1 1 DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF ADMINISTRATION, STATE OF FLORIDA 2 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. 2 1 - - - APPEARANCES: 2 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 8 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 12 Also present: Kim McNally, Paralegal 13 14 I N D E X 15 WITNESS DIRECT CROSS REDIRECT RECROSS 16 HANLEY K. SMITH 17 BY MR. EARL 4 18 19 20 21 22 23 24 25 3 1 E X H I B I T S 2 PLAINTIFF'S NUMBER DESCRIPTION PAGE 3 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 9 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 16 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 22 23 24 25 4 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 5 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 6 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. 7 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 8 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 9 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 10 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 11 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 12 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 13 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? 14 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 15 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 16 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? 17 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? 18 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 19 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 20 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 21 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 22 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, 23 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 24 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 25 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. 26 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 27 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 28 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 29 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 30 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 31 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 32 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 33 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? 34 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 -- 35 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 36 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 37 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 38 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 39 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 40 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 41 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 42 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 43 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. 44 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, 45 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? 46 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? 47 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 48 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 -- 49 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 50 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? 51 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 52 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. 53 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? 54 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 55 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 56 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? 57 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, 58 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 59 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 60 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 25 those projects. Correct? 61 1 A. Right. 2 Q. Why don't we work south of the lake, 3 the water conservation areas and Everglades 4 National Park. What ongoing work is the Fish and 5 Wildlife Service doing? You're talking about 6 strictly here consultations on -- tell me what 7 you're talking about Fish and Wildlife. 8 A. We're talking about work being done 9 under the Fish and Wildlife Coordination Act 10 Report as amended and under an authority called 11 Transfer Funding Agreements. 12 Q. You're not talking about any other 13 work contracted to or, wrong term, in which 14 you're funding the Fish and Wildlife Service 15 regarding Everglades ecology. That is to narrow 16 down the question, that's what I'm interested 17 in. 18 A. No, I don't think there is any -- I 19 don't think we are funding to do anything else, 20 anything that's not related to the Coordination 21 Act Report. 22 Q. What specifically are they doing 23 other than work on the Modified Water Deliveries? 24 A. I'd have to go down this list which 25 is the reason I pulled it out. Frog Pond is 62 1 basically quiet at the moment. C-51 is 2 undergoing a reformulation. Fish and Wildlife is 3 probably part of that activity. I've never been 4 to one of these -- reformulation is not the right 5 word. I would suspect very strongly Fish and 6 Wildlife is part of the effort to design C-51 or 7 plan C-51 in such a way that it would be suitable 8 or satisfactory to the Water Management District 9 and to ourselves. Kissimmee River Restoration, 10 they have prepared a Coordination Act Report for 11 the lower basin. Did you ask me to concentrate 12 south of the lake? 13 Q. Yes, please. 14 A. Okay. C-111 they will be preparing 15 a Coordination Act Report. The Everglades 16 National Park -- we are paying the Everglades 17 National Park to conduct the research for that 18 report. 19 Modified Water Deliveries is an 20 ongoing. We have a final Coordination Act 21 Report, but we will be working with the -- 22 continuing to work with the Fish and Wildlife 23 Service to develop a regulation plan for the 24 Modified Water Deliveries. It will probably be 25 an iterative process. I guess it will probably 63 1 take four or five years. 2 Q. Is there a record of decision on 3 that that has come out from the District? 4 A. There's a draft report decision. 5 Q. The District Engineer's has not been 6 signed yet? 7 A. It's not signed by the District 8 Engineers. It's signed by the Chief of Civil 9 Works. 10 Q. And that goes to the division in 11 Washington? 12 A. Yes, it goes to Washington. 13 Q. When do you expect that to be 14 issued, signed? 15 A. I don't know. We would hope to have 16 it signed by now. It's been back and forth a 17 couple of times. 18 Q. And it's still a conflict between 19 Fish and Wildlife and the Park? 20 A. No, that's a minor issue at this 21 point. I think Interior has settled on a 22 resolution to the Snail Kite conflict. 23 Q. What are the outstanding issues 24 that's holding it up? 25 A. There are no outstanding issues. 64 1 Let me frame the question another way. This is a 2 very complex project in which the Corps by law is 3 required to adopt the plan with the best economic 4 outcome. This plan doesn't have an economic 5 outcome in terms of traditional cost-benefit 6 ratio. Now, as a consequence, it's not a typical 7 project. The issues are almost entirely 8 environmental and the economic issues are 9 addressed indirectly in the decision. So if the 10 decision maker says I looked at all these things, 11 I looked at the endangered species conflict and I 12 looked at the concerns of the Indians and I 13 looked at the water quality issues here and I 14 looked at the hydrologic data, and I folded it 15 all into the decision that this project should go 16 forward. In most records of decision the 17 economic issue is the driving issue where the 18 environmental issue is basically I'm in 19 compliance with all the environmental laws. In 20 this record the decision is basically an 21 environmental record of decision. 22 Q. Mr. Salem is going to sign this? Is 23 that who signed it? 24 A. No, this is signed by the -- it was 25 signed by the Chief of Civil Works, General 65 1 Genega. 2 Q. Oh, okay. 3 A. Typically this would be signed by 4 the Secretary of the Army, the Undersecretary of 5 the Army for Civil Works, but in cases where 6 projects are authorized before the record of 7 decision is produced, in other words, congressmen 8 hadn't authorized this before it was recommended 9 to authorize it, they authorized it before the 10 Assistant Secretary recommended the 11 authorization, and when that happens it is signed 12 at the next level down. 13 Q. Who issues it out of the District? 14 A. It comes out of my office. 15 Q. Who signs it? Is it signed? 16 A. No, it's not signed. It would be 17 forwarded, you know, in all probability by Mr. 18 Salem. 19 Q. You would review it and approve it 20 before it went to Mr. Salem? 21 A. I prepared it. 22 Q. Okay. What other studies is Fish 23 and Wildlife doing? 24 A. We went in to C-111, Modified Water 25 Delivery, C-25, that's north of us. C-26, this 66 1 would not have been a contracted study. It would 2 just have been coordinated with Fish and 3 Wildlife. There wouldn't have been any major 4 issues there. Lake Istokpoga is north of us. 5 Shingle Creek is up by Orlando. All these 6 emergency actions are related to -- 7 Q. Andrew? 8 A. -- Andrew. These are projects that 9 were damaged and they're repaired as necessary to 10 insure the safety -- to insure their flood 11 control capacities. They would have been 12 coordinated with Fish and Wildlife, but we would 13 not have paid them to do anything on that. 14 Kissimmee River Restoration of course we're 15 paying them. Herbert Hoover Dike study, we will 16 pay that but it's not underway quite yet. Water 17 Conservation Area 1, we will contract with Fish 18 and Wildlife to -- this is a modification of 19 water control structure. 20 Q. This is the ongoing -- the schedule 21 of what used to be called the regulation 22 schedule. 23 A. Yes, this is a discussion -- 24 Loxahatchee, as I understand it, wants to change 25 the regulation schedule. And that will be an 67 1 issue with Fish and Wildlife and one which 2 triggers funding. St. Lucie Canal is north of 3 us. Taylor Slough is one which is part of the 4 C-111 and of course will be contracted or we will 5 pay Fish and Wildlife to help us with that. Hole 6 in the Donut is a project and apparently within 7 the Park. We will probably contract with Fish 8 and Wildlife to help us with that. South Florida 9 Limestone Mining, this is a regulatory EIS. We 10 won't be paying anybody to help us, but we will 11 certainly go to Fish and Wildlife for 12 assistance. In this case the mining interests 13 will conduct the EIS. We just oversee and make 14 sure that they're doing it in accordance with 15 federal regulations. West Dade Wellfield is the 16 same. The local -- the permit applicant prepares 17 the EIS or his agent, you know, we assure that he 18 does it to our standard. 19 Caloosahatchee, S-11 and S-12, I 20 don't even know where S-11 and S-12 is. I'm 21 sorry. S-11 and S-12 I do know where that is. 22 Q. I would hope so. 23 A. Of course. Oh, gosh, it's getting 24 to be lunch time, I think. Nothing was required 25 there. 68 1 Q. Wait a minute. Going back to S-11 2 and S-12, there were mechanical repairs to the 3 structure? 4 A. Right. And they are categorically 5 excluded. We would, even though there's a 6 categorical exclusion from NEPA, we would do some 7 work on endangered species for any project -- any 8 structure located in those areas. 9 Q. When is that work going to be done? 10 A. I don't know. 11 Q. Timing wise? 12 A. I don't know. 13 Q. Is it underway? 14 A. I don't know. This is most likely 15 very routine, painting or scraping or something 16 of that sort. 17 Q. What is the -- on page six, second 18 from the bottom, Ortona Sewage Treatment Plant, 19 where is that? 20 A. I don't know. I suspect -- I 21 suspect this is a recreation area and it is a 22 Corps Sewage Treatment Facility, but I don't know 23 where Ortona is. Projects like that just don't 24 come to my attention. They pass my desk and 25 don't -- unless there's an issue. 69 1 Q. Page 7 I see Ortona Spillway so the 2 sewage station must be near the spillway. 3 A. You might assume that. I don't 4 know. 5 Q. Okay. Bottom of page seven, Lake 6 Okeechobee, Melaleuca Control, proposed expansion 7 of area to be sprayed using herbicides. 8 A. My shop would do an EA in that case 9 if this project was to proceed. 10 Q. What is the status of that project? 11 A. I don't know. 12 Q. Is it underway? 13 A. I don't know. 14 Q. You don't know what kinds of 15 herbicides they use to spray melaleuca? 16 A. No. 17 Q. On page eight you have Draft Water 18 Control Manuals, East Coast Canals. 19 A. This is what we discussed earlier, 20 the concept of breaking the -- when we were 21 trying to determine how do we get a handle on the 22 system, breaking it up into the regulation -- 23 hydrologic regulation manuals was the way that we 24 finally settled, and this would be the approach. 25 We would do an EA or an EIS. This would be, I 70 1 suspect, a fairly major project. 2 Q. Let me see if I understand that. 3 There already have been issued water control 4 manuals for Lake Okeechobee and the Everglades 5 Agricultural Area for Water Conservation Areas 6 and the Park, as I understand it. Is that 7 correct? 8 A. They're draft manuals. There are 9 existing regulation manuals for the whole 10 project. Okeechobee is in a fairly advanced 11 stage and there is a draft manual. There's 12 constant discussion of how Okeechobee is going to 13 be regulated. Once that discussion settles to 14 the point that you could do an assessment, first 15 you have to stop talking and decide, okay, it's 16 time to start looking at the possibilities here. 17 I'm sure -- you may be familiar with the various 18 runs that -- regulation schedules that are under 19 discussion at Okeechobee. Run 22, Run 25? It 20 doesn't ring any bells. 21 Q. Lots of runs, I know there's lots of 22 numbers. 23 A. We haven't settled on that which 24 we're going to run. We have begun the scoping 25 process on one the Water Management District 71 1 asked us to try. We implemented what's called 2 run 25 a year ago and used an environmental 3 assessment to do it saying this is a two-year 4 project. Run 22 which will require lowering the 5 lake another couple of feet would most likely 6 require an environmental impact statement. And 7 we have started that process. The very first 8 step is scoping, sending out a letter to 9 everybody and their brother saying what issues do 10 you think are involved here. And from that list 11 we determine what we're going to study. And 12 often we determine from the list of issues 13 whether or not we have the significant 14 environmental impact. 15 Q. Who actually determines that in your 16 shop? Is that your final decision on an 17 environmental assessment whether it was a FONSI, 18 finding of no significant impact? 19 A. Any decision of that sort is 20 ultimately the District Engineer's decision. 21 I've never been overridden so I can't say that 22 it's -- it's my recommendation, his decision, it 23 would have to be something very wrong for him -- 24 with my recall thought process in order to be 25 overridden on that, either that or something 72 1 wrong with the system, and I haven't been 2 overridden. 3 Q. Okay. Other than the District 4 Engineer, who has the final command decision? 5 Your decision is the final decision presented to 6 the District Engineer? 7 A. Right. I don't want to leave you 8 with the feeling that this is a well- 9 structured -- this is a process rather than a -- 10 we don't all meet Friday afternoon at three 11 o'clock and decide on EIS's. As you work through 12 the scoping process and developments, it becomes 13 obvious really. It's very seldom a surprise 14 which way to go. 15 Q. What is your plan as it stands now 16 to when the water control manuals are finalized 17 for the Water Conservation Area 1, for example? 18 A. We would do either an environmental 19 assessment or an EIS depending on the -- whether 20 we felt there were major environmental impacts. 21 Q. Okay. Going to page nine which is 22 Storm Water Treatment Areas, WCA's 1, 2, 2A, 3 23 and 3A. 24 A. If this -- 25 Q. As the chief of your branch which is 73 1 responsible for environmental assessments in the 2 NEPA process at the Jacksonville District, Dr. 3 Smith, what is your understanding of the 4 requirements, if any, that NEPA is applicable to 5 stormwater treatment areas? 6 MR. FITZGERALD: I'm going to direct 7 the witness not to answer. This matter is on 8 appeal and it's currently pending before the 9 Eleventh Circuit. 10 MR. EARL: I'm asking him, counsel, 11 for his facts. Are you instructing him not to 12 answer? 13 MR. FITZGERALD: Yes, I am. 14 MR. EARL: Okay. 15 BY MR. EARL: 16 Q. Dr. Smith, what is the -- your 17 understanding of -- this is your document you 18 prepared. Correct? 19 A. I did not prepare it. It was 20 prepared by my office. 21 Q. Okay. After consultations with the 22 Department of Justice. Correct? 23 A. Yes, but not at their direction. 24 Q. Okay. 25 A. After meeting with them I thought 74 1 this would be a useful document and instructed 2 others to prepare it. 3 Q. A description of the project on page 4 nine you say, "Not a federal action unless water 5 quality certification is required from Florida 6 DER." 7 A. Right. 8 Q. How did you determine this was not a 9 federal action? 10 A. It is not a federal action. It's 11 being designed and built by the Water Management 12 District. If, however, if Section 404 of the 13 Clean Water Act is triggered, in other words, if 14 wetland is filled as a result of this project, a 15 permit will be required from the Corps at which 16 point it becomes a federal action in that the 17 permit is a federal action and may require an 18 environmental assessment or an environmental 19 impact statement so what we're doing is sort of 20 sidewaysing into it. 21 Q. And has the Jacksonville District 22 determined whether a 404 permit is required? 23 A. Not to my knowledge. 24 Q. You haven't seen anything on that. 25 A. I have not. 75 1 Q. Now, you say it's not a federal 2 action. Are you aware that the requirement for 3 STA's was established in the settlement agreement 4 between the Federal Government and the State of 5 Florida? 6 A. Yes. 7 Q. And are you aware that the Federal 8 Government acting through the Department of 9 Justice and other negotiators insisted on the 10 STA's? 11 MR. FITZGERALD: Objection. 12 Assuming facts not in evidence. 13 BY MR. EARL: 14 Q. Are you aware? 15 THE WITNESS: Am I supposed to 16 answer that? 17 MR. FITZGERALD: You can go ahead 18 and answer if you can. 19 THE WITNESS: Would you repeat the 20 question? 21 MR. EARL: Would you read back the 22 question? 23 (The reporter reads the pending 24 question.) 25 A. That's my understanding. I think 76 1 the Federal Government would have accepted 2 another remedy if they were convinced that that 3 remedy would have reduced the level of phosphorus 4 to the fifty parts per billion but I don't 5 believe -- I know the remedy was put forward. 6 I'm trying to say the Federal Government insisted 7 on a remedy and that was the only remedy on the 8 table in addition with the best management 9 practices and the regulatory program that would 10 solve the problem. 11 Q. And what leads you to conclude that 12 the Federal Government would have accepted 13 another remedy? What was your involvement in the 14 settlement negotiations? 15 A. This again was a process that began 16 probably a year, year and a half before the 17 settlement agreement which we met with the Water 18 Management District and the state through a 19 series of meetings dealing with ONRW and OFW. 20 Are we all aware what those terms are? 21 Q. I am. 22 A. Okay. You would tell me if you 23 weren't. 24 Q. You're saying you were on the SWIM 25 ONRW committee, advisory committee? Is this what 77 1 you're talking about? 2 A. I don't know that it had a name. We 3 met almost -- see, I would guess we met a couple 4 of times a month and talked about where we're 5 going on this thing. 6 Q. Who was on this committee? 7 A. Myself, Tom MacVicar, Paul Whalen, 8 Tony Federico, Dan Scheidt, Mike Soukup, Herb 9 Zebuth, someone from EPA who attended 10 irregularly. 11 Q. Did Dexter Lehtinen and Suzan 12 Ponzoli ever attend these meetings? 13 A. No, but they were aware they were 14 going on. These meetings were preliminary 15 discussions among semi-technical people as to -- 16 Bill Walker as well and I think Ron Jones. They 17 were preliminary discussions as to how we should 18 go on this and basically they started -- they 19 started as a discussion on the implementation of 20 an outstanding natural resource -- ON -- natural 21 resource -- ONRW. Natural resource water and it 22 became fairly apparent that we were never going 23 to agree amongst ourselves as to designation of 24 Florida Conservation Area 1 and ENP, ONRW. This 25 became a process. The process then went along 78 1 the lines of what are suitable levels of 2 nutrients, and the process from there went to how 3 are we going to reach these levels, and as it 4 got -- we got closer and closer the Water 5 Management District dropped out of the process as 6 did the State. I suspect the Federal Government 7 was beginning to feel these are more in-house 8 discussions. And that developed into the Remedy 9 Committee. We're talking about a long time ago. 10 The Remedy Committee, as I recall, did include 11 the Water Management District and the SCS. 12 Q. This was prior to the period of 13 February, March through July, 1991. Correct? 14 A. When was the settlement agreement? 15 Q. The settlement agreement was -- 16 A. July? 17 Q. Approved by the Governing Board in 18 July of '91, yeah. 19 A. This was in the winter and spring 20 prior to that. It started about a year earlier. 21 The point that I'm trying to get across is this 22 was not a highly structured process to begin. It 23 was a discussion, a protracted discussion amongst 24 technical people that evolved into the Remedy 25 Committee. 79 1 Q. Would you tell me what discussions 2 you are aware of -- let me ask you another way. 3 Prior to the adoption of the settlement 4 agreement, was there concern and serious 5 questions by various people at the Jacksonville 6 District regarding the -- whether the settlement 7 agreement should be entered? 8 A. There were internal discussions, of 9 course. 10 Q. And what was the -- who participated 11 in those and who was concerned about the 12 settlement agreement being entered? 13 MR. FITZGERALD: Let me object. 14 I'll allow the witness to answer the first part 15 of the compound question and then I think we 16 should address the second half of that 17 separately. 18 BY MR. EARL: 19 Q. Who at the Jacksonville District had 20 concerns regarding the provisions of the 21 settlement, proposed settlement agreement? 22 THE WITNESS: Do I have to answer 23 that? This gets to personalities. 24 MR. FITZGERALD: Let me take a break 25 and consult with the witness to resolve his 80 1 concerns. 2 MR. EARL: Okay. 3 THE WITNESS: I'd like to take a 4 break as well. We've been going two hours. 5 Would it be possible to take a lunch break? 6 MR. EARL: Well, let's consult, come 7 back and then we'll establish a mutually 8 agreeable schedule the rest of the day. 9 (A brief recess is taken.) 10 MR. EARL: Would you read back the 11 question, please? 12 (The reporter reads the pending 13 question.) 14 A. There was no one who was aware of 15 this project in the process who did not have 16 concerns. The primary players were Ron Hilton, 17 Jim Vearil, Louis Hornung, A.J. Salem, Richard 18 Bonner. 19 Q. And yourself? 20 A. And myself. Jim McAdams, Lloyd 21 Pike. I don't recall the involvement of the 22 District Engineer. He may have been very 23 involved but he was not -- 24 Q. That was Colonel Salt at the time? 25 A. I'm not sure -- it may have been 81 1 Colonel Malson. That was a transition period, 2 Salt was in and Malson was out. Everyone was 3 concerned with the impact of the settlement 4 agreement on the ability to run the project, on 5 water quantity, on the flood control provisions, 6 the impact that it might have on the Modified 7 Water Deliveries. This is a sweeping agreement. 8 That's not to say people were opposed, in a 9 position of thinking now really what does this 10 mean to us, and the conclusion was we're not 11 going to know until a little bit further. We 12 were starting to see some of the impact. C-51 13 was an impact of the settlement agreement. 14 Q. Who had specific concerns about 15 specific areas? 16 A. We were all concerned with our 17 own -- I really don't want to speak for what was 18 bothering Jim Hilton. I mean Ron Hilton. 19 Q. What concerns did he express in your 20 presence? 21 A. I don't recall. 22 Q. You have no recollection? 23 A. I cannot recall specific 24 conversations. 25 Q. How about specific concerns, areas, 82 1 problem areas of Mr. Hilton? 2 A. Water quantity. I do recall his 3 concern over the impact that the STA's might have 4 and the rerouting of water might have on 5 available water to send south. 6 Q. The water supply. 7 A. Right. We were also concerned with 8 if we couldn't meet the standards, let's say we 9 reached '78 -- or '98, and we haven't met the 10 standards, are we going to be under pressure to 11 close the dates. We have to redesign this 12 project. And the project is designed for a 13 number of purposes. And we were also concerned 14 about the provision that we would apply for a 15 permit on the S-10's, 11's and 12's. 16 Q. Who was especially concerned about 17 that? 18 A. Probably counsel, Lloyd Pike, in 19 that he was not willing to put the project -- not 20 willing to put the federal government in the 21 position of having to obtain permission from the 22 state to run the federal project. He thought 23 that was a bad -- a dangerous precedent. 24 Q. And how was that resolved? 25 MR. FITZGERALD: Objection. Direct 83 1 the witness not to answer. 2 MR. EARL: Grounds? 3 MR. FITZGERALD: You're inconsistent 4 with the hearing officer's order that discovery 5 into the internal deliberative process of the 6 United States agencies collectively with counsel 7 to determine positions on entering the settlement 8 agreement in the federal litigation are not 9 subject to discovery. Our understanding of his 10 ruling rendered in the hearing is that you 11 certainly are entitled to ask about the existence 12 of meetings, the parties thereto and the 13 development of certain limits, but that is not 14 the thrust of your questions and therefore I 15 direct the witness not to answer. 16 MR. EARL: Well, counsel, I agree 17 with you on the attorney-client discussions, but 18 the hearing officer did not adopt the federal 19 deliberative exemption that I'm aware of. I'll 20 certainly follow through on that, but that's not 21 a part of this state proceedings. 22 BY MR. EARL: 23