1 DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA

SUGAR CANE GROWERS COOPERATIVE )

3 OF FLORIDA; ROTH FARMS, INC.; and)

WEDGWORTH FARMS, INC., )

4 Petitioners, ) DOAH Case No.

vs. ) 92-3038

5 )

SOUTH FLORIDA WATER MANAGEMENT )

6 DISTRICT, an agency of the State )

of Florida; et al., )

7 Respondents. )

_________________________________

8 FLORIDA SUGAR CANE LEAGUE, INC..;)

UNITED STATES SUGAR CORPORATION; )

9 and NEW HOPE SOUTH, INC., )

Petitioners, ) DOAH Case No.

10 ) 92-3039

vs. )

11 )

SOUTH FLORIDA WATER MANAGEMENT )

12 DISTRICT, an agency of the State )

of Florida; et al., )

13 Respondents. )

_________________________________

14 FLORIDA FRUIT AND VEGETABLE )

ASSOCIATION; LEWIS POPE FARMS; )

15 W.E. SCHLECHTER & SONS, INC., )

and HUNDLEY FARMS, INC., )

16 Petitioners, ) DOAH Case No.

) 92-3040

17 vs. )

)

18 SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, an agency of the State )

19 of Florida; et al., )

Respondents. )

20 _________________________________

DEPOSITION OF HANLEY K. SMITH

21 Taken before Barbara Bolton,

Registered Professional Reporter and Notary

22 Public in and for the State of Florida at large,

pursuant to Notice of Taking Deposition filed in

23 the above cause.

- - -

24 Monday, March 1, 1993

319 Clematis Street

25 West Palm Beach, Florida

11:25 A.M. - 5:10 P.M.

1 - - -

APPEARANCES:

3 ON BEHALF OF THE PETITIONERS FLORIDA

SUGAR CANE LEAGUE, INC., UNITED STATES

4 SUGAR CORP., AND NEW SOUTH HOPE, INC.:

5 PEEPLES, EARL & BLANK, P.A.

ONE BISCAYNE TOWER, SUITE 3636

6 TWO SOUTH BISCAYNE BOULEVARD

MIAMI, FLORIDA 33131

7 BY: JONATHAN L. GAINES, ESQUIRE

ON BEHALF OF THE INTERVENOR, UNITED STATES OF

9 AMERICA, DEPARTMENT OF JUSTICE

10 DEPARTMENT OF JUSTICE

155 S. MIAMI AVENUE

11 MIAMI, FLORIDA 33130

BY: THOMAS A.W. FITZGERALD, ESQUIRE

Also present: Kim McNally, Paralegal

I N D E X

WITNESS DIRECT CROSS REDIRECT RECROSS

HANLEY K. SMITH

BY MR. EARL 4

1 E X H I B I T S

2 PLAINTIFF'S

NUMBER DESCRIPTION PAGE

1 CURRICULUM VITAE OF HANLEY K.

4 SMITH 55

5 2 DOCUMENT DATED NOVEMBER, '92 LISTING

PROJECT NAME DESCRIPTION AND NEPA

6 DOCUMENTATION 55

7 3 NOTICE OF TAKING DEPOSITION DUCES

TECUM 97

8 4 NOTICE OF TAKING DEPOSITION (DUCES

TECUM) 98

5 RESPONSES TO REQUEST FOR

10 PRODUCTION 104

11 6 RECORD OF DECISION MODIFIED WATER

DELIVERIES TO EVERGLADES NATIONAL

12 PARK, DADE COUNTY, FLORIDA 182

13 7 ANSWERS TO INTERROGATORIES 182

14 8 RESPONSES TO PUBLIC COMMENTS ON

THE GDM AND FEIS - MODIFIED WATER

15 DELIVERIES TO EVERGLADES NATIONAL

PARK 182

9 APPLICATION FOR STORMWATER MANAGEMENT

17 PERMIT 182

18 10 LETTER DATED JULY 1, 1992 TO CAROL

BROWNER FROM RICHARD E. BONNER WITH

19 ATTACHMENTS 183

20 11 FINAL EIS AND GDM FOR THE MODIFIED

WATER DELIVERIES TO EVERGLADES

21 NATIONAL PARK 184

1 - - -

2 P R O C E E D I N G S

3 - - -

4 THEREUPON,

5 HANLEY K. SMITH,

6 being by the undersigned Notary Public first duly

7 sworn, was examined and testified as follows:

8 THE WITNESS: I do.

9 DIRECT EXAMINATION

10 BY MR. EARL:

11 Q. Would you please state your name,

12 sir.

13 A. My name is Hanley K. Smith.

14 Q. Okay. And what is your address, Mr.

15 Smith?

16 A. My office address?

17 Q. Your residence.

18 A. 5430 Woodwind Terrace, Jacksonville,

19 Florida 33211.

20 Q. And it's Dr. Smith, I believe. You

21 have a Ph.D.?

22 A. Yes.

23 Q. And what is your Ph.D. in, sir?

24 A. Wildlife Biology.

25 Q. Dr. Smith, my name is Bill Earl and

1 I'm representing the Florida Sugar Cane League in

2 this case which involves challenges to the South

3 Florida Water Management District's Everglades

4 SWIM Plan as well as the proposed DER permit. I

5 would ask if at any time you don't understand my

6 questions, would you please ask me to clarify

7 them?

8 A. Sure.

9 Q. Thank you. What is your occupation

10 or profession, sir?

11 A. I'm a biologist and I am Chief of

12 the Environmental Branch at Jacksonville District

13 Corps of Engineers.

14 Q. Is that the Environmental Resources

15 Branch, the full name?

16 A. No, it's the Environmental Branch.

17 We changed the name about a month -- about six

18 months ago.

19 Q. What is the significance of changing

20 the name?

21 A. Personal preference. I never

22 understood what environmental resources were.

23 Q. Would you describe for me your

24 education starting with undergraduate work.

25 A. I have a Bachelor's degree in

1 Zoology from Tulane University, a Master's in

2 Wildlife Science from Texas A&M and a Ph.D. in

3 Fisheries and Wildlife from Michigan State

4 University.

5 Q. The Michigan State Ph.D. was in

6 specifically what?

7 A. Fisheries and Wildlife. And I

8 consider myself a wildlife biologist.

9 MR. FITZGERALD: Mr. Earl, your

10 notice asked for a CV on Mr. Smith. Here is a --

11 BY MR. EARL:

12 Q. Okay. Counsel has handed me a CV.

13 Is this -- when was this prepared, sir?

14 A. About a week ago.

15 Q. You prepared it just for this

16 deposition?

17 A. Yes. I prepared it in response

18 to -- I've had several requests in the last

19 couple of months -- I think in response to the

20 interrogatory, but I'm not sure. But it was for

21 this matter.

22 Q. This was prepared at the request of

23 counsel for the Justice Department, this CV?

24 A. I think it was prepared in response

25 to one of your requests on interrogatory.

1 Q. I'm just asking you who asked you to

2 prepare it.

3 A. Oh, Justice.

4 Q. Do you have another CV or resume in

5 your files that you use for other purposes?

6 A. This is the most updated. I have

7 one that I prepared about five years ago when I

8 last changed jobs.

9 Q. And does this CV accurately state

10 your professional experience and qualifications?

11 A. Yes.

12 Q. And as I understand from your CV,

13 you got your Bachelor's degree from Tulane in

14 '63. Is that correct?

15 A. Yes, sir.

16 Q. And the Master's from Texas A&M in

17 '66. Correct?

18 A. Yes.

19 Q. And your Ph.D. from MSU in 1971.

20 A. Correct.

21 Q. What is a Certified Wildlife

22 Biologist, Dr. Smith?

23 A. The Biologists Society has two

24 levels of certification, Certified Wildlife

25 Biologist and Associate, and it is the highest

1 level of certification.

2 Q. And the professional organization

3 doing the certification is the Wildlife --

4 A. The Wildlife Society.

5 Q. Where is that headquartered?

6 A. Washington, D.C. Actually they're

7 in Bethesda now. They just moved.

8 Q. What are the requirements for being

9 certified?

10 A. Gee, it's been a long time since I

11 went through it. Basically certification

12 requires a number of years practical experience

13 plus educational level of such and so. It gets

14 stricter and stricter as the years go by. I

15 haven't paid attention to what the recent

16 certification requires.

17 Q. What was it when you were certified

18 as you recall?

19 A. I was grandfathered in.

20 Q. Grandfathered? Okay. And that

21 would have been about when?

22 A. Probably around '75, '76.

23 Q. Now, after your Ph.D. do you have

24 any post-graduate courses, work, study?

25 A. No, I was not a post-doc. I've

1 taken occasional courses.

2 Q. What courses have you taken since,

3 professional courses?

4 A. I took Stream Ecology in, oh, 1970,

5 I guess, at an institution in Saint Louis whose

6 name I've forgotten, probably University of

7 Missouri at Saint Louis. I've taken Wetlands, a

8 course offered by Louisiana State University.

9 Q. When was that, sir?

10 A. 1985, I would guess.

11 Q. How long a course was that?

12 A. It was a three-credit course.

13 Q. That was over a summer or how was

14 that?

15 A. It was offered at the -- I worked at

16 a research institution and it was offered at the

17 institution. The professors would drive up to

18 Vicksburg and teach it.

19 Q. You were at the Waterways Experiment

20 Station?

21 A. Right.

22 Q. Who were your professors in that

23 course if you recall?

24 A. Jim Gosselink.

25 Q. William Patrick, was he one of your

1 professors?

2 A. No.

3 Q. Okay. Any other courses?

4 A. I'm sure there have been, but I

5 don't -- none that jump out.

6 Q. Okay.

7 A. I took wetlands -- yes, I have taken

8 some wetlands plant courses.

9 Q. Whereabouts, sir?

10 A. Again, at Vicksburg at the Waterways

11 Experiment Station.

12 Q. This was a government-sponsored

13 course?

14 A. We hired a professor from

15 Mississippi State to teach it, so I guess in that

16 sense it was government-sponsored.

17 Q. The purpose of that course was to

18 identify --

19 A. Was to teach a number of people who

20 were doing wetland delineations, wetland plants

21 at a senior level.

22 Q. Any other courses you recall?

23 A. I don't recall any right off the top

24 of my head.

25 Q. Have you taken any EPA or any other

1 federally-sponsored programs, seminars, courses?

2 A. Oh, yes.

3 Q. Over the last five years as it

4 relates to Everglades ecology which such courses

5 have you taken?

6 A. I don't think any. I don't recall

7 any courses that related to Everglades ecology.

8 Q. Everglades wildlife?

9 A. No.

10 Q. I know it's on the paper here.

11 Would you describe for me your work progress and

12 positions held through the Corps of Engineers?

13 Am I correct in understanding that the Army Corps

14 of Engineers is the only employer you've had?

15 A. With the exception of peripherally

16 related jobs. I worked for museums as a

17 collector and that's not on there. I worked a

18 zookeeper, and I worked as a research fellow

19 during my graduate studies, but those aren't

20 really -- those provide -- those are the kind of

21 jobs that provide you enough money to live in a

22 dorm.

23 Q. Any of that work have any

24 relationship to everglades ecology or wildlife?

25 A. It's all biologically related but it

1 is not specifically related to the everglades.

2 Q. What was your first professional

3 position with the Corps of Engineers?

4 A. I was a biologist with the Corps of

5 Engineers in Saint Louis in the beginning of

6 1969. That position was basically I arrived the

7 same time that the National Environmental Policy

8 Act arrived. The Corps was beginning to realize

9 that environmental issues were something that

10 they would have to pay some attention to, and

11 they hired a biologist. I was the first in the

12 District and -- I built that up for four years

13 into a section of seven, eight, nine people

14 probably, perhaps not that many. Basically did

15 environmental impact statements. Is that

16 sufficient detail for --

17 Q. Yes, thank you. That's helpful.

18 A. I then went to the Waterways

19 Experiment Station.

20 Q. When was that, what year?

21 A. 1974. And became manager of a

22 program -- of a project relating to using dredged

23 material, material dredged out of the nation's

24 waterways in biologically productive ways. An

25 example would be we studied these islands along

1 the intracoastal waterway as bird nesting

2 habitat. We built marshes out of dredged

3 material, that sort of thing. This was a fairly

4 large program, a little over nine million

5 dollars, a five-year program.

6 Q. You worked on that exclusively?

7 A. I was the manager of that project.

8 Q. From 1974 through --

9 A. About 1979 the project was over.

10 Q. Did you have other responsibilities

11 in that job?

12 A. The Corps was getting into Section

13 404 wetland delineations in a fairly major way at

14 that time. Because of my background I oversaw

15 most of the Corps' activities from a research

16 standpoint. But that was really peripheral. My

17 main job was to get this other program completed.

18 Q. You say you oversaw most of the

19 Corps' 404 research activities?

20 A. Right.

21 Q. Those are centered at Vicksburg?

22 A. Yes, they were then and they are

23 now.

24 Q. Okay. What is Vicksburg? Is that a

25 research center for the Corps?

1 A. The Corps has four research centers,

2 Vicksburg -- Waterways Experiment Station at

3 Vicksburg is the largest of the four. It's an

4 institution of about 1,400 people.

5 Q. And does that do the wetlands

6 research?

7 A. Yes, probably 25 or 30 people of the

8 1,400, there's a fairly small effort.

9 Q. And what was your next position with

10 the Corps?

11 A. My next position was chief of a

12 group, we call it group rather than branches.

13 Branch is a more typical delineation for this

14 supervisory level in the Corps of Engineers. I

15 was the supervisor of a group that did aquatic

16 plant control, biological control of aquatic

17 plants, wetland research, continued dredged

18 material research, wildlife biology and

19 restoration of habitat. And I was a supervisor

20 here, not a bench scientist.

21 Q. What was the section called, that

22 group, I'm sorry?

23 A. Wetlands and Terrestrial Habitat,

24 Wetlands and Terrestrial Habitat Group.

25 Q. And when did you start and how long

1 did you hold that position, sir?

2 A. I think that position started about

3 1978 and I held it until 1988. The position also

4 involved a fair amount of teaching which I left

5 out which I did.

6 Q. In '78?

7 A. Yes.

8 Q. It involved teaching. What sort of

9 teaching did you do?

10 A. I taught wetland restoration.

11 Q. To whom did you teach it?

12 A. Mostly to Corps of Engineers, Fish

13 and Wildlife, EPA people and I taught wetland

14 delineation.

15 Q. Any other functions you performed

16 during this period?

17 A. Let me glance at my notes here.

18 Erosion control of vegetation was a major aspect

19 of the work as well using vegetation to stabilize

20 shorelines.

21 Q. Okay. What position did you next

22 hold with the Corps?

23 A. In Jacksonville I came here in 1988

24 to head the at that time the Environmental

25 Resources Branch, now Environmental Branch. That

1 position involves -- it has many -- it is a

2 position that operates in many layers. It is a

3 primary environmental advisor to the District

4 Engineer, and I'm primarily environmental

5 interface with the state, with other federal

6 agencies, with private sector on environmental

7 matters. To be quite honest, that is in many

8 ways a figurehead position because we have

9 perhaps 150 to 200 contacts with the other

10 communities, other environmental communities, and

11 I obviously can't participate in all of them.

12 Most of our participation, most of our networking

13 is done by people who work for me. I participate

14 in those that are major issues. I also supervise

15 three subordinate supervisors.

16 Q. Who are they and what do they do?

17 A. Two of the supervisors do basically

18 environmental impact statements, environmental

19 planning in biology, in archeology and in

20 historic resources. One of those sections

21 concentrates on coastal activities and the other

22 section concentrates on flood control and work in

23 Puerto Rico and the Virgin Islands.

24 Q. I lost you when you told me that two

25 of your subordinates work on EIS?

1 A. They're broken down. One of the

2 groups concentrates on coastal activities, beach

3 nourishment and that sort of thing. The other

4 group works on flood control which includes the

5 C&SF, and in addition they are -- about half of

6 their work is in Puerto Rico and the Virgin

7 Islands.

8 Q. Who is that individual who works on

9 the flood control?

10 A. Elmar Kurzbach, E-l-m-a-r

11 K-u-r-z-b-a-c-h.

12 Q. And who is the third subordinate,

13 sir?

14 A. James McAdams. And Jim is an

15 environmental engineer, works primarily with

16 hazardous and toxic wastes, conducts the water

17 quality program for the District, does water

18 quality certification for the District. He's the

19 individual that's applying for the permits for

20 the S-10's, 11's and 12's. Jim is also our

21 representative on the -- he's an alternate on the

22 TOC.

23 Q. Okay. And Mr. Hilton is the primary

24 representative on the TOC?

25 A. Is it Mr. Hilton or Mr. Vearil?

1 Q. Do you know?

2 A. I thought it was Vearil. Vearil

3 works for Hilton. I'm not sure whether that's

4 interchangeable amongst the two or not. I've

5 only been to one TOC.

6 Q. What other functions does your

7 branch perform?

8 A. I think, Mr. Earl, we've covered

9 them all in a very general way. In the last six

10 months a great deal of our work has been

11 Hurricane Andrew cleanup, the environmental

12 aspects of that. Perhaps four or five people are

13 dedicated to that.

14 Q. Do your responsibilities, Dr. Smith,

15 require you to be familiar with the need for

16 process as it's conducted by the Jacksonville

17 District?

18 A. Yes.

19 Q. Do your responsibilities require you

20 to be familiar with the environmental assessment

21 process and the status of various assessments or

22 impact studies being done by the Jacksonville

23 District?

24 A. They require me to have access to

25 the necessary information should a question

1 arise. I work on well over 400 different

2 projects.

3 Q. I understand.

4 A. And I don't have recall on each

5 project but I can find out quickly the status. I

6 am ultimately responsible but not necessarily

7 immediately aware of every project that we're

8 doing.

9 Q. You would be familiar with

10 significant environmental assessments being

11 done.

12 A. I hope so.

13 Q. And you are the individual, as I

14 understand it, to whom the District Engineer

15 would turn if he wanted to know the status of a

16 project.

17 A. Yes.

18 Q. Are you also required to be familiar

19 in your job with outside contractor studies being

20 conducted by the Jacksonville District as they

21 relate to environmental impacts?

22 A. I might or might not know the detail

23 of a contract. I certainly should know of any

24 contract underway that deals with environmental

25 studies in the District, but the specific detail

1 of how many task orders or who's working on what

2 from a firm, I may or may not know. It would

3 depend on how recently it was brought to my

4 attention. I depend on subordinate supervisors

5 to deal with those kinds of details.

6 Q. Who would be, with regards to

7 Central and Southern Florida Flood Control

8 Project, environmental contracts to third

9 parties, who in your shop would be the most

10 knowledgable?

11 A. Elmar Kurzbach is the first line

12 supervisor. And there would be half a dozen

13 people who deal with these contracts that would

14 be more intimately involved with each of them.

15 Q. Have your responsibilities from time

16 to time required you to inquire or review the

17 status or suggest nutrient studies as they relate

18 to the Central and Southern Florida Flood Control

19 Project?

20 A. No. I have never suggested a

21 nutrient study per se. We are conducting -- we

22 as part of our routine activities conduct two

23 types of nutrient studies in the C&SF.

24 Q. What are those, sir?

25 A. The Corps requires that we monitor

1 and be aware of the chemical status, water

2 quality status of any of our impoundments. As a

3 consequence we have I think fifty stations

4 scattered throughout the C&SF. We monitor what's

5 called field parameters. Field parameters are

6 temperature, turbidity, dissolved oxygen as well

7 as heavy metals and nutrients. I think we

8 measure those in about fifty stations and they're

9 scattered pretty well throughout the system, but

10 they are primarily at outflow points from areas

11 where water is in some way impounded. For

12 example, we would have stations at DS-10's,

13 DS-11's, DS-12's, stations around the Lake

14 Okeechobee outflow points, stations in the inflow

15 and outflow on the Kissimmee.

16 Q. And who collects that information

17 for you, sir?

18 A. Our office in Clewiston.

19 Q. When did this particular study

20 process start?

21 A. Long before I got here. It is a

22 part of the Corps of Engineers' water quality

23 program. It's a requirement that we keep tabs on

24 what it is we're doing. The program is primarily

25 designed for reservoirs. We've adopted it to the

1 situation in South Florida which of course does

2 not involve reservoirs in the formal sense.

3 Q. Have there been any modifications to

4 this program in the last two to three years?

5 A. No. We've --

6 Q. Excuse me, go ahead.

7 A. There is another aspect to the

8 program and that is the Everglades Memorandum of

9 Agreement which is separate, a memorandum that

10 was entered into before my time, I think about

11 ten years ago, between the Park and the Water

12 Management District and the Corps to collect data

13 at inflow points to the Park. And we collect at

14 the L-67 canal, we collect down at the inflow

15 points to Taylor Slough and there's a station

16 just west of -- just north of 41, west of Water

17 Conservation Area 3, the same kind of data that

18 we collect for, the typical sweep, nutrients and

19 heavy metals, and this information is shared with

20 the Park and with the Water Management District.

21 They also collect information and share it with

22 us.

23 Q. What do you refer -- have you got a

24 name for the basic study you talked about, the

25 fifty stations? When you want to talk about it,

1 is there a name for it?

2 A. The Corps of Engineers' Water

3 Quality Program. The other way we refer to it is

4 the MOA.

5 Q. And who collects the MOA data

6 nowadays?

7 A. They're collected by our personnel

8 in our Clewiston office.

9 Q. Clewiston? Who's responsible for

10 that in Clewiston?

11 A. I can't think of the man's name.

12 Q. Who in your shop is responsible for

13 the collection of that data?

14 A. James McAdams.

15 Q. Any other water quality programs,

16 collection programs under your auspices in your

17 shop?

18 A. We collect data outside of the

19 C&SF. I don't know if that's of interest to you.

20 Q. No, sir.

21 A. No, none that spring to mind. Of

22 course there would be water quality data

23 collected at construction sites if there was

24 turbidity or if there was excess silt releases of

25 this sort. Within any contract for construction

1 there are specific environmental criteria, and

2 sometimes those require a monitoring program.

3 Those are very specific to that construction.

4 Q. You said a little while ago, Dr.

5 Smith, you "never suggested nutrient studies per

6 se." What have you suggested with regard to

7 nutrient studies or involving nutrient studies?

8 A. The two water quality programs that

9 I discussed I have never -- I do not recall ever

10 having proposed any others.

11 Q. You've never suggested a white paper

12 on nutrient and heavy metals analysis?

13 A. I might have. When we first started

14 this, I was in favor of that, when we first

15 started into any concern over the cattails back

16 in '89. I was in favor of an independent

17 analysis. I was going to have it conducted by

18 Waterways Experiment Station. I don't believe it

19 ever got beyond the talking stage. I don't think

20 it ever got into a memorandum format. And at

21 that time the Park and the Refuge started very

22 serious and earnest discussions about the same

23 thing, and I felt that that would be an overlap.

24 Q. You say you might have. Now that

25 you think about it, did you in fact recommend the

1 study of the nutrients and heavy metals?

2 A. I did not formally recommend such a

3 study to my knowledge.

4 Q. You don't recall writing any

5 memorandums about that?

6 A. I do not recall that.

7 Q. You say you favored an independent

8 analysis. Why did you favor an independent

9 analysis?

10 A. Because there was information coming

11 to us from the sugar industry, there was

12 information coming from the Park, from the Water

13 Management District, and it was not -- it was

14 all -- it all was slightly different. And I

15 thought to myself it would be only a worthwhile

16 thing to have a -- we did not have an expert per

17 se on our staff that was capable of making this

18 independent analysis.

19 Q. Do you now have someone?

20 A. No.

21 Q. Did you receive any indications of

22 or any other indications of -- were you

23 discouraged in any way from undertaking such a

24 study by the Department of Justice?

25 A. No.

1 Q. Did you have any conversations about

2 such a study with the Department of Justice?

3 A. I don't recall. I don't believe I

4 did.

5 Q. Did any of your superiors or any

6 other federal agencies discourage you from

7 undertaking an independent study?

8 A. No. Had I -- the independent study

9 I had in mind would have been basically people

10 coming in and looking at the data and report to

11 us. I wouldn't -- rather than -- I would not

12 have shared this necessarily with the rest of the

13 world. I realize it would have been discovered

14 had we done it, but at that time I didn't realize

15 that.

16 Q. And you in fact had conversations

17 with people at the University of Florida

18 regarding a proposed sabbatical regarding such

19 work, did you not?

20 A. Yeah.

21 Q. Who did you talk to over there, sir?

22 A. Let me roll back the tapes here and

23 think. At about this time I recognized and my

24 supervisors recognized we were getting into water

25 quality issues that we were not capable of

1 handling in-house, and we were forced to depend

2 on what other agencies were telling us without

3 being able to independently verify it. And that

4 was a concern. There were hiring restrictions,

5 as I recall. An alternate way of getting such

6 information when there are hiring restrictions is

7 to contract a study or to go through a process

8 called IPA which is Inter-governmental Personnel

9 Agreement. That's a simple contract with the

10 university that basically says we'll pay this

11 individual's salary, he'll come to work for us on

12 this issue. And I did talk with I think with Bud

13 Viesman at the University of Florida and others,

14 but we were unable to find anybody who would take

15 the position. I also talked with, now that I'm

16 recalling this, with individuals from the

17 Waterways Experiment Station who were interested

18 but frankly I felt had their own agenda.

19 Q. What was that agenda?

20 A. Develop more research.

21 Q. More research?

22 A. They weren't interested in coming

23 and looking at the data and reporting. They were

24 interested in coming and developing a research

25 program which is a very typical thing for

1 researchers to do.

2 Q. Any other discussions or attempts to

3 do an independent study?

4 A. Well, now that you've recalled one

5 that I didn't remember, I better think for a

6 second. I advertised for a -- I actually

7 advertised for a water quality type, but I don't

8 think I got -- I didn't get any takers that I

9 recall, at least no one that I felt was

10 qualified. In the Corps system I sent a letter

11 out or note out on what's called Corpsmail, it's

12 electronic mail saying we've got this problem

13 that if you're interested, let me know, if you'd

14 like to come to Jacksonville for six months and

15 work on this.

16 Q. No responses?

17 A. If there were responses, they

18 weren't what I was looking for. I don't recall a

19 response. I want you to keep in mind that we're

20 talking about a project in which I spent fifteen

21 percent of my time four years ago.

22 Q. You say fifteen percent of your time

23 four years ago. The Central and Southern project

24 is fifteen percent of your time?

25 A. It's roughly fifteen to twenty

1 percent if that.

2 Q. Okay, sir. Any other attempts to

3 undertake an independent analysis or study of the

4 nutrient or heavy metals situation in the Central

5 and Southern project?

6 A. We have participated in the Mercury

7 Task Force for several years. The Mercury Task

8 Force has existed in one form or another for

9 quite some time. I know there was no attempt,

10 though, at that study -- our purpose in

11 participating is simply to, realizing that

12 mercury is a problem, keep our hand in so we

13 understand what the latest direction is going to

14 be on the mercury issue. I think that involves

15 somebody going to a meeting a couple of times a

16 year and they report back to me on what was

17 discussed.

18 Q. You're talking about the State of

19 Florida DER?

20 A. Yes, but that's been a while in

21 evolving. There's always, at least as long as

22 I've been here, there's been a -- there has been

23 a progenitor that led to the State of Florida and

24 now they have an EPA South Florida initiative,

25 and it seems to be blending with the State of

1 Florida effort. It's not a, in my mind at least,

2 a well-defined committee.

3 Q. Who on your staff participates in

4 that Mercury Task Force?

5 A. Robert Pennington.

6 Q. Other than that general attendance,

7 has your office or the District in any other way

8 commissioned or undertaken any analysis on the

9 mercury issues as it relates to the Central and

10 Southern Project?

11 A. In the Miami River we have but I

12 don't think that's a -- and that is technically

13 part of the C&SF, at least for the last mile of

14 it. I don't know if that's of concern here.

15 Mercury was an element that we exceeded the state

16 standard on and had concerns to dredge the Miami

17 River. Having exceeded that standard and EPA

18 standards for ocean disposal of dredged material,

19 mercury was a concern.

20 Q. Was there a study done?

21 A. We've had numerous studies in water

22 -- on chemical sediment analysis of the Miami

23 River.

24 Q. Was there an environmental impact

25 statement done on that, either the dredging or

1 the disposal of the dredged material?

2 A. I believe there was an environmental

3 statement done a few years ago before I got here,

4 and there's presently an environmental statement

5 being prepared for the disposal of -- for the

6 dredging and disposal of material in the Miami

7 River.

8 Q. And does that include analysis of

9 mercury, heavy metals?

10 A. Oh, yes.

11 Q. Is there a draft EIS out on it?

12 A. The EIS was done in stages. We were

13 unable to define an alternative for the disposal

14 because the EPA had told us you're not going to

15 be able to put this in the ocean. So

16 consequently we had all this material and no

17 place to do it. DERM, Dade Environmental

18 Resource Management, undertook a study to

19 determine disposal alternatives, and they

20 determined that they can run it through a

21 treatment plant and dispose of it on Virginia

22 Key. So now we have an alternative or that

23 phase -- the environmental impact study was being

24 prepared under that contract. We are in the

25 phase under that contract now where we can go to

1 the contractor and say here are the alternatives,

2 let's finish off this environmental impact study.

3 Q. So nothing has -- there's been no

4 notice in the Federal Register other than what,

5 what has been noticed on this?

6 A. Certainly it has been noticed that

7 there will be an environmental impact statement

8 for the maintenance dredging of the Miami River.

9 Q. What other documents exist, publicly

10 available documents on this?

11 A. There was a feasibility report done

12 four years or so ago on dredging of the Miami

13 River which was forwarded to our headquarters and

14 subsequently not approved and not approved

15 primarily because we didn't have an alternative

16 that Washington felt we could sell for disposal

17 of dredged material. And there was also some

18 question at a policy level as to whether or not

19 disposable dredged material for purely

20 environmental purposes, dredging for purely

21 environmental purposes was questioned whether or

22 not that we were authorized as an agency to do

23 that. We apparently have overcome that hurdle.

24 Q. Other than the Miami River EIS

25 process, has the -- your office or the

1 Jacksonville District to your knowledge done any

2 analysis or any studies or any reports on mercury

3 as it relates to the Central and Southern

4 project?

5 A. There may have been some analysis in

6 the C-51.

7 Q. The C-51 EIS?

8 A. Yes, which was released I believe

9 last summer. Water quality is certainly an

10 issue. I mean that's the issue that basically is

11 killing the project.

12 Q. Do I understand that a final EIS was

13 done on C-51 but that is now on hold pending

14 some --

15 A. A final EIS was done, and it was

16 distributed but never filed because we got to

17 that stage and realized we didn't really have a

18 feasible project without the water quality issue

19 being solved. And it was tied in with a water

20 quantity issue as well as a real estate issue as

21 well as -- I'm sure in this area you may be more

22 aware of the local issues on C-51 than I am, but

23 there were many.

24 Q. Where is that process going in

25 relation to C-51 right now?

1 A. There is a group that's meeting, as

2 a matter of fact, they're meeting this morning,

3 they meet monthly to discuss alternatives for

4 C-51. That alternative -- that project is going

5 to have to be designed in a way that does not

6 lose water to the system. I think what you're

7 going to see is a holding area of some sort and

8 if water is -- stormwater is pumped from that

9 holding area into clean -- into the Loxahatchee

10 or pumped over to one of the STA's, there will be

11 some sort of permutation, rather than wasting the

12 water to the estuary.

13 Q. Who from your shop is on that

14 committee?

15 A. William Fonferek.

16 Q. Would you spell that?

17 A. F-o-n-f-e-r-e-k.

18 Q. Is there a time line on the

19 alternative development process?

20 A. I don't believe.

21 Q. Other than the Miami River and the

22 C-51, is any work being done by the District or

23 has it been done?

24 A. I'm going to have to sort of review

25 the -- we have water quality studies -- let me --

1 rather than listing them, just let me review it

2 and go through and you can stop me and say I'm

3 interested in that. We have water quality

4 studies that deal with primarily salinity at the

5 water interface of C-111 canal and Florida Bay.

6 We have water quality studies which we are

7 monitoring being conducted by Everglades National

8 Park around what's known as the eight and a half

9 square mile area. Does that ring a bell to you

10 all? Eight and a half square mile area, it's a

11 residential area along --

12 Q. East Everglades?

13 A. East Everglades. The concern there

14 is whether contaminants from the residential and

15 agricultural pursuits within the eight and a half

16 square mile area could enter the East

17 Everglades. Going further north, I don't think

18 so. I think what I'm basically saying here is

19 that we have a very limited water quality program

20 beyond that which you've already described, the

21 MOA and the Corps of Engineers' water quality

22 program.

23 Q. Is mercury an issue in the C-111

24 Florida Bay study?

25 A. It is not a major issue in the

1 study.

2 Q. Salinity is the primary issue?

3 A. Salinity is the issue. Mercury is a

4 problem there but it is not an issue.

5 Q. Why is mercury a problem there?

6 A. Mercury is a problem throughout the

7 Southern Everglades primarily because it's being

8 concentrated in fish and picked up by raccoons

9 and eaten by panthers and killed them.

10 Q. People get some of that, too, don't

11 they?

12 A. I wouldn't eat the fish out of

13 there.

14 Q. To your knowledge the Corps is doing

15 no studies whatsoever and has done no studies

16 whatsoever on the mercury problems caused by the

17 depths of the Central and Southern Project

18 canals?

19 A. To my knowledge they have not.

20 Q. Are you aware of any research being

21 conducted regarding the mercury problems to be

22 caused or which may be caused by the construction

23 of stormwater treatment areas?

24 A. No.

25 Q. Are you aware of any studies

1 relating to the construction -- of any water

2 quality problems that may be caused by the

3 construction of stormwater treatment areas?

4 A. I'm aware there's concern about

5 water quantity as a result of the storm water

6 treatment areas, but I do not believe the Corps

7 has analyzed that thoroughly. There is an

8 estimate that a certain amount of water will be

9 lost as a result.

10 Q. They haven't analyzed it

11 thoroughly. How has the Corps, Jacksonville

12 District, analyzed it? What analysis has been

13 done?

14 A. I don't know. This would not be

15 done in my shop, and other than being aware that

16 they're concerned with it, I don't know what

17 the --

18 Q. You've never seen any analysis of

19 it?

20 A. No.

21 Q. Whose shop would that be done in?

22 A. It would be Ron Hilton.

23 Q. Okay. You mentioned water quantity

24 problems.

25 A. Let me -- I am aware of a concern

1 with water quality in the STA's that deals with

2 parasites in wading birds, preliminary studies

3 done by University of Florida.

4 Q. Who has done that study?

5 A. Wiley Kitchens.

6 Q. Has that been provided to you, that

7 study?

8 A. In a draft form. I don't know that

9 I have -- I don't recall whether it was provided

10 or I just simply overheard a seminar.

11 Q. To the best of your recollection you

12 have not received a draft from Dr. Kitchens?

13 A. To the best of my recollection.

14 Q. But you could have.

15 A. Could have.

16 Q. What is the parasite problem caused

17 by STA's?

18 A. I believe it's nematodes and I

19 believe it's -- as I recall, Dr. Kitchens's

20 explanation, the higher nutrients in the STA's

21 were facilitating the transfer of parasites.

22 Q. What mechanism is that as you

23 understand it?

24 A. I'm trying to remember my basic

25 parasitology, but it's thirty years ago. I don't

1 recall it. I don't know the mechanism by which

2 nematodes become parasites in birds.

3 Q. Do wading birds ingest nematodes

4 directly? Do they eat them?

5 A. It would be either that or they

6 would burrow in through the skin. I have not

7 heard anything more about this in two or three

8 years. It may have been simply worked out as a

9 problem.

10 Q. Two or three years ago?

11 A. Yes. In high nutrient areas -- high

12 nutrient wetlands around the Loxahatchee, this

13 was determined to be a problem, and it was

14 projected that the STA's would be high nutrient

15 areas, and as a consequence you'd see -- when you

16 go out to these areas you see a lot of birds. If

17 this is the case, it's a problem.

18 Q. You're talking about in the water

19 conservation area, are you talking about the

20 southern area? The water conservation area in

21 the pool in the south?

22 A. No, I'm talking about, this, as I

23 understand it and as I recall, was observed this

24 increased parasites was observed in areas where

25 there was standing water, high nutrient standing

1 water I believe in association with the

2 agricultural practices that it attracted wading

3 birds. Then the concern was, well, we're going

4 to have these 30,000 acres of standing water with

5 the high nutrients, maybe that will be a problem.

6 Q. Other than that, are you familiar

7 with any water quality studies regarding the

8 potential adverse water quality effects of the

9 STA's?

10 A. No.

11 Q. What, if any, work by Dr. Ron Jones

12 of FIU are you familiar with with regard to

13 mercury?

14 A. None with regard to mercury.

15 Q. To your knowledge does the Corps

16 have any contracts with outside vendors or

17 contractors to analyze mercury in relation to the

18 Central and Southern Florida Project?

19 A. Other than it is an element which we

20 analyze in our MOA and for which we analyze in

21 our water quality studies and which shows up in

22 any analysis that you do of water quality, there

23 is no specific study designed to identify

24 mercury.

25 Q. Are there any specific contracts or

1 ongoing projects now out of the Jacksonville

2 District with third party contractors in which

3 the analysis of mercury is an issue if not the

4 issue?

5 A. Not to my knowledge.

6 Q. Would you be aware of such a study?

7 A. I should be. Things have happened

8 that I'm not aware of but --

9 Q. Are there any -- same question,

10 outside contractors ongoing, in which nutrients,

11 the analysis of nutrients or the impact of

12 nutrients in the Central and Southern Project is

13 an issue?

14 A. Not to my knowledge.

15 Q. Okay, sir. The same question again,

16 sir. Do you have any ongoing studies with

17 contractors in which the impact of hydroperiod on

18 vegetation or the Everglades ecology is an issue?

19 A. No.

20 Q. What outstanding contracts are there

21 at the present time which relate in any way to

22 Everglades ecology within the Central and

23 Southern Project area?

24 A. What do you consider a contract?

25 Q. Any sort of work undertaken by

1 outside interests, entities, universities,

2 Tropical BioResearch, consulting firms such as

3 Tropical BioResearch or any other such

4 organizations.

5 A. Would you state the question once

6 again.

7 Q. What work is ongoing by third party

8 contractors, consultants, university personnel

9 regarding any components of Everglades ecology as

10 it relates to the Central and Southern Project?

11 A. Let me start with work that I'm not

12 familiar with and that is work on melaleuca

13 control, control of aquatic plants, water lettuce

14 and hydrilla. We have ongoing work that has been

15 going on for a number of years with the USDA and

16 with numerous academic institutions into control

17 of nuisance plants with the emphasis being placed

18 on biological agents. Now, those are studies

19 that I'm aware they're going on. I don't have

20 anything to do with them and don't pay much

21 attention to them.

22 Q. Who does -- who is responsible for

23 those studies?

24 A. Dr. William Zattou, Z-a-t-t-o-u.

25 He's in the Corps of Engineers office, just not

1 in my office.

2 Q. He's in the Jacksonville office?

3 A. Yes.

4 Q. To your knowledge are there any --

5 at present are there any, either by the project

6 sponsor, Fish and Wildlife, Corps personnel or

7 third party contractors, is there any application

8 of herbicides going on in Water Conservation Area

9 1, 2 or 3 right now?

10 A. I don't know. I would ask Dr.

11 Zattou that. He would have that information.

12 Q. You're unaware of any chemicals

13 being applied to project canals?

14 A. I know the chemicals are applied. I

15 just don't know what they are and what the level

16 is.

17 Q. Who are they applied by?

18 A. Part -- they're applied under the

19 auspices of the Corps of Engineers. Now, the

20 Water Management District, as a matter of fact,

21 is one of the contractors. But that's -- other

22 than being aware that goes on, I don't have

23 anything to do with that. Unless there was a

24 major environmental problem, I wouldn't be called

25 in on that.

1 Q. Historically has the Corps done any

2 analysis or studies of the impact of herbicides

3 being applied within the project?

4 A. Let me answer that two ways. The

5 first answer is I don't know. The second answer

6 is that the Corps is very careful in applying

7 chemicals in wetland situations. I would be very

8 surprised if they didn't have a firm grasp on the

9 likely impacts of placing chemicals in the water.

10 Q. You would be very surprised if they

11 didn't?

12 A. If they did not, correct.

13 Q. And who would be the most

14 knowledgable at the Jacksonville District

15 regarding the impact of chemical use on the

16 vegetation?

17 A. Dr. Zattou.

18 Q. How long has he been there, do you

19 know?

20 A. About six years. And he worked for

21 me, as a matter of fact, before that in the same

22 field.

23 Q. In Vicksburg?

24 A. In Vicksburg.

25 Q. As part of your work at Vicksburg,

1 did you analyze the impact of toxic substances on

2 vegetation?

3 A. No.

4 Q. You didn't at all consider the

5 impact of spoil substances contained in dredged

6 spoil material?

7 A. That was a major portion of the

8 study. It was not a portion which I had. That

9 was a separate -- I described one -- there were

10 four parts to the dredged material research

11 program. The project that I described was one of

12 the four parts. Other parts were chemical

13 analysis.

14 Q. What chemicals are applied at the

15 present time in the project?

16 A. I don't know.

17 Q. For what purpose are they applied?

18 A. If they're chemicals applied it's

19 only for aquatic plant control as far as I know.

20 Q. Who at the Jacksonville District

21 beyond the six years that Dr. Zattou has been

22 there would be most knowledgeable regarding the

23 history of herbicides applications, for example,

24 in the southern part of Water Conservation Area

25 1?

1 A. I don't know.

2 Q. Who would you talk to if you had a

3 question?

4 A. I would ask Zattou. He would know.

5 Q. Okay.

6 A. I don't know that there were ever

7 herbicides applied in the southern part of Water

8 Conservation Area 1.

9 Q. But you know they were applied to

10 canals in the project. Correct?

11 A. Different parts of the project.

12 Q. Where do you know they were applied?

13 A. You know, having never observed them

14 being applied, I could tell you that I think they

15 were applied at Lake Okeechobee rim canal and in

16 some of the feeder canals to the Kissimmee.

17 Whether or not they were actually applied to the

18 Kissimmee, I don't know. I know that there are

19 occasionally drawdowns on some of the lakes in

20 the upper basin to facilitate application of

21 chemicals.

22 Q. And you've never heard that they

23 were applied within the Loxahatchee or within the

24 canals going around Loxahatchee? Is that your

25 testimony?

1 A. I once went out in Loxahatchee a

2 number of years ago before I was with the

3 Jacksonville District and we looked at the

4 impacts of several exotic insects on floating

5 aquatic plants. We're talking about something

6 that happened ten years ago. That's the extent

7 of my knowledge of anything that went on in the

8 Loxahatchee.

9 Q. Exotic insects. Is that what you

10 said?

11 A. Insects that are imported from

12 countries of origin of these pest plants.

13 Q. So you're not aware at any time or

14 you've never heard of chemicals being applied in

15 Loxahatchee or the perimeter canals.

16 A. I am not aware of that.

17 Q. We were talking, Dr. Smith, about

18 third party contracts regarding Everglades

19 ecology. You said first let me tell you what I'm

20 not aware of and you mentioned melaleuca, and

21 what other contracts regarding Everglades ecology

22 are outstanding?

23 A. We work with the Everglades National

24 Park and we work with the Water Management

25 District and we work with the Fish and Wildlife

1 Service and the Florida Fish and Game in order to

2 derive our information. In my recollection at

3 this moment I only recall actually paying the

4 Park and the Fish and Wildlife Service for these

5 kinds of studies. We have also contracted with

6 prior contractors, Durbin Tabb, for example, to

7 do wetlands study with regard to the modified

8 water deliverance. We're presently contracting

9 with the Park to get a better handle on water

10 quality problems in Florida Bay, but the water

11 quality problem there is primarily salinity, its

12 impact on a number of invertebrates in Florida

13 Bay to study deer populations, panther

14 populations.

15 Q. The Park personnel were doing that?

16 A. Yes.

17 Q. Deer, panther.

18 A. Deer, panther, crocodile. They were

19 contracting with the University of Florida to do

20 crocodile studies.

21 Q. We're talking American crocodile as

22 opposed to alligators?

23 A. Yes. We participate in wading bird

24 studies in the water conservation areas.

25 Recently --

1 Q. Excuse me. Go ahead.

2 A. Recently assisted a contractor to

3 the Water Management District in an Everglades

4 Kite study, assisted in -- he couldn't get the

5 money as fast as we could and we were interested

6 in having the study done. We work with Fish and

7 Wildlife -- we work under what's called a

8 transfer funding agreement. We pay Fish and

9 Wildlife for all the biological data they provide

10 to us on the Everglades with the exception of

11 Endangered Species Act information which they pay

12 for.

13 Q. Anything other than what you've

14 described?

15 A. I suspect there are other things. I

16 just can't think of them. I suspect that we

17 do -- other animal groups have been studied. I

18 don't think there are any water quality or water

19 quantity studies contracted out of my office

20 other than what I've described.

21 Q. What is this water -- other than

22 what you described, what other wildlife studies

23 have been contracted?

24 A. You know, I hate to -- I would

25 prefer to answer that question by having -- I

1 prefer not to just take that off the top of my

2 head because this is an area in which we do an

3 awful lot of work. I frankly don't recall all

4 the studies. Many of them are small purchase

5 order type things. Go out and look at this and

6 tell me what you find. We participate in

7 surveys, we participate in any number of things

8 that we think might be of value to us in

9 unlocking a part of a puzzle.

10 Q. Is there a document or a report or

11 other document which summarizes or lists the type

12 of contracts you've just described?

13 A. I doubt there's a single document,

14 but it is information that's retrievable.

15 Q. How is it retrievable? If you

16 wanted to retrieve it, what would you ask for?

17 A. I'd go to my files.

18 Q. Okay.

19 A. Basically look for on the C&SF on

20 Modified Water Deliveries on each of the projects

21 and I would ask the people on my staff what

22 studies have you contracted here, what do we have

23 going on.

24 Q. Are purchase orders filled out

25 whenever these are paid for, is there some form?

1 A. There would be a paper trail for

2 anything we paid for including Fish and

3 Wildlife -- including inter-governmental

4 transfers.

5 Q. What would that -- if I wanted to

6 ask for that paper trail, what would I ask for,

7 what specific documents?

8 A. I don't know. I would ask our

9 finance people to pull -- if I had to pull

10 records of all transfers of funds to Fish and

11 Wildlife Service and to National Park Service.

12 Q. When your department approves or

13 authorizes a funding of a study or cooperation

14 that's going to cost the Corps of Engineers

15 money, what sort of document memorializes that

16 approval?

17 A. Inter-governmental transfer of

18 funds, called a MIPPER, but quite frankly I don't

19 know quite what a MIPPER is.

20 Q. MIPR?

21 A. That's a phonetic.

22 Q. MIPPER?

23 A. MIPPER, M-I-P-P-E-R. I don't know

24 what it stands for -- I think it's MPR.

25 Q. Okay. That's for inter-governmental

1 transfers. What if an outside contractor is

2 hired such as Durbin Tabb?

3 A. That would either be a purchase

4 order or a contract. A purchase order is a

5 contract less than 25 -- is an easy contracting

6 mechanism for less than $25,000. You may have a

7 contract for less than $25,000 that is not a

8 purchase order, but if it's over 25,000, then it

9 is not a purchase order.

10 Q. With regard to private contractors

11 you only mentioned Durbin Tabb. Who else is

12 presently funded to do work relating to

13 Everglades ecology?

14 A. Other private contractors -- I don't

15 have names of individuals. I know that I can

16 name some individuals but I'm not sure -- Steve

17 Beisinger from Yale has done some work analysis

18 for us on the Everglades Kite. A gentleman from

19 the Game and Fish Commission whose names I forget

20 has done work for us on the Everglades Kite.

21 Snail Kite. Everglades Kite and Snail Kite are

22 the same thing. Snail Kite is the more proper

23 term. I believe we've contracted with the

24 Audubon Society to do wading bird studies in the

25 past.

1 Q. My question is directed to pending

2 studies right now.

3 A. None that come to mind.

4 Q. If I were to ask for purchase orders

5 or contracts or MPR's relating to Everglades

6 related ecology, wildlife or other studies, that

7 would capture the universe?

8 A. That would capture it.

9 Q. What studies is Fish and Wildlife

10 doing that the Corps is participating in the

11 funding of right now, sir?

12 A. Any of our studies -- let me change

13 that -- most of our studies require what's called

14 a Fish and Wildlife Coordination Act Report.

15 Those are -- they are not officially contracts.

16 The government doesn't enter contracts with

17 itself, but they are effectively contractual

18 arrangements for the scope of work in a signed

19 document agreeing to do this and that and so

20 forth. With Fish and Wildlife they provide us

21 the basic biological information as regards Fish

22 and Wildlife resources for any of our projects

23 and we generally pay for it.

24 Q. What projects are ongoing now

25 relative to the everglades ecology?

1 A. The Fish and Wildlife or --

2 Q. Yes, sir, that Fish and Wildlife is

3 performing for you?

4 A. C-111. Modified Water Deliveries is

5 an ongoing process. It will be ongoing for the

6 next five, ten years. I don't have -- I don't

7 have a list of all of our projects but just any

8 project that we are conducting a study on in the

9 system, the upper basin study at the Kissimmee,

10 the Kissimmee River, Lake Istokpoga study, Miami

11 River study.

12 THE WITNESS: Do you have the

13 information I provided you on the -- may I see

14 that -- on the various studies going on in the

15 C&SF?

16 MR. FITZGERALD: This?

17 THE WITNESS: Yes. These studies

18 would have impact.

19 MR. FITZGERALD: This is a document

20 the witness is providing in response to the

21 notice.

22 BY MR. EARL:

23 Q. What is this document, sir, that

24 you're now referencing?

25 A. This is a list of ongoing and

1 recently completed activities in the C&SF that

2 required or triggered NEPA documentation.

3 Q. Okay, sir.

4 MR. EARL: Counselor, can we have a

5 copy of the CV? Let's go ahead and mark that as

6 1.

7 MR. FITZGERALD: Sure.

8 MR. EARL: Do we have a set of

9 these?

10 MR. FITZGERALD: Yes.

11 (Plaintiff's Exhibit Smith-1 is

12 marked for identification.)

13 BY MR. EARL:

14 Q. Go ahead, sir. You were saying?

15 A. As you look through this document on

16 the various components of the C&SF project --

17 Q. Excuse me, sir, just to clarify

18 we'll mark this one, too.

19 MR. EARL: Mark this document as

20 Exhibit 2, please.

21 (Plaintiff's Exhibit Smith-2 is

22 marked for identification.)

23 A. There is a lot going on.

24 Q. Okay, sir. And I don't mean to be

25 reluctant in my answers, but we're probably

1 looking at thirty, thirty-five, forty --

2 Q. Let me try and narrow it down then.

3 Now, the document we've just marked and you're

4 looking at as Exhibit 2 to your deposition, what

5 is this and for what purpose was it prepared,

6 sir?

7 A. This was prepared during

8 deliberations as to whether or not an EIS should

9 be required for the development of the STA's.

10 Q. Okay. Sir, I am asking specifically

11 -- you've handed me a nine-page document. When

12 was this document prepared?

13 A. Within the last six months.

14 Q. Okay. Who asked you to prepare it?

15 A. I prepared it in an effort to pull

16 together in one document where we were on this

17 issue. There was some debate several months ago.

18 Q. Excuse me. Where you were on what

19 issue, NEPA compliance?

20 A. NEPA compliance on the total C&SF.

21 Q. Project.

22 A. Right.

23 Q. And I see November, '92 in the upper

24 right hand on the first page. Is that your

25 writing?

1 A. I don't know.

2 Q. Is that when it was prepared?

3 A. That's about when.

4 Q. Can I ask you a question, the

5 introductory paragraph on the top of the table on

6 page one says, "The various components of the

7 Central and South Florida Control Project are

8 appropriately evaluated and documented in

9 accordance with NEPA requirements." When was

10 that typed in there? Was that part of the

11 original document?

12 A. I'm sure it was.

13 Q. Has this been -- prior to your

14 presenting it here today, has this been reviewed

15 and were any corrections made by the Department

16 of Justice?

17 A. No. No, this is out of my files.

18 This constitutes a formal product of my office.

19 Q. Okay.

20 A. Let me phrase the issue here. We

21 were discussing with Justice the necessity for an

22 EIS on the STA's and then somehow that cascaded

23 into a discussion of, well, maybe you need an EIS

24 in the entire C&SF. My response to that was we

25 are covered from a NEPA standpoint on the C&SF,

1 covered by ongoing historic coverage, and that I

2 didn't think that EIS was a necessity at this

3 time.

4 Q. Okay. And am I correct in

5 understanding in the late sixties or early

6 seventies a draft EIS was prepared for the entire

7 project?

8 A. I'd be surprised if it was not, but

9 I don't know.

10 Q. You've never seen it?

11 A. To my knowledge I haven't seen it.

12 Q. And am I correct in understanding

13 that the Corps internally made the decision not

14 to do project on EIS in the early seventies, late

15 1969?

16 A. I don't know.

17 Q. You haven't researched the history

18 or are not familiar with it?

19 A. No.

20 Q. You're not aware of any decision by

21 the court to segment the project so a total EIS

22 would not have to be done?

23 A. I'm aware of a decision made in my

24 office. When you say a decision made by the

25 Corps, it would indicate that somehow this is a

1 formal group of executives who sat down and said

2 this is what we're going to do. That has not

3 happened. A decision was made by my office to

4 segment the C&SF project in such a way that we

5 could complete Section 7 consultation, and that

6 was to be -- the project is broken into six or

7 seven hydrologic units, each of which is now the

8 subject of a regulation plan or a new regulation

9 plan.

10 Q. Called a water control plan?

11 A. Right. My thought at the time was

12 as the water -- as each regulation plan came out,

13 that would trigger NEPA documentation as well as

14 Section 7 and that that would be a way of

15 handling this. The problem here is coming up

16 with something meaningful in terms of -- we're

17 talking about a project that goes roughly from

18 Key Largo to Orlando. Coming up with something

19 meaningful in NEPA documentation, I felt that

20 each of these regulation plans would provide us

21 an opportunity to take a segment, this is the

22 hardware and this how I run it, and that's about

23 as far as we are on these. As we get further

24 into them, we will develop NEPA documentation.

25 There is a twist here that's

1 happened in the last couple of months and that is

2 that Florida Resources Development Act of '92

3 authorizes reformulation of the C&SF. That would

4 certainly trigger the basin wide EIS.

5 Q. A survey report authorized by

6 Congressional resolution?

7 A. Right. That's basically like saying

8 the last time -- when this project was authorized

9 forty years ago or forty-five years ago, Florida

10 had very different needs than it has today. It's

11 time to look again at the project purposes. A

12 reformulation, a restudy, basically a survey

13 report, in the traditional sense a survey report,

14 we don't have survey reports any more. That

15 would provide us the door, open the logical door

16 to do an EIS, a meaningful EIS in the system. It

17 would be a massive undertaking. But this was to

18 show that indeed the whole project is presently

19 covered in one way or another by NEPA compliance.

20 Q. I think when we got off on this

21 topic we were talking about what projects the

22 Fish and Wildlife Service was working on that

23 were funded by the Corps. And you then went to

24 Exhibit 2 here as a source to remind yourself of