365
1 Division of Administrative Hearings
2 Department of Administration, State of Florida
3
SUGAR CANE GROWERS COOPERATIVE )
4 of FLORIDA; ROTH FARMS, INC.; and )
WEDGWORTH FARMS, Inc., )
5 Petitioners )
V ) DOAH
6 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3038
DISTRICT, an agency of the State )
7 of Florida; et al., )
Respondents. )
8 )
FLORIDA SUGAR CANE LEAGUE, INC.; )
9 UNITED STATES SUGAR CORPORATION; )
and NEW HOPE SOUTH, INC., )
10 Petitioners, )
V ) DOAH
11 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3039
DISTRICT, an agency of the State )
12 of Florida; et al., )
Respondents. )
13 )
FLORIDA FRUIT and VEGETABLE )
14 ASSOCIATION; LEWIS POPE FARMS; )
W. E. SCHLECHTER & SONS, INC., )
15 and HUNDLEY FARMS, INC., )
Petitioners, )
16 V ) DOAH
SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3040
17 DISTRICT, an agency of the State )
of Florida; et al., )
18 Respondents. )
19
Deposition of Peter Rhoads
20 VOLUME III
21 Taken before Elaine V. Williams,
Professional Reporter and Notary Public in and for
22 the State of Florida at large, pursuant to notice of
taking deposition filed by the Petitioner in the
23 above cause.
- - -
24 Thursday, October 1, 1992
3301 Gun Club Road
25 West Palm Beach, Florida 33416
10:20 a.m. - 12:05 p.m.
366
1 APPEARANCES:
2
On behalf of the Petitioners Florida Sugar
3 Cane League, Inc., United States Sugar Corp.,
and New South Hope, Inc.:
4 Peeples, Earl & Blank, P.A.
One Biscayne Tower, Suite 3636
5 Two South Biscayne Boulevard
Miami, Florida 33131
6 By: WILLIAM EARL, ESQUIRE
JONATHAN L. GAINES, ESQUIRE
7
On behalf of the Respondent SFWMD:
8 South Florida Water Management District
3301 Gun Club Road
9 West Palm Beach, Florida 33416-4680
By: JACQUELYN W. BIRCH, ESQUIRE
10
On behalf of the Intervenor, United States of America:
11 Department of Justice
155 South Miami Avenue, Suite 627
12 Miami, Florida 33130-1693
BY: SUZAN HILL PONZOLI, ESQUIRE
13
14
- - -
367
1 - - -
2 I N D E X
3 - - -
4
5 WITNESS: DIRECT CROSS REDIRECT RECROSS
6 Peter Rhoads
7
BY MR. EARL: 369 (continued)
8
368
1 - - -
2 E X H I B I T S
3 - - -
4 NUMBER PAGE NO. DESCRIPTION
5
VOLUME I
6
EXB. NO. 1 66 CV
7
VOLUME III
8
EXB. NO. 2 369 synopsis SWIM plan
9 EXB. NO. 3 403 Rhoads memo
EXB. NO. 4 406 key elements ERP
10
VOLUME IV
11 EXB. NO. 5 456 4/3/89 Rhoads memo from Gerner
EXB. NO. 6 461 7/7/89 Rhoads memo to Jason
12 EXB. NO. 7 471 6/29/89 Dineen memo to Branscome
EXB. NO. 8 493 7/27/89 Rhoads report to Garner
13 EXB. NO. 9 503 9/29/89 Rhoads memo to MacVicar
EXB. NO. 10 505 10/4/89 Smith memo to Rhoads
14 EXB. NO. 11 507 3/30/90 Maceina memo to List
EXB. NO. 12 516 5/21/90 Input Memo
15 EXB. NO. 13COMPOSITE 520 8/23/90 Reisa letter to Wodraska
8/16/90 Parker letter to Stewart
16 EXB. NO. 14 525 11/19/90 MacVicar memo to Wodraska
EXB. NO. 15 528 6/26/91 Newman memo to List
17 EXB. NO. 16 532 11/17/91 Rhoads memo to STA Design
EXB. NO. 17 543 12/5/91 Mierau memo to Bearzotti
18 EXB. No. 18 553 undated Quincey memo to Rhoads
EXB. NO. 19 554 Key points memo
19 EXB. NO. 20 557 2 page handwritten notes
369
1 P R O C E E D I N G S
2 - - -
3 Thereupon,
4 Peter Rhoads,
5 being by the undersigned Notary Public previously duly
6 sworn, was examined and testified as follows:
7 THE WITNESS: I do.
8 CONTINUED DIRECT (Peter Rhoads)
9 - - -
10 MR. EARL: Are we ready? Back on the
11 record.
12 BY MR. EARL:
13 Q. Good morning, Mr. Rhoads.
14 A. Good morning, Mr. Earl.
15 Q. Mr. Rhoads, you indicated, or counsel
16 indicated, you were going to bring some schedules
17 this morning.
18 MS. BIRCH: Yes.
19 MR. EARL: Could I look at those?
20 MS. BIRCH: Yes.
21 MR. EARL: Would you mark that?
22 (The document was marked
23 Rhoads Depo Exb. No. 2.)
24 BY MR. EARL:
25 Q. Let me hand you now what has been marked as
370
1 Exhibit 2 to your deposition, which your counsel
2 provided the other morning. What is that,
3 Mr. Rhoads?
4 A. This is a draft manuscript entitled
5 Synopsis of Everglades SWIM Plan Alternative
6 Development, dated September, 1992.
7 Q. And who prepared that?
8 A. It was authored by Paul Whalen and edited
9 by myself.
10 Q. And for what purpose was that prepared?
11 A. This was prepared in response to a
12 Governing Board request.
13 Q. Was it presented to the Governing Board?
14 A. No, it is undergoing technical review at
15 this point in time. It has not been presented to the
16 board yet.
17 Q. Okay. What's the scope and purpose of that
18 document?
19 A. The purpose was to provide an overview of
20 the alternatives that were considered in preparing
21 the Everglades SWIM Plan.
22 Q. Have you done your editing yet on it?
23 A. It will probably need more, but yes, I have
24 done some.
25 Q. Does it, in your judgment, accurately
371
1 describe the status and nature of the alternatives to
2 date?
3 A. I think it does a reasonably good job of
4 describing those alternatives, yes.
5 Q. Are there any specific deficiencies of
6 which you are aware?
7 A. Not that I am aware at this point in time,
8 but some may emerge from the technical review
9 process.
10 Q. Okay. Mr. Rhoads, is it your
11 understanding, Mr. Rhoads, that the spread of exotic
12 species in Everglades wetlands is attributable
13 primarily to the decline in vigor and health of the
14 natural community?
15 MS. BIRCH: Object to the form of the
16 question. Mr. Rhoads is not being presented by
17 the District as an expert witness, and to the
18 extent it calls for expert testimony, I am
19 objecting. If Mr. Rhoads has personal
20 understanding of the question that you are
21 proposing to him, he can answer.
22 MR. EARL: I'm asking him, in his capacity
23 and understanding of Everglades issues, in view
24 of his Everglades restoration responsibility --
25 THE WITNESS: Could you repeat the question
372
1 for me, please.
2 (Thereupon, a portion of the record
3 was read by the reporter.)
4 MR. EARL: Let me rephrase it. I want to
5 add something to it.
6 MS. BIRCH: Even before you ask Mr. Rhoads
7 the question, I wanted also the record to
8 reflect that while Mr. Rhoads is Director of
9 Everglades restoration, he is not, nor has he
10 testified during the course of his deposition
11 that he's familiar with all of the technical and
12 scientific aspects of the many broad issues that
13 arise in Everglades Restoration Program.
14 MR. EARL: Okay.
15 BY MR. EARL:
16 Q. Mr. Rhoads, is it true that exotic species
17 invade a variety of natural vegetation communities in
18 the Everglades and their spread in wetlands is
19 attributable primarily to the decline in vigor and
20 health of the natural community, mostly associated
21 with reductions in hydroperiod and water depths?
22 MS. PONZOLI: Object to form. Mr. Earl, if
23 you're going to read from the publication, can
24 you share a copy of that with us or tell us what
25 you're reading from?
373
1 BY MR. EARL:
2 Q. Go ahead, sir, if you can answer.
3 MS. PONZOLI: I think you can at least
4 answer my questions, Mr. Earl.
5 MR. EARL: I'll read from whatever I desire
6 to read from, and when it becomes appropriate, I
7 will share it with you.
8 MS. PONZOLI: Okay. Then Miss Court
9 Reporter, would you read back again what
10 Mr. Earl just read to us.
11 (Thereupon, a portion of the record
12 was read by the reporter.)
13 MS. PONZOLI: I'm going to object to the
14 form.
15 THE WITNESS: To the extent I am familiar
16 with this area, that sounds like a correct
17 statement, yes.
18 BY MR. EARL:
19 Q. Mr. Rhoads, is it true, in your
20 understanding of Everglades ecology, that shortened
21 hydroperiods reduce soil organic matter?
22 MS. PONZOLI: I'm going to have a
23 continuing objection to Mr. Earl's reading
24 passages that he will not cite to us from what
25 he's reading, and then I won't have to object
374
1 each and every time.
2 MS. BIRCH: Object to the form.
3 THE WITNESS: Would you please repeat the
4 question for me.
5 (Thereupon, a portion of the record
6 was read by the reporter.)
7 THE WITNESS: That's a rather complex
8 question because it involves several possible
9 different ways of looking at it. In the sense
10 that the Everglades has been altered from its
11 original condition and, if applied to a specific
12 area that once had a longer period and now has a
13 shorter hydroperiod, it is probably a generally
14 valid statement. However, to the extent that it
15 compares portions of the Everglades with
16 different hydroperiods, it is probably not a
17 valid statement.
18 BY MR. EARL:
19 Q. Same areas with a shortened hydroperiod?
20 It would be valid?
21 A. Within that context, I believe that is
22 correct, to the extent I understand this area.
23 Q. Okay. Mr. Rhoads, is it also correct in
24 your understanding of Everglades ecology that
25 shortened hydroperiods have adversely impacted the
375
1 structure and function of the Everglades periphyton
2 community?
3 MS. PONZOLI: Continuing objection.
4 MS. BIRCH: I'm going to object to the form
5 of the question.
6 MR. EARL: Grounds?
7 MS. BIRCH: Mr. Rhoads, as I stated
8 earlier, does not have, and has not been
9 presented as, an expert witness and he has not
10 testified in his deposition that he is a
11 hydrologist or that he is an ecologist, and if
12 he can answer the question based upon his
13 general knowledge, I have no objection to that,
14 but I object to your trying to make Mr. Rhoads
15 an expert in areas which he clearly doesn't have
16 expertise in.
17 MR. EARL: I think you are going to have to
18 read it back to the witness after that.
19 THE WITNESS: If would you, please.
20 (Thereupon, a portion of the record
21 was read by the reporter.)
22 THE WITNESS: Probably so, but I'm not
23 really sure in that area.
24 BY MR. EARL:
25 Q. Have long term reductions, to your
376
1 knowledge, in the hydroperiod in the Northeast Shark
2 River Slough Area resulted in lower densities in fish
3 communities, aquatic animals?
4 MS. PONZOLI: Same objection as before.
5 MS. BIRCH: Same objection.
6 THE WITNESS: It is my general
7 understanding that that is the case, yes.
8 BY MR. EARL:
9 Q. In the Northeast Shark River Slough Area,
10 is it also your understanding that long term
11 reductions in the hydroperiods, since 1962, have also
12 resulted in the deposition of a layer of marl on top
13 of the original peat substrate?
14 MS. BIRCH: Object to the form.
15 THE WITNESS: I don't have any personal
16 knowledge of that, Counsel.
17 BY MR. EARL:
18 Q. What is marl?
19 A. Marl is a calcium carbonate deposit
20 produced in hard water, normally by periphytic
21 action.
22 Q. Is it your understanding marl deposition is
23 indicative of a shift of the species dominance of the
24 periphyton community from green algae and diatomes to
25 blue/green algae?
377
1 A. I need a repeat on that question, please.
2 (Thereupon, a portion of the record
3 was read by the reporter.)
4 THE WITNESS: Marl deposition is a natural
5 phenomenon in some portions of the Everglades,
6 and blue/green algae are often a major component
7 of the community that generated marl deposition.
8 Whether a change in marl depo -- I lost the
9 train of the question again. I need --
10 BY MR. EARL:
11 Q. I'm sorry. The thrust of it is whether
12 marl deposition is indicative of a shift in the
13 species dominance.
14 A. In and of itself, I don't believe marl
15 deposition, the process of depositing marl, is
16 necessarily indicative of a shift in species
17 composition, no.
18 Q. Has shortened hydroperiod in the Northeast
19 Shark River Slough, to your knowledge, resulted in a
20 decrease in forage fish populations?
21 MS. BIRCH: Object to the form. Same
22 objection as previously stated.
23 THE WITNESS: I suspect that that statement
24 is correct, yes.
378
1 BY MR. EARL:
2 Q. Is it your understanding that the major
3 problem facing alligators in Shark River Slough,
4 since scheduled water deliveries to the park began in
5 1971, is excessive flooding from untimely release of
6 flood water out of Water Conservation Area 3A in late
7 summer?
8 MS. BIRCH: Object to the form.
9 THE WITNESS: I would suspect that that is
10 one of the top two problems.
11 BY MR. EARL:
12 Q. What would the other be?
13 A. Poaching during the early '70's.
14 Q. That is no longer a problem?
15 A. No, it isn't. Not generally anyway.
16 Q. So the major problem now would be the
17 untimely release of flood water; correct?
18 MS. PONZOLI: Asked and answered.
19 BY MR. EARL:
20 Q. Correct?
21 A. The question was since scheduled releases
22 began in 1971.
23 Q. Yes. And now I'm asking at the present
24 time.
25 A. At the present time, I'm not sure,
379
1 Counselor. I'm not sure.
2 Q. Not sure of what?
3 A. Whether at the present time that
4 constitutes the most substantial problem facing the
5 alligator population.
6 Q. Are there still untimely flood releases in
7 WCA 3A in late summer?
8 A. They have been substantially altered under
9 the current operating regime, discharging from
10 Conservation Area 3, from what existed previously
11 during the '70's and early '80's.
12 Q. Are they still significant in terms of
13 alligators?
14 A. I'm not sure, Counselor.
15 Q. Is it your understanding, historically,
16 that Water Conservation Area 3B was a very important
17 dry season feeding habitat for wading birds?
18 MS. BIRCH: Object to the form. Mr. Rhoads
19 previously testified that he did not have
20 sufficient current knowledge as to the history
21 and ongoing studies related to wading birds or
22 birds in the Everglades.
23 MR. EARL: I would also suggest, Counsel,
24 he spent a lot of time out there. He spent more
25 time, other than Mr. Dineen, than anyone I know.
380
1 He's listened to at least three presentations
2 that Mr. Dineen did, that I was there, when
3 Mr. Dineen talked about this situation. I'm
4 asking him his understanding as an Everglades
5 restoration specialist, whether he understands
6 that to be true.
7 MS. BIRCH: He is not a specialist. He
8 hasn't presented himself as a specialist,
9 Mr. Earl, but if he has personal knowledge, and
10 that is his understanding from recent review,
11 and can answer the question, he should proceed.
12 THE WITNESS: Would you please repeat the
13 question.
14 (Thereupon, a portion of the record
15 was read by the reporter.)
16 THE WITNESS: Yes, I suspect that statement
17 is correct.
18 BY MR. EARL:
19 Q. And is it also your understanding,
20 Mr. Rhoads, that the periphyt and forage fish and
21 wading bird food chain has virtually collapsed in
22 Water Conservation Area 3B since it was impounded?
23 A. No. I believe that is an overstatement.
24 Q. Well, what is your understanding of the
25 impact of the impoundment of 3B on the periphyt and
381
1 forage fish and wading bird food chain?
2 A. I would suspect that that food chain has
3 been adversely impacted by the reduced hydroperiod,
4 however, significant wading bird foraging continues
5 to occur in Conservation Area 3B, so I don't think it
6 would be appropriate to state that the food chain had
7 collapsed in that area.
8 Q. It's been adversely impacted, though?
9 A. Yes.
10 Q. And would that be a significant impact, in
11 your judgment?
12 MS. BIRCH: Object to the form of the
13 question. I'm going to have a standing
14 objection, Mr. Earl, as you continue to read
15 these many scientific and technical statements,
16 from whatever document you're reading from, to
17 Mr. Rhoads.
18 MR. EARL: Okay.
19 THE WITNESS: I'm sorry. Could you please
20 repeat the question.
21 (Thereupon, a portion of the record
22 was read by the reporter.)
23 THE WITNESS: I think it would be
24 appropriate to call it a significant impact,
25 yes.
382
1 BY MR. EARL:
2 Q. Okay. How big is Water Conservation Area
3 3B, sir?
4 A. I do not remember a figure on that.
5 Q. Order of magnitude?
6 A. 100,000.
7 Q. In these impacts you are talking about, the
8 impoundments in Water Conservation Area 3B, that is a
9 result of design and construction modifications to
10 the Federal project; is that correct?
11 A. In addition --
12 MS. PONZOLI: Object to form.
13 MR. EARL: Grounds?
14 MS. PONZOLI: I don't think you have named
15 all the elements that go into the operation of
16 the Central and Southern Florida Flood Control
17 Project; all the key components.
18 THE WITNESS: In addition to the works that
19 were constructed prior to the C&SF project, yes.
20 BY MR. EARL:
21 Q. Okay. Let's talk, since you brought it up,
22 let's talk about the modifications that created Water
23 Conservation Area 3B, sir. When were those
24 constructed?
25 A. Generally, during the '50's and '60's.
383
1 Some work was done during the '70's.
2 Q. And would you chronologically describe the
3 changes from the original project that were added to
4 create Water Conservation Area 3B?
5 A. By original project --
6 Q. The original project designs. Wasn't
7 there, in fact, a leakage problem out of that area?
8 Wasn't the project losing water to the east?
9 MS. BIRCH: Objection. What is the
10 question? And also again, Mr. Earl, Mr. Rhoads
11 is not, as he told you earlier in response to
12 the question, he said he's generally familiar
13 with the project, but he has not said that he
14 has any expertise, or any claimed expertise, in
15 the history and development and chronological
16 dates of how the project developed.
17 MR. EARL: I'm not asking for expertise,
18 I'm asking for facts of which I believe he's
19 aware.
20 MS. BIRCH: Well, if he knows, he can
21 answer.
22 THE WITNESS: Please repeat the question.
23 (Thereupon, a portion of the record
24 was read by the reporter.)
25 THE WITNESS: The original Water
384
1 Conservation Area 3, constructed under the C&SF
2 project, did have a significant leakage problem.
3 BY MR. EARL:
4 Q. To the east?
5 A. Along its eastern and southern boundary.
6 Construction of the L-67A and L-67C borrow canals,
7 and seepage levees were designed to alleviate that
8 problem.
9 Q. And when were they constructed?
10 A. During the '60's.
11 Q. And you said there was other construction
12 in the '70's. What else happened?
13 A. The L-67A borrow canal was improved for
14 conveyance purposes during the late '60's and early
15 '70's.
16 Q. Any other changes to the project design?
17 A. Yes. There were changes made in the South
18 Dade conveyance system.
19 Q. Are those relevant to the impoundment in
20 3A?
21 A. To a limited degree, yes.
22 Q. To what degree?
23 A. To the degree that the enlargement of the
24 L-29 borrow canal altered seepage rates from
25 Conservation Area 3B.
385
1 Q. Altered. L-29 borrow canal altered seepage
2 rates. Increased or decreased them?
3 A. Increased.
4 Q. When was L-29 borrow canal?
5 A. During the mid '70's, I believe.
6 Q. Any other changes relating to the
7 impoundment in 3B?
8 A. Those are the only ones that I can think
9 of.
10 Q. And those were all modifications to the
11 Federal project, were they not, sir?
12 A. That is correct.
13 Q. And are those the factors that resulted in
14 the impoundment in Water Conservation Area 3B that we
15 have been talking about?
16 A. Generally, yes.
17 Q. You say generally. What else?
18 A. The works constructed previously within
19 this century by the Everglades Drainage District and
20 private interests also impacted Conservation Area 3B;
21 what is now Conservation Area 3B.
22 Q. But they didn't create the impoundments
23 that we have been talking about, did they, sir?
24 A. To a limited degree, the private works that
25 were constructed in Dade County did affect
386
1 hydroperiods in Conservation Area 3B, in all
2 likelihood.
3 Q. What private works?
4 A. The canals and levees that are evident in
5 that area today that were constructed during the
6 '20's and '30's.
7 Q. Were they in existence at the -- obviously,
8 they were in existence, were they not, at the time
9 the project was constructed.
10 A. That is correct.
11 Q. And a project design contemplated and
12 incorporated those, did it not?
13 MS. PONZOLI: Object to the form.
14 MS. BIRCH: Object to the form.
15 THE WITNESS: I don't know.
16 BY MR. EARL:
17 Q. When the Federal Government designed the
18 project, they were aware of those structures and
19 canals, were they not?
20 MS. PONZOLI: Object to the form.
21 MS. BIRCH: Object to the form.
22 THE WITNESS: I don't know.
23 BY MR. EARL:
24 Q. Has the impoundment problem, in terms of
25 ecological effects that you have been talking
387
1 about -- when did it come to the notice of the
2 District, in your understanding of the evolvement of
3 this area?
4 A. Sometime in the 1960's.
5 Q. After construction of the project; correct?
6 A. Yes.
7 Q. Were the modifications you have just talked
8 about successful, in the L-67, successful in stemming
9 the flow of water down into Water Conservation Area
10 3B?
11 A. To a considerable degree, yes.
12 Q. And isn't that why L-67 was designed; to
13 dike off Conservation Area 3B to prevent water from
14 flowing down?
15 MS. PONZOLI: Object to form.
16 MS. BIRCH: Asked and answered.
17 THE WITNESS: Yes.
18 BY MR. EARL:
19 Q. Okay. If that was designed to cut off the
20 flow of water, Mr. Rhoads, what is your understanding
21 why -- what resulted in the impoundment down there?
22 A. I don't understand the question, Counselor.
23 Q. L-67 was put in there to intercept the flow
24 of water; correct?
25 A. Correct.
388
1 Q. Okay. And subsequent to that, there was an
2 impoundment water problem in Water Conservation Area
3 3B; correct? I'm sorry. Let me go back. Tell me
4 what the problem is in 3B that we have been talking
5 about. It is an impoundment, but is it a shortening
6 of the hydroperiod, a lengthening, a pooling? What
7 is the problem there?
8 A. The primary problem in conservation Area 3B
9 is that it's been cut off from its historical
10 overland flow into the area. There is a limited
11 impounding that has occurred in portions, the
12 southern portion, but it is a relatively limited
13 phenomenon. The primary problem is that the
14 hydroperiod has been shortened by a reduction of
15 surface water inflows; overland flow.
16 Q. And that was by design; correct?
17 MS. PONZOLI: Object to form.
18 BY MR. EARL:
19 Q. It's the reason L-67 was put in; correct?
20 A. Essentially, yes.
21 Q. You say essentially.
22 A. The extent to which the designers
23 recognized the adverse impacts of their actions is
24 not clear in my mind.
25 Q. So as I understand what you have told me,
389
1 the ecological problem right now in 3B is a drying
2 out in what proportion? The northern three-
3 quarters?
4 MS. PONZOLI: Object to form. You're
5 mischaracterizing his testimony.
6 MS. BIRCH: Join the objection.
7 BY MR. EARL:
8 Q. Explain. You said there was a shortening
9 of the hydroperiod and a cutoff of the historical
10 flow; correct, sir?
11 A. Yes.
12 Q. And that resulted in a drying out?
13 A. Generally, the hydroperiod is shorter
14 throughout the area.
15 Q. Okay. And you told me this is about
16 100,000?
17 A. Order of magnitude, yes.
18 Q. What percentage of that, or fraction of
19 that, 100,000 acres is impacted by this cutoff of
20 flow; this drying out?
21 A. The entire area.
22 Q. Okay, sir. Is there some pooling or
23 impoundment down there in the southern portion?
24 A. There is a very limited pooling in the
25 southeastern corner of Conservation Area 3B under
390
1 certain rainfall conditions, yes.
2 Q. Down around -- what is that -- 335?
3 A. In the vicinity of structure 335. However,
4 that is an area of very high seepage, so the ponding
5 there is not as you would typically expect, and as we
6 discussed earlier, say in the southern end of
7 Conservation Area 3A or in the southern end of
8 Conservation Area 1.
9 Q. Did the SWIM plan address this problem in
10 Water Conservation Area 3B?
11 A. In general terms, it did.
12 Q. What remedies did it propose?
13 A. It proposed to study the problem and
14 develop future remedies.
15 Q. But there are no specific remedial measures
16 proposed?
17 A. No.
18 Q. Mr. Rhoads, what is your understanding of
19 the total area in the Everglades, what is called the
20 ENP in the SWIM plan, impacted by nutrient induced
21 cattails? How many acres?
22 A. I don't know.
23 Q. Do you have any idea?
24 A. I really don't, no.
25 Q. In your understanding of Everglades
391
1 ecology, do you believe the wood stork is a sensitive
2 bioindicator?
3 A. Yes, I believe that is correct.
4 Q. Would a restoration of hydroperiod, let's
5 pick Water Conservation Area 3B, would that have -- a
6 natural hydroperiod back there -- have a positive
7 impact on the alligator population?
8 A. I don't know.
9 Q. How about on the population of wood stork
10 and nesting, breeding?
11 A. The term restoration is a very broad term.
12 Depending on how it were restored, the extent of the
13 restoration and whether the restoration had any
14 adverse impacts in other areas would determine the
15 validity of that statement.
16 Q. So you have no idea of whether there would
17 be a positive effect?
18 MS. PONZOLI: It's been answered.
19 BY MR. EARL:
20 Q. In Water Conservation Area 3B?
21 MS. PONZOLI: Object to form.
22 MS. BIRCH: Objection. Its argumentative.
23 He's answered the question.
24 THE WITNESS: In very general terms, yes.
392
1 BY MR. EARL:
2 Q. Okay, sir. What was, from your
3 understanding of the evolution of the Everglades,
4 what was the dominant vegetation, vegetative
5 community, in Water Conservation Area 3B?
6 A. Sawgrass.
7 Q. Is sawgrass still dominant in that area?
8 A. Yes.
9 Q. Has that area been invaded by exotic
10 species?
11 A. Yes, it has.
12 Q. Would that invasion be significant in terms
13 of the magnitude of it?
14 MS. BIRCH: Object to the form.
15 THE WITNESS: Yes, I would say so.
16 BY MR. EARL:
17 Q. Has that area seen an increased incidence
18 of brushy vegetation?
19 A. In some areas, yes.
20 Q. And again, is that significant in terms of
21 the extent of it?
22 MS. BIRCH: Object to the form.
23 THE WITNESS: Perhaps.
24 BY MR. EARL:
25 Q. You say perhaps. Under what circumstances?
393
1 A. I think it is debatable; the extent to
2 which the brushy vegetation in 3B constitutes a
3 significant problem.
4 Q. Okay.
5 A. There has been a hydroperiod shortening in
6 the area and it has had an impact on vegetation.
7 Q. Willow and myrtle in there now?
8 A. In some areas, yes.
9 Q. Are you aware of any quantification,
10 vegetative analysis or mapping that has been done in
11 that area in terms of displacement of sawgrass?
12 A. There has been some work done by Dr. Taylor
13 Alexander in his vegetation transects in that area.
14 Q. You mean in 1949?
15 A. No. No. This was work conducted in
16 1970's.
17 Q. Okay. I'm sorry. '79. Anything more
18 recent?
19 A. No, I don't believe so.
20 Q. The District owns, or the state owns, Water
21 Conservation Area 3B; is that correct?
22 A. As is the case in other portions of the
23 conservation area, the District has certain rights to
24 flow and store water within Conservation Area 3B. In
25 some cases the District has fee title to the land.
394
1 In other cases, that title is held by private
2 parties.
3 Q. They have flowage easements?
4 A. Flowage easements.
5 Q. Does the Federal Government, to your
6 knowledge, address the adverse ecological impacts in
7 Water Conservation Area 3B?
8 A. I believe they are proposing to, yes.
9 Q. Is that in the modified water deliveries?
10 A. Yes.
11 Q. What is your understanding of what they are
12 proposing to do?
13 A. They are proposing to length, then to
14 divert, water from the L-67A borrow canal through the
15 seepage control levees into Conservation Area 3B, and
16 then with modifications of the L-29 levee, to move
17 that water south into the North Shark River Slough.
18 Q. That is the fundamental premise of the
19 modifications; correct?
20 A. Correct.
21 Q. Is it your understanding that cattails
22 aggressively colonize disturbed areas?
23 MS. BIRCH: Object to the form of the
24 question.
25 THE WITNESS: I would say that cattails can
395
1 aggressively colonize disturbed areas; yes.
2 BY MR. EARL:
3 Q. And do they, in your experience, in what is
4 called the ENP, do cattails frequently emerge on
5 disturbed areas, such as levees and canals?
6 A. My experience within Everglades National
7 Park has been very limited. As I indicated yesterday
8 when we were discussing Everglades National Park, I
9 have very little direct familiarity with that.
10 Q. I'm sorry. I meant to say the EPA. Your
11 experience in the EPA.
12 A. Could you repeat the question for me.
13 (Thereupon, a portion of the record
14 was read by the reporter.)
15 THE WITNESS: Okay. And the subsequent
16 portion of the question changed that to the
17 Everglades Protection Area?
18 BY MR. EARL:
19 Q. Yes, sir.
20 A. Yes. In my experience, cattails are
21 relatively common at the toe of the berm of levees
22 and in disturbed areas within the Everglades
23 Protection Area.
24 Q. And would that be true in situations where
25 nutrients would not be a factor?
396
1 MS. PONZOLI: Object to form. I don't
2 think it is clear what you mean; nutrients not a
3 factor.
4 THE WITNESS: One of the most likely
5 theories for why cattails colonize recently
6 disturbed areas is that the disturbance has
7 altered the soil chemistry and has released
8 nutrients, so by definition, a disturbed area
9 is, at least theoretically, an area of altered
10 nutrient composition and variability.
11 BY MR. EARL:
12 Q. Nutrients mobilized how?
13 A. A number of potentially different
14 mechanisms. One being the actual physical
15 disturbance of the soil, making that soil available
16 for aerial oxidation and, thereby, the increase in
17 the availability of the inherent nutrients within
18 that soil because of the oxidation of the organic
19 material in which the nutrients are partially bound.
20 Q. Do you subscribe to that hypothesis?
21 A. I think it is a reasonable hypothesis, yes.
22 Q. I am just trying to understand whether or
23 not you concur with the viewpoint that where you do
24 work and disturbance in the EPA, where nutrients
25 would not be a factor, surface water nutrients,
397
1 cattails would aggressively colonize disturbed areas?
2 MS. PONZOLI: Object to form. It's been
3 asked and answered. You got the answer you
4 didn't like. Now you are trying to get one you
5 do like.
6 MS. BIRCH: I join the objection. Same
7 grounds.
8 THE WITNESS: Could you repeat the last
9 question, please.
10 (Thereupon, a portion of the record
11 was read by the reporter.)
12 THE WITNESS: I doubt that you can disturb
13 any area within the Everglades Protection Area
14 without altering the nutrient dynamics of the
15 soil.
16 BY MR. EARL:
17 Q. And you believe that is a responsible
18 keying factor; correct?
19 MS. PONZOLI: Object to form.
20 BY MR. EARL:
21 Q. You believe that is the primary factor
22 resulting in the appearance of the cattails in a
23 disturbed area; is that correct?
24 MS. PONZOLI: Object to form. You have
25 changed your question and you're arguing with
398
1 the witness.
2 MS. BIRCH: I join the objection.
3 THE WITNESS: I don't understand the
4 question.
5 BY MR. EARL:
6 Q. Let me try and make it a little clearer.
7 You're accepting a hypothesis, and I'm asking you,
8 but for that hypothesis, in your experience, do
9 cattails emerge -- are you attributing that
10 hypothesis that you have just described to me to be
11 the primary factor in the emergence of cattails in
12 disturbed areas where surface water nutrients are not
13 of concern?
14 MS. PONZOLI: Object to form. It is a
15 compound question.
16 MS. BIRCH: Objection. Object to the form
17 of the question.
18 Do you understand the question, Mr. Rhoads?
19 THE WITNESS: No, I don't.
20 MR. EARL: Read it back to him, please.
21 (Thereupon, a portion of the record
22 was read by the reporter.)
23 BY MR. EARL:
24 Q. Let me just take the last half of that.
25 Counsel's correct. That was a compound question.
399
1 You have described a hypothesis for me that
2 the disturbance of the soil results in increase of
3 nutrients; correct, sir?
4 A. Correct.
5 Q. Okay, sir. Now I'm asking you in an area
6 of the Everglades Protection Area that is disturbed
7 through a canal or levee construction, where there is
8 no surface water nutrient impact, do you attribute
9 the emergence of cattails primarily to this nutrient
10 hypothesis you have just described for me?
11 MS. PONZOLI: Object to form.
12 THE WITNESS: In a situation such as that,
13 cattails are invading because of the disturbance
14 of the area.
15 BY MR. EARL:
16 Q. So that would be -- the disturbance would
17 be the primary factor?
18 A. To the extent I understand your question,
19 yes.
20 Q. Thank you. What don't you understand about
21 my question?
22 A. I'm not sure I fully understood the
23 question.
24 Q. Okay. Tell me what you didn't understand.
25 A. I'm not sure what I didn't understand.
400
1 Q. Okay. You understood your hypothesis, did
2 you not, Mr. Rhoads?
3 A. Correct.
4 Q. Okay. And you understood that the question
5 I asked you assumed that there was no surface water
6 nutrient impacts; correct?
7 A. Okay.
8 Q. Do you understand that?
9 A. I understand what you're saying now.
10 Q. Okay. And you just told me that the
11 disturbance was the primary cause, the disturbance,
12 it was the primary cause of the cattail emergence; is
13 that correct?
14 A. That is correct.
15 MS. PONZOLI: Object to form. I think
16 you're asking the same question in a different
17 form over and over again. I think he's already
18 indicated that disturbance in lost nutrient
19 release, in his experience, or his
20 understanding, or whatever it was, he qualified
21 it, so you're asking the same question again and
22 again and again, and I object to it.
23 MR. EARL: When the witness is going to
24 tell me he is going to qualify an answer, I'm
25 going to inquire as to the qualification of what
401
1 he doesn't understand.
2 MS. PONZOLI: I don't think you're
3 qualifying the answer, Mr. Earl.
4 MR. EARL: Counsel, you may want to
5 describe how you want this witness to answer,
6 but I would appreciate it, particularly if it is
7 not your witness, if you would give an objection
8 and not go on with a narrative of how you would
9 like the question answered.
10 MS. PONZOLI: I would appreciate it if you
11 wouldn't waste our time. We are in our third
12 day of this deposition and we are asking the
13 same question probably 15 times.
14 MR. EARL: If I get an unqualified answer,
15 I won't have to ask about the qualifications.
16 Let's go on, Mr. Rhoads.
17 BY MR. EARL:
18 Q. Stephen Davis, is he on -- is that Steve
19 Davis of your staff, the District staff?
20 A. We have an employee by the name of Stephen
21 Davis, known as Steve Davis, yes.
22 Q. Who is Lance Gunderson? Do you know?
23 A. Lance Gunderson was formerly a biologist on
24 the staff of Everglades National Park; currently a
25 graduate student at the University of Florida, I
402
1 believe.
2 Q. Okay. Is it your understanding that
3 sawgrass density, in abundance, has been altered due
4 to prolonged flooding and fire impacts associated
5 with shortened hydroperiods in Water Conservation
6 Area 3A?
7 MS. PONZOLI: May we have the question
8 again? You're reading statements from whatever
9 you're reading from, and they are difficult to
10 follow.
11 (Thereupon, a portion of the record
12 was read by the reporter.)
13 MS. PONZOLI: I'm going to object to form.
14 MS. BIRCH: I'm going to object to the
15 form. And to the extent that it calls for
16 expert opinion, I'll object to Mr. Earl trying
17 to elicit expert testimony from Mr. Rhoads.
18 MR. EARL: I am just asking him his
19 understanding of the facts.
20 MS. PONZOLI: These facts are multiple
21 facts, multiple assumptions of a great deal of
22 expertise; each of these statements you're
23 reading from that document.
24 BY MR. EARL:
25 Q. Go ahead, sir.
403
1 A. I suspect that that statement is generally
2 correct.
3 Q. Is it also your understanding that sawgrass
4 density has decreased in Northeast Shark River Slough
5 due to shortened hydroperiod, peat oxidation and
6 increased fire frequency and severity?
7 MS. PONZOLI: Same objection.
8 MS. BIRCH: Same objection.
9 THE WITNESS: Same response. Yes.
10 BY MR. EARL:
11 Q. Yes?
12 A. Generally.
13 Q. And would the same be true of sawgrass;
14 that sawgrass density, sir, has decreased in Water
15 Conservation Area 3A due to shortened hydroperiods,
16 peat oxidation and increased fire frequency and
17 severity?
18 MS. PONZOLI: Same objection.
19 MS. BIRCH: Same objection.
20 THE WITNESS: In some areas, yes.
21 MR. EARL: Let's mark this, if you can, as
22 Number 3, please.
23 (The document was marked
24 Rhoads Depo Exb. No. 3.)
25 MS. PONZOLI: What is it?
404
1 MR. EARL: This is a memorandum Mr. Rhoads
2 is named on. I have got one, if counsel wants
3 to look at it.
4 MS. PONZOLI: I would like a copy,
5 Mr. Earl. I think it is customary to hand all
6 counsel at the table a copy of exhibits.
7 MR. EARL: I have one. I'm asking you both --
8 I don't have another one of this one. If you
9 would both like to look at it, you may take the
10 time. It is a one-page document.
11 MS. PONZOLI: Can you get a copy,
12 Ms. Birch? Let's just get copies.
13 MS. BIRCH: Do you have any more one-page
14 documents that you are going to be presenting
15 that you just have one copy of?
16 MR. EARL: He's looking right now.
17 MS. BIRCH: Maybe we can take a break so
18 that the ones you're using, we could all look at
19 while you're asking Mr. Rhoads questions.
20 MR. EARL: What we'll do is go through and
21 make a list. I'll go on to something else.
22 Mr. Gaines can go through and make a list and
23 we'll get you clean copies.
24 BY MR. EARL:
25 Q. On Monday we talked about -- you limited
405
1 your expertise, present current expertise, on
2 Everglades matters to the Everglades crayfish;
3 correct, sir?
4 A. Specific scientific expertise, yes.
5 Q. And you do not contemplate, in this case,
6 testifying as an expert in any other area, do you?
7 A. No, I don't.
8 Q. Okay, sir. You mentioned a study that you
9 did with Pat Gleason back in the '70's; correct?
10 A. That is correct.
11 Q. Can you tell me, other than that study,
12 what other conclusions or opinions do you have
13 regarding the Everglades crayfish, that you
14 identified, that would be relevant to this case?
15 A. I don't believe there are any.
16 Q. Okay, sir.
17 MR. EARL: Counsel, while we are making
18 copies, could you bring some other copies for
19 myself?
20 MS. PONZOLI: Do we have enough?
21 MS. BIRCH: Yes, I made copies.
22 MR. EARL: Okay. Thank you. Why don't we
23 go to that now, if we can. Can we mark this
24 one?
406
1 (The document was marked
2 Rhoads Depo Exb. No. 4.)
3 BY MR. EARL:
4 Q. I hand you now what we have marked as
5 Exhibit 4 to your deposition, and can you tell me
6 what that is, sir?
7 A. That is a copy of the schedule of the key
8 elements of the Everglades Restoration Program.
9 Q. And it consists of how many pages, sir?
10 A. Five pages.
11 Q. Okay. Is this the same document you
12 presented to the Governing Board?
13 A. Basically, yes. There have been a few word
14 changes on it, but it is essentially the same
15 document.
16 Q. What changes have been made?
17 A. I don't recollect. I think there was a
18 restatement to clarify one or two of the assumptions
19 without a change in substantive meaning, just to make
20 it clearer, so it was more easy to understand. There
21 may have been minor modifications made to some of the
22 scheduled completion dates. I don't remember.
23 Q. Okay. What is this? Is this just a
24 graphics presentation program that we are looking at
25 here, one of the graphics presentation?
407
1 A. Yes.
2 Q. You do this yourself, someone in your
3 office does it?
4 A. I do this.
5 Q. You do this on your own computer?
6 A. Personal.
7 Q. What is the program that generates this?
8 What software?
9 A. It is the Viewpoint. Xerox Viewpoint
10 software.
11 Q. And does it keep a chronological schedule
12 project planning or does it -- just what does it do?
13 A. No, it does not. It is not a program
14 management software package, it is simply a graphics
15 package.
16 Q. Okay. Now, if we can, let's go -- you have
17 told us previously that in May of 1993 you anticipate
18 that the constituents and staff will present to the
19 board an optimal plan; correct?
20 A. Correct.
21 Q. Okay. Tell me how that -- where does that
22 appear on this series of time lines?
23 A. On the first page down, the fourth line.
24 First page, fourth line down. The heading
25 alternatives slash optimal plan.
408
1 Q. Yes, sir. Shows up in May '93?
2 A. Correct.
3 Q. And it says preliminary design. What is
4 that preliminary design of? What? Starting in May
5 of '93.
6 A. That would be the preliminary design of
7 whatever public works component of that optimal plan
8 might be produced.
9 Q. And then implementation is to start in
10 March of '94; correct?
11 A. Yes.
12 Q. And what does implementation mean;
13 construction?
14 A. As indicated on the chart, it means
15 detailed design specifications, acquisition,
16 construction operations.
17 Q. Tell me how this relates -- what is your
18 understanding of, in this case -- what will the
19 hearing officer come back to the Governing Board,
20 what is the process; with a recommended order? Do
21 you understand that?
22 A. That is my general understanding of the
23 outcome.
24 Q. It is your understanding that will have
25 proposed findings of facts and conclusions in it?
409
1 A. Generally, yes, that is my understanding of
2 how the process works.
3 Q. And under your time frame here, what
4 happens when that recommended order comes back from
5 the hearing officer? When would it come back and
6 what then happens to it?
7 MS. BIRCH: Object to the form of the
8 question to the extent it calls for a legal
9 conclusion. Mr. Rhoads is not a lawyer.
10 MR. EARL: I am just asking him -- he
11 briefs the board every month in some detail, and
12 I'm asking him as it relates to his timing and
13 understanding.
14 BY MR. EARL:
15 Q. You have turned to page 2, I see.
16 A. I have turned to page 2.
17 Could you repeat the question for me,
18 please?
19 (Thereupon, a portion of the record
20 was read by the reporter.)
21 THE WITNESS: I'm not sure of the details
22 of the process from that point on. Generally, I
23 believe the recommended order is considered, and
24 ultimately action is taken on it on the part of
25 the Governing Board.
410
1 BY MR. EARL:
2 Q. And you show adoption of final order;
3 correct? When is that?
4 A. There is a program element that shows
5 adoption of the final order by November, mid
6 November, 1993.
7 Q. And does that contemplate both the DER
8 permit the District has applied for and the SWIM
9 plan?
10 A. Yes, that is the concept. You should note,
11 however, that the next two blocks entitled unexpected
12 delays and permit consolidation delays are generally
13 applicable at some point in the process, so where
14 they will occur, no one knows, to the best of my
15 knowledge. But they are, in all likelihood, we have
16 assumed, a part of the process.
17 Q. Okay. Under your category permit
18 consolidation delays, what does that mean?
19 MS. BIRCH: I'm going to have a standing
20 objection to questions regarding the process of
21 administrative challenge as to scheduling. I
22 see no relevance to the scheduling of the
23 administrative process, which is the challenge
24 that we are now in administrative hearings on.
25 But to the extent that Mr. Rhoads can answer
411
1 those questions and does not disclose any
2 attorney/client privileges, he can answer those
3 questions.
4 MR. EARL: I am just asking him for what
5 he's put on a public document that he's talked
6 about with the board. I am trying to understand
7 what that category means.
8 MS. BIRCH: I understand that, Mr. Earl,
9 but my objection is to the relevancy of the
10 purpose of this deposition. I understood that
11 this deposition related to the League's
12 challenge to the Everglades SWIM plan and not
13 the District scheduling process related to the
14 hearing itself.
15 MR. EARL: Well, I understand that the DER
16 and the District wants to consolidate the
17 permit, and I'm asking him about something here,
18 as a senior staff member of the District here,
19 what consolidation delay means.
20 MS. BIRCH: I don't know where you get that
21 understanding from. I haven't heard Mr. Rhoads
22 testify as to that.
23 BY MR. EARL:
24 Q. Okay. Tell me, when you wrote permit
25 consolidation delay, what do you mean by that?
412
1 A. It was assumed in putting that down that
2 the DER interim permit would be challenged by third
3 parties, that that challenge would be consolidated
4 with the Everglades SWIM plan challenge. Those were
5 the assumptions inherent in the scheduling.
6 Q. And that that would cause a delay in the
7 overall time schedule?
8 A. Yes, that is correct.
9 Q. Of -- what do you have here?
10 A. Approximately two months.
11 Q. Go ahead, sir.
12 A. Counselor, it should be noted that the
13 schedule is a draft, and that the schedules change as
14 time goes on.
15 Q. But you did present it to the Governing
16 Board?
17 A. That is correct.
18 Q. And then you have permit and plan final.
19 What does that mean? What plan are you talking about
20 there?
21 A. The best estimate of District staff is that
22 the SWIM plan and the DER permit would be final in
23 February of 1994.
24 MR. EARL: Could you read back that answer,
25 please?
413
1 (Thereupon, a portion of the record
2 was read by the reporter.)
3 BY MR. EARL:
4 Q. And that, as I see on your overall chart,
5 is when implementation would begin of the plan;
6 correct?
7 A. That is correct.
8 Q. What is on -- if we can go to the third
9 page, sir -- let me just ask you a question, please,
10 back on page 2.
11 The 120.68 appeals, as I understood you to
12 say yesterday, it is the judgment of the District, I
13 guess, counsel that those appeals would not delay
14 implementation; correct?
15 MS. PONZOLI: Object to the form.
16 MS. BIRCH: Object to the form and
17 mischaracterization of Mr. Rhoads' testimony.
18 BY MR. EARL:
19 Q. What is your understanding -- I'm just
20 trying to save some time. I apologize.
21 Mr. Rhoads, what is your understanding of
22 whether the District can proceed or not during the
23 120.68 appeals you have on your chart?
24 A. We have assumed for scheduling purposes
25 that such an appeal would not stay implementation.
414
1 Q. And by implementation, sir, you mean detail
2 design specifications, construction and management;
3 correct?
4 A. Among other tasks, yes.
5 Q. Would you please go to page 3 of your chart
6 and tell me generally what this depicts?
7 A. This schedule chart depicts the various
8 components of the public works elements of the
9 project involving evaluation of alternatives, plan
10 formulation, engineering design, land acquisition, et
11 cetera.
12 Q. Okay. And as I read this, the preliminary
13 assessments of alternatives has been completed;
14 correct? September?
15 A. Essentially, yes.
16 Q. And that is a document we earlier
17 identified as an exhibit to your deposition; correct?
18 A. No, that is not correct.
19 Q. Oh, okay. Does that not relate to the same
20 subject?
21 A. No, different subject.
22 Q. I'm sorry. Okay. This says preliminary
23 assessment of alternatives, correct, on your chart?
24 A. That is a task on the chart, yes.
25 Q. Okay. And this September 1992 draft
415
1 document we have identified as Exhibit Number 2 is a
2 synopsis of Everglades SWIM plan alternatives
3 development. Explain to me the difference, please.
4 A. The work element on the schedule chart is a
5 consultant's report that's been contracted for. It
6 is the first step in the evaluation of the
7 preliminary assessment of alternatives.
8 Q. Okay. Has that been received yet?
9 A. Not to my knowledge, no, sir.
10 Q. Would you be aware if it had been?
11 A. Within a couple days lag time, yes.
12 Q. It is due in September, isn't it?
13 A. Around October 1st is indicated on the
14 chart.
15 Q. Who is the contractor on that?
16 A. That work is being conducted for us, I
17 believe, by Brown & Caldwell.
18 Q. Okay. That is the contractor's assessment.
19 What is the Exhibit 2 to your deposition? What is
20 that document?
21 A. Exhibit 2 is a document prepared, as I
22 indicated earlier, in response to the Governing
23 Board's request for an evaluation of the alternatives
24 that were examined in development of the Everglades
25 SWIM plan.
416
1 Q. Now, does this reflect consultation with
2 the consultants?
3 A. I don't believe so, no.
4 Q. So this is independent of any analysis by
5 the consultants?
6 A. That is correct.
7 Q. Okay. Evaluation of BMPs, that goes from
8 September, October, November, December to, looks
9 like, mid January; correct?
10 A. That is generally correct.
11 Q. And is that also being done by
12 Brown & Caldwell?
13 A. Yes, that is correct.
14 Q. When is that report due?
15 A. It is currently scheduled for the middle of
16 January.
17 Q. From the consultants?
18 A. From the contractor, yes.
19 Q. And where will that report next go? Does
20 that go to the Governing Board, does it go to SAGE,
21 TOC, what happens to that report?
22 A. During the development of that report,
23 various status reports will be presented to the SAGE
24 committee. The final report would go to the SAGE
25 committee. It would also be presented to the
417
1 Governing Board.
2 Q. Am I correct in understanding that BMPs as
3 a component of the SWIM plan were supposed to remove
4 about 25 percent of the phosphorus load?
5 A. The Everglades SWIM plan essentially calls
6 for 25 percent of the phosphorus load being reduced
7 by on farm best management practices.
8 Q. Am I also correct in understanding there
9 has been additional information and analysis and
10 staff now believes it may be higher than that?
11 A. I think that is an open question,
12 counselor. I don't think, to my knowledge, that's
13 been resolved.
14 Q. Okay. Tell me, there have been some
15 presentations to the board to that effect, haven't
16 there?
17 A. Yes. The Florida Sugar Cane League made a
18 presentation of the Governing Board in April of this
19 year.
20 Q. Didn't Mr. Federico before or after that
21 also discuss their review of that data?
22 A. He may have.
23 Q. Who internally is analyzing that? What
24 kind of load reduction can be expected from BMPs?
25 A. To the best of my knowledge, that work is
418
1 being carried out by Brown & Caldwell by our
2 contractor.
3 Q. Who in-house would have the most knowledge
4 of that subject?
5 A. That is a difficult question because there
6 are a number of people who have knowledge on that
7 subject. It is hard to pick.
8 Q. Okay. Well, name them.
9 A. Dr. Eric Flaig, Mr. Zan Kugler.
10 Q. Those would be the two most knowledgeable?
11 A. Yeah, I suspect so.
12 Q. Now, there has been some discussion at the
13 District internally staffwise, has there not, sir,
14 regarding the impacts if the BMPs take out more than
15 25 percent, what's that going to do to the other
16 components of the plan?
17 MS. BIRCH: Object to the form. It assumes
18 facts not previously testified to by Mr. Rhoads.
19 Seems to me it is just a statement, not a
20 question.
21 MR. EARL: No, I'm asking him if he is
22 aware of any discussions, memorandums by the
23 staff of what impact an increased efficiency of
24 BMPs would have on the other components of
25 restoration.
419
1 MS. PONZOLI: Object to the form; as to
2 what "impact" means.
3 THE WITNESS: Could you re-read the
4 question for me, please.
5 (Thereupon, a portion of the record
6 was read by the reporter.)
7 THE WITNESS: Discussions, memoranda. I
8 can't remember any specific discussions or
9 memoranda on that topic at this point in time.
10 BY MR. EARL:
11 Q. You have never discussed with anyone at the
12 District what would happen to the STAs, for example,
13 if the load reduction would be 50 percent?
14 A. Oh, we have discussed that subject.
15 Q. That's what I was trying to elicit. I'm
16 sorry I didn't phrase it right.
17 A. Yes, that subject's been discussed.
18 Q. Tell me about who you had those discussions
19 with.
20 A. I can't remember a specific discussion in
21 that regard. While I know that subject's been
22 discussed, I don't remember who I specifically
23 discussed it with.
24 Q. How about Mr. Federico?
25 A. That is possible.
420
1 Q. How about Mr. MacVicar?
2 A. That's possible.
3 Q. And you're aware of no memorandum dealing
4 with that issue?
5 MS. BIRCH: Objection; asked and answered.
6 BY MR. EARL:
7 Q. Is that correct?
8 A. To the best of my recollection at the
9 moment counselor, no, I do not remember any memoranda
10 dealing with that question.
11 Q. Is anybody doing any analysis that you know
12 about whatsoever on staff regarding that issue?
13 MS. BIRCH: Objection; asked and answered.
14 THE WITNESS: I know the consultant is
15 doing work on that issue. I don't know of
16 anyone specifically on staff who is working on
17 that issue.
18 BY MR. EARL:
19 Q. Who at Brown and -- is it Brown & Caldwell
20 doing that work; correct?
21 A. That is correct.
22 Q. Who at Brown & Caldwell specifically is
23 most knowledgeable in the BMP?
24 A. The project manager Zack Fuller is the only
25 Brown & Caldwell employee that I know that has an
421
1 expertise in that area. He's the only
2 Brown & Caldwell employee I know.
3 Q. Okay, sir. So the evaluation of the BMPs
4 come back in mid January. How does that get put into
5 the equation? Is it mix of remedies then readjusted,
6 re-evaluated? Is that when the optimal plan --
7 A. The intent is that both the output from the
8 best management practices work element, the detailed
9 evaluation of alternative technologies, the
10 assessment of the contribution from the sugar cane
11 mills, and the evaluation of the wetlands
12 alternatives all feed into the development of the
13 optimal plan.
14 Q. The preliminary engineering analysis down
15 one, two, three, four, five lines, preliminary
16 engineering analysis of what, sir?
17 A. As I understand it, and I do not profess
18 deep understanding on this issue, that is the
19 compilation of the data necessary to carry out some
20 of the analysis necessary in the optimal plan
21 formulation. In other words, the collection of data,
22 collection of topographic information, basin
23 boundaries, land use types, hydrologic information
24 that you need, in addition to the evaluation of the
25 alternatives, to put together an optimal plan.
422
1 Q. We are talking about what; STAs essentially
2 on that?
3 A. No. No, I think we are talking everything.
4 That information is basic to the formulation of an
5 understanding of the problem, where the basin
6 delineations are, where the flows are.
7 Q. Brown & Caldwell's doing that?
8 A. I believe that is a Burns & McDonnell work
9 element.
10 Q. The mills? Why don't we just go down?
11 A. From the top, the preliminary assessment of
12 alternatives, that is a Brown & Caldwell work
13 element, the BMPs are Brown & Caldwell, the detailed
14 evaluation is Brown & Caldwell, the assessment of the
15 mills is Brown & Caldwell, the preliminary
16 engineering analysis, I believe, is
17 Burns & McDonnell, the wetlands alternatives are
18 Burns & McDonnell.
19 Q. What is the wetlands alternatives, sir?
20 A. As we discussed either yesterday or on
21 Monday, the evaluation of alternative wetlands
22 treatment concepts, such as FTAs.
23 Q. Okay. FTAs and RTAs?
24 A. Yes.
25 Q. That I understand.
423
1 A. And the optimal.
2 Q. Who is doing that?
3 A. That is a Burns & McDonnell activity.
4 Q. Okay. Optimal plan formulation, that is a
5 Burns & McDonnell?
6 A. Burns & McDonnell, yes.
7 Q. Okay. And that is presented, you told me
8 previously, in May. And then there is going to be a
9 site development. What does that mean; project? All
10 the projects?
11 A. In order to -- assuming there is a public
12 works component to the optimal plan, there will be
13 data that are needed, data being collected on the
14 areas where projects would be developed, and the
15 collection of that data, the assembly of that
16 information is what is called for in that work
17 element.
18 Q. Who is going to do that?
19 A. We don't know. That is an unassigned task.
20 It would be done by the contractor.
21 Q. When is the RFP going to go out on that?
22 A. I do not know.
23 Q. Okay. Preliminary design, this is for
24 whatever public works we wind up with?
25 A. Right. Absolutely.
424
1 Q. What is the detailed system design?
2 A. Normally in the construction process you
3 have at least two levels of design; a preliminary
4 design and then a detail design. That detailed
5 system design reflects the next level of engineering
6 design following the preliminary design. It normally
7 results in plans and specifications.
8 Q. Preliminary acquisition, I assume that is
9 activities?
10 A. That is correct.
11 Q. And those, it appears, are on going now;
12 correct?
13 A. That is correct.
14 Q. Who is in charge of that; Mr. Malone?
15 A. Mr. Malone.
16 Q. Is that being done in-house?
17 A. In large measure, yes.
18 Q. Does he have appraisers out, or tell me
19 what this preliminary --
20 A. This involves all the activities that would
21 lead to potential land acquisition within the
22 Everglades Aggricultural Area. It includes the
23 current state land program, the Closter Farms
24 program, it includes any other appraisal activities
25 and early land acquisition activities.
425
1 Q. Environmental assessments?
2 A. Environmental assessments, yes.
3 Q. Several of those have already been done,
4 haven't they?
5 A. That is correct.
6 Q. Land acquisition, you mean actually
7 acquiring title, fee?
8 A. Correct.
9 Q. And that is scheduled for February?
10 A. That is correct.
11 Q. What is Prep Construction Permit Ap?
12 A. That is the preparation of the construction
13 permit application that would be necessary to
14 construct what would be designed in the detailed
15 system design.
16 Q. Meaning a dredge and fill permit?
17 A. Whatever appropriate permits were necessary
18 to construct what is assumed to be the proposed
19 facilities.
20 Q. Can we go to page 4 of your document, sir?
21 MR. EARL: Would this be a good time -- do
22 you have those numbers identified?
23 MR. GAINES: Yes.
24 MR. EARL: Can you pull them?
25 (Discussion held off the record.)
426
1 BY MR. EARL:
2 Q. Page 4 of your exhibit is Everglades
3 Restoration Program finance economics. What is this,
4 sir?
5 A. This includes the work elements involved in
6 the financial and economic components of the
7 restoration program.
8 Q. Now, you have got on line two there
9 evaluate economic impact. We talked about this a
10 little bit Monday, as I recall.
11 A. I believe so.
12 Q. You said that wasn't going to even start
13 until May; correct?
14 A. That is our current plan.
15 Q. And when do you anticipate having the
16 recommended order back on your time line from the
17 hearing officer? Looks like the middle of June.
18 A. Roughly, yeah, middle of June to middle of
19 August. Sometime in that time frame. But remember,
20 however, that the delay, two delay components on that
21 schedule come into play somewhere in that sequence,
22 and where that three months of lag time appears in
23 that sequence is really not clear. We do not know
24 that.
25 Q. The three months you are talking about from
427
1 the consolidating of the DER permit?
2 A. And the one month of unexpected delays that
3 is on the schedule, yes.
4 Q. Now, the third line down is financial
5 assessment planning. That is what you talked about
6 the other day in terms of that won't start until May.
7 That won't even start until May. That would be the
8 what; the utility?
9 A. The actual formulation of the specific
10 financing plan. Assuming the public works program
11 were the components of the optimal plan, that this
12 would be how to finance those facilities.
13 Q. Okay. On page 5, please; regulatory
14 program implementation. What is this, sir? Tell me.
15 A. This is a schedule chart for the
16 implementation of the adopted Everglades Agricultural
17 Rule. It attempts to schedule out the various major
18 steps involved in the implementation of that rule.
19 Q. Phosphorous levels in Lake Okeechobee,
20 historically have they ranged from 30 to 50 parts per
21 billion? Is that your understanding?
22 A. And higher.
23 Q. Okay. Would you describe Lake Okeechobee
24 as a very large reservoir in comparison to other
25 lakes?
428
1 MS. PONZOLI: Object to form.
2 THE WITNESS: Could you repeat that
3 question for me please.
4 (Thereupon, a portion of the record
5 was read by the reporter.)
6 MS. BIRCH: Object to form.
7 THE WITNESS: Yes and no. In comparison to
8 the Great Lakes, it is not a very large
9 reservoir; in comparison to many Florida lakes,
10 it is a large -- would be a large reservoir.
11 BY MR. EARL:
12 Q. Is it your understanding that Lake
13 Okeechobee has been a relatively high nutrients lake
14 for much of its history?
15 A. In very general terms, yes.
16 Q. You qualified that so I need to ask you why
17 do you say in very general terms?
18 A. I don't think the science on that issue is
19 worked out very well. There have been papers
20 indicating that yes, it has had a long nutrophic
21 history. I believe there is debate in the scientific
22 community over the veracity of that position.
23 Q. That is Mr. Gleason's work you are talking
24 about?
25 A. Gleason's work, yes, and some of his
429
1 colleagues.
2 Q. You disagree with that?
3 A. No. No. But I am saying that I don't
4 believe there is a high level of scientific
5 exactitude in that finding.
6 Q. You were involved in the Lake Okeechobee
7 SWIM plan, were you not, sir?
8 A. That is correct.
9 Q. What are the -- the dairies are located, as
10 I understand it, in what basins up there?
11 MS. BIRCH: Objection to the line of these
12 questions as to relevancy to everything in the
13 SWIM plan, in the restoration program.
14 BY MR. EARL:
15 Q. Okay.
16 A. The dairies are located in several of the
17 basins on the north side of Lake Okeechobee.
18 Q. Taylor Creek and Evans Slough one of them?
19 A. That is correct.
20 Q. In parts per billion, what would be the
21 runoff coming into District waters from a dairy farm
22 runoff?
23 MS. PONZOLI: Object to form.
24 THE WITNESS: Quite variable.
430
1 BY MR. EARL:
2 Q. Give me the range.
3 A. From a high of perhaps 30 parts per million
4 phosphorus down to values less than one part per
5 million phosphorus.
6 Q. One part per million. So we are talking
7 300 parts per million from, on a dairy farm, to -- in
8 parts per billion -- I'm sorry -- converting to parts
9 per billion.
10 A. Add a thousand to your parts per million to
11 get parts per billion. Add three zeros after it.
12 MS. PONZOLI: Three thousand parts per
13 billion is what we should be saying.
14 THE WITNESS: No. I quoted --
15 MS. BIRCH: Read the answer, the question
16 and the answer, we have thus far so we can see
17 where we are.
18 MR. EARL: Let me start over again. I'll
19 just save some time.
20 BY MR. EARL:
21 Q. You have said, Mr. Rhoads, that the range
22 of runoffs from dairy farms in the District waters
23 range anywhere from 30 parts per million to one part
24 per million; is that correct?
25 A. And below. It can go below that.
431
1 Q. Okay. And I have asked you, since in the
2 Everglades area we deal in parts per billion, what
3 that would be in parts per billion?
4 A. 30,000 down to less than a thousand parts
5 per billion.
6 Q. Now, is this after the application of dairy
7 BMP?
8 A. Those high figures are essentially raw
9 milking barn waste. The lower figures, below one
10 thousand parts per billion, could represent the
11 effluent quality coming off of BMPs installed on
12 dairy farms.
13 Q. What would the range of that discharge be,
14 in your understanding?
15 A. Of which?
16 Q. After application of BMPs.
17 A. On the order of one part per million or
18 lower.
19 Q. Okay. I'm asking -- you say "or lower".
20 Is there a range there?
21 A. I'm not familiar enough with the most
22 recent results from the BMP implementation sampling
23 to be comfortable in setting a lower limit on that
24 quality of that effluent.
25 Q. Who at the District is on top of that;
432
1 charged with that?
2 A. Either Dr. Fontaine or Al Goldstein.
3 Mr. Goldstein's in our Regulations Department.
4 Q. Okay. The Lake Okeechobee SWIM plan, as I
5 recall -- do you recall a device, an assimilation
6 capacity, that was utilized in that, in the dairy
7 farm areas?
8 MS. BIRCH: Object to relevancy.
9 THE WITNESS: Yes.
10 BY MR. EARL:
11 Q. What was that?
12 A. That was -- the assimilative capacity was a
13 factor that was assumed in the analysis. It
14 represented the ability of the conveyance system to
15 immobilize phosphorus, to take up phosphorus between
16 the source, for instance a dairy, and the outflow of
17 the water course to Lake Okeechobee.
18 Q. You mean the tributary canals?
19 A. The tributary, yes.
20 Q. Is that factor still a part of the Lake
21 Okeechobee SWIM plan?
22 A. I haven't had any substantive contact with
23 the implementation on Lake Okeechobee SWIM plan for
24 the past year, so I don't know the status of that.
25 Q. Okay. And what was the mechanism by which
433
1 that assimilative capacity derived its function?
2 A. I believe there were several alternate
3 mechanisms.
4 Q. What were they, sir?
5 A. Vegetative uptake, chemical immobilization,
6 sediment immobilization, those were the three that
7 come to mind right offhand.
8 Q. Now, this assimilative capacities that was
9 used for the dairy farms, that did not assume the
10 construction, did it, sir, of any chemical treatment
11 plans?
12 MS. BIRCH: Object to form.
13 THE WITNESS: The assimilative capacity
14 components of that calculation dealt with the
15 conveyance system itself without any other
16 appurtenances, to the best of my knowledge.
17 BY MR. EARL:
18 Q. It relied on the tributary canals
19 themselves going into the primary canals in the lake;
20 correct?
21 A. The conveyance, which includes the canals,
22 includes any vegetation in the canals, and includes
23 the cypress sloughs through which the water ran;
24 essentially all of the conveyance in the tributary.
25 Q. Okay. And what was the factor? Do you
434
1 remember, roughly?
2 A. It was in the vicinity of seven, but I
3 don't remember the exact figure.
4 Q. Seven what, sir?
5 A. A factor of seven. Seven times. Seven X.
6 Q. Tell me how that was applied, as you
7 understand it.
8 A. I don't remember how that was applied. I
9 don't remember the details of its application.
10 Q. Just seven. What did you do with the
11 factor of seven? I am just trying to --
12 A. I don't remember how that was applied
13 counsel.
14 Q. Okay. Okay. What are the main
15 tributaries, in which waterways, in which this factor
16 would have been applicable?
17 MS. BIRCH: Object to the question. The
18 witness has stated previously that he doesn't
19 understand. Actually, he said he didn't
20 remember what the implementation of the number
21 seven was or the significance or use of it, and
22 object again to the relevancy of it.
23 MR. EARL: I agree with you, Counsel, and
24 I'm not asking about the seven now, I'm
25 asking -- I know he has a map of the District
435
1 there -- if you could tell me, sir, what canals
2 or works this factor was applied to.
3 THE WITNESS: Again, that was well over a
4 year ago that I was involved in that effort. In
5 fact, substantially before that. However, if I
6 remember correctly, that factor was to be
7 applied to all of the sand land tributaries to
8 Lake Okeechobee. Basically all of the north,
9 east and west side tributaries to Lake
10 Okeechobee.
11 BY MR. EARL:
12 Q. That would include Taylor Creek; right?
13 A. That is correct.
14 Q. And Evans Slough?
15 A. Evans Slough.
16 Q. What other tributaries are up there?
17 A. The S-154 basin and the lower basins of the
18 Kissimmee river, the Harney Pond Canal, Indian
19 Prairie Canal.
20 Q. Fish Eating Creek?
21 A. Yes, sir. If I remember correctly, yes,
22 Fish Eating Creek was included within that.
23 Q. Okay. How was that assimilative capacity
24 factor, how was it applied in the case of the
25 Everglades SWIM Plan for the canals and waterways and
436
1 works of the District?
2 MS. BIRCH: Object to the form. The
3 witness hasn't testified any relationship
4 between the two.
5 BY MR. EARL:
6 Q. How, if at all, was it applied, Mr. Rhoads?
7 A. "It," referring to --
8 Q. The assimilative factor.
9 A. An assimilative factor for the Everglades
10 Agricultural Area has not been considered in the
11 Everglades SWIM Plan. It is not felt that there was
12 such a factor appropriate for use in the organic
13 soils of the area.
14 Q. Why wasn't it appropriate for use in
15 organic soils?
16 MS. PONZOLI: Object to form; asked and
17 answered.
18 MS. BIRCH: Join the objection.
19 THE WITNESS: I don't remember the specific
20 logic behind that.
21 BY MR. EARL:
22 Q. Okay. You told me earlier that the
23 assimilative factor was based on several components
24 one of which was vegetative uptake; correct?
25 A. The assimilative factor as applied in the
437
1 Lake Okeechobee SWIM plan, yes.
2 Q. Okay. Vegetation in the canals, I assume
3 you are talking about.
4 A. That was one component that took nutrients
5 up, yes.
6 Q. Okay. What other vegetation? That was
7 what were you talking about, the vegetation in the
8 canals?
9 A. And the adjacent wetlands, the overflow
10 areas. For instance, north of the lake it is quite
11 common to have the tributaries -- essentially to have
12 former cypress sloughs, tributaries to Lake
13 Okeechobee -- so the canal was, in essence, cut
14 through a wetlands, so you do not have the classical
15 typical box cut canal or trapezoidal canal, you have
16 a canal that has an overbank overflow area, so you
17 have cypress areas and marshes that are essentially
18 components of the conveyance on most of the
19 tributaries, or at least many of the tributaries,
20 north of the lake.
21 Q. It is your understanding that the
22 assimilative factor was based on the shore
23 vegetation, not just the vegetation in the canals;
24 correct?
25 A. Assimilative factor for the Lake Okeechobee
438
1 SWIM plan was a composite factor that included all
2 those various mechanisms.
3 Q. Okay. One of the vegetative mechanisms was
4 canal vegetation; correct?
5 A. Correct.
6 Q. In the canal.
7 A. In concept, yes.
8 Q. Aquatic vegetation?
9 A. Yes.
10 Q. What aquatic vegetation is in those canals
11 to the north; the sand lands.
12 A. Typical ditch bank vegetation.
13 Q. I am talking about aquatic now.
14 A. Aquatic?
15 Q. Yes.
16 A. There are some water hyacinths and water
17 lettuce, on occasion, in many of those canals.
18 Q. Anything else?
19 A. Other aquatic vegetation? Yes, I am sure
20 there is a range of other rooted aquatic vegetation
21 in certain portions of those canals, yes.
22 Q. And you talked about normal bank
23 vegetation. What would that be?
24 A. The typical assemblage of weed species that
25 we find adjacent to most of the canals in the
439
1 District. It includes, often, cattails; it includes
2 many of the grasses.
3 Q. A couple of examples? I am just trying to
4 get --
5 A. Cattails, panicum hemitomon, panicum
6 paludvagum, shrubs such as pigweed, myrtle, in some
7 cases, willow. A fairly broad assemblage occurs,
8 depending on the specifics there in the area.
9 Q. Okay. Now let's see if we can go to the
10 canals in the EAA. Do they have water hyacinth?
11 A. On occasion, yes.
12 Q. Do they have water lettuce?
13 A. On occasion, yes.
14 Q. Have they got the typical bank vegetation
15 you are talking about in Taylor Creek and Evans
16 Slough?
17 A. Yes. Yes.
18 Q. Would they function any differently, in
19 terms of nutrient uptake, than in the EAA vegetation
20 in and adjacent to the canals than would the
21 vegetation in and adjacent to the canals in the
22 Taylor Creek and Evans Slough, for example?
23 MS. BIRCH: Object to the nature of the
24 question. Again, Mr. Earl, Mr. Rhoads is not an
25 expert in nutrients and the area that you are
440
1 now eliciting testimony about, but if he has
2 personal knowledge that he can answer that
3 question, he should feel free to answer it.
4 THE WITNESS: The vegetation would probably
5 function in a similar manner; however, the
6 substrate in which that vegetation is growing is
7 generally different. Because of the organic
8 soils that are found in the Everglades
9 Agricultural Area, the predominant substrate is
10 the organic soil rather than the sandy soil
11 substrate that is found on the north, generally
12 on the north, east and west shores of Lake
13 Okeechobee, so the vegetation is similar, but
14 the substrate different.
15 BY MR. EARL:
16 Q. Would the vegetative uptake of phosphorus
17 be any different?
18 MS. BIRCH: Same objection.
19 THE WITNESS: My understanding, to the
20 extent I understand this field, is that the
21 chemistry of the organic soils are different
22 than the chemistry of the sandy soils. They are
23 different chemical processes that occur in the
24 two. While the basic nutrient uptake process of
25 the vegetation is physiologically the same
441
1 mechanism, the soil chemistry is different, and
2 the processes involved in the imposition of
3 phosphorus in a sandy soil are different than in
4 an organic soil.
5 BY MR. EARL:
6 Q. What if any tests or analysis did the
7 District do to determine that the assimilative
8 capacities factor shouldn't be applied in the EAA?
9 A. I don't remember any tests being performed
10 on that.
11 Q. Who was the -- weren't you in fact,
12 Mr. Rhoads, the creator of the assimilative
13 capacities factor?
14 A. I would not be comfortable accepting that
15 accolade.
16 Q. Okay. Who would you attribute the
17 fatherhood of the assimilative capacities factor to?
18 MS. BIRCH: What was that question?
19 (Thereupon, a portion of the record
20 was read by the reporter.)
21 MR. EARL: That is in response to the tone
22 of Mr. Rhoads' answer, counsel, where he
23 indicated in a jocular fashion that he declined
24 the fatherhood of that, so I'm asking him who
25 created this concept.
442
1 THE WITNESS: I believe Eric Flaig and Tony
2 Federico developed that concept.
3 BY MR. EARL:
4 Q. Did you have any input or involvement in
5 that?
6 A. I believe I concurred in its application.
7 Q. We have vegetative uptake as a component.
8 You gave me three. And what is the second one, sir?
9 A. I don't remember what the second one was I
10 gave you. The other two I gave you.
11 MS. PONZOLI: Chemical immobilization.
12 THE WITNESS: Chemical immobilization and
13 sediment processes.
14 BY MR. EARL:
15 Q. Let's go, if we can, to sediment processes.
16 How does that work, as you understand it, in the
17 dairy lands?
18 A. This is a very complex field of chemistry
19 that I don't profess particular good knowledge of,
20 Counselor.
21 Q. Okay. You don't -- I'm not asking you for
22 specific chemistry, but I'm asking you just the
23 process. Your understanding of the sedimentation
24 process that allows assimilation of phosphorus.
25 A. In very broad terms, the precipitation of
443
1 phosphorus in the water column, particularly
2 flocculent precipitation, it removes the phosphorus
3 from the water column and deposits some components of
4 the water column phosphorus into sediment.
5 Q. Where it was what, bound up?
6 A. Again, the sediments phosphorus chemistry
7 is an extremely complex subject. Sometimes it is
8 bound up, sometimes it is released. It is a function
9 of a whole series of variables that I don't clearly
10 understand. But yes, in general terms, the
11 precipitation of phosphorus from the water column
12 results in sediments that, to some degree,
13 immobilize, or can immobilize, the phosphorus under
14 certain conditions, for certain periods of time.
15 MS. PONZOLI: Immobilize or mobilize?
16 THE WITNESS: Immobilize.
17 MS. PONZOLI: Immobilize.
18 BY MR. EARL:
19 Q. Do you have an understanding, or do you
20 have to ask Mr. Federico or Mr. Flaig, between the
21 vegetative, the chemical immobilization, and the
22 sediment process, what percentage of phosphorus in
23 these factors are moved by each of those?
24 A. I can't help on you that one, Counselor.
25 Q. Okay. How about the chemical imposition,
444
1 Mr. Rhoads? What is that, in general terms; your
2 understanding of the process?
3 A. In very general terms, the adsorption and
4 absorption process of phosphorus in the water column
5 interacting with surfaces can result in the
6 immobilization of the phosphorus. For example, a
7 limestone bolder has a surface area that has a
8 potential to adsorb and absorb phosphorus onto it and
9 mobilize it to some extent.
10 Q. Again, you don't know what percentage the
11 chemical immobilization plays in the total
12 assimilative?
13 A. No, I don't have a feel for that, no.
14 Q. In your judgment, is this assimilative
15 factor that was used in Lake Okeechobee, is this
16 scientifically valid?
17 A. Based on how we prepared Lake Okeechobee
18 SWIM plan we felt it was an appropriate factor to
19 include. I think we were very up-front in indicating
20 that that assimilative capacities factor would have
21 to be monitored, that it would require checking as
22 the BMPs were implemented, as the program proceeded,
23 to determine whether the assimilative capacities
24 factor was appropriate, had been correctly selected.
25 It needed verification.
445
1 Q. Has it been verified, to your knowledge?
2 A. I don't know what follow-up work has been
3 done on that, no.
4 Q. You have indicated one reason for the
5 difference in the soil going from sandy soil to muck
6 soil. Any other reason you're aware of why this
7 assimilative factor wasn't applied in the Everglades
8 Agricultural Area?
9 A. My recollection is that that was the
10 primary fact.
11 Q. Who made the decision not to utilize it?
12 A. I don't remember who made that decision.
13 Q. You concurred, didn't you?
14 A. I concurred in that, yes.
15 Q. Okay. If it is convenient, Mr. Rhoads,
16 we'll take a break here.
17 A. Wonderful idea, Counselor.
18 Q. Come back at 1:00 o'clock?
19 MS. PONZOLI: All right.
20 (Thereupon, a luncheon recess was taken.)
21
446
1
2 C E R T I F I C A T E
3
The State of Florida )
4 County of Palm Beach. )
5
I, Elaine V. Williams, Professional
6 Reporter and Notary Public, State of Florida at
large, do hereby certify that Peter Rhoads was by me
7 first duly sworn to testify the whole truth; that I
was authorized to and did report said deposition in
8 stenotype; and that the foregoing pages, numbered
from 365 to 446, inclusive, are a true and correct
9 transcription of my shorthand notes of said
deposition.
10
I further certify that the said deposition
11 was taken at the time and place hereinabove set forth
and that the taking of said deposition was commenced
12 and completed as hereinabove set out.
13 I further certify that I am not attorney or
counsel of any of the parties, nor am I a relative or
14 employee of any attorney or counsel or party
connected with the action, nor am I financially
15 interested in the action.
16 The foregoing certification of this
transcript does not apply to any reproduction of the
17 same by any means unless under the direct control
and/or direction of the certifying reporter.
18
In witness whereof I have hereunto set my
19 hand and seal this ____ day of_____________ 1992.
20
21
_______________________________
22 Elaine V. Williams, CP, CM
Notary Public, State of Florida
23 at large. My commission expires
March 27, 1993.
447
1 C E R T I F I C A T E
2 - - -
3
4 The State of Florida, )
5 County of Palm Beach. )
6
7
8 I hereby certify that I have read the
9 foregoing deposition by me given, and that the
10 statements contained therein are true and correct to
11 the best of my knowledge and belief.
12
13 Dated this ____ day of______________ 1992.
14
15
16
17
18 _________________________
19 Peter Rhoads
448
1 DATE: October 12, 1992
2 TO: Peter Rhoads
South Florida Water Management District
3 3301 Gun Club Road
West Palm Beach, Florida 33416
4
RE: Sugar Cane Growers v SFWM District
5
Please take notice that on October 1, 1992 you
6 gave your deposition in the above referred matter.
At that time you did not waive signature. It is now
7 necessary that you sign your deposition.
8 Please come to our office, 319 Clematis
Street, Suite 500, West Palm Beach, Florida, at any
9 time between the hours of 9:00 a.m. and 4:30 p.m.,
Monday through Friday, to sign the deposition.
10 Notice that this address may be different than the
one where you gave your deposition.
11
If you do not appear to sign your
12 deposition within thirty (30) days, the original will
be forwarded to the attorney who requested your
13 appearance for deposition, for filing with the Clerk
of the Court. If you wish to waive your signature,
14 sign your name in the blank at the bottom of this
page and return to us.
15
Very truly yours,
16
MUDRICK, WITT, LEVY & CONSOR
17 REPORTING AGENCY, INC.
18
____________________________
19 Elaine V. Williams
NOTARY PUBLIC
20
21 I do hereby waive my signature:
22
______________________________
23 Peter Rhoads
24 cc:
cc:
25 cc:
449
1 Division of Administrative Hearings
2 Department of Administration, State of Florida
3
SUGAR CANE GROWERS COOPERATIVE )
4 of FLORIDA; ROTH FARMS, INC.; and )
WEDGWORTH FARMS, Inc., )
5 Petitioners )
V ) DOAH
6 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3038
DISTRICT, an agency of the State )
7 of Florida; et al., )
Respondents. )
8 )
FLORIDA SUGAR CANE LEAGUE, INC.; )
9 UNITED STATES SUGAR CORPORATION; )
and NEW HOPE SOUTH, INC., )
10 Petitioners, )
V ) DOAH
11 SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3039
DISTRICT, an agency of the State )
12 of Florida; et al., )
Respondents. )
13 )
FLORIDA FRUIT and VEGETABLE )
14 ASSOCIATION; LEWIS POPE FARMS; )
W. E. SCHLECHTER & SONS, INC., )
15 and HUNDLEY FARMS, INC., )
Petitioners, )
16 V ) DOAH
SOUTH FLORIDA WATER MANAGEMENT ) Case 92-3034
17 DISTRICT, an agency of the State )
of Florida; et al., )
18 Respondents. )
19
Deposition of Peter Rhoads
20 VOLUME IV
21 Taken before Elaine V. Williams,
Professional Reporter and Notary Public in and for
22 the State of Florida at large, pursuant to notice of
taking deposition filed by the Petitioner in the
23 above cause.
- - -
24 Thursday, October 1, 1992
3301 Gun Club Road
25 West Palm Beach, Florida 33401
1:00 p.m. - 6:10 p.m.
450
1 APPEARANCES:
2
On behalf of the Petitioners Florida Sugar
3 Cane League, Inc., United States Sugar Corp.,
and New South Hope, Inc.:
4 Peeples, Earl & Blank, P.A.
One Biscayne Tower, Suite 3636
5 Two South Biscayne Boulevard
Miami, Florida 33131
6 By: WILLIAM EARL, ESQUIRE
JONATHAN L. GAINES, ESQUIRE
7
On behalf of the Respondent SFWMD:
8 South Florida Water Management District
3301 Gun Club Road
9 West Palm Beach, Florida 33416-4680
By: JACQUELYN W. BIRCH, ESQUIRE
10 RUTH CLEMMONS, ESQUIRE
11 On behalf of the Intervenor, United States of America:
Department of Justice
12 155 South Miami Avenue, Suite 627
Miami, Florida 33130-1693
13 BY: SUZAN HILL PONZOLI, ESQUIRE
14
15 - - -
451
1 - - -
2 I N D E X
3 - - -
4
5 WITNESS: DIRECT CROSS REDIRECT RECROSS
6 Peter Rhoads
7
BY MR. EARL: 453 (continued) 625
8 BY MS. PONZOLI: 617
9
452
1 - - -
2 E X H I B I T S
3 - - -
4
5 NUMBER PAGE NO. DESCRIPTION
6
7 VOLUME I
8 EXB. NO. 1 66 CV
9 VOLUME III
EXB. NO. 2 369 synopsis SWIM plan
10 EXB. NO. 3 403 Rhoads memo
4 405 key elements ERP
11
VOLUME IV
12 EXB. NO. 5 465 4/3/89 Rhoads memo from Gerner
EXB. NO. 6 461 7/7/89 Rhoads memo to Jason
13 EXB. NO. 7 470 6/29/89 Dineen memo to Branscome
EXB. NO. 8 493 7/27/89 Rhoads report to Garner
14 EXB. NO. 9 503 9/29/89 Rhoads memo to MacVicar
EXB. NO. 10 505 10/4/89 Smith memo to Rhoads
15 EXB. NO. 11 509 3/30/90 Maceina memo to List
EXB. NO. 12 516 5/21/90 Input Memo
16 EXB. NO. 13COMPOSITE 520 8/23/90 Reisa letter to Wodraska
8/16/90 Parker letter to Stewart
17 EXB. NO. 14 525 11/19/90 MacVicar memo to Wodraska
EXB. NO. 15 528 6/26/91 Newman memo to List
18 EXB. NO. 16 532 11/17/91 Rhoads memo to STA Design
EXB. NO. 17 543 12/5/91 Mierau memo to Bearzotti
19 EXB. NO. 18 550 undated Quincey memo to Rhoads
EXB. NO. 19 554 key points memo
20 EXB. NO. 20 557 2 page handwritten notes
453
1 P R O C E E D I N G S
2 - - -
3 CONTINUED DIRECT (Peter Rhoads)
4 BY MR. EARL:
5 Q. I'll hand you now, sir, what has been
6 marked as Exhibit Number 3 to your deposition. Have
7 you ever seen this before?
8 A. Yes, I believe I have.
9 Q. What is it?
10 A. It is a memorandum prepared by Jocelyn
11 Branscome, dated June 5, 1989 dealing with the
12 subject of a task group for hydroperiod Everglades
13 SWIM Plan.
14 Q. Were you, in fact, on that date the program
15 manager, SWIM?
16 A. Yes, I was.
17 Q. This talks about to develop a task group
18 for hydroperiod. Was there a special task group on
19 that?
20 A. The purpose of this memorandum, as I say,
21 was to establish a task group for hydroperiod.
22 Q. And was such a group established?
23 A. I don't believe so.
24 Q. Why was that?
25 A. I don't remember.
454
1 Q. Who would know? Anybody?
2 A. Jocelyn may remember. During this period
3 we attempted a number of different ways to try and do
4 effective planning at the organization. We tried
5 various internal task groups, we tried participative
6 exercises with outside parties, and there were a
7 variety of mechanisms that were attempted to
8 accomplish the planning objectives that we had. This
9 was one of them.
10 Q. Who wound up responsible for the
11 hydroperiod components of the SWIM plan?
12 A. I am trying to recollect who, during this
13 period, had the specific responsibility on the
14 technical side of it. I believe Tony Federico did.
15 I believe at that point in time this was the Water
16 Quality Division, and within the Water Quality
17 Division, that is where that function was housed.
18 But I am trying to pin down the chronology of when
19 Tony and his shop were moved down to the Planning
20 Department out of the old Resource Planning
21 Department. Well, regardless of what that was, it
22 would have been in Tony Federico's shop and a SWIM
23 plan group when the preparation of the plan was being
24 carried out.
25 Q. Well, who would be responsible for the
455
1 hydroperiod component of the plan as adopted by the
2 board?
3 A. That would have been the staff identified
4 in the front of the SWIM plan. If I remember
5 correctly, the basic chain of command for preparation
6 of the SWIM plan at the time of adoption in March
7 '92, Paul Whalen was the Everglades SWIM Plan
8 manager.
9 Q. My question was more directed to the
10 hydroperiod components. Who was the staff member
11 substantively responsible for the conclusions and
12 analysis regarding hydroperiod?
13 A. I did not have responsibility at this point
14 in time, in March of 1992, for the Everglades SWIM
15 plan, so I don't know specifically who had that
16 responsibility.
17 Q. Did you have that responsibility in
18 September of 1990?
19 A. Do you have a copy of my resume'? Thank
20 you.
21 In September of 1990 the SWIM plan function
22 was housed in the Planning Department under Jim
23 Harvey and Tony Federico.
24 Q. Okay. My question goes to the hydroperiod.
25 A. To the hydroperiod components. I do not
456
1 know who had the specific responsibility for the
2 hydroperiod components at that point in time.
3 Q. When you were working on it in '89, who was
4 the most knowledgeable regarding the hydroperiod
5 conclusions of this analysis?
6 A. If it was prior to the point where Walt
7 Dineen passed away, it would have been Walt. And I
8 cannot right offhand remember the date of his
9 passing. Subsequent to that point in time, it would
10 have been Dewey Worth and Steve Davis.
11 Q. And that would be true as to the currency
12 plan of the document?
13 A. I believe so. Dewey Worth is no longer
14 with the agency. Steve Davis would be.
15 Q. What happened to Mr. Worth? Where did he
16 go?
17 A. He joined -- went