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 out west. I believe with 18 a governmental agency. I don't remember which one. 19 Out in Idaho, I believe. 20 MR. EARL: Would you mark this, please, as 21 Number 5. 22 (The document was marked 23 Rhoads Depo Exb. No. 5.) 24 BY MR. EARL: 25 Q. Have you ever seen this before, sir? 457 1 A. Yes. I have a vague recollection of this. 2 Yes, I believe I have. 3 Q. It purports to be a memorandum dated July 4 3, 1989 to Mr. Garner from Mr. Federico; correct? 5 A. Correct. 6 Q. Okay. What is this? What is the substance 7 of this memorandum? 8 A. I'll need a moment or two to review the 9 memorandum, please. 10 Q. Sure. Sure. 11 THE WITNESS: Could you repeat the 12 question. 13 (Thereupon, a portion of the record 14 was read by the reporter.) 15 THE WITNESS: It appears to be a memo from 16 Tony to Woody, John Wodraska, dealing with the 17 issue of stormwater treatment efficiency for 18 total phosphorus. It appears to be a summary or 19 compilation of information, both nationally and 20 from studies here at the Water Management 21 District, on inflow concentrations of total 22 phosphorus and concentrations coming after a wet 23 detention system. 24 First column, stormwater inflow; second 25 column is the post-treatment outflow; and the 458 1 third column is the percent removal. 2 BY MR. EARL: 3 Q. Okay. Could you help me with this in 4 units? This is milligrams per liter, I guess. 5 A. Yes. 6 Q. Nationwide typical values, residential, 7 under the pre-treatment is point 5 -- what would that 8 be in parts per billion, sir? 9 A. That would be 500 parts per billion total 10 phosphorus. 11 Q. Okay. So I gather commercial nationwide 12 would be about 200 parts per billion? 13 A. 200 parts per billion. That is correct. 14 Q. Okay. What is your understanding of what 15 Mr. Federico is representing here? This is runoff 16 from residential and commercial properties, 17 nationally? 18 A. Based upon the literature carried out by 19 staff, this represents typical values found 20 nationally for the total phosphorus concentration in 21 stormwater exiting residential or commercial 22 property. 23 Q. And then we go down to SFWMD studies. He 24 talks about residential. Again, point 14 is how many 25 parts per billion? 459 1 A. That would be 140 parts per billion. 2 Q. And what does he mean -- why are there two 3 categories, if you know, of residential there? The 4 next one is residential too, which is 310 parts per 5 billion. 6 A. There are two residential categories 7 because there were two separate studies conducted by 8 the District staff, and those three enumerated 9 studies represent the results from each of three 10 studies. 11 Q. Help me understand the staff study. 12 Typical residential runoff, and then what retention 13 system; stormwater retention system? 14 A. Yes. It's been many years since I directed 15 those studies, but the staff selected several sites 16 in reasonable proximity to West Palm Beach to 17 evaluate the effectiveness of wet treatment systems 18 that the District had permitted, so the first one -- 19 no, it's been too long. I don't remember the 20 specific studies involved. But they were individual 21 studies conducted over a period of time at individual 22 wet treatment systems that had actually been 23 constructed in the vicinity of the West Palm Beach 24 area. 25 The commercial one I do remember. That was 460 1 at the Boynton Beach Mall. One of the residential 2 sites was a development called Timber Creek, and I 3 don't remember the name of the other residential 4 site. 5 Q. Okay. And on the Boynton Beach Mall, which 6 I guess is number 3 there, commercial? 7 A. That is correct. 8 Q. The inflow was 240 parts per billion? 9 A. That is what it appears here. 10 Q. And the outflow from the stormwater 11 retention system was 40 parts per billion; is that 12 what this tells you? 13 A. Point 048 milligrams per liter total 14 phosphorus equates to 40 parts per billion, yes. 15 Q. Do these studies still, in your mind, 16 represent the typical figures from -- 17 A. To the best of my knowledge. 18 Q. -- residential and commercial runoff? 19 A. Representative studies, yes. 20 Q. Do you know who did these studies? 21 A. They had various program managers over a 22 period of time. Mike Cullum was a program manager 23 for a period of time, and he's the only program 24 manager that I remember who gathered it. There were 25 several other professionals on the District staff. 461 1 These studies were conducted over about a seven year 2 period, I believe. 3 Q. Are they tech pubs? What form do they 4 take? 5 A. At least one of them is a tech pub form, 6 perhaps two, perhaps three. I don't remember 7 specifically. 8 Q. What would you ask for? 9 A. The Timber Creek tech pub, the Boynton 10 Beach Mall tech pub. And that is the one I don't 11 know whether that actually made it into technical 12 publication form or whether it was manuscript only. 13 And as I mentioned earlier, I can't remember the name 14 of the second residential one. It was down in Boca 15 Raton. I can't remember the name of the development. 16 MR. EARL: I'm sorry. We have somebody new 17 in the room. I haven't met you. 18 MS. CLEMMONS: Ruth Clemmons from the 19 District. 20 MR. EARL: Are you District counsel? 21 MS. CLEMMONS: Yes, I am. 22 MR. EARL: Pleasure to meet you. 23 Can we mark this, please, as Number 6? 24 (The document was marked 25 Rhoads Depo Exb. No. 6.) 462 1 BY MR. EARL: 2 Q. I hand you now what has been marked as 3 Number 6, Mr. Rhoads. Have you seen this before? 4 A. Yes. 5 Q. What is it, please? 6 A. It is a memorandum from me through John 7 Wodraska to Doran Jason, Vice Chairman of the 8 Governing Board, dated July 17, 1989. It deals with 9 the subject of amount of phosphorus loading to the 10 EAA derived from Lake Okeechobee releases. 11 Q. And you state in the memorandum that's 35 12 tons a year; is that correct? 13 A. Yes, that is what the memorandum states; on 14 an average annual basis. 15 Q. Is that still your belief? 16 A. I think the data prepared in support of the 17 Lake Okeechobee rule, the technical supporting 18 document for the rule, has more updated analysis to 19 deal with this particular subject. Routings were 20 run, and in the back of the technical support 21 document there is a table that includes this, among 22 other data, and I would be more confident in that 23 more recent data than I would be in this memorandum. 24 Q. Is it the same range, same order of 25 magnitude? 463 1 A. Same order of magnitude, I suspect, yes. 2 Q. When you are talking about on an average 3 annual basis approximately 35 tons a year phosphorus 4 is released from Lake Okeechobee for water supply 5 purposes, both agricultural and urban and lake stage 6 regulatory control, that is released through what 7 structures? 8 A. I suspect -- I did not run the analysis 9 supporting this memorandum, my staff did. 10 Q. I understand. 11 A. I suspect that this includes releases made 12 through the gravity control structures adjacent to 13 pump stations S-2 and S-3. 14 Q. What they used to call the hurricane gates? 15 A. The hurricane gates and hurricane gate 5 16 along the West Palm Beach Canal. Those three major 17 outflow points from Lake Okeechobee. 18 Q. Okay, sir. Oh, it is 35 tons. You include 19 water supply both for agricultural and urban use and 20 lake stage regulatory control. How is that treated 21 in the SWIM plan in terms of are the farmers required 22 to remove that? 23 MS. PONZOLI: Object to form. 24 MS. BIRCH: Could you read the question 25 back? 464 1 MR. EARL: Let me rephrase it. 2 BY MR. EARL: 3 Q. Is the 35 tons you refer to in your memo 4 treated in the Everglades SWIM Plan? Are the farmers 5 required to remove that? 6 MS. BIRCH: Object to the form of the 7 question. 8 MR. EARL: Tonnage. 9 MS. BIRCH: It seems to me like you're 10 asking two things, Mr. Earl. 11 MS. PONZOLI: Same objection. 12 MR. EARL: Okay. 13 THE WITNESS: As I understand the question, 14 the Everglades SWIM Plan does not deal with the 15 allocation of responsibility for removing 16 phosphorus. In other words, it does not say 17 this entity or this entity needs to do 18 something. As I recollect it, it deals with the 19 issue of here is what needs to be done. 20 BY MR. EARL: 21 Q. Is this within the -- is the 35 tons 22 included within the 200 -- I believe you said 23 yesterday it is probably 205 tons a year from which a 24 load reduction has to be made. 25 A. The total tonnage -- let's assume that 465 1 figure is about 200 tons which releases from Lake 2 Okeechobee. The tonnage associated with that is 3 included within that 200 ton figure, yes. 4 Q. And is the 25 percent BMP figure, reduction 5 figure, you told me about earlier, is that also based 6 on the 205 tons? 7 A. I would have to go back and check the rule 8 on that. I remember that being a discussion during 9 the public workshops on adoption of the EAA rule, and 10 I don't specifically remember how we handled that in 11 the rule. 12 Q. Well, from the SWIM plan, would the SWIM 13 plan help you at all? That is what we are here today 14 on. I believe you have a copy there. 15 MS. BIRCH: This is just a copy of a 16 planning document. 17 BY MR. EARL: 18 Q. I have the other two also, if you would 19 like them. 20 A. I wouldn't know where to look in there for 21 this. The only place I know to look, if I had to 22 come up with that piece of information, would be the 23 EAA rule. 24 Q. Does the SWIM plan require the farmers to 25 undertake a 25 percent reduction through BMPs? 466 1 A. Yes, it does. 2 Q. And I'm asking you what your understanding 3 is of whether that includes the 35 tons you have 4 referenced in Exhibit 6. 5 A. Number one, Counselor, I mentioned the 35 6 tons is not, in my opinion, the most appropriate 7 figure to be using. 8 Q. I understand that. Let's assume whatever 9 that corrected figure is. 10 A. Whatever that is, I do not remember whether 11 the 25 percent was based on the 200 ton figure 12 subtracting that 35 ton figure or the more 13 appropriate one or whether it was based on the total. 14 I don't remember how we handled that. 15 Q. Well, how, in your judgment, should it be 16 handled? 17 MS. PONZOLI: Object to form. Relevancy, 18 materiality. 19 MS. BIRCH: Calls for a conclusion. I join 20 Ms. Ponzoli's objections. 21 THE WITNESS: The 25 percent reduction 22 should apply most appropriately, I would think, 23 to the runoff coming from the Everglades 24 Agricultural lands within the tributary 25 watershed. 467 1 BY MR. EARL: 2 Q. That would not then, in your judgment, 3 include the waters released for lake stage regulatory 4 control? 5 A. No. 6 Q. And again, sir, in your judgment, that 7 would not include waters released for urban water 8 supply purposes? 9 A. That is correct. 10 Q. Would it, in your judgment, include waters 11 released for agricultural water use in the EAA? 12 A. I don't believe that waters released for 13 agricultural water use are germane to the issue 14 involved. 15 Q. Why is that? 16 A. Because what is at issue is the runoff 17 coming off of the lands within the tributary 18 watershed and the water flowing through the tributary 19 watershed. That is what constitutes -- the sum of 20 those two parts constitute what comes out at the 21 major pump stations on the south side. From my view 22 of the world, my prospective on this, what comes into 23 the farms from the water supply viewpoint is not 24 germane to either of those two figures. 25 Q. So long as it is consumed; the water use is 468 1 utilized on the land and doesn't come out again? 2 MS. PONZOLI: Object to the form. You 3 changed his answer. 4 MS. BIRCH: Object to the form. 5 BY MR. EARL: 6 Q. You're saying the water supply taken out of 7 the canals, released from the lake here, taken out of 8 the canals, applied to the farms, shouldn't apply; 9 okay? Did you just say that? 10 A. Yes, that is what I said. That is not a 11 factor, in my mind. 12 Q. Okay. Now, if a particular molecule of 13 water is not consumed -- i.e., not otherwise 14 utilized -- and goes out the pump, in your judgment, 15 that would then be included in the 25 percent 16 reduction? 17 A. Yes. If it comes off the property, if it 18 is discharged from the property, then, in my concept 19 of the hydrology, that would be runoff. Constitute 20 runoff. 21 Q. Now, you have heard, have you not, Mr. Paul 22 Parks at SAGE committee meetings talking about he 23 wants mitigation for the lake water the farmers use? 24 A. I have heard a discussion on that general 25 topic, yes. 469 1 Q. On more than one occasion, I suspect. 2 A. On several occasions. 3 Q. What is your understanding of what 4 Mr. Parks is proposing? 5 MS. BIRCH: That is calling for speculation 6 on behalf of Mr. Rhoads, and I'm not sure what 7 the relevancy of what Mr. Parks thinks about 8 mitigation has to do with the SWIM plan. 9 If you know, Mr. Rhoads, you can answer. 10 THE WITNESS: My understanding of the 11 general concern is that it is ecologically 12 undesirable to reduce the magnitude of the 13 discharges going south. In other words, there 14 is a broad consensus, in my understanding, that 15 the Everglades needs all the water it receives 16 now, if not more, and the concept that Dr. Parks 17 has talked about is that if the amount of water 18 going south through the major pump stations is 19 reduced through best management practices or 20 other activities, that that amount of water 21 should be mitigated, or should be made up from 22 other sources, in order to sustain the 23 downstream discharges. That's my understanding 24 of that issue. 470 1 BY MR. EARL: 2 Q. Mr. Rhoads, it is correct, isn't it, that 3 hydrologically speaking, the EAA is a contributor of 4 water to the system? 5 MS. PONZOLI: Object to the form. 6 MS. BIRCH: Object to the form. 7 MS. PONZOLI: I don't think you clarified 8 what contributor means. 9 MS. BIRCH: Again, Mr. Rhoads is not a 10 hydrologist. 11 MR. EARL: I am just asking him his 12 understanding of things he has briefed the board 13 on or otherwise represented. 14 THE WITNESS: Could you repeat the question 15 for me, please. 16 (Thereupon, a portion of the record 17 was read by the reporter.) 18 THE WITNESS: Within the extent of my 19 knowledge, I believe it is generally correct, as 20 it applies to other lands in addition to the 21 EAA, that there is a positive runoff balance 22 from the EAA. It is another contributor, as are 23 most lands in South Florida. 24 MR. EARL: Can you mark that, please? 471 1 (The document was marked 2 Rhoads Depo Exb. No. 7.) 3 BY MR. EARL: 4 Q. I hand you now, sir, what has been marked 5 as 7. Have you ever seen this before? 6 A. Yes, I have. 7 Q. Could you tell us what it is, please? 8 A. It is a memorandum from Walt Dineen through 9 me to Jocelyn Branscome, dated June 29, 1989; 10 subject, Everglades Hydroperiod Task Group report and 11 recommendations. 12 Q. Is this the same Hydroperiod Task Group we 13 talked about before? 14 A. Yes. Yes, it is. 15 Q. I see attached to it a nine-page document. 16 Have you seen that also? Have you seen this 17 attachment called Everglades Hydroperiod Report? 18 A. Yes. Yes, I believe I have. 19 Q. It says from J. Walter Dineen, EHTG 20 Chairman. EHTG would be Everglades Hydroperiod Task 21 Group, I assume. 22 A. I think that is a reasonable assumption. 23 Q. Was this document written by Mr. Dineen, do 24 you know? 25 A. I suspect so. Yes. 472 1 Q. Okay. Why was he writing this? Do you 2 know? 3 MS. BIRCH: Objection. Calls for 4 speculation. If he has personal knowledge, you 5 can answer it. 6 If you don't, I don't want you speculating 7 or guessing, Mr. Rhoads. 8 THE WITNESS: I am relatively comfortable 9 that this document is a result of Walt's task 10 group that he convened in response to Jocelyn's 11 memo of June 5, '89. 12 BY MR. EARL: 13 Q. And you were a member of that task group, 14 were you not? 15 A. I do not believe I participated on that 16 task group. I have no recollection of it. 17 Q. Okay, sir. I direct your attention to page 18 9 of that. Let me ask you first, would you consider 19 Mr. Dineen -- was he your mentor at the District? 20 MS. BIRCH: Objection to relevancy. What 21 does that have to do with the SWIM plan 22 challenge? 23 THE WITNESS: In some respects, Walt was my 24 mentor, yes. 473 1 BY MR. EARL: 2 Q. You have a lot of respect for his 3 professional judgment and opinions? 4 MS. BIRCH: Objection, relevancy. 5 THE WITNESS: In a number of areas, yes. 6 BY MR. EARL: 7 Q. In the area of Everglades hydroperiod 8 impacts, do you? 9 A. Yes. 10 Q. Okay, sir. I direct your attention to page 11 9, please; third paragraph from the bottom. It 12 starts off, "Other problems within Area 3A, primarily 13 overdrainage in the northern end, are not a result of 14 the schedule, but of the structural design of the 15 water control facilities." Do you concur with that? 16 A. Yes, I do. 17 Q. What water control facilities was he 18 talking about the structural design of? 19 MS. BIRCH: If he knows, he can answer, but 20 that calls for a conclusion and speculation as 21 to what Mr. Dineen was talking about. 22 THE WITNESS: I believe that you will 23 remember yesterday we spent several hours 24 discussing this subject, and we particularly 25 talked about the northern end of Conservation 474 1 Area 3A, and we specifically enumerated the 2 facilities that were involved in that. 3 BY MR. EARL: 4 Q. As it goes to this structural design of the 5 water control facilities, which ones? 6 A. We are talking basically levee four, levee 7 five, the S-8 pump station and the S-150 structures. 8 Q. Thank you. And those, are they not, are 9 part of the Federally designed flood control project; 10 is that correct? 11 MS. BIRCH: Objection; asked and answered a 12 number of times. 13 THE WITNESS: That is correct. 14 BY MR. EARL: 15 Q. What were the structural design defects on 16 those structures that this report refers to? 17 MS. PONZOLI: Object to form. 18 MS. BIRCH: Object to form. 19 THE WITNESS: Repeat the question, please. 20 (Thereupon, a portion of the record 21 was read by the reporter.) 22 THE WITNESS: I believe it is inappropriate 23 to refer to them as structural design defects. 24 BY MR. EARL: 25 Q. Well, he said the structural design results 475 1 in overdrainage; is that correct? 2 A. That is what he stated, yes. 3 Q. Wouldn't those be defects in terms of an 4 ecological prospective? 5 MS. BIRCH: It calls for a conclusion. He 6 doesn't know what Mr. Dineen was thinking about, 7 he can only tell you from his knowledge what he 8 thinks they may mean, but he may not know. 9 MR. EARL: I'm asking him, Counsel, just 10 his understanding. 11 THE WITNESS: I do not agree with the use 12 of the term "defect" for this, but the 13 unanticipated effects of the construction of the 14 C&SF project. I believe we discussed, again, 15 yesterday the overland flow that was intercepted 16 by the levee system, the point inflow instead of 17 overland flow that was created by the S-8 pump 18 station and the S-150 discharges, coupled with 19 the overdrainage effects of the conveyance canal 20 system through the area.. That is, the Miami 21 Canal and the L-38 west, L-68A complex. 22 BY MR. EARL: 23 Q. Okay, sir. 24 A. I believe that is what Walt was referring 25 to. 476 1 Q. You characterize those as unanticipated 2 problems. 3 A. I think that is a more appropriate method 4 of characterizing the problems. As I mentioned 5 yesterday, in my opinion, I'm not convinced that the 6 designers of the system fully recognized the 7 implications of their actions, the effect of their 8 actions. 9 Q. Okay, sir. Were the problems of nutrients 10 from the large agricultural area, the EAA, were they 11 anticipated at the time of the design of the project? 12 MS. BIRCH: Objection to the form. Calls 13 for a conclusion. 14 BY MR. EARL: 15 Q. To your knowledge. 16 A. I am aware of no information to 17 substantiate that they were aware of that problem at 18 that point in time. 19 Q. It is your understanding, though, that the 20 design of the project contemplated and, in fact, was 21 in part economically justified based on the growth of 22 agricultural activity in the EAA; is that correct? 23 MS. PONZOLI: Object to form. 24 MR. EARL: Grounds? 25 MS. PONZOLI: I think your concept of 477 1 growth probably doesn't embrace what has gone on 2 in the EAA in the period of time since the 3 building of the flood control project. 4 Explosion might be closer. 5 BY MR. EARL: 6 Q. Would you like the question back? 7 A. Yes. 8 MR. EARL: Would you read the question back 9 to the witness, please. 10 (Thereupon, a portion of the record 11 was read by the reporter.) 12 THE WITNESS: Rather than use those terms, 13 I would say that the agricultural development 14 within the Everglades Agricultural Area was one 15 of the project's objectives in construction of 16 the C&SF project, yes. 17 BY MR. EARL: 18 Q. Thank you. 19 Okay. If we can go back to page one of the 20 Everglades Hydroperiod Report, which has been marked 21 as 7, paragraph two states, "The use of pumping 22 stations and water control structures narrowed the 23 entrance points for this surface flow, and the 24 placement of canals directed the flow south in some 25 areas at a faster pace and in a narrower path than 478 1 historic sheet flow. Do you concur with that? 2 A. Yes, I do. 3 Q. Do you concur with the first statement; 4 that the construction of the Central and Southern 5 Florida Flood Control project south of Lake 6 Okeechobee severely altered surface flow into the 7 Water Conservation Areas in the Everglades National 8 Park? 9 A. Generally. However, I view that as 10 somewhat an overstatement because it implies to me 11 that all of the Water Conservation Areas in the 12 Everglades National Park were affected, and I believe 13 I testified earlier that significant portions have 14 been. 15 Q. Okay, sir. Let me direct your attention 16 down to the fourth paragraph on that page. The 17 report states, "Limited numbers of inflow points have 18 cut off water supply to several large areas of the 19 WCAs. The most critical area is the upper end of 20 Conservation Area 3A, where abbreviated hydroperiod 21 has allowed for significant muck loss by both 22 subsidence and fire, resulting in significant 23 reduction of ecological values." Would you agree 24 with that? 25 A. Yes, I would. 479 1 Q. And the next paragraph on that page, sir, 2 states that, "The restoration of an extended 3 hydroperiod would help revitalize this area and 4 re-establish important fish and wildlife benefits 5 without affecting water supply or flood protection." 6 Do you concur in that statement? 7 A. No, not fully. 8 Q. Why is that? 9 A. When you re-establish the hydroperiod in an 10 area, the water needs to come from somewhere, and 11 when you take that water from wherever it was, in 12 order to re-establish the hydroperiod, it does have 13 effects on the water supply capability and/or the 14 flood protection capabilities of the system to some 15 extent. 16 Q. So you would qualify that in terms of there 17 would be an effect on the water supply or flood 18 protection component? 19 A. Yes. How significant that might be, I 20 think, would need to be determined through 21 appropriate analysis. 22 Q. Okay. I direct your attention to page 2, 23 please. 24 Q. It states, "The Hydroperiod Task Group 25 reviewed the existing regulation schedules for Water 480 1 Conservation" -- 2 A. Excuse me, Counsel. 3 Q. I'm sorry. I am on page 2. 4 A. We are on page 3. 5 MS. BIRCH: Wait a minute. We don't have 6 page 2. 7 MS. BIRCH: In the document you handed us, 8 we do not have page 2. 9 MR. EARL: Is it out of place? 10 THE WITNESS: Yes. Yes, it is after page 11 4. 12 BY MR. EARL: 13 Q. Have you found page 2, sir? 14 A. Yes. 15 Q. Okay, sir. The first paragraph on that 16 states, "The Hydroperiod Task Group reviewed the 17 existing regulation schedules for the Water 18 Conservation Areas, and recommends that no new 19 initiative on the District's part be undertaken as 20 part of the SWIM effort." Was that decision 21 reflected in the currently adopted SWIM plan? 22 A. I don't remember how the current SWIM plan 23 deals with that specific area. I would have to look 24 that up and see. 25 Q. Do you want to take a moment and look it 481 1 up? 2 A. I would like to do that, yes. 3 Q. Okay, sir. 4 A. Could you repeat the question for me, 5 please. 6 (Thereupon, a portion of the record 7 was read by the reporter.) 8 THE WITNESS: My answer is yes, I believe 9 so. 10 BY MR. EARL: 11 Q. No new initiative was incurred? 12 A. With regards to the existing regulation 13 schedule. 14 Q. All right, sir. Is it your understanding 15 there is, however, an ongoing initiative by the Fish 16 and Wildlife Service to change the regulation service 17 schedule in 2A? 18 A. No. 19 Q. You are not aware of that? 20 A. Not in Conservation Area 2A, no. 21 Q. I'm sorry. One. Is there in Water 22 Conservation Area 1? 23 A. Yes. Yes, there is. 24 Q. Okay. The next sentence goes on, "The 25 District should continue to press forward to have the 482 1 existing 11 to 13.5 foot schedule for Area 2A adopted 2 as the official operating plan." What is the status 3 of that initiative? 4 A. That revised schedule was formally adopted 5 by the Corps of Engineers and is operative today. 6 Q. In place now? 7 A. Yes. 8 Q. Okay. The report then states in the next 9 paragraph, "There is no need to alter the overall 10 Area 3 schedule at this time, although changes in the 11 operating criteria for several internal water control 12 structures will be suggested to promote spreading of 13 inflow water across a broader area." Is that 14 suggestion of changes in the operating criteria for 15 several internal water control structures, is that 16 reflected in the adopted draft of the SWIM plan? 17 A. Yes, I believe that is consistent with the 18 adopted draft of the SWIM plan. 19 Q. Where would I find that in the SWIM plan, 20 sir? 21 A. I think it is covered under objective D, 22 "Restore overland sheet flow and seasonal flooding to 23 overdrained sections of the Everglades." 24 MS. PONZOLI: Which page? 25 THE WITNESS: That is on 59 of the planning 483 1 document of the Everglades SWIM plan. 2 BY MR. EARL: 3 Q. The structures are not identified? 4 A. No, they are not specifically identified in 5 that objective. 6 Q. Are any programs or operating criteria 7 identified in the currently adopted SWIM plan? 8 A. No, they are not. 9 Could you repeat that question for me, 10 please. 11 (Thereupon, a portion of the record 12 was read by the reporter.) 13 BY MR. EARL: 14 Q. Relating to changes in the operating 15 criteria for internal water control shed. 16 A. In general terms, yes. In specific terms, 17 no. 18 Q. What do you mean by that? 19 A. I think the objectives presented in the 20 Everglades SWIM Plan on 59 call for that sort of 21 activity to be carried out. For instance, improved 22 timing and distribution of flow. One of the most 23 effective ways of doing that is by altering the 24 structural works that control much of the flow on the 25 Water Conservation Areas. And I think the intent 484 1 behind that objective was consistent with alteration 2 of operating criteria for the water control 3 structures. 4 Q. I'm sorry, I didn't make my question clear. 5 My question related to specific operating criteria 6 for specific structures. 7 A. There are not specific criteria included 8 within the plan. 9 Q. Okay, sir. The recommended goal, the 10 report states, "The goal of the Everglades SWIM Plan 11 should be to promote expanded sheet flow of 12 acceptable-quality water in the Everglades." Is that 13 goal reflected in the currently adopted plan? 14 A. The substance of the question was? 15 Q. Is that goal in the currently adapted SWIM 16 plan? 17 A. I believe that goal is consistent with the 18 currently adopted SWIM plan. 19 Q. Where can I find that goal in the currently 20 adopted SWIM plan? 21 A. It is consistent in that the currently 22 adopted SWIM plan calls for remedying the water 23 quality problems of the Everglades, and it also calls 24 for correcting the hydroperiod problems of the 25 Everglades. 485 1 Q. Does it specifically determine the 2 promotion of expanded sheet flow of acceptable water 3 quality should be a goal? 4 A. Objective D on 59 discusses the restoration 5 of sheet flow. 6 Q. Okay. Recommended objectives is the next 7 part of this report, sir. It says, "Restore seasonal 8 flooding to overdrain sections of the Everglades." 9 Is that objective in the current draft of the SWIM 10 plan? 11 A. I believe the current draft of the SWIM 12 plan has objectives that are consistent with that, 13 yes. 14 Q. Are there specific remedies or physical 15 changes delineated in the current draft of the SWIM 16 plan which would accomplish that? 17 A. No, they are not specifically delineated in 18 this draft of the SWIM plan. 19 Q. Okay, sir. The next recommended objective 20 in the report is, "Reduce canal flow within the WCAs 21 where practical in order to move more water into the 22 marsh, excluding Conservation Area Number 1." Is 23 that objective reflected in the current draft of the 24 SWIM plan, to your knowledge? 25 A. As I understand the Everglades SWIM Plan, 486 1 as I am looking at it, I believe that the objectives 2 of the SWIM plan are consistent with that recommended 3 objective, yes. 4 Q. Are there any physical changes, operating 5 practices or other specific remedies proposed which 6 would accomplish that objective? 7 A. I think there are, in addition to the 8 objectives, I believe there are strategies in the 9 Everglades SWIM Plan on page 60 which are consistent 10 with that objective, yes. 11 Q. I believe my question, sir, was a little 12 more specific; and that is, are there physical 13 changes or specific measures proposed in the SWIM 14 plan which would accomplish that objective? 15 MS. BIRCH: Object to the form of the 16 question. The SWIM planning document 17 encompasses three volumes with numerous pages, 18 and Mr. Rhoads has previously testified that he 19 did not -- was not one of the principal authors 20 of the SWIM plan, and with us sitting here going 21 through a deposition, I think it is quite unfair 22 to ask him to go through each and every page of 23 the document. Asking him in general terms if it 24 is there, and he can respond, I think, is 25 appropriate, but I think it is inappropriate if 487 1 you're seeking an answer, a response from him, 2 to give you a page or a paragraph. To the 3 extent he can do that in a timely fashion, I 4 would ask him to do that, but if it is going to 5 take, you know, us reviewing the entire 6 document, I think that is inappropriate. 7 MR. EARL: I'm asking Mr. Rhoads if he is 8 aware of any specific physical changes or 9 activities in the SWIM plan which would result 10 in achievement of reducing canal flow within the 11 WCAs where practical. 12 THE WITNESS: On page 60 under strategies 13 B3, the SWIM plan proposes to improve water flow 14 into and between Conservation Area 2A and 2B by 15 diverting flow from the S-6 structure and 16 installing additional culverts through the 17 levee. I believe that strategy and that 18 specific recommendation is consistent with that 19 objective. 20 BY MR. EARL: 21 Q. How is that being implemented in your 22 Everglades Restoration Plan that you have laid out? 23 Where is that on your time table? 24 MS. BIRCH: Object to the form. It is not 25 Mr. Rhoads' plan. 488 1 BY MR. EARL: 2 Q. The District's plan, sir. 3 A. Under the conceptual plan for the STA in 4 the Hillsboro Canal basin, the design/engineer 5 provided for the distribution facilities out of 6 STA-2, which are essentially consistent with this 7 objective; the spreading of discharges across the 8 northern portion of Conservation Area 2A. 9 Q. Those are going to be culverts? 10 A. I don't remember the specific details of 11 the design concept. It was either culverts or it was 12 a degraded levee functioning as an inflow control 13 mound. One of the two. 14 Q. Okay, sir. Going down to recommended 15 strategies, on page 3, sir, very top of page 3 -- 16 A. Excuse us just one moment. 17 MS. BIRCH: We are there. 18 THE WITNESS: Yes, sir? 19 BY MR. EARL: 20 Q. Okay, sir. The report recommends improve 21 water flow between Conservation Area 2A and 2B by 22 installing additional small culverts through the 23 levee. Is that called for in the adopted SWIM plan? 24 A. I have not reviewed all aspects of the 25 adopted SWIM plan recently, so I'm not sure if it is 489 1 perhaps buried in Volume 2. However, I do know that 2 our Operations and Maintenance Department based upon 3 designs being developed by the Construction 4 Management Department, is in the process of replacing 5 culverts between Conservation Area 2A and 2B, which 6 would be consistent with this objective. 7 Q. But you are not aware of that being in the 8 SWIM plan? 9 A. It may be. 10 Q. "Additional recommendations: Examine 11 utilizing portions of the Rotenberger land as a means 12 of spreading water across the northwest corner of 13 Area 3A," is that reflected in the SWIM plan? 14 A. I'm not sure if it is or not. 15 Q. I direct your attention to page 5 of the 16 report, please. 17 A. Yes. 18 Q. The first full paragraph states, "The very 19 nature of the physical construction of the three 20 Water Conservation Areas with their attendant 21 internal canal systems has caused two very pronounced 22 hydroperiod impacts. All three WCAs have a common 23 pair of hydroperiod problems." Sub one: Water tends 24 to pond in the southern portions of each WCA; sub 25 two, the northern portions of all WCAs tend to dry 490 1 too quickly. I have paraphrased the two 2 subcomponents. Do you agree with that? 3 A. Yes, I do. 4 Q. Going down to the second paragraph from the 5 bottom, the report states, "Some attempts to correct 6 hydroperiod impacts in the past include the 7 construction of S-339 and S-340." These are the ones 8 you talked about yesterday, correct, in the Miami 9 Canal? 10 A. Yes. That is correct, yes. 11 Q. "To disburse canal flow from the Miami 12 Canal into the northern marsh in wet periods, and to 13 stop overdrainage of the northern marshes in dry 14 seasons." It goes on. 15 The next paragraph states, "Another 16 structure, S-10E, was constructed in levee 39 in the 17 northern apex of WCA-2A. This vast marsh area 18 received water only from direct rainfall after 19 construction of WCA-2A and S-10E is a method of 20 adding water to this marsh during the wet season for 21 a better distribution and extension of the 22 hydroperiod." 23 I direct your attention to the top of the 24 next page. The report states, "These water dispersal 25 mechanisms have been beneficial, but have not proven 491 1 to be ultimate solutions to the existing problems." 2 Do you agree with that conclusion? 3 A. Yes, I do. 4 Q. On page 7, sir, the first full paragraph, I 5 guess it is -- excuse me -- the second paragraph, in 6 referring to Water Conservation Area Number 1, it 7 states that, "The original schedule called for water 8 levels to fluctuate from 14 to 17 feet NGVD, but 9 allowed the water to drop very quickly, leaving the 10 area's marsh dry for too much of the year. In most 11 of the first nine years after the area was enclosed 12 by dikes, the water level fell to 11 feet under this 13 schedule." Is that correct, as you understand? 14 A. I have no reason to doubt that conclusion. 15 Q. The next paragraph states, "In 1969, the 16 Loxahatchee schedule was altered, raising the minimum 17 to 15 feet, which augmented water supply in the dry 18 season. However, this change kept much of the marsh 19 inundated throughout the dry season, when it had 20 traditionally been exposed to a dry-out." Is that 21 correct, as you understand it? 22 A. That is consistent with my understanding. 23 Q. If I can direct your attention to the 24 bottom of the paragraph, which is Conservation Area 25 2A, "The schedule for Area 2A was originally set too 492 1 high to support Everglades habitat and has been the 2 subject of extensive research and experimentation by 3 the District." Do you concur with that? 4 A. That is consistent with my prior testimony. 5 Q. It states, "The original 1961 schedule 6 called for water levels to fluctuate from 12 to 14.5 7 feet. The schedule was revised even higher in 1970 8 to a range of 13 to 14.5 feet with only a 30-day 9 period the at the lower end." Is that also correct 10 as you understand the history of that area? 11 A. Yes. 12 Q. Let me go down to the second sentence in 13 the next paragraph, sir. The report states, "The 14 extended high water -- 15 A. Yes? 16 Q. "The extended high water killed significant 17 stands of trees, eroded islands, and caused other 18 undesirable vegetative changes in the area." Is that 19 also correct? 20 A. I believe that is correct, yes. 21 Q. Next paragraph states, "In 1908, the 22 schedule water revised at the District's request to 23 an interim plan of 9.5 to 12.5 feet, an extreme 24 drawdown that was in place for eight years." Is that 25 also correct? 493 1 A. Yes. 2 Q. Okay, sir. That is all I have on that 3 document. Thank you. 4 MR. EARL: Could we mark that, please? 5 (The document was marked 6 Rhoads Depo Exb. No. 8.) 7 BY MR. EARL: 8 Q. I hand you now, sir, what has been marked 9 as Exhibit 8 to your deposition and ask you to look 10 at that. Can you identify this for me? 11 A. The first portion of the document is a 12 memorandum that I prepared addressed to the Chairman 13 of the Governing Board through the Executive Director 14 dated July 27, 1989. 15 Q. Is it two documents? You say the first 16 part of the document. 17 A. Yes. Yes. I'm not familiar with those 18 last three pages that are attached to it. 19 Q. Okay. You haven't seen those before; 20 entitled Shopping List of Possible Everglades SWIM 21 Strategies? 22 A. Doesn't ring a bell to me, no. 23 Q. It is not your list? 24 A. It may be. I don't remember it, however. 25 Q. Okay. Well, if I can direct your attention 494 1 to the first part of the document, which is the 2 document you prepared -- 3 A. Yes. 4 Q. -- and if you go to page 5, please, under 5 the heading Staff Position, paragraph four, Staff 6 Position, I direct your attention to the last 11 7 lines, which start off, "Rainfall stations which 8 appear to be most contamination free and most 9 representative"-- 10 A. Yes, I see that line. 11 Q. I'd ask you to read that, please. 12 A. Through the remainder of the paragraph? 13 Q. Yes, sir. If you would. 14 A. "Rainfall stations" -- 15 Q. No, I don't mean read it. Just read to it 16 familiarize yourself with it. Thank you. 17 A. I am looking for my resume'. I am still 18 trying to keep the chronology straight. Okay. 19 Yes, I have read those indicated sentences. 20 Q. Okay, sir. We briefly talked about 21 rainfall phosphorus concentration levels yesterday, 22 if you remember. 23 A. Yesterday or Monday, yes. One of the two 24 days we did, yes. 25 Q. Okay. You state in this paragraph that 495 1 rainfall phosphorus concentration is average point 03 2 milligrams per liter annually. I guess you are 3 talking about historic Everglades rainfall located 4 along the east coast in the southern tip of South 5 Florida. 6 MS. PONZOLI: Object to form. 7 MS. BIRCH: Is that a question, Mr. Earl? 8 BY MR. EARL: 9 Q. I'm going to go back and ask you about this 10 in your own words. Rainfall stations -- you talk 11 about contaminant-free rainfall stations. What does 12 contaminant mean in that context? 13 A. The concept behind that sentence is that 14 the areas closest to the coast coming off the water, 15 not overdeveloped areas, appear to have lower 16 rainfall phosphorus concentrations based upon the old 17 District data base, and so what that sentence was 18 saying was the rainfall stations which appear to be 19 most contamination free and most representative of 20 historic Everglades rainfall located along the east 21 coast and the southern tip of South Florida had 22 concentrations which averaged about 30 milligrams per 23 liter. 24 Q. So that would be in an undeveloped area, 25 undeveloped in terms of urban development and 496 1 undetermined in terms of agricultural? 2 A. The concept behind the sentence was that 3 those concentrations, in all likelihood, approximated 4 what happened in historical Florida prior to 5 development of the area. 6 Q. Okay. Does urban development result in 7 higher phosphorus rainfall, as you understand it? 8 A. I am not aware of specific documentation to 9 support that. 10 Q. Does the District's network for collecting 11 such information include an urban area in Dade and 12 Broward County, Palm Beach County? 13 A. Yes, I believe it does. However, I add the 14 caveat I mentioned in my earlier testimony; that the 15 existing data base that the District has has some 16 substantial problems associated with it, based upon 17 most recent analysis. 18 Q. Understanding that, just dealing with what 19 it is, apart from any problems there may be, what 20 does your understanding of that network tell you in 21 terms of urban impact? 22 MS. PONZOLI: Object to form. Asked and 23 answered. 24 THE WITNESS: I need to have you repeat the 25 question for me, please. 497 1 (Thereupon, a portion of the record 2 was read by the reporter.) 3 THE WITNESS: The urban impacts on 4 phosphorus appear to be relatively low, based 5 upon that network. The highest concentrations 6 found in that network were generally in the 7 agricultural area. I believe the highest values 8 were found in the vicinity in the City of 9 Clewiston. The coastal values, either because 10 of minimal urban impact upon phosphorus in the 11 air or because of the proximity of marine waters 12 for one reason or another, those coastal 13 concentrations tended to be considerably lower. 14 BY MR. EARL: 15 Q. Okay. Was one or more of those 16 collection stations located in an urban area? 17 A. I believe so, yes. 18 Q. Whereabouts? 19 A. One of the stations was located 20 approximately where we are right now. 21 Q. At the District? 22 A. At the District headquarters. Yes. This 23 site. 24 Q. Okay. And what does that show you? 25 A. I don't remember what the values were for 498 1 that site. I believe they were relatively low. I 2 don't remember the specific value; average annual 3 value. 4 Q. Order of magnitude? 50? I am just trying 5 to understand. 6 A. I believe it was less than 50. 7 Q. But higher than 30, which you told me was 8 the area in the coast. 9 A. Yes. I think it could have been around 30 10 parts per billion, but I am stretching my memory. 11 Q. Here at the District site? 12 A. Here at the District, yes. 13 Q. Other sites in urban areas? 14 A. I don't remember. There may have been 15 other are sites to the south, but I don't remember. 16 Q. If we can go to the last several pages of 17 that document, sir, which I understand you don't -- 18 you haven't -- you don't recall seeing. 19 MS. PONZOLI: It has a totally different 20 number, Counselor. 21 MS. BIRCH: Looks like two documents 22 stapled together. 23 MR. EARL: No, it is not a totally 24 different number. It is in a series, 25 consecutive with the prior documents, Counsel. 499 1 MS. PONZOLI: Well, it is 48 to 57, which 2 would mean you had intervening numbers from 49 3 up to 57. 4 MR. EARL: Whatever. If you look at the 5 last page of the first document, Counsel, you'll 6 find it is 191556. 7 MS. PONZOLI: I'm sorry. I apologize. 8 You're right, Mr. Earl. You're right. You 9 numbered each page. I apologize. 10 THE WITNESS: Counsel, the style of this 11 document appears to be my style, but I don't 12 remember having prepared the document. 13 BY MR. EARL: 14 Q. Okay. Understanding that, let me direct 15 your attention to the first page of that document, 16 the paragraph headed ENP/South Dade Water Quantity, 17 and this is entitled Shopping List of Possible 18 Everglades SWIM Strategies/Projects and Programs. 19 Number four, build the S-197 structure. Is that in 20 the current SWIM plan? 21 A. I don't remember how the current SWIM plan 22 deals with the 197 structure, since when, I presume, 23 this was written, there have been modifications made 24 to the S-197 structure, and design work is underway 25 for replacement of the 1 S-197 structure. But I do 500 1 not know whether it is in the Everglades SWIM Plan or 2 not. 3 Q. Okay. How about number two: Fill in 4 unused or unneeded canals to restore historic 5 c-y-c-t-e-m. I presume that is meant to be system. 6 A. Presumably system. 7 Q. Are any canals designated in the SWIM plan 8 to be filled in? 9 A. Not to my recollection, no. 10 Q. Okay, sir. Number one: Review operational 11 options to improve quantity distribution and timing. 12 Is that required under the adopted SWIM plan? 13 A. I believe that statement is consistent with 14 the objectives and strategies dealing with the 15 hydroperiod section that we reviewed a few moments 16 ago. 17 Q. But my recollection is we could not find a 18 specific reference to operational review. 19 MS. BIRCH: Your testimony is whatever it 20 was. If your recollection is different from the 21 witness -- 22 MR. EARL: I understand. I am talking 23 about ENP/South Dade Water Quantity. Does that 24 call for to review operational options in the 25 SWIM plan, to your knowledge? 501 1 MS. BIRCH: Asked and answered. 2 MR. EARL: No. He said it is consistent, 3 Counsel, he didn't tell me it was called for. 4 MS. BIRCH: That was an answer. 5 THE WITNESS: I believe that the goals, 6 objectives and strategies presented in the SWIM 7 plan are very close to and are consistent with 8 this particular comment. 9 BY MR. EARL: 10 Q. I direct your attention to the third page 11 of this document; the paragraph headed EAA/WCA Water 12 Quantity, Distribution and Timing. Number two is 13 program or project to review District and Corps 14 operational practices, regulation schedules. Is that 15 called for and required by the current SWIM plan? 16 A. In general terms, I believe the goals, 17 strategies and objectives of the SWIM plan are 18 consistent with that statement. 19 Q. But is a project to review the operational 20 practices called for in the SWIM plan, to your 21 knowledge? 22 A. Specifically? I believe two of the 23 projects called for on page 170 of the Everglades 24 SWIM Plan under P-1 deals with flows and levels. 25 Q. Excuse me, sir. Could you just get 170? 502 1 A. Sure. Sure. 2 MS. BIRCH: Page 170, Counselor? 3 MR. EARL: 170. 4 MS. BIRCH: 170? 5 MR. EARL: Yeah, okay. 6 THE WITNESS: The two projects identified 7 at the top, hydroperiod flow and levels and 8 hydroperiod C-111 basin, incorporate, in my 9 opinion, the statement under paragraph two of 10 that heading. 11 BY MR. EARL: 12 Q. Okay, sir. That is a cross analysis that 13 shows 220,800. Where would I go to find the 14 requirement that operational practices be reviewed? 15 A. I am interpreting that activity, that 16 project name, hydroperiod flow and levels, as 17 requiring the review of operational practices as a 18 part of doing that activity. It would need to be 19 done. 20 Q. Apart from this implied requirement, is 21 there any more specific language you're aware of in 22 the plan? 23 A. Not that I am aware of, no. 24 MS. BIRCH: Mr. Earl, Mr. Rhoads would like 25 a break in about five minutes. 503 1 MR. EARL: Do you want to do it now? 2 THE WITNESS: Would this be a good point 3 here? 4 MR. EARL: Whatever is convenient for you. 5 THE WITNESS: If we could take a brief 6 break now, thank you. 7 (Thereupon, a recess was taken.) 8 MR. EARL: Back on the record. 9 Could we mark that, please, as Number 9. 10 (The document was marked 11 Rhoads Depo Exb. No. 9.) 12 BY MR. EARL: 13 Q. Can you identify this, sir? 14 A. Yes. This is a memorandum that I wrote to 15 Tom MacVicar. The memorandum is dated September 20, 16 1989, the subject is potential future removal of pump 17 and water available for ENR. 18 Q. Did they ever remove those pumps? 19 A. The issue, as I remember it at this point 20 in time, was that the pump which put water into the 21 ENR project to keep portions of it wet had been 22 removed to provide emergency backup for the S-7 pump 23 station -- I believe it may have been S-8 -- I think 24 it was the S-7 pump station -- during a period when 25 we were having difficulty with one of the pumps, so 504 1 the pump station had been taken from -- portable pump 2 had been taken from the ENR project, put on adjacent 3 to one of the existing pump stations. And I had 4 concurred in that decision with our Director of 5 Operations, Joe Schweigart. However, the issue that 6 had been raised by the researchers working at the ENR 7 project was that they would need that pump station at 8 some point in the future, so we sent -- the thrust of 9 the memo was when can we have the pump station, the 10 pump, back, in order to assure that the ENR project 11 can have enough water during the early development 12 phase? 13 Q. How long was the pump gone? 14 A. Not very long, I don't believe. I think -- 15 no, I don't remember. 16 Q. The third paragraph, you state, "The ENR 17 project will almost certainly be one of the critical 18 projects for implementing the Everglades SWIM Plan, 19 when approved." Do you still believe that to be the 20 case? 21 A. Yes, I believe the ENR project is a very 22 important project in the implementation of the SWIM 23 plan. 24 Q. Was there any interference whatsoever in 25 the work on the ENR project because of the pump 505 1 displacement? 2 A. Not that I remember, no. 3 (The document was marked 4 Rhoads Depo Exb. No. 10.) 5 BY MR. EARL: 6 Q. Have you seen this memo before, sir? 7 A. Yes, I have. 8 Q. Can I direct your attention to page 2, 9 paragraph F, which, as I understand it, these were 10 LOTAC issues, and F was, "Analyze the use of Water 11 Conservation Areas in lieu of proposed Water 12 Management Areas." Was that a LOTAC-II issue at one 13 time? 14 MS. PONZOLI: Excuse me. May I hear the 15 question again. 16 (Thereupon, a portion of the record 17 was read by the reporter.) 18 THE WITNESS: Yes, I believe LOTAC-II did 19 consider that issue, yes. 20 BY MR. EARL: 21 Q. Let me direct your attention to the last 22 paragraph of Ms. Smith's memo. It states, the last 23 sentence in that paragraph F, "Since the issues" -- 24 and she is referring, as I understand it, to Water 25 Conservation Areas use -- "Since the issues are 506 1 political rather than technical in nature, Council 2 will not give this option any further consideration." 3 Do you concur that use of the Water Conservation 4 Areas is a political rather than technical question? 5 MS. PONZOLI: Object to the form. 6 MR. EARL: Grounds? 7 MS. PONZOLI: I think that there are other 8 issues. You can ask him his opinion. 9 MS. BIRCH: What is the question? 10 (Thereupon, a portion of the record 11 was read by the reporter.) 12 MS. BIRCH: Objection to the relevancy of 13 what Mr. Rhoads' opinion is, as to whether or 14 not it is political or any other type question 15 or consideration. 16 THE WITNESS: I would not characterize it 17 as a political issue, I would characterize it as 18 a policy decision. 19 BY MR. EARL: 20 Q. Is Lisa Smith still with the District? 21 A. Yes, I believe so. Yes, she is for sure. 22 Q. But it is not a technical decision; 23 correct? 24 A. It is a policy decision that has technical 25 ramifications, but basically, it is policy decision. 507 1 MR. EARL: Mark this, please. 2 (The document was marked 3 Rhoads Depo Exb. No. 11.) 4 BY MR. EARL: 5 Q. Have you ever seen this before, sir? 6 A. Yes, I have. 7 Q. What is it, please? 8 A. This is a memo prepared by Dr. Michael 9 Maceina, Senior Eastern Environmentalist in the 10 Environmental Sciences Division, dated March 30, 11 1990. The subject of the memorandum is analysis of 12 water quality and hydrologic data for Water 13 Conservation Area 2A. 14 Q. Do you recall why this memo was prepared or 15 were you involved in the decision to have this 16 prepared? 17 A. To the best of my recollection, Walt and I 18 felt that we needed to have a review of all of the 19 Conservation Area 2A data, and the best available 20 person was Mike Maceina, and so Mike was asked to 21 take a look at all the data he could get his hands 22 on, go through it, and put his conclusions down. 23 Q. Is Mike still with the District? 24 A. No, he is not. 25 Q. Where did he go? Do you know? 508 1 A. He's on staff at a university somewhere in 2 the southeast US, and I don't remember which one it 3 is. 4 Q. In Florida? 5 A. No. Alabama, I believe. 6 Q. I direct your attention to the second page 7 of the memo, first full paragraph. Mr. Maceina 8 states, "Variation in surface water TP concentrations 9 was not significantly correlated to P loading." Is 10 that an accurate statement, to your -- 11 MS. PONZOLI: Object to the form. 12 THE WITNESS: I'm not quite sure what Mike 13 meant by that statement. I have not read the 14 full memorandum and don't know what he was 15 trying to get at there. 16 BY MR. EARL: 17 Q. Do you want to take a minute and review 18 this? Would you be more comfortable? 19 MS. PONZOLI: Counselor, I think it is 20 going to take more than a minute. This is a 21 fairly complicated memo. It has come up in 22 depositions before in the Federal case. It is a 23 five-page, highly technical memorandum. 24 MR. EARL: Well, let's see if we can, 25 without -- let's try and see what we can get 509 1 through without reading the whole thing. But if 2 at any time you want to read portions of it to 3 assist you, please let me know. I am on page -- 4 you can see the little bates-stamp at the bottom -- 5 082022. 6 THE WITNESS: That is called a bates? 7 MR. EARL: Bates, b-a-t-e. A little 8 machine, used to be. Now it is electronic. 9 MS. PONZOLI: Some of us use stickies, who 10 are on a lower budget. 11 (Discussion held off the record.) 12 BY MR. EARL: 13 Q. Do you see that page with the last two 14 digits 22? 15 A. Yes. 16 Q. Okay, sir. On the last paragraph there, 17 sir, in the second sentence it states, "Prior to 18 1981, all water quality stations sampled for TP had 19 remained flooded for eight years." This is in Water 20 Conservation Area 2A. Is that true? 21 A. That is consistent with my recollection of 22 the hydrology of the period. 23 Q. He goes on to state, "A new lower schedule 24 was approved in 1979." The next sentence, "However, 25 wet conditions prevailed until the drought in 1981, 510 1 and a large portion of WCA 2A was dry." Is that also 2 correct? 3 A. I think he has some syntax problems with 4 that sentence. The way I read it, what he was saying 5 was it stayed wet until the drought of 1981, and then 6 subsequent to the drought of 1981, or as part of the 7 '81 drought, a large portion of 2A went dry. Yes, 8 that is consistent with my recollection of the 9 conditions. 10 Q. And then in August 1981, 22 inches of rain 11 fell on WCA 2, which rapidly increased water levels. 12 Is that also correct? 13 A. That is consistent with my recollection. 14 Q. And then he goes on to say, "In many 15 regions, TP concentrations increased to more than 0.4 16 milligrams per liter." Is that also correct, as you 17 understand it? 18 A. I'm not familiar with that data, the water 19 quality data, so I really don't have an opinion on 20 that. 21 Q. Okay. He says in the next sentence, "In 22 addition, a controlled burn occurred on the north end 23 of WCA 2A in the fall of 1980 and probably resulted 24 in phosphorus remineralization." What was the nature 25 of that controlled burn? 511 1 MS. BIRCH: Objection; lack of foundation. 2 BY MR. EARL: 3 Q. If you know. 4 A. My recollection is that the Game Commission 5 was attempting an experimental control burning 6 program in portions of the Water Conservation Areas, 7 and that that drought provided an opportunity for 8 them to do some controlled burning in various 9 portions of Conservation Area 2A. I believe that is 10 what Mike was referring to. 11 Q. Let me direct your attention, if I can, to 12 seven paragraphs -- seven lines from the bottom of 13 the page. Starts off, "The late 1970's," period, 14 then the sentence I direct your attention to -- 15 A. Yes. 16 Q. "These compounding events in 1981, 1982 17 appeared to drastically alter the distribution of TP 18 in the water in the northern regions of WCA 2A." Is 19 that your understanding of events? 20 MS. BIRCH: Object to the form of the 21 question. 22 THE WITNESS: I'm not sure what events he 23 was referring to in that sentence. 24 BY MR. EARL: 25 Q. Okay, sir. The next sentence, "Although 512 1 the higher regulation schedule exerted deleterious 2 effects on established Everglades vegetation, high 3 water levels assisted in maintaining high P 4 concentrations in the plants, detritus, and 5 hydrosoils in a smaller portion of WCA 2A south of 6 the S-10s." Does that comport with your 7 understanding of events? 8 MS. PONZOLI: I'm going to object to this 9 whole line of questioning; reading him every 10 sentence and asking him if he concurs. I guess 11 this is Dr. Maceina's work. 12 MS. BIRCH: I join in that objection. 13 THE WITNESS: As I read that, it is not 14 clear to me what he was attempting to say in 15 that sentence. 16 BY MR. EARL: 17 Q. With the higher regulation schedule, would 18 it be correct to say that a higher regulation 19 schedule has resulted in a higher volume of water 20 into the conservation area in the period he is 21 talking about? 22 MS. BIRCH: Object to the form of the 23 question. 24 THE WITNESS: Not necessarily. The 25 regulation schedule has to do with the level at 513 1 which water is stored within the area, which can 2 be independent of the rate at which it comes in, 3 and it usually is. The discharges in are 4 controlled by upstream stages. Downstream 5 stages really have no control over how much 6 water comes in. So my response to your 7 question, as I understood it, would be no. 8 BY MR. EARL: 9 Q. Well, is he wrong when he talks about high 10 water levels in conjunction with higher regulation 11 schedule? 12 MS. BIRCH: Objection. Calls for 13 conclusion and speculation. 14 BY MR. EARL: 15 Q. In this sentence we have just talked about, 16 he's associating a higher water level with higher 17 regulation schedule. 18 A. The first portion of that sentence, where 19 he says, "The high regulation schedule exerted 20 deleterious effects on established Everglades 21 vegetation," I concur with that. I am familiar with 22 the events out there that would support that 23 statement. The second portion of the statement, 24 though, I don't know what data he looked at, what 25 analysis led him to that conclusion, and I don't have 514 1 an opinion on that part of it. 2 Q. So you don't know whether at this point in 3 time the water levels were higher in WCA 2 south of 4 the S-10s? 5 A. It is not clear here what time period he 6 was comparing. 7 MS. BIRCH: Same objection. 8 BY MR. EARL: 9 Q. 1981, 1982, apparently, sir. 10 MS. PONZOLI: Mr. Earl, I think you have 11 asked the question several times and he's given 12 you the best answer he can. 13 MS. BIRCH: Is there a pending question? 14 MR. EARL: Yes, there is. 15 THE WITNESS: Could you repeat the question 16 for me, please. 17 (Thereupon, a portion of the record 18 was read by the reporter.) 19 MS. PONZOLI: Same one we have heard 20 several times. 21 Would you read it back, please. 22 (Thereupon, a portion of the record 23 was read by the reporter.) 24 MS. BIRCH: Same objection; asked and 25 answered. 515 1 BY MR. EARL: 2 Q. '81-'82, the period he is talking about, 3 after the storm events in 1981 that he references. 4 A. Okay. 5 MS. BIRCH: Objection. That is assuming 6 that that is what Mr. -- Dr. Maceina's talking 7 about. 8 THE WITNESS: The reference to his high 9 water levels is not clear. He is talking -- in 10 the prior phrase he says, "Although higher 11 regulation schedule," so he was referring there 12 to the prior higher regulation schedule. It is 13 not clear whether his high water levels is 14 referring to the short-term conditions 15 associated with 1981 or whether he was referring 16 to the higher water level conditions of the 17 1970's under the -- 18 BY MR. EARL: 19 Q. You have no idea what he's referring to? 20 MS. BIRCH: Objection, asked and answered 21 for the third or fourth time. It is obvious he 22 doesn't understand the question, Mr. Earl. He 23 stated that. 24 BY MR. EARL: 25 Q. I'm not asking -- I'm asking do you have 516 1 any idea, understanding, of what he's referring to in 2 those two sentences? 3 MS. PONZOLI: Object to the form. 4 BY MR. EARL: 5 Q. In you don't, say so, and we'll move on. 6 A. I don't. 7 Q. You might have if you read the document; 8 correct? 9 A. Possibly. 10 Q. Okay. We'll come back to it. 11 MR. EARL: Mark this, please, as 12. 12 (The document was marked 13 Rhoads Depo Exb. No. 12.) 14 BY MR. EARL: 15 Q. Have you seen this, sir? 16 A. Yes, sir. I prepared this. 17 Q. Okay. The PBR down in the lower part of 18 the paper, 5/21/90, that is Peter -- what is your 19 middle initial, name? 20 A. Berghold. Good Swedish name. 21 Q. Berghold M. Rhoads. Okay, sir. You 22 prepared this. For what purpose is this prepared? 23 A. I don't really remember. It appears to be 24 the input that we received in a participative 25 in-house workshop regarding the Everglades Nutrient 517 1 Removal Project. 2 Q. Okay. You state, "The goal for the ENR 3 project is the maximum reduction of P tonnage. Is 4 that still the goal of the ENR project? 5 A. I think there are multiple goals for the 6 ENR project. That is one of them. 7 Q. What is the primary goal? 8 A. Oh, I'm not sure if I can identify the 9 primary goal. I can give the goals. 10 Q. What are they? 11 A. To reduce phosphorus tonnage going into 12 Conservation Area 1, to reduce phosphorus 13 concentrations on the effluent water, to research and 14 develop information to support the optimization of 15 the potential future operation of wetland treatment 16 systems in south Florida. 17 Q. Okay. Item three, you state, "Design and 18 construct the project in accord with the concept that 19 was sold to the Governor and Cabinet." Who sold what 20 to the Governor and Cabinet? 21 A. That is a colloquial choice of words there. 22 I think the intent of that statement was that the 23 Governor and Cabinet had been briefed, and it was 24 indicated to them that cattails would be grown on the 25 property, that the water level would be roughly three 518 1 feet deep, that there would be roughly an eight-day 2 retention time for that water as it went through the 3 ENR project, and that that would accommodate 4 approximately 56 percent of the S-5A flow and would 5 reduce the S-5A phosphorus load by 30 percent. 6 Q. Okay. Go down to item five. "Can't grow 7 sugar cane on the property -- will get too much 8 abuse." What's the problem? Sugar cane politically 9 incorrect or -- 10 MS. BIRCH: Object to the form of the 11 question. 12 MS. PONZOLI: Object to the form. 13 BY MR. EARL: 14 Q. Too much abuse from who, for what? 15 A. I think the thought behind that rather 16 poorly worded statement was that the prototype 17 Nutrient Removal Project for South Florida, which the 18 ENR project is, in my opinion, would have perception 19 problems if sugar cane was used as the vegetation on 20 the project. 21 Q. Why? 22 A. I can speculate that it would be perceived 23 as being -- 24 MS. BIRCH: Mr. Rhoads, excuse me. I'm 25 going to instruct you not to speculate. If you 519 1 can answer the question based on facts that you 2 have knowledge of, you can answer it. If you 3 can't, I ask you not to speculate. 4 THE WITNESS: Could you repeat the question 5 for me, please. 6 (Thereupon, a portion of the record 7 was read by the reporter.) 8 MR. EARL: And the witness' prior answer, 9 too. 10 (Thereupon, a portion of the record 11 was read by the reporter.) 12 THE WITNESS: I think the use of either 13 sugar cane or any crop species would appear 14 inappropriate to many people in a wetlands 15 treatment system. That was the concept that, I 16 believe, whoever provided that input had in 17 mind. 18 That is, that while there may be advantages 19 in terms of funds that were received from 20 harvesting a crop grown in a wetlands treatment 21 area, that to initially start out with a crop 22 growing in a wetlands treatment area was 23 inappropriate; that it would be more appropriate 24 to choose a species that was better targeted for 25 nutrient removal than a species that was 520 1 optimized for agricultural production. 2 BY MR. EARL: 3 Q. Does sugar cane have phosphorus uptake 4 capabilities? 5 A. It depends upon the variety, I believe. It 6 is probably not an optimal plant for growing in a 7 wetlands. At least not conventional varieties. 8 Q. But there are species that are better? 9 A. It is my general understanding that there 10 are a wide variety of sugar cane species. Some are 11 better than others, some are adapted to different 12 types of conditions. 13 Q. Why were you referencing it in your memo if 14 it wasn't viable; phosphorus uptake plan? 15 A. To the best of my recollection, the purpose 16 of this memo was to document the input we received 17 from participants who were at the meeting, and one of 18 the participants provided that input to us. 19 Q. Okay, sir. Let me hand you now two 20 documents which we'll do as a composite document. 21 (The document was marked 22 Rhoads Depo Composite Exb. No. 13.) 23 BY MR. EARL: 24 Q. Mr. Rhoads, are those your initials up in 25 the right-hand corner below the date there? 521 1 A. Yes, that is correct. 2 Q. You have seen this letter before? 3 A. Yes, I have. 4 Q. And have you seen the attached letter, 5 which is a letter to Richard Stewart, from Stephen 6 D. Parker of the National Research Council? 7 A. Let me read this. 8 Yes, I believe I have seen that letter 9 before. 10 Q. Okay, sir. Now, is this part of the 11 controversy that was involved during the development 12 of the Everglades SWIM Plan? Do I understand 13 correctly the District proposed that the National 14 Academy of Science become involved in the Everglades 15 analysis? 16 MS. BIRCH: Object to the form of the 17 question. 18 MS. PONZOLI: Object to the form. 19 BY MR. EARL: 20 Q. Tell me what you know about this, 21 Mr. Rhoads; this controversy. 22 MS. PONZOLI: Object to the form. 23 MS. BIRCH: Object to the form and 24 relevancy. 25 THE WITNESS: My general recollection of 522 1 this issue was that the District Governing Board 2 suggested that the National Research Council, 3 National Academy of Sciences, might become 4 involved in the scientific and technical 5 questions about the Everglades, and a letter was 6 sent from our Executive Director to the director 7 of the National Research Council and this is the 8 response. 9 BY MR. EARL: 10 Q. And what was your understanding of why the 11 National Research Council couldn't become involved? 12 A. I did not clearly understand why that was 13 the case. 14 Q. You didn't understand that the Department 15 of Justice would not let them? 16 MS. PONZOLI: Object to form. There is 17 nothing in this record that shows that, 18 Mr. Earl. In fact, there are no facts that 19 support that. 20 MR. EARL: That is why we are doing 21 discovery, Counsel. 22 MS. PONZOLI: Your client's not too keen on 23 revealing things in discovery, Counselor. 24 MS. BIRCH: Object to the form of the 25 question. 523 1 THE WITNESS: Please repeat the question 2 for me. 3 (Thereupon, a portion of the record 4 was read by the reporter.) 5 THE WITNESS: I did not know that as a 6 fact. 7 BY MR. EARL: 8 Q. You didn't hear Mr. Wodraska explain the 9 reasons at a Governing Board meeting? 10 A. I don't remember Woody having done that. I 11 remember having heard that, but I don't remember what 12 the source of it was. 13 Q. What did you hear? 14 A. Having heard that the Department of Justice 15 had precluded the National Research Council 16 involvement. 17 Q. Who did you hear that from? 18 A. I don't know. 19 Q. Would you as -- let's see. This is 1990. 20 Were you responsible for the SWIM plan at that time? 21 August, summer of 1990? 22 A. Summer of 1990, no. Mr. Harvey and Mr. 23 Federico in the Planning Department were responsible 24 at that point in time. 25 Q. What were you doing at this point in time? 524 1 A. I was director of the Research and 2 Evaluation Department. 3 Q. Okay. As director of Research and an 4 Everglades scientist for some time, would you have 5 welcomed the participation of the National Research 6 Council? 7 MS. BIRCH: I'll object to the relevancy; 8 whether he would have welcomed it. 9 THE WITNESS: I think, from my prospective, 10 at that point in time, from what I remember of 11 it, it was a mixed issue. There was scientific 12 dispute over things, rather contentious. There 13 was also a conflict of policy direction, value 14 conflicts going on, there were all sorts of 15 problems inherent in the Everglades controversy 16 at that point in time. It was a very complex, 17 difficult situation. Not that it isn't still 18 today, but at that point it very much was so. I 19 have mixed feelings on that issue. 20 BY MR. EARL: 21 Q. Whose idea was it at the District to seek 22 assistance of the National Academy of Science? 23 MS. BIRCH: I think Mr. Rhoads previously 24 answered that, Mr. Earl. He told you that that 25 was the Governing Board, from his understanding. 525 1 THE WITNESS: My understanding was that it 2 was the board. 3 MR. EARL: Okay. Fine. Number 14. 4 (The document was marked 5 Rhoads Depo Exb. No. 14.) 6 BY MR. EARL: 7 Q. Who is Thomas MacVicar, sir? 8 A. He's deputy Executive Director of the Water 9 Management District. 10 Q. And is this your writing in the upper 11 right-hand corner? 12 A. That is correct. 13 Q. So you have seen this document? 14 A. Yes, I have. 15 Q. Looks like 12/28/90; is that correct? 16 A. That is correct. 17 Q. Okay. And who were you sending copies to; 18 Marban and Fontaine? 19 A. Dr. George Marban and Dr. Tom Fontaine. 20 Q. Okay. Do you recall this document? 21 A. Vaguely, yes. 22 Q. It is your understanding this is a document 23 Mr. MacVicar generated after he and Mr. Wodraska met 24 with representatives of the Justice Department? 25 A. That appears to be the case, yes. 526 1 Q. What is Mr. MacVicar discipline? Is he a 2 scientist? 3 A. Yes. He is a hydrologist. He is a 4 registered professional engineer. 5 Q. And do you have confidence in his 6 experience and judgment as a hydrologist? 7 A. Yes, I do. 8 MS. BIRCH: Objection to the relevancy. 9 BY MR. EARL: 10 Q. I direct your attention to the second page 11 in the memo, sir. Under the heading Feasibility, the 12 second sentence there, Mr. MacVicar says, "The 13 phosphorus value is very sensitive to hydrologic 14 changes in project operations." Is that true? 15 A. I'm not sure what phosphorus value he was 16 referring to. 17 Q. Okay. Let's go back then, if we need to do 18 that. Isn't he talking about the eight parts per 19 billion then proposed? See the heading on the prior 20 paragraph? 21 A. Yes. 22 Q. Assume that he is referring to the eight 23 parts per billion total phosphorus standard for ENP. 24 MS. PONZOLI: I object to a line of 25 questioning based on assumptions on what someone 527 1 else wrote who is readily available to be 2 deposed himself. 3 MS. BIRCH: Join the objection. 4 BY MR. EARL: 5 Q. Understanding that, Mr. Rhoads, let's go 6 back to the second sentence, the phosphorus value, 7 and assume that S-8 parts per billion is very 8 sensitive to hydrologic changes in project 9 operations. Is that true, in your understanding? 10 A. I have not looked at those data and those 11 relationships. I assume Mr. MacVicar was correct 12 here, but I can't say that for a fact because I'm not 13 familiar with the data myself. 14 Q. Do you normally, in your job, rely on 15 Mr. MacVicar's professional judgment? 16 A. Often. 17 MS. PONZOLI: Object to the form. 18 MS. BIRCH: Object to the form of the 19 question. 20 BY MR. EARL: 21 Q. He then goes on to say in the next 22 sentence, "In general, drought years tend to show 23 higher concentrations than flood years, but there is 24 considerable variability in the data." Is that an 25 accurate statement; in drought years you have higher 528 1 concentrations than in flood years? 2 A. That seems consistent in theory. 3 Q. Okay. The next sentence, he says, "The 4 highest concentrations are associated with special 5 project operations done in connection with 6 experimental water deliveries to the Park." Do you 7 agree with that? 8 MS. PONZOLI: Object to form. 9 THE WITNESS: Yes, I believe that is 10 essentially correct. Yes. 11 (The document was marked 12 Rhoads Depo Exb. No. 15.) 13 BY MR. EARL: 14 Q. Have you seen this before, Mr. Rhoads? 15 A. I believe so, yes. 16 Q. It is a one-page memorandum from Susan 17 Newman to the distribution list. You were on the 18 distribution list; is that correct? 19 A. That is correct. 20 Q. And it attaches a report entitled 21 Integrated Research and Monitoring Within the 22 Everglades Nutrient Removal Project, which consists 23 of -- 24 MS. PONZOLI: Can you give me inclusive 25 dates and numbers, Counselor? That way we can 529 1 be sure we have everything. 2 MR. EARL: Well -- 3 MS. PONZOLI: I think it is sequential. 4 MR. EARL: 0901848 through -- the last page 5 I have is 0901857. 6 MS. PONZOLI: Right. Thank you. 7 BY MR. EARL: 8 Q. Is this your writing at the top of the 9 letter again, Mr. Rhoads? 10 A. No, it is not. 11 Q. Okay. Is that from Jerry Jackson? Is that 12 his writing, do you recall? 13 A. No. I believe it is to J. B. Jackson, and 14 I'm not sure whose signature that is at the bottom. 15 Whose initials. 16 Q. Bernie Schatner, perhaps? 17 MS. BIRCH: Object to the form. 18 THE WITNESS: Perhaps, yes. 19 BY MR. EARL: 20 Q. The same is true if we go to the third page 21 of the composite document; the marginal notes are not 22 yours? 23 A. No, they are not, no. 24 Q. Dr. Newman says the Everglades Nutrient 25 Removal Project -- 530 1 MS. BIRCH: Where are you reading from? 2 MR. EARL: First page of the memo. First 3 paragraph. 4 MS. BIRCH: Thank you. 5 BY MR. EARL: 6 Q. Dr. Newman says, "The Everglades Nutrient 7 Removal Project is unique with far reaching 8 application throughout the thousands of hectares of 9 land which will be managed as a Stormwater Treatment 10 Area in the future." Do you agree with that? 11 A. I am in general agreement with that 12 statement, yes. 13 Q. Why is the ENP -- she calls it the ENRP -- 14 why is the Everglades Nutrient Removal Project 15 unique? 16 A. Because a wetlands treatment project of 17 this size has not been tried on this soil type in 18 this climate regimen previously. 19 Q. Okay, sir. And in the second paragraph, 20 third sentence, one, two, three, four lines down, 21 sir, she says, "Recent discussions concerning the 22 uncertainties of nutrient retention by the STAs as 23 part of the lawsuit settlement have highlighted a 24 more comprehensive role for the ENRP." Do you agree 25 with that? 531 1 MS. PONZOLI: Object to form. 2 MS. BIRCH: Objection; calls for a lot of 3 conclusions and speculations. 4 THE WITNESS: I don't know what she was 5 referring to there, Counselor. 6 BY MR. EARL: 7 Q. Did you ever participate in any discussions 8 regarding the uncertainties of nutrient retention by 9 the STAs? 10 A. I suspect I did, but I cannot remember a 11 specific instance when that occurred. 12 Q. Did the settlement of the lawsuit play a 13 more comprehensive role for the Nutrient Removal 14 Project? 15 MS. PONZOLI: Same objection as before. 16 MS. BIRCH: Objection. 17 THE WITNESS: I don't believe I agree with 18 that statement. 19 BY MR. EARL: 20 Q. Why not? 21 A. Because the original SWIM plan called for 22 Water Management Areas on the order of 40,000 acres, 23 and the settlement agreement, as I understood it, 24 called for about 35,000 acres, so I don't think it is 25 correct, on the basis of that comparison, to use the 532 1 term "a more comprehensive role". I don't know what 2 she meant by that particular statement. I don't 3 think that is appropriate, based upon my 4 understanding. 5 Q. Okay. Is it true -- she says in the next 6 sentence, "The project must provide far more than 7 nutrient reduction data, it must explain why 8 nutrients are held in place and how this retention 9 may be optimized through management." 10 MS. BIRCH: Object to the form. The 11 document speaks for itself. 12 MR. EARL: I'm asking if he concurs. 13 THE WITNESS: I think her perception is 14 correct; that what was needed, and is needed, 15 out of the ENR project is not only effectiveness 16 data, but an understanding of the mechanisms 17 involved. Her statement of why nutrients are 18 held in place and how to optimize it, I believe 19 that those are legitimate objectives for the ENR 20 project. 21 MR. EARL: Okay, sir. 22 (The document was marked 23 Rhoads Depo Exb. No. 16.) 24 BY MR. EARL: 25 Q. I hand you now 16, sir. 533 1 A. Yes. 2 Q. Have you seen this before? 3 A. Yes, I have. 4 Q. And what is it? 5 A. This is a cover memo that I signed 6 addressed to the STA Design Review Working Group, 7 dated November 7, 1991, the subject of which is a 8 summary of the STA Design Review Meeting. Attached 9 to the cover memo is a three-page working draft 10 entitled Summary of Issues and Action Items, STA 11 Design Review Meeting, October 31, 1991. The date of 12 that is November 8, 1991. 13 Q. Do you have expertise in settling rates or 14 uptake rates? 15 A. No. No, I don't. 16 Q. Who is the expert at the District on that? 17 A. Tom Fontaine. 18 Q. Directing your attention to page 3 of your 19 memo, paragraph 14, you say, "A working group was 20 designated to provide guidance to the District in 21 preparing responses to the state and federal comments 22 on the interim permit application." Now, are you 23 talking there about the District permit application 24 to DER? 25 A. I believe that is what the author was 534 1 referring to. 2 Q. Okay. And I note the list of people 3 includes Mr. Bart Bibler of DER; is that correct? 4 A. Yes, I see Mr. Bibler's name, yes. 5 Q. Do you find it at all strange that the 6 agency representative from the permitting agencies is 7 included on the working group to provide guidance to 8 the District in preparing responses to the state 9 comments on the District's own permit application? 10 MS. BIRCH: Objection to the form and to 11 the relevancy of what is strange or not, and the 12 relevancy of a challenge to the SWIM plan. 13 There has been no challenge to the permit 14 application. That is not what we are here on 15 this deposition discussing. 16 MR. EARL: Okay, Counsel, with that 17 objection, I will cease all questions on the DER 18 permit and we will redepose Mr. Rhoads when and 19 if there is a DER permit challenge. 20 MS. PONZOLI: If you do your questions now, 21 Mr. Earl, are you willing to forgo that 22 deposition. 23 MR. EARL: No, I'm not. 24 MS. PONZOLI: Well -- 25 MR. EARL: Well, you can't have your cake 535 1 and eat it, too. The District can't complain 2 about my asking questions about it, and you play 3 the other side of the tag team. That is not 4 going to work. 5 MS. PONZOLI: I think if you're willing to 6 do your questions now, Mr. Earl, the District 7 might be willing to reconsider and let you do 8 all your questions now. What I am asking you is 9 are you going to do your questions now and then 10 not do the other depo? 11 MS. BIRCH: Mr. Earl, you can ask all the 12 questions you want, but that does not mean that 13 I am not going to object to questions related to 14 anything that I see as outside of the Everglades 15 SWIM plan challenge. I mean, I have no 16 objection to you asking Mr. Rhoads those 17 questions, and I'm going to preserve a District 18 objections for the record at this time. 19 MR. EARL: Okay. No, I won't, because I 20 don't have the Notice of Intent. I don't know 21 what the permit's going to involve, so I'll just 22 await these questions on that specific permit 23 until we get that information. 24 MS. PONZOLI: Well, I think the United 25 States realizes there is a little tone of 536 1 punishment and harassment going on in this 2 deposition under any circumstances, but you 3 exercise your rights as you see best, Mr. Earl. 4 MR. EARL: All I am doing is responding to 5 objections, Counsel; trying to reduce the scope 6 of the deposition. 7 MS. PONZOLI: Oh, no. We are willing to 8 sit here through your questions. We have made 9 that quite clear. You are not willing to go 10 forward with your questions on the permit. 11 MR. EARL: That is not true. I don't 12 have -- we are going to have to do it again 13 anyway, apparently, under the framework that's 14 been set up for this permitting process, so we 15 might as well -- to save time here, we might as 16 well go ahead and do that. I think it is a good 17 idea. 18 MS. BIRCH: Mr. Earl, that's your 19 prerogative. But if you feel that it is 20 necessary to ask Mr. Rhoads questions about the 21 permit, I am willing to allow you to ask your 22 questions, and I will make my objections based 23 upon the relevancy to the SWIM plan. If they 24 are related to permit and you think that it is 25 helpful to get that information now, you can get 537 1 it, and I will narrow the objections solely to 2 the issue of the SWIM plan. So I think you can 3 accomplish both. You can ask your questions 4 about the permit, and as to the permit, if it is 5 related to that, the issues are brought back, or 6 when the permit, if the permit is challenged, 7 then at that time we can withdraw our objections 8 to those questions related to the permit 9 section. 10 MR. EARL: Okay. I'll agree with that. As 11 I understand what you have proposed, Counsel, it 12 is that -- I don't know that I understand, 13 frankly. 14 MS. PONZOLI: I think the choice has been 15 given to you, Mr. Earl, to go forward now or to 16 go forward later. It is being made perfectly 17 clear to you if you want to go forward now, 18 you're free to, but the District is stating its 19 objections. It will not be impeded in voicing 20 appropriate objections. 21 MR. EARL: Well, I am willing go to wait 22 until we have the other materials regarding the 23 DER permit. Mr. Rhoads has said that will be 24 coming out in the near future. I think he said 25 October 23rd, or something, in October. 538 1 BY MR. EARL: 2 Q. The Notice of Intention on the DER permit, 3 you said -- 4 A. Scheduled for October 20th. 5 Q. Okay. 6 MS. BIRCH: I think Mr. Rhoads' testimony 7 was, to the best of his knowledge, that that is 8 the latest, depending on the time schedule, when 9 DER would actually issue its Notice of Intent. 10 I believe that was his testimony. 11 MR. EARL: Okay. Well, we'll defer those 12 questions until we have that. 13 MS. BIRCH: It is up to you, Mr. Earl. It 14 seems to me a waste of time and effort. 15 MR. EARL: I agree with you, Counsel, so I 16 am going to defer until we get the DER permit 17 proceeding. 18 MS. BIRCH: Are you telling us that you are 19 going to challenge the permit and that you need 20 to call Mr. Rhoads back to ask questions about 21 the permit? 22 MR. EARL: I haven't seen the permit. I 23 have no idea what my clients would want to do. 24 But if there is a permit challenge, I would be 25 certain that he has information about that, and 539 1 I would want to ask him about it. 2 MS. BIRCH: Well, I don't see -- I mean, I 3 have no objection to you asking Mr. Rhoads 4 questions about the permit now that you think 5 are relevant to the permit, but I'm going to 6 tell you that I will object as to the SWIM plan 7 as to the relevancy of that because that is not 8 at issue at this time. But I will again extend 9 the District's amenability to withdraw our 10 objections to any of the issues related to the 11 permit if your client challenges the permit. 12 MS. PONZOLI: And the two are consolidated. 13 MS. BIRCH: And the two are consolidated. 14 It seems to me that would be saving your clients 15 and our clients and Mr. Rhoads precious time. 16 MR. EARL: By doing it now, you mean? 17 You're suggesting -- 18 MS. PONZOLI: Yes. 19 MR. EARL: Okay. Well, I don't have the 20 permit and I don't have the information, but 21 I'll ask those questions. But there will be 22 obviously more questions, I presume, if we see 23 the permit and decide to challenge it. 24 BY MR. EARL: 25 Q. Mr. Rhoads, do you find it unusual that 540 1 Mr. Bibler of DER was put on the committee to respond 2 to DER's request? 3 MS. BIRCH: Same objection, with the 4 foregoing stipulation. 5 THE WITNESS: No, I don't. From my 6 prospective, if you can get the regulatory 7 agency to participate with you in the 8 formulation of the identification of the 9 problems, the formulation of solutions that 10 might be acceptable to that, you're a step ahead 11 in attempting to develop a complete permit 12 application and get a successful permit from 13 that agency. So from my prospective, getting 14 that sort of input on the front end is a fairly 15 effective way to do things, if you can do it. 16 BY MR. EARL: 17 Q. How about input from the regulated 18 community that is going to be impacted by the 19 permits, did you put any of them on the committee? 20 A. This was early in the STA review committee 21 process. I believe, in the subsequent meetings in 22 the process, yes, members of the regulated community 23 did participate in this process. 24 Q. Now we are talking about responding to 25 comments on the DER permits application, as I read 541 1 your memo, in paragraph 14. 2 MS. BIRCH: I believe Mr. Rhoads testified 3 that this later portion, the attachment was not 4 something that he drafted. 5 BY MR. EARL: 6 Q. I didn't hear that. Is that true? 7 A. Yes, sir. That is true. 8 Q. Oh, I missed that. 9 A. No. 10 Q. You didn't draft -- 11 A. No. I did not, no. 12 Q. Okay. Who drafted that? Do you know? 13 A. No, I don't. It was drafted by the 14 Construction Management Department. I don't know who 15 the individual was that drafted it. 16 Q. Did you read it before you sent out the 17 memo? 18 A. Yes, I did read it. 19 Q. So you were aware of the composition of 20 this committee? 21 A. Yes, in general. 22 Q. And was that discussed with you prior to 23 the appointment of the committee? 24 A. No, it was not. 25 Q. Okay. 542 1 MS. BIRCH: Madam court reporter, would you 2 mark this portion of testimony for me when we 3 first started with the questions about the 4 permit. Thank you. 5 BY MR. EARL: 6 Q. When, and who, from the regulated community 7 was put on the committee to deal with the DER permit? 8 A. No, it was not to deal with the DER permit. 9 My comment was that STA design review working group 10 had participation by members of the regulated 11 community. 12 Q. Okay. Well, who was on that -- let me ask 13 it -- were any members of the regulated community, 14 agricultural, ever put on the committee referenced in 15 paragraph 14 to deal with that permit? 16 A. The permit committee, no, I don't believe 17 so, no. 18 Q. Is that still functioning; that committee? 19 A. No, not to my knowledge. 20 Q. Did that committee play any role whatsoever 21 in shaping of the permit application? 22 A. I don't know. 23 Q. Who would know that? 24 A. Dr. Goforth, in all likelihood. 25 Q. Okay. I hand you now what we will mark as 543 1 Exhibit Number 17. 2 (The document was marked 3 Rhoads Depo Exb. No. 17.) 4 BY MR. EARL: 5 Q. Have you seen this before, sir? 6 A. Yes, I believe I have. 7 Q. Okay. And it is from Ron Mierau, Director, 8 Operations Division. That is the individual you 9 indicated to me Monday was Mr. Slyfield's successor; 10 is that correct? 11 A. That is correct. 12 Q. And his charge is the operation of the 13 project by the District; is that correct? 14 A. Yes. 15 Q. I direct your attention to the last 16 paragraph on the first page. He says, "Comment 26 17 part A and comment 19 part B requests a clarification 18 of the concepts that regulatory releases to the 19 agricultural canals cannot compromise water control 20 in the basins the canals pass through," dash, "The 21 participation of the Federal Government and the 22 funding and construction of the subject facilities." 23 What facilities is he referencing there? 24 A. I am quite certain he's referring to the, 25 essentially, the Miami Canal, North River Canal, 544 1 Hillsboro Canal; those that pass through the 2 Everglades Agricultural Area. 3 Q. Is that also referring to the facilities 4 which are the subject of the interim permit 5 application? 6 MS. BIRCH: Objection; calls for 7 speculation. 8 BY MR. EARL: 9 Q. Pump stations 5A, 6, 7, 8? 10 A. Yes, they are part of that. 11 Q. Okay, sir. He states, "The participation 12 of the Federal Government in the funding and 13 construction of the subject facilities placed certain 14 restrictions on how these facilities can be used for 15 the life of the project." Is that also your 16 understanding? 17 A. That is my understanding, yes. 18 Q. He goes on to say, "Among these obligations 19 is a requirement to operate and maintain the 20 facilities in a manner that will preserve the basis 21 of the economic justification for the project. 22 Specifically, in the Everglades Agricultural Area, 23 this requires that a discharge capacity of 0.75 inch 24 per day must be maintained for flood control and 0.16 25 inch per day for water supply." Do you also concur 545 1 in that? 2 MS. PONZOLI: Object to form. 3 THE WITNESS: I believe it is generally 4 correct, but we are getting into an area where 5 the legal interpretation of Federal obligations 6 and responsibility and the C&SF project, get 7 somewhat achaean in my opinion. I believe it is 8 generally correct, though. 9 BY MR. EARL: 10 Q. And didn't Ms. Quincey, in fact, research 11 that as part of the SWIM development process? 12 MS. BIRCH: Objection; calls for 13 speculation and conclusions, facts not in 14 testimony. 15 THE WITNESS: She may have. I don't know. 16 BY MR. EARL: 17 Q. And you don't recall the outcome of that 18 analysis or any such analysis during the development 19 of the SWIM plan? 20 A. No, not right offhand I do not. 21 Q. Okay. Do you have any reason to disagree 22 with the conclusions of Mr. Mierau here? 23 MS. PONZOLI: Object to form. Are you 24 talking about the entire letter? 25 MR. EARL: I am talking about the sentence 546 1 we are talking about, specifically Everglades 2 Agricultural Area. This requires a discharge 3 capacity. 4 MS. PONZOLI: I'm objecting to the capacity 5 of this witness to express an opinion on that. 6 MS. BIRCH: I join that objection. 7 THE WITNESS: Well, this may be generally 8 correct. I'm not sure if this is an appropriate 9 statement of the Federal obligation or the 10 District obligations under our relationship. 11 BY MR. EARL: 12 Q. Having said that, do you believe it is 13 wrong? 14 A. The three-quarter inch per day is a figure 15 that I have heard many times over the years. 16 Q. So you believe that to be accurate? 17 A. I believe that to be reasonably correct. 18 Q. Okay. 19 A. The .16 inch per day figure, I'm not 20 familiar with that one. 21 Q. For water supply? 22 A. For water supply. I don't remember ever 23 having heard that figure. 24 Q. Now, he goes on to say, "Since this is the 25 design capacity of the project facilities, no 547 1 additional demands can be made on the system on a 2 guaranteed basis." He further states, "While this 3 requirement prevents allocating a portion of this 4 capacity towards other benefits, such as water 5 quality and environmental needs, in practice the 6 system has historically been operated in a manner 7 that provides other nonassigned benefits, such as 8 water quality and environmental enhancement 9 objectives when in the judgment of the Director of 10 Operations, these operations do not compromise 11 primary project requirements." Do you concur with 12 that? 13 MS. PONZOLI: Object to form. These are 14 the opinions of Ron Mierau, Director of the 15 Operations Division, not Mr. Rhoads. 16 MS. BIRCH: Object to the form on the 17 opinions and conclusions that it would require 18 Mr. Rhoads to reach. 19 THE WITNESS: My general understanding and 20 experience has been that yes, the Director of 21 Operations does have flexibility to operate 22 within the criteria of the Corps of Engineers 23 established for the system. 24 BY MR. EARL: 25 Q. And conversely, he does not have the 548 1 discretion to operate outside that criteria; correct? 2 A. Not necessarily. With the concurrence of 3 the Corps of Engineers, that is possible. 4 Q. When has that happened, in your most recent 5 memory? 6 A. The decision to initiate early discharges 7 out of Lake Okeechobee for environmental purposes was 8 a joint decision; was a recommendation from the 9 District and a decision by the Corps of Engineers 10 that could be characterized as beyond the normal 11 operating criteria for the structures. 12 Q. When was that? 13 A. It's been done a number of times. 14 Q. Are there other examples of that? 15 A. That is the only one that comes to mind at 16 the moment. 17 Q. Okay. He goes on to say, "Typical 18 examples" -- he is talking about his latitude. The 19 first thing he references is "Typical examples in the 20 EAA are the Interim Action Plan for discharges to 21 Lake Okeechobee and operation of the Holey Land 22 Environmental Restoration Project. This is possible 23 because full flood control capability is not required 24 100 percent of the time." Is that an accurate -- 25 MS. PONZOLI: Objection. 549 1 MS. BIRCH: Same objection, Mr. Earl. What 2 is typical -- you know, this is something that 3 Mr. Mierau authored. 4 THE WITNESS: Would you repeat the 5 question, please. 6 BY MR. EARL: 7 Q. Let me rephrase it. Are the Interim Action 8 Plan and the Holey Land Environmental Restoration 9 Project examples of where the Director of Operations 10 has exercised his latitude to provide nonassigned 11 benefits, such as water quality and environmental 12 enhancement objectives? 13 MS. PONZOLI: Object to form. 14 MS. BIRCH: Objection. If Mr. Rhoads has 15 that knowledge, he can answer that question, but 16 he is not held to the standard of knowledge an 17 operations director would be. He's never 18 testified that -- he said he has general 19 knowledge of the District's operations and 20 maintenance programs and what the director does, 21 but not specific knowledge as to what each and 22 every operational decision is that is being 23 made. But if he can answer that based upon his 24 own knowledge, he should do so. 25 THE WITNESS: Based upon my general 550 1 understanding of how the project operates, I 2 believe that that first example that Mr. Mierau 3 cited is a good example. 4 BY MR. EARL: 5 Q. The IAP? 6 A. The IAP, in that the requirements of the 7 system are preserved, but there is flexibility within 8 those requirements. I don't know what he was 9 referring to with regard to the second example. 10 Q. Holey Land? 11 A. I don't know what he was referring to 12 there. 13 Q. Holey Land Environmental Restoration 14 Project, do you know what that is? 15 A. I am familiar with that project, yes. 16 Q. And has water been diverted to that 17 project? 18 A. Yes, it has. 19 Q. Are those project waters that are being 20 diverted? 21 A. I don't know what you mean by the term 22 "project waters". 23 MS. PONZOLI: I thought it was all ag water 24 (sic). 551 1 BY MR. EARL: 2 Q. Is the Holey Land project a part of the 3 Federal project? 4 A. Portions of it are. The western boundary 5 of the Holey Land project is the levee -- is the L-23 6 levee. 7 Q. Is a diversion of water to the Holey Land -- 8 call it coming out of the Holey Land and the pump 9 that is now there -- is that part of the Federal 10 project? 11 A. No, it is not. 12 Q. Might Mr. Mierau have been referencing that -- 13 MS. BIRCH: Calls for speculation. 14 BY MR. EARL: 15 Q. -- non-Federal project? 16 A. Perhaps. 17 Q. If that is the case, if he was referring to 18 those activities which are not part of the Federal 19 project, would his characterization be appropriate? 20 MS. PONZOLI: Object to form. 21 MS. BIRCH: Mr. Earl, objection. That 22 calls for making assumptions in the question, 23 and it requires Mr. Rhoads to draw a number of 24 conclusions. 25 MR. EARL: Well, to make it simple, 552 1 Counsel, he told me that the Interim Action Plan 2 was a good example, but he didn't know what 3 Mierau was referring to when he talked about the 4 Holey Land Environmental Restoration Project. 5 We then discussed that, and thought perhaps that 6 that might be the non-Federal component of the 7 Holey Land project, and putting water in there 8 and taking it out through culverts and restoring 9 water levels, and I asked him to assume that 10 that is the Holey Land Environmental Restoration 11 Project, and is that also equally categorized in 12 here appropriately, as he said the IAP was? 13 MS. PONZOLI: Object to the form. 14 MS. BIRCH: Same objection. 15 THE WITNESS: Based upon my general 16 understanding of the system, I don't think that 17 is a good example for what Mr. Mierau was doing. 18 BY MR. EARL: 19 Q. Why is that, sir? 20 A. The diversion of water to the Holey Land is 21 not, in any way, inconsistent with the purposes of 22 the C&SF project. If anything, that would be 23 supportive of the purposes. 24 Q. Was that designed, authorized, constructed 25 by the Corps of Engineers? 553 1 A. No, it was not. No, it was not. 2 Q. Was that approved by the Corps of 3 Engineers; those activities? 4 A. I don't know. 5 Q. Who would know that? 6 A. Construction Management Department, I 7 believe. 8 Q. Mr. Schattner? 9 A. Mr. Schattner. Someone in his department. 10 (Thereupon, a recess was taken.) 11 MR. EARL: Back on the record, please. 12 (The document was marked 13 Rhoads Depo Exb. No. 18.) 14 BY MR. EARL: 15 Q. I hand you, sir, what purports to be a 16 memorandum from Irene Quincey to yourself. Have you 17 seen this? 18 A. I don't remember having seen this. 19 Q. Okay. She designates issues with an 20 asterisk, Legal Issues Which Were Discussed, and she 21 includes, asterisk, Flood Protection, reduction of 22 legal obligation to continue with present regulations 23 or modify them before anything is done, and amend 24 Corps regulations, engineer, or Congress 25 authorization, question mark. Does that refresh you 554 1 at all in terms of having ever discussed this issue? 2 A. No, it doesn't. 3 Q. Any other recollection of this issue being 4 raised? 5 MS. BIRCH: Object to form. That is quite 6 broad, Mr. Earl. 7 THE WITNESS: The issue of flood protection 8 in the Everglades Agricultural Area has been 9 discussed many times, many times at the 10 District. 11 BY MR. EARL: 12 Q. In the context of the SWIM plan, I am 13 talking about, sir, and Everglades restoration. 14 A. It may have been discussed. The sense I 15 remember is a clear protection, on the part of the 16 District, of the flood protection capabilities, the 17 EAA; that the SWIM plan has rather diligently 18 protected that capacity and that function. 19 MR. EARL: Mark that, please. 20 (The document was marked 21 Rhoads Depo Exb. No. 19.) 22 BY MR. EARL: 23 Q. Have you seen this before? 24 A. Yes. 25 Q. Did you prepare this? 555 1 A. I believe I did, yes. 2 Q. For what purpose was this prepared? 3 A. I do not remember. 4 Q. It purports to be -- in the first page, 5 says, "Key points to be made should a rebuttal to the 6 FSCL presentation be necessary or appropriate." Does 7 this look like something you normally prepare for the 8 Governing Board or the Executive Director? 9 A. It is not atypical. 10 Q. Can I direct your attention to bates 11 stamped page 0072699? I know they are hard to read. 12 That has two headings. The bottom one says, Response 13 to Potential Opposing Position. Are you with me? 14 A. Yes. 15 Q. And above that it says Potential Opposing 16 Position? 17 A. Yes. 18 Q. States there is not to be -- it states, 19 "There does not appear to be any rational argument or 20 supporting data for the position that WCA-2 marsh 21 does not remove phosphorus down to very low levels." 22 Double negative there, but are you saying there -- 23 what are you saying there? 24 A. I was saying there that all of the 25 available data indicated that Conservation Area 2A 556 1 removed phosphorus down to very low levels. All of 2 the data we had available. And that, because of 3 that, I didn't see any rationale argument, and I was 4 not aware of any supporting data, that the marsh 5 would not do that. 6 Q. Okay. Is that still true? 7 A. To the best of my knowledge, yes. 8 Q. First page, the paragraph 1A there, it has 9 a bold, "Is there a problem with cattails in the 10 WCAs?" Do you see that, sir? 11 A. Yes. 12 Q. The last sentence in that paragraph states, 13 "Remember, for objective science, unlike law, policy 14 or politics, you must be able to share and defend 15 your methods and datas with your peers." Do you 16 still believe that to be true of objective science? 17 MS. PONZOLI: Object to form. 18 THE WITNESS: Yes, I believe that it 19 continues to be appropriate; that you need to be 20 able to share and defend your methods and your 21 data with your peers as a component of 22 conducting good objective science, yes. 23 BY MR. EARL: 24 Q. Why were the settlement phosphorus limits, 25 for example, developed in secrecy then? 557 1 MS. PONZOLI: Object to form. 2 MS. BIRCH: Object to the form. 3 THE WITNESS: I don't know. 4 MS. BIRCH: I didn't hear this witness 5 testify about settling rates, and the question 6 assumes facts not previously testified to. 7 MR. EARL: Okay. 8 (The document was marked 9 Rhoads Depo Exb. No. 20.) 10 BY MR. EARL: 11 Q. I hand you now what has been marked as 20, 12 a two-page handwritten document; notes. Do you 13 recognize that handwriting at all? 14 A. No, I don't. 15 Q. Do you recognize the distinctive doodling 16 in the upper right-hand corner? Anybody at the 17 District do that type? Looks like an engineer. 18 MS. BIRCH: Object to the form of the 19 question. 20 MR. EARL: She smiles as she says that. 21 THE WITNESS: No, I don't. Not to my 22 knowledge. 23 BY MR. EARL: 24 Q. Mr. Rhoads, will the alternatives that are 25 presently being analyzed by the consultants and 558 1 before SAGE, what is your understanding of the 2 District -- strike that. Let me start again. 3 The alternatives that are being evaluated 4 by the consultant and presently before SAGE, you are 5 familiar with those, are you not? 6 A. Yes, I am. 7 Q. Is it the intention of the District to 8 incorporate those alternatives, if selected, into the 9 SWIM plan? 10 MS. BIRCH: Objection; asked and answered. 11 We just discussed that Monday. 12 MR. EARL: We didn't get an answer. 13 MS. BIRCH: Asked and answered. That is my 14 objection. 15 THE WITNESS: I need to hear the wording on 16 the question again, please. 17 (Thereupon, a portion of the record 18 was read by the reporter.) 19 MS. BIRCH: Mr. Rhoads doesn't speak for 20 the District. 21 THE WITNESS: I believe it is reasonable to 22 assume that if the optimal plan incorporates 23 additional alternatives that differ from the 24 existing SWIM plan, that it is possible that the 25 District may amend or modify the existing SWIM 559 1 plan, yes. That is a possibility. 2 BY MR. EARL: 3 Q. Under the time line we talked about this 4 morning, when would that be done, as you understand 5 the process? 6 MS. BIRCH: Asked and answered. 7 THE WITNESS: At some point subsequent to 8 May, 1993. 9 BY MR. EARL: 10 Q. It would be done, as I understand, at some 11 point subsequent to this proceeding coming back from 12 the hearing officer; correct? 13 MS. BIRCH: Objection, asked and answered. 14 You know, we covered all of that on Monday, 15 Mr. Earl. 16 MR. EARL: No, we didn't get into the 17 specifics of it, which is why, in reviewing my 18 notes, I need to cover this. 19 THE WITNESS: Could you repeat the 20 question, please. 21 MR. EARL: Would you read back the last 22 question? 23 (Thereupon, a portion of the record 24 was read by the reporter.) 560 1 BY MR. EARL: 2 Q. I wanted to know what that was. Do you 3 understand what that is now? 4 A. I'm not sure. Can you help me? 5 MS. PONZOLI: Could you rephrase it, 6 Mr. Earl? 7 BY MR. EARL: 8 Q. Sure. That means the merger, which you 9 said was going to take place at some point subsequent 10 to May, 1993 -- 11 MS. PONZOLI: Merger of what? 12 BY MR. EARL: 13 Q. I used merger. Excuse me. That refers to 14 incorporation of the alternatives into the plan that 15 the District could possibly do. I asked you when 16 they would do it, and you said at some time 17 subsequent to May, 1993. And then I asked you, and 18 I'm asking you now, would that be before or after the 19 current SWIM plan comes back from the administrative 20 hearing officer? 21 MS. PONZOLI: Object to form. I don't 22 think it is clear when the order will come back. 23 MS. BIRCH: Objection. Mischaracterization 24 of the witness' testimony regarding the plan. 25 The witness said the optimal plan is scheduled 561 1 for completion in May of 1993. That would be 2 the logical point at which, if action is taken, 3 that a decision could be made that a modified or 4 amended SWIM plan would be put into place. I do 5 not know how that would relate to these 6 proceedings that we have ongoing. 7 BY MR. EARL: 8 Q. In your best judgment, the earliest you 9 would have the optimal plan ready for presentation to 10 the board would be May of 1993; is that correct? 11 A. That is correct. 12 Q. Brown & Caldwell, have they been retained 13 for purposes of litigation or for purposes of working 14 on the analysis and contracts you have described 15 earlier today? 16 MS. BIRCH: Objection to the form of the 17 question. 18 THE WITNESS: To the best of my knowledge, 19 they have been contracted to carry out the 20 planning, the engineering feasibility analysis 21 activity. 22 BY MR. EARL: 23 Q. For the District? 24 A. For the District. 25 Q. Is the same true for Burns & McDonnell and 562 1 the contracts they are working on? 2 A. That is my understanding. 3 MS. PONZOLI: I'm going to object, Counsel, 4 to the extent this involves legal conclusions 5 that could flow from his answers. 6 BY MR. EARL: 7 Q. Has the District identified, to your 8 knowledge, evaluated, identified and evaluated, the 9 water quality impacts, if any, created by Federal 10 project construction and operation; water quality 11 impacts? 12 A. Yes, to some degree. 13 Q. Okay. Let me start with what water quality 14 impacts. Have they identified and analyzed with 15 regard to the construction impacts of the Federal 16 project on water quality? 17 A. A substantial number of water quality 18 studies were carried out by the District between 1973 19 through today. Those studies have addressed a wide 20 variety of water quality conditions in the area of 21 interest. Virtually all waters in South Florida 22 involve the Central and Southern Florida project. 23 They are influenced in one way or another by the 24 project. Land uses, uses of the land and runoff from 25 the land, are the primary determinant of water 563 1 quality conditions within the system, and the C&SF 2 project basically serves to convey water from one 3 place to another. So the impacts that would be 4 characterized as being a result of the C&SF project 5 are, in my mind, broad in scope, encompassing the 6 land uses that have developed since construction of 7 the C&SF project, so you have a composite there 8 involving both the processes which generate water 9 quality constituents, the C&SF project, which carries 10 the water with those constituents through South 11 Florida. 12 Q. Are those identified in the adopted SWIM 13 plan; the water quality impacts of the project 14 construction? 15 A. Yes, I believe that virtually all of the 16 water quality discussion within the SWIM plan can be 17 more or less correctly characterized as being 18 associated with the Central and Southern Florida 19 flood control project. 20 Q. Okay. I understand that generally. 21 Specifically, taking out the agricultural lands and 22 the runoff. 23 A. There are portions of the SWIM plan that 24 discuss the urban land uses and the potential impact 25 they have on water quality. 564 1 Q. Okay, sir. Apart from the agricultural 2 land uses and the urban lands uses, does the SWIM 3 plan identify any other water quality impacts 4 resulting from the construction of the Central and 5 Southern project? 6 A. I'm not sure there are any water quality 7 impacts that are solely associated with the project. 8 In my mind, the origin of the water, its source, 9 where it falls, where it originates is a very basic 10 determination of the character of the water and 11 whether it creates a water quality problem. 12 Q. Well, I gather from your answer then you 13 are not aware of any other water quality impacts of 14 the Federal project construction identified in the 15 SWIM plan. 16 A. Within that context. 17 Q. How about does the SWIM plan identify any 18 water quality impacts resulting from the operation of 19 the project? Again, I understand your general answer 20 to be land uses, but apart from that. 21 A. To the extent I understand the question, 22 no. 23 Q. Okay. Mr. Rhoads, were you involved in the 24 District's decision not to seek a site specific 25 alternative criteria or mixing zone on the DER permit 565 1 application that was filed? 2 MS. PONZOLI: Object to form. It assumes 3 facts not in the record. 4 MS. BIRCH: Same objection. 5 THE WITNESS: No, I don't believe so. 6 BY MR. EARL: 7 Q. Do you remember a letter from Mr. Rackley 8 of the Sugar Cane League asking that those 9 constituents be included? 10 A. Yes, I remember seeing that letter. 11 Q. And did you participate in the drafting of 12 an answer to that letter? 13 A. No, I did not. 14 Q. Who did that? 15 A. I don't know. 16 Q. Who would you ask? 17 A. Dr. Goforth. 18 Q. Does the SWIM plan allocate and assign 19 remedies for the relative roles or percentage of EPA 20 vegetation or other ecological changes caused by 21 fire, hydroperiod disturbance, as opposed to 22 nutrients in surface waters? 23 MS. PONZOLI: Would you read the question 24 back again please. 566 1 (Thereupon, a portion of the record 2 was read by the reporter.) 3 MS. PONZOLI: Object to form. 4 MS. BIRCH: Object to the form of the 5 question and object to form; that a response 6 from Mr. Rhoads may require information that is 7 not within his knowledge. It appears to me 8 that, Mr. Earl, you're reading from your 9 petition that is filed in this case. 10 I ask Mr. Rhoads if he knows factually and 11 can answer a response to that question, you may 12 do so. 13 BY MR. EARL: 14 Q. I'm asking, Mr. Rhoads, your understanding 15 of the SWIM plan process and the SWIM plan as adopted 16 by the board. 17 MS. BIRCH: That was a different question 18 than you just phrased. 19 THE WITNESS: Counselor, I don't have a 20 clear understanding of the question that you're 21 asking. 22 BY MR. EARL: 23 Q. Does the SWIM plan, as adopted by the 24 Governing Board, identify and allocate and assign 25 remedies for the relative role of percentage of EPA 567 1 vegetation, let's start with vegetation, that is 2 caused by the Federal project, fire, hydroperiod 3 disturbances, mismanagement of water as opposed to 4 just nutrients in surface waters? 5 MS. BIRCH: Same objection. 6 THE WITNESS: To the extent I understand 7 the question, I don't believe it does. 8 BY MR. EARL: 9 Q. Is there anything you don't understand 10 about the question I could help you with? 11 A. I am still having problems with 12 understanding the question. 13 Q. Well, does it allocate to the various 14 causes and factors responsible for vegetative changes 15 a percentage of the vegetative change to these 16 factors? 17 MS. PONZOLI: Object to form. I have to 18 tell you, it is probably a brilliant question, 19 but it is very difficult for a normal human 20 being to answer. I think after hearing it four 21 or five times, I am beginning to understand what 22 it is about. 23 THE WITNESS: To the extent I understand 24 the question, my prior response was appropriate. 25 No, I don't believe it does. 568 1 BY MR. EARL: 2 Q. Is there anything I can tell you that will 3 help you understand the question more? 4 A. I think you have tried diligently. 5 Q. Okay. If counsel will allow me, let me see 6 if we can save some time. Would your answer be the 7 same as to other adverse ecological impacts? 8 MS. PONZOLI: Object to form. It is 9 getting worse. 10 MR. EARL: See; you try and streamline and 11 they complain, too. 12 MS. PONZOLI: You took an unintelligible 13 question, streamlined it, and made it more 14 incomprehensible. 15 MR. EARL: There is a glimmer in 16 Mr. Rhoads' eye. I know he understands me. 17 MS. BIRCH: Mr. Rhoads is a fact witness, 18 not an expert witness. 19 MR. EARL: Counsel, I'm asking him whether 20 the SWIM plan as adopted -- 21 MS. BIRCH: You probably have -- 22 MR. EARL: -- identifies and assigns 23 responsibility among those factors. 24 MS. PONZOLI: Your eyes are glimmering at 25 this point in this day. 569 1 MS. BIRCH: I say it is probably a glimmer 2 because he's trying to strain to understand what 3 the question is. 4 THE WITNESS: I am trying very diligently, 5 Counselor, to understand the question. 6 MR. EARL: Okay. Let's go back to square 7 one, since that is the way we want to do it. 8 MS. PONZOLI: We recognize a threat when we 9 hear one. 10 MR. EARL: It certainly isn't a threat, it 11 is just I am trying to save a little time, and 12 he's already answered as to one ecological 13 factor, which is vegetation. I'm asking about 14 the other. The very same question which he 15 answered. 16 MS. PONZOLI: He never understood the 17 question. I think the record is clear on that 18 point. But the record says whatever it says on 19 how well he understood it. 20 BY MR. EARL: 21 Q. Are you aware of anywhere in the SWIM plan 22 that the Governing Board adopted anywhere, 23 Mr. Rhoads, that allocates responsibility among the 24 Federal project fire, hydroperiod disturbances. 25 Mismanagement of water, or other factors, apart from 570 1 surface water nutrients? 2 MS. PONZOLI: Object to form. 3 BY MR. EARL: 4 Q. Ecological changes. 5 Let me ask you another way. 6 Is there a ranking among the task force 7 what is the most important factor, second most 8 important factor in vegetative changes? 9 A. No, I don't believe there is. 10 Q. Okay. Is there any allocation in Water 11 Conservation Area 2A, for example, the cattail, what 12 has been called the cattail monadical trip there, you 13 know where that is -- 14 A. Yes. 15 Q. Is there any allocation among that cattail, 16 those vegetative changes? Cattails; right? 17 A. Yeah. 18 Q. Is there any allocation of the cause of 19 that to anything other than surface water and 20 nutrients delivered from the EAA? 21 MS. BIRCH: Object to the form of the 22 question. 23 MS. PONZOLI: I'm going to object to the 24 form inasmuch as I'm not sure it is humanly 25 possible to do what Mr. Earl is asking has it 571 1 been? 2 MR. EARL: No. Is it in the SWIM plan is 3 the question. 4 MS. PONZOLI: Whether it is doable or not? 5 Is that the question? 6 MS. BIRCH: Seems to me the question. 7 BY MR. EARL: 8 Q. Has it been done, is it reflected in the 9 SWIM plan? 10 MS. BIRCH: It seems to me that the 11 question is calling for a conclusion based upon 12 actually the merits of the case and causation, 13 seems to me. Maybe I'm not understanding the 14 question myself, but I do object to the form of 15 the question. 16 BY MR. EARL: 17 Q. Can you answer the question, Mr. Rhoads? 18 A. I have lost the train on the question, sir. 19 Q. Okay. If we are before the hearing 20 officer, I'll ask you the question exactly like this; 21 okay? Does this SWIM plan allocate vegetative 22 changes in the Nutrient Enriched Area of Water 23 Conservation Area 2A among the various factors 24 identified in the SWIM plan as causing changes to 25 vegetation? 572 1 MS. BIRCH: Same objection. 2 THE WITNESS: The SWIM plan discusses 3 various causes, contributing factors to that 4 condition. 5 BY MR. EARL: 6 Q. Uh-huh. 7 A. In the sense of allocating quantitatively, 8 distributing the cause to various factors, no, I 9 don't believe it does that. 10 Q. Okay. Exactly what I wanted. Thank you. 11 Are you aware of any studies or 12 determinations that phosphorus has caused adverse 13 impacts on birds, mammals, also reptiles, amphibians 14 or fish in the waters of the EPA? 15 MS. PONZOLI: Object to the form. 16 MS. BIRCH: Object to the question to the 17 extent it calls for expert opinion and 18 testimony. 19 THE WITNESS: My recollection of the SWIM 20 plan, the plan does talk about the impact on 21 various levels of the animal community, of the 22 effects of changes to the vegetation and to the 23 system that phosphorus is a contributing factor 24 to. 573 1 BY MR. EARL: 2 Q. Okay. Does the SWIM plan identify whether, 3 and to what extent, the accumulation of phosphorus in 4 the soils and sediments of the EPA result from the 5 design, construction and/or operation of the Federal 6 project? 7 MS. BIRCH: Object to the form. 8 MS. PONZOLI: May I hear the question 9 again, please. 10 (Thereupon, a portion of the record 11 was read by the reporter.) 12 MS. PONZOLI: Object to form. 13 MR. EARL: Grounds? 14 MS. PONZOLI: Are you reading from your 15 second amended petition, Mr. Earl? 16 MR. EARL: My notes are nobody's business 17 but my own. 18 MS. BIRCH: That is the first amended 19 petition. 20 MS. PONZOLI: Oh, he's reading from the 21 first amended petition? That is outrageous. In 22 any event, I object to your reading these rather 23 complicated legal concepts or factual concepts 24 or mixed legal and factual concepts and asking 25 Mr. Rhoads to respond to them. I think they are 574 1 wholly improper questions, I think they are done 2 for improper reasons, and I think the whole 3 purpose of this deposition is somewhat clouded, 4 at least in my view, as to what you are trying 5 to accomplish. It certainly isn't to ask facts 6 of a witness at this point. 7 BY MR. EARL: 8 Q. Do you want the question again, Mr. Rhoads? 9 A. Please. 10 (Thereupon, a portion of the record 11 was read by the reporter.) 12 BY MR. EARL: 13 Q. Does the SWIM plan identify -- 14 MS. PONZOLI: Same objection. 15 THE WITNESS: I don't know. 16 BY MR. EARL: 17 Q. Okay. Mr. Rhoads, does the SWIM plan 18 identify and evaluate and consider alternatives to 19 the STAs as mandated by the SWIM plan? 20 A. The SWIM plan -- 21 MS. PONZOLI: Object to form. 22 MR. EARL: Grounds? 23 MS. PONZOLI: I think you have improper 24 conclusion in there. 25 MR. EARL: Okay. 575 1 THE WITNESS: Please restate the question. 2 (Thereupon, a portion of the record 3 was read by the reporter.) 4 MS. BIRCH: I'm going to have a continuing 5 objection to this line of questioning where it 6 appears that Mr. Earl is reading verbatim but 7 asking in the affirmative a question from the 8 amended petition. The questions go directly to 9 the basis of the challenge and it goes well 10 beyond facts that Mr. Rhoads has given any 11 indication of where he has specific knowledge 12 beyond the Everglades SWIM Plan, which is 13 voluminous, to say the least. 14 MR. EARL: Read him back the question one 15 more time. 16 Have all the objections now? 17 (Thereupon, a portion of the record 18 was read by the reporter.) 19 THE WITNESS: Alternatives are considered 20 in the SWIM plan. The question of mandate, 21 considered in the SWIM plan and mandated by the 22 SWIM plan, does not -- I am having trouble with 23 that question. The later part of the question. 24 BY MR. EARL: 25 Q. Aren't the STAs required by the SWIM plan? 576 1 A. They are a recommendation of the SWIM plan. 2 Q. Oh, aren't they required? Isn't it 3 mandatory language? 4 MS. BIRCH: Object to the form. 5 THE WITNESS: They are a component of the 6 SWIM plan. 7 BY MR. EARL: 8 Q. Okay. And weren't those the same size SWIM 9 plans mandated by the settlement agreement? 10 MS. BIRCH: The settlement agreement did 11 not mandate -- strike that. 12 MS. PONZOLI: The settlement agreement is 13 not in dispute here, Mr. Earl; it is the SWIM 14 plan that is in dispute. 15 THE WITNESS: Could you tell me what the 16 outstanding question is? 17 MR. EARL: I'll rephrase it for you. 18 BY MR. EARL: 19 Q. You said you had some trouble with the 20 mandate by the SWIM plan. The SWIM plan doesn't 21 require, as you understand it, the construction of 22 STAs; is that correct? 23 MS. PONZOLI: Asked and answered. 24 BY MR. EARL: 25 Q. Let me ask you, does the SWIM plan require 577 1 the construction of STAs? 2 MS. PONZOLI: Asked and answered. 3 THE WITNESS: I would have to refer to the 4 SWIM plan. Based upon my recollection right 5 now, I don't remember exactly what the wording 6 was. The STAs are a component of the SWIM plan, 7 no question about it. 8 BY MR. EARL: 9 Q. Okay, sir. Do you have your copy there? 10 A. No, I don't. 11 Q. Let me hand you this is the copy, the March 12 13th planning document. 13 MS. PONZOLI: Is the pending question 14 whether they are mandated, Mr. Earl? 15 MS. BIRCH: That is the March 13th SWIM 16 plan planning document. 17 MS. PONZOLI: Mr. Earl, is the pending 18 question whether they are mandated? Do I have 19 to have it read back to figure out? 20 MR. EARL: Why don't we have that read 21 back? 22 MS. PONZOLI: Okay. 23 (Thereupon, a portion of the record 24 was read by the reporter.) 25 THE WITNESS: Okay. The term used in the 578 1 SWIM plan -- 2 BY MR. EARL: 3 Q. May I ask where you are, sir? 4 A. Yes, sir. I am on small Roman Numeral i; 5 ii. In the executive summary of the SWIM plan under 6 D, SWIM Plan Elements, it says, "Specific 7 recommendations of the Everglades SWIM Plan are 8 summarized in the following categories." That is 9 consistent with my understanding; that the plan 10 recommends that certain actions be taken. So I don't 11 believe that your use of the term "require" is 12 consistent with that. 13 Q. The SWIM plan doesn't specify the size and 14 acreage of the STAs, to your knowledge? 15 MS. PONZOLI: Object to form. The 16 question -- the line of questioning was whether 17 they were mandated or required. 18 MR. EARL: Okay. 19 MS. PONZOLI: The plan speaks for itself as 20 to acreage, et cetera. In fact, the plan speaks 21 for itself rather well on a number of points. 22 THE WITNESS: I view a plan as a road map 23 to future action. It outlines a course of 24 action, it outlines a series of steps that you 25 need to take at some time in the future, and the 579 1 SWIM plan, as it stands right now, calls for 2 certain actions. To say that those actions are 3 required to happen definitively at a point in 4 time I don't think is appropriate, no. I don't 5 think it is required or mandated that those 6 happen. I believe a plan is an outline of 7 future action to be taken. 8 BY MR. EARL: 9 Q. I direct your attention to pages 106 and 10 107 of the plan, sir. 11 A. Page 106. 12 Q. Are we on the same document? March 13th, 13 1992? 14 A. Planning document. 15 Q. Planning document? 16 A. Right. 17 Q. I don't see a table on your page. 107? 18 MS. PONZOLI: The Sugar Cane League got a 19 special version. 20 MR. EARL: You better believe they did. 21 THE WITNESS: I see a table on page 107. 22 BY MR. EARL: 23 Q. March 13th, 1992. This isn't my copy, this 24 is the District's. J. Walter Dineen. I am on page 25 107. Has the chart with basin, STA. Are we on the 580 1 same? Yeah. 2 A. No, the page numbering is the same, it is 3 just that the page is in a different location. Yes. 4 Yes. They appear to be identical. 5 Q. Same page, number 107, has the table? 6 A. 107 has the table. 7 Q. Okay. 106, sir, STA sizing, you see that 8 down on page 106? 9 A. Yes, I see that. 10 Q. It says approximately 36,300 acres are 11 proposed to be constructed as four individual STAs. 12 Is that correct? 13 A. That is what it says, yes, sir. 14 Q. Size of each STA is presented in Table 11. 15 Go to Table 11 on page 107, sir. 16 A. Yes. 17 Q. And does it give the size of each STA? Is 18 that one, two, three and four? 19 A. Yes, it does. 20 Q. Okay. In some cases, down to the STA 21 three, for example, is 4,705 acres? 22 A. That is correct. 23 Q. Okay. I direct your attention to page 109. 24 It provides for the specific location and acreage and 25 there is a map on page 108; correct? 581 1 MS. PONZOLI: Object to form. These are 2 proposed. As you have read it out to us, you 3 said proposed. I think the word is inconsistent 4 with Mr. Rhoads' prior language. 5 MS. BIRCH: I don't think I understand the 6 question. 7 MS. PONZOLI: He is asking him to agree 8 with required elements, and I think the 9 distinction, counselor, that question implied 10 and the distinction that the witness was making 11 in his answer was the absolute mandatory or 12 required nature of this remedy, and I think that 13 is the issue that we are questioning. To the 14 extent any answer is implied to do more than it 15 was intended, I want my objection as part of the 16 record. 17 BY MR. EARL: 18 Q. Is it your understanding the District is 19 required to construct the STAs? 20 MS. PONZOLI: In the SWIM plan? 21 MS. BIRCH: Objection. Asked and answered. 22 MR. EARL: I didn't say the SWIM plan. 23 THE WITNESS: No, it is not. 24 BY MR. EARL: 25 Q. The District, as you understand, is not 582 1 under a contractual obligation to construct STAs? 2 MS. PONZOLI: Object to form. Requires a 3 legal conclusion. 4 MS. BIRCH: Join the objection. 5 BY MR. EARL: 6 Q. Let me ask again. Does the settlement 7 agreement require STAs? 8 MS. PONZOLI: Same objection. 9 MS. BIRCH: Same objection. 10 MS. PONZOLI: Well, I imagine, Mr. Earl, 11 what the settlement agreement requires will 12 probably be a subject of protracted debate for 13 many years. 14 BY MR. EARL: 15 Q. I'm asking, Mr. Rhoads, does the settlement 16 agreement require STAs, as you understand the 17 settlement agreement? 18 MS. BIRCH: I'll object to the extent that 19 it would call for Mr. Rhoads to draw legal 20 conclusions related to the settlement agreement. 21 And as you well know, Mr. Earl, this is the SWIM 22 plan challenge that we are being deposed upon 23 today, and there are a number of cases where the 24 settlement agreement's being litigated. 25 If Mr. Rhoads can answer that question 583 1 based upon facts that he knows, as any other 2 person who might read the settlement agreement, 3 he can answer. But to the extent it calls for a 4 legal conclusion, he can't answer that. 5 MR. EARL: I would remind counsel that the 6 hearing officer has stated that he will take 7 evidence on the coercive influence of the 8 settlement agreement on the SWIM process, and 9 that is what we are engaged in here. 10 MS. PONZOLI: When did he rule that, 11 Mr. Earl? 12 MR. EARL: His very first hearing, he said, 13 if you go back and look at the transcript, 14 Counsel -- 15 MS. PONZOLI: I don't understand that to be 16 his ruling, although you may be correct. He did 17 not strike those portions of the petitions, 18 although you have amended your petition recently 19 and I would have to spend more time with it, 20 but -- 21 MR. EARL: He said he will allow, in my 22 recollection, I am paraphrasing, I think he said 23 he will allow discovery on the issue of 24 coercion. 25 MS. PONZOLI: We'll have to clarify that. 584 1 I'll go back and review the transcript. 2 THE WITNESS: In my opinion, I don't think 3 the District is necessarily obligated to 4 construct the stormwater treatment areas. I 5 think that alternatives that meet the objectives 6 of the stormwater treatment areas would be an 7 acceptable solution to the environmental problem 8 that the SWIM plan is attempting to correct. 9 BY MR. EARL: 10 Q. Have you had discussions with 11 representatives of the United States on that point? 12 A. I have not, no. 13 Q. Has anybody at the District, to your 14 knowledge? 15 MS. BIRCH: Objection; calls for a lot of 16 conclusions. He can't speak for everyone at the 17 District. 18 MR. EARL: To his knowledge. 19 THE WITNESS: No. To my knowledge, no. 20 BY MR. EARL: 21 Q. Okay. Mr. Rhoads, do you think that STA 22 design performance and construction assumptions can 23 be made prior to determining the total phosphorus STA 24 outflow concentrations necessary to meet state water 25 quality standards? 585 1 MS. BIRCH: Object to the form of the 2 question and previously stated arguments as to 3 your reading from what appears to be your 4 Florida Sugar Cane League's petition. 5 MS. PONZOLI: I'm going to reiterate my 6 prior objections, Counselor, also. 7 MR. EARL: I would like to hear the 8 question again, please. 9 (Thereupon, a portion of the record 10 was read by the reporter.) 11 THE WITNESS: Yes, I do. 12 BY MR. EARL: 13 Q. Why is that? 14 A. Well, you can make assumptions for 15 generally any situation depending on how conservative 16 or how liberal you want to be. You can choose 17 assumptions that span a range of conditions. 18 Q. What assumptions are you making that is 19 going to be necessary to meet state water quality 20 standard outflows from the STAs? 21 A. I'm not making any assumptions. 22 Q. Well, who is, in the design of those STAs? 23 A. Our Construction Management Department 24 oversaw a contract by Burns & McDonnell on the 25 conceptual design of the STAs. The assumptions 586 1 inherent in that design were clearly delineated in 2 the work. 3 Q. What was the threshold of vegetative change 4 that was assumed? 5 MS. PONZOLI: Object to form. 6 THE WITNESS: I don't know. 7 BY MR. EARL: 8 Q. What is the outflow design of the STAs, as 9 you understand in terms, of phosphorus concentration? 10 A. For the conceptual design purposes, it was 11 to the best of my recollection of that report, it 12 was, assumed that a target concentration of 50 parts 13 per billion would be used as a technology base 14 standard for the stormwater treatment areas 15 Q. Even though you told me yesterday you think 16 the actual threshold might be lower than that; 17 correct? 18 A. Yes. Yes. 19 Q. And do you also think you can make STA 20 design performance and construction assumptions prior 21 to determining the total load of phosphorus that will 22 be removed by BMPs on the farm? 23 MS. BIRCH: Objection to what Mr. Rhoads 24 thinks. He is not an expert witness, he's a 25 fact witness. 587 1 MS. PONZOLI: Same objections as before. 2 THE WITNESS: To the extent I am familiar 3 with the issue you're discussing, yes, I believe 4 those assumptions can be made. 5 BY MR. EARL: 6 Q. What are being involved in that process? 7 What assumptions are being made? 8 A. As I indicated earlier, the assumptions 9 inherent in the conceptual design of the STA are 10 included in the March 31 Burns & McDonnell report. 11 The assumptions inherent in the ongoing work, I'm not 12 familiar with. I don't know. 13 Q. Do you know at this time in your role as 14 Everglades Restoration Officer for the District, do 15 you know whether the implementation costs described 16 in the SWIM plan are reasonable estimates of the 17 actual costs that will be incurred in the programs 18 described in the SWIM plan? 19 MS. BIRCH: Object to the form. What is 20 reasonable, Mr. Earl? 21 THE WITNESS: Based upon my understanding 22 of the basis for the costs contained in the SWIM 23 plan, I feel those costs are conservative. In 24 other words, the actual costs of the fix will 25 come in below those costs. 588 1 BY MR. EARL: 2 Q. Mr. Rhoads, based on your understanding of 3 the Everglades, is it true that in its natural state, 4 the entire Everglades area was prone to flooding 5 across the lower end of the peninsula? 6 A. It is probably not correct to characterize 7 it as the entire area because even under very high 8 water conditions, there were probably portions of 9 what we consider to be the Everglades that were dry. 10 Q. How would you characterize it? The 11 majority? 12 A. The majority or most, yes. 13 Q. Okay, sir. And am I correct in 14 understanding there were hurricanes, such as in 1926, 15 which killed approximately 372 people and injured 16 6,000 more? 17 MS. BIRCH: Objection to the relevancy. 18 MS. PONZOLI: Mr. Earl, are we going to go 19 through the history of the project? 20 THE WITNESS: That is consistent with my 21 understanding. 22 BY MR. EARL: 23 Q. Okay, sir. Am I also correct in 24 understanding that the Federal project came about 25 after the state supported and the private efforts you 589 1 talked about yesterday to build canals and partial 2 levees failed to accomplish the level of flood 3 control necessary to protect citizens and property in 4 South Florida? 5 MS. PONZOLI: Object to form. 6 THE WITNESS: That is consistent with my 7 understanding of the history. 8 BY MR. EARL: 9 Q. Are you familiar or do you know of the 10 existence of House Document 643, sir? 11 A. Yes, I am generally aware of House Document 12 643. 13 Q. Am I correct in understanding House 14 Document 643 was the comprehensive Federal plan to 15 provide flood control and water supply to the South 16 Florida region? 17 MS. PONZOLI: Object to form. 18 MS. BIRCH: Object to the relevancy to the 19 SWIM plan challenge. What does the house 20 document have to do with flooding? 21 THE WITNESS: I would like to rehear that 22 question, please. 23 BY MR. EARL: 24 Q. Let me rephrase it. 25 A. Sure. 590 1 Q. You said you are familiar with House 2 Document 643. Did that establish the initial plan 3 for the Central and Southern Florida Flood Control 4 Project? 5 MS. PONZOLI: Object to form. 6 THE WITNESS: In general terms, yes. 7 BY MR. EARL: 8 Q. Is it accurate to state that since 1949, 9 the project has grown to cover approximately 15,000 10 square miles of historic Everglades? 11 A. I missed the very end of your question. 12 MR. EARL: Would you read that back, 13 please? 14 (Thereupon, a portion of the record 15 was read by the reporter.) 16 THE WITNESS: That is generally a correct 17 statement. 18 BY MR. EARL: 19 Q. Am I correct in understanding Water 20 Conservation Areas as constructed serve as secondary 21 reservoirs to receive wet season flood water from and 22 to provide dry season water supply to urban and 23 agricultural uses? 24 MS. PONZOLI: Object to form. You're 25 asking for legal conclusions as to what the 591 1 Water Conservation Areas are constructed for. 2 MR. EARL: It is a fact, Counsel, whether 3 they are reservoirs or not. 4 MS. BIRCH: What you understand isn't, 5 Mr. Earl. You asked him are you correct in 6 understanding? I object to the form of the 7 question. 8 BY MR. EARL: 9 Q. Are the Water Conservation Areas secondary 10 reservoirs, as you understand them, to receive wet 11 season flood waters from and to provide dry season 12 water supply to urban and agricultural users? 13 A. I'm not comfortable with the use of the 14 term "secondary reservoirs" for the Water 15 Conservation Area. 16 Q. Okay. Are they reservoirs under the 17 project? 18 A. Storage of water is one of the functions 19 under the project for the Water Conservation Areas, 20 yes. 21 Q. Aren't they in fact called reservoirs? 22 A. They are called Water Conservation Areas. 23 Q. You have never seen the term "reservoirs" 24 used in the project documents? 25 A. Yes, it has been used. 592 1 Q. For the Water Conservation Areas; correct? 2 A. Yes, that is correct. 3 Q. That was my question. 4 MS. PONZOLI: I object. That was not your 5 question. 6 BY MR. EARL: 7 Q. To your knowledge, does the SWIM plan 8 identify or require any action by the Federal or 9 State Government to modify the design of the Federal 10 project? 11 A. No, I don't believe the SWIM plan requires 12 the Federal Government to do anything, no. 13 Q. Does the SWIM plan identify and require the 14 Federal Government to do anything regarding 15 operational modifications to reduce operational 16 impacts of the Federal project? 17 MS. PONZOLI: I'm going to object to the 18 form of the word "require," Mr. Earl. I think 19 there is a sovereignty problem. 20 THE WITNESS: No, I don't believe the SWIM 21 plan requires the Federal Government to do that. 22 BY MR. EARL: 23 Q. Is it your understanding the EAA consists 24 of approximately 700,000 acres? 25 A. That is generally correct. 593 1 Q. You are familiar with the agricultural 2 operations of in the EAA generally, aren't you, sir; 3 the nature of them? 4 A. In broad general terms, yes. 5 Q. Are the agricultural activities EAA water 6 sensitive? 7 MS. PONZOLI: Object to the form. 8 BY MR. EARL: 9 Q. Meaning too much or too little water will 10 cause problems with the crops? 11 A. Generally, I would agree with that 12 statement. 13 Q. Does the approved SWIM plan call for the 14 change in existing Water Management District policies 15 and procedures in programs relative to the EAA? 16 MS. PONZOLI: Object to form. It calls 17 for -- I think it calls for a legal conclusion 18 in addition to other conclusions. 19 MS. BIRCH: Read that back. 20 (Thereupon, a portion of the record 21 was read by the reporter.) 22 MS. BIRCH: I object to the form of the 23 question. 24 THE WITNESS: Yes, I believe it does. 594 1 BY MR. EARL: 2 Q. Will the EAA agricultural interests suffer 3 physical changes to the properties as a result of the 4 SWIM plan? 5 MS. PONZOLI: Object to the form. 6 MS. BIRCH: Object. It calls for a 7 conclusion. Speculation. 8 THE WITNESS: I don't know. 9 BY MR. EARL: 10 Q. Okay. Do the STAs as proposed in the SWIM 11 plan, do they require the taking of active 12 agricultural land out of production? 13 A. Were the STAs to be constructed, 14 agricultural lands would be taken out of production. 15 Q. And as you stated earlier, the SWIM plan 16 proposes the construction of STAs, does it not? 17 A. Yes. 18 MS. BIRCH: Asked and answered. 19 MS. BIRCH: Mr. Earl, while you're 20 reviewing your document, I note that it is 5:50. 21 I know we started this morning at 10:00 so you 22 all could vote, but I didn't have the 23 opportunity to vote. I would just want to know 24 what time you think we'll finish up today. 25 MR. EARL: We said we would stop at 6:00. 595 1 I believe that was the agreement. Will that 2 give you enough time? 3 MS. BIRCH: Oh, sure. 4 BY MR. EARL: 5 Q. Mr. Rhoads, if you would like to read 6 along, I am going to ask you some questions about the 7 SWIM plan now, specifically -- 8 A. Okay. 9 MS. BIRCH: What page are you on there, 10 Mr. Earl? 11 MR. EARL: Well, I am figuring that out, 12 Counsel. 13 MS. BIRCH: Okay. 14 BY MR. EARL: 15 Q. Let's start out with the planning document. 16 That will be quickest. Let's do that. Page 27, sir. 17 Now, you told me Mr. Whalen would be most 18 knowledgeable regarding the contents of this 19 document; correct? 20 A. I believe, yes, that is correct. 21 Q. And before that, it was Mr. Slayton; 22 correct? I'm not trying to test your memory, that is 23 just my recollection. 24 A. I'm not sure of the extent to which 25 Mr. Slayton is really familiar with detailed 596 1 contents, but yes. 2 Q. Mr. Whalen, you told me also, as I 3 understand, so I won't burden you with it, Mr. Whalen 4 was the one who would know why changes were made 5 between the prior draft and this draft, which changes 6 were made and for what reasons; correct? 7 A. In my opinion, he would be the person most 8 likely to have that information. 9 Q. You don't have that information, do you? 10 A. No, I don't. 11 Q. Page 27, sir. The paragraph starts off 12 "WCA-2". Are you with me? 13 A. Yes, sir. 14 Q. Nine lines down. Starts off, "Mitigated 15 adverse impacts of the prior regulation schedule." 16 A. Yes. 17 Q. Okay. The next sentence, I direct your 18 attention to, "Many of the ecological losses that 19 occurred in the 1960's and '70's, however, probably 20 cannot be fully regained in the near future in spite 21 of improved management of water levels." Do you 22 concur with that? 23 A. Yes. 24 Q. I direct your attention, please, to page 25 42, under the heading Threatened and Endangered 597 1 Species. Are you with me? 2 A. Yes. 3 Q. The first sentence there, "Populations of 4 some species have declined throughout the Everglades. 5 Factors leading to these population declines include 6 close of habitat, overharvesting, altered 7 hydroperiod, and changes in the role of fire in the 8 ecosystem." Do you concur with that? 9 A. Yes, I am in agreement with that statement. 10 Q. Are you aware of any threatened or 11 endangered species that's been impacted allegedly by 12 nutrients from the EAA? 13 A. I think the nutrient impacts in the 14 Everglades and the Water Conservation Areas are 15 endemic to the food webs of the system. I think the 16 effect that nutrients in the system have had are, in 17 some cases, not clear to see, and that there are 18 ramifications up the food change to higher organisms 19 that potentially endangered species may be there, but 20 may have not been quantified at this point in time. 21 Q. What do you base that opinion you have just 22 given me on and which species are you speaking of? 23 A. I am basing it on my understanding of 24 general ecological principles. 25 Q. And which particular threatened or 598 1 endangered species are you speaking of? 2 A. The potential exists that the nutrient 3 effects on the food organisms for, say, the -- 4 Q. Kite? 5 A. No. 6 Q. Alligator, wading bird? 7 A. Corkscrew swamp. 8 Q. Wood stork? 9 A. Wood stork. For the wood stork, the wood 10 stork has relatively specific feeding requirements 11 requiring a density of prey that is relatively high 12 because of its feeding method. I think the food 13 chain effects which impact the production of forage 14 fish, the composition of the forage fish, can, in 15 theory, affect the feeding success of the wood stork. 16 Q. To your knowledge, that hasn't been 17 documented? 18 A. That has not been documented, to my 19 knowledge, no. 20 Q. And the impact of altered hydroperiod on 21 the wood stork has been documented, hasn't it? 22 A. Yes, it has. 23 Q. I direct your attention to -- we are now in 24 the supporting information document, Mr. Rhoads. 25 A. Yes. 599 1 Q. Page 58, sir. I am in the second paragraph 2 on the page. Starts off, "Sawgrass is well adapted." 3 A. Yes. 4 Q. I direct your attention to three lines 5 down, Conditions, Characteristic of the Everglades, 6 and then please look at the sentence, "Although 7 capable of surviving variable water depths from dry 8 soil to flooding, sawgrass loses its vitality when 9 exposed to prolonged high water conditions," 10 Hofstetter and Parsons, Davis. Do you agree with 11 that? 12 A. That is consistent with my understanding, 13 yes. 14 Q. Was the area south of the S-10 structures 15 in what is called the Nutrient Enriched Area, was 16 that exposed to prolonged high water conditions? 17 A. During the 1960's and 1970's, when Area 2 18 was under a higher regulation schedule, the area 19 south of the S-10 structures did experience a greater 20 level of inundation, a higher level of inundation, 21 than it did during the 1980's. Yes, that is correct. 22 Q. Let me direct your attention to two 23 paragraphs down, paragraph that starts off -- are you 24 with me? 25 A. Yes. 600 1 Q. "Hydroperiod and water depths are important 2 factors in both the growth and reproduction of 3 sawgrass." Will you agree with that? 4 A. Yes. 5 Q. I direct your attention to page 60, sir. 6 Your understanding of Everglades ecology. I direct 7 your attention to the fourth paragraph down, starts 8 off "Tree islands are important." Are you with me? 9 A. Yes. 10 Q. "Tree islands are important nesting and 11 roosting sites for colonial birds, Givens, 1956, and 12 are an important habitat for Everglades deer and 13 other terrestrial animals, especially during periods 14 of high water"; is that correct? 15 A. I agree with that statement. 16 Q. And the next paragraph, sir, "High water 17 levels, peat fires and halftrack, recreational 18 vehicles, have had adverse impacts on Everglades tree 19 island communities. In the central south end of 20 WCA-2A, tree islands have been nearly eliminated due 21 to high water levels." Do you agree with that, sir? 22 A. That is correct, yes. 23 Q. I direct your attention to page 82, please. 24 The first full paragraph starts off, "Water 25 management impacts." 601 1 A. Yes. 2 Q. "Water management impacts on the American 3 alligator have been identified by Kushlan, 1987, who 4 correlated dry season flood releases with alligator 5 nest flooding and resultant egg mortality. Drainage 6 of marshes, such as those in the Northeast Shark 7 Slough and East Everglades, appears to result in 8 reduced carrying capacity, (Fleming, in prep). Lower 9 densities of alligators in degraded marshes has an 10 impact on other aquatic species because the dry 11 season shelter that the alligators create in the form 12 of 'gator holes are less available." Do you agree 13 with that statement? 14 A. Generally, I agree with that, yes. 15 Q. What don't you agree with? 16 A. I think Kushlan put too much emphasis on 17 the refuge forage hypothesis. Jim felt very strongly 18 that the availability of open surface water habitat 19 was very important to the Everglades ecology. 20 Q. The 'gator hole? 21 A. 'gator holes. And I think he's placed a 22 little bit too much emphasis on that issue. So that 23 is how I qualify that. 24 Q. Okay, sir. Page 130, please. The large 25 paragraph in the middle of the page that starts off, 602 1 "What can be said from the limited data available is 2 that colon: A, cattails, as well as other aquatic 3 vegetation, became established in the south end of 4 WCA-1 during the early 1960's, after the construction 5 of perimeter canals and levees, which resulted in 6 stabilized, deep water conditions at the south end of 7 the refuge." Do you concur with that statement? 8 A. That is consistent with my understanding. 9 Q. And this part of the SWIM plan goes on to 10 state, "These hydrological changes were associated 11 with conversion of Everglades habitat below 14 feet 12 NGVD to aquatic slough communities." Do you agree 13 with that, sir? 14 A. Yes, I believe that is correct. 15 Q. Page 135, sir. We are from the bottom of 16 the first paragraph, up six lines. In the sentence 17 that starts off "Impoundment of WCA-2B by 18 construction of the L-35B in 1972 resulted in lower 19 water table and a shortened hydroperiod, setting the 20 stage for melaleuca invasion throughout WCA-2B." Do 21 you concur with that? 22 A. Yes, I do. 23 Q. If I can direct your attention to page 146 24 of the supporting information document for the 25 District SWIM plan, under wading bird requirements, 603 1 the last sentence in that paragraph, sir, four lines 2 from the bottom, starts off, "Construction of water 3 management canals and levees have rendered many areas 4 of the WCAs as unsuitable wading bird feeding habitat 5 due to the ponded, deep water conditions which 6 prevail in these areas." Is that true? 7 A. I am a little uncomfortable with the use of 8 the word "many". I would be more comfortable if the 9 word had been "some". 10 Q. Okay. Is it a significant amount of land 11 in the WCA? 12 A. Yes. Yes. 13 Q. Directing your attention, sir, to page 158, 14 and the first paragraph on that page, going up nine 15 lines from the bottom, Mr. Rhoads, it starts off, 16 "The primary structural changes which potentially 17 affected the water quality characteristics of the 18 southern Everglades included construction and 19 operation of pump station S-8 and S-9, construction 20 of the L-67A borrow canal and its connection to the 21 Miami Canal, and construction operation of the S-10, 22 S-11 and S-12 structures." Do you agree with that? 23 A. Yes, I generally agree with that. 24 Q. The next sentence further states in the 25 plan, "With these changes, more water could be 604 1 channelized to flow more rapidly southward through 2 WCA-3A into ENP, the developing upstream agricultural 3 and urban areas, without the water quality benefits 4 of nutrient uptake and assimilation originally 5 provided by the Everglades marsh." Do you agree with 6 that, sir? 7 A. Yes. 8 Q. To your knowledge, did the EAA farmers 9 design, construct any of the structures we have just 10 talked about; S-8, S-9, L-67A, S-10, S-11 and S-12? 11 A. Only in the sense that they were members of 12 the public, such as I was, that participated in the 13 funding through our ad valorem taxes. 14 Q. But the Federal Government designed those; 15 correct? 16 A. That is correct. 17 Q. The Federal Government constructed those; 18 correct? 19 A. Contractors under contract to Federal 20 Government, yes. 21 Q. Direct your attention, sir, to page 219, 22 please. The bottom paragraph. It is referencing 23 Everglades National Park study area of the SWIM plan. 24 States, "Currently, water management practices have 25 resulted in alteration of historic flow patterns, 605 1 compartmentalization and isolation of portions of the 2 system, decreasing the total volume of water per 3 area, altered timing of flow events, and changes in 4 chemical constituents (i.e., specific conductivity 5 and major ions) of inflow waters. These changes have 6 resulted in the following well-documented problems: 7 Decreased productivity of marsh systems, reduced 8 aquatic diversity of fresh water systems, reduced 9 nesting and reduced nesting success of wading birds, 10 alteration in marsh community composition" -- going 11 to page 220 -- "encroachment of exotic plants and 12 animals, and artificially induced, extreme 13 fluctuations in salinity within Florida Bay." Is 14 that an accurate characterization of that situation? 15 A. Generally. However, the statement is not 16 specific with regard to area. It is a very broad 17 general statement and does not take into account that 18 all of these problems don't occur at all locations 19 within a system. 20 Q. But is it a good general characterization 21 of problems? 22 A. As a broad general characterization, I 23 would not dispute it. 24 Q. Okay. Page 275, sir. At the top. "Recent 25 Vegetation Changes. The Plan states, "Recent changes 606 1 in Everglades vegetation have resulted from human 2 induced changes in major environmental factors. The 3 changes are associated with altered hydrologic 4 regimes, substrate alteration and modified fire 5 patterns." Do you agree with that? 6 A. Yes. 7 Q. What changes are they talking about in 8 that? 9 A. They are referring to marshes, such as on 10 the Northeast Shark River Slough, as an example. I 11 know Alexander Cook worked in that area. 12 Q. Page 276, sir. Second full paragraph. 13 Plan states, "Prolonged flooding can also result in 14 vegetation changes." Is that true? 15 A. Woops, I lost you there, Counselor. 16 Q. Second full paragraph. 17 A. Second full. Yeah. Okay. 18 Q. Plan states, "Prolonged flooding can also 19 result in vegetation changes." Is that true? 20 A. Yes. 21 Q. Page 359. We are almost done with this. 22 The second full paragraph starting off, 23 "hydroperiod." 24 A. Yes. 25 Q. "Hydroperiod is critically important to the 607 1 production of fish and invertebrates. A reservoir of 2 breeding fish is required to seasonally colonize 3 short-period wetlands as they are created. Once 4 these wetlands dry, fish become increasingly 5 concentrated in pools and serve as food for foraging 6 birds." Is that true? 7 A. Let me read that. Middle sentence is 8 somewhat awkward. Yes. 9 Q. Okay. And the next sentence, "Once the 10 wetlands dry, fish become increasingly concentrated 11 in pools and serve as food for foraging birds," I 12 presume you would agree with that? 13 A. Yes. 14 Q. "Extremely dry conditions and rapid drying 15 rates result in high densities of fish concentrated 16 in refuge pools because of their inability to 17 normally move to, or due to the loss of connections 18 to, more permanent wetlands. This situation often 19 favors fish kills." Do you agree with that? 20 A. Yes. 21 Q. Give me just one minute. I think we may be 22 able to wind up here. If Ms. Ponzoli will commit to 23 15 minutes, I'll commit to wind up here. Is that a 24 realistic? 25 MS. PONZOLI: Yeah. Yeah, it is very 608 1 realistic. I only have a couple questions. 2 BY MR. EARL: 3 Q. Is it correct, as you understand the 4 process, is it correct that the U.S. Army Corps of 5 Engineers shares primary water management 6 responsibility with the District throughout the 7 Everglades system? 8 MS. PONZOLI: Object to form. 9 MS. BIRCH: Asked and answered. 10 BY MR. EARL: 11 Q. On page 6 of the SWIM plan, if you would 12 like to look at it -- 13 A. I just missed the exact wording there. 14 Shares. Shares is the operative verb. Yes, I am 15 comfortable with that statement. 16 Q. Okay. How large is the Holey Land? About 17 35,000 acres? 18 A. Roughly about 36 square miles, 35,000 19 acres. 20 Q. And how much water quality data do you have 21 now? How long a period of record from inflows and 22 outflows? 23 A. I'm not sure. 24 Q. You said you had about a year when this 25 matter came before SAGE. Do you recall that? 609 1 A. Yeah. That is about right. 2 Q. How long will you need? How much data will 3 you need, from what period of record do you need, 4 before you can draw some conclusions on the impacts 5 of water going into the Holey Land? 6 MS. BIRCH: Objection. 7 MS. PONZOLI: Objection. 8 MS. BIRCH: Calls for a conclusion. 9 MS. PONZOLI: Dr. Rhoads is not an 10 investigative scientist who makes those 11 decisions, to my knowledge. 12 THE WITNESS: I don't know, but it would 13 depend upon the rate and the magnitude of the 14 change in the area. 15 BY MR. EARL: 16 Q. Who specifically at the District has 17 determined the existence of water quality violations, 18 nutrient imbalances in the area south of the S-10 19 structures? 20 MS. BIRCH: Objection. That calls for a 21 legal conclusion. 22 MR. EARL: No, it calls for the name of an 23 individual who's done that. Mr. Rhoads, in 24 addressing the board, said that the water -- the 25 DER had determined water quality violations, and 610 1 he said his staff concurred, and I'm asking him 2 now who? 3 THE WITNESS: I was about to respond, 4 Counselor, that we defer to DER, the state 5 agency that makes those determinations, and 6 Mr. Nearhoff. 7 BY MR. EARL: 8 Q. And you were asked by Mr. Williamson, I 9 believe, what does our staff think? And you said, 10 "they concur". I'm asking you who has made those 11 determinations on the District's end? 12 A. Based on my experience, it is my general 13 understanding that Dr. Fontaine is in concurrence 14 with Frank Nearhoff's conclusions. 15 Q. You don't have any opinions on that, do 16 you; on the violations of those standards? 17 A. No, I do not. 18 Q. Is an environmental assessment going to be 19 done on the changes called for in the SWIM plan, 20 specifically the STAs? 21 A. I don't know. 22 Q. Who would know at the District? 23 A. I don't know who would know. 24 Q. Have no idea? 25 A. An environmental assessment is a component 611 1 of the federal process. 2 Q. I understand. You have had no discussions 3 with the Corps regarding that? You've seen no 4 correspondence regarding an environmental assessment 5 for any component of the SWIM plan? 6 A. I have not had any conversations with the 7 Corps on that subject and I have not seen any 8 correspondence on that. 9 Q. Have you had discussions with anyone else 10 on that subject? 11 A. Briefly discussed it with Irene Quincey, 12 our counsel. 13 Q. What was the purpose of that discussion? 14 A. To ask the question of was an environmental 15 assessment or Environmental Impact Statement going to 16 be prepared for any part of the SWIM plan? 17 Q. And did she give you an answer? 18 MS. BIRCH: I am going to instruct 19 Mr. Rhoads not to answer if it calls for a 20 response that will reveal an attorney/client 21 privilege communication. 22 MR. EARL: I am just asking him first the 23 predicate question, which is did you receive an 24 answer from Ms. Quincey? 25 THE WITNESS: No. 612 1 BY MR. EARL: 2 Q. Did you receive an answer or information 3 from anyone else on that inquiry? 4 A. No. 5 Q. So as we sit here today, you have no 6 information from counsel or otherwise as to whether 7 an environmental assessment will be done; is that 8 correct? 9 MS. BIRCH: Objection; asked and answered. 10 THE WITNESS: That is correct. 11 BY MR. EARL: 12 Q. Are you still curious? 13 A. Yes. 14 MS. BIRCH: What was the last question? 15 (Thereupon, a portion of the record 16 was read by the reporter.) 17 BY MR. EARL: 18 Q. Have you talked that over with Ms. Ponzoli 19 or Mr. FitzGerald? 20 A. Negative. 21 Q. Who at the District do you think I should 22 ask if I needed an answer to that question? Who 23 would know? 24 A. Irene Quincey. 25 Q. But she didn't give you the answer; right? 613 1 A. No. 2 Q. Did she tell you why she wasn't going to 3 give you an answer? 4 MS. PONZOLI: Object to form. 5 MS. BIRCH: Objection; asked and answered. 6 MR. EARL: No, I'm asking him -- it is a 7 yes or no, without disclosing. 8 MS. PONZOLI: That implies that she knew an 9 answer and refused to give it to him. 10 MR. EARL: Would you read back the 11 question, please? 12 (Thereupon, a portion of the record 13 was read by the reporter.) 14 MS. BIRCH: Objection. If your response, 15 Mr. Rhoads, would require you to reveal an 16 attorney/client privilege, then I would request 17 that you not answer that question. 18 BY MR. EARL: 19 Q. I'm not asking you to disclose the 20 substance of the communication, I am just asking 21 whether she told you why. 22 MS. BIRCH: Yes, you are, Mr. Earl. Why 23 reveals something that she's disclosed to him 24 during an attorney/client communication. 614 1 BY MR. EARL: 2 Q. Can you answer the question without 3 revealing the substance, sir? 4 A. Yes, I believe I can. 5 Q. Please proceed. 6 A. No, she did not. 7 Q. Did she tell you why she couldn't answer? 8 MS. PONZOLI: Object to form. You keep 9 implying that somehow she is holding something 10 back from him. 11 THE WITNESS: That is correct. 12 MR. EARL: I'm not implying anything, 13 Counsel. 14 BY MR. EARL: 15 Q. Okay. Subject to what we talked about this 16 morning, the necessity of deposing you regarding DER 17 permit, if that becomes an issue, and subject to 18 deposing you on any further developments in which you 19 don't have answers at this time regarding the ongoing 20 planning process, that is all the questions I have at 21 this time, and thank you for your patience, 22 Mr. Rhoads. 23 A. Thank you, sir. 24 MS. BIRCH: I'm going to object to 25 particularly the second portion of your 615 1 statement, Mr. Earl. There have been no 2 questions, as I recall -- that is just based on 3 my recollection, but the transcript is the most 4 accurate record of that. Mr. Rhoads was as 5 responsive as he could be. He did not refuse to 6 answer any of the questions, nor was he 7 instructed not to answer any of your questions. 8 And subject to that, the District would strongly 9 oppose and would fight any redeposition of 10 Mr. Rhoads related to Everglades SWIM Plan and 11 the Everglades Restoration Program. 12 MR. EARL: Okay, Counsel. For the record, 13 what appears to be emerging is a strategy of an 14 evolving, changing, restoration program, and 15 therefore, a SWIM plan which we don't know the 16 contours of yet. So if that is going to become 17 part of the SWIM plan, it is also part of the 18 proceedings, in my view. I may be wrong. We 19 can take that up with the hearing officer. But 20 that is the purpose of this. As this plan 21 evolves and changes into elements that are not 22 there now, we certainly need to further inquire. 23 MS. BIRCH: I understand the assumption 24 that you are making that the plan is going to 25 change, and I think Mr. Rhoads clearly said they 616 1 have -- gave no indication that the plan was 2 going to change and qualified all of his answers 3 in response to if there are changes, it would be 4 in May of '93. But subject to that, I have no 5 further comments. 6 I will ask, though, Mr. Earl, during the 7 course of Mr. Rhoads' deposition, you went 8 through a number of documents that you requested 9 that we locate and produce; that we produce 10 those documents. Other than the ones you 11 indicated during the course of his deposition, 12 are there any other documents known or indicated 13 that you want, other than the ones you have 14 indicated as we have gone along? 15 MR. EARL: Not that I am aware of. If I 16 don't know they exist, no. And I might say, I 17 believe we have the Gleason manuscript on the 18 crayfish. I was told by someone. 19 MS. BIRCH: So we don't need to look for 20 that. 21 MR. EARL: No, ma'am. 22 MS. BIRCH: Okay. Thank you. 23 MR. EARL: Ms. Ponzoli, that clock is fast. 24 I have ten minutes of. 617 1 CROSS (Peter Rhoads) 2 BY MS. PONZOLI: 3 Q. Mr. Rhoads, I just have two follow-up 4 questions to questions presented to you on the first 5 day of this deposition. 6 Mr. Earl questioned you regarding the 7 Hazen & Sawyer economic impact analysis done by 8 Dr. Grace Johns. Do you recall that? 9 A. Yes, I remember some discussion regarding 10 that. 11 Q. Right. Do you recall his questioning you 12 regarding a discussion that you had had with 13 Dr. Johns -- is it Jones? 14 A. Johns. 15 Q. Johns? 16 A. J-o-h-n-s. 17 Q. -- Dr. Johns on debt? 18 A. Generally, yes. 19 Q. What was the substance of that conversation 20 with Dr. Johns? 21 A. Let me see if I can remember that. I think 22 the gist of the conversation was if she could obtain 23 debt and income tax information, it would provide the 24 ability to do one type of analysis. If she was not 25 able to obtain direct specific information of that 618 1 type, she would be able to do an analysis. It would 2 be possible to use public data and alternate analysis 3 methods. 4 Q. Which form of information did you indicate 5 to her you would prefer that she use? 6 A. I indicated that the most accurate 7 information was to be preferred, the more detailed, 8 the more defensible information she could obtain was 9 the appropriate route for her to take. 10 Q. Would the more detailed specific 11 information have included income tax information? 12 A. Yes. 13 Q. Did Dr. Johns actually seek to obtain 14 income tax information from farmers in the EAA? 15 A. Yes, to the best of my knowledge she made a 16 diligent attempt to obtain that. 17 Q. Did she obtain any income tax information? 18 A. To my knowledge, no. 19 Q. How did she attempt to obtain income tax 20 information? 21 A. She and my staffer at that point in time, 22 Paul Muncy, met on numerous occasions with the 23 certain aggricultural interests in an attempt to 24 develop a cooperative relationship on the provision 25 of data. 619 1 Q. Whom did she meet with? Do you know? 2 A. I don't know all of the people. George 3 Wedgworth for sure, and an extensive list of other 4 people that I do not recall at this point in time. 5 Q. Were they members of the Florida Sugar Cane 6 League? 7 A. Yes, I'm sure that some members of the 8 Florida Sugar Cane League participated in those 9 meetings. 10 Q. Were they members of U. S. Sugar? 11 A. Yes, I am reasonably confident. 12 Q. Were there members of Flo-Sun? 13 A. Yes. 14 Q. Roth Farms? 15 A. I'm not sure, but I believe so. 16 Q. Did they develop a cooperative spirit with 17 the farmers in the EAA? 18 A. During the early phases of the analysis, it 19 was encouraging. We thought we would be provided 20 with substantial data. That didn't come to pass. 21 Q. What type of data did you seek from the 22 farmers? 23 A. An extensive range of information, some of 24 which was provided; cropping data, certain 25 characteristics of the farm operations out there. 620 1 Information was provided that was useful to her; 2 however, the quantitative economic data was 3 essentially not provided. 4 Q. Was any reason given? 5 A. To my recollection, no. 6 Q. Is there a document that reflects the type 7 of quantitative economic data that was sought from 8 the farmers? 9 A. Yes. We have in our files a copy of 10 Grace's survey form that she had reviewed with a 11 number of the agricultural interests and provided to 12 them with the understanding please complete as much 13 of this as you can. Pending completion of it, any 14 completion of it would be useful to us. 15 Q. Was that provided to Mr. Wedgworth? 16 A. I am pretty sure, yes. 17 Q. Was it provided, to the best of your 18 knowledge, to members of the Florida Sugar Cane 19 League? 20 A. Yes, I believe so. 21 Q. Was it provided to members of U. S. Sugar 22 Corporation? 23 A. I believe so. 24 Q. Was it provided to members of Flo-Sun? 25 A. Yes, I believe so. 621 1 Q. Did they return these surveys? 2 A. Not to my knowledge. 3 Q. Were any surveys returned by any farmers? 4 A. Not to my knowledge. 5 MS. PONZOLI: Is it possible for me, 6 counsel, to get a copy of the survey that was 7 circulated to the farmers? 8 THE WITNESS: It's in the files. 9 MS. BIRCH: Yes. 10 MS. PONZOLI: I would like that provided 11 for me, please, as soon as possible. 12 BY MS. PONZOLI: 13 Q. What type of data did the farmers provide 14 to Dr. Johns? 15 A. General descriptive information of cropping 16 practices, cropping patterns, the general mode of 17 operations in the Everglades Aggricultural Area, 18 substantial background information on what they do in 19 the area and how they operate. 20 Q. Did the farmers provide her with debt 21 information? 22 A. Not to my knowledge, no. 23 Q. Do you have any other knowledge of the type 24 of economic information that Dr. Johns sought other 25 than what I have asked you? 622 1 A. I think your questions have been relatively 2 exhaustive in terms of the type of information she 3 was looking for. The survey form, I believe, covered 4 virtually the full span of information that she 5 desired. 6 Q. Thank you. 7 The other question that I have regards 8 when -- you recall when Mr. Earl questioned you 9 regarding meetings with Federal representatives? Do 10 you recall that line of questioning? 11 A. Yes, I do. 12 Q. All right. I would like to ask you in a 13 similar vein, similar to these meetings that you 14 listed with Federal representatives, myself included, 15 have you had meetings with representatives of the 16 sugar industry? 17 A. Yes. 18 Q. Can you tell me what types of meetings you 19 have had with representatives of the sugar industry? 20 A. I have had lunch with Mr. Parsons, 21 Mr. Rosendahl, other members of the industry. 22 Q. Such as? Mr. Wade? 23 A. Mr. Wade, yes. 24 Q. Otis Wragg? 25 A. I don't believe Mr. Wragg and I have ever 623 1 sat at the same table. 2 Q. Okay. Who else? 3 A. Let's see. What's his name? George Wilson 4 with the South Bay Growers. I have had several 5 conversations with him. Is that his name? 6 Q. How many times have you had lunch with 7 these individuals? 8 A. Oh, at least half a dozen times. 9 Q. Within what time frame? 10 A. Over the past year. 11 Q. Have you had other meetings other than just 12 sitting down to lunch with these members of the sugar 13 industry? 14 A. They have been in attendance at many of the 15 meetings in which I have participated. I can't think 16 of a specific incidence at the moment of another 17 meeting. 18 Q. Over the last year, you mean? 19 A. Over the last year, no, I can't. 20 Q. You have been with the District 17 years? 21 A. A little bit more than that, I believe. 22 19, 18. 23 Q. Okay. In the 18 to 19 years that you have 24 been with the District, do you have any estimate of 25 how many times you have met with representatives of 624 1 the sugar industry? 2 A. I expect it is in the hundreds. 3 Q. Okay. Is there any qualitative difference 4 between the meetings that you have had with the sugar 5 industry and the meetings that you have had with the 6 Federal representatives? 7 A. No. Our objective in this process, 8 particularly in the economic impact statement 9 process, has been, and my direction to staff and 10 contractors has been to talk to everybody who has an 11 interest in it, attempt to understand their 12 prospective, attempt to gain as much information as 13 possible from all the parties involved. So, as a 14 result of that, staff and our contractor have spent 15 considerable time both with the aggricultural 16 community and environmental community and nearly 17 anyone else who was willing to meet with us. I 18 believe our contractor in particular spent an 19 extensive amount of time with the accounting 20 contractor that the aggricultural industry hired to 21 assemble their data. I remember Grace telling me she 22 spent at least a full day reviewing all of her 23 assumptions, all of her processes with them. 24 Q. Who was that? 25 A. I think the firm is Peterson Consulting. 625 1 Q. So she met a day with Peterson Consulting? 2 A. Yes. 3 Q. Consultants, whatever. I don't know the 4 name. I'm sorry. And before she issued her report? 5 A. Yes, that is correct. 6 Q. And this was for the Florida Sugar Cane 7 League? 8 A. I believe they are the contractor to the 9 Sugar Cane League. 10 Q. How about the experts for the Florida Sugar 11 Cane Cooperative? 12 A. The co-op, I do not know whether Grace met 13 with Dr. Luke Leistritz. 14 Q. Has there been any quantitative difference 15 in the number of times you have met with 16 representatives of the sugar industry or 17 representatives of the Federal government? 18 A. Not that I can discern, no. 19 MS. PONZOLI: Okay. I have no further 20 questions. Thank you, Mr. Rhoads. 21 MR. EARL: Based on counsel's questions, I 22 have just a couple more. 23 REDIRECT (Peter Rhoads) 24 BY MR. EARL: 25 Q. The Hazen & Sawyer reports by Dr. Johns 626 1 that you talked about, sir -- 2 A. Yes. 3 Q. -- you told me that further analysis was 4 going to await until the optimal plan, May of '93, 5 when the optimal plan came out; is that correct? 6 MS. BIRCH: Objection to the form and a 7 mischaracterization, I think, of Mr. Rhoads' 8 testimony. 9 BY MR. EARL: 10 Q. What I heard you say was Grace Johns was 11 going to finish up some tasks on the existing 12 contract, which I think board commenced, asked for; 13 is that correct? 14 A. In part. 15 Q. Okay. Go on then. 16 A. Okay. Grace is also going to be asked to 17 refine methodology to attempt to accumulate 18 additional information and to go through a formal 19 peer review process so that when we do the update of 20 the economic impact evaluation, hopefully we can do 21 that with a clear understanding of the differences 22 between the various parties on how this ought to be 23 done. 24 Q. And am I correct in understanding the 25 update will be done after May of 1993, when the 627 1 optimal plan is presented to the board? 2 A. That is our current plan, yes. 3 Q. And you told me that project would be done 4 six to nine months after May of '93; is that correct? 5 MS. BIRCH: Asked and answered. 6 THE WITNESS: That was correct. 7 BY MR. EARL: 8 Q. All right. Counsel asked you a bunch of 9 questions about income tax and Dr. Johns was looking 10 for income tax information. Are you aware of any 11 other regulatory program the District has where they 12 require citizens of the State of Florida to submit 13 income tax information? 14 A. No. 15 MS. PONZOLI: Object to the form; require. 16 MS. BIRCH: Object to the form of the 17 question in terms -- it states Mr. Rhoads is 18 completely familiar with the entire regulatory 19 program and process of the District. Also this 20 is new ground, Mr. Earl. This could have been 21 covered on your direct of Mr. Rhoads. 22 MR. EARL: No, it is directly relevant, 23 triggered by counsel's questions and the 24 discussions of income tax. 25 MS. PONZOLI: You started the income tax 628 1 discussion, Mr. Earl, not I. 2 MR. EARL: And you expanded it, counsel. 3 THE WITNESS: To the extent I am familiar 4 with the program, no. 5 BY MR. EARL: 6 Q. Okay. Are you aware of any regulatory 7 program where the District has required or asked for 8 debt information from a citizen of the State of 9 Florida? 10 MS. BIRCH: Object to the relevancy. 11 THE WITNESS: No, I'm not. 12 BY MR. EARL: 13 Q. The work that Dr. Johns is doing is not a 14 part of the already approved SWIM plan, is it, sir? 15 A. When the board adopted the SWIM plan, their 16 statement was the Governing Board reenforces the 17 commitment to completing the economic impact 18 assessments and to minimize economic impacts to the 19 area. The commitment to completing the economic 20 impact statement, in my opinion, was a part of the 21 SWIM plan. 22 Q. Okay. But it is not going to be included 23 in the already approved draft of the SWIM plan, is 24 it? 25 A. The already approved draft of the SWIM plan 629 1 exists as it is. 2 Q. That is the one that is under challenge; is 3 that your understanding? 4 A. That is my understanding, yes. 5 Q. Just so it is on this portion of the 6 record, I'll ask you one thing just to clarify. You 7 are not an economist, are you, sir? 8 A. No, I'm not. 9 Q. And you are not an economic specialist who 10 can determine what information is needed, are you? 11 A. No, I'm not. 12 MR. EARL: Okay. No further questions. 13 (Witness excused.) 14 15 (Thereupon, at 6:10 p.m., 16 the deposition was concluded.) 630 1 C E R T I F I C A T E 2 3 The State of Florida ) County of Palm Beach. ) 4 5 I, Elaine V. Williams, Professional Reporter and Notary Public, State of Florida at 6 large, do hereby certify that Peter Rhoads was by me first duly sworn to testify the whole truth; that I 7 was authorized to and did report said deposition in stenotype; and that the foregoing pages, numbered 8 from 450 to 630, inclusive, are a true and correct transcription of my shorthand notes of said 9 deposition. 10 I further certify that the said deposition was taken at the time and place hereinabove set forth 11 and that the taking of said deposition was commenced and completed as hereinabove set out. 12 I further certify that I am not attorney or 13 counsel of any of the parties, nor am I a relative or employee of any attorney or counsel or party 14 connected with the action, nor am I financially interested in the action. 15 The foregoing certification of this 16 transcript does not apply to any reproduction of the same by any means unless under the direct control 17 and/or direction of the certifying reporter. 18 In witness whereof I have hereunto set my hand and seal this ____ day of_____________ 1992. 19 20 21 _______________________________ Elaine V. Williams, CP, CM 22 Notary Public, State of Florida at large. My commission expires 23 March 27, 1993. 631 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 20 632 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 SFWMD 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, levee & 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: