1

1 VOLUME I

2 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUGAR CANE GROWERS COOPERATIVE OF

4 FLORIDA, INC., ROTH FARMS, INC.,

and WEDGWORTH FARMS, INC.,

and

FLORIDA SUGAR CANE LEAGUE, INC.,

7 UNITED STATES SUGAR CORPORATION,

and NEW HOPE SOUTH, INC.,

and

FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038

10 ASSOCIATION, LEWIS POPE FARMS, 92-3039

W.E. SCHLECHTER & SONS, INC., and 92-3040

11 HUNDLEY FARMS, INC.,

12 Petitioners,

13 vs.

14 SOUTH FLORIDA WATER MANAGEMENT

DISTRICT,

Respondent,

and

MICCOSUKEE TRIBE OF INDIANS OF

18 FLORIDA, the UNITED STATES OF

AMERICA, FLORIDA DEPARTMENT

19 OF ENVIRONMENTAL REGULATION, and

FLORIDA WILDLIFE FEDERATION,

Intervenors.

21 . . . . . . . . . . . . . . . . . . . /

23 DEPOSITION OF MARLENE STERN

24 November 17, 1992

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2 DEPOSITION OF MARLENE STERN

3 Taken in the above-styled cause, pursuant to

4 notice, at the Department of Environmental Regulation, 2600

5 Blair Stone Road, Tallahassee, Florida, on November 17,

6 1992, commencing at 9:50 a.m.

8 Reported by:

9 DEBRA ROTRUCK KRICK

10 Court Reporter

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1 APPEARANCES OF COUNSEL:

2 On behalf of the Petitioners Florida Sugar Cane League,

Inc., United States Sugar Corporation and New Hope

3 South, Inc.:

4 Mark T. Kobelinski, Esq.

Peeples, Earl & Blank

5 One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard

6 Miami, FL 33131

(305) 358-3000

On behalf of the Intervenor United States of America:

Keith E. Saxe, Esq.

9 United States Department of Justice

Environment & Natural Resources Division

10 601 Pennsylvania Avenue NW

Washington, D.C. 20044

On behalf of the Intervenor Department of Environmental

12 Regulation:

13 Keith Hetrick, Esq.

Lee Killinger, Esq.

14 Assistant General Counsels

State of Florida

15 Department of Environmental Regulation

Twin Towers Office Building

16 2600 Blair Stone Road

Tallahassee, FL 32399-2400

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 INDEX TO WITNESS

2 MARLENE STERN PAGE

3 Examination by Mr. Kobelinski 5

4 INDEX TO EXHIBITS

5 No. MARKED

6 1 10

7 2 16

8 3 51

9 4 56

10 5 68

11 6 92

12 7 104

13 8 108

14 9 117

15 10 130

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1 D E P O S I T I O N

2 Whereupon,

3 MARLENE STERN

4 was called as a witness, having been first duly sworn to

5 speak the truth, the whole truth, and nothing but the

6 truth, was examined and testified as follows:

7 EXAMINATION

8 BY MR. KOBELINSKI:

9 Q Okay. Good morning. Ms. Stern, would you please

10 state your name and address for the record?

11 A My name is Marlene Stern. My address is 1858-A

12 Nicklaus Court, Tallahassee, Florida, 32301.

13 Q Ms. Stern, my name is Mark Kobelinski, I am

14 attorney representing the Petitioners in the SWIM

15 Challenge, those Petitioners are United States Sugar

16 Corporation, New Hope South, Incorporated, and the Florida

17 Sugar Cane League, Incorporated.

18 Have you ever been deposed before?

19 A Yes, I have.

20 Q Okay. Approximately how many times?

21 A One.

22 Q Okay. Then you are probably aware the deposition

23 is merely a means for parties in litigation to ask

24 questions of individuals under oath to find out what

25 information or facts they may be aware of with regard to

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1 the issues involved in the proceeding. You are also being

2 deposed today as an expert witness. Have you ever been

3 deposed as an expert witness before?

4 A I am not sure if I was deposed as an expert

5 witness or not at the time I was deposed.

6 Q In part of this deposition I will be asking, not

7 only with regard to facts you may be aware of that are

8 involved, issues in this proceeding, but I will also be

9 asking you questions with regard to your opinions for areas

10 that you have been designated as an expert witness by the

11 Department of Environmental Regulation in these

12 proceedings.

13 If you don't understand a question I ask at any

14 time, please simply state so, and I will attempt to restate

15 it. If you don't know the answer to a question or can't

16 remember, I don't know and I don't remember are the correct

17 answers. Please at no time assume any facts or if you feel

18 compelled to assume, please state so on the record so we

19 are aware of that. All right?

20 A Okay.

21 Q Finally, although it often arises, you must answer

22 out loud, vocally, because nods cannot be taken down by the

23 court reporter.

24 MR. HETRICK: Excuse me, Mark, you want to

25 raise --

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1 MR. KOBELINSKI: Yes, having done all of that and

2 introduced myself, immediately prior to this deposition

3 we have been attempting to resolve an issue as, with

4 regard to the areas of testimony or the areas that Ms.

5 Stern will be deposed. We are currently noticing and

6 Ms. Stern has been noticed and subpoenaed with regard

7 to the SWIM Challenge proceedings, filed by the

8 petitioner. In addition to that the Petitioners have

9 filed the challenge of the DER permit, and I understand

10 that has been transferred over to DOA. At this point

11 the proceedings have not been consolidated, nor has

12 anyone sought consolidation. However at the request of

13 the Department of Environmental Regulation we have been

14 asked to depose Ms. Stern as to all issues that are

15 currently raised in both proceedings so as to avoid

16 having to take her deposition twice.

17 We have agreed do so based upon a stipulation that

18 was made approximately 15 minutes ago during the

19 deposition of Mr. Frank Nearhoof. We will abide by

20 that stipulation, which I will merely paraphrase very

21 briefly here, but again, the exact terms of the

22 stipulation that were made in Mr. Nearhoof's deposition

23 will govern and the brief descriptions is as follows.

24 DER is stipulating that it affirmatively seeks a

25 consolidation and stipulates to consolidation. We

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1 will depose Ms. Stern with regard to all of the issues

2 that are currently raised in both proceedings. If

3 there are new factual issues that are raised,

4 subsequently, upon which Ms. Stern has knowledge or if

5 the DER or some other party, but presumably the DER,

6 lists Ms. Stern as an expert as to other areas other

7 than the areas that were currently listed by the DER in

8 their witness designation, we again are entitled to

9 depose Ms. Stern as to that, the only particular matter

10 that we discussed in addition to that is that the

11 subpoena duces tecum for this deposition was addressed

12 towards solely those matters raised in the current

13 disclosure of the DER in the SWIM Challenge

14 proceedings.

15 To the extent there are documents or other areas

16 that Ms. Stern has been involved in in the DER permit

17 application or DER's consideration of the permit

18 application that have not been produced or that we are

19 unaware of and we cannot resolve by production of

20 documents perhaps this evening, we would reserve our

21 rights to review those matters. I will note that

22 objection, if it comes about, on the record when it

23 does so.

24 MR. KILLINGER: I guess, I would just like to say

25 for the record, that this stipulation which Mr.

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1 Kobelinski has put on record here is to my

2 understanding based on discussions with Tim Smith,

3 Assistant General Counsel for the Department, or Deputy

4 General Counsel rather, in a different room in which

5 none of the counsel here were present but Mr.

6 Kobelinski, and should the stipulation of record be

7 different from that as represented, we would like our

8 option to dispute it at the time that becomes

9 apparent.

10 Further for the record I believe, and we will find

11 out later on today I suppose, but I believe that with

12 regard to the duces tecum notice that was sent to Ms.

13 Stern that all documents that Ms. Stern had in her

14 possession that were responsive to the duces tecum have

15 been produced, and I believe that that production

16 encompasses all documents that she has regardless of

17 whether they affect the permit or the SWIM Challenge.

18 MR. SAXE: Counsel for the United States is not

19 presently in a position to enter any stipulation, but

20 represents that the United States conditionally

21 consents that this deposition may address permit issues

22 with the qualification that the United States reserves

23 objections to any future deposition in this swim or any

24 permit proceeding concerning issues raised in this

25 deposition as being duplicative, accumulative and

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1 unduly burdensome. The United States declines to state

2 a position on consolidation at this deposition because

3 the issue is not properly joined.

4 MR. KOBELINSKI: So I understand the United

5 States' position, does the United States stipulate to

6 the use of this deposition in the DER permit

7 proceedings?

8 MR. SAXE: My understanding is we are not entering

9 into any stipulations in this deposition that

10 supplement or otherwise modify stipulations being

11 entered into in the Frank Nearhoof deposition, so

12 technically, no, the United States won't stipulate to

13 that, however, I do represent that the U.S. would have

14 no objection to the use of this deposition proceeding

15 in any permit proceeding to the extent otherwise

16 appropriate.

17 MR. KOBELINSKI: Well, I just wanted to stip

18 because you said you objected to it being duplicative,

19 and unless you stipulate it can be used in other

20 proceeding, then I don't see where it could be

21 duplicative.

22 MR. SAXE: I understand your position.

23 MR. KOBELINSKI: Okay.

24 (Whereupon, Exhibit No. 1 was marked for

25 identification.)

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1 BY MR. KOBELINSKI:

2 Q Ms. Stern, I am handing what has been marked as

3 Stern Exhibit No. 1 to this deposition, I ask you to take a

4 look at that document and would you identify it for me?

5 A It is my resume.

6 Q Is that a current copy of your resume?

7 A Yes.

8 Q For the purpose of the deposition I would like to

9 briefly go through your educational and work background

10 which, presuming a large portion of that is contained on

11 this resume, where did you receive your undergraduate

12 degree?

13 A At Newcomb College.

14 Q And what was your undergraduate degree?

15 A I majored in biology.

16 Q Any particular specialty or concentration within

17 biology?

18 A Plant ecology.

19 Q As part of your undergraduate degree in biology

20 did you study marine plant ecology?

21 A Wetland plant ecology.

22 Q Approximately how many courses do you have in

23 wetland plant ecology?

24 A As an undergraduate?

25 Q Yes.

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1 A Well, two, and I guess part of a systematics class

2 that addressed all plants, wetland and upland.

3 Q Okay. With regard to the two courses in wetland

4 plant ecology were those freshwater or saltwater wetland

5 plants?

6 A Freshwater.

7 Q Okay. And do you also have a Master's?

8 A Yes.

9 Q Where did you receive your Master's?

10 A Louisiana State University.

11 Q What was your Master's in?

12 A Marine sciences.

13 Q What does that degree encompass?

14 A It's, it included course work in, let's see,

15 chemistry, biology, physical oceanography, statistics,

16 estuarian ecology, and then I had to do a thesis.

17 Q Did you, again, have any type of concentration

18 within the marine sciences Master's degree?

19 A Well, I guess the area of concentration would be

20 the area of research, I did my thesis.

21 Q Okay. And what was that area of research?

22 A Well, my thesis title is "Seasonal Transport of

23 Nutrients in Suspended Solids in a Tidal Freshwater Bayou

24 in Louisiana," it was nutrient cycling and transport in a

25 tidal freshwater marsh.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q How long were you enrolled in your Master's

2 program?

3 A Two and a half years.

4 Q Did you, again, take any wetland plant ecology

5 courses?

6 A Yes.

7 Q And how many Master's level courses did you take

8 with regard to wetland plant ecology?

9 A I guess there was one specifically that focused on

10 wetland plant ecology.

11 Q Was that freshwater or saltwater?

12 A Both, and I did a lot of field work in wetlands.

13 Q The field work you did in wetlands, is that with

14 regard to the thesis?

15 A In regard to my thesis and that of other people.

16 I don't, do you want to count research credits? Because

17 that's what, you know, I got research credits working on my

18 thesis, which involved wetland plant ecology, and I don't

19 remember how many research credits I got.

20 Q I guess my next question's out.

21 With regard to your thesis, Seasonal Transport of

22 Nutrients and Suspended Solids in Tidal Freshwater Bayou in

23 Louisiana, where did the nutrients originate that you were

24 studying?

25 A The Atachafalaya River.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q Could you spell that?

2 A I think I have to, A-t -- do I have it down here?

3 Atachafalaya, A-t-a-c-h-a-f-a-l-a-y-a, shall I spell it

4 again? Okay.

5 Q And do you know how the nutrients, what introduced

6 or where the nutrients were introduced into the

7 Atachafalaya River?

8 A Basically from the entire drainage basin of the

9 river at that point because the, I was studying the very

10 bottom end of the river in a marsh adjacent to the mouth of

11 the river -- more or less.

12 Q Are you aware whether or not the Atachafalaya

13 River received any type of agricultural storm water runoff?

14 A Yes, I believe there was a component of

15 agricultural storm water runoff in that river. The

16 components that were contributed to the runoff was not

17 really something I addressed. We sampled the river water

18 before it entered the marsh, and we sampled the river water

19 in the marsh and after it got out of the marsh.

20 What we needed to know is what the concentration

21 was in the river before it went into the marsh. It wasn't

22 so much a concern to me what contributed to those nutrient

23 levels, or suspended sediment levels.

24 Q Do you recall approximately what the

25 concentrations were?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A Well --

2 MR. HETRICK: Objection. Concentrations of what?

3 MR. KOBELINSKI: Of nutrients.

4 MR. HETRICK: What kind of nutrients?

5 BY MR. KOBELINSKI:

6 Q What kind of nutrients were you studying as part

7 of your thesis?

8 A Nitrogen and phosphorous, TKN, ammonia, nitrates,

9 total phosphate and SRP, and I don't remember the ranges of

10 all the nutrients at each place we sampled.

11 Q Do you still have a copy of your thesis?

12 A Yes, I do.

13 Q Have you produced that thesis as part of the

14 documents that were produced yesterday?

15 A No.

16 Q Could you produce that, or get a copy of that

17 document for us sometime today?

18 A I can get you, today, a copy of the two

19 publications from my thesis. That would be much easier.

20 MR. KILLINGER: Let me just break in here for the

21 record. I am not sure whether or not we are going to

22 agree to produce that thesis. I don't think it's

23 necessarily and reasonably calculated to lead to

24 discoverable evidence. I don't think it is anything

25 that she's basing her opinions on in this case, and I

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 think it is way outside the scope of legitimate

2 discovery to ask for that. Can you reference to me

3 someplace in your duces tecum that would justify that

4 in relation to her in the area of designation in this

5 case?

6 MR. KOBELINSKI: Yes, I would refer to --

7 MR. KILLINGER: I am not saying no, I am just

8 saying I don't see how it is relevant. Maybe you can

9 justify it to me.

10 MR. KOBELINSKI: Mark that as two.

11 (Whereupon, Exhibit No. 2 was marked for

12 identification.)

13 MR. KOBELINSKI: Counsel, drawing your attention

14 to what has been marked as Stern Exhibit No. 2, page

15 four, request number five, and it is a request for "any

16 or all documents, articles, papers, publications,

17 reports, peer reviews and course materials that Ms.

18 Stern has authored, co-authored, had published, or

19 contributed to regarding or relating to the areas of

20 her expert testimony." MR.

21 KILLINGER: I suppose my objection remains the same.

22 MR. KOBELINSKI: As I understand Ms. Stern is

23 going to be providing expert opinion as to the wetland

24 impacts of the programs and permits being sought for

25 the Everglades Protection Area, which again deals with

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 nutrients and nutrients' impacts on the wetlands.

2 Ms. Stern has stated her thesis dealt with

3 nutrients and suspended solids in a tidal freshwater

4 bayou, again, a wetland marsh, and the nutrient impact

5 upon them. It would seem to come within the purview of

6 this request

7 MR. KILLINGER: I would disagree heartily. I

8 would say that Ms. Stern's expert designation is going

9 to be regarding the impact or potential impact of the

10 permit activities on the Everglades and the wetlands in

11 the Everglades, and, that, I think bears a substantial

12 dissimilarity to any freshwater slough or bayou in

13 Louisiana. And I don't know if I am going to make an

14 issue of this and refuse to produce it, because I am

15 just not sure that it is worth going to the hearing

16 officer about, but I am going to state may objection on

17 the record to discovery of a Master's thesis in 1986

18 that bears no possible relevance to this case, the

19 Everglades or her testimony here unless she testifies

20 that she will be relying on something in that with

21 regard to this case.

22 MR. KOBELINSKI: Okay. First of all, an objection

23 was not filed with regard to the subpoena, nor was a

24 motion for protective order filed. Just so I

25 understand your objection, are you saying that studies

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 of other wetland marshes outside of Florida have no

2 bearing or relevance with regard to the Everglades?

3 MR. KILLINGER: No, I am not. I am saying that it

4 doesn't bear relation to what her designation of expert

5 testimony is in this case, and I will also state for

6 the record that when this notice of duces tecum came

7 in, there was no attachment attached to it with regard

8 to the documents that were requested, and if you will

9 recall I wrote you a letter saying that even though we

10 hadn't received one, we would go ahead and produce

11 everything that she had. Now, that didn't include her

12 Master's thesis, and again, I don't think it is a big

13 deal, but I just have got do put on record that I

14 disagree with the latitude of the discovery going after

15 her Master's thesis from LSU.

16 So, I mean, you take your position, and I will

17 take mine. That's fine. I just don't think it ought

18 to be includable under the definition. I don't think

19 an objection would need to be interposed to that,

20 because I don't think it is included.

21 MR. KOBELINSKI: All right.

22 BY MR. KOBELINSKI:

23 Q With regard to your thesis, Ms. Stern, did it

24 study the impacts of nutrients upon the tidal freshwater

25 marsh?

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1 A Not the impacts, it was nutrients cycling

2 processes. The big picture was how are various components

3 of nutrient circulation within the estuary, the

4 Atachafalaya Bay Estuary, affected by nutrient cycling

5 processes in the marsh and other sources of nutrient input

6 to that bay.

7 Q Okay. Are you aware that you have been designated

8 by the DER as an expert witness in the SWIM Challenge

9 proceeding?

10 A Yes.

11 Q Okay. Does your expert testimony relate in any

12 way to nutrient cycling in the Everglades wetland marshes?

13 A My focus on the Everglades permit -- I didn't do

14 any work on the swim plan -- but my focus on the permit was

15 wetland, construction of wetlands. And it did not involve

16 any evaluation of nutrient cycling. It was dredge and

17 fill.

18 Q A moment ago you stated that you had not done

19 anything with regard to the swim plan, and I am not sure if

20 what you were referring to was with regard to expert

21 testimony or with regard to your duties with the DER.

22 With regard to your duties at the DER in the past

23 five years have you been involved at all in analyzing or

24 otherwise participating in a review of the swim plan?

25 MR. SAXE: Objection as to form. The preamble to

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1 the question quotes the witness. Objection for the

2 record for the United States.

3 MR. HETRICK: You can answer that question.

4 THE WITNESS: Okay. I have worked at DER for

5 three years. I have not been involved in the swim plan

6 at all.

7 BY MR. KOBELINSKI:

8 Q Okay. Have you been involved at all in the South

9 Florida Water Management District's permit application

10 which is the subject of the permit challenge that was

11 discussed earlier in this deposition?

12 A Yes.

13 Q Okay. From now on I will be referring to the

14 South Florida Water Management District as the District,

15 and I will be referring to that permit application as just

16 the permit application, just so we understand. All right?

17 A Uh-huh.

18 Q Okay. What exactly was your role with regard to

19 the permit application?

20 A Well, I had to evaluate the impacts of

21 construction on wetlands and water quality changes that

22 would result directly from construction like turbidity

23 changes.

24 (Discussion off the record.)

25 BY MR. KOBELINSKI:

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q Back on the record. We were interrupted, I am not

2 sure if you were in the process of giving a response. I

3 believe you were stating that you were involved in

4 evaluating certain impacts of construction. Could you

5 describe that a bit more fully?

6 A Right. Okay. You had asked me what my

7 involvement with the permit was --

8 Q -- exactly --

9 A -- and I started out saying one of the things I

10 had done was evaluate wetland impacts of construction,

11 strictly the actual dredging and filling impacts and any

12 water quality changes or impacts that were related directly

13 to construction. That would involve things such as looking

14 at where they proposed to do dredging and filling, what

15 they proposed to do, how they proposed to do it, how they

16 proposed to minimize construction impacts in wetlands.

17 Q Did you have any additional role besides the

18 evaluation of wetland impacts of construction?

19 A Yes, I coordinated sort of a everybody's review,

20 the permit reviewers, I coordinated all our meetings and

21 our, all the documents we had to produce collectively.

22 When we got the application, I sent copies of the

23 application to the reviewers. When we got completeness

24 summaries in, I sent copies of all the materials to the

25 reviewers. When we wrote completeness summaries, I got all

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1 the questions of the reviewers and had them compiled in our

2 word processing by our word processing staff in the Bureau

3 of Wetland Resource Management.

4 Q Other than what you have stated with regard to the

5 evaluation of wetland impacts of construction, were you

6 involved in the analysis of any other areas of the permit?

7 A No.

8 Q Okay. With regard to your compilation of the

9 completeness summaries and also the questions which would

10 be directed towards the district, were you involved in any

11 type of analysis of those questions or consideration of the

12 topics raised therein?

13 A No.

14 Q Okay.

15 A Only my own, not anybody else's.

16 Q And when you refer to your own, are you again

17 referring solely to the evaluation of wetland impacts of

18 construction?

19 A Yes.

20 Q What you described a few moments ago?

21 A Yes.

22 Q Did you draft the notice of intent or any other

23 portion of the proposed permit?

24 A I drafted some specific conditions in the permit.

25 I drafted the project description and the project location,

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 and that's it.

2 MR. HETRICK: Excuse me. Let the record reflect

3 she's looking at a copy of the permit.

4 MR. KOBELINSKI: Okay.

5 BY MR. KOBELINSKI:

6 Q All right. With regard to the drafting of

7 specific conditions, some specific conditions that you

8 mentioned, were those again related to evaluation of

9 wetland impacts?

10 A The construction impacts, yes.

11 Q I am sorry, construction impacts. Were there any

12 other conditions to the permits that you drafted?

13 A No.

14 Q Okay. Could you briefly describe for me your work

15 experience subsequent to your Master's degree?

16 A Okay. Well, I will just go through the resume

17 from most recent to least recent.

18 Right now I am an environmental specialist III at

19 DER where I coordinate the review of federal permit

20 applications.

21 Before that I was an environmental specialist II

22 at DER where I coordinated the review of other permit

23 applicants -- just developers, private individuals that

24 type of thing.

25 Prior to working at DER, I worked for a com --

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q Before you go on to that, if you don't mind, I --

2 with you blushing, believe that?

3 With regard to the coordination of federal permit

4 applications have you, were any of those dredge and fill or

5 involved dredge and fill?

6 A Yes, all of them did.

7 Q And you may have stated this, how long have you

8 been coordinating federal permit applications?

9 A I started in this position in November of 1990,

10 about two years.

11 Q Okay. And as part of the coordination of federal

12 permit applications did you have any responsibility for --

13 (Brief recess.)

14 MR. KOBELINSKI: Could you read back.

15 (Whereupon, the court reporter read the requested

16 portion of the record.)

17 MR. KOBELINSKI: I will rephrase that before we

18 start, or you can put it on the record. Keith, I am

19 probably going to go ahead and take a little bit longer

20 lunch. I have got 176 documents marked for this

21 deposition. That will be reduced given what we just

22 found out a little bit early.

23 MR. SAXE: Okay.

24 MR. KOBELINSKI: So although it might take a

25 little longer for lunch it will overall shorten the

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 deposition.

2 MR. SAXE: I understand, thanks.

3 BY MR. KOBELINSKI:

4 Q Ms. Stern, before we took the break we were

5 discussing your coordination of federal permit

6 applications, and the question I was about to pose was

7 whether or not the coordination of federal permit

8 applications dealt with whether your role in the

9 coordination of federal permit applications that it dealt

10 with any impacts that dredge and fill or construction may

11 have relating to those permits to wetland marshes?

12 A The majority of projects I review for federal,

13 majority of dredge and fill projects I review pertain to

14 maintenance dredging, navigation channels, maintenance

15 dredging in ports and beach restoration.

16 Q When you state maintenance dredging, what do you

17 mean by maintenance dredging?

18 A Dredging channels to maintain a certain depth.

19 Q With regard to your coordination of other permit

20 applications, other than the federal permit applications,

21 did those deal with federal, excuse me, not federal, with

22 dredge and fill permitting?

23 A Yes.

24 Q Okay. With regard to those permit applications

25 have you analyzed any dredge and fill operation's impact

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 upon a wetland marsh?

2 A Yes.

3 Q Okay. Which permits would those be related to?

4 A I had that job for about a year and a half and

5 there were many.

6 Q Approximately how long did you, what was the

7 period of time that you were reviewing the other permit

8 applications?

9 A As the ES II?

10 Q Yes.

11 A From May of '89 to November of '90.

12 Q Is there a difference between an ES and an ES II?

13 A Well, on my resume, well, ES just refers to

14 environmental specialist, and then I was hired here at DER

15 as an ES II, an environmental specialist II, and then after

16 I worked here for a while I became an ES III, environmental

17 specialist III. So I just had the environmental specialist

18 heading there to show that, while at DER, I have been an

19 environmental specialist basically for the whole time.

20 Q Approximately how many permits have you worked on

21 during your period at DER where you have studied the

22 impacts of construction or dredge and fill operations upon

23 wetland marshes?

24 A A lot, I can't remember an exact number.

25 Q Would that have been during your entire period you

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 have been with the DER?

2 A Well, the majority of projects that involved

3 actual impacts in marshes were when I was an ES II. As an

4 ES III most of the work is maintenance dredging with some

5 disposal which can impact wetlands or beach restoration

6 which doesn't really affect wetlands, marshes, not wetland,

7 marshes, specifically.

8 Q With regard then to the period of time you were an

9 ES II, was there a specific geographic area that the

10 permits you coordinated related to?

11 MR. SAXE: Objection, as to the form, which

12 permits?

13 MR. KOBELINSKI: Could you read back?

14 (Whereupon, the court reporter read the pending

15 question.)

16 MR. HETRICK: Go ahead and answer it.

17 THE WITNESS: Part of the time when I was an ES

18 II my projects were in, to the best of my recollection,

19 Tampa -- well, okay -- Hillsborough County, Manatee

20 County, Sarasota County, Lee County -- that area, and

21 part of the time I had Palm Beach County, St. Lucie

22 County, Martin County and Indian River County.

23 BY MR. KOBELINSKI:

24 Q Prior to your work related to the District's

25 permit application, again I am referring to the permit

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 application that is involved in the permit challenge, had

2 you done any coordination of any permits wherein the dredge

3 and fill or construction operations impacted wetlands

4 within the Everglades Protection Area?

5 A Prior to?

6 Q Your work on the District permit.

7 A Well, I had gone to some meetings pertaining to a

8 Corps project in the Everglades Protection Area.

9 Q When was that?

10 A Probably, I think it was around June of '91,

11 something like that.

12 Q Do you recall what the Corps project was?

13 A Yes, the, it was called the Modified Water

14 Delivery System to the Everglades, and it is also called

15 Northeast Shark River Slough.

16 Q And what was your involvement in that project?

17 A I will be handling that application when it comes

18 in, when they make the application.

19 Q What work have you done thus far in preparation

20 for the application?

21 A Well, we had that first meeting where they came in

22 and presented the project. There were a number of people

23 here, from here at DER at the meeting, a number of people

24 from the Corps at the meeting, and it was an overview of

25 the project. Then I guess this summer they completed the

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 GDM for the project, and there was an interagency meeting

2 in Miami. We went down and --

3 MR. SAXE: Pardon me, for interrupting,

4 clarification, are objections, other than as to form,

5 preserved.

6 MR. HETRICK: By the rule they are.

7 MR. KOBELINSKI: We are operating by the rules of

8 civil procedures.

9 MR. SAXE: Fine. Thanks.

10 BY MR. KOBELINSKI:

11 Q Yes, please go forward, and we, just for the

12 record, object to people interrupting the witness in the

13 middle of an answer.

14 Please proceed forward.

15 THE WITNESS: Okay. We had a meeting --

16 MR. SAXE: Objection as to relevancy on this

17 question.

18 MR. KOBELINSKI: Counsel, she is in the middle of

19 an answer. Please, either prior to the answer or after

20 the answer raise an objection if you so desire. Please

21 do not stop a witness from responding unless you want

22 to instruct her not to respond. Since she is not your

23 witness, I would strenuously object to that. The woman

24 is in the middle of a response.

25 MR. SAXE: My objection concerns the relevancy of

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 this entire line of inquiry.

2 MR. KOBELINSKI: That's fine, Counsel. I would

3 again ask you to please allow the witness to complete

4 her answer before interrupting her. Are you

5 instructing her not to respond?

6 MR. SAXE: Absolutely not.

7 MR. KOBELINSKI: Then please raise your objections

8 either prior to or after her testimony.

9 BY MR. KOBELINSKI:

10 Q I am sorry, please proceed.

11 A We had a meeting in Miami, an interagency meeting

12 in Miami, this summer, past summer, July, to discuss issues

13 that, issues of concern to all the agencies that would be

14 involved in the project and to go out and do a site

15 inspection. I have spoken several times over the summer

16 and I guess periodically from the summer up until now with

17 the project manager of the Corps about the types of

18 information we want to see in their application to us.

19 That's about it.

20 Q Okay. Who is the project manager of the Corps

21 that you are dealing with?

22 A John Molding.

23 Q Okay. Did any of the inquiries you just mentioned

24 or areas that you wish the Corps to include in the

25 application deal with wetlands impacts due to construction

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 or dredging and filling necessitated by the --

2 A Yes.

3 MR. SAXE: Counsel, excuse me, before the witness

4 begins her answer. I am going to object on relevancy

5 grounds, so this entire line of inquiry, shall we agree

6 that this will be a continuing objection, or would you

7 rather that I raise the objection with each question?

8 MR. KOBELINSKI: As I understand, you are raising

9 an objection as to --

10 MR. SAXE: -- inquiries into the GD, the modified

11 water deliveries project Northeast Shark River Slough,

12 work that may or may not have been done by the deponent

13 as being beyond the scope of relevant discovery in

14 this proceeding.

15 MR. HETRICK: Let's go off the record for a

16 moment.

17 (Discussion off the record.)

18 MR. HETRICK: So we're back on the record.

19 MR. KOBELINSKI: Can you read back the last

20 question and answer?

21 (Whereupon, the court reporter read the requested

22 portion of the record.)

23 BY MR. KOBELINSKI:

24 Q What are the type of structures that will be

25 involved in the Corps GDM

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A There will be creation of canals and berms,

2 filling of existing canals and lowering of existing berms,

3 there will be some water control structures. That's the

4 majority of it.

5 Q Have you or anyone at the DER commenced at this

6 point in time determining what, if any, impacts there would

7 be to the wetlands as a result of the construction and/or

8 dredge and filling resulting from this Corps project?

9 MR. SAXE: Objection as to form, I don't

10 understand the question. You or anyone at DER, how

11 many questions are we asking?

12 THE WITNESS: Okay. Could you just repeat that,

13 what have we --

14 BY MR. KOBELINSKI:

15 Q Have you commenced doing any type of analysis, as

16 to what, if any, wetland impacts there will be as a result

17 of the construction involved in the Corps GDM for the Shark

18 River Slough?

19 A The Corps has reported some acreages of impact and

20 explained hydrology in the system, and there is description

21 of that in the GDM and the final EIS, and I have discussed

22 with them in general terms and I have read parts of the GDM

23 and EIS, and I would say up to this point it has been very

24 general. There has been nothing on the order of a review

25 that we conduct when we get an application formally.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q Who will be conducting the review of the wetland

2 impacts of the construction-related to the Corps' Shark

3 River Slough project?

4 A Right now, the, you know, I am the one who is

5 scheduled to conduct the review.

6 Q Okay. Other than the discussions you have

7 testified about, have you conducted any part of that

8 review?

9 A I have conducted no part of an official review. I

10 am, it has all been very general pre-application type of

11 work.

12 Q Okay. Other than the Corps' project related to

13 the Shark River Slough, have you been involved in any other

14 permit applications that impacted the Everglades Protection

15 Area?

16 A I have been involved in handling other permit

17 applications, but at this point I think it is premature to

18 say the applications impacted the Everglades Protection

19 Area. The, there are two other applications that I am

20 coordinating a review on. One is the, is an application by

21 the water management district, and one is another

22 application by the Corps. They are in the very early

23 stages of processing.

24 Q With regard to the application by the District,

25 what is that application for?

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 A Structures that discharge into the Everglades

2 Protection Area, and essentially regulating the flows

3 through those structures.

4 Q Is that permit application in any way related to

5 the permit that's involved in the permit challenge?

6 A Yes.

7 Q In what manner?

8 A They were, this other permit was also a result of

9 a settlement agreement.

10 Q Are you referring to the settlement agreement in

11 the federal lawsuit between the United States, the

12 District, DER?

13 MR. SAXE: Objection as to relevancy and as to a

14 matter that is presently the subject of motions to

15 strike it for a protective order pending in this

16 hearing.

17 THE WITNESS: What was the question?

18 MR. SAXE: Could we take a brief recess here?

19 (Brief recess.)

20 (Whereupon, the court reporter read the pending

21 question.)

22 BY MR. KOBELINSKI:

23 Q What settlement agreement are you referring to?

24 MR. HETRICK: Answer the question.

25 THE WITNESS: The Everglades Settlement

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 agreement.

2 BY MR. KOBELINSKI:

3 Q When you say the Everglades Settlement Agreement,

4 are you referring to the federal litigation between the

5 United States, the DER, the District that was pending

6 before Judge Hoeveler?

7 A I am not sure if there is a difference between

8 litigation and settlement agreement. I was referring to

9 the settlement agreement. That's what I call it. I don't

10 know if it means the same thing as referring to

11 litigation --

12 Q Have you ever --

13 A -- between those agencies.

14 Q Have you ever seen a copy of the settlement

15 agreement?

16 A Yes.

17 Q Okay.

18 MR. SAXE: Objection, as to, excuse me, go head.

19 Are we trying to determine what the settlement

20 agreement is and you are asking the witness if she's

21 seen a copy of it?

22 MR. KOBELINSKI: Yes.

23 BY MR. KOBELINSKI:

24 Q Do you have a copy of the settlement agreement?

25 MR. SAXE: Objection as to form, it is unclear

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 what settlement agreements you mean.

2 MR. KOBELINSKI: That's what we are attempting to

3 establish here, Counsel.

4 BY MR. KOBELINSKI: The question is do you have a copy of

5 the settlement agreement?

6 A I don't have a copy here, I have a copy in my

7 office.

8 Q Okay. For the sake of the deposition, or, does

9 DER internally refer to the DER permit that is currently

10 the subject of the permit challenge that referred to as

11 application A, district's application A?

12 MR. HETRICK: Objection as to form.

13 THE WITNESS: Well, I, myself, refer to it as

14 interim application A.

15 BY MR. KOBELINSKI:

16 Q Okay.

17 A Sometimes.

18 Q All right. What is it that you refer to, the

19 other permit application by the District you were just

20 referring to?

21 A Well, it has got a number --

22 Q Okay. What is that number?

23 A - which I use sometimes. I don't remember it

24 offhand. 202938 is the number, or I refer to it as interim

25 application B.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 Q Is interim application B related to the Everglades

2 swim plan?

3 A I don't know.

4 Q Okay. What are your responsibilities with regard

5 to the interim application B?

6 A The same as they were for interim application A.

7 Q What is the status of interim application B?

8 A It is incomplete.

9 Q Okay. Have you at this point in time conducted

10 any analysis of the wetlands impacts of the construction

11 and/or dredge and filling related to interim application B?

12 A In our first completeness summary I asked if there

13 were in fact going to be any wetland impacts, direct

14 construction-related impacts from dredging and filling,

15 because after reading the application it didn't seem to me

16 that there would be, and their response was I believe, no,

17 we don't anticipate any at this time. So that's the extent

18 of the analysis.

19 Q Okay. You also mentioned a Corps permit

20 application that you are working on?

21 A Yes.

22 Q Okay. What is that Corps permit application?

23 A The Corps permit application, the Northeast Shark

24 River Slough application.

25 Q Is this the same Corps permit application you

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 referred to earlier in your deposition?

2 A I did refer to it?

3 Q Okay?

4 A Which Corps application are you talking about?

5 Q Are you currently working on a pending Corps

6 application for a permit?

7 A The, okay, an application that we have in-house

8 right now, we have a Corps application in-house right now,

9 which is not the same as the Northeast Shark River Slough

10 application. That pertains to the Everglades. We have a

11 lot of Corps applications in-house right now.

12 Q Do you have, and I know you took a break, but are

13 you currently working on a Corps application related to the

14 Everglades?

15 A Yes.

16 Q Okay. And what is that application regarding?

17 A The S-10, 11 and 12, structures.

18 Q What are your responsibilities with regard to that

19 permit?

20 A The same as they were for interim A.

21 Q And interim A, here again, referring to the permit

22 that's subject to the permit challenge, is that correct?

23 A Right.

24 Q All right. Will there be any downstream or

25 wetlands impacts as a result of any construction or dredge

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 and filling related to the Corps permit application?

2 A I don't know. I don't know.

3 Q Have you done any review of that issue?

4 A We asked the completeness summary question about

5 that and I can't recall really the details of their

6 response offhand right now. I can't remember if they said

7 there would be some dredging and filling associated with

8 structures with the S-10's, 11's and 12's, or if there

9 wouldn't be. My recollection at this point is that if

10 there is any, it is very minor, but I haven't looked at

11 that application in a long time.

12 Q What are your responsibilities with regard to that

13 application?

14 A The same as they are for interim A.

15 Q Other than interim A, interim application B, the

16 Corps application we were just discussing referring to the

17 S-10's, S-11's, S-12's and the GDM for Shark River Slough,

18 have you had any responsibility for use, wetlands impacts

19 of construction or dredge and fill which would impact the

20 Everglades Protection Area?

21 A When you say impact, I'm not exactly sure what

22 you're getting at when you say impact the Everglades

23 Protection Area.

24 Q Okay. Well, what is your responsibility with

25 regard to the analysis of impacts resulting from the dredge

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 and filling of construction in interim A?

2 A Well, with, okay. With impacts, there are

3 positive and negative, and we look at a number of, you

4 know, different things depending on what is in the

5 application. I mean, what we look at depends on what they

6 are proposing to do.

7 My, I am not sure what you're getting at. I am

8 involved in the Everglades nutrient removal project. We

9 have a permit here now, and I was a project manager when it

10 was prepared, but I am involved in modifying the, I am the

11 project manager for it, now, but it has already been

12 issued, and when you say impact the Everglades, I am not

13 sure, colloquially a lot of people when they say, impact

14 the Everglades, just mean negative things, and so I wasn't

15 sure if you were saying impact the Everglades, you know, in

16 the strictly negative sense, or if you meant just more

17 generally affect the Everglades or involve the Everglades.

18 Q What exactly is your responsibility for, with

19 regard to interim application A related to the, again,

20 using the term impacts, of the construction and dredging

21 and filling?

22 A What is my responsibility for interim application

23 A?

24 MR. HETRICK: I am going to object to that only

25 because she's asking. It has been asked and answered,

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 she's told you what her responsibilities are with

2 regard to interim A. I mean, if you want to pursue,

3 you know, another type of question related to that, I

4 don't have a problem with that.

5 THE WITNESS: Okay. So what are my

6 responsibilities for application A, is reviewing

7 construction-related impact and coordinating the

8 activities of other reviewers.

9 BY MR. KOBELINSKI:

10 Q Okay. When you refer to construction-related

11 impacts, again, going back to what you said a few moments

12 ago is that both positive and negative impacts?

13 A Yes.

14 Q All right. Are there any other impacts that you

15 are reviewing related to the construction or dredging and

16 filling --

17 A Okay.

18 Q Involved in the --

19 A Positive and negative.

20 Q Yes. Using that as then our understanding of

21 impacts isn't that the same responsibility you had for

22 interim B,

23 is that correct?

24 A Correct.

25 Q For the pending Corps application related to the

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 S-10's as well as the S-12, and your responsibility that

2 you will have for the GDM related to the Shark River

3 Slough, is that correct?

4 A I'm not sure. With Shark River Slough I might

5 have more of a, an involved water quality review. I am not

6 sure.

7 Q Okay. But you have not commenced that at this

8 time?

9 A Right.

10 Q Other than those three pending permits and the

11 Shark River Slough project, are there any other projects or

12 permits that you are involved in where you have done the

13 same type of analysis or had the same type of

14 responsibility for determining impacts of construction or

15 dredging and filling where the impacts would be within the

16 Everglades Protection Area?

17 A Well, there is the Everglades nutrient removal

18 project, which I did not write that permit, I didn't do the

19 review for that permit, but since I am involved in, with

20 these other Everglades applications and permits, and this

21 is tied in with those, I have inherited that file, so to

22 speak, so that whatever happens to that permit from now

23 on -- if somebody wants to modify it, I will handle that.

24 Q Have you done any review with regard to the

25 Everglades nutrient removal project relating to impacts

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 resulting from construction or dredging and filling?

2 A No.

3 Q Other than Everglades nutrient removal project,

4 and the other applications we were just discussing, are you

5 involved in any other projects or permits which required a

6 review of the impacts upon wetlands?

7 A Not that I can think of.

8 Q Ms. Stern, were you served with a subpoena

9 requesting the production of certain documents?

10 A Yes.

11 Q Did you gather the documents responsive to that

12 subpoena?

13 A To the best of my understanding.

14 Q Okay. And were those the documents that were

15 produced to me yesterday and actually are I believe in this

16 room to your left, there?

17 A Yes, and these right here to my right.

18 Q All right. Which of those documents are you

19 relying upon in providing your opinion related to the

20 impacts of the wetlands resulting from the construction in

21 dredge or filling related to interim permit A?

22 A Which --

23 MR. HETRICK: Let me clarify, you want her to go

24 through files and boxes at this point?

25 MR. KOBELINSKI: Yes.

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 (Discussion off the record.)

2 BY MR. KOBELINSKI:

3 Q During the period of time you were an ES II, I

4 believe you previously stated you were responsible for

5 numerous permits wherein you analyzed the impacts upon

6 wetlands, is that correct?

7 A Yes.

8 Q Okay. Is there any means of determining a rough

9 estimate as to what you mean by numerous?

10 A I don't know if we have a, any way of going back

11 and tracking all the permits that I, you know, worked on

12 during that time period. We don't have them sorted by

13 processor, I don't think.

14 Q For instance, is it more than 10?

15 A Yes.

16 Q Less than a thousand?

17 A Yes.

18 Q Okay. Could you give me a rough estimate

19 somewhere in there as to what exactly it is?

20 A It is less than a hundred.

21 Q Okay.

22 A It is hard for me to say. I mean roughly, why

23 don't we say roughly between zero and 50. How is that?

24 Does that narrow it down enough?

25 Q Okay. What are the negative impacts that could

A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722

1 occur as a result of dredge and fill operations,

2 construction operations that are in or adjacent to a

3 wetland?

4 A Well, there are a lot of potential negative

5 impacts, there are a lot of different types of wetlands.

6 We evaluate impacts, well, okay.

7 You have loss of habitat for wildlife, loss of

8 habitat also for endangered species which I will recognize

9 separately, uh, you have loss of water quality function,

10 reduction of productivity, uh -- you have turbidity-related

11 problems -- we, uh, we evaluate -- there are a lot of

12 potential things that can change. What we evaluate

13 specifically is in 403.918, Public Interest Criteria and

14 water quality, and each one of those things listed in that

15 rule is something we look at that, uh, that, okay. That

16 includes the things I mentioned -- productivity, and

17 habitat values, and water, water, well, you know, functions

18 like filtering functions and nutrient cycling things. It

19 includes recreation changes, it includes erosion and

20 shouldering, it includes public health, safety and welfare.

21 It includes nav