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