171 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 II 23 DEPOSITION OF PAUL C. PARKS, Ph.D 24 September 23, 1992 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 172 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 23, 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 173 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 174 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 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 175 1 INDEX TO WITNESS 2 PAUL C. PARKS, Ph.D. Page 3 Examination by Mr. Green (continued) 177 4 Examination by Ms. Ponzoli 204 5 Examination by Mr. Hyde 207 6 7 INDEX TO EXHIBITS 8 No. Marked 9 29 177 10 30 181 11 31 263 12 32 290 13 33 290 14 34 295 15 35 299 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 176 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 177 1 D E P O S I T I O N 2 Whereupon, 3 PAUL C. PARKS, Ph.D. 4 was recalled as a witness, having been previously duly 5 sworn to speak the truth, the whole truth, and nothing but 6 the truth, was examined and testified as follows: 7 MR. GREEN: Let's mark that as Exhibit 29. 8 (Whereupon, Exhibit No. 29 was marked for 9 identification.) 10 EXAMINATION (continued) 11 BY MR. GREEN: 12 Q Please identify what has been marked as Exhibit 13 29. 14 A It is a letter to Senator Bob Graham from Steve 15 Parcells. 16 Q Are you familiar with the purpose of this 17 letter? 18 A It was to, it says, "We believe it is time for you 19 to call the sugar industry to account for its lack of 20 performance." That referred back to promises made at the 21 time that the farm bill came up, and Senator Graham had 22 argued that the sugar industry needed the 18 cent per pound 23 federal price support in order to pay for cleaning up the 24 Everglades, and this is a letter pointing out that that 25 hadn't actually happened, and asking Senator Graham to put A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 178 1 the sugar industry on notice that, I think in very general 2 terms, that they were not abiding by what they had said or 3 what he had said at the time the farm bill was renewed in 4 1990. 5 Q Is the organization that you have been affiliated 6 with, is that the Florida Wildlife Federation? 7 A Yes. 8 Q I notice on the left side of page 1 of Exhibit 29, 9 they are listed as the Florida Wildlife Federation, a 10 member of the Everglades Coalition. 11 I take it they reviewed this letter, or did they 12 review this letter before it was sent? 13 A What do you mean by "they"? 14 Q Did you review it before it was sent? 15 A I reviewed a draft. 16 Q Did anyone else in the Florida Wildlife Federation 17 review a draft? 18 A I believe the president did. 19 Q Who is that person? 20 A Manley Fuller. 21 Q Dr. Parks, I would like to refer you to page 2 of 22 this exhibit, the top paragraph. There is some discussion 23 there about the Holeyland and Rotenburger tracts, and I 24 will quote the sentence: "One of the most alarming 25 proposals recently made by the industry is that the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 179 1 Holeyland and Rotenburger tracts be used to treat the sugar 2 industry's polluted runoff in place of some or all of the 3 35,000 acres of STAs," end quote. 4 Are you familiar with the term Holeyland and 5 Rotenburger tracts? 6 A Yes. 7 Q Let's take the first. What is the Holeyland? 8 A It is about 35,000 acres that lies to the east of 9 the Miami Canal and to the north of the boundary of 10 conservation area 3A, a roughly rectangular tract. 11 Q Is it inside the Everglades Agricultural Area? 12 A It is within the dike that also impounds, includes 13 the agricultural area. 14 Q And the Rotenburger tract, what is that? 15 A It is, I think it is, I believe it is 23,000 16 acres, I am not positive about that. It is, the majority 17 of the land in there is in public ownership, previously 18 uncultivated, as is the Holeyland, and it is to the west of 19 the Holeyland on the other side of the Miami Canal, and 20 north of 3A. 21 Q Do you have an opinion concerning whether either 22 of those tracts would be appropriate for use as stormwater 23 treatment areas? 24 A Yes. 25 MS. PONZOLI: Object to the form. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 180 1 BY MR. GREEN: 2 Q What is your opinion? 3 MS. PONZOLI: I have a problem with your asking 4 him opinions on things that he is not being asked to 5 testify on at trial, Mr. Green. 6 BY MR. GREEN: 7 Q Please answer the question. 8 A They are both waters of the State, and by virtue 9 of that, any inflow waters into them, there would have to 10 be reasonable assurance that water quality standards would 11 not be violated. 12 Q Any other basis? 13 A And that is, that condition is not expected for 14 drainage water of the kind that is going to go into the 15 STA, namely drainage water from the farming areas. It 16 would cause violation of water quality standards in 17 Holeyland and Rotenburger. 18 Q Are you aware of any studies that would show that 19 EAA discharge, pardon me, that discharges into the 20 Holeylands from agricultural areas would cause violations 21 of state water quality standards? 22 A There are numerous studies of the impact on the 23 Everglades marsh receiving waters where water of this 24 quality is discharged, and by analogy, those same impacts 25 would occur in the Holeyland. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 181 1 Q Would that be true for the Rotenburger tract as 2 well, if it were used to receive discharge waters? 3 A If the drainage waters are of the same quality as 4 that that was studied at the other points of discharge from 5 the EAA, the answer is yes. 6 (Whereupon, Exhibit No. 30 was marked for 7 identification.) 8 BY MR. GREEN: 9 Q Dr. Parks, would you please identify what has been 10 marked as Exhibit 30? Have you seen this document before? 11 A Yes. 12 Q Who is Tim Searchinger? 13 A He is an attorney with the Environmental Defense 14 Fund. 15 Q Are you aware of the MacKay meeting to which the 16 heading of this memorandum refers? Do you know what 17 meeting that was talking about? 18 A Well, I think I do. I think I am aware of that -- 19 I mean, I think that is a meeting that actually did take 20 place. 21 Q Did you attend that meeting? 22 A Yes. 23 Q Do you know when it was? 24 A No. 25 Q Do you know where it was? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 182 1 A It was in the Capitol. 2 Q In Tallahassee? 3 A Yes. 4 Q Do you recall who attended that meeting other than 5 yourself? 6 A Secretary Browner, the lieutenant governor, I 7 think Jim Webb was there, Charles Lee was there, Dana 8 Minerva and Dean Saunders. 9 Q Do you recall what was discussed at that meeting? 10 A Not specifically. 11 Q Was this -- 12 A The Everglades remedy, the Everglades -- situation 13 with the Everglades, how the District was responding, and 14 what to do about cleaning up the water quality violations 15 in the Everglades, that was the general area. 16 Q Were there any followup meetings with Lieutenant 17 Governor MacKay of this type that you are aware? 18 A I don't recall any. 19 Q Dr. Parks, with regard to the case that we are 20 here today about, you have been listed by the United States 21 of America as an expert witness who will discuss violations 22 of state water quality standards and permitting 23 requirements of Florida law, and standing. 24 Are you familiar with the United States' 25 Designation of Expert Witnesses document? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 183 1 A Yes. 2 Q Do you have a copy there in front of you? 3 A Yes. 4 Q I would like to refer you to the Substance of 5 Expected Testimony paragraph near the bottom of page 13 of 6 that document, and we will go through those. 7 The first category is Historical State Agency 8 Practice in Administration of DER Rules and Regulations 9 Regarding Water Quality. Can you tell me whether you have 10 formed any opinions with regard to that topic? 11 A Do you mean as it applies to the Everglades? 12 Q Well, have you been asked by the United States to 13 develop opinions related to historical state agency 14 practice, and so forth, the first topic I described? 15 A I have really only -- yes, I have. 16 Q And what opinions have you formed? 17 A That pump stations S-5A, S-6, S-7 and S-8 require 18 permits from the Department of Environmental Regulation, 19 and that those permits are required to lead to the result 20 that there are no violations of water quality standards or 21 any other Department rules and regulations in Everglades 22 waters of the State. 23 Q What permits from DER are you referring to in that 24 opinion that you believe are required? 25 A Permits under Chapter 403 and Chapter 373. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 184 1 Q Could you be more specific? 2 A Those are permits for operation of a stationary 3 installation which is expected to be a source of pollution. 4 Q And you indicated that the permits are required to 5 lead to no violations of water quality standards or any 6 other Department rules and regulations. Can you tell me 7 what other Department rules and regulations you were 8 referring to? 9 A Well, all of those that apply to the regulations 10 -- all of those that apply to regulation of discharges of 11 this kind. That would include monitoring requirements, for 12 example -- this is not a complete list, I would have to 13 actually go through the list -- monitoring requirements, 14 notification of changes in operation that would affect 15 water quality, changes in -- well, any change that might be 16 expected to affect the quality of the discharge. 17 Q Anything else? 18 A Well, not without going through the rules. 19 Q Nothing else that you can recall at this time? 20 A No. 21 Q Dr. Parks, what is the basis for your opinion that 22 DER permits are required for pump stations S-5A, S-6, S-7 23 and S-8? 24 A We, they are certainly stationary and they are 25 sources of pollution as, in terms of the definition of A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 185 1 pollution given in Chapter 403. 2 They are also required to be permitted by the 3 Marjorie Stoneman Douglas Act, which is a part of Chapter 4 373. 5 Q Anything else? 6 A The discharge into waters of the State, it happens 7 that the land containing those waters is also public lands. 8 Q In your opinion, are you relying on any legal 9 opinions or other documents of governmental agencies? 10 A Basically, I am relying on my experience that it 11 is the Department of Environmental Regulation's job as far 12 as water pollution sources to regulate them in such a way 13 that there are no violations of water quality standards, 14 that there is no exemption for these installations. 15 Q Now, Dr. Parks, if I could refer you to the second 16 topic listed on page 13 of the United States' Designation 17 of Expert Witnesses, which is, quote, Water Quantity Issues 18 in South Florida and the Everglades System, have you formed 19 any opinions with regard to that topic? 20 A Yes. 21 Q Would you please tell me what they are? 22 Pardon me, did I read that correctly? I meant 23 Water Quantity Issues. 24 A You got it right. 25 The Everglades has been much affected by A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 186 1 construction of the central and south Florida project for 2 flood control and other purposes, and its hydroperiod has 3 been altered as a consequence of that. 4 There are -- and that alteration of hydroperiod 5 had had deleterious ecological impacts. However, many of 6 those hydroperiod impacts can be mitigated through 7 management and possibly through some structural changes. 8 There has been what you might call a perennial 9 argument that it was, that this system sort of goes in two 10 parts; that it was anticipated that when this system was 11 built that it wouldn't be any good any more, and therefore 12 there is no need to meet water quality standards, and then 13 sort of a corollary of that is that this system has been so 14 damaged that there is no need to control the pollution in 15 it. 16 In my opinion, neither of those is correct. These 17 are waters on public lands. They are waters of the State. 18 They fall under the requirements of Chapters 403 and 373 19 with respect to water quality, and there is a great 20 potential for improving the hydroperiod on the rim of the 21 Everglades and enhancing the ecological system and thereby 22 protecting it for future generations. 23 However, that restoration will be precluded if the 24 pollution being discharged from the EAA is not stopped. 25 Q Well, Dr. Parks, I am intending to focus on the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 187 1 water quantity issues as I noted here in the designation. 2 With regard to what you just testified, you indicated that 3 many of the deleterious ecological impacts caused by 4 hydroperiod changes associated with construction of the 5 project can be mitigated with management and structural 6 changes. 7 What management and structural changes do you have 8 in mind there? 9 A The general need is to have a hydroperiod within 10 what was the River of Grass which rises and falls more like 11 the, more like the original, and that would mean using the 12 conservation areas less as impoundments and more as 13 natural, as a flow-way which had a natural hydroperiod, and 14 it would mean releasing water into the upstream end of the 15 Everglades longer into the dry season so as to extend the 16 hydroperiod in time. 17 So those changes that would make the downstream 18 flow more natural as opposed to running down to the 19 impoundment and sitting there, and those changes which 20 would enable water to be admitted to the upstream end 21 towards the end of the rainy, towards the beginning of the 22 dry season, so as to extend the hydroperiod, those are the 23 kinds of management, those are the objectives of that 24 management of the structural changes. 25 Q Are you aware of any studies or analyses A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 188 1 concerning hydroperiod mitigative measures of the type you 2 have just described that have been done? 3 A Well, I am not familiar with all of them in 4 detail. Everglades Park is conducting studies of this. 5 The Water Management District is conducting studies of this 6 kind. The Corps of Engineers is involved in this, and 7 there is a group at the University of Florida that is 8 interested in this. There may be others. The U. S. Fish 9 and Wildlife is also involved in various aspects of 10 hydroperiod study. 11 Q Are you aware of any studies that relate to the 12 ecological consequences that would be brought about if the 13 SWIM Plan that is currently under challenge is implemented 14 as written? 15 A I don't know that any study is necessary. I have 16 heard it discussed a number of times. 17 Q Have you, yourself, reached any opinions on that 18 subject? 19 A Yes. The water lost to the ET from the proposed 20 STAs is really very small compared to the total water 21 budget, and it would have a negligible effect. The STAs, 22 themselves, could serve as a way to clean up Lake 23 Okeechobee water prior to its introduction into the 24 Everglades, and that can be done at the end of the rainy 25 season when the STAs are no longer needed to clean up the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 189 1 agricultural runoff, and that would enable one of the 2 objectives I described for hydroperiod improvement to be 3 met, namely, to extend the hydroperiod into the early part 4 of the dry season. 5 Q Are there any other hydroperiod-related benefits 6 of the proposed SWIM Plan? 7 A The Water Management District has long discussed 8 better distribution of discharges into conservation area 3A 9 as a consequence of building an STA down along the southern 10 part of the EAA. 11 I think there is some debate about whether you 12 want to put water of the proposed interim quality into 13 areas that have been, that have never received water of 14 that phosphorus concentration before; so while there might 15 be a benefit in terms of water quantity, it might be 16 outweighed by an effect on water quality if the discharge 17 only meets the interim's requirement. 18 Q What is that interim? 19 A 50 parts per billion. 20 Q Of -- 21 A Phosphorus. 22 Q All right. 23 A But that has been discussed as a benefit to the 24 system in the north end of conservation area 3A. 25 Q Are there any other water quantity issues in south A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 190 1 Florida in the Everglades ecosystem that you have been 2 asked to form opinions on, other than the ones you have 3 testified to so far? 4 A The most fundamental opinion is that it is 5 essential to correct the pollution problem so as to protect 6 the existing ecosystem which, while degraded, is certainly 7 not destroyed and still represents a magnificent ecosystem, 8 and that without control of the pollution, future 9 hydroperiod restoration efforts will be a good investment. 10 Q Dr. Parks, the third category listed in the 11 designation is, I quote, "History of Nutrient Pollution in 12 the Everglades and Attempts at Solutions," end quote. 13 Have you formulated any opinions with regard to 14 that category in this case? 15 A Well, based on my knowledge of the history of 16 attempts to control nutrient pollution in the Everglades, 17 this SWIM Plan is a long overdue plan for correcting a 18 pollution problem that was known two decades ago, and it is 19 overdue also in terms of the continuing degradation of the 20 Everglades caused by these discharges. 21 Q Dr. Parks, what solutions have been attempted to 22 address nutrient pollution in the Everglades? 23 A Prior to, I believe prior to development of the 24 first SWIM Plan there were proposals, both by the Water 25 Management District and by some representatives of the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 191 1 sugar industry, to use the Holeyland as what I would call a 2 polishing pond to remove pollutants, particularly 3 phosphorus, from EAA drainage water, and there was also a 4 proposal to use, really, conservation area 2A, degraded 5 part of 2A, all or a portion of 2A as a cleanup area. 6 These were not really attempts so much as simply 7 some proposals, but that is part of attempting a solution. 8 In terms of physical work, of actually doing 9 anything, this SWIM Plan and its predecessors represent the 10 first definite proposals to actually take action to reduce 11 the level of pollutants entering the Everglades, and the 12 SWIM Planning process has been a series of SWIM Plans, and 13 they have gotten more definite as they went from earliest 14 to latest. 15 Q Were there any other attempted solutions that you 16 recall? 17 A Solutions to the Everglades pollution? 18 Q Yes, as referenced in the United States' 19 Designation of Expert Witnesses on page 13? 20 A Not that I recall. 21 Q Dr. Parks, I am continuing to go through the 22 topics on page 13 of the United States' Designation of 23 Expert Witnesses, and there is a topic, Assessment of SWIM 24 Planning Process and Proposed Remedies. Have you been 25 asked to make an assessment of the SWIM planning process A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 192 1 and proposed remedies? 2 A Yes. 3 Q What is, can you describe what your assessment 4 is? 5 A That the SWIM planning process, because of its 6 elaborate mechanism for providing public input and for 7 objecting to facts, et cetera, is a good way to proceed on 8 a complicated problem of this kind; but more particularly, 9 that the adopted SWIM Plan proposes a reasonable and 10 necessary, reasonable and necessary interim measures on the 11 path leading towards compliance with state water quality 12 standards and discharges from the EAA to the Everglades. 13 In addition, the SWIM Plan -- of course, the SWIM 14 Plan provides either directly or by reference the basic 15 information about the quality of the water discharged and 16 about the impacts that that produces in the Everglades and 17 about the remedial actions that must be taken in order to 18 prevent those deleterious effects. 19 In addition, the SWIM Plan provides a way to come 20 to final compliance. This interim standard which I 21 referred to is really the 50 parts per billion average 22 phosphorus concentration that is the objective of the 23 interim measures, or the design basis for the interim 24 measures. It, itself, is not a standard, it is a -- it is 25 an interim objective, and the SWIM Plan goes on to describe A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 193 1 a process by which the final long-term water quality 2 standards will be arrived at and how those will be 3 converted into remedial -- translated back upstream into 4 remedial actions for meeting those long-term standards. 5 So it is complete in that sense, that it leads to 6 the final result of compliance with state water quality 7 standards, yet it has an interim step which is necessary 8 because we don't know absolutely everything we need to know 9 about achieving the final standards. 10 Q How do we know that 50 ppb is the proper interim 11 step? 12 MS. PONZOLI: Object to the form. 13 BY MR. GREEN: 14 Q What is the basis for the 50 ppb? 15 A What do you mean by "proper"? 16 MS. PONZOLI: He changed the question. Answer his 17 new question. Would you read the question back, 18 please? 19 (Whereupon, the court reporter read the pending 20 question.) 21 THE WITNESS: I don't know how it was first 22 arrived at. When I saw it, I asked, simply asked 23 myself, is this a reasonable interim measure in terms 24 of what we know about achieving 50 parts per billion 25 and in terms of what we know about the effects of 50 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 194 1 parts per billion on the Everglades, and I concluded it 2 was reasonable. 3 BY MR. GREEN: 4 Q What is the basis for your conclusion that it was 5 reasonable? 6 A It is, there is information which is described and 7 cited in the SWIM Plan which provides a very clear 8 indication that water of at least 30 parts per billion 9 causes imbalance in aquatic flora and fauna. This means 10 that 50 parts per billion is not excessively stringent and 11 you can, therefore, conclude that it is an interim, 12 appropriate interim. You would not want an interim value 13 to be more than was necessary to achieve the final limit, 14 and we have clear indication that 50 parts per billion is 15 not more than is necessary, is not more removal or more 16 stringent than that which will be necessary to meet water 17 quality standards. 18 Q Anything else? 19 A Based on reports that have been presented and 20 material presented in the SWIM Plan that 50 parts per 21 billion can be achieved by the means proposed in the SWIM 22 Plan. 23 Q Have you made an independent judgment of whether 24 50 ppb can be achieved by the measures proposed in the SWIM 25 Plan? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 195 1 MS. PONZOLI: Object to the form. 2 THE WITNESS: There is some uncertainty about the 3 exact output of the proposed STAs. It will be 50 ppb, 4 plus or minus, and I do not regard the magnitude of 5 that plus or minus -- the 50 ppb is based on the best 6 available information and it is pretty good 7 information. The plus or minus is not an issue, in my 8 opinion, because this is an interim step. 9 It could be an issue if it did so much better than 10 50 parts per billion that you ended up removing more 11 than was needed to meet water quality standards, but 12 that assessment seems a very, very remote possibility, 13 extremely low probability, so we know we are not going 14 to offer to do it here, and the issue isn't whether 15 this will meet 50 exactly, but whether this is a 16 reasonable interim step along the way to achieving the 17 final result, which is compliance with state water 18 quality standards. 19 BY MR. GREEN: 20 Q Dr. Parks, have you seen any analysis that would 21 show what the water quality with regard to phosphorus 22 concentrations would be inside the WCAs if the 50 ppb 23 interim limitation you have been describing is achieved for 24 discharges into the WCAs? 25 A Have I seen any analysis predicting the -- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 196 1 MR. GREEN: Please read the question back. 2 (Whereupon, the court reporter read the pending 3 question.) 4 THE WITNESS: No. 5 BY MR. GREEN: 6 Q Are you aware of any such analysis? 7 A No. 8 Q You indicated earlier that the 50 ppb interim 9 limitation was in your view a reasonable and necessary 10 measure on the path leading towards compliance with state 11 water quality standards for discharges from the EAA into 12 the Everglades. 13 In your opinion, would further reductions in 14 phosphorus discharge concentrations be required in order to 15 accomplish ultimate compliance with state water quality 16 standards for discharges from the EAA to the Everglades? 17 A Yes. 18 Q What is the basis for that opinion? 19 MS. PONZOLI: It has been asked and answered. 20 BY MR. GREEN: 21 Q Let me ask another question, then. 22 What is the -- what rules of the Florida 23 Department of Environmental Regulation would support that 24 conclusion, if any? 25 A Now you have that conclusion being that more will A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 197 1 be needed, more treatment beyond 50 ppb? 2 Q Yes. 3 A I expect that the determination of the Class III 4 water quality standard for, the site-specific numerical 5 surrogate for the narrative Class III water quality 6 standard for nutrients, that that will be lower than 50 7 parts per billion. That expectation is based on work that 8 has already been done and is cited in the SWIM Plan. 9 Q Is there any other basis? 10 A The background levels of phosphorus in the 11 Everglades are much, much lower than 50 parts per billion. 12 They are in the order, an order of magnitude lower, 13 generally speaking. It is a very oligotrophic system, and 14 it is the nature of the oligotrophic system to respond to 15 nutrients by alterations and by forming an imbalance in the 16 populations, in the natural populations of flora and fauna. 17 Because the Everglades is naturally low, much 18 lower than 50, that is another reason that I would expect 19 that the numerical surrogate for the narrative nutrients to 20 interim phosphorus would turn out to be a lot lower than 21 50. 22 Q Would that standard, once determined, apply at the 23 point of discharge into the water conservation areas? 24 A I have always believed that some allowance would 25 have to be made for the hydraulic impact of these big A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 198 1 discharges from the EAA, and that there would be some, the 2 definition of point of discharge, if you will, would be 3 somewhat larger than simply the, you know, the pipe coming 4 out of the pump. 5 There are also differences in effect in every 6 case, the immediate recipient of a discharge is a canal, 7 and that there would have to be some allowance made for 8 that. 9 We are not attempting to have canals meet the same 10 standards as the Everglades marsh, so in that sense, it 11 really has, your question really has to do with how point 12 of discharge gets defined in the permitting process. 13 Q Have you any opinion on what size area or areas to 14 allow for the hydraulic factor that you described might be 15 appropriate with regard to discharges into the water 16 conservation areas? 17 A Well, that would be the minimum necessary, and 18 they would be intended to preclude using any of the natural 19 areas of the Everglades for treatment of the waste. 20 Q You mentioned a moment ago that discharges go into 21 canals. Do you consider those canals to be natural areas 22 of the Everglades? 23 A No. 24 Q Referring back to the United States' Designation 25 of Expert Witnesses, beginning at the bottom of page 13, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 199 1 there is the category, quote, "Scientific Application of 2 DER Water Quality Rules and Regulations to Specific 3 Particular Sites," end quote. 4 Have you been asked to evaluate the application of 5 DER water quality rules and regulations to specific 6 particular sites by the United States? 7 A Yes. 8 Q What sites were those? 9 A The points of discharge into the Everglades 10 Protection Area. 11 Q And have you carried out that task? 12 A I have. 13 Q Have you carried it out with regard to pump 14 station S-5A? 15 A Yes. 16 Q What were the results of your evaluation? 17 A That the receiving waters require a site-specific 18 determination of the numerical surrogate for the 19 Department's narrative nutrient standard, and that that 20 determination should include imbalance in natural 21 populations of aquatic flora and fauna, compliance with 22 other standards of the Department, particularly those 23 related to dissolved oxygen and biological integrity, and 24 that that numerical surrogate should consider substances 25 and amounts which create nuisance growths of aquatic A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 200 1 plants. 2 Q When did you make that evaluation? 3 A It has really been an ongoing, an ongoing process, 4 really, since this case began. 5 Q Have you prepared any written reports of that 6 analysis? 7 A It has been discussed -- I have discussed it in 8 written materials that I have provided to counsel to the 9 United States. 10 MR. GREEN: Would you read back that answer? 11 (Whereupon, the court reporter read the requested 12 portion of the record.) 13 BY MR. GREEN: 14 Q Were those materials produced in the production 15 Monday or last Friday? 16 A No. 17 Q Do you know why they weren't? 18 A The attorney for the United States advised me that 19 they were privileged. 20 MS. PONZOLI: Counsel, I will look at them and 21 see. If I think something meets what I think you are 22 talking about, I will provide them to you, but I don't 23 think what you are saying is what he is saying. 24 MR. GREEN: Please clarify. I am not intending to 25 cause confusion. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 201 1 MS. PONZOLI: No, let me go back and go through 2 it. I felt everything that I withheld was privileged. 3 I think that most written reports you would be entitled 4 to -- if he had done a report on his opinion, I think 5 you would be entitled to that. I don't think anything 6 I held back fits in that category, but I will look at 7 it again and see. 8 MR. GREEN: Thank you. 9 BY MR. GREEN: 10 Q Dr. Parks, did you do similar evaluations for 11 discharge structures S-6, S-7 and S-8 and structures S-10 12 and S-12? 13 A No. 14 Q Have you been asked to give any opinions with 15 regard to the application of DER water quality rules and 16 regulations to those other structures, that is, the 17 structures I just mentioned? 18 A I have not been asked to give an opinion about 19 S-10. 20 MR. HYDE: S-10? 21 THE WITNESS: 10. 22 MS. PONZOLI: Read his answer back again, please. 23 (Whereupon, the court reporter read the requested 24 portion of the record.) 25 BY MR. GREEN: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 202 1 Q Does your opinion for structures S-6, S-7, and S-8 2 differ from the opinion you just gave with regard to S-5A? 3 A No. 4 Q Does your opinion for structures S-12 differ from 5 the opinion you gave with regard to S-5A? 6 A No, I should add that both S-12 and S-5A and S-6 7 are required to meet the outstanding Florida waters 8 criteria, as well as Class III water quality standards, 9 whichever is lower. 10 MR. HYDE: Clarification: S-5, 6 and 12? 11 THE WITNESS: S-12s, yes. 12 BY MR. GREEN: 13 Q Do you have an opinion with regard to the 14 application of DER -- 15 A I would like to clarify that answer. The quality 16 of water at S-12, at the S-12 structures is to some extent 17 a consequence of discharges from all four of the major EAA 18 pumping stations, so to talk about water quality at the 19 S-12s, we really are talking about remedial action taken 20 upstream of the major pumping stations in order to affect 21 the quality of water at S-12s. 22 Q Are there any other sources of discharge into S-12 23 besides those in the EAA that you just mentioned? 24 A Yes. 25 Q What are they? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 203 1 A They are described in the SWIM Plan, the S-9, the, 2 and there are -- well, there is also Acme Improvement 3 District that goes into the Loxahatchee, there is the S-9 4 pumping station at the end of Griffith Road in Ft. 5 Lauderdale, and there are -- there is a discharge in the 6 western part of conservation area 3A that is a couple of 7 miles north of Alligator Alley, and there is a discharge 8 from Hendry County that goes in near the S-8 pumping 9 station. Those are discussed in the SWIM Plan which has a 10 plan for dealing with those discharges in the future 11 there. They are not as significant an effect on water 12 quality at the S-12s as the major pumping stations are, 13 probably not. 14 Q Dr. Parks, the Petitioners Sugar Cane Growers 15 Cooperative of Florida, Inc., Roth Farms, Inc., and 16 Wedgworth Farms, Inc., propounded interrogatories to the 17 United States of America earlier in this case. Were you 18 aware of that? 19 A I assume they have. 20 Q Did you assist the United States in preparing its 21 answers to those interrogatories? 22 A Only through what I may have done in the past. I 23 didn't help draft them. 24 Q Did you discuss any of the questions propounded 25 with the United States in their preparation of the answers? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 204 1 A No. 2 Q Are the opinions that we have asked you about this 3 morning final at this point, or are you doing more work on 4 them? 5 A Well, if some new factual information came to 6 light as a consequence of discovery, I might reevaluate 7 something, but other than that, I believe they are final 8 opinions. 9 Q Granted that that could occur, in your mind, do 10 you know what facts might change your opinions? I mean, 11 have you thought about that? 12 MS. PONZOLI: Object to the form. 13 THE WITNESS: No. 14 MR. GREEN: I have concluded all of what I had at 15 this point, Ms. Ponzoli. 16 MS. PONZOLI: I would like to take, Mr. Hyde, if 17 you don't mind, one second to clarify a point that I 18 think was confusing at the beginning of Mr. Green, it 19 is just for clarification, on the production of Dr. 20 Parks's documents. 21 EXAMINATION 22 BY MS. PONZOLI: 23 Q Dr. Parks, do you recall in the beginning of Mr. 24 Green's examination where he showed you Exhibit No. 1, 25 which was your Notice of Deposition Duces Tecum, and there A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 205 1 was a discussion of the two productions of your documents, 2 and there was some discussion by myself that certain ones 3 had been withheld as privileged? 4 Mr. Green asked you if you had -- here is his 5 question, on page 8, line 18, 19, 20, "Dr. Parks, did you 6 go through this list with Ms. Ponzoli in preparation for 7 the production of documents that it relates to?" Your 8 answer was no. 9 Dr. Parks, did I go through this list with you in 10 preparation for producing your documents? 11 A You went through the list in whatever this is, 12 Exhibit 1, yes. 13 Q And in relationship to Exhibit No. 1 and the 14 document list requested by the Florida Sugar Cane League, 15 what are the documents that you produced? 16 A I produced, I really produced everything except 17 those documents that counsel determined to be privileged. 18 By everything, I mean everything in my office that relates 19 to the Everglades. 20 Q Mr. Green asked you again on page 8, lines 22, 23, 21 24, "When the documents were produced last Friday and 22 yesterday, did you go through those documents with Ms. 23 Ponzoli prior to their being produced," and again, your 24 answer was no. 25 Dr. Parks, the first, let's say, component of A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 206 1 those documents that were produced, I believe it was 14 2 boxes, what were those 14 boxes? 3 A They were documents that had been produced under 4 the discovery in the federal lawsuit. 5 Q Dr. Parks, did attorneys for the Department of 6 Justice go through those documents with you the first 7 time? 8 A The first time they were produced, yes. 9 Q And then the next component of those documents was 10 what? There was some 15 boxes or something that 11 represented what? 12 MR. GREEN: Five boxes, I believe. 13 MS. PONZOLI: It went from 15 to five? Weren't 14 you lucky. 15 THE WITNESS: I am not sure of the exact number, 16 but in the -- the second load of stuff that I took over 17 to the Sierra Club Legal Defense Fund office was partly 18 all stuff that had been produced in the previous, in 19 the federal lawsuit, reports, agency reports, bound 20 volumes of agency stuff, and -- but then it also 21 included some stuff that had not been produced in the 22 first, in the federal case. We went through the latter 23 of the stuff that had not been previously produced. 24 MS. PONZOLI: Thank you. 25 MR. HYDE: Is that all? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 207 1 MS. PONZOLI: That is all. I just wanted to 2 clarify, I think we met all of the requirements and I 3 am not sure it was clear from the record that we had. 4 MR. HYDE: May I suggest we take a five-minute 5 break? 6 MR. GREEN: Thank you for that clarification, Ms. 7 Ponzoli. 8 (Brief recess.) 9 MR. HYDE: Let's go back on the record. 10 EXAMINATION 11 BY MR. HYDE: 12 Q Just for purposes of the record, my name is 13 William Hyde. I am with the Tallahassee office of Peeples, 14 Earl & Blank, and I am here today on behalf of the Florida 15 Sugar Cane League, Inc., New Hope South, Inc., and U.S. 16 Sugar Corporation. 17 As Mr. Green said at the beginning of the 18 deposition yesterday, if you have any doubts about any of 19 the questions I have asked you, if you desire 20 clarification, please don't hesitate to tell me so. 21 What I propose to do here is at first to just go 22 through and clarify some of the questions, clarify in my 23 mind at least some of the questions and answers that, some 24 questions propounded by Mr. Green and some of the answers 25 that you gave to those questions, and then I want to get A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 208 1 into the meat of my deposition. 2 Going back to your background information, I 3 believe that you testified that you did not take courses in 4 college or in graduate school on the subject matters of 5 biology, wetlands, water quality or hydrology. 6 Is that correct? 7 A I have had courses in zoology. 8 Q Did you ever take any courses in economics at the 9 graduate or undergraduate level? 10 A No. 11 Q Do you purport to claim any expertise in the area 12 of economics or financial projections or cost benefit 13 analyses? 14 A I would not offer opinion testimony in the field 15 of economics. 16 Q I believe you testified yesterday that you were 17 working under a grant administered by the Florida Wildlife 18 Federation, and I would like to find out when you began 19 working with the Federation, at least in the context of the 20 Everglades. 21 A I began working with the Federation in the summer 22 of 1987. 23 Q What brought about that working relationship? Did 24 you approach them or did they approach you? 25 A I approached them. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 209 1 Q For what purpose? 2 A I wanted to work with Florida Wildlife 3 Federation. I wanted to be associated with Florida 4 Wildlife Federation. 5 Q Did you have a specific proposal for them to 6 consider, such as doing work in the Everglades, for 7 example, or a specific project in mind, or was it more in 8 the nature of a general inquiry about prospective future 9 employment? 10 A I wished to be associated with Florida Wildlife 11 Federation for the purpose of working on Lake Okeechobee- 12 Everglades issues. 13 Q What did -- what were your first tasks for the 14 Federation in general terms? 15 MR. WHITE: I object to the form of the question. 16 THE WITNESS: What do you mean by tasks for the 17 Federation? 18 BY MR. HYDE: 19 Q What projects have you become engaged in, again, 20 in the context of Lake Okeechobee-Everglades issues? 21 A Well, my association with the Federation is such 22 that I determine the work that I do. My association with 23 Florida Wildlife is such that I determine the work that I 24 will do. 25 Q Well, take me through in general terms what you A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 210 1 decided to do on behalf of the Federation, say for the 2 calendar year 1987? 3 A I am thinking I might be mistaken about that 4 date. It might have been the summer of '88. Yes, it was 5 the summer of 1988 rather than the summer of 1987. 6 Q Then change your answer to the year of 1988. 7 A Well, the job as I described it yesterday, to 8 produce educational material for conservationists, to work 9 with other conservationists in determining, members of the 10 Everglades Coalition in determining the direction that the 11 Everglades Coalition would take, and in attempting to 12 initiate action by state and federal agencies and to 13 respond to actions taken by state and federal agencies, and 14 to perform, as a part of that educational process, to 15 perform technical analyses of various matters related to 16 Lake Okeechobee and the Everglades. 17 I forget, I believe at that time that LOTAC was 18 still in existence, I am not sure about that, but if it was 19 I was participating in LOTAC as well. 20 Q At what point, roughly speaking, did you begin to 21 assume more of an advocacy role on behalf of the 22 Federation? By advocacy, I mean initiating contacts with 23 regulatory agencies, trying to promote an agenda with the 24 agencies, the affected agencies, themselves. 25 MS. PONZOLI: Object to the form of the question. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 211 1 You have assumed a lot of things in your question. 2 MR. WHITE: Dr. Parks -- I have a continuing 3 objection to the form of the question, to the extent 4 that it misrepresents the nature of Dr. Parks's 5 relationship with the Florida Wildlife Federation. 6 I think Dr. Parks testified that the Florida 7 Wildlife Federation was administering a grant and Dr. 8 Parks was working independently under that grant; to 9 the extent that your questions keep identifying his 10 activities on behalf of the Florida Wildlife Federation 11 misrepresents Dr. Parks' testimony with regard to his 12 relationship with the Florida Wildlife Federation. 13 MR. HYDE: Okay, so noted. 14 THE WITNESS: Could you repeat the question? 15 BY MR. HYDE: 16 Q At what point did you begin initiating contacts 17 with affected regulatory agencies concerning Everglades 18 issues, roughly speaking? I am not trying to pin you down 19 to a specific date. 20 MS. PONZOLI: I still object to the form of the 21 question. I think it assumes things that I don't 22 believe are on the record. 23 THE WITNESS: I have been in contact with state 24 agencies dealing with the Everglades and Lake 25 Okeechobee, you know, in one way or another since 1973, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 212 1 and that contact has continued through this, through 2 this day. 3 BY MR. HYDE: 4 Q You mentioned a few moments ago that you were 5 asked also to perform some technical analyses for the 6 Federation. On what subject matters? 7 A I didn't say that I was asked to perform technical 8 analyses. 9 Q Did you say that you did perform some technical 10 analyses? 11 A Yes. 12 Q On what subject matters? 13 A I have generally described how sources of 14 pollution for Lake Okeechobee might be brought into 15 compliance, and the same for sources of pollution for the 16 Everglades. There have been a number of subissues to that 17 that I have analyzed in various ways. All of those 18 analyses have been provided to you in the materials that I 19 produced for this deposition. 20 Q You anticipated my next question. 21 Switching now to the subject matter of mixing 22 zones, I believe that you testified that a mixing zone was 23 not appropriate for nutrients, but I think you did at least 24 imply that mixing zones were appropriate to, for a 25 dissolved oxygen standard, or could be appropriate, is that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 213 1 correct? 2 A Yes. 3 Q Under what circumstances might a dissolved oxygen 4 standard mixing zone be appropriate in the context of 5 agricultural runoff? 6 MS. PONZOLI: Would you read the question back 7 again? I am sorry. 8 (Whereupon, the court reporter read the pending 9 question.) 10 MS. PONZOLI: Object to the form. 11 THE WITNESS: Whenever it meets the requirements 12 of the Florida Administrative Code. 13 BY MR. HYDE: 14 Q Let me see if I can ask the question in a 15 different way. 16 If someone were to come to you and said they have 17 a problem because their agricultural runoff was causing or 18 believed to be causing a violation of the D.O. standard in 19 a receiving water body, what steps would you undertake to 20 analyze whether they might be entitled to a mixing zone for 21 dissolved oxygen? I am not asking you just to think about 22 what the rule says, but what in your practice either as a 23 consultant or in your former employment with the Department 24 of Environmental Regulation might lead you to think what 25 the appropriate parameters might be for such an inquiry. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 214 1 A I would examine the site of the proposed 2 discharge, or the discharge if it was an existing 3 discharge. I would determine whether dissolved oxygen was 4 the only issue, whether some other constituents of a 5 discharge might preclude a mixing zone. I would, of 6 course, look at the classification of the receiving waters, 7 particularly with respect to outstanding Florida waters. 8 Beyond that, I would make a preliminary assessment 9 of the nature of the mixing processes in order to, in order 10 to form a rough estimate of whether the discharge might 11 qualify under the rule for mixing zones, and at that point 12 I would prepare a detailed analysis of what else, what else 13 might have to be done to establish a mixing zone at that 14 particular location. 15 Q You highlighted the possibility of the discharge 16 being in an outstanding Florida water. Let me ask, are 17 OFWs eligible for mixing zones? 18 Let me state it differently. Can a discharge to 19 an OFW be granted a mixing zone? 20 A Well, if it doesn't lower ambient quality, but I 21 can't see why anyone would want one. 22 Q But theoretically, at least, under the rule, an 23 OFW is not automatically precluded from having a mixing 24 zone, would that be correct? 25 A I would like to refer to the rule. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 215 1 Q I believe it is Exhibit 5-A. 2 A I don't think it is written into the -- I don't 3 see it in 17-4.244. However, a mixing zone that was an 4 area that did not meet water quality standards would, I 5 think under almost any circumstances, lower the ambient 6 quality and therefore could not be allowed in an 7 outstanding Florida water. I can't think of a hypothetical 8 where someone would want a mixing zone that didn't lower 9 ambient quality; therefore, I would conclude that just, you 10 would never have a mixing zone in an outstanding Florida 11 water. 12 Q When one obtains a mixing zone for a discharge to 13 State waters, is that mixing zone just for the particular 14 parameter at issue, say, dissolved oxygen, or is it a more 15 general exemption from Class III water quality standards? 16 MS. PONZOLI: Object to the form. 17 THE WITNESS: In practice, it has been, in the 18 cases, in the instances I am familiar with, it has been 19 sized to accommodate all of the pollutants. By that, 20 for a discharge a mixing zone has a single boundary; 21 however, I don't think there is anything that precludes 22 having multiple boundaries for multiple constituents, 23 multiple mixing zone boundaries for multiple 24 constituents. 25 BY MR. HYDE: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 216 1 Q Perhaps I didn't make my question clear. I have 2 heard complaints in the past that DER, when it grants 3 mixing zones because of a particular parameter, say, 4 dissolved oxygen, basically exempts the mixing zone for all 5 water quality criteria except the free-from criteria. Are 6 you familiar with the free-from criteria? 7 A Yes, I am. 8 Q Is that consistent with your understanding of the 9 agency's practice? 10 A No. 11 Q Okay. 12 A There are other criteria in the rules which a 13 mixing must meet. 14 Q I would like to refer you now to Exhibit 5-A, in 15 particular, Rule 17-4.244(1)(f) and (g). That is on page 16 14 of that document. 17 A Yes. 18 Q Both of those subsections list a number of water 19 bodies in which, I guess the basic point is how large the 20 mixing zone can be in those water bodies. The first, 21 section (f), speaks to canals, rivers, streams, and other 22 similar water bodies, and section (g) speaks to lakes, 23 estuaries, bays, lagoons, bayous, sounds, and coastal 24 waters. 25 What are the water conservation areas or what A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 217 1 kind of water bodies are they for purposes of either of 2 these provisions? Would they fall in the category of 3 subsection (f) or the category of subsection (g)? 4 MS. PONZOLI: Object to the form. 5 THE WITNESS: The types of water bodies named in 6 (g) are what are commonly known as flat water, and the 7 water conservation areas are flat water; however, 8 marshes are not named in (g). 9 BY MR. HYDE: 10 Q But is it your -- 11 A It is also true that there is downstream flow into 12 water conservation areas, and I guess it depends on the 13 rainfall, are they flat water or flowing water. They could 14 fall under (f) under the right circumstances. These are 15 both rebuttable presumptions in any case. 16 Q Thank you. 17 Yesterday during some questioning by Mr. Green, I 18 believe you made some statements to the effect, and correct 19 me if I am wrong, that discharges of phosphorus in waters 20 from the EAA were causing problems in the water 21 conservation areas. Is that a correct restatement of your 22 position? 23 A Yes. 24 Q I think you further stated that these phosphorus- 25 laden waters were causing the cattail populations of those A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 218 1 water conservation areas to expand. 2 What was the basis for that conclusion or 3 opinion? 4 A In the Everglades, concentrations of cattails are 5 generally associated with three kinds of areas. The first 6 is so-called alligator holes, where animals and birds 7 concentrate and defecate. 8 The second is areas where fires have resulted in 9 combustion of the peat soil underlying the marsh, and those 10 fires are known to release phosphorus from the peat; and 11 the third case is where waters from the EAA are discharged 12 or travel to in more or less concentrated form. Those 13 cattails that occur in the vicinity of points of discharge 14 from the EAA or where the relatively undiluted water from 15 the EAA goes are certainly associated with the discharge. 16 Now, cattails don't grow where there is no water, 17 so water, you know, hydrology is a factor in that sense, 18 but it is known that many areas of the Everglades have 19 similar, have hydroperiods similar to those areas that have 20 the cattails, but they don't have the cattails and they 21 also don't have phosphorus. 22 Where you have the phosphorus, you have cattails. 23 Where you have the same hydroperiod, you may or may not 24 have cattails, depending on the constituency of the water. 25 Secondly, the Everglades is a highly oligotrophic A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 219 1 ecosystem, and it is known cattails, given sufficient 2 fertilizer, can out-compete the native vegetation. This is 3 a, you know, a general principle, and the way plants 4 respond to nutrients, those that are native to oligotrophic 5 environments are generally slow-growing and those that are, 6 occur naturally in environments that are richer in 7 phosphorus are fast growing, as a general principle, and 8 therefore, you would expect that when you add phosphorus 9 that the faster growing species would out-compete the 10 slower growing species. 11 This entire process is very thoroughly described 12 in the Everglades SWIM Plan. 13 Q To your knowledge, are there areas in the 14 Everglades Protection Area that or where there are dense 15 stands of cattails that don't fall into any of those three 16 general categories you outlined earlier? 17 A Not to my knowledge. I would like to add to those 18 categories, there is a fourth, and that is areas that have 19 been, I mentioned fires, peat fires, also areas that have 20 been subject to extensive drainage and air oxidation of the 21 soil, and I do know that in the eastern part of the 22 Holeyland where that has occurred, there also have been 23 some mud fires there. There is some air oxidation, and 24 there are extensive stands of cattails. 25 Q Switching gears, now, again -- A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 220 1 A It was exacerbated by the introduction of the 2 Miami Canal water which is also rich in phosphorus. 3 Q Have you completed that answer? 4 A Yes. 5 Q Concerning the prior drafts of the settlement 6 agreement, I believe you testified that you participated in 7 the development of those prior drafts on behalf of the 8 U. S. Attorney's office. 9 Did you discuss those drafts with people other 10 than the U. S. Attorney's office? 11 MS. PONZOLI: Objection to form. I think you 12 mischaracterized his testimony. He said he did some 13 wordsmithing on a draft or drafts. 14 BY MR. HYDE: 15 Q With that clarification in mind, I guess we will 16 let the record speak for itself, did you discuss those 17 prior drafts with persons other than the United States 18 Attorney's office? 19 A Which prior drafts? 20 Q Any of them. 21 A Prior draft, prior to the one that was entered? 22 Q Yes. Let's put it this way, prior to the one that 23 was finally executed by the U. S. Attorney's office, the 24 Department of Environmental Regulation and the Water 25 Management District. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 221 1 A I did not generally discuss either the concepts to 2 be included in the settlement agreement nor specific drafts 3 of the settlement agreement. I was really not privy to the 4 design of the major features of the settlement agreement. 5 I did on one occasion review -- it was proposed language 6 changes in a draft, in one of the drafts. I assume that 7 there were many drafts as time went on, but there was just 8 this one, and I was asked to take a look at the wording, 9 which I did, and to look at the wording that was there, and 10 the wording that was proposed, and I commented on that. 11 Comments did not really have to do with the broad 12 substance of the settlement agreement. I just never was 13 involved in that. It really had to do with kind of like, 14 how does this language, is this language clear, that kind 15 of thing. 16 Q Were you kept advised by the U. S. Attorney's 17 office or anyone else as to the progress of those 18 settlement negotiations? 19 A I was not kept apprised by the U. S. Attorney's 20 office -- 21 Q Did you -- 22 A -- or anyone else. I heard rumors all of the time 23 from various people. 24 Q Did you discuss with the other, I am calling them 25 conservation intervenors in the federal lawsuit, the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 222 1 settlement agreement process or prior settlement agreement 2 drafts? 3 MS. PONZOLI: Object to the form. I think there 4 is nothing in the record that he saw prior settlement 5 drafts, unless you are referring to the single one that 6 he has just finished testifying to. 7 BY MR. HYDE: 8 Q I asked about, generally concerning the settlement 9 agreement negotiations or the prior drafts that you may 10 have seen, did you discuss them with the other conservation 11 intervenors or their representatives in the federal 12 lawsuit? 13 MS. PONZOLI: Objection. I object to the 14 question. It assumes things that I do not believe are 15 part of the record, Mr. Hyde. 16 BY MR. HYDE: 17 Q Can you answer the question? 18 MS. PONZOLI: Would you read it back to Dr. 19 Parks, please? 20 (Whereupon, the court reporter read the pending 21 question.) 22 THE WITNESS: The conservation intervenors were 23 very concerned about being left out of the settlement 24 process, and we often discussed that; and the second 25 part of your question, as I answered before, I only saw A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 223 1 a draft on that single occasion. I was not privy to 2 the ideas of the settlement agreement until it was a 3 done deal, and that is the only occasion I ever saw 4 drafts and I never discussed those drafts with anybody. 5 BY MR. HYDE: 6 Q During your testimony yesterday I believe you 7 stated your opinion I believe that the SWIM Plan's baseline 8 for discharges into the Loxahatchee National Wildlife 9 Refuge is incorrect. I think you felt there should be some 10 condition which backs out agricultural discharges. Would 11 that be a fair summation of that opinion? 12 MS. PONZOLI: Objection to form. I don't believe 13 he said incorrect. 14 THE WITNESS: Well, what I said was that at the 15 time that Loxahatchee National Wildlife Refuge and 16 Everglades National Park were designated as outstanding 17 Florida waters, in my opinion the pumping stations that 18 affect the quality of waters in Loxahatchee and the 19 Park, those being S-5A, S-6, S-7 and S-8, those pumping 20 stations required a DER permit, and therefore, their 21 effect on ambient water quality should not be used in 22 the baseline determination of the OFW water quality 23 which, which is the point of determination whether 24 ambient quality has or has not been lowered. 25 BY MR. HYDE: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 224 1 Q Is that an expression of your personal opinion or 2 belief, or is that something that you anticipate may be 3 argued by the U. S. Attorney's office in this upcoming SWIM 4 Plan hearing? 5 MS. PONZOLI: Objection to form. He has already 6 offered you the testimony he is going to be giving on 7 behalf of the U. S. Attorney's office at trial, and 8 that was not part of it. 9 THE WITNESS: The U. S. Attorney's office has not 10 asked me to give an opinion on the OFW baseline. 11 BY MR. HYDE: 12 Q Do you have any reason for concluding that that 13 might be an argument advanced by the U. S. Attorney's 14 office in this proceeding? 15 A No. 16 Q When I was perusing your documents on Monday, I 17 noted one contract, for lack of a better term, between you 18 and the United States Attorney's office, and during your 19 testimony yesterday I believe you said there were several 20 contracts. 21 To my knowledge, those other contracts were not 22 produced. Can you explain to me why they were not? 23 A I assumed when I read the, however it is termed, 24 the subpoena, that that would refer to contracts executed 25 that applied after this petition, after your petition was A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 225 1 filed, and that is the most recent contract and that is the 2 one that you were provided. 3 Q During Mr. Green's examination earlier today, I 4 believe you stated that the S-5A, 6, 7 and 8 structures 5 required permits from DER, is that correct? 6 A Yes. 7 Q Do you have an opinion as to whether the S-12 8 structures likewise require a permit? 9 MS. PONZOLI: I object to his offering opinions on 10 subjects that he has not been asked to offer an opinion 11 on. You may answer. I am not stopping you from 12 answering. 13 THE WITNESS: Well, I have an opinion. 14 BY MR. HYDE: 15 Q You haven't any? 16 A I do have an opinion. 17 Q What is that? 18 A A permit is a license to discharge, and it is 19 intended to regulate the activities of the owner of the 20 source of pollution. In this case, the source of pollution 21 is not the owner, maybe-owner, or person controlling the 22 S-12 structures, and that person has no ability or 23 obligation to take remedial action to alter the quality of 24 water being discharged to the S-12 structures. Pollution 25 is coming from the EAA and that is where the remedial A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 226 1 action is required and it is the point of closest discharge 2 that requires regulation. 3 Q I believe you also testified that a series of 4 management and structural changes were necessary to 5 mitigate the adverse environmental consequences of the 6 hydroperiod alteration that has been effected over the 7 years, and I was wondering if when you were referring to 8 structural changes, were you intending to refer to anything 9 other than the stormwater treatment areas? 10 MS. PONZOLI: Object to the form. 11 THE WITNESS: In my previous answer to that 12 question, I tried to make it clear that I considered, 13 shall we call it, hydroperiod, hydroperiod improvement 14 a distinct and separate endeavor from pollution 15 control, and while the STAs could make some 16 contribution to hydroperiod control, their most 17 important function is to control the pollution. 18 Otherwise, there will not be any, the Everglades will 19 be damaged and it will not make, there wouldn't be any 20 point in improving the hydroperiod. 21 Very little has been done towards actually, 22 towards really exploring the management and structural 23 possibilities for Everglades hydroperiod improvement, 24 but I believe that those structural changes could, 25 would encompass structures other than the STAs. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 227 1 BY MR. HYDE: 2 Q What might be some of the structural changes or 3 physical activities that might be beneficial in that 4 regard? 5 A Well, it is really speculative without detailed 6 studies. The basic, the basic tool is a more usable 7 hydrologic model, improvements in the data base. When and 8 if that is developed, then you can begin to look at, to 9 determine the ecological consequences and costs and 10 benefits to all of the, what you might call the 11 constituents of the flood control system, and see what 12 changes might be worth further study. Some of those 13 changes are obvious: increase the amount of storage, 14 increase the efficiency of delivery of water to the urban 15 areas and to south Dade, increase conservation, minimize 16 the loss of fresh water, tide water, that kind of thing. 17 Q I believe you also testified that the stormwater 18 treatment areas could be utilized to help clean up Lake 19 Okeechobee water at the end of the rainy season. I think 20 you further stated that it would help extend the 21 hydroperiod. 22 Do you think that the EAA agricultural interests 23 have some obligation to clean up this Lake Okeechobee water 24 also? By that, I mean financial obligation. 25 MS. PONZOLI: Objection to form. That is a A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 228 1 totally improper question. Read the question back 2 again. 3 (Whereupon, the court reporter read the pending 4 question.) 5 MS. PONZOLI: Totally improper question. I would 6 move to strike such questions from the record. 7 You may answer, Dr. Parks, if you have an opinion. 8 THE WITNESS: Do you mean an obligation under the 9 law? 10 BY MR. HYDE: 11 Q Yes. 12 A I think that is a legal conclusion that is beyond 13 my -- 14 Q Okay. You stated earlier that a further decrease 15 in phosphorus concentrations will ultimately be necessary, 16 and you cited as your support the SWIM Plan. Could you be 17 more specific what portions of the SWIM Plan you were 18 actually referring to? 19 A You said a further decrease in phosphorus 20 concentration -- 21 Q Will ultimately -- 22 A Could you be more specific? 23 Q I think you testified that a further increase in 24 phosphorus concentrations below the interim standard of 50 25 parts per billion will ultimately be necessary. You cited A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 229 1 as your support for that proposition the SWIM Plan, and I 2 wondered if you could be any more specific as to what 3 portions of the SWIM Plan you were referring to? 4 A I am sure I can. It may take a few moments. 5 MR. HYDE: Let's recess until one o'clock. 6 (Lunch recess.) 7 BY MR. HYDE: 8 Q Let's go back on the record. 9 Dr. Parks, you made some comments earlier about 10 the major purpose of your efforts would be to restore the 11 original hydroperiod of the water conservation areas so 12 that they would be used less as impoundments and more as a 13 natural flow-way. Are there consequences of doing that in 14 terms of south Florida's water supply for agricultural and 15 potable water purposes? 16 MS. PONZOLI: Object to the form. 17 THE WITNESS: I didn't use the term, restore the 18 original Everglades hydroperiod. I do not believe that 19 that is feasible and it may not be physically 20 possible. 21 As far as hydroperiod, the thrust of the effort is 22 to do the best we can with what we have got, improve 23 the hydroperiod and prevent unnecessary harm to the 24 Everglades. That is a, if it takes place, it can be a 25 very involved, very long process where everybody's A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 230 1 interests will be considered. I can't conceive of an 2 Everglades hydroperiod improvement project that did 3 serious harm to any segment of a community that relies 4 on a flood control project. I just don't think it 5 would work out that way. 6 BY MR. HYDE: 7 Q Let me ask the question perhaps this way. Do the 8 WCAs have functions other than as habitat? 9 MS. PONZOLI: Object to the form. 10 THE WITNESS: They are very important recreational 11 areas. 12 BY MR. HYDE: 13 Q Do they have a function to, in effect, maintain 14 the -- I am using probably the wrong term -- the head on 15 the south Florida potable water wellfields to the east? 16 A Yes. 17 Q What is that function? How are the water 18 conservation areas utilized to ensure that there is an 19 adequate supply of potable water in those wellfields to the 20 east? 21 A The urban wellfields are principally supplied by 22 local rainfall, rain that falls to the east of the east 23 coast protective levee, which is the eastern boundary of 24 the three water conservation areas. That is, in times of 25 normal rainfall, depending on antecedent conditions, the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 231 1 Biscayne aquifer falls as a consequence of lack of 2 rainfall. Water may be released from the water 3 conservation areas to canals that supply urban wellfields. 4 The conservation areas, of course, by virtue of 5 being wet, wet as in having water on them, also serve to 6 some extent to recharge the Biscayne aquifer, although 7 extensive efforts have been made to prevent that by 8 constructing conservation area 3B and 2B. Seepage was 9 occurring into the areas where they didn't want the water, 10 but some recharge still takes place. 11 Q You stated this morning that you felt the 12 phosphorus limitations being proposed would apply at the 13 point of discharge, and that some allowance would have to 14 be made for hydraulic impact, words to that effect. Could 15 you explain what you meant by "hydraulic impact"? 16 A The areas of hydraulic impact are very limited 17 geographical areas where the velocity of the discharge 18 water almost always in conjunction with construction 19 downstream of the discharge point combines to make, it 20 would create a different ecosystem, even in the absence of 21 pollutants, and in that limited place, you simply wouldn't, 22 there is not Everglades habitat, there would not be 23 Everglades habitat even in the absence of the pollutants in 24 the EAA discharge. In those cases it doesn't make sense to 25 apply the same criteria that you would in Everglades marsh, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 232 1 itself, in the natural part of the Everglades that we are 2 trying to protect, but that zone is quite limited, 3 basically, by water velocity. 4 Q It is basically an area that is disturbed by the 5 water velocity by the pump stations that you are referring 6 to -- 7 A Yes. 8 Q -- or do you intend it to be more extensive than 9 that? 10 The way I see it, if a pump station is pushing a 11 lot of water through, I can see how there is going to be 12 very much that is going to occur within the immediate 13 vicinity, but the flow, the pressure of the water would 14 prevent that from happening, that is, the maintenance of a 15 marshy type system; and is that the area that you are 16 referring to, that impacted area, or are you thinking that 17 there are other, or are there other hydraulic impacts that 18 might be included in this area of impact which I believe 19 you, and I might not have all of the same standards 20 applying to it, it might apply to downstream Everglades 21 marsh habitats? 22 MS. PONZOLI: May I hear the question back again? 23 I am sorry. 24 MR. HYDE: Maybe I could repeat the question, and 25 try to make a better statement. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 233 1 BY MR. HYDE: 2 Q Are there other hydraulic impacts other than the 3 sheer force of the water coming through these pump stations 4 that might determine the size of this impacted area? 5 A By force, do you mean velocity? 6 Q Yes, just the velocity of the water coming 7 through. 8 A I have used the term Everglades marsh. There are 9 other types of Everglades habitat, basically tree islands, 10 sloughs, wet prairies and marshes, and, because some of the 11 discharges are concentrated, put another way, improperly 12 diffused, this water tends to be deeper there. In the 13 absence of excess phosphorus I believe those areas would 14 represent, would be biologically equivalent to sloughs, and 15 therefore, I would confine my, the scope of the area of 16 impact to those areas where the water velocity precludes 17 one of the, any of the major Everglades habitats, or where 18 excavation, a manmade excavation precludes the existence of 19 one of the native Everglades habitats. 20 Q How, if at all, does the dilution of waters from 21 the EAA factor into the 50 parts per billion interim 22 limitation? 23 MS. PONZOLI: Object to the form. I honestly do 24 not understand your question, counsel. I -- can you 25 reword it? Because I even have difficulty letting him A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 234 1 answer it when I don't understand what you have asked. 2 BY MR. HYDE: 3 Q One of the old adages is that the solution to 4 pollution is dilution, and at some point as waters go from 5 the EAA into the WCAs, there is a dilution of those waters 6 in the WCAs, okay, and I am trying to understand how the 7 interim standard relates to the dilution phenomenon. Is 8 there any correlation there? 9 A I would preface this by saying that adage is only 10 an adage for a certain portion of the population, 11 generally those who are dischargers. The interim, the 12 interim standard -- the interim limit, not standard, the 13 interim limit need not contemplate dilution because it is 14 considerably above the level that you would expect, and 15 this is a very complicated question, and I don't want to 16 oversimplify my answer. 17 If the premise is if there is a mixing zone, that 18 is a whole series of questions. If the premise is that 19 dilution will somehow allow a 50 part per billion outflow 20 to meet water quality standards, that implies a mixing 21 zone, because it is known 50 parts per billion will not 22 meet water quality standards, so I don't think dilution 23 enters into any aspect, dilution in the receiving waters 24 does not enter into any aspect of the 50 part per billion 25 STA design figure. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 235 1 Q When you were discussing the scientific 2 application of the water quality rules to the specific 3 sites, I believe you said you have done an analysis of S-5A 4 and that analysis would apply also to S-6, 7, 8, 10 -- or, 5 excuse me, not 10, 8 and 12, but I believe you excluded 6 S-10 from that. Why did you exclude the S-10 structures? 7 A The S-10 structures merely pass polluted water 8 from the EAA on downstream, and it is not necessary to 9 treat them as though they were a source of pollution. 10 Q Where are the S-10 structures located? 11 A They are on the levee that separates conservation 12 area 1 from conservation area 2-A. They are in the levee. 13 Q I believe you also stated that discharges from the 14 S-5A, 6 and 12 structures must also meet the OFW criteria, 15 is that correct? 16 A I believe I went back and corrected that statement 17 about the S-12s. 18 Q So it would be S-5A and 6 structures would have to 19 meet the OFW criteria? 20 A The OFW criteria would have to be met in 21 Loxahatchee Refuge. It is only affected by discharges from 22 S-5A and S-6 and to some extent from the Acme Improvement 23 District. The OFW standards must be met in Everglades 24 Park, and the water quality is determined by all of the 25 discharges into the EPA. The major, the major discharges A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 236 1 are those from the EAA, so that would be all four pumping 2 stations. 3 Q Assume for the moment that the OFW criteria don't 4 apply to the discharges to the Loxahatchee. How, if at 5 all, does that affect your analysis? 6 MS. PONZOLI: Object to the form. 7 THE WITNESS: My analysis of what? 8 BY MR. HYDE: 9 Q Well, does that affect -- are there different 10 parameters at issue, then? Are there different concerns 11 insofar as, for example, the 50 parts per billion interim 12 concentrations go, or maybe even the long-term 13 concentrations? 14 A Well, that is more than one question. The 50 part 15 per billion number is an interim step, not necessarily 16 related to any water quality criterion. It is simply a 17 reasonable first step along the way of producing water of 18 sufficient quality to meet the water quality standards. 19 And now, could you repeat the part about the non- 20 OFW versus -- 21 Q Let me see if I can rephrase it. That might help 22 you. This concerns the long-term standards, whatever they 23 might be. 24 Are they designed to address just OFW criteria, or 25 are they also designed or will they be designed to address A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 237 1 Class III criteria as well? 2 MS. PONZOLI: Are you speaking about under the 3 SWIM Plan, Mr. Hyde? 4 MR. HYDE: Yes. 5 THE WITNESS: They will be -- both criteria apply, 6 OFW and Class III criteria. Presumably one or the 7 other will be more stringent; the more stringent would 8 apply. 9 BY MR. HYDE: 10 Q That completes my clarification questions. 11 I would like you to refer to Exhibit 5-A -- excuse 12 me, that is not correct, the one with 17-302, that is 13 Exhibit 6. 14 What are the water quality standards at issue in 15 this proceeding, according to your understanding, in 16 17-302? 17 A What do you mean by "at issue"? 18 Q Let me put it this way. What violations of water 19 quality standards are alleged in the SWIM Plan to be 20 occurring in the water conservation areas? 21 A My recollection is that the SWIM Plan cites DER 22 reports about water quality violations in the Everglades 23 Protection Area, in the water conservation area, and does 24 not, that the District does not, itself, draw any 25 conclusions about water quality violations. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 238 1 Q Well, can you, or do you know what water quality 2 standards are allegedly being violated? Isn't it a purpose 3 of the SWIM planning process and the stormwater treatment 4 areas and the like to remedy some alleged violations of 5 water quality standards? 6 A Well, certainly -- would you read that back, 7 please? 8 (Whereupon, the court reporter read the pending 9 question.) 10 MS. PONZOLI: Object to the form. Do you want him 11 to answer the last question, Mr. Hyde? There were a 12 couple of them there. 13 BY MR. HYDE: 14 Q Let me see if I can do it. 15 The way I understand it, the following water 16 quality standards are allegedly being violated: one, 17 narrative nutrient standard; two, a nuisance species 18 standard; three, dissolved oxygen standard; and four, a 19 biological integrity standard. 20 Then there has been some mention of the anti- 21 degradation standard as well as the OFW no significant 22 degradation standard. 23 Are there any other standards, to your knowledge, 24 that are allegedly being violated? 25 MS. PONZOLI: Object to the form. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 239 1 THE WITNESS: I think that "allegedly" has a legal 2 meaning. No enforcement action is underway as a 3 consequence of any impact of these discharges on 4 Everglades water quality, so I am a little confused 5 about the term "allegedly." 6 BY MR. HYDE: 7 Q Well, for purposes of your answer, just, that is 8 my term and need not be yours. 9 MS. PONZOLI: I still object to the form. 10 THE WITNESS: The SWIM Plan is a description of a 11 plan for a process that could otherwise, would otherwise 12 occur in the absence of the plan, and that is to permit 13 the stationary installations, stationary pollution 14 sources. That permit must, before it can be issued as 15 an operations permit, an interim permit doesn't meet 16 this test, but before there can be a final operations 17 permit, there must be reasonable assurance that all 18 water quality criteria will be met, and certainly some 19 very profound questions have been raised about mercury 20 in the Everglades. That is one. There are others 21 having to do with ionic strength, chloride 22 conductivity. 23 There are within that what you might call a suite 24 of effects that are a consequence of eutrophication, 25 meaning excessive plant growth caused by nutrient A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 240 1 addition. There is one that is, that prohibits 2 violation of any other standard through nutrient 3 addition. There is one that, I forget the exact 4 wording, it amounts to, you cannot produce, cause 5 biochemical oxygen demand in amounts that result in a 6 violation of the dissolved oxygen standard, and you 7 cannot create floating crud as a consequence of your 8 discharge, and those, all of those you could kind of 9 put in with the nutrient, and, of course, there are 10 questions as to how nutrient pollution interacts with 11 mercury pollution. 12 BY MR. HYDE: 13 Q I believe in a previous deposition in the federal 14 case you may have made some observations or statements to 15 the effect that there may be violations of the ammonia 16 standard and/or the pH standard. Is that something that 17 you believe? 18 A That is true, ammonia, pH, and sulfide. If we are 19 trying to get an exhaustive list here perhaps I should go 20 through the rule parameter by parameter. 21 Q It is not necessary to do that. I would like to 22 ask you some questions about causation in the context of 23 violations of water quality standards. 24 MS. PONZOLI: Can you explain how you tie the two 25 together? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 241 1 MR. HYDE: Well, a water quality violation may 2 occur. The next important step is to determine who is 3 responsible for it, what discharge is responsible for 4 it. 5 BY MR. HYDE: 6 Q How did you, in your experience at DER or in your 7 experience as a private consultant, address the issue of 8 causation when there were conceivably two or more factors 9 that might be contributing to the existence of the water 10 quality standard violation? 11 A I myself never use, I don't remember using the 12 term "violation" unless it refers to a pollution source 13 that requires a DER permit. 14 The water quality standards are minimum criteria 15 for protecting the designated beneficial use. It is -- it 16 can happen in particular circumstances that those minimum 17 criteria are not met, by virtue of entirely natural 18 conditions, by virtue of man-induced conditions which are 19 not abatable, or by virtue of man-induced conditions which 20 are abatable which are exempt; or man-induced conditions 21 which are abatable and are required to be regulated by the 22 Department of Environmental Regulation, and it is the 23 latter case that I consider to be a violation of a water 24 quality standard. 25 Q Okay. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 242 1 A And you asked how is that distinguished from the 2 natural -- 3 Q No, I may get to that in a while. I am just 4 trying to determine how one addresses the issue of 5 causation in the context of a violation of a water quality 6 standard. 7 I will give you a hypothetical example here. 8 There may be two or more dischargers of a given pollutant 9 that, by themselves, might not be creating a violation of 10 water quality standards, but those two discharges 11 considered cumulatively are creating a violation of a 12 standard. 13 How does one apportion blame in that situation? 14 MS. PONZOLI: Object to the form of the question. 15 THE WITNESS: One apportions corrective action, 16 not blame, but I am trying to think of a hypothetical. 17 MS. PONZOLI: You don't have to dream up 18 hypotheticals for Mr. Hyde. You answer his question, 19 that is it. It is not a proper question to start with, 20 but -- I am letting you answer it, but you don't make 21 up questions for him. 22 Do you want to read the question back again, 23 please? 24 THE WITNESS: I remember the question. 25 MS. PONZOLI: You don't have to answer a question A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 243 1 that cannot be answered. 2 Mr. Hyde, if we are going to spend the afternoon 3 making up hypotheticals and facts that are not in the 4 record -- we are not going to spend the afternoon doing 5 that. I have to tell you this isn't going to go on all 6 afternoon. I have been very, very generous in letting 7 you and Mr. Green go far afield, but this is going 8 beyond the pale. 9 MR. HYDE: Ms. Ponzoli, the only thing you have 10 been generous in is making repeated objections. All I 11 would like to do is ask some questions that are 12 directed to the issue of how one determines causation 13 in water quality violations. 14 MS. PONZOLI: I don't think that is actually what 15 Dr. Parks has been listed as an expert for the United 16 States in offering an opinion on, and in my opinion you 17 have no right to be questioning him on it at all, and I 18 think I have been generous and I wish to be given the 19 same generosity in the depositions I will be doing of 20 your experts and of Mr. Green's experts, and we will 21 just see what happens when we get there. 22 If you will form single questions to Dr. Parks, 23 this would probably go easier. Most of your questions 24 are compound questions, and that just adds to the 25 problem. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 244 1 MR. HYDE: I am trying to get it done faster. If 2 you want single questions I will give you single 3 questions. 4 MS. PONZOLI: I definitely want single questions. 5 BY MR. HYDE: 6 Q Can there be multiple contributing sources to a 7 water quality violation? 8 A Yes. 9 Q How does one apportion the blame or responsibility 10 for those multiple sources of that water quality violation 11 when one determines a proposed course of corrective 12 action? 13 A It depends -- 14 MS. PONZOLI: Object to the form. I don't think 15 you have tied this back to anything. Are you talking 16 about when he worked for DER and was looking for a 17 violation, or what are you talking about? 18 MR. HYDE: Yes, I previously said that. 19 THE WITNESS: The regulatory process doesn't 20 generally work by going out and looking for violations 21 and then fixing them up. 22 People who own pollution sources subject to the 23 Department's regulations must apply for permits, and in 24 the permitting process, effluent limits are determined, 25 and as a general practice, it is, most of that work has A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 245 1 been done now, but in the past, in the early days, so- 2 called load allocation would be performed when there 3 were multiple sources of pollution in a, in some kind 4 of a definable water body, and in that process, which 5 is encoded in the rules, each pollution source owner 6 would be given effluent limits. 7 You know, it is not as simple as a shared blame. 8 It is a fairly, it is a fairly complex problem, but it 9 is one that is well understood and it has been done for 10 a long time by the Department. 11 BY MR. HYDE: 12 Q Are you familiar with the biological integrity 13 standard? 14 A Somewhat. 15 Q If compliance with the biological integrity 16 standard is demonstrated, can shifts in benthic 17 microinvertebrate populations still be regarded as 18 indicative of other water quality violations? Do you 19 understand that question? 20 MS. PONZOLI: May I have it back again, please? 21 (Whereupon, the court reporter read the pending 22 question.) 23 MS. PONZOLI: The first question was, do you 24 understand the question? 25 THE WITNESS: I would have to rely on an expert A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 246 1 biologist to answer that in the particular 2 circumstances. I can imagine circumstances where the 3 shifts in the benthic community would represent an 4 imbalance in the aquatic fauna. 5 BY MR. HYDE: 6 Q I think it is the narrative nutrient standard that 7 speaks about -- let me make sure just in case, just to 8 refer to it. Yes, it is the nuisance species standard. 9 A Nuisance species. 10 Q Yes, 17-302.510(3)(q). 11 A At page, what page number? 12 Q I don't have the page number. 13 A I will find it. 14 Q Actually, what you should probably look at is the 15 definition of nuisance species, which is 17-302.200. 16 A I have it. 17 Q That rule speaks about unreasonable interference 18 with a designated use of those waters. 19 First of all, what is the designated use of the 20 waters of the water conservation areas? 21 A They are -- this is a, the designated beneficial 22 use is the designation that is made by the Environmental 23 Regulation Commission, actually, its predecessor, the 24 Pollution Control Board in this case, and it is the uses -- 25 the designated beneficial uses are those which the water A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 247 1 quality standards are designed to protect. In the water 2 conservation areas, those uses are recreation, propagation 3 and maintenance of a healthy, well-balanced population of 4 fish and wildlife. 5 Q What do you -- 6 A There are other uses, so-called lower uses are 7 also protected, such as agricultural water supply, stock 8 watering. 9 Q What do you understand the term "unreasonably 10 interfere" to mean? 11 A That -- to substantially reduce the enjoyment of a 12 designated use. 13 Q Going back again to the biological integrity 14 standard, do you or does the SWIM Plan conclude that the 15 biological integrity standard is being, is not being met in 16 the WCAs, in particular, in WCA 2-A, to the best of your 17 knowledge? 18 A In that regard, the SWIM Plan references DER 19 reports, and I don't believe that the staff of the water 20 management district which wrote the SWIM Plan has ever 21 exerted any independent judgment about water quality 22 violation. They regard that, as I understand it, as DER's 23 domain, and the -- really, the memoranda, the DER memoranda 24 and reports speak for themselves better than I can; but my 25 recollection is it was limited Hester-Dendy data, but that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 248 1 the chief biologist for the Department of Environmental 2 Regulation concluded, based on the totality of the 3 information he had, that there would be violations of the 4 biological integrity standard were Hester-Dendy's to have 5 been in place. 6 Q Who is that chief biologist? 7 A Landon Ross. 8 Q Have you read any reports along that same line by 9 Frank Nearhoof, N-e-a-r-h-o-o-f? 10 A Yes. 11 Q And have you also done some presentations in your 12 capacity as a member of the SAGE committee by Mr. 13 Nearhoof? 14 A Yes. 15 Q Is that, are those reports the basis of your 16 knowledge about this particular water quality criterion? 17 A The DER reports? 18 Q Yes, by Mr. Nearhoof. 19 A No. 20 Q They are reports by Landon Ross, is that what you 21 are referring to? 22 A There are other reports. There are other DER 23 reports other than Mr. Nearhoof's report. 24 Q Are they referenced in Mr. Nearhoof's report, to 25 the best of your knowledge? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 249 1 A I don't know. I assume they are. 2 Q Why don't you give me an example of one of these 3 reports? 4 A DER prepared a report for LOTAC, I think, no, I 5 think it was January of '88, but I am not positive about 6 the date, and I believe there has been a second report, 7 maybe that is an interoffice report. That is an 8 interoffice report. The earlier report was prepared by the 9 Bureau of Water Quality, and included a memorandum from the 10 chief biologist concerning biological integrity. 11 Q I would like you to refer now to the dissolved 12 oxygen standard for Class III waters, and that is Rule 13 17-302.560(21). It is (19). 14 A Do you know what page? 15 Q It is on page 30 of the REGfiles, which is Exhibit 16 6, about a little more than halfway down the page. 17 A Okay, Class III waters, right. 18 Q That states, dissolved oxygen in predominantly 19 fresh waters, the concentration shall not be less than five 20 milligrams per liter. 21 Is dissolved oxygen concentration of less than 22 five milligrams per liter commonly found in waters of the 23 State as a background condition? 24 A Well, that rule also states, "Normal daily and 25 seasonal fluctuations above each level shall be maintained A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 250 1 in both predominantly fresh waters and predominantly marine 2 waters," in certain, well, in certain kinds of waters, 3 dissolved -- natural waters, dissolved oxygen may be less 4 than five milligrams per liter under certain circumstances. 5 Just to say "commonly found" would not be correct. 6 Q Are dissolved oxygen concentrations ever less than 7 five milligrams per liter found in areas of the 8 environmental -- excuse me, the Everglades Protection 9 Area? 10 A Yes. 11 Q As background conditions? 12 A By background -- 13 Q Well, as, in areas that are not phosphorus- 14 enriched, so to speak? 15 A What kind of concentration are you talking about? 16 Q Background. 17 MS. PONZOLI: Counsel, if he cannot answer it 18 because you don't have a common understanding of 19 "background," you may have to give him -- 20 MR. HYDE: Naturally occurring conditions in the 21 Everglades. 22 MS. PONZOLI: I think the problem is it would, the 23 problem is what you are calling background and what he is 24 calling background may be different. 25 THE WITNESS: The description of dissolved oxygen A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 251 1 is more complicated than simply talking about whether or 2 not it ever falls below a particular number. There are 3 diurnal fluctuations in dissolved oxygen in natural 4 systems caused by photosynthesis and a variety of other 5 things. 6 In the natural Everglades, unimpacted, unpolluted 7 Everglades, there certainly are occasions when the 8 dissolved oxygen falls below five, as a natural 9 occurrence, but the characteristic curve of dissolved 10 oxygen through time during the course of the day or 11 through the season is different in those natural 12 background or unpolluted areas than it is in polluted 13 areas, even though a polluted area may be below five as 14 well as natural background. 15 BY MR. HYDE: 16 Q Well, do you consider a dissolved oxygen 17 concentration of less than five milligrams per liter in an 18 unimpacted area to be a violation of the water quality 19 standards? 20 A I think I explained that earlier. I only use the 21 term "violation" when it is caused, when the reason the 22 criterion isn't met, it is caused by an abatable source 23 that is subject to the Department's regulations. 24 Q Okay. 25 A A source that is out of compliance, in other A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 252 1 words, either by virtue of not having a permit or by not 2 meeting its permit requirements. 3 Q As applied to this case, a dissolved oxygen 4 concentration of less than five milligrams per liter in 5 phosphorus-enriched waters would be a violation, whereas 6 the same concentration in unimpacted areas would not be a 7 violation, is that correct? 8 A Not necessarily. 9 MS. PONZOLI: You are answering too soon, Dr. 10 Parks. I don't understand his question as applied in 11 this case. I am not with you. 12 MR. HYDE: As applied to the Everglades Protection 13 Area. 14 MS. PONZOLI: The whole Everglades Protection 15 Area? 16 MR. HYDE: Yes. 17 MS. PONZOLI: I object to the form of the 18 question. These are far-reaching questions. 19 THE WITNESS: As I understood your question, you 20 were asking me was it a violation where there is 21 phosphorus and is it not where it is not, and my answer 22 to that is, not necessarily. 23 BY MR. HYDE: 24 Q Why not? 25 A How much phosphorus are we talking about? What A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 253 1 are the conditions? Is the phosphorus just passing through 2 or has it been there for a while, long enough to alter the 3 community of organisms? Did it come from a bird or an 4 outfall? You know. 5 Q Well, isn't really what you are saying that if the 6 low DO can somehow be traced to a man-induced condition, it 7 is a violation, but if it is natural condition, it is not? 8 A No. 9 Q Could you explain to me why not? 10 MS. PONZOLI: Why isn't that his explanation? 11 Isn't that what he is really saying? Are you asking 12 him to give the same answer he gave before again in a 13 different way? 14 MR. HYDE: No, I postulated something that he did 15 not agree with, and I am asking him to explain why my 16 postulate is incorrect by his lights. 17 MS. PONZOLI: What I am saying to you is, you 18 reframed his answer and you said isn't that what he is 19 saying, and he said, no, that is not what I am saying. 20 He gave you his answer previously, so now you are 21 asking him to give his answer a second time. Is that 22 what you are asking for? 23 MR. HYDE: I am trying to better understand his 24 answer, Ms. Ponzoli. 25 MS. PONZOLI: Then you are going to have to frame A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 254 1 a question he can answer. 2 BY MR. HYDE: 3 Q Did you understand my question? 4 A I would prefer to answer specific questions rather 5 than try to give you an exposition of every aspect of 6 dissolved oxygen which is, you know, fairly complicated. 7 It would be better for me -- I might leave something out, I 8 might, I might be misunderstood. It would be better for me 9 to have individual questions about this subject. 10 MS. PONZOLI: That is also the process. 11 MR. HYDE: That is what? 12 MS. PONZOLI: That is also the deposition 13 process. 14 (Brief recess.) 15 BY MR. HYDE: 16 Q Are anoxic or anaerobic conditions a common 17 characteristic of wetlands? 18 A What kind of wetlands? 19 Q Let's say a marshy system such as the Everglades. 20 A Portions of the water column may be anaerobic 21 under certain conditions. To say that that is common is 22 too general. All marshes are not the same in that respect. 23 Q How would you go about determining whether a low, 24 by that I mean lower than five milligrams per liter, 25 dissolved oxygen concentration is the result of natural A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 255 1 background or the result of an abatable man-induced 2 activity? 3 A What kind of abatable man-induced activity? 4 Q Agricultural runoff, a sewage treatment plant 5 discharge pipe. 6 A I would examine, I would first examine the effect 7 of the discharge on the rate of production of organic 8 carbon. I would also examine the discharge to see if it, 9 itself, contained oxygen-consuming substances or substances 10 that, by virtue of microbial action, would consume oxygen, 11 or could consume it directly through inorganic reactions. 12 If the biochemical oxygen demand in the water is 13 increased as a consequence of the discharge, either through 14 increased rate of productivity of organic carbon or through 15 direct introduction of oxidizable materials, then you know 16 that there will be an increased rate of oxygen 17 consumption. That could conceivably be compensated by some 18 characteristic of a discharge, compensated for by some 19 characteristic of the discharge. 20 Q Was that a follow-up to your first -- 21 A I am still answering, I am still answering the 22 question. 23 Q All right. 24 A The -- if the discharge flunked that test, so to 25 speak, meaning it had, it did increase the biochemical A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 256 1 oxygen demand, you wouldn't really have to go any further, 2 if you knew that there wasn't, that there was -- no, you 3 wouldn't have to go any further. 4 If it were more subtle than that, then you would 5 need to look at an unimpacted area that was comparable in 6 all of those characteristics that affect dissolved oxygen. 7 Q By that, you mean what, the types of vegetation, 8 the height of the vegetation, the amount of shading, or are 9 you talking about something different? 10 A Do you mean by the factors that affect -- 11 Q Are you talking about comparing apples to apples, 12 like one densely packed sawgrass marsh to another densely 13 packed sawgrass marsh? I am trying to figure -- 14 A There are a number of factors that affect 15 dissolved oxygen. 16 Q How would you compare an unimpacted area with an 17 impacted area? What would you need to select to make that 18 comparison? 19 MS. PONZOLI: Mr. Hyde, you are asking him to 20 frame hypotheticals for you. You have not defined what 21 the unimpacted area is like. 22 MR. HYDE: He said -- 23 MS. PONZOLI: Mr. Hyde, this is a series of 24 impossible questions put to an expert who is not listed 25 by the United States as an expert in these particular A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 257 1 areas. I am letting him answer your questions, but 2 you've got to put to him fairly framed questions. 3 MR. HYDE: I would like to point out he has been 4 offered as an expert on the application of state water 5 quality standards, and I am trying to interpret or see 6 what his understanding is about the interpretation of 7 some of those standards. 8 Secondly, I think it is quite relevant to the 9 subject matter of this proceeding and to his testimony 10 generally, and I do not think my questions are 11 unintelligible, and, in fact, you keep referring to 12 hypotheticals I am using when, in fact, I am giving him 13 back the very terms he is utilizing. 14 He said, an unimpacted area. I asked him, how do 15 you determine an unimpacted area? That was his term, 16 not mine. 17 MS. PONZOLI: He is building off of your original 18 hypothetical, and the problem lies with the original 19 question, and it doesn't get better every time. 20 Now, if you want to go back and read back whatever 21 your question is, if Dr. Parks can answer it, he is 22 certainly free to answer it. If he cannot answer it 23 without building more hypotheticals for you, then you 24 are going to have to frame a question for him that he 25 can answer. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 258 1 BY MR. HYDE: 2 Q Dr. Parks, when you were referring to more subtle 3 factors, as it were, you suggested, I believe, that you 4 might like to compare an impacted marsh with an unimpacted 5 marsh, is that correct? 6 A Maybe unimpacted is not sufficiently precise; a 7 marsh that is comparable in all those, in all those aspects 8 that affect dissolved oxygen, but is not impacted by the 9 discharge in question. 10 Q What are those aspects that affect dissolved 11 oxygen concentrations? 12 A Those aspects that are independent of the 13 discharge. 14 Q Can you give me an example of those aspects? 15 A I am going to. 16 Q Okay. 17 A Those are -- well, an example is the flow 18 velocity, the water flow, the water velocity. 19 Q How does that affect dissolved oxygen 20 concentrations? 21 A Water velocity affects, in conjunction with 22 roughness or other factors that cause turbulence, affects 23 the top to bottom mixing and thereby affects the reaeration 24 and the vertical gradient of dissolved oxygen. 25 Q Are there other factors that you can identify that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 259 1 affect dissolved oxygen concentrations? 2 A This is the problem with hypotheticals. I am 3 tending to think, because we are involved with the 4 Everglades situation, I am tending to think in terms of the 5 impact being caused by nutrients. Is that what you are 6 intending with your hypothetical? 7 Q No. I am just asking you what kind of factors can 8 affect dissolved oxygen concentrations. 9 MS. PONZOLI: Anywhere in the world, Mr. Hyde? 10 MR. HYDE: We were using the Everglades as an 11 example. I think it might be best to relate it to the, 12 to this case. It would certainly be the most 13 constructive examples, and it seems to me there would 14 be a whole host of these that could affect dissolved 15 oxygen concentrations, at least my reading leads me to 16 believe that. One is, as you suggested, water flow. 17 MS. PONZOLI: And your question to him is to list 18 everything he can think of that will affect dissolved 19 oxygen in the Everglades? 20 MR. HYDE: Yes. 21 MS. PONZOLI: Have you listed all that you know, 22 Dr. Parks? 23 THE WITNESS: No. 24 MS. PONZOLI: Would you do a list for him without 25 explanation? He wants a list. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 260 1 THE WITNESS: The problem is, we go back to the 2 original question. 3 MS. PONZOLI: I have said that. 4 THE WITNESS: It is how to pick out the discharge 5 impact factors from the other factors and compare, 6 determine what, if anything, in the discharge is 7 causing a lowering of dissolved oxygen below the 8 minimum Class III criteria. I understand that to be 9 the original question, and now I am in the process of 10 answering that, and as I -- as I try to split out the 11 impact, I am having a lot of trouble with that as a 12 hypothetical, unless I postulate a particular kind of 13 impact. 14 MS. PONZOLI: You are not supposed to be doing 15 that. You are not making his questions for him. You 16 just answer his question. If you cannot answer it any 17 further, then you stop. 18 THE WITNESS: That is my explanation of why I am 19 having difficulty. 20 BY MR. HYDE: 21 Q You cannot answer it, then, I take it, is that 22 correct? 23 A Not in the way it is framed. 24 Q Let me ask you if the following aspects might 25 affect water quality DO concentrations: the amount of A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 261 1 vegetative shading? 2 A Yes. 3 Q How? 4 A It would affect the rate of metabolism and 5 reproduction of phytoplankton. 6 Q The time of day? 7 A Yes. 8 Q How? 9 A It affects the shading. 10 Q Bottom sediments? 11 A Yes. 12 Q How? 13 A By the extent of oxygen demand, the ability to 14 support attached algae. 15 Q The types -- 16 A The ability to act as a substrate for oxygen- 17 consuming organisms. 18 Q The type of vegetation? 19 A Yes. 20 Q How? 21 A Rate of production of organic carbon detritus, 22 rate of metabolism of roots. 23 Q When I say vegetation, I don't intend that to be 24 confined strictly to cattails, for example, or sawgrass. 25 What about other types of vegetation? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 262 1 A For example? 2 Q Periphyton, p-e-r-i-p-h-y-t-o-n. 3 A Would the type of periphyton affect? 4 Q Yes. 5 A I don't know about differences in the rate of 6 consumption of oxygen per unit mass of different types of 7 periphyton. 8 Q So you are not sure of that particular factor? 9 A I am not exactly sure what the question is. Is 10 the question, can periphyton affect dissolved oxygen? 11 Q Yes. 12 A Yes. 13 Q How would you say that it affects it? 14 A They would use oxygen, they consume oxygen. 15 Q Is it sort of a wash? They consume some during a 16 portion of the day and release it during other portions of 17 the day? 18 MS. PONZOLI: Object to the form. Are you talking 19 about the same -- 20 MR. HYDE: I am asking for my benefit. 21 THE WITNESS: No, it is not necessarily a wash. 22 BY MR. HYDE: 23 Q Do they produce more than they consume, or is it 24 vice-versa? 25 MS. PONZOLI: Object to the form. You have not A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 263 1 defined which kind of periphyton. 2 THE WITNESS: It depends upon whether the organic 3 carbon is fixed, is consumed in the water column or 4 not, and whether the oxygen escapes to the atmosphere. 5 BY MR. HYDE: 6 Q I would like to provide you with a document which 7 we shall label Exhibit 31. 8 (Whereupon, Exhibit No. 31 was marked for 9 identification.) 10 BY MR. HYDE: 11 Q Dr. Parks, I found this document in the boxes that 12 you produced for my benefit on Monday, and it is being 13 given to you just as I found it. 14 Do you recognize both the cover routing and 15 transmittal slip and the attached memorandum? 16 A Well, it has a DER transmittal slip which is 17 addressed to me. I can't read who it is from. 18 Q Is that perhaps the signature of Jay Thabaraj? 19 A It could be. 20 Q Does the date stamp on the cover slip of February 21 5, 1986, indicate the date that you received it? 22 A Probably. 23 Q Are you familiar with the attached document, the 24 memorandum? 25 A No. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 264 1 Q Do you think this attached document was appended 2 to the routing slip to you? 3 A Probably. 4 Q But you don't recall having reviewed it? I am 5 asking you that question because I don't want to try to 6 pull a fast one on you. I am just trying to determine 7 whether this is a document that you have reviewed at some 8 point in the past. 9 A I am sure I read it in 1985 or '86 or whenever I 10 got it. I probably saw it before that, too. 11 Q If you had never read it, I don't need to ask you 12 any more questions about it. 13 A I didn't say I had not read it. 14 Q Well, if you are not familiar with it, let's put 15 it that way. 16 A What is this, what number was this? 17 Q 31. I would like to ask you some questions now 18 about the narrative nutrient and nuisance species 19 standards. 20 The first general question is -- well, it is an 21 observation. I have seen that a number of people seem to 22 regard these two rules as almost being interchangeable or 23 different ways of saying the same thing. 24 Do you subscribe to that notion? 25 A Which two rules? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 265 1 Q Narrative nutrient and nuisance species. 2 A Oh, no. 3 Q How would you differentiate the two? 4 A Plain reading, doesn't seem to me to say the same 5 thing. 6 Q What are, why don't you turn to the definition of 7 nuisance species in Exhibit 6? 8 A Okay. 9 Q Actually, look at 17-302.200, the definition of 10 nuisance species. 11 What, after having looked at that definition, what 12 do you consider to be examples of nuisance species in the 13 context of the water conservation areas? Perhaps I should 14 ask you specific questions. 15 Do you consider meleleuca to be a nuisance species 16 under this definition? 17 A Yes. 18 Q What about Brazilian pepper? 19 A Where are we talking about? 20 Q In the water conservation areas. 21 A I don't know that it occurs other than on spoil 22 areas. 23 Q Would you still consider it to be a nuisance 24 species if it occurred in waters of the State? 25 MS. PONZOLI: Object to the form of the question. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 266 1 I think he has already answered that. I don't know if 2 it is clear to you. 3 THE WITNESS: I think that would depend on the 4 number of biomass or areal extent. 5 BY MR. HYDE: 6 Q Are cattails nuisance species? 7 A Under what circumstances? 8 Q In the water conservation areas. 9 A Again, I would say are you asking me, are they, is 10 every cattail under every -- 11 Q Is a cattail automatically a nuisance species -- 12 A No. 13 Q -- in the water conservation area? 14 A No. 15 Q Under what conditions does it become one? 16 A When it meets the definition of nuisance species 17 given in the rule, and the cause of the nuisance species is 18 as defined by the rule. 19 Q I take it, then, that the nuisance species, to be 20 a nuisance species, it must be either preventing or 21 unreasonably interfering with the designated use of a water 22 body? 23 MS. PONZOLI: Object to the form. 24 BY MR. HYDE: 25 Q Is that correct? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 267 1 A That is what it says. 2 MS. PONZOLI: You are misstating the rule as it is 3 written. 4 THE WITNESS: It says reasonably be expected to 5 prevent or unreasonably interfere with the designated 6 use of those waters. If my answer was ambiguous, what 7 I mean is that when a cattail meets this test and it is 8 in the causation test, which is also in the rule, then 9 it is a nuisance species. 10 BY MR. HYDE: 11 Q What causation test were you referring to? 12 A 17-302.510, surface waters, general criterion 13 (5)(q), substances and concentrations which result in a 14 dominance of nuisance species, none shall be present. 15 Q So you regard the term "result" as the causation 16 test? 17 A Let's -- I would -- causation is not a good 18 description. A good description is the rule as I just 19 stated it. 20 Q Dr. Parks, one of the central controversies in 21 this case is whether the concentrations of cattails found 22 in, particularly, WCA-2A are caused or result from 23 phosphorus concentrations in water discharged from the EAA, 24 or are caused or result from hydroperiod mismanagement. 25 Can you differentiate between the two? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 268 1 A By differentiate between the two, do you mean do I 2 know the difference? 3 Q Can you say one is responsible or the other, or 4 that one is more responsible than the other if they are 5 both responsible? 6 MS. PONZOLI: I believe this has been asked and 7 answered, counsel. 8 MR. HYDE: It has been asked. It has not been 9 answered. 10 MS. PONZOLI: I think it has been. I will allow 11 him to answer it again. 12 THE WITNESS: Since very early in the discussion 13 of water quality violations in the Everglades, 14 ecological changes and so on, there have been 15 statements by various lay people associated with the 16 sugar industry about the idea that cattails were 17 somehow caused by hydroperiod rather than nutrients. 18 In all of these years, I have yet to see a report by a 19 scientist backed up by any kind of data that suggests 20 that hydroperiod alone could create the kind of dense 21 monocultures of cattail that are found in the vicinity 22 of the points of discharge from the EAA, nor do I, as a 23 scientist, know of any hypothesis that would support 24 that, and I know of considerable evidence to the 25 contrary. There is nothing to distinguish. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 269 1 BY MR. HYDE: 2 Q Do you know of any scientific evidence which would 3 suggest that both hydroperiod and phosphorus may together 4 be the cause of these dense cattail stands in WCA-2A? 5 MS. PONZOLI: Asked and answered. 6 THE WITNESS: Cattails will not grow where there 7 is no water, so obviously hydroperiod is a factor in 8 whether cattails exist there or not. 9 BY MR. HYDE: 10 Q What about if water is maintained deeper than, 11 say, sawgrass communities can tolerate them? Wouldn't that 12 be something that -- wouldn't that be a hydroperiod factor 13 that would contribute more toward the cattail communities' 14 growing? 15 MS. PONZOLI: May I hear that question back again? 16 (Whereupon, the court reporter read the pending 17 question.) 18 MS. PONZOLI: I object to the form of the 19 question. 20 BY MR. HYDE: 21 Q Would that be something that would contribute to 22 the expansion of a stand of cattails? 23 A Under what, what water quality conditions? 24 Q Let's just try to divorce the water quality 25 conditions for the moment, and just say that the water is A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 270 1 being maintained in a deeper depth. 2 MS. PONZOLI: I am going to object to his 3 answering these questions because I think he has 4 testified repeatedly that in his opinion the cattails 5 grow where there is nutrient enrichment, so you are 6 asking him to put aside what he believes to be a 7 scientific fact in order to answer your hypothesis, and 8 I don't think he has to do that. 9 MR. HYDE: What I am trying to get is an 10 acknowledgement that there are factors other than 11 phosphorus which may contribute to the growth and 12 expansion of the cattail communities, which appears to 13 be a scientific fact that most everybody that I have 14 read seems to acknowledge. 15 MS. PONZOLI: Then you don't need Dr. Parks, Mr. 16 Hyde. 17 MR. HYDE: I am trying to ascertain if he 18 subscribes to that as well, or if he believes that the 19 expansion of these cattail communities is solely being 20 caused by phosphorus in the waters. 21 MS. PONZOLI: He has explained his belief 22 regarding the expansion of cattail communities several 23 times in his two-day deposition. You are framing a 24 question presently that, in my opinion, cannot be 25 answered. It is a non-real-world situation by the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 271 1 answers that exist in this record by this scientist. 2 BY MR. HYDE: 3 Q Dr. Parks, can hydroperiod be manipulated in such 4 a way as to produce conditions that are more conducive to 5 promoting cattail growth as opposed to sawgrass growth? If 6 you know the answer, please tell me why. If you don't know 7 the answer, just say no, and we will move on to the next 8 issue. 9 A If you have added nutrients to the water, you can, 10 through hydroperiod, facilitate the natural ability of 11 cattail to out-compete sawgrass. 12 Q If phosphorus is not present in those waters, can 13 the manipulation of the hydroperiod still promote an 14 increased growth of cattails? 15 A No. 16 Q Okay. Thank you. I would like you to return now 17 to the narrative nutrient standard. I think it is Rule 18 17-302.560(27). It is on page 31 of Exhibit 6. 19 Are you familiar with that standard? 20 A Yes. There is more than one narrative nutrient 21 standard. 22 Q Do they appreciably differ? 23 A Yes. 24 Q Where is the other nutrient standard? 25 A 17-302.510(5)(j), and then in addition, there is A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 272 1 (q), which we discussed before. 2 Q Let's go back to 302.560(27). Let me just read 3 the standard. It says, quote, "Nutrients," hyphen, "In no 4 case shall nutrient concentrations of a body of water be 5 altered so as to cause an imbalance in natural populations 6 of aquatic flora or fauna." 7 When the rule uses the phrase, quote, "a body of 8 water," end quote, what sort of geographical parameters are 9 being placed on this standard? 10 A I would say it means any water over which the 11 Department has jurisdiction. 12 Q If you were to try and to determine a violation of 13 this nutrient standard in the water conservation areas, 14 what should be the unit of measurement? For example, do 15 you take any square meter area and make that determination, 16 or do you look at a larger geographic area, or do you look 17 at, for example, the whole water conservation area, or do 18 you do that at all? 19 MS. PONZOLI: The original question was, what do 20 you measure? 21 BY MR. HYDE: 22 Q What is the unit of measurement for determining 23 this body of water? 24 A Generally speaking, you wouldn't go out somewhere 25 and determine a violation. You would have set limits on A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 273 1 the pollution source in issuing it its 403.373 discharge 2 permit, so I cannot really imagine a situation where you go 3 out and you say, well, you violated the nutrient standard. 4 What you would do is go through the permitting process and 5 establish water-quality-based effluent limits for the 6 pollution source that met this nutrient standard and all 7 other nutrient standards. 8 Q Let's say you are not in the permitting context. 9 Let's say you are in a notice of violation mode. 10 MS. PONZOLI: Object to the form. 11 BY MR. HYDE: 12 Q How do you determine whether a discharger has 13 violated this standard in terms of impacts upon the body of 14 water? 15 MS. PONZOLI: Object to the form. I think he has 16 indicated several times what he considers a violation 17 situation. Maybe I am mistaken, Dr. Parks. 18 THE WITNESS: This is simply a hypothetical that 19 wouldn't, in my experience, wouldn't occur. Either the 20 discharger has a permit that the owner is not complying 21 with, or else he has no permit and the violation is not 22 having a permit. 23 If he has a permit, it has effluent limits that 24 produce the result of no violation of this standard. 25 BY MR. HYDE: A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 274 1 Q But don't you have to measure the impacts over 2 some area? 3 Let me give you a real example. Let's say you 4 have a square meter in the middle of WCA-2A. It is a very 5 densely packed cattail monoculture with low DO, high 6 phosphorus concentrations. Does that, by itself, indicate 7 that there is a violation of the narrative nutrient 8 standard, or do you look to whether there has been, or 9 whether nutrient concentrations are in an entire body of 10 water that may have caused that imbalance in natural 11 populations of the flora and fauna in that body of water? 12 MS. PONZOLI: Object to the form. I think that 13 has been asked and answered, the different forms may be 14 different forms than the way you are asking at this 15 time, but multiple times through this deposition, and I 16 object to the hypothetical, that again, it is not a 17 real world situation, facts are not in the record. If 18 you could frame it some other way, I don't have a 19 problem with his trying to answer the question, but 20 this one is not. 21 MR. HYDE: Ms. Ponzoli, I think you are afraid of 22 the answer. 23 MS. PONZOLI: I am not afraid of the answer, Mr. 24 Hyde. Why don't you -- 25 MR. HYDE: I am trying to determine what the unit A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 275 1 of measurement is. 2 MS. PONZOLI: You got your answer. You don't like 3 the answer. 4 MR. HYDE: I didn't get -- 5 MS. PONZOLI: You don't get to ask the question 6 until you like the answer. That isn't the way it 7 works. You get the best answer he can give you and he 8 will give you the best answer he can. You have got to 9 ask a decent question. 10 MR. HYDE: I have been asking, Ms. Ponzoli, other 11 than your repeated coaching of the witness. 12 MS. PONZOLI: I am not coaching the witness. You 13 are asking poor questions, and I am not going to have 14 him answering poor questions just because you will not 15 form a single decent question. 16 That is the problem. It is not the problem that I 17 will not let him answer. I will -- I have a record for 18 a day and a half of letting this man answer virtually 19 everything. 20 BY MR. HYDE: 21 Q Well, I will ask this one final question and it 22 may be a repeat. I want to see if you can repeat it for my 23 benefit so we can move on to some different point. 24 Do you know whether there is a geographical 25 component to determining whether there is a violation of A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 276 1 this nutrient standard, yes or no? 2 A There could be. 3 Q How could there be? 4 A I would have to rely on expert biologists to 5 determine if there was a geographical component in 6 determining imbalance in natural populations of aquatic 7 flora or fauna. It is not an uncommon problem in knowing 8 it, what is your point of reference for, for change, and 9 that is all I would rely on, an expert biologist. 10 And to complete my answer, I would say that a 11 violation in this context is hypothetical, and that is why 12 I had such difficulty answering it. 13 Q The rule speaks to causing an imbalance in the 14 natural populations of aquatic flora and fauna. Do you 15 know what species of aquatic flora or fauna have been 16 identified in the SWIM Plan as being indicative of this 17 imbalance in natural populations? 18 A No. 19 Q Do you regard the several water conservation 20 areas as being comparable in terms of habitat values or 21 characteristics? 22 A Anything can be compared. 23 Q Let me ask the question a little bit differently. 24 Is the water conservation area 1, the Refuge, a 25 system that is strikingly similar to WCA-2A? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 277 1 A By strikingly similar, in terms of its present 2 habitat? 3 Q Yes. 4 A No. 2A has been severely degraded by discharges 5 from the EAA. 6 Q Is the Refuge a relatively more oligotrophic 7 system than the other water conservation areas? 8 A In the present condition? 9 Q Yes. 10 A I think you have got to begin to specify some 11 qualities to talk about the degree of eutrophication, and 12 to say this is more oligotrophic than that is, in my 13 understanding, and I am, after all, not a biologist, a 14 fairly complicated question. 15 Q Do you consider the concept of oligotrophic to be 16 more a biological question than a water chemistry question? 17 A Well, trophic state is a biological consequence of 18 water quality. They are not totally independent. 19 Q Do you intend to offer any opinions at the final 20 hearing in this matter concerning the stormwater treatment 21 areas, their design, treatment efficiencies, capabilities, 22 or the like? 23 MS. PONZOLI: He has not been asked to. 24 THE WITNESS: "Or the like"? I don't know what 25 else you would cover. Would you be more specific? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 278 1 BY MR. HYDE: 2 Q As to their treatment efficiencies? 3 A No. 4 Q Their design? 5 A No. 6 Q Their sizing? 7 A No. 8 Q You seemed to hesitate when you said no that time. 9 Is that just an interpretation? 10 A Well, I was going to ask you to qualify sizing. I 11 assume I might be asked, is this a reasonable first step to 12 take, and I have given an opinion on that, and that 13 includes size. 14 Q Would you be offering an opinion as to whether, 15 for example, the stormwater treatment areas ought to be 16 35,000 acres or 50,000 or 70,000? 17 A An opinion based on what? 18 Q I am asking you whether you are going to offer an 19 opinion in that realm? 20 A No. 21 Q During the course of the last two days we have 22 been talking an awful lot about phosphorus, almost as if it 23 is, there is only one type of phosphorus. Is that in fact 24 true? 25 A No. Phosphorus -- no, it is not true. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 279 1 Q Are there different types of phosphorus found in 2 the EAA waters? 3 A Yes. 4 Q What other types of phosphorus? 5 A Well, generally speaking, there is orthophosphate, 6 orthophosphite, soluble reactive phosphorus, which includes 7 orthophosphate and other phosphate, some of which may be 8 dissolved and some of which may be in particulate form. 9 There are a variety of ways of categorizing the different 10 forms of phosphorus that occur in nature. I have given you 11 one of them. 12 Q You basically listed four categories, and correct 13 me if I am wrong, one, orthophosphate and soluble reactive 14 phosphate and dissolved phosphate and a particulate 15 phosphate? 16 A They are not mutually exclusive. 17 Q Are any of these types of phosphate of greater 18 concern in their impacts, possible impacts upon the water 19 quality of the water conservation areas? 20 A Not in the long run. 21 Q Does that imply that in the short-run there are 22 differences? 23 A There are differences among the phosphorus, the 24 forms of phosphorus that -- the differences in the way the 25 forms of phosphorus are biologically expressed. They are A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 280 1 caused by the differences in their rate of availability to 2 the organisms that use them, and so in a dynamic system, 3 changing the proportions of the forms of phosphorus, 4 changing the flow rate, it can change the outcome, the 5 biological outcome, so that in the short term there might 6 be, there might be differences in the biological expression 7 that results from addition of a given mass of phosphorus of 8 one kind versus another kind. Over the long haul, it is 9 going to all get equalized out. 10 Q Are you saying -- let me give you sort of an 11 example to see if you agree with me. A certain type of 12 phosphate might be more readily usable by microphytes such 13 as cattails, thereby promoting their growth, at a greater 14 rate than an equivalent loading of some other type of 15 phosphate, is that a conceivable scenario? 16 A I don't know the answer to that with respect to 17 cattails. 18 Q Will the proposed stormwater treatment areas 19 remove better certain of these categories than others? 20 MS. PONZOLI: I am going to object to the form, I 21 am going to object to the question. He has already 22 testified that he will not be offering testimony of 23 treatment efficiencies of STAs. 24 THE WITNESS: Could you repeat the question? 25 (Whereupon, the court reporter read the pending A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 281 1 question.) 2 THE WITNESS: I think that would depend on the 3 quality of the water flowing into the treatment areas. 4 BY MR. HYDE: 5 Q I think that completes my questions regarding the 6 general subject of alleged water quality violations. I 7 would like to ask you a few background questions. 8 A Do you suppose we could take a little break? 9 Q Sure. 10 (Brief recess.) 11 BY MR. HYDE: 12 Q Let's go back on the record. 13 Dr. Parks, when you offered the opinions that you 14 would be testifying about earlier to Mr. Green, I wasn't 15 sure whether those are all of your opinions or just the 16 opinions you are going to offer as part of the U.S. 17 Attorney's case. Will you be offering any different 18 opinions on behalf of any other parties? 19 MS. PONZOLI: Objection to form. This is a United 20 States case. 21 THE WITNESS: No. 22 BY MR. HYDE: 23 Q That just foreclosed a whole line of inquiry. 24 Thank you. 25 I would like you to go back a little bit in time A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 282 1 and tell me about some of the circumstances of your 2 involvement in the federal lawsuit, the filing of the 3 federal lawsuit. 4 Did you meet with then acting U. S. Attorney 5 Dexter Lehtinen at any time prior to the filing of that 6 complaint? 7 A Yes. 8 Q Approximately at what time? 9 MS. PONZOLI: Mr. Hyde, I am going to let him 10 answer these questions unless they go into privileged 11 discussions, but I think you are wholly improper, I 12 want to put it on the record. 13 THE WITNESS: August, '88. 14 BY MR. HYDE: 15 Q Did you meet with anyone else besides Mr. 16 Lehtinen? 17 A When? 18 Q In August of 1988. 19 A Do you mean were there other people? 20 Q Let me ask you this. Were there other meetings, 21 other than that one you just referred to in August of 22 1988? 23 A At any time? 24 Q Yes, at any time prior to the initiation of the 25 lawsuit. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 283 1 A Yes. 2 Q Tell me about the first meeting that was in August 3 of 1988. Who attended that meeting? 4 A Various conservationists. Mr. Lehtinen, and some 5 people from the Park, the Refuge, I believe, it might not 6 have been Park and Refuge then, it might have just been 7 conservationists, and Mr. Lehtinen and people from his 8 staff. 9 Q Can you be more specific about some of the other 10 conservationists that met with you on that first occasion? 11 A I am just trying to remember. I think that 12 Charles Lee was there, I think that Jim Webb was there, and 13 I don't really recall who else. There were others. 14 Q What was your purpose of meeting with the U. S. 15 Attorney at that time? 16 A He invited me. 17 Q Do you know why he invited you? 18 A I think that he wanted to ask conservationists 19 what their views were on the state of the Everglades and 20 what should be done about it. 21 Q To your knowledge, had he been solicited by anyone 22 else to take some affirmative action regarding the 23 Everglades? 24 A I don't have any knowledge of that. 25 Q Did he ever discuss with you different theories of A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 284 1 maintaining a cause of action concerning the Everglades? 2 A No. 3 Q Did you meet with him a second time? 4 A I am not sure I even know what a cause of action 5 is. Maybe I shouldn't have answered that so quickly. 6 Q Let me ask it another way. Did you ever discuss 7 with him the feasibility of bringing a suit under, for 8 example, the Clean Water Act, the federal Clean Water Act? 9 A No. 10 Q Did you ever discuss that possibility with anyone 11 else? 12 A Yes. 13 Q And who might that have been? 14 A James Tripp. 15 Q And Mr. Tripp is who? 16 A He is an attorney with the Environmental Defense 17 Fund. 18 Q What was the gist of your discussion with Mr. 19 Tripp? 20 A Some of that is in the documents that were 21 produced for you. I -- we had a general meeting of 22 environmentalists with Mr. Tripp to discuss ways to move 23 forward in correcting the Everglades' pollution problems, 24 and also, the discussion also included Lake Okeechobee. 25 Q Did that conference with Mr. Tripp occur prior to A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 285 1 your meeting with Dexter Lehtinen in August of 1988? 2 A I believe it did, yes. 3 Q Do you know approximately at what time? 4 A No. 5 Q Did Mr. Tripp ever render to you an opinion as to 6 the feasibility of bringing a cause of action under the 7 federal Clean Water Act? 8 A Yes. 9 Q What did he say, in effect? 10 A That agricultural discharges were not regulated, 11 and that -- under the Clean Water Act, and that irrigation 12 return flow was not regulated. 13 Q Did he suggest that you pursue some other 14 alternative, such as an action under state law? 15 MR. WHITE: I am going to object to this line of 16 questioning, that is, discussions between counsel and 17 organizations that were involved in the federal 18 lawsuit, to the extent it goes into privileged 19 communications between counsel and the organizations. 20 MR. HYDE: I am just trying to determine whether 21 any recommendation was made as to pursuing a cause of 22 action under state law. I don't think that is cause 23 for any privileged information. 24 MR. WHITE: If you are asking the witness to 25 disclose what advice he was getting from his counsel A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 286 1 about various procedures that may or may not be 2 feasible, I think that is close to that. 3 MR. HYDE: Let me see if I can rephrase it 4 differently. 5 BY MR. HYDE: 6 Q Did Mr. Tripp ever advise you to take a course of 7 action other than a cause of action under the federal Clean 8 Water Act? 9 A Me, personally? 10 Q The group of you. I understood this to be a 11 conference of various environmental groups. 12 A Well, it was just a general discussion at that 13 conference. 14 Q Going back to your meetings with Mr. Lehtinen, did 15 Mr. Lehtinen, as a result of your first meeting with him in 16 August of 1988, make any commitments to you or to the other 17 conservationists to take a particular course of action? 18 A My sense was that he was exploring and learning, 19 getting information. I don't believe that he made a -- I 20 don't think he made a commitment at that time. I am not 21 sure. 22 Q When did you next meet with Mr. Lehtinen? 23 A Are you talking about the conservationists as a 24 group, or what do you mean? 25 Q You personally. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 287 1 A Well, I don't know. 2 Q Do you -- 3 A I don't recall. 4 Q Do you remember an approximate date? Was this 5 second meeting prior to the filing of this federal 6 lawsuit? 7 A I don't remember. 8 Q Do you recall anyone else who might have been at 9 that second meeting? 10 A I don't have any recollection of the second 11 meeting and so on. I remember the first one very clearly, 12 but -- 13 Q You seemed to imply by some of your earlier 14 answers that there was more than one meeting, in other 15 words. Is this a clarification of that answer? 16 A I don't know what you mean by that. I have met 17 Mr. Lehtinen on a number of occasions under a variety of 18 circumstances. 19 Q I am asking specifically concerning the filing of 20 this lawsuit, his decision to file this lawsuit. 21 A So you are asking me about meetings that took 22 place prior to the filing of the lawsuit? 23 Q Yes. 24 A I only recall the first. 25 Q At what time were you retained by the U. S. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 288 1 Attorney's office to render services on their behalf? 2 A About the time the lawsuit was filed. 3 Q Do you still have a -- are you still being 4 retained by them to render professional services? 5 A Yes. 6 Q Has that relationship been ongoing and continuous 7 since approximately the time of the filing of the lawsuit? 8 A Yes. 9 Q What have the scope of your services been? 10 A It is stated in the contract that was produced for 11 you. I couldn't duplicate the wording. 12 Q It doesn't change from that one contract to any of 13 the other contracts that you may have signed with the -- 14 A There may be minor changes in wording, but there 15 has not been any fundamental difference in my role, nor do 16 I know that there were actual changes in wording. I just 17 don't know for sure. 18 Q Are these contracts just for a short period of 19 time, are they renewed periodically, or are they, do they 20 reflect changes that might reflect a difference in the 21 scope of your services? 22 MS. PONZOLI: Object to the form. I think he just 23 answered your question, or actually you have combined 24 several questions in one. First was a time question 25 and then what is the scope. The scope has been A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 289 1 answered, the time hasn't. 2 BY MR. HYDE: 3 Q Why was there more than one contract signed? 4 A It is the government. 5 Q The government? 6 MS. PONZOLI: We have yearly contracts. 7 MR. HYDE: Yearly contracts? 8 MS. PONZOLI: Yearly contracts. 9 BY MR. HYDE: 10 Q That is fine. That is all I needed to know. 11 Were you involved in any meetings with Lieutenant 12 Governor MacKay just prior to Governor Chiles' now-famous 13 "surrender my sword" speech? 14 A There was a meeting with MacKay and we discussed 15 it yesterday, and we had, we had a reference just to the 16 date and I don't remember when it was. I can look through 17 here if you wish me to. 18 Q Sure, go ahead. 19 A This memo from Tim Searchinger is dated January 20 29, and it discusses things to talk about at the meeting 21 with MacKay, so I take it this was several months before 22 Governor Chiles appeared before Judge Hoeveler. I think it 23 was June 20th. I am not sure. 24 Q Is that the only meeting you had with Lieutenant 25 Governor MacKay prior to the decision by Governor Chiles? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 290 1 A By "you" meaning me personally? 2 Q Yes, you personally. 3 A Well, I have met with Lieutenant Governor -- I 4 have met Lieutenant Governor MacKay, again, the same idea, 5 in a variety of circumstances. I think it was the only 6 time, you know, the conservationists came together and had 7 a meeting on this subject with MacKay. 8 Q I would like to show you two documents which are 9 Exhibit 32 and 33, I will label them. The first is a 10 memorandum from you dated January 25, and the second is a 11 memorandum dated January 26, 1991, from you. 12 (Whereupon, Exhibit Nos. 32 and 33 were marked for 13 identification.) 14 BY MR. HYDE: 15 Q Can you identify the first document, Exhibit 32, 16 for me? 17 A It is a memo from me to several conservationists. 18 Q What is the subject matter of the memorandum? 19 A A meeting with Lieutenant Governor MacKay. 20 Q It is entitled, "Concepts to be presented at 21 January 30 meeting with Lieutenant Governor MacKay." 22 Were these issues contained in the memorandum and, 23 in fact, discussed with Mr. MacKay? I am speaking just in 24 general terms, now. 25 MS. PONZOLI: What was the question? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 291 1 THE WITNESS: One moment, I need to review this 2 memo. 3 MS. PONZOLI: Would you read me the question? 4 (Whereupon, the court reporter read the pending 5 question.) 6 THE WITNESS: Well, I don't know for sure that we 7 covered all of these issues. I know that I would have 8 tried to present all of these issues at that meeting. 9 BY MR. HYDE: 10 Q Would you identify what is Exhibit No. 33? 11 A It is a memo from me to the same group of 12 conservationists as are addressed in Exhibit 32. 13 Q Why did you feel the need to submit this revision 14 of the previous memo that you had done just the day 15 before? 16 A It isn't clear, when it says, "Attached to this 17 memo is a draft of revised SWIM Plan language with my 18 comments," but I don't see the revised SWIM Plan language. 19 I think that, I don't know, I am speculating, because of 20 that statement that something new came out of the water 21 management district and I was responding to that change. 22 Q Just for purposes of the record, this is the 23 document the way I found it, there wasn't anything attached 24 to it. 25 In paragraph 5 on page 2 of Exhibit 33, there is A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 292 1 the statement, and I quote, "There is technical uncertainty 2 about how to purify water prior to discharge so as to 3 render it harmless to the Everglades. Scientists know this 4 can be done, but do not know how much land will be required 5 for artificial marsh treatment." 6 Why was that statement included in this 7 memorandum? 8 A This is being written in January of 1991, much 9 prior to the settlement agreement, and at that time there 10 were claims being made that there was no known way to deal 11 with this problem, and that was to give people an 12 understanding of the state of knowledge that was then 13 current in January, 1991. 14 Q Well, at what time did, to your knowledge, did 15 that uncertainty become certainty? 16 A Well, when the 50 parts per billion was determined 17 as an interim limit, and the corresponding work was done to 18 relate the size and characteristics of the STAs to the 19 uptake of phosphorus in water conservation area 2A, then 20 those two things in combination reduced the certainty to 21 the point where it made sense to move forward -- 22 Q When was this -- 23 A -- with an interim objective of meeting 50 parts 24 per billion, using the design algorithm that is described 25 in the SWIM Plan. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 293 1 Q When did this 50 parts per billion interim 2 limitation come about? 3 A It was a part of the settlement agreement. 4 Q Do you know at what point in those settlement 5 negotiations that figure was fastened upon? 6 A No. 7 Q Were you privy to any of the discussions where 8 that figure was, I don't know, arrived at? 9 MS. PONZOLI: It has been asked and answered. 10 THE WITNESS: What discussions? 11 BY MR. HYDE: 12 Q Were you privy -- I didn't ask this. 13 Were you privy to any of the discussions with the 14 people negotiating the settlement agreement when they 15 latched onto this 50 parts per billion interim limitation? 16 A No. 17 MS. PONZOLI: Object to the form of the question. 18 BY MR. HYDE: 19 Q Are you familiar with an entity known as the 20 coordinating committee? 21 A Just the coordinating committee? 22 Q Yes. 23 A No, I don't think so. 24 Q Are you familiar with any organization that might 25 have those two terms in its title? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 294 1 A Well -- 2 Q Are you familiar with any similarly worded 3 committee, or entity? 4 A Coordinating committee? 5 Q Yes. 6 A Is there some other word in front of it? Not 7 that I know of, but gosh, there must be a lot of 8 coordinating committees. 9 Q Are you familiar with an initiative known as the 10 EPA South Florida Geographic Initiative? 11 A Yes. 12 Q What is that? What is the purpose of that 13 initiative? 14 A I don't know about the purpose. It is a -- 15 federal and state agencies that came together out of 16 concern for the issue of mercury in the Everglades. EPA 17 and DER are prime components of that. That is a joint 18 federal-state effort that is, I believe, concentrating on 19 mercury research, but either is or will or intends to 20 expand the concerns to other aspects of Everglades 21 protection. 22 MS. PONZOLI: Mr. Hyde, may we take five minutes? 23 I have some emergency call. 24 MR. HYDE: Sure. 25 (Brief recess.) A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 295 1 MR. HYDE: This will be No. 34. 2 (Whereupon, Exhibit No. 34 was marked for 3 identification.) 4 BY MR. HYDE: 5 Q Dr. Parks, do you recognize what has been labeled 6 Exhibit 34? 7 A It appears -- I don't really know. It might have 8 been something I wrote. 9 Q Is that -- "might have been" is kind of amorphous. 10 Is that a probability or a mere possibility? 11 A Well, it perpetuates the same error that I 12 described yesterday. 13 Q What is that? 14 A About whether unpermitted pollution sources are, 15 quote, grandfathered, unquote, grandfathered into the 16 determination of ambient water quality with respect to 17 outstanding Florida waters. It looks like something that 18 was written early after the adoption of the OFW rule when I 19 apparently didn't understand what the rule actually said. 20 Q Just a few moments ago prior to our last break you 21 noted that the, at least one of the purposes of the South 22 Florida Geographic Initiative was to investigate mercury 23 contamination in south Florida. To your knowledge, is that 24 Initiative going to be looking into whether waters leaving 25 the EAA might be causing or contributing to that problem? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 296 1 A Since the EAA is potentially such a large source 2 of mercury, I don't see how they could investigate mercury 3 in the Everglades without looking into that. 4 Q Have you formed any conclusions based on your 5 knowledge of available literature, studies, and other data, 6 as to whether waters leaving the EAA may be causing or 7 contributing to that problem? 8 A "That problem" being the mercury -- 9 Q The mercury contamination. 10 A Have I formed an opinion, was that the question? 11 Q I think I used the word "conclusions," but it is 12 the same thing. 13 A The soil oxidation in the EAA, as well as possible 14 prior use of mercury-containing fungicides and other 15 pesticides, makes EAA drainage water a potential source of 16 mercury. 17 In addition, nutrients, through their effect on 18 the increased rate of production of carbon dioxide by 19 plants in the receiving waters, do contribute to anaerobic 20 conditions, and may, through a variety of microbial 21 processes, be contributing to the mobilization of mercury 22 in Everglades' waters. Nutrients, of course, are added to 23 the Everglades in the EAA discharges. 24 These are potentials. I have no definite 25 indication that this is happening, but the potential is A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 297 1 sufficiently large that it ought to be investigated. 2 Q At this point, though, it is basically a 3 hypothesis? 4 A To be tested, yes. 5 Q To be tested? 6 A Yes. 7 Q All right. 8 A As far as I know. 9 Q Do you anticipate that you will be involved in any 10 of these studies? 11 A I don't anticipate that I would perform any of the 12 studies. I could be involved in design or interpretation. 13 Q Or maybe peer review? 14 A It is conceivable. 15 Q Are you familiar with the concept of tradable 16 credits? 17 MS. PONZOLI: This is another area, Mr. Hyde. I 18 really object to continuing questioning. 19 MR. HYDE: It is going to be a very short inquiry. 20 MS. PONZOLI: Good. 21 THE WITNESS: Are you referring to tradable 22 pollution credits as described by Dr. Hahn, with 23 respect to EAA? 24 BY MR. HYDE: 25 Q Yes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 298 1 A Yes, I am. 2 Q Do you have an opinion one way or another as to 3 the feasibility or desirability of implementing that kind 4 of system in the EAA? 5 MS. PONZOLI: Objection to form. It is an 6 incredibly broad question. Feasibility is -- 7 feasibility of Dr. Hahn's proposal, is that the 8 question? 9 MR. HYDE: Feasibility or desirability of 10 implementing that concept in dealing with the pollution 11 problems of the EAA. 12 MS. PONZOLI: But not confined to Hahn's concept? 13 MR. HYDE: No. 14 MS. PONZOLI: I have the same objection. It is 15 worse when you don't even confine it to Dr. Hahn. 16 THE WITNESS: My views are really best expressed 17 in that Op-Ed article that was published along with 18 that of Dr. Hahn's in the Miami Herald. It was in the 19 news clips that were provided in the discovery. 20 BY MR. HYDE: 21 Q Have you expressed either to me or to Mr. Green 22 today all of the opinions, basic opinions that you intend 23 to offer at the final hearing in this matter? 24 MS. PONZOLI: It has been asked and answered. 25 MR. HYDE: I am just trying to clarify the point. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 299 1 THE WITNESS: Yes. 2 BY MR. HYDE: 3 Q The final thing I want you to do, believe it or 4 not, is to identify this document for me. 5 MR. HYDE: Please mark it as Exhibit 35. 6 (Whereupon, Exhibit No. 35 was marked for 7 identification.) 8 BY MR. HYDE: 9 Q Do you recognize this document? 10 A I need a moment to review it. 11 Yes, I recognize it. 12 Q Why did you prepare this document? 13 A I was asking myself the question of, I was 14 thinking about setting up a computer model to simulate a 15 treatment area and I was outlining for myself how I would 16 go about doing that. I was just trying to think it 17 through. Nobody was telling me how they were designing the 18 STAs and I was frustrated, and I was thinking about setting 19 up my own computer model for it, and this was sort of my 20 ideas to myself, I think. 21 Q Was this ever submitted to any other parties? 22 A I don't believe so. 23 Q Let me briefly go through some of my notes. I 24 think I may be finished. 25 I neglected to ask this one question earlier, I am A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 300 1 clarifying it. 2 There has been some concern about a breakup, if 3 you will, of the periphyton mat in portions of the EPA. Do 4 you have any opinions as to whether that breakup is caused 5 by excess phosphorus in the waters of the WCAs? 6 MS. PONZOLI: Objection to the form. I don't know 7 what you mean by "breakup." I have never heard that 8 term. 9 MR. HYDE: It is commonly used in a whole host of 10 public and private presentations. 11 MS. PONZOLI: Okay, fine. If Dr. Parks knows 12 what it means, then he can respond. 13 THE WITNESS: What I know is if you add 14 phosphorus, the mat disappears. 15 BY MR. HYDE: 16 Q Do you assume by its mere presence it is the cause 17 of the mat's disappearance, or can you relate it to some 18 other chemical or biological activity? 19 A I think the clearest indication is in the Park's, 20 Everglades National Park's dosing studies which took place 21 in Shark River Slough, an area of very extensive periphyton 22 mats, and in, actually in both the channel that received 23 phosphorus and the channel that received nitrate, the 24 periphyton mat disappeared. 25 Now, you know, what the primary cause was, and the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 301 1 mechanism, I don't know, but the fact is you put the stuff 2 in the water and the periphyton mat disappeared. 3 Q Is that the only study along those lines that you 4 are aware of? 5 A I believe that there are other areas of the 6 Everglades where there are observations that correlate 7 increases in phosphorus with loss of periphyton mat, 8 including some in the vicinity of the S-12 structures. 9 Q Do you know by whom these other studies or 10 investigations were being performed? 11 A The District has performed, District personnel 12 have performed some, the conservation areas, Park personnel 13 or their contractors, or federal contractors have performed 14 that in the Park. 15 Q Can you be a little more specific in identifying 16 the people with the District or with the Park that might be 17 performing these studies? 18 A No. 19 Q Could you perhaps identify someone who might know 20 who those people are? 21 A I think Steve Davis would know, and -- as far as 22 the District. I think that Dr. Soukup would know as far as 23 the Park. 24 Q I neglected to ask this question earlier, too. 25 You made some reference to discharges to the Loxahatchee A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 302 1 Refuge from the Acme Improvement District. What is the 2 Acme Improvement District and where is it located? 3 A It is a, I think it is a Chapter 298 district, it 4 might be some other kind of special legislation, that is a 5 self-taxing district for drainage purposes, and it is on 6 the northeast, it is northeast of, let's say it is to the 7 east of the Loxahatchee National Wildlife Refuge, and it is 8 a partially urban, partially ranchette kind of thing. 9 Q Does it discharge waters into the Loxahatchee? 10 A Yes. 11 Q Does that discharge in more or less the same 12 fashion that the other discharges to the Loxahatchee occur? 13 A Well, the magnitude is quite different, it is much 14 smaller, and I believe that the water quality is different 15 also. 16 Q How does it differ? 17 A I am not sure. It is draining a different kind of 18 land. It is not draining cultivated land, and I would 19 expect that there would be less soil oxidation and 20 therefore differences in quality. 21 Q Do you know whether it is better quality water or 22 worse quality water, particularly in the context of 23 phosphorus? 24 A I don't know. 25 Q Do you know whether that -- first of all, do you A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 303 1 know when that discharge came into existence? 2 A No. 3 Q Do you know whether it is a permitted discharge by 4 DER or the District? 5 A I don't believe it is permitted as a discharge. I 6 think there was some dredging, there was some dredge and 7 fill permitting associated with Acme several years ago. I 8 don't really know the details. 9 Q Have there been any impacts of that drainage into 10 the Refuge, to the best of your knowledge? 11 A The discharge ends up in the rim canal, which 12 also collects water from the S-5A. It is my understanding 13 that the flow from that, from Acme, is a very small 14 fraction of the flow from S-5A. 15 It also has, I don't know about the differences in 16 quality, but based on the land use, I would expect it to be 17 lower in phosphorus than S-5A water. 18 Q Do you know whether the Department of 19 Environmental Regulation is trying to bring it under the 20 same kind of permitting that the, say, the S-5 structure is 21 being brought under? 22 A Well, the SWIM Plan describes all of the tributary 23 inflows into the Everglades Protection Area and proposes a 24 schedule for dealing with those, and I assume that when DER 25 approved the SWIM Plan that it did so in anticipation that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 304 1 it would deal with those permitting issues as they 2 developed in accordance with the schedule in the SWIM 3 Plan. 4 MR. HYDE: That is all. 5 MS. PONZOLI: We would like to read. 6 (Whereupon, the deposition was concluded, and 7 reading and signing by the witness was not waived.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 305 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 177 through 304 represent 10 a 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 306 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 23, 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 ??