 19 20 21 22 23 __________________________ JERRY L. ROTRUCK, CM 24 Court Reporter and Notary Public State of Florida at Large 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 170 1 C O R R E C T I O N S 2 Corrections to the deposition of PAUL C. PARKS, Ph.D., taken in the case of Sugar Cane Growers Cooperative of 3 Florida, Inc., et al., vs. South Florida Water Management District and Miccosukee Tribe of Indians of Florida, et 4 al., Intervenors, Case No. 92-3038, 92-3039, 92-3040, taken on September 22, 1992. 5 Page-Line Correction 6 7 8 9 10 11 12 13 14 15 16 17 ____________ ____________________________________ 18 Date Signature 19 AS TO SIGNATURE ONLY 20 IN WITNESS WHEREOF, I have set my hand and affixed 21 my seal this _____ day of _________________________, 1992; 22 said instrument was acknowledged before me by _____________ 23 who is personally known to me. 24 ________________________________ 25 Notary Public A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 ??